P.K Tripathy, J.:— Judgement of Learned Civil Judge (Junior Division), Kamakshyanager in Election Misc. Case No. 8 of 2002 and the confirming Judgment of Learned Ad hoc Addl. District Judge, Kamashyanagar in F.A.O No. 5/2 of 2003-04 is under challenge.
2. Facts leading to the dispute are that the writ petitioner Sebati Behera (hereinafter referred to as opposite party No. 2) and opposite party No. 1’-Subasi Nayak (Petitioner in the Election Misc. Case and hereinafter referred to as ‘petitioner’ were the two rival candidates contesting for the post of Sarapanch of Kalada Grama Panchayat under Parjang P.S in the District of Dhenkanal. That post of Sarapanch is reserved for candidates belonging to scheduled castes. On 21.1.2002 nomination papers were filed. On 22.1.2002 nomination papers were accepted after scrutiny by the Election Officer, who is opposite party No. 2 in this writ petition and was opposite party No. 1 in the Election Misc. Case. At that stage Petitioner raised objection that opposite party No. 2 was not a member of any scheduled caste. That objection was overruled by the Election Officer. On 21.2.2002 election was held and on 1.3.2002 Sebati Behera (opposite party No. 2) was declared elected. Thus, Subasi Nayak (Petitioner) filed the Election Petition under Section 30 read with Section 31 of the Orissa Grama Panchayat Act, 1965 (in short ‘the Act’). The main ground of challenge is that by the date of nomination and election opposite party No. 2 was not a member belonging to any of the Scheduled Castes and the Caste Certificate (Ext. B) granted in her favour by the Tahsildar is illegal. She further stated that if nomination paper of opposite party No. 2 would have been rejected, then she (petitioner) would have been declared elected without any contest. She also prayed to set aside election of the opposite party No. 2 and to declare her (petitioner) duly elected. Opposite party No. 2 advanced counter contention that she is ‘Kaibarta’ by caste, which is synonymous to ‘Diwar’ caste as per the notification on the basis of the order of the President of India in accordance with the provision in Article 341 of the Constitution of India (in short ‘Constitution’). The Election Officer filed a written statement stating that on the basis of the caste certificate issued by Tahsildar, Parjang in favour of opposite party No. 2 that she belongs to ‘Dewar’ (‘Kaibarta’), he accepted her as a person belonging to Scheduled Caste and accepted the nomination paper.
3. In course of hearing, petitioner examined herself as P.W No. 1 and relied on certified copy of the Record of Right of Holding No. 252 (Ext. 1) to prove that opposite party No. 2 does not belong to scheduled caste as enumerated in the Presidential Order in force for Orissa by the date of election. Opposite party No. 2 examined herself and one witness in support of her case along with Exts. A and B. As already noted, Ext. B is the Caste Certificate issued by the Tahsildar and Ext. A is the certified copy of a ‘Khatian’ showing her father's caste as ‘Kaibarta’.
4. On the issue as to whether opposite party No. 2 was a member of scheduled castes at the time of filing of her nomination paper and on the date of election the courts below assessed the evidence and examined the position of Law and held that when opposite party No. 2 has admitted that she belongs to the caste ‘Keuta’ and that was not included in the Presidential Order enumerating the same as scheduled caste, therefore, she could not be accepted as a member of scheduled caste. In that respect, so far as the amendment of the list by Second Amendment Act, 2002 which came into force on 18.12.2002, including ‘Keuta’ and ‘Kaibarta’ as members of Scheduled Castes, the Courts below held that that has no retrospective operation on a plain and unambiguous meaning available from the statutory provision and, therefore, by the date of filling of the nomination paper and acceptance of it and even by the date of election, opposite party No. 2 being belonging to ‘Kaibarta’ by caste by birth and ‘Keuta’ by caste after marriage, does not get protection from the amended order of the President of India. Consequentially both the Courts below became unanimous to declare her election to the post of Sarapanch as illegal. Since Petitioner was the only rival candidate and her status as the member of scheduled caste is not disputed, therefore, on declaration of the election of opposite party No. 2 as void, the Courts below further declared that Petitioner Subasi Nayak be declared elected uncontested.
