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2002 (9) TMI 866 - SUPREME COURT

2002 (9) TMI 866 - SUPREME COURT - 2002 AIR 3404, 2002 (2) Suppl. SCR 555, 2002 (8) SCC 182, 2002 (7) JT 339, 2002 (7) SCALE 95 - Civil Appeal No. 2555 of 1991 - Dated:- 25-9-2002 - G.B. PATTANAIK, M.B. SHAH, DORAISWAMY RAJU, S.N. VARIAVA AND D.M. DHARMADHIKARI. JUDGEMENT Shah, J. 1. Short but important question involved in these matters is- whether the "assent" given by the President under Article 254(2) of the Constitution of India with regard to the repugnancy of the State legislati .....

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ld be deemed to be an assent qua all earlier enactments made by the Parliament on the subject. 3. This contention is negatived for the reasons recorded hereinafter. It is held that consideration by the President and his assent under Article 254(2) is limited to the proposal made by the State Government; the State legislation would prevail only qua the laws for which repugnancy was pointed out and the 'assent' of the President was sought for. Proposal by the State is sine qua non for ' .....

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and 19(1)(g) of the Constitution of India. It was further contended the having regard to Article 254(2) of the Constitution of India, provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act") would prevail over those of the P.P. Eviction Act. The contentions raised by the appellant were rejected by the High Court and the Court upheld the validity of the P.P. Eviction Act. The Court after elaborate discussion nega .....

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iction Act specifically empowering government companies and statutory corporations to evict their tenants through the summary procedure provided therein took away or abridged the rights conferred by Article 19(1)(f) of the Constitution and was, to that extent, void from its inception?. Note: In Municipal Corporation of Greater Bombay v. Lala Pancham of Bombay and Ors., this Court held that "no doubt that a tenant has both under the Transfer of Property Act, and under Section 12 of Bombay Re .....

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Whether the challenge to the P.P. Eviction Act rooted in Article 19(1) (f) could not survive after the repeal of Article 19(1)(f) of the Constitution (as held by the Division Bench judgment of the High Court)? Note -Involved in the above is the applicability of the "doctrine of Eclipse" to post constitutional laws: the judgment of the Division Bench of the Bombay High Court under appeal holds that it is so applicable. 3. (a) Whether the provisions of the Bombay Rent Act, 1947 having be .....

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nt Act, 1947? 4. Whether it is permissible for a Court of Law to enquire into and ascertain the circumstances in which assent to a law under Article 254(2) was given and hold as a result of such consideration that the State law even with respect to a matter enumerated in the Concurrent List (after having been reserved for the consideration of the President and after having received his assent) does not prevail in that State. Contention Nos. 1 and 2. 6. It is submitted by the learned senior couns .....

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or unauthorised occupants or sub-tenants, it abridges the rights of the tenants conferred by Article 19(1)(f) of the Constitution. It is for the Legislature to provide summary procedure for evicting such persons or to direct the parties to approach the Civil Court. If the Legislature considers in its wisdom that under General law the eviction process is dilatory and provides for other speedier procedure for evicting unauthorised occupants, sub-tenants, whose tenancy is terminated, it cannot be .....

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slature has no power to prescribe the procedure for evicting the tenant whose tenancy is determined either by afflux of time or by giving notice or on the ground that there is sub-letting etc. There cannot be any doubt that a lessee would have an interest in the property and thereby it would fall within the expression "property" occurring in Sub-clause (f) of Clause (1) of Article 19 of the Constitution. Further, under the Bombay Rent Act, even a thionate w hose tenancy has come to an .....

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end, has no right to contend that particular procedure which was in existence at some point of time should continue. It is for the legislature to provide reasonable procedure in accordance with principles of natural justice for evicting unauthorised occupants including the person whose tenancy is terminated or a sub-tenant. Further, while upholding validity of the P.P. Eviction Act, this Court in Northern India Caterers Private Ltd. Anr. v. State of Punjab and Anr, clarified-"the Act does .....

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nt" to law made by the State under Article 254(2) of the Constitution was given and to hold, as a result of such enquiry, that the said law even with respect to a matter enumerated in the Concurrent List does not prevail in the State. In substance, it has been contended by the learned senior counsel Mr. Nariman that since 1947, the Bombay Rent Act is extended from time to time and on each occasion assent of the President is received. Once assent of the President is obtained, the Bombay Rent .....

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ot be examined by the Court. Advisors of the President would point out the relevant laws on the subject and if the assent is unconditional or unrestricted, the law of laws of the Parliament on the subject have to give way to the State legislation. It in his contention that 'assent' given by the President is not subject to judicial review. In any case, there was no reason for the High Court to summon the file submitted before the President before grant of assent. 9. As against this, learn .....

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deration would be restricted to the proposal made by the State Government and President's assent would only be with regard to the laws specified therein. For this, proposal made by the State Government for obtaining assent is required to be looked into and that has been done in almost all such cases. It has also been submitted as under:- a) That the assent of the President given to the Extension Acts of 1981 and 1986 of the Bombay Rent Act, 1947 was only for the limited purpose of repugnancy .....

