Dinanath Mondal v. State of West Bengal — 1977 DIGILAW 151 (CAL)

JUDGMENT Chittatosh Mookerjee, J. 1. The petitioner was a Lower Division Clerk in the Pass Section of the office of the Chief Personnel Officer, South Eastern Railway, Garden Reach. In the year 1964 he was ejected as a member of Maheshtala Anchal Panchayat and thereafter he was elected as the Pradhan of the said Anchal. He is still the holder of the said office. When he was ejected, government servants were not disqualified from becoming either members of Gram or Anchal Panchayats or Adhyaksha and Upadhyaksha, Pradhan and Upapradhan. The West Bengal Panchayat and Zilla Parishads (Amendment) Act, 1965 came into force on 11.12.1965. The said Act amended the West Bengal Panchayat Act, 1956 and the West Bengal Zilla Parishads Act, 1963 in the manner appearing in the said Act. The Section 2(2) was in the following terms:- "In sub-section (1) of Section 15 after clause (a) the following clauses shall be inserted, namely:- (aa) he is not a citizen of India; (aaa) he is in the service of the Central or State Government or of the Zilla Parishad of the district or of an Anchalik Parishad, an Anchal Panchayat or a Gram Panchayat within the district." 2. On 10.6.1965 the Director of Panchayat, West Bengal by his Memo No. 2997/DP/2E-62/75 notified the petitioner that it appeared that he was a Lower Division Clerk attached to the Pass Section of the Chief Personnel Officer, South Eastern Railway, Garden Reach and it was illegal and in contravention of Section 15(1) (aaa) of the West Bengal Panchayat Act for a member of a Anchal Panchayat to hold such a service. The petitioner was directed to show-cause by 25.6.1975 why be should not be removed from his office of Pradhan as well as membership of Maheshtala Anchal Panchayat for contravention of Section 15(1) (aaa) of the West Bengal Panchayat Act. The petitioner has obtained the present Rule against the aforesaid proceeding for his removal from the office of Pradhan and membership of Maheshtala Anchal Panchayat. 3. The impugned proceeding before the Director of Panchayat against the petitioner appears to have been started under Section 20(1) of the West Bengal Panchayats Act, 1957. The petitioner has obtained the present Rule against the aforesaid proceeding for his removal from the office of Pradhan and membership of Maheshtala Anchal Panchayat. 3. The impugned proceeding before the Director of Panchayat against the petitioner appears to have been started under Section 20(1) of the West Bengal Panchayats Act, 1957. The said sub-section (1) of Section 20, inter alia, provides that the prescribed authority may, after giving an opportunity to a member of a Gram Panchayat to show-cause against the action proposed to be taken against him remove him from office on the grounds specified in clauses (a) to (g). Section 28 of the West Bengal Panchayat Act, 1957 prescribes that the provisions of Sections 17 to 24 would, mutatis mutandis, apply in cases of Anchal Panchayat, its Pradhan, Upa-Pradhan and its members. It may be pointed out that the provisions for removal of Adhyaksha and Upadhyaksha are contained in Section 18 which also apply mutatis mutandis, to Pradhans and Upa-Pradhan. Holders of these offices may at any time be removed by a resolution of the Panchayat carried by votes not less than 2/3rd of the total number of members holding office for the time being at a meeting specially convened for the purpose provided when a resolution for removal is carried by less than 2/3rd majority of the members holding office for the time being in force, the prescribed authority may if it thinks fit by order remove the Adhyaksha, and Upadhyaksha, Pradhan and Upa-Pradhan as the case may be. The Section 20 provides for removal of members of Gram and Anchal Panchayats. Therefore, the Director of Panchayat was not entitled to call upon the petitioner to show-cause why he should be removed from the office of Pradhan of the Anchal. But in case the petitioner ill removed from the membership of the Anchal, ipso facto he would automatically forfeit his right to be the Pradhan. Therefore, we have to consider whether the Director of Panchayat had acted within its authority by calling upon the petitioner to show came why action under Section 20 shall not be taken for removing him from membership of the aforesaid Anchal Panchayat. 4. The prescribed authority under section 20 may remove a member of either Gram or Anchal Panchayat on the grounds specified in clauses (a) to (g) of sub-section (1) of the said Section. 4. The prescribed authority under section 20 may remove a member of either Gram or Anchal Panchayat on the grounds specified in clauses (a) to (g) of sub-section (1) of the said Section. In the present case, clauses (a) to (e) are not relevant and need not be considered. When a person was disqualified at the time of his election or appointment, clause (f) of Section 20(1) would be attracted. In other words, when a person at the time of his election or appointment was suffering from anyone of the disqualifications specified in Section 15(1), he shall not be qualified for being elected, i.e. he would be ineligible from becoming a member of an Anchal under clause (f) the material point of time is the date of election of the member concerned. Election of a person who was disqualified at the time of election may be challenged by presenting an election petition before the appropriate authority. Secondly, the prescribed authority under section 20 after giving opportunity may remove a member who was not qualified for being elected or appointed, i.e. he was disqualified under Section 15(1). A disqualification or disability subsequent to election or appointment of a member in certain cases would be a ground of removal under clause (g) of Section 20(1). It may be noted that clause (g) has limited, removal on grounds of post election disqualification to clauses (b), (c), (d), (e) and (f) of Section 15(1). Clause (aaa) has not been mentioned in Section 20(1)(g). Therefore, Section 20(1)(g) cannot be invoked against the petitioner. 