Case No: Civil Appeal Nos. 73, 74 and 124 of 1981
Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Advocate: Mr. Moinul Hosein,Mr. B. Hossain,MR. SR Pal,Mr. K. A. Bakr,,
Citation: 34 DLR (AD) (1982) 321
Case Year: 1982
Appellant: Mofizur Rahman Khan
Respondent: Government of Bangladesh
Subject: Interpretation of Statute, Constitutional Law,
Delivery Date: 1982-3-10
Kemaluddin Hossain CJ
Fazle Munim J
Ruhul Islam J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Mofizur Rahman Khan
…………………...Appellant (In Civil Appeal No. 73 of 198)
Govt. of Bangladesh
Govt. of Bangladesh
………………….Appellants (In Civil Appeal No. 74 of 1981)
Mofizur Rahman Khan
Govt. of Bangladesh
…………... Appellant (In Civil Appeal No. 124 of 1981)
March 10, 1982.
Constitution — it’s interpretation
K.Hossain, C.J. — Constitution should be interpreted as an organic instrument keeping its dynamic character in view. More specifically regard may be had to the political, social and economic conditions and their place in the historical setting and the present international milieu. The decisions of courts of other jurisdiction will serve as a helpful guide, but never an authority. ...............… (3)
Constitution of Bangladesh, 1972
Article 31 & 35
Law affecting a citizen’s right must be according to law, under the authority of law— Distinction between “in accordance with law” and “in accordance with the law in force at the relevant time.” Action invalid not being in accordance with law can be validated with retrospective effect— Exception provided in Article 35.
Cases Referred To-
Dr. Nurul Islam Vs. Govt. of Bangladesh, (1981) 33 DLR (AD) 201—United Province V. Atiqa Begum AIR 1941 F.C. 16; Shri P.C. Mills V. Broach Municipality AIR 1970 S.C. 192; I. N. Saksena V. State of Madhya Pradesh AIR 1976 S.C. 2250; Tofazzal Hussain V. Prov. of E. Pakistan (1963) 15 DLR (SC) 139; Sudashid Prakush V State of Oiissa AIR 1956 S.C. 432; M/s West Ramnand V. Madras E.D. Co. AIR 1 52 (SC) 1753; State of Mysore V. Acholah Chetty. AIR 1969 (SC) 477; Indira Gandhi V. Rajnarain AIR 1975 (SC) 2299; Hori Singh V. Military Estate Officer AIR 1972 (SC) 2205; Kanta Katuria V. Manik Chand, AIR 1970 S.C. 694; Piere Dusadh V. King Emperor (F.C.) 1; Dy. Commissioner, Kainrip Vs. Durganath AIR 1961 S.C. 394; Municipal Corp. City of Abmadabad Vs. New S.S. & Wag Ld. AIR 1970 (SC) 1292; Farzand Ali V West Pakistan (1970j 22 DLR (SC) 208; Sai Md. vs. W st Pakistan PLR (1958)(SC) 181; Millner V. Raita Commonwealth Law Report Vol 66(1942-43): Basanto Co. Ghosh vs. Emperor AIR 1944 (P.C.) 36.
Shaukat Ali Khan, Advocate instructed by A. B. Majumder, Advocate-on-Record—For the Appellant (In C.A. No. 73 of 1981)
Shaukat Ali Khan, Advocate instructed by A. B. Majumder, Advocate-on-Record—For the Respondent(In C.A. No. 74 of 1981).
KA, Bakr, Attorney-General, with A.W. Bhuiyan, Deputy Attorney General, instructed by B, Hossain, Advocate-on-Record.—For the Respondents (In No. C.A. 73 of 1981)
KA, Bakr, Attorney-General, with A.W. Bhuiyan, Deputy Attorney General, instructed by B, Hossain, Advocate-on-Record- For the Appellants (In C.A. No. 74 of 1981 and in C.A. 124 of 1981).
Moinul Hussain, Advocate, with Joynal Abedin, Advocate, instructed by Syed Sakhawat AH, Advocate-on-Record.—For the Respondent (In C.A. No. 124 of 1981).
S.R. Pal and Syed Ishtiaq Ahmed, Senior Advocates— Amicus Curiae.
Civil Appeal Nos. 73, 74 and 124 of 1981
(From the Judgment and Orders dated 27.6.1980 and 27.5.1981 respectively passed by the High Court Division in Writ Petition Nos. 1978 and 103 of 1980.)
Kemaluddin Hossain CJ.