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and 1986 is also limited to specified repugnancies to the Transfer of Property Act and to the Presidency Small Cause Courts Act. For this purpose, the High Court rightly referred to the documents tendered as Ex.F collectively. There documents were allowed tobe exhibited without objection by the appellants herein. d) The phrase "reserved for the consideration of the President" under Article 254(2) implies that the State has to draw the attention of the President to the particular repugn .....

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rliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. 2. Where a law made by the Legislature of a State wi .....

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matter including a law adding to, amending varying or repealing the law so made by the Legislature of the State." [Emphasis supplied] 11. It is apparent that language of Clause (1) of Article 254 gives supremacy to the made by the Parliament, which Parliament is competent to enact. It inter alia provides [subject to the provisions of Clause (2)] that - (a) if any provision of law made by the Legislature of State is repugnant to any provision of a law made by the Parliament which the Parlia .....

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re of the State shall, to the extent of repugnancy, be void. 12. For the purpose of the present case, Clause (2) requires interpretation, which on the analysis provides that where a law:- (a) made by the legislature of a State; (b) with respect to one of the matters enumerated in the Concurrent List; (c) contains any provision repugnant to the provisions of an earlier law made by the Parliament or existing law with respect to that matter; then, the law so made by the legislature of the State sha .....

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respect to that matter; (3) the law so made by the Legislature of the State has been reserved for the consideration of the President; and (4) it has received 'his assent'. 14. In view of aforesaid requirements, before obtaining the assent of the President, the State Government has to point out that the law made by the State legislature is in respect of one of the matters enumerated int eh Concurrent List by mentioning entry/entries of Concurrent List and that it contains provision or pro .....

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deration' would main feast that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by the Parliament, the President may grant assent. This aspect is further reaffirmed by use of word "assent" in Clause (2) which implies knowledge of the President to the repugnancy between the State law and the earlier law made by the Parliament on the same subject matter and the reasons for grant of such assent. The .....

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quot;acceptance". It also has been defined as agreement or approval; "Assent" implies knowledge of some kind in the party assenting to that to which he assents; also permission on the part of the party assenting. As used in some statutes, however, the term has been held to require affirmative, positive action on the apart of the party assenting.. It has been said that the term indicates the meeting of the minds of the contracting parties, and that the word is applicable only to co .....

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to approve, ratify, or confirm; and sometimes to authorize or empower. Shorter Oxford Dictionary-Assent-The concurrence of the will compliance with a desire. 2. Official, judicial,or formal sanction; the actio or instrument that signifies such sanction ME. 3. Accord. 4.Opinion. 5. Agreement with a statement, or matter of opinion; mental acceptance. Bouvier's Law Dictionary-Assent-Approval of something done. An undertaking to do something in compliance with a request... Law Lexicon of Britis .....

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ment to a bill which has passed both houses, after which it becomes law. This assent may be given in two ways; (a) in person, when the Sovereign comes to the House of Peers, the Commons are sent for, and the titles of all the bills which have passed are read. The royal assent in declared in Norman. French by the Clerk of the Parliament. (b) By letters patent, under the great seal signed by the Sovereign, and notified in his or her absence. Websters' 3rd New International Dictionary (Vol.I)- .....

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ans agreeing to or recognizing a matter...etc. Wharton's Law Lexicon. 16. Applying the aforesaid meaning of the word assent' and form the phraseology use din Clause (2) the object of Article 254(2) appears that even though the law made by the Parliament would have supremacy, after considering the situation prevailing in the State and after considering the repugnancy between the State legislation and earlier law made by the Parliament, the President may give his assent to the law made by .....

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ot be done without consideration of the relevant material. Hence the paras used is reserved for consideration, which under the Constatation cannot be an idle formality but would require serious consideration on the material placed before the President. The 'consideration' could only be to the proposal made by the State. 17. This aspect has been succinctly stated at the earliest by Chagla, CJ, in Basantlal Banarsilal v. Bansilal Dagdulal, as under:- "The principle underlying this cla .....

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winder Singh and Ors., this Court has also held that the assent o the President under Article 254(2) of the Constitution is not a matter of ideal formality and the President has at least to be apprised of the reason as to why his assent is sought and the special reason for doing so. 19. Mr. Nariman, learned senior counsel submitted that when the President has given assent to a State legislation, the Court cannot call for the files to find out whether the assent was limited to repugnancy between .....

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aw is necessary and the consideration would mean consideration of the proposal made by the State for the law enacted despite it being repugnant to the earlier law made by the Parliament on the same subject. If the proposal made by the State is limited qua the repugnancy of the State law or laws specified in the said proposal, then it cannot be said that the assent was granted qua the repugnancy between the State law and other laws for which no assent was sought for. Take for illustration - that .....

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resident is obtained, the State law with regard to enactments 'A' and 'B' would prevail but with regard to 'C' there is no proposal and hence there is no 'consideration' or 'assent'. Proposal by the State pointing out repugnancy between the State law and of the law enacted by the Parliament is sine qua non for 'consideration and assent'. If there is no proposal no question of 'consideration' or 'assent' arises. For finding out wheth .....

