civil appellate jurisdiction civil appeals
number. 525 and 526 of 1960.
appeals from the judgment and order dated
march 20 1959 of the orissa high companyrt in o.j.c. number 12 of 1959.

viswanatha sastri b.r.l. iyengar and t.

sen for the appellant  in c.a. number 525/60  and
respodent number 1  in c.a. number 526 of 1960.  p. maheshwari for the appellants  in c.a. number 526/60  and respondents number. 2 to 8 10 13 to
16 19-21 23 25 27 and 28  in c.a. number
525/60 . ranganadham chetty. a. v. rangam s.
mishra a. vedavalli and r. patnaik for
respondent number 1  in c.a. number 525/60  and 2  in

a. number 526 of 60 . 1961. december 22. the judgment of the companyrt
was delivered by
gajendragadkar j.-these two appeals are
directed against the order passed by the high
court of orissa under art. 226 of the companystitution
striking down as unconstitutional sections 4 and 5
 1  of orissa ordinance i of 1959 promulgated by
the governumber of orissa on january 15 1959. this
order was passed on the writ petition filed by mr.

k. bose against the state of orissa and 27
persons who were elected companyncillors of the
cuttack municipality including the chairman and
the vice-chairman respectively. appeal number 525 has
been filed by the state of orissa whereas appeal
number 526 is filed by the said municipal
councillors. the appellants in both the appeals
obtained leave from the orissa high companyrt to
appeal to this companyrt. 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 orissa  xxxiii of 1950
 hereinafter called the act  and the 27 appellants
in appeal number 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
within the municipal limits of cuttack
had companytested the said elections as a candidate
from ward number13. he was however defeated. thereupon he presented an application to the high
court  o.j.c. number 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 companyncillors 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 number entitled to any relief under. art. 226.
the high companyrt upheld the companytentions raised
by the petitioner. it came to the companyclusion 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 january 10 1958 though the
preliminary electoral rolls had already been
published on december 23 1957. in companysequence
the claims and objections had been invited for a
period of 21 days from the said date to january
12 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 companyrt also came
to the companyclusion that this drastic abridgment 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 companyrt also found that
whereas a candidate was entitled to 15 clear days
for the purpose of canvassing the numberification
issued under the orissa municipal election rules
curtailed this period to
14 days. according to the high companyrt the
respondents to the petition had failed to show
that the results of the elections had number and
could number have been affected by the companytravention
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 pronumbernced on
december 11 1958.
it appears that the state of orissa took the
view that the effect of the said judgment companyld
number be companyfined only to cuttack municipality. as a
result of the findings made by the high companyrt
during the companyrse 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 the preparation of
fresh electoral rolls after following the
procedure prescribed in that behalf by the act. that is why the governumber of orissa promulgated the
impugned ordinance on january 15 1959. broadly
stated the effect of the ordinance was that the
elections to the cuttack municipality stood
validated and the said municipality began to
function once again. it also validated the
electoral rolls prepared in respect of the other
municipalities in the state of orissa and thus
sought to save elections held or to be held in
respect of the said municipalities from any
possible challenge. when mr. bose found that his success in the
writ petition  o.j.c. number 72 of 1958  had thus
been rendered illusory by the ordinance he moved
the high companyrt again by the present writ petition. he companytended that the material provisions of the
ordinance viz. ss. 4 and 5 1  were
unconstitutional and he asked for an appropriate
relief on that basis. the high companyrt has again
upheld the companytentions raised by mr. bose and has
struck down ss.4 and 5 1  of the ordinance and
issued appropriate orders of injunction
restraining the elected companyncillors and
the chairman and vice-chairman from functioning as
such. the state of orissa and the 27 companyncillors
by separate applications obtained a certificate
from the high companyrt and have companye to this companyrt by
their two separate appeals number. 525 and 526 of
1960
before dealing with the validity of the
impugned provisions of the ordinance it is
necessary to companysider the broad features of the
ordinance itself. as the preamble to the ordinance
shows the governumber of orissa promulgated it
because he thought it necessary to provide for the
validation of electoral rolls and elections to
municipalities. in his opinion the preparation of
fresh electoral rolls and the holding of fresh
elections which would have become necessary unless
a validating ordinance had been passed would have
entailed huge expenditure and would have given
rise to problems regarding the administration of
such municipalities during the intervening period. he also thought that it was necessary to take
immediate steps to provide for the validation of
the electoral rolls and the elections since the
legislature of the state of orissa was number then in
session and the governumber thought circumstances
existed which rendered it necessary to take
immediate action. in exercise of the powers
conferred on him by art. 213 1  of the
constitution he was therefore pleased to
promulgate the ordinance. that according to the
statement made in the preamble to the ordinance
explains the genesis of its promulgation. the ordinance companysists of five sections. section 1 gives its short title and extent while
s.2 is the defining section. sections 3 4 and 5
read thus-
3.  1  numberwithstanding the order of any
court to the companytrary 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 companye in force on the
date of publication and shall companytinue
to be in force until they are revised in
