# IHI o - n. 380 SUPREME OOURT REPORTS [1962] SUPP. STATE OF ORISSA v. BHUPENDRA KUMAR BOSE

- **Citation:** [1962] Supp. 2 S.C.R. 380
- **Court:** Supreme Court of India
- **Decided:** 1959-03-20
- **Bench:** P. B. Gajendraoadkar, A. K. Sarkar, K. N. Wanchoo, K. C. DAS GUPTA andN. RAJAOOPALA AYYANOAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ihi-o-n-380-supreme-oourt-reports-1962-supp-state-of-orissa-v-bhupendra-kumar-2613
- **Pages:** 23

## Headnote

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 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.
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.
The Ordinance did not offend Art. 14 of the Constitution. 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 la

## Text

_Characters 0–39,748 of 47,059. This is a partial read: ask again with offset=39748 for what follows._

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 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.
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.
The Ordinance did not offend Art. 14 of the Constitution. 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<n.f,. K,,,.., -
382
SUPREME OOURT REPORTS SUPP. [1962)
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.)
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).
1961. Deoember 22. The Judgment of the
Court was delivned by
GAJENDRAGADKAR, J.- Th~se 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.
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 decl~1ed elect~cl 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
2 S.C.R.
SUPREME COURT REPORTS
383
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.
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
IHI
Sta!• ofOrtsJ•·
...
B!iup,ndra Kumar
Bose
G•j"1draglidlm J,
JHl
.sr.11 ef o,;,,.
t,
.
B,,,,,..Jr. Ku,..,
Bise
38! SUPREME COURT REPORTS [1962] SUPP.
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.
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.
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
2 S.C.R.
SUPREME COURT REPORTS
385
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,
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.
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: -
"3. (I) Notwithstanding the
Order of
any Court to the contrary or any provision in
the Act or thn rules thereunder :
(a)
the elect,)ral roll> 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<ndr• K,,,....
B.,,
<Jej,.drov•dt.1 J.
386 SUPREME COURT REPOHTS [1962] SL"'PP.
be deemed to bavo been validly prepared
and pu bli~hed; and
(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.
(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.
4. 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.
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.
(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
28.C.R.
SUPREME COlH{T REPORTS
387
and exercised by tha Council of the said
Municipality or
its Chairman or ViceChairman, as the case may be."
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.
Before the High Court, on behalf of Mr. Bose
five points were rai~ed. 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 w~iranted 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.
1961
State of Ori8sa
Y,
Bhupendra Kumar
Bose
Ga.jendragJdlcar
].
1961
StaJ1 of Orissa
v.
B/ru/>f#d'a Kwn4r
Bou
06j,.Jragadl.ar J.
388 Sl:PREME COURT REPORTS [1962] SUPP.
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.
2 S.C.R.
SUPREME COURT REPORTS
389
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 succe~s, 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 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 <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
succe~s 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
singl~d
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.
2 S.C.R.
SUPREME COURT REPORTS
391
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
(I} [1959] S. C.R. 279, 297.
1961
Stall ofOrissa
v.
Bh.up,nJt'a Kum111
Bos•
G4jendraiatikar J.
1181
SW. o/Orisso
v.
~K
Iin•
392
SUPREME COURT REPORTS [1962] SUPP
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
Municip~lity; 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
Orclin~ncf', 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.
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.
2 S.C.R.
SUPREME COURT REPORTS
393
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 servic~s 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 interv~ning 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.
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
1951
State of Oris'a
v.
Bhupendra Kumar
s,., -
<Jajendragadk'di ~,
l!le I
Stat# oj Or issa
Y,
Bltltpmdro K'unuJr
Bot1
394 SUPREME COURT REPORTS [1962] SUPP.
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.
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
~ 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 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
plac~d 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,
We will now deal with the two additional
grounds urged before us by Mr. Chetty. He contends
1961
Slate ofOrissa
v.
Bhuj1tndra Kumar
8011
Cajendragadk:ar J.
IIJl;l
Sl-il1 ofO,issa
..
B~aEumar
Bou
396 SUPREME COURT REPORTS [1962) SUPP.
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.2~6 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.
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 lap~ed, 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 df~ctcd by it ~om!'s to an
end, then Mr. Chetty woulc.l ho right in contou ling
•
2 S.C.R,.
SUPREME COURT REPORTS
397
that the appeals are infructuous. But is it the
true legal position ?-that is the question which
cnlls Jor our d<':cision.
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).
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.
1961
St.ie oj Orissa
v.
BhufHndra Kumar
Bos(
196/
Sto1h of Orin a
v.
BAu!Jtttdra Kun1ar
398 SUPREME COURT REPORTS [1962] SUPP·
R"''
Guj1r.Jregtullt.tr J.
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."(')
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.
2 s.c.R.
SUPREME COURT REPORTS
399
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.