# Anita Gandhi v. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others

- **Citation:** (2012) 2 ILRA 873
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-18
- **Case number:** Civil Misc. Writ Petition No. 20313 of 2008
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anita-gandhi-v-nideshak-rajya-shai-anu-aur-prakashan-parishad-lko-and-others-42191
- **Pages:** 8

## Headnote

Freedom Fighters & Ex-Serviceman) Act
1993-as amended on 19.08.2009-Section2(b)-inclusion of word "unmarried and
married grand daughter"-petitioner being
married
grand
daughter-selected
for
special B.T.C. Training course-cancellation
on ground-being married grand daughter
included for first time 2009-hence was not
eligible to claim benefit of dependant of
freedom fighters-held-misconceived-such
clarifactory
amendment
being
and
eurative as such it relates back from the
time
when
original
provision
was
introduced.

Held: Para 21

It is not a case where the old rule has
ceased to exist and a new rule is brought
into force. Evidently, the idea was only to
supply an omission and therefore the
amendment is only a clarificatory and
curative one and therefore the provision
will relate back to the time when the prior
provision was introduced.
Case law discussed:
AIR 1988 SC 740; (2001) 4 SCC 236; (2004) 8
SCC 1; {(2005) 7 SCC 396}; {(2009) 7 SCC
673}
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

2 All] Anita Gandhi V. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others
873

8. Even assuming that the decree
was ex-parte, the respondents could have
applied to the court for setting aside the
ex-parte decree. In view of the categorical
finding recorded by the appellate court
that the suit had been contested by the
respondents and the written statement had
also been filed, it cannot be said that the
suit was decreed ex-parte.

9. So far as the finding recorded by
the civil court that the possession of the
petitioner is valid and there was a receipt
in his favour, the learned standing counsel
has not been able to point out that any
challenge was given to the order of the
civil court dated 13.4.1998 and therefore,
in the circumstances the finding has
become final between the parties.

10. In this fact situation the
possession of the petitioner cannot be held
to be illegal, or unauthorized and the
order dated 5.2.2000 passed by the
Tehsildar,
Chandpur
District
Bijnor
holding the petitioner to be in illegal and
unauthorised possession over the land in
question deserves to be quashed.

11. For the aforesaid reasons the
writ petition is allowed and the order
dated 5.2.2000 passed by the Tehsildar,
Chandpur District Bijnor is accordingly
quashed.

12. There shall be no order as to
cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 20313 of 2008

Anita Gandhi

 ...Petitioner
Versus
Nideshak Rajya Shai Anu. Aur Pra. Lko.
And Others

 ...Respondents

Counsel for the Petitioner:
Sri P.K. Mishra

Counsel for the Respondent:
C.S.C.

Uttar Pradesh Public Service (Reservation
for Physically Handicapped, Dependence of
Freedom Fighters & Ex-Serviceman) Act
1993-as amended on 19.08.2009-Section2(b)-inclusion of word "unmarried and
married grand daughter"-petitioner being
married
grand
daughter-selected
for
special B.T.C. Training course-cancellation
on ground-being married grand daughter
included for first time 2009-hence was not
eligible to claim benefit of dependant of
freedom fighters-held-misconceived-such
clarifactory
amendment
being
and
eurative as such it relates back from the
time
when
original
provision
was
introduced.

Held: Para 21

It is not a case where the old rule has
ceased to exist and a new rule is brought
into force. Evidently, the idea was only to
supply an omission and therefore the
amendment is only a clarificatory and
curative one and therefore the provision
will relate back to the time when the prior
provision was introduced.
Case law discussed:
AIR 1988 SC 740; (2001) 4 SCC 236; (2004) 8
SCC 1; {(2005) 7 SCC 396}; {(2009) 7 SCC
673}
874 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Delivered by Hon'ble Sunil Hali, J.)

1. After completion of Special B.T.C.
Course petitioner had applied for the post of
Assistant Teacher under the Uttar Pradesh
Public Services (Reservation for Physically
Handicapped, Dependents of Freedom
Fighters and Ex-servicemen) Act, 1993 (in
short referred to as U.P. Act No. 4 of 1993).
She claims to be grand daughter of freedom
fighter of Nathu Ram Gandhi. There is no
dispute that grand father of the petitioner
was freedom fighter and on the basis of this
strength petitioner was appointed. However,
it was specifically stated that she was not
entitled to be appointed on the strength of
being a Freedom Fighters as she did not
come within the definition of dependents of
freedom fighters enshrined under Section
2(b) of the UP Act No. 4 of 1993.

