9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2002 (9) TMI 866 - SC - Indian LawsAssent given by the President under Article 254(2) of the Constitution of India - Ascertain the circumstances in which assent to law made by the State under Article 254(2) of the Constitution given and to hold - qua repugnancy between the State legislation and specified certain law or laws of the Parliament - Word assent - Whether State law prevail over the existing law. HELD THAT - The Preamble of the State Act as notified and published in the Government Gazette contains a declaration that the State Act has received an assent of the President under Article 254(2) of the Constitution. Such declaration of receipt of assent of the President is to be found in the preamble of all Extension Laws passed after coming into force of the Constitution. The provision in Article 254(2) is a substantive provision on the subject of resolving conflict between State and Central Law when both are legislation on entries in Concurrent List. Obtaining and giving assent by the President is not part of any legislative procedure because in the event of conflict between State and Central Law on legislative fields in Concurrent List the subject does not go either to Parliament or to the State Legislature. In the event of conflict between State and Central Law the only legislative activity involved and to be exercised by the President is to give an assent for giving overriding effect to the State Law or withhold such assent to allow Central Law to overriding the State Law in its application to the concerned State. Merely on the basis of the contents of the letters contained in the file summoned and perused by the court it is not possible to ascertain whether there was due application of mind of the President to the repugnancy between the State and the Central Act under consideration before us. It is not possible for the court to probe into the mind of the President why and how he exercised his power of granting of refusing assent under Article 254. In my considered opinion the court cannot go behind the declaration duly notified and published in the Government Gazette containing the text of the State Act with preamble therein stating that it has received assent of the President under Article 254(2). The question whether Central Act in its application to leased and licensed premises of government companies and corporations should be regulated by Central Act to make available to the owners of those premises a summary procedure of eviction or they be governed by State Act with protection extended to occupants on specified circumstances and grounds is a matter purely of legislative wisdom and beyond judicial review. I may also and that State Act of 1947 was an existing law as defined in Clause (10) of Article 366 at the time of coming into force of the Constitution because it was a pre-constitutional law. Explanation III to Article 372 makes it clear that any existing law which was a temporary law in force because of its limited duration would not continue if it had expired before the Constitution came into force. The said existing law which was revived and extended by State Laws made from time to time with or without amendments by the State Legislature after coming into force of the Constitution is a post-constitutional law. The existing law of 1947 and all Extension Laws passed by the State Legislature after coming into force of the Constitution made them all post-constitutional laws and each of them has received assent of the President because of its repugnancy to the Central Act. I do not find it relevant that the Extension Laws passed from time to time were only for the purpose of continuing the existing law or pre-constitutional law of 1947 in the same form. The fact remains that Extension Laws made from time to time to revive State Act of 1947 in its application to the States after the Constitution were legislations of the State Legislature on one of the entries in the Concurrent List and each time because of their repugnancy to the Central Law they were assented to by the President to give them overriding effect. My understanding of the proposals contained in the file is that the assent of the President was obtained each time in a general way by referring to some of the Central Laws covered by the relevant entries in the Concurrent List. Therefore is that the assent of the President to the State Act having been obtained in a general way State Act would prevail over the Central Act. Consequently this appeal and all connected appeals and writ petitions on this point succeed. The impugned order of the High Court of Bombay deserves to be set aside.
Issues Involved:
1. Whether the "assent" given by the President under Article 254(2) of the Constitution of India is limited to the proposal made by the State Government. 2. Whether the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (P.P. Eviction Act) abridges the rights conferred by Article 19(1)(f) of the Constitution. 3. Whether the deletion of Article 19(1)(f) by the Constitution 44th Amendment Act, 1978, affects the enforceability of the P.P. Eviction Act. 4. Whether the Bombay Rent Act, 1947, prevails over the P.P. Eviction Act by virtue of Article 254(2) of the Constitution. 5. Whether it is permissible for a Court to enquire into the circumstances in which assent under Article 254(2) was given. Summary: Issue 1: Assent under Article 254(2) The Supreme Court held that the President's assent under Article 254(2) is limited to the proposal made by the State Government. The State legislation would prevail only for the laws for which repugnancy was pointed out and the President's assent was sought. The proposal by the State is sine qua non for 'consideration' and 'assent'. The Court emphasized that the President's consideration and assent are not idle formalities but require active application of mind to the repugnancy between the State law and the earlier law made by the Parliament. Issue 2: Article 19(1)(f) and P.P. Eviction Act The Court held that the P.P. Eviction Act does not abridge the rights conferred by Article 19(1)(f) of the Constitution. The Legislature has the power to prescribe a summary procedure for evicting tenants or unauthorized occupants. The Court noted that the summary procedure under the P.P. Eviction Act is reasonable and in conformity with the principles of natural justice. Issue 3: Deletion of Article 19(1)(f) The learned senior counsel did not press this contention during the hearing, and hence, it was not required to be dealt with further. Issue 4: Bombay Rent Act vs. P.P. Eviction Act The Court held that the Bombay Rent Act does not prevail over the P.P. Eviction Act. The assent of the President was sought for the repugnancy between the Bombay Rent Act and specific Central laws like the Transfer of Property Act and the Presidency Small Cause Courts Act, not the P.P. Eviction Act. Therefore, the P.P. Eviction Act would prevail over the Bombay Rent Act. Issue 5: Judicial Review of Assent The Court held that it is permissible to look into the proposals made by the State for obtaining the President's assent to determine whether the assent was given for specific laws. The Court clarified that this does not mean questioning the validity of the assent but merely understanding the scope of the assent given. Conclusion: The appeals were dismissed, and the Court upheld the validity of the P.P. Eviction Act. The writ petitions challenging the vires of certain provisions of the P.P. Eviction Act were also dismissed. The Court emphasized the importance of the President's assent under Article 254(2) and the necessity for the State to clearly specify the repugnancy for which assent is sought.
|
