State of Orissa v. Bhupendra Kumar Bose
Supreme Court of India, 22 December 1961, 5 judges, 1962 AIR 945, 1962 SCR Supl. (2) 380
The Court upheld an Orissa Ordinance validating municipal electoral rolls and the Cuttack municipal elections, holding it did not violate Articles 14 or 254, and that the validation endured after the Ordinance lapsed.
Facts
Elections to the Cuttack Municipality were held between December 1957 and March 1958. B. K. Bose, a defeated candidate, challenged them under Article 226. On December 11, 1958 the Orissa High Court set the elections aside, finding that the late fixing of the qualifying date had cut the period for claims and objections to the electoral rolls from 21 days to two, and that the canvassing period had been shortened. Since similar defects could affect other municipalities, the Governor promulgated Orissa Ordinance I of 1959 under Article 213, validating the electoral rolls of all municipalities, validating the Cuttack elections, and saving acts of the councillors. On a fresh petition by Bose, the High Court struck down sections 4 and 5(1) of the Ordinance. The State and the 27 councillors appealed on certificate. The Ordinance lapsed on April 1, 1959.
Questions before the Court
- Did section 4 of the Ordinance, validating the Cuttack elections, violate Article 14 by singling out the writ petitioner?
- Did the Ordinance cure the invalidity found by the High Court, and was section 5(1) void for repugnancy under Article 254?
- Could the Governor by Ordinance nullify the effect of a High Court judgment under Article 226?
- Did the invalidity of the elections revive when the Ordinance lapsed, making the appeals infructuous?
What the Court held
- Sections 3 and 4 must be read together; the Ordinance also saved elections in other municipalities, so Bose was not singled out. Even a law for a single case can be a valid classification, and the classification here had a rational connection with avoiding expense and administrative problems. Section 4 did not violate Article 14.
- Once the electoral rolls were validated, the elections had to be deemed valid and no question of material prejudice remained; the Ordinance need not deal with each finding of the judgment.
- Section 5(1), read in context, saved only actions under the Municipal Act, so there was no repugnancy to existing law and no breach of Article 254(2).
- A High Court judgment under Article 226 cannot be equated with Article 226 itself; the legislature may deal with problems raised by the judgment if within its competence.
- The effect of a temporary statute's expiry depends on the nature of the rights it creates; enduring vested rights survive. The validation was not intended to be temporary and survived the Ordinance's lapse. The appeals were allowed and the writ petition dismissed.
Why it matters
The judgment holds that there is no inflexible rule that everything done under a temporary statute or Ordinance falls when it expires: rights of an enduring character created by it, such as a validation of elections, survive. It also holds that a High Court judgment under Article 226 does not share the status of Article 226 itself, so a validating Ordinance may cure the irregularities on which the judgment rested, and that the Ordinance did not single out the writ petitioner under Article 14.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute.”
“In our opinion, having regard to the object of the ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance.”
“It is true that the judgment delivered by the High Court under Art.226 must be respected but that is not to say that the Legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of the High Court under Art. 226 with Art 226 itself and confer upon it all the attributes of the said constitutional provision.”
“What the Ordinance has purported to do is to validate the electoral rolls and thereby cure the infirmities detected in them. Once that is done, there is hardly any occasion to say further that no prejudice shall be deemed to have been caused by the said infirmities of the electoral rolls.”
Provisions interpreted
- Article 213, Constitution
- Article 14, Constitution
- Article 254, Constitution
- Article 226, Constitution
- Sections 3, 4 and 5, Orissa Ordinance I of 1959
Related judgments
Case and bench
- Parties
- State of Orissa v. Bhupendra Kumar Bose
- Case
- Civil Appeals Nos. 525 and 526 of 1960
- Decided
- 22 December 1961
- Bench
- Gajendragadkar, P.B., Sarkar, A.K., Wanchoo, K.N., Gupta, K.C. Das, Ayyangar, N. Rajagopala
- Opinions
- Unanimous. The judgment of the Court was delivered by Gajendragadkar, J.
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