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Rao Bahadur A.T. Pannirselvam Vs. A. Veeriah Vandayar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1931)60MLJ191
AppellantRao Bahadur A.T. Pannirselvam
RespondentA. Veeriah Vandayar and anr.
Cases ReferredDelhi Cloth and General Mills Co. v. Income
Excerpt:
- - but it goes a good deal further than that, as has been pointed out by mr. it would be a strong course to cut short proceedings in such a petition, on which an aggrieved person had properly embarked, though no doubt it would have been within the competence of the legislature to do that. the first provides that the property and rights used, enjoyed, possessed by, vested in. it is not disputed that a new provision in regard to procedure might well have retrospective effect so as to apply to pending litigation, and what is suggested is that the subordinate judge in this case, once act xi of 1930 came into force, instead of trying to decide the question whether mr. it is interesting to notice that in the transitional provisions, to which i referred just now. but to my mind if that had.....reilly, j.1. the petitioner in this revision petition was elected president of the district board of tanjore in january last his opponent at that election, the respondent here, put in an election petition in the court of the subordinate judge of tanjore early in february of this year. unfortunately for various reasons the disposal of that petition was delayed until the 4th of september last. the petitioner here has urged before us that by the 4th of september the subordinate judge had lost jurisdiction to deal with the petition in consequence of a new act, which had come into force, act xi of 1930.' there is no dispute that at the time when the election petition was presented to the subordinate judge he had jurisdiction to dispose of it; nor is it suggested before us that he lost.....
Judgment:

Reilly, J.

1. The petitioner in this revision petition was elected President of the District Board of Tanjore in January last His opponent at that election, the respondent here, put in an election petition in the Court of the Subordinate Judge of Tanjore early in February of this year. Unfortunately for various reasons the disposal of that petition was delayed until the 4th of September last. The petitioner here has urged before us that by the 4th of September the Subordinate Judge had lost jurisdiction to deal with the petition in consequence of a new Act, which had come into force, Act XI of 1930.' There is no dispute that at the time when the election petition was presented to the Subordinate Judge he had jurisdiction to dispose of it; nor is it suggested before us that he lost jurisdiction until the new Act came into force on the 26th August, 1930. The Subordinate* Judge found that the election of Mr. Pannirselvam, the petitioner here, was void and ordered a re-election. That decision of the Subordinate Judge is contested before us for various reasons. But the reason which has occupied our attention and with which only I think it necessary to deal at any length is the allegation that at the time he disposed of the petition the Subordinate Judge had no jurisdiction to do so. For the election petitioner, Mr. Veeriah Vandayar, it is contended that, as admittedly the Subordinate Judge had jurisdiction to deal with the petition when it was presented to him, the new Act did not deprive him of jurisdiction.

2. The new Act amends in many particulars the Madras Local; Boards Act of 1920, which was in force when this election took place and under the provisions of which Mr. Veeriah Vandayar instituted his election petition. Among other things it repeals Section 13 of the Act of 1920, under which no salaried officer of the Government was eligible to be elected President of a Local Board. And I understand that the only objection to the election of Mr. Pannirselvam which was pressed when the election petition came on for hearing before the Subordinate Judge was that he was ineligible for election as President, because he was a salaried, officer of the Government. Now it cannot be doubted that it is a fundamental rule of interpretation that a statute other than one dealing with procedure shall not be construed so as to have retrospective effect unless the intention of the legislature that it should have such an effect appears in its terms or by clear and necessary implication. That principle is reinforced, so far as this Presidency is concerned, by the Madras General Clauses Act, under which, unless a contrary intention appears in an Act of the Madras Legislature, though it may repeal a previous Act, that repeal does not affect any right, privilege, obligation or liability acquired, accrued, or incurred under the enactment so repealed nor affect any. investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, etc.; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act had not been passed. That is very much the effect of the Interpretation Act in England. But, if a contrary intention appears in a subsequent Act, there is no doubt that it can have a retrospective effect so as to apply even to pending litigation, as is shown by Quilter v. Mapleson (1882) 9 O.B.D. 672. But, when we look at the new Act XI of 1930, with which we are concerned, we find nothing explicit in it to the effect that it is retrospective in its action. The learned Advocate-General, who appears for the petitioner before us, has urged that that is of little importance, because the Act itself is a declaratory Act. if it were really a declaratory Act, an Act which merely declared the law as it was at the date of its commencement, and as it had been, then no doubt it might have, and ordinarily would have, a retrospective effect as pointed, out by Lord Chief justice Coleridge in Jones v. Bennett (1890) 63 L.T. 705, though the mere description of an Act as a declaratory Act is not decisive on that point. But, when we examine this Act XI of 1930, is it a declaratory Act? That is not what it purports. to be. in its preamble, which runs:

Whereas it is expedient further to amend and consolidate the Madras Local Boards Act, 1920, and the Madras Village Panchayat Act, 1920.

