Madhya Pradesh High Court
Smt. Manju Rai vs The State Of Madhya Pradesh on 6 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
1 WP No.25382/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF SEPTEMBER, 2024
WRIT PETITION No. 25382 of 2024
SMT. MANJU RAI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vivek Krishna Tankha - Senior Advocate through video conferencing
with Shri Harshit Bari - Advocate for petitioner.
Shri Prashant Singh - Advocate General with Shri Amit Seth - Additional
Advocate General for respondents Nos.1 to 4/State.
Reserved on : 03/09/2024
Pronounced on : 6th/09/2024
ORDER
This Petition under Article 226 of Constitution of India has been
filed seeking the following relief (s) :
(i) Pass an appropriate Writ, Order or Direction in the
nature of certiorari, or any similar Writ setting aside
the impugned order dated 23.08.2024 passed by
Respondent No.4, in the light of Policy decision dated
20.08.2024 of the cabinet and order dated 23.08.2024
passed by the Collector, District – Sagar in a similar
case. AND/OR
(ii) Pass an appropriate Writ, Order or Direction in the
nature of Mandamus, or any similar Writ directing the
Respondent no.3 to pass appropriate in accordance
with the policy decision dated 20.08.2024 of the
cabinet and order dated 23.08.2024 passed by the
Collector, District – Sagar in a similar case.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
2 WP No.25382/2024
(iii) Pass any other writ or direction as the Hon’ble Court
may deem fit, in favor of the Petitioner.
2. It is submitted by Counsel for Petitioner that during the pendency
of the writ petition, an ordinance has been promulgated by the State
Govt., thereby amending Section 42-A(1)(a) and in the opening
paragraph, for the words ―two thirds‖, the words ―three fourths‖ have
been substituted and (b) in clause (i) of the proviso, for the words ―two
years‖, the words ―three years‖ have been substituted.
3. It is submitted that Petitioner is holding the Post of President,
Municipal Council, Damoh from 5-8-2022. It appears that after the
completion of tenure of two years, a no confidence motion was moved
and accordingly, by order dated 23-8-2024, the Collector, Damoh
authorized the Add. Collector, Damoh. Accordingly, the Add. Collector,
Damoh convened the meeting to consider the no confidence motion on 4-
9-2024. It is submitted by Counsel for Petitioner, that in view of The
Madhya Pradesh Municipalities (Second Amendment) Ordinance,
2024, no confidence motion cannot be considered as clause (i) of proviso
to Section 43-A(1) of M.P. Municipalities Act has now been amended and
the words ―two years‖ have been substituted by words ―three years‖. It is
submitted that the aforesaid ordinance is Retrospective in operation or in
alternative it is Retroactive in operation, but it is not Prospective in
operation. It is further submitted that in various other Districts, where no
confidence motion was moved against the sitting President, the Collectors
have dropped the proceedings by treating the Ordinance as Retrospective
in nature, therefore it is clear that the Petitioner is also entitled for the
same treatment. To buttress his contentions, the Counsel for Petitioner has
relied upon the Judgments passed by Supreme Court in the case of
Ramesh Kumar Soni Vs. State of M.P. reported in (2013) 14 SCC 696,
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
3 WP No.25382/2024
SEBI Vs. Classic Credit Ltd. reported in (2018) 13 SCC 1, T.
Kaliamurthi and another Vs. Five Gori Thaikkal Wakf and others
reported in (2008) 9 SCC 306, SEBI Vs. Rajkumar Nagpal and others
reported in (2023) 8 SCC 274, Shyabuddinsab Mohidinsab Akki Vs.
Gadag-Betgeri Municipal Borough and others reported in 1955 SCC
OnLine SC 25, Hitendra Vishnu Thakur and others Vs. State of
Maharashtra and others reported in (1994) 4 SCC 602, Videocon
International Ltd. Vs. SEBI reported in (2015) 4 SCC 33, Shanti
Conductors (P) Ltd. and another Vs. Assam SEB and others reported
in (2019) 19 SCC 529, Gottumukkala Venkata Krishanmraju Vs.
Union of India and others reported in (2019) 17 SCC 590 and
Allahabad High Court in the case of Anuj Kumar and another Vs.
State of U.P. and others reported in 2023 SCC OnLine All 66 and
District Board, Muzaffarnagar Vs. The Upper India Sugar Mills Ltd.,
Khatauli reported in AIR 1957 All 527.
4. It is further submitted by Counsel for Petitioner, that in view of
pendency of this petition, the Collector, Damoh has suspended the
meeting which was to be held on 4-9-2024.
5. Per contra, the Petition is vehemently opposed by Counsel for the
Respondent/State. It is submitted that if Collectors of other Districts have
dropped the no-confidence motion under misconceived notions, then it
doesnot mean that the petitioner is entitled for the similar treatment by
applying the principle of Negative Equality. It is submitted that two
wrong orders cannot make one order correct. It is submitted that Section
43-A of M.P. Municipalities Act, gives an immunity to the
President/Vice-President from his/her removal from the post for a
particular period. As soon as the statutory period is over, the Councilors
get a substantive right to move a no-confidence motion. It is submitted
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
4 WP No.25382/2024
that the election to the post of President is by way of indirect election, and
the President is elected amongst the Councilors. It is further submitted
that by the Ordinance, the period of immunity has been extended from
two years to three years, therefore, such Ordinance has to be treated as
Prospective in operation as there is no provision contrary to it. It is
further submitted that so far as the law laid down by Division Bench of
Allahabad High Court in the case of Anuj Kumar (Supra) is concerned,
since, the Division Bench of Allahabad High Court has not considered
that by the Ordinance, a new right is being introduced, i.e., to hold the
post of President, Municipal Council for a period of three years in place
of two years, therefore, unless and until, it is otherwise provided, the
Ordinance has to be treated as Prospective in Nature. It is further
submitted that Statutory Right is always Substantive Right. To buttress
his contentions, the Counsel for the State has relied upon the Judgment
passed by Supreme Court in the case of Harla Vs. State of Rajasthan
reported in AIR 1951 SC 467, Rajendra Agricultural University Vs.
