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TMI Blog1930 (10) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idates 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 Tanjor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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, ir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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