PETITIONER:
STATE OF ORRISSA
Vs.
RESPONDENT:
BHUPENDRA KUMAR BOSE
DATE OF JUDGMENT:
22/12/1961
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
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)
ACT:
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
HEADNOTE:
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 treatment.
Shri Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar, [1959] 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
materially affected.
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 [1951] S.C.R.
621, Wicks v. Director of Public Prosecutions,
[1947] A.C. 362, Steavenson v. Oliver (1841) 151
E. R. 1024 and Warren v. Windle, (1803) 3 East
205, referred to.
JUDGMENT:
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 intervening period.
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 thereunder:
(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 the Act.
(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 thereunder, 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 Councillors 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 as well.
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
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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
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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
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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.
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.
Appeals allowed.