State Of Orrissa vs Bhupendra Kumar Bose

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 525 and 526 of 1960

Decision Date: 22 December 1961

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

In this case, the Court recorded that the petition was titled State of Orissa versus Bhupendra Kumar Bose and that the judgment was delivered on 22 December 1961 by a bench of the Supreme Court of India. The bench consisted of P B Gajendragadkar, A K Sarkar, K N Wanchoo, K C Das Gupta, and N Rajagopala Ayyangar. The citation of the decision was 1962 AIR 945 and 1962 SCR Supplement (2) 380, with further citator references listed. The matter concerned municipal elections in the Cuttack Municipality and the validity of the electoral rolls prepared under the Orissa Municipalities Act, 1950. The High Court had set aside the elections because the age‑qualification notice had been published later than required, reducing the period for claims and objections from twenty‑one days to two days, thereby violating the statutory procedure. The State argued that the High Court’s decision affected not only Cuttack but also other municipalities, and the Governor consequently promulgated Ordinance 1 of 1959, sections 3, 4 and 5, to validate the Cuttack election and the electoral rolls of other municipalities. The petitioner, identified only as B, challenged the constitutionality of the ordinance, contending that it violated article 14 of the Constitution, failed to cure the defect, and conflicted with article 254 of the Constitution because it was inconsistent with several central statutes in the concurrent list. The High Court agreed with B, holding that the ordinance infringed article 14, did not cure the defect, and was repugnant to article 254(1). The State and the elected councillors appealed the High Court’s findings. B raised two additional submissions: that the appeal was rendered moot because the ordinance had expired, and that the ordinance was invalid because it attempted to set aside the High Court’s judgment. The Supreme Court held that the ordinance was valid, that it successfully cured the defect in the electoral roll and the Cuttack election, and that it did not breach article 14 because its purpose was to preserve the elections in Cuttack and other municipalities where similar challenges might arise, without singling out B for discriminatory treatment. The Court referred to the decision in Shri Ram Krishna Dalmia v. Justice S R Tendolkar and distinguished the earlier case of State of Vermont v. Albert Shedroi. The ordinance, the Court observed, removed the defects identified by the High Court in the electoral rolls, and it was unnecessary to state that the election results were not materially affected.

In this case, the Court observed that the Ordinance removed the defects in the electoral rolls that the High Court had identified in its first judgment. The Court noted that it was unnecessary for the Ordinance to state that the election results were not materially affected. Section 5(1) of the Ordinance, which preserved the actions and powers exercised by the Councillors, the Chairman and the Vice‑Chairman, was held not to be repugnant to any existing law and did not conflict with Article 254(2) of the Constitution. The provision was limited to actions taken under the Orissa Municipalities Act and did not extend to violations of other statutes enacted by the Central Legislature under the concurrent list. The Court further explained that the High Court’s first judgment under Article 226 could not be equated with the article itself, so the Governor did not exceed constitutional limits by nullifying the judgment through the validating Ordinance. The invalidity of the electoral rolls and the elections to the Cuttack Municipality did not revive after the Ordinance expired. The Court stated the general rule for temporary statutes: unless a special provision says otherwise, proceedings initiated under the statute end automatically when the statute ceases to exist. However, if a right created by the statute is of a lasting nature and has already vested in a person, that right cannot be withdrawn merely because the statute has ended. Because the Ordinance’s purpose was to eliminate the invalidity permanently, the rights it created continued even after the Ordinance lapsed. The Court referred to the authorities Krishnan v. State of Madras, Wicks v. Director of Public Prosecutions, Steavenson v. Oliver and Warren v. Windle in support of this view.

