http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

CASE NO.:

Appeal (civil) 6638 of 2004

PETITIONER:

Zile Singh

RESPONDENT:

State of Haryana & Ors.

DATE OF JUDGMENT: 07/10/2004

BENCH:

CJI. R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P (c) No.459/2004)

R.C. Lahoti, CJI

Leave granted.

Haryana Municipal Act, 1973 (hereinafter, the Principal Act,

for short) is a State enactment dealing with local self-government

through the municipalities. Chapter III of the said Act deals with

composition of municipalities. The Haryana Municipal (Amendment)

Act, 1994 (Act No.3 of 1994) inserted Section 13A in Chapter III of

the Principal Act which provision reads as under :-

"13A. Disqualification for membership.

(1) A person shall be disqualified for being

chosen as and for being a member of a

municipality __

xxx xxx xxx

(c) if he has more than two living

children :

Provided that a person having more than

two children on or after the expiry of one

year of the commencement of this Act,

shall not be deemed to be disqualified".

xxx xxx xxx"

The Amendment Act received the assent of the Governor of

Haryana on the 1st April, 1994 which was published in the Haryana

Gazette, (Extraordinary), Legislative Supplement, Part I, dated April

5, 1994 and on that date the Amendment Act came into force. The

amendment spelled out a disqualification effective from 5.4.1994 on

a person for being a member of municipality either by election or by

continuing to hold the office even if elected prior to the date of

coming into force of the Amendment Act. The substantive provision

contained in clause (c) abovesaid spelling out the disqualification is

explicit and specific. However, the proviso appended to clause (c)

turned out to be a trouble-maker on account of its faulty drafting.

Anomalous consequences verging on absurdity flew from the

proviso. While a person having more than two living children on 5th

April, 1994 became disqualified for being a member of municipality

on that day and the disqualification continued to operate for a

period of one year calculated from 5th April, 1994 yet on the expiry

of the period of one year the disqualification ceased to operate.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

Meaning thereby that the legislative embargo imposed on a person

from procreating and giving birth to a third child in the context of

holding the office of a member of municipality remained in

operation for a period of one year only and thereafter it was lifted.

Even those who became disqualified on 5.4.1994, the

disqualification ceased to operate and they became qualified once

again to contest the election and hold the office of member of a

municipality on the expiry of one year from 5.4.1994. Obviously,

this is not what the Legislature intended.

It took more than six months for the State Legislature to

realize its error. The Haryana Municipal (Second Amendment) Act,

1994 (Act No.15 of 1994) was enacted by the Legislature which

received the assent of the Governor of Haryana on 3rd October,

1994 published in Haryana Gazette (Extraordinary) dated 4th

October, 1994. Section 2 of the Second Amendment reads as

under :-

"2. In the proviso to clause (c) of sub-

section (1) of section 13A of the Haryana

Municipal Act, 1973 (hereinafter called

the principal Act), for the word "after",

the word "upto" shall be substituted."

The Second Amendment brought the text of the relevant part

of Section 13A in conformity with the legislative intent which

prevailed behind the preceding amendment, that is, the First

Amendment.

Zile Singh, the appellant was married with one Om Pati in

April 1970. The couple had three living children when Om Pati died

in April 1991. The appellant then married one Sunita on 20.7.1991.

Out of the latter marriage, two children were born to the appellant

__ a daughter, Puja born in April 1992 and a son Gaurav born on

13.8.1995. The appellant was holding the office of member of

Municipality. One Nafe Singh filed a complaint against the appellant

bringing it to the notice of the State Government that on a child

having been born after 5th April, 1995, i.e., one year after the

commencement of the First Amendment Act, the appellant had

incurred disqualification for holding the office of member. Clause

(f) of sub-section (1) of Section 14 of the Principal Act confers

power on the State Government to remove by notification any

member of a committee if he has, since his election or nomination

become subject to any disqualification which, if it had existed at the

time of his election or nomination, would have rendered him

ineligible under any law for the time being in force relating to the

qualifications of candidates for election or nomination or if it

appears that he was, at the time of his election or nomination

subject to any such disqualification. The factum of the birth of

Gaurav on 13.8.1995 is not disputed though the appellant

contended that Gaurav was given away in adoption on 10.9.1995.

