AHMEDABAD KHANGI PRATHMIK SHALA SANCHALAK SANGH Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
Ahmedabad Khangi Prathmik Shala Sarichalak Sangh
State of Gujarat and Another
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(1.)This Letter Patent Appeal is against the order of the learned single Judge passed in Special Civil Application No. 1077 of 1988. In that Special Civil Application the appellant herein questioned the authority of the Tribunal constituted as early as 23-1-1987 by a Notification issued by virtue of the power conferred under Sec. 40-F introduced by the Bombay Primary Education (Gujarat Amendment) Act 1986 In the Notification dated 23-1-1987 Published by the Government of Gujarat which is Annexure A to the Special Civil Application it is stated that the Tribunal constituted for the purpose of Chapter VII-A of the above said Act shall have jurisdiction in the whole of the State of Gujarat. It has also appointed one Shri Navnitbhai Dhanjibhai Parikh to be the Tribunal. On 31/12/1987 another Notification was gazetted stating:
"In place of words Chapter VII-A appearing in sub-para 1 of Government order No. CH/SH/2/KHPS/1086/1607/Ch dated 23/01/1987 read the words Chapter VII-B".
It is contended by the appellant that the constitution of the Tribunal is only for the purpose of Chapter VII-B and as such there is a valid constitution of the Tribunal only by virtue of this Notification dated 31/12/1987 and that any act or duty performed by the Tribunal prior to this date cannot be a valid one.
(2.)The learned single Judge of our High Court after dealing with this submission came to the conclusion that the Tribunal has been validly constituted and that merely because the Chapter has been wrongly mentioned in the Notification it will not in any way invalidate the constitution of the Tribunal. Applying the principles as to how a statute has to be interpreted the learned Judge came to the conclusion that the subsequent Notification of 31/12/1987 is only curative in nature and as such it has retrospective effect as and from the date of the original Notification. Aggrieved by the order of the learned single Judge the appellant has filed the above said Letters Patent Appeal.
(3.)Mr. Panchal the learned Counsel appearing for the appellant submitted that the Government derives power to amend the original Notification only by virtue of Sec. 21 of the Bombay General Clauses Act 1904 and that the said amendment carried out as late as 31/12/1987 by the Notification referred above cannot have retrospective effect. In support of his contention the learned Counsel referred the decisions in the case of Sukhram Singh v. Harbheji reported in AIR 1969 SC 1114 and in the case of Govind Das v. I.T.O. reported in 1976 (1) SCC 906. There is absolutely no difficulty in appreciating or applying the principles laid down in these Supreme Court decisions. In the decision in the case of Govind Das v. I.T.O. reported in 1976(1) SCC 906 the Supreme Court has held that ordinarily the statute can have only prospective operation and if the enactment is expressed in a language which is fairly capable of either interpretation it ought to be construed as prospective only. In the decision in the case of Sukhram Singh v. Harbheji reported in AIR 1969 SC 1114 it has been laid down that retrospection is not to be presumed for the presumption is the other way but many statutes have been regarded as retrospective without a declaration. It has been further held that it is that remedial statutes which are always regarded as prospective but declaratory statutes are considered retrospective. In this decision it has been stated as to how the statutes have to be interpreted and as to whether the same is prospective or retrospective. In the decision in the case of Strawboard Mfg. Co. v. G. Mill Workers Union reported in AIR 1953 SC 95 the Supreme Court in respect of an amendment of a statute after applying Sec. 21 of the U. P. General Clauses Act 1904 which is in part materia with Sec. 21 of the Bombay General Clauses Act held that such amendment or modification of the statute cannot have retrospective operation. We do not think that all these decisions can have any bearing to the facts on hand. It is clear from the facts that the authority concerned by virtue of the power conferred upon it under Sec. 40-F introduced by the Bombay Primary Education (Gujarat Amendment) Act 1986 constituted the Tribunal as early as 23 In that Notification it has been wrongly mentioned as for the purpose of Chapter VII-A. It is an admitted fact that there cannot be any constitution of the Tribunal for the purpose of Chapter VII-A of the Act and the Tribunal can be constituted only for the purpose of Chapter VII-B. This patent mistake is sought to be corrected by the Notification dated 31/12/1987 by inserting the words Chapter VII-B in place of words Chapter VII-A occurred in the Notification dated 23/01/1987 Hence it cannot be construed that the said second Notification dated 31/12/1987 is either a modification or an amendment but it can be construed only as correction of a mistake that has crept in. Even without this correction any persons would have understood that the constitution of the Tribunals is for the purpose of Chapter VII-B. In Maxwell on Interpretation of Statutes it has been clearly said:
" ..Sometimes where the sense of the statute demands it or where there has been an obvious mistake In drafting the Court will be prepared to substitute any other word or the phrase for that which actually appears In the context of the Act".
This gives ample power to any authority which has committed the mistake to have it corrected and the learned Judge has also correctly held that the Notification dated 31/12/1987 is only curative in nature and as such it must have a retrospective effect. As correctly held by the learned single Judge even without this Notification the constitution of the Tribunal can be construed only for the purpose of Chapter VII-B and as such there cannot be any invalidity in the constitution of the Tribunal as and from 23/01/1987
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