Full Judgment Text
®
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 6 DAY OF APRIL 2017
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
W.P.No.5353/2016 (GM-RES)
C/W
W.P.No.14186/2016, W.P.Nos.19470-471/2016,
W.P.No.32454/2016 AND W.P.No.40052/2016
(GM-RES)
W.P.No.5353/2016
BETWEEN:
MR. K.C. SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED ABOUT 50 YEARS,
RESIDING AT KURUBOOR,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DISTRICT
PIN CODE-563125.
... PETITIONER
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VETERINARY AND FISHERIES
DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
2
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY,
POST BOX NO.6, NANDHINI NAGAR
BIDAR-585401.
4. SRI K S ASHOK KUMAR
S/O LATE DR.K V SADASHIVA RAO
AGED ABOUT 53 YEARS
R/A NO.83, CQA LAYOUT,
SHAKARANAGAR, BANGALORE 560092
5. SRI MALLIKARJUN BIRADAR
S/O SAGANBASAPPA
R/AT NO.9-8-476, KALIDASANAGAR,
BVB COLLEGE ROAD-585403
6. SRI NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
R/AT NO.17-3-243/1,
'PARWATHI NIWAS',
GANDHINAGAR COLONY,
MAILOOR ROAD, BIDAR 585403
... RESPONDENTS
(BY SRI. R B SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. UDAYA HOLLA, SR.COUNSEL FOR
SRI. BRIJESH PATIL, ADV. FOR IMPLEADING
APPLICANT FOR R4
SRI. KRISHNA, S.DIXIT, ADV. FOR R3
SRI. Y R SADASIVA REDDY, SR.COUNSEL FOR
SRI. V SANJAY KRISHNA, ADV. FOR IMPLEADING FOR R6
SRI. NATARAJA BALLAL, ADV. FOR IMPLEADING
APPLICANT ON I.A.No.5/16
SRI. R RAMESH, ADV. FOR IMPLEADING APPLICANT ON
I.A.No.5/16)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD:21.01.2016 (VIDE ANNEXURE-D) PASSED BY THE
RESPONDENT, THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
CONSTITUTION OF INDIA.
3
W.P.No.14186/2016
BETWEEN:
MR. RITHESH SALIAYAN
S/O SADANAND SRIYAN
AGED ABOUT 27 YEARS
RESIDING AT SALIAN NIVAS
SASHITHLU, MANGALORE TALUK,
DAKSHINA KANNADA DISTRICT
PIN CODE - 574146
... PETITIONER
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA,
DR AMBEDKAR ROAD,
VIKASA SOUDHA
BANGALORE - 560001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE - 560001
3. THE REGISTRAR
KARATAKA VETERINARY
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY,
BIDAR - 585401
... RESPONDENTS
(BY SRI. R.B. SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. KRISHNA S DIXIT, ADV. FOR R3)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD:21.01.2016 (VIDE ANNEXURE-D) PASSED BY THE
RESPONDENT THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
4
CONSTITUTION OF INDIA AND IS IN VIOLATIONS OF NATURAL
JUSTICE AND THE IMPUGNED ORDER IS WITHOUT
JURISDICTION.
W.P.Nos.19470-19471/2016
BETWEEN:
1. MALLIKARJUN BIRADAR
S/O SANGANBASAPPA
AGED ABOUT 54 YEARS,
NO.9-8-476, KALIDASANAGAR
BVB COLLEGE ROAD 585 403
2. NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
NO.17-3-243/1, " PARWATHI NIWAS
GANDHINAGAR COLONY,
MAILOOR ROAD
BIDAR 585403.
... PETITIONERS
(BY SRI.UDAYA HOLLA, SR.COUNSEL FOR
SRI. BRIJESH PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES SCIENCES
UNIVERSITY, POST BOX NO.6
NANDHINI NAGAR
BIDAR-585401.
5
4. K.S. ASHOK KUMAR
S/O LATE DR. K.V. SADASHIVA RAO
AGED ABOUT 53 YEARS,
NO.83, CQA LAYOUT,
SAHAKARANAGAR,
BANGALORE.
5. K.C. SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED 50 YEARS,
RESIDING AT KURUBOOR,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DISTRICT,
PIN CODE-563125.
CHICKBALLAPUR.
... RESPONDENTS
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV. FOR C/R5
SRI. Y R SADASIVAREDDY, SR.COUNSEL FOR
SRI. V SANJAY KRISHNA, ADV. FOR C/R4
SRI. R.B. SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. KRISHNA S DIXIT, ADV. FOR R3)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE IMPUGNED GOVT. ORDER/NOTIFICATION
DT.13.1.2016 VIDE ANNX-D NOMINATING R-4 & 5 AS MEMBERS
OF BOARD OF MANAGEMENT, KARNATAKA VETERINARY,
ANIMAL AND FISHERIES SCIENCES, BIDAR IN PLACE AND
CATEGORY UNDER WHICH PETITIONERS WERE NOMINATED
EARLIER AS PER ANNX-A AND ETC.
W.P.No.32454 OF 2016
BETWEEN:
SRI K S ASHOK KUMAR
S/O LATE DR. K. V. SADASHIVA RAO,
AGED ABOUT 53 YEARS
RESIDING AT NO 83,
CQAL LAYOUT
SAHARAKARANAGAR
BENGALURU - 560092
... PETITIONER
(BY SRI. Y R SADASIVA REDDY, SR.COUNSEL FOR
SRI. SANJAY KRISHNA V, ADV.)
6
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA
DR AMBEDKAR ROAD,
VIKASA SOUDHA
BENGALURU - 560001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA
DR. AMBEDKAR ROAD,
VIKASA SOUDHA
BENGALURU - 560001
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY ,
P B NO 6, NANDHINI NAGAR,
BIDAR - 585401
4. SRI K C SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED ABOUT 50 YEARS
RESIDING AT KURUBOOR,
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563125
5. SRI MALLIKARUJUN BIRADAR
S/O SANGANBASAPPA,
AGED ABOUT 54 YEARS
RESIDING AT NO 9-8-476
KALIDASANAGAR
BVB COLLEGE ROAD,
BIDAR - 585403
6. SRI NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
NO 17-3-243/1, PARWATHI NIVAS,
GANDHINAGAR COLONY
MAILOOR ROAD,
BIDAR - 585403
... RESPONDENTS
(BY SRI.R B SATYANARAYANA SINGH, AGA. FOR R1-3
R4 TO 6 ARE SERVED)
7
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD.21.01.2016 VIDE ANNEX-D PASSED BY THE
RESPONDENT, THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
CONSTITUTION OF INDIA.
W.P.No.40052/ 2016
BETWEEN:
SRI SHRIKANT KONAPUR
S/O GUNDAPPA
AGED ABOUT 61 YEARS
R/AT DR.S.G.KONAPUR PLOT NO.16,
ST
AKSHAY COLONY 1 PHASE
GOKUL ROAD
HUBLI-580 030
... PETITIONER
(BY SRI. SHARADKUMAR S, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA
DR.AMBEDKAR ROAD
VIKASA SOUDHA
BANGALORE-560 001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA
DR.AMBEDKAR ROAD
VIKASA SOUDHA
BANGALORE-560 001
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY
BIDAR-585 401
... RESPONDENTS
(BY SRI. R B SATYANARAYANA SINGH, AGA. FOR R1 & 2)
8
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DATED 21.01.2016 AT ANNEX-E PASSED BY R-2
THEREBY DECLARING THAT AND THE SAME IS HIT BY
PROVISIONS OF THE ARTICLE 14 OF THE CONSTITUTION OF
INDIA, WITHOUT JURISDICTION AND SAME IS IN VIOLATIONS
OF NATURAL JUSTICE.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS ON 28.03.2017, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
O R D E R
The petitioners in W.P.No.5353/2016 (Sri
K.C.Shankaregowda), W.P.No.14186/2016 (Sri Rithesh
Saliyan), W.P.No.32454/2016 (Sri K.S.Ashok Kumar)
and W.P.No.40052/2016 (Sri Srikant Konapur) are the
members nominated to the Board of Management of
Karnataka Veterinary Animal and Fisheries Sciences
University, Bidar (‘KVAFSU’ for short) by the
Government, through the notification dated 13.01.2016
issued by the respondent No.1. The said notification
was withheld/kept in abeyance by the respondent No.1
through the subsequent notification dated 21.01.2016.
