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1991 DIGILAW 252 (MP)

Narendra S/O Vinayakrao Mandloi v. State Of Madhya Pradesh

1991-05-09

B.C.VARMA, D.M.DHARMADHIKARI

body1991
ORDER B.C. Varma, J. 1. With a view to make provision for better regulation of buying and selling of agricultural produce and the establishment and proper administration of markets for agricultural produce in the State of Madhya Pradesh, the State Legislature enacted the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (No. 24 of 1973). Section 7 of the Act requires that every market area shall have a market committee having jurisdiction over the entire market area. Such market committee is to be constituted in accordance with Section 11 of the Act. No market committee shall consist of less than eight and more than twenty members, as the State Government may, by notification, specify. These members are to be drawn from different sources. There shall be elected members (number of which again shall be fixed by notification by the State Government) representing agriculturists, representative of traders, a member of State Legislative Assembly returned from the constituency in which the market area falls, a representative of a co-operative marketing society functioning in the market area committee elected by the managing committee of the society, a Government Officer to be nominated by the Director, representative of weighman and hammals, and an agriculturist who secures first position in any crop competition orgainsed by the Central Government. Section 11(5) of the Act prescribes the tenure of the market committee. This sub-section, as it originally stood, read as follows : "11.(5) Members of every market committee shall hold office for a period of five years from the date of the first general meeting of the market committee." According to sub-section (6) of Section 11, if within the period mentioned in sub-section (5), the market committee is not newly constituted, the market committee shall, on expiry of such period, be deemed to have been dissolved. 2. The aforesaid sub-section (5) of Section 11 has been amended from time to time, First of such amendments, relevant for our purposes, came, vide Act No. 45 of 1984 with effect from 19-11-1984. By that amendment, the term of the market committee was extended by six months, by substituting the words "for a period of five years and six months" for the words "for a period of five years" as originally enacted. The second amendment came by Act No. 6 of 1985 with effect from 234-1985. By that amendment, the term of the market committee was extended by six months, by substituting the words "for a period of five years and six months" for the words "for a period of five years" as originally enacted. The second amendment came by Act No. 6 of 1985 with effect from 234-1985. A lease for a period of another six months was granted to the existing market committees by substituting the words "six years" in place of the words "five and half years" as introduced in Section 11(5) by the first Amendment Act of 1984. Then came Amendment Act No. 11 of 1985. Changes were made in various subsections of Section 11. With those changes we are not concerned for the present. It will be sufficient to mention that the then existing proviso to Section 11(5) was omitted. That omission is also not very relevant for our purposes. Section 11(5) was further amended by Act No. 24 of 1986 with effect from 21-7-1986. By Section 9 of this Amendment Act, the existing sub-section (5) of Section 11 was omitted and in its place, the following has been substituted : "(5) Members of every market committee shall hold office for a period of five years from the date of the first general meeting of the market committee; Provided that the members of the market committee constituted prior to the commencement of the Madhya Pradesh Krishi Upaj Mandi (Sanshodhan) Adhiniyam, 1986 shall hold office for period of six years." This was followed by yet another amending Act No. 24 of 1988. This came into force with effect from 1-11-1988 when it was published in the Gazette. By this amendment, the proviso to Section 11(5), which was introduced by Act No. 24 of 1986, was omitted. The effect of the omission of the proviso introduced in Section 11(5) by Act No. 24 of 1988, apparently appears to dissolve any market committee even though constituted prior to the amendment Act, 1986, if such committee was completed a term of five years from the date of the first general meeting of that committee. 3. The petitioners are members of the different market committees in the State and were elected to those committees prior to the amendment Act No. 24 of 1986. 3. The petitioners are members of the different market committees in the State and were elected to those committees prior to the amendment Act No. 24 of 1986. Their contention, therefore, is that the omission of the proviso to Section 11(5), by Act No. 24 of 1988, does not curtail the tenure of six years of those market committees of which they are members. They assert that they are entitled to complete full term of six years which shall expire in November, 1991. 4. Ordinarily, a statute after its repeal is as completely obliterated as if it had never been enacted. One of the result of repeal under the common law rule is to revive the law in force at the commencement of the repealed statute. Section 6 of the General Clauses Act applies to all kinds of repeals whether it is a repeal simplicitor or a repeal accompanied by fresh legislation. Clauses (c) to (e) of Section 6 of the General Clauses Act prevent obliteration of statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred. What is unaffected by repeal of the statute is right acquired or accrued but not a mere hope and expectation of or liberty to apply for acquiring a right. See Director of Public Works v. Ho Po Sang, 1961 2 All. E.R. 721 P.C. Such rights accrued by force of Section 6 of the General Clauses Act, however, are subject to a contrary intention evidenced by the repealing Act. Where, however, repeal is accompanied by a fresh legislation on the same subject, the line of enquiry should be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. (See Commissioner of Income-Tax, U.P. v. Shah Sadig and Sons, 1987 (3) SCC 516 . But where, a saving clause in a new Act is comprehensively worded and is detailed, it may be inferred that it is exhaustive and expresses an intention not to call for the application of Section 6, General Clauses Act. 5. (See Commissioner of Income-Tax, U.P. v. Shah