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2013 DIGILAW 1787 (RAJ)

Meena Choudhary v. State of Rajasthan

2013-10-04

AMITAVA ROY, VEERENDR SINGH SIRADHANA

body2013
JUDGMENT 1. - The vires of Section 28(8) of the Rajasthan Cooperative Societies Act, 2001 (for short, hereafter referred to as "the Act") as occasioned by the Rajasthan Cooperative Societies (Amendment) Act, 2013 (for short, hereafter referred to as "the Act of 2013") encounters impeachment for its nullity in the instant proceed. The petitioner having been elected under the Act is presently holding the post of Chairman, Bharatpur Central Cooperative Bank Ltd., Bharatpur. 2. We have heard Mr. R.N. Mathur, learned Senior Counsel for the petitioner and Mr.G.S. Bapna, learned Advocate General, Rajasthan for the respondent. 3. The skeletal facts essential to outline the backdrop are that the petitioner had in the relevant election held in the year 2009 defeated her rival Smt. Kamlesh wife of Shri Chhattar Singh to be returned to the above office, whereafter, her opponent raised a dispute under the Act alleging that she (petitioner) was disqualified under section 28(8) of the Act to contest the election as at the relevant point of time, she had more than two children. The petitioner contested the proceed contending that the allegations were frivolous and the same was disposed of by the award/decision dated 18.6.2010 passed under section 60 of the Act holding that the allegations were baseless. As a corollary, the petitioner was declared to be eligible to contest the election. According to the petitioner, this award/decision has since been challenged before the appellate forum, which is still sub-judice. 4. In this background, the husband of Smt. Kamlesh filed a criminal complaint on 12.7.2010 before the concerned court and the same was sent to the police under section 156(3) of the Criminal Procedure Code. While contending that the complaint is conspicuously silent about the earlier proceed culminating in the award/decision dated 18.6.2010, the petitioner has disclosed that it contained imputations for the offences under sections 466, 467, 468, 199, 420 and 120B IPC against her as well as her husband and brother-in-law and also the jurisdictional Additional District Education Officer. The petitioner has further stated that after investigation, the police has presented a closure report against which the husband of the defeated candidate has filed a protest petition. That vide order dated 16.11.2011, the jurisdictional Magistrate has taken cognizance of the offence under section 420 read with 120B IPC against her as well as her husband and her brother-in-law, has been mentioned by the petitioner. That vide order dated 16.11.2011, the jurisdictional Magistrate has taken cognizance of the offence under section 420 read with 120B IPC against her as well as her husband and her brother-in-law, has been mentioned by the petitioner. She has pleaded further that two revision petitions filed against the above order having been rejected by the jurisdictional Sessions Judge, proceed under section 482 Cr.P.C. before this Court have been initiated and are pending. 5. By filing an additional affidavit, the petitioner has brought on record the factum of complaint dated 29.2.2013 filed against her in connection with which she had been summoned to appear before the Joint Registrar, Cooperative Societies, Bharatpur Division, Bharatpur. Apart from stating that she on appearing before the above authority has sought for time to submit her defence, the petitioner has contend that the proceed in connection therewith can by no means be related to the impugned amendment, the same being later in point of time qua the date of complaint. Section 28(8) as amended has been repudiated by her principally on the ground that it has the potential of divesting her of her vested/acquired right to hold the office in question with retropsective effect. 6. The respondent in its reply has endorsed the validity of the amendment by pleading in essence that the perceived right of the petitioner to hold the office in question is a statutory one conferred by the Act and thus, the challenge laid is misconceived. Elaborating further, the respondent has insisted that the right to contest election is a statutory right under the Act and the provisions prescribing restrictions thereon are well within the legislative competence. According to the respondent, the amendment does not infringe any constitutional or legal right of the petitioner and thus, the assailment ought to be negated in limine. 