State of Orissa Vs. Bhupendra Kumar
Bose  INSC 367 (22 December 1961)
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1962 AIR 945 1962 SCR Supl. (2) 380
CITATOR INFO :
R 1974 SC 396 (25) RF 1975 SC2299
(186,228,315,606) R 1977 SC1884 (26) R 1982 SC 710 (19) R 1985 SC 724 (19)
Municipal Elections-Electoral rolls
improperly prepared-High Court declaring elections invalid-Validating
Ordinance-Constitutionality of- Expiry of ordinance-Whether invalidity revives-
Orissa Municipal Act, 1950 (Orissa 33 of 1950)- Orissa, Ordinance 1 of 1959,
ss. 3, 4 and 5- Constitution of India, Arts. 14, 226 and 254
Elections were held for the Cuttack
Municipality and 27 persons were declared elected as Councillors. One B, who
was defeated at the elections, filed a writ petition before the High Court
challenging the elections. The High Court held that the electoral rolls had not
been prepared in accordance with the provisions of the Orissa Municipalities
Act, 1950, as the age qualification had been published too late thereby
curtailing the period of claims and objections to the preliminary roll to 2
days from 21 days as prescribed; Consequently the High Court set aside the
elections. The State took the view that the judgment affected not merely the
Cuttack Municipality but other municipalities also.
Accordingly, the Governor promulgated an
ordinance validating the elections to the Cuttack Municipality and validating
the electoral rolls prepared in respect of other municipalities.
Thereupon, B filed a writ petition before the
High Court contending that the ordinance was unconstitutional. The High Court
found that the ordinance contravened Art. 14 of the Constitution, that it did
not successfully cure the invalidity and that it offended Art. 254(1) of the
Constitution as it was inconsistent with many Central Acts falling in the
concurrent list and was unconstitutional. The State and the Councillors
appealed and challenged the findings of the High Court. B raised two further
contentions that the appeal had become infructuous as the ordinance had expired
and that the ordinance was invalid as it purported to invalidate the judgment
of the High Court.
^ Held, that the ordinance was valid and that
it successfully cured the invalidity of the electoral roll and of the elections
to the Cuttack Municipality.
The Ordinance did not offend Art. 14 of the
Constitution. Its object was not only to save the elections to the 381 Cuttack
Municipality but also to other municipalities whose validity might be
challenged on similar grounds. It did not single out B for any discriminatory
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar,
 S. C. R. 279, referred to.
State of Vermont v. Albert Shedroi,(1904)68
L. Ed. 179, distinguished.
The Ordinance effectively removal the defects
in the electoral rolls found by the High Court by its first judgment. It was
not necessary for it to further state that the result of elections was not
Section 5(1) of the Ordinance which saved the
actions taken and powers exercised by the Councillors, the Chairman and the
Vice-Chairman was not repugnant to any existing law and did not contravene Art.
254(2) of the Constitution.
Section 5(1) was confined to action taken
under the Orissa Municipalities Act and did not extend to violations of other
laws made by the Central Legislature under the concurrent list.
The first judgment of the High Court under
Art. 226 of the Constitution could not be equated with Art. 226 itself. As such
the Governor did not transgress any constitutional limitation in nullifying its
effect by the validating Ordinance.
The invalidity of the electoral rolls and the
elections to the Cuttack Municipality did not revive on the expiry of the
Ordinance. The general rule with regard to temporary statutes is that, in the
absence of a special provision to the contrary, proceedings being taken under
it against a person will ipso facto terminate as soon as the statute expires.
But, if the right created by the Statute is of an enduring character and has
vested in the person, that right cannot be taken away simply because the
statute has expired. The rights created by the Ordinance lasted even after the
Ordinance lapsed as its object was to remove the invalidity permanently.
Krishnan v. State of Madras  S.C.R. 621,
Wicks v. Director of Public Prosecutions,  A.C. 362, Steavenson v. Oliver
(1841) 151 E. R. 1024 and Warren v. Windle, (1803) 3 East 205, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 525 and 526 of 1960.
Appeals from the judgment and order dated
March 20, 1959, of the Orissa High Court in O.J.C. No. 12 of 1959.
382 A. Viswanatha Sastri, B.R.L. Iyengar and
T. M. Sen, for the appellant (In C.A. No. 525/60) and respodent No. 1 (in C.A.
No. 526 of 1960.) B. P. Maheshwari, for the appellants (in C.A.
No. 526/60) and Respondents Nos. 2 to 8, 10,
13 to 16, 19-21, 23, 25, 27, and 28 (in C.A. No. 525/60).
