Patna High Court
Ram Naresh Rai And Anr. vs State Of Bihar And Ors. on 28 September, 1978
Equivalent citations: AIR1979PAT130, AIR 1979 PATNA 130, (1979) PAT LJR 60, 1978 BBCJ 677, (1978) BLJ 796
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. The elections of the office-bearers of different Gram Panchayats have been challenged in these writ applications. The validity of the elections has been questioned primarily on the ground that the electoral rolls for such elections were prepared under such provisions of the Bihar Panchayat Raj Act, 1947 and the Rules framed thereunder, which are ultra vires. The petitioners in different writ applications have also challenged the respective elections on the ground that they have been held in contravention of the different rules of the Bihar Panchayat Election Rules, 1959. As common questions of law are involved in these writ applications, they were heard together and are being disposed of by a common judgment.
2. The Bihar Panchayat Raj Act, 1947 (hereinafter to be referred to as the Act), came in force in the year 1948. The object, as mentioned in the preamble of the said Act was to establish and develop Local Self-Government in the village communities of the province of Bihar, Section 4 of the Act contained the provision regarding membership of a Gram Panchayat who could vote at the election. It was amended in the year 1963. In view of this amendment, persons of the locality, who were voters of the Assembly constituency, were deemed to be the voters for the Gram Panchayat election. In the year 1978, however, the aforesaid Section 4 was again amended by the Bihar Panchayat Raj Amendment Ordinance, 1978 (herinafter to be referred to as Ordinance No. 5 of 1978), which came in force on and from 25th February, 1978. The amending section runs as follows:--
"For Section 4 of the said Act the following section shall be substituted and shall always be deemed to have been substituted namely:--
4. Membership of the Gram Panchayat.-- All those persons who are enrolled as electors in so much of the elctoral roll or rolls of an Assembly Constituency of the State of Bihar for the time being in force, as relates to the local areas comprised within the limits of the Gram Panchayat shall be members of the Gram Panchayat and as also those persons ordinarily residing in the Gram Pan-yat who have attained the age of eighteen years or more on the qualifying date and who are not enrolled in the Assembly Constituency and for whom supplementary electoral roll shall be prepared in the prescribed manner under the Act.
Explanation:-- 'Qualifying date' means the first of January of that year in which the supplementary roll is prepared or revised. Section 16 of the Representation of the People Act, 1950 shall apply mutatis mutandis for preparing the supplementary electoral roll of the Gram Panchayat,"
As the amended Section 4 of the Act provided that a supplementary electoral roll shall be prepared in the prescribed manner, the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 (hereinafter to be referred to as the Electors Rules) were framed. This Rule was published in the Bihar (Extraordinary) Gazette on 21st March, 1978. It contained the procedure for preparation of supplementary electoral roll containing the names of such persons who are above 18 years of age and whose names have not been included in the Assembly electoral roll. Rule 1 (2) of this Rule provided "They shall be deemed to have come into force on the 1st day of Feb. 1978." Rule 5 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Election Rules) was also amended on 22-3-1978. Sub-rule (la) was added to Rule 5, saying that supplementary electoral roll prepared under the aforesaid Electors Rules shall form supplement to the electoral roll mentioned in Sub-rule (1) of Rule 5.
3. A direction had already been issued by the State Government on 4th February, 1978 to different Commissioners of the Divisions and the District Magistrates requesting them to take steps for preparation of the supplementary electoral roll containing names of persons above 18 years of age. A programme for the same was also forwarded. The draft of that supplementary electoral roll, according to the programme, was to be published between 3-3-1978 to 8-3-1978, objection thereto was to be filed between 9-3-1978 to 13-3-1978, hearing on the objection was to be made between 14-3-1978 to 18-3-1978. After corrections on the basis of the objection supplementary voters' list was to be finally published between 3-4-1978 to 7-4-1978. A copy of this communication is Annexure-3 to the writ application of C.W.J.C. No. 2583 of 1978. The election programme was published on 11th April, 1978. Date for filing nomination papers was fixed for 19-4-1978 and elections were held on 24-5-1978.
4. On 25-5-1978 another Ordinance, the Bihar Panchayat Election Rules and Supplementary Electoral Rolls (Validating) Ordinance, 1978 (hereinafter referred to as Ordinance No. 57 of 1978) was promulgated. The preamble of that Ordinance is as follows:--
"To validate supplementary electoral rolls prepared and published under Section 4 of the Bihar Panchayat Raj Act, 1947 and Rules framed thereunder and to provide for certain other matters incidental thereto."
It contains three sections, which are as follows:--
"2. Application of Sub-rule (1a) of Rule 5 of the Bihar Panchayat Election Rules, 1959 and the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 -- Sub-rule (1A) of Rule 5 of the Bihar Panchayat Election Rules, 1959 and the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 shall be deemed to have come into force on the 1st February 1978.
3. Validation of Supplementary Electoral Rolls-- Notwithstanding any judgment, or order of any court or authority or any irregularity or infirmity in relation to the preparation and publication of the Supplementary Electoral Rolls for Gram Panchayats in Bihar prepared and finally published under Rule 18 of the Bihar Panchayat (Registration of Supplementary Electors) Rules 1978, the said Rolls shall be deemed to have been validly prepared and published.
4. Election not to be questioned on the ground of any infirmity or irregularity in preparing and publishing the Supplementary Electoral Rolls. No election held under the Bihar Panchayat Raj Act, 1947 and the rules framed thereunder nor any action taken in relation to such election, shall be questioned on the ground of any purported irregularity or infirmity in the preparation and publication of the Supplementary Electoral Rolls finally published under Rule 18 of the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978." The vires of this Ordinance has also been strongly challenged on behalf of the petitioners.