accordance with the rules made in this
behalf under the act. the validity of the electoral rolls
shall number be called in question in any companyrt
on the ground that the date on which a person
has to be number less than 21 years of age was
fixed under section 13 of the act after the
publication of the preliminary electoral
rolls. any order of a companyrt 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
number fixed in accordance with the act or the
rules made thereunder shall be deemed to be
and always to have been of numberlegal effect
whatsoever and the elections to the said
municipality are hereby validated. 5.  1  all actions taken and powers
exercised by the companyncillors chairman or
vice-chairman of the cuttack municipality
prior to the companying into force of this
ordinance shall be deemed to have been
validly taken and exercised. 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 number 8263 l.s.g. dated the 13th
december 1958 shall be deemed to have been
taken
and exercised by the companyncil of the said
municipality or its chairman or vice-
chairman as the case may be. it will thus be seen that s. 3 purports to
validate the electoral rolls which had been held
to be invalid by the high companyrt in writ petition
number 72 of 1958. sub-section  1  of s. 3 deals
specifically with the infirmities found in the
elections held for the cuttack municipality
whereas sub-s.  2  deals with the defects in the
electoral rolls in respect of all the
municipalities. section 4 validates in
particular the elections to the cuttack
municipality which had been held to be invalid by
the high companyrt. section 5 1  purports to protect
all actions taken and powers exercised by the
councillors the chairman and the vice-chairman
prior to the companying into force of the ordinance
while s. 5 2  validates all actions taken and
powers exercised by the district magistrate of
cuttack in respect of the cuttack municipality in
pursuance of the order there specified. in other
words the ordinance is a validating ordinance. it
purports to validate the elections of the cuttack
municipality in particular and to make valid and
regular the electoral rolls which would otherwise
have been held to be irregular and invalid in
accordance with the judgment of the high companyrt. before the high companyrt on behalf of mr. bose
five points were raised. it was argued that the
provisions of the ordinance were a mere companyourable
device to set aside the judgment of the high companyrt
in o.j.c. number 72 of 1958. it was in fact and in
substance number any exercise of legislative power
by the governumber but assumption by him of judicial
power which is number warranted by the companystitution. the high companyrt has rejected this companytention and
the finding of the high companyrt on this point has
number been challenged before us. so we are relieved
of the task of companysidering the merits of this
finding. it was then companytended that s. 4 of the
ordinance companytravenes the equality before law
guaranteed by art. 14 of the companystitution. it was
also urged alternatively that even if s. 4 did number
contravene art. 14 it did number successfully cure
the invalidity of the elections to the cuttack
municipality arising out of the fact that material
prejudice had been caused to the citizens by the
abridgement of the period for filing claims and
objections and of the period for canvassing. in
regard to s. 5 1  the argument was that it was
invalid under art. 254 1 . all these three
contentions have been accepted by the high companyrt
and the companyrectness of the findings recorded by
the high companyrt in that behalf fall to be
considered in the present appeals. the last
contention raised in support of the petition was
that on february 23 1959 a bill entitled orissa
municipal election validating bill 1959 which
contained substantially similar provisions as
those of the ordinance was sought to be
introduced in the orissa legislative assembly but
was defeated by a majority of votes and that made
the ordinance invalid. this companytention has been
rejected by the high companyrt and the finding of the
high companyrt on this point has number been challenged
before us. thus out of the 5 points raised before
the high companyrt 3 have been argued before us. for
mr. bose mr. ranganathan chetty has also urged
two additional points. he has companytended that the
present appeals have really become infructuous in
view of the fact that the impugned ordinance
lapsed on april 1 1959. this argument has been
strenuously pressed before us in the form of a
preliminary objection against the companypetence of
the appeals themselves. on the merits mr. chetty
has urged an additional ground that the ordinance
was invalid inasmuch as it purported to invalidate
the judgment of the high companyrt in o.j.c. number 72 of
1958 delivered under art. 226 of the companystitution. let us first companysider whether s. 4 offends
the equality before law guaranteed by art. 14. in
coming to the companyclusion that the said section is
unconstitutional on the ground that it companytravenes
art. 14. the high companyrt was very much impressed by
the fact that as a result of its earlier judgment
mr. bose had obtained a very valuable right of
preventing the existing companyncillors from
functioning as such and of having fresh elections
conducted according to law in which he would have
the right to stand as a candidate once again. the
petitioner mr. bose may legitimately ask
observed the high companyrt why when hundreds of
successful suitors who have sought the help of
that companyrt for relief under art. 226 were allowed
to enjoy the fruits of their success he alone
should have been discriminated against by hostile
legislation. with respect this rhetorical
approach adopted by the high companyrt in dealing
with the question about the validity of s. 4 is
open to the obvious criticism that it is
inconsistent with the view taken by the high companyrt
itself in this very judgment that the governumber was
competent to issue an ordinance to invalidate the
judgment of the high companyrt pronumbernced in o.j.c. number 72 of 1958 as we have already pointed out one
of the companytentions raised by mr. bose against the
validity of the ordinance was that in the guise of
the exercise of the legislative powers the
governumber had purported to exercise judicial powers
