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Case Number

Letters Patent Appeal No. 167 of 1998

Attorney(S)

For Respondent 1.— Sri K.S Shrivastava.
For State/Appellants.— Sri K.B Chaturvedi, Government Advocate.

Judges

Sri S.P Srivastava
Sri R.B Dixit, JJ.

Acts

Sub-rule (6) of Rule 3 of the aforesaid Rules
Sub-rule (6) of Rule 3 of Niyam, 1972
Sub-rule (6) of Rule 3
Sub-rule (6)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The contesting respondent (petitioner before the Single Judge) submitted an application dated 10-3-1988 seeking a Swatantrata Sainik Samman pension under the Madhya Pradesh Swatantrata Sangram Samman Nidhi Niyam, 1972 ("Niyam, 1972"). The State Government, by order dated 18-12-1991, sanctioned Rs. 400 per month payable during the petitioner's lifetime, explicitly providing that the pension would become payable from the date of that order. The petitioner filed a writ petition challenging the part of the government order that limited payment to commence from the date of the order, contending that the delay in disposal of his application was attributable to the State and that he should receive pension from the date of his application (10-3-1988). A learned Single Judge allowed the writ petition and directed that the petitioner be granted pension from the date of the application, relying on the Apex Court decision in Mukundlal Bhandari v. Union of India and treating Union of India v. Ganesh Chandra Dolai as distinguishable on facts. The State and the Collector, Gwalior, filed a Letters Patent Appeal seeking to set aside the Single Judge's order. During the pendency of this appeal an amendment (Sub-rule (6) of Rule 3 of Niyam, 1972) was published in the Madhya Pradesh Extraordinary Gazette dated 8-3-1999, declaring that the Rajya Samman Nidhi benefit would be effective from the date of the order of sanction.

Legal Issues Presented

Whether the petitioner is entitled to pension from the date of his application (10-3-1988) or only from the date of the government order (18-12-1991) under the Niyam, 1972, having regard to the delay and the reasons for it.
Whether the retrospective insertion of Sub-rule (6) of Rule 3 of the Niyam, 1972 (published 8-3-1999) — providing entitlement from the date of the order of sanction — is valid and applicable to pending applications and pending lis.
Whether the High Court may take notice of and give effect to a statutory amendment that came into force during the pendency of the appeal (i.e., whether the Court may consider subsequent legislative changes when disposing of a pending writ petition under its extraordinary original jurisdiction).
Whether the challenged Sub-rule (6) is unreasonable or discriminatory and therefore liable to be struck down.

Arguments of the Parties

Appellants (State and Collector)

The amendment — Sub-rule (6) of Rule 3 of Niyam, 1972 — was inserted and published in the Madhya Pradesh Extraordinary Gazette dated 8-3-1999, and provides (retrospectively) that the Rajya Samman Nidhi would be effective from the date of the order of sanction.
Because this amendment was made during the pendency of the appeal (a continuation of the original proceedings), the Court may — and should — take this subsequent event into account and set aside the Single Judge's order which granted pension from the date of application.
Relied upon Mithilesh Kumari v. Prem Behari Khare (AIR 1989 SC 1247) to support the proposition that subsequent legislative change affecting procedure or relief may be considered in pending proceedings.