A. Ranganadham Chetty. A. V. Rangam, S. Mishra,
A. Vedavalli and R. Patnaik, for respondent No. 1 (in C.A. No. 525/60) and 2
(in C.A. No. 526 of 60).
1961. December 22. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-These two appeals are directed against the
order passed by the High Court of Orissa under Art. 226 of the Constitution
striking down as unconstitutional sections 4 and 5 (1) of orissa Ordinance I of
1959 promulgated by the Governor of Orissa on January 15, 1959. This Order was
passed on the Writ Petition filed by Mr. B. K. Bose against the State of Orissa
and 27 persons who were elected Councillors of the Cuttack Municipality,
including the Chairman and the Vice-Chairman respectively. Appeal No. 525 has
been filed by the State of Orissa whereas Appeal No. 526 is filed by the said
Municipal Councillors. The appellants in both the appeals obtained leave from
the Orissa High Court to appeal to this Court.
It appears that during December, 1957 to
March, 1958, elections were held for the Cuttack Municipality under the
provisions of the Orissa Municipal Act, 1950 Orissa (XXXIII of 1950)
(hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960
were declared elected as Councillors. From amongst them, Manmohan Mishra was
elected the Chairman and Mahendra Kumar Sahu the Vice-Chairman. Mr. B. K. Bose,
who is an Advocate practising in Cuttack and a resident within the municipal
limits of Cuttack, 383 had contested the said elections as a candidate from
Ward No.13. He was, however, defeated.
Thereupon, he presented an application to the
High Court (O.J.C. No. 72 of 1958) to set aside the said elections. To this
application he impleaded the State of Orissa and the 27 elected Councillors. In
his petition Mr. Bose alleged that the elections held for the Cuttack
Municipality were invalid and he claimed an injunction restraining the 27
respondents from functioning as elected Councillors and the Chairman and the
Vice- Chairman amongst them from discharging their duties as such. The
respondents to the petition traversed the allegations made by Mr. Bose and
urged that the elections were valid and that the petitioner was not entitled to
any relief under. Art. 226.
The High Court upheld the contentions raised
by the petitioner. It came to the conclusion that the qualifying date for
determining the age qualification of voters under s.13 of the Orissa Municipal
Act had been published by the State Government only on January 10, 1958, though
the preliminary electoral rolls had already been published on December 23,
1957. In consequence, the claims and objections had been invited for a period
of 21 days from the said date to January 12, 1958. As a result of the delay
made in publishing the qualifying date for the determination of age
qualification of voters, the citizens of Cuttack were, in fact, given only two
days' time to file their claims and objections, whereas under the relevant
Election Rules they were entitled to 21 days. The High Court also came to the
conclusion that this drastic abridgment of the period for filing claims and
objections had materially affected the results of the elections, by depriving
several voters of their right to be enrolled as such. The High Court also found
that whereas a candidate was entitled to 15 clear days for the purpose of canvassing,
the notification issued under the Orissa Municipal Election Rules curtailed
this period to 384 14 days. According to the High Court, the respondents to the
petition had failed to show that the results of the elections had not and could
not have been affected by the contravention of the said Rules. On these
findings, the elections in question were set aside and appropriate orders of
injunction issued as claimed by the petitioner. This judgment was pronounced on
December 11, 1958.
It appears that the State of Orissa took the
view that the effect of the said judgment could not be confined only to Cuttack
Municipality. As a result of the findings made by the High Court during the
course of the said judgment the validity of elections to other Municipalities'
might also be exposed to the risk of challenge and that would have necessitated
the preparation of fresh electoral rolls after following the procedure
prescribed in that behalf by the Act.
That is why the Governor of Orissa
promulgated the impugned Ordinance on January 15, 1959. Broadly stated, the
effect of the Ordinance was that the elections to the Cuttack Municipality
stood validated and the said Municipality began to function once again. It also
validated the electoral rolls prepared in respect of the other Municipalities
in the State of Orissa and thus sought to save elections held or to be held in
respect of the said Municipalities from any possible challenge.
When Mr. Bose found that his success in the
Writ Petition (O.J.C. No. 72 of 1958) had thus been rendered illusory by the
Ordinance, he moved the High Court again by the present Writ Petition.
He contended that the material provisions of
the Ordinance, viz., ss. 4 and 5(1) were unconstitutional and he asked for an
appropriate relief on that basis. The High Court has again upheld the
contentions raised by Mr. Bose and has struck down ss.4 and 5(1) of the
Ordinance and issued appropriate orders of injunction restraining the elected
Councillors and 385 the Chairman and Vice-Chairman from functioning as such.