5. The West Bengal Panchayat and Zilla Parishads (Amendment) Act, 1965 did not provide that after the commencement of the said Act the Government servants who had been already elected as Adhyaksha, Upadhyaksha or as members of Gram or Anchal Panchayats would vacate their offices or that they will be liable to be removed under Section 20(1) of the West Bengal Panchayat Act. Persons like the petitioner at the time of their election were not disqualified from being elected or appointed on the ground that they were in the service of the Central or State Government. The Clause (aaa) was inserted in Section 15(1) after the petitioner's election to the membership of the Anchal Panchayat and to the office of Anchal Pradhan. Persons like the petitioner at the time of their election were not disqualified from being elected or appointed on the ground that they were in the service of the Central or State Government. The Clause (aaa) was inserted in Section 15(1) after the petitioner's election to the membership of the Anchal Panchayat and to the office of Anchal Pradhan. Only in case the Section 2(2) of the West Bengal Panchayat and Zilla Parishads (Amendment) Act had retrospectively inserted Clause (aaa) in Section 15(1), then it could be held that at the time of petitioner's election he must be deemed to have been disqualified. In the other words, the question is whether or not the new disability under Section 15(1)(aaa) was given retrospective effect by the aforesaid Amendment Act of 1965. The Section 15(1) is not procedural because it takes away or impairs right of Government servants to be elected or appointed to offices mentioned in Section 15(1) read with Section 20(1). Therefore, we have to decide whether Section 2(2) of the West Bengal Panchayat and Zilla Parishads (Amendment) Act had retrospectively inserted the said Clause (aaa) in Section 15(1). 6. It is also well-settled that a law may be held retrospective not only because of the wording used in the statute but also became the subject-matter of legislation may indicate an intention on the part of the legislature to give retrospective effect. Thus, explanatory and declaratory acts have been held to be retrospective. A statute passed for the purpose of protecting the public against some evil or abuse, may be also allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right (vide Craies on Statute Law, 6th Edition, page 395). In the present case, the language used in the said Amendment Act of 1965 does not show that the disability or disqualification under Section 15(1) (aaa) shall have retrospective effect, i.e. would disqualify government servants who were elected before the enactment of the said Amendment Act. But before the Court construes a particular statute to be impliedly retrospective, it must be satisfied that the language used in the enactment indicates a clear and unequivocal intention of the legislature to give retrospective effect to the statute. Craies on Statute Law, 6th Edition at pages 388-89 has pointed out that retrospectively cannot be presumed. But before the Court construes a particular statute to be impliedly retrospective, it must be satisfied that the language used in the enactment indicates a clear and unequivocal intention of the legislature to give retrospective effect to the statute. Craies on Statute Law, 6th Edition at pages 388-89 has pointed out that retrospectively cannot be presumed. The rule of construction is firmly established that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violance to the language of the enactment. If the enactment is expressed in a language which is fairly capable of either interpretation, it ought to be construed as prospective only. 7. I have already stated that such necessary intendment in the Amendment Act of 1965 is not discernable. The language used in Section 2(2) of the Amendment Act does not show any intention on the part of the legislature to give retrospective effect to the said provision. 8. I have also perused the statement of object and reasons of the West Bengal Panchayat and Zilla Parishads (Amendment) Bill, 1965 published in the Extraordinary Issue of the Calcutta Gazette dated 29.10.1965. The said statement of object and reasons do not state the background for enacting Section 15(1) (aaa). 