The State Election Commission, Haryana which is the competent

authority found the appellant having incurred the disqualification

within the meaning of Section 13A(1)(c). The disqualification was

notified.

Feeling aggrieved the appellant filed a writ petition in the

High Court which has been dismissed. This is an appeal by special

leave.

At the very outset we may state that the retrospectivity in

operation of the text as amended by the Second Amendment came

up for the consideration of a two-Judges Bench of this Court in

Sunil Kumar Rana Vs. State of Haryana and Ors. \026 (2003) 2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

SCC 628. This court held that the legislative intent to compute the

period of one year under the proviso is from the "commencement of

this Act" meaning thereby from the date of coming into force of

Haryana Act 3 of 1994 and not Haryana Act 15 of 1994 which

merely substituted the word "after" by the word "upto". The result

of the substitution was to read the provision as amended by the

word ordered to be substituted. The Court held __ "The legislature

seems to have realized the need for substitution on becoming

aware of the anomalies and absurdities to which the provision

without such substitution may lead to, even resulting, at times, in

repugnancy with the main provision and virtually defeating the

intention of the legislature. The modification of the provision, as

carried out by the substitution ordered, when found to be needed

and necessitated to implement effectively the legislative intention

and to prevent a social mischief against which the provision is

directed, a purposive construction is a must and the only inevitable

solution. The right to contest to an office of a member of a

municipal body is the creature of statute and not a constitutional or

fundamental right."

In spite of the issue posed for decision before us being

squarely covered by the abovesaid decisions, the learned counsel

for the appellant does not feel satisfied. In his humble submission

Sunil Kumar Rana's case (supra), which is two-judges Bench

decision, was not correctly decided and hence needs a

reconsideration and an over-ruling thereafter. In view of the

submission so made and forcefully pressed, we proceed to examine

and deal with the pleas raised before us independently of the

holding in Sunil Kumar Rana's case (supra).

The constitutional validity of 'two child norm' as legislatively

prescribed, and a departure therefrom resulting in attracting

applicability of disqualification for holding an elective office, has

been upheld by this Court as intra vires the Constitution repelling

all possible objections founded on very many grounds in Javed

and Ors. Vs. State of Haryana and Ors. \026 (2003) 8 SCC 369.

This Court has also held that the disqualification is attracted no

sooner a third child is born and is living after two living children and

merely because the couple has parted with one child by giving it

away in adoption, the disqualification does not come to an end.

However, the present case poses a different issue.

According to the appellant, the disqualification imposed by

Section 13A (1)(c) of the First Amendment remained in operation

only for a period of one year and would have in ordinary course

ceased to operate on the expiry of the period of one year from

April 5, 1994. The citizens were justified in arranging their affairs

including the enlargement of their families keeping in view the

provision of law as it stood. However, the Second Amendment Act

effective from 14.10.1994 made a difference. On that day, the

Legislature specifically provided that a person having more than

two children on or after the expiry of one year shall stand

disqualified. This period of one year, in the submission of the

appellant, should be calculated from 4.10.1994 and not 5.4.1994

and if that be done the birth of the child on 13.8.1995 would not

attract the disqualification.

This plea of the appellant raises a few interesting questions,

such as, the nature of amendment, i.e., whether it is at all

retrospective in operation, and if not, whether the provision as

amended by the Second Amendment applies to the appellant.

It is a cardinal principle of construction that every statute is

prima facie prospective unless it is expressly or by necessary

implication made to have a retrospective operation. But the rule in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

general is applicable where the object of the statute is to affect

vested rights or to impose new burdens or to impair existing

obligations. Unless there are words in the statute sufficient to show

the intention of the Legislature to affect existing rights, it is deemed

to be prospective only 'nova constitutio futuris formam imponere

debet non praeteritis' __ a new law ought to regulate what is to

follow, not the past. (See : Principles of Statutory Interpretation by

Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not

necessary that an express provision be made to make a statute

retrospective and the presumption against retrospectivity may be

rebutted by necessary implication especially in a case where the

new law is made to cure an acknowledged evil for the benefit of the

community as a whole. (ibid, p.440)

The presumption against retrospective operation is not

applicable to declaratory statutes\005\005.In determining, therefore, the

nature of the Act, regard must be had to the substance rather than

to the form. If a new Act is 'to explain' an earlier Act, it would be

without object unless construed retrospective. An explanatory Act

is generally passed to supply an obvious omission or to clear up

doubts as to the meaning of the previous Act. It is well settled that

if a statute is curative or merely declaratory of the previous law

retrospective operation is generally intended\005\005\005An amending Act

may be purely declaratory to clear a meaning of a provision of the

principal Act which was already implicit. A clarificatory amendment

of this nature will have retrospective effect. (ibid, pp.468-469).

