Judgment:
ORDER
Dr. Maithli Sharan, J.
1. The following question, arising in the case, has been referred to the Full Bench :
'Whether a Freedom-fighter is entitled to pension from the date of the application or from the date of order and the rules amended on 8th March, 1999, will have prospective or retrospective effect ?'
2. The brief facts of the case, lying in a narrow compass and relevant to the decision of this case, are apt to be dilated hereunder:
The petitioner filed Writ Petition under Articles 226 and 227 of the Constitution of India praying for quashing the impugned order (Annexure P-1) dated 11-3-1998, passed by the Deputy Secretary, General Administration Department, Govt. of Madhya Pradesh, granting him 'Rajya Samman Nidhi' under the Madhya Pradesh Swatantrata Sangram Sainik Nidhi Niyam, 1972 (hereinafter referred to as the 'Niyam, 1972'). His further prayer, inter alia, is for an appropriate direction to the respondents to make payments of 'Samman Nidhi' from the date of application. Succinctly, the grievance of the petitioner is that he should have been granted 'Samman Nidhi' from the date of his original application and not from the date of passing of the impugned order referred to above. When the case was being heard by one of us (Brother Shri S.S. Jha, J.), learned counsel for the petitioner, relying on the pronouncement of Hon'ble the Apex Court in Mukund Lal Bhandari v. Union of India and others, reported in AIR 1993 SC 2127, and two judgments rendered by the Division Benches of this Court, namely, Makhan Lal Ojha v. State of Madhya Pradesh and others, reported in 2000 (2) Vidhi Bhasvar 214 and Smt. Kamlabai v. Union of India and others, reported in 2000(4) MPHT 497 (DB) = 2000(3) MPLJ 376, had contended that the petitioner was entitled to be granted 'Samman Nidhi' from the date he moved an application in this regard and not from the date of passing of the order. On the other hand, learned Government Advocate had drawn his attention to the pronouncement of another Division Bench of this Court in State of Madhya Pradesh v. Anand Bihari and another, reported in 2000 (2) MPHT 369 = 2000(1) MPLJ 130, and a Single Bench decision of this Court in Laxmi Chand v. State of Madhya Pradesh, reported in 2000(2) MPHT 14 = 2000 (1) MPLJ 525, and argued that it is the dale of the order and not the date of application which shall be decisive in the matter. Learned counsel for the petitioner had argued that the crucial amendment dated 8th March, 1999, brought about in the 'Niyam, 1972' would have a prospective and not a retrospective operation. Considering the conflicting views taken by the two Division Benches of this Court in Makhan Lal Ojha's case (supra) on the one hand and State of Madhya Pradesh v. Anand Bihari and another (supra) on the other, the learned Single Judge felt that the matter required to be considered by the Full Bench and, therefore, he framed the question referred to above and ordered for placing the file before Hon'ble the Chief Justice for constituting a Full Bench to decide the said question. Thus, this Full Bench is formed and the matter has been referred to it.
3. Shri R.D. Jain, learned Senior Advocate, counsel for the petitionerand Shri K.K. Lahoti, learned Addl. Advocate General for the respondents, were heard at length. Learned counsel on both the sides placed their arguments circumscribing mainly on the manifest or otherwise conflict, if any, between the pronouncements of Hon'ble the Apex Court and the Division Benches of this Court referred to above. The 'Niyam, 1972' elucidating the matter, manner and the steps to be taken, the relevant amendment dated 8th March, 1999, holding the field in this case, spelling out in unambiguous terms the intent in regard to its operation, and the other material available on record were also gone through.
4. Dilating on the objects and the rationale behind the formulation of the scheme for the benefit of the Swatantrata Sangram Sainik in 1972, the learned counsel for the petitioner has vehemently argued that the 'Niyam, 1972' were framed by the Government, at the time of celebrating the Silver Jubilee of the independence of our Country, to honour the sacrifices made by the Swatantrata Sangram Sainik in the freedom movement and also to give monetary help to the needy among them. According to the learned counsel, therefore, the 'Niyam, 1972' clothed the Swatantrata Sangram Sainik with the right to claim pension in this regard. His contention is that the 'Niyam, 1972' are declaratory in nature and the rights given under them are deemed to have vested from the date of their enforcement, i.e., 22nd July, 1972, the date of notification in the Madhya Pradesh Gazette (Extra-ordinary) being 18th September, 1972. His further contention is that in view of this matter these vested rights are'substantive in nature, though they do not have a statutory recognition.
