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TMI Blog1970 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Private Limited v. State of Pun/ab (1967) 3 SCR 399, therefore sections 5 and 7(2) were held contravene Article 14 of the Constitution and therefore void under Article 13(2) thereof in Rajendra Prasad Singh v. Union of India, AIR 1968 Calcutta 560(2) and in Hukam Chand . S.D v. Arya, Civil Reference No. 1 of 1968 decided on 29.5.1968 by a Division Bench of this Court (I.D. Dua C.J. and V.S. Deshpande J.) respectively. Section 7(1) which provides a similar summary procedure to the Government for the recovery of rent is open pracisely to the same Constitutional objection. As sections 5 and 7 constituted the crucial provisions of the Principal Act, the rest of the provisions of the Act may not be able to survive the invalidity of sections 5 and 7. The whole of the Principal Act may, therefore, be assumed to be void under Article 13(2) for the purpose of these cases. ( 3. ) The only vice of the Principal Act was that it did not expressly bar the Government from taking recourse to the civil Court for recovery of possession, rent or damages for use and occupation. Parliament stepped in to cure the unconstitutionality of the Principal Act by enacting the Public Premises (Eviction of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to re-enact the whole of it with the amendment added to it. ( 7. ) Let us first examine the first aspect of the question touching the substance of the matter. It involves a correct understanding of the meaning of Article 13. The first two clauses of Article 13 read as follows: - "(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in-so-far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to. the extent of the contravention, be void' . It would be seen that Article 13 itself does not expressly repeal any particular statute. The Legislature has thus not given to Article 13 the force of a repealing statute. It is the exclusive function of the Legislature to repeal a statute. Since the Legislature has not repealed the Principal Act and since Article 13 does not have the effect of repealing the Principal Act, it must be considered to continue to exist on the statute book as an unrepealed statute ( 8. ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts is to interpret a statute and to give it a meaning. If, according to the decision of a Court a statute or a part of it is inconsistent with the Constituition including Part ill thereof, then the meaning of such a statute is that it is inconsistent with the Constitution and is, therefore, unconstitutional. This meaning is to be found only in a judicial decision. It will not be found in the statute book. Indeed, the whole concept of the unconstitutionality of a statute is the product of judicial decisions. It can exist only when the Courts are given by a particular Constitution, as is done by the Constitution of India, the power to construe the meaning of a statute vis-a-vis the Constitution and to declare if the statute or any part of it is unconstitutional, being inconsistent with a Constitution. Such a concept has no place when a Constitution does not empower the Courts with such a power, as for instance, in the United Kingdom. ( 10. ) This view of the nature of the unconstitutionality attaching to a statute under Article 13 is borne out by the relevant Supreme Court decisions. Prima fade, the object of both the clauses(l) and (2) of Article 13 is the same, namely, to enable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orn law". ( 13. ) These divergent views were however synthesised by Wanchoo J. speaking for a unanimous Constitution Bench in Mahendra Lal Jaini v. The State of U.P. (1963) Supp.l SCR 912(7) at page 939 in the following words: "The meaning of the word "void" for all practical purposes is the same in Article 13(1) as in Article 13(2), namely, that the laws which were void were ineffectual and nugatory and devoid of any legal force or binding effect". It is to be noted that Wanchoo J. used precisely the same words to describe the nature of a void statute under both the clauses of Article 13 as were used in the previous decisions of the Supreme Court in Keshavan Madhava Menon's case and in Bhikaji Narain Dhakra's case. The language used in describing the nature of void statute in the majority decisions in Behram Khurshed Pesikaka's and Deep Chand's cases was scrupulously avoided. The Court thus seems to have preferred the former to the latter. ( 14. ) Thus the decision in Mahendra Lal Jaini's case as to the nature of a statute becoming void under Article 13 confirms the view that the statute itself continues to exist on the statute boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist till they come into conflict with the fundamental rights at the commencement of the Constitution, while the post-Constitution laws cannot so continue to exist at all as they come into conflict with the fundamental rights immediately they were enacted. Both of them therefore exist on the statute book. While the preconstitution statutes continue to be enforceable till the commencement of the Constitution, the post-Constitution statutes become unenforceable immediately on their enactment. The crux of the Supreme Court's view appears to consist in the words "'could not continue to exist". It is the continuance of the existence, i.e., operativeness or the enforceability and not the existence itself on the statute book which is denied to the postconstitution laws which become void under Article 13(2) of the Constitution. ( 16. ) The word "void" is also used in Article 254(1) of the Constitution apparently with the same meaning. In Deep Cliand's case at pages 49 and 50: Article 13(1) was said to be in pari matei'ia with Article 254(1). In respect of the meaning of the word "void" Article 13(2) may also be said to be in pcri materia with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt would have refused to give effect to the provisions of the Principal Act in a litigation between parties. But the effect of the decision of the Court is tried to be extended beyond the scope of res judicata and sture decisis to the point of repealing the Principal Act though such repeal can by effected only by the Legislature and not by a Court decision. Again, whether the Principal Act should be revived by reenactment or by an amendment or by the passing of an independent statute is for the Legislature to decide. But the petitioners seek a judicial decision holding that the Legislature must follow the method of re-enactment and cannot follow the method of amendment. The distinction which the petitioners ignore is that there are two distinct purposes and view-points for which the laws void under Article 13 are to be regarded by the Courts on the one hand and by the Legislature on the other. Briefly, these laws are ignored by the Courts as nonexistent in law in deciding the rights of the parties but are taken note of by Parliament as being on the statute book for the purpose of validating and other legislation. ( 19. ) Talking in terms of known legal categories, the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the above that unlike legislation. a judicial decision can control the operation of the statute but cannot repeal a statute out of existence. On the other hand the power of the legislature to remove the cause of repeal by implication or of the ulta vire by amending either the Constitution or the statute concerned or by enacting a separate statute altogether has never been doubted. Even a reversal of a previous decision holding a statute to be inconsistent with the Constitution would have the same effect of curing the unconstitutionality of the statute. This is the established law not only in India but in other countries following the British system of jurisprudence. ( 21. ) Prof . Willoughby in 'The Constitutional Law of the United States" 2nd Edition, Vol. 1, page 10 expresses the view that a statute is not annulled or repealed by a court decision. He says.