Though retrospectivity is not to be presumed and rather there

is presumption against retrospectivity, according to Craies (Statute

Law, Seventh Edition), it is open for the legislature to enact laws

having retrospective operation. This can be achieved by express

enactment or by necessary implication from the language

employed. If it is a necessary implication from the language

employed that the legislature intended a particular section to have

a retrospective operation, the Courts will give it such an operation.

In the absence of a retrospective operation having been expressly

given, the Courts may be called upon to construe the provisions

and answer the question whether the legislature had sufficiently

expressed that intention giving the Statute retrospectivity. Four

factors are suggested as relevant: (i) general scope and purview of

the statute; (ii) the remedy sought to be applied; (iii) the former

state of the law; and (iv) what it was the legislature contemplated

(p.388). The rule against retrospectivity does not extend to protect

from the effect of a repeal, a privilege which did not amount to

accrued right (p.392).

Where a Statute is passed for the purpose of supplying an

obvious omission in a former statute or to 'explain' a former

statute, the subsequent statute has relation back to the time when

the prior Act was passed. The rule against retrospectivity is

inapplicable to such legislations as are explanatory and declaratory

in nature. The classic illustration is the case of Att. Gen. Vs.

Pougett ([1816] 2 Price 381, 392). By a Customs Act of 1873 (53

Geo. 3, c. 33) a duty was imposed upon hides of 9s. 4d., but the

Act omitted to state that it was to be 9s. 4d. per cwt., and to

remedy this omission another Customs Act (53 Geo. 3, c. 105) was

passed later in the same year. Between the passing of these two

Acts some hides were exported, and it was contended that they

were not liable to pay the duty of 9s. 4d. per cwt., but Thomson

C.B., in giving judgment for the Attorney-General, said: "The duty

in this instance was in fact imposed by the first Act, but the gross

mistake of the omission of the weight for which the sum expressed

was to have been payable occasioned the amendment made by the

subsequent Act, but that had reference to the former statute as

soon as it passed, and they must be taken together as if they were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

one and the same Act." (p.395).

Maxwell states in his work on Interpretation of Statutes,

(Twelfth Edition) that the rule against retrospective operation is a

presumption only, and as such it "may be overcome, not only by

express words in the Act but also by circumstances sufficiently

strong to displace it." (p.225). If the dominant intention of the

legislature can be clearly and doubtlessly spelt out, the inhibition

contained in the rule against perpetuity becomes of doubtful

applicability as the "inhibition of the rule" is a matter of degree

which would "vary secundum materiam" (p.226). Sometimes,

where the sense of the statute demands it or where there has been

an obvious mistake in drafting, a court will be prepared to

substitute another word or phrase for that which actually appears in

the text of the Act (p.231).

In a recent decision of this Court in National Agricultural

Cooperative Marketing Federation of India Ltd. And Another

Vs. Union of India and Others, (2003) 5 SCC 23, it has been

held that there is no fixed formula for the expression of legislative

intent to give retrospectivity to an enactment. Every legislation

whether prospective or retrospective has to be subjected to the

question of legislative competence. The retrospectivity is liable to

be decided on a few touchstones such as : (i) the words used must

expressly provide or clearly imply retrospective operation; (ii) the

retrospectivity must be reasonable and not excessive or harsh,

otherwise it runs the risk of being struck down as unconstitutional;

(iii) where the legislation is introduced to overcome a judicial

decision, the power cannot be used to subvert the decision without

removing the statutory basis of the decision. There is no fixed

formula for the expression of legislative intent to give

retrospectivity to an enactment. A validating clause coupled with a

substantive statutory change is only one of the methods to leave

actions unsustainable under the unamended statute, undisturbed.