7. Mr. Mathur has insistently argued that the Act of 2013 in its application is apparently prospective and thus, the amended Section 28(8) so far as it disqualifies a person to continue as a member of the Committee of a Society being of retrospective bearing/connotation, it is per se non est and is liable to be adjudged as such. The Act of 2013 having been proclaimed to be of prospective effect, no provision thereof with retrospective overtone is conceivable, he urged. The Act of 2013 having been proclaimed to be of prospective effect, no provision thereof with retrospective overtone is conceivable, he urged. The learned Senior Counsel aruged that though the right to contest election is a statutory one, the same having been once acquired, cannot be divested with retrospective effect. 8. According to Mr. Mathur, though the parliament or the legislature, as the case may be, is competent to enact a retrospective law or enactment, no vested right thereby can be extinguished with retroactive effect. In addition to his plea that the amended provision is unreasonable and harsh vis-a-vis the elected candidate, the learned Senior Counsel has insisted as well that for the perceived disqualification of a person thereunder, the pre-requisites of cognizance of the offence mentioned by a competent court and pendency of the trial vis-a-vis the same ought to co-exist. As in the instant case, the petitioner is sought to be disqualified only on the purported ground that the court concerned had taken cognizance of the alleged offences under sections 420 and 120B IPC against her and others, the impugned action is otherwise pre-matured. This is more so, as no culpability is yet attachable to the petitioner and that the situation would become irreparably irreversible in the event of her discharge or acquittal from/of the allegations levelled. Reliance has been placed on the following decisions of the Hon'ble Supreme Court- 1. Ratilal Bhanji Mithani v. State of Maharashtra and ors., AIR 1979 SC 94 2. Amrutlal Chunilal Raval v. Dattatraya Pandurang Hajarnis and ors., 1980 Suppl.SCC 413 3. State of Gujarat & anr. v. Raman Lal Keshav Lal Soni and ors., AIR 1984 SC 161 . 4. Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar & Ors., AIR 1999 SC 3609 5. Zile Singh v. State of Haryana and Ors., (2004) 8 SCC 1 6. J.S. Yadav v. State of UP & Anr., (2011) 6 SCC 570 7. Lily Thomas v. Union of India and Ors., AIR 2013 SC 2662 and of Karnataka High Court in Writ Petition No. 45064/11 M. Mahadevaiah v. The State of Karnataka & ors. (decided on 6.8.2012) . 9. As against this, the learned Advocate General with reference to Article 102 and 191 of the Constitution of India has urged that the impugned amendment is within the legislative competence of the State Legislature and thus, is unassailable. (decided on 6.8.2012) . 9. As against this, the learned Advocate General with reference to Article 102 and 191 of the Constitution of India has urged that the impugned amendment is within the legislative competence of the State Legislature and thus, is unassailable. Drawing the attention of this Court to a decision of a Coordinate Bench of this Court in Yogendra Nandwana v. State of Rajasthan & ors., AIR 2006 Raj. 73 , Mr.Bapna has urged that in view thereof, the issue now raised is no longer res integra and thus, the petition ought to be summarily rejected. He has argued further that in view of Section 28(12) of the Act, the impugnment is pre-matured as well. According to Mr.Bapna, a plain reading of Section 28(8) of the Act would reveal that the disqualification spelt out therein for an already elected candidate is prospective as consequent upon discontinuance in office, his/her past action would not stand effaced. While underlining that the right to contest election is a statutory right and that the continuance thereof essentially is contingent on the legal provisions governing the same, the learned Advocate General has dismissed the plea of arbitrariness and harshness of the impugned amendment as alleged. Mr.Bapna has alleged that in view of Section 225 Cr.P.C., trial against the petitioner has begun and that in any view of the matter having regard to the provisions of Section 28(12) of the Act, no scrutiny in this regard is required to be made by this Court. He has reiterated that the impugned amendment only affects the future rights of a candidate to continue in the office and thus, cannot be repudiated to be of adverse retrospective impact. To endorse these pleas, the learned Advocate General has placed reliance on the following decisions of the Hon'ble Apex Court:- 1. Javed and ors. v. State of Haryana & ors., (2003) 8 SCC 369 2. Lily Thomas v. Union of India and ors., AIR 2013 SC 2662 10. Mr.Mathur in reply has urged that having regard to the scheme of the enactment involved in Yogendra Nandwana (supra), the decision rendered therein is distinguishable on facts and thus, reliance placed thereon is wholly misplaced. While reiterating the challenge as laid, the learned Senior Counsel has argued that by no means Section 28(12) debars the petitioner from questioning the validity of Section 28(8) as done. 11. While reiterating the challenge as laid, the learned Senior Counsel has argued that by no means Section 28(12) debars the petitioner from questioning the validity of Section 28(8) as done. 11. The pleadings and the documents on records and the arguments advanced have received our anxious consideration. 