The State of Orissa and the 27 Councillors by separate applications obtained a
certificate from the High Court and have come to this Court by their two
separate appeals Nos. 525 and 526 of 1960, Before dealing with the validity of
the impugned provisions of the Ordinance, it is necessary to consider the broad
features of the Ordinance itself. As the preamble to the Ordinance shows, the
Governor of Orissa promulgated it because he thought it necessary to provide
for the validation of electoral rolls and elections to Municipalities. In his
opinion, the preparation of fresh electoral rolls and the holding of fresh
elections which would have become necessary unless a validating Ordinance had
been passed, would have entailed huge expenditure and would have given rise to
problems regarding the administration of such Municipalities during the
He also thought that it was necessary to take
immediate steps to provide for the validation of the electoral rolls and the
elections since the Legislature of the State of Orissa was not then in session
and the Governor thought circumstances existed which rendered it necessary to
take immediate action. In exercise of the powers conferred on him by Art.
213(1) of the Constitution, he was, therefore, pleased to promulgate the
Ordinance. That, according to the statement made in the preamble to the
Ordinance explains the genesis of its promulgation.
The Ordinance consists of five sections.
Section 1 gives its short title and extent,
while s.2 is the defining section. Sections, 3, 4 and 5 read thus:- "3.
(1) Notwithstanding the Order of any Court to the contrary or any provision in
the Act or the rules there under:
(a) the electoral rolls of the Cuttack
Municipality shall be, and shall always 386 be deemed to have been validly
prepared and published; and (b) the said electoral rolls shall be deemed to
have come in force on the date of publication and shall continue to be in force
until they are revised in accordance with the rules made in this behalf under
(2) The validity of the electoral rolls shall
not be called in question in any court on the ground that the date on which a
person has to be not less than 21 years of age was fixed under Section 13 of
the act after the publication of the preliminary electoral rolls.
4. Any order of a court declaring the
election to the Cuttack Municipality invalid on account of the fact that the
electoral rolls were invalid on the ground specified in Sub-section (2) of
section 3 or on the ground that the date of polling of the election was not
fixed in accordance with the Act or the rules made there under, shall be deemed
to be and always to have been of, no legal effect, whatsoever, and the
elections to the said Municipality are hereby validated.
5. (1) All actions taken, and powers
exercised by the Councillors, Chairman or Vice-Chairman of the Cuttack
Municipality prior to the coming into force of this Ordinance shall be deemed
to have been validly taken, and exercised.
(2) All actions taken and powers exercised by
the District Magistrate of Cuttack in respect of the Cuttack Municipality in
pursuance of the order of the Government of Orissa in the Health (L. S. G.)
Department No. 8263 L.S.G. dated the 13th December, 1958, shall be deemed to
have been taken 387 and exercised by the Council of the said Municipality or
its Chairman or Vice- Chairman, as the case may be." It will thus be seen
that s. 3 purports to validate the electoral rolls which had been held to be
invalid by the High Court in Writ Petition No. 72 of 1958. Sub-section (1) of
s. 3 deals specifically with the infirmities found in the elections held for
the Cuttack Municipality whereas sub-s. (2) deals with the defects in the
electoral rolls in respect of all the Municipalities. Section 4 validates, in
particular, the elections to the Cuttack Municipality which had been held to be
invalid by the High Court. Section 5(1) purports to protect all actions taken
and powers exercised by the Councillors, the Chairman and the Vice-Chairman
prior to the coming into force of the Ordinance, while s. 5(2) validates all
actions taken and powers exercised by the District Magistrate of Cuttack in
respect of the Cuttack Municipality in pursuance of the Order there specified.
In other words, the Ordinance is a validating Ordinance. It purports to
validate the elections of the Cuttack Municipality in particular and to make
valid and regular the electoral rolls which would otherwise have been held to
be irregular and invalid in accordance with the judgment of the High Court.
Before the High Court, on behalf of Mr. Bose
five points were raised. It was argued that the provisions of the Ordinance
were a mere colourable device to set aside the judgment of the High Court in
O.J.C. No. 72 of 1958. It was, in fact, and in substance, not any exercise of
legislative power by the Governor but assumption by him of judicial power which
is not warranted by the Constitution.
The High Court has rejected this contention
and the finding of the High Court on this point has not been challenged before
us. So we are relieved of the task of considering the merits of this finding.
388 It was then contended that s. 4 of the
Ordinance contravenes the equality before law guaranteed by Art. 14 of the
Constitution. It was also urged alternatively that even if s. 4 did not
contravene Art. 14, it did not successfully cure the invalidity of the
elections to the Cuttack Municipality arising out of the fact that material
prejudice had been caused to the citizens by the abridgement of the period for
filing claims and objections and of the period for canvassing. In regard to s.