The judgment was rendered in the Civil Appellate Jurisdiction concerning Civil Appeals Nos. 525 and 526 of 1960, arising from the order of the Orissa High Court dated 20 March 1959 in O.J.C. No. 12 of 1959. Counsel for the appellant in Appeal 525 and for respondent 1 in Appeal 526 were identified as the representatives for the appellant and the first respondent respectively. Counsel for the appellants in Appeal 526 and respondents numbered 2 to 8, 10, 13 to 16, 19 to 21, 23, 25, 27 and 28 were listed as the representatives for those parties. Counsel for respondent 1 in Appeal 525 and respondent 2 in Appeal 526 were also noted. The judgment was delivered on 22 December 1961 by Justice Gajendragadkar. The two appeals challenged the High Court order under Article 226 which had struck down sections 4 and 5(1) of Orissa Ordinance I of 1959, promulgated by the Governor on 15 January 1959. The order had been made upon the writ petition filed by B. K. Bose against the State of Orissa and the twenty‑seven elected Councillors of the Cuttack Municipality, including the Chairman and the Vice‑Chairman.

In this matter, Appeal 525 was filed by the State of Orissa while Appeal 526 was filed by the twenty‑seven municipal councillors who had been elected to the Cuttack Municipality. Both groups of appellants obtained permission from the Orissa High Court to bring their respective appeals before the Supreme Court. The elections in question had been conducted between December 1957 and March 1958 under the provisions of the Orissa Municipal Act, 1950 (Orissa XXXIII of 1950), hereinafter referred to as the Act. The result of those elections was that the twenty‑seven individuals named in Appeal 526 were declared elected as councillors; among them, Manmohan Mishra was chosen as Chairman and Mahendra Kumar Sahu as Vice‑Chairman. The petitioner, Mr B K Bose, a practising advocate residing within the municipal limits of Cuttack, had stood as a candidate for Ward No 13 but was defeated. Following his defeat, he filed an application before the High Court, recorded as O.J.C. No 72 of 1958, seeking to set aside the election results. In that application he impleaded the State of Orissa and the twenty‑seven elected councillors as respondents. Mr Bose contended that the entire election process for the Cuttack Municipality was invalid and he sought an injunction that would restrain the respondents from functioning as elected councillors, and would prevent the Chairman and Vice‑Chairman from discharging the duties of their offices. The respondents opposed these allegations, asserting that the elections had been conducted in accordance with law and that Mr Bose was not entitled to any relief under Article 226 of the Constitution.

The High Court examined the petitioner's claims and upheld them. It observed that the qualifying date for determining the age qualification of voters under section 13 of the Act had been published by the State Government only on 10 January 1958, although the preliminary electoral rolls had already been made public on 23 December 1957. Consequently, the period allowed for filing claims and objections was limited to twenty‑one days beginning on the qualifying date, i.e., up to 12 January 1958. Because of this late publication, the electors of Cuttack were effectively given merely two days to lodge their claims, a period that fell far short of the twenty‑one days mandated by the relevant election rules. The Court held that this substantial reduction in the time for filing claims materially affected the outcome of the elections, depriving a number of voters of the right to be enrolled. Additionally, the Court found that while a candidate was legally entitled to fifteen clear days for canvassing, the notification issued under the Orissa Municipal Election Rules had reduced this period to fourteen days. The respondents failed to demonstrate that the election results were unaffected by these procedural violations. On the basis of these findings, the High Court set aside the elections in question and granted the injunction sought by the petitioner, ordering that the respondents could not act as elected councillors, Chairman, or Vice‑Chairman. This judgment was pronounced on 11 December 1958.