5. A valid electoral roll is the basis of a valid election, and it is the duty of the authorities concerned to prepare the voters' list in accordance with the provisions of the Act and the Rules. If either the provisions of the Act or the Rules are found to be invalid, then it shall vitiate the action taken thereunder, keeping the question of validation of those actions by the Legislature, for the time being apart. Now it has to be seen as to whether the amendments in the Act by the Ordinances and the Electors Rules aforesaid are ultra vires, so as to nullify the actions taken for the preparation of the supplementary voters' list.
6. Learned counsel appearing in different writ applications on behalf of the petitioners attacked the validity of amended Section 4 of the Act on ground of it being repugnant to the provisions of the Representation of the People Act, 1950 (hereinatfer referred to as the Representation Act) as well on the ground that it is against the basic structure of the Constitution of India. Foundation of this argument is that the Representation Act as well as the Constitution has prescribed 21 years as the lower limit of the age for the voters of the Parliamentary and Assembly constituencies and they conceive the election on the basis of adult suffrage, i.e., by persons above 21 years of age. For finding out as to whether a provision of the State Act is repugnant to another provision of the Central Act so as to attract Article 254 of the Constitution, it must be established that the State Act as well as the Central Act have been framed under any item of the concurrent list (List III of Schedule VII of the Constitution). Only in such a situation, the State Act to the extent of repugnancy shall be void in absence of the President's assent, as contemplated by Article 254 (2) of the Constitution. In my opinion, the Representation Act and the Act in question cannot be held to be repugnant to each other because they are operating in different fields, one prescribed about the preparation of the electoral rolls for the Parliamentary and Assembly Constituencies and the other for a much smaller elective body, the Gram Panchayat. The present Act has been framed not under any item of concurrent list, but under item 5 of State List (List II), which contains the following entry:
"5. Local Government....... other local authorities for the purpose of local self-government or village administration." The preamble of the Act clearly says that it is "to establish and develop Local Self-Government in the village communities of the province of Bihar and to organise and improve their social and-economic life." From a bare reference to the different provisions of the Act it will be seen that they provide for the establishment of a Gram Panchayat and have vested powers to it to take care of the village administration. Merely because some, of the provisions of the Act relate to establishment, power and duties of Gram Cutcherry, will not be the basis for holding that the Act has been framed under item No. 1 or item 11A of the Concurrent List. Item Nos. 1 and 11A of the Concurrent List speak about criminal law, including matters relating to the Indian Penal Code, and about the administration of justice; constitution and organisation of all courts except Supreme Court and the High Courts. It is well settled that whenever question arises as to under which of the entries of a particular list the relevant Act has been framed, it has to be judged on the principle of pith and substance. It was pointed out in Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna (AIR 1947 PC 60) and Megh Raj v. Allah Rakhia (AIR 1947 PC 72) that it was impossible to make a clean cut between the powers of a Federal and Provincial Legislature; sometimes they are found to overlap and the legislative competence has to be decided on the principle of pith and substance of the impugned enactment. The same view was expressed in the case of Atiabari Tea Co. Ltd. v. State of Assam (AIR 1961 SC 232).
7. Learned counsel appearing for the petitioners placed reliance on a Bench decision of the Allahabad High Court in the case of Tej Bahadur Singh v. State (AIR 1954 All 655) in support of their contention that the U. P. Panchayat Raj Act having similar provision was held to have been framed under the relevant items of the Concurrent List (List III) of the Government of India Act, 1935. From a bare reference to that judgment it will appear that not much argument was advanced on this point because that Act had received the assent of the Governor General in accordance with Section 107 (2) of the Government of India Act, 1935, As such, the argument about legislative incompetence was repelled by giving a short answer. It may be pointed out that even the present Act also received the assent of the Governor General of India before it came in force. But, that will not mean that the State Legislature had no legislative competence. In my opinion, applying the principle of pith and substance, it has to be held that the Act has been enacted under entry No. 5 of the State List. Once it is held that the State Legislature had competence to introduce the amendments in the Act under one of the items of the State List, there is no question of testing whether it is repugnant to any of the provisions of the Central Act. It was pointed out in the aforesaid case of Megh Raj (AIR 1947 PC 72) that Section 107 (corresponding provision to Article 254) has no application to a case where the province could show that it was acting wholly within its power under the provincial list and has not relied on any power conferred to it by the Concurrent List and in such cases questions of repugnancy do not arise. The same view has been expressed in the case of A. S. Krishna v. State of Madras (AIR 1957 SC 297), Kerala State Electricity Board v. The Indian Aluminium Co. Ltd., (1976) 1 SCC 466: (AIR 1976 SC 1031).
8. For the question as to whether the amended Section 4 is against the basic structure of the Constitution, reference was made to Article 326 of the Constitution which provides that election to the House of People and to the Legislative Assembly of every State shall be on the basis of adult suffrage. In that very Article it has been stated that adult suffrage means persons who are not less than 21 years of age on the relevant date. Reference has also been made to Halsbury's Laws of England as to what is meant by full age. According to Mr. Basudeva Prasad, learned counsel appearing in one of the writ applications, on behalf of the petitioner, it is also one of the basic features of the Constitution that elections to different posts should be held on the basis of adult suffrage. In this connection, reference was made to the well known case of His Holiness Kesavananda Bharati Sripadagal-varu v. State of Kerala (AIR 1973 SC 1461). It is difficult to hold that the Constitution places any such general bar on the voting right of citizens of India to different elected bodies, other than the House of People had Legislative Assemblies of the States. Article 326 on its own terms applies only to the House of People and Legislative Assembly of every State. A Gram Panchayat is a much smaller body. If persons below 21 years, but above 18 years, have also been permitted to be registered as voters, it cannot be held to be irrational or in conflict with any provision of the Constitution. At the age of 18 a person becomes "major and his acts and omissions have full legal implications. In my considered view, the amended Section 4 of the Act cannot be held to be ultra vires.
