State of Orissa versus Bhupendra Kumar Bose

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IHI

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380 SUPREME OOURT REPORTS [1962] SUPP.

STATE OF ORISSA

o..-...n.

v.

BHUPENDRA KUMAR BOSE

(P. B. GAJENDRAOADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUPTA andN. RAJAOOPALA AYYANOAR, JJ.)

¶8

Municipal Ekction8-Elecloral rol/a improperly prepared -lligh Court declaring ekctioM in1ialid-Validating Ordinance -Conatitulionality of-Expiry of Ordinanc•-Whether invalidit11 revivea-0ri'8a .Municipal Act, 1950 (Orissa 33 of 1950)0.U11a Crdinance I of 1959, ••· 3, 4 and 5-CoMtitution of India, Arla. 14, 226 and 254

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Elections were held f, the Cuttack Municipality and 27 persons were declared eh "ted as Councillors. One B, who was defeated at the elections, filed a wri-t p•tition before the High Court challengin~ the elections. The High Court held that the electoral rolls had not been prepared in accordance with the provisiom of the Orissa Municipaliri" ·Act, 1950, as the age qualification had been published too late thereby curtailing the period of claims and obj•ctions 10 the preliminary roll to 2 days from 21 days as prescribed; Consequently the High Courl set aside the c!cclions. The Stale took the view that the judgment affected not merely the Cuttack Municipality but other municipaliries also. Accordingly, the Governor promulgated an Ordinance validating the elections to the Cutrack Municipaliry and valid:iting the electoral rolls prepared in respect of other municipalities. Thereupon, B filed a writ petition before the High Court contending that the Ordinance was unconstitulional. The High Court found that the Ordinance e<ntravened Art. 14 of the Constitution, that it did not succe,.fully cure the invalidiry and that it of!'ended Art. 254( 1) of the Constituti<>n as it was inconsistent with many Central Acts falling in the concurrent list and was unconstitutional. The State and the Councillors appealed and challengrd the findings of the High Court. B raised two further contentions that the app.al :1ad become infructuous as the Ordinance had expired and that the Ordinance wu invalid as it purported to invalidate the judgm,.1t of the High Court.

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Jletd, that the Ordinance was valid and that it successfully cured the invalidity of the electoral roll and of the elections to the Cuttack Municipality.

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The Ordinance did not offend Art. 14 of the Constitution. Iu object was not only to save the elections to the

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-I

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2 s.c.R. SUPREME COURT REPORTS 381

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Cuttuck Municipality but alsc> to other municipalities 'WhC)Se validity might be challenged on similar grounds. 1.t did not single out .B for any discriminatc>ry treatment.

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Shri Ram Krishna Dalmia v. Shri JuaticeS.R. Tendollcar, [1959] S. C.R. 279, referred tc>.

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State oJVermont v. Albert Shedroi,(1904)68 L. Ed. 179, distinguished,

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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.

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Sectfon 5( I) of the Ordinance which saved the actfons taken and powers exercised by the. COuncilfors, the Chairman and the Vice-Chairman was not repugnant to any existing law and did not contravene Art. 254(2) 0£ the Constitution • . Section 5(1) was confined to action taken under the Orissa Municipalities Act and did not extend tc> violations of other laws made by the Central Legislature under the concurrent list.

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The first judgment of the High Court under Art. 226 of the Constitution cc>uld 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.

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The invalidity of the electoral rolls and the electic>ns 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,

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Kiiahnan v. 81.af,e of .Madras (1951] S.C.R. 621, Wiolca v. Director of Public Prosecutions, [19-l7] A.G. 362, Btea-- v. Oliver (1841) 151 E. R. !024 and Warren v. Windle, (1803) 3 East 205, referred to.

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Cxvrr. APPl!lLLATE JurosDIOTIO~: Civil Appeals Nos. 525 and 526of1960,

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Appeals from the judgment and order dated March 20, 1959, of the Orisaa. High Court in O.J.C. No. 12 of 1959.

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382 SUPREME OOURT REPORTS SUPP. [1962)

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"" St«,•o(Ori.rst1 •• BllMp<n.f,. K,,,.., -

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A. Viswanatha Sastri, B.R.L. Iyengar and T. M. Sen, for the appellant (In C.A. No. 525/60) and res· pondent No. I (in C.A. No. 526 of 1960.)

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B. P. Mahe8hwari, 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, 8. Mi~hra, A. Vedavalli and R. Palnaik,forrespondPnt No. l (in C !.No. 5'25/60) and 2 (in C.A. No. 526 of 60).