Consequently, the absence of a validating clause would not by itself

affect the retrospective operation of the statutory provision, if such

retrospectivity is otherwise apparent.

The Constitution Bench in Shyam Sunder & Ors. Vs. Ram

Kumar & Anr., (2001) 8 SCC 24, has held ___ "Ordinarily when an

enactment declares the previous law, it requires to be given

retroactive effect. The function of a declaratory statute is to supply

an omission or explain previous statute and when such an Act is

passed, it comes into effect when the previous enactment was

passed. The legislative power to enact law includes the power to

declare what was the previous law and when such a declaratory Act

is passed invariably it has been held to be retrospective. Mere

absence of use of word 'declaration' in an Act explaining what was

the law before may not appear to be a declaratory Act but if the

Court finds an Act as declaratory or explanatory it has to be

construed as retrospective." (p. 2487).

In The Bengal Immunity Company Ltd. Vs. The State of

Bihar & Ors., [1955] 2 SCR 603, Heydon's case (3 Co. Rep.7a;

76 E.R.637) was cited with approval. Their Lordships have said ___

"It is a sound rule of construction of a

statute firmly established in England as far

back as 1584 when Heydon's case was decided

that ___"\005\005for the sure and true interpretation

of all Statutes in general (be they penal or

beneficial, restrictive or enlarging of the

common law) four things are to be discerned

and considered:-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

1st. What was the common law before

the making of the Act.

2nd. What was the mischief and defect

for which the common law did not provide.,

3rd. What remedy the Parliament hath

resolved and appointed to cure the disease of

the Commonwealth., and

4th. The true reason of the remedy;

and then the office of all the judges is always

to make such construction as shall suppress

the mischief, and advance the remedy, and to

suppress subtle inventions and evasions for

continuance of the mischief, and pro privato

commodo, and to add force and life to the cure

and remedy, according to the true intent of the

makers of the Act, pro bono publico"."

In Allied Motors (P) Ltd. Vs. Commissioner of Income-

tax, Delhi, (1997) 3 SCC 472, certain unintended consequences

flew from a provision enacted by the Parliament. There was an

obvious omission. In order to cure the defect, a proviso was sought

to be introduced through an amendment. The Court held that

literal construction was liable to be avoided if it defeated the

manifest object and purpose of the Act. The rule of reasonable

interpretation should apply. "A proviso which is inserted to remedy

unintended consequences and to make the provision workable, a

proviso which supplies an obvious omission in the section and is

required to be read into the section to give the section a reasonable

interpretation, requires to be treated as retrospective in operation

so that a reasonable interpretation can be given to the section as a

whole."

The State Legislature of Haryana intended to impose a

disqualification with effect from 5.4.1994 and that was done. Any

person having more than two living children was disqualified on and

from that day for being a member of municipality. However, while

enacting a proviso by way of an exception carving out a fact-

situation from the operation of the newly introduced disqualification

the draftsman's folly caused the creation of trouble. A simplistic

reading of the text of the proviso spelled out a consequence which

the Legislature had never intended and could not have intended. It

is true that the Second Amendment does not expressly give the

amendment a retrospective operation. The absence of a provision

expressly giving a retrospective operation to the legislation is not

determinative of its prospectivity or retrospectivity. Intrinsic

evidence may be available to show that the amendment was

necessarily intended to have the retrospective effect and if the

Court can unhesitatingly conclude in favour of retrospectivity, the

Court would not hesitate in giving the Act that operation unless

prevented from doing so by any mandate contained in law or an

established principle of interpretation of statutes.

The text of Section 2 of the Second Amendment Act provides

for the word "upto" being substituted for the word "after". What is

the meaning and effect of the expression employed therein \026 "shall

be substituted".

The substitution of one text for the other pre-existing text is

one of the known and well-recognised practices employed in

legislative drafting. 'Substitution' has to be distinguished from

'supersession' or a mere repeal of an existing provision.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

Substitution of a provision results in repeal of the earlier

provision and its replacement by the new provision (See Principles

of Statutory Interpretation, ibid, p.565). If any authority is needed

in support of the proposition, it is to be found in West U.P. Sugar

Mills Assn. and Ors. Vs. State of U.P. and Ors. \026(2002) 2 SCC

645, State of Rajasthan Vs. Mangilal Pindwal \026 (1996) 5 SCC

60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co. \026

(1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S.