In this case, the judgment that set aside the election and ordered injunctions in favor of the petitioner was pronounced on December 11, 1958. The State of Orissa argued that the effect of that judgment could not be limited solely to the Cuttack Municipality, because the High Court’s findings suggested that the validity of elections in other municipalities might also be vulnerable to challenge, which would have required the preparation of fresh electoral rolls in accordance with the procedure prescribed by the Act. Consequently, the Governor of Orissa issued the impugned Ordinance on January 15, 1959. The Ordinance broadly validated the election to the Cuttack Municipality, allowing that municipal body to resume functioning, and it also validated the electoral rolls prepared for the other municipalities in the State, thereby protecting elections already held or to be held in those municipalities from any possible legal challenge. When Mr. Bose learned that his success in Writ Petition (O.J.C. No. 72 of 1958) had been rendered ineffective by the Ordinance, he returned to the High Court with a new writ petition. He contended that the material provisions of the Ordinance, namely sections 4 and 5(1), were unconstitutional and he sought appropriate relief on that basis. The High Court again upheld Mr. Bose’s contentions, struck down sections 4 and 5(1) of the Ordinance, and issued injunctions restraining the elected councillors, the Chairman and the Vice‑Chairman from acting in their official capacities. The State of Orissa and the twenty‑seven councillors each obtained a certificate from the High Court and then approached this Court by filing two separate appeals, numbered 525 and 526 of 1960. Before addressing the validity of the challenged provisions of the Ordinance, the Court considered the overall features of the Ordinance. The preamble reveals that the Governor promulgated the Ordinance because he considered it necessary to validate the electoral rolls and the elections to the municipalities. He expressed the view that preparing fresh electoral rolls and conducting fresh elections, which would have been required in the absence of a validating Ordinance, would have involved enormous expenditure and would have created administrative difficulties for the municipalities during the interim period. The Governor also believed that immediate action was required because the Legislature of the State of Orissa was not then in session, and circumstances existed that justified prompt intervention. Exercising the powers conferred on him by Article 213(1) of the Constitution, the Governor therefore promulgated the Ordinance.

The preamble to the Ordinance explains the reason for its promulgation. The Ordinance is divided into five sections. Section 1 confers the short title and specifies the territorial extent of the Ordinance, while Section 2 contains the operative definition. Sections 3, 4 and 5 are reproduced in full as follows: “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 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 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 and exercised by the Council of the said Municipality or its Chairman or Vice‑Chairman, as the case may be.” It is thus apparent that Section 3 seeks to validate the electoral rolls that the High Court had held to be invalid in Writ Petition No. 72 of 1958. Sub‑section (1) of Section 3 addresses the specific irregularities found in the elections conducted for the Cuttack Municipality, whereas Sub‑section (2) deals with defects in the electoral rolls of all municipalities. Section 4 expressly validates the elections to the Cuttack Municipality that the High Court had declared invalid. Section 5(1) aims to protect every action taken and every power exercised by the Councillors, the Chairman and the Vice‑Chairman before the Ordinance became operative, while Section 5(2) validates all actions and powers exercised by the District Magistrate of Cuttack concerning the Municipality, by treating those actions as if they had been performed by the Municipal Council or its Chairman or Vice‑Chairman, as appropriate.

In this case, the Court observed that the Ordinance issued by the Governor relating to the Cuttack Municipality was a validating Ordinance. The purpose of the Ordinance was to validate the elections of the Cuttack Municipality and to render the electoral rolls regular. Otherwise those rolls would have been declared irregular and invalid by the judgment of the High Court. Before the High Court, counsel for Mr Bose raised five separate points. The first point argued that the provisions of the Ordinance were a colourable device intended to set aside the High Court judgment in O.J.C. No. 72 of 1958. It further contended that the Governor was assuming judicial power rather than exercising legitimate legislative authority, a step not authorized by the Constitution. The High Court rejected this argument, and that finding has not been contested before the present Court, relieving the present Court of any duty to revisit the merits of that issue. The second point contended that section 4 of the Ordinance violated the guarantee of equality before law contained in Article 14 of the Constitution. An alternative sub‑argument asserted that even if section 4 did not violate Article 14, it failed to cure the invalidity of the Cuttack Municipal elections. The argument further claimed that the citizens had suffered material prejudice because the period for filing claims, objections, and canvassing had been shortened. The third point questioned the validity of section 5(1) on the ground that it contravened Article 254(1). All three of these contentions were accepted by the High Court, and the correctness of those findings is now before the appeals. The final point raised in support of the petition claimed that a Bill titled “Orissa Municipal Election Validating Bill, 1959”, containing substantially the same provisions as the Ordinance, was introduced in the Orissa Legislative Assembly. The Bill was presented on 23 February 1959 but was defeated, and the High Court held that this defeat did not render the Ordinance invalid. The High Court rejected that contention, and that rejection has not been challenged before the present Court. Consequently, of the five points originally raised before the High Court, three have been re‑argued before this Court. Counsel for Mr Bose, Mr Ranganathan Chetty, additionally raised two further arguments. He submitted that the appeals had become infructuous because the Ordinance in question had ceased to operate on 1 April 1959, and he urged a preliminary objection to the jurisdiction of the appeals. On the merits, he further argued that the Ordinance was invalid because it attempted to nullify the High Court judgment in O.J.C. No. 72 of 1958 delivered under