5. Learned counsel for the petitioner has further argued that because of the pronouncement of Hon'ble the Apex Court in Mukund Lal Bhandari's case (supra) and the two decisions of the Division Benches of this Court in Smt. Kamlabai's case and Makhan Lal Ojha 's case (supra) the relevant amendment brought about in the 'Niyam, 1972' on 8th March, 1999 shall not be decisive but, instead, the date of moving the application for grant of 'Samman Nidhi' in this regard shall be the material date. In support of his submission, learned counsel has contended that since the 'Niyam, 1972' are substantive in nature, there could not be any amendment retrospectively affecting them. He has also argued that before coming into force of the said amendment, many of the Swatantrata Sangram Sainik had been granted 'Samman Nidhi' from the date of their application but since now the others would be granted 'Samman Nidhi' from the date of order, hence the latter would be taken to be discriminated against, and it is unwarranted in law.
6. On the other hand, the learned Additional Advocate General has contended that since the relevant amendment expressly and in unambiguous terms provides that it shall be taken to have come into force from the very inception of framing of the 'Niyam, 1972', hence, even if the character of the right envisaged under them is substantive in nature yet the said amendment would have to be given effect to, and the benefit of the 'Samrrian Nidhi' wouldaccrue to the Swatantrata Sangram Sainik from the date of the order and not from the date of the application filed by him.
7. At the outset it is worthwhile to note that the 'Niyam, 1972' were framed by the Governor of Madhya Pradesh and were notified in Madhya Pradesh Gazette (Extra-ordinary) on 18th September, 1972 by the General Administration Department. They were framed under Article 166 of the Constitution of India dealing with the conduct of the Government business. Corresponding provision in regard to the procedure for regulating the business of the Government of India is contained in Article 77 of the Constitution of India.
8. The executive powers of the President of India and the Governor of the State vested in them under Articles 53(1) and 154(1) of the Constitution ' of India respectively, are exercised by them by making rules under Articles 77(3) and 166(3) of the Constitution of India respectively, in regard to the conduct of the Government business. These are the Constitutional mandates and they do not provide for any delegation of power but, instead, they themselves are substantive and constitutional in nature. The executive power of the President of India or the Governor of the State, as the case may be, is exercised in his name, through the subordinate officers. Rules framed under these provisions by the Government, nonetheless, enjoy not only a statutory but a constitutional recognition. True, the 'Samman Nidhi', in the form of pension, is given under the 'Niyam, 1972' but it is 'honorarium' simpliciter to honour the Swatantrata Sangram Sainik, and it is not akin to the pension paid to a Government servant on superannuation, hence, it cannot go to create a vested right in the Swatantrata Sangram Sainik from the very inception of their coming into force.
9. Thus, with the aforesaid legal backdrop, apparently enough, the argument of the learned counsel for the petitioner, to the effect that there is no statutory recognition attached with the 'Niyam, 1972' is not sound. Factually and legally the 'Niyam, 1972' stand on a greater footing as they enjoy a constitutional (parental) recognition and not merely a statutory recognition. Further, until there is any legislation to the contrary, they shall hold the field. As already observed, since the President of India or the Governor of the State enjoys constitutional right to make rules for the more convenient transaction of the business of the Government, hence, to this extent his act cannot be challenged. But, certainly, the question as to whether in making the order the President or the Governor had acted in accordance with the law, remains open for adjudication. This view is supported by the view taken by Hon'blc the Apex Court in M/s. Bijoya Lakshmi Cotton Mills Ltd. v. State of West Bengal, reported in AIR 1967 SC 1145.