The said petitioners therefore claiming to be aggrieved
of being denied the benefit of the nomination dated
9
13.01.2016 in view of the subsequent notification dated
21.01.2016, have assailed the same in the said writ
petitions.
2. The petitioners in W.P.Nos.19470-471/2016
(Sri Mallikarjun Biradar and Sri Nagabhushan
Kamthane) who were nominated by an earlier
notification dated 26.06.2014 for a period of three years
with effect from 05.07.2014 by the Chancellor under the
provision as contained at that point in time claim to be
aggrieved by the notification dated 13.01.2016
whereunder Sri K.S.Ashok Kumar and Sri
K.C.Shankaregowda the petitioners in
W.P.No.32454/2016 and W.P.No.5353/2016 are
nominated in their category whereby the right according
to them to complete the period of three years for which
they are nominated is interrupted. In that light they
seek to sustain the notification dated 21.01.2016
whereunder the notification dated 13.01.2016 is
withheld/kept in abeyance as that would facilitate them
to complete the period of three years for which they
claim to have been nominated.
10
3. The brief facts are that the KVAFSU was
constituted under the Karnataka Act No.9/2004 (‘the
Act’ for short). Among other provisions contained in the
Act, Section 27 provides for the constitution of the
Board of Management (‘the Board’ for short). The Board
is to contain (A) Ex-officio members and (B) Other
members. The nomination in issue in these petitions
relate to the nominations of ‘Other members’ as
contained in Section 27(2)(b)(ii),(iii) and (iv) of the Act.
At the point when the petitioners in W.P.No.19470-
471/2016 were nominated under the notification dated
26.06.2014 to the category of Progressive Livestock
Farmer and Representative of Industries connected with
Animal Husbandry or Fisheries and also the category of
Progressive Fishermen, they were to be nominated by
the Chancellor which accordingly was done.
4. By the amendment to the Act through
Karnataka Act No.37/2015 which received the assent of
the Governor on 05.09.2015, the nominations which
were to be made to the Board from the ‘(B) Other
11
Members’ category, more particularly 27(2)(B)(i)(ii)(iii)
and (iv) which are relevant herein, the mode of
nomination was changed to be made by the Government
instead of by the Chancellor as it provided earlier. It is
in that view the Government exercising the power of
nomination as substituted by Act No.37/2015 has
issued the notification dated 13.01.2016 which has
interrupted the period for which the nomination was
made by the Chancellor under the provision which
existed prior to the coming into force of the Act
No.37/2015. It is in that view the questions as raised
have arisen in these writ petitions as per the brief
reference that has been made above.
5. I have heard Sri Udaya Holla and
Sri Jayakumar S.Patil, learned senior counsel along
with Sri Brijesh Patil for the petitioners in
W.P.Nos.19470-471/2016, Sri V.Lakshminarayan,
learned senior counsel along with Ms.Shilpa Rani for
the petitioners in W.P.Nos.5353/2016, 14186/2016.
Sri Y.R.Sadashiva Reddy, learned senior counsel along
with Sri V.Sanjay Krishna for the petitioner in
12
W.P.No.32454/2016, Sri Sharad Kumar S, learned
counsel for the petitioner in W.P.No.40052/2016. The
said learned senior counsel have also appeared for the
respective parties as respondents in the connected
petitions. Sri Krishna Dixit, learned counsel and Sri
R.B.Satyanarayana Singh, learned Government
Advocate were also heard on behalf of the official
respondents in all the above petitions.
6. Though elaborate arguments have been
advanced by the learned senior counsel and the other
learned counsel on either side, the precise issue for
consideration is as to whether the amendment made to
Section 27 of the Act No.9 of 2004 through the Act
No.37/2015 would relate back to the date of the original
Act by substitution and if so, whether the nomination
made by the Chancellor to the category of ‘Other
Members’ through the notification dated 26.06.2014
would become redundant on the Act being amended or
whether the benefit of the nomination made for three
years would still be available even for the categories
13
where the mode of nomination is changed with the
power being given to the Government by taking it away
from the Chancellor or as to whether such power would
be prospective without affecting the nominations which
had been made earlier. Further, whether the
nomination as made can be modified at any stage prior
to the expiry of three years is also the issue for
consideration.
7. The narration of the issues involved, sequence
of events that have occurred and the contentions as
urged will disclose that there is no controversy on the
factual aspects but what requires determination is the
legal aspect of the matter relating to the effect of the
substitution of the provision relating to nomination and
the effect of the earlier as well as the subsequent
nominations made, in the background of the instant
facts. The learned senior counsel on either side have
referred to large number of decisions rendered both by
this Court as also the Hon'ble Supreme Court to drive
home their respective contentions. Hence, I find that it
14
will be appropriate to take note of the same at the
outset as it would in such event place the matter in
perspective.
8. Sri Udaya Holla and Sri Jayakumar S.Patil, the
learned senior counsel in support of their contentions
have relied on the following decisions:
(i) The case of M.Mahadevaiah -vs- The State of
Karnataka, Department of Co-Operation and others
(ILR 2013 Kar 5019 ) , wherein a learned Judge of this
Court has considered the effect of amendment made to
Section 42 of APMC Act reducing the term of office of
the Chairman and Vice-Chairman to twenty months
whereby elections were sought to be held by curtailing
the term which would have otherwise been available.
The learned Judge has taken note of the decisions of the
Hon'ble Supreme Court and the law relating to
interpretation, wherein it is stated that a statute which
effects substantive right is presumed to be prospective
in operation, unless made retrospective either expressly
or by necessary intendment. Every litigant has a vested
15
right in substantive law but no such right exists in
procedural law. A statute which not only changes the
procedure but also creates new right and liabilities shall
be construed to be prospective in operation, unless
otherwise provided either expressly or by necessary
implication. The golden rule noticed is, 'the essential
idea of legal system is that current law should govern
current activities'. In that background, since under the
said Act the term of Chairman and Vice-Chairman was
available up to five years and there was nothing in the
amendment to make it retrospective and curtail the
period, it was held, though the word 'substituted' is
used while making the amendment, the said expression
cannot by itself ascribe retrospective operation to the
amendment so as to effect the tenure of the duly elected
Chairman and Vice-Chairman whose tenure under the
un-amended Act had not yet expired and there is no
intention on the part of the legislature to curtail,
regulate or restrict the tenure.
(ii) The case of Bhagat Ram Sharma -vs- Union
of India and others [1988(Supp) SCC 30] wherein the
16
Hon'ble Supreme Court on considering the purport of
the term 'amendment' has held it to be a wider term
which includes abrogation or deletion of a provision in
an existing statute. It is stated that amendment of
substantive law is not retrospective unless expressly
laid down or by necessary implication inferred. In that
case it was held that the mere use of the word
'substitution' does not imply that Regulation 8(3) must
relate back to the appointed day. In the case of
executive instructions, the bare issue of a fresh
instrument on the same subject would replace a
previous instrument. But in the case of legislative
enactment, there would be no repeal of an existing law
unless the substituting Act or provision has been validly
enacted with all the required formalities. .
(iii) The case of Maharaja Chinthamani Saran
Nath Shahdeo -vs- State of Bihar and others [(1999)
8 SCC 16] wherein the Hon'ble Supreme Court after
referring to its earlier decisions has reiterated the
position that as per the golden rule of interpretation, the
mere use of the word ‘substituted’ does not mean it is
17
retrospective unless the clear intention of retrospective
effect could be gathered.
(iv) The case of Prof. S.N.Hegde and another -vs-
The Lokayuktha, Bangalore others (ILR 2004 Kar
3892) wherein a learned Judge of this Court while
considering the effect of the amendment has held that
purposive construction be adopted when the material
words are capable of bearing two or more constructions.
In such situation, the Courts must adopt that
construction which will suppress the mischief and
advance the remedy.