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Deoember 22. The Judgment of the Court was delivned by

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GAJENDRAGADKAR, J.- Thse two appeals are directed against the order passed by tho High Court of Ori8811. under A rt. 226 of the Constitution striking down as unconstitutiortal sectionR 4 and 5 ( l) of Orisea Ordinance I of 1959 promulgated by the Governor of OrisM on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. B. K. Bose against the State of Oriss1 and 27 persons who were eJ1ct11d Councillors of the Cutte.ck Municipality, including the Chairman and the Vice. Chairman respectively. Appeal No. 525 has been filed by the State of OriHS& whereas Appeal No. 526 is filed by the said MuniOip&l Councillors. The appellants in both the appeals obtained leave from the OriBl!a High Court to appeal to this Court.

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It nJJpears that during December, 1957 to March, 1958, elections were held for the Cutt&ck 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 i960 were decl1ed electcl as Councillors. From amongst them, Manmuhan Mishra was el1eted the Chairm11.n and Ma.hendra Kumar Sahu tho Vice-Chai: man. Mr. B. K. Bose, who is an Advocate practising in Cuttack and a resident within the municipal limits 'Jf Cutts.ck

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SUPREME COURT REPORTS

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2 S.C.R.

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383

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bad contested the said elections as a candidate from Ward No.13. He was, however, defeated. There· upon, he presented an application to the High Court (0.J.C. No. 72 of I 9!58) 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 alle~ed 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.

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IHI

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Sta!• ofOrtsJ•· ... B!iup,ndra Kumar Bose

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G•j"1draglidlm J,

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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 IO, 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 wore, 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 15clear days for the purpose of canvassing, the notification issued under the Orissa Muai~ipal Election Rules curtailed this period to

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38! SUPREME COURT REPORTS [1962] SUPP.

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JHl

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.sr.11 ef o,;,,. t, . B,,,,,..Jr. Ku,.., Bise

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14 days. Aocording to the High Court., the respondc Jts to the petition had failed to show that the results of the elect10ns had not and could not have been affected by tho 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.

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It appears that the State of OriS11& took the view that the effect of the &!\id judgment could not be confined only to Cuttack lttunioipality. As a result of the findings made by the High Court during the course of the said judF,ent 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 prescribt:d in that ·oehalf by the Act. That is why the Governor of OriBBa promulgated the impugned Ordinance on January 15, 1959. Broadly stated, the effect of the Ordinance was that the elections to the Cuttaok Municipality stood validated and the said Municipality began to function once again. It alao validated the electoral rolls prepared in reepect of the other Municipalities in the State of OriBBa and thus sought to save elections held or to be held in respect of the said Municipalities from any possible challenge.

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when Mr. Bose found that his success in the Writ Petition (O.J.C. No. 72 of 1958) had thns bieen rendered illusory by the Ordinanoe, he moved the High Court again by the present Writ Petition. He contended that the material provisions of the Ordinance, viz., BB. 4 and 5(1) were unconstitutional and he asked for an appropriate relief on that basis. The High Court has again upheld the contentiona raised by Mr. Boso and has struck down ss.4 and 5(1) of the Ordinance and issued appropriate orders of injunction reetl'a.ining the elected Councillor& and

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385

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2 S.C.R. SUPREME COURT REPORTS

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the Chairman and Vice-Chairman from functioning as such. The State of Orissa and the 27 Councillors by separate applications obtained a eertificate from the High Court· and have come to this Court by their two separate appeals Nos. 525 and 52ti of 1960,

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1981

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State ofOdssa v. Bhup,ndra KumaJ BtJ5e

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Gojendrrgadkar J.

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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 8hows, the Governor of Orissa promulgated it beacuse 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 unles3 a validating Ordinance h~d been passed, would have entailed huge expenditure and would have given rise to problems regarding the administration of SUC'h Municipalities during the intervening period. He also thought that it was necessary to take immediate steps to provide for the validation of the c-lectoral rolls and the elections since the Legislatme of the State of Orissa was not then in seRsion and the Governor thought circumstances existed which render<'d it necessary to take immediate action. In ('Xercise of the powers conferred on him by Art. 213( I) of the Constitution, ho was. therefore, pleased to promulgate the Ordinance. That, according to the statement made in the pren,mble to the 01 dinance explains the genesis of its promulgation.

