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PETITIONER: STATE OF ORRISSA

       Vs.

RESPONDENT: BHUPENDRA KUMAR BOSE

DATE OF JUDGMENT: 22/12/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR  945            1962 SCR  Supl. (2) 380  CITATOR INFO :  R          1974 SC 396  (25)  RF         1975 SC2299  (186,228,315,606)  R          1977 SC1884  (26)  R          1982 SC 710  (19)  R          1985 SC 724  (19)

ACT:      Municipal      Elections-Electoral      rolls improperly prepared-High Court declaring elections invalid-Validating Ordinance-Constitutionality of- Expiry of  ordinance-Whether  invalidity  revives- Orissa Municipal  Act, 1950  (Orissa 33  of 1950)- Orissa, Ordinance  1 of  1959, ss.  3,  4  and  5- Constitution of India, Arts. 14, 226 and 254

HEADNOTE:      Elections   were   held   for   the   Cuttack Municipality and  27 persons were declared elected as Councillors.  One B,  who was  defeated at  the elections, filed  a writ  petition before the High Court challenging  the elections.  The High  Court held  that   the  electoral  rolls  had  not  been prepared in  accordance with the provisions of the Orissa  Municipalities   Act,  1950,  as  the  age qualification had  been published too late thereby curtailing the  period of claims and objections to the preliminary  roll to  2 days  from 21  days as prescribed; Consequently  the High Court set aside the elections.  The State  took the  view that the judgment   affected   not   merely   the   Cuttack Municipality  but   other   municipalities   also. Accordingly, the Governor promulgated an ordinance validating   the    elections   to   the   Cuttack Municipality and  validating the  electoral  rolls prepared  in   respect  of  other  municipalities. Thereupon, B filed a writ petition before the High Court   contending    that   the   ordinance   was unconstitutional. The  High Court  found that  the ordinance contravened Art. 14 of the Constitution,

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that it  did not  successfully cure the invalidity and  that   it  offended   Art.  254(1)   of   the Constitution as  it  was  inconsistent  with  many Central Acts  falling in  the concurrent  list and was   unconstitutional.    The   State   and   the Councillors appealed  and challenged  the findings of  the   High  Court.   B  raised   two   further contentions that the appeal had become infructuous as  the   ordinance  had   expired  and  that  the ordinance  was   invalid  as   it   purported   to invalidate the judgment of the High Court. ^      Held, that  the ordinance  was valid and that it  successfully   cured  the  invalidity  of  the electoral roll and of the elections to the Cuttack Municipality.      The Ordinance  did not  offend Art. 14 of the Constitution. Its  object was not only to save the elections to the 381 Cuttack   Municipality    but   also    to   other municipalities whose  validity might be challenged on similar  grounds. It  did not  single out B for any discriminatory treatment.      Shri Ram  Krishna Dalmia v. Shri Justice S.R. Tendolkar, [1959] S. C. R. 279, referred to.      State of  Vermont 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.      Section 5(1) of the Ordinance which saved the actions  taken   and  powers   exercised  by   the Councillors, the  Chairman and  the  Vice-Chairman was not  repugnant to any existing law and did not contravene  Art.   254(2)  of   the  Constitution. Section 5(1)  was confined  to action  taken under the Orissa  Municipalities Act  and did not extend to 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 could 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 elections 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.      Krishnan v.  State of  Madras  [1951]  S.C.R. 621, Wicks  v. Director  of  Public  Prosecutions, [1947] A.C.  362, Steavenson  v. Oliver (1841) 151 E. R.  1024 and  Warren v.  Windle, (1803)  3 East

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205, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 525 and 526 of 1960.      Appeals from  the judgment  and  order  dated March 20, 1959, of the Orissa High Court in O.J.C. No. 12 of 1959. 382      A. Viswanatha  Sastri, B.R.L.  Iyengar and T. M. Sen, for the appellant (In C.A. No. 525/60) and respodent No. 1 (in C.A. No. 526 of 1960.)      B. P. Maheshwari, 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,  S. Mishra,  A.   Vedavalli  and   R.   Patnaik,   for respondent No.  1 (in  C.A. No.  525/60) and 2 (in C.A. No. 526 of 60).      1961. December  22. The Judgment of the Court was delivered by      GAJENDRAGADKAR,  J.-These   two  appeals  are directed against  the order  passed  by  the  High Court of Orissa under Art. 226 of the Constitution striking down as unconstitutional sections 4 and 5 (1) of  orissa Ordinance  I of 1959 promulgated by the Governor  of Orissa  on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. B. K.  Bose against  the State  of Orissa  and  27 persons  who   were  elected  Councillors  of  the Cuttack Municipality,  including the  Chairman and the Vice-Chairman respectively. Appeal No. 525 has been filed  by the  State of Orissa whereas Appeal No.  526   is  filed   by   the   said   Municipal Councillors. The  appellants in  both the  appeals obtained leave  from  the  Orissa  High  Court  to appeal to this Court.      It appears  that  during  December,  1957  to March, 1958,  elections were  held for the Cuttack 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 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, 383 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