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ture and particular enactment of the Parliament. For this purpose, we would straightaway refer to the decision in Gram Panchayat's case (supra), wherein the Court considered the alleged repugnancy between the Adminsatation of Evacuee Property Act of 1950 and the Punjab Common Lands (Regulation) Act of 1953. The controversy was between the right of Gram Panchayats (eight petitioner-panchyats) o the Shamlat-deh lands situated in those villages which fell within their jurisdiction and the right .....

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The Court thereafter considered Article 254 and observed that Punjab Act was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie , by reason of the assent of the President, the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at liberty to deal with the Shamlat-deh lands according to the relevant Rules or bye-laws governing the mater, including the evacuee interest therein. In that case a .....

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disputed either before us or in the High Court, that the Act was not reserved for the assent of the President on the ground that it was repugnant to an earlier Act passed by the Parliament, namely, the Central Act of 1950. In these circumstance, we agree with the High Court that the Punjab Act of 1953 cannot be said to have been reserved for the assent of the President within the meaning of Clause (2) of Article 254 of the Constitution in so far as its repugnancy with the Central Act of 1950 is .....

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cannot be extended beyond it. Not only was the President not apprised in the instant case that his assent was sought baccy of the repugnancy between the State Act and the pre-existing Central Act on the vesting of evacuee properties but, his assent was sought for a different, specific purpose altogether. Therefore, that assent cannot avail the State Government for the purpose of according precedence to the law made by the State Legislature, namely, the Punjab Act of 1953, over the law made by th .....

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harat Sevashram Sangh and Ors. v. State of Gujarat and Ors., wherein this Court observed thus:- "it cannot be said that the assent which was given by the President was conditional. The records relating to the above proceedings were also made available to the court. On going through the material placed before us we are satisfied that the President had given assent to the Act and it is not correct to say that it was a qualified assent. The Act which was duly published in the official Gazette .....

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ve contention relating to the assent given by the President is, therefore, rejected." 24. In the aforesaid decision also the records relating to assent were made available to the Court and on going through the material placed before it, the Court was satisfied that the President had given assent to the Act and it was incorrect to say that it was qualified assent. In HOECHST Pharmaceuticals Ltd. and Ors. v. State of Bihar and Ors., this Court held thus:- "84. That being so, the decision .....

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254(2)." The Court further observed:- "We have no hesitation in holding that the assent of the President is not justiciable, and we cannot spell out any infirmity arising out of his decision to give such assent." 25. In our view, for finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by the Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is .....

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the present case, the assent was given after considering extent and nature of repugnancy between the Bombay Rent Act and Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted by the President, the State law would prevail qua earlier other law enacted by the Parliament for which no assent was sought for nor which was reserved for the consideration of the President. 26. The learned senior counse .....

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. It is said that in this case Ex.P.12 does not exactly indicate how far the proposed State Act is repugnant to the provisions of the existing Central law and any assent given without considering the extent and the nature of the repugnancy should be taken to be no assent at all. However, a perusal of Ex.P.12 shows that Section 10 of the Act has been referred as a provision which can be said to be repugnant to the provisions of the Civil Procedure Code and the Transfer of Property Act which are e .....

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sent to the Bill . Merely because the State Government when seeking the assent of the President does not indicate the exact provisions which are repugnant to the earlier Central Law under Concurrent List, the assent given by the President cannot be said to be invalid. According to the learned Advocate-General inconsistency between the proposed law and the existing Central Law has been pointed out under Ex.P.12, and the Bill has been sent for scrutiny and that the Central Government should be tak .....

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d out while seeking the assent of the President and - (ii) even otherwise the Bill having been sent for the scrutiny of the President, the President should be taken to have scrutinised the bill before giving his assent with the assistance of his legal advisers." 28. In this case, we have made it clear that we are not considering a question that the assent of the President was rightly or wrongly given. We are also not considering the question that-whether 'assent' given without consi .....

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ct. After observing that, the Court has raised the presumption. We do not think that it was necessary to do so. In any case as discussed above, the essential ingredients of Article 254(2) are - (1) mentioning of the entry/entries with respect to one of the matters enumerated in the Concurrent List; (2) stating repugnancy to the provisions of an earlier law made by the Parliament and the State law and reasons for having such law; (3) thereafter it is required to be reserved for consideration of t .....

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he Maharashtra Legislative Council and the Maharashtra Legislative Assembly extending the duration of the Bombay Rent Act for 5 years from Ist April, 1986. The letter stated: "As the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 are repugnant to the provisions of the Transfer of Property Act, 1882 and the Presidency Small Cause Courts Act, 1882, which are the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative List, and as Clause 2 .....

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ate of Maharashtra and the Secretary to the Governor of the State of Maharashtra shows that the President accorded his assent to this Bill on 23rd February, 1986. Thereafter, the Court rightly relied upon the decision in Gram Panchayat's case (supra) for arriving at the conclusion that the assent of the President was sought to the Extension Acts for the purpose of overcoming its repugnancy between the Bombay Rent Act on the one hand and the Transfer of Property Act and the President Small Ca .....