(Sri Sadashiva Reddy, learned senior counsel has
also relied on the same decision in support of the
counter argument)
(v) The case of Shyam Sunder and others -vs-
Ram Kumar and another [(2001) 8 SCC 24] wherein
the Hon'ble Supreme Court took note of the argument
that the amending Act being retrospective had
extinguished the right of the plaintiff which existed on
the date of filing the suit. In that regard after referring
18
to its earlier decisions and the Rules of interpretation
has held that the legal position is that when a repeal of
an enactment is followed by a fresh legislation, such
legislation does not affect the substantive rights of the
parties on the date of the suit or adjudication of the suit
unless such a legislation is retrospective and a Court of
appeal cannot take into consideration a new law
brought into existence after the judgment appealed from
has been rendered because the rights of the parties in
an appeal are determined under the law in force on the
date of suit. However, the position of law would be
different in the matters which relate to procedural law
but so far as substantive rights of parties are
concerned, they remain unaffected by the amendment
in the enactment. Hence it is held, where the repeal of
provisions of an enactment is followed by fresh
legislation by an amending Act, such legislation is
prospective in operation and does not affect the
substantive or vested rights of the parties unless made
retrospective either expressly or by necessary
intendment.
19
9. On the other hand Sri V.Lakshminarayana,
learned senior counsel in support of the contrary
contention has relied on the following decisions:
(i) The case of PTC India Limited -vs- Central
Electricity Regulatory Commission [(2010) 4 SCC
603] wherein the Hon'ble Supreme Court while
examining the jurisdiction of the Appellate Tribunal
constituted under the amending Act had taken note
that Section 121 of the original Act stood substituted by
Amendment Act 57 of 2003. Hence, it was held that the
substitution of a provision results in repeal of the earlier
provision and its replacement by new provision.
Substitution is a combination of repeal and fresh
enactment.
(ii) The case of State of Tamil Nadu and others -
vs- K. Shyam Sunder and others [(2011) 8 SCC 737]
wherein while considering change in the pattern of
education which was brought by the Amendment Act,
the Hon'ble Supreme Court referred to its earlier
decision wherein it was held that when the statute is
20
amended, the process of substitution of statutory
provisions consists that the old rule is made to cease to
exist and the new rule is brought into existence in its
place. In other words, the substitution of a provision
results in repeal of the earlier provision and its
replacement by the new provision. Whenever an Act is
repealed, it must be considered as if it never existed.
(iii) The case of State of Punjab -vs- Mohar Singh
Pratap Singh (AIR 1955 SC 84) wherein it is held,
whenever there is a repeal of an enactment, the
consequences laid down in Section 6 of the General
Clauses Act will follow unless the section itself says, a
different intention appears. In the case of simple repeal
there is scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh
legislation on the same subject, the provisions of the
new Act will have to be looked into for the purpose of
determining whether it indicates a different intention.
The line of enquiry would be, not whether the new Act
expressly keeps alive old rights and liabilities, but
21
whether it manifests an intention to destroy them. The
compatibility or otherwise of the provisions would have
to be ascertained from a consideration of all the relevant
provisions of the new law and the mere absence of a
saving clause is by itself not material.
(iv) The case of Fibre Boards Private Limited,
Bangalore -vs- Commissioner of Income Tax,
Bangalore [(2015) 10 SCC 333] wherein it is held that
the repeal can be by express omission. An implied
repeal of a statute would fall within the expression
'repeal' in Section 6 of the General Clauses Act. Repeals
may take any form and so long as a statute or part of it
is obliterated, such obliteration would be covered by the
expression 'repeal' in Section 6 of the General Clauses
Act.
(v) The case of Jharkhand State Elecricity Board
and others -vs- Laxmi Business and Cement Company
Private Limited and another [(2014) 5 SCC 236]
wherein the earlier decision was relied to hold that
whenever there is a repeal of an enactment, the
consequence laid down in Section 6 of the General
22
Clauses Act will follow unless a different intention
appears. When the repeal is followed by fresh legislation
on the same subject, the provisions of the new Act will
have to be looked into for the purpose of determining
whether they indicate a different intention.
(vi) The case of Cheviti Venkanna Yadav -vs-
State of Telangana and others [(2017) 1 SCC 283]
wherein the Hon'ble Supreme Court was considering the
Telangana(Agricultural Produce and Livestock) Markets
Act amendment where under the term of the Chairman
and Vice Chairman was also curtailed. The amendment
itself was clear that the Amendment Act is deemed to
have come into force with effect from 01-01-2012,
though it received the assent of the Governor on
13.04.2015. It is held that the members were not
elected and they were not appointed by any kind of
selection. They were chosen by the Government from
certain categories. The status of the members has been
changed by amending the word 'nominated'. Thus the
legislature has retrospectively changed the meaning.
23
Hence, by virtue of amendment, the term which has
been reduced for the nominated member stands on a
different footing. An earlier decision is referred wherein
it is held that if an appointment has been made initially
by nomination, there can be no violation of any
provision of the Constitution in case the legislature
authorised the State Government to terminate such
appointment at its pleasure and to nominate new
members in their place. It is because the nominated
members do not have the will or authority of any
residents of the Municipal Board behind them as may
be present in the case of an elected member. Such
provision neither offends any article of the Constitution
nor is the same against any public policy or democratic
norms enshrined in the Constitution.
10. From the composite and cumulative perusal of
the above decisions, what can be gathered is, merely
because the word 'substituted' is used, while amending
a provision in the enactment it cannot always be
concluded that the amendment is with retrospective
effect and would erase all accrued rights. When there is
24
a repeal and if the substituted enactment does not
clarify the position relating the rights, Section 6 of the
General Clauses Act will regulate the issue. If a
provision in the enactment is amended and if the
legislature does not specify that it is with retrospective
effect and if such amendment is not just on the
procedural aspect, but also affects the substantive right
which accrued under the provision which existed prior
to the amendment, such substantive accrued right will
be saved and continue to exist unless the operation of
the amended provision is expressly made retrospective.
The case of Cheviti Venkanna Yadav (supra) was a
case of such nature where the legislature had expressly
given retrospective effect and curtailed the period. If it
is not expressed in the amended provision but if the
amended provision tends to take away the vested right,
the Court will have to hold that the amendment is with
prospective effect. The line of enquiry in that regard is
held to be, not whether the new Act expressly keeps
alive the old rights and liabilities, but there is a
manifest intention in the amended provision to destroy
25
the right which existed under the old provision.
Therefore, in the instant facts also, whether the right if
any had vested under the un-amended substantive
provision and whether there was an intention to destroy
it, is to be examined so as to arrive at the conclusion
since the mere use of the word 'substituted' in the
amended provision in the instant case will not
determine the issue.
11. To enable an appropriate consideration of the
matter and for the purpose of clarity, the un-amended
and the amended Section 27 of the KVAFSU Act is
reproduced as hereunder,
“27. Constitution of the Board of
Management .- (1) The Chancellor shall, as soon as
may, be after the first Vice-Chancellor is appointed
under the second proviso to subsection (4) of section
13, take action to constitute the Board of
management.
(2) The Board shall consist of the following
members, namely:-
26
(A) EX-OFFICIO MEMBERS
(i) XXXXX
(ii) XXXXX
(iii) XXXXX
(iv) XXXXX
(v) XXXXX
(vi) XXXXX
(vii) XXXXX
(B) OTHER MEMBERS
(i) One Scientist having special knowledge or
practical experience in research; teaching and
extension education in the field of Veterinary and
Animal and Fishery Sciences, nominated by the
Chancellor;
(ii) One Progressive livestock farmer
nominated by the Chancellor;
(iii) One Progressive fisherman nominated by
the Chancellor;
(iv) One representative of the industries
connected with animal husbandry or fisheries
nominated by the Chancellor;
(v) One woman social worker nominated by
the Chancellor;
(vi) One educationist nominated by the
Chancellor;
(vii) One nominee of the Indian Council of
Agricultural Research;
(viii) President of the Karnataka Veterinary
Council;
27
Provided that no person who is in the
employment of the State Government or the
University shall be nominated under the category of
"other Members".