3. So far as the new Act is a consolidating Act, it is so because it consolidates the Madras Local Boards Act, 1920, and the Madras Village Panchayat Act, 1920. Apart from that it purports to be an amending Act.

4. Nevertheless, failing his contention that the whole of the new Act is a declaratory Act, the learned Advocate-General has contended that certain provisions of it may be declaratory in nature and retrospective in effect. No doubt it is possible that a provision of an Act not in its general character declaratory may be declaratory in effect, though not in form, as was the case in Attorney-General v. Hertford (1849) 3 Ex. 670 What the learned Advocate-General has suggested before us is that Section 54(2) of the Madras Local Boards Act in the form in which it has been re-enacted in Act XI of 1930 is a declaratory provision, which sets out and limits retrospectively the disqualifications of Government officers. Section 54 (2) of the Madras Local Boards Act before its recent amendment ran:

No salaried officer of Government shall be qualified for election as a member of a Local Board, provided that this prohibition shall not apply to village headmen.

5. Mr. Pannirselvam held the office of the Public Prosecutor and Government Pleader of Tanjore, and it was alleged against him* by his opponent that he was therefore a salaried officer within the meaning of Section 54 (2) and Section 13 of the Act before its amendment. It has not been denied before us, and the Exhibits in the case show that doubts were felt by various parties and were at times referred to the Government whether a Public Prosecutor and Government Pleader was a salaried officer of Government within the meaning of Section 54 (2) of the Act as unamended. The learned Advocate-General has urged that Section 54 (2) as re-enacted by Act XI of 1930 was designed to clear up those doubts and to declare the law and in that sense must be regarded as a provision having retrospective effect. The new Section 54 (2) as re-enacted runs:

No officer of Government other than a village headman shall be qualified for election or for holding office as a member of a Local Board, provided that this prohibition shall not apply to the holder of any office which does not involve both of the following incidents, namely that the incumbent (a) is a whole-time servant of the Government, and (b) is remunerated either by salary or fees.

6. It cannot be denied that that provision as re-enacted does clear up any doubts which might be felt and which had been felt as to whether a Public Prosecutor and Government Pleader could be elected as a member of a District Board. But it goes a good deal further than that, as has been pointed out by Mr. Venkatarama Sastri for the respondent here. It amends Section 54 (2) of the old Act in two marked ways. The old section said that no salaried officer of Government shall be qualified for election as a member of a Local Board. The new section says that not only will no officer as interpreted by the proviso immediately following be qualified for election but no such officer will be qualified for holding office as a member of a Local Board. That is something far more than merely declaring the law. That is a plain amendment of the law. And when we go on to the proviso immediately following, under which certain persons who are officers of Government are not to be held officers of Government disqualified by this sub-section, we find instead of 'salaried officers' of Government being mentioned whole-time servants of Government who are remunerated either by salary or fees are mentioned. That again makes a very distinct change in the law. Salaried officers of the Government were excluded from election by the old section even though not whole-time servants of the Government. Such officers are not now disqualified for election or for holding office as members of a Board, though they were disqualified for being elected before. When we examine the sub-section in that way and find that it makes two marked changes in the law, even though it may have cleared up doubts, and have been intended to clear up doubts, in respect to the eligibility of persons holding such offices as Government Pleaders and Public Prosecutors, we cannot treat it properly in my opinion as a declaratory provision. But of course, had it been a declaratory provision, that would not necessarily have affected the jurisdiction of the Subordinate Judge. It would have declared the law by which he had to decide the question before him; but it would not have taken away his jurisdiction. What is urged in that connection is that the Subordinate Judge lost his jurisdiction in consequence of the second proviso to Section 54(2) of the Act as amended, which runs:

Provided further that, if any question arises either before or after an election whether any person is or is not disqualified under this sub-section, the question shall be referred to the Local Government, whose decision shall be final.