12. Noticeably, the legislative competence of the State legislature to enact the Act of 2013 has not been questioned. As a matter of fact, the learned counsel for the petitioner in course of his submissions did candidly plead that the impeachment is limited to the extent Section 28(8) disqualifies a person already elected from continuing to be the member of the Committee of the concerned Society. It is not disputed as well that the right to contest election, get elected and to continue in the office involved is a statutory right capable of being structured, regulated and effaced by the law pertaining thereto. This comprehension essentially is traceable to Articles 102 and 191 of the Constitution, the relevant excerpts whereof are extracted hereinbelow for ready reference:- "102. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament....... (e) if he is so disqualified by or under any law made by Parliament..... 191. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State...... (e) if he is so disqualified by or under any law made by Parliament ....." 13. There is no cavil that by an analogy the State legislature is empowered and is competent to legislate any enactment in the same lines. 14. The excerpts of sub-sections (8) and (12) of Section 28 being the hub of the debate are also quoted hereinbelow:- "(8) No person- (i) against whom a competent court has taken cognizance for an offence punishable under section 120B, 405, 406, 407, 408, 409, 415, 416, 419, 420, 421, 422, 423, 424, 447, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474, 475, 476 or 477A of the Indian Penal Code, 1860 (Central Act No.45 of 1860) and is under trial shall be eligible to be elected co-opted or nominated or to continue as a member of the committee of a society; or..... (12) Any question as to whether a member of the committee has become subject to any of the disqualifications mentioned under this section or the rules shall be decided by the Election Officer during the process of election and by the Registrar at all other times." 15. A conjoint reading of the above provisions evinces that a person would not be eligible to be elected, co-opted or nominated or to continue as a member of the Committee of a Society contemplated therein if against his/her- (a) a competent court has taken cognizance for an offence punishable under sections of the IPC as referred to therein; and (b) he/she is under trial in connection therewith. 16. Sub-section (12) of Section 28, however, reserves to the Election Officer concerned during the process of election and to the Registrar at all other times to decide any question as to whether a member of the Committee has become subject to any of the disqualifications mentioned in section 28. This unmistakably encompasses sub-section (8) thereof as well. A plain reading of sub-section (8) of Section 28, in our view, however, leaves no manner of doubt that to incur the disqualification as contemplated therein the determinants of cognizance of an offence as envisaged by a competent court as well as the initiation of a trial against the person concerned must co-exist. Having regard to the nature and extent of the assailment laid in the instant proceed, for obvious reasons, we do not intent to dilate further. Section 28(12), however, in our judgment, provides an avenue for the person facing disqualification to represent against any impending adverse decision in connection therewith. This, however, as pleaded on behalf of the petitioner, cannot debar her in law from questioning the vires of Section 28(8) as made. 17. A bare reading of the Act of 2013 would reveal that it had been enforced from 24.4.2013, the date of the publication of the notification carrying it in the official gazettee. To this extent, the State Legislature apparently had intended to give this enactment a prospective effect. Thereby, however, qua section 28(8) an elected member of the Committee of a Society if disqualified in terms thereof would instantly cease to continue as such. The plea based on retrospectivity is founded on this perception. 18. To this extent, the State Legislature apparently had intended to give this enactment a prospective effect. Thereby, however, qua section 28(8) an elected member of the Committee of a Society if disqualified in terms thereof would instantly cease to continue as such. The plea based on retrospectivity is founded on this perception. 