5. Mr. K.K Swain, Learned Counsel for opposite party No. 2 argued that Scheduled Castes Orders (Amendment) Bill, 2001 was finally considered and accepted by the Parliament and as a consequence thereof the, Constitution's (Scheduled Castes) Orders (Second Amendment) Act, 2002 was passed on 17th December, 2002. So far as Orissa is concerned, serial No. 24 of the list of Scheduled Castes was substituted by describing the castes as ‘Dewar’, ‘Dhibara’, ‘Keuta’, ‘Kaibarta’. It appears from the Bill that the aforesaid inclusion was made on the basis of the directives of this Court in the case of Narayan Behera v. State of Orissa through Secretary, Tribal & Welfare Department, 49 (1980) CLT 47. According to him, keeping in view the ratio in the Case of Narayan Behera (supra) it can be safely concluded that the aforesaid amendment to the list was declaratory and corrective in nature and therefore, that list has got retrospective operation from the date of the original Presidential Order and if that interpretation finds favour in view of the ratio in the cases of Zile Singh v. State of Haryana, AIR 2004 SCW 5842; W.P.I.L Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P, AIR 2005 SCW 1257; Shyam Sundar v. Ram Kumar, 2001 Judgment Today (6) (SC) 94; (2001) 8 SCC 24 : AIR 2001 SC 2472, then opposite party No. 2 who secured majority votes, is to continue as duly and legally elected Sarapanch.
6. On the other hand Mr. B.B Mishra, Learned Counsel for the Petitioner argued that a five Judges Bench, in the case of State of Maharashtra v. Milind, (2001) 1 SCC 4 : AIR 2001 SC 393, have taken note of all the previous decisions including the case of B. Basavalingappa v. D. Munichinnappa, AIR 1965 SC 1269, [which was the basis for the ratio laid down in Narayan Behera's case (supra)] and decided that the list, as published in accordance with Article 341 of the Constitution, has to be given its plain and unambiguous meaning and no Court or authority other than the Parliament and the President can add to or delete any community from such lists of Scheduled Castes or Scheduled Tribes. He further argued that when the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002 has not been made retrospective on the wisdom of the Parliament and the President and the amendment is to add the castes and not to declare or to give a clarification, therefore, the ratio in the case of Zile Singh (supra) and the other citations relied on by opposite party No. 2 are not applicable. In that respect he also relies on the ratio in the case of Punjab University v. Subash Chander, (1984) 3 SCC 603 : AIR 1984 SC 1415.
7. The aforesaid facts and events involved in the case and the contention of the parties leads to the sequence that as per the Constitution (Scheduled Caste) Orders (Second Amendment) Act, 2002, which was published on 18th December, 2002, so far as Orissa is concerned, inter alia serial No. 24 of the list was substituted and ‘Dhibara’, ‘Kaibarta’, ‘Keuta’ were added in addition to the caste ‘Dewair’. According to opposite party No. 2, the said three castes added vide serial No. 24 are synonyms of the caste ‘Dewar’ and therefore the amendment of 2002 was declaratory and explanatory. In the case of state of Maharastra v. Mana Adim Jamat Mandat, AIR 2006 SCW 1529, the Apex Court was in seisin of a similar matter relating to Scheduled Tribes. The dispute in that case was that in the order of the President under Article 342 read with Article 366 of the Constitution, vide serial No. 12 of the list of tribes, in the state of Maharashtra previously it was ‘Gond’ tribe ncluding several other tribes and one of them was ‘Mana’ tribe. In the Scheduled Castes & Scheduled Tribes Order Amendment Act, 1976 there was an amendment to that order and, vide entry No. 18 such tribes were described as “Gond…Mana…”. In that context the Apex Court held that:
“30. The common pattern found in most of the group entries is that there is a punctuation mark comma (,) between one Entry and another Entry in the group signifying that each one of them is deemed to be separate Scheduled Tribe by itself. In the present case, Entry 18 of the Schedule clearly signifies that each of the Tribe mentioned therein deemed to be a separate Tribe by itself and not a sub-Tribe of ‘Gond’. ‘Gond’ is a Scheduled Tribe, it is not disputed. As already noticed that ‘Gond’ including Arakh or Arrakh etc. found in Entry 12 of Amendment Act 63 of 1956 has been done away with by the Amendment Act of 1976. In Entry 18 of Second Schedule of Amendment Act of 1976 the word ‘including’ was deliberately omitted, which signifies that each one of the Tribe specifying in Entry 18 is deemed to be a separate Tribe by itself. Therefore, “Mana” is not a sub-Tribe of “Gond” but a separate Tribe by itself and is a Scheduled Tribe”.