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by the Court. 31. Finally, we would observe that the challenge of this nature could be avoided if at the commencement of the Act, it is stated that the Act has received the assent with regard to the repugnancy between the State Law and specified Central law or laws. Whether extension of temporary enactment amounts to enactment of new law? Or Is it an extension of existing law? Submissions- 32. Learned senior counsel, Mr. Nariman, submitted that the Bombay Rent Act, 1947 was enacted by the Bomba .....

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ed out that after the Constitution, the Bombay Amending Act 43 of 1951 extended and amended the Bombay Rent Act by providing that it was extended from 31st March, 1952 to 31st March, 1953. It received Presidential assent under Article 254(2) read with Article 201, since it was reserved by the Governor for Presidential Assent- which could only be if it was treated as enacting a substantive law repugnant to existing Central law (e.g. the Transfer of Property Act 1882): otherwise a mere extension A .....

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1, by Maharashtra Act No. 16 of 1981 up to 31st March, 1986 and by Maharashtra Act No. 10 of 1986 up to 31st March, 1991. 34. It is further submitted that the necessity of passing Bombay Amending Act 43 of 1951 was because the Bombay Rent Act was not an "existing law" which continued after the commencement of the Constitution by force of Article 372 read with Article 366(10). For this purpose, he referred to Article 366(10) and relevant part of Article 372 of the Constitution. Article .....

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le 372 and Explanation III thereto read thus:- "372. Continuation in force of existing laws and their adaptation:- (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent autho .....

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d pre-Constitution : Article 372(1) applies in general terms to all existing laws/laws in force and continues their operation after the commencement of the Constitution: And Explanation-III explains or clarifies that nothing in Article 372 shall be construed as continuing any temporary law in force, beyond the date fixed for this expiration. 37. It is submitted that thus on a conjoint reading of Article 372(1) and Explanation III thereof, read with Article 366(10) it is clear that the Constituti .....

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'existing law' and 'law in force' are inter-changeable. For this purpose, he relied upon the decision in Keshavan Madhava Menon v. The State of Bombay (1951 SCR 228). He also relied upon the State of Bombay v. Heman Santlal Alreja [AIR 1952 (39) Bombay 16], wherein Chagla, CJ observed thus:- "In Keshavan Madhava Menon v. The State of Bombay, Mr. Justice Das says (P.234) : What Article 13(1) provides is that all existing laws which clash with the exercise of the fundamental r .....

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force" have been used without any distinction or difference." 39. For deciding the aforesaid submissions, we would deal with the same as under:- 1. Effect of Article 254(1) on the Bombay Rent Act after enactment of the P.P. Eviction Act in 1971. II. Legislative intent while extending the duration of Bombay Rent Act. III. Whether it can be deemed to be a new enactment? Re.-I. [Article 254(1)]:- 40. It is to be stated that the P.P. Eviction Act received the assent of the President on 23r .....

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o the extent of repugnancy, the State law would be void under Article 254(1) and the law made by the Parliament would prevail. Admittedly, the duration of the Bombay Rent Act was extended up to 31st March, 1973 by Maharashtra Act No. 12 of 1970. The result would be fro the date of the coming into force of the P.P. Eviction Act, the Bombay Rent Act qua the properties of the Government and Government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and sp .....

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uld be void so far as it is repugnant to the law made by the Parliament as in view of Article 254(1), the law made by the Parliament would prevail. Re.-(II) and (III):- 43. he next question is-what is the effect of extension of the Bombay Rent Act from time to time after 31st March, 1973 - whether it can be held that there was new enactment (new Bombay Rent Act)? Or whether the Bombay Rent Act which was for a temporary period continues by the Act by which its duration or life is extended? After .....

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the P.P. Eviction Act, the Rent Act would prevail qua the properties owned by the Government companies/corporations etc. 44. Thereafter, last extension for our consideration in these matters would be Maharashtra Act No. 16 of 1986 and the relevant provisions thereof are as under:- 1. This Act may be called the Bombay Rents, Hotel and Lodging House Rates Control (Extension of Duration) Act, 1986; 2. In Section 3 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in Sub-section .....

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e assent of the President is taken and therefore it would amount to re-enactment of the existing law or enactment the new law. In our view, merely because assent of the President is taken, as it is required to be taken, it would not mean that there is new enactment. For extending the duration of the temporary Legislation the assent of the President is required, otherwise in case of repugnancy law enacted by the Parliament would prevail. 47. On the question whether extension of duration of the la .....

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al's case (supra) Chagla, CJ dealt with a question whether the Bombay Land Requisition Act, 1948 provided for requisitioning the premises was a temporary statute. The duration of the said law was extended from 31st March, 1950 to 31st March, 1952 and in that context Court observed that when an Act is passed extending the duration of some law, it cannot be said that new law was created. The old law already on the statute book continues. For this proposition, relevant discussion is as under- & .....

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se to be in effect on 16.6.1937, but it was extended prior to 16.6.1937 to 30.6.1939, and the Supreme Court of America held that the amended Act authorised a prosecution for violations committed prior to 16.6.1937, under an indictment returned subsequent thereto but prior to 30.6.1939. In the judgment of Douglas J., it is stated (p. 1248) "...Due to the amendment, the Act has never ceased to be in effect. No new law was created: no old one was repealed. Without hiatus of any kind, the origi .....

