Judgment

VENKATARAMA AYYAR, J. : On 28-2-1934, the appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha. On 17-7-1920, the appellant had excommunicated two persons, Tahidbhai and Hasan Ali, and the validity of the order was questioned in a suit instituted in the Court of the Sub-ordinate Judge, Barhampur. The litigation went up to the Privy Council, which held that the appellant as the religious head had the power to excommunicate a member of the community, but that that power could only be exercised after observing the requisite formalities, and as in that case that had not been done, the order of excommunication was invalid. Vide Hasan Ali v. Mansoor Ali AIR 1948 PC 66 (A).

2. Apprehending that the order dated 28-2-1934, was open to challenge under the decision in Hasan Ali v. Mansoor Ali (A) (supra) on the ground that it had not complied with the requisite formalities the appellant started fresh proceedings, and on 28-4-1948, passed another order of excommunication. Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated 28-2-1934, and 28-4-1948, were invalid and for other consequential reliefs.

3. While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949) prohibiting excommunication, and that came into force on 1-11-1949. The plaintiff contended that the effect of this legislation was to render the orders of excommunication illegal. The answer of the appellant to this contention was, firstly, that the Act had no retrospective operation, and that, in consequence, the orders passed on 28-2-1934. and 28-4-1948, were valid, and remained unaffected by it; and secondly, that the Act was itself unconstitutional, because the subject-matter of the impugned legislation was not covered by any of the entries in List 2 or 3 of Seventh Schedule to the Government of India Act, 1935, and the Legislature of the Province of Bombay had no competence to enact the law. After the coming into force of the Constitution, the contention was also raised that the right of the defendant to excommunicate members of the community was protected by Arts. 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.

4. The issues in the action were then settled, and issue No. 19, which was raised with reference to the contentions, was as follows :

"Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provisions of the Bombay Prevention of Excommunication Act of 1949?" This was tried as a preliminary issue, and as it raised the question of the vires of a statute, the State of Bombay was impleaded as the second defendant in the suit. Shah J., who tried this issue, held that the impugned Act was retrospective in its operation, that it was within the competence of the Provincial Legislature, and further that it did not offend Arts. 25 and 26 of the Constitution.

5. Against this finding, the present appellant preferred an appeal to a Bench of the Bombay High Court, and that was heard by Chagla, C. J., and Bhagwati, J., who held that under the Act, excommunication meant the condition of being expelled, that it was a continuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation. They further held that the Act was within the competence of the Legislature, and they also repelled the contention that it infringed the rights guaranteed under Arts. 25 and 26 of the Constitution. In the result, they concurred in the decision of Shah, J., and dismissed the appeal but granted a certificate to appeal to this Court under Arts. 132 and 133 of the Constitution. Hence this appeal.

6. Pending the appeal, the plaintiff died on 11-3-1953. and his daughter appli