In this case the Court first examined whether section 4 of the Ordinance violated the equality before law guaranteed by article 14 of the Constitution, as invoked under article 226. The High Court had held the provision unconstitutional because, in its view, the earlier judgment had granted Mr Bose a valuable right to prevent the sitting councillors from continuing in office and to require fresh elections, after which he could again stand as a candidate. The High Court noted that Mr Bose could legitimately ask, “why, when hundreds of successful suitors who have sought the help of that Court for relief under article 226 were allowed to enjoy the fruits of their success, he alone should have been discriminated against by hostile legislation.” The present Court considered that this rhetorical stance was open to criticism, for it conflicted with the High Court’s own finding that the Governor possessed the authority to issue an Ordinance that would invalidate the High Court’s judgment in O.J.C. No. 72 of 1958. One of Mr Bose’s arguments against the Ordinance was that, under the pretext of exercising legislative power, the Governor had in fact exercised judicial power, which was beyond his competence. Because Mr Chetty did not challenge the High Court’s determination on that point, the present Court declined to express an opinion on its merits. However, assuming that the Governor acted within the powers conferred by article 213(1) and that his legislative competence was not in doubt, it becomes difficult to accept that the High Court should have been swayed by Mr Bose’s grievance that he was deprived of the benefits of his earlier successful writ petition. The High Court had indeed been influenced by its conclusion that the Ordinance singled out Mr Bose for discriminatory treatment, thereby allegedly breaching article 14. Yet the present Court identified two clear deficiencies in that conclusion.

When the scheme of the Ordinance is examined, sections 3 and 4 must be read together rather than in isolation. The Ordinance pursued a dual purpose: first, to validate the elections to the Cuttack Municipality that the High Court had declared invalid, and second, to preserve the validity of elections to other municipalities in Orissa that might be challenged on similar grounds. Section 3, through its two sub‑sections, set out these provisions, and section 4 thereafter effected the validation of the Cuttack Municipal elections. Understanding this overall design makes it unreasonable to interpret section 4 independently of section 3. The High Court erred in treating section 4 as an isolated provision that solely targeted Mr Bose and deprived him of the fruits of his earlier success. If sections 3 and 4 are considered together, it becomes evident that the validation measures were not limited to Mr Bose alone; they applied to the Cuttack elections and were also intended to govern any future or pending disputes concerning elections in other municipalities. Consequently, the High Court’s conclusion that the Ordinance discriminated against Mr Bose alone is untenable.

The Court observed that the Ordinance was drafted with a two‑fold purpose, a purpose that was reflected in section 3 and its two sub‑sections (1) and (2). By enacting those two sub‑sections, the Legislature laid down the general framework for the validation of municipal elections. Section 4 then operated within that framework to validate the elections that had been held for the Cuttack Municipality. The Court stressed that, given this obvious scheme, it would be unreasonable to read section 4 in isolation from section 3. The High Court, the Court said, had erred when it considered section 4 alone and concluded that its sole effect was to single out Mr Bose and to deprive him of the benefit he had obtained in the earlier writ petition. When sections 3 and 4 are read together, it becomes clear that the validation provisions were not directed exclusively at Mr Bose. Although the provisions certainly applied to the Cuttack Municipal elections, they were also intended to govern any present or future dispute concerning elections to other municipalities in the State. Accordingly, the Court held that the High Court’s view that the Ordinance’s object was limited only to the validation of the Cuttack Municipal elections was incorrect.