9. In respect of Section 4, it was also suggested that it amounted to colourable exercise of power and fraud on the Constitution. According to learned counsel in one of the writ applications, this amendment had been introduced with an ulterior motive. It is well known that motive for making an Act or issuing an ordinance is not justiciable before a court of law. Whenever the expressions colourable exercise of power or fraud on Constitution are used in connection with any enactment, it only means that the particular legislature had no legislative competence although it purports to have exercised that power. Reference in this connection may be made to the cases of K. C. Gajapati Narayan Deo v. State of Orissa (AIR 1953 SC 375), Bhairabendra Narayan Bhup v. State of Assam (AIR 1956 SC 503), Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation (AIR 1959 SC 308) and R. S. Joshi etc. v. Ajit Mills Ltd. (AIR 1977 SC 2279). In the case of K. C. Gajapati Narayan Deo (AIR 1953 SC 375), it was observed (at p. 379):
"It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of 'bona fides' or 'mala fides' on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all.........If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements."
I have already held that it was within the legislative competence of the Legislature to enact a provision like the amended Section 4; it is not offending to any provision of the constitution including the Articles relating to fundamental rights; as such, there is no question of its being a colourable legislation.
10. It was then submitted that the State Government in exercise of its rule-making power could not have made the Electors Rules retrospective with effect from 1-2-1978; as such the said Rules are void. According to the petitioners, in such a situation, the preparation of the supplementary electoral rolls was without any authority in law, elections held on basis of such electoral rolls were no elections in eyes of Law. I have already pointed out that the Electoral Rolls were published in the Bihar (Extraordinary) Gazette dated 21-3-1978. Sub-rule (2) of Rule 1 says that "they shall be deemed to have come into force on the 1st day of Feb. 1978". Section 80 of the Act does not vest any such power in the State Government to make Rules retrospectively; as such, it has to be held that Sub-rule (2) of Rule 1 is ultra vires and on its own the said Rules would have come in force only with effect from 21-3-1978. This position was not seriously challenged even by the learned Advocate-General who appeared for the respondent-State. He, however, contended that in view of Section 2 of Ordinance No. 57 of 1978, referred to above, the Rules will be deemed to have come in force on and from 1st February, 1978. Section 2 of the Ordinance aforesaid prescribes that the aforesaid Electors Rules as well as Sub-rule (la) of Rule 5 of the Election Rules "shall be deemed to have come into force on 1st February, 1978". It is well established that Legislature in exercise of its plenary power can legislate prospectively as well as retrospectively. It can introduce a legal fiction for the purpose of bringing any provision of the Act or the Rules in force from a day, even before the promulgation of Ordinance or the Act in question. It has been pointed out on many occasions by different Courts that when legislature by a legal fiction bids to imagine an unreal state of affairs as real, then it has to be so imagined including about the existence of circumstances and consequences. Reference in this connection may be made to the oft-quoted passage from the judgment in the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952 AC 109) where Lord Asquith observed that if one is bidden to treat an imaginary state of affairs as real then one has to imagine as real even the consequences and incidents thereto and in such a situation, one cannot, after having imagined upto a certain stage, allow his imagination to boggle when it comes to the inevitable corollaries. Reference can be made to the case of State of Bombay v. Pandu-rang Vinayak (AIR 1953 SC 244). In the case of Abdul Majid Haji Mahomed V. P. R. Nayak (AIR 1951 Bom 440), Chagla, C. J. while dealing with an Ordinance, which was brought in force retrospectively observed that in such a situation, the object of such sections is "as it were, to ante-date the Act so as to bring it into force on the day on which a particular order was passed which was being challenged". In the case of Bishwanath Prasad v. National Coal Development Corporation (Private Ltd.), 1964 BLJR 498 : (AIR 1963 Pat 401), justice Untwalia (as he then was) while relying on the aforesaid decision in the aforesaid case of Abdul Majid Haji Mahommed (AIR 1951 Bom 440) observed that the purpose of the legal fiction in the section in question was to ante-date the Act so as to bring it into force on the day on which an earlier rule had been made. In my opinion similar is the situation here. When Ordinance No. 57 of 1978 says that it will be deemed that the Electors Rules shall be deemed to have come into force on 1-2-1978, it will be deemed that it had come in force. This could not have been done by the State Government in exercise of its rule-making authority, but certainly it can be done by an Ordinance. Learned counsel appearing for the petitioners while admitting that it is within the power of Legislature to enact a law retrospectively challenged the exercise of that power, in the instant case, on the ground that it could have been done only by amending Section 80 vesting power in the rule-making authority to make Rules retrospectively. It is difficult to accept this contention. In my view, this could have been done either by amending Section 80 retrospectively, or by an independent provision like Section 2.
11. It was also submitted that the Rule being void ab initio, it could not have been ante-dated by Section 2. It is difficult to accept this contention as well. Merely because Rule 1 (2) of the Electors Rules says that the Rules shall be deemed to have come into force on 1st February, 1978, all the rules shall not be void. Only that part shall be ultra vires being beyond power of the rule-making authority. The remaining rules shall be valid and deemed to have come in force on their own strength with effect from 21-3-1978. In such a situation, if Section 2 of Ordinance No. 57 of 1978 provided that these rules shall be deemed to have come in force with effect from 1-2-1978, it cannot be held that the said section purports to ante-date rules which were void ab initio.
12. It was then urged that even if it is assumed that because of the legal fiction introduced by Section 2 of Ordinance No. 57 of 1978 the Electors Rules would be deemed to be in force with effect from 1-2-1978, even then the elections shall be vitiated because the supplementary electoral rolls were factually not prepared in accordance with the provisions of the said Rule. In this connection, our attention was drawn to the aforesaid circular dated 4th February, 1978 issued by the State Government to different Commissioners and District Magistrates (Annexure-3 to C.W.J.C. No. 2583 of 1978) in which the date for publication of the draft supplementary electoral roll was fixed between 3-3-1978 to 8-3-1978, time for filing objection was fixed between 9-3-1978 to 13-3-1978 and objections were to be heard between 14-3-1973 to 18-3-1978. It was pointed out that as factually the Electors Rules were not in force, many persons who were qualified to be enrolled as voters had no knowledge about the preparation of the supplementary electoral roll and they could not file objection. In the counter-affidavit filed on behalf of the State this has been controverted saying that in the Gram Panchayat it was duly informed that such supplementary electoral roll was to be prepared and dates for filing objections were also notified. During course of the hearing of the writ applications, a copy of the Bihar Gazette dated 28-2-1978 was produced to show that the draft Electors Rules had been published as required by Section 80 of the Act. On that basis it was urged that members of the Gram Panchayat will be deemed to have notice of the Electors Rules which had been framed. However, I shall proceed to examine this aspect of the matter primarily on the basis of the aforesaid validating sections.