1. While concurring with the conclusion arrived at on the appeals by my, learned brother Shahabuddin Ahmed, J., I think it appropriate to make some observations of my own on the constitutional question of validation of an invalid law, struck down earlier as repugnant to a Fundamental Right. In this particular case section 9 (2) of Public Service (Retirement) Act (Act XII) of 1974 was struck down owing to its repugnancy to Articles 27 and 29 of the Constitution. The question is whether the validation of the said section and the action under the invalid law sought to be validated under the present law is constitutionally valid. The Public Servants (Retirement) (Amendment) Ordinance (No. VI of 1981) of 1981 has been given retrospective operation in seeking the revalidity of the earlier law. The infirmity which led to the invalidity of the earlier section has been removed by insertion of the phrase 'public interest’ and that has been made retrospective giving it a retrospective operation. Parliament has further added section 5, which attempts to validate the action taken under the earlier repugnant section.
2. Decision has already been given. Now while agreeing with the conclusion, some general observations of mine is called for, It Is first to be observed that Bangladesh Parliament by virtue of Article 65 has plenary or supreme legislative power conferred upon it, and this power is exercisable subject to the Constitution The Constitution puts two bars on the legislative power of the Parliament, one is that Constitution being the supreme law of the State any other law inconsistent with it, shall to the extent of inconsistency be void The second is set out in the Fundamental Rights Chapter or Bill of Rights Chapter. Article 26 at the beginning of the Chapter of Fundamental Rights, says that all existing laws inconsistent with the Fundamental Rights shall, on the commencement of the Constitution, to the extent of inconsistency, become void, and the State shall not make any law Inconsistent with the Fundamental Rights, and any law to made shall to the extent of the consistency be void.
3. Before entering into this question, I will refer to some of the decisions from a long string of cases cited at the Bar. They are: United Province vs. Atiqa Begum, A.I.R. 1941 F.C. 16; Shri P.C. Mills vs. Broach Municipality, AI.R. 1970 S.C 192; U. N, Saksena Vs. State of Madhya Pradesh, A.I.R, 1976 S C 2250; and Tofazzal Hossain Vs. Province of East Pakistan, 15 D.L.R, (S.C), 139. I will, however, refrain from making any lengthy discussion on the cited decisions. Constitution should be interpreted as an organic instrument keeping its dynamic character in view. More specifically regard may be had to the political, social and economic conditions and their place in the historical setting and the present international milieu. The decisions of courts of other jurisdiction will serve as a helpful guide, but never an authority.
4. Keeping this principle in view, it is to be observed that Parliament is the supreme legislative authority subject to the constitutional limitations set out earlier. One of the attributes of legislative supremacy in its power to pass any law on any subject, not prohibited by the Constitution both prospectively and retrospectively It can equally validate, subject to the Constitution, any law earlier found invalid either prospectively or retrospectively. We should concentrate here more on the question of power of Parliament to validate a law foiled or declared incompetent by a Court of law. Parliament has the power to validate a law declared by a Court illegal by removing the cause of illegality or infirmity. The basic condition of validation is that Parliament must possess the power to legislate on the subject and having the legislative competence Parliament can validate a law by removing the infirmity and, in so doing, his the power of giving it a retrospective operation, prospective operation always being presumed.
5. The validity of a validating law is to be judged by three tests. The first is to see whether Parliament is clothed with the legislative power on the subject. The second is whether by validation, Parliament has removed the defect which the Court had found in the earlier law. And thirdly, whether the validating law is consistent with the provision of the Constitution. When all the three test have been fulfilled, the validation law may operate retrospectively, if Parliament so expresses it in the validating enactment. The invalidity of a law may be owing to some legislative in competency or to its repugnancy to any of the fundamental rights and they can be cured in the manner set out above.
6. A question may and does arise in some cases on the success of the attempt of Parliament to validate an action taken earlier under the invalid law. It is to be observed that it is a settled principle of interpretation taut the power of legislature to validate an invalid legislation carries with it the ancillary power of validation of executive orders or actions, but like the validation of law, the latter ancillary power is subject to the Constitution. It is another canon of interpretation that granted the legislative competence, it is not sufficient to declare that the decision of the Court shall not bind, for that amounts to reversing the decision and is the exercise of judicial power which the legislature does not possess. It cannot by validating a law promulgate a legislative decision, although the line of demarcation may not be clear in all cases. A Court's decision always binds, unless the conditions on which it is founded are so fundamentally altered that the decision could not have been given in the altered circumstances, and thus render the Court's decisions ineffective. Ordinarily, a Court holds a law to be invalid because the power to enact such law is wanting, or it does not sufficiently create the jurisdiction. Validation of a law so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the law made competent. It may be done by providing for jurisdiction, where jurisdiction had not been properly invested before. Sometimes this ii done by re-enacting it retrospectively and then by fiction making the action already taken to attend under the re-enacted law, sometimes the legislature gives its own meaning and interpretation of the law under which the order or action was taken, and by legislative mandate makes the new meaning binding upon Courts. The legislature may follow any one method or all of them and while it does so, it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted, it must be within the competence or the legislature and the language adequate to attain the object of validation. If the legislature has fie power over the subject-matter, it can at any time make such a valid law and give it a retrospective operation so as to bind even past transactions, subject to the limitation set out herein.
