25 November 1954
Supreme Court


Case number: Appeal (civil) 81 of 1953






DATE OF JUDGMENT: 25/11/1954


ACT: Constitution  of India, arts.  14,19(1)(g)-Orissa  Municipal Act,    1950    (Orissa   Act   XXIII    of    1950),    ss. 1(3),1(5),16(1)(x)-Nomination filed and rejected, effect of- Disqualification  for  nomination  if  violates  fundamental right--Orissa  General  Clauses Act, 1937 (Orissa Act  I  of 1937), s. 23-Scope of.

HEADNOTE: The  provisions of section 16(1)(x) of the Orissa  Municipal Act,  1950, by which a paid legal practitioner on behalf  of or against the Municipality is disqualified for election  to a  seat in such Municipality do not violate the  fundamental rights  guaranteed to such legal practitioner under  article 14 or under article 19(1)(g) of the Constitution of India. The  Orissa Municipal Act, 1950, having received the  Gover- nor’s  assent  on November 7, 1950,  all  preliminary  steps specified  in section 1(5) of the Act which were  taken  for the  purpose of a Municipal election after such  assent  are valid  even  though the Act itself had not  then  come  into force in terms of section 1(3). Accordingly  a  nomination  filed on  March  15,  1951,  was validly subjected to the test of disqualification  contained in  section 16(1) (x) of the Act and the rejection  of  such nomination  on March 25, 1951, was not defective though  the Act came into force on April 15, 1951, in the area to  which the  rejected nomination relates.  Section 23 of the  Orissa General Clauses Act, 1937, does not authorise the making  of rules or bye-laws, which are to come into (1)  [1955] 1 S.C.R. 941. 1005 operation before the commencement of the Act, but they  will be valid under the express provision of section 1(5).

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 81 of  1953. Appeal  under  article 132(1) of the Constitution  of  India from the Judgment and Order, dated the 18th April, 1951,  of the  High  Court of Judicature for the State  of  Orissa  at Cuttack in Judicial Case No. 60 of 1951. H.   J.  Umrigar, Sri Narain Andlay and Rajinder Narain  for the appellant. Porus A. Mehta and P. g. Gokhale for the respondent. 1954.  November 25.  The Judgment of the Court was delivered by BHAGWATI  J.-The  appellant  who  is  a  legal  practitioner residing  within the limits of the  Kendrapara  Municipality



and practising as a mukhtar in the criminal and the  revenue Courts  there filed his nomination paper for election  as  a Councillor  of  the Municipality on the  15th  March,  1951. That  nomination paper was rejected by the Election  Officer on the 25th March, 1951, on the ground that he was  employed as  a legal practitioner against the Municipality in a  case U/S  198  of the Bihar and Orissa Municipal  Act  which  was pending   in  the  Sub-Divisional  Magistrate  Court.    The appellant  then  filed on the 4th April,  1951,  a  petition before  the  High Court of Orissa under article 226  of  the Constitution praying that a writ or order of prohibition  be issued  to  the State Government and  the  Election  Officer restraining them from holding the election to the Kendrapara Municipality  under  the Orissa Municipal Act, 1950  or  the Municipal Election Rules, 1950.  This petition was  rejected by the High Court but the High Court granted the appellant a certificate  under  article 132(1) of the  Constitution  for leave to appeal to this Court. The  Orissa Municipal Act, 1950 (Orissa Act 23 of 1950)  was passed  by the local Legislature and received the assent  of the Governor on the 7th November, 1950, and was published in the official gazette on the 11th November, 1950.  Section  I of the Act runs as under 1006 (1)  This Act may be called the Orissa Municipal Act, 1950. (2)  It shall extend to the whole of the State of Orissa. (3)  It shall come into force in such area or areas on  such date or dates as the State Government may appoint from  time to time (5)  Any notification, order or rule and any appointment  to an  office,  may be made or election held  under  this  Act, after it shall have received the assent of the Governor  and shall take effect on this Act coming into force. Section  16 of the Act prescribes the  disqualifications  of candidates for election and provides (1)  No person shall be qualified for election to a seat  in a Municipality, if such person (ix ) is employed as a paid legal practitioner on behalf  of the  Municipality  or  as  legal  practitioner  against  the Municipality On the 11th November, 1950, the Secretary to the Government, Local  Self-Government Department addressed to all  District Magistrates  of the State letter No. 1336/L.S.G.  intimating that  the  Government  had decided  that  general  elections should be held on the basis of adult suffrage as provided in the  Act  in  12  Municipalities  including  the  Kendrapara Municipality.   Notification No. 2015 L.S.G. was  issued  on the 13th December, 1950, under section 13 read with  section 1 (5) of the Act fixing- the 1st day of March, 1950, as  the relevant  date for voters in the election as  regards  their residential qualification in the Municipality.  Notification No.  65  L.S.G. issued on the 4th January,  1951,  published rules  made in exercise of the powers conferred  by  clauses (1)  and  (2) of sub-section (2) of section 387 of  the  Act called the "Municipal Election Rules, 1950."  Redistribution of  wards was effected by Notification No. 167 L.S.G.  dated the  10th January, 1951, and two Notifications Nos. 519  and 521 L.S.G. were issued on the 24th January, 1951, fixing 1007 the  numbers  of Councillors and of the reserved  seats  for each  Municipality.  The 15th March, 1951, was fixed as  the date  for filing the nominations and the 25th  March,  1951, for  scrutiny of nomination papers.  The 20th  April,  1951, was the date fixed for the holding of the election. All these steps were taken by the Government in anticipation