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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 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  10, 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 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 384 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.      It appears  that the State of Orissa took the view that  the effect  of the  said judgment could not be confined only to Cuttack Municipality. As a result of  the findings  made by  the  High  Court during  the   course  of  the  said  judgment  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 prescribed  in that  behalf by  the Act. That is why the Governor of Orissa promulgated the impugned Ordinance  on January  15, 1959.  Broadly stated, the  effect of  the Ordinance was that the elections  to   the  Cuttack   Municipality  stood validated  and  the  said  Municipality  began  to function  once   again.  It   also  validated  the electoral rolls  prepared in  respect of the other Municipalities in  the State  of Orissa  and  thus sought 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.

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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 385 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 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 unless a validating Ordinance had been passed, would have entailed huge  expenditure and  would  have  given rise to  problems regarding  the administration of such Municipalities 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 386           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 this           behalf under the Act.           (2) The  validity of the electoral rolls      shall not  be called in question in any court      on the ground that the date on which a person      has to  be not  less than 21 years of age was      fixed under  Section 13  of the act after the

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    publication  of   the  preliminary  electoral      rolls.           4. Any  order of  a court  declaring the      election to  the Cuttack 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 the  date of polling of the election was      not fixed  in accordance  with the Act or the      rules made  thereunder, shall be deemed to be      and always  to have been of, no legal effect,      whatsoever, and  the elections  to  the  said      Municipality are hereby validated.           5. (1)  All actions  taken,  and  powers      exercised by  the  Councillors,  Chairman  or      Vice-Chairman  of  the  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 387      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 force of the Ordinance, while s.  5(2) validates  all  actions  taken  and powers exercised  by the  District  Magistrate  of Cuttack in  respect of the Cuttack 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 Cuttack Municipality 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

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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. 388      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 filing  claims and objections and  of the  period for  canvassing. In regard to  s. 5(1)  the argument  was that  it was invalid  under   Art.  254(1).   All  these  three contentions have  been accepted  by the High Court and the  correctness of  the findings  recorded by the  High   Court  in   that  behalf  fall  to  be considered  in   the  present  Appeals.  The  last contention raised  in support  of the petition was that on February 23, 1959, a Bill entitled "Orissa Municipal Election  Validating Bill,  1959"  which contained  substantially   similar  provisions  as those  of   the  Ordinance,   was  sought   to  be introduced in  the Orissa Legislative Assembly but was defeated  by a majority of votes and that made the ordinance  invalid. This  contention has  been rejected by  the High Court and the finding of the High Court  on this  point has not been challenged before us. Thus, out of the 5 points raised before the High  Court, 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. 389      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   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  success, he  alone should have  been discriminated against by hostile legislation.   With   respect,   this   rhetorical approach adopted  by the  High Court,  in  dealing

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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. 390      The High  Court was,  no doubt, influenced by its  conclusion  that  Mr.  Bose  alone  had  been singled out  for discriminatory  treatment of  the impugned Ordinance and that, according to the High Court, constituted  violation of the provisions of Art.  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 the Ordinance was  two-fold. Its  first object  was to validate 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  Municipalities in  the State  of  Orissa whose  validity  might  have  been  challenged  on grounds similar to those on which the elections to the Cuttack  Municipality  had  been  successfully impeached. It is with this two-fold object that s. 3 makes  provisions under  its two sub-ss. (1) and (2). Having  made the said two provisions 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

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nothing more. 391      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  Cuttack Municipal  Elections   themselves.   The   Cuttack Municipal Elections had been set aside by the High Court and  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   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 was based, had not been applicable to the 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 392 respect of  the Cuttack  Municipal Elections,  and if, on account of special circumstances or reasons applicable to  the Cuttack  Municipal Elections, a law was  passed in  respect of  the said elections alone,  it  could  not  have  been  challenged  as unconstitutional under  Art. 14. Similarly, if Mr. Bose  was   the  only  litigant  affected  by  the decision and as such formed a class by himself, it would have  been open to the Legislature to make a law only  in respect  of his  case. But as we have already  pointed   out,  the  Ordinance  does  not purport to limit its operation only to the Cuttack Municipality; it  purports to validate the Cuttack Municipal Elections  and the  electoral  rolls  in respect   of   other   Municipalities   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