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ell on Interpretation of Statutes, Edn.9, p.406, states the law thus: "If a temporary Act be continued by a subsequent one, or an expired Act be revived by a later one, all infringements of the provisions contained in it are breaches of it rather than of the renewing or reviving statutes." Therefore, to the extent that the Legislature enacted Section 2 of Act II (2) of 1950, it did not put on the statute book any new legislation. The old law instead of expiring on 31.3.1950, continued .....

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s 'commencement' as-if an Act is in the first instance temporary, and is continued from time to time by subsequent Acts, it is considered as a statute passed in the session when it was first passed, and not as a statute passed in the session in which the Act which continues its operation was passed. 50. In the aforesaid case, the Court also considered the phrase "existing law" as defines under Article 366(10) and observed that in order that a law should be an existing law, the .....

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1. However, learned senior counsel Mr. Nariman submitted that in Basantlal Banarsilal's case (supra), the Court distinguished its earlier decision rendered in Heman Santlal's case (supra) . In that case, the Court was considering the provisions of Bombay Forward Contracts Control Act, 1947. Section 8 of that Act declared forward contracts of any goods specified in a notification to be issued under Section 1(3) to be illegal, if these were not entered into, made or performed in the manner .....

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amendments was continued up to 31st December, 1952. While dealing with the contention that bombay forward Contracts Control Act being a legislation passed by the State, it would prevail in view of Article 254, the Court considered Article 254 and observed thus:- "if the State legislature passes a law subsequent to the law passed by the Parliament and the State Legislature want sin any way to depart from the provisions of the law as laid down by the Parliament, it could do so, "provided .....

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ontention that whether the extension given to the Essential Supplies (Temporary Powers) Act, was mere continuation of the Old Act or not. In that context, the Court referred to Heman Santlal's case and observed that it is difficult to accept the view that Act 52 of 1950 is merely extension of Essential Supplies Act, 1946, firstly because it is an Act passed for the purpose of amending the Act of 1946 and in the body of this, there were many provisions which substantially amended the provisio .....

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o accept the position that all that Parliament was doing when it passed Act 52 of 1950 was extending the life of the Essential Supplies Act of 1946. It was not a normal legislative activity on the part of Parliament . In the course of its ordinary legislative activity it had no power to extend the life of the Essential Supplies Act of 1946, and it would have died a natural death on 1.4.1951. It was really a different legislative activity on the part of Parliament when it put Act 52 of 1950 on th .....

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r conferred under Article 369. 54. Further reliance is placed on the decision rendered by the Full Bench of Patna High Court in Mangtulal's case (supra) . In that case, the Full Bench considered the following questions:- "1. Whether, in the circumstances stated above, the Bihar Buildings, (Lease, Rent and Eviction) Control (Amendment) Act, 1951, required assent of the President under the provisions of Article 254 of the Constitution of India, and 2. Whether in the absence of such assent .....

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or General in accordance with the provisions of Government of India Act, 1935, which were in force prior to the commencement of the Constitution, the Amending Act of 1951 had not received the assent of the President. In that context, Narayan, J. first observed thus:- "In a bald and simple form it may also the correct to say that the amended statute or the statute which extends the duration of the original statute is not a new and independent statute and that, in effect and substance, it rem .....

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obtaining the assent of the President. If the assent of the President has not been obtained to the amending Act of 1951 by which the duration of the Act of 1947 was extended "up to and including the 14th March, 1954", this amending Act cannot be deemed to be valid law, and the Act of 1947 would be deemed to have been extended only for the period mentioned in the Amending Act of 1949. Under the Amending Act of 1949 there was an extension for only five years, and the Act thus expired on .....

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ed the decision in Heman Santlal's case (supra) and observed that the Amending Act of 1951 came to be passed after the Constitution had come into force and according to the Constitution the repugnancy of the temporary Act to the provisions of the existing law could be resolved only by obtaining the assent of the President. In concurring judgment, Ramaswami, J. observed that in Heman Santlal's case question at issue was different namely what is the correct interpretation to be placed on t .....

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ting law. 58. From this decision also, it cannot be stated that the Court arrived at the conclusion that by extending duration of a temporary statute, new and independent statute comes into existence. 59. Reliance is also placed on decision rendered by the High Court of Allahabad in Benaras Electric Light and Power Co. Ltd.'s case (supra) . In that case, the Court considered the observation made by the Douglas, J., Maxwell on Interpretation of Statutes, Craies (in Treatise on Statute Law) an .....

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39;s case (supra) for arriving at the conclusion that by amending and extending duration of the temporary statute and thereafter obtaining the assent of the President would mean that there is re-enactment of the existing law. In that case, Constitution Bench was considering the validity of Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968. That order was passed in exercise of the powers conferred by Section 3 of the Kerala Essential Articl .....

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porary one dealing with a temporary situation thereafter and that it was a matter falling under Entries No. 26 and 27 of List II. Thereafter, while dealing with the alternative submission, the Court observed thus:- "The Kerala Act insofar as it deals with electricity can be deemed to be legislation under Entry 38 of List III. Though the Act itself has not declared any article as an essential article, when a declaration was made under Section 2(a) in 1965 declaring electricity as an essentia .....