13. According to learned counsel appearing for the petitioners, Sections 3 and 4 of the Validating Ordinance No. 57 of 1978 are ultra vires because an attempt has been made to exercise judicial power which could not have been exercised by the Legislature. The grievance about the exercise of judicial power has been made because Section 3 of the said Ordinance says "Notwithstanding any judgment or order of any court or authority, or any irregularity or infirmity in relation to the preparation and publication of the supplementary electoral rolls" the said rolls shall be deemed to have been validly prepared and published. I may, however, point out that it is an admitted position that there is no judgment or order of any court invalidating any such electoral roll. That apart, there is a distinction when a Legislature purports to nullify judgment or order passed by Court of competent jurisdiction and when after having removed the lacuna pointed out in those judgments, it says that notwithstanding those judgments a particular legal position shall emerge, It is only in the former case that it is beyond the competence of legislature.
14. Learned counsel appearing for the petitioners also submitted that these validating provisions purport to validate illegal and void electoral rolls, which is beyond the scope of a validating Act. In support of this contention reliance was placed on the following judgments of the Supreme Court in the cases of Mahendra Lal Jaini v. State of Uttar Pradesh (AIR 1963 SC 1019), B. Shama Rao v. Union Territory of Pandicherry (AIR 1967 SC 1480) and the Dy. Commr. and Collector, Kamrup v. Durga Nath Sharma (AIR 1968 SC 394). While examining the scope of a validating Act it should always be borne in mind that the purpose of such Acts on their face is to validate certain invalid actions which had no authority in law. But, it has its own limitations as well. If an action by the State Government has been taken under an Act which infringes any constitutional provision, including any fundamental right guaranteed by the Constitution or which is invalid because of the legislative incompetence, then such actions or provisions cannot be validated by Validating Act. On the other hand, if any action has been taken in absence of an authority in law, it is always open to the Legislature, to vest authority in such persons by Validating Acts. I shall immediately indicate that the cases which have been referred to on behalf of the petitioners fall in the first category.
15. In the case of Mahendra Lal Jaini v. State of Uttar Pradesh (AIR 1963 SC 1019), the U. P. Land Tenures (Regulations of Transfer) Act, 1952 was held to be unconstitutional, as it did not comply with Article 31 (2) of the Constitution, as it stood at the time the Act was passed. After the Constitution (Fourth Amendment) Act, which came in force later, a stand was taken on behalf of the State that the Act which had been held to be unconstitutional will be deemed to have been revived after the Constitution (Fourth Amendment) Act. It was held that the Act in question being a post Constitution Act will be governed by Article 13 (2) of the Constitution and it shall not revive on the principle of doctrine of eclipse. So far the case of B. Shama Rao v. Union Territory of Pondicherry (AIR 1967 SC 1480) is concerned, the Pondicherry General Sales Tax Act, 196-5 had extended the Madras General Sales Tax Act as it stood immediately before the date on which the Pondicherry Act was to be brought in force in the territory of Pondicherry, by a notification. The petitioner of that case filed a writ application challenging the Pondicherry Act. During the pendency of the writ application, Pondicherry General Sales Tax (Amendment) Act, 1966 was passed by the Pondicherry Legislature purporting to resuscitate the earlier Act. It was held that there was an abdication or efface-ment on the part of the Pondicherry Legislature while extending the Madras Act to its territory by the earlier Act without applying its independent mind. This was contrary to the instrument which constituted it As such, the earlier Statute in question was void and still born. In that context it was observed, "the Principal Act being stillborn, the attempt to revive that which was void ab initio was frustrated and such an Act could have no efficacy". In the case of the Dy. Commr. and Collector, Kamrup v. Durga Nath Sarma (AIR 1968 SC 394) the Act (Act 6 of 1955) passed by the Assam Legislature in respect of acquisition of land was declared to be invalid by the Assam High Court. A Validating Act No. 21 of 1960 was passed saying that notwithstanding anything contained in the earlier Act any land which had been taken over for the purpose of construction of embankment shall be deemed to have been validly acquired under the provisions of the said Act. It was held that as Act No. 6 of 1955 was violative of Articles 14 and 31 (2) of the Constitution, it was ultra vires. It was further held that any action taken under such constitutionally invalid Act could not be validated by Act No. 21 of 1960, because the Validating Act itself will be invalid on that very ground.
16. All the aforesaid cases on which reliance has been placed on behalf of the petitioner, the Acts which were purported to be validated, had been held to be constitutionally invalid, and, as such, it was beyond the power of the State Legislature to validate the actions taken under those Acts by merely passing the Validating Act.
17. Learned Advocate-General has referred to some of the cases where this aspect of the matter has been considered. In the case of United Provinces V. Mt. Atiqua Begum (AIR 1941 FC 16) rents had been collected from the tenant without any authority in law. Faced with the situation, the U. P. Regularization of Remissions Act of 1938 was passed validating the actions of the collection of rents. The Allahabad High Court held it to be ultra vires. It was held by the Federal Court that such actions were within the scope of Validating Act, and, as such, not ultra vires.