acting under the powers reserved under section 1 (5) of  the Act  and it was only on the 15th April, 1951, that  the  Act was   extended   to  the  Kendrapara   Municipality   by   a notification under section 1 (3) of the Act. The  appellant contended (1) that the Act had not come  into operation  in  the  Kendrapara Municipality  till  the  15th April,  1951,  that  the  disqualification-  prescribed   by section 16(1) (ix) could not consequently have been incurred by him on the 15th March, 1951, when he filed his nomination paper, that the rejection of his nomination paper  therefore on  that ground by the Election Officer on the  25th  March, 1951, was illegal and no election could be held on the  20th April,  1951, as was sought to be done under the  provisions of the Orissa Municipal Act, 1950, or the Municipal Election Rules, 1950, and (2) that in any event the  disqualification prescribed under section 16(1) (ix) of the Act violated  his fundamentals rights guaranteed under article 14 and  article 19(1) (g) of the Constitution. Both these contentions were in our opinion rightly negatived by  the  High Court.  Section 1 (5) of the  Act  in  express terms provides that after the Act has received the assent of the Governor elections could be held under the Act but  were only  to  take effect on the Act coming  into  force,  which means the coming into force of the Act in such area or areas on  such  date  or dates which the  State  Government  might appoint  from’ time to time under section 1 (3) of the  Act. There is thus contemplated under the very provisions of sec- tion  1 (5) the holding of elections under the Act in  spite of  the  fact  that the Act had not come  into  force  in  a particular area.  Ordinarily the statute enacted by a  State Legislature comes into force as soon as it receives 1008 the  assent  of  the Governor.  Section 1  (3)  of  the  Act however  postpones the commencement of the Act  which  means that  section  1  (3) came into  operation  immediately  the Governor  gave  his  assent to the Act.  Section  1  (5)  is nothing but a proviso to section 1 (3) and must be  regarded also to have come into operation simultaneously with section 1 (3).  Section 1 (5) having thus come into force at once on the  Act having received the assent of the Governor  on  the 7th  November, 1950, if elections were to be held under  the Act  before  the  rest of the Act came  into  force  in  any particular  area.’ all incidental steps for the  holding  of such  elections were certainly contemplated to be taken  and those steps which would be thus taken in anticipation of the Act  coming into force in a particular area  were  certainly authorised  by  the  terms  of  section  1(5)  by  necessary implication,  because no elections could be held unless  all the  preliminary steps for holding the same were taken.   It would  be necessary for holding elections to  prescribe  the residential  qualification, to distribute the wards, to  fix the  numbers of Councillors and of reserved seats, to  frame election rules with reference to the filing of  nominations, the  scrutiny of the nomination papers and also the  holding of elections.  All these preliminary steps would have to  be taken  if  the elections were to be held  and  section  1(5) clearly   contemplated   the  taking  of  these   steps   in authorising elections to be held under the Act. No doubt the Act was not to be in force in a particular area until  the  relevant notification was issued  by  the  State Government   and   until  the  Act  came  into   force   the disqualifications  prescribed  in section 16(1) of  the  Act would  not normally attach to candidates for election.   The election rules also would be framed in exercise of the power reserved  under  the Act and if the -Act had not  come  into