10. Regarding the contention of the learned counsel that the relevant amendment brought about in the 'Niyam, 1972' could not wash off the law declared by Hon'ble the Apex Court in Mukund Lal Bhandari's case (supra) to the effect that the 'Samman Nidhi' had got to be granted from the date ofapplication, suffice it to say that firstly Hon'ble the Apex Court was not seisin of any case under the 'Niyam, 1972' but, instead, the provisions of Freedom-fighter Pension Scheme, 1972, introduced by the Government of India were in issue, secondly, no amendment like the one in issue in the instant case, was in consideration before Hon'ble the Apex Court, and thirdly, Hon'ble the Apex Court has not held that the benefit would not flow from the date of order. Curiously enough, Hon'ble the Apex Court has taken the view that it is the date of application and not any earlier date (later date or the date of order, not considered) which is crucial in the matter. In para 5 Hon'ble the Apex Court held as follows :--
'5. That leaves us with the question as to whether, notwithstandingthe date on which the application itself is made, the claimant shouldbe entitled to the benefit of the pension with effect from an earlierdate. In support of the contention that the benefit should be madeavailable with retrospective effect, reliance is placed on the twocases cited earlier where the benefit is given with effect from 1stAugust, 1980. We have given our anxious consideration to thequestion and are of the view that for reasons more than one, thebenefit should flow only from the date of the application and notfrom any date earlier.'
Thus, in view of the above position, firstly, it could not be said that the saidpronouncement of Hon'ble the Apex Court applies in this case, and secondly,even if it docs then also the ratio of the case is that it is the date of applicationand not any earlier date which is material. Obviously, on the point of granting'Samman Nidhi' from any later date, i.e,, date of order as is provided in therelevant amendment in the instant case, the ratio laid down by Hon'ble theApex Court in this case is silent. Therefore, with regard, this pronouncementof Hon'ble the Apex Court is clearly distinguishable.
11. So far as the two Division Bench decisions of this Court in Smt. Kamlabai's case and in Makhan Lal's case (cited supra) are concerned, it is worthwhile to note that there had arisen no occasion for considering the impact or otherwise of the relevant amendment incorporated in the 'Niyam, 1972' from 8th March, 1999. Taking Smt. Kamlabai's case first, it is apparent that the petitioner Smt. Kamlabai was the wife of the Swatantrata Sangram Sainik (Shitla Prasad Lohar) and she herself was not a Swatantrata Sangram Sainik. Therefore, the relevant amendment referred to above dealing with the Swatantrata Sangram Sainik only shall not be applicable in her case. For the sake of convenience it may be reproduced here as below :--
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Thus, on this very count the aforesaid Division Bench decision is not relevant in this case. So tar as the other Division Bench case, viz., Makhan Lal Ojha's case (cited supra), is concerned, the learned Judges have placed reliance on the pronouncement of Hon'ble the Apex Court in Mukund Lal Bhandari's case (supra), which, with respect, is distinguishable, as discussed above. Therefore, with regards, I am of the view that the law laid down in this Division Bench pronouncement is not sound.
12. Another argument advanced by the learned counsel for the. petitioner is that since 'Niyam, 1972' are declaratory in nature, they clothe the Swatantrata Sangram Sainik with the right to receive 'Samman Nidhi' and that such right has vested in them from the date of their enforcement, i.e., 22nd July, 1972. True, the 'Niyam, 1972' are declaratory in nature and do clothe the Swatantrata Sangram Sainik with a right, but this right remains merely a bare right until it is protected and recognised by the authority concerned, i.e., the State. As soon as it is so recognised, it vests in the person concerned who is held to be entitled to have and enjoy that right. Thus, there is a difference between a bare right, a vested right and entitlement to a right. Had it not been so, there would have been no requirement for moving an application in this regard under Niyam 9 of the 'Niyam, 1972'. Though it is true that in certain deserving cases, under Niyam 10 of the 'Niyam, 1972' State is empowered to grant 'Samman Nidhi' even without filing of the application as well, but in that regard also the entitlement to the right would accure from the date of the passing of the order by the authority concerned granting the 'Samman Nidhi'. Thus, though it is true that the amendment cannot take away any vested right, but then it is also true that the vesting takes place only from the date of entitlement, hence, before passing of the order granting 'Samman Nidhi' the amendment could be brought about changing the course.