(3) The term of office of the members of the Board
other than Ex-officio members shall be three years;
Provided that the term of office of any member
nominated to fill a casual vacancy shall be the
residuary term of his predecessor:
Provided further that no person shall be
nominated for a second term.
(4) Six members of the Board shall form the
quorum for a meeting of the Board.
(5) The members of the Board shall not be entitled
to receive any remuneration from the University
except such daily and travelling allowances as may
be prescribed.
(6) Every person who ceases to be a member of the
Board by reason of the operation of this Act shall
cease to be a member of the other authorities of the
University of which he may happen to be a member
by virtue of his membership of the Board.
(7) Any member nominated to the Board shall be
liable to be removed from such membership at any
time by the Chancellor on the ground of
misbehavior, misconduct or otherwise after holding
an enquiry.
(8) XXXXX
(9) XXXXX
(emphasis supplied)
28
Amended Section 27(B):
(B) OTHER MEMBERS
(i) One Scientist having special knowledge or
practical experience in research; teaching and
extension education in the field of Veterinary and
Animal and Fishery Sciences, nominated by the
Government;
(ii) One Progressive indigenous livestock
farmer nominated by the Government;
(iii) One Progressive fisherman nominated by
the Government;
(iv) One representative of the industries
connected with animal husbandry or fisheries
nominated by the Government;
(v) One woman rural social worker nominated
by the Chancellor;
(vi) One rural educationist nominated by the
Chancellor;
(vii) One nominee of the Indian Council of
Agricultural Research, nominated by the Director
General, ICAR, New Delhi;
(viii) The President of the Karnataka
Veterinary Council;
(ix) One director of any other University nominated
by the Vice-Chancellor;
(x) One dean of any other University nominated
by the Vice-Chancellor.
(emphasis supplied)
29
12. From the amendment as made, it is seen that
the category of the nominees in (i) to (iv) of 'Other
members' remains to be the same but only the
nominating authority is substituted with 'Government'
instead of 'Chancellor' as it existed earlier which is clear
from the words for which emphasis is supplied. Sub-
section (3) which existed in the original Section 27 and
continues to exist after the amendment also, which
provides that the term of office of the members of the
Board other than Ex-officio members shall be three
years. This would mean that the 'Other Members' who
were nominated by the Chancellor were assured the
term of three years and the curtailment at pleasure is
not indicated. As such the right has vested with such of
those members who were nominated, to hold office as
nominated members for a period of three years from the
date of nomination unless the contingencies for removal
as provided under Sub-section (7) to Section 27 had
arisen and the procedure contemplated was followed.
30
13. The notification dated 26.06.2014 under
which the subject nomination was initially made is also
for a period of three years by specifying the starting date
for computation of the period of three years as
05.07.2014. Hence, in the background of the legal
position analysed above if the instant facts are taken
note, a right has vested in the persons nominated under
the notification dated 26.06.2014 under the substantive
provision contained in the Act to remain on the Board
for a period of three years. The amendment as has been
made is only to substitute the name of the nominating
authority from ‘Chancellor’ to that of the ‘Government’,
which right is to be exercised prospectively when the
nominations are to be made to the vacant positions in
the Board of Management from the 'Other Members'
category. Neither the status nor the qualification of the
members to be nominated has been changed by the
amendment so as to effect the existing right.
14. Sri. V. Lakshminarayana, learned senior
counsel, despite the said position, in order to contend
that a nominated member will hold office only during
31
the pleasure of the nominating authority and cannot
claim to continue in office when the pleasure is
withdrawn, has relied on the decision of this Court in
the case of T. Krishnappa -vs- State of Karnataka
and others [(2000) 7 Kant LJ 132] . In that light, it is
contended that by the notification dated 13.01.2016 the
nomination of different persons has been made in
substitution of the earlier nominees, by which the
pleasure exercised earlier is withdrawn. In that view, it
is contended that the subsequent notification/order
dated 21.01.2016 withholding the notification dated
13.01.2016 is not sustainable. Though in that regard
the Rules of Business and decisions are cited to contend
that the nomination made by the Government cannot be
kept in abeyance by a Secretary to the Government, the
detailed consideration in that regard will be necessary
only if the notification dated 13.01.2016 is held
sustainable to supersede the notification dated
26.06.2014.
15. In this backdrop, I have carefully examined
the contentions in the light of the decision in the case of
32
T.Krishnappa (supra). In that case, the right as
claimed by the nominated member under Section 10 of
the Karnataka Agricultural Produce Marketing
(Regulation) Act, 1966 for the benefit of the extended
period of one year arose for consideration therein. This
Court in that context took note of the contents of
Section 10(4)(a) of the Act which provides for
nomination of the members of the first Committee for a
period of two years from the date of notification under
Sub-section (1) subject to 'pleasure' of the State
Government and in that context held that the extended
period of one year also under the proviso should be
considered to be at the pleasure of the Government. The
entire consideration therein was in the context of
'pleasure nominees'. The provision considered in that
case reads thus,
10. Constitution of the first market
“
committee:- (4)(a) Save as otherwise provided in
this Act [but subject to the pleasure of the State
Government] the members of the first market
committee shall hold office for a period of
two years from the date of notification under
sub-section(1):
33
Provided that the State Government may
by notification extend the term of office of the
members by such period or periods not exceeding
[Two years] in the aggregates.”
(emphasis supplied)
16. On the other hand, in the instant case, though
the nomination to be made prior to amendment was by
the Chancellor and presently it is by the Government,
the period for which the nomination is made is for three
years and not at the pleasure of either of the nominating
authority. The removal of a nominated member, as
noticed is only in the manner as provided under
Sub-section (7) to Section 27 of the KVAFSU Act on the
ground of misbehavior, misconduct or otherwise after
holding an enquiry. Despite no such contingency having
arisen and the period of three years under the
notification dated 26.06.2014 not having come to an
end, another notification dated 13.01.2016 nominating
persons to the same category will not be in terms of the
provisions and scheme of the Act. Through the
amendment in question the change made is only about
34
the authority to nominate and the scheme as such has
remained the same. In such circumstance, when the
notification dated 13.01.2016 is found to be not in
accordance with law, the decision to keep it in abeyance
through the notification/order dated 21.01.2016 ca
nnot be found fault with nor is there need to interfere
with the same as it would be open for the official
respondents themselves to recall the same at the
appropriate stage after the period of three years as
required under the notification dated 26.06.2014 is
spent and thereafter to bring the nomination under the
notification dated 13.01.2016 into effect at that stage as
a fresh nomination after the earlier period has elapsed.
While computing the period of three years, the period, if
any denied to the nominees under the notification dated
26.06.2014 due to the interruption caused in view of
the present action shall also be noted and benefit of the
lost period be provided to them to remain on the Board
for the entire three years term. Keeping in view the
interim orders that were passed during the pendency of
these petitions, in order to save the actions taken it is
35
clarified that if the nominees under the notification
dated 13.01.2016 have participated in any meetings of
the Board, such decisions taken shall however remain
valid for administration purposes.
17. In the result, the following:
ORDER
i) The petitions in W.P.Nos.19470-471 of
2016 are allowed in part.
ii) Though I do not find the need to quash
the notification dated 13.01.2016, the
official respondents are directed to
withhold/keep it in abeyance till the
period of three year elapses under the
notification dated 26.06.2014.
iii) Consequently, the petitions in
W.P.No.5353 of 2016, W.P.No.14186 of
36
2016, W.P.No.32454 of 2016 and
W.P.No.40052 of 2016 stand dismissed.
iv) All the pending applications stand
disposed of without any specific orders.
v) Parties to bear their own costs.
Sd/-
JUDGE
akc/bms
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
th
DATED THIS THE 6 DAY OF APRIL 2017
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
W.P.No.5353/2016 (GM-RES)
C/W
W.P.No.14186/2016, W.P.Nos.19470-471/2016,
W.P.No.32454/2016 AND W.P.No.40052/2016
(GM-RES)
W.P.No.5353/2016
BETWEEN:
MR. K.C. SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED ABOUT 50 YEARS,
RESIDING AT KURUBOOR,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DISTRICT
PIN CODE-563125.