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of the Kerala Act by another two years the declaration of electricity as an essential article had been made and should be deemed to have become part of the Act. So far we are in agreement with the argument of the learned Solicitor General. But when he goes further and argues that in so far as the consequence of such declaration was that the State Government was enabled to make orders regarding production, supply and distribution of electricity, there was a possibility of such orders being repug .....

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ectricity (Supply) Act, 1948 should be deemed to have been cured by such assent. When assenting to the 1967 Act the President should naturally have looked into the whole Act, that is, the 1961 Act as amended by the 1967 Act. But the declaration itself did not create any repugnancy with the 1948 Act. It was in 1968 that the Surcharge Order was made, in pursuance of which the bills were served on the various respondents in these appeals and demands made for enhancing charges for electricity. And i .....

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by another two years the declaration of electricity as an essential article had been made and was part of the Act. Thereafter, the Court observed that the assent of the President should be deemed not merely to the substitution of the words "five years" by the words "seven years" in the Kerala Act but to the Act as a whole, that is the Act as amended by the 1967 Act and any repugnancy between the Kerala Act and Electricity Act, 1910 and the Electricity (Supply) Act, 1948 shoul .....

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:- 63. On behalf of the appellant, following additional ground is raised in the written submission. "Article 254(1) incorporates the principle of Supremacy of Parliament law - it applies to any provisions of "a law made by the Legislature of a State" which is repugnant to any Parliamentary law or (which is repugnant) to any existing law. Article 254(1) opening part, does not expressly give supremacy to Parliamentary law over existing State/Provincial law - i.e. law made in the Pro .....

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n of the President and received his assent lend support to the fact that it was not a mere extension but treated as a substantive enactment." 64. The aforesaid submission requires to be rejected mainly because Article 254(1) as quoted above clearly inter alia provides that if any provision of a law made by the legislature of State is repugnant to any provision of a law made by Parliament then the law made by Parliament, whether passed before or after the law made by the legislature of such .....

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d have expired if the Constitution had not come into force. Therefore, there is no question of applying the concept of "existing law" as defined under Article 366 to a law of which duration is extended from time to time. Article 254(1), inter alia , also provides that if any provision of a law made by the Legislature of State is repugnant to any provision of an existing law, the exiting law shall prevail and law made by the Legislature of the State shall to the extent of repugnancy be .....

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tion of the President' and also 'assent'. Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnancy between the earlier law made by the Parliament and the contemplated State legislature and the reasons for having such law despite the enactment by the Parliament. (b) The word 'assent' used in Clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State. (c) .....

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supremacy to the Bombay Rent Act qua the law made by the Parliament. 68. In the result, the appeals are dismissed. WP (Civil) Nos. 1056, 1081 of 1991 and 162 of 1992 69. These writ petitions are filed challenging the vires of certain provisions of the P.P. Eviction Act. In view of the order passed above, these writ petitions are dismissed. SLP (Civil) Nos. 20669, 20731 of 1995 AND 3404-05 of 1992. 70. These petitions are filed against the judgments and orders dated 9.8.1995, 14.2.1992 and 8.1.1 .....

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er justice M.B. Shah, dismissing the appeals and other connected writ allied petitions and I am in respectful agreement with the same. Yet, having regard to the nature of issues involved and the likelihood of recurrence of such question in the light of similar and frequent recourse often made to Article 254(2) of the Constitution, I wish to place on record some of my view also in the matter. 73. The factual background, the details relating to the decision arrived at by the Bombay High Court and .....

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of the matters' enumerated in the concurrent list, subject to the exception provided in Clause (2) of Article 254, the law made by the Parliament whether passed before or after the law made by the State Legislature concerned or the existing law, as the case may be, shall prevail and to that extent of repugnancy, the State law shall be void. The exception engrafted in Clause (2) to enable the State law ot prevail in that State, the Legislature of which has enacted it, notwithstanding its repu .....

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mere routine of mechanical exercise. Despite, such assent having been obtained, power of the Parliament to enact, at any time, any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State, with the assent envisaged under Clause (2) of Article 254 has also been conserved and preserved in the proviso to the said clause.In substance, the Parliament has undisputed power to undo the effect or consequences flowing fro .....

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aim that once sought and obtained as well as published, a curtain or vell is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not really what should and ought to have been, to claim the protection envisaged under Clause (2) in respect of a particular State law vis-a-vis or with reference to any particular or specified law on the same subject made by the Parliament or an existing law, in force. The repugnancy envisaged under Clause (1) or enabled .....

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ure adopted for the nation predominance is given to the law made by the Parliament and in such circumstances only the State law which secured the assent of the President under Clause (2) of Article 254 comes to as protected, subject of course to the powers of Parliament under the Proviso to the said clause. Therefore, the President has to be apprised of the reasons at least as to why is assent is being sought, the need or necessity and the justification or otherwise for claiming predominance for .....

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fic in the extent of protection sought having regard to the serious consequences which thereby inevitably follows, i.e. the substitution of the Union law in force by the State law, in the territorial limits of the State concerned, with drastic alteration or change in the rights of citizen, which it may, thereby bring about. 75. The mere forwarding of a copy of the bill may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the le .....