2. The word 'dependent' is defined
under section 2(b) of the Act. According to
it a son or a daughter (married or
unmarried), or a son of son or an unmarried
daughter of a son, of a freedom fighter is a
dependent. Petitioner is a married grand
daughter of the freedom fighter. She does
not come under the category of dependents
as indicated as a result of which her
appointment was cancelled vide order dated
25.2.2008. It was stated in the impugned
order that petitioner was married grand
daughter of freedom fighter as such not
included in the definition of dependent of
freedom fighter defined under Section 2(b)
of the UP Act No. 4 of 1993. Recovery to
the tune of RS. 23931/- is also sought from
her. It is this order which is subject matter
of challenge before this Court.

3. Ground of challenge is that while
including the grand son and unmarried
grand
daughter
in
the
category
of
dependents the petitioner who was married
grand daughter of the deceased freedom
fighter was excluded even though she
constituted same homogeneous class with
dependents as defined under the Act and
while excluding married grand daughter
from the definition of dependents an
artificial classification has been made with
no intelligible differentia and has no nexus
with the object which is sought to be
achieved by the Act. The intent and purpose
of the Act of 1003 is to provide reservation
for dependents of freedom fighter.

4. During pendency of the writ
petition, State Government issued an
amendment in the Act of 1993 on
19.8.2009. The said amendment act came
into force on June 16, 2009. The following
amendment have been effected which is as
under:-

"In Section 2 of the UP Public
Services
(Reservation
for
Physically
Handicapped, Dependents of Freedom
Fighters and Ex-servicemen) Act 1993,
hereinafter referred to as the principal Act,
in clause (b), in sub clause (ii) for the words
"unmarried grand daughter(daughter of a
son)" the words "grand daughter (daughter
of a son) (married or unmarried)" shall be
substituted."

5. The aforesaid amendment is in the
nature of substitution by including the grand
daughter both married or unmarried instead
of unmarried grand daughter.

6. It is contended that the effect of
substitution is that the earlier provision is
repealed by substitution and thus the newly
amended provisions shall always be deemed
to have been in force from the date the Act
came into force. What is being contended
by the learned counsel for the petitioner that
in view of the changed circumstances
2 All] Anita Gandhi V. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others
875
petitioner had become eligible to be
considered in the reserved category of
freedom fighters as a result of this
substitution. The effect of substitution shall
always be retrospective as it tends to repeal
the earlier provision.

7. On the other hand stand of the
learned counsel for the respondents is that
this infact is not substitution but addition of
category in the definition of dependents. By
virtue of amendment and addition of
unmarried grant daughter married daughter
also has been included and it shall always
have prospective operation not retrospective
operation. Every act is prospective in nature
unless legislature intends to make it
prospective. It is clearly visible from the
Act itself that the present act does not make
any provision for retrospective operation.

8. Heard learned counsel for the
parties and perused the material on record.

9. Petitioner was selected on the
strength of reservation made in favour of
the Freedom fighter as being married grand
daughter of the freedom fighter. On the date
of her selection she was not eligible to be
considered against the said category as
being a married grand daughter who was
excluded from the definition of dependents
of freedom fighter. Her selection was
rightly cancelled by the respondents in the
year 2008.

10. Challenge has been thrown by the
petitioner to the Section 2(b) of the Act of
1993 on the ground that by excluding a
married grand daughter a class within the
class has been created. Both unmarried and
married grand daughter constitute one class
as such artificial classification made has no
intelligible differentia with the object sought
to be achieved. The Act of 1993 has been
amended during the pendency of the writ
petition as a result of which earlier
definition of unmarried grand daughter has
been replaced by unmarried and married
grand daughter of freedom fighter. This
substitution has the effect of repealing the
earlier provision. The effect of substitution
is that the earlier provision does not subsist
and the same is replaced by the new
provision. Consequence of this is that the
replaced rule shall always deemed to be in
force from the date the act has been made
applicable. Intention of the said substitution
is not to keep the old rule alive by replacing
the new rule.

11. The legislature seems to have
realized the need for substitution on
becoming aware of the anomalies and
absurdities to which the provision without
such substitution may lead to, even
resulting, at times, in repugnancy with the
main provision and virtually defeating the
intention
of
the
legislature.
The
modification of the provision, as carried out
by the substitution ordered, when found to
be needed and necessitated to implement
effectively the legislative intention and to
prevent a social mischief against which the
provision
is
directed,
a
purposive
construction is a must and the only
inevitable solution.

