Gian Chand Kalra vs State of Haryana

N.K. Kapoor, J.

Petitioner seeks issuance of a writ of mandamus directing the respondents to hold the elections for the office of VicePresident of Municipal Committee, Shahbad in accordance with unamended Section 18(3) of the Haryana Municipal Act (for short ''the Act'') and further a writ in the nature of quo warranto against respondent No. 4 that she ceased to be VicePresident of the Municipal Committee, Shahbad, w.e.f. 16.2.1996.

The elections to the Municipal Committees were held in December, 1994. On 17.2.1995 the election of the President and VicePresident took place. Shri Surinder Sharma was elected as President and Smt. Neelam Sahni was elected as VicePresident of the Municipal Committee, Shahbad. Under Section 18(3) of the Act, the term of office of the VicePresident is one year (vide Act No. 3 of 1994). At the time of election, the amendment effected vide Act No. 3 of 1994 was in force. Subsequently, vide Act No. 9 of 1995 (The Haryana Municipal Amendment) Act, 1995, which received the assent of the Governor of Haryana on April 14, 1995, the term of office of VicePresident has been prescribed as five years. According to the petitioner, the amended provision can only have a prospective effect. Since respondent No. 4 was elected as VicePresident as per Act No. 3 of 1994, her term to hold the office of VicePresident is only for a period of one year which has already expired on 16.2.1996 and so she has no right to hold the office and it is incumbent upon the Municipal Committee to hold fresh election in respect of the office of VicePresident.

Pursuant to notice of motion issued, a joint written statement has been filed on behalf of respondents No. 1 and 2 and separate written statement on behalf of respondent No. 4. Respondents No. 1 and 2 have admitted in the written statement that election to the office of President/VicePresident was held as per the earlier provisions under the Act. However, it has been stated that the tenure of office of the VicePresident has now been fixed for five years instead of one year to have better results with regard to development and other activities. In Para No. 9 of the written statement, it has been stated that the notification dated 17.4.1995 is effective from the date of its publication i.e. 17.4.1995. The other averments made by the petitioner in the petition have been replied/controverted.

Respondent No. 4 in her written statement has stated that in view of the amendment of the Act, there was no necessity to hold fresh election to the office of VicePresident. It has been further stated that the amendment made will be applicable not only to the newly constituted Committees but will also be applicable to the existing Municipal Committees.

The sole question which needs examination is as to what is the effect to the amendment effected vide notification dated 17.4.1995 and whether the same is prospective or retrospective in its operation. Section 18(3) of the Act before amendment reads as under :

"Section 18(3) The term of the office of VicePresident shall be one year."

After the amendment vide notification dated 17.4.1995, Section 18(3) of the Act reads as under :

"18. (3) The term of office of the VicePresident shall be for a period of five years or for the residue period of his office as a member, whichever is less."

Since election for the office of VicePresident was held on 17.2.1995, as per unamended provision of Section 18(3) of the Act, the tenure of respondent No. 4 expires on 16.2.1996. But before this term came to an end, in view of amendment effected in Section 18(3) of the Act, term of VicePresident has now been increased to a period of five years or for the residue period of his office as a member, whichever is less.

According to the counsel for the petitioner, amendment effected in Section 18(3) of the Act vide notification dated 17.4.1995 cannot be construed retrospective in operation as it takes away valuable rights of the other members to contest to the office of VicePresident. Since it has not been mentioned that amendment will be retrospective in operation, necessarily it is to be taken as prospective. In the instant case, since the term of respondent No. 4 has expired on 16.2.1996, appropriate direction is to be given to the Municipal Committee, Shahbad, to hold fresh election for the office of Vice President for the remaining period.

Whether a statute is prospective or retrospective in character is a matter which cannot be decided easily. Normally, procedural statutes are treated as retrospective in nature. The statutes which take away or impair the existing rights or create new obligations or impose new duties or attach new disabilities are ordinarily regarded as prospective. The apex Court in case reported as M/s Punjab Tin Supply Co., Chandigarh v. Central Government, 1984(1) RCR(Rent) 168 (SC) : AIR 1984 SC 87, has held as under :

"All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous effect will have to be given to the provisions in question in accordance with its tenor. If the language is not clear then the Court has to decide whether in the light of the surrounding circumstances retrospective effective should be given to it or not."

In the present case, election of VicePresident of Municipal Committee, Shahbad, was held on 17.2.1995. At the time of election, term of office of VicePresident as per Section 18(3) of the Act was one year. So respondent No. 4 had the necessary mandate to discharge the duties of VicePresident for a period of one year. Subsequently, vide Act No. 9 of 1995, amendment has been effected in Section 18(3) of the Act, whereby the term of the office of VicePresident has been increased to 5 years or for the residue period of his office as a member, whichever is less. The Amending Act nowhere specifically states that the same is retrospective in its operation. Otherwise too, this amendment increases the tenure of the office of Vice President from one year to five years, taking away rights of the members of the Municipal Committee to elect some one else as a VicePresident. Thus, such a provision cannot be construed to be retrospective in operation. In this view of the matter, we are of the view that the term of office of respondent No. 4 as VicePresident of Municipal Committee, Shahbad, stood expired on 16.2.1996.

Accordingly, we allow the writ petition and direct respondents No. 1 to 3 to call for a meeting to elect a person for the office of VicePresident wthout any further delay and preferably within a period of one month from the receipt of the order of the Court. The concerned members of the Municipal Committee, Shahbad, of course, shall be informed well in advance about the proposed meeting.