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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 as soldiers in 393 the war  for the  suppression of  the Rebellion in the   Southern   States,   and   were   honourably discharged. This  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 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 Court has taken the view that even if s. 4 did not offend against  Art 14,  it nevertheless could not cure  the  invalidity  of  the  elections  to  the Cuttack Municipality  inasmuch as  it had not said anything about  the finding of the High Court that the irregularities  complained against  had caused material prejudice  to the  citizens of Cuttack by the abridgement  of the  period for  filing claims and objections 394 and  of   the  period  for  canvassing.  When  the validating provision,  observes  the  High  Court,

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merely cures  the invalidity  arising out  of  the fixation  of   the  qualifying   date  after   the publication of the preliminary electoral rolls and is completely  silent about  the  results  of  the elections being  materially affected  thereby,  it cannot be  said to  have annulled  the judgment of this Court  in O.  J. C.  No. 72 of 1958. The same reasoning would  also apply  to the abridgement of the period  of canvassing  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 there is any substance in the alternative argument urged in support of  the plea that s. 4 is ineffective even if it does not contravene Art, 14.      That takes  us to  the question as whether s. 5(1) is invalid. The High Court has taken the view that s.  5(1) purports to protect not only actions taken and powers exercised under the Municipal 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  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

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construction  and   then   strike   it   down   as inconsistent with Art. 254(2) of the Constitution. It is  true that  s. 5(1)  is not in express terms confined to all actions taken and powers exercised under the Municipal Act, but, in the context, that is obviously  intended.  Indeed,  it  is  doubtful whether it  was really  necessary to add the words under the  Municipal  Act  having  regard  to  the scheme of  the ordinance  and the context in which s. 5(1)  is enacted.  Therefore, we  do not  think that the  High Court was justified in holding that s. 5(1)  was void  to the extent of its repugnancy to the  existing laws  dealing with matters in the Concurrent List.  There is  no repugnancy  to  any existing laws and so, there is no contravention of Art. 254(2) of the Constitution at all.      We will  now deal  with  the  two  additional grounds urged before us by Mr. Chetty. He contends 396 that the  Governor was  not competent  to issue an Ordinance with  a view  to 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  infructuous.  He  contends  that  the Ordinance was  a temporary statute which was bound to lapse  after the  expiration of  the prescribed period  and   so,  as   soon  as  it  lapsed,  the invalidity  in  the  Cuttack  Municipal  elections which had been cured by it revived and so there is no  point   in  the   appellants  challenging  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 397 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

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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  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).      Wicks v.  Director of Public Prosecutions (2) is an  illustration in point. The Emergency 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 as respects  things previously  done or omitted to be done. The appellant Wicks was convicted in May, 1946, of  offences committed  in  1943  and  1944, contrary to Regulation 2A of the Defence (General) Regulations 1939,  made pursuant  to the Act. Both the Act and the Regulation expired on February 24, 1946. It  was as  a result of this specific saving provision 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  properly convicted after the expiration of the Act,  since s.  11 (3) did not expire with the rest of the 398 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 before  the act expires. If a prosecution has not  ended before that day, as a result of the termination  of   the  Act,  it  will  ipso  facto terminate. But is that an inflexible and universal

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rule ?  In our  opinion, what  the effect  of  the expiration of a temporary Act would be must depend upon  the   nature  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 399 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 in  the statute and its expiration would bring to  an end  all the  rights 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  usual examination,  by virtue  of  the provision of  the  temporary  Act,  would  not  be deprived of  his right  after 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  should  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  Act  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 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", 400 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

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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 temporary statute  expires by  efflux of time, the detention of the offender in jail by virtue of the order of  sentence imposed upon him would cease to be valid and legal ? In our opinion, the answer to this  question   has  to   be  in   the  negative. Therefore,  in   considering  the  effect  of  the expiration of  a 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 401 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  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 (1) "a law though  temporary in  some of  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 repeal  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  about the effect of the expiration of a temporary Act.      Now, turning  to the  facts  in  the  present case, the  Ordinance  purported  to  validate  the elections to  the Cuttack  Municipality which  had

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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 402 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 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.      The result  is that  the appeals are allowed, the order  passed by  the High Court is set aside, and  the  Writ  Petition  filed  by  Mr.  Bose  is dismissed with costs throughout.                                   Appeals allowed.