¶52

The Ordinance consists of five sections. Section 1 gives its ohort title and extent, while s.2 is the defining section. Sections, :I, 4 and 5 read thus: -

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"3. (I) Notwithstanding the Order of any Court to the contrary or any provision in the Act or thn rules thereunder :

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(a) the elect,)ral roll> of the Cuttack Municipality shall ht>, and shall always

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386 SUPREME COURT REPOHTS [1962] SL"'PP.

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IHI

¶57

Stolt of Orisn v. Bh•'P<ndr• K,,,.... B.,,

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<Jej,.drov•dt.1 J.

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be deemed to bavo been validly prepared and pu bli~hed; and

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(b) the sa.id 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 undl'r the Act.

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(2) The validity of the electoral rolls Ehall not be rnlled in question in any court on tho ground that the date on whil'h a person has to be not leBB than 21 years of age was fixed undc·r Section 13 !Jf the act after the publication of the preliminary electoral rolls.

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Any order of a court declaring the election to the Cuttark 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 tho date of polling of the election was not fixed in l\CCordance with the Act or the ruks made thereunder, shall be deemed to be and alwi.ys to have been of, no legal effect, whatsoever, and the elections to the said Municipality are hereby validated.

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G. (I) All actions taken, And powers exercised by tho Counrillors, Chairman or Vice-Chairman of the Cuttack ;\fonicip1dity prior to tho coming into for<'O of this Ordi· nance shall be deemed to have been validly taken, and exercised.

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(2) All actions takP11 nm! powns exercised by the District l\fagislrntc ofCuttack in respect of the Cutteck Municipality in pursuance of tho Orrler of tl1c Government of Orissa in the Health (L. S. G.) D"partmcnt No. 8263 L.S.G. dated the 13th December, l!l58, shall ho deemed to have Leen takl'n

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28.C.R. SUPREME COlH{T REPORTS 387

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and exercised by tha Council of the said Municipality or its Chairman or ViceChairman, as the case may be."

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It will thus be seen that s. 3 purports to validate th'e electoral rolls which had been held to be invalirl by the High Cuurt 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 or all the Municipalities. Section 4 validates, in particular, the elections to the Cllttack Municipality which had been held to be invalid by the High Court. Seo ti on 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 Cllttack in respert of the Cutt:wk 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 Cut tack Municipality in particular and to make valid and regular tho electoral rolls which would otherwise have been held to be irregu· lar and invalid in accordance with the judgment of th 3 High Court.

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1961

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State of Ori8sa Y, Bhupendra Kumar Bose Ga.jendragJdlcar ].

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Before the High Court, on behalf of Mr. Bose five points were raied. It was argued that the provisions of the Ordinance wtre a mere colour(\b]e device tu set aside the judgment of the High Court in O.J-.C. Nn. 72 of 1958, It was, in fact, and in substance, not any exercise of legislative power by the Governor but assL1mption by him of judicial power whi«h is not wiranted by the Constitution. The High Com t has rejectrd this contention and the finding of the High Court on this point has not been challenged before us. So we are relieved of the tai<k of considering the merits of this finding.

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388 Sl:PREME COURT REPORTS [1962] SUPP.

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1961 StaJ1 of Orissa v. B/ru/>f#d'a Kwn4r Bou 06j,.Jragadl.ar J.

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It was then contended that R. 4 of thPOrdinancc contravenes the er111alitv Lef:im hw guarantrerl by Art. 14 of the Cnnstitution. It w~~ also urgNI alteinatirnly that evc1! if 8. 4 c!i<l not contravene Art. I 4, it did not mccrs..•fullv cure tho invalirlitv of the clP.c•tions to the ('uttac-k Munic-ipality a1:ising out of tlw fact that. mn.tnial pnjucli«e had been eaus<>cl to the· ciliZl'nR hy thl· abr'clgPm<·11t of the period for filing claims and obj-ect ions and of the period for canvassin!!. In regard to P. 5( I) the a.r~11mcnt was that it was inv11licl under A1t. 2i'i4(1J. All these three cont<>ntionM have brnn accepted by the Hi!(h Court and the correctness of the findings recorded by the High c,,urt in that behalf fa.II to be considered in the present Appl·a.ls. Tho last «ontontion raised in 1m pport of the pet it ion was that on February 23, I !J59, a Bill entitled "Orissa. Municipal Election Va lid at" ng Bill. I 95!l" which containPd substantially similar provisionR as tho8e of the O.dinance, was sought to be introdnc1·d iu the Oris.'la Leii:islativo Assembly but wai< d('fea.kd by a majority of votes and that ma.de the Ordinance invalid. This contention has he<.>n rejectnl by tho HighCourtand the finding oftheHighCou!t on this point has not been challenged befnrc ua. Thus. out of the 5 points raised ht fore• t.h<> High Court., 3 have been argued before us. For Mr. Bes<>, Mr. Ranganathan Chetty has n.lso urged two addition"l point8. He h11.s contended that the pr<'BC'nt "J'prnls harn really bec•1me infructuous in view of the fact that the impugned Ordinance lapsed on April I, l!l59. This argument has been strenuously pr('F~ed before us in the form of a. preliminary objt ct ion againfit tho compt·t!'nce of tho appeals thernsl·lvrs. On the merits, Mr, Cbetty has urged an addith>nal grnund that the Ordinance was invalid inasmueh 11.a it purported to invalidate the judgmen1 of the High Court in O.J.C. No. i2 of 19;)8 delivered un<lt·r Art. 2:16 of the Constitution.

