Saraswati W/O Suresh Waghmode vs State Of Maharashtra And Ors.
2004 Latest Caselaw 425 Bom

ORDER

R.M.S. Khandeparkar, J.

1. Heard.

2. The petitioner challenges the resolution of no confidence motion dated 30th December, 2003, on the ground that, consequent to the amendment brought about to Section 55(1) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, hereinafter called as the said Act, by virtue of Ordinance No. II of 2004, dated 28th January 2004, hereinafter called as the said Ordinance, whereby the immunity granted from any resolution of no confidence motion is extended to the period of three years', instead of original period of two years', from the date of election of the President. It is the contention of the petitioner that, the petitioner was elected on 3rd of December, 2001, and a period of three years', therefore, would expire on 2nd of December, 2004, and as the resolution of no confidence was passed on 30th December, 2003, it cannot override the statutory provisions contained in Section 55(1) of the said Act and, therefore, the said resolution cannot be given effect to.

3. Few facts, relevant for the decision are that, the petitioner was elected as the President of the Municipal Council on 3rd of December, 2001. On or about 22nd of December, 2003, the Councillors of Municipal Council of Kallamb requisitioned a special meeting to express no confidence against the petitioner and, accordingly, meeting was held on 30th December, 2003, wherein the no confidence motion against the petitioner was passed by majority. On 28th January, 2004, the said Ordinance came to be promulgated, whereby the period of two years specified under proviso to Sub-section (1) to Section 55 was amended by extending the said period to three years, from the date of election of the President. On 28th January, 2004 itself, the Election Commission initiated steps for filling up the vacancy occurred in the office of the President of the said Council consequent to the passing of the no confidence motion against the petitioner. Accordingly, 20th February, 2004, was scheduled to be the date for authenticating the voters list. The election programme was declared on 23rd of February, 2004 and, accordingly, 20th March, 2004, was scheduled to be the date for polling for the purpose of election of the President to the said Council. Meanwhile, on 11th March, 2004, the present petition came to be filed which came up for hearing for admission on 15th of March, 2004, and, while issuing notices to the respondents, the learned Advocate appearing for respondent Nos. 3 and 6 assured to the court that, the voting would be postponed till disposal of this petition and, accordingly, the election for the post of the President of the said Council was postponed.

4. Upon hearing the learned Advocates for the parties, and, on perusal of the records, the point which arises for consideration is whether the amendment brought about to the proviso to Sub-section (1) of Section 55 is retrospective in nature and, therefore, any action taken contrary to the said provision would be ab initio bad in law.

5. Section 55(1), of the said Act, as it stood prior to 28th January, 2004, and, on the date when the petitioner was elected as a President of the Municipal Council, read thus :

"Notwithstanding anything contained in this Section, after the coming into force of Maharashtra Municipal Corporation and Municipal Councils (Amendment and Temporary Provisions for Conduct of Elections of Municipal Corporations Act, 2001, a President shall cease to be the President if the Councillors by a resolution passed at a special meeting by majority not less than three fourths of the total number of Councillors so decides.

Provided that no such resolution shall be moved within a period of two years from the date of the election of the President.

Plain reading of the above provision would disclose that, from the date of enforcement of Maharashtra Municipal Corporation and Municipal Councils (Amendment) and Temporary Provisions for Conduct of Elections of Municipal Corporations Act, 2001, a President elected to a Municipal Council could be ousted from the chair if a resolution is passed at a special meeting by majority of not less than three fourths of the total number of Councillors. However, there is a prohibition imposed against holding such meeting or passing such resolution for a period of two years from the date of election of the President. In terms of proviso to Sub-section (1) of Section 55, the Councillors are prohibited from moving any such no confidence motion or holding a special meeting in that regard, for a period of two years from the date of election of the President and the said proviso is very clear in that respect.

6. The Government of Maharashtra came out with the said Ordinance on 28th January, 2004, whereby it sought to extend the period of two years provided in proviso to Sub-section (1) of Section 55 to three years from the date of election of the President. In other words, the moratorium on the resolution of the no confidence against the President of the Council, was extended from two years to three years. The said Ordinance further provides that, the amendment shall come into force at once. Taking shelter of this amendment to proviso to Sub-section (1) of Section 55, it is sought to be contended that, since the petitioner was elected as President of the Council on 3rd of December, 2001, the period of three years would expire on 2nd of December, 2004 and, therefore, any action or act on the part of the Councillors, seeking to dislodge the petitioner from the chair of the Presidentship of the Council, prior to 2nd of December, 2004, would be contrary to the statutory provisions and, therefore, the no confidence motion, which is said to have been passed on 30th December, 2003, is without any legal effect and, is to be considered as void ab initio. In other words, it is sought to be contended that, since the amendment is said to have come into force at once, it would relate back to the date of enforcement of the said Act, as if the original proviso, prescribing period of two years, is replaced by the provision for three years, right from the day the said provision was in the statute book. The contention is sought to be disputed on behalf of the respondents stating that the said Ordinance nowhere states that, the amendment is either retrospective in nature or that it gives any indication in that regard.