Ashok Kumar Prasad and others reported in (2010) 1 SCC 730,
Messrs. Hoosein Kasam Dada (India) Ltd. Vs. The State of M.P. and
others reported in AIR 1953 SC 221, M/s Punjab Tin Supply Co.,
Chandigarh and others Vs. Central Government and others reported
in (1984) 1 SCC 206, Shanti Conductors (P) Ltd., Vs. Assam SEB
reported in (2019) 19 SCC 529 and Judgment passed by Division Bench
of Bombay High Court in the case of Mahindra and Mahindra
Employees’ Union and others Vs. Commissioner of Labour and
Others reported in 2007 SCC OnLine Bom 63.
6. Heard the learned Counsel for the parties.
7. The only question which requires consideration is that whether
The Madhya Pradesh Municipalities (Second Amendment)
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
5 WP No.25382/2024
Ordinance, 2024 is Prospective, Retrospective or Retroactive in
operation?
Whether right to contest Election is a Statutory Right or Substantive
Right
8. A Statutory Right is a right which is created by a Statute, which can
be taken away, created etc. by the Statute, whereas the Substantive Right
are rights that are inherent and Fundamental. The Supreme Court in the
case of J.S. Yadav v. State of U.P., reported in (2011) 6 SCC 570 has
held as under :
20. ―17. The word ‗vested’ is defined in Black’s Law
Dictionary (6th Edn.) at p. 1563, as:
‗Vested; fixed; accrued; settled; absolute; complete. Having
the character or given the rights of absolute ownership; not
contingent; not subject to be defeated by a condition
precedent.’
Rights are ‗vested’ when right to enjoyment, present or
prospective, has become property of some particular person
or persons as present interest; mere expectancy of future
benefits, or contingent interest in property founded on
anticipated continuance of existing laws, does not constitute
vested rights. In Webster’s Comprehensive Dictionary
(International Edn.) at p. 1397, ‗vested’ is defined as:
‗[L]aw held by a tenure subject to no contingency;
complete; established by law as a permanent right; vested
interests.’ ‖
(See Bibi Sayeeda v. State of Bihar at SCC p. 527, para 17.)
21. The word ―vest‖ is normally used where an immediate
fixed right in present or future enjoyment in respect of a
property is created. With the long usage the said word
―vest‖ has also acquired a meaning as ―an absolute or
indefeasible right‖. It had a ―legitimate‖ or ―settled
expectation‖ to obtain right to enjoy the property, etc. Such
―settled expectation‖ can be rendered impossible of
fulfilment due to change in law by the legislature. Besides
this, such a ―settled expectation‖ or the so-called ―vested
right‖ cannot be countenanced against public interest andSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:443386 WP No.25382/2024
convenience which are sought to be served by amendment
of the law. (Vide Howrah Municipal Corpn. v. Ganges
Rope Co. Ltd.)
22. Thus, ―vested right‖ is a right independent of any
contingency. Such a right can arise from a contract, statute
or by operation of law. A vested right can be taken away
only if the law specifically or by necessary implication
provides for such a course.
9. Now, the next question is ―as to whether the right to contest is a
Statutory Right or is a Vested/Substantive Right?‖
10. The Supreme Court in the case of Vishwanath Pratap Singh Vs.
Election Commission of India and others decided on 9-9-2022 in S.L.P
(c) No. 13013/2022 has held as under :
5. We find that the writ petition before the High Court was
entirely misconceived and so is the present special leave
petition. The right to contest an election is neither a
fundamental right nor a common law right. It is a
right conferred by a statute. In Javed v. State of
Haryana, (2003) 8 SCC 369, this Court held that:-
’22. Right to contest an election is neither a fundamental
right nor a common law right. It is a right conferred by a
statute. At the most, in view of Part IX having been added
in the Constitution, a right to contest election for an office
in Panchayat may be said to be a constitutional right –
a right originating in the Constitution and given shape by a
statute. But even so, it cannot be equated with a
fundamental right. There is nothing wrong in the same
statute which confers the right to contest an election also
to provide for the necessary qualifications without which a
person cannot offer his candidature for an elective office
and also to provide for disqualifications which would
disable a person from contesting for, or holding, an
elective statutory office.
23. Reiterating the law laid down in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency [AIR 1952 SC
64 : 1952 SCR 218] and Jagan Nath v. Jaswant Singh [AIRSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:443387 WP No.25382/2024
1954 SC 210 : 1954 SCR 892] this Court held in Jyoti Basu
v. Debi Ghosal [(1982) 1 SCC 691] : (SCC p. 696, para 8)
‘8. A right to elect, fundamental though it is to democracy,
is, anomalously enough, neither a fundamental right nor a
common law right. It is pure and simple, a statutory right.
So is the right to be elected. So is the right to dispute an
election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an
election. Statutory creations they are, and therefore, subject
to statutory limitation.’