18. In the case of Piare Dusadh v. Emperor (AIR 1944 FC 1), the appellants had been convicted by courts functioning under the special Criminal Court Ordinance (Ordinance 2 of 1943). Federal Court held that the courts constituted under the aforesaid Ordinance had not been duly invested with the jurisdiction. Next day, the Governor General made and promulgated another Ordinance, Ordinance No. 19 of 1943, by which the earlier Ordinance was repealed and certain provisions were made one of the sections provided that any sentence passed by the Special Judge constituted under the earlier Ordinance shall continue to have effect as if the trial had been held in accordance with the Code of Criminal Procedure. It was held that the validity given to the sentence that had been passed by the special courts, were only meant to limit such validity up to the time the sentences appealed against and it did not amount to the exercise of a judicial power and that provision not ultra vires,
19. Reference was also made in this connection to the case of West Ramnad Electric Distribution Co. Ltd. v. State of Madras (AIR 1962 SC 1753) in which a question had arisen as to whether the notifications issued under the Madras Electricity Supply Undertakings (Acquisition) Act, 1949, which had been declared invalid by the Supreme Court having been legislated beyond their legislative competence, could be validated by a subsequent Act, i.e. Madras Electricity Supply Undertakings (Acquisition) Act, 1954, it was held that the subsequent Act could have validated the actions taken under the earlier Act which was held to be invalid, because by the time the second Act was passed the legislature was clothed with the necessary legislative power.
20. Reliance has been also placed on behalf of the State on the case of Jaora Sugar Mills (P.) Ltd. v. State of Madhya Pradesh (AIR 1966 SC 416). In this case, under an enactment the State Legislature had purported to collect cess. The validity of that Act was challenged and it was held to be unconstitutional because there was no legislative competence in the State Legislature. Later, the Parliament passed U. P. Sugarcane Cess (Validation) Act, 1961 validating the imposition and collection of cess made under the State Act which had been held to be invalid. In that connection, repelling the argument that it will not validate actions already taken, it was observed (at p. 421):--
"What Parliament has done by enacting the said section is not to validate the invalid State statutes, but to make a law concerning the cess covered by the said statutes and to provide that the said law shall come into operation retrospectively."
21. In the case of Udai Ram v. Union of India (AIR 1968 SC 1138) certain notifications issued under the Land Acquisition Act had been challenged before the High Court on the ground that there could not be successive notifications under Section 6 of the Act. In the meantime, an ordinance was promulgated by the President of India. Section 4 of the Ordinance purported to amend Section 6 of the Principal Act by enabling different declarations to be made from time to time, made in respect of different parcels of land. Section 5 of the Ordinance purported to validate all acquisitions of lands which had been made or purported to have been made under the principal Act before the commencement of the Ordinance, notwithstanding any judgment, decree or order of any court to the contrary. After referring to the aforesaid judgments of the Federal Court, it was observed (at pp. 1151, 1152) :--
"All these decisions lay down that the power to legislate for validating actions taken under statute which were not sufficiently comprehensive for the purpose, is only ancillary or subsidiary to legislate on any subject within the competence of the legislature and such validating Acts cannot be struck down merely because courts of law have declared actions taken earlier to be invalid for want of jurisdiction. Nor is there any reason to hold that in order to validate action without legislative support, the validating Act must enact provisions to cure the defect for the future and also provide that all actions taken or notifications issued must be deemed to be taken or issued under the new provisions so as to give them full retrospective effect. No doubt legislatures often resort to such practice but it is not absolutely necessary that they should do so, so as to give full scope and effect to the validating Acts."
22. In the case of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (AIR 1970 SC 192) also a validating Act, validating the tax collected, which had been declared to be invalid by the court, was upheld by the Supreme Court. In that connection it was pointed out (at p. 195):
"If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law."
23. In the case of Tirath Ram Rajindra Nath v. State of U. P. (AIR 1973 SC 405), the Allahabad High Court had held that the amendment effected in the U. P. Sales Tax (Amendment and Validation) Act, 1970 was unconstitutional by vice of excessive delegation. Thereafter, U. P. Sales Tax (Amendment and Validation) Act, 1971 was passed saying "notwithstanding any judgment, decree or order of any court" any tax imposed, assessed or collected before the commencement of that Act under any of the notifications specified in the second Schedule shall be deemed to have been validly imposed, assessed and collected. It was pointed out by the Supreme Court, that by the Act in question, the legislature had amended the law retrospectively and thereby removed the basis of the decision of the High Court; such actions cannot be considered as encroachment on the judicial power.
24. In this connection reference can be made to another decision of the Supreme Court in the case of Krishna Chandra Gangopadhyaya v. Union of India (AIR 1975 SC 1389). A second proviso had been added to Sub-section (2) of Section 10 of the Bihar Land Reforms Act, 1950 saying that the terms and conditions of the lease in respect of minor minerals in so far they are inconsistent with the rules framed under the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter referred to as the Central Act) shall stand substituted by corresponding terms and conditions by those rules. Under Section 15 of the Central Act the State Government had also framed the Bihar Minor Minerals Concession Rules, 1964. Rule 20 (2) of that Rule authorised the State Government to modify the leases granted earlier. The Supreme Court in the case of Baij Nath Kedia v. State of Bihar (AIR 1970 SC 1436) held that the whole subject of legislation regarding minor minerals was covered by the Central Act and to that extent the powers of the State Legislature stood excluded; as such the proviso to Section 10 (2) and Rule 20 (2) were ultra vires. Faced with this situation, Bihar Land Reforms Laws (Regulating Mines and Minerals) Validation Act, 1969 was passed by the Parliament. The preamble of that validating Act said that it was to validate certain provisions contained in the Bihar Land Reforms Act and the Bihar Minor Mineral Concession Rules "and action taken and things done connected therewith." Sub-section (2) of Section 2 of that Act said, "Notwithstanding any judgment, decree or order of any court, all actions taken, things done, rules made, notifications issued or purported to have been taken, done, made or issued and rents or royalties realised under any such laws shall be deemed to have been validly taken, done, made, issued or realised, as the case may be as if this section had been in force at all material times -- and no suit or other proceeding shall be maintained or continued in any court for the refund of rents or royalties realised under any such laws." It was held:
"......We are fully satisfied that Parliament desired to validate retrospectively what the Bihar legislation had ineffectually attempted. It has used words plain enough to implement its object and therefore the validating Act as well as the consequential levy are good."