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389

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2 S.C.R. SUPREME COURT REPORTS

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Let us first consider whether s. 4 offends tho 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 C6urt was verymuch 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 a1\d 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 succes, he alone should have been discril)linated against by hostile legislation. With resp1Jct, 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 Conrt 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 tht> legislative powers, the Governor bad purported to exercise judicial powers and ·that was ·beyond his competence. Since the finding of the High Court on this qubtion has not been chal11;1nged before us by Mr. Chatty, we propose to express no opinion on its merits. But if it is held that in promulgating the validating Ordinance the Governor was exeroising 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 dcP.rived of the fruits of his success in the earlier Writ Petition.

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11111

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St.ti •f Qrissa •• Bhup1n4,. KumOI" Bou

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Gajendragadkar J

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390 SCPkEMI:; COUH'f REl'ORT~ flOO~) SUPP

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Stoh of 01is!a v. Bltupe1.dra Kll1fttr Best

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The High Court was, no doubt, influrnced by its conclusion tlat l\Ir. Bos.i alone had been singled out for <liscriruinatc1ry treatment of th(• impugned Ordinance and that, according to thfl High Court, constituted violation of the provisions of A 1 t. 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 tho Ordinance was two.fold. Its first object was to va.lida.t<J 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 Municipa.litie11 in the State of Orissa whose validity might have been challenged on groun<ls similar to those on which the elections to the Cuttack l\Tuncipality hu<l been suooessfull~· impeached. It is ···ith this two-fold objeot thats. 3 makes provisions under its two sub sa. (I) and (2). Havin6 made tho said two provi&ions by s. 3, s. 4 pr•>Ceedo.I to 'aiidate the elections to the Cuttack Muuicipalit.v. If we bear in mind this obvious scheme of the· Ordiuancc, it would be unreasonable to re11d s. 4 in isolati'Jn ancl a part from s. 3. The Higli Court was in error in dealing with s. 4 by itsolf unc nnrcte<l with s. 3 when it ca.me to the conclusion that tho only subject of s. 4 was to single out Mr. Buse and deprive him of the fruits of his succes in the rnrlicr Writ Petition. If PB. 3 and 4 are read together, it would be clear that Mr. Bose aluno hnd not be(·n singld out or discriminatory treatment; tho validating provisions applied, no doubt, to the Cutts.ck Municipal elections but they a.re also intended to govern any future and even pending dispute in regard ~o the elections to other Municipalitie.s. Therefo.re m ?ur opinion, the High Court was not right m coming to the conclusion that. tbe object of the Ordinance was only to validate the Cuttack Municipal elections and nothing moTe.

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2 S.C.R.

¶84

SUPREME COURT REPORTS 391

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Besides, if the power to validate by promulgating an Ordina.nce is conceded to tha Governor under Art. 213(1), it would not be easy to appreciate why it was nut open to the Governor to issue an Ordinance dealing with the Cnttack Municipal Elections themselves. The Cuttack Munici1al Elections had been set asido by the High Court an<l 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 bas been the subject matte.r of decisim:is 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 plH'poses of legislation. In order that the test of permissible classification should be satisfied, two conditions have to be fulfilled, viz., (l) the classification must be founded on an intelligible differentia which would distinguish persons or thinga grouped 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. BHRI JUS'l'IOE S. R. TENDOLKAR('), 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 ele Jtoral rolls on which the decision of the High Court in the earlier writ petition was based, had not been $pplicable to tho 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

¶86

1961

¶87

Stall ofOrissa v. Bh.up,nJt'a Kum111 Bos•

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G4jendraiatikar J.