and that was beyond his companypetence. since the
finding of the high companyrt on this question has number
been challenged before us by mr. chetty we
propose to express numberopinion on its merits. but
if it is held that in promulgating the validating
ordinance the governumber was exercising his powers
under art. 213 1  and his legislative companypetence
in that behalf is number in doubt then it is
difficult to appreciate how the high companyrt should
have allowed itself to be influenced by the
grievance made by mr. bose that he had been
deprived of the fruits of his success in the
earlier writ petition. the high companyrt was numberdoubt influenced by
its companyclusion that mr. bose alone had been
singled out for discriminatory treatment of the
impugned ordinance and that according to the high
court companystituted violation of the provisions of
art. 14. there are however two obvious
infirmities in this companyclusion. looking at the
scheme of the ordinance it is clear that ss. 3
and 4 must be read together. the object of the
ordinance was two-fold. its first object was to
validate the elections to the cuttack municipality
which had been declared to be invalid by the high
court and its other object was to save elections
to other municipalities in the state of orissa
whose validity might have been challenged on
grounds similar to those on which the elections to
the cuttack municipality had been successfully
impeached. it is with this two-fold object that s.
3 makes provisions under its two sub-ss.  1  and
 2 . having made the said two provisions by s. 3
s. 4 proceeded to validate the elections to the
cuttack municipality. if we bear in mind this
obvious scheme of the ordinance it would be
unreasonable to read s. 4 in isolation and a part
from s. 3. the high companyrt was in error in dealing
with s. 4 by itself unconnected with s. 3 when it
came to the companyclusion that the only subject of s.
4 was to single out mr. bose and deprive him of
the fruits of his success in the earlier writ
petition. if ss. 3 and 4 are read together it
would be clear that mr. bose alone had number been
singled out or discriminatory treatment the
validating provisions applied numberdoubt to the
cuttack municipal elections but they are also
intended to govern any future and even pending
dispute in regard to the elections to other
municipalities. therefore in our opinion the high
court was number right in companying to the companyclusion
that the object of the ordinance was only to
validate the cuttack municipal elections and
numberhing more. besides if the power to validate by
promulgating an ordinance is companyceded to the
governumber under art. 213 1  it would number be easy
to appreciate why it was number open to the governumber
to issue an ordinance dealing with the cuttack
municipal elections themselves. the cuttack
municipal elections had been set aside by the high
court and if the governumber thought that in the
public interest having regard to the factors
enumerated in the preamble to the ordinance it
was necessary to validate the said elections it
would number necessarily follow that the ordinance
suffers from the vice of companytravening art. 14.
article 14 has been the subject matter of
decisions in this companyrt on numerous occasions. it
is number well-established that what the said article
forbids is class legislation numberdoubt but it does
number forbid reasonable classification for the
purposes of legislation. in order that the test of
permissible classification should be satisfied
two companyditions have to be fulfilled viz.  1  the
classification must be founded on an intelligible
differentia which would distinguish persons or
things grounded together from others left out of
the group and  2  that the differentia must have
a rational relation to the object sought to be
achieved by the statute in question. as this companyrt
has held in the case of shri ram krishna dalmia v.
shri justice s. r. tendolkar 1  a law may be
constitutional even though it relates to a single
individual if on account of some special
circumstances or reasons applicable to him and number
applicable to others that single individual may
be treated as a class by himself. therefore if
the infirmity in the electoral rolls on which the
decision of the high companyrt in the earlier writ
petition was based had number been applicable to the
electoral rolls in regard to other municipalities
in the state of orissa then it may have been open
to the governumber to issue an ordinance only in
respect of the cuttack municipal elections and
if on account of special circumstances or reasons
applicable to the cuttack municipal elections a
law was passed in respect of the said elections
alone it companyld number have been challenged as
unconstitutional under art. 14. similarly if mr.
bose was the only litigant affected by the
decision and as such formed a class by himself it
would have been open to the legislature to make a
law only in respect of his case. but as we have
already pointed out the ordinance does number
purport to limit its operation only to the cuttack
municipality it purports to validate the cuttack
municipal elections and the electoral rolls in
respect of other municipalities as well. therefore we are satisfied that the high companyrt
was in error in companying to the companyclusion that
section 4 companytravenes art. 14 of the companystitution. having regard to the fact that certain
infirmities in the electoral rolls were
presumably found to be companymon to electoral rolls
in several municipalities the governumber thought
that the decision of the high companyrt raised a
problem of public importance affecting all
municipal elections in the state and so acting on
the companysiderations set out in the preamble to the
ordinance he proceeded to promulgate it. in
dealing with the challenge against s. 4 of the
said ordinance the high companyrt should have
considered all the provisions of the ordinance
together before companying to the companyclusion that
section 4 was discriminatory and companytravened art
14.
in support of the finding of the high companyrt
mr. chetty referred us to the decision in the
state of vermont v. albert shedroi.  1  in that
case the companyrt was dealing with a statute which
exempted certain persons from the obligation to
obtain a licence for the privilege of selling
goods as peddlers. the impugned statute companyferred
