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TMI Blog1959 (3) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Opposite party No. 3 Sri Manmohan Misra was elected Chairman and opposite party No. 15, Sri Mahendra Kumar Sahu was elected Vice Chairman of the said Municipality. The petitioner Sri Bhupendra Kumar Boss who was one of the defeated candidates, challenged the validity of the elections before this Court in O. J. C. No. 72 of 1958. A Division Bench of this Court by its judgment dated 11-12-1958 declared the elections to be invalid and issued a direction to the State of Orissa and to the District Magistrate of Cuttack to hold fresh elections to the Municipality according to law. A further direction was issued to the elected Municipal Councillors restraining them from functioning as Councillors on the basis of the said elections. Neither the State of Orissa nor the other members of the opposite party challenged the judgment by way of an appeal to the Supreme Court. Consequently, the judgment became conclusive and was given effect to in due course; and the District Magistrate of Cuttack took over the administration of the Municipality as an interim arrangement. 3. It will be useful at this stage to briefly summarise the reasons for which the Division Bench held the elections to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And whereas it is necessary to take immediate steps to provide for the validation of the electoral rolls and the elections and also for other matters as hereinafter appearing; And whereas the Legislature of the State of Orissa is not in session and the Governor is satisfied that circumstances exist which render it necessary to take immediate action for the purposes aforesaid; Now, therefore, in exercise of the powers conferred by Clause (1) of Article 213 of the Constitution, the Governor of Orissa is pleased to make and promulgate the following Ordinance in the Ninth Year of the Republic of India: Short title and extent. 1. (1) This Ordinance may lie called the Orissa Municipal Election Validation Ordinance 1959. (2) It extends to the whole of the State of Orissa. Definition. 2. In this Ordinance, unless there is anything repugnant in the subject or context-- (a) the Act means the Orissa Municipal Act, 1950; (b) election means the election of a Councillor of a Municipality held during the year, 1958; (c) electoral roll means the electoral rolls on the basis of which the elections of the council--lots of a Municipality were held during the year 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are invalid. It ;S not denied that that is the only judgment dealing with the invalidity of Cuttack municipal elections. It is true that the petitioner had stated in paragraph 4 of his petition that about six election petitions challenging the election of some of the opposite parties to Cuttack Municipality were filed but his further statement that some of them are pending has not been challenged. 6. The preamble to the Ordinance gives the special reasons which induced the Governor to promulgate the Ordinance. Though the decision of this Court in O.J.C. No. 72 of 1958 related only to the elections to Cuttack Municipality yet the reasons given for that decision have created doubts regarding the validity of elections to certain other. Municipalities in Orissa. The Governor was further satisfied that the preparation of fresh electoral rolls and the holding of fresh elections will entail huge expenditure and also give rise to problems regarding the administration of such municipalities during the intervening period . For these reasons he was satisfied that an emergency had arisen and that as the Legislative Assembly was not in session it was necessary to take immediate action to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls prepared for other Municipalities in Orissa is under challenge, on similar grounds, sub-section (2) of Section 3 would take away the precedent effect of our judgment in so far as matters referred to in that sub-section are concerned. Section 4: This section expressly renders ineffective the judgment of this Court in O. J. C. No. 72 of 1958 but that ineffectiveness is to a limited extent only. It says that the invalidity of the elections to Cuttack Municipality arising on account of (i) fixation of the qualifying date after the date of publication of the preliminary electoral roll and (ii) fixation of the dates, of polling in contravention of the provisions of the Orissa Municipal Act or the rules made thereunder, shall be inoperative. Section 5 : Sub-section (1) of Section 5 validates all actions taken and powers exercised by the Vice-chairman, Chairman and Councillors of Cuttack Municipality prior to the coming into force of the Ordinance. There are no qualifying words to show that classes of actions taken and powers exercised , were validated. 7. Mr. Srinivas Misra on behalf of the petitioner raised the following contentions; (i) The provisions of the Ordinance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast points may be dealt with first. In my opinion, they are not tenable. Complete separation of powers between the Judiciary, the Executive and the Legislature, which is an essential feature of the American Constitution has not been provided for in our Constitution and consequently, a piece of legislation, unless it is shown to have offended any of the provisions of the Constitution such as those dealing with Fundamental Rights or distribution of legislative powers, cannot be struck down on the ground that it involves encroachment on judicial functions. Mr. Misra relied on some American decisions such as, City of Janesville v. Edwin F. Carpenter, 8 LR (Annotated) 808 and State of Indiana, ex rel, John Worrell v. Bruce Carr, State Auditor 13 LR (Annotated) 177 where the assumption of purely judicial functions by the Legislature was held to be unconstitutional. In my opinion these decisions are not applicable here. The constitutionality or otherwise of the provisions of an Ordinance