13. Learned counsel for the petitioner has also submitted that since the 'Niyam, 1972' are substantive in nature, hence, the relevant amendment giving retrospective effect in this regard cannot be given effect to. It is a settled legal position, no doubt, that retrospective effect 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 that effect cannot be avoided without doing violence to the language of the enactment. Dealing with the substantive right, it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Similarly, Statutes dealing with procedure, in contrast to Statutes dealing with substantive rights, are presumed to be retrospective unless such a construction is textually inadmissible. Hon'ble the Apex Court has observed in Garikapati v. N. Subbiah Choudhary, reported in AIR 1957 SC 540, as below :
'The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation,it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.'
In K.S. Paripooman v. State of Kerala and others, reported in (1994) 5 SCC 593, Hon'ble the Supreme Court has summarised the position that for the purpose of ascertaining the retrospectivity in operation of the Statute, it is necessary to ascertain the intention of the legislature as indicated in the Statute itself. This legal position has again been reiterated by Hon'ble the Apex Court in R. Rajagopal Reddy v. Padmini Chandrasekharan, reported in AIR 1996 SC 238, and it has been held that where the statutory provision which is not expressly made retrospective by the legislature seeks to affect vested rights and corresponding obligations of parties, such provision cannot be said to have any retrospective effect by necessary implication. Therefore, conversely, if the statutory provision is expressly made retrospective, it shall have to be given effect to. This is the only logical deduction which precipitates on the basis of the pronouncements of Hon'ble the Apex Court cited supra.
14. With the backdrop of the aforesaid legal position as crystallised by the pronouncements of Hon'ble the Apex Court cited supra, the relevant -amendment brought about in the 'Niyam, 1972' which has been expressly made retrospective in operation would, even if the 'Niyam, 1972' are taken to be substantive in nature, still be effective and would hold the field. As a matter of fact, the nature of the provisions under the 'Niyam, 1972' are both substantive and procedural; the rights given under it to the Swatantrata Sangram Sainik are substantive in nature while the procedure laid down for getting an order granting 'Samman Nidhi' is procedural. The relevant amendment, in the instant case, is procedural in nature and, hence, it could be made retrospective, either by implication or by express provision.
15. In regard to the retrospectivity of the amendment in question, learned counsel for the petitioner has further submitted that even if it is expressly made to operate retrospectively, keeping in mind the rationale and the benevolent purpose with which the 'Niyam, 1972' have been incorporated, such an amendment should not be given effect to because it goes to destroy the very fabric of the scheme. Be that as it may, the fact remains that the said amendment has not been assailed either under Article 166 (3) of the Constitution of India or otherwise, and unless it is got declared ultravires, un-disputcdly, it would hold the field. In view of this situation, the Court is not empowered to re-write or delete any provision to test the efficacy or the underlying policy of the provisions brought about by the 'Niyam, 1972' or the amendment incorporated thereafter by the Rule Making Authority concerned. It is certainly beyond its domain and jurisdiction, unless, of course, as observed above, it is challenged. Another Division Bench pronouncement of this Court in State of Madhya Pradesh v. Anand Bihari and another (cited supra) and Single Bench pronouncement in Laxmi Chand v. State of Madhya Pradesh (cited supra) deal with the question of nature and effect of the relevantamendment. It has been held in these cases that the provision so inserted by way of amendment in the 'Niyam, 1972' could affect the pending applications and the pending 'lis', if any, and in very clear terms it is expressed that sub-rule (6) in Niyam 3 brought about by the amendment in question in the 'Niyam, 1972' will be deemed to be effective from the date of their enforcement. The ratio laid down in these cases is sound and, therefore, these decisions are approved.