force much less could the election rules come into operation and  bind the candidates.  This argument could have  availed the  appellant  if  the State Legislature  had  not  enacted section  1(5) of the Act and the defect could not have  been cured by the provisions of section 23 of the Orissa  General Clauses Act (Orissa Act I of 1937) which was relied upon by                             1009 the  respondent.   That section only enables the  making  of rules or bye-laws or the issue of the preliminary orders  in anticipation of the Act coming into force, which rules, bye- laws  or orders however would not come into effect till  the commencement  of the Act.  The clear provisions  of  section 1(5)  of  the  Act however  expressly  empowered  the  State Government  to hold elections and thereby validated all  the preliminary  steps  taken for the purpose  of  holding  such election,  the only reservation made being that even  though the election under the Act be held such election was not  to take  effect till the Act came into force in the  particular area.  This contention of the appellant therefore fails. The  contention  that  the  disqualification  prescribed  in section  16(1)(ix)  violates the fundamental rights  of  the appellant  under article 14 and article 19(1)(g) is  equally untenable.   Article 14 forbids class legislation  but  does not  forbid  reasonable classification for the  purposes  of legislation.    That   classification  however   cannot   be arbitrary  but  must  rest upon some  real  and  substantial distinction  bearing a reasonable and just relation  to  the things  in respect of which the classification is made.   In other  words  the  classification  must  have  a  reasonable relation to the object or the purpose sought to be  achieved by the impugned legislation.  The classification here is  of the  legal  practitioners  who are employed  on  payment  on behalf  of the Municipality or act against the  Municipality and those legal practitioners are disqualified from standing as  candidates  for election.  The object or purpose  to  be achieved  is the purity of public life, which  object  would certainly be thwarted if there arose a situation where there was  a conflict between interest and duty.  The  possibility of  such a conflict can be easily visualised, because  if  a Municipal  Councillor  is employed as a paid  legal  practi- tioner  on behalf of the Municipality there is a  likelihood of  his misusing his position for the purposes of  obtaining Municipal briefs for himself and persuading the Municipality to sanction unreasonable fees.  Similarly, if he was  acting as a legal practitioner against the Municipality he might in the  interests of his client misuse any knowledge  which  he might have obtained 129 1010 as a Councillor through his access to the Municipal  records or he might sacrifice the interests of the Municipality  for those  of his clients.  No doubt having regard to  the  best traditions  of the profession very few  legal  practitioners would  stoop  to such tactics, but the  Legislature  in  its wisdom thought it desirable to eliminate any possibility  of a conflict between interest and duty and aimed at  achieving this   object  or  purpose  by  prescribing  the   requisite disqualification.   The classification thus would  certainly have  a reasonable relation to the object or purpose  sought to be achieved. It  was however urged that besides this category  there  are also other categories where there would be a possibility  of conflict  between  interest and duty and that in so  far  as they were not covered by the disqualifications prescribed by section  16(1)  of the Act the provision  disqualifying  the



category to which the appellant belonged was discriminatory. It  was  particularly pointed out that a client  who  had  a litigation  against the Municipality was not prevented  from standing  as  a  candidate for election  whereas  the  legal practitioner  who held a brief against the Municipality  was disqualified,  though the ban against both these  categories could  be  justified  on ground  of  avoidance  of  conflict between  interest  and  duty.  The  simple  answer  to  this contention  is that legislation enacted for the  achievement of a particular object or purpose need not be all embracing. It  is for the Legislature to determine what  categories  it would  embrace  within the scope of legislation  and  merely because  certain  categories which would stand on  the  same footing  as those which are covered by the  legislation  are left out would not render legislation which has been enacted in   any   manner  discriminatory  and  violative   of   the fundamental   right   guaranteed  by  article  14   of   the Constitution. The right of the appellant to practise the profession of law guaranteed by article 19(1) (g) cannot be said to have  been violated,  because  in laying down the  disqualification  in section  16(1)  (ix)  of the Act the  Legislature  does  not prevent  him  from practising his profession of law  but  it only lays down that if he wants 1011 to stand as a candidate for election he shall not either  be employed  as  a  paid legal practitioner on  behalf  of  the municipality  or  act as a legal  practitioner  against  the Municipality.   There is no fundamental right in any  person to  stand as a candidate for election to  the  Municipality. The  only fundamental right which is guaranteed is  that  of practising  any  profession or carrying on  any  occupation, trade  or  business.  There is no violation  of  the  latter right  in  prescribing  the  disqualification  of  the  type enacted  in section 16(1) (ix) of the Act.  If he  wants  to stand as a candidate for election it is but -proper that  he should  divest  himself of his paid brief on behalf  of  the Municipality or the brief against the Municipality in  which event  there  will be certainly no bar to  his  candidature. Even  if  it  be  taken as a restriction  on  his  right  to practice his profession of law, such restriction would be  a reasonable  one  and  well within the ambit  of  article  19 clause  5.  Such restriction would be a  reasonable  one  to impose  in  the  interests of the  general  public  for  the preservation of purity in public life.  We therefore see  no substance in this contention of the appellant also. The  appeal  accordingly  fails and  stands  dismissed  with costs. Appeal dismissed.