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. If the object of referring the State law for consideration is to have the repugnancy resolved by securing predominance to the State law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirabilities involved therein, though may not be obliged to write a judgment in the same manner, the courts of law does, before arriving at a conclusion to grant or refuse to grant or even grant partially, if the repugnancy is with reference to .....

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urrent subjects enumerated in List III of the VIIth Schedule to the Constitution, and the heard of provisions contained therein, artificial assumptions based on some supposed knowledge of all those provisions and the presumed regularity of official acts, cannot be blown out of proportion, to do away with an essential exercise, to make the 'assent' meaningful, as if they are empty formalities, except at the risk of rendering Article 254 itself a dead letter or mere otiose. The significant .....

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the law in force made by the Parliament for the entire country, including that part of the State. When this Court observed in Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors., that when the assent of President is sought for a specific purpose the efficacy of the assent would be limited to that purpose and cannot be extended beyond it, and that if the assent is sought and given in general terms so as to be effective for all purposes different considerations may legitimately arise, .....

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stood, in my view, a reference to a particular law as a whole in contrast to any one particular or individual in the said law and not that, it can be even without any reference whatsoever. The further observation therein, "not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act on the vesting of evacuee properties but his assent was sought for a different, specific purpose altoget .....

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sting central enactments or which provisions of those enactments are considered or apprehended to be repugnant, with reference to which the assent envisaged in Article 254(2) is sough for. This becomes all the more necessary also for the reason that the repugnancy in respect of which predominance is sought to be secured must be shown to exist or apprehended on the date of the State law and not in vacuum to cure any and every possible repugnancy in respect of all laws-irrespective of whether it w .....

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claimed. It is also not give to anyone to challenge the decision of the President according assent, on merits and as to its legality property or desirability. But that is not the same thing as approving an attempt to draw blanket or veil so as to preclude an examination by this court or the High Court as to the justifiability and sufficiency or otherwise of the protection or predominance claimed for the State law over the law made by the Parliament or the existing law, based upon the assent acc .....

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effectively and meticulously fulfilled before ever availing of the protection and the same cannot be viewed merely as a ceremonial ritual. If such a vitally essential procedure and safeguard is to be merely viewed as a routine formality which can be observed in whatever manner desired by those concerned and that it would be merely enough, if the assent has been secured howsoever obtained, it would amount to belittling its very importance in the context of distribution of legislative powers and .....

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nor of a State. Article 111 provides for the assent of the President to a Bill passed by the Houses of Parliament, in the same manner in which Article 200 empowers the Governor of a State in respect of a Bill passed by the Legislative Assembly or by the Houses of the Legislature where there is a Legislative Council in addition to the Assembly. The Parliament for the Union consists of the President and two Houses as the Legislature of States consist of the Governor and the House or Houses, as the .....

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on as possible thereafter return the Bill to the Houses with a message requesting to reconsider the Bill or any provisions thereof, including the introduction of any amendment as recommended in his message and if thereafter the Houses on reconsideration of the Bill, pass the Bill again with or without amendment and present the same for the assent, the President/Governor, as the case may be, shall not withhold his assent. Being an exercise pertaining to expression of political will, apparently, t .....

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r own, different from the normal 'assent' envisaged under Articles 111 of the President or 200 of the Governor. Article 201 also would indicate that even when for the second time the Houses of the State Legislature passes the Bill and presented for 'consideration', there is no compulsion for the President to accord assent. Therefore, the reservation of any Bill/Act for the 'consideration' of the President for according his assent, keeping in view, also the allowed object .....

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t the Bill passed could not be considered to be an Act or a piece of legislation, effective and enforceable and not to extend the immunity in respect of procedural formalities to be observed inside the respective houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside the besides those formalities. The powers actually exercised by the President, at any rate under Articles 31A, 31C, 254(2) and 304(b) is a special constituent power vested with .....

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r exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or overriding effect over that Central enactment of the Parliament to which no specific reference of the President at all has been invited to. This, in my view, is a must and an essential requirement to be satisfied; in the absence of which the 'consideration' claimed would be one in vacuum and really oblivious to the hoard of Legislations falling und .....

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due and proper application of mind and effective 'consideration' as envisaged by the Constitution, this court as well as the High Court exercising powers of judicial review are entitled to call for the relevant records and look into the same. This the courts have been doing, as and when considered necessary, all along. No reception therefore could be taken to the High Court in this case adopting such a procedure, in discharge of its obligations and exercise of jurisdiction under the Cons .....

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therefore, burden the record with repetition of the same. 81. It is not in dispute that there is a clear repugnancy between the provisions of Bombay Rents (Hotel and Lodging House Rates) Control Act 1947, as has been extended from time to time, after coming into force of the Constitution in its application, to erstwhile State of Bombay and to the present State of Maharashtra and Public Premises (Eviction and Unauthorized Occupants) Act 1977. The two Acts mentioned above would hereinafter be ref .....