... PETITIONER
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
VETERINARY AND FISHERIES
DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
2
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY,
POST BOX NO.6, NANDHINI NAGAR
BIDAR-585401.
4. SRI K S ASHOK KUMAR
S/O LATE DR.K V SADASHIVA RAO
AGED ABOUT 53 YEARS
R/A NO.83, CQA LAYOUT,
SHAKARANAGAR, BANGALORE 560092
5. SRI MALLIKARJUN BIRADAR
S/O SAGANBASAPPA
R/AT NO.9-8-476, KALIDASANAGAR,
BVB COLLEGE ROAD-585403
6. SRI NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
R/AT NO.17-3-243/1,
'PARWATHI NIWAS',
GANDHINAGAR COLONY,
MAILOOR ROAD, BIDAR 585403
... RESPONDENTS
(BY SRI. R B SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. UDAYA HOLLA, SR.COUNSEL FOR
SRI. BRIJESH PATIL, ADV. FOR IMPLEADING
APPLICANT FOR R4
SRI. KRISHNA, S.DIXIT, ADV. FOR R3
SRI. Y R SADASIVA REDDY, SR.COUNSEL FOR
SRI. V SANJAY KRISHNA, ADV. FOR IMPLEADING FOR R6
SRI. NATARAJA BALLAL, ADV. FOR IMPLEADING
APPLICANT ON I.A.No.5/16
SRI. R RAMESH, ADV. FOR IMPLEADING APPLICANT ON
I.A.No.5/16)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD:21.01.2016 (VIDE ANNEXURE-D) PASSED BY THE
RESPONDENT, THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
CONSTITUTION OF INDIA.
3
W.P.No.14186/2016
BETWEEN:
MR. RITHESH SALIAYAN
S/O SADANAND SRIYAN
AGED ABOUT 27 YEARS
RESIDING AT SALIAN NIVAS
SASHITHLU, MANGALORE TALUK,
DAKSHINA KANNADA DISTRICT
PIN CODE - 574146
... PETITIONER
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA,
DR AMBEDKAR ROAD,
VIKASA SOUDHA
BANGALORE - 560001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE - 560001
3. THE REGISTRAR
KARATAKA VETERINARY
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY,
BIDAR - 585401
... RESPONDENTS
(BY SRI. R.B. SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. KRISHNA S DIXIT, ADV. FOR R3)
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD:21.01.2016 (VIDE ANNEXURE-D) PASSED BY THE
RESPONDENT THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
4
CONSTITUTION OF INDIA AND IS IN VIOLATIONS OF NATURAL
JUSTICE AND THE IMPUGNED ORDER IS WITHOUT
JURISDICTION.
W.P.Nos.19470-19471/2016
BETWEEN:
1. MALLIKARJUN BIRADAR
S/O SANGANBASAPPA
AGED ABOUT 54 YEARS,
NO.9-8-476, KALIDASANAGAR
BVB COLLEGE ROAD 585 403
2. NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
NO.17-3-243/1, " PARWATHI NIWAS
GANDHINAGAR COLONY,
MAILOOR ROAD
BIDAR 585403.
... PETITIONERS
(BY SRI.UDAYA HOLLA, SR.COUNSEL FOR
SRI. BRIJESH PATIL, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY,
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA,
DR. AMBEDKAR ROAD,
VIKASA SOUDHA,
BANGALORE-560001.
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES SCIENCES
UNIVERSITY, POST BOX NO.6
NANDHINI NAGAR
BIDAR-585401.
5
4. K.S. ASHOK KUMAR
S/O LATE DR. K.V. SADASHIVA RAO
AGED ABOUT 53 YEARS,
NO.83, CQA LAYOUT,
SAHAKARANAGAR,
BANGALORE.
5. K.C. SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED 50 YEARS,
RESIDING AT KURUBOOR,
CHINTHAMANI TALUK,
CHIKKABALLAPURA DISTRICT,
PIN CODE-563125.
CHICKBALLAPUR.
... RESPONDENTS
(BY SRI. V LAKSHMINARAYANA, SR.COUNSEL FOR
SMT. SHILPA RANI, ADV. FOR C/R5
SRI. Y R SADASIVAREDDY, SR.COUNSEL FOR
SRI. V SANJAY KRISHNA, ADV. FOR C/R4
SRI. R.B. SATYANARAYANA SINGH, AGA. FOR R1 & 2
SRI. KRISHNA S DIXIT, ADV. FOR R3)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE IMPUGNED GOVT. ORDER/NOTIFICATION
DT.13.1.2016 VIDE ANNX-D NOMINATING R-4 & 5 AS MEMBERS
OF BOARD OF MANAGEMENT, KARNATAKA VETERINARY,
ANIMAL AND FISHERIES SCIENCES, BIDAR IN PLACE AND
CATEGORY UNDER WHICH PETITIONERS WERE NOMINATED
EARLIER AS PER ANNX-A AND ETC.
W.P.No.32454 OF 2016
BETWEEN:
SRI K S ASHOK KUMAR
S/O LATE DR. K. V. SADASHIVA RAO,
AGED ABOUT 53 YEARS
RESIDING AT NO 83,
CQAL LAYOUT
SAHARAKARANAGAR
BENGALURU - 560092
... PETITIONER
(BY SRI. Y R SADASIVA REDDY, SR.COUNSEL FOR
SRI. SANJAY KRISHNA V, ADV.)
6
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA
DR AMBEDKAR ROAD,
VIKASA SOUDHA
BENGALURU - 560001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT
GOVERNMENT OF KARNATAKA
DR. AMBEDKAR ROAD,
VIKASA SOUDHA
BENGALURU - 560001
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY ,
P B NO 6, NANDHINI NAGAR,
BIDAR - 585401
4. SRI K C SHANKARE GOWDA
S/O CHIKKAMUNE GOWDA
AGED ABOUT 50 YEARS
RESIDING AT KURUBOOR,
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT - 563125
5. SRI MALLIKARUJUN BIRADAR
S/O SANGANBASAPPA,
AGED ABOUT 54 YEARS
RESIDING AT NO 9-8-476
KALIDASANAGAR
BVB COLLEGE ROAD,
BIDAR - 585403
6. SRI NAGABHUSAN KAMTHANE
S/O MADAPPA
AGED ABOUT 35 YEARS
NO 17-3-243/1, PARWATHI NIVAS,
GANDHINAGAR COLONY
MAILOOR ROAD,
BIDAR - 585403
... RESPONDENTS
(BY SRI.R B SATYANARAYANA SINGH, AGA. FOR R1-3
R4 TO 6 ARE SERVED)
7
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DTD.21.01.2016 VIDE ANNEX-D PASSED BY THE
RESPONDENT, THEREBY DECLARING THAT AND THE SAME IS
HIT BY PROVISIONS OF THE ARTICLE 14 OF THE
CONSTITUTION OF INDIA.
W.P.No.40052/ 2016
BETWEEN:
SRI SHRIKANT KONAPUR
S/O GUNDAPPA
AGED ABOUT 61 YEARS
R/AT DR.S.G.KONAPUR PLOT NO.16,
ST
AKSHAY COLONY 1 PHASE
GOKUL ROAD
HUBLI-580 030
... PETITIONER
(BY SRI. SHARADKUMAR S, ADV.)
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA
DR.AMBEDKAR ROAD
VIKASA SOUDHA
BANGALORE-560 001
2. THE UNDER SECRETARY
VETERINARY AND FISHERIES DEPARTMENT,
GOVERNMENT OF KARNATAKA
DR.AMBEDKAR ROAD
VIKASA SOUDHA
BANGALORE-560 001
3. THE REGISTRAR
KARNATAKA VETERINARY,
ANIMAL AND FISHERIES
SCIENCES UNIVERSITY
BIDAR-585 401
... RESPONDENTS
(BY SRI. R B SATYANARAYANA SINGH, AGA. FOR R1 & 2)
8
THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE
ORDER DATED 21.01.2016 AT ANNEX-E PASSED BY R-2
THEREBY DECLARING THAT AND THE SAME IS HIT BY
PROVISIONS OF THE ARTICLE 14 OF THE CONSTITUTION OF
INDIA, WITHOUT JURISDICTION AND SAME IS IN VIOLATIONS
OF NATURAL JUSTICE.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS ON 28.03.2017, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
O R D E R
The petitioners in W.P.No.5353/2016 (Sri
K.C.Shankaregowda), W.P.No.14186/2016 (Sri Rithesh
Saliyan), W.P.No.32454/2016 (Sri K.S.Ashok Kumar)
and W.P.No.40052/2016 (Sri Srikant Konapur) are the
members nominated to the Board of Management of
Karnataka Veterinary Animal and Fisheries Sciences
University, Bidar (‘KVAFSU’ for short) by the
Government, through the notification dated 13.01.2016
issued by the respondent No.1. The said notification
was withheld/kept in abeyance by the respondent No.1
through the subsequent notification dated 21.01.2016.