7. So, if the earlier action taken under the invalid law was incompetent because the law itself was invalid, there may be cases where by validating the law retrospectively the action itself becomes competent with it and no further validation of action is needed. There may, however, be cases where earlier action was taken on several grounds, one such being on invalid law, then an express wording with re-operation is called far to validate such action, but it can be done within certain limitation. Only that part of action can be validated, if it is consistent with the validated law and opt otherwise, it is, however, to be observed that endeavour of (he Court will be to protect the legislative competency and the attempt of Parliament to validate past actions, so far as canon of judicial interpretation of legislative power under the Constitution permits.
Fazle Munim J.
I fully agree with the reasonings and the conclusion of my learned brother Shahabuddin Ahmed, J.
R. Islam J.
I also agree with the reasonings and the conclusion of my learned brother Shahabuddin Ahmed, J.
Badrul Haider Chowdhury. J.
I concur with the reasonings and the conclusions of my learned brother Shahabuddin Ahmed, J.
Shahabuddin Ahmed J.
These three appeals by special leave arises out of orders of retirement of two Government Servants under Section 9(2) of ACE XII of 1974. They have been heard together since some common questions of law are involved therein and this judgment will dispose of them all.
8. In Civil Appeal No. 73 of 1981, appellant Mofizur Rahman Khan was acting as Deputy Director, Civil Aviation, Government of Bangladesh at the relevant time. By an order dated 16 June, 1978 the Government, in the Ministry of Civil Aviation, retired him from service on completion of 25 years of service under section 9 (2) of the Public Servants (Retirement; Act, 1974 (Act XII of 1974) and he was allowed pension and other benefits except leave preparatory to retirement. He challenged the order of retirement by filing a Writ Petition, No. 1033 of 1978, contending that the order was malafide, that it was a punishment which was imposed without hearing him, that section 9(2) of the said Act wag violative of Articles 29 and 27 of the Constitution in that it clothed the government with naked and unguided direction in the matter of selecting a person for retirement. The Government contested the petition denying the allegation of malafide and maintaining the constitutional validity of section 9(2) of the Act. The High Court Division upheld the order or retirement, but in respect of leave preparatory to retirement which was refused under section 7 of the Act, the High Court Division held it to be ultra vires the Constitution in that it changed the terms and conditions of service of the government servant to his disadvantages. The Writ Petition was therefore a slowed in part by the High Court Division by an order dated 27 June, 1980 The appellant, government servant challenged the order of the High Court Division regarding the retirement The government filed Civil Appeal No. 74 challenging the order of the High Court Division in so far as it declared section 7 of Act XII of 1974 ultra vires the Constitution
9. In Civil Appeal No. 124 of 1981 the respondent, Burhanuddin Ahmed, a government servant, was Secretary of the Ministry of Textiles, Government of Bangladesh, when he was retired from service by an order of the Government dated 28 December 1979 under section 9(2) of Act XII of 1974. He challenged the order of retirement by filing a Writ Petition (W. P. No. 103 of 1980) taking almost the same grounds as were taken by the other government servant in Writ Petition No. 1038 of 1978 as mentioned above. This respondent pointed out that the order of retirement was passed years after he had completed 25 years of service and he had only 16 months to attain the normal age of superannuation at 57. He alleged that the order was out and out mala fide passed at the instance of the Minister who victimised him for some reasons which he specifically mentioned in his petition. The High Court Division relying on the decision of this Division in the case of Dr. Nurul Islam, Vs. Government of Bangladesh reported in (1981)33 DLR (AD) 201 held that section 9(2) of Act XII of 1974 was ultra vires the Constitution being violative of Articles 27 & 29 of the Constitution and declared the order of retirement null and void. Government challenged the order of High Court Division in his appeal by special leave being armed with Ordinance No VI of 1981 promulgated on 28 July, 1981 which amended section 9(2) with retrospective effect. This amendment called the Public Servants (Retirement)(Amendment) Ordinance, 1981, brought in some guideline in section 9(2) of Act XII of 1974 providing that the government may retire a public servant from service at any time after he has completed twenty-five years of service 'in the public interest. The amendment also includes a validation clause which provides that not withstanding anything to the contrary contained in any other law or in any judgment, decree, order or decision of any Court all orders of retirement made under the previous section 9(2) shall be deemed to be and to have always been made validly in the public interest as if these orders were made under the amended section. By dint of this amendment the government-appellant contended that the respondent's retirement has been validated and consequently the High Court Division's order is liable to be set aside.