Petitioner / Respondent No. 1

Challenged the part of the government order that fixed commencement of pension from the date of the order, arguing that the delay in disposal of his 1988 application was attributable to the State and that he should receive pension from the date of application.
Assailed the validity of Sub-rule (6) of Rule 3 (the retrospective amendment), arguing that it is unreasonable and discriminatory and thus vitiated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mukundlal Bhandari v. Union of India and Ors., AIR 1993 SC 2127	Authority relied upon by the Single Judge to justify granting pension from the date of application.	The Single Judge placed reliance on this decision when directing pension from the date of application; the High Court noted that the Single Judge relied on it but went on to consider subsequent amendment and other authorities.
Union of India and Ors. v. Ganesh Chandra Dolai and Ors., (1997) 10 SCC 289	Apex Court authority that the Single Judge considered but found distinguishable on facts.	The Single Judge treated this decision as distinguishable; the High Court recorded that distinction but decided the appeal in light of the subsequent amendment and other principles.
Mithilesh Kumari & Anr. v. Prem Behari Khare, AIR 1989 SC 1247	Principle that retrospective operation should not impair existing rights unless unavoidable; court may take subsequent events into account in pending matters.	The appellants relied on this decision to argue that the retrospective amendment introduced during pendency could be considered; the High Court found this ratio attracted and applied it to hold that the amendment could affect the pending lis.
R.R. Reddy v. Padmini, AIR 1996 SC 238	Later decision that did not approve part of the observations in Mithilesh Kumari on retrospective operation.	The Court noted that the part of Mithilesh Kumari's observation had not been approved in R.R. Reddy, but still examined the clear language of the statute and other authorities to reach its conclusion.
Pasupuleti Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409	Principle that right to relief is judged as of the date of institution, but appellate courts may consider facts or law arising after the lis that fundamentally affect relief; procedure may be adapted to promote substantial justice.	The Court relied on this decision to support the proposition that a Court may take notice of subsequent events arising after institution of lis and mould relief accordingly where justice requires; used to justify consideration of the amendment during pendency.
Lachmeshwar Prasad Shukla v. Keshwar Lal Chaudhuri, AIR 1941 FC 5	Appellate courts' power to rehear and make such order as justice requires, considering changes in fact or law.	The Court cited this authority (as approved in Pasupuleti) to reinforce the principle that on appeal the Court can consider supervening changes in fact or law.
Patterson v. State of Alabama, (1934) 294 U.S. 600	U.S. precedent quoted for the rule that appellate courts must consider changes in fact or law which supervene since the judgment under review.	The Court quoted the passage (via Lachmeshwar Prasad Shukla) to support the general appellate power to consider subsequent events in the interests of justice.
Hasmat Rai & Anr. v. Raghunath Prasad, AIR 1981 SC 1711	Reiteration of the principle in Pasupuleti regarding updating facts and moulding relief on appeal.	The Court referred to this later decision as a reinforcement of Pasupuleti's proposition that appellate courts can consider subsequent facts/law when litigation pends.
Kamleshwar Prasad v. Pradumanju Agarwal (Dead) By Lrs., JT 1997 (4) SC 425	Clarification that if an appellate order is made final and becomes a decree of a Civil Court, a final decree cannot be interfered with under Articles 226 and 227 by taking into account subsequent events.	The Court distinguished the present case from Kamleshwar Prasad since the matter before it involved a writ petition in the High Court's extraordinary original jurisdiction and the appeal was pending, not a situation involving a final decree.

Court's Reasoning and Analysis

The Court proceeded by first recording the factual matrix: the government had sanctioned pension from the date of the order, the Single Judge granted relief from the date of the application, and an amendment (Sub-rule (6) of Rule 3) was inserted during the pendency of the appeal stating that entitlement to Rajya Samman Nidhi would be from the date of the order of sanction.

The Court analysed the challenge to Sub-rule (6) and the effect of its retrospective insertion. It noted the settled principle that courts should not "scan the wisdom of the legislature" in matters of policy and that the validity of legislative choices on efficacy, efficiency and policy is generally for the legislature to determine; accordingly, the petitioner's contention that the sub-rule was unreasonable and discriminatory was rejected as devoid of merit.

Turning to retrospective operation, the Court considered the authorities cited. It observed that the statute (the inserted Sub-rule (6)) "in very clear terms" provided that the sub-rule would be effective from the date of enforcement of the rules, indicating legislative intent that monetary benefits should flow from the date of the sanctioning order and not from the date of filing of the application. The Court concluded that such retrospective provision could not be taken to defeat any vested right and would not affect benefits already released to persons similarly situated; instead, it could legitimately affect pending applications and pending lis.

The Court relied upon precedent (notably Mithilesh Kumari and Pasupuleti Venkateswarlu) to support the proposition that, where litigation is pending, a Court exercising appellate or revisional jurisdiction may take cognisance of subsequent events — whether factual or legal — that have a fundamental impact on the right to relief and may mould relief accordingly to promote substantial justice. The Court quoted the established articulation that appellate jurisdiction permits correction of the judgment under review and consideration of changes in fact or law which have supervened.

The Court distinguished the principle in Kamleshwar Prasad (which protects final decrees from being disturbed by subsequent events in proceedings under Articles 226/227) on the ground that the present matter involved a writ petition in the High Court's extraordinary original jurisdiction and the appeal was a continuation of the original proceedings; hence, the ratio of Mithilesh Kumari applied squarely.

On these bases the Court accepted the appellants' submission that the amendment introduced during pendency could be considered and that the Single Judge's earlier direction awarding pension from the date of application could not stand in view of the statutory amendment that clarified entitlement from the date of the order of sanction.