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(I} [1959] S. C.R. 279, 297.

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392 SUPREME COURT REPORTS [1962] SUPP

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1181 SW. o/Orisso v. ~K Iin•

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respect of the Cuttack Municipal Elections, and if, on account of special circumstanC('S or reasons appli· cable to the Cuttack Municipal Elections, a. faw was pafl80d in respect of the said elections alone, ii could not have been challenged as unconstitutional under Art. 14. Similarly, if Mr. Boso was the < nly litigant affected by the decision and as 6Uch fo1mrd a. class by himself, it woulcl have been open tu the Legislnture to make a Jaw only in respect of his case. But as we have already pointed out; the Ordinance doe11 not purport to limit its operation only to the C1tltack Municiplity; it. purports to validate the Cuttack M1micipal Elections and the electoral rolls in respect of other Municipalities as. well. Ther,'forl', we are satisfied that the High Court was in error in coming to the conclusion that sf'ction 4 contravenes Art. 14 of the Constitution. Having regard to the fact that certain infirmities, in the <·lcrtoral rolls m•re presumably found to be commoi; t, • dectoral rolls in several Municipalities th<• Governor thought that the decision of the High Court rais<'d R problem of public importance affecting all !11unicipal rlections in the State and so, acting on the eonsid,,rations aet out in the preamble to tbu Orclinncf', he proceeded to promulgate it. In dealing iritb the "hnllenge . against s. 4 of the said Ordinancr, th<· High Court should have coneiclcrt>d all the proviiiione of tbe Ordinance tog('lher liefo1c <"oming to the cone\ us ion that section 4 was discriminutory and cont avened Art. 14.

¶93

In support of the finding of the High Court, Mr. Chetty rl'f<•rred us-to the decision in the State qf l'emwnt v. AIOO-t BWroi. (1) iu that case the Court was dealing with a ,tatute which exempted certain persens from \he obligation to obtain a licence for the privilege of eelling goods as peddlers. Tlie impugned statute conferred exemption on persona resident in the State, who had served as soldiers in (I) (190t) 68 L. Ed 179.

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2 S.C.R. SUPREME COURT REPORTS

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393

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the war for the suppression of the Rebellion in the Southern States, and were honourably discharged. Thi~ 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 fi'lding of the High Court thats. 4 contravenes Art. 14. The servics rendered by the soldiers in the war for the suppression of the Rebellion in the Southern S'.ates had hardly any rational connection with the exemption granted to them from obtaining licence for selling goods as peddlers and so, tha classification purported to be made by the impugned statute was obviously unreasonable and irrational. That is not so in the present ca.Re. Certain irregularities in the electoral rolls were discovered and it was thought t!mt unlesH the said irregularities were validated, public exchequer would be involved in huge expenditure and problems regarding the administration of Municipalities during the intervning period would arise. That is why the Ordinance was promulgated. The impugned provisions of the Ordinance cannot be said to be based on a qla~sification which is not rational and which baa no reasonable co!mection with the object intended to be achieved by the Ordinance. There· fore, in our opinion the conclusion of the High Court that s. 4 contravened Art. 14 cannot be sustained.

¶97

1951

¶98

State of Oris'a v. Bhupendra Kumar - s,.,

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<Jajendragadk'di ~,

¶100

As we have already pointed out, the High Court has taken the view that even ifs. 4 did not offend against Art 14, it nevertheless could not cure the invaliditv of the elections to the Cotta.ck Municip'l.!ity inasmuch as it had n'.lt said anything about the finding of the High Court that the irregularities complained against had caused material prejudice to the citizens of Cotta.ck by the abridgement of the period for filing claims and objections

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394 SUPREME COURT REPORTS [1962] SUPP.

