Judgment:
A.V. Potdar, J.
1. By the present writ petition under Article 226 and 227 of The Constitution of India, the petitioners herein have challenged the judgment and order dated 24/10/2008 passed by the Additional Divisional Commissioner, Aurangabad in Appeal No. 218/2008 by which the petitioner No. 1 & 2 were declared as disqualified under Section 14(J)(3) of The Bombay Village Panchayat Act of 1958.
2. Rule.
3. Rule made returnable forthwith. By consent of the parties, the writ petition is taken up for final hearing at the stage of admission itself.
4. Factual matrix which gave rise to file the present writ petition can be summarized as follows. Petitioners were elected as Member of Gram Panchayat Dabhad, which election was held on 06/09/2005. Both these seats were reserved for the Scheduled Caste candidate. It further appears that about the election of these petitioners, objection was raised by the 4th respondent before The Collector alleging that petitioner No. 1 and husband of petitioner No. 2 are encroacher on the government land/Gairan which is transferred to Gram Panchayat and hence they should be declared as disqualified as Member of the Gram Panchayat under Section 14 (J3) of The Bombay Village Panchayat Act, 1958. In pursuant to this complaint before the Collector, notice was served/issued on these petitioners to which they filed their say cum reply, interalia alleging that the first petitioner as well as the husband of second petitioner and others have filed suit bearing suit No. 588/2001 in the Court of Civil Judge, S.D. Nanded for the regularization of the Government land in their possession, which suit was disposed of by judgment and decree dated 05/01/2006 in which the land in possession of the first petitioner and the husband of the second petitioner were ordered to be regularized. Copy of this judgment was placed before the Additional Collector alongwith the say to the show cause notice served on the petitioners. Vide judgment dated 02/05/2008, the learned Additional Collector was pleased to allow the objection and the petitioners were declared as disqualified as members of the Gram Panchayat. This order of the Learned Additional Collector was challenged by preferring appeal No. 218/2008 before the Additional Divisional Commissioner, Aurangabad. After hearing both the sides, by his order dated 24/10/2008, the learned Additional Divisional Commissioner Aurangabad pleased to dismiss the appeal by allowing the objections raised by respondent No. 4. This order passed by the Additional Divisional Commissioner, Aurangabad dated 24/10/2008 is under challenge by way of this writ petition.
5. In the backdrop of these facts, I heard submissions of Advocate V.D. Salunkhe appearing for petitioners followed by the arguments of learned AGP K.B. Chaudhary appearing for respondent No. 1 to 3 followed by the submissions of learned advocate Mr. H.I. Pathan for respondent No. 4. First and foremost, it is to be noted that the petitioners were disqualified under Section .14(J3) of The Bombay Village Panchayat Act, 1958. This Sub-clause (J3) was inserted or introduced by the Bombay Village Panchayats (Amendment) Act, 2006 (38 of 2006) dated 21/12/2006. During the course of submissions, it was addressed across the bar by drawing my attention towards Section 14 itself which speaks for disqualification. No person shall be a Member of a Panchayat continue as such who and under this head these qualities of the disqualification are defined. The point is raised when the amendment is introduced to the Act by introducing Section 14(J3) w.e.f. 21/12/2006, then it is necessary to consider what is the status of the petitioners on the date when this Sub-section is introduced/inserted in the Act of 2006.
6. For this purpose, the dates which are mentioned in the petition as well as not under dispute are very material. These dates are the election was held on 06/09/2005. No doubt, on the date of election, RCS No. 588/2001 was filed by the petitioners and others, which was pending on the file of Civil Judge, S.D. Nanded. The suit was disposed of vide judgment and decree dated 05/01/2006. Then on the date of the amendment to the Act in the month of December 2006, it require to be considered what is the status of the petitioners whether the petitioners are encroachers on the Government land when their possession over these land was regularized prior to the amendment was introduced to the Government land. It also require to consider that on plain reading of this amendment, it is nowhere stated that there is retrospective effect given to this amendment from the date of effect of the amendment.
7. During the course of argument, reliance is placed on AIR 1993 SCW 1135 in the matter of Indian Administrative Service (S.C.S.) Association, U.P. And Ors. v. Union of India and Ors. wherein it is observed in para No. 6 and 8 as follows : No statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such a construction. The Legislature, as its policy, give effect to the statute or statutory rule from a specified time or from the date of its publication in the State Gazette. It is equally settled law that Court would issue no mandamus to the Legislature to make law much less retrospectively. It is the settled canons of construction that every word, phrase or sentence in the statute and all the provisions read together shall be given full force and effect and no provision shall be rendered surplusage or nugatory. It is equally settled law that the mere fact that the result of a statute may be unjust does not entitle the Court to refuse to give effect to it. However, if two reasonable interpretations are possible, the Court would adopt that construction which is just, reasonable or sensible. Courts can not substitute the words or phrases or supply casus omissus. The Court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention. But the intention must be gathered by putting up fair construction of all the provisions reading together. This endeavour would be to avoid absurdity or unintended unjust results by applying the doctrine of purposive construction. Thus it is settled law that where the intention of statutory amendment is clear and expressive, words can not be interpolated. In the first place they are not, in the case, needed. If they should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. If found ambiguous or unintended, the Court can at best iron out the creases. Any wrong order of defective legislation can not be righted merely because it is wrong. At best the Court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. It could thus be held that the Legislature intended that the First Amendment Rules would operate prospectively from February 3, 1989, the date of their publication in the Gazette of India. Its policy is explicit and unambiguous. Rule 3(3)(ii) intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruited/promoted earlier than the officer promoted later to that date. The proviso carved out an exception to ward off injustice to the officers that became members of I.A.S. Earlier to those dates.
8. Thus from the above observations of the Apex Court in the judgment cited, the fact is clear that unless otherwise it is expressly expressed in the statute itself while introducing the amendment or insertion of the amendment in the text of the statute, the amendment is always prospective and not retrospective. Then the effect of Section 14(J3) will took place from the date of the amendment to the Act i.e. from the date 21/12/2006 and not prior to that. In the judgment of both the Courts below, it is held that the effect of this amendment is retrospective and will take place when the petitioners got elected and at that time even though the suit was pending, their status of encroacher and their status was not that the property is in their possession is regularized under the order of the Court, which interpretation of the statute by both the Courts below or by both the authorities below, is against the spirit and provisions of Law. In the premise, if the conclusion drawn by both the Courts below is on wrong assumption of the legal proposition then such conclusion drawn by both the authorities below require to be quashed and set aside accordingly. Hence, the order under challenge is hereby quashed and set aside.
9. Rule thus made absolute as indicated above and the writ petition stands disposed of accordingly with no order as to costs.