6. In a later judgment reported as Rajbala v. State of
Haryana, (2016) 2 SCC 445, this Court held that
the right to contest for a seat in either of the two bodies is
subject to certain constitutional restrictions and could be
restricted further only by a law made by the Parliament. It
was held as under:-
’39. Insofar as the Rajya Sabha and the Legislative Councils
are concerned, such rights are subject to comparatively
greater restrictions imposed by or under the Constitution.
The right to vote at an election to the Lok Sabha or the
Legislative Assembly can only be subjected to restrictions
specified in Article 326. It must be remembered that under
Article 326 the authority to restrict the right to vote can be
exercised by the ‘appropriate legislature’.
The right to contest for a seat in either of the two bodies is
subject to certain constitutional restrictions and could be
restricted further only by a law made by Parliament.’
11. The Supreme Court in the case of Kuldip Nayar v. Union of
India, reported in (2006) 7 SCC 1 has held as under :
298. In People’s Union for Civil Liberties (PUCL) v. Union
of India this Court treated the right to vote to be carrying
within it the constitutional right of freedom of expression.
But the same cannot be said about the right to stand for
election, since that is a right regulated by the statute.
299. Even without going into the debate as to whether the
right to vote is a statutory or constitutional right, the right to
be elected is indisputably a statutory right i.e. the right to
stand for elections can be regulated by law made by
Parliament. It is pure and simple a statutory right that can be
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
8 WP No.25382/2024
created and taken away by Parliament and, therefore, must
always be subject to statutory limitations.
300. In N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency this Court noticed with approval the decision
of the Privy Council in Joseph Theberge v. Phillippe
Laudry and held that the right to stand as a candidate for
election is not a civil right, but is a creation of statute or
special law and must be subject to the limitations imposed
by it. It was observed in AIR para 18 of the judgment as
under: (N.P. Ponnuswami case, SCR p. 236)
―The points which emerge from this decision may be stated
as follows:
(1) The right to vote or stand as a candidate for election is
not a civil right but is a creature of statute or special law
and must be subject to the limitations imposed by it.
(2) Strictly speaking, it is the sole right of the legislature to
examine and determine all matters relating to the election of
its own members, and if the legislature takes it out of its
own hands and vests in a special tribunal an entirely new
and unknown jurisdiction, that special jurisdiction should be
exercised in accordance with the law which creates it.‖
(emphasis supplied)
301. In Hari Prasad Mulshanker Trivedi it was reiterated
that: (SCC p. 422, para 24)
―The right to stand for election is a statutory right and the
statute can therefore regulate the manner in which the right
has to be enforced or the remedy for enforcing it.‖
302. Similar view was expressed by this Court once again
in Jyoti Basu v. Debi Ghosal in the following words: (SCC
pp. 696-97, para 8)
―8. A right to elect, fundamental though it is to democracy,
is, anomalously enough, neither a fundamental right nor a
common law right. It is pure and simple, a statutory right.
So is the right to be elected. So is the right to dispute an
election. Outside of statute, there is no right to elect, no
right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to
statutory limitation. An election petition is not an action at
common law, nor in equity. It is a statutory proceeding to
which neither the common law nor the principles of equity
apply but only those rules which the statute makes and
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
9 WP No.25382/2024
applies. It is a special jurisdiction, and a special jurisdiction
has always to be exercised in accordance with the statute
creating it. Concepts familiar to common law and equity
must remain strangers to election law unless statutorily
embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes, is
what the statute lays down. In the trial of election disputes,
court is put in a straitjacket. Thus the entire election process
commencing from the issuance of the notification calling
upon a constituency to elect a member or members right up
to the final resolution of the dispute, if any, concerning the
election is regulated by the Representation of the People
Act, 1951, different stages of the process being dealt with
by different provisions of the Act. There can be no election
to Parliament or the State Legislature except as provided by
the Representation of the People Act, 1951 and again, no
such election may be questioned except in the manner
provided by the Representation of the People Act. So the
Representation of the People Act has been held to be a
complete and self-contained code within which must be
found any rights claimed in relation to an election or an
election dispute.‖
* * *
362. We do not agree with the above submission. It is clear
that a fine distinction was drawn between the right to vote
and the freedom of voting as a species of freedom of
expression, while reiterating the view in Jyoti Basu v. Debi
Ghosal that a right to elect, fundamental though it is to
democracy, is neither a fundamental right nor a common
law right, but pure and simple, a statutory right.
363. Even otherwise, there is no basis to contend that the
right to vote and elect representatives of the State in the
Council of States is a constitutional right. Article 80(4)
merely deals with the manner of election of the
representatives in the Council of States as an aspect of the
composition of the Council of States. There is nothing in
the constitutional provisions declaring the right to vote in
such election as an absolute right under the Constitution.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
10 WP No.25382/2024
12. Thus, the right to elect, the right to contest election and right to
hold an elected post is a Statutory Right and cannot be held to be a
Substantive Right or Vested Right. Therefore, such a right can always be
created or taken away. In the other words, the Right to contest election is
always regulated by Statute.
13. The next question would be ―whether The Madhya Pradesh
Municipalities (Second Amendment) Ordinance, 2024, which deals with
the Statutory Rights of the parties, is Prospective in nature or it is
Retrospective/Retroactive in nature?‖
14. The Madhya Pradesh Municipalities (Second Amendment)
Ordinance, 2024 merely enhances the period of bringing no confidence
motion from Two Years to Three Years, therefore, it cannot be said that
any new right has been created. The right to move no-confidence motion
was already in the Statute book, but by the Ordinance in question, it has
been provided that the no-confidence motion can be moved after a period
of three years, in place of two years. The Madhya Pradesh
Municipalities (Second Amendment) Ordinance, 2024, merely regulates
the Statutory Right to move the no-confidence motion, therefore, it is
merely a Procedural Law, as it has changed the procedure only.
