Basanta Kumar Misra vs State of Orissa and Others

R.N. Misra, J.—A writ application was filed before this Court being O. J. C. No. 898 of 1976 by the present Petitioner challenging the election held to the Committee of Management of the Orissa State Co-operative Marketing Federation Limited as invalid on the ground that the election had been held in contravention of the Proviso to Section 28A(4) of the Orissa Co-operative Societies Act of 1962. A proviso to the following effect was inserted in the Act by Orissa Act 26 of 1976:

Provided that in no case, the period intervening between the date of such publication and the date of the election meeting so fixed shall be less than two months.

A Division Bench allowed the writ application by judgment dated 23-12-1976 and held:

A bare perusal of the proviso leaves no doubt in our mind that the legislature has given a mandate that the intervening gap between the publication of the notice and holding of election is to be two months in the minimum. It is not disputed that when the election programme was settled as per Annexure-I, the amended proviso had come into force. In that view of the matter we have no option but to hold that the election held in contravention of the mandate contained in the proviso is vitiated.

We accordingly quash the election and direct opposite party No. 3 (Election Officer) to take fresh steps in accordance with law to hold the election.

The Orissa Ordinance No. 3 of 1977 was promulgated by the Governor on 26th of April, 1977, which provided:

... Whereas the Governor of Orissa is satisfied that circumstances exist which render it necessary for him to take immediate action to validate the elections to the Managing Committees of certain Co-operative Societies in the State in the manner hereinafter appearing; Now, therefore, in exercise of the powers conferred by Clause (1) of Article 213 of the Constitution of India, the Governor of Orissa is pleased to make and promulgate the following Ordinance in the Twenty-eight year of the Republic of India:

(1) This Ordinance may be called the Orissa Co-operative Societies (Elections to Managing Committees) Validation Ordinance. 1977.

(2) It shall come into force atonce.

Notwithstanding anything contained in the Orissa Co-operative Societies Act, 1962 or in any judgment, decree or order of any Court, no election to the Managing Committee of a Co-operative Society held after the 11th day of May, 1976 and prior to the date of commencement of this Ordinance shall be deemed to be invalid or ever to have become invalid merely on the ground that the date of the meeting for such election was fixed in contravention of the proviso to Clause (a) of Sub-section (4) of Section 28-A of the said Act as amended by the Orissa Co-operative Societies (Amendment) Act, 1976 nor any such election shall be questioned in any Court merely on that ground.

This writ application challenges the vires of the Ordinance on the ground that without amending the Statute on the basis of which the judgment had been rendered by this Court, it was not open to the Governor in exercise of his legislative powers to override the judgment of this Court and thereby encroach upon the jurisdiction of the Judiciary.

Two counter affidavits have been filed - one by Opposite parties 1, 2 and 4 and the other by opposite party No. 3. It has been contended therein that the Ordinance is valid and not open to attack.

The Proviso extracted already, as found by this Court on the earlier occasion, holds out a mandate to the statutory authorities that in no case the period between the date of publication and the date of the election meeting shall have less than two months gap. The Ordinance does not purport to delete or amend the Proviso so as to completely do away with or modify the requirement of the intervening gap of two months between the two specified events. A Bench of this Court in the case of Biswanath Bhukta Vs. Executive Officer, Talcher Municipality and Others, had occasion to deal with an Orissa Ordnance validating the actions of the Talcher Municipal Council and its Chairman following a decision of this Court that the Municipality had not been properly constituted. After referring to several decisions of the Supreme Court, this Court held:

The settled legal position therefore, is that a judgment of a competent Court cannot be reversed as such by legislative process, but the legislature is competent to change the law retrospectively by weeding out the defect or changing the law so as to remove the basis of the judgment and thereby rendering the judgment ineffective.

The Division Bench of this Court had relied upon certain decisions of the Supreme Court and we may now refer to some more authorities in support of the view taken in the reported decision. In the case of Mahal Chand Bethia v. State of West Bengal (1969) II C.W.R 500, it was pointed out:

... A Court of law can pronounce upon the validity of any law and declare the same to be null and void if it was beyond the legislative competence of the legislature or if it infringed the rights enshrined in Part III of the Constitution. Needless to add it can strike down or declare invalid any Act or direction of a State Government which is not authorised by law. The position of a Legislature is however different. It cannot declare any decision of a Court of law to be void or of no effect. It can however pass an Amending Act to remedy the defects pointed out by a Court of law or on coming to know of it aliunde. An Amending Act simpliciter will cure the defect in the statute only prospectively. But as a legislature has the competence to pass a measure with retrospective effect it can pass an Amending Act to have effect from a date which is past. Usually Legislatures pass Acts styled Amending and Validating Act, the object being not only to amend the law from a past date but to protect and validate actions already taken which would otherwise be invalid as done without legislative sanction. ....

In the case of Hari Singh and Others Vs. The Military Estate Officer and Another, , a Bench of seven Judges held:

... The answer is for the reasons indicated above that the legislature was competent to enact this legislation in 1958 and the legislature by the 1971 Act has given the legislation full retrospective operation. The legislature has power to validate actions under an earlier Act by removing the infirmities of the earlier Act. The 1971 Act has achieved that object of validation.

( Italics is ours)

A Constitution Bench of the Supreme Court in the case of I. N. Saksana etc. v. State of Madhya Pradesh A.I.R 1976 S.C 2250 was called upon to examine the vires of a Validating Act. Dealing with the distinction between a legislative and a judicial act, the Court observed:

The distinction between a legislative act and a judicial act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the Court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other land, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the Court to give effect to that law.