must be judged solely on a consideration as to whether any of its provisions contravened the provisions of the Constitution and not on the general ground of usurpation of judicial power by the Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual if, on account of some special circumstances or reasons applicable to him and not to others, the single individual may be treated as a class by himself. (ii) There is always a presumption in favour of the constitutionality of an enactment, and the burden is upon him, who attacks it, to show that there has been clear transgression of the constitutional principles. (iii) It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations arc based on adequate grounds. (iv) The Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. (v) In order to sustain the presumption of constitutionality the Court may take into consideration matters' of common knowledge, matters of common report, the history of the times and may assume every state of things which can be conceived as existing at the time of legislation; and (vi) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Ramprasad Narain Sahi v. State of Bihar, AIR 1953 S.C. 215. 11. On the question as to what should be the basis for reasonable classification clear indications are found in State of West Bengal v. Anwar Ali 1952: SCR 284: GAIR 1952 SC 75): Mahajan, J. at page 313 (of SCR) : (at pp. 85-86 of AIR) observed : Classification thus means segregation in classes which have a systematic relation, usually found in common properties and characteristics. It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily . Mukherjea, J at page 320 (of SCR): (at p. 88 of AIR) also expressed the same idea in the following terms: It (referring to Article 14) only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if, as regards the subject matter of the legislation, their position is substantially the same . Das, J. (as he then was) also conveyed the same idea as follows at page 334 (of SCR): (at p. 93 of AIR): It is now well est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a whole, but also in examining one of its provisions if that provision alone is impugned. Doubtless, if all the provisions of a statute are closely inter-linked and a reasonable basis for classification can be found applicable to all of them, the separate examination of the constitutional validity of a particular provision may not arise. But if a provision is severable from the remaining provisions and it appears that the. Legislature had in mind a separate basis for classification in respect of that particular provision, its constitutional validity will have to be examined independently, 13. A judgment of a superior court of record like a High Court has effect on two classes of persons. Firstly, as between the parties to the judgment and their privies it is binding and conclusive unless reversed by a superior court of appeal or amended by the court itself, according to law. Moreover, the original cause of action on the basis of which the action commenced, is merged in the judgment and its place is taken by the rights created between the parties by virtue of the judgment. (See Halsbury, Third Edition, Vol. 22 pages 780 and 781). But as regards persons who are not parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in that title were those of the Queen's Bench and Chancery Divisions of the High Court and orders of the Court of Appeal. The writ jurisdiction in England is exercised by the High Court and consequently decisions in exercise of such writ jurisdiction would also be included in the expression 'judgment' which has been dealt with in Halsbury. In fact in paragraph 1680 at page 795 (ibid) judgments in mandamus proceedings are expressly referred to. It seems fantastic to say that the petitioner has obtained no rights by virtue of the judgment in O.J.C. No. 72 of 1958 (Orissa): He is a citizen of Cuttack and was one of the defeated candidates in the last elections to the Cuttack Municipality. He was clearly entitled to challenge the validity of the election of his rival candidate even under the Orissa Municipal Act (Section 18) and the judgment of this Court in O.J.C. No. 72 of 1958 upheld that challenge, restrained the municipal councillors from functioning as councillors on the basis of the elections held in March, 1958 and directed the Stale Government to hold fresh elections according to law. The petitioner has thus obtained a very valuable right of preventing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the validity of the electoral rolls is challenged on grounds similar to those which were upheld in O.J.C. No. 72 of 1958 (Orissa) the effect of that judgment as precedent is taken away by this sub-section. 16. The learned Advocate-General and Mr. M. Mohanty, however, strenuously contended that Sec-lion 3 of the Ordinance would render ineffective the judgment in O.J.C. No. 72 of 1958 (Orissa) even between the parties thereto, by taking away the foundation on which that judgment was cased. I am unable to accept this argument. The judgment is binding as between the parties not because of the strength of the reasons on which it is based, but because it is a judgment of a competent court and new rights are created by it. The reasonings, especially on questions of law, may disappear by a validly enacted retrospective law (in this case the Ordinance). But the judgment cannot be annulled unless the Legislature makes express provisions to that effect in the statute. Section 4 of the Ordinance contains such a provision. It expressly says that the decision in O.J.C. No. 72 of 1958 (Orissa) shall be deemed to have no legal effect. It is true that in Section 4 there is a reference to Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not give any other reason. In my opinion, these reasons are unsubstantial and would not suffice to deny Sri Bose the fruits of his success. The existing Councillors of Cuttack Municipality cannot claim a special privileged position of not being liable to be