16. The last submission made by the learned counsel for the petitioner is that the relevant amendment is discriminatory in nature as the 'Samman Nidhi' granted to some of the Swatantrata Sangram Sainik before the introduction of the said amendment was to be effective from the date of application while now after the passing of the amendment the rest of the Swatantrata Sangram Sainik would receive 'Samman Nidhi' from the date of order and not from the date of application. According to the learned counsel, it is a discrimination between the Swatantrata Sangram Sainik inter-se. Apparently, the deduction arrived at by the learned counsel in this regard is not sound. The reason is very simple. As observed above, the Swatantrata Sangram Sainik, after being granted 'Samman Nidhi', were clothed with the vested rights and, therefore, the benefit had already been released in their favour. As opposed to this, the cases of the rest of the Swatantrata Sangram Sainik are pending as they are still being processed and have not reached finality. Hence, it could not be said that they have been clothed with any such vested rights to receive the 'Samman Nidhi' and, as such no benefit regarding the grant of 'Samman Nidhi' has yet been released in their favour. Therefore, it could not be said that the Swatantrata Sangram Sainik, whose cases are yet pending, have been discriminating against. Obviously, therefore, implied classification, if any, is reasonable and logical, and there is no discrimination at all. The pending cases would positively get affected by the relevant amendment providing for express retrospective operation.
17. Consequently, the answer to the question referred to is that the Freedom-fighter is entitled to pension from the date of order and not from the date of application, and further that the rules amended on 8th March, 1999, will have retrospective and not prospective effect.
S.P. Srivastava, J.
1. I agree on the matters dealt with in the elaborate judgment recorded by my learned Brother Dr. Maithli Sharan, J., which I have had the opportunity to read in draft which obviates the necessity of noticing or reviewing the case law referred to by him. I would, however, like to add a few observations of my own while concurring with the same.
2. In order to provide a help to Swatantrata Sangram Sainik, the State Government through its General Administration Department had framed the rules known as Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, which were published in the Madhya Pradesh Gazette (Extraordinary) on 18-9-1972.
3. Rule 3 of the aforesaid Rules provides that the State Government will stand authorised to grant for life a monthly 'Samman Nidhi' to the persons of the categories specified in that rule which included a Swatantrata Sangram Sainik, providing further that the 'Samman Nidhi' could be payable only if the concerned person had been continuously residing from 1-11-1956 in the newly constituted State of Madhya Pradesh.
4. The provisions contained in Rule 9 of the aforesaid Rules require that a person seeking payment of 'Samman Nidhi' had to move an application in the prescribed proforma setting out clearly the grounds on which his claim for payment of Samman Nidhi was based giving the full details, which application will have to be presented in the office of the concerned Zila Adhyaksh (District Magistrate) from where after proper examination the said application will be transmitted to the State Government.
5. The provisions contained in Rule 10 of the aforesaid Rules provide that the State Government taking into consideration the status of the particular Swatantrata Sangram Sainik and his special meritorious service, in proper cases, could grant monetary or any other help even without his filing an application for the purpose.
6. The expression 'Swatantrala Sangram Sainik' has been defined under Rule 2 of the aforesaid Rules. The definition of 'Swatantrata Sangram Sainik' is an exhaustive one. A person claiming to be a 'Swatantrata Sangram Sainik' was required to establish that he fell in one or the other category of persons enumerated in the said Rules.
7. The provisions contained in Rule 3 of the aforesaid Rules referred to hereinabove ex facie are of an enabling nature vesting the State Government with the jurisdiction to accept the liability in regard to the payment of Samman Nidhi on monthly basis during the life-time of a Swatantrata Sangram Sainik and for the other persons of his family referred to in that rule subject to certain conditions.
8. The authority with which the State Government was vested as indicated in the provision contained in the Rule 10 of the Rules is alsodiscretionary.
9. The learned counsel for the petitioner has strenuously urged that the amendment in question could not be taken to cover the pending applications for the grant of Samman Nidhi' inasmuch as giving such a rclrospcclivity to the aforesaid amendment will provide a handle to abuse the authority. The contention is that on the strength of the retrospectivity, the State Government could unnecessarily prolong or delay the disposal of an application for the grant of 'Samman Nidhi' in order to escape the liability to pay the amount even in the cases of those applicants who had a genuine claim. This, it is asserted, could never have been intended.