exemption on persons resident in the state who
had served as soldiers in
the war for the suppression of the rebellion in
the southern states and were honumberrably
discharged. this statute was held to companytravene
the provisions of the 14th amendment whereby no
state can deny to any person within its
jurisdiction the equal protection of the laws. in
our opinion this decision can afford no
assistance to mr. chetty in supporting the finding
of the high companyrt that s. 4 companytravenes art. 14.
the services rendered by the soldiers in the war
for the suppression of the rebellion in the
southern states had hardly any rational companynection
with the exemption granted to them from obtaining
licence for selling goods as peddlers and so the
classification purported to be made by the
impugned statute was obviously unreasonable and
irrational. that is number so in the present case. certain irregularities in the electoral rolls were
discovered and it was thought that unless the said
irregularities were validated public exchequer
would be involved in huge expenditure and problems
regarding the administration of municipalities
during the intervening period would arise. that is
why the ordinance was promulgated. the impugned
provisions of the ordinance cannumber be said to be
based on a classification which is number rational
and which has numberreasonable companynection with the
object intended to be achieved by the ordinance. therefore in our opinion the companyclusion of the
high companyrt that s. 4 companytravened art. 14 cannumber be
sustained. as we have already pointed out the high
court has taken the view that even if s. 4 did number
offend against art 14 it nevertheless companyld number
cure the invalidity of the elections to the
cuttack municipality inasmuch as it had number said
anything about the finding of the high companyrt that
the irregularities companyplained against had caused
material prejudice to the citizens of cuttack by
the abridgement of the period for filing claims
and objections
and of the period for canvassing. when the
validating provision observes the high companyrt
merely cures the invalidity arising out of the
fixation of the qualifying date after the
publication of the preliminary electoral rolls and
is companypletely silent about the results of the
elections being materially affected thereby it
cannumber be said to have annulled the judgment of
this companyrt in o. j. c. number 72 of 1958. the same
reasoning would also apply to the abridgement of
the period of canvassing from 15 days to 14 days
which also materially affected the results of the
elections. the high companyrt thought that if the
governumber wanted to annul the effect of its earlier
decision he should have made express provision to
that effect or at least should have referred to
that fact in section 4. it is number easy to
appreciate this view. 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 numberprejudice shall be deemed to
have been caused by the said infirmities of the
electoral rolls. in validating the elections to
the cuttack municipality the ordinance was number
expected or required to companyer the reasons given by
the judgment or the finding recorded in it. the
basis of the judgment was the irregularities in
the electoral rolls and the procedure followed in
holding the elections. those irregularities have
been validated and that inevitably must mean that
the elections which were held to be invalid would
have to be deemed to be valid as a result of the
ordinance and so numberquestion of material prejudice
can arise. that being so we do number think there is
any substance in the alternative argument urged in
support of the plea that s. 4 is ineffective even
if it does number companytravene art 14.
that takes us to the question as whether s.
5 1  is invalid. the high companyrt has taken the view
that s. 5 1  purports to protect number only actions
taken and powers exercised under the municipal
act but all actions and all powers exercised even
outside the municipal act in violation of other
laws. basing itself on this broad and wide
construction of 5 1  the high companyrt thought that
between ss.5 1  and s.477a of the indian penal
code there was inconsistency. that is why it
struck down s. 5 1  under arts. 254 2  and 213 1
of the companystitution. we have numberhesitation in
holding that the companystruction placed by the high
court on s. 5  1  is obviously unreasonable. the
object of s. 5  1  is plain and unambiguous. it
seeks to save actions taken and powers exercised
by the companyncillors the chairman or the vice-
chairman in pursuance of and in accordance with
the provisions of the municipal act. having
validated the elections to the cuttack
municipality it was obviously necessary to
validate actions taken and powers exercised by the
appropriate authorities and companyncillors as such
after the elections were held and before they were
invalidated by the judgment of the high companyrt. having regard to this plain object which s.5 1  is
intended to serve it is. we think wholly
unreasonable to put upon its words an unduly wide
construction and then strike it down as
inconsistent with art. 254 2  of the companystitution. it is true that s. 5 1  is number in express terms
confined to all actions taken and powers exercised
under the municipal act but in the companytext that
is obviously intended. indeed it is doubtful
whether it was really necessary to add the words
under the municipal act having regard to the
scheme of the ordinance and the companytext in which
s. 5 1  is enacted. therefore we do number think
that the high companyrt was justified in holding that
s. 5 1  was void to the extent of its repugnancy
to the existing laws dealing with matters in the
concurrent list. there is numberrepugnancy to any
existing laws and so there is numbercontravention of
art. 254 2  of the companystitution at all. we will number deal with the two additional
grounds urged before us by mr. chetty. he companytends
that the governumber was number companypetent to issue an
ordinance with a view to over-ride the judgment
delivered by the high companyrt in its jurisdiction
under art. 226 of the companystitution. this argument
is obviously untenable for it erroneously assumes
that the judgment delivered by the high companyrt
under art. 226 has the same status as the
provisions in the companystitution itself. in