The Court further examined whether the Governor could validly issue an Ordinance under article 213(1) of the Constitution to deal with the Cuttack Municipal elections and held that such power was not per se barred by article 14. The Court explained that article 14 forbids class legislation but permits reasonable classification for legislative purposes, provided two conditions are satisfied: first, the classification must be based on an intelligible differentia that distinguishes the persons or things placed in one group from those left out; second, that differentia must have a rational relation to the object sought to be achieved by the statute. Citing the decision in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1), the Court noted that a law may be constitutional even if it pertains to a single individual, so long as special circumstances applicable to that individual justify treating him as a class of his own. The Court observed that, had the infirmities in the electoral rolls identified in the earlier writ petition been confined only to the Cuttack Municipality, the Governor could have issued an Ordinance limited to that election without violating article 14. However, the Ordinance in question did not limit its operation to the Cuttack Municipality; it also sought to validate elections and electoral rolls of other municipalities. Consequently, the Court concluded that the High Court was wrong to hold that section 4 contravened article 14 of the Constitution.

In the present circumstances, even if the deficiencies in the electoral rolls had applied only to other municipalities in the State of Orissa, the Governor could have issued an ordinance that dealt solely with the Cuttack municipal elections. Similarly, if a law were enacted that addressed only the Cuttack elections because of special circumstances unique to that election, such a law could not have been attacked as violating Article 14. In the same way, if Mr Bose were the sole litigant affected by the High Court’s decision and therefore constituted a class by himself, the legislature could have made a law that applied only to his case. However, the ordinance under consideration does not limit its operation to the Cuttack municipality; it seeks to validate the Cuttack municipal elections as well as the electoral rolls of other municipalities. Consequently, the Court concluded that the High Court was mistaken in holding that section 4 of the ordinance infringed Article 14. The Court noted that similar defects had apparently been found in the electoral rolls of several municipalities, which led the Governor to perceive a problem of public importance affecting all municipal elections in the State. Acting on the reasons set out in the preamble, the Governor therefore promulgated the ordinance to address the broader issue.

When evaluating the challenge to section 4 of the ordinance, the High Court should have examined the entire ordinance before deciding that section 4 was discriminatory and violated Article 14. Counsel for the respondent, Mr Chetty, cited the decision in State of Vermont v. Albert Shedroi. In that case, the statute exempted certain residents—specifically, soldiers who had served in the war to suppress the rebellion in the Southern states and had been honourably discharged—from obtaining a licence to sell goods as peddlers. The court held that the exemption contravened the Fourteenth Amendment’s guarantee of equal protection because the classification had no rational connection to the licence requirement. The Court found that the precedent offered no assistance to Mr Chetty’s reliance on the High Court’s finding, because the classification in the Vermont case was unreasonable and irrational, whereas the present situation involved discovered irregularities in the electoral rolls. The Court observed that, without validation of those irregularities, the public finance and administration of municipalities would have faced serious difficulties, justifying the broader scope of the ordinance.