18. It is no longer res integra that the legislature is undoubtedly competent to legislate with retrospective effect to take away any vested right conferred under the existing laws. The Hon'ble Apex Court as far back as in Garikapatti Veeraya v. N. Subbaiah Choudhary, 1957 (1) SCR 488 : AIR 1957 SC 540 observed as follows:- "The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so constructed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." 19. In Hitendra Vishnu Thakur and Others etc. etc. v. State of Maharashtra and Others, 1995 Cr LJ 517 , their Lordships of the Apex Court pronounced that a statute which affects the substantive rights is presumed to be prospective in operation, unless made retrospective, either expressly or by necessary intendment and a statute which merely affects procedure, unless such a construction is texturally impossible, is presumed to be retrospective in its application and should not be given an extended meaning, and should be strictly confined to its clearly defined limits. Following excerpt from the commentary of Francis Bennion's statutory interpretation 2nd edition page 214 looks apt:- "That a statute which affects substantive right is presumed to be in operation unless made retrospective, either expressly or by necessary intendment, every litigant has a vested right in substantive law but no such right exists in procedural law, a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." 20. The preponderant judicial opinion coupled with the authoritative texts on statutory interpretation adumbrated hereinabove thus would irrefutably proclaim in favour of the legislature's power of enacting laws with retrospective effect thereby impairing or curtailing already vested right, however, with the rider that the legislation so made ought to demonstrate such intention either in explicit or implicit terms. 21. The preponderant judicial opinion coupled with the authoritative texts on statutory interpretation adumbrated hereinabove thus would irrefutably proclaim in favour of the legislature's power of enacting laws with retrospective effect thereby impairing or curtailing already vested right, however, with the rider that the legislation so made ought to demonstrate such intention either in explicit or implicit terms. 21. In Zile Singh (supra), it was noticed that Section 13-A of the Haryana Municipal Act, 1973 introduced by the Haryana Municipal (Amendment) Act, 1994 prescribed the disqualification for membership of a person for being chosen as and for being a member of a municipality amongst others on the ground of having more than two living children. The proviso thereof saved a person having more than two children on or after the expiry of one year of the commencement of the Act. The Haryana Municipal (Second Amendment) Act, 1994 was thereafter enacted and in the aforementioned proviso for the word "after", the word "upto" was substituted. Having unsuccessfully impugned the vires of this amendment before the jurisdictional High Court, the appellant carried the challenge to the Hon'ble Apex Court. Their Lordships following a forensic analysis of the facts and the various decisions on the different aspects of the debate referred to in particular the decision of the Apex Court in Javed (supra) to reiterate that the right to contest an election is neither a fundamental right nor a common law right and was in-fact one conferred by a statute. It was enunciated that the statute which confers the right to contest an election can also provide for necessary qualifications and disqualifications for holding an elective office. The observation in Javed (supra) was recalled to the effect that merely because a disqualification is imposed with reference to certain facts which are relatable to the date prior to the enactment of disqualification, the enactment did not become retrospective in operation as no vested right thereby was taken away. The assailment to the second amendment bringing forth the substitution of the word "upto" for the word "after" was negated. 22. The above judicially accept dictum qua the right to contest an election and to hold the elective office has been oft reiterated amongst others in K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 referring to Article 191(1)(e) of the Constitution of India permitting prescription of qualification and disqualification by the enactment concerned. 23. 22. The above judicially accept dictum qua the right to contest an election and to hold the elective office has been oft reiterated amongst others in K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 referring to Article 191(1)(e) of the Constitution of India permitting prescription of qualification and disqualification by the enactment concerned. 