- "The doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect to strike it from the statute books, is excellently stated by the court of West Virginia in Shephard v. Wheeling (30 W. Va 479)&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under it are brought; the practical result is that the law becomes a dead- letter. But although the principle of stare decisis is the general rule, the High Court is not necessarily bound by previous decisions and in the event of a subsequent suit being brought under the enactment and the Courts not following its earlier judgment, the statute will stand in full force and effect because it has never, legally, been repealed." A similar view was taken in Ulster Transport Authority v. James Brown & Sons ltd., (1953) Northern Ireland Reports 79. There, construing section 5(1) of the Act of 1920 which enacts that "any law made in contravention of the restrictions imposed by this subsection shall so far as it contravenes these restrictions. be void", Lord MaeDermott L.C. J. observed: "I am not aware of any authority for the view that language such as this necessarily means that contravention must produce an actual gap in the statute book in the sense that the measure concerned, or some specific part thereof, simply drops out of the authorized text." ( 24. ) Commenting on a portion of the above view of Prof. Willoughby, Mahajan C.J. observed in Behram Khurshed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were present. But these words were substituted by the words "shall be void" in Article 13(1) as it actually became a part of the Constitution. The word "abrogate" is nearer in effect to the word "repeal". Therefore the word "void" was substituted in its place. Out of the meanings of the word "void" stated in Black's "Law Dictionary" 3rd Edition only the following were adopted in Mahendra Lal Jaini's case, namely, "ineffectual, nugatory, having no legal force or binding effect." ( 27. ) From the above discussion it is clear that the declaration of a statute as void under Article 13(2) by a court has two entirely distinct aspects. So far as the courts are concerned, such a statute is un-enforceable. The courts would therefore ignore it. The courts would decide cases between private parties on ' the basis that such a statute has no binding force. But so far as the Legislature is concerned such a statute is very much in existence. It has not been repealed. It is therefore on the statute book. The Legislature is therefore bound to take notice of it as also of the view expressed by the court regarding it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an existing law in that area. ft is clear that it is the force or the binding nature of the law which was equated with its existence. In this view so far as the courts are concerned they would not regard such a law to be existing in such an area. If a law were to be made applicable to such an area then it would come into force in that area and would be an existing law there. But when a law is not in force in a certain area it may still be a law on the statute book and thus in existence for the purpose of parliamentary legislation. This is why in Scdasib Prakash Brahmchari v. The State of Orissa (1956) SCR 43, the Orissa Act No. 2 of 1952 which was only on the statute book but had not been brought into force by the necessary notification could be amended by subsequent State legislation even though on the date of the amendment it was not a law in force. For the purpose of the courts a law which had not been brought into force is no law at all and it does not exist. But for the purpose of Parliament such a law is on the statute book and therefore not only existed but is capable of being amended. ( 30. ) It is the same distinction between the purposes of the court and the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the legislature has still the competence to put out of action retrospectively one of the procedures leaving one procedure only available, namely, the one followed and thus to make disappear the discrimination. In this way a validating Act can get over discrimination. Where, however, the legislative competence is not available, the discrimination must remain for ever since that discrimination can only be removed by a legislature having power to create a single procedure out of two and not by a legislature which has not that power." ( 31. ) There is thus a clear distinction between express repeal of a statute made by legislation and an implied repeal of a statute brought to light by a judicial decision. An expressly repealed statute is truly non-existent as it has gone out of the statute book. The courts would of course ignore it in deciding the rights of the parties but even the Legislature would have to ignore it in undertaking further legislation. On the other hand, a statute declared unconstitutional due to its inconsistency with the Constitution only loses its binding force in litigation between the parties and is non-existent like an impliedly repealed statute only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution is "ineffectual, nugatory and without legal force or binding effect" and the courts will not enforce it in deciding on the rights of the parties. But such a statute very much exists on the statute book and Parliament is bound to take, notice of it for further legislation to repeal or amend it. ( 34. ) The second aspect of the question is whether a void statute cannot be amended but must be re-enacted. Let us try to examine the basis of this contention. Its origin may be traced in the following statement of Prof. Willoughby in Vol. I of his book (cited above) in paragraph 7 at page 11 which is as follows:- "Effect of Subsequent Grant of Legislative Power. The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature and, if thus tested, it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. "An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted". ( 35. ) It is to be noted that only the last sentence "An after-acquired power ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the United States there is an express provision that a statute must not be amended merely by referring to its title but must be re-enacted as a whole with the new portion incorporated in it. There were good reasons for making such provisions in some of the State Constitutions. A statute originally enacted would be found in the statute book of that year or of that period. Subsequently statutes which amended that original statute would be found in the statute books of the years in which the statute was amended. Publication of revised statute books incorporating the amendments in the original statute and re-producing the statute in its amended form took time. Before the publication of the amended statute it was difficult to know if the original statute has been amended and if so where the ameridment could be found. Even in India we experience such a difficulty. This was why certain State Constitutiois in the United States made it compulsory that at each amendment the whole statute should be re-enacted. For instance, such a provision is contained in Article IV, section 24 of the Constitution of the State of California. In the absence of a constitutional provision of this character, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... valid Act. Amendment offers a convenient method of curing a defect in an unconstitutional Act," ( 40. ) The advantage of an Amendment without re-enactment is that it pinpoints attention only to the amended portion of the Act to enable the reader to know what is new. if the new is mixed with the old as in a reenactment, then it is difficult to know why and what is the change brought about by the amendment. In India there is absolutely no prohibition on the amendment of a statute and there is no law which requires that 'the whole statute must be re-enacted at the time of the amendment. Consequently the amendment of an unconstitutional statute without its re-enactment is legal in India. The preamble of the Amending Act of 1968 refers to the long title of the Principal Act. This is sufficient to identify the statute which is being amended. After its identification the Amending Act has merely to be read side by side with the Principal Act and the meaning of the whole Act, as amended, becomes clear. For, the effect of the amendment is that the very words of the Amending Act are written into the body of the Principal Act and the new Act is the one which so stands amended. ( 41. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the legislature. ( 43. ) Further , the same argument which concedes that a void statute can be re-enacted must concede that it can be amended. What is reenactment? As in section 24 of the General Clauses Act, re-enactment is preceded by the repeal of a statute, the substance of which is enacted again. This is why it is called "re-enactment". ( 44. ) The second contention of the petitioners therefore concedes that the Legislature has the power to repeal a void Act. If the Legislature can repeal a void Act and it can make a new Act then it must follow that it can amend a void Act. For, the power to amend is either a power to enact or a power to repeal. There can be no amendment which either does not repeal a part of the existing statute or does not add to it. Basically, it is the power to enact a statute which is possessed by the legislature. A repeal or an amendment is nothing different from enactment. The possession of the power to enact a new Act and to repeal a void Act therefore gives the Legislature the power to amend a void Act. ( 45. ) In Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, AIR 1970 SC 192, the learned Chief Justice of India has made cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision of a High Court. Articles 141 and 144 of the Constitution make the Supreme Court decision binding on all courts in India and require all the civil and judicial authorities in India to act in aid of the same. The effect is that the Supreme Court decision becomes ajudge-made law of general application throughout India. In that respect it can be put against the statute which is declared void by it and such a statute ceases to have any enforceability any where in the country. ( 49. ) On the contrary, the decision of a High Court is primarily one between the parties. Secondarily it is a precedent which is binding on the courts subordinate to the said High Court. It is not a binding precedent outside the territorial limits of the said High Court, Further, such a decision can be reversed by a larger Bench of the same High Court or by the Supreme Court. The very basis of the authority of a precedent is the principle of stare decisis. This principle can be invoked only when the precedent has a finality and a universal application. In both these respects the decision of a High Court is found wanting. Such a decision cannot therefore result in making the statute declared void by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in Mahendra Lal Jaini's case was contrary to the decision in Deep Chand's case in holding that there was no distinction between Articles 13(1) and 13(2) as to the meaning of the word "void" though in Deep Chand's case, a sharp distinction in this respect was drawn between the two clauses of Article 13. At page 662 of the majority judgment in Sham Rao's case, it was stated that an amendment could be made only of a valid Act which was still on the statute book. With great respect, their Lordships' attention does not seem to have been invited to the fact that even a void Act could continue to be on the statute book and this position was established by the meaning given to the expression "void" by the Supreme Court in Mahendra Lal Jaini's case. It was further held that only an independent Act could revive the void Act and that the Amending Act was not an independent Act. In the minority judgment, however, the decisions in Deep Chand's and Mahendra Lal Jaini's cases were distinguished as being under Article 13(2) of the Constitution from Sham Rao's case which was a case of excessive delegation. According to the minority judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. No one has thought it fit to challenge the Amending Act on the ground that it could not amend the void Act. ( 53. ) It is in this background that the Constitution Bench seems to have re-considered the extreme position taken up in Sham Rao's case when it heard argument in Devi Das's case. Section 5 of the East Punjab General Sales Tax Act, 1948 was held to be void, but the rest of the Act was held to be valid and could survive even after section 5 was declared void. Section 5 was amended by the East Punjab General Sales Tax (Second Amendment) Act, 1952 by the following words:- "In sub-section (1) of section 5 of the East Punjab General Sales Tax Act, 1948, after the word "rates", the following words shall be inserted and shall be deemed always to have been so inserted, namely, 'not exceeding two pice in a rupee." ( 54. ) It was contended that even if the whole Act was not still-born, section 5 was non est. The Amending Act did not insert a new section 5 but purported to amend the earlier section 5 which was not in existence. This contention was apparently based on the decision in Sham Rao's case. But this contention was repelled in the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Lastly , In Municipal Committee, Amritsar v. State of Punjab (1969) 3 SCR 447, the Supreme Court at last seems to have abandoned the extreme view adopted by the