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TMI Blog1961 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... palities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 infr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted after the expiration of the Act, since s. 11 (3) did not expire with the rest of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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", 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 temp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 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 unde ..... 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