In the circumstances described, the Court observed that if the identified irregularities in the electoral rolls were not validated, the State would have been compelled to incur substantial expenditure from the public treasury and would have faced administrative difficulties in the municipalities during the interim period. For this reason, the Ordinance had been issued. The Court held that the provisions of the Ordinance under challenge were not based on an unreasonable classification lacking a rational link to the purpose of the Ordinance, and therefore the view of the High Court that section 4 violated Article 14 could not be sustained. The Court also noted that the High Court had previously argued that even assuming section 4 did not infringe Article 14, it would still fail to remedy the invalidity of the Cuttack municipal elections because it did not address the High Court’s finding that the complained‑of irregularities had caused material prejudice to the citizens of Cuttack by shortening the periods for filing claims, objections and for canvassing. The High Court further observed that the validating provision merely cured the defect arising from fixing the qualifying date after the preliminary electoral rolls had been published, and, being silent on whether the election results were materially affected, could not be said to have overturned the judgment in O. J. C. No. 72 of 1958. The same reasoning, the Court explained, applied to the reduction of the canvassing period from fifteen days to fourteen days, which also had a material impact on the election outcome. The High Court had contended that if the Governor intended to negate the effect of the earlier decision, he should have made an express provision to that effect or at least referred to it in section 4, a view the Court found difficult to appreciate. The Court clarified that the Ordinance’s purpose was to validate the electoral rolls and thereby cure the detected infirmities; once that validation occurred, there was no longer any occasion to assert that no prejudice had been caused by those infirmities. In validating the Cuttack municipal elections, the Ordinance was not required to address the reasons or findings articulated in the judgment, which were based on the irregularities in the rolls and the election procedure. By validating those irregularities, the Ordinance inevitably rendered the previously invalid elections valid, eliminating any question of material prejudice. Consequently, the Court found no merit in the alternative argument that section 4 was ineffective even if it did not breach Article 14. The discussion then proceeded to the issue of whether section 5(1) was invalid, a point previously considered by the High Court.

The Court observed that the High Court had held that section 5(1) was intended to protect not only actions taken and powers exercised under the Municipal Act but also every action and power exercised outside that Act even when such conduct violated other statutes. Relying on this expansive interpretation, the High Court concluded that section 5(1) conflicted with section 477A of the Indian Penal Code and therefore struck down section 5(1) on the ground that it was inconsistent with articles 254(2) and 213(1) of the Constitution. The Court stated that this construction was plainly unreasonable. It explained that the purpose of section 5(1) was clear and unambiguous: the provision was meant to preserve actions taken and powers exercised by the Councillors, the Chairman or the Vice‑Chairman when such actions were undertaken in accordance with the Municipal Act. Since the elections to the Cuttack Municipality had been validated, it was necessary to validate the subsequent actions and powers of the appropriate authorities and Councillors that were taken after the elections and before the High Court’s judgment declared them invalid. Considering this straightforward purpose, the Court found it wholly unreasonable to read the wording of section 5(1) so broadly as to render it inconsistent with article 254(2). Although the text of section 5(1) does not explicitly limit itself to actions taken under the Municipal Act, the context clearly indicates that such limitation was intended. The Court further observed that the insertion of the words “under the Municipal Act” might have been unnecessary given the scheme of the ordinance and the circumstances of its enactment. Consequently, the Court held that the High Court was not justified in declaring section 5(1) void to the extent of any alleged repugnancy with laws falling within the Concurrent List. There was no conflict with any existing law, and therefore no breach of article 254(2) of the Constitution.

The Court then addressed the two additional grounds raised by counsel for the appellant. The first ground asserted that the Governor lacked the authority to issue an ordinance that would override the judgment delivered by the High Court under article 226 of the Constitution. The Court rejected this contention as untenable, explaining that it was based on the mistaken premise that a judgment under article 226 possessed the same constitutional status as the provision itself. The Court clarified that, while a judgment under article 226 must be respected, this respect does not preclude the legislature from dealing with problems identified by that judgment when such matters lie within its legislative competence. It would be erroneous to equate the High Court’s judgment under article 226 with article 226 itself and to attribute to the judgment all the attributes of the constitutional provision. The Court emphasized that the legislature remains competent to address issues raised by the judgment, provided the proposed solutions are within its legislative authority.

