STATE OF ORISSA v. BHUPENDRA KUMAR BOSE
Citation: [1962] SUPP. 2 S.C.R. 380; 1961 INSC 358
Court: Supreme Court of India
Bench: P.B. GAJENDRAGADKAR , A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1961 INSC 358. Supreme Court of India judgment dated 1961-12-22. STATE OF ORISSA v. BHUPENDRA KUMAR BOSE. Read the judgment and case details on LawSphereX.
Judgment text
IHI o.. -... n. 380 SUPREME OOURT REPORTS [1962] SUPP. STATE OF ORISSA v. BHUPENDRA KUMAR BOSE (P. B. GAJENDRAOADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUPTA andN. RAJAOOPALA AYYANOAR, JJ. ) 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 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 prelimi- nary 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 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. Jletd, that the Ordinance was valid and that it success- fully cured the invalidity of the electoral roll and of the elec- tions to the Cuttack Municipality. The Ordinance did not offend Art. 14 of the Constitu- tion. Iu object was not only to save the elections to the I 2 s. c. R. SUPREME COURT REPORTS 381 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. Shri Ram Krishna Dalmia v. Shri JuaticeS. R. Tendollcar, [1959] S. C. R. 279, referred tc>. State oJVermont 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. 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. 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. 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, 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. Cxvrr. APPl! lLLATE JurosDIOTIO~: Civil Appeals Nos. 525 and 526of1960, Appeals from the judgment and order dated March 20, 1959, of the Orisaa. High Court in O. J. C. No. 12 of 1959. "" St«,•o(Ori.
rst1 •• BllMp of the Cuttack Municipality shall ht>, and shall always 1981 State ofOdssa v. Bhup,ndra KumaJ BtJ5e Gojendrrgadkar J. IHI Stolt of Orisn v. Bh•'P f#d'a Kwn4r Bou 06j,. Jragadl. ar J. 388 Sl:PREME COURT REPORTS [1962] SUPP. It was then contended that R. 4 of thP- Ordinancc 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 cl to the· ciliZl'nR hy thl· abr'clgPm 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 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. Ranga- nathan Chetty has n. lso urged two addition"l point8. He h11. s contended that the pr nal grnund that the Ordinance was invalid inasmueh 11. a it pur- ported to invalidate the judgmen1 of the High Court in O. J. C. No. i2 of 19;)8 delivered un 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 qu~btion 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. 11111 St. ti •f Qrissa •• Bhup1n4,. KumOI" Bou Gajendragadkar J Stoh of 01is! a v. Bltupe1. dra Kll1fttr Best 390 SCPkEMI:; COUH'f REl'ORT~ flOO~) SUPP The High Court was, no doubt, influrnced by its conclusion tlat l\Ir. Bos. i alone had been singled out for 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 d all the proviiiione of tbe Ordinance tog('lher liefo1c rti t > protJ :t n Jt only actirms taken and, powers exercised under t'. 1e Municip~l ~ S. C. R.
SUPREME OOURT REPORTS 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 s. 5(1 ), the High Court thought that between ss. 5(1) and s. 477 A of the Indian Penal Code there was incon- sistency. 'fh'l. t is why it struck down s. ction, it would be useful and interest- ing to consider the decision in the case of Sf eaven- son 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 -V C" taken un er provts
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