15. It is well established principle of law that unless expressed
otherwise, all amendments in Procedural Laws would be retrospective in
nature and all amendments in Substantive Laws would be Prospective in
nature.
16. The Supreme Court in the case of T. Kaliamurthi (Supra) has
held as under :
40. In this background, let us now see whether this section
has any retrospective effect. It is well settled that no statute
shall be construed to have a retrospective operation until its
language is such that would require such conclusion. TheSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433811 WP No.25382/2024
exception to this rule is enactments dealing with procedure.
This would mean that the law of limitation, being a
procedural law, is retrospective in operation in the sense
that it will also apply to proceedings pending at the time of
the enactment as also to proceedings commenced thereafter,
notwithstanding that the cause of action may have arisen
before the new provisions came into force. However, it
must be noted that there is an important exception to this
rule also. Where the right of suit is barred under the law of
limitation in force before the new provision came into
operation and a vested right has accrued to another, the new
provision cannot revive the barred right or take away the
accrued vested right.
17. The Supreme Court in the case of Hitendra Vishnu Thakur v.
State of Maharashtra, reported in (1994) 4 SCC 602 has held as under :
26. The Designated Court has held that the amendment
would operate retrospectively and would apply to the
pending cases in which investigation was not complete on
the date on which the Amendment Act came into force and
the challan had not till then been filed in the court. From the
law settled by this Court in various cases the illustrative
though not exhaustive principles which emerge with regard
to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to
be prospective in operation unless made retrospective,
either expressly or by necessary intendment, whereas a
statute which merely affects procedure, unless such a
construction is textually impossible, is presumed to be
retrospective in its application, should not be given an
extended meaning and should be strictly confined to its
clearly defined limits.
(ii) Law relating to forum and limitation is procedural in
nature, whereas law relating to right of action and right of
appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but
no such right exists in procedural law.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
12 WP No.25382/2024
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in
respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication.‖
What is the meaning of Restrospective and Retroactive operation of
law
18. The Supreme Court in the case of Swami Vivekanand College of
Education v. Union of India, reported in (2012) 1 SCC 642 has held as
under :
35. In State Bank’s Staff Union (Madras Circle) v. Union of
India the Supreme Court noticed and defined the expression
―retrospective‖ as under: (SCC pp. 592-93, paras 19-21)
―19. Every sovereign legislature possesses the right to make
retrospective legislation. The power to make laws includes
the power to give it retrospective effect. Craies on Statute
Law (7th Edn.) at p. 387 defines ‗retrospective statutes’ in
the following words:
‗A statute is to be deemed to be retrospective, which takes
away or impairs any vested right acquired under existing
laws, or creates a new obligation, or imposes a new duty, or
attaches a new disability in respect to transactions or
considerations already past.’
20. Judicial Dictionary (13th Edn.) by K.J. Aiyar,
Butterworth, p. 857, states that the word ‗retrospective’
when used with reference to an enactment may mean (i)
affecting an existing contract; or (ii) reopening up of past,
closed and completed transaction; or (iii) affecting accrued
rights and remedies; or (iv) affecting procedure. Words and
Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a
‗retrospective or retroactive law’ as one which takes away
or impairs vested or accrued rights acquired under existing
laws. A retroactive law takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
13 WP No.25382/2024
21. In Advanced Law Lexicon by P. Ramanatha Aiyar (3rd
Edn., 2005) the expressions ‗retroactive’ and ‗retrospective’
have been defined as follows at p. 4124, Vol. 4:
‗Retroactive.–Acting backward; affecting what is past. (Of
a statute, ruling, etc.) extending in scope or effect to matters
that have occurred in the past.–Also termed retrospective.
(Black’s Law Dictionary, 7th Edn., 1999)
―‗Retroactivity’ is a term often used by lawyers but rarely
defined. On analysis it soon becomes apparent, moreover,
that it is used to cover at least two distinct concepts. The
first, which may be called ‗true retroactivity’, consists in the
application of a new rule of law to an act or transaction
which was completed before the rule was promulgated. The
second concept, which will be referred to as ‗quasi-
retroactivity’, occurs when a new rule of law is applied to
an act or transaction in the process of completion. … The
foundation of these concepts is the distinction between
completed and pending transactions….‖ T.C. Hartley,
Foundations of European Community Law, p. 129 (1981).
* * *
Retrospective.–Looking back; contemplating what is past.
Having operation from a past time.
―‗Retrospective’ is somewhat ambiguous and that good deal
of confusion has been caused by the fact that it is used in
more senses than one. In general, however, the courts
regard as retrospective any statute which operates on cases
or facts coming into existence before its commencement in
the sense that it affects, even if for the future only, the
character or consequences of transactions previously
entered into or of other past conduct. Thus a statute is not
retrospective merely because it affects existing rights; nor is
it retrospective merely because a part of the requisite for its
action is drawn from a time antecedent to its passing.‖
(Halsbury’s Laws of England, 4th Edn., Vol. 44, p. 570,
para 921.)’‖
19. The Supreme Court in the case of Panchi Devi v. State of
Rajasthan, reported in (2009) 2 SCC 589 has held as under :
8………. A right or a liability which was created for the
first time, cannot be given a retrospective effect.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
14 WP No.25382/2024
20. The Supreme Court in the case of SEBI v. Rajkumar Nagpal,
reported in (2023) 8 SCC 274 has held as under :
99. We are of the opinion that the SEBI Circular has
retroactive application. In Principles of Statutory
Interpretation by Justice G.P. Singh (14th Edn., 2016 at p.
