2014 (1) TMI 1918 - HC - Indian Laws

Effect of amendment to Section 28A(4) of the Karnataka Co-operative Societies Act, 1959 which came into effect from 11-2-2013 - retrospective effect or not - term of office of the members of the committee shall be 5 co-operative years or not - whether the amendment is by way of substitution? - HELD THAT - It is well-settled that this substituted provision would be deemed to be in the statute book on the day the legislation was passed. Therefore, it is retrospective in operation. In that view of the matter, it was contended that the attempt on the part of the authorities to give effect to the said provision as being prospective in nature is illegal and, therefore, they want the entire election process to be quashed. However, the said contention did not find favour with the learned Single Judge. He has held that the amendment is prospective in nature and it will not enure to the benefit of the petitioners-appellants and, therefore, he dismissed the writ petitions. Aggrieved by the said order, the present writ appeals are filed. When the Legislature amends the existing provision in a statute by way of substitution, the effect is the substituted provision stands repealed and the amended provision is substituted in the place of the earlier provision in the Act as if the substituted provision is there in the Act from the inception. By express provision or by necessary implication if it is not made clear that the said amendment is prospective in nature, the amended provision comes into effect from the date of the Act. But, it is not an invariable rule. If such an interpretation is given, it leads to repugnancy, inconsistency or absurdity, then the said general rule is not followed. In certain situation, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word substitution as an amendment having a prospective effect. If the amendment Act expressly states that the substituted provision shall come into force from the date of the amendment coming into force, the said provision is prospective in nature. Then, there is no scope for interpretation whether the said amendment is prospective or retrospective. The power to hold the post does not flow from the statutory provision. It flows from the ballot. The ballot is to be respected. Now, that the law has been changed, rules of the game has been changed, that has to be necessarily prospective in nature. The Legislature consciously did not expressly state that the amendment is retrospective, because they were aware that the term of office of an elected body cannot be extended retrospectively. Otherwise, it would have effected the vires of the amendment. It is also contrary to the democratic principles and would have gone against the wishes of the voter. What the Legislature did not do as it was improper, there is no obligation on the part of the Courts to do by interpretative process of the provision, the very thing which the Legislature did not want to do. Therefore, when the ballot was exercised, the tenure of the members was definite and the tenure had to come to an end on 31-3-2014. The person who gave them the mandate wanted him to continue in office till 31-3-2004. It is to be respected. Therefore, they should go before the voter and seek for a mandate for five years from the day they are elected. This in substance is the object behind the Act. As the law stood then, these appellants knew when, their term would come to an end. Therefore, they cannot take advantage of the amendment, and seek extension. Appeal dismissed.

Summary

Issues:
Interpretation of retrospective or prospective nature of an amendment to Section 28A(4) of the Karnataka Co-operative Societies Act, 1959.

Analysis:
The judgment revolves around the interpretation of whether the amendment to Section 28A(4) of the Karnataka Co-operative Societies Act, 1959, which changed the term of office of committee members from "five co-operative years" to "five years from the date of election," is retrospective or prospective in nature.

Detailed Analysis:
The appellants, who were members of a co-operative society's board, challenged the election process based on the amended provision. They argued that the amendment, being a substitution, should be considered retrospective, entitling them to an extended term until 11-6-2014 instead of the original end date of 31-3-2014.

The court analyzed the legal principle that when a provision is amended by way of substitution, the substituted provision is deemed to be in force from the date of the amendment, unless expressly stated otherwise. However, this is not an absolute rule, and the court must consider the legislative intent, the purpose of the amendment, and the potential for inconsistency or absurdity.

In this case, the court considered the historical context of the Act's amendments, emphasizing the need for a fixed tenure for elected representatives due to past election irregularities and delays. The latest amendment aimed to ensure a definite five-year term from the date of election, rather than the start of the co-operative year.

The court concluded that the amendment was prospective in nature, as the legislative intent was to provide clarity and consistency in the tenure of office for elected members. The appellants were aware of the original term when they were elected, and the amendment did not grant them the right to an extended term retroactively. Therefore, the court upheld the dismissal of the writ petitions, stating that the appellants had no standing to challenge the lawful actions of the authorities conducting the election process.

In summary, the judgment clarifies the retrospective or prospective application of statutory amendments, emphasizing the importance of legislative intent, consistency in legal provisions, and respect for democratic principles in determining the tenure of elected representatives in co-operative societies.