5(1) the argument was that it was invalid under Art. 254(1). All these three
contentions have been accepted by the High Court and the correctness of the
findings recorded by the High Court in that behalf fall to be considered in the
present Appeals. The last contention raised in support of the petition was that
on February 23, 1959, a Bill entitled "Orissa Municipal Election
Validating Bill, 1959" which contained substantially similar provisions as
those of the Ordinance, was sought to be introduced in the Orissa Legislative
Assembly but was defeated by a majority of votes and that made the ordinance
invalid. This contention has been rejected by the High Court and the finding of
the High Court on this point has not been challenged before us. Thus, out of
the 5 points raised before the High Court, 3 have been argued before us. For
Mr. Bose, Mr. Ranganathan Chetty has also urged two additional points. He has
contended that the present appeals have really become infructuous in view of
the fact that the impugned Ordinance lapsed on April 1, 1959. This argument has
been strenuously pressed before us in the form of a preliminary objection
against the competence of the appeals themselves. On the merits, Mr. Chetty has
urged an additional ground that the Ordinance was invalid inasmuch as it
purported to invalidate the judgment of the High Court in O.J.C. No. 72 of 1958
delivered under Art. 226 of the Constitution.
389 Let us first consider whether s. 4
offends the equality before law guaranteed by Art. 14. In coming to the
conclusion that the said section is unconstitutional on the ground that it
contravenes Art. 14. the High Court was very much impressed by the fact that as
a result of its earlier judgment, Mr. Bose had obtained a very valuable right
of preventing the existing Councilors from functioning as such and of having
fresh elections conducted according to law in which he would have the right to
stand as a candidate once again. The petitioner Mr. Bose, may legitimately ask,
observed the High Court, why, when hundreds of successful suitors who have
sought the help of that Court for relief under Art. 226 were allowed to enjoy
the fruits of their success, he alone should have been discriminated against by
hostile legislation. With respect, this rhetorical approach adopted by the High
Court, in dealing with the question about the validity of s. 4 is open to the
obvious criticism that it is inconsistent with the view taken by the High Court
itself in this very judgment that the Governor was competent to issue an
Ordinance to invalidate the judgment of the High Court pronounced in O.J.C. No.
72 of 1958; as we have already pointed out one of the contentions raised by Mr.
Bose against the validity of the Ordinance was that in the guise of the
exercise of the legislative powers, the Governor had purported to exercise
judicial powers and that was beyond his competence. Since the finding of the
High Court on this question has not been challenged before us by Mr. Chetty, we
propose to express no opinion on its merits. But if it is held that in
promulgating the validating Ordinance the Governor was exercising his powers
under Art. 213(1) and his legislative competence in that behalf is not in doubt,
then it is difficult to appreciate how the High Court should have allowed
itself to be influenced by the grievance made by Mr. Bose that he had been
deprived of the fruits of his success in the earlier Writ Petition.
390 The High Court was, no doubt, influenced
by its conclusion that Mr. Bose alone had been singled out for discriminatory
treatment of the impugned Ordinance and that, according to the High Court,
constituted violation of the provisions of Art. 14. There are, however, two
obvious infirmities in this conclusion. Looking at the scheme of the Ordinance,
it is clear that ss. 3 and 4 must be read together. The object of the Ordinance
was two-fold. Its first object was to validate the elections to the Cuttack
Municipality which had been declared to be invalid by the High Court and its
other object was to save elections to other Municipalities in the State of
Orissa whose validity might have been challenged on grounds similar to those on
which the elections to the Cuttack Municipality had been successfully
impeached. It is with this two-fold object that s. 3 makes provisions under its
two sub-ss. (1) and (2). Having made the said two provisions by s. 3, s. 4
proceeded to validate the elections to the Cuttack Municipality. If we bear in
mind this obvious scheme of the Ordinance, it would be unreasonable to read s.
4 in isolation and a part from s. 3. The High Court was in error in dealing
with s. 4 by itself unconnected with s. 3 when it came to the conclusion that
the only subject of s. 4 was to single out Mr. Bose and deprive him of the
fruits of his success in the earlier Writ Petition. If ss. 3 and 4 are read
together, it would be clear that Mr. Bose alone had not been singled out or
discriminatory treatment; the validating provisions applied, no doubt, to the
Cuttack Municipal elections but they are also intended to govern any future and
even pending dispute in regard to the elections to other Municipalities.