About Rule 20 (2) aforesaid it was observed:--
"This sub-rule is made by the Bihar Government purely as a delegate of Parliament, though beyond the scope of the delegation. Therefore Parliament could validate it and has done so. The source of the authority for rule-making being Parliament, it is indubitable that the power to give it life retrospectively exists. Thus the impugned legislation, levy and other actions are good." In my opinion, in this case the provisions of the Validating Act were similar to the provisions of the Validating Act in question. The Electors Rules could not have been made retrospective by the State while exercising the rule-making power. Certainly that can be done by the legislature in exercise of its plenary power. That is the purpose of Section 2 of the Ordinance. Having removed that defect, Sections 3 and 4 of the Ordinance validate the preparation of the supplementary electoral rolls saying that notwithstanding any irregularity or infirmity in relation to the preparation and publication thereof they shall be deemed to have been validly prepared and published and no election held under the Act and the Rules framed thereunder be questioned on the ground of any purported irregularity or infirmity in the preparation and publication of such supplementary electoral rolls. As the aforesaid sections do not purport to validate any executive action or provision of any Rule or Act which either suffered from any legislative incompetence or infringed any Articles of the Constitution, relating to fundamental right, it is difficult to hold that it was beyond the scope of a validating Act.
25. Mr. Prabha Shankar Mishra, learned counsel appearing in one of the writ applications, submitted that the right to get himself enrolled as a voter has been denied so as to attract the provisions of Article 14 of the Constitution. He also urged that by an executive action, Article 14 can be violated. Reference was made to the case of Smt. Maneka Gandhi v. Union of India (AIR 1978 SC 597). It is difficult to accept this contention. Merely because the name of a person has not been registered as a voter, it will not amount to discrimination within the meaning of Article 14. This may be the result of carelessness on the part of the authorities concerned, but shall not necessarily amount to discrimination.
26. Learned counsel also submitted that Sections 3 and 4 of the Ordinance not only purport to validate the supplementary electoral rolls on the basis of which the elections have been held, but also the electoral rolls which are to be prepared in future. This argument has been advanced on the basis that there is no specific mention in the Ordinance in question that the electoral rolls prepared in the year 1978 were being validated. In my opinion, on the basis of preamble as well as Sections 3 and 4 it can be held that the Ordinance purports to validate the supplementary electoral rolls which have already been prepared and published. The preamble says, "It is necessary for him to take immediate action to validate the supplementary electoral rolls prepared and published." Even in Sections 3 and 4 the words used are "prepared and finally published". Learned Advocate General also conceded this position that those sections do not contemplate to validate any supplementary electoral roll to be prepared in future. In my opinion, in view of the mandate contained in Sections 3 and 4 of the Ordinance in question it has to be held that the elections in question can-
not be challenged on the ground of any irregularity or infirmity in relation to the preparation and publication of the supplementary electoral rolls.
27. It was then submitted on behalf of the petitioners that while conducting the elections the mandatory provisions of the Election Rules have not been followed, and, as such, those elections are vitiated. In support of this contention reliance was placed on a Bench decision of this court in the case of Bharosa Singh v. Sheo Baran Singh, 1964 BLJR 455 : (AIR 1964 Pat 500). It was also urged that when the whole election is challenged by petitioner on the ground of contravention of the mandatory provisions of the Rules, this court can quash such elections in exercise of its writ jurisdiction. This aspect of the matter was examined by a Full Bench of this court in the case of Dilip Kumar Singh v. State of Bihar (AIR 1971 Pat 65). The Full Bench noticed most of the earlier decisions of this court where in exercise of the writ jurisdiction, Gram Panchayat elections had been quashed. Having noticed those decisions after taking into account Section 84-B of the Act and Rule 70 of the Election Rules which provide that no election held under the Act or the Rules made thereunder shall be called in question in any court except by an election petition, it was held (at p. 79):--
"..... that after a Gram Panchayat election has been held, if the petitioner does not avail of the alternative remedy of filing the election petition before the Election Tribunal, this court ought not to interfere merely on the ground that there has been some illegality or irregularity in conducting the election."
It was also pointed out that the expression "any sufficient cause" used in Rule 82 was wide enough to include even the grounds which have not been specifically mentioned in Rule 74. In the case of K. K. Srivastava v. Bhupendra Kumar Jain (AIR 1977 SC 1703) it was observed (at p. 1704):--
"It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.........
There is no foundation whatever for thinking that where the challenge is to an 'entire election' then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise."
In my opinion, the position has become all the more difficult in view of Sub-clause (3) of Article 226 which was introduced by the Constitution (Forty-second Amendment) Act, 1976, I have already held that there is no question of challenging the elections on the ground of infringement of any of the fundamental rights; as such, it amounts only to redress of an injury by reason of contravention of the provisions of the Art and the Rules framed thereunder. To such cases Sub-clause (3) of Article 226 is a bar, there being an alternative remedy. In this view of the matter, I do not consider it necessary to examine the individual writ application to find out whether there are merits in the allegation regarding contravention of the different rules while conducting the elections. Such allegations could have been looked into and examined only by the Election Tribunal constituted under the provisions of the Act and the Rules. We are informed that Rule 70 of the Election Rules has been recently amended and an appeal has been provided to the District Judge against any order passed on the election petition challenging the election of the office-bearers of the Gram Panchayat.
28. In the result, all these writ applications are dismissed. In the circumstances of the case, however, there will be no order as to costs.
B.S. Sinha, J.