Sadig and Sons, 1987 (3) SCC 516 . But where, a saving clause in a new Act is comprehensively worded and is detailed, it may be inferred that it is exhaustive and expresses an intention not to call for the application of Section 6, General Clauses Act. 5. In the above State of law, the effect of the proviso to sub-section (5) of Section 11, inserted by amending Act of 1986 was to expressly save the right of the members of the marketing committe constituted prior to the commencement of the M. P. Krishi Upaj Mandi (Sanshodhan) Adhiniyam, 1986 to permit them to continue and complete their term of six years, although by sub-section (5) of Section 11 introduced by Act No. 24 of 1986 that term was reduced to five years. Thus, the intention not to curtall the term of members elected prior to the commencement of the M. P. Krishi Upaj Mandi (Sanshodhan) Adhiniyam, 1986 as six years was made manifest. This, in our opinion, could not be taken away or curtailed by subsequent legislation. At least two division Benches of this court have taken such a view. In K.G. Ansari v. Collector, Bilaspur, 1964 MPLJ 40 = 1964 JLJ 1, the petitioner was elected in 1959 as a member of the Municipal Committee under the C. P. and Berar Municipalities Act, 1922. Term was five years. M. P. Municipalities Act, 1961 repealed the Municipalities Act, 1922. The repealing Act had a saving Clause under Section 2(2) (ii) reading thus : "2(2) Notwithstanding such repeal - (i) ......... (ii) Unless the State Government otherwise directs the Committees, Councils, sub-committees and Boards referred to in clause (i) and the Presidents, Vice-Presidents; members and councillors thereof shall continue to function until the expiry of their term under the repealed Act applicable to them before the commencement of this Act and any vacancy occurring in their office before the expiry of their term shall be filled in the manner provided in such repealed Act;" Section 38 of the repealing Act provided that if a councilor absents himself during three consecutive months from the meetings of the council, except with the leave of the council, he shall cease to be a councillor and his seat shall become vacant with effect from a date to be notified by the State Government. It was held that the membership of a person elected under repealing Act cannot be put into peril by restrictions and conditions provided for the first time in the repealing Act of 1961 and that the provision of Section 36(l)(b) is not applicable to the member elected under the repealed Act and he would continue in office by virtue of Section 2(2). In yet another decision in the same volume, Harisingh (Sardar) v. State of M. P. it was expressly held that to a President of a Municipal Council accrued a vested right to hold the office in accordance with the law existing at the time of his election and that any subsequent enactment curtailing the term although made operative retrospectively will not take away that right accrued. We are in respectful agreement with the view taken by the two division Benches, as aforesaid. We would, therefore, hold that the proviso to sub-section (5) of Section 11 made it manifest that the right of an elected member of the market committee to hold the office under the repealed provision for six years was saved and continued and was recognised as a right accrued and remained unaffected by deleting that proviso by amending Act No. 24 of 1986. 6. It may as well be seen that the proviso to sub-section (5) of Section 11, as introduced by Act No. 24 of 1986 is in the nature of a transitional provision. Referring to and quoting Mr. Francis Bennion's 'Statutory Interpretation', the Supreme Court in Union of India v. Filip Tiago De Gama, 1990 (1) SCC 277 , has elucidated the purpose of incorporating the transitional provision. It is observed that purpose of such transitional provision is to qualify as to when and how the operative parts of the enactments are to take effect. They are intended to take care of the events during the period of transition. The learned Judges quoted Mr. Francis Bennion thus : "189. Transitional Provisions. - Where an Act contains substantive, mending or repealing enactments, it commonly also includes transitional provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition. They are intended to take care of the events during the period of transition. The learned Judges quoted Mr. Francis Bennion thus : "189. Transitional Provisions. - Where an Act contains substantive, mending or repealing enactments, it commonly also includes transitional provisions which regulates the coming into operation of those enactments and modify their effect during the period of transition. Where an Act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended." Seen in this light, the object of introducing the proviso is clear and unambiguous. It clearly manifests the intention of the legislature to allow the members elected prior to the amendment Act, 1986 (Act No. 24 of 1986) to complete their full term of six years. Only members subsequently elected shall have a term of five years. But, those already in office on the date when the amendment was introduced were permitted to continue and the right accrued for such continuance was itself expressly saved. Any subsequent legislation, in our opinion, does not have the effect of taking away the right accrued to the members already in office and elected prior to the Act 24 of 1986. 7. Shri N. C. Jain, learned Advocate-General, appearing for the respondent-State, however, submitted that it has become necessary to supersede the proviso the term of members of the market committee elected prior to the amending Act, 1986 because under the co-operative Societies Act and the Panchayat Act, the terms of elected members has been reduced as a consequence of which the members representing the co-operative societies or the Panchayats in the market committee ceased to hold office in those market committees. This argument does not appeal to us at all for merely because a few members of the market committee cease to continue as such, the market committee would continue its functions even without such members. 8. For the aforesaid reasons, the petition succeeds and is allowed. It is held that the petitioners shall continue to hold and complete their term of office of the market committee to which they were elected prior to introduction of the Madhya Pradesh Krishi Upaj Mandi (Sanshodhan) Adhiniyam, 1986 (No. 24 of 1986). No order as to costs. Security amount be refunded to the petitioners.