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Kaiser-I-Hind Pvt. Ltd. Versus National Textile Corporation

2002 (9) TMI 866 - SUPREME COURT

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 legislation and the earlier law made by the Parliament or the existing law could only be qua the "assent" sought by the State wit .....

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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 'consideration' and 'assent'. 4. The aforesaid question arose before the High Court of Bombay in writ petitions and ap .....

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dia, 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 negatived the contention that the provisions of the Bombay Rent Act prevail in the state of Maharashtra over the P.P. Eviction Act. Th .....

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edure 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 Rents Hotel and Lodging House Rates Control Act, 1947, an interest in the demised premises which squarely falls within the expressio .....

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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 bene re- enacted after 1971 by the State Legislature with the assent of the President must prevail in the State of Maharashtra over .....

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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 counsel that the P.P. Eviction Act abridges the right conferred by Article 19(1)(f) [which is deleted from the Chapter of Fundamental R .....

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. 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 said that the said procedure would be in any way, violative of Article 19(1)(f) of the Constitution. Reliance is placed on the dec .....

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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 end by afflux of time or by giving notice as provide under the Transfer of Property Act, would have further statutory protection f .....

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e 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 not create any new right of eviction. It creates remedy for a right existing under the General law. The remedy is speedier than on .....

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t 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 Act prevails in the State of Maharashtra and not the P.P. Eviction Act. He further submitted that once the assent is received it .....

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ditional 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, learned Addl. Solicitor General Mr. Altaf Ahmad, learned senior counsel Mr. T.R. Andhyarujina, Mr. Sudhir Chandra and learned counsel M .....

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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 to the Transfer of Property Act, 1882 and the Presidency Small Cause Courts Act, 1882. There is no assent applicable to the P.P. .....

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or 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 repugnancy arising between specified Central Laws and the contemplated State legislation requiring consideration of the President for ob .....

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rent 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 with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlie .....

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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 Parliament is competent to enact, then the law, made by the Parliament whether passed before or after the law made by the Legislature of .....

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tation, 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 shall- (1) if it has been 'reserved for consideration of the President'; and (2) has received 'his assent'; would pre .....

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nt; 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 provisions repugnant to the law made by the Parliament or existing law. Further, the words "reserved for consideration" wou .....

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e 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 word "assent" would mean in the context as an expressed agreement of mind to what is proposed by the State. 15. The lea .....

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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 conduct before or at the time of the doing of an act and hence does not include an approval after the commission of an act. Assent-( .....

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ll 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 British India by P. Ramanatha Aiyar- Assent.-The act of the mind in admitting or agreeing to the truth of a proposition proposed for acc .....

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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)- Assent-1. common accord; general approval a concurrence with approval: 2: the accepting as true or certain of something (as a doct .....

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9; 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 the State legislature. This would require application of mind to both the laws and the repugnancy as well as the peculiar requirem .....

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statation 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 clause is clear, viz., that the President should apply his mind to what Parliament has enacted and also consider the local conditions .....

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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 the State legislation and laws mentioned therein. 20. It is true that President's assent as notified in the Act nowhere mentio .....

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ing 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 a particular provision, 'A made by Parliament; other provision namely Section 4 is repugnant to some provisions of enactment & .....

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#39; 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 whether 'assent' given by the President is restricted or unrestricted, the letter or the proposal made by the State Government .....

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39;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 of Rehabilitation Department of the Central Government to allot ladns of that description to the extent of evacuee interest there .....

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ived 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 also the High Court of Punjab had adjourned the matter to enable the State Government to place material before the Court showing th .....

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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 concerned. The assent of the President under Article 254(2) of the Constitution is not a matter of ideal formality. The President .....

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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 the Parliament, even within the jurisdiction of the State." 22. We are in entire agreement with the aforesaid enunciation of la .....

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ssent 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 contains the recital that the said Act had received the assent of the President on September 28, 1973. Moreover, questions relatin .....

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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 in The Cheng Poh alias Char Meh v. Public Prosecutor, Malaysia [1980 AC 458] is not a authority for the proposition that the asse .....

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ble, 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 to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the absent is .....

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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 counsel for the appellant further referred to the decision of Madras High Court in Bapalal and Co. v. P. Thakurdas and Ors. wherein the .....

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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 existing laws on the concurrent subject. Further, a copy of the Bill has been reserved for the consideration of the President under .....