583), it is stated that:
―The rule against retrospective construction is not
applicable to a statute merely because “a part of the
requisites for its action is drawn from a time antecedent to
its passing‖. If that were not so, every statute will be
presumed to apply only to persons born and things which
come into existence after its operation and the rule may well
result in virtual nullification of most of the statutes.‖
(emphasis
supplied)
100. In Vineeta Sharma v. Rakesh Sharma this Court
described the nature of prospective, retrospective, and
retroactive laws : (SCC p. 53, para 61)
―61. The prospective statute operates from the date of its
enactment conferring new rights. The retrospective statute
operates backwards and takes away or impairs vested rights
acquired under existing laws. A retroactive statute is the one
that does not operate retrospectively. It operates in futuro.
However, its operation is based upon the character or status
that arose earlier. Characteristic or event which happened in
the past or requisites which had been drawn from
antecedent events.‖
101. The terms ―retrospective‖ and ―retroactive‖ are often
used interchangeably. However, their meanings are distinct.
This Court succinctly appreciated the difference between
these concepts in State Bank’s Staff Union (Madras Circle)
v. Union of India:
― ―Retroactivity‖ is a term often used by lawyers but rarely
defined. On analysis it soon becomes apparent, moreover,
that it is used to cover at least two distinct concepts. The
first, which may be called ―true retroactivity‖, consists in
the application of a new rule of law to an act or transaction
which was completed before the rule was promulgated. The
second concept, which will be referred to as ―quasi-
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
15 WP No.25382/2024
retroactivity‖, occurs when a new rule of law is applied to
an act or transaction in the process of completion….The
foundation of these concepts is the distinction between
completed and pending transactions….‖ [T.C. Hartley, The
Foundations of European Community Law 129 (1981).]
102. Many decisions of this Court define ―retroactivity‖ to
mean laws which destroy or impair vested rights. In real
terms, this is the definition of ―retrospectivity‖ or ―true
retroactivity‖. ―Quasi-retroactivity‖ or simply
―retroactivity‖ on the other hand is a law which is
applicable to an act or transaction that is still underway.
Such an act or transaction has not been completed and is in
the process of completion. Retroactive laws also apply
where the status or character of a thing or situation arose
prior to the passage of the law. Merely because a law
operates on certain circumstances which are antecedent to
its passing does not mean that it is retrospective.
21. The Supreme Court in the case of Shanti Conductors (P) Ltd. v.
Assam SEB, reported in (2019) 19 SCC 529 has held as under :
64. The opinion of Gowda, J. dated 31-8-2016 although
holds that the Act is not retrospective but he holds the Act
retroactive. The word ―retroactive‖ has been defined in
Black’s Law Dictionary in the following words:
―Retroactive, adj.(17c) (Of a statute, ruling, etc.) extending
in scope or effect to matters that have occurred in the past.
–Also termed retrospective. Cf. PROSPECTIVE (1).-
retroact, vb.‖
65. The two-Judge Bench of this Court in State Bank’s Staff
Union (Madras Circle) v. Union of India, had occasion to
examine the concept of retroactive and retrospective. In
paras 20 and 21 of the judgment the following has been laid
down: (SCC p. 593)
―20. Judicial Dictionary (13th Edn.) by K.J. Aiyar,
Butterworth, p. 857, states that the word ―retrospective‖
when used with reference to an enactment may mean (i)
affecting an existing contract; or (ii) reopening up of past,
closed and completed transaction; or (iii) affecting accrued
rights and remedies; or (iv) affecting procedure. Words and
Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines aSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433816 WP No.25382/2024
―retrospective or retroactive law‖ as one which takes away
or impairs vested or accrued rights acquired under existing
laws. A retroactive law takes away or impairs vested rights
acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect
to transactions or considerations already past.
21. In Advanced Law Lexicon by P. Ramanatha Aiyar (3rd
Edn., 2005) the expressions ―retroactive‖ and
―retrospective‖ have been defined as follows at p. 4124,
Vol. 4:
‗Retroactive.–Acting backward; affecting what is past.
(Of a statute, ruling, etc.) extending in scope or effect to
matters that have occurred in the past. –Also termed
retrospective. (Black’s Law Dictionary, 7th Edn., 1999)
―Retroactivity‖ is a term often used by lawyers but rarely
defined. On analysis it soon becomes apparent, moreover,
that it is used to cover at least two distinct concepts. The
first, which may be called ―true retroactivity‖, consists in
the application of a new rule of law to an act or transaction
which was completed before the rule was promulgated. The
second concept, which will be referred to as ―quasi-
retroactivity‖, occurs when a new rule of law is applied to
an act or transaction in the process of completion … The
foundation of these concepts is the distinction between
completed and pending transactions … [T.C. Hartley, The
Foundations of European Community Law, p. 129 (1981)].
* * *
Retrospective.–Looking back; contemplating what is past.
Having operation from a past time.