29. I agree but in deference to learned counsel who argued the writ petitions I wish to make certain observations.
30. Section 4 of the Bihar Panchayat Raj Act, 1947 as amended by Ordinance 5 of 1978, has been quoted in the judgment of my learned brother. This amended section has been attacked on various grounds. It has been submitted that the amended Section 4 is in conflict with Section 2 (a) of the Bihar Panchayat Raj Act which defines an adult to mean a person, male or female, who has completed his or her 21st year of age. It has been said that in view of the definition of adult, as prescribed, persons below 21 years of age could not have been given the right to vote in the Gram Panchayat Elections. Section 4 of the Bihar Panchayat Raj Act as made in 1947 read as follows:
"Membership of Gram Panchayat:--Every Gram Panchayat shall consist of all adults ordinarily residing in the village or villages or part of a village for which the Gram Panchayat has been established, and they shall continue to be members of the Gram Panchayat, until they the or cease to reside in such village or villages or incur any one of the following disqualifications, that is, if he or she........."
I have not quoted the remaining provisions of this section as they are not relevant for our purposes. By going as they are through it, it will be seen that every Gram Panchayat consisted of all adults ordinarily residing in the village or part of a village of which the Gram Panchayat has been established and it was in that background that the definition for adult was provided in Section 2 (a). However, as pointed out by my learned brother, the aforesaid section was substantially amended in 1933 itself by Section 2 of Act XVI and the word adult was excluded. As such the definition as given in Section 2 (a) has become redundant and it is no longer permissible to circumscribe or interpret the meaning of the amended Section 4 of the Bihar Panchayat Raj Act by reference to a definition.
31. The validity of amended Section 4 was also challenged on the ground that it destroyed the basic concept of the Constitution. It is said that the source of power for making the law on the subject, is to be found in items 5 of list 2 of the 7th Schedule of the Constitution and, therefore, by necessary implication, is "for the purposes of local self-Government". Local Self-Government is a Government by the people elected by adult suffrage and the concept of adult suffrage is itself provided in Article 326 of the Constitution and, therefore, when a provision is made for people below 21 to vote it is beyond the legislative competence of the legislature as provided in Hem 5 of list 2 of the 7th Schedule. The basic concept of the Constitution was stated in the very well known case of His Holiness Keshavananda Bharti (AIR 1973 SC 14-61) where Chief Justice Sikri formulated the basic structure to be the following features: (1) Supremacy of the Constitution, (2) Republican and democratic forms of Government, (3) Secular character of the Constitution, (4) Separation of power between the Legislature, the Executive and the Judiciary and (5) the Federal character of the Constitution. It cannot be said that by widening the franchise by Ordinance 5 of 1978, the legislature has infringed any of these basic features of the Constitution. Article 326 cannot be of any assistance in determining the scope of Section 4 of the Bihar Panchayat Raj Act inasmuch as provision is made there for those who will be entitled to vote for the appropriate legislatures, namely, the State Legislature and the Union Parliament. If the law making authority has considered it desirable to further broaden the franchise and give voting rights to persons who have attained the age of 18 for elections at the village level, no exception can be taken to it. Reliance placed for the definition of infant as found under the laws of England is misplaced inasmuch as the extent of franchise is a matter for the competent law making authority to decide. Therefore, in my opinion, it cannot be said that amended Section 4 is ultra vires of item 5 of list 2 of the 2nd Schedule read with Article 246 (2) of the Constitution as it offends the basic structure of the Constitution.
32. The submission that the aforesaid provision is ultra vires of Article 254 read with items 1, 2, 3, 11 (a) and 13 of list 3 of the 7th Schedule inasmuch as it is in conflict with existing law is also not tenable. For the meaning of 'existing law' reliance was placed on Article 366 (10). However Section 6 of Ordinance 5 of 1978 which has amended Section 4 of the Bihar Panchayat Raj Act reads as follows:--
"For Section 4 of the said Act the following section shall be substituted and shall always be deemed to have been substituted, namely, thereafter the amended Section 4 has been engrafted." By the use of the word shall 'always be deemed to have been substituted' it is clear that the effect of this amendment is that Section 4, as it stands now, will be deemed to have been in existence since its very inception.
33. It cannot be said that this amendment is repugnant to any union law.
The question of repugnancy as provided under Article 254 of the Constitution only arises when two conflicting laws operate in the same field -- one made by the Union Parliament and the other made by the State Legislature with regard to a subject which is to be found in the concurrent list. Section 4 of the Bihar Panchayat Raj Act, therefore cannot be repugnant to the provisions of the Representation of the People Act, 1950 inasmuch as neither of them operate in the same field nor do they deal with a subject enumerated in the concurrent list. The Representation of the People Act deals with election to the Union Parliament and the State Legislature and the Bihar Panchayat Raj Act relates to elections of Gram Panchayat.
34. This leads me to another argument advanced on behalf of some of the petitioners which was that the amended Section 4 is ultra vires inasmuch as the sanction of the President has not been obtained. It is true that the Bihar Panchayat Raj Act, 1947 was assented to by the Governor General of India. For the purposes of the case before us it is not necessary to consider whether the Bihar Panchayat Raj Act is completely covered by entry 5 of list 2 of the Constitution or by entry 13 of list 2 of 7th Schedule of the Government of India Act, 1935. Even if it is assumed that the aforesaid enactment partly deals with other entries in the concurrent list, for example, entries 1, 2, 3, 11 (a) and 13 of list 3 of the 7th Schedule of the Constitution and other entries 1, 2, 4 etc. of list 3 of the 7th Schedule of the Government of India Act, 1935 it cannot be disputed that Section 4 of the Bihar Panchayat Raj Act is completely covered by entry 5 of list 2 of the 7th Schedule of the Constitution. In that view it was not necessary to obtain the concent of the President of India when that section was amended. In this context it may also be pointed out that when Section 4 of the Bihar Panchayat Raj Act was substantially amended by Section 2 of Act XVI of 1963 the sanction of the President was not obtained. Hence the amendment cannot be challenged on the ground that the President has not assented to it.