10. While it is well settled that the powers to frame rules carries with it power to amend or alter the rules with retrospective effect but it is also equally well settled that benefits acquired under the existing rules cannot be takenaway by an amendment with the retrospective effect unless it is specifically provided in the law. ft is open to the rule making authority to give retrospective operation to the rules but the date from which these rules are made to operate must be shown to bear, either from the face of the rules or by intrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period.
11. In its decision in the case of Dattatraya Moreshwar v. State of Bombay, reported in AIR 1952 SC 181, the Apex Court had observed that it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private right are imperative. When the provisions of statute relate to performance of a public duty and the case is such to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.
12. The Rules in question framed in exercise of the jurisdiction envisaged under Article 166 of the Constitution contemplate conferring of the right to receive the 'Samman Nidhi'on a Swatantrata Sangram Sainik and this conferment cannot be on a date anterior to the passing of the order in that regard. The scheme underlying the Rules does not contemplate conferring of such a private right either from the date of the enforcement of the Rules or from the date of the application. The ambiguity, if any, stands removed with the amendment expressly providing that the conferment of the 'Samman Nidhi' will be only from the date of the order and not any anterior date. Giving of the retrospective effect to the amendment, however, cannot defeat a benefit which had already accrued to a Swatantrata Sangram Sainik before the date on which the amendment came into force.
13. It should not be lost sight of in this connection that a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of could be assailed as being violative of Articles 14 and 16 of the Constitution of India to the extent it operates retrospectively being unreasonable and arbitrary.
14. It is, therefore, obvious that the amendment in question is retrospective in operation but not so as to defeat a vested or accrued right having the effect of reversing from an anterior date a benefit which has beengranted or availed.
15. The Apex Court in its decision in the case of Administrator, Municipal Corporation, Bilaspur v. Dattatraya Dahankar, Advocate and another, reported in JT 1991 (4) SC 500, in Paragraph 4 had emphasised that the mechanical approach to construction is altogether out of step with the modern positive approach. The modern positive approach is to have a purposeful construction that is to effectuate the object and purpose of the Act.
Further, in determining either the general object of the statutory provision or meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one.
16. In my considered opinion, the object underlying the amended provision was to ensure that a person who submits an application for the award of 'Samman Nidhi' must act with diligence and furnish all the evidence and the materials sought to be relied upon in support of his claim at the earliest in order to facilitate the taking of the final decision by the competent authority. It may be noticed that in order to establish that such an applicant fell in the category of Swatantrata Sangram Sainik, a detailed inquiry had to be done into the various questions of fact and non-cooperation on the part of the applicant in the proceedings relating to the inquiry could result in unnecessary delay. The curbing of the mischief on the part of the applicant in unnecessarily delaying the inquiry proceedings was sought to be prevented by the amending provision making the 'Samman Nidhi' payable from the date of the order. In case there was any delay on the part of the authority concerned, in dealing with the matter that could be taken care of by the applicant himself by obtaining the appropriate directions for expediting of the inquiry in case there was malafides on the part of the concerned authority in delaying the proceedings without any justifiable cause and omitting to discharge its duty expeditiously.
17. A person claiming to be a Swatantrata Sangram Sainik as contemplated under the Rules of 1972 can be entitled for a 'Samman Nidhi' only if he establishes the pre-requisite conditions stipulated in Rule 2 of the Rules. The facts which have to be established before a person can be held to be a Swatantrata Sangram Sainik necessarily involve an inquiry. Considering the nature of the inquiry into the facts which have got to be investigated before a person can be held to be a Swatantrata Sangram Sainik as envisaged under the Rules, it is obvious that a distinction has to be drawn between a mere allegation about a person being a Swatantrata Sangram Sainik and establishing such status on 'the evidence produced. An allegation cannot be a substitute for the proof. The concerning authority has to arrive at a conclusion about the claim of an applicant about his being a Swatantrata Sangram Sainik before granting the release of the 'Samman Nidhi' in his favour.