―Retrospective‖ is somewhat ambiguous and that good deal
of confusion has been caused by the fact that it is used in
more senses than one. In general, however, the courts
regard as retrospective any statute which operates on cases
or facts coming into existence before its commencement in
the sense that it affects, even if for the future only, the
character or consequences of transactions previously
entered into or of other past conduct. Thus, a statute is not
retrospective merely because it affects existing rights; nor is
it retrospective merely because a part of the requisite for its
action is drawn from a time antecedent to its passing.’ (Vol.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
17 WP No.25382/2024
44, Halsbury’s Laws of England, 4th Edn., p. 570, para
921.)‖
66. Further in Jay Mahakali Rolling Mills v. Union of India,
explaining retroactive and retrospective the following has
been laid down: (SCC p. 200, para 8)
―8. ―Retrospective‖ means looking backward,
contemplating what is past, having reference to a statute or
things existing before the statute in question. Retrospective
law means a law which looks backward or contemplates the
past; one, which is made to affect acts or facts occurring, or
rights occurring, before it comes into force. Retroactive
statute means a statute, which creates a new obligation on
transactions or considerations or destroys or impairs vested
rights.‖
67. Retroactivity in the context of the statute consists of
application of new rule of law to an act or transaction which
has been completed before the rule was promulgated.
22. When the right to hold an elected office is merely a statutory right,
then the law regulating election, working and tenure of such elected office,
would be a procedural law and therefore, any amendment in procedural
law has to be treated as retrospective in operation, unless it is otherwise
provided in the Ordinance or Amendment Act.
23. The Madhya Pradesh Municipalities (Second Amendment)
Ordinance, 2024 reads as under :
[First published in the ―Madhya Pradesh Gazette (Extra-
ordinary)‖ dated the 27th August, 2024]
Promulgated by the Governor in the Seventy-fifth year of
the Republic of India
An Ordinance further to amend the Madhya Pradesh
Municipalities Act, 1961.
Whereas, the State Legislature is not in session and the
Governor of Madhya Pradesh is satisfied that circumstances
exist which render it necessary for him to take immediate
action;
Now, THEREFORE, in exercise of the powers conferred by
clause (1) of Article 213 of the Constitution of India, theSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433818 WP No.25382/2024
Governor of Madhya Pradesh is pleased to promulgate the
following Ordinance :-
1. This Ordinance may be called the Madhya Pradesh
Municipalities (Second Amendment) Ordinance, 2024.
2. During the period of operation of this Ordinance, the
Madhya Pradesh Municipalities Act, 1961 (NO. 37 of 1961)
(hereinafter referred to as the principal Act), shall have
effect subject to the amendment specified in Sections 3.
3. In Section 43-A of the principal Act, in sub-section
(1) –
(a) In the opening paragraph, for the words ―two third‖,
the words ―three fourths‖ shall be substituted.
(b) In clause (i) of the proviso, for the words ―two
years‖, the words ―three years‖ shall be substituted.
24. From the plain reading of the aforementioned Ordinance, it is clear
that there is nothing to indicate that the Ordinance has been given
prospective effect.
25. Under these circumstances, it is held that The Madhya Pradesh
Municipalities (Second Amendment) Ordinance, 2024 would certainly
have retroactive operation and would apply to the ongoing proceeding
which was initiated under Section 43-A of Municipalities Act, by moving
a motion of no-confidence against the President, Municipal Council,
Damoh.
26. My view is fortified by an order passed by Division Bench of
Allahabad High Court in the case of Anuj Kumar Vs. State of U.P.
reported in 2023 SCC OnLine All 66 which reads as under :
31. The dispute is that whether the substitution of words
―two years‖ in place of ―one year’ would operate
prospectively or retrospectively. The argument of learned
counsels for the petitioners is that once the motion of No
Confidence has been received by the Collector, having been
moved by the elected members in accordance with theSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433819 WP No.25382/2024
provisions of sub-section (1) & (2) of Section 15, there was
no option before the Collector but to proceed, to carryout
the motion, in accordance with the provisions of sub-section
(5) to (11) of Section 15, as the date fixed by the Collector,
after scrutiny of the written motion, to consider the motion
of No-Confidence had been adjourned and the amendments
were brought in between. The submission is that with the
moving of the motion of No-Confidence, the elected
members have exercised their right to vote in the meeting to
be convened by the Collector in accordance with the
procedure prescribed in the Section 15. With the right
exercised by the elected members created a further right in
favour of them which is a ―vested right‖ or ―right
accrued/acquired‖. The effect of repeal without any saving
clause of the existing provisions, would imply the
application of the substituted provisions as prospective.
With the substitution of the old provisions, the normal rule
is to give prospective effect to the new provisions and the
retrospectivity, by implication is an exception. There is
presumption against implied retrospectivity, with the effect
of repeal, the ‗accrued right’ would survive by virtue of
Section 6 of the General Clauses Act, unless they are taken
away expressly. We are, thus, required to consider the effect
of the right exercised by the petitioner/elected members,
which is a statutory right, by bringing the motion of No-
Confidence, before the Collector in the prescribed format.
32. Having noted above that the provisions of Section 15
are based on democratic principles, in order to preserve the
rule of self-governance at the grassroot level, and that they
are procedural in nature, we are first required to consider
the principles of application of procedural amendments.
33. It is fundamental rule that no statute shall be construed
so as to have a retrospective operation, unless its language
is such as plainly to require such a construction. A statute is
not to be construed so as to have a greater retrospective
operation than its language renders necessary. Generally,
there is strong presumption that a legislature does not intent
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
20 WP No.25382/2024
to impose a new liability in respect of something that has
already happened, because generally it would not be
reasonable for a legislature to do that. But this presumption
may be overcome not only by express words in the Act but
also by circumstances sufficiently strong to displace it.