¶102

l!le I

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Stat# oj Or issa Y, Bltltpmdro K'unuJr Bot1

¶104

and of the period for canvassing. When the valida· ting provision, observes the High Court, merely tures the invalidity arising out of the fixation of tho qualifying date after the publication of the pre Ii· minary electoral rolls and is compktely silent about the resulti of the rlections b1 iPg mat~rially affec•e<l thereby, it cannot be said to have annulled tho judgment of this Court in 0. J. C. No. 72 of J 958. The same reasoning would also apply to the abridgement of tho period of canvassing from 15 days to 14 days which also materially affected the results of the elections. The High Court thought that °if tho Governor wanted to annul the effect of il.8 ealicr 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 appcciate this view. What the Ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them. Onco that is <lone, there is hardly any occasion to say further that no prejudice shall be deemed to have boen caused by the said infirmities of the electoral rolls. In validating the elections to the Cuttack Municipality, the Ordinance was not expected or roquirtd to cover the reasons given by the judgment or the finding recorded in it. The ba.sid of the judgment was the irregularities in the Electoral rolls and the procedure fo!I01vcd in holding the elections. Thofe irregularities have been validated and that inevitably must mean that the elections which wero held to be inva.li1l would have to be deemed to be valid as a result of the Ordinance alid so no question.of material prejudice O'ln arise. That being so, we do not think there is any substanct• in the alternative argument urgtd in support of the plea thats. 4 is ineffective even if it docs not contravene Art. l4.

¶105

Thnt takes us to the q·1estion wi whether s. 5( I) is invalid. Tho High Court has t11ken t'ie vi9W that s. 1)( l) purp >rti t > protJ :t n Jt only actirms taken and, powers exercised under t'.1e Municip~l

¶106

~ S.C.R. SUPREME OOURT REPORTS

¶107

395

¶108

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 s. 5(1 ), the High Court thought that between ss.5(1) and s.477 A of the Indian Penal Code there was inconsistency. 'fh'l.t is why it struck down s. <i(l) under Arts. 25J() and 213(1) of the Constitution. We have no hesitation in holding that the construction placd by the High Court on s. 5 ( l) is obviously unreasonable. 'fhe object of s. 5 ( 1) is phin and unambiguous. It seeks to save actions taken and powers exercised by the Councillors, tho Chairman or thll Vico-Chairm!l.Il 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 vahdate actions tak~.n and powers exercised by the appropriate authorities awl Councillors as such after the elections were held and before they wero invalidated by the judgment of the High Court. Having regard to this plain object which a.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 thtJ Con· stitution. It is true thats. 5(1) is not in express terms confined to all actions taken and powers exercised under the Municipal Act, but, in the con· text, that is obviously intended. Indeed, it is doubtful whether it was really necessary to add the words under the ll!unicipal Act having regard to the scheme of the Ordinance and the context in which s. 5( l) is enacted. Therefore, we do not think that the High Court was justified in holding th,it s. 5( I) was void to the exte:ot of its repugnancy to the existing laws dealing with matters in the Conaurrent List. There is no repugnanoy to any existing laws and so, there is no contravention of Art. 254(:1) of the Constitution at all,

¶109

1961

¶110

Slate ofOrissa v. Bhuj1tndra Kumar 8011

¶111

Cajendragadk:ar J.

¶112

We will now deal with the two additional grounds urged before us by Mr. Chetty. He contends

¶113

396 SUPREME COURT REPORTS [1962) SUPP.

¶114

•

¶115

IIJl;l

¶116

Sl-il1 ofO,issa .. B~aEumar Bou

¶117

that tho Governor was not compotent to issue an Ordinance with a view to ovor·ridR the judgment delivered by the High C.mrt iu its juri,idiction under Art. 226 of the Constitution. This argument is obviously untenablo, for it erron:oasly assumes that tho jurJgmcnt delivered by the High Court under Art. :.!26 has the samo tat u$ as th<i provisions in the Constitution itself. In substanco, 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 tho High Court under Art.26 must be rospected but that is nnt to say that the Legislature is incompetent to deal with prob· !ems raised by the said judgment if the Raid prob· lems and their proposed solutions are otherwise within their legislative competence. It would, we think, bo erroneous to equate the judgment of the High Court under Art, i26 with Art 226 itself and confer upon it all the attributes of the said consti· tutional provision.

¶118

We must now turn to the main argument urged before us by Mr. Chetty that the Ordinanoo having lapsed on April !st 195\J, the appeals them· selvea have ·become infructuous. He contends that th;i Ordinance was a tempora1y statute which was hound to lapse after the expiration of the prcsorib· ed period a.nd so, as soon !Ml it laped, the invali· dity in the Cuttack Municipal elections which had been cured by It revived 'illd so there is no point in the appellants challenging the correctnel!B of the High Uuurt's decision. Indeed, it was this point which Mr. Chetty strenuously stressed before us in tho present Appeals. If the true legal position be that a.fter the expiration of the Ordinanct1 the validation of tho elections dfctcd by it ~om!'s to an end, then Mr. Chetty woulc.l ho right in contou ling

¶119

SUPREME COURT REPORTS 397

¶120

2 S.C.R,.

¶121

1961

¶122

that the appeals are infructuous. But is it the true legal position ?-that is the question which cnlls Jor our d<':cision.