The Court proceeded to say:

While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or over-ride a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based. As pointed out by Ray, C. J. in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Another, , the rendering ineffective of judgments or orders of competent Courts and tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power.

In the case of Misrilal Jain and Another Vs. State of Orissa and Another, , the present learned Chief Justice spoke for the Court thus:

As regards the alleged encroachment by the legislature on fields judicial, the argument overlooks that the Act of 1968 does not, like the Act under consideration in Jawaharmal Vs. State of Rajasthan and Others, declare that an invalid Act shall be deemed to be valid. It cures the constitutional vice from Which the Act of 1959 suffered by obtaining the requisite sanction of the President and thus armed, it imposes a new tax, though with retrospective effect. Imposition of taxes or validation of action taken under void laws is not the function of the judIciary and, therftore, by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary. Courts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjuring up trespasses for invalidating laws. There is a large volume of authority showing that if the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirements, the legislature has the competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary. The validity of a validating taxing Law depends upon whether the legislature possesses the competence over the subject-matter of the law, whether in making the validation it has removed the defect from which the earlier enactment suffered and whether it has made due and adequate provision in the validating law for a valid imposition of the tax....

A 7-Judge Bench of the Supreme Court in the case of Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others, , while examining the vires of the Life Insurance Corporation (Modification of Settlement) Act (72 of 1976), in paragraph 26 of the judgment laid down the same tests and with reference to an earlier decision of the Court observed:

... It will be seen that by Section 3 of the impugned Act the Legislature retrospectively imposed tax on building or land on the basis of capital value and if the tax was already imposed, levied and collected on that basis, made .the imposition, levy, collection and recovery of the tax valid, notwithstanding the declaration by the Court that as rate, the levy was incompetent. This was clearly permissible to the Legislature because in doing so, the Legislature did not seek to reverse the decision of this Court on the interpretation of the word rate, but retrospectively amended the law by providing for imposition of tax on land or building on the basis of capital value and validated the imposition, levy, collection and recovery of tax on that basis the decision of this Court holding the levy of tax to be incompetent on the basis of the unamended law therefore, became irrelevant and could not stand in the way of the tax being assessed, collected and recovered on the basis of capital value under the law as retrospectively amended. That is why this Court held that the Validation Act was effective to validate imposition, levy, collection and recovery of tax on land or building on the basis of capital value....

On the authorities indicated above, there is hardly scope to find support for the contention of the opposite parties that the Ordinance in the instant case is a valid one. Learned Additional Government Advocate, however, relies upon the decision of the Constitution Bench in the case of State of Orissa Vs. Bhupendra Kumar Bose, . In that case A Bench of this Court had struck down the election to Cuttack Municipal Council on the ground that the minimum time-gap as provided by Statute had not been allowed preceding the actual poll. By Ordinance, the judgment of the Court was overruled. In paragraph 7 of the Supreme Court judgment the entire text of the Ordinance was quoted from where it would be clear that the several defective steps taken in the matter of holding of the election were specifically validated. The vires of the Ordinance was assailed before this Court and as appears from paragraph 9 of the judgment of the Supreme Court five contentions had been advanced, namely (the Supreme Court notices),

Before the High Court, on behalf of Mr. Bose five points were raised. It was argued that the provisions of the Ordinance were a mere colourable device to set aside the judgment of the High Court In O. J. C. No. 72 of 1958. It was, in fact, and in substance, not any exercise of legislative power by the Governor but assumption by him of judicial power which is not warranted by the Constitution. The High Court has rejected this contention and the finding of the High Court on this point'' has not been challenged before us. So we are relieved of the task of considering the merits of this finding.

Undoubtedly the Supreme Court found that the Ordinance was valid. The question as to whether by promulgating the Ordinance, the Government had encroached upon the powers of the judiciary was not pointedly examined and there is force in the contention of Mr. Patnaik for the Petitioner that in view of what had been observed in paragraph 9 of the judgment, the question did not fall for consideration directly.

Learned Additional Government Advocate has also relied upon another Constitution Bench decision of the Supreme Court in the case of Udai Ram Sharma and Ors. v. The Union of India and Ors. AIR 1968 S.C. 1138. Defects pointed out in the Land Acquisition Act were remedied by a Validating Statute which, however, was not made retrospective in operation. In that background, the Court was called upon to decide whether the action under unamended Section 4 could be taken as valid. The majority opinion was delivered by Mitter, J, who spoke on behalf of Wanchoo C.J., Bachawat, J and himself. The minority opinion was expressed by Shelat, J. on behalf of himself and Vaidialingam, J. The majority opinion does support the learned Additional Government Advocate''s contention. But in view of what has been observed in a series of decisions and by larger Benches of the Supreme Court as indicated above, we do not agree with learned - Additional Government Advocate that it is open to either the Legislature or the Governor exercising the legislative powers under Article 213 of the Constitution to overrule decisions of Courts and render judgments duly pronounced invalid without removing the defects on the basis whereof the judgment had been rendered.

On the application of the test indicated above, the instant action certainly does impinge upon the judicial power of Courts when leaving the law on the basis of which the judgment had been rendered in tact, the Ordinance has proceeded to over-rule the decision. The action of the Governor in promulgating the Ordinance is, therefore, in excess of jurisdiction vested in him and the same has, therefore, to be declared ultra vires. We accordingly hold that the Ordinance is invalid and is not operative. A writ shall, therefore, issue declaring the Ordinance to be invalid and a mandamus be issued to the State not to give effect to it. The writ application is allowed with costs. Hearing fee is assessed at Rs. 250/-.

B.K. Ray, J.

I agree.

I Application allowed.