7. It is suggested that, when that provision came into force, the Subordinate Judge lost jurisdiction to decide the question which was properly before him in the election petition already instituted. Now to my mind the natural reading of that second proviso is not to that effect. Its words are: 'If any question arises'. That in itself is no indication of the past. The next words on which the learned Advocate-General laid stress were 'either before or after an election'. Those words, I do not think, help him because they are still in the natural construction of the sentence referring to future matters. 'If any question arises before an election' that does not mean 'has arisen in the past.' 'If any question arises after an election' neither does that refer to any question in the past. And it is of interest to notice that the whole of that Sub-section (2) of. Section 54 in its new form is grammatically in the future tense, a matter which we cannot ignore when dealing with the contention that a particular provision, not explicitly retrospective, not described explicitly as declaratory, is yet to be construed as. retrospective in its effect. The importance of that use of the future tense was pointed out in Smithies v. National Association of Operative Plasterers (1909) 1 K.B. 310 in connection with the question whether a new provision should be applied to a pending action. To my mind we cannot find that anything in Section 54(2) as re-enacted by Act XI of 1930 is retrospective in its effect. ,

8. But there is another provision on which the learned Advocate-General strongly relied. There is a schedule at the end of Act XI of 1930 containing some rules, which are described as 'transitional provisions,' provided for certain matters until the amendments made by the new Act come into full force. One of those rules, Rule 5(3) runs:

Any remedy by way of application, suit or appeal which is provided by the said Act (that is the Madras Local Boards Act, 1920) as amended by this Act shall be available in respect of proceedings under the said Act...pending on the date of the commencement of this Act, as if the proceedings in respect of which the remedy is sought had been instituted, after the commencement of this Act.

9. The learned Advocate-General has contended that the effect of that rule is that the remedy open to the objector in an election petition under the Act before the amendment is replaced by a new remedy under the Act and itself has disappeared. That is not what Rule 5 (3) grammatically says. What it says is that any remedy by way of application, suit or appeal which is provided by the said Act as amended by this Act shall be available in pending proceedings. First, it is to be noticed that that rule disposes of the contention that the proceedings before the Subordinate Judge in the election petition were somehow guillotined by the new Act and came to a final end when the new Act came into force. But it must be borne in mind that it provides literally that any new remedy provided by the new Act shall be available in the. pending proceedings. It does not say that the old remedy available when the proceedings were instituted has gone. We are asked to interpret it in that way. But surely that would be a most backhanded way of expressing such a result. Indeed I can hardly imagine that, if the Legislature really wished to bring all election petitions properly instituted: under the Act before this amendment to an end, had they not been disposed of when the new Act came into force, that would have been stated in clear and simple language. It would be a strong course to cut short proceedings in such a petition, on which an aggrieved person had properly embarked, though no doubt it would have been within the competence of the Legislature to do that. But, if such a very unusual thing was to be done, surely we should expect it to be done in plain language, not by an implication in a rule such as this, an implication which cannot strictly be found in the language used. But I think that Mr. Venkatarama Sastri has really provided us with the right explanation of Rule 5 (3) of these transitional provisions. He has pointed out that Rule 5 has four sub-rules in it. The first provides that the property and rights used, enjoyed, possessed by, vested in. etc., a Board in existence under the old Act shall, when Act XI of 1930 comes into force, pass to the Board which takes its place. Sub-rule 2 provides that proceedings of the old Boards may be continued, so far as they are not inconsistent with the new Act, by the new Boards concerned. Sub-rule 3 then provides for remedies by way of application, suit or appeal provided by the old Act as amended by the new Act being available in pending proceedings. Then comes Sub-rule 4, which takes up each of the three previous sub-rules in turn and provides that, if any dispute arises as to the Local Board to which any property, right, interest or liability is to pass under Sub-rule 1, or as to the Local. Board by which any proceeding is to be continued under Sub-rule 2 or as to the Local Board to or against which any remedy is to be available under Sub-rule 3, then that question shall be referred to the Local Government, whose decision shall be final. When we take the whole of Rule 5 together, including the provision in Sub-rule 4 for deciding disputes on that point, I think it is clear that all these sub-rules refer to the Local Boards concerned and that Sub-rule 3 refers to applications, suits or appeals by or against a Local Board and not to applications or litigation between individuals, such as election petitions, in which one person attacks the election of another person. If that is the correct view to take, then Rule 5 (3) of the transitional provisions had no effect upon the jurisdiction of the Subordinate Judge.