12. Hon'ble Apex Court in Bhagat
Ram Sharma Vs Union of India's case
reported in AIR 1988 SC 740, has pointed
out the distinction between 'repeal' and
'amendment'.
While
interpreting
the
meaning
of
the
words
'repeal'
and
'amendment', it was laid down in paragraphs
17 and 18 as follows:

"It is a matter of legislative practice to
provide while enacting an amending law,
that an existing provision shall be deleted
876 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and a new provision substituted. Such
deletion has the effect of repeal of the
existing provision. Such a law may also
provide for the introduction of a new
provision. There is no real distinction
between
repeal
and
amendment.
Amendment is, in fact, a wider term and it
includes abrogation or deletion of a
provision in an existing statute. If the
amendment of an existing law is small, the
Act professes to amend; if it is extensive, it
repeals a law and re-enacts it. An
amendment of substantive law is not
retrospective unless expressly laid down or
by
necessary
implication
inferred.
Therefore,
when
the
amendment
is
extensive, it repeals a law and re-enacts it. "

13. It was also held that when one
provision is deleted and a new provision is
substituted, it will have the effect of
repealing of the existing provision. If the
amendment herein is thus construed, there is
no deletion of the relevant provision. The
omission alone is supplied. In that view of
the matter, it cannot be said that there is a
repeal of the existing provision as known to
law.

14. The scope of the expression
'substituted' was considered by the Hon'ble
Apex Court in Ramkanali Colliery of
BCCL's case reported in (2001) 4 SCC
236. Therein also, it was held that when
there is a repeal and introduction of another
provision in its place, by a single exercise,
the expression substituted is used. In para 8
of the judgment the relevant principles have
been stated thus and reliance is placed upon
the decision of the Apex Court in Bhagat
Ram Sharma's case (AIR 1988 SC 740),
which is as under:

"What we are concerned with in the
present case is the effect of the expression
substituted; used in the context of deletion
of sub- sections of Section 14, as was
originally enacted.In Bhagat Ram Sharma
Vs Union of India (supra) this Court stated
that it is a matter of legislative practice to
provide while enacting an amending law,
that an existing provision shall be deleted
and a new provision substituted. If there is
both repeal and introduction of another
provision in place thereof by a single
exercise, the expression substituted; is used.
Such deletion has the effect of the repeal of
the existing provision and also provides for
introduction of a new provision. In our view
there is thus no real distinction between
repeal and amendment or substitution in
such cases. If that aspect is borne in mind,
we have to apply the usual principles of
finding out the rights of the parties flowing
from an amendment of a provision. If there
is a vested right and that right is to be taken
away, necessarily the law will have to be
retrospective in effect and if such a law
retrospectively takes away such a right, it
can no longer be contended that the right
should be enforced. However, that legal
position, in the present case, does not affect
the rights of the parties as such."

15. Therefore, when there is a
deletion, it has the effect of repealing of the
existing provision. The Apex Court held
that when, in such cases, there is an
introduction of a new provision, there is no
real
distinction
between
repeal
or
amendment or substitution.

16. In a later decision in Zile Singh
Vs State of Haryana and others reported
in (2004) 8 SCC 1, the principles relating to
retrospective operation of the Statutes and
the question whether any curative or
declaratory provision will be retrospective
or not, was considered. Paragraphs 13 and
2 All] Anita Gandhi V. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others
877
14 of the judgment laid down the
proposition thus:

"13. 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. But 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 praeteritis" -- a new law ought to
regulate what is to follow, nor the past. (See
Principles of Statutory Interpretation by
Justice G.P. Singh, 9th Edn. 2004 at p.438).
It is not necessary that an express provision
be made to make a statute retrospective and
the presumption against retrospectivity 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.
p. 440).

17. The test for considering the
retrospective nature of the provision was
laid down in para 15 as follows:

"Though retrospectivity is not to be
presumed and rather there is presumption
against retrospectivity, according to Craies
(Statute Law, 7th Edn.), it is open for the
legislature
to
enact
laws
having
retrospective
operation.
This
can
be
achieved by express enactment or by
necessary implication from the language
employed. If it is a necessary implication
from the language employed that the
legislature intended a particular section to
have a retrospective operation, the courts
will give it such an operation. In the
absence of a retrospective operation having
been expressly given, the courts may be
called upon to construe the provisions and
answer the question whether the legislature
had sufficiently expressed that intention
giving the statute retrospectivity. Four
factors are suggested as relevant: (i) general
scope and purview of the statute; (ii) the
remedy sought to be applied; (iii) the former
state of the law; and (iv) what it was the
legislature contemplated. (p.388) The rule
against retrospectivity does not extend to
protect from the effect of a repeal, a
privilege which did not amount to accrued
right. (p.392).