34. The principle applied by the Court in construing
legislation as expressed in Craies on Legislation 9th Edition
is that retrospective application is to be rebuttably presumed
not to be intended, that retrospectivity should be avoided
except where necessary. However, this rule both
fundamentally and in a straightforward manner cannot be
applied as a number of difficulties arise in determining its
precise extent and how to apply it. One of such is in
determining whether a statute is retrospective concerns the
possibility of action under a statute which has effect not
only for the future but is brought about in part by reference
to past events i.e. future action in relation to past events. A
further necessary distinction is that retrospective operation
is one matter, interference with existing rights is another.
As noted in the Craise on Legislation 9th Edition at placitum
10.3.7 in Chapter 10:–
―Distinction between retrospectivity and affecting existing
rights A further necessary distinction between what is and is
not retrospectivity is illustrated in the following passage of
the judgment of Buckley L.J.
In West v. Gwynne Retrospective operation is one matter.
Interference with existing rights is another. If an Act
provides that as at a past date the law shall be taken to have
been that which it was not, that Act I understand to be
retrospective. That is not this case …… As a matter of
principle an Act of Parliament is not without sufficient
reason taken to be retrospective. There is, so to speak, a
presumption that it speaks only as to the future. But there is
no like presumption that an Act is not intended to interfere
with existing rights. Most Acts of Parliament, in fact, do
interfere with existing rights.‖Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433821 WP No.25382/2024
35. However this rigid rule against retrospectivity does not
apply in relation to procedural provisions. There is
distinction between procedural and substantive provisions
for the purpose of application of rule relating to
retrospectivity. As noted in ‗Craise at placitum 10.3.9 at
page No. 436,’ the nature of exception and its justification
are clearly encapsulated in the passage from the speech of
Lord Brightman in noted in Craise on
th
Legislation (9 Edition):–
―Apart from the provisions of the interpretation statutes,
there is at common law a prima facie rule of construction
that a statute should not be interpreted retrospectively so as
to impair an existing rights or obligation unless that result is
unavoidable on the language used. A statute is retrospective
if it takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new
duty, or attaches a new disability, in regard to events
already past. There is, however, said to be an exception in
the case of a statue which is purely procedural, because no
person has a vested right in any particular course of
procedure, but only a right to prosecute or defend a suit
according to the rules for the conduct of an action for the
time being prescribed.‖
36. The general rule against the retrospective operation of
statute does not apply to procedural provisions. Indeed, a
general presumption is that the statutory change in
procedure applies to pending as well as future proceedings.
37. The distinction between the substance and procedure is,
however, not always easy to ascertain or apply as stated by
Lord Brightman in his speech noted at placitum 10.3.9 at
page ‗437′ in Craise on Legislation (9th Edition):–
―But these expressions ‗retrospective’ and ‗procedural’,
though useful in a particular context, are equivocal and
therefore can be misleading. A statute which is
retrospective in relation to one aspect of a case (e.g. because
it applies to a pre-statute cause of action) may at the sameSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433822 WP No.25382/2024
time be prospective in relation to another aspect of the same
case (e.g. because it applies only to the post-statute
commencement of proceedings to enforece that cause of
action); and an Act which is procedural in one sense may in
particular circumstances do far more than regulate the
course of proceedings, because it may, on one
interpretation, revive or destroy the cause of action itself.‖
38. The general preposition outlined above in Craise on
Legislation is that for the consideration of retrospectivity,
there is no substitute for consideration of the substance of
the provisions concerned, and taking all the circumstances
into account, considering what result the legislature can
reasonably be presumed to have wanted or not wanted to
achieve.
39. As stated by Lord Denim in Blyth and Blyth23, the rule
that an Act of Parliament is not to be given retrospective
effect applies only to statutes which affects vested right. It
does not apply to statute which only alter the form or
procedure or the admissibility of evidence or the effect
which the courts give to evidence.
40. In stating the principle that ―a change in the law of
procedure operates retrospectively and unlike the law
relating to vested right is not only prospective‖ the Supreme
Court has quoted with approval the reason of the rule as
expressed in Maxwell:– In Anand Gopal v. State of Bom
―No persons has a vested right in any course of procedure.
He has only the right of prosecution or defence in the
manner prescribed for the time being by or for the Court in
which the case is pending, and if, by an Act of Parliament,
the mode of procedure is altered, he has no other right than
to proceed according to the altered mode‖.
41. In Commissioner of Police, Delhi v. Dhaval Singh, it
has been said that:–
―The law relating to forum and limitation is procedural in
nature whereas law relating to right of action and right ofSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:4433823 WP No.25382/2024
appeal even though remedial is substantive in nature; that a
procedural statute should not generally speaking be applied
retrospectively where the result would be to create new
disabilities or obligation or to impost new duties in respect
of transaction already accomplished; that statute which not
only changes the procedure but also creates new right and
obligation shall be construed to be prospective, unless
otherwise provided either expressly or by necessary
implication.‖
42. It was, thus, expressed that in deciding the question of
applicability of a particular statute to past events, the
language used is no doubt the most important factor to be
taken into account but the real issue in each case is as to the
dominant intention of the legislature to be gathered from the
language used, the object indicated, the nature of rights
affected, and the circumstances under which the statute is
passed.
43. Keeping in mind of the above legal principles, we are
required to examine the nature of amendments in the instant
case, considering the arguments of Sri. Rakesh Pande one
of the learned Senior Counsel for the petitioner that the
effect of ―substitution‖ of the words ―two years‖ in place of
―one year‖ would be to apply the amendments
prospectively. This argument is plainly based on the general
principle of presumption against retrospectivity.