Michael & Ors. \026 AIR 1963 SC 933. In West U.P. Sugar Mills

Association and Ors.'s case (supra) a three-Judges Bench of this

Court held that the State Government by substituting the new rule

in place of the old one never intended to keep alive the old rule.

Having regard to the totality of the circumstances centering around

the issue the Court held that the substitution had the effect of just

deleting the old rule and making the new rule operative. In

Mangilal Pindwal's case (supra) this Court upheld the legislative

practice of an amendment by substitution being incorporated in the

text of a statute which had ceased to exist and held that the

substitution would have the effect of amending the operation of law

during the period in which it was in force. In Koteswar's case

(supra) a three-Judges Bench of this Court emphasized the

distinction between 'supersession' of a rule and 'substitution' of a

rule and held that the process of substitution consists of two steps :

first, the old rule is made to cease to exist and, next, the new rule

is brought into existence in its place.

In Javed (supra) it was held that the right to contest an

election is neither a fundamental right nor a common law right. It

is a right conferred by a statute. The statute which confers the

right to contest an election can also provide for the necessary

qualifications and disqualifications for holding an elective office.

The bar by way of disqualification created against holding the office

of a member of a municipality by clause (c) of sub-section (1) of

Section 13A was absolute. Merely because a disqualification is

imposed by reference to certain facts which are referable to a date

prior to the enactment of disqualification, the Act does not become

retrospective in operation. No vested right was taken away. The

First Amendment was not a piece of legislation having any

retrospectivity. However, the legislature thought that it would be

more reasonable if the disqualification was not applied by reference

to a child born within a period of one year from the date of

commencement of the Act. The period of one year was appointed

keeping in view the period of gestation which is two hundred and

eighty days as incorporated in Section 112 of the Indian Evidence

Act of 1872 and added to it a little more margin of eighty five days.

The proviso spells out this meaning but for the error in drafting.

Even if there would have been no amendment (as introduced by the

Second Amendment Act) the proviso as it originally stood, if

subjected to judicial scrutiny, would have been so interpreted and

the word 'after' would have been read as 'upto' or assigned that

meaning so as to carry out the legislative intent and not to make a

capital out of the draftsman's folly. Or, the proviso \026 if not read

down \026 would have been declared void and struck down as being

arbitrary and discriminatory inasmuch as the persons having more

than two living children on the date of enactment of the Act and

within one year thereafter and the persons having more than two

living children after the date of one year could not have formed two

classes capable of being distinguished on a well defined criterion so

as to fulfill the purpose sought to be achieved by the legislature.

However, the legislature got wiser by realizing its draftsman's

mistake and stepped in by substituting the mistaken word 'after' by

the correct word 'upto' which should have been there since very

beginning. In our opinion the Second Amendment is declaratory in

nature. It alters the text of the First Amendment in such manner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

as to remove the obvious absurdity therefrom and brings it in

conformity with what the Legislature had really intended to provide.

It explains and removes the obvious error and clarifies what the law

always was and shall remain to be. The Second Amendment would

operate retrospectively from the date of the First Amendment and

in giving such operation no mandate of any law or principle is

violated. Else, the evil sought to be curbed continues to exist for

some period contrary to legislative intent. The application of rule

against retrospectivity stands excepted from Second Amendment

Act.

In Javed (supra) the Court has been at pains to point out

how the growth of population of India was alarming and posed a

menace to be checked. It was in national interest to check the

growth of population by casting disincentives even through

legislation. The First Amendment Act targets the evil and seeks to

cure it. The legislative competence of the State is not disputed.

Thus, keeping in view the general scope and purview of the statute,

the remedy sought to be applied, the former state of law, the

legislative intent and the employment of the expression \026 "for the

word 'after' the word 'upto' shall be substituted" in the text of the

Second Amendment, we have no doubt in our mind that the Second

Amendment has the effect of amending the text of First

Amendment ever since the date of commencement of the First

Amendment, i.e., April 5, 1994.

We hold that Sunil Kumar Rana's case has been correctly

decided. It does not call for any reconsideration. The appeal is

wholly devoid of any merit and the same is dismissed. The decision

by the High Court is maintained.