The said petitioners therefore claiming to be aggrieved
of being denied the benefit of the nomination dated
9
13.01.2016 in view of the subsequent notification dated
21.01.2016, have assailed the same in the said writ
petitions.
2. The petitioners in W.P.Nos.19470-471/2016
(Sri Mallikarjun Biradar and Sri Nagabhushan
Kamthane) who were nominated by an earlier
notification dated 26.06.2014 for a period of three years
with effect from 05.07.2014 by the Chancellor under the
provision as contained at that point in time claim to be
aggrieved by the notification dated 13.01.2016
whereunder Sri K.S.Ashok Kumar and Sri
K.C.Shankaregowda the petitioners in
W.P.No.32454/2016 and W.P.No.5353/2016 are
nominated in their category whereby the right according
to them to complete the period of three years for which
they are nominated is interrupted. In that light they
seek to sustain the notification dated 21.01.2016
whereunder the notification dated 13.01.2016 is
withheld/kept in abeyance as that would facilitate them
to complete the period of three years for which they
claim to have been nominated.
10
3. The brief facts are that the KVAFSU was
constituted under the Karnataka Act No.9/2004 (‘the
Act’ for short). Among other provisions contained in the
Act, Section 27 provides for the constitution of the
Board of Management (‘the Board’ for short). The Board
is to contain (A) Ex-officio members and (B) Other
members. The nomination in issue in these petitions
relate to the nominations of ‘Other members’ as
contained in Section 27(2)(b)(ii),(iii) and (iv) of the Act.
At the point when the petitioners in W.P.No.19470-
471/2016 were nominated under the notification dated
26.06.2014 to the category of Progressive Livestock
Farmer and Representative of Industries connected with
Animal Husbandry or Fisheries and also the category of
Progressive Fishermen, they were to be nominated by
the Chancellor which accordingly was done.
4. By the amendment to the Act through
Karnataka Act No.37/2015 which received the assent of
the Governor on 05.09.2015, the nominations which
were to be made to the Board from the ‘(B) Other
11
Members’ category, more particularly 27(2)(B)(i)(ii)(iii)
and (iv) which are relevant herein, the mode of
nomination was changed to be made by the Government
instead of by the Chancellor as it provided earlier. It is
in that view the Government exercising the power of
nomination as substituted by Act No.37/2015 has
issued the notification dated 13.01.2016 which has
interrupted the period for which the nomination was
made by the Chancellor under the provision which
existed prior to the coming into force of the Act
No.37/2015. It is in that view the questions as raised
have arisen in these writ petitions as per the brief
reference that has been made above.
5. I have heard Sri Udaya Holla and
Sri Jayakumar S.Patil, learned senior counsel along
with Sri Brijesh Patil for the petitioners in
W.P.Nos.19470-471/2016, Sri V.Lakshminarayan,
learned senior counsel along with Ms.Shilpa Rani for
the petitioners in W.P.Nos.5353/2016, 14186/2016.
Sri Y.R.Sadashiva Reddy, learned senior counsel along
with Sri V.Sanjay Krishna for the petitioner in
12
W.P.No.32454/2016, Sri Sharad Kumar S, learned
counsel for the petitioner in W.P.No.40052/2016. The
said learned senior counsel have also appeared for the
respective parties as respondents in the connected
petitions. Sri Krishna Dixit, learned counsel and Sri
R.B.Satyanarayana Singh, learned Government
Advocate were also heard on behalf of the official
respondents in all the above petitions.
6. Though elaborate arguments have been
advanced by the learned senior counsel and the other
learned counsel on either side, the precise issue for
consideration is as to whether the amendment made to
Section 27 of the Act No.9 of 2004 through the Act
No.37/2015 would relate back to the date of the original
Act by substitution and if so, whether the nomination
made by the Chancellor to the category of ‘Other
Members’ through the notification dated 26.06.2014
would become redundant on the Act being amended or
whether the benefit of the nomination made for three
years would still be available even for the categories
13
where the mode of nomination is changed with the
power being given to the Government by taking it away
from the Chancellor or as to whether such power would
be prospective without affecting the nominations which
had been made earlier. Further, whether the
nomination as made can be modified at any stage prior
to the expiry of three years is also the issue for
consideration.
7. The narration of the issues involved, sequence
of events that have occurred and the contentions as
urged will disclose that there is no controversy on the
factual aspects but what requires determination is the
legal aspect of the matter relating to the effect of the
substitution of the provision relating to nomination and
the effect of the earlier as well as the subsequent
nominations made, in the background of the instant
facts. The learned senior counsel on either side have
referred to large number of decisions rendered both by
this Court as also the Hon'ble Supreme Court to drive
home their respective contentions. Hence, I find that it
14
will be appropriate to take note of the same at the
outset as it would in such event place the matter in
perspective.
8. Sri Udaya Holla and Sri Jayakumar S.Patil, the
learned senior counsel in support of their contentions
have relied on the following decisions:
(i) The case of M.Mahadevaiah -vs- The State of
Karnataka, Department of Co-Operation and others
(ILR 2013 Kar 5019 ) , wherein a learned Judge of this
Court has considered the effect of amendment made to
Section 42 of APMC Act reducing the term of office of
the Chairman and Vice-Chairman to twenty months
whereby elections were sought to be held by curtailing
the term which would have otherwise been available.
The learned Judge has taken note of the decisions of the
Hon'ble Supreme Court and the law relating to
interpretation, wherein it is stated that a statute which
effects substantive right is presumed to be prospective
in operation, unless made retrospective either expressly
or by necessary intendment. Every litigant has a vested
15
right in substantive law but no such right exists in
procedural law. A statute which not only changes the
procedure but also creates new right and liabilities shall
be construed to be prospective in operation, unless
otherwise provided either expressly or by necessary
implication. The golden rule noticed is, 'the essential
idea of legal system is that current law should govern
current activities'. In that background, since under the
said Act the term of Chairman and Vice-Chairman was
available up to five years and there was nothing in the
amendment to make it retrospective and curtail the
period, it was held, though the word 'substituted' is
used while making the amendment, the said expression
cannot by itself ascribe retrospective operation to the
amendment so as to effect the tenure of the duly elected
Chairman and Vice-Chairman whose tenure under the
un-amended Act had not yet expired and there is no
intention on the part of the legislature to curtail,
regulate or restrict the tenure.
(ii) The case of Bhagat Ram Sharma -vs- Union
of India and others [1988(Supp) SCC 30] wherein the
16
Hon'ble Supreme Court on considering the purport of
the term 'amendment' has held it to be a wider term
which includes abrogation or deletion of a provision in
an existing statute. It is stated that amendment of
substantive law is not retrospective unless expressly
laid down or by necessary implication inferred. In that
case it was held that the mere use of the word
'substitution' does not imply that Regulation 8(3) must
relate back to the appointed day. In the case of
executive instructions, the bare issue of a fresh
instrument on the same subject would replace a
previous instrument. But in the case of legislative
enactment, there would be no repeal of an existing law
unless the substituting Act or provision has been validly
enacted with all the required formalities. .
(iii) The case of Maharaja Chinthamani Saran
Nath Shahdeo -vs- State of Bihar and others [(1999)
8 SCC 16] wherein the Hon'ble Supreme Court after
referring to its earlier decisions has reiterated the
position that as per the golden rule of interpretation, the
mere use of the word ‘substituted’ does not mean it is
17
retrospective unless the clear intention of retrospective
effect could be gathered.