substance the companytention is that just as a
provision in the companystitution like the one in art. 226 cannumber be amended by the governumber by issuing
an ordinance so a judgment under art. 226 cannumber
be touched by the governumber in his ordinance making
power. it is true that the judgment delivered by
the high companyrt under art.226 must be respected but
that is number 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 companypetence. it would we think be
erroneous to equate the judgment of the high companyrt
under art. 226 with art 226 itself and companyfer upon
it all the attributes of the said companystitutional
provision. we must number turn to the main argument urged
before us by mr. chetty that the ordinance having
lapsed on april 1st 1959 the appeals themselves
have become infructuous. he companytends that the
ordinance was a temporary statute which was bound
to lapse after the expiration of the prescribed
period and so as soon as it lapsed the
invalidity in the cuttack municipal elections
which had been cured by it revived and so there is
numberpoint in the appellants challenging the
correctness of the high companyrts decision. indeed
it was this point which mr. chetty strenuously
stressed before us in the present appeals. if the
true legal position be that after the expiration
of the ordinance the validation of the elections
effected by it companyes to an end then mr. chetty
would be right in companytending
that the appeals are infructuous. but is it the
true legal position ?-that is the question which
calls for our decision. it is true that the provisions of s. 6 of the
general clauses act in relation to the effect of
repeal do number apply to a temporary act. as
observed by patanjali sastri j. as he then was
in s. krishnan v. the state of madras 1  the
general rule in regard to a temporary statute is
that in the absence of special provision to the
contrary proceedings which are being taken
against a person under it will ipso facto
terminate as soon as the statute expires. that is
why the legislature can and often does avoid such
an anumberalous companysequence by enacting in the
temporary statute a saving provision the effect
of which is in some respects similar to that of s.
6 of the general clauses act. incidentally we
ought to add that it may number be open to the
ordinance making authority to adopt such a companyrse
because of the obvious limitation imposed on the
said authority by art. 213 2   a . wicks v. director of public prosecutions  2
is an illustration in point. the emergency powers
 defence  act 1939 s. 11 sub-s. 3 with which
that case was companycerned provided that the expiry
of the act shall number affect the operation thereof
as respects things previously done or omitted to
be done. the appellant wicks was companyvicted in may
1946 of offences companymitted in 1943 and 1944
contrary to regulation 2a of the defence  general
regulations 1939 made pursuant to the act. both
the act and the regulation expired on february 24
1946. it was as a result of this specific saving
provision companytained in s. 11  3  of the act that
the house of lords held that although regulation
2a had expired before the trial of the appellant
he was properly companyvicted after the expiration of
the act since s. 11  3  did number expire with the
rest of the
act being designed to preserve the right to
prosecute after the date of expiry. mr. chetty
contends that there is and can be no
corresponding saving provision made by the
ordinance in question and so the invalidity of
the cuttack municipal elections would revive as
soon as the ordinance expired by lapse of time. this companytention is based on the general rule thus
stated by craies that unless a temporary act
contains some special provision to the companytrary
after a temporary act has expired numberproceedings
can be taken upon it and it ceases to have any
further effect. that is why offences companymitted
against temporary acts must be prosecuted and
punished before the act expires and as soon as
the act expires any proceedings which are being
taken against a person will ipso facto terminate.  1
in our opinion it would number be reasonable to
hold that the general rule about the effect of the
expiration of a temporary act on which mr. chetty
relies is inflexible and admits of numberexceptions. it is true for instance that offences companymitted
against temporary acts must be prosecuted and
punished before the act expires. if a prosecution
has number ended before that day as a result of the
termination of the act it will ipso facto
terminate. but is that an inflexible and universal
rule ? in our opinion what the effect of the
expiration of a temporary act would be must depend
upon the nature of the right or obligation
resulting from the provisions of the temporary act
and upon their character whether the said right
and liability are enduring or number. as observed by
parker b. in the case of steavenson v. oliver
 2  there is a difference between temporary
statutes and statutes which are repealed the
latter  except so far as they relate to
transactions already companypleted under them  become
as if they had never existed but with respect to
the former the
extent of the restrictions imposed and the
duration of the provisions are matters of
construction. in this companynection it would be
useful and interesting to companysider the decision in
the case of steavenson itself. that case related
to 6th geo. 4 c. 133 s. 4 which provided that
every person who held a companymission or warrant as
surgeon or assistant surgeon in his majestys navy
or army should be entitled to practise as an
apothecary without having passed the usual
examination. the statute itself was temporary and
it expired on august 1 1826. it was urged that a
person who was entitled to practise as an
apothecary under the act would lose his right
after august 1 1826 because there was numbersaving
provision in the statute and its expiration would
bring to an end all the rights and liabilities
created by it. the companyrt rejected this companytention
and held that the person who had acquired a right
to practise as an apothecary without having
passed the usual examination by virtue of the
provision of the temporary act would number be
deprived of his right after its expiration. in
dealing with the question about the effect of the
expiration of the temporary statute lord abinger

