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SUPREME COURT OF INDIA
22nd December, 1961
P.B. GAJENDRAGADKAR, A.K. SARKAR, K.N. WANCHOO, K.C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR, JJ.
1. The State of Orissa (In C.A. No. 525 of 60) and
2. Manmohan Mishra and others (In C. A. No. 526 of 60), Appellants
Versus
1. Bhupendra Kumar Bose and others (In C.A. No. 525 of 60) and
2. The State of Orissa and others (In C.A. No. 526 of 60), Respondents.
Civil Appeals Nos. 525 and 526 of 1960.
Advocates appeared
Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s. B. R. L. Iyengar and T. M. Sen, Advocates, with him), for Appellant (In C. A. No, 525 of 60) and Respondent No. 1 (In C.A. No. 526 of 1960); Mr. B. P Maheshwari, Advocate, for Appellants (In C. A. No. 526 of 60) and Respondents Nos. 2 to 8, 10, 13 to 16, 19 to 21, 23, 25, 27 and 28 (In C. A. No. 525 of 60); Mr. A. Ranganadham Chetty, Senior Advocate (M/s. A. V. Rangam and S. Mishra, Miss A. Vedavalli and Mr. R. Patnaik, Advocates, with him), for Respondent No. 1 (In C. A. No. 525 of 60) and 2 (In C. A. No. 526 of 60).
ELECTION - VALIDATION OF ELECTORAL ROLLS AND ELECTIONS TO MUNICIPALITIES - VALIDATING ORDINANCE - WHETHER VALID - WHETHER CONTRAVENES EQUALITY BEFORE LAW - WHETHER CURABLE - WHETHER VALIDATES ALL ACTIONS TAKEN AND POWERS EXERCISED BY MUNICIPAL COUNCILLORS, CHAIRMAN OR VICE-CHAIRMAN - WHETHER INVALID - WHETHER ORDINANCE CAN INVALIDATE JUDGMENT OF HIGH COURT - WHETHER APPEALS HAVE BECOME INFRUCTUOUS - CONSTITUTION OF INDIA, ARTS. 14, 213(1), 226, 254(1) - ORISSA MUNICIPAL ACT (XXXIII OF 1950), SS. 13, 477A - ORISSA MUNICIPAL ELECTION VALIDATING BILL, 1959.
Fact of the Case:
The Governor of Orissa promulgated the impugned Ordinance on January 15, 1959, to validate electoral rolls and elections to Municipalities. The Ordinance was challenged on the grounds that it was unconstitutional and violated the equality before law guaranteed by Art. 14 of the Constitution.
Finding of the Court:
The Court held that the Ordinance was not unconstitutional and did not violate Art. 14 of the Constitution. It further held that the Ordinance was valid and could validate the electoral rolls and elections to the Municipalities. The Court also held that the Ordinance could not invalidate the judgment of the High Court and that the appeals were not infructuous.
Issues: 1. Whether the Ordinance was unconstitutional and violated Art. 14 of the Constitution? 2. Whether the Ordinance was valid and could validate the electoral rolls and elections to the Municipalities? 3. Whether the Ordinance could invalidate the judgment of the High Court? 4. Whether the appeals were infructuous?
Ratio Decidendi: 1. The Court held that the Ordinance was not unconstitutional and did not violate Art. 14 of the Constitution because it did not single out any particular individual or group for discriminatory treatment. The Ordinance was intended to validate the electoral rolls and elections to the Municipalities in order to avoid huge expenditure and problems regarding the administration of such Municipalities during the intervening period. 2. The Court held that the Ordinance was valid and could validate the electoral rolls and elections to the Municipalities because the Governor had the power to issue an Ordinance under Art. 213(1) of the Constitution. The Ordinance was also not inconsistent with any existing laws and so, there was no contravention of Art. 254(2) of the Constitution. 3. The Court held that the Ordinance could not invalidate the judgment of the High Court because the Governor did not have the power to over-ride the judgment of the High Court delivered under Art. 226 of the Constitution. 4. The Court held that the appeals were not infructuous because the validation of the elections effected by the Ordinance did not come to an end after the expiration of the Ordinance.
Final Decision: The appeals were allowed, the Order passed by the High Court was set aside, and the writ Petition filed by Mr. Bose was dismissed with costs throughout.
Judgment
GAJENDRAGADKAR, J. : These two appeals are directed against the order passed by the High Court of Orissa under Art. 226 of the Constitution striking down as unconstitutional Ss. 4 and 5(1) of Orissa Ordinance I of 1959 promulgated by the Governor of Orissa on January 15, 1959. This Order was passed on the Writ Petition filed by Mr. B. K. Bose against the State of Orissa and 27 persons who were elected Councillors of the Cuttack Municipality including the Chairman and the Vice Chairman respectively. Appeal No. 525 has been filed, by the State of Orissa whereas Appeal No. 526 is filed by the said Municipal Councillors. The appellants in both the appeals obtained leave from the Orissa High Court to appeal to this Court.
2. It appears that during December, 1957 to March, 1958, elections were held for the Cuttack Municipality under the provisions of the Orissa Municipal Act, 1950 (XXXIII of 1950) (hereinafter called the Act) and the 27 appellants in Appeal No. 526 of 1960 were declared elected as Councillors. From amongst them Manmohan Mishra was elected the Chairman and Mahendra Kumar Sahu the Vice-Chairman Mr. B. K. Bose, who is an Advocate practising in Cuttack and a resident with in the municipal limits of Cuttack, had 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 (O. J. C. No. 72 of 1958) 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 alleged 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.
3. 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 the 10th January, 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 the 12th of January, 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 were, 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 abridgement 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 15 clear days for the purpose of canvassing, the notification issued under the Orissa Municipal Election Rules curtailed this period to 14 days. According to the High Court, the respondents to the petition had failed to show that the results of the elections had not and could not have been affected by the 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.
4. It appears that the State of Orissa took the view that the effect of the said judgment could not be confined only to Cuttack Municipality. As a result of the findings made by the High Court during the course of the said judgment the validity of elections to other Municipalities might also be exposed to the risk of challenge and that would have necessitated
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