8. If the same analogy, being available, is applied in this case, then it is seen that notwithstanding several amendments to the order of the President, be it relating to Scheduled Castes or Scheduled Tribes, so far as entry No. 24 for Orissa State, it remained all along as “24-Dewar” until it was substituted by Central Act No. 61 of 2002 Published in the Gazette of 18.12.2002, and according to that, serial No. 24 (for Orissa) reads as “24-Dewar, Dhibara, Keuta, Kaibarta”.
9. In the above context, reference to the case of Narayan Behera (supra) is relevant, because that was mentioned in the Constitution (Scheduled Castes) Orders (Amendment) Bill, 2001. In that respect, in the Statement of Objects and Reasons in paragraph -3 it was noted in the following manner:
“3, The proposed amendments in the Constitution Scheduled Castes Orders (Amendment Bill, 2001 broadly fall under the following categories, namely:
(i) *********
(ii) *********
(iii)*********
(iv) *********
(v) *********
*********
(vi) Modifications in the existing entries in accordance with directives of Hon'ble High Court of Orissa in the case of Narayan Behera v. State of Orissa in Bhaiya Ram Munda v. Anirudh Patar, (1970) 2 SCC 825 : AIR 1971 SC 2533); and ……”
10. It may be seen, from the above quoted passage that the amendment was on the basis of directives of the High Court of Orissa and not because of inclusion of synonyms of ‘Dewar’ caste. In Narayan Behera's case this Court observed that:
“4. *********
The Supreme Court indicated in Basavalingappa's case:
“… As the President could not have included in the Order a non-existent caste, it means the word ‘Bhovi’ relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court had held that ever since the Order of 1956, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same”……
“Adopting the substance of the ratio, it should follow that when there is ho community known as Dhibara as such Dhibara essentially refers to a profession, Kaibartas and Keutas who are traditionally accepted to belong to Dhibara profession should be taken as included in the term Dhibara.
It may not be inappropriate to indicate here that the State Government had taken this stand in several communications to the Union Government though the Central Government had not accepted the recommendations of the State Government on the ground that under the Constitution it is not open to the President to make any amendment to the Order”.
(Italic letters to put emphasis)
11. The directives in Narayan Behera's case was, therefore, to delete ‘Dewar’ and the equivalent term ‘Dhibara’, because there is no caste known as ‘Dewar’ in the State of Orissa and ‘Dhibara’ is a profession professed by ‘Kaibartas’ and ‘Keutas’. Therefore, when the above quoted serial No. 24 after the Amending Act 61 of 2002 still retains ‘Dewar’ and included ‘Dhibara’ together with ‘Keuta’ and ‘Kaibarta’, it cannot be interpreted that ‘keuta’ and Kaibarta’ have been included in entry No. 24 as synonyms of ‘Dewar’ or Dhibara’. In other words, the directives of this Court in Narayan Behera's case was taken into consideration and in their wisdom the Parliament prepared the Bill to retain all the four castes, as indicated in entry No. 24. Therefore, the ratio in the case of State of Maharastra v. Mana Adim Jamat mandat (supra) is applicable in this case to hold that ‘Keuta’, ‘Kaibaarta’ and ‘Dhibara’ are synonyms of ‘Dewar’ but they are in the list as such castes.