35. The validity of Ordinance 57 of 1978 which has been quoted, in extenso, in the judgment by my learned brother, has been challenged on the ground that the validation was beyond the legislative competence of the law making authority. A validating law by its very nature validates something which needs validation. In other words, the validation relates to something which was invalid and not in accordance with law. Validation is either of a statutory law or it can be even of executive action which was not warranted by law. In the cases before us the validation relates to the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 which was published on 21st March, 1978. Rule 1 (2) of the said Rules has been declared to be ultra vires in the judgment of my learned brother which, however, as pointed out by him, is academic inasmuch as the aforesaid Rules have been validated by Section 2 of Ordinance 57 of 1978. The effect of the aforesaid provision is that by the process of antedating the legislature has validated the aforesaid Rules from 1st February 1978.
36. Sections 3 and 4 of Ordinance 57 of 1978 prohibit an enquiry by any court or authority with regard to the preparation of the supplementary electoral rolls as prepared in 1978 on account of any irregularity or infirmity. It cannot be said that prohibiting any enquiry with regard to any purported irregularity or infirmity in the preparation and publication of the supplement to the electoral rolls for the year 1978 was beyond the legislative competence of the law making authority.
37. Lastly in some of the writ petitions the elections have been challenged on the ground that the postponement of the date of poll and the consequential fixation of another date was beyond the power of the Dist. Magistrate under Rule 91 of the Bihar Panchayat Rules, 1959 and in any case the dates for the postponed polls were not fixed by the Election Officer. It was also urged that the power of postponement did not include the power to hold the elections before the date of poll as announced in the election programme. It was further argued that because of the violation of the rules the whole election was being challenged and hence the petitioners were entitled to seek redress in this court in the exercise of its writ jurisdiction. It is settled law that while the powers of the High Court under Article 226 are wide, still there are well settled limitations, one of which is that where there is an appropriate or equally efficacious remedy, the High Court will not act under Article 226. This limitation, which has been usually followed by this court, is now engrafted in Article 226 clause (3) of the Constitution. Therefore, the aforesaid grievance made by some of the petitioners are matters which can be looked into by the Election Tribunal. No relief can be given to the petitioners merely because the whole election is challenged as in the words of Mr. Justice Iyer, in the case of K. K. Shrivastava v. Bhupendra Kumar Jain (AIR 1977 SC 1703) "...... it is perfectly clear that merely because there is a challenge to a plurality of returns of elections, therefore a writ petition will- lie, is a fallacious argument." His Lordship further emphasised "There is no foundation whatever for thinking that where the challenge is to an 'entire election then the writ jurisdiction springs into action."
S.P. Sinha, J.
38. I agree.
39. Sometimes a legislation is so intriguing and harassing that given the choice, the subject will opt out of it. But all laws demand obedience on pain of sanctions and none, within its purview, dare defy it.
40. During the course of arguments, the legislations in question, besides being attacked on grounds of invalidity, were also attacked on the ground of having been enacted in such huff and hurry that the object which was sought to be achieved by them had remained a mystery; they merely intrigued and harassed the people concerned.
41. I think, it is not necessary nor practicable for a court to analyse the intents of the legislature. All that a court can do is to test the validity of the legislations on the touchstone of legislative competence.
42. I have had the benefit of reading the observations of my learned brothers on this aspect of the matter and I agree with them. There is one aspect on which I may add some observations of my own. This is regarding the effect of Section 2 of Bihar Ordinance No. 57 of 1978 (shortly referred to as the Ordinance) on the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 (shortly referred to as the Rules). By Section 2 of the Ordinance the said Rules "shall be deemed to have come into force on the 1st February, 1978."
43. It may be stated that by Sub-rule (2) of Rule 1, the delegate, without any authority to do so, had made the said Rules applicable with retrospective effect. The Rules were published on the 21st March, 1978, but according to Sub-rule (2) of Rule 1 it "shall be deemed to have come into force on the 1st February, 1978", Then came the Bihar Ordinance 57 of 1978, Section 2 whereof laid that "...... and the Bihar Panchayat (Registration of Supplementary Electors) Rules, 1978 shall be deemed to have come into force on the 1st February, 1978." The Ordinance did not rectify the mistake committed in the Subordinate Legislation of giving retrospective operation to the said Rules, for which admittedly the delegate had no authority,
44. Now, therefore, the argument is that although the legislature had competence to validate an invalid legislation, it could not validate an invalid legislation with the invalidity sticking to it. In such a case, notwithstanding the validation, the legislation would continue to be invalid and any action taken thereunder would be illegal,
45. I must confess, the question raised poses difficulty. If in validating an Invalid legislation, the invalidity is allowed to remain sticking, either the legislature was unconscious of the invalidity or was abdicating its competence to cure the defect. In the latter case the validation would be bad and inoperative, (Vide Shama Rao v. Union Territory of Pondicherry, AIR 1967 SC 1480) but in the former case, if the invalidity is separable, it has to be separated from the valid part of the legislation.
46. I think, the instant case is not one of abdication of its function by the legislature, because had that been so, it would not have felt the necessity of promulgating the said Ordinance. In my view, it is a case of omission to cure the invalidity in the said Rules.
47. Now so far as the invalidity in the Rules is concerned, it is clearly severable from the valid parts. The part which is invalid, if struck down, the valid part remains operative. The invalid part has been rightly struck down on grounds of legislative incompetence of the Rule-making authority. The valid part, therefore, remains operative from the 1st February, 1978 as per the Ordinance.
48. Before I part, I must confess that although I have not let my imagination 'boggle' with the 'inevitable corollaries' of the retrospective legislation, but when I think of the present day propensity of rush and hurry to do something, my imagination certainly shudders at the propensities which may not leave the legislature immune. An ancient saying is that instead of doing today and repenting tomorrow; first conceive, then think, then analyse, then act.