18. Therefore, in the absence of
express words, the true intention of the
legislature will have to be considered.
Finally, with respect to a Statute which is
passed for the purpose of supplying an
obvious omission in a former statute or to
explain a former statute, it was held thus in
para 16 which is as under:-

"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 in nature.

19. Finally, the legislative device of
substitution was also adverted to in
paragraphs 24 and 25 in the following
words:

"24. The substitution of one text for the
other pre-existing text is one of the known
and well-recognised practices employed in
legislative drafting. Substitution has to be
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
distinguished from supersession or a mere
repeal of an existing provision."

"25. Substitution of a provision results
in repeal of the earlier provision and its
replacement by the new provision (see
Principles of Statutory Interpretation, ibid.
p. 565). If any authority is needed in support
of the proposition, it is to be found in West
U.P. Sugar Mills Assn. v. State of U.P.
(2002) 2 SCC 645), State of Rajasthan v.
Mangilal Pindwal - (1996) 5 SCC 60,
Koteswar Vittal Kamath v. K. Rangappa
Baliga and Co. - (1969) 1 SCC 255, and
A.L.V.R.S.T. Veerappa Chettiar v. S.
Michael - AIR 1963 SC 933. In West U.P.
Sugar Mills Assn. case, a three-Judge
Bench of this Curt held that the State
Government by substituting the new rule in
place of the old one never intended to keep
alive the old rule. Having regard to the
totality of the circumstances centring
around the issue the Court held that the
substitution had the effect of just deleting
the old rule and making the new rule
operative. In Mangilal Pindwal case, this
Court upheld the legislative practice of an
amendment
by
substitution
being
incorporated in the text of a statute which
had ceased to exist and held that the
substitution would have the effect of
amending the operation of law during the
period in which it was in force. In Koteswar
case, a three-Judge Bench of this Court
emphasised
the
distinction
between
supersession of a rule and substitution of a
rule and held that the process of substitution
consists of two steps: first, the old rule is
made to case to exist and, next, the new rule
is brought into existence in its place.

20. It is thus clear that the word
'substitution' really results in repeal of an
earlier provision and enactment of a new
provision. Therefore, even though the
learned
counsel
for
the
respondents
submitted that this infact is not substitution
but addition of category in the definition of
dependents. By virtue of amendment and
addition of unmarried grand daughter
married daughter also has been included
and it shall always have prospective
operation not retrospective operation.

21. It is not a case where the old rule
has ceased to exist and a new rule is brought
into force. Evidently, the idea was only to
supply an omission and therefore the
amendment is only a clarificatory and
curative one and therefore the provision will
relate back to the time when the prior
provision was introduced.

22. Hon'ble Apex Court in Indian
Tobacco Association's case {(2005) 7
SCC 396} also has emphasised, the
meaning of the term substituted in para 15
which is as under:-

"The word "substitute" ordinarily
would mean "to put (one) in place of
another" or "to replace." In Black's Law
Dictionary, 5th Edn. at p. 1281, the word
substitute has been defined to mean to put in
the place of another person or thing, or to
exchange. In Collins English Dictionary, the
word substitute has been defined to mean to
serve or cause to serve in place of another
person or thing and to replace (an atom or
group in a molecule) with (another atom or
group); or a person or thing that serves in
place of another, such as a player in a game
who takes the place of an injured colleague.

23. On the facts of the said case, it
was held in para 16 that only an obvious
mistake was sought to be removed by the
amendment and there was no substitution.
Finally, the effect of supplying an omission
2 All] Anita Gandhi V. Nideshak Rajya Shai Anu. Aur Prakashan Parishad Lko. and others
879
was laid down thus in para 27 which is as
under:-

"There is another aspect of the matter
which may not be lost sight of. Where a
statute is passed for the purpose of
supplying an obvious omission in a former
statute, the subsequent statute relates back
to the time when the prior Act was passed.
(See Attorney General v. Pougett - (1816) 2
Price 381."

24. The decision in Zile Singh's case
(supra) was relied upon by the Apex Court
in Shakti Tubes Ltd.'s case {(2009) 7 SCC
673}, wherein the principles regarding
retrospective operation of statutes as
reiterated in paragraphs 15 and 16 of Zile
Singh's case {supra) was affirmed.

25. In an earlier decision of the Apex
Court in Channan Singh v. Jai Kaur (AIR
1970 SC 349), while considering the
retroactive nature of a provision which
explains a former one, it was held in para 5
as under:-

"It is well settled that if a statute is
curative or merely declares the previous law
retroactive operation would be more rightly
ascribed to it than the legislation which may
prejudicially
affect
past
rights
and
transactions. Therefore, the legal position
with regard to the retroactive nature of a
curative provision cannot be doubted."

