Gopal Krishna Sinha vs State of Bihar and Another

Hari Lal Agrawal, J.—The petitioner has filed this writ application for quashing the order contained in the letter dated 21-5-1983 (Annexure 1) issued by the Government of Bihar in the Education Department, communicating to him that the Shrimati Rudhika Sinha Institute an Sach chidanand Sinha Library (for short the ''Institute'' and ''Library'' respectively) having been acquired and vested in the State of Bihar, the petitioner ceased to be the Honorasy Secretary of this institution. A further relief in the nature of permanent injunction restraining the respondents from interfering with the "rights of the trustees of the said institution, has also been prayed. :

The relevant facts are as follows. The Institute and the Library were established by the late Dr. Sachchidaimnd Sinha by a deed of trust dated 10-3-1926, and are popularly known as ''Sinha Library''. The petitioner is the Honorary Secretary of the said trust. The State Government promul gated an Ordinance, namely, Shrimati Radbika Sinha Institute and Saehehidanand Sinba Library (Acquisition and Management) Ordinance, 1983 (Bihar Ordinarie No. 14 of 1983). Undispuledly this Ordinance lapsed on the. I4th of Aug., 1983, but before the lapse of this Ordinance, the second Ordinance dated the 12th August; 1983 was repromulgated containing a saving clause ratifying and validating all the actions taken and orders passed under the previous Ordinance. The second Ordinance, however, also lapsed before the, hearing of this writ application was taken up but the in pugned letter/notice fAnnexure 1) had already been issued to the petitioner on 2-1-5-1983. On. 28-6-1983 the "operation of (he Ordinance" was ordered to "remain stayed" by this Court while admitting the application.

No counter affidavit has been filed on behalf of the respondents, but the argument of the learned Additional Advocate " General, on the other hand, was that although the Ordinance had expired, its effect was enduring and everlasting even after the ex piry.

When the case was''taken up for heaping Mr. Basudeva Prasad, learned counsel or the petitioner, advanced the argument that with the lapse of the Ordinances which were temporary in (nature, under normal rule, all the effects and consequences of the Ordinances automatically came to an end as they did not contain any special provision to the: contrary, and, therefore^ the impugngd notices contained in Annexures 1 and 3 could not be enforced.

The main and the only question, therefore, that has to be considerd in this ease is the effect of the lapse/expiry of the'' Ordinances on the question of takeover of the Institute and the Library. In order to answer the question, the scheme and intention of the Ordinance have to be examined. Section 3 of the Ordinance (which is in Hindi), inter, alia, deals with the ''takeover'' of the management and lays down as follows :

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�1� Jherh jkf/kdk flUgk bUlVhP;wV ,oa lfPpnkuUn flUgk ykbczsjh] iVuk] dk vf/kdkj] gd vkSj fgr bl v/;kns''k ds iz[;kfir gksus dh frfFk ls jkT; ljdkj esa vUrfjr rFkk fufgr gks tk;sxk A

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Section 4 contemplates the consequences of the vesting arid reads as fellows :--

^^4 && fufgr gks tkus ds dfri; ifj.kke %& rRle; izo`r fdlh vU; fof/k esa vUrfoZ"V fdlh ckr ds gksrs gq;s Hkh vksj bl v/;kns''k esa vU;Fkk micfU/kr fLFkfr ds floka; fu;r rkjh[k ls&

�d� vuqlwfpr laLFkku ds lekiu vFkok ifjfu/kkZj.k lEcU/kh dksbZ Hkh dk;Zokgh fdlh U;k;ky; esa ugha pyk;h tk;sxh ;k tkjh ugh jgsxh A

�[k� ^^,djkjukek**] ^^U;kl** ,oa ^^iVVk** ds lHkh micU/k ,oa vuqlwfpr laLFkku ls lEcfU/kr izc`r lHkh lfefr;ka ,oa mi lfefr;ka fujLr gks tk;saxh A

�x� vuqlwfpr laLFkku esa izo`r lHkh fu;e ,oa mi fu;e fofgr inkf/kdkjh }kjk fd;s x;s lalks/ku ds lkFk ;fn dksbZ gksa] rks ykxw gksaxs A

�?k� vuqlwfpr laLFkku esa in/kkj.k djus okyk izR;sd inkf/kdkjh ;k deZpkjh jkT; ljdkj dks vUrfjr gks x;k le>k tk;sxk rFkk og jkT; ljdkj }kjk ;Fkkvo/kkfjr inuke ls jkT; ljdkj dk inkf/kdkjh ;k deZpkjh gks tk;sxk A mldk inuke] inkcf/k] ikfjJfed vkSj lsck ''krZ] tcrd jkT; ljdkj mUgsa ifjorZu u djs] ogh gksxk] tks vuqlwfpr laLFkku ds jkT; ljdkj esa fufgr gksus ds le; Fkh A**

It is under these circumstances that the Deputy Secretary to the State Government wrote the impugned Jetter (Annexure 1) informing the petitioner that he had ceased to remain the Honorary Secretary of the Institution from the afternoon of the 21st May, 1983. To the same effect is another letter (Annexure 3) In both the leters it was categorically stated that the acquisition of the Institute and the Library bad already been done by the Government in terms of the Ordinance. Annexure 3 further stated that the Board of Trustees had stood resolved in view of the provisions contained in Section 4 of the Ordinarce and the Superintendent of Libraries, Bibar, was directed to seal the office of the petitioner immediately.