10. Mr. Shaukat Ali Khan learned Advocate appeared for the appellant in Civil Appeal No. 73 of 1981 Mr. Mainul Hosein learned Advocate, appeared for the respondent in Civil No 124 of 1981, while Mr. K. A Bakr learned Attorney-General represented the Government in all the three appeals. Since important questions of public importance relating to interpretation of certain as tides of the Constitution are involved in these cases we invited Mr. S.R. Pal, and Syed Ishtiaq Ahmed, learned Advocates, to assist us as amicus curiae. They, accordingly, appeared and made submissions regarding interpretation of the relevant laws, particularly the validity of the validating enactment. Law as to retirement of government servants on the completion of 25 years of service with full pensionary benefits has been In force for over 60 years in different forms, but the common feature was that the government was required to exercise the power to retire a government servant only in the public interest. The two government servants involved in these appeals were retired by the government after completion of 25 years of service under section 9(2) of Act XII of 1974 which did not contain the provision as to 'public interest' This section (before amendment) reads thus :
The section 9(2) came up for consideration before us in the case of Dr. Nurul Islam which has bean already reported in different law journals, one of which is 1981 B. L. D. (A.D) 140. In that case it was held that section 9(2) was ultra vires Articles 27 and 29 of the Constitution in the absence of any principle or guideline provided thereto for exercising the discretion as to which of the government servants who have completed 25 years of service should be retired. It was, however indicated in that judgment that consideration of 'public interest' might be taken as the minimum principle or guideline for exercising the discretion Eight months after that judgment the amendment was brought about by promulgating Ordinance No. VI of 1981 and the amended provision of section 9(2) reads thus:
Along with this amendment a validation provision has also been added under section 5 of the Ordinance. It reads thus:
11. The purpose of this validation provision is to legalise or validate a retirement which was earlier illegal or invalid under the unamended section of law notwithstanding anything contained in any judgment or order of a Court including the Supreme Court. The learned Attorney" General contends that in view of this validating provision in the Ordinance the impugned orders of retirement to these appeals are and shall be deemed to have been made validly and in the public interest under the new law. The learned Advocates on the other side contend that an act which was once held to be invalid by a Court's order cannot be made valid fund that the Validation law is itself invalid and void, The learned Advocates do not dispute that the legislature got power to make a law giving retrospective effect and also to make a law validating an action which was invalid under a previous law. They are also ready to concede that an action declared invalid by a court on the ground that it was taken under a law which was itself invalid because of lack of legislative competence may be validated enacting a valid law. But they contend that where the contravention of a fundamental right is concerned the legislature cannot pass a law retrospectively validating an action taken under a law which was void because it contravened a fundamental right Mr. Ishtiaq Ahmed has further contended that in view of Article 31 of the constitution every act must be backed by a contemporaneously valid law and in support of this contention referred to the following observation in Coole's Constitutional Limitations, Eighth Edition, P. 381:
12.The learned Attorney-General has, on the other hand, contended that the legislature has got power, within the constitutional limits, to pass any law retrospectively validating an action which was declared invalid by a court, whether the invalidity resulted from lack of legislative competence or from contravention of a fundamental right. Learned advocates have referred to a great number of decisions mainly from Indian jurisdiction in support of their respective contentions.
