On Facts. ‘Medar’ is synonym of ‘Meda’ and hence the entry Medar in 2012 is retrospective.
Parushuram vs The Deputy Commissioner and others. Writ Petition 65002/2011. Decided on 14 September 2020. Justice S.R.Krishna Kumar.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/341880/1/WP65002-11-14-09-2020.pdf
Relevant paragraphs: 4. The following points arise for consideration in this petition:
i. Whether a clarificatory, elucidatory, declaratory or explanatory amendment to an Act is prospective or retrospective?
ii What is the scope, ambit and amplitude of Articles 341 and 342 of the Constitution of India?
iii Whether a clarificatory, elucidatory, declaratory or explanatory amendment by a Law of the Parliament exercising powers under Articles 341(2) or 342(2) of the Constitution of India to the original constitution (Scheduled Tribes) Presidential Order of the year 1950 is prospective or retrospective?
iv. Whether The Constitution (Scheduled Tribes) Order (Amendment) Act, 2012 (Annexure L) to the Constitution (Scheduled Tribes) Order, 1950 whereby in Entry No.37 of Part VI relating to State of Karnataka, the word ‘Medara’ is inserted after the words ‘Meda’ in the very same Entry No.37 is prospective or retrospective?
8. In Crawford’ s Statutory Construction, at Page 107 paragraph 74 reads as follows: “74. Declaratory Statutes:- Generally speaking, declaratory statutes can be divided into two clauses: (1) those declaratory of the common law and (2) those declaring the meaning of an existing statute. Obviously, those declaratory of the common law should be construed according to the common law. Those of the second class are to be construed as intended to lay down a rule for future cases and to act retrospectively. They closely resemble interpretation clauses and their paramount purpose is to remove doubt as to the meaning of the existing law, or to correct a construction considered erroneous by the legislature.”
State Bank of India v. V. Ramakrishnan – ( 2018) 17 SCC 394 and State of Bihar v. Ramesh Prasad Verma -( 2017) 5 SCC 665, Union of India v. Martin Lottery Agencies Ltd – (2009) 12 SCC 209, T.N. Electricity Board v. Status Spg. Mills Ltd-(2008) 7 SCC 353, Zile Singh v. State of Haryana – (2004) 8 SCC 1 relied on.
11. In the light of the aforesaid well settled principles, I am of the considered opinion that a clarificatory, elucidatory, declaratory or explanatory amendment to an Act or a statutory provision will have retrospective effect and will operate retrospectively and such an amendment to an Act or a statutory provision would relate back to the date of the original enactment.
15. State of Maharashtra vs Milind and others – (2001) 1 SCC 4 relied on. In view of the law laid down by the Apex Court in Milind’s case supra, I am of the considered opinion that once a Presidential Notification is issued under Articles 341(1) of 342(1) of the Constitution of India, it can be varied only by a Law of the Parliament and the said Notification can not be varied, modified, altered, amended or tinkered around by anything or anyone including a subsequent notification, either by the Central Government or State Government. As a corollary, in the absence of a law by the Parliament exercising powers under Articles 341(2) or 342(2), any central or state notification issued subsequent to a Presidential Notification being issued exercising powers under Articles 341(1) or 341(2) would clearly be illegal, invalid, non-est, inoperative and void-ab- initio.
Jayanna vs Deputy Commissioner – 2013( 1) Kar. L.J. 177(FB) and Zile Singh -Vs- State of Haryana AIR 2004 SC 5842 relied on.
21.In view of the law laid down by the Hon’ble Full Bench in Jayanna’s case supra, I am of the considered opinion that any amendment to the Presidential Order of 1950 by a law of the Parliament exercising powers under Articles 341(2) or 342(2) whereby a particular name describing the scheduled caste/tribe which is synonymous and equivalent to the already existing entry is inserted/ included/added in the very same entry after the existing names in the said entry without creating or adding a new or separate entry or tribe and without increasing the total number of scheduled castes/tribes or the total number of entries, the said amendment is merely a clarificatory, elucidatory, declaratory or explanatory amendment which is retrospective in nature and operates retrospectively and relates back to the date of the original Presidential Notification of the year 1950.
23. The aforesaid Amendment Act, 2012 clearly indicates that the name, ‘Medara’ was inserted and included after the name, ‘Meda’ in the very same pre-existing Entry No. 37 of the Presidential Order, 1950 without either creating or adding a totally new entry or a new scheduled tribe. To put it differently, under the said Amendment Act, 2012 the name ‘Medara’ was merely included, added and inserted in the very same pre-existing Entry No. 37 consisting of a synonymous and equivalent name, ‘ Meda’, without creating or adding a new or separate entry or tribe and without increasing the total number of scheduled castes/tribes or the total number of entries and consequently, the said Amendment Act, 2012 is merely a clarificatory, elucidatory, declaratory or explanatory amendment which is retrospective in nature and operates retrospectively and relates back to the date of the original Presidential Notification of the year 1950.
26. It is brought to my notice that despite the decision of the Full Bench of this Court in Jayanna’s case supra, the State government is not implementing or giving effect to Amendment Acts by the Parliament exercising powers under Articles 341(2) and 342(2) of the Constitution of India in respect of other scheduled castes and tribes despite the said amendments being merely clarificatory, elucidatory, declaratory or explanatory amendments which are retrospective in nature and operate retrospectively and relate back to the date of the original Presidential Notification of the year 1950. Under these circumstances, I deem it fit and proper to issue suitable directions to the State government in this regard.
The Karnataka State Government is directed to implement and give effect to the decision of the Full Bench in the case of Jayanna vs Deputy Commissioner–2013(1) Kar.L.J 177(FB) forthwith immediately in respect of all persons belonging to scheduled castes/ scheduled tribes by issuing/ passing such appropriate notifications, orders or directions;
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 