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be got evicted by the prescribed summary procedure after service of notice to the occupier of the alleged unauthorized occupation. 83. The State Act of 1947 was the pre-constitutional law and 'existing law' for application of Article 254 read with definition of that expression 'existing law' in Clause 10 of Article 366. The said 'existing law' by virtue of Extension Laws passed from time to time by the State Legislature continued in force after coming into force of the C .....

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nal law after it was extended by various Extension Laws (mentioned in detail in the opinion of learned Brother Shah J.) became a post-constitutional law. In order to prevail over the Central Law, the State Law required the 'assent of the President' in accordance with Article 254(2) of the Constitution. It is not in dispute that the subject matter of Central and State Legislation is covered by entries in the Concurrent List of Seventh Schedule of the Constitutional. 86. It is also not in .....

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ning the 'assent of the President' shows that each time, the Extension Law was passed with or without amendments for extending duration of the 'existing law' that is Bombay Act of 1947, its repugnancy to Central Laws like Transfer of Property Act 1882 and Presidency Small Causes Courts Act 1882, the Indian Contract Act 1892 and Civil Procedure Code, was pointed out but there is no specific mention of its repugnancy to the Central Act under consideration before us. It is on the ba .....

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980 and 27.1.1986, need mentioned and reproduction in its relevant parts. They read as under:- No. BRA 2180/CR-3222/DESK-3. Housing and Special Assistance Department Mantralaya, Bombay - 400032 15th December, 1980 To, The Secretary to Government of India, Ministry of Home Affairs, New Delhi. Sub: Bill of extend the duration of the Bombay Rent, Hotel and Lodging Houses Rate Control Act 1974 upto 31st March, 1986. Sir, The subject matter of the Bill falls under entries 3, 5, 18, 31, 35, 49, 64 and .....

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.1986, it is necessary to reserve the Bill after it is passed for consideration and the assent of the President under Article 254(2) of the Constitution of India after it is passed by the State Legislature. Further as the subject matter of the Bill falls under the entries relatable to the Concurrent Legislative List and administrative approval of the Government of India is required to be obtained before it is introduced in the State Legislature. I am, therefore, to request you to move the Govern .....

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and entries 1, 2, 6, 7, 11-A, 12, 13 and 46 in List-III in the Seventh Schedule to the Constitution of India. As the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 are repugnant to the provisions of the Transfer of Property Act 1882 and the Presidency Small Cause Courts Act 1882 which are the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative List and as Clause 2 of the Bill is intended to extend the life of the Principal Act for a per .....

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7, 11-A and 46 in List-III that is the Concurrent List in the Seventh Schedule of the Constitution have been specifically mentioned. The language of the proposals contained in the letter is noteworthy, It reads : "the provisions of some of the existing laws relating to entries 6, 13, 46 in the Concurrent Legislative List such as Transfer of Property Act 1882 and the Presidency Small Cause Courts Act 1882.". 88. Similarly, in the proposals contained in letter dated 27.1.1986, there is .....

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re specifically mentioned in the proposal. In the letter dated 15.12.1980, while moving proposal for obtaining assent, it has been very clearly mentioned that the State Act is repugnant to "some of the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative List" and the above language is follows by words "such as" with words following them 'Transfer of Property Act' and 'Presidency Small Cause Courts Act'. The mention of entries in the Co .....

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entral Acts was not exhaustive but only illustrative, otherwise the language, in the proposal contained in the letters of the State Government, would have been different. 90. On such an 'assent of the President' having been granted in general way to the State Act to give it an overriding effect over all repugnant Central Acts on legislative fields covered by specific entries of the Concurrent List, it is not open to the Court to interpret differently the contents of the letters in the fi .....

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nt of the President was summoned and perused. This exercise of going into the contents of the file was undertaken with the limited purpose of finding out whether the 'assent of the President' to the State Act, in fact, existed or not. Learned Brother Shah J. accepts the legal position that the court cannot go into the question of validity or invalidity of the 'assent of the President' and the scrutiny of the file containing proposals moved for seeking 'assent of the President .....

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ned in a general way by making mention of relevant entries of the Concurrent List and a few repugnant Central enactments illustratively and not exhaustively. The 'assent of the President' was sought in the manner mentioned above and granted. 93. 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 .....

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ative act. It cannot be described merely as part of legislative procedure. It is only the President who is empowered to exercise that legislative power in the event of inconsistency between the State Law and Central Law. Such legislative power has been given by the Constitution only to the President and exercise thereof involves no other procedure. In granting or refusing 'assent' to a State Act which is repugnant to Central Law, the President alone exercises the legislative function. Th .....

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entral 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. 95. The action of the President of granting 'assent' being a legislative Act, it is not open to the Court to sit in judicial review over it. The laws are enacted and notified for knowledge of law enforcing agenc .....

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otection available to him under Article 361 of the Constitution, he is not made answerable personally to any court with regard to the discharge of his constitutional functions. 96. The validity of the State Act is not under challenge nor any material was produced by the State and Central Governments before the court as to what weighed with President in granting assent to the State Act under Article 254(2) of the Constitution. Merely on the basis of the contents of the letters contained in the fi .....

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azette containing the text of the State Act with preamble therein stating that it has received 'assent of the President' under Article 254(2). 97. 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 .....

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