majority in Sham Rao's case and reverted tot he generally accepted previous position that a void Act can be amended and need not be re-enacted. I begin with the head-note: "In the State of Punjab local authorities and individual owners of land were holding cattle fairs. The Punjab Cattle Fairs (Regulation) Act, 1967, was passed by the State Legislature in exercise of powers under entry 28 of List II of VII Schedule to the Constitution, declaring a monopoly in the State to hold cattle fairs and prohibiting all local authorities and individuals from holding cattle fairs at 'any place in the State'. There was no definition of the expression 'cattle fair' in the Act. The validity of the Act was challenged on the ground that the provisions of the Act were 'vague and ambiguous' and the High Court, in Mohinder Singh Sawhney v. State of Punjab AIR 1968 Punjab 391, accepted the contention. The State Legislature thereupon by Amendment Act 18 of 1968 introduced section 2(bb) defining the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn" by the Courts on the ground of vagueness is alien to our Constitutional system. The Legislature of the State of Punjab was competent to enact legislation in respect of "fairs" vide entry 28 of List II of the Seventh Schedule to the 'Constitution. A law may be declared invalid by the superior Courts in India if the Legislature has no power to enact the law or that the law violates any of the fundamental rights guaranteed in Part III of the Constitution or is inconsistent with any Constitutional provision, but not on the ground that it is vague." ( 62. ) What is said by their Lordships above ought to remind us again that this Court has no power to declare that the Amending Act of 1968 is either void or ineffective in achieving its purpose. The Legislature was competent to enact it and clearly expressed its intention therein to insert the amendment in the Principal Act with a view to remove the vice of discrimination from the Principal Act. Just as the Legislature could read the Principal Act along with the Amending Act and by putting the two together remove the defect of unconstitutionality from the amended Act, the Courts also can construe the Amending A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been indicated. Nor is there anything which enacts that the notification issued without the sanction of the State Government must be deemed to have been issued validly under section 51(2) without the sanction of the Local Government. On the words used in the Act, it is plain that the Legislature attempted to over rule or set aside the decision of this Court. That in our judgment, is not open to the Legislature to do under our constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that ajudgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it, shall be deemed to be ineffective and the interpretation of the law shall be otherwise then as declared by the Court". (See also Municipal Corporation of the City of Ahmedabad v. New Shorrock Sp. and W. Co. Ltd. AIR 1970 S.C. 1292). ( 65. ) These decisions make two things clear. Firstly, an unconstitutional Act or an unconstitutional part thereof can be amended by the Legislature. Secondly, the amendment, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional statute can be amended successfully when it removes the vice of discrimination from it. It is not necessary to repeal the whole of the Principal Act and to re-enact it with the amendments incorporated into it. In fact, the effect of the amendment is the same as if the Principal Act had been repealed and had been re-enacted with amendments included in the Act as amended. The amending Act of 1968 was therefore valid. ( 69. ) In dealing with the Amending Act of 1968, and reading it side by side with and into the Principal Act of 1958, we are bound to be guided by the presumption of the constitutionality of a statute. We know that Parliament had competence to pass the Amending Act of 1968. We also know that the Act cures the Principal Act of its only vice of discrimination and reading the Amending Act as part of the Principal Act, the amended Act is free from any such vice and is thus fully constitutional. Since the Principal Act was on the Statute book. Parliament could read it. Parliament had two alternatives to adopt, of which it could have adopted any one. It could either repeal the Principal Act and re-enact it with the amendments incorporated into it as is done in cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justi- (See Field, "The Effect of an Unconstitutional Statute" reviewed in 42 Yale Law Journal 779) ( 72. ) In Venkatarao Esajirao Limbukar v. The State of Bombay (1970) 1 SCR 317, the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to hold that the Amending Act of 1968 is also void or unconstitutional. But the Legislature was competent to enact the Amending Act of 1968 and its effect is fully constitutional inasmuch as it cures the Principal Act of its only vice of discrimination. This Court has therefore no power under the Constitution to hold the Amending Act as ineffective, void or unconstitutional. The function of this Court is only to construe the Amending Act of 1968. Any person who reads it would know that the Legislature expressed its clear intention to introduce the amendment into the Principal Act and thereby regarded the Principal Act as being available on the statute book for such amendment. In doing so, the Legislature did net contravene any constitutional limitations. Nor can it be said that the Amending Act does not clearly express the intention of the Legislature to revive the Principal Act by the amendment. In view of the strong presumption of constitutionality of a statute which this Court is bound to respect, the Amending Act and the amended Act must both be regarded as valid. I find so. My answer to the second aspect of the question for decision, therefore, is that the Principal Act could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13) The clear meaning of the Amending Act of 1968 is to cure the unconstitutionality of the Principal Act and therefore the amended Act is valid. (14) It would not only be hypertechnical but unjust to defeat the clear intention of Parliament expressed in the Amending Act of 1968 and to hold that the Principal Act still remains void. ( 76. ) The contentions of the petitioners were confined to the invalidity of the Principal Act and the inefficacy of the Amending Act. No other ground was urged by them in support of these writ petitions. For, the conduct of the petitioners on merits has been reprehensible. In this writ petition, the petitioner was transferred out of Delhi in 1967 and consequently lost his entitlement to occupy the Government premises in Delhi. Nevertheless, he is refusing to vacate the same. In CWP 322 of 1970, the petitioner retired from Government service in 1964 and is yet refusing to vacate the Government premises which he was entitled to occupy only till retirement. In CWP 439 of 1969, the leases of the petitioners were terminated in 1963 and yet they have so far defied all attempts of the Government to evict them. In CWP 967 of 1969, the petitioner, a Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h force as may be necessary : "Provided that in the case of any such person who is not a Government employee and who has been in continuous occupation of the public premises for a period exceeding three years immediately preceding the date of the publication of the order of eviction, the estate officer shall not, if an application is made to him in this behalf, evict such person from the public premises within ninety days of such publication." "7.