impleaded as opposite parties in an application under Article 226. It cannot also be reasonably contended that the expenditure that will have to be incurred in holding fresh elections to Cuttack Municipality would be so great as to strain the financial resources of even a poor State like Orissa, Moreover, no difficult administrative problems will arise in managing the affairs of that Municipality until the elections are held afresh. I have already shown that for a period of nearly a month from the date of the Judgment in O.J.C. No. 72 of 1958 (Orissa) i.e. 11-12-1958 till the date of promulgation of the Ordinance, i.e. 15-1-1959 the District Magistrate of Cuttack administered the Municipality. He has also been administering the Municipality from 24-1-1959, the date on which an interim order of injunction was passed in this application till now. Though the Court is bound to treat with great, respect the opinion of the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and visits him with a disability which is not imposed on anybody else and against which even the right of complaint is taken away. The present case is even stronger than the Biliar case. There the right to bring a suit was taken away under the impugned Act, but here under Article 226 of the Constitution a right had already been conferred on the aggrieved party by the judgment of this Court in O.J.C. No. 72 of 1958. His right to enforce that judgment has been taken away by Section 4 of the Ordinance for no valid reason except that heavy financial expenditure will be involved and administrative problems will be created, if that judgment was allowed to be enforced. As pointed out by the Supreme Court in AIR 1959 S.C. 149 Article 14 is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of nisuring the equality of status and opportunity which every welfare State such as India is, by her Constitution, expected to do. A legislative body (in this case the Governor) cannot be permitted to weaken the effect of this guarantee in Article 14 by arbitrarily creating a class and then ask the Court to accept such classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all persons affected by our judgment in O.J.C. No, 72 of 1958 whether they were parties to that judgment or whether they may be future litigants who may spring up as a result of the pronouncement of that judgment, may well form one class. According to him the heavy financial expenditure or the administrative problems created by the judgment should be viewed as a whole and that it will not be proper to divide the litigants into two classes, namely (i) those who obtained judgments in their favour on the one hand and (ii) those who may initiate fresh litigation later on. In my opinion this contention is unsustainable. The observations of their Lordships of the Supreme Court Mahajan, Mukherjea and Das JJ. in Anwar Ali Sarkar's case, AIR 1952 SC 75 which I have quoted above, are emphatic on one point namely that persons grouped together for the purpose of legislation must have common characteristics and must be similarly circumstanced. Their position must be substantially the same as regards the subject-matter of the legislation . I cannot conceive how a person who has obtained a judgment in his favour can be said to be similarly circumstanced with another person who might possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itigant secures a judgment in his favour, the enforcement of that judgment is a matter of procedure. Section 4 of the Ordinance deprives that person of this procedural right. Section 3, however, deprives litigants whose cases may be pending and future litigants of their substantive right of challenging the validity of the elections on certain specified grounds. A litigant whose procedural right is affected is not similarly situated, with a litigant whose substantive right is affected and remains to be yet determined. To group the two classes of litigants together would be unnatural and also irrational. 20. The learned Advocate General cited the following instances in which the decisions either of the Supreme Court or other High Courts were rendered ineffective by validating Ordinances or Acts passed by the appropriate legislative authority. Thus, in Bengal Immunity Co. Ltd. v. State of Bihar. (S) AIR 1955 SC 661 their Lordships of the Supreme Court directed, by a majority, that until Parliament by law provides otherwise the State of Bihar do forbear and abstain from imposing sales tax on out-of-State dealers in respect or sales or purchases that have taken place in the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner on the basis of Himachal Pradesh Act No. XV of 1954, on the ground that the Himachal Pradesh Legislature was not properly constituted. By Ordinance No. VII of 1958 (which was replaced by Act 56 of 1958) it was directed that notwithstanding the judgment of the Supreme Court, it shall be deemed that the Himachal Pradesh Legislative Assembly was validly constituted and the Bills passed by the Himachal Pradesh Assembly shall be deemed to have been validly enacted. The Act is a very recent one which came into force on 30-12-l958 and it is not known whether its validity has subsequently been challenged before the Supreme Court. But even in this Act though the precedent effect of the Supreme Court judgment might have been removed there is no express provision to the effect that the order passed in favour of Vinode Kumar in AIR 1959 SC 223 was annulled. There is no provision corresponding to Section 4 of the Ordinance before us. 22. The validating Acts of the other Slate Legislative Assemblies (except in the Nagpur cases referred to later) have not gone so far as to deprive the successful suitor of the fruits of his success. Thus in Durgeswar v. Secretary, Bar Council, AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Legislature thereupon passed the Bihar Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1958 (Bihar Act XIII of 1958) by which they validated assessments made up to the 31st March 1956, on the basis of the inclusion of such amounts under the taxable turnover of the registered dealer. But as regards assessments made after that date they strictly followed the aforesaid Patna decision. . Here also the Legislature did not completely render the Patna decision nugatory so far as the parties were concerned. 