SYEDNA TAHER SAIFUDDIN Vs. TYEBBHAI MOOSAJI KOICHA

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff for a declaration that two orders of excommunication passed by defendant 1, who is the Head Priest of the Pawoodi Bohra Community, on 28-2-1934, and 28-4-1948, were void, illegal and of no effect, and also claiming damages from defendant 1.

(2.) The matter came before Shah J. who raised two preliminary issues. The plaintiff's contention was that the excommunication was bad in view of the Bombay Prevention of Excommunication Act (Bom. Act 42 of 1949), having come into operation on 1-11.1949. The contention of defendant 1 on that was that inasmuch as the orders of excommunication were passed prior to 1- 11.1949, the Act had no application, and also that the Act was ultra vires inasmuch as it contravened certain provisions of the Constitution. The learned Judge, therefore, raised two issues, whether the-Act was ultra vires and the other was whether the Act was retrospective. The learned Judge's findings on both the issues were against defendant 1. Ho held that the Act applied and also that the Act was not ultra vires. It is from these two findings that this appeal is preferred, and the first question that arises is as to the operation of the Act.

(3.) in order to understand the contention of defendant 1, it is necessary to consider the object of the Legislature in passing this legislation and the language used by the Legislature in giving effect to its intention and object. The Act is described as an Act to prohibit excommunication in the Province of Bombay, and in the Preamble it draws attention to the practice prevailing in certain, communities of excommunicating its members, and it points out that the practice of excommunication results in the deprivation of legitimate rights and privileges of the members of the communities. Then the Preamble emphasises the spirit of changing times and points out that it is expedient to stop the practice of excommunication in the public interest. Therefore, this is the object as set out by the Legislature itself with which this legislation was passed.