10. But a modified contention was put forward by the learned Advocate-General in the course of his argument that, even if the Subordinate Judge's jurisdiction to deal with the election petition before him was not affected by the new Act, the second proviso to Section 54 indicated a new procedure which he was bound to follow in deciding the question before him, the question whether Mr. Pannirselvam was disqualified for election. As I have pointed out, the second proviso to Section 54 as re-enacted is that, if any question arises whether any person is or is not disqualified, the question shall be referred to the Local Government, whose decision shall be final. It is not disputed that a new provision in regard to procedure might well have retrospective effect so as to apply to pending litigation, and what is suggested is that the Subordinate Judge in this case, once Act XI of 1930 came into force, instead of trying to decide the question whether Mr. Pannirselvam was disqualified or not. should have referred it to the Local Government and, when he got the Local Government's ruling, should have disposed of the petition before him accordingly. It is interesting to notice that in the transitional provisions, to which I referred just now. certain questions as to which Board of the new Boards to come into being is to have any property or to continue proceedings or to have a. remedy in suits and so on are to be referred to the Local Government, questions which without that provision might have to be decided by a Court; and there is no doubt that after Act XI of 1930 came into force a question about the disqualification of a person by reason of any office he held under the Government would have to be referred to the Government. But it is going a very considerable; length to urge that that provision, the second proviso to Section 54 (2) as re-enacted, was intended to apply to the procedure of Courts dealing with election petitions already properly before them. No doubt the Legislature could have applied a new procedure to such inquiries. But to my mind if that had been their intention, something much more clearly stated would have been found in regard to the matter. It is not necessary to interpret the second proviso to Section 54 (2) as re-enacted in that way; and without something far more clear I am not prepared to infer that the intention of the Legislature was to interfere with the procedure of a Court in a matter already pending before it, remembering that this Act XI of 1930 has nothing in its general scope to do with the procedure of Courts at all. However, that is not the end of the argument for the petitioner here. It is urged that there, are other provisions, other rules in the transitional provisions which oust the jurisdiction of the Subordinate Judge. Rule 6 of those transitional provisions provides that, notwithstanding anything contained in the Madras Local Boards Act of 1920 or the amending Act, the members of every District Board or Taluk Board holding office at the date of the commencement of the amending Act shall be deemed to have been elected under that Act and their term of office shall extend to a date to be fixed by the Local Government not more than a year after the coming into force of the amending Act for the purpose of new elections to the new Boards. And in Rule 6 (1) (c) it is provided that the President and the Vice-President of the District Board or the Taluk Board holding office at the commencement of the amending Act shall hold office as President or Vice-President, as the case may be, up to the date so fixed by the Local Government. It has been urged by the learned Advocate-General that the effect of that is that a President holding office at the date when the new Act came into force, that is, on the 26th August, 1930, will be entitled to remain in office until the date fixed by the Government, which, I believe, is the 25th August, 1931, however irregular may have been the method by which he has come to hold office, any election petition instituted against him under the old Act before the new Act came into force having no longer any effect, That is a surprising contention, and we should have to be very sure that the rules had that effect before we could accede to it. There are various reasons which under the old Act could be urged why an election was invalid, why a candidate for an- election was disqualified. According to the learned Advocate-General's contention in this part of the case, however serious might be the disqualifications which might be urged against ah. elected President in an election petition pending at the date when the new Act came into force, that is, on the 26th August, 1930, all those disqualifications would evaporate for the period until the date fixed by the Government, as it happens a year later, for the new elections. If he were discovered to be a deaf-mute or a leper, if he were discovered to have been an adjudicated insolvent, if he had any other of the disqualifications which might have been made the basis of an election petition against him, none of them would have any effect for the period until the new elections were to be held, that is, for the ensuing year. In connection with that argument it is interesting' to observe that Rule 6(1) (a) of the transitional provisions makes the holding of office by members of Boards for the period until the date fixed by the Government for the new elections subject to the provisions of Sections 54(2), 56 and 59 of the Act. That is, the members holding office when the new Act came into force are to continue to hold, office subject to those sections which provide for certain supervening disqualifications, many of them of the same nature as the disqualifications which would have made a man ineligible for election and might be the subject of an election petition; and the members are to hold office subject also to Section 57, which provides for those disqualifications being decided by the District Judge. Similarly Rule 6 (1) (c) provides that Presidents and Vice-Presidents of Boards are to continue to hold office until the date fixed by the Government for the elections subject to Sections 15, 43 and 44, that is, subject to the provisions for their vacating office in certain events or for their removal by the; Government in certain events or as the result of a vote of 'no confidence'. So it will be seen that members are not to hold office from the date on which the new Act comes into force until the date fixed by the Government for the new elections irrespective of any disqualification which may occur to them, nor are Presidents and Vice-Presidents to hold office irrespective of the ordinary provisions for their vacating office in certain circumstances or for their removal. Then why are we to jump to the conclusion that all questions of disqualification which might be raised in election petitions are to lapse, that a member or a President is to hold office however he might have been disqualified for getting into that office originally? The learned Subordinate Judge' in dealing with this matter has come to the conclusion that in Rules 6 (1) (a) and 6 (1) (c) 'holding office' means validly holding office. That certainly gives a reasonable interpretation to those two rules. It has been urged by the learned Advocate-General that under the provisions in regard to election petitions when there is a petition pending against a member or a President, he is entitled to hold office until the petition is decided, and therefore Mr. Pannirselvam in this case was holding office at the date when Act XI of 1930 came into force because for various reasons this petition against his election had not been disposed of. But neither the new Act nor the old Act explicitly provides that members or Presidents against whom election petitions are pending shall hold office until the petitions are disposed of. On the contrary, if they are found to be disqualified in such petitions, the order which has to be made is that their elections are void. What the old Act provided by Section 57 (3) was that 'pending such decision the member shall be deemed to be qualified.' What the Act as now amended provides is that 'pending such decision the member shall be entitled to act as if he were not disqualified.' That is a very different thing from providing that he holds office pending the decision; and in my opinion the learned Subordinate Judge was right in finding that at the date when Act XI of 1930 came into force Mr. Pannirselvam was not holding office as President of the District Board within the meaning of Rule 6 (1) (c) of the transitional provisions of the new Act. That being so, we cannot find that he holds that office by virtue of those transitional provisions and is so immune, as has been contended, from the jurisdiction of the Subordinate Judge from the date when the new Act came into force. In my opinion all these contentions that the Subordinate Judge had no jurisdiction to dispose of the petition before him on the 4th September, 1930, fail.

11. It is also urged in the petition before us that apart from any question of jurisdiction the learned Subordinate Judge's decision that Mr. Pannirselvam was disqualified as a salaried officer under the Act before it was amended was wrong. Whether his decision on that point was right or wrong, it does not appear to me to be a question with which we need deal on this occasion. It is not a question properly coming before us in revision proceedings under Section 115 of the Code of Civil Procedure. Whether he decided rightly or wrongly, if he had jurisdiction to decide the matter, then we cannot find that there was anything illegal or materially irregular in his decision. And in my opinion this is not a case in which we need fall back upon any reserve power of revision or superintendence which we have under any other enactment, because the question whether Mr. Pannirselvam was qualified or not under the Madras Local Boards Act before it was recently amended is not a question of any general public importance. From the date upon which the new Act came into force, 26th August, 1930, such a question in the particular form in which it was raised in this case cannot be raised any longer. Therefore, it appears to me quite unnecessary that we should go into it now.

12. In my opinion this Revision Petition should be dismissed with costs of respondent 1 (Advocate's fee Rs. 250).

Anantakrishna Aiyar, J.

13. I agree.

14. The petitioner before us was elected President of the District Board of Tanjore, and on an election petition duly presented, the learned Subordinate Judge has declared his election to be void on the ground that as Government Pleader and Public Prosecutor, Tanjore, he held a salaried office under Government and was not eligible for election as President of the District Board under Section 13 of the Madras Local Boards Act (XIV of 1920) ; and he has, therefore, presented this revision petition to us against that order. On his behalf the learned Advocate-General raised before us three contentions and Mr. P. Venkataramana Rao who followed him raised a fourth contention. The learned Advocate-General argued that, having regard to the, provisions of the new Act XI of 1930, which became law while the proceedings were pending before the learned Subordinate Judge, the Court had lost its jurisdiction in respect of this matter and that guillotine had been applied by the Legislature to the petition pending in the Lower Court. It was argued that the petition and the proceedings before the Lower Court 'dropped automatically' in the words of the learned Advocate-General. But at a later stage of the argument, the learned Advocate-General modified that position to some extent. As I understood him, he argued that though the petition might not have 'dropped automatically' the proper procedure that the learned Subordinate Judge ought to have followed was to refer the particular point in dispute before him to the Local Government and to pass his final orders on the petition in accordance with the opinion of the Government thereon, and the learned Subordinate; Judge not having done so, his order should be revised as one passed without jurisdiction, or, at any rate, as one passed with material iirregularity. Thirdly, the learned Advocate-General argued that under Rule 6 of the transitional provisions, the petitioner before us was holding office on the date of the commencement of the new Act, and, therefore, the other sub-rules of Rule 6 apply, with the result that he is secure in the holding of his office till 25th August, 1931. The fourth point that was argued by Mr. P. Venkataramana Rao who followed the Advocate-General on behalf of the petitioner was that the learned Subordinate Judge was not right in his finding: that a Government Pleader and Public Prosecutor in the mufassal is a salaried officer under the Government and as such ineligible for election: as President of the District Board.

15. To take the last point first: it is at the highest only a mixed question of fact and law whether a Government Pleader and Public Prosecutor in the mufassal. is 'a salaried officer under the Government.' I proceed on the assumption) that it is a mixed question of fact and law. From the records before us it appears that on this question the Government held different views on different occasions. We find from Ex. A that as early as 1887 the Government held the view that he was a salaried officer under the Government within the meaning of a similar provision under the District Municipalities Act. In Hammick's Municipal Manual published in 1905 I find a statement to the same effect (see page 29). A reference to Ex. HI would show that subsequently the Government were advised that the amount paid to a Government Pleader and Public Prosecutor could be said to constitute 'only retaining fee.' but could not be said to be 'salary' and. consequently that the Government Pleader is not 'a salaried officer' under the Government. Whichever might; be the correct view, the finding arrived at by the learned Subordinate Judge is on a mixed question off fact and law. I am not sitting here in appeal against the: learned Subordinate Judge's finding upon that question. The High Court's power of revision does not ordinarily extend to examine the correctness or sustainability of a finding of fact arrived at by the Lower Court, and I do not think that the case before me in any way constitutes an exception to the general practice of this Court. That being so, and having regard to the circumstance that such cases are not likely to arise in future--the policy of the new Act being in this respect quite different--I do not think that this, is a case in which the High Court should enter into the examination of the correctness or otherwise of the finding on such a question. No special grounds are shown for us to interfere with such a finding. In this view, I overrule the fourth contention raised by the learned Advocate for the petitioner.

16. In order to understand, and correctly decide the first three contentions raised by the learned Advocate-General, I think it is necessary to keep in view the general principles of legal interpretation of statutes, and also bear in mind the exact scope of, and limitations imposed on, the principle' relating to construction of statutes regarding their retrospective operation. Though the general position could not be disputed, yet as I think that most of the contentions raised by the learned Advocate-General could be properly appreciated and answered if the rules of interpretation and its limitations be succinctly stated, I proceed to refer to the statement of the rule and its limitations as appears from decided cases and leading text-books. In Maxwell on Interpretation of Statutes at page 348 the rule is stated in these terms. Rules regarding procedure apart,

Upon the presumption that the legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect be clearly intended. It is a fundamental rule of English Law that no statute shall be construed so as to have a retrospective operation, unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication; and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. Even in construing a section which is to a certain extent retrospective, the maxim ought to be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain.

17. Similarly in Statute Law by Craies at pages 324 and 326 there are similar statements of the rule. I do not propose to quote them in extenso but one paragraph at page 326 I should like to refer to here:

Perhaps no rule of construction is more firmly established than this, 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 matters of procedure unless the fact cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.

18. In Halsbury's Laws of England, Vol. 27, page 159, it is stated:

A statute is prima facie prospective, and docs not interfere with existing rights, unless it contains clear words to that effect, or unless, having regard to its object, it necessarily does so.

19. Further: ....

A statute is not to be construed to have a greater retrospective operation than its language renders necessary.

20. Now it is therefore necessary not only to see whether the wording of the new Act is clear on this point but also to examine how far it is clear and how far it necessitates retrospective application of the provisions of the new Act, because in cases of doubt, or where a line is reached, where it is not at all clear whether the legislature intended to have particular provisions retrospective operation or not, the rule is clear that such new provisions should have prospective operation only. I do not really think that the correctness of these statements is really disputed, but I thought it proper to refer to these authorities only because it is necessary to keep in mind the exact scope and the limitations of the doctrine as laid down by learned authors.

21. Now the learned Advocate-General argued that Section 54 as enacted by the new Act (XI of 1930) is a declaratory provision only, and, therefore, the presumption is that the new provisions were intended to have retrospective operation. In this connection it is necessary that I should refer to an observation made by the Privy Council in the case Young v. Adams (1898) A.C. 469, because that observation, it seems to me, furnishes an answer to this contention of the learned Advocate-General. 'It may be true,' their Lordships remark,

that the enactments arc declaratory in form; but it does not necessarily follow that they are therefore retrospective in their operation, and were meant to apply to acts which had been completed or to interests which had vested before they became law.

22. They proceed further to lay down that the context of the statute and the terms of the clauses in question should be examined before even statutes which are declaratory in form are; held to be retrospective. No doubt when it is clear from a declaratory statute that its object was to 'explain' certain words or clauses used in a prior enactment, it would be easy to infer the intention of the legislature to be that the new Act should be; retrospective. This High Court had to deal with such a question recently, when, for example, a question arose whether the meaning to be attached to the: word 'attested' occurring in the Transfer of Property Act was as explained in a later Act. The Inter Act--Act XXVII of 1926--was passed 'to explain' certain provisions of the prior (main) Act. The Court had also to consider in another case what the effect of an amendment to Section 53 of the Provincial Insolvency Act was when there was doubt regarding the meaning of a certain expression used in the main Act. In those circumstances this Court held in two recent Full Bench decisions that having regard to the scope and the avowed object of the declaratory Acts they should be taken in those cases to be prima facie retrospective. See Veerappa Chettiar v. Subramania Aiyar I.L.R. (1928) M. 123 : 55 M.L.J. 794 and Thaticherla Pichamma v. The Official Receiver of Cuddapah : AIR1930Mad834 . Unless the intention be clear, either by express words used or by necessary intendment, I should not be justified in holding a new Act to be retrospective. The Privy Council in Delhi Cloth and General Mills Co. v. Income-tax Commissioner, Delhi (1927) L.R. 54 IndAp 421 : I.L.R. 9 Lah. 284 : 53 M.L.J. 819 (P.C.) made the following observations as to when statutes should be construed as retrospective. At page 290. this is what their Lordships say:

While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.

23. Now keeping in mind the exact scope of this principle, and also the limitations which have been laid down as attaching to the same, I proceed to examine the material sections to which our attention was drawn by the learned Advocate-General.

24. On the first question relating to Section 54, I am not able to agree with the learned Advocate-General that what has been done under the new Act is only to 'explain' the position of a person holding a 'salaried office under the Government' as laid down by the prior Act. The legislature evidently took occasion to modify its policy relating to the whole matter. Under Section 54 they have provided for a case where 'a person is remunerated either by salaries or fees.' They have also specially provided for other classes of officers of the Government, whole-timed and not whole-timed. They have also taken care to indicate that unless both these conditions are fulfilled in any particular case, viz., unless a person be both a whole-timed officer and also remunerated by salaries or fees, he could not be held disqualified under the new Act. Again the effect of such a disqualification has been extended to persons who after becoming a member, etc., become subsequently disqualified to hold the office;. It is clear to my mind that the present is not a case where the statute could be said to be merely declaratory. The present case is, therefore, not governed by Section 54 of the new Act, and the: first contention must accordingly be overruled.

25. Again the learned Advocate-General argued that under Rule 5, Sub-rule (3) of the transitional provisions, the present is a case where the legislature has expressly provided that applications made while the old Act was in force should not be proceeded with; but that if any dispute arises, such as the one with which the learned Subordinate Judge was concerned, then the question has to be referred to the Local Government whose decision shall be final. It seems to me that Rule 5 does not apply to the present case. Under the new Act the Government have taken power to change the areas and jurisdiction of Local Boards. They could extend the jurisdiction and area of one Taluk Board by adding new areas to the same, and they could cut up an old Taluk Board or take away some portion from it, as they think proper. The Government could also change the names of such Boards, etc. See sections 4 and 5 of the new Act. Questions will naturally arise in such cases as to which Local Board is to be the owner of property possessed by old Board, and as to which Board is to sue or be sued with reference to particular causes of action; questions would arise whether notices already issued preliminary to imposing taxes regarding persons or properties would be valid or not, and whether the new Boards would have to begin the whole process afresh. It seems to me that Rule 5 of the transitional provisions only deals with cases similar to those I have suggested above. No doubt Sub-rule (3) if it stood alone, and if it be wrested from its context, might lend some support to the contention. If the object was to enact a provision which would have the effect attributed to it by the petitioner, its present place between two sub-rules which refer to quite a different matter would be the most inappropriate place to locate such an important provision relating to the automatic dropping of an application filed in due course under the old law and pending before a Court when the new Act came into force. Sub-rule (4) refers to any dispute arising as to the Local Board by which any proceeding is to be continued under Sub-rule (2), or to or against which any remedy is to be available under Sub-rule (3). It is thus applicable to disputes to which the Local Board was a party-election petitions like the one in question are not covered by the said rule, the Board is not a party to such petitions. On the other hand, if we read all the four sub-rules together and in harmony with one another, the object of Rule 3 is clear, and, in my opinion, that is the correct view that we should lake. Even if I am wrong in my view as regards the exact scope of Rule 5, Sub-rule (3), the word 'available' occurring in the rule would seem to indicate that a new remedy is provided for by it which may be taken advantage of by a person interested in the circumstances, but it does not follow that that is the only remedy open to him. Remedies may be given by a statute, and if a new remedy is given in a case where an old remedy existed, the ordinary presumption is that this new remedy is a cumulative one and not in lieu of the old remedy. It is a rule of construction that when a statute creates a new remedy in respect of a cause of action which existed under the common law, this new remedy is taken to be cumulative and not in substitution of the old remedy, If we take it that under Sub-clause (3) a new remedy has been made available to a person in the position of the petitioner in the Lower Court, that does not, in this view, disable him from pursuing the old remedy, which he has already adopted, by way of moving the Court by a petition and which petition is pending before a Court. I would, however, prefer to base my judgment on the first of the two grounds mentioned by me. It therefore seems to me that Sub-clause (3) of Rule 5 of the transitional provisions is not capable of the construction put upon it by the learned Advocate-General on behalf of the petitioner.