¶123

St.ie oj Orissa v. BhufHndra Kumar Bos(

¶124

It is true that the provisions of s. 6 of the General Cla'Jsei A.ct in rehtion to the effect of repeal do not apply to a temporary Act. As observed by Patanjali 8astri, J., as ho 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 8ome respects similar to th.tt 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).

¶125

Wick.g v. Director of Public Prosecutions (') is an illustration in point. The Emergenvy 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 M respects things previously <lone or omitted to be done. The appellant Wicks was convicted in May, I 946, of offences conmitted in I 943 and 19±4, contrary to Regulation :?A of the Defonce (GenerRl) Regulations 19:i9, made pursuant to the Act. Both the Act and the Regolation expired on February 24, 1946. It was as a result of this specific saving providon 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 pro· perly convicted after the expiration of the Act, since s. 11 ( 3) did not expire with the rest of the (1 1 [1951] S.G.R. 621. (2) (1947) A.C. 362.

¶126

398 SUPREME COURT REPORTS [1962] SUPP·

¶127

196/

¶128

Sto1h of Orin a v. BAu!Jtttdra Kun1ar

¶129

R"''

¶130

Guj1r.Jregtullt.tr J.

¶131

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 th' Ordinance in question and so, t.he invalidity of the Cntta.ck Municipal Elections would revive as soon aa the Ordinance expired by lapse of time. This contention is based on the general rule thus stated by Craics : "that unless a temporar.v Act contains S( me specie.I provision to tho contrary, after a temporary Act he.s expired, no proceedings co.n be taken upon it e.nd it ceases to have any further effect. That is why offences committed agaiflSt temporary Acts must be prosecuted and punished before the act expires, end es soon as the Act expires any proceedings which arc being taken age.inst a person will ip80facto terminate."(')

¶132

Jn our opinion, it would not be reasonable to hold that the general rule about tho effect of the exniration of a temporary Act on which Mr. Chcttv relicR iR inflexible and admits of no exceptions. it is true for inRtence. the.t otfences committed against temporary Acts must bo prosecuted and punished bofore tho act expires. If e. prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. Rut is the.t an inflexible and univP.rsal rule ? In our opinion, whe.t the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisinns of the t<'mporary Act and upon their character wheth<'r the Pa.id right and liability are enduring or m,t, As observed hy Parker, B. in the case of Stearenson v. Olit'er, (•) "there is n difference between temporary statutes and statutes whkh are repcalecl ; the latter (except BO far as they r<'ll\te to transactions already comnleted under them' beoome as if they had novcr existed ; but with respect to the formt'r, the (1) C.raic; on 11atutc Law. p.377. 12) 151 ER. 1024, 1026-1027.

¶133

2 s.c.R. SUPREME COURT REPORTS

¶134

399

¶135

extent of the restrictions imposed, and the duration of the provisions, are matterH of construction." In this connt>ction, it would be useful and interesting to consider the decision in the case of Sf eavenson 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 assist!lnt surgeon in His Majesty's Navy or Army, should be entitled to practise as an apothecary without having paPsed the usual examination. The statute itself was temporary and it <'Xpired on August l, 1826. It was urged that a person who was entitled to practise as an apothecary u.1der the Act would lose his right after August l, 1826, because there was no aaving provision in the statute and its expiration would bring to an end all the ril!hts 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 usna! examination, by virtue of the provision of the temporary Act, would not be deprived of his right afrer 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 ~hould 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 A('t 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 thA 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",

¶136

1961

¶137

Bta~e ofOri.rsa v. Bhupuufra K U1'Ul1 8,1se

¶138

G1Jj1ndragadlrar J.

¶139

400 SUPREME COURT REPORTS [1962] SUPP.

¶140

1961

¶141

Stole 0J011·JJ,, v. R~uptndra K11m1r Ro11

¶142

Gctjtndra.eadkcr J.

