GULABRAO KESHAVRAO DHOLE Vs. PANDURANG BHANJI DHOMNE

JUDGEMENT

(1.) THIS Pull Bench has been necessitated by three election petitions filed by three defeated candidates in an election to the Janapad Sabha, and the question that arises for our determination is with regard to the interpretation and construction of Act I of 1955 passed by the Madhya Pradesh Legislature.

(2.) IT appears that the Nagpur High. Court in a Full Bench decision in Kanglu Baula v. Chief Executive Officer, Janapad Sabha Durg ILR 1954 Nag 875: (. (S) AIR, 1955 Nag 49) (A) took the view that the electoral rolls prepared under the relevant Act under which elections to the Janapadsabha were held were not proper and the elections held pursuant to those rolls were void. In order to get over the effect of this decision an Ordinance was passed, being Ordinance 1 of 1954 and the Ordinance was substituted sub-sequently by Act I of 1955, the Act in question. It is a short Act and Section 3 (1) provides:

(3.) THIS Act has been challenged by Mr. Badkas on three grounds and the first is a very interesting, and if we might say so, a very ingenious ground. The ground is that in passing this legislation the Legislature has not been exercising its legislative function but has been trespassing upon the function reserved under the Constitution for the judiciary. In other words, what Mr. Badkas says is that the legislature has been performing a judicial function, a function which it is not competent to perform. What Mr. Badkas submits is that it is open to a Legislature retrospectively to amend a law, but it is not open to a Legislature to tell the Courts how it shall Interpret a particular law, and according to Mr. Badkas the real, effect of this Act is that although the Nagpur High Court interpreted the Act in a particular manner and came to the conclusion that the electoral rolls were not validly prepared, the Legislature by its mandate orders the Court to interpret the Act in a different way and hold that the electoral rolls were validly prepared. In our opinion, that is really not the effect of this legislation which we are considering. Far from dictating to the Court how it shall construe a particular law or what interpretation it shall put upon a particular law, this Act respects the decision given by the Nagpur High Court and having respected that decision orders that notwithstanding that decision, notwithstanding that the electoral rolls are not properly maintained and the elections are void, the electoral rolls shall be deemed to be Validly prepared and maintained and the elections shall be valid. The use of the expression ''deemed" is very significant. By that expression the Legislature has introduced a legal fiction. The Legislature realised that so long as the decision of the Nagpur High Court stood the electoral rolls were invalid and the elections were void, and therefore by this legal fiction it declared what was void to be valid, find in our opinion in doing so it was exercising its legitimate legislative function. Mr. Badkas says that the proper way to bring about this effect was to have amended the original Act under which the electoral rolls were maintained and the elections were held, and inasmuch as the original Act has not been amended the real effect of this law is to compel the Courts to construe that Act differently from the manner in which it has construed it. It is true that it would have been open to the Legislature retrospectively to have amended the Act, but it was equally open to the Legislature to allow the Act to stand, to allow the interpretation put upon it by the High Court to stand, and to say that notwithstanding the interpretation put by the High Court upon the Act the electoral rolls shall be deemed to be validly prepared and maintained and the elections held to be valid. The distinction between the legislative and the judicial function is well established. The judicial function consists in the Court deciding the rights of parties who appear before it, but the rights are to be determined and decided according to law. The Court must submit to the mandate issued by the Legislature, but it is for the Court to interpret what that mandate is and it is for the Court, pursuant to that mandate to decide what the rights of the parties are. Any Interference by the Legislature in this process would undoubtedly be beyond the competence of the Legislature. On the other hand, the legislative process is for the Legislature to lay down the law which will govern parties and transactions and to direct the Court to give effect to that law, and in passing, this Law the Legislature has directed the Court to consider as valid what in law was void. It is an error to suggest that what we are doing today is construing the original Act which was construed by the Nagpur High Court. If we were construing that Act we would construe it precisely in the same manner in which the Nagpur High Court has construed it. What we are construing today is Act 1 of 1955 passed by the Madhya Pradesh Legislature, and when we construe that Act W3 are faced with this situation that the Legislature has given a mandate to us to consider the electoral rolls under the original Act as valid and the elections he'-d pursuant to that Act as valid, and as Courts function within the law the Courts are bound to accept the law passed by the Legislature, (4) Mr. Badkas has relied on certain American decisions which have laid down that It is not open to the Legislature to pass declaratory law with regard to past transactions by which Courts are called upon to interpret the law differently from what they had already interpreted. In the first Place, as we have already pointed out, on a true reading of the law that we are called upon to interpret, the Legislature has not directed us to interpret any law differently from the way in which we have interpreted it.