Therefore in our opinion, the High Court was not right in coming to the
conclusion that the object of the Ordinance was only to validate the Cuttack
Municipal elections and nothing more.
391 Besides, if the power to validate by
promulgating an Ordinance is conceded to the Governor under Art. 213(1), it
would not be easy to appreciate why it was not open to the Governor to issue an
Ordinance dealing with the Cuttack Municipal Elections themselves. The Cuttack
Municipal Elections had been set aside by the High Court and if the Governor
thought that in the public interest, having regard to the factors enumerated in
the preamble to the Ordinance, it was necessary to validate the said elections,
it would not necessarily follow that the Ordinance suffers from the vice of
contravening Art. 14.
Article 14 has been the subject matter of
decisions in this Court on numerous occasions. It is now well-established that
what the said Article forbids is class legislation no doubt, but it does not
forbid reasonable classification for the purposes of legislation. In order that
the test of permissible classification should be satisfied, two conditions have
to be fulfilled, viz., (1) the classification must be founded on an
intelligible differentia which would distinguish persons or things grounded
together from others left out of the group, and (2) that the differentia must
have a rational relation to the object sought to be achieved by the statute in
question. As this Court has held in the case of SHRI RAM KRISHNA DALMIA V.
SHRI JUSTICE S. R. TENDOLKAR(1), a law may be
constitutional even though it relates to a single individual if, on account of
some special circumstances or reasons applicable to him and not applicable to
others, that single individual may be treated as a class by himself. Therefore,
if the infirmity in the electoral rolls on which the decision of the High Court
in the earlier writ petition was based, had not been applicable to the
electoral rolls in regard to other Municipalities in the State of Orissa, then
it may have been open to the Governor to issue an Ordinance only in 392 respect
of the Cuttack Municipal Elections, and if, on account of special circumstances
or reasons applicable to the Cuttack Municipal Elections, a law was passed in
respect of the said elections alone, it could not have been challenged as
unconstitutional under Art. 14. Similarly, if Mr. Bose was the only litigant
affected by the decision and as such formed a class by himself, it would have
been open to the Legislature to make a law only in respect of his case. But as
we have already pointed out, the Ordinance does not purport to limit its
operation only to the Cuttack Municipality; it purports to validate the Cuttack
Municipal Elections and the electoral rolls in respect of other Municipalities
Therefore, we are satisfied that the High
Court was in error in coming to the conclusion that section 4 contravenes Art.
14 of the Constitution.
Having regard to the fact that certain
infirmities, in the electoral rolls were presumably found to be common to
electoral rolls in several Municipalities the Governor thought that the
decision of the High Court raised a problem of public importance affecting all
Municipal elections in the State and so, acting on the considerations set out
in the preamble to the ordinance, he proceeded to promulgate it. In dealing
with the challenge against s. 4 of the said Ordinance, the High Court should
have considered all the provisions of the Ordinance together before coming to
the conclusion that section 4 was discriminatory and contravened Art 14.
In support of the finding of the High Court,
Mr. Chetty referred us to the decision in the State of Vermont v. Albert
Shedroi. (1) In that case the Court was dealing with a statute which exempted
certain persons from the obligation to obtain a licence for the privilege of
selling goods as peddlers. The impugned statute conferred exemption on persons
resident in the State, who had served as soldiers in 393 the war for the
suppression of the Rebellion in the Southern States, and were honourably
discharged. This statute was held to contravene the provisions of the 14th
Amendment whereby no state can deny to any person within its jurisdiction the
equal protection of the laws. In our opinion, this decision can afford no
assistance to Mr. Chetty in supporting the finding of the High Court that s. 4
contravenes Art. 14.
The services rendered by the soldiers in the
war for the suppression of the Rebellion in the Southern States had hardly any
rational connection with the exemption granted to them from obtaining licence
for selling goods as peddlers and so, the classification purported to be made
by the impugned statute was obviously unreasonable and irrational. That is not
so in the present case.
Certain irregularities in the electoral rolls
were discovered and it was thought that unless the said irregularities were
validated, public exchequer would be involved in huge expenditure and problems
regarding the administration of Municipalities during the intervening period
would arise. That is why the Ordinance was promulgated. The impugned provisions
of the Ordinance cannot be said to be based on a classification which is not
rational and which has no reasonable connection with the object intended to be
achieved by the Ordinance.
Therefore, in our opinion the conclusion of
the High Court that s. 4 contravened Art. 14 cannot be sustained.