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ions 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 taken to know its job while considering the question as to whether the assent is to be given or withheld, and, therefore, there is no .....

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ent, 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 considering the extent and the nature of the repugnancy should be taken as no assent at all. Further, in the aforesaid case, before Mad .....

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cussed 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 the President; and (4) receipt of the assent of the President. 29. In this view of the matter, it cannot be said that the High Cour .....

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ars 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 of the Bill is intended to extend the life of the principal Act for a period of five years, it is necessary to reserve the Bill fo .....

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his 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 Cause Courts Act on the other. The efficacy of the President's assent was limited to that purpose only. Therefore, the P.P. Evic .....

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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 Bombay Legislature and received the assent of the Governor General on 13th January, 1948. It was published in the official gazette on 1 .....

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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 Act only required Governor's assent. 33. It is also pointed out that on 31st March, 1970, the operation of the Bombay Rent Act .....

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s 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 366(10) reads thus:- "366. Definition.-In this Constitution, unless the context otherwise requires, the following expressions .....

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hstanding 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 authority. Explanation-III - Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed .....

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r 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 Constitution did not envisage or provide for the continuance in force of existing laws if such existing laws were only temporary laws. Such .....

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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 rights (which are for the first time created by the Constitution) shall to that extent be void. Now it may be remembered that the e .....

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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 23rd August, 1971 but is deemed to have come into force on September 16, 1958. This is provided in Sub-section (3) of Section 1, whic .....

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ittedly, 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 specifically provides that if any provision of law made by the Legislature of State is repugnant to the provision of law made by the .....

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nt 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 1970, the next extension is given by Maharashtra Act No. 17 of 1973. Section 4 of the said Act only substitutes the figures '1 .....

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after, 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 (2), for the figures "1986" the figures "1991" shall be substituted." 45. From the aforesaid language use .....

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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 law which is in force amounts to re-enactment of a law or passing of a new Act, the learned counsel for the parties at the time of h .....

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he 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- "15. The authorities also draw a distinction between the repeal of an old Act and the re-enacting of a new Act and the extensi .....

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he 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 originally Act was given extended life." It is true that in this case the amending Act did not in any way alter the substantive pr .....

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r 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 till 21.3.1952." 49. We agree with the aforesaid observations. In case of a temporary statute when the Act is passed extendin .....

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t 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 only qualification laid down by the Constitution is that it should have bene passed before the commencement of the Constitution by .....

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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 laid down in that Section. The Court was also required to consider the provisions of the Essential Supplies (Temporary Powers) Ac .....

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ing 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 it satisfies the condition, viz., that it reserves the bill for the consideration of the President and the President give his ass .....

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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 provisions of law contained in the Act. The Court observed that other important consideration was that the Act was not a extension of the .....

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plies 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 the statute book. It was an activity, the justification for which was to be found in Article 369 and which was in the exercise of th .....

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ngtulal'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, the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, still operate, after the 14th of March, 1952 .....

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e 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 remains the same statute as had been originally passed. But these abstract propositions of law cannot be applied regardless of the fa .....

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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 the 14th of March, 1952. Not taking the President's assent is an omission which is fatal to the Act and it cannot be remedied .....

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ution 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 the phrase "existing law" in Article 31(5) and no question was raised under Article 254 of the Constitution and the effec .....

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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) and referred to Heman Santlal's case and observed that in the eye of law, the extending Act did not place any new legislation on .....

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btaining 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 Articles Control (Temporary Powers) Act, 1961. It obliged the Board to collect surcharges from non-licensee consumers of electricity eve .....

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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 essential article for the purposes of the Act, it became part of the Act. When the President assented to the Kerala Act in 1962 it may be .....

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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 repugnant to the provisions of the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 and therefore any such repugnance was c .....

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ld 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 it was the Surcharge Order that can be said to create the repugnancy if at all. It is only actual repugnancy that can be cured by P .....

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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 should be deemed to have been cured by such assent. 62. From the aforesaid discussion, it would appear that (a) if there is extension o .....

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tes 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 Provinces before the Constitution: hence Constitution, the Bombay Amending Act 43 of 1951 (the first law enacted byt eh State legisla .....

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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 State, shall prevail - . It also provides that the law made by the legislature of the State shall, to the extent of repugnancy, be .....

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ing 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 void but in the present case there is no question of applying the said part of Article 254(1). 66. The result of the foregoing dis .....