Holding and Implications

HOLDING: The Letters Patent Appeal succeeds. The writ petition which had been allowed by the Single Judge is set aside and the petition is dismissed.

Implications:

The Single Judge's direction that the petitioner should be granted pension from the date of his application is reversed; the effect of the statutory amendment (Sub-rule (6) of Rule 3 of Niyam, 1972) — providing entitlement from the date of the order of sanction — governs pending applications and the pending lis in this case.
The Court held that the retrospective amendment, as expressed, did not defeat vested rights or affect benefits already released to similarly situated persons, but could apply to pending matters.
There is no order as to costs.
The opinion does not purport to lay down any broader novel precedent beyond applying established principles that allow courts to take subsequent events (including legislative amendments) into account while disposing of pending litigation under the circumstances described; no new or expansive legal rule was declared beyond the application of those principles to the facts of this appeal.

This summary is confined to and derived exclusively from the content of the provided opinion.

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State Of Madhya Pradesh And Another v. Anand Bihari And Another

1. Feeling aggrieved by the order passed by a learned Single Judge allowing the writ petition filed by the contesting respondent No. 1 and directing that he will be entitled to the pension awarded under the provisions of the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972, from the date of the application, the State as well as the Collector, District Gwalior have come up in this Letters Patent Appeal seeking redress praying for the setting aside of the impugned order.

2. We have heard the learned Govt. Advocate representing the State-appellants as well as the learned counsel representing the contesting respondent/petitioner, and have carefully perused the record.

3. The facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass.

4. The petitioner/respondent No. 1 had submitted an application dated 10-3-1988 seeking Swatantrata Sainik Samman pension. The State Government vide its order dated 18-12-1991 sanctioned an amount of Rs. 400/-per month payable as Samman Nidhi to the petitioner/applicant during his life time under the provisions of the Madhya Pradesh Swatantrata Sangram Samman Nidhi Niyam, 1972 (hereinafter referred to as Niyam, 1972) subject to the terms and conditions contained therein clearly providing that the pension will become payable from the date of the order.

5. The petitioner had filed the writ petition giving rise to this appeal challenging that part of the order passed by the State Government whereunder the pension sanctioned in his favour was to be payable from the date of the issuance of the order claiming that in the circumstances of the case since the application for pension had been filed in the year 1988 and the delay in the disposal of that application was attributable to the State Government itself, he should not be deprived of the pension amount for the period elapsing between the date of filing of the application and the date of the passing of the order granting the payment of pension.

6. The learned single Judge vide the impugned order being of the view that no reason had been given by the State Government as to why the pension was being released from the date of the issuance of the order, placing reliance on the decision of the Apex Court in the case of Mukundlal Bhandari v. Union of India and Ors., reported in AIR 1993 SC 2127 and finding that the other decision of the Apex Court in the case of Union of India and Ors. v. Ganesh Chandra Dolai and Ors., reported in (1997) 10 SCC 289, was distinguishable on facts came to the conclusion that the petitioner ought to have been granted the pension from the date of the application filed by him and consequently issued the impugned direction.

7. The learned counsel for the appellants has strenuously urged that in the provisions contained in the Madhya Pradesh Swatantrata Sangram Sainik Samman Nidhi Niyam, 1972 an amendment was brought into effect vide the insertion of Sub-rule (6) of Rule 3 of the aforesaid Rules which was enforced with the publication of the amended rule in the Madhya Pradesh Extraordinary Gazette dated 8-3-1999.

8. The Sub-rule (6) of Rule 3 of the aforesaid Niyam had been inserted with retrospective effect providing that Swatantrata Sangram Sainik would be entitled to the benefit of the Rajya Samman Nidhi with effect from the date of the order of sanction.

9. In view of the aforesaid amendment in the Niyam, 1972, the learned counsel for the appellants has urged that the impugned order passed by the learned single Judge deserved to be set aside.

10. The learned counsel for the petitioner/respondent No. 1 on the other hand has tried to assail the validity of Sub-rule (6) of Rule 3 of Niyam, 1972 which stands inserted in the Rules by virtue of the amendment with retrospective effect.

11. The learned counsel for the petitioner/respondent has tried to urge that the aforesaid sub-rule referred to hereinabove which has now been inserted is unreasonable and discriminatory.