The Court observed that the legislature was not incompetent to address the problems raised by the High Court judgment, provided that those problems and the solutions proposed lay within the legislature’s existing competence. It was considered erroneous to treat the judgment delivered under Article 226 as if it possessed the same character and authority as the constitutional provision itself, and to grant the judgment all the attributes of Article 226. The principal argument advanced by counsel for the appellant was that, because the Ordinance had ceased to operate on 1 April 1959, the appeals before the Court had become infructuous. Counsel argued that the Ordinance was a temporary statute destined to lapse after the prescribed period, and that once it lapsed the invalidity of the Cuttack Municipal elections, which had been cured by the Ordinance, revived; consequently there was no longer any purpose in challenging the correctness of the High Court’s decision. This point was repeatedly emphasized by counsel in the present appeals. The Court noted that if the true legal position were that the validation of the elections terminated automatically upon the expiry of the Ordinance, then the appellant’s contention that the appeals were infructuous would be correct. However, the Court also stated that it must determine whether that legal position is indeed the correct one. The Court referred to the principle that the effect of repeal provision in section 6 of the General Clauses Act does not apply to a temporary Act. As Justice Patanjali Sastri had observed in S. Krishnan v. State of Madras, the general rule concerning a temporary statute is that, in the absence of a special provision to the contrary, any proceedings initiated under it terminate ipso facto when the statute expires. Consequently, legislatures often incorporate a saving clause in a temporary statute, a clause whose effect resembles that of section 6 of the General Clauses Act. The Court added that the authority responsible for making an Ordinance might be unable to insert such a saving provision because of the limitation imposed by Article 213(2)(a). An illustrative case was cited: Wicks v. Director of Public Prosecutions, where section 11(3) of the Emergency Powers (Defence) Act 1939 expressly provided that the expiry of the Act would not affect its operation with respect to acts previously done or omitted. The appellant in that case was convicted in May 1946 for offences committed in 1943 and 1944, even though both the Act and the relevant regulation had expired on 24 February 1946. The specific saving provision in section 11(3) enabled the House of Lords to hold that the conviction was valid despite the expiry of the statute.

In the earlier case of Wicks, the Court observed that even though Regulation 2A, which authorized the offence, had expired before the appellant’s trial, the conviction was still valid because the specific saving clause contained in section 11(3) of the Emergency Powers (Defence) Act, 1939, did not cease to operate when the rest of the Act expired. That saving provision was intended to preserve the right to prosecute offences committed before the Act’s expiry, and therefore the conviction was upheld despite the expiration of the substantive legislation.

Mr Chetty argued that the Ordinance under consideration lacked any comparable saving provision, and consequently the invalidity of the Cuttack Municipal Elections would be revived automatically once the Ordinance lapsed through the passage of time. He relied upon the general rule articulated by Craies, which states that, unless a temporary Act expressly provides otherwise, all proceedings based on that Act must be completed before the Act expires, and any pending proceedings terminate automatically upon expiration. The Court, however, rejected a rigid application of this principle. It acknowledged that the rule is correct in the sense that offences committed against a temporary statute should ordinarily be prosecuted and punished before the statute’s expiry, and that a prosecution which has not concluded by that date will ordinarily cease. Nevertheless, the Court held that the rule is not inflexible and must be interpreted in light of the nature of the rights or obligations created by the temporary legislation. The effect of expiration depends on whether the rights and liabilities are enduring. As Parker, B. noted in Steavenson v Oliver, a distinction exists between temporary statutes and statutes that have been repealed: the former do not simply vanish upon expiry; rather, the scope and duration of their provisions must be construed. The Court therefore turned to the decision in Steavenson, which involved section 4 of 6 Geo. IV, c. 133, a temporary provision granting surgeons and assistant surgeons the right to practise as apothecaries without the usual examination. Although the statute expired on 1 August 1826, the Court rejected the argument that the right would be lost because the Act contained no saving clause, holding that the right acquired under the temporary provision persisted beyond the statutory expiry.