12. In the above context, to treat the aforesaid amendment on entry No. 24 as explanatory and declaratory so as to make it retrospective in operation, as noted earlier, Petitioner relied on the Case of Zile singh (supra). In that case the Apex court was considering the effect of amendment of Section 13-A(1)(c) of Haryana Municipal Act in which the words ‘up to’ were substituted for the word ‘after’. It appears that the Municipal Act was amended in 1994 and Section 13-A was added providing the grounds of disqualification from membership. In Section 13-A(1)(c) such disqualification was provided for a member having more than two living children. The proviso to Clause (c) provides a grace period of one year from the date of coming into force of the amended disqualification. In that proviso due to “draftman's folly’ (as observed by the Apex Court) the term ‘Up to’ was wrongly used as against the correct word ‘after’. The lacuna was noticed and amended within six months. The error in expression was noticed and rectified by using the words ‘up to’ to make it clear at par with the intention of the legislators that the exemption period is only for one year and any person having more than two children stands disqualified if he begets a third child after the cut off date. In that context, Hon'ble Apex Court examined the nature of the amendment and treated it to be a corrective and clarificatory one so as to make it retrospective from the date of Section 13-A(1)(c) proviso came into operation in April, 1994. In that context, after referring to the position of law on interpretation of statute relating to giving retrospective operation, the Apex Court held that:
“22. The State Legislature of Haryana intended to impose a disqualification with effect from 5.4.1994 and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a fact-situation from the operation of the newly introduced disqualification the draftsman's folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the Second Amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the Court can unhesitatingly conclude in favour of retrospectivity, the Court would not hesitate in giving the Act that operation unless prevented from doing so by any mandate contained in Law or an established principle of interpretation of statutes”.
13. Their Lordships further held that:
“26. In Javed (supra) it was held that the right to contest an election is netther a fundamental right nor a common law right. It is a right conferred by statute. The statute which confers the right to contest an election can also provide for the necessary qualifications and disqualifications for holding an elective office. The bar by way of disqualification created against holding the office of a member of a municipality by Clause (c) of Sub-section (1) of Section 13-A was absolute. Merely because a disqualification is imposed by reference to certain facts which are referable to a date prior to the enactment of disqualification, the Act does not become restrospective in operation. No vested right was taken away. The First Amendment was not a piece of legislation having any restrospectivity. However, the legislature thought that it would be more reasonable if the disqualification was not applied by reference to a child born within a period of one year from the date of commencement of the Act. The period of one year was appointed keeping in view the period of gestation which is two hundred and eighty days as incorporated in Section 112 of the Indian Evidence Act of 1872 and added to it a little more margin of eighty five days. The proviso spells out this meaning but for the error in drafting. Even if there would have been no amendment (as introduced by the Second Amendment Act) the proviso as it originally stood, if subjected to judicial scrutiny, would have been so interpreted and the word ‘after’ would have been read as ‘upto’ or assigned that meaning so as to carry out the legislative intent and not to make a capital out of the draftsman's folly. Or, the proviso if not read down would have been declared void and struck down as being arbitrary and discriminatory inasmuch as the persons having more than tow living children on the date of the enactment of the Act and within one year thereafter and the persons having more than two living children after the date of one year could not have formed two classes capable of being distinguished on a well defined criterion so as to fulfill the purpose sought to be achieved by the legislature. However, the legislature got wiser, by realizing its draftsman's mistake and stepped in by substituting the mistaken word ‘after’ by the correct word ‘upto’ which should have been there since very beginning. In our opinion the Second Amendment is declaratory in nature. It alters the text of the First Amendment in such manner as to remove the obvious absurdity therefrom and brings it in conformity with what the Legislature had really intended to provide. It explains and removes the obvious error and clarifies what the law always was and shall remain to be. The Second Amendment would operate retrospectively from the date of the First Amendment and in giving such operation no mandate of any Law or Principle is violated. Else, the evil sought to be curbed continues to exist for some period contrary to legislative intent. The application of rule against retrospectivity stands excepted from Second Amendment Act.”
14. On a careful reading of the ratio Zile Singh (supra) and examining the fact situation and amendment of the Scheduled Castes Order (Entry No. 24 for Orissa), it cannot be said that a correction of the nature which was taken up in Zile Singh (supra) was made in the case of Entry No. 24. It may be reiterated that the directives of this Court in Narayan Behera's case (supra) was considered by the Central Government notwithstanding rejection of the request of the State on earlier occasions to include ‘Keuta’ and ‘Kaibarta’ as members belonging to Scheduled Caste. At the same time, the finding and observation of the High Court was accepted by the Parliament that there is no ‘Dewar’ or ‘Dhibara’ caste in Orissa, because, as against serial is No. 24 the entry ‘Dewar’ is mentioned and the caste ‘Dhibara’ is added. Apart from that, the amended description does not state that ‘Dewar’ includes ‘Dhibara’, ‘Keuta’ and ‘Kaibarta’. Thus, in the absence of either of the aforesaid sequences it cannot be said that the inclusion of the three castes in serial No. 24 is either declaratory or explanatory with retrospective effect. Therefore, till the date of amendment was effected, ‘Dhibara’, ‘Keuta’ and ‘Kaibarta’ could not have been accepted as members belonging to Scheduled Castes under the orders of the President in accordance with Article 341 read with Article 366 of the Constitution, because it is the settled position of law by the five-judges Bench, in the case of Milind (supra) that there cannot be addition or deletion of castes or tribes by any authority except the Parliament and the Present, so also in the case of Mana Adim Jama Mandal (supra) where the apex Court has held not to read sudh description in any entry in the list as a sub-caste or sub-tribe unless it is so declared in such order of President of India.
15. On the aforesaid analysis of the fact, provision of Law and the ratio from the decisions of the Apex Court, we find that the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002, so fat as entry No. 24 of Orissa Scheduled Castes list, is not retrospective in operation. If that is given with retrospective operation, then that would give rise to anomalous situation and utter confusion in as much as according to the constitutional provision and provision in the Grama Panchayat Act, the post of Sarapanch for Kalada Grama Panchayat remained reserved for a scheduled caste candidate. By the date of filing of nomination paper there was no Presidential Order upholding the castes ‘Keuta’ and ‘Kaibarta’ as members belonging to scheduled castes. The Caste Certificate granted by the Tahasildar prior to the amendment is illegal and inoperative in view of the ratio in Milind (supra). Therefore, on the basis of such a void certificate, a person cannot be permitted to contest the election. Her eligibility to claim as a member of scheduled caste only enforceable after 18.12.2002 and, therefore, by the date of filing nomination paper no authority concerned had the capacity, jurisdiction or authority to term ‘Keuta’ or ‘Kaibarta’ as a part of scheduled castes. Once that is so, nomination paper of opposite party No. 2 could not have been accepted and in view of that she could not have contested election. For the aforesaid reasons, we uphold the judgment and order of the Courts below and since petitioner was the lone candidate after such elimination of opposite party No. 2, therefore, she is bound to be declared elected in view of the prayer made by her to that effect. That decision of the Learned Civil Judge was not interfered with by the Appellate Court and, therefore, that decision of the Civil Judge is operative.
16. For the reasons indicated above, I do not find any merit in this writ petition and the same is accordingly dismissed. No cost.
Pradip Mohanty, J.:— I have gone through the judgment prepared by my Learned Senior brother P.K Tripathy, J. With great respect, I differ. The reasons are as follows:
18. There is no dispute with regard to the factual position. The sole question involved in this writ petition is whether the amendment brought about in the Presidential Order is prospective or retrospective. The Amending Act was published in the Gazette on 18.12.2002 From the Statement of Objects and Reasons of Amending Bill, it is clear that the amendment was necessary in view of the decision of this Court in Narayan Behera v. State of Orissa through Secretary, Tribal & Welfare Department, 49 (1980) CLT 47. Needless to say, the decision rendered by this Court in the aforesaid case has been upheld by the Apex Court. For better appreciation, the relevant portion of the Statement of Objects and Reasons is quoted hereunder:
*********
3. The proposed amendments in the Constitution Scheduled castes Orders (Amendment) Bill, 2001 broadly fall under the following categories, namely:
*********
(iv) Modification in the existing entries in accordance with directives of Hon'ble High Court of Orissa in the case of Narayan Behera v. State of Orissa (OJC No. 247 of 1978) and the Supreme Court in Bhaiya Ram Muna v. Anirudh Patar ((1970) 2 SCC 825 : AIR 1971 SC 2533); and
*********
19. Now, it is the well settled principle of law that no authority other than the Parliament by law can amend the Presidential Order. Neither the State Governments nor the Courts or Tribunals or any other authority can assume jurisdiction to hold enquiry or take evidence to declare that a caste or tribe or a part of or a group within a caste or tribe in included in the Presidential Order in one entry or the other although they are not expressly and specifically included. The Constitutional Bench of the Apex Court in Sate of Maharastra v. Milind Katware, AIR 2000 SCW 4303, after taking into consideration all the previous judgments arrived at the conclusion that the notification issued under Clause (1) of Articles 342 specifying Scheduled Tribes can be Amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Articles 342 only by Parliament by law and by no other authority. It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.