As we have already pointed out, the High
Court has taken the view that even if s. 4 did not offend against Art 14, it
nevertheless could not cure the invalidity of the elections to the Cuttack
Municipality inasmuch as it had not said anything about the finding of the High
Court that the irregularities complained against had caused material prejudice
to the citizens of Cuttack by the abridgement of the period for filing claims
and objections 394 and of the period for canvassing. When the validating
provision, observes the High Court, merely cures the invalidity arising out of
the fixation of the qualifying date after the publication of the preliminary
electoral rolls and is completely silent about the results of the elections being
materially affected thereby, it cannot be said to have annulled the judgment of
this Court in O. J. C. No. 72 of 1958. The same reasoning would also apply to
the abridgement of the period of canvassing from 15 days to 14 days which also
materially affected the results of the elections. The High Court thought that
if the Governor wanted to annul the effect of its earlier decision, he should
have made express provision to that effect or at least should have referred to
that fact in Section 4. It is not easy to appreciate this view. What the
Ordinance has purported to do is to validate the electoral rolls and thereby
cure the infirmities detected in them.
Once that is done, there is hardly any
occasion to say further that no prejudice shall be deemed to have been caused
by the said infirmities of the electoral rolls. In validating the elections to
the Cuttack Municipality, the Ordinance was not expected or required to cover
the reasons given by the judgment or the finding recorded in it. The basis of
the judgment was the irregularities in the Electoral rolls and the procedure
followed in holding the elections. Those irregularities have been validated and
that inevitably must mean that the elections which were held to be invalid
would have to be deemed to be valid as a result of the Ordinance and so no
question of material prejudice can arise. That being so, we do not think there
is any substance in the alternative argument urged in support of the plea that
s. 4 is ineffective even if it does not contravene Art, 14.
That takes us to the question as whether s. 5(1)
is invalid. The High Court has taken the view that s. 5(1) purports to protect
not only actions taken and powers exercised under the Municipal 395 Act but all
actions and all powers exercised even outside the Municipal Act in violation of
other laws. Basing itself on this broad and wide construction of 5(1), the High
Court thought that between ss.5(1) and s.477A of the Indian Penal Code there
was inconsistency. That is why it struck down s. 5(1) under Arts. 254(2) and
213(1) of the Constitution. We have no hesitation in holding that the
construction placed by the High Court on s. 5 (1) is obviously unreasonable.
The object of s. 5 (1) is plain and unambiguous. It seeks to save actions taken
and powers exercised by the Councillors, the Chairman or the Vice- Chairman in
pursuance of, and in accordance with, the provisions of the Municipal Act.
Having validated the elections to the Cuttack Municipality, it was obviously
necessary to validate actions taken and powers exercised by the appropriate
authorities and Councillors as such after the elections were held and before
they were invalidated by the judgment of the High Court.
Having regard to this plain object which
s.5(1) is intended to serve, it is,. we think, wholly unreasonable to put upon
its words an unduly wide construction and then strike it down as inconsistent
with Art. 254(2) of the Constitution.
It is true that s. 5(1) is not in express
terms confined to all actions taken and powers exercised under the Municipal
Act, but, in the context, that is obviously intended. Indeed, it is doubtful
whether it was really necessary to add the words under the Municipal Act having
regard to the scheme of the ordinance and the context in which s. 5(1) is enacted.
Therefore, we do not think that the High Court was justified in holding that s.
5(1) was void to the extent of its repugnancy to the existing laws dealing with
matters in the Concurrent List. There is no repugnancy to any existing laws and
so, there is no contravention of Art. 254(2) of the Constitution at all.
We will now deal with the two additional
grounds urged before us by Mr. Chetty. He contends 396 that the Governor was
not competent to issue an Ordinance with a view to over-ride the judgment delivered
by the High Court in its jurisdiction under Art. 226 of the Constitution. This
argument is obviously untenable, for it erroneously assumes that the judgment
delivered by the High Court under Art. 226 has the same status as the
provisions in the Constitution itself. In substance, the contention is that
just as a provision in the Constitution like the one in Art.
226 cannot be amended by the Governor by
issuing an Ordinance, so a judgment under Art. 226 cannot be touched by the
Governor in his Ordinance making power. It is true that the judgment delivered
by the High Court under Art.226 must be respected but that is not to say that
the Legislature is incompetent to deal with problems raised by the said
judgment if the said problems and their proposed solutions are otherwise within
their legislative competence. It would, we think, be erroneous to equate the
judgment of the High Court under Art. 226 with Art 226 itself and confer upon
it all the attributes of the said constitutional provision.
