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1970 (9) TMI 108 - High Court Of Delhi

1970 (9) TMI 108 - High Court Of Delhi - TMI - Civil 431 of 1970 - Dated:- 2-9-1970 - Hardayal Hardy, V.S.Deshpande And Prakash Narain JJ. JUDGEMENT V.S. Deshpande, ( 1. ) What is the nature of unconstitutionality attaching to a statute under Article 13 of the Constitution and how can it be cured? The basic question arises in this and the connected writ petitions. The statute concerned is the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 (hereinafter called the "Principal A .....

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he benefit of the regular civil suits. Following the majority decision in Northern India Caterers 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. Deshpand .....

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e 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 Unauthorised Occupants) Amendment Act, 1968 (hereinafter called the "Amending Act"). The main amendment was the addition of section IOE to the Principal Act. Section IOE is as follows:- "IOE. .....

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the connected writ petitions are unauthorised occupants of Government premises. They are being evicted by the Government under section 5 of the amended Act. They realise that the amended Act as such is free from the vice of discrimination. But they nevertheless contend that the eviction proceedings against them are illegal and pray that they be quashed. Their argument is that the whole of the Principal Act was void and as such non-existent in law. Parliament could not amend it as there was noth .....

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t did not become non-existent when it became' void. It continued on the statute book and was therefore available for being amended by the Parliament. The Amending Act was thus not ineffective. The proceedings for eviction brought against the petitioners under section 5 of the amended Act were therefore valid and could not be quashed by this Court. ( 6. ) The question for consideration, therefore, is twofold. Its first aspect is one of substance, namely, whether a statute becoming void is so .....

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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 .....

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void to .the extent of inconsistency between the two. Such inconsistency is to be determined in each individual case by the decision of a superior Court in India. The voidness of a statute under Article 13 is therefore a result of a judicial decision only. In this respect, the voidness of a statute under Article 13 is only one species of the genus, i.e., unconstitutionality of a statute. Such unconstitutionality can be declared only by a decision of a Court. No Court has any inherent power to de .....

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stitution or the inconsistency of a statute or a part of it with any part of the Constitution. The golden thread running through all these types of unconstitutionality is the same. It is the construction of the particular statute vis-a-vis Constitution by a Court of law. The unconstitutionality consists only in the particular interpretation of the statute and the Constitution by a Court of law. ( 9. ) There is thus a clear distinction between the effect made on a statute, (i) by a legislation an .....

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f the Legislature is fundamental and formal. No statute can come into existence unless the Legislature makes it. No statute can go out of existence unless the Legislature repeals it. The Courts do not possess the power to make a statute or repeal a statute. The function of the Courts 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 st .....

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f 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 the Courts to declar .....

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under clause (1) or clause (2) of Article 13. In Keshavan Madhva Menon v. State of Bombay (1951) SCR 228 at 235 and Bhikaji N arain Dhakras v. State of Madhva Pradesh (1955) 2 SCR 589 at 599 a pre-Constitution statute becoming void under Article 13(1) was described as being "ineffectual or nugatory and devoid of any legal force or binding effect." ( 11. ) On the other hand, in Behram Khurshed Pesikaka v. The State of Bombay (1955) I SCR 613, Mahajan C.J. speaking for the majority at pa .....

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intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January 1950 and also for the determination of rights of persons who have not been given fundamental rights by the Constitution". ( 12. ) In Deep Chandv. State of U.P. (1959) Supp. 2 SCR8 Subha Rao J. speaking for the majority made a sharp distinction between the two clauses of Articles 13 in the following words a .....

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ch 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 w .....

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the view that the statute itself continues to exist on the statute book but has become "ineffectual, nugatory and devoid of any legal force or binding effect". The thrust of these words is that such a law cannot be given effect to by the Courts in deciding upon the rights of the parties. These words are significant only for the purposes of the Courts vis-a-vis the rights of the parties. They would be meaningless if applied to the power of the Legislature to re-enact, repeal or amend a .....

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a statute is ineffectual, nugatory and devoid of any legal force or binding effect. The decision in Mahendra Lal Jaini's case appears, therefore, to be sufficient to negative the contention of the petitