SYEDNA TAHER SAIFUDDIN SAHEB Vs. STATE OF BOMBAY

JUDGEMENT

(1.) On 28-2-1934, the appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha. On 17-7-1920, the appellant had excommunicated two persons, Tahidbhai and Hasan Ali, and the validity of the order was questioned in a suit instituted in the Court of the Sub-ordinate Judge, Barhampur. The litigation went up to the Privy Council, which held that the appellant as the religious head had the power to excommunicate a member of the community, but that that power could only be exercised after observing the requisite formalities, and as in that case that had not been done, the order of excommunication was invalid. Vide Hasan Ali vs. Mansoor Ali AIR 1948 PC 66 (A).

(2.) Apprehending that the order dated 28-2-1934, was open to challenge under the decision in Hasan Ali vs. Mansoor Ali (supra) on the ground that it had not complied with the requisite formalities the appellant started fresh proceedings, and on 28-4-1948, passed another order of excommunication. Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated 28-2-1934, and 28-4-1948, were invalid and for other consequential reliefs.

(3.) While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949) prohibiting excommunication, and that came into force on 1-11-1949. The plaintiff contended that the effect of this legislation was to render the orders of excommunication illegal. The answer of the appellant to this contention was, firstly, that the Act had no retrospective operation, and that, in consequence, the orders passed on 28-2-1934. and 28-4-1948, were valid, and remained unaffected by it; and secondly, that the Act was itself unconstitutional, because the subject-matter of the impugned legislation was not covered by any of the entries in List 2 or 3 of Seventh Schedule to the Government of India Act, 1935, and the Legislature of the Province of Bombay had no competence to enact the law. After the coming into force of the Constitution, the contention was also raised that the right of the defendant to excommunicate members of the community was protected by Arts. 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.