23. As recently as in Lily Thomas (supra), the Hon'ble Apex Court in this context has in categorical terms held that if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member thereof and that the Parliament does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to ordain different laws in this regard. Their Lordships held that in terms of the language applied in these constitutional provisions, the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a Member thereof has to be the same. 24. In Yogendra Nandwana (supra), a Coordinate Bench of this Court was seized with the assailment of the vires of Section 26(b) of the Rajasthan Municipalities Act, 1959 inserted by the Rajasthan Act No.22 of 2000. The relevant excerpt of the provision under challenge is quoted hereinbelow:- "26. General qualification for Members-A person, notwithstanding that he is otherwise qualified, shall be disqualified for being chosen as or for being a Member of the Board. (i) to (I-a).... (i-b) who is under trial in the competent court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for 5 years or more...." 25. The impugnment was founded on the ground of discrimination, inasmuch as, a similar provision had not been made by the Legislature in respect of the election to the public office in the institutions of Local Self Government or in the State Legislature and Parliament. In the process of adjudication, the Coordinate Bench of this Court also referred to a similar challenge to Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 occasioned and sought to be effected by the Rajasthan Panchayati Raj (Third Amendment) Ordinance, 1999 to the following effect:- "Section 19. In the process of adjudication, the Coordinate Bench of this Court also referred to a similar challenge to Section 19(gg) of the Rajasthan Panchayati Raj Act, 1994 occasioned and sought to be effected by the Rajasthan Panchayati Raj (Third Amendment) Ordinance, 1999 to the following effect:- "Section 19. Qualification for election as a Panch or a member:- Every person registered as a voter in the list of voters of Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person- (a)... (gg) is under trial in the competent Court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more." 26. Noticing the grounds on which this assailment was negatived as well as the rulings of the Hon'ble Apex Court amongst others in Javed (supra), the Coordinate Bench of this Court rejected the plea of hostile discrimination based on the plea that the Parliament or the Legislature of the State had not chosen to enact a similar provision. It placed on record the observation of the Hon'ble Apex Court in Javed (supra) that it was not permissible to compare a piece of legislation enacted by a State in exercise of its own legislative power with the provisions of another law, though pari materia it may be, but enacted by the Parliament or by another State Legislature within its own power to legislate. While welcoming such comprehension for disqualification by disabling a person elected in the interest of purity in public life and to maintain sanctity and solemnity of the office involved, it was observed that the implementation of the policy decision to this effect was neither arbitrary nor discriminatory. It was held that to make a beginning, the reforms may be introduced at the grass root level so as to spiral up or may be introduced at the top so as to percolate down. 27. A Coordinate Bench of this Court in Mukesh Kumar Ajmera v. State of Rajasthan, AIR 1997 Raj. It was held that to make a beginning, the reforms may be introduced at the grass root level so as to spiral up or may be introduced at the top so as to percolate down. 27. A Coordinate Bench of this Court in Mukesh Kumar Ajmera v. State of Rajasthan, AIR 1997 Raj. 250 while dealing with a challenge to the disqualification of a Panch or Member on the ground that number of children in his family increased to more than two due to birth of additional child in the context of violation of Article 14, proclaimed in the negative and observed that such reasonable classification was permissible. It was observed further that good, desirable and commendable legislation can never be faulted on the anvil of Article 14 of the Constitution of India. The plea that such a legislation had not been brought in the higher public offices and thus, was rendered discriminatory, unfair and harsh was also negated. 28. On a cumulative consideration of the legal and factual aspects recited hereinabove, the nature of the right involved and the constitutional mandate contained in Articles 102 and 191 of the Constitution of India as well as to ensure purity in the public offices, we are of the estimate that the challenge to the vires of Section 28(8) of the Rajasthan Cooperative Societies Act, 2001 as occasioned by the Rajasthan Cooperative Societies (Amendment) Act, 2013 to the extent as laid in the instant petition does not merit sustenance. The petition lacks in merit and is thus rejected. No costs.Petition Dismissed. *******