13. The first case referred to is Sadasib Prakash vs. State of Orissa, A.I R. 1956, SC. 432. Facts are that the Commissioner of Endowments prepared a Scheme to take over for management of certain religious institutions, called 'Muts' under the Orissa Hindu Religious Endowment Act, 1951. The affected Mohantas challenged the Scheme by a Writ Petition c intending that the Scheme interfered with their property-right guaranteed by the Constitution and ultimately got a favourable judgment dated 16 May, 1954 from the Indian Supreme Court which declared the said Act ultra vires being violative of fundamental right to property. Thereafter the Act of 1951 was amended by Orissa Act of 1954 section 79A which retrospectively validated the Scheme settled earlier. The validity of the validating section of this Act was challenged contending that the legislature flouted the decision of the Supreme Court and thereby made inroads upon the judicial powers of the Court. The Supreme Court repelling this contention held section 79A intra vires the Constitution and observed:
14. In M/s. Wast Ramnand vs. Madras Electricity Distribution Company, A.I.R. 1962 (SC) 1753, certain electricity supply undertaking were acquired under Act 43 of 1949, But the acquisition was held invalid by the Supreme Court in that Act 43 of 1949 was found violative of Article 31(1) of the Constitution which guaranteed property rights of citizens. Then this Act was amended by Act 29 of 1954 with retrospective operation and section 24 thereof validated the acquisition made under the earlier invalid Act deeming that the acquisition was made under this Amending Act. The matter again went to the Supreme Court where it was contended that when a law held void because of violation of a fundamental right no action taken there-under could be validated by any subsequent valid law having retrospective operation. This contention was rejected by the Supreme Court which observed:
15. In the case 'Sri Prithi Cotton vs. BB. Municipality A.I.R 1970 (SC) 192. Validity of the Gujrat Imposition of Taxes by Municipalities Validation Act, 1963 was examined. Assessment of tax on lands and buildings made under the Bombay Municipal and Boroughs Act, 1952 was challenged en ground of violation of fundamental rights. The amended law validated retrospectively these assessments deeming them to have been made under the amended law. Question raised was whether the legislature could nullify the decision of a Court. The Supreme Court found the Validation Act intra vires the Constitution and observed:
16. In the case ‘State of Mysore Vs. Achaiah Chetty’, A.I.R. 1969 (S.C.) 477, a similar question wan examined by the Supreme Court. Acquisition of land made under the Mysore Laud Acquisition Act, 1894 was challenged before the High Court which, however, refused to accept the contention, whereupon an appeal was preferred to the Supreme Court and when the appeal was pending the Bangalore Acquisition of Land Validation Act, 1963 was made validating retrospectively all acquisitions made prior to 1962 as if these acquisition were made under the new Act. The Supreme Court held the Validation Law intra vires the Constitution observing that "the supremacy of the legislatures in India, within the constitutional limits of their jurisdiction, is as complete as that of the British Parliament". In Hari Singh vs. Military Estate Officer AIR, 1972 (SC.) 2205.) the constitutionality of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 was considered. This Act retrospectively removed some discrimination resulting from two procedures provided under the Act of 1958. The earlier Act was challenged on the ground that there were two procedures and the choice of either was left to the unguided discretion of the Estate Officer. The Act of 1971 did not leave any such discretion and kept only one procedure alive putting retrospectively the other procedure out of action. The Supreme Court while upholding the constitutionality of this Act observed:
16A. In Indira Gandhi vs. Raj Narain, A.I.R. 1975 (SC) 2299, the question as to how a legislature can render ineffective a decision of a court was considered. A.N. Roy, CJ. observed:
17. In 'Saksena Vs. State of Madhya Pradesh' AIR 1976 (S.C) 2250, the validity of sections 2 and 5 of Madhya Pradesh Act 2 of 1967 were considered.- Facts are that the State Government by a Memorandum dated 28 February 1963, raised the age of superannuation of government servants to 58 years with effect from 1 March 1963 subject to the provision that the Government may retire a government servant after be attains the age of 55 years Necessary amendments of the State Civil Servant Regulations, to be precise FR 56, were to be issued in due course. Accordingly, FR 56 was amended incorporating the provision as to the age of superannuation at 58, but not the provision for earlier retirement at 55. The appellant was retired by the Government when he attained the age 55 under the Memorandum. He challenged toe order of retirement in a Writ Petition under Article 226 of the Constitution and got a favourable declaration on 23 January 1967 that the Order of retirement was invalid as it was not made under the authority of any law. Thereafter, Act 5 of 1967 was enacted on 10 February, 1967 which validated ail retirements made under the Memorandum since 1 March 1963 notwithstanding any judgment, order or decree of any Court. Act 5 provided that anything done or any action taken under the Memorandum shall be and shall always be deemed to have been done or taken under the corresponding provision of this Act as if these rules were in force on the date on which such thing was done or such action was taken. It was contended that the Supreme Court's judgment was overruled by the legislature which overstepped its jurisdiction and it was further contended that the service condition of the appellant was altered retrospectively to his disadvantage by the amendment These contentions were overruled and it was held that the Validation law was quite intra vires in that the legislature had competence over the subject matter, that the legislature removed the defects of the earlier Act as pointed out by the Court and that the Validating law was consistent with the provisions of the Constitution.
