Document Fragment View

Matching Fragments

44. In Steavenson the temporary statute expired on 1st August, 1826 but in the meantime a person was given a right to practice as an apothecary. The temporary statute did not contain any savings provision and it was contended that the expiration of the temporary statute would bring to an end all the rights and liabilities created by it. On these broad facts, it was observed by one of the learned judges (Parke, B.) that the construction of the statute would be the determining factor. It was held:

46. In all three cases, on a construction of the temporary statute, it was held that its provisions would not come to an end on its expiry. This Court, on a consideration of the matter acknowledged that proposition and accepted the view taken by Patanjali Sastri J that on the expiry of a temporary Act, all actions and transactions terminate unless the temporary Act provides otherwise. This is clear from the following passage in Bhupendra Kumar Bose:

“It is true that the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras 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 anomalous consequence 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 not be open to the Ordinance making authority to adopt such a course because of the obvious limitation imposed on the said authority by Art. 213(2)(a).” [Emphasis supplied]

48. The English decisions concerned themselves with the construction of temporary statutes and nothing else. Bhupendra Kumar Bose adopted for Ordinances the construction of temporary statutes given by the English decisions and introduced an ‘enduring rights’ theory into our jurisprudence.

49. But, what is more significant for the present purposes is that though this Court accepted the view of Patanjali Sastri J, an observation was made at the end of the above quoted passage, that is, “Incidentally, we ought to add that it may not be open to the Ordinance making authority to adopt such a course [of enacting a savings provision as in a temporary statute] because of the obvious limitation imposed on the said authority by Article 213(2)(a) [of the Constitution].” In view of the above, I see some difficulty in incorporating the ‘enduring rights’ theory into Ordinances.

“67..... The effect of the first Ordinance has been of enduring nature. Whatever the Ordinance ordained was accomplished. Its effect was irreversible. The Ordinance was promulgated to achieve a particular object of taking over the Sanskrit schools in the State including their assets and staff and this having been done and there being no legislation to undo the same which power the legislature did possess, the effect of the Ordinance was of permanent nature. The Ordinance is like a temporary law enacted by the legislature and if the law lapses, whatever has been achieved there under could not be undone, viz., if under a temporary law land was acquired and building constructed thereon, it could not be said that after the temporary law lapsed the building would be pulled down and land reverted back to the original owner”. (Id at pg.683) In this view, rights which had been vested could not be taken away unless the legislature was to enact a law taking them away and re-vesting the property in the managing committee. The rights which had vested in the employees were held to be of an enduring character which, it was held, could not be taken away merely because the Ordinance, like a temporary statute ceased to operate. Justice Wadhwa thus approached the matter in dispute from two perspectives. Firstly, the Ordinance was placed on the same footing as a temporary statute and was held to have created rights of an enduring character that would survive the Ordinance upon its ceasing to operate. Secondly, vested rights created under the Ordinance could, in this view, be reversed only by a fresh legislation enacted by the legislature. The essential difference between the perspectives of the two judges was precisely this: while Justice Sujata Manohar held that all the Ordinances were part of a chain of promulgation and re-promulgation and constituted a fraud on the Constitution, Justice Wadhwa held that it was only the re- promulgation after the first Ordinance that was ultra vires. The first Ordinance was in his view a valid exercise of constitutional power and had created enduring rights which would continue even after the Ordinance ceased to operate. This enduring consequence could only be reversed by legislation.