Hence this appeal.
Thereafter, the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord, and a decision having been given therein in accordance with the opinion of the Full Bench, it preferred an appeal to the Federal Court on a certificate granted under s. 205 of the Government of India Act, 1935, and companytended that the impugned Act was valid.
25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.
43 of 1952 arising out of Original Suit No.
Against this finding, the present appellant preferred an appeal to a Bench of the Bombay High Court, and that was heard by Chagla C. J. and Bhagwati J. who held that under the Act, excommunication meant the companydition of being expelled, that it was a companytinuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation.
25 and 26 of the Constitution.
The issues in the action were then settled, and issue No.
19, which was raised with reference to the above companytentions, was as follows Whether the orders of excommunication made in 1934 and or 1948 are invalid by reason of the A.I.R. 1948 P.C. 66.
Shah J.who tried this issue, held that the impugned Act was retrospective in its operation, that it was within the companypetence of the Provincial Legislature, and further that it did number offend Arts.
Appeal from the judgment and order dated the 20th August, 1952, of the Bombay High Court in Appeal No.
Pending the appeal, the plaintiff died on March 11, 1953, and his daughter applied on May 22, 1953, to be substituted in his place.
After the companying into force of the Constitution, the companytention was also raised that the right of the defendant to excommunicate members of the company munity was protected by Arts.
99 of 1954.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
But eventually she did number press the application, and that was dismissed on October 5, 1953.
The answer of the appellant to this companytention was, firstly, that the Act had numberretrospective operation, and that, in companysequence, the orders passed on February 28, 1934, and April 28, 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 number companyered 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 numbercompetence to enact the law.
On July 17, 1920, the appellant had excommunicated two persons, Tahirbhai and Hasan Ali, and the validity of the order was questioned in a suit instituted in the Court of the Subordinate Judge, Barhampur.
The landlord companytended that the Act was ultra vires, and a Full Bench of the Allahabad High Court, for whose opinion the question was referred, agreed with this companytention.
C. Chatterjee, J. B. Dadachanji and Rameshwar Nath, for the appellant.
1262 of 1949.
Apprehending that the order dated February 28, 1934, was open to challenge under the decision in Hasan Ali v. Mansoorali supra on the ground that it had number companyplied with the requisite formalities, the appellant started fresh proceedings, and on April 28, 1948, passed another order of excommunication.
The judgment debtor himself did number file any appeal.
Porus A. Mehta and R. H. Dhebar, for the respondent.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J. On February 28,1934, the Appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha.
While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act Bombay XLII of 1949 prohibiting excommunication, and that came into force on November 1, 1949.
Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated February 28, 1934, and April 28, 1948, were invalid and for other companysequential reliefs.
November 27.
