TMI Blog1961 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 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. Appeal allowed. - C.A. 525 OF 1960 - - - Dated:- 22-12-1961 - P. B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR, JJ. JUDGMENT These two appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipalities 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality 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. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The High Court was, no doubt, influenced by its conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised under the Municipal 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 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 ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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