9. It may be argued that clause (aaa) was inserted to avoid conflict of interest or in order to remove official influence from the Panchayats. Therefore, clause (aaa) was inserted in Section 15(1) to protect the public against some evil or abuse. I have, however, indicated that there was no material before me to show the background of the aforesaid amending provision. But in any event, I am unable to hold that every statute passed to protect the public must always be construed as retrospective. When the language of a statute is clear, the same would prevail in case of ambiguity construed and retrospectivity will not be presumed unless the language used in the statute by necessary implication indicates such retrospectivity. In Craies on Statute Law, 6th Edition at page 395 under the heading statues passed to protect the public sometimes held retrospective. In cases of R. v. Vine, (1875) LR 10 QB 195 and Re: Pulborough School Board Election, (1894) 1 QB 725, have been mentioned. In Craies on Statute Law, 6th Edition at page 395 under the heading statues passed to protect the public sometimes held retrospective. In cases of R. v. Vine, (1875) LR 10 QB 195 and Re: Pulborough School Board Election, (1894) 1 QB 725, have been mentioned. In both cases the Courts had construed the intention of the legislation. In R. v. Vine (supra) Cockburn C.J., Mellor J. and Archibald J. held that Section 14 of the Wine and Beer House (Amendment) Act, 1870 was intended not to aggravate punishment for felony but its object was to protect the public against public houses in which spirits were retailed being kept by persons of doubtful character. Lush, J. in his dissenting judgment in R. v. Vine (supra) held that in the statute question there was no indication of an intention to make the enactment retrospective. 10. Subsequently, the Court of Appeal in Re : School Board Election for the Parish of Pulborough Bourke and others vs. Nutt 1894 (1) QB 725 (Lord Esher, MR) dissenting judgment held that Section 32 of the Bankruptcy Act, 1883 which disqualified a debtor who was adjudged bankrupt, inter alia, from being elected to the office of Member of a School Board had no retrospective operation and, therefore, the disqualifications created by it did not attach to a person who had become bankrupt before the passing of the Act. Lopes, L.J. at page 737 of the reports had observed that it was a well-recognized principle that a statute operates only on cases and facts which come into existence after the statute is passed unless retrospective effect is clearly intended. The learned Judge had proceeded to observe that this principle of construction is especially applicable when the enactment to which a retrospective affect is sought to be given would prejudicially affect vested rights or the legal character of past transactions. It need not be penal in the sense of punishment. According to the learned Judge every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transaction already past, must be presumed to be intended not to have a retrospective effect. According to the learned Judge every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transaction already past, must be presumed to be intended not to have a retrospective effect. Both Lopes L.J. and Davey L.J. had distinguished the decision in R. v. Vine (supra) on the ground that the language used in the statute under consideration in the said case was different. Lopes L.J. had further observed that he did not hesitate to say that he preferred the reasoning of Lush J. who had differed from the other members of the Court. 11. Hidayatullah and J.C. Shah, JJ. in State of Bombay vs. Vishnu Ramchandra, AIR 1961 SC 307 had observed to the decision in R. v. Vine (supra) and several other reported decisions. Hidayatullah, J. had observed that an Act designed to protect the public against acts of harmful character may be construed retrospectively if the language admits of such interpretation even though it may equally have a prospective meaning. The Court decided that Section 57 of Bombay Police Act, 1951 only enabled the authorities to take note of past convictions but the action would be taken after the Act had come into force, therefore, the statute could not be said to be applied retrospectively. In the present case, the petitioner would be disqualified only if the Section 15(1)(aaa) was retrospectively applied to the point of time when the petitioner was elected. 12. Applying the above principles I hold that the West Bengal Panchayat and Zilla Parishads (Amendment) Act does not either expressly or by necessary implication make Section 15(1)(aaa) of the West Bengal Panchayat Act applicable to the members of the Panchayat who were elected before the insertion of the said clause (aaa) in the statute. Therefore, the impugned proceeding under Section 20(1) initiated by the Director of Panchayat, West Bengal is without jurisdiction and should be quashed. 13. I accordingly make this Rule absolute. Let a writ of certiorari issue quashing the impugned proceeding under Section 20(1) of the West Bengal Panchayat Act started against the petitioner by the Director of Panchayat, West Bengal. Let a writ of Mandamus issue commanding the respondents not to give effect or any further effect to the impugned show-cause notice, Annexure 'A' to the petition. Let a writ of certiorari issue quashing the impugned proceeding under Section 20(1) of the West Bengal Panchayat Act started against the petitioner by the Director of Panchayat, West Bengal. Let a writ of Mandamus issue commanding the respondents not to give effect or any further effect to the impugned show-cause notice, Annexure 'A' to the petition. There will be no order as to costs.