44. As noted above, general rule against retrospective
operation of statute does not apply to amendments in
procedural provisions/statute. If simplistic interpretation of
amendment with the words ―substitution‖ of the old
provisions, as asserted, is applied, the result would be that
an elected Pramukh in the last election, against whom the
motion of No Confidence has not been brought till the
amendment enforced in sub-section (13) will be able to
continue for a period of ‗two years’ from the date of
assumption of his office. Whereas another Pramukh who is
elected in the same election, against whom the motion of
No Confidence has been brought prior to the amendments
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
24 WP No.25382/2024
i.e. 04.10.2022, may be removed before expiry of period of
‗two years’ from assumption of his office, if the motion is
carried out in the meeting called by the Collector.
45. It would be quixotic to suppose that the State legislature
intended to curtail the right of members to move No-
Confidence motion against a Pramukh for a period of ‗two
years’ of the assumption of office, only of such members
who did not or could not bring such a motion after expiry of
period of one year, under the pre-existing provisions. And
simultaneously, it will allow the elected members to carry
out or vote on the motion of No-Confidence brought by
them within the period of ‗two years’ (as per the amended
provisions), simply because the motion was moved prior to
the amendment. It is settled rule of interpretation that any
interpretation of statute which leads to absurdity should be
avoided. It is presumed that the legislature does not intend
an absurdity, or that absurd consequences shall follow from
its enactment. Such a result will, therefore, be avoided, if
the terms of the Act admit it, by reasonable construction of
the statute. It is applicable, like all other presumptions, thus
if by applying the literal rule of interpretation, the
construction is being absurd then it should be avoided.
46. In our considered opinion, having gone through the
object and substance of the provision concerned, the
legislature can reasonably be assumed to have wanted to
curtail the right of an elected members to bring motion of
No-Confidence within a period of ‗two years’ of the
assumption of office by a Pramukh, by bringing amendment
in sub-section (13) of Section 15.
47. The arguments against retrospectivity of the
amendments by applying the normal rule of prospectivity or
rule of presumption against implied retrospectivity, are
liable to be turned down.
* * *
55. The exercise of such a right by moving a motion of No-
Confidence as conferred under sub-section (1) and (2) of
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
25 WP No.25382/2024
Section 15, in our considered opinion, is only an expression
of intention to bring the motion. The intention to make the
motion, does not confer any ‗vested right’ with the elected
members to carry-out the motion of No-Confidence in the
meeting convened by the Collector. The obligation cast
upon the Collector for compliance of mandatory provisions
of subsection (3) of Section 15, would have no bearing on
the right of an elected members to bring the motion. No
―vested right‖ or ―accrued right‖ can be said to be created in
favour of elected members for consideration of motion by
mere fixing a date to convene the meeting in accordance
with sub-section (3) and (4-B) of Section 15.
27. So far as the submissions made by Counsel for the Respondent, that
in the democracy, every holder of elected office, has to work efficiently,
and if it is found that such person is not performing well, then the elected
Councilors have a right to move no-confidence motion, therefore, the
removal of an inefficient elected office bearer is in the interest of
Democracy is concerned, the same cannot be accepted.
28. The President of Municipal Council is elected indirectly by the
elected Councilors. Therefore, the elected President of Municipal Council
would hold the office so long it enjoys the confidence of three fourths of
the elected councilors present and voting in the no-confidence meeting.
The confidence of three fourths of the elected councilors has nothing to do
with the quality of performance of work by the elected President.
29. So far as the contention of the Counsel for the respondents, that in
case, the President is not performing efficiently, then he can be removed by
moving a no-confidence motion is concerned, it is suffice to mention here,
that the State Govt. can remove a President under Section 41-A of M.P.
Municipalities Act, if it is found that his continuation is not in the interest
of Council or general public or if he is working against the provisions of
the Act or any rules made thereunder or if he is incapable of performing his
duties. Thus, the assessment of performance of work is not a sine qua non
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
26 WP No.25382/2024
for moving a motion of no-confidence under Section 43-A of M.P.
Municipalities Act.
30. Before parting with this order, this Court would like to comment
upon the state of uncertainty which was prevailing in the State of M.P. with
regard to the Retrospective/Retroactive/Prospective operation of The
Madhya Pradesh Municipalities (Second Amendment) Ordinance,
2024. For Municipal Council, Devari, Distt. Sagar, the Add. Collector
withdrew the letter of convening the meeting to consider no confidence
motion, merely on the basis of decision taken by the Cabinet, whereas in
other Districts, the meeting was cancelled after the Ordinance was
promulgated. Whereas in the present case, the Collector, Damoh had
decided to go ahead with the meeting to consider the no-confidence
motion. It is true that principle of Negative Equality cannot be applied by
the Courts, but in a democratic set up, where there is an element of
uncertainty amongst various officers of the State, then it was expected
from State Govt. to clarify the situation, so that every no confidence
motion could have been dealt with by various officers in the similar
manner.
31. Considering the totality of the facts and circumstances of this case,
this Court is of the considered opinion, that The Madhya Pradesh
Municipalities (Second Amendment) Ordinance, 2024 has retroactive
operation and would apply to all those cases, where although the no-
confidence motion might have been moved prior to promulgation of the
Ordinance, but still the meeting to consider the no-confidence motion was
fixed after the promulgation of Ordinance. Therefore, the order dated 23-8-
2024, issued by Collector and Add. Collector, Damoh, thereby, fixing the
meeting on 4-9-2024 for considering the no-confidence motion (Annexure
P-1) is hereby Quashed.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:44338
27 WP No.25382/2024
32. The Petition succeeds and is hereby Allowed.
(G.S. AHLUWALIA)
JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 06-09-2024
14:49:44