7. Merely because the Ordinance specifies that, the amendment to the proviso to Sub-section (1) of Section 55 of the said Act would come into force at once, it cannot be construed to be of retrospective in nature. At the same time, it is settled law that, the fact that, a prospective benefit under a statutory provision introduced by way of amendment can be claimed in certain cases, on the basis of facts antecedent to such amendment to the statutory provision, the amendment brought about could not be said to be retrospective in nature. There could be a provision in a Statute, the benefit of which could be availed on the basis of certain facts which had occurred prior to introduction of such amendment to statutory provision; however, that itself would not decide the statutory provision to be retrospective in nature. In this regard, reference can be made to two decisions, one of the Apex Court and, another of the Queen's Bench.

8. In R. v. Mary Whitechapel (St) (Inhabitants) reported in (1848)12 QB 120 : 116 ER 811, a question arose relating to construction of Section 2 of the Poor Removal Act, 1846. The said provision provided that, no woman residing in any parish with her husband at the time of his death could be removed from such parish, for twelve calendar months, next after his death, if and so long she continued to be a widow. In that case, a widow was sought to be removed from the parish within twelve months from the date of death of her husband, who had expired prior to the enforcement of the said Act. It was sought to be contended that, to apply the provisions of the said Act, to the facts of the said case, would amount to construe the Act to be retrospective in nature. Rejecting the said contention, Lord Denman, C. J., observed.

"It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction, but we have shown before that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing."

In the said case, the expression "shall be removed" in Section 2 of Poor Removal Act, 1846, was found to be appropriate to apply to all the cases of future removals, irrespective of the fact whether the husband had expired prior to the coming into force of the Act or thereafter. However, at the same time, it was ruled that, the expression should not be wide enough to nullify completed removals prior to the enforcement of the Act and, even if widow was removed within twelve months of her husband's death, prior to the enforcement of the said Act, it was held that, that would not be in violation of the provisions of the said Act nor it could be said to give rise to any action under the said Act.

9. In Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi, , the Supreme Court held that, the benefit to set off pre-conviction detention period against the term of imprisonment conferred by Section 428 of Criminal Procedure Code, 1974, where an accused person had, on conviction, been sentenced for a imprisonment to a term was also available where the sentence was imposed before the commencement of the Code, to reduce the unserved portion of the sentence and that, in so construing the Section, it was not giving any retrospective effect, for it did not affect the sentence already undergone but, affected only that part of the sentence, which remained to be served in future. It was further held that, the words "has been sentenced" were neutral and could take in convictions prior to the coming into force of the Code.

10. As already seen above, the proviso to Sub-section (1) of Section 55 of the said Act prohibits the Councillors from moving a resolution for a specific period and the expression used in that regard is that, "No such resolution shall be moved within....." Apparently, it debars future action from the date of election of the President for the period specified under the said proviso. By Ordinance No. II/2004 the period for future action, which was originally prescribed, as two years, has been extended to three years and, the Ordinance has been brought into force at once i.e. from 28th January, 2004, undoubtedly, therefore, the incumbent of the office of the President, who was elected prior to 28th of January, 2004, and who had not completed the period of three years, on the said date, would be entitled to take benefit of the said amendment to proviso to Sub-section (1) of Section 55. Merely because the benefit would be enjoyed, based on the facts antecedent to such amendment, that would not make the amendment to the said provision to be retrospective in nature. In other words, in the normal circumstances, a person who was elected as a President of a Municipal Council, having not completed period of three years on 28th January, 2004, would be entitled to continue to avail the protection against resolution of no confidence motion, for a period of three years, from the date of his election as the President.

The question that arises is whether this Rule applies to the petitioner in the facts of the case in hand.

11. As already seen above, prior to the enforcement of the said Ordinance, certain events had occurred and, one of such events was of passing of no confidence motion against the petitioner and the same was passed on 30th December, 2003. It is also clear from the records that, the period of two years, from the date of election of the petitioner, as President of the Municipal Council, had expired on 2nd of December, 2003. In other words, as the law stood on the day when the no confidence motion was passed, there was no prohibition against the Councillors from moving the no confidence motion and, they were duly empowered to pass such resolution. The net result of those proceedings was that on 30th December, 2003, consequent to the passing of the no confidence motion, the petitioner had ceased to be the President of the Municipal Council. In other words, on the day when the said Ordinance came into force, the petitioner was not the President of the Municipal Council. If one peruses the Ordinance, along with the said Act, as already observed above, the benefit is available under the amended proviso to those who were in the chair of the President on the day the said Ordinance came into force i.e. on 28th January, 2004, but the benefit thereunder could not be availed of by the person, who was not the President, on the said date. Considering the same, it cannot be said that, the petitioner could avail the benefit of the said Ordinance to defeat the effect of the no confidence motion, which was already passed prior to the enforcement of the said Ordinance. Viewed from this angle, there is no case made out for interference in the order passed nor it can be held that the Election Commissioner was at fault in declaring the election for the post of the President of the Council in question.

12. It is made clear that the polling process for the election of the new President was obstructed on account of the present petition and, the respondent Nos. 3 and 6 had merely postponed the voting on account of filing of the present petition. Needless to say that the said process should continue from the stage it was obstructed.

Petition therefore, fails and is hereby dismissed with no order as to costs.