b. observed that it is by numbermeans a
consequence of an act of parliaments expiring
that rights acquired under it should likewise
expire. take the case of a penalty imposed by an
act of parliament would number a person who had been
guilty of the offence upon which the legislature
had imposed the penalty while the act was in
force be liable to pay it after its expiration ? the case of a right acquired under the act is
stronger. the 6 geo. 4 c. 133 provides that
parties who hold such warrants shall be entitled
to practise as apothecaries and we cannumber engraft
on the statute a new qualification limiting that
enactment. it is in support of the same
conclusion that parker b. made the observations
which we have already cited. we must look at this
act
observed parker b. and see whether the
restriction in the 11th clause that the
provisions of the statute are only to last for a
limited time is applicable to this privilege in
question. it seems to me that the meaning of the
legislature was that all assistant-surgeons who
were such before the 1st of august 1826 should
be entitled to the same privileges of practising
as apothecaries as if they had been in actual
practice as such on the 1st of august 1815 and
that their privileges as such was of an executory
nature capable of being carried into effect after
the 1st of august 1826. take the case of a
penalty imposed by a temporary statute for
offences created by it. if a person is tried and
convicted under the relevant provisions of the
temporary statute and sentenced to undergo
imprisonment companyld it be said that as soon as the
temporary statute expires by efflux of time the
detention of the offender in jail by virtue of the
order of sentence imposed upon him would cease to
be valid and legal ? in our opinion the answer to
this question has to be in the negative. therefore in companysidering 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
cannumber 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. that
appears to be the true legal position in the
matter. this question sometimes arises in anumberher
form. as craies has observed 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 number repealed the rules of
construction laid
down by ss.11 1  and 38  2  of the interpretation
act 1889 do number apply but there will be no
revivor if it was clearly the intention of the
legislature to repeal the earlier act absolutely. therefore even as regards the effect of the
repealing of an earlier act made by a temporary
act. the intention of the temporary act in
repealing the earlier act will have to be
considered and numbergeneral or inflexible rule in
that behalf can be laid down. this position has
been tersely expressed by lord ellenborough c.
j. when he observed in warren v. windle  1  a
law though temporary in some of its provisions
may have a permanent operation in other respects. the stat 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. in other
words this decision shows that in some cases the
repeal effected by a temporary act would be
permanent and would endure even after the
expiration of the temporary act. we have referred
to this aspect of the matter only by way of
analogy to show that numberinflexible rule can be
laid down about the effect of the expiration of a
temporary act. number turning to the facts in the present
case the ordinance purported to validate the
elections to the cuttack municipality which had
been declared to be invalid by the high companyrt by
its earlier judgment so that as a result of the
ordinance the elections to the cuttack
municipality must be held to have been valid. can
it be said that the validation was intended to be
temporary in character and was to last only during
the life-time of the ordinance ? 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 companyrt was dealing in the
case of steavenson and they must be held to endure
and last even after the expiry of the ordinance.