We must now turn to the main argument urged
before us by Mr. Chetty that the Ordinance having lapsed on April 1st 1959, the
appeals themselves have become infructuous. He contends that the Ordinance was
a temporary statute which was bound to lapse after the expiration of the
prescribed period and so, as soon as it lapsed, the invalidity in the Cuttack
Municipal elections which had been cured by it revived and so there is no point
in the appellants challenging the correctness of the High Court's decision.
Indeed, it was this point which Mr. Chetty strenuously stressed before us in
the present Appeals. If the true legal position be that after the expiration of
the Ordinance the validation of the elections effected by it comes to an end,
then Mr. Chetty would be right in contending 397 that the appeals are
infructuous. But is it the true legal position ?-that is the question which
calls for our decision.
It is true that the provisions of s. 6 of the
General Clauses Act in relation to the effect of repeal do not apply to a
temporary Act. As observed by Patanjali Sastri, J., as he then was, in S.
Krishnan v. The State of Madras(1) the general rule in regard to a temporary
statute is that, in the absence of special provision to the contrary,
proceedings which are being taken against a person under it will ipso facto
terminate as soon as the statute expires. That is why the Legislature can and
often does, avoid such an anomalous consequence by enacting in the temporary
statute a saving provision, the effect of which is in some respects similar to
that of s.
6 of the General Clauses Act. Incidentally,
we ought to add that it may not be open to the Ordinance making authority to
adopt such a course because of the obvious limitation imposed on the said
authority by Art. 213(2) (a).
Wicks v. Director of Public Prosecutions (2)
is an illustration in point. The Emergency Powers (Defence) Act, 1939, s. 11,
sub-s. 3, with which that case was concerned, provided that the expiry of the
Act shall not affect the operation thereof as respects things previously done
or omitted to be done. The appellant Wicks was convicted in May, 1946, of
offences committed in 1943 and 1944, contrary to Regulation 2A of the Defence
(General) Regulations 1939, made pursuant to the Act. Both the Act and the Regulation
expired on February 24, 1946. It was as a result of this specific saving
provision contained in s. 11 (3) of the Act that the House of Lords held that,
although regulation 2A had expired before the trial of the appellant, he was
properly convicted after the expiration of the Act, since s. 11 (3) did not
expire with the rest of the 398 Act, being designed to preserve the right to
prosecute after the date of expiry. Mr. Chetty contends that there is and can
be, no corresponding saving provision made by the Ordinance in question and so,
the invalidity of the Cuttack Municipal Elections would revive as soon as the
Ordinance expired by lapse of time.
This contention is based on the general rule
thus stated by Craies: "that unless a temporary Act contains some special
provision to the contrary, after a temporary Act has expired, no proceedings
can be taken upon it and it ceases to have any further effect. That is why
offences committed against temporary Acts must be prosecuted and punished
before the act expires, and as soon as the Act expires any proceedings which
are being taken against a person will ipso facto terminate." (1) In our
opinion, it would not be reasonable to hold that the general rule about the
effect of the expiration of a temporary Act on which Mr. Chetty relies is
inflexible and admits of no exceptions.
It is true for instance that offences
committed against temporary Acts must be prosecuted and punished before the act
expires. If a prosecution has not ended before that day, as a result of the
termination of the Act, it will ipso facto terminate. But is that an inflexible
and universal rule ? In our opinion, what the effect of the expiration of a
temporary Act would be must depend upon the nature of the right or obligation
resulting from the provisions of the temporary Act and upon their character
whether the said right and liability are enduring or not. As observed by
Parker, B. in the case of Steavenson v. Oliver, (2) "there is a difference
between temporary statutes and statutes which are repealed the latter (except
so far as they relate to transactions already completed under them) become as
if they had never existed; but with respect to the former, the 399 extent of
the restrictions imposed, and the duration of the provisions, are matters of
construction." In this connection, it would be useful and interesting to
consider the decision in the case of Steavenson itself. That case related to
6th Geo. 4, c. 133, s. 4 which provided that every person who held a commission
or warrant as surgeon or assistant surgeon in His Majesty's Navy or Army,
should be entitled to practise as an apothecary without having passed the usual
examination. The statute itself was temporary and it expired on August 1, 1826.
It was urged that a person who was entitled to practise as an apothecary under
the Act would lose his right after August 1, 1826, because there was no saving
provision in the statute and its expiration would bring to an end all the
rights and liabilities created by it. The Court rejected this contention and
held that the person who had acquired a right to practise as an apothecary,
without having passed the usual examination, by virtue of the provision of the
temporary Act, would not be deprived of his right after its expiration. In
dealing with the question about the effect of the expiration of the temporary
statute, Lord Abinger, C. B. observed that "it is by no means a
consequence of an act of Parliament's expiring, that rights acquired under it
should likewise expire. Take the case of a penalty imposed by an act of
Parliament; would not a person who had been guilty of the offence upon which
the legislature had imposed the penalty while the Act was in force, be liable
to pay it after its expiration ? The case of a right acquired under the Act is stronger.