(iv) The case of Prof. S.N.Hegde and another -vs-
The Lokayuktha, Bangalore others (ILR 2004 Kar
3892) wherein a learned Judge of this Court while
considering the effect of the amendment has held that
purposive construction be adopted when the material
words are capable of bearing two or more constructions.
In such situation, the Courts must adopt that
construction which will suppress the mischief and
advance the remedy.
(Sri Sadashiva Reddy, learned senior counsel has
also relied on the same decision in support of the
counter argument)
(v) The case of Shyam Sunder and others -vs-
Ram Kumar and another [(2001) 8 SCC 24] wherein
the Hon'ble Supreme Court took note of the argument
that the amending Act being retrospective had
extinguished the right of the plaintiff which existed on
the date of filing the suit. In that regard after referring
18
to its earlier decisions and the Rules of interpretation
has held that the legal position is that when a repeal of
an enactment is followed by a fresh legislation, such
legislation does not affect the substantive rights of the
parties on the date of the suit or adjudication of the suit
unless such a legislation is retrospective and a Court of
appeal cannot take into consideration a new law
brought into existence after the judgment appealed from
has been rendered because the rights of the parties in
an appeal are determined under the law in force on the
date of suit. However, the position of law would be
different in the matters which relate to procedural law
but so far as substantive rights of parties are
concerned, they remain unaffected by the amendment
in the enactment. Hence it is held, where the repeal of
provisions of an enactment is followed by fresh
legislation by an amending Act, such legislation is
prospective in operation and does not affect the
substantive or vested rights of the parties unless made
retrospective either expressly or by necessary
intendment.
19
9. On the other hand Sri V.Lakshminarayana,
learned senior counsel in support of the contrary
contention has relied on the following decisions:
(i) The case of PTC India Limited -vs- Central
Electricity Regulatory Commission [(2010) 4 SCC
603] wherein the Hon'ble Supreme Court while
examining the jurisdiction of the Appellate Tribunal
constituted under the amending Act had taken note
that Section 121 of the original Act stood substituted by
Amendment Act 57 of 2003. Hence, it was held that the
substitution of a provision results in repeal of the earlier
provision and its replacement by new provision.
Substitution is a combination of repeal and fresh
enactment.
(ii) The case of State of Tamil Nadu and others -
vs- K. Shyam Sunder and others [(2011) 8 SCC 737]
wherein while considering change in the pattern of
education which was brought by the Amendment Act,
the Hon'ble Supreme Court referred to its earlier
decision wherein it was held that when the statute is
20
amended, the process of substitution of statutory
provisions consists that the old rule is made to cease to
exist and the new rule is brought into existence in its
place. In other words, the substitution of a provision
results in repeal of the earlier provision and its
replacement by the new provision. Whenever an Act is
repealed, it must be considered as if it never existed.
(iii) The case of State of Punjab -vs- Mohar Singh
Pratap Singh (AIR 1955 SC 84) wherein it is held,
whenever there is a repeal of an enactment, the
consequences laid down in Section 6 of the General
Clauses Act will follow unless the section itself says, a
different intention appears. In the case of simple repeal
there is scarcely any room for expression of a contrary
opinion. But when the repeal is followed by fresh
legislation on the same subject, the provisions of the
new Act will have to be looked into for the purpose of
determining whether it indicates a different intention.
The line of enquiry would be, not whether the new Act
expressly keeps alive old rights and liabilities, but
21
whether it manifests an intention to destroy them. The
compatibility or otherwise of the provisions would have
to be ascertained from a consideration of all the relevant
provisions of the new law and the mere absence of a
saving clause is by itself not material.
(iv) The case of Fibre Boards Private Limited,
Bangalore -vs- Commissioner of Income Tax,
Bangalore [(2015) 10 SCC 333] wherein it is held that
the repeal can be by express omission. An implied
repeal of a statute would fall within the expression
'repeal' in Section 6 of the General Clauses Act. Repeals
may take any form and so long as a statute or part of it
is obliterated, such obliteration would be covered by the
expression 'repeal' in Section 6 of the General Clauses
Act.
(v) The case of Jharkhand State Elecricity Board
and others -vs- Laxmi Business and Cement Company
Private Limited and another [(2014) 5 SCC 236]
wherein the earlier decision was relied to hold that
whenever there is a repeal of an enactment, the
consequence laid down in Section 6 of the General
22
Clauses Act will follow unless a different intention
appears. When the repeal is followed by fresh legislation
on the same subject, the provisions of the new Act will
have to be looked into for the purpose of determining
whether they indicate a different intention.
(vi) The case of Cheviti Venkanna Yadav -vs-
State of Telangana and others [(2017) 1 SCC 283]
wherein the Hon'ble Supreme Court was considering the
Telangana(Agricultural Produce and Livestock) Markets
Act amendment where under the term of the Chairman
and Vice Chairman was also curtailed. The amendment
itself was clear that the Amendment Act is deemed to
have come into force with effect from 01-01-2012,
though it received the assent of the Governor on
13.04.2015. It is held that the members were not
elected and they were not appointed by any kind of
selection. They were chosen by the Government from
certain categories. The status of the members has been
changed by amending the word 'nominated'. Thus the
legislature has retrospectively changed the meaning.
23
Hence, by virtue of amendment, the term which has
been reduced for the nominated member stands on a
different footing. An earlier decision is referred wherein
it is held that if an appointment has been made initially
by nomination, there can be no violation of any
provision of the Constitution in case the legislature
authorised the State Government to terminate such
appointment at its pleasure and to nominate new
members in their place. It is because the nominated
members do not have the will or authority of any
residents of the Municipal Board behind them as may
be present in the case of an elected member. Such
provision neither offends any article of the Constitution
nor is the same against any public policy or democratic
norms enshrined in the Constitution.
10. From the composite and cumulative perusal of
the above decisions, what can be gathered is, merely
because the word 'substituted' is used, while amending
a provision in the enactment it cannot always be
concluded that the amendment is with retrospective
effect and would erase all accrued rights. When there is
24
a repeal and if the substituted enactment does not
clarify the position relating the rights, Section 6 of the
General Clauses Act will regulate the issue. If a
provision in the enactment is amended and if the
legislature does not specify that it is with retrospective
effect and if such amendment is not just on the
procedural aspect, but also affects the substantive right
which accrued under the provision which existed prior
to the amendment, such substantive accrued right will
be saved and continue to exist unless the operation of
the amended provision is expressly made retrospective.
The case of Cheviti Venkanna Yadav (supra) was a
case of such nature where the legislature had expressly
given retrospective effect and curtailed the period. If it
is not expressed in the amended provision but if the
amended provision tends to take away the vested right,
the Court will have to hold that the amendment is with
prospective effect. The line of enquiry in that regard is
held to be, not whether the new Act expressly keeps
alive the old rights and liabilities, but there is a
manifest intention in the amended provision to destroy
25
the right which existed under the old provision.
Therefore, in the instant facts also, whether the right if
any had vested under the un-amended substantive
provision and whether there was an intention to destroy
it, is to be examined so as to arrive at the conclusion
since the mere use of the word 'substituted' in the
amended provision in the instant case will not
determine the issue.
11. To enable an appropriate consideration of the
matter and for the purpose of clarity, the un-amended
and the amended Section 27 of the KVAFSU Act is
reproduced as hereunder,
“27. Constitution of the Board of
Management .- (1) The Chancellor shall, as soon as
may, be after the first Vice-Chancellor is appointed
under the second proviso to subsection (4) of section
13, take action to constitute the Board of
management.
(2) The Board shall consist of the following
members, namely:-
26
(A) EX-OFFICIO MEMBERS
(i) XXXXX
(ii) XXXXX
(iii) XXXXX
(iv) XXXXX
(v) XXXXX
(vi) XXXXX
(vii) XXXXX
(B) OTHER MEMBERS
(i) One Scientist having special knowledge or
practical experience in research; teaching and
extension education in the field of Veterinary and
Animal and Fishery Sciences, nominated by the
Chancellor;
(ii) One Progressive livestock farmer
nominated by the Chancellor;
(iii) One Progressive fisherman nominated by
the Chancellor;
(iv) One representative of the industries
connected with animal husbandry or fisheries
nominated by the Chancellor;
(v) One woman social worker nominated by
the Chancellor;
(vi) One educationist nominated by the
Chancellor;
(vii) One nominee of the Indian Council of
Agricultural Research;
(viii) President of the Karnataka Veterinary
Council;
27
Provided that no person who is in the
employment of the State Government or the
University shall be nominated under the category of
"other Members".