18. In Kanta Kathuria vs. Manik Chand Surana A.I.R. 1970 (SC) 694, election of the appellant to the Rajasthan State Legislature was held void as she had "an office of profit" under the state government. To hold office of profit is a disqualification for being so elected. Then Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 196v was made amending the definitions of "disqualification" and ''office of profit" with retrospective effect. Consequently the appellant's disqualification stood removed and her election was saved. In Piare Dusaah vs King Emperor (F.C.) 1 the validity of the Special Criminal Courts Repeal Ordinance (19 of 1943) was considered. By promulgating this Ordinance the Governor General repealed fee Ordinance of 1942. The new Ordinance provided for confirmation and continuance of sentences and retrial of pending cases under the repealed Ordinance. The appellant had been convicted by a Special Criminal Court which, it was found, had no jurisdiction to try the case under the repealed Ordinance. Section 3 (1) of the repealing Ordinance validated his conviction and sentence by conferring retrospective jurisdiction upon the Court. It was contended that the legislature exercised judicial power and as such the Ordinance was invalid. The contention was rejected and it was held that the validation provision of the Ordinance was within the legislative competence and that their validation did cot amount to an exercise of judicial power and the power validation was ancillary or subsidiary to the power to make law.
19. A case from Australian jurisdiction has been cited before us. It is Millner vs. Raith, Commonwealth Law Report Vol. 66 (1942 43) 1. In that case the appellant was tried and convicted for supplying articles of food for use of the Defence Service which were inferior in quality to, and lesser in quantity than, what were specified is his contract. Under the Defence Act, 1903-39, an act such as this, supply of articles of inferior quality or lesser quantity, was an offence if done, fraudulently. This Act of 1903-39 was amended on 4 April, 1941 by the Defence Act of 1941. The amended Act deleted the word 'fraudulently' but added a provision "unless he proves that he supplied the articles without any intent to defraud and that he neither knew n r bad reasonable means of knowing that the article was so inferior in quality or lesser quantity". This amendment was given retrospective operation, that is, it provided that the relevant sections 3 and 4 of the Act (1941) shall be deemed to have corns into operation on 3rd September 1939. The appellants act of defective supply was done some time between September 1939 and April 1941, but by retrospective operation of the law he was held guilty of committing an offence. He challenged the validity of the retrospective operation of the amended law contending that no offence could be committed before April, 1941. His contention was rejected and the amendment with retrospective operation was held valid by the. High Court which made the following observation:
20. As against these cases in which validity of some Validation laws has been upheld, two cases have been cited where Validation law has been held to be ineffective making inroad into judicial powers of the Court. In Deputy Commissioner, Kamrup vs. Durganath Sharma, A.I.R. 1968 (S.C.) 394, the land of the respondent Sharma was acquired under the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955. Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validation) Act, 1960 was passed validating all acquisition of land prior to 1960. This Act, provided that all these acquisitions should be deemed to have been validly made under the Act of 1955. The land owner challenged both the Acts on the ground of violation of Fundamental Rights in Articles 14 and 31 of the Constitution. The High Court accepted the contention and declared both the Acts void. On appeal the Supreme Court upheld the decision of the High Court observing that the 1955 Act was violative of Articles 14 and 31 of the Constitution and that the Validation Act of I960 was not an independent Act, but had validated the acquisitions under the invalid Act. In the Municipal Corporation of the City of Ahmedabad vs. New S.S & Wvg. Co Ltd, AIR. 1970 (S.C) 1292, assessment of tax made under the Bombay Provincial Municipal Corporation Act, 1940 as amended by Gujrat Amendment Act of 196S, Then came the Gujrat Amendment and Validating Ordinance, 1969, section 153A (3) of which validated the collection of the taxes which were illegally assessed. This section provided that notwithstanding anything contained in any judgment of any Court it shall be lawful and shall be deemed always to have been lawful for the Municipal Corporation of Ahmedabad to withhold refund of the amount already collected, in respect of any Property Tax. The Supreme Court declared section 153 (3) of the ordinance ultra vires the Constitution as the legislature cannot ask the Government or the Corporation to disregard or disobey the Court’s decisions. The Supreme Court observed:
21. In 'Basanta Chandra Ghose vs. Emperor A. I.R. 1944 (F.C.) 86, vires of the Restriction and Detention Ordinance (3 of 1944) was considered, It was contended that section 10 of the Ordinance virtually repealed section 491 of the Code of Criminal Procedure, that the direction contained in subjection (2) of section 10 that all pending cases under section 491 Criminal Procedure Code stand discharged was a Judicial Act done by the legislature and that the Ordinance was ultra vires the Governor General. The Federal Court while holding that the Ordinance was intra vires found that section 10 does not repeal section 491 Criminal Procedure Code, but it only interdicts High Court from exercising this power in certain cases. As to the Direction in sub-section (2) the Federal Court accepted the contention that it was a judicial act and not legislative and as such declared section 10(2) void making the following observation:
22. On consideration of these decisions, we find that there is no dispute that the legislature got power to make a law retrospectively and also to validate actions retrospectively. Retrospective validation may also be conferred upon an Act notwithstanding anything contained in any judicial decision, but to make such retrospective validation the legislature must have competence to make law on the subject within the Constitutional limitation. The tests of such validation, besides legislative competence, are that the defect in the previous invalid law has been removed and the Validation law does not contravene any provisions of the Constitution. Again, in conferring retrospective validation of the legislature cannot encroach upon judicial powers of the Court. The legislature cannot reverse or set aside the court's judgment, order or decree but it can render the judgment, order, or decree ineffective by removing their basis. This may be done by making a valid law with retrospective operation and the making an action valid retrospectively by deeming this action to have been taken under the new Act. Retrospective validations were conferred in this way in the cases discussed above accepting the cases reported in A.I.R. 1969 (S C.) 394 and A.I.R, 1970 (S.C) 1970. In these two cases actions previously taken under invalid laws were sought to be validated without making any valid law to support those actions.