26. The last point on which great stress was laid by the learned Advocate-General relates to the construction of Rule 6 of the transitional provisions. The words 'holding office' occurring in Clause (a) of Rule 6 were strongly relied on. It was argued that as the petitioner was 'holding office' on the date when the new Act came into force, his term of office became secure, and that he was entitled to continue till 25th August, 1931, the date fixed by the Local Government. As I read the other sub-rules of Rule 6, it seems to me that what is provided for by Rule 6 is to extend the terms, and in some cases to shorten the terms, of the members, etc., referred to therein. One cannot speak of a person's term of office unless he validly holds that office. No doubt in one sense a person elected as a member, or elected as president, holds office (though his election is questioned) until the rights are finally adjudicated upon an election petition duly presented under the Act. But both the old Act and the new Act make it clear that the result of the adjudication so far as his office is concerned is to declare his election void, and under the present Act it is expressly enacted that 'pending such decision the member shall be entitled to act as if he were not disqualified,' Section 50. In order to bring about as little dislocation as possible in the actual transaction of business by the Boards, the legislature has provided for the validation of those acts of such members and presidents which were done before adjudication by the Court on the validity of the elections concerned; but at the same time the legislature has also made it clear that when the legality of the election or appointment is decided against by the Court, the election is declared void A trespasser who might be in possession of such an office on the date of the new Act could not be said 'to hold office' within the meaning of the rule. Again, Rule 6 adds a proviso 'subject to the provisions of Sections 54 (2) 56, 57 and 59 of the Act.'

27. The result of the construction of Rule 6 and its sub-rules contended for by the learned Advocate-General would be that having regard to the other provisions of this Rule 6 allegations serious in. the eye of the Legislature made against such candidates and pending adjudication in a Court are all condoned, so to speak, during this interim period, whereas if the same candidate be guilty of the same disqualification after the Act, proceedings could be taken against him in respect of the same. It is, therefore, difficult to accept the argument that what the Legislature has provided for in Sub-rule 6 is to condone such disqualifications and make such persons duly elected members or presidents, irrespective of all allegations made against them, though they are pending investigation before the Court. I do not think it necessary to dilate upon this part of the case, as I agree with my learned brother's observations thereon. I overrule this contention also.

28. I must state that if the Legislature intended that the amended Section 54 is to have retrospective operation, or that an election petition duly filed and being inquired into by Court should automatically drop, or that the jurisdiction which a Court admittedly had when proceedings were initiated before it should be taken away from it or otherwise curtailed or guillotine applied to such pending proceedings, one should have expected the Legislature to say so in express terms or at least by necessary intendment. I am not able to find any such reasonable indication in the new Act; and having regard to the well-settled principles applicable to such matters, I do not think that the above contentions urged on behalf of the petitioner before us should be accepted.

29. In my view, it could not be said that the learned Subordinate Judge has in this case either exercised a jurisdiction not vested in him by law or exceeded his jurisdiction in the matter. That being so, I agree that this revision petition should be dismissed with costs.


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