(3) The term of office of the members of the Board
other than Ex-officio members shall be three years;
Provided that the term of office of any member
nominated to fill a casual vacancy shall be the
residuary term of his predecessor:
Provided further that no person shall be
nominated for a second term.
(4) Six members of the Board shall form the
quorum for a meeting of the Board.
(5) The members of the Board shall not be entitled
to receive any remuneration from the University
except such daily and travelling allowances as may
be prescribed.
(6) Every person who ceases to be a member of the
Board by reason of the operation of this Act shall
cease to be a member of the other authorities of the
University of which he may happen to be a member
by virtue of his membership of the Board.
(7) Any member nominated to the Board shall be
liable to be removed from such membership at any
time by the Chancellor on the ground of
misbehavior, misconduct or otherwise after holding
an enquiry.
(8) XXXXX
(9) XXXXX
(emphasis supplied)
28
Amended Section 27(B):
(B) OTHER MEMBERS
(i) One Scientist having special knowledge or
practical experience in research; teaching and
extension education in the field of Veterinary and
Animal and Fishery Sciences, nominated by the
Government;
(ii) One Progressive indigenous livestock
farmer nominated by the Government;
(iii) One Progressive fisherman nominated by
the Government;
(iv) One representative of the industries
connected with animal husbandry or fisheries
nominated by the Government;
(v) One woman rural social worker nominated
by the Chancellor;
(vi) One rural educationist nominated by the
Chancellor;
(vii) One nominee of the Indian Council of
Agricultural Research, nominated by the Director
General, ICAR, New Delhi;
(viii) The President of the Karnataka
Veterinary Council;
(ix) One director of any other University nominated
by the Vice-Chancellor;
(x) One dean of any other University nominated
by the Vice-Chancellor.
(emphasis supplied)
29
12. From the amendment as made, it is seen that
the category of the nominees in (i) to (iv) of 'Other
members' remains to be the same but only the
nominating authority is substituted with 'Government'
instead of 'Chancellor' as it existed earlier which is clear
from the words for which emphasis is supplied. Sub-
section (3) which existed in the original Section 27 and
continues to exist after the amendment also, which
provides that the term of office of the members of the
Board other than Ex-officio members shall be three
years. This would mean that the 'Other Members' who
were nominated by the Chancellor were assured the
term of three years and the curtailment at pleasure is
not indicated. As such the right has vested with such of
those members who were nominated, to hold office as
nominated members for a period of three years from the
date of nomination unless the contingencies for removal
as provided under Sub-section (7) to Section 27 had
arisen and the procedure contemplated was followed.
30
13. The notification dated 26.06.2014 under
which the subject nomination was initially made is also
for a period of three years by specifying the starting date
for computation of the period of three years as
05.07.2014. Hence, in the background of the legal
position analysed above if the instant facts are taken
note, a right has vested in the persons nominated under
the notification dated 26.06.2014 under the substantive
provision contained in the Act to remain on the Board
for a period of three years. The amendment as has been
made is only to substitute the name of the nominating
authority from ‘Chancellor’ to that of the ‘Government’,
which right is to be exercised prospectively when the
nominations are to be made to the vacant positions in
the Board of Management from the 'Other Members'
category. Neither the status nor the qualification of the
members to be nominated has been changed by the
amendment so as to effect the existing right.
14. Sri. V. Lakshminarayana, learned senior
counsel, despite the said position, in order to contend
that a nominated member will hold office only during
31
the pleasure of the nominating authority and cannot
claim to continue in office when the pleasure is
withdrawn, has relied on the decision of this Court in
the case of T. Krishnappa -vs- State of Karnataka
and others [(2000) 7 Kant LJ 132] . In that light, it is
contended that by the notification dated 13.01.2016 the
nomination of different persons has been made in
substitution of the earlier nominees, by which the
pleasure exercised earlier is withdrawn. In that view, it
is contended that the subsequent notification/order
dated 21.01.2016 withholding the notification dated
13.01.2016 is not sustainable. Though in that regard
the Rules of Business and decisions are cited to contend
that the nomination made by the Government cannot be
kept in abeyance by a Secretary to the Government, the
detailed consideration in that regard will be necessary
only if the notification dated 13.01.2016 is held
sustainable to supersede the notification dated
26.06.2014.
15. In this backdrop, I have carefully examined
the contentions in the light of the decision in the case of
32
T.Krishnappa (supra). In that case, the right as
claimed by the nominated member under Section 10 of
the Karnataka Agricultural Produce Marketing
(Regulation) Act, 1966 for the benefit of the extended
period of one year arose for consideration therein. This
Court in that context took note of the contents of
Section 10(4)(a) of the Act which provides for
nomination of the members of the first Committee for a
period of two years from the date of notification under
Sub-section (1) subject to 'pleasure' of the State
Government and in that context held that the extended
period of one year also under the proviso should be
considered to be at the pleasure of the Government. The
entire consideration therein was in the context of
'pleasure nominees'. The provision considered in that
case reads thus,
10. Constitution of the first market
“
committee:- (4)(a) Save as otherwise provided in
this Act [but subject to the pleasure of the State
Government] the members of the first market
committee shall hold office for a period of
two years from the date of notification under
sub-section(1):
33
Provided that the State Government may
by notification extend the term of office of the
members by such period or periods not exceeding
[Two years] in the aggregates.”
(emphasis supplied)
16. On the other hand, in the instant case, though
the nomination to be made prior to amendment was by
the Chancellor and presently it is by the Government,
the period for which the nomination is made is for three
years and not at the pleasure of either of the nominating
authority. The removal of a nominated member, as
noticed is only in the manner as provided under
Sub-section (7) to Section 27 of the KVAFSU Act on the
ground of misbehavior, misconduct or otherwise after
holding an enquiry. Despite no such contingency having
arisen and the period of three years under the
notification dated 26.06.2014 not having come to an
end, another notification dated 13.01.2016 nominating
persons to the same category will not be in terms of the
provisions and scheme of the Act. Through the
amendment in question the change made is only about
34
the authority to nominate and the scheme as such has
remained the same. In such circumstance, when the
notification dated 13.01.2016 is found to be not in
accordance with law, the decision to keep it in abeyance
through the notification/order dated 21.01.2016 ca
nnot be found fault with nor is there need to interfere
with the same as it would be open for the official
respondents themselves to recall the same at the
appropriate stage after the period of three years as
required under the notification dated 26.06.2014 is
spent and thereafter to bring the nomination under the
notification dated 13.01.2016 into effect at that stage as
a fresh nomination after the earlier period has elapsed.
While computing the period of three years, the period, if
any denied to the nominees under the notification dated
26.06.2014 due to the interruption caused in view of
the present action shall also be noted and benefit of the
lost period be provided to them to remain on the Board
for the entire three years term. Keeping in view the
interim orders that were passed during the pendency of
these petitions, in order to save the actions taken it is
35
clarified that if the nominees under the notification
dated 13.01.2016 have participated in any meetings of
the Board, such decisions taken shall however remain
valid for administration purposes.
17. In the result, the following:
ORDER
i) The petitions in W.P.Nos.19470-471 of
2016 are allowed in part.
ii) Though I do not find the need to quash
the notification dated 13.01.2016, the
official respondents are directed to
withhold/keep it in abeyance till the
period of three year elapses under the
notification dated 26.06.2014.
iii) Consequently, the petitions in
W.P.No.5353 of 2016, W.P.No.14186 of
36
2016, W.P.No.32454 of 2016 and
W.P.No.40052 of 2016 stand dismissed.
iv) All the pending applications stand
disposed of without any specific orders.
v) Parties to bear their own costs.
Sd/-
JUDGE
akc/bms