18. It is true that the Rules vest the State Government with a discretionary jurisdiction to grant monetary help or other help to a person on the satisfaction that he is a Swatanlrata Sangram Sainik which jurisdiction is vested under Rule 10 of the Rules, but it cannot be lost sight of that the discretionary jurisdiction has not to be exercised in an arbitrary manner. The satisfaction has to be based on the objective assessment of the evidence. Absence of an arbitrary power is the first essential of the rule of law upon which our whole Constitutional system is based. In a system governed by rule of law, discretion where conferred upon the executive authority, must be confined within clearlydefined limits. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of the decision taken in accordance with law.
19. It is not the personal whim or wish or view or opinion or Ipsi dixit -de hors of the material but a legitimate inference drawn from the material placed before the concerned authority which is relevant for the purpose.
20. A claimant for the release in his favour of the benefit of Samman Nidhi holding him to be a Swatantrata Sangram Sainik as contemplated under the Rules has to initiate the proceedings for the same by moving an application before the concerned authority in the manner prescribed. The concerned authority on coming to the conclusion that the claimant falls within the category of a Swatantrata Sangram Sainik as envisaged under the Rules and further that the claimant has not disentitled himself from the grant of such release in view of any such fact subject to which alone such a release is possible has to pass an order. The amended provision entitles the claimant to a release of the 'Samman Nidhi' in his favour only from the dale of such an order.
21. As has already been indicated hereinabove, a distinction has to be drawn between raising a claim and establishing the same. Moving an application for the grant of release of the Samman Nidhi cannot be treated to go beyond the stage of raising the claim. This claim has to be investigated and a decision has to be reached about the entitlement of the claimant to receive the Samman Nidhi. The decision or the order granting or releasing the Samman Nidhi in favour of such a person in face of the rules now under consideration cannot relate back to the date of the application or the raising of the claim as merely moving an application or raising a claim cannot be taken to confer a substantive right which may be taken to have crystallised on the date when the application is filed. The right to get the benefit of Samman Nidhi cannot be taken to have been determined as soon as the action for the grant of the same is instituted by filing an application for the purpose.
22. Taking into consideration the nature of the investigation sought to be made before holding a person to be entitled to a Samman Nidhi under the Rules, it cannot be said that the order referred to hereinabove has necessarily to relate back to the date of the application. This stands expressly prohibited by providing that the entitlement to receive the Samman Nidhi, if at all, begins from the date of the order and not from any earlier date. Such a retroactive action covering the disposed of applications, considering the nature and scope of the inquiry required to be made under the Rules, is not permissible or sustainable in law. The enforcement of a provision giving it a retrospective effect cannot under the law defeat a vested or accrued right. It is, therefore, obvious that in all such cases where the Samman Nidhi had already been released and a final order passed in that connection, those orders and the benefit released thereunder will have to remain intact, unaffected by the retrospective operation of the amended provision.
23. The Apex Court in its decision in the case of K.S. Paripoornan Vs.State of Kerala [(1994) 5 SCC 593] had clarified that a statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature in asmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct.
24. The question whether a particular statute operates prospectively only or has retrospective operation will have to be determined on the basis of the effect it has on existing rights and obligations, whether it creates a new obligation or imposes new duties or levies new liabilities in relation to past transactions- For that purpose it is necessary to ascertain the intention of the legislature as indicated in the statute itself.
25. In its. decision in the case of United Provinces v. Atiga Begum, reported in AIR 1941 FC 16, it had been indicated that undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so.
26. It was further indicated by the Federal Court that there can be little doubt that there is a well-recognised presumption against construing an enactment as governing the rights of the parties to a pending action. There are two recognised principles, (1) that vested rights should not be presumed to be affected and (2) that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it extended to make a new law applicable even to pending actions, it is common to find the legislature using language expressly referring to pending actions.