12. So far as the contention of the learned counsel for the petitioner/ respondent in regard to the sub-rule in question being not reasonable and vitiated on account of the discrimination is concerned, suffice it to say that it is settled principle that the wisdom of the legislature cannot be scanned by the Court. So far as regards the efficacy, efficiency and policy underlying the provisions of any statutory enactment of that the legislature is the only judge; and is only responsible to a Court of justice for the lawfulness of what it does and of that the Court is the only judge.

13. In the aforesaid view of the matter, the contention of the learned counsel for the petitioner/respondent noticed hereinabove is totally devoid of merit and is not at all acceptable.

14. The learned counsel for the appellants has strenuously urged that although an amendment with retrospective effect cannot be taken to have the effect of defeating a vested right yet since the amendment in question has been effected during the pendency of the appeal which is the continuation of the original proceedings, its effect can be taken into consideration and this Court will be well within its jurisdiction to interfere in the impugned order taking notice of this subsequent event which had taken place during the pendency of the appeal and grant adequate relief to the appellants.

15. In support of the aforesaid submission, the learned counsel for the appellants has heavily relied upon on the decision of the Apex Court in the case of Mithilesh Kumari and Anr. v. Prem Behari Khare, reported in AIR 1989 SC 1247.

16. In the aforesaid decision, the Apex Court had clarified that a retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless that effect cannot be avoided without doing violence to the language of the enactment indicating that the presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect the vested rights or the illegality of past transaction, or impair contracts, or impose new duty or attach new disability in respect of past transactions or considerations already passed. It was emphasised that the presumption against retrospectivity may be rebutted by necessary implications from the language employed in the statute pointing out that it cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. This part of the observation was not approved in its later decision in the case of R.R. Reddy v. Padmini (AIR 1996 SC 238).

17. In the present case what we find is that the statute in very clear terms has expressed that the Sub-rule (6) in question will be deemed to be effective from the date of the enforcement of the rules itself. It is, therefore, obvious that the legislative intent was for providing monetary benefits flowing from the order granting the pension from the date of the issuance of the order granting the sanction and not from the date on which the application had been submitted. Such a retrospectivity, we are of the considered opinion, could not affect the already released benefits to a person similarly situated as the retrospectivity contemplated could not be taken to defeat any vested right. The provision so inserted by way of amendment of the rules could affect the pending applications and the pending lis, if any.

18. It may further be noticed that the Apex Court in its decision in the case of Pasupuleti Venkateswarlu v. Motor & General Traders., reported in AIR 1975 SC 1409, had observed that it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. It was clearly indicated that if a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stulify or render incpt the decretal remedy. The equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. The Apex Court went on to observe that nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court, if the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice.

19. The Apex Court in its aforesaid decision had approved of the observations made in the decision in the case of Lachmeshwar Prasad Shukla v. Keshwar Lal Chaudhuri, reported in AIR 1941 FC 5, referring to the rule adopted by the Supreme Court of the United States in the case of Patterson v. State of Alabama, reported in (1934) 294 US 600 at p. 6007, whereunder it was observed as follows :

"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires, And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."

20. It may further be noticed that in the decision in the case of Lachmeshwar Prasad Shukla (supra), it had been observed by the Apex Court that an appeal is by way of a re-hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard.

21. The view expressed by the Apex Court in its decision in the case of Pasupuleti Venkateswarlu (supra) was reiterated in its later decision in the case of Hasmat Rai and Anr. v. Raghunath Prasad, reported in AIR 1981 SC 1711.

22. In its decision in the case of Kamleshwar Prasad v. Pradumanju Agarwal (Dead) By Lrs. (dead) by L.Rs., reported in JT 1997 (4) SC 425, the Apex Court had however clarified that if under the statute, an order of the appellate authority is made final and the said order is a decree of the Civil Court in that event the decree of a competent Court having become final cannot be interfered with by the High Court in the exercise of its power of superintendence under Articles 226 and 227 of the Constitution by taking into account any subsequent event which might have happened.

23. The situation in the present case is entirely different. The writ petition giving rise to this appeal had been filed invoking the extraordinary original jurisdiction of this Court. In the circumstances, therefore, the ratio of the decision of the Apex Court in the case of Mithilesh Kumari and another (supra) stands squarely attracted.

24. In view of our conclusions indicated hereinabove, this appeal succeeds and the writ petition giving rise to this appeal is dismissed.

25. There shall however be no order as to costs.

State Of Madhya Pradesh And Another v. Anand Bihari And Another

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants (State and Collector)

Petitioner / Respondent No. 1

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State Of Madhya Pradesh And Another v. Anand Bihari And Another

Comments