In this case the Court rejected the argument that a person who had obtained the right to practice as an apothecary without passing the usual examination, by virtue of the temporary statute, would lose that right upon the statute’s expiration. Lord Abinger, C. B., observed that the mere lapse of a parliamentary enactment does not automatically cause the rights acquired under it to disappear. He illustrated this by comparing the situation with a penalty imposed by an act of Parliament, asking whether a person who had been guilty of an offence while the Act was in force would still be liable to pay the penalty after the Act had expired. He concluded that the logic was even stronger for a right created by the Act, noting that the provision of 6 Geo. 4 c. 133 expressly entitled persons holding the relevant warrants to practice as apothecaries and that no additional qualification could be read into the statute to limit that entitlement. Supporting this view, Parker, B., examined whether the limitation clause in the eleventh provision, which stated that the statute’s provisions were to last only for a limited time, applied to the privilege in question. He interpreted the legislature’s intention as granting all assistant‑surgeons who held such warrants before 1 August 1826 the same practising privileges as if they had been exercising those privileges since 1 August 1815, and that those privileges were of an executory nature capable of continuing after the statute’s expiry. The Court further considered a hypothetical penalty imposed by a temporary statute for offences created by that statute. If a person were tried, convicted, and sentenced to imprisonment under the temporary law, the Court held that the expiration of the statute would not render the detention unlawful. Accordingly, the Court found that the answer to the question was negative. It therefore cautioned against adopting any rigid rule when a temporary statute expires. Where the right created by such a statute is enduring and has vested in an individual, that right cannot be taken away merely because the authorising statute has ceased to exist. Likewise, any penalty that has been lawfully imposed under the temporary statute survives its expiry. This, the Court concluded, represents the correct legal position on the matter.

In this case, the Court referred to an earlier observation that "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 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." The Court explained that when a temporary statute repeals an earlier statute, the purpose and intention of the temporary statute must be examined, and no rigid rule can be prescribed regarding the effect of such a repeal. The Court further cited the succinct statement of Lord Ellenborough, C. J., in Warren v. Windle, in which it was observed that "a law though temporary in some of its provisions, may have a permanent operation in other respects. The statute, 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." This passage illustrates that a repeal effected by a temporary measure may be intended to be permanent and may continue to operate even after the temporary measure has ceased to have effect. The Court emphasized that this analogy serves to demonstrate that no inflexible rule can be laid down concerning the consequences of the expiry of a temporary enactment. Turning to the facts before the Court, the present Ordinance was enacted to validate the elections to the Cuttack Municipality, elections that had earlier been declared invalid by the High Court. The Ordinance sought to make those elections valid as a matter of law. The Court considered whether the validation created by the Ordinance was intended to be merely temporary, lasting only for the duration of the Ordinance, and thus to cease when the Ordinance expired. After examining the purpose of the Ordinance and the rights that it created, the Court found it difficult to accept the proposition that the validity of the elections would terminate automatically upon the Ordinance’s expiry, reviving the earlier invalidity. The rights conferred by the Ordinance, the Court observed, closely resemble the rights considered in the case of Steavenson, and therefore should endure beyond the life of the Ordinance. The Ordinance expressly provides that the Court order declaring the elections to be invalid shall be deemed to have never had legal effect and that the elections are thereby validated. Consequently, the Court held that the elections must be treated as having been validly held under the relevant Act, and that their validity is not dependent on the continued existence of the Ordinance.

The Court observed that the municipality elected under the Act would continue to exist and operate in accordance with the relevant provisions of that Act, and that its existence would not terminate merely because the temporary ordinance had ceased to operate. In view of this principle, the Court found that the preliminary objection raised by counsel for the respondent, which challenged the jurisdiction of the appellate courts to entertain the appeals, could not be sustained. The Court therefore concluded that the appeals were properly before it and that it was competent to decide the matters raised. Accordingly, the Court allowed the appeals, set aside the order previously passed by the High Court, and dismissed the writ petition filed by Mr. Bose. In addition, the Court ordered that the costs of the proceedings be awarded throughout to the respondents. Thus, the appeals were allowed and the writ petition was dismissed with costs.