(l) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order. (2) Where any person is, or has at any time been, in unauthorized occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order : Provided that no such order shall be made until after issue of a notice in writing to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were later referred to a Full Bench. That is how they have now come up before us. ( 84. ) In order to appreciate the question that arises for decision, it is necessary to keep in view the legislative history of the measure with which we are concerned in this case. The problem of providing a speedy machinery for the eviction of persons in unauthorized occupation of public premises and recovery of rent and damages from them appears to have been engaging the attention of Government since several years past. To meet the situation, in 1950 the government Premises (Eviction) Act, 1950 was enacted. The Act was, howeyer, declared ultra vires by the decisions of the High Courts of Calcutta, Allahabad and Punjab. These decisions stood in the way of Government in taking speedy action even in flagrant cases of unauthorized occupation and the only way in which such persons could be evicted was by the ordinary process of law which often involved considerable delay. An attempt was, therefore, made to provide a speedy machinery and at the same time to comply with the requirements of the Constitution. The result was enactment of the Principal Act in 1958. Similar measures were also enacted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, with reference to sections 5 and 7(2) of the Principal Act because by adding in the Principal Act section IOE by the Ordinance and the amending Act the intention obviously was to cure the vice existing in both section 5 and section 7. The newly inserted section IOE reads as under .- "No civil Court shall have jurisdiction to ontertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub-section(l) of section 7 or the damages payable under sub-section (2) of that section or costs awarded to the Central Government under subsection (4A) of section 9 or any portion of such rent, damages or costs." ( 87. ) It is true that uptill now sections 5 and 7(2) alone have been declared void. There is no decided case which has so far declared section 7(1) to be void. It is also true that so far the whole Act has not been declared void and the decisions holding sections 5 and 7(2) to be void arc also decisions of High Courts and not of the Supreme Court. Whatever decision of the Supreme Court there is on the subject, is with reference to section 5 of the Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at all. The whole Act was, therefore, void and as such it could not have been amended because there was nothing to amend. The only course open to Parliament was to reenact the whole of the Principal Act with the amendment added to it. The amendment of a void Act which was dead the moment it was born and therefore nonexistent, was ineffective. The proceedings for eviction of the petitioners could not, therefore, be taken even under the amended Act. ( 91. ) The respondents do not dispute that sections 5 and 7(2) of the Principal Act were void as they contravened Article 14 of the Constitution. They are, however, not prepared to concede that section 7(1) of the Principal Act was also invalid. Their contention on the other hand is that section 7(1) was valid and the rest of the provisions of the Aet were necessary to give effect to the proceedings under section 7(1) and, therefore, the whole Act could not be held to. be void. The respondents further contend that the amendment of 1968 was sufficient to cure the vice of sections 5 and 7(2) with the result that the Act as it stood when action was taken against the petitioners was a valid piece of legislation and if the same vice affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then was) wrote a separate judgment in which he agreed with the majority view expressed by S.R. Das J. with regard to the prospective nature of the effect of Article 13(1). But when reference was made to the rule of construction laid down by the American Courts in respect of statutes declared void on account of their repugnancy with the Constitution of the United States of America, his Lordship observed at page 256 of the report : "It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. The Courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs. If a statute is void from its very birth, then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government of India Act, 1935. Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned author can have no application here. In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared void and therefore there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to taka notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land." ( 98. ) Then came Bhikaji Narain Dhakras and others v. the State of Madhya Pradesh and another (1955) 2 SCR 589 which also dealt with a pre- Constitution Act viz. the C.P. & Berar Motor Vehicles (Amendment) Act III of 1948 Which had amended the Motor Vehicles Act 1939 (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators. The ease of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be held to be void under Article 13(2) of the Constitution." ( 100. ) My learned brother while dealing with the second branch of the petitioners' argument relating to the necessity of re-enacting the statute with a view to revivify a statute which is void within the meaning of Article 13(2) of the Constitution has cited the following passage from Willoughby (The Constitution of the United States, 2nd Edn. Volume I, paragraph 7 at page 11) :" "Effect of Subsequent Grant of Legislative Power. The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. 'An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted." ( 101. ) According to my learned brother, the above cited passage from Professor Willoughby except its last sentence "An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted" is not supported by any decision. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verable. it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislature to give effect thereto." ( 105. ) The above decision was strongly relied upon by the learned counsel for the respondents and a passing reference to it has also been made by my learned brother in support of his view that there is a distinction between the purposes of the Court and the purposes of the legislature with which I shall deal later. My learned brother has referred to the observations of Lord Mac Dermott L.C.J. in Ulster Transport Authority v. James Brown & Sons Ltd. (1953 Northern Ireland Reports 79) and of the Supreme Court of United States in Welkerson v. Rahar (140 U.S. 545; 35 L.Ed.572). Both these decisions were cited by Venkalarama Aiyar J. in the above mentioned case. There is however a clear distinction between Sundararamier's case and the present case. In that case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btle but is not sound. The words 'any law' in that clause can only mean an Act passed or made factually, notwithstanding the prohibition. The result of such contravention is stated in that clause. A plain reading of the clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the States' s power to make law; the law made in spite of the prohibition is a still-born law." ( 108. ) Mahendra LalJaini v. the State of UttarPradesh and others (1963 Supp. I SCR 912)0 represents the Supreme Court's attempt at synthesis of its previous opinions. In this case Wanchoo J. who spoke for the Court carried the point developed in Deep Chand's case further and observed : "There is no question of the contravention of Article 13(2) being a continuing matter. Therefore, where there is a question of a post- Constitution law, there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibi- tion is contravened the law shall be void to the extent of the contravention, In view of this clear provision, it must be held that unlike a law covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that the Transfer Act is unconstitutional because it did not comply with Article 31 (2), as it stood at the time it was passed. It will therefore have to be struck down, and the petitioner given a declaration in his favour accordingly." ( 110. ) My learned brother is of the view that when it is said that a void statute is a dead statute, it is merely a figure of ipeech which is being taken to be a reality. What is really meant by the expression is that a statute which is void within the meaning of Article 13(2) of the Constitution is 'ineffectual, nugatory and without legal force or binding effect'and the Courts will not enforce it in deciding the rights of the parties. But such a statute very much exists on the statute book and Parliament is bound to take notice of it for further legislation to repeal or amend it. This indeed appears to be the major premise for the view taken by my learned brother who also finds support for his view in the following passage in the judgment in Mahendra Lal Jaini's case. It was there said : "The meaning of the word 'void' for all practical purposes is the same in Article 13(1) as in Article 13(2), namely, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 113. ) I find it exceedingly difficult to put faith in the continued existence of a statute which the Supreme Court says was 'dead' or 'still-born' when it was enacted. The concept of a dead statute being still in 'existence' for the purpose of amendment reminds me of the metaphysical concept of 'nonexistence' being regarded as a form of 'existence'. I am also unable to share my learned brother's interpretation of what was held in Mahendra Lal Jaini's case. That decision in no way supports the view taken by him and is entirely against it. ( 114. ) In my opinion, this line of reasoning evinces a desire to apply to a post-Constitution statute the doctrine of eclipse in opposition to what has already been decided by the Supreme Court in Mahendra Lal Jaini's case. In Deep Chand's case S.R. Das C.J. did try to revive that doctrine as explained in Bhikaji Narain Dhakra's case when he said that it also applied to a post- Constitution Act which infringed a fundamental right guaranteed to citizens only and was nevertheless on the statute book as a valid law binding on noncitizens and therefore if ths shadow was removed by a const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the Act did not violate Article 31, it was wholly unneces to consider whether there was a distinction between lack of legislative competence and violation of constitutional limitations and that this had been specifically pointed out in the minority judgment of S.R. Das C.J. and B.P. Sinha J. ( 117. ) I am afraid it is not permissible for this Court to countenance any such argument. But even otherwise, so far as our Constitution is concerned, there does not seem to be much scope for the argument that there is any distinction between lack of legislative competence arising out of the scheme of distribution of powers between the Centre and the States and the prohibition contained in Article 13(2) of the Constitution with respect to postconstitution Acts. The Constitutional prohibition in both cases appears to me to be the same as any contravention thereof has the effect of rendering the statute or its part, as the case may be, void. ( 118. ) One argument which was strongly pressed on us by the respondent's counsel was about the "distinction between the effects on a statute (1) by a legislation and (2) by a judicial decision. It was argued that the effect of legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits the power of the legislature, they simply say that the statute should be held never to have been enacted at all. It neither was nor shall it be. ( 120. ) Ikt would also not be correct to say that the voidness of a statute under Article 13 is the result of a judicial decision. If a statute contravenes the provisionof the Constitution it is void because the Constitution says so. statute is either void or not void. A court only adjudges whether it is so in terms of the Constitution. Legislature only repeals a statute which is in existence. It is correct that no statute can go out of existence unless the legislature repeals it; but vis-a-vis a statute which is void ab initio it is begging the question to say that it remains on the statute-book till it is repealed. ( 121. ) In that view of the matter I fail to understand what difference it would make to the statute still remaining physically on the "statute book," a circumstance which appears to have registered such a profound impression on the mind of my learned brother. It cannot be denied that even in the case of a statute which is repealed by the legislature it is only in subsequent editions that the repealed sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is right when they make the declaration. When that decision is altered and it cannot be disputed that the principle of stare decisis makes such alteration a rather rare phenomenon, its place is taken by a new declaration. It is the new declaration of the Court that breathes life into the statute that was previously declared dead by it and revivifies it. The agency and the process by which the miracle of resurrection is performed are the same. The Legislature can also perform the same miracle; only it has to follow the same process which it had followed earlier when the statute was first enacted by it with the added precaution that the statute when reenacted should not suffer from the same vice over again. ( 124. ) It was contended on behalf of the respondents that it is legislature alone which has the power to repeal a statute. The Courts have no such power. What the courts do when they declare a statute as un-constitutional, is to render it inoperative. The result is as if the statute were impliedly repealed and were to remain in a state of suspended animation and that it would revive as soon as the suspension came to an end. ( 125. ) With great respect, I beg to differ. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Assembly for the Union Territory of Pondicherry had passed the Pondicherry General Sales Tax Act 10 of 1965. Section 1(2) of the Act provided that it would come into force on a date to be appointed by the Pondicherry Government. Section 2 provided that the Madras General Sales Tax Act, 1959 as in force in the State of Madras immediately before the commencement of the Pondicherry Act, shall be extended to Pondicherry subject to certain modifications, one of which related to the constitution of the Appellate Tribunal. The Act also enacted a Schedule giving the description of goods, the point of levy and the rates of tax. The Pondicherry Government issued a notification on March 1, 1966, appointing April 1, 1966, as the date of commencement. Prior to the issue of the notification, the Madras Legislature had amended the Madras Act and consequently it was the Madras Act as amended upto April 1, 1966 which was brought into force in Pondicherry. ( 130. ) After the Act came into force the petitioner was served with a notice to get himself registered as a dealer under the Act. He challenged the validity of the Act by filing a writ petition. After the petition was filed the Pondicherry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th which we are concerned, the declaration of invalidity has so far been made by High Courts only. It was urged that there is a distinction between the decision of the Supreme Court and that of a High Court. In respect of a High Court's decision, therefore, the usual rules about the decision being treated merely as a precedent to be followed in other cases within the jurisdiction of the said High Court and the statute continuing to be law in the country, must prevail. It is true that Articles 141 and 144 of the Constitution make the law declared by the Supreme Court binding on all Courts in India and require all authorities civil and judicial in India to act in aid of the Supreme Court. The law laid down by the Supreme Court, therefore becomes the law of the land and the same cannot be said about the decision of a High Court which has only a territorial application, It, however, seems to me that in essence, the declaration of voidness of a statute made by a High Court, unless it is reversed by the Supreme Court, has the same effect although the operation of the declaration may be confined to the territorial limits of the High Court's jurisdiction. Within those territorial l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase of the goods covered by the Act were dismissed by the High Court and they appealed to the Supreme Court. Meanwhile, section 5 of the Act as originally enacted, was declared void by the High Court. On behalf of the appellants it was contended before the Supreme Court that since section5 as originally enacted was the charging section and had been declared void, the entire Act was void and, therefore, could not be revived by the Amending Act of 1952 as it was nonexistent. The contention was repelled and it was held that section 5 as it stood before the amendment was no doubt void but the section as amended by the Amending Act of 1952 was valid. The decision in B. Shama Rao's case was specifically referred to by Subba Rao C.J. who spoke for the Court and was held to be clearly distinguishable. According to my learned brother the decision in Devi Das's case which is an unanimous judgment of the same Constitution Bench that had previously decided by majority B. Shama Rao's case, establishes the proposition that a void section of a statute can be validated by a mere amendment which is not re-enactment of the void section. With great respect, this does not appear to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; seems to be an additional reason for the way the case was decided. ( 141. ) Learned counsel for the petitioners argued that the amendment of section 5 of the Punjab General Sales Tax Act in Devi Das's case was retrospective and this had the effect of over-ruling the High Court's decision which had invalidated section 5. The judicial decision had the effect of declaring that section 5 was void ah initio. The section had, therefore, to be amended retrospectively if the effect of the judicial decision was to be wiped out and the section was to be validated. In the present case the amendment introduced by the Amending Act of 1968 in the Principal Act is clearly prospective. It would not, therefore, have the effect of wiping out the decision that the whole of the Principal Act was void ah initio. ( 142. ) On behalf of the respondents, on the other hand, it was contended that the only purpose of retrospective amendment is to validate past transactions, if the legislature does not intend to validate past transactions it need not make the amendment retrospectively. It is true that a retrospective amendment is made applicable by a fiction to past transactions while a prospective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to him established the legislative practice which he had in mind. In that case the Supreme Court had held section 8 (3)(b) of the Requisitioning and Acquisition of Immovable Property Act, 1952 to be void as being ultra vires Article 31(2) of the Constitution. The provision was of crucial importance as without it the rest of the Act could net stand. Though the whole of the Act was thus void according to the learned counsel, the defect was removed by merely amending that portion of the Act by the Amending Act 31 of 1968, without re-enacting the whole of the Act. The circumstance that no one had thought it fit to challenge the Amending Act on the ground that it could not amend a void Act, seems to me to be entirely beside the point. If the Amending Act does not hurt any one and therefore its validity is not questioned, does it prove that the Act is not challengeable or that there is any established legislative practice which has the backing of the Constitution. ( 147. ) My learned brother has referred to some cases which though they were not cited at the Bar, have been found by him to throw some light on the point with which we are concerned in this case. Out of deference to my l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due process of law" to the enactment but as that test had no application in our Constitutional set up, the High Court was in error in holding that the Act was void. It was further observed that if the legislature was competent to enact legislation in accordance with the entries in the lists given in the Seventh Schedule then it could not be declared invalid on the test of "due process of law" incorporated in the American Constitution by the 5th and 14th Amendments. In other words, as I understand, it. the decision in Mohinder Singh Sawhney's case was overruled and the result was that the law would be deemed to have been always in force. The law being always enforceable an amendment to that could be made in the manner it was done and the amendment had to be tested