¶143

observed Parker, R., "and see whether the restriction in the I Ith clansc, 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 th,\t tho meaning of thri legislu.ture was that all asRistant·surgcons, wh<J were Huch b,,fore th~ 1st of August, 1826, should be entitled to the same privileges of practising as apothec-1rie•, a'; if they h'l.<l boen in actual practice as such on tbP, !st of August, 1815, and that their priviloge a; such wa.• of an executory nature, capable of being carried into eft',:ct <tfter the I st of August, 186." Take the casn of a penalty impose:! by a temporary statut" for offences created by it. If a person is trid unrl convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisr:nment, could it he s"id tint as sorm as the t('mporar.v statute expires by effi11x of time, the detention of the offender in jail by virtu" of the ord<·r of S<'Ilt<'nce imposed upon him would cease to hr valid anrl ltrgal ? In our opir1iu11, the answer t<J thi~ quest inn ha;; tu be in the negative. Theref•'I«', in conRidering the effect of the expiration of a temporary statute, it would be unsafe to !<Joy duwn any inflexible rule. If tho right created by the statute is of an enduring character and has vested in tho pnrson, that right cannot be tken away because the statute by which it was created has expired. If a penalty had been incumd under the statute and had been imposed upon a peraon, the impo8ition of the penalty would survive tho expiration of the statute. That appeMs to be tho truo legal position in thP, matter.

¶144

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 creneml rule is that the earlier Act is revived ~ft.er '"the temporary Act id spl'nt ; and inasmuch as ex-hypothesis the temporary Act expires and is not repealed, the rules of construction laid

¶145

2S.C.R. SUPREME COURT REPORTS 401

¶146

down by ss. II (1) and 38 (2) of the IntArpretation Act, 1889, do not apply, But there will be no revivor if it waR 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 oC 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 (') "a law though temporary in some oC 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 rep!'al 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 &bout the effect of the expiration of a temporary Act.

¶147

1961 State' oJOri.Js'- v. I Bhup.mlra K "' Bost

¶148

Gajendragadktlf J.

¶149

Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which ha,d been declared to be invalid by the High Court by its earlier judgment so that as a n suit of the Ordinance, the elections to the Cuttack l\Iunieipality must be held to have bern \•alid. Can it b(' said that the validation was intended to bn temporary in character and was to last only during the life-tirre bf the Ordinance ? In our opinion, hwing regard to the object of the Ordinanre and to the rights crPated by the validating provisions, it would be difficult to arc(•pt the con· tention that" as 'oon as the Ordinance expired ths validity of the el<·ctions came to an end and their invalidity was n·Yived. The 1ights created by this (ll (1803:·3East::!OS,21l-212: 102E.R,(K.B.)578.

¶150

402 SUPREME OOURT REPORTS [1962] SUPP.

¶151

IHI

¶152

s1.,, of Oriu• •• B/,upnidra Kumor Bou

¶153

qrdinan:e arc, 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 Ordinan~e. The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Muni· cipality t-0 be invalid shall be deemed to be and always to havo been of no legal effect whatever and that the sa.id elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Aot 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 compe· tence of the appeals can be upheld.

¶154

The result is that tho appeals are allowed, the Order passed by the High Court is set. aside, and the Writ Petition filed by Mr. Bose is di8missed with costs throughout.

Appeals allowed.

IHI

ARJUN PRASAD

v.

SHANTILAL SHANKARLAL SHAH AND OTHERS (AND CONNOOI'ED APPEAL)

¶160

(K.C. DAS G(T}'TA AND RAOHUBAR DY.AL, JJ:l om n -If caa be preaen.t "in ptraon in mtth- M eet"'g of .c pa creatwr Y ,.,~ • - Per- _,. a.....mai<d_ ,,,,-- _to rtpruent 1·a· cr•d1tor ,r_ •· n _-l'eraon_ t'Oli11!/ _on bt.11111/ of compally-Va' "11_ o, ~~ - **_Oompan1u_** _come ompany. pa_ y . _I A_ """' _r,,_ ~" _t_ • • _1"13 (7_ **.** _order-If_ , o' _'J_ 4~nl _1913'_ ,,,,..... ., _liu_ •• • _3 to_ 1 _ld;>-V<,..,.a Jligh ,. " Courl-lnd1a" I IC'" JO .,.,.. .. Ar.t, 1897 (10 of 1897), •· 3(42)-LeU.ra Paten'., c.. . S u equen bs t to a^{n order rr.ade for} d'^the .^wmdmg ,^up ·^{of a} h Co pany Judge made a 1tCCll' n aor acuon to company, tde m. iollll ofs. 153 of the Indian Companies l>C" taken un er provts

State of Orissa v. Bhupendra Kumar Bose

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State of Orissa v. Bhupendra Kumar Bose

Case brief

What is this about?

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