Reliance has been placed on behalf (if the petitioner on the following authorities in'' support of the contention indicted earlier. Trust Mai Lachmi Sialkoti Bradri Vs. The Chairman, Amritsar Improvement Trust, ''and S. Krishnan and Others Vs. The State of Madras, . At page 409 of Craies on Statute Law (7th edition;) ii has been stated as follows :

''''As a general rule and unless it contains some'' special provision to the contrary, after a temporary Act has expired no proceeding can be taken upon it and it ceases to have any further effect."

The\\above principle as such cannot be disputed, and finds ample support from the various reported authorities that no fresh proceeding can be taken upon after the expiry of a temporary Act; for example Rayala Corporation (P.) Ltd. v. The Director of Enforcement, New Delhi AIR 1970 SC 494 . .In the case of S. Krishnan and Others Vs. The State of Madras, also it was observed that approval under the temporary Act will terminate as soon as the Act expires in the absence of any special provision.

In the, case of a temporary statute, the restriction imposed and the duration of its provisions after the expiration of its terms are matters of construction. . In the absence of some special provisions to the contrary,'' after a temporary Act expires, no proceeding can be taken upon it and it ceases to have any further effect. Consequently an offence committed, against a temporary Act must be prosecuted and punished before the Act expires and on its expiry any proceeding which bad been taken against a person will ipso facto terminate. The cases cited by Mr. Basudeva Prasad are on this line. ''The decision in Trust Mai Lachmi Sialkoti Bradri Vs. The Chairman, Amritsar Improvement Trust, (supra), does not" carry the case of the petitioner beyond that But once a person has been convicted-and sentenced it is altogether immaterial whether the Act under which the order of the Court was based expires or is subsequently repealed; the continuance of the punishment is by virtue of the orders of a competent Court. The person punished before the expiry of the temporary Act cannot be ''dis-punished'' on its expiry (see Rampalsingh and Others Vs. Emperor, . Crates himself at page 409 of the said book has said as follows :

"The difference between the effect of the expiration of a temporary Act and the repeal of a perpetual Act is pointed out by Parke B in Steavenson v. Oliver 1841 151 ER 1024. There is a difference between temporary statutes and statutes which are repealed; the latter (except so far, as they relate to transactions already completed 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."

Proceeding further at page 410 Craies has referred to cases where the expiry of an Act could not affect its operation as to things previously done or omitted to be done, and where "expiration did not affect the liability to punishment under , the statute or the prosecution of legal proceedings for the purpose of inflicting that punishment. i.e., rights acquired under an Act would not expire after its expiration". I however do not propose to all those cases and unnecessarily lengthen the judgment The Supreme Court in the case of State of Orissa Vs. Bhupendra Kumar Bose, has very clearly dealt with this proposition. There in order to validate the elections of the Cuttack Municipality an Ordinance was promulgated validating the electoral rolls as well as the election. The Ordinance, however, lapsed. It was contended that after the lapse of the Ordinance, the invalidity of the election which had been cured by the Ordinance revived on its expiry. The Supreme Court overruled this contention and held as follows (at p. 955):

"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 Court was dealing in the case of Steaveason and they must be hold to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the order of the Court declaring the election to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected municipality would be governed by the relevant provisions of the Act, and would not come to an end as soon as the Ordinance expires."

In the case before us, no doubt, the Ordinance has expired but under, its very scheme and provisions the act of acquisition and vesting of the Institute and the Library was complete and its effect was of an enduring nature and must, therefore, continue even thereafter. I find fuil support for this view from the case of the State of Orissa Vs. Bhupendra Kumar Bose, .

In this Court also on two earlier occasions somewhat similar questions fell for consideration recently. Firstly in the case of Ram Nagina Singh and Others Vs. S.V. Sohni and Others, the question was as to whether the appointment of the Lokayukt made under the Bihar Lokayukta (Second) Ordinance (54 of 1973) lapsed with the expiry of that Ordinance. On construction of the Ordinance it was held that "there was contrary intention in the Ordinance itself. Section 5 ........ contemplates appointments for five years, enduring even after the expiry of the Ordinance. The right so created cannot be taken away because the law which created it had expired".

Then again in the case of Mrs. Manjita Srivastava v. The Chancellor, 1982 BBCJ 615: 1982 Lab 1C 1698, the question was as to whether after the repeal of the Bihar State Universities Ordinance, 1974, the rights created, acts done or actions taken were saved as it was held that para 2 of the notification laid down that the decisions of the University bodies and the provisions of the Statutes, Ordinances, Rules and Regulations of the University, unless specifically made for the B. I. T., shall, as before, be not applicable to B. I. T. Thus, "even under the 1974 Ordinance, the B.I.T. continued to be an autonomous institution and to be governed by its own statutes. The deletion had, therefore, no adverse effect on the status of the B. I. T. Even it be held that the autonomous status of the B. I. T. came to an end as a result of the deletion, autonomy was created under the 1974 Ordinance". The position, therefore remained the same.

From the foregoing discussions, I reach to the conclusion that since the transaction of acquisition of the Institute and the Library was completed on the promulgation of Ordinance No. 14 of 1983 at once the rights that were acquired in the absence of any express provision to the contrary, will not be affected by the mere fact that the said Ordinance or its successor Ordinance ceased to be in force. In other words, an enduring or vested right created by a temporary statute cannot be taken away merely because the statute creating it had expired.

The irresistible consequence that follows from the above discussions is that this application must fail and is hereby dismissed, but in the circumstances, however, I shall leave the parties to bear their, own costs.

S.H.S. Abidi, J.

I agree.