23. It has been contended that the validation law in the instant cases runs counter to Article 31 of the Constitution is that the action validated by it was not supported by any contemporaneous law. Article 31 simply provides that every citizen shall be dealt with "in accordance with law". This means that every action affecting a citizen's right must be taken according to law or under the authority of law and not according to whims of the person in authority or under any executive fiat Article 31 does not say that such an action shall be taken in accordance with "any law in force at the time" of taking such action. There is a distinction between ''in accordance with laws'' and "in accordance with the law in force at the relevant time ". If an action is invalid because it was not taken according to any law, it can be validated by making a law retrospectively and the requirement of Article 31 may be satisfied by such retrospective law unless there is any Constitutional provision preventing retrospective operation. Such Constitutional prohibition appears to be contained in Article 35 of the Constitution which provides that "no person shall be convicted of any offence except for violation of a law in force at time of commission of the act charged as an offence.”
Having tested the validity of the Validation provision of the amended section 9(2) of Act XII of 1974 in various ways we find it to be a constitutionality valid legislation.
24. Now the matter for consideration is whether in view of the impugned retirement under unamended section 9(2) having been validated in terms of the new law; there is anything, left for the court to consider in response to the contention that the retirements were not in fact made "in the public interest' in accordance with the amended law. The learned Attorney- General has pointed out that "no such order of retirement shaft be deemed to be illegal or be called in question in any Court'", and has contended that though at the relevant time the phrase ''in the public interest" was not mentioned in the order, but this gap has been supplied by the amended law which provides that all such orders shall be deemed to have been made validly, legally and in the public interest. According to his opinion, the chapter as to validity of these retirement orders is closed. We think, the learned Attorney- General is not wholly correct in faking such a view. For, even in a case where retirement is made under the amended law and the order expressly shows that it has been made in the public interest, yet the court shall have power to see whether the order is in colourable exercise of power or is mala fide or whether it has been made by person by whom it was purportedly made, or the person who made it had authority or jurisdiction to make the order. So, in the case of a section validated by the new law, the Court certainly got power to see that the order does not suffer from any such infirmities. The learned Attorney-General concedes that an act done mala fide is not an act done legally and in spite of the validation law such an eel can be questioned by the Court. But as to whether the order of retirement validated subsequently was done in the public interest, he contends that what is 'public' interest is a matter which is left entirely to the Government to be determined in their subjective satisfaction and the court is not in a position to determine what is public interest by applying any objective test. Reliance has been placed on an observation of Hamoodur Rahman, CJ, in Farzand Ali vs. West Pakistan, (1970) 22 DLR (S.C.) 208; PLD 1970 S.C. 98 the relevant portion of which is quoted below:
25. Learned Attorney-General has also contended that an action taken by Government or public authorities shall be presumed to have been taken bonafide unless the contrary is established by the person complaining of it and in this connection referred to an observation of the Pakistan Supreme Court in Sai Mohammad Vs. West Pakistan, P.L.D. 1958 S.C. 181. The observation is quoted below:
We do not find anything to disagree on these views, but we think that the question as to 'public interest' in respect of the two retirements. In the instant cases is not closed. When these orders were made the law in force at that time did not require that retirements could be ordered only in public interest. Now that these retirements are deemed to have been made in public interest the Government may show us from their record that there were materials showing that these orders were made in public interest, particularly when there is the allegation that the orders were not made in the public interest.