27. In its decision in the case of Garikapati Veeraya v. N. Subbiah Choudhury, reported in AIR 1957 SC 540, il was pointed out that in the absence of anything in the enactment to show that il is to have retrospective operation, it cannot be so construed as to have the effecl of altering the law affecting a claim in litigation at the time when it was passed. In order that the provisions of a statute dealing with substantive right may apply to pending proceedings, the Court has insisted that the law must speak in language which expressly or by clear intendment, takes in even pending matters. [Sec : Dayawati v. Inderjit, AIR 1966 SC 1423 and Lakshmi Narayan Guin, 1985 (1) SCC 270].
28. In the present case, the provisions contained in Rule 3 of the 1972Rules only stipulates that the State Government will be competent to grant and release in favour of Swatantrata Sangram Sainik monthly 'Samman Nidhi' for his life. This is an only enabling provision for making a grant of 'Samman Nidhi' to a Swatantrata Sangram Sainik, which itself is subject to various conditions as provided for in the Rules. The aforesaid Rules do not confer on any Swatantrata Sangram Sainik a right akin to a substantive right statutorily conferred, vested or recognised. The amendment brought into force with retrospective effect from 8th March, 1999 only adds an eligibility criteria for receiving the benefits of 'Samman Nidhi' providing that the Swatantrata Sangram Sainik will be eligible to receive the benefit of 'Samman Nidhi' from the date of the order sanctioning the same. Such an eligibility criteria, by virtue of the amendment being made retrospective, could not take away or impair any right or an obligation already created or a duty already imposed with the sanction of the 'Samman Nidhi' under an order passed much before the date of enforcement of the new provisions w.e.f. 8-3-1999.
29. In the aforesaid view of the matter, in the absence of any challenge to the rule itself, the fiction envisaged thereunder about retrospectivity has to be given full effect subject to the exception that such a retroactivity will not defeat any vested or accrued right.
30. In the decision in the case of Makhan Lal Ojha v. State of Madhya Pradesh and others, reported in 2000(2) Vidhi Bhasvar 214, although the said case was decided by this Court on 19-8-2000, the amendment in the Rules of 1972 in question which had been incorporated with retrospective effect was not brought to the notice of the Bench deciding the said case.
31. It may be noticed that the decision of the Apex Court in the case of Mukund Lal Bhandari v. Union of India and others, reported in AIR 1993 SC 2127, was with reference to a scheme known as Freedom-fighter Pension Scheme, 1972, introduced by the Government of India which had no provision as contained in the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, under consideration in this case.
32. Taking into consideration the underlying policy of the Rules of 1972 framed by the State of Madhya Pradesh and the provisions contained therein, the ratio of the decision of the Apex Court in the case of Mukund Lal Bhandari (supra) could not be taken to have any impact so as to render the amendment enforced on 8-3-1999, with retrospective effect nugatory or to warrant an inference that the order sanctioning the grant of Samman Nidhi to a Swatanlrata Sangram Sainik will necessarily relate back to the date of moving of the application raising a claim in that regard.
33. So far as the decision in the case of Smt. Kamlabai v. Union of India and others, reported in 2000(4) MPHT 497 (DB) = 2000(3) MPLJ 376, is concerned, in that case also neither the implication arising under the amendment in question was considered nor there was any occasion to consider the same. It arose out of the proceedings initiated under the Freedom-fighterPension Scheme, 1972, introduced by the Union of India which had no provision identical to the provision in question.
34. In view of what has been indicated hereinabove, it has to be held that a Freedom-fighter (Swatantrata Sangram Sainik) as contemplated under the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, is entitled to the 'Samman Nidhi' from the date of the issue of the order by the State Government and the rule brought in force with effect from 8-3-1999, has to be given a retrospective effect but not so as to defeat a vested or accrued right.
By the Court :-
1. In view of our conclusions indicated hereinabove, our answer to the question referred is as follows :--
A Freedom-fighter (Swatantrata Sangram Sainik) as contemplated under the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, is entitled to the 'Samman Nidhi' from the date of the issue of the order by the State Government and the rule brought in force with effect from 8-3-1999, has to be given a retrospective effect but not so as to defeat a vested or accrued right. 2. Let the record of this case be placed before the learned Single Judge with the aforesaid answer to the reference for the final disposal of the writ petition.