The 6 Geo. 4 c. 133, provides that parties who hold such warrants shall be
entitled to practise as apothecaries; and we cannot engraft on the statute a
new qualification, limiting that enactment." It is in support of the same
conclusion that Parker, B. made the observations which we have already cited.
"We must look at this act", 400 observed Parker, B., "and see
whether the restriction in the 11th clause, that the provisions of the statute
are only to last for a limited time, is applicable to this privilege, in
question. It seems to me that the meaning of the legislature was that all
assistant-surgeons, who were such before the 1st of August, 1826, should be
entitled to the same privileges of practising as apothecaries, as if they had
been in actual practice as such on the 1st of August, 1815, and that their
privileges, as such was of an executory nature, capable of being carried into
effect after the 1st of August, 1826." Take the case of a penalty imposed
by a temporary statute for offences created by it. If a person is tried and
convicted under the relevant provisions of the temporary statute and sentenced
to undergo imprisonment, could it be said that as soon as the temporary statute
expires by efflux of time, the detention of the offender in jail by virtue of
the order of sentence imposed upon him would cease to be valid and legal ? In
our opinion, the answer to this question has to be in the negative.
Therefore, in considering the effect of the
expiration of a temporary statute, it would be unsafe to lay down any
inflexible rule. If the right created by the statute is of an enduring
character and has vested in the person, that right cannot be taken away because
the statute by which it was created has expired. If a penalty had been incurred
under the statute and had been imposed upon a person, the imposition of the
penalty would survive the expiration of the statute. That appears to be the
true legal position in the matter.
This question sometimes arises in another
form. As Craies has observed: "If an act which repeals an earlier Act is
itself only a temporary Act, the general rule is that the earlier Act is
revived after the temporary Act is spent; and inasmuch as ex-hypothesis the
temporary Act expires and is not repealed, the rules of construction laid 401
down by ss.11(1) and 38 (2) of the Interpretation Act, 1889, do not apply, But
there will be no revivor if it was clearly the intention of the legislature to
repeal the earlier Act absolutely." Therefore even as regards the effect
of the repealing of an earlier Act made by a temporary Act. the intention of
the temporary Act in repealing the earlier Act will have to be considered and
no general or inflexible rule in that behalf can be laid down. This position
has been tersely expressed by Lord Ellenborough, C. J., when he observed in
Warren v. Windle (1) "a law though temporary in some of its provisions,
may have a permanent operation in other respects.
The stat, 26 Geo. 3, c. 108, professes to
repeal the statute of 19 Geo. 2, c. 35, absolutely, though its own provisions,
which it substituted in place of it, were to be only temporary." In other
words, this decision shows that in some cases the repeal effected by a
temporary Act would be permanent and would endure even after the expiration of
the temporary Act. We have referred to this aspect of the matter only by way of
analogy to show that no inflexible rule can be laid down about the effect of
the expiration of a temporary Act.
Now, turning to the facts in the present
case, the Ordinance purported to validate the elections to the Cuttack
Municipality which had been declared to be invalid by the High Court by its
earlier judgment so that as a result of the Ordinance, the elections to the
Cuttack Municipality must be held to have been valid. Can it be said that the
validation was intended to be temporary in character and was to last only
during the life-time of the Ordinance ? In our opinion, having regard to the
object of the ordinance and to the rights created by the validating provisions,
it would be difficult to accept the contention that as soon as the Ordinance
expired the validity of the elections came to an end and their invalidity was
revived. The rights created by this 402 Ordinance are, in our opinion, very
similar to the rights with which the court was dealing in the case of
Steavenson and they must be held to endure and last even after the expiry of
The Ordinance has in terms provided that the
Order of Court declaring the elections to the Cuttack Municipality to be invalid
shall be deemed to be and always to have been of no legal effect whatever and
that the said elections are thereby validated. That being so, the said
elections must be deemed to have been validly held under the Act and the life
of the newly elected Municipality would be governed by the relevant provisions
of the Act and would not come to an end as soon as the Ordinance expires.
Therefore, we do not think that the preliminary objection raised by Mr. Chetty
against the competence of the appeals can be upheld.
The result is that the appeals are allowed,
the order passed by the High Court is set aside, and the Writ Petition filed by
Mr. Bose is dismissed with costs throughout.