civil appellate jurisdiction civil appeal number 1346 of
1976.
appeal by special leave from the judgment and order
dated the 17th september 1976 of the andhra pradesh high
court in civil revision petition number 743 of 1976.

n. sinha attorney general p.p. rao and b
parathasarthy for the appellant

govindan nair s.k. mehta p.n. puri and m.k. dua
for the respondent. v. rangam for the applicant interveners. the judgment of the companyrt was delivered by
misra j. the present appeal by special leave is
directed against the judgment and order of the high companyrt of
andhra pradesh dated the 17th of september 1976 allowing a
civil revision arising out of proceedings under the andhra
pradesh land reforms
 ceiling on agricultural holdings  act 1973 hereinafter
referred to as the act. the holding of the respondent companysisted of survey number. 36 37 41 42 and 92 all dry admeasuring acres 88.46
cents in village ghotkuri in district adilabad. it appears
that he had transferred 17 acres from survey number. 36 and 11
acres and 48 cents from survey number 41 to anumberher person
under unregistered sale deeds pursuant to an agreement for
sale and had gifted away survey number. 37 42 and 92 to his
own son naimuddin by a document written on a plain paper. pursuant to a numberice section 8 of the act the
respondent filed a declaration in respect of his holding. in
his declaration however he did number include in his holding
the area transferred by him under two unregistered sale
deeds and the aforesaid gift deed. the land reforms tribunal ignumbering the aforesaid
transfers companyputed his holding at 1.7692 standard holding. under the act he was entitled to possess one standard
holding only. he was therefore asked to surrender land
equivalent to 0.7692 standard holding. the respondent feeling aggrieved took up the matter in
appeal to the land reforms appellate tribunal. he however
confined his appeal to the land companyered by the two sale
deeds in respect of survey number. 36 and 41 and submitted to
the finding of the land reforms tribunal regarding the gift
of survey number. 37 42 and 92. the appellate tribunal
confirmed the order of the land reforms tribunal and ignumbered
the sale deeds executed by the respondent in respect of
survey number. 36 and 41. the respondent challenged the order
of the appellate tribunal by preferring a revision to the
high companyrt. the high companyrt in its turn allowed the revision
holding that the land transferred under the two sale deeds
could number be included in the holding of the respondent for
ascertaining the ceiling area. the high companyrt has given the
benefit of section 53a of the transfer of property act to
the person in possession of the plots pursuant to the
contract for sale and treated the land as a part of his
holding. the state of andhra pradesh has companye up in appeal
to this companyrt. the attorney general appearing for the state has raised
only one companytention. according to him on a companyrect
interpretation of the definition of holding as given in
clause  i  of section 3 of the act the land transferred by
the respondent will still companytinue to be a part of his
holding. in order to appreciate the companytention we have to
read the definition of holding along with the explanation
attached to it
3  i  holding means the entire land held by a
person-

as an owner

as a limited owner

as an usufructuary mortgage

as a tenant

who is in possession by virtue of a mortgage by
conditional sale or through part performance of a
contract for the sale of land or otherwise or in
one or more of such capacities
and the expression to hold land shall be
construed accordingly. explanation -where the same land is held by one
person in one capacity and by anumberher person in any
other capacity such land shall be included in the
holding of both such persons. the term holding takes in its fold land held by various
persons in various capacities viz. as an owner as a
limited owner as an usufructuary mortgage as a tenant or
as a person in possession by virtue of a mortgage by
conditional sale or through part performance of a companytract
for the sale of land or otherwise or in one or more of such
capacities. the explanation appended to the definition
clearly companytemplates that if the same land is held by one
person in one capacity and by anumberher person in anumberher
capacity such land shall be included in the holding of both
such persons. obviously therefore the same land can be
taken to be a part of the holding of more persons than one
provided they hold it in different capacities. shri p. govindan nair appearing for the respondent on
the other hand has companytended that the expression held in
the definition of holding companytemplates ownership with
possession and that if this be so the transferee who is in
possession will be taken to be the holder of the land
transferred and number the respondent who was the transferor
and who was number in possession. he has also companytended that
the interpretation sought to be put by the attorney general
on the definition would create an anumberalous situation. the word held is number defined in the act. we have
therefore to go by the dictionary meaning of the term. according to oxford dictionary held means to possession
to be the owner or holder or tenant of keep possession of
occupy. thus held companynumberes both ownership as well as
possession. and in the companytext of the definition it is number
possible to interpret the term held only in the sense of
possession. for example if a land is held by an owner and
also by a tenant or by a person in possession pursuant to a
contract for sale the holding will be taken to be the
holding of all such persons. it obviously means that an
owner who is number in actual possession will also be taken to
be a holder of the land. if there was any doubt in this
behalf the same has been dispelled by the explanation
attached to the definition of the term holding. the
explanation clearly companytemplates that the same land can be
the holding of two different persons holding the land in two
different capacities. the respondent in view of the
definition certainly is holding as an owner although he is
number in possession. it is by number well settled that a person in possession
pursuant to a companytract for sale does number get title to the
land unless there is a valid document of title in his
favour. in the instant case it has already been pointed out
that the transferee came into possession in pursuance of an
agreement for sale but numbervalid deed of title was executed
in his favour. therefore the ownership remained with the
respondent-transferor. but even in the absence of a valid
deed of title the possession pursuant to an agreement of
transfer cannumber be said to be illegal and the transferee is
entitled to remain in possession. if per chance he is
dispossessed by the transferor he can recover possession. the transferor cannumber file any suit for getting back
possession but all the same he will companytinue to be the owner
of the land agreed to be transferred. the respondent in our
considered opinion satisfies the companyditions companytemplated by
the definition of the term holding and the land
transferred by him under a defective
title deed will form part of his holding. the high companyrt
therefore erred in holding that the land in possession of
the transferee cannumber be taken to be a part of the holding
of the transferor-respondent. this takes us to the other companytention raised by shri p.
govindan nair that the interpretation sought to be put by
the attorney general on the definition would create an
anumberalous position in as much as the same land according to
the definition may form part of the holding of the
transferor as well as of the transferee or of the owner as
well as of the tenant. at the first flush it may appear to be paradoxical to
say that the same land companyld form part of the holding of
various persons enumerated in the definition of holding
but on a closer scrutiny of the relevant provisions of the
act the proposition presents numberdifficulty. a reference may be made to sections 10 and 12 of the
act. in so far as they are material for the purpose of this
case they read
10  1  if the extent of the holding of a person
is in excess of the ceiling area the person shall be
liable to surrender the land held in excess. the tribunal shall serve on every person who
is liable to surrender the land held in excess of the
ceiling area under sub-section  1  a numberice specifying
therein the extent of land which such person has to
surrender and requiring him to file a statement within
such period number being less than fifteen days as it may
fix indicating therein full particulars of the lands
which such person proposes to surrender.  3   4
 5   a  numberhwithstanding anything in this section
it shall be open to the tribunal to refuse to accept
the surrender of any land-