26. The amendment which was
introduced in the year 2009, going by the
explanatory note therein, was to provide
some more benefits and to remove the
discrimination between daughter and grand
daugher it was decided to amend the said
Act to include the married grand daughter
of a freedom fighter in the definition of the
word dependent. Therefore, the object of
the
amendment
was
to
benefit
the
employees by liberalising the scheme. It is a
welfare
measure
also.
Therefore,
an
interpretation which promotes the object
will have to be attempted.

27.

Learned
counsel
for
the
respondents submitted that retrospective
effect will not normally be granted to a
provision which affects the vested rights.
The provision can therefore only be
prospective, contended the learned Standing
Counsel.

28. The legal position in that regard
admits of no doubt. Normally prospective
operative alone can be given to a statute
which affects a vested right, as held by the
Apex Court in the various decisions. Every
statute is prima facie prospective unless
expressly or by necessary implication, made
to have a retrospective operation. To find
out whether the provision will have effect or
relation back to the date on which it was
introduced, it will have to be assessed
whether it is an attempt to supply an
omission and it is curative. Herein, it is not
a case where there is a real substitution of
the provision, as noted already. A mischief
was sought to be remedied by the present
amendment introduced in the year 2009.
Therefore, clearly it is a case where an
obvious omission of the former statute is
sought to be supplied which is not a case of
substitution of a provision. As such, it is not
the introduction of a new provision after
repeal of an existing provision.

29. In that view of the matter, it can
only be the interpretation that the present
amendment will be retrospective in nature.

30. In view of above, the writ petition
is allowed. The order cancelling the
petitioner's candidature in the reserved
880 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
category of dependents of freedom fighter is
set aside. The respondents are directed to
reinstate the petitioner from the date she has
been terminated and this shall be construed
to be continuity of her service from the date
her
services
have
been
terminated.
However, she will not be entitled to
backwages. This may be done, if possible,
within a period of three months from the
date certified copy is served on them.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2012

BEFORE
THE HON'BLE RAMESH SINHA, J.

Criminal Misc. 482 Cr.P.C. Application No.
20760 of 2012.

Pawan Kumar kushwaha & others

 ...Applicants
Versus
State of U.P. & another ...Respondents

Counsel for the Applicants:
Sri Anuj Bajpai

Counsel for the Respondents:
Sri Ram Krishna Dubey
Sri A.P. Tewari
A.G.A.

Code of Criminal Procedure-Section 482quashing of proceedings-on ground once
investigation
conducted-final
report
submitted-without permission of courtre-investigation not permissible-earlier
investigate
confined
in
respect
of
allegations under 498-A and 3⁄4 D.P. Act,
subsequent F.I.R. Allegation of offenceunder Section 307, 326, 504 I.P.C.
Conducted-Magistrate
confined
its
consideration with scope of Section 173
(8)
Cr.P.C.-amounts
to
further
investigation on basis of supplementary
chargesheet-due application of mind
taking
into
consideration
of
facts
collected during further investigation,
Magistrate
being
original
court
not
precluded to do so-proceedings can not
be quashed

Held: Para 8

However, if the Magistrate was passing
an
order
on
the
basis
of
the
supplementary charge-sheet after due
application of his mind to the facts
collected during further investigation
and was asking the accused to appear in
respect of other offences also, it could be
treated as another order of summoning
and that the magistrate in my considered
view,
being
the
court
of
original
jurisdiction
in
that
behalf,
is
not
precluded to do.
Case law discussed:
2009 (65) ACC 962; 2008 (62) ACC 351;
(2004) 5 SCC 347; 2002 (1) SCC 714

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Anuj Bajpai, learned
counsel for the applicants, Sri Ram Krishna
Dubey, learned counsel for opposite party
no.2 and learned A.G.A. for the State.

2. By means of application under
Section 482 Cr.P.C., the applicants have
prayed
for
quashing
of
the
entire
proceedings of Case No. 1172 of 2011,
State Versus Gullu Prasad and others
arising out of Case Crime No. 124 of 2011
under Section 498A, I.P.C. and 3/4 , D.P.
Act,
police
station
Kareli,
District
Allahabad
pending
in
the
court
of
Additional Chief Judicial Magistrate, Court
No.5, Allahabad.

3. Brief facts of the present case are
that the opposite party no.2, Smt. Vandana
Kushwaha w/o Pawan Kumar Kushwaha,
applicant no.1 and daughter of Lalta Prasad
Kushwaha had filed an application before
the D.I.G for registration of F.I.R. against