26. Appellant Mofizur Rahman Khan, in Appeal No. 73 of 1981, has alleged that the order retiring him from service was mala-fide and was not made in the public interest. By that order, he alleged he has been victimised by the Director General who was displeased with him since he was promoted to the post of Deputy Director and was trying to gel rid of him, if necessary, by forcibly transferring him to the Ministry. He was appointed as Assistant Aerodrome Officer on June 6, 1962, promoted to the post of Assistant Director on 22 July, 1969 and finally promoted to the post of Deputy Director in September 1975, He did not assign any reasons why the Director-General was displeased and annoyed with him. He further alleged that the Director-General "whispered against him to the Secretary of the Ministry and also to the Minister-in-Charge and thereby poisoned their ears but he did not bring any allegation against the Secretary and the Minister. Government in their affidavit-in-opposition denied the allegation of mala fide and furnished materials showing that he was-retired in the public interest since his efficiency deteriorated to the point of no return." In his Annual Confidential Report for 1975 he was remarked as ''arrogant, obstinate and indifferent, below average, that his contribution to the Department practically nil." Besides these adverse remarks, the Government's affidavit shows that he was generally careless, and negligent in duty, taking no interest in his work on the plea that his remuneration was not adequate, that he killed time in office reading novels and newspapers. He was specifically directed to attend a meeting addressed by Air Commodore Islam but he did not attend it on the excuse that be was not allowed to park his car outside the gate. On another occasion, he was included in a Departmental Promotion Committee but when the business of the Committee started he was found absent and consequently another member was to be picked up in a hurry to proceed with the scheduled work of selecting candidates. It was further alleged that in a Departmental Proceeding he was let off with a warning. Excepting this matter of warning, all other facts as alleged by the Government have been practically admitted by him That his efficiency deteriorated is found to have been practically admitted by him in paragraph 4 of his Concise Statement which is quoted below :
He was transferred from the Directorate of Civil Aviation to the Ministry of Civil Aviation in the same rank and pay, but he was utmost reluctant to be so transferred. We, therefore, find that the authorities had materials before them to be satisfied that his retirement was considered necessary in the public interest. There is nothing to show that his retirement was mala fide.
27. Respondent in Civil Appeal No.124 of 1981 contended all through that his retirement was out and oat mala fide and not made in the public interest. He was appointed to the Customs Service, Government of undivided Bengal in 1946 having been selected by the Bengal Public Service Commission, and while in that service, he successfully competed the Central, Superior Services Examination, and entered the Civil Service of Pakistan in 1950. He held many important posts both before and after Liberation of Bangladesh it eluding the post of Secretary in a number of Ministries, and at the relevant time he was Secretary, Ministry of Textiles. He claimed to have an unblemished record of service all along which claim was not disputed by the appellant Government. On 22 'December 1979 he completed 33 years of service and had only a few months left to attain the normal age of retirement, when the impugned order of retirement was made. He alleged hat on certain official matters the Minister, Establishment Division, got annoyed with him for his candid views. In a meeting of Council of Ministers held in July 1978, he alleged the question of dealing with corruption in public services was discussed; he expressed the view that the main obstacle to eradication of corruption among government servants was government's inability to punish the corrupt officials, end in support of this view cited the cases of an Estate Officer who was removed for committing forgery but was reinstated later on. On another occasion, 15 September 1979, he gave a strong note of dissent to the Ministry's decision to accept tenders for purchase of machineries for the Noakhali Textile Mills at an increased cost of Tk. 133 crore in flagrant disregard of all rules and advice of experts. Again, as senior-most member of the erstwhile C.S.P. Officers in Bangladesh he presided over one of their meetings and fed a deputation to the Vice-President on behalf of these officers who sought redress of their grievances, allegedly became of discrimination in the matter of their promotion. In their affidavit-in-reply Government referred only to the matter of tenders for the Noakhali Textile Mills and contended that in view of some allegations regarding the tenders the President took the decision regarding his retirement. What was the nature of allegation was not stated. Government made a general complaint that some of ''his Annual Confidential Reports contained adverse remarks but did not specify the remarks and the year to which the alleged remarks related. The respondent stoutly denied any adverse remarks having ever been made in his service records of 33 years, Government could not produce any record to show that any such adverse remarks were made or communicated to him. He further alleged that his file was not produced before the President. Appellant could not show the file to us also. In this case there is nothing en record to how that the order of retirement was passed in the public interest. The facts referred to be the respondent have gone practically unchallenged. In view of this position the order of pre-mature retirement cannot be taken at an order passed in the public interest in accordance with section 9(2) as it stands amended. Interference with the High Court Division’s order, though it was the for different reasons, is not at all called for.
28. As to the Government's Appeal—Civil Appeal No. 74 of 1981—against the High Court Division's order declaring section 7 of Act XII of 1974 ultra vires the constitution. This section has in the meantime been amended restoring the previous provisions for leave preparatory to retirement. As such this appeal being infructuous is disposed of in these terms, without any cost.
29. In the result, Civil Appeal Nos. 73 and 124 of 1981 are dismissed. No order as to costs.