in that background. The manner of carrying out an amendment, whether by re-enactment or otherwise has not been adverted to by the Supreme Court. There is only one passage which may tend to suggest that re-enactment was not necessary. The passage reads "The effect of that decision (the decision of the Punjab High Court in Mohinder Smgh Sawhney's case) was only that the Act was in law, nonexiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge set aside. In the back-ground of the power of the legislature to nullify a court decision it was observed by Mitter J. (S.M. Sikri and Reddy JJ. concurring), "A court of law can pronounce upon the validity of any law and declare the same to be null and void if it was beyond the legislative competence of the legislature or if it infringed the rights enshrined in Part III of the Constitution. Needless to add it can "strike down or declare invalid any Act or direction of a State Government which is not authorised by law. The position of a Legislature is however different. It cannot declare any decision of a court of law to be void or of no effect. It can however pass an Amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. An amending Act simpliciter will cure the defect in the statute only prospectively. But as a legislature has the competence to pass a measure with retrospective effect it can pass an Amending Act to have effect from a date which is past. Usually Legislatures pass Acts styled Amending and Validating Act, with the object not only to amend the law from a past date but to protect and validate actions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been able to appreciate the precise relevance of this case to the present case. But if at all it has any relevance, it rather helps the argument of the learned counsel for the petitioner that amendment is not the way to validate a wholly void statute. Re-enactment, it is true, may not be the only way, but prospectively amending the statute is certainly not the right way. The facts of that case are that in Mysore there were two Acts bearing on acquisition of private land for public purposes. One of them was the Mysore Land Acquisition Act which followed the same scheme as the Land Acquisition Act, 1894 in force in India. The other was the City of Bangalore improvement Act, 1945. The latter Act inter alia outlined the procedure by which acquisition of Land was to be made. Section 52 of the Act laid down that any provision of law contained in any other enactment in force in Mysore which was repugnant to any provision contained in the Act shall stand down to the extent of repugnancy. The Mysore Land Acquisition Act, on the other hand, had sections 4, 5A and 6 analogous to the corresponding sections in the Central Act of 1894. ( 158. ) Action for acquisition of petitioners land having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt denies to the legislature the supremacy which it possesses to make laws on the subject of acquisition. What the Legislature has done is to make retrospectively a single law for the acquisition of these properties. The Legislature could always have repealed retrospectively the Improvement Act rendering all acquisitions to be governed by the Mysore Land Acquisition Act alone. This power of the Legislature is not denied. The resulting position after the Validating Act is not different. By the non obstante clause the Improvement Act is put out of the way and by the operative part the proceedings for acquisition are wholly brought under the Mysore Land Acquisition Act to be continued only under that Act. The Validating Act removes altogether from consideration any implication arising from Chapter III of section 52 of the Improvement Act in much the same way as if that Act had not been passed." ( 161. ) Counsel for the respondents contended that the aforesaid decision lend support to their view that there is a clear distinction between express repeal of a statute by legislature and an implied repeal of a statute brought to light by a judicial decision. Whereas "a repealed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure may follow any one method or all of them and whileit does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject matter and whether in making the validation it removes the defects which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax." ( 164. ) Apart from the fact that the decision has nothing to do with the question under discussion in this case, the amendment of the taxing statute declared void, does not seem to be one of the methods which according to the learned Chief Justice the legislature generally adopts to validate the imposition of a tax. No help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental rights secured under Part III of the Constitution irrespective of whether they were preexisting or new rights. ( 167. ) The second case followed the decision in the first case. The decisions, therefore, turned on the express provision of Article 31-B of the Constitution. The significance of the decision lies in the following observations in the concluding portion of the judgment :- "The learned Attorney-General contended that Article 31-A and Article 31-B should be read together and that if so read Article 31-B would only illustrate cases that would otherwise fall under Article 31-A and, therefore, the same construction as put upon Article 31-B should also apply to Article 31-A of the Constitution. This construction was sought to be based upon the opening words of Article 31-B, namely, 'without prejudice to the generality of the provisions, contained in Article 31-A'. We find it difficult to accept this argument. The words, 'without prejudice to the generality of the provisions' indicate that the Acts and regulations specified in the Ninth Schedule would have the immunity even if they did not attract Art. 31-A of the Constitution. If every Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, as has been done by the Amending Act of 1968 in the present case, is not one of the methods that could be adopted to achieve that result. At least the decisions of the Supreme Court as I understand them leave no room for that. ( 171. ) It seems that in the Amending Ordinance at least an attempt was made to give the Ordinance the semblance of a re-enacted measure by laying down in section 2 as follows :- "During the period of operation of this Ordinance, the Public Premises (Eviction of 0unauthoris'ed occupants) Act, 1958 (hereinafter referred to as the Principal Act), shall have effect subject to the amendments specified in sections 3, 4 and 5." In the Amended Act even that semblance was dropped and no such corresponding provision was made. My conclusion, therefore, is that the second part of the petitioner's argument must also prevail. ( 172. ) I have already said that the whole of the Principal Act was void. In view of my finding that such an Act could be rendered operative in one of the three ways mentioned above and since that had not been done and the Act was merely amended in 1968 by the insertion of an additional section, namely, section IOE, the am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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