20. Reverting back to the present case, as already stated earlier, the question involved herein is whether the Amending Act of 2002 is prospective or retrospective. On 18.2.2002, the aforesaid amendment came into being and entry No. 24 was substituted by adding Dhibara, Keuta, Kaibarta to Dewar. From a bare reading of the Statement of Objects and Reasons, It reveals that the amendment was by way of modification, which became necessary in view of the directives of this Court in Bhaiya Ram Munda's case (supra). The Apex Court in Zile Singh v. State of Haryana, AIR 2004 SCW 5842, while deciding the applicability of an amending Act, in paragraph 13 of its judgments held as follows:
“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 a retrospective operation. The rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only ‘nova constitutio futuris formam imponere debet non praeterities’ -a new law ought to regulate what is to follow, not the past. (See: Principles of Statutory Interpretation by Justice G.P Singh, Ninth Edition, 2004 at p. 438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospective may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid, page No. 440)”.
21. The Apex Court further held:
“The presumption against retrospective operation is not applicable to declaratory statutes… In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain’ ‘an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meanings of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have restopective effect”.
22. In paragraph 16 of the Judgment, it was held:
“Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to ‘explain’ a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The Rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory is nature. The classic illustration is the case of Att.Gen. v. Pougett, (1816) 2 price 381, 392. By a Customs Act of 1873 (53 Gei, 3m c, 33) a duty was imposed upon hides of 9s. 4d., but the Act omitted to state that it was to be 9s, 4d. per cwt., and to remedy this omission another Customs Act (53 Geo., 3, c. 105) was passed later in the same year. Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty of 9s. 4d. per cwt., but Thomson C.B, in giving judgment for the Attorney General, said ‘The duty in this instance was in fact imposed by the first Act, but the gross mistake of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act’.”
23. In paragraph 18 of the judgment, the Apex Court quoted the following observations made by it in an earlier decision in National AgriculturalCo-operative Marketing Federation of India Ltd. v. Union of India, (2003) 5 SCC 23:
“There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. Every legislation whether prospective or retrospective has to be subjected to the question of legislative competence. The retrospectivity is liable to be decided on a few touchstones such as: (i) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent.”
24. A bare reading of the above ratio makes it crystal clear that mere absence of use of the word ‘declaration’ in an Act explaining what was the law before may not appear to be declaratory Act, but if the Court finds an Act as declaratory or explanatory, it was to be construed as retrospective. The legislative power to enact law includes the power to declare what was the previous law, and when such a declaratory Act is passed, invariably it has been held retrospective.
25. In view of the ratio decided by the Apex Court in Zile Singh's case (supra) and by this Court in Narayan Behera's case (supra), and in view of what has been stated in the Statement of Objects and Reasons of the Amending Bill, I am of the view that the amendment in question is declaratory and curative in nature. Therefore, the said amendment in the Presidential Order is having retrospective effect even though there is no express provision to that effect. Since the amendment in question has relation back to the time when the original Act was enacted, there was no infirmity in the caste certificate issued by the Tahasildar in favour of the petitioner.
26. As to the decision in State of Maharastra v. Mana Adim Jamat Mandal, AIR 2006 SCW 1529, upon which my Learned brother Tripathy, J. has placed much reliance, the ratio decided therein is that no authority other than the Parliament by law can amend the Presidential Order. Neither the State Governments, nor the Courts, tribunals or any other authority can assume jurisdiction to hold enquiry or take evidence to declare that a caste or tribe or a part of or a group within a caste in included in the Presidential Order. The said judgment has been rendered basing on the principle laid down by the Constitution Bench of the Apex Court in Milind Katware's case (supra), and there cannot be any dispute to the law decided by the Apex Court. But, in the above judgment, nothing has been stated with regard to prospectivity or retrospectivity of an amending Act.
27. For the foregoing discussions, this writ petition is allowed and the judgments of the Courts below are hereby quashed and set aside. Writ petition dismissed (as per P.K Tripathy, J.).
28. Writ petition allowed (as per Mr. Pradip Mohanty, J.).
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