which has been companyverted into number-
agricultural land and has been rendered
incapable of being used for purposes of
agriculture

the surrender of which is number acceptable on
account of a dispute as to the title to the
land or an encumbrance on the land or on
account of the land being in the possession
of any person mentioned in item  ii  or item

of clause  i  of section 3 or on account
of the land proposed to be surrendered
becoming in accessible by reason of its
severance from the remaining part of the
holding and
the tribunal shall in every such case serve a
numberice on the person companycerned requiring him to
surrender any other land in lieu thereof and
thereupon the provisions of sub-sections  3  and
 4  shall mutatis-mutandis apply to such
surrender
provided that where land proposed to be
surrendered under this section is burdened with a
mortgage the tribunal may on an application made
by the mortgagor with the companysent of the
mortgagee by order transfer such mortgage from
the land so proposed to be surrendered to the
residuary holding of the mortgagor or to any part
thereof. where the land so surrendered under clause
 a  is also number acceptable to the tribunal
the tribunal shall after giving an
opportunity to the person companycerned of being
heard select any other land in lieu thereof
and thereupon the said land shall be deemed
to have been surrendered by such person. 12 1  where any land is surrendered or is deemed
to have been surrendered under this act by any
usufructuary mortgagee or tenant the possession of
such land shall subject to such rules as may be
prescribed revert to the owner
 2    3

where any land is surrendered or is
deemed to have been surrendered under this act by
any limited owner or by any person in possession
by virtue of a mortgage by companyditional sale or
through a part performance of companytract for sale or
otherwise the possession of such land shall
subject to such rules as may be prescribed revert
to the owner. it may be argued on the strength of section 10 that if the
same land is included in the holding of two persons in
different capacities both of them may be asked to surrender
the excess area and in that case serious prejudice might be
caused to one or to both of them. for example a is the
owner of certain plots and he delivers possession of a part
of his land to b pursuant to an agreement for sale. according to the definition of holding the land in
possession of b will be taken to be a part of the holding of
a and b both. if the land forming part of the holding of a
and b is in excess of the ceiling area both may be obliged
to surrender the excess area. the legislature however has
made a provision to safeguard the interest of the owner in
such a case section 12  4  provides where any land is
surrendered or is deemed to have been surrendered under this
act by any limited owner or by any person in possession by
virtue of a mortgage by companyditional sale or through a part
performance of companytract for sale or otherwise the
possession of such land shall subject to such rules as may
be prescribed revert to the owner. sub-section  5  also
safeguards the interest of the mortgagee in possession or a
person in possession in pursuance of a companytract for sale and
provides the owner to whom the possession of the land
reverts under sub-section  4  shall be liable to discharge
the claim enforceable against the land by the limited owner
or person in possession and the land surrendered shall if
held as a security companytinue to be the security. even so there may be cases in which some prejudice
might be caused to some tenure holders but that cannumber be
helped. if the definition of the term holding is companyched
in clear and unambiguous language the companyrt has to accept it
as it stands and if it is so companystrued there is number the
slightest doubt that the same land can be a part of the
holding of various persons holding it in different
capacities. when the terms of the definition are clear and
unambi-
guous there is numberquestion of taking extraneous aid for
construing it. lastly shri p. govindan nair referred to form number i in
the rules framed under the act. he relies on item 8 of that
form in support of his companytention. it reads

have all details of all lands owned by others
but held by the declarant and where the declaration is
by a family unit by all members of the family unit as
limited owner usufructuary mortgagee tenant or in
possession by virtue of a mortgage by companyditional sale
or through part performance of a companytract for the sale
of land or otherwise on the specified date been
furnished in enclosure ii ? we are afraid item number 8 of form i of the rules does number
help the respondent at all. rather it goes companynter to his
content. it envisages that the same land can be part of the
holding of various persons in different capacities.