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f 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) In case where it is not indicated that 'assent' is qua a particular law made by the Parliament, then it is open to the Co .....

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. 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 8.1.1992 passed by the High Court of Bombay in Writ Petition Nos. 3141/95, 3162/95, RP No. 836 of 1992 and WP No. 32 of 1992 respective .....

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ame. 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 the contentions raised on behalf of the appellants/petitioners before us have been adverted to in detail in the judgment of Shah, .....

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e 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 repugnancy, as above, as long as both the laws deal with a concurrent subject, will enure to its benefit, if it has been reserved for .....

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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 from the presidential assent obtained under Clause (2), by enacting a subsequent law creating once more a 'repugnancy' and th .....

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eration 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 under Clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there .....

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ich 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 the State law concerned. This itself would postulate an obligation, inherent in the scheme underlying as well as the very purpose .....

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tution 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 letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with refer .....

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ate 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 more than one law in force made by the Parliament. Protection cannot be claimed for the State law, when questioned before courts, .....

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rtificial 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 and serious alteration in or modification of the rights of parties, both individuals or institution resulting from the 'assen .....

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m 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, it cannot legitimately be contended that this court had also declared that reservation of the State law can also be by mere refere .....

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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 altogether" would belic any such claim. Per contra, it would only reinforce the principle that the consideration as well as the deci .....

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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 was in the contemplation or not of the seeker of the assent or of the President at the time 'consideration' for according a .....

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ity 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 accorded, resulting at times in substantial alteration, change or modification in the rights and obligations of citizen, including th .....

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l 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 the absolute necessity to preserve the supremacy of the Parliament to enact a law on a concurrent topic in List III, for the entir .....

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ner 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 case may be (vide Article 79 and 168). The policy making executive power of the Union also vest with the President, as the execut .....

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, 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, the will of the people expressed through the legislation passed by their elected representatives is given prominence by specificall .....

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1 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 envisaged under Article 254(2), renders it quantitatively different from the ordinary assent to be given by the President to a Bil .....

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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 the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the Fundamental Right of ci .....

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ominance 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 under the Concurrent List in force in the country and enacted by the Parliament. To uphold as valid the claim for any such blanket as .....

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he 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 Constitution of India. 79. After going through the opinion of learned Brother M.B. Shah J, with utmost respect, I find myself unable t .....

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rovisions 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 referred to as the 'State Act' and the 'Central respectively. 82. Under the provisions of the State Act, all occupant of .....

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. 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 Constitution. 84. The Central Law of 1977 is post-constitutional law and as an effect of Clause (1) of Article 254, in view of its .....

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ost-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 dispute that the 'assent of the President' has been obtained to each of the State Acts which were passed after coming into .....

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ding 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 basis of the letters of the State addressed to the Government of India containing the proposals for obtaining 'assent of the Pre .....

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g 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 65 in List-II and entries 1, 2, 6, 7, 11-A and 46 in a List-III in the Seventh Schedule of the Constitution of the India. As the .....

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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 Government of India to kindly accord their administrative approval to the proposed Bill. GOVERNMENT OF MAHARASHTRA No. 1419/B LAW AND JU .....

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f 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 period of five years, it is necessary to reserve the Bill for the consideration and assent of the President with reference to article .....

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ed. 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 specific mention of entries 1, 2, 6, 7, 11-A, 12, 13 and 46 of Concurrent List in Seventh Schedule of the Constitution with specif .....

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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 Concurrent Legislative List Including entry 6 which covers the Central Act and use of such expression as repugnancy to "some of .....

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e 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 file and come to a conclusion that the 'assent of the President' was restricted only to Central Acts mentioned in the propos .....

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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' is limited to find out whether, in fact, 'assent' has been granted to the State Act or not and to what extent it has .....

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ively 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 'assent of the President' is to be found in the preamble of all Extension Laws passed after coming into force of the Cons .....

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hat 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. The provision in Article 254(2) is a substantive provision on the subject of resolving conflict between State and Central Law when b .....

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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 agencies and general public who are affected by it. When an Act duly notified and published contains a declaration in its preamble, of .....

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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 file summoned and perused by the court, it is not possible to ascertain whether there was due application of mind of the President t .....

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nder 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 grounds is a matter purely of legislative wisdom and beyond judicial review. 98. I may also and that State Act of 1947 was an  .....

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