23. The aforesaid instances cited by the learned Advocate General himself are sufficient to show that the practice generally followed by legislative bodies in passing validating Acts in consequence of decisions of either the Supreme Court or the High Court is only to render ineffective the precedent effect of the judgment and not to annul the binding effect of that judgment inter partes. Doubtless, the Legislature's competence to annul judgments in appropriate cases has already been noticed and the only limitation is that while so annulling, it should not offend the fundamental rights especially those guaranteed in Article 14. The above mentioned instanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lete immunity from any action. Instances of this type can be multiplied. It is to avoid such inconsistencies that Clause (2) of Article 254 requires that such laws of the Legislature of a State should be reserved for the consideration of the President and assented to by him, In the case of an Ordinance, the Instructions issued by the President under the proviso to Clause (1) of Article 213 would cure such an invalidity, but it is admitted that no such previous Instructions were' received from the President prior to the promulgation of the Ordinance in question. Sub-section (1) of Section 5 should therefore be held to be void to the extent of its repugnancy to the existing laws dealing with matters in the Concurrent List. 25. Mr. M. Mohanty thereupon contended that though there may be some omissions in that sub-section, we should, as a matter of construction supply the words under the provisions of the Orissa Municipal Act and construe the sub-section accordingly. He urged that the words powers exercised would necessarily imply that the Governor was thinking of the powers exercised under the Municipal Act only, inasmuch as the Chairman, the Vice-Chairman and the Council ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolls arising out of the fixation of the qualifying date after the publication of the preliminary electoral rolls and (ii) the fixation of the date of polling in contravention of any of the provisions of the Municipal Act or of the rules framed thereunder shall have no legal effect whatsoever. Though the section has been expressly inserted to annul the judgment of this Court in O. J. C, No. 72 of 1958, the framers appear to have overlooked the main ground on which the elections were held to be invalid in that judgment. As. already pointed out in the beginning, the invalidity of the elections arose not merely because the qualifying date was fixed after the publication of the preliminary electoral rolls and the statutory period for canvassing was abridged from 15 to 14 days, but also because the results of the elections were materially affected thereby. Doubtless, if such a result is a necessary consequence, it may be argued with some justification that express mention of the same is unnecessary in the validating provision. But it cannot be held that a mere contravention of the provisions of the Orissa Municipal Act or of the Municipal Election Rules dealing with the holding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hereby which in the context would refer to the preceding words of that Section. A reasonable construction would be that any defects arising out of those two grounds alone were sought to be cured fey Section 4. I must therefore accept the contention of Mr. Misra that Section 4 has been so badly drafted as not to annul the judgment of this Court in O. J. C. No. 72 of 1958. 29. Gulabrao Keshavrao Dhole v. Pandurang Bhanji, (S) AIR 1957 Bom 266 (FB), may now be discussed as the learned Advocate General very much relied on it. The facts of that case were very similar to the facts here. A full Bench of the Nagpur High Court held in Kanglu v. Chief Executive Officer. (S) AIR 1955 Nag 49, that the electoral rolls of Godhu Constituency of Durg Janapada were not properly prepared and set aside the election of the successful candidate and directed the holding of fresh elections after due preparation and publication of the electoral rolls. The Legislature, however, stepped in, first with an Ordinance which was later followed by Madhya Pradesh Act No. I of 1955, the language of which is very similar to the language of the Ordinance here. Sub-section (2) of Section 4 of that Act reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient to annul the binding effect of the judgment of this Court, in O. J. C. No. 72 of 1958 on the par-ties to that judgment. The petition is, therefore, allowed and opposite parties 2 to 28 are permanently restrained by Mandamus from functioning as Councillors of Cuttack Municipality, or as the Chairman or Vice-Chairman of the said Municipality, as the case may be, on the strength of the Ordinance. Opposite Party No. 1 is also permanently restrained by Mandamus from enforcing the aforesaid two provisions of the Ordinance. The petitioner will be entitled to the costs of this application. Hearing fee is assessed at ₹ 200/- (Rupees two hundred) to be apportioned equally between the State of Orissa on the one hand and the contesting Municipal Councillors on the other. 32. Before concluding this judgment I wish to mention that though under the Orissa High Court Rules a Division Bench has jurisdiction to hear this case, a Special Bench consisting of the Chief Justice Hon. Rao, J. and Hon. Das, J. heard the case in the earlier stages, but for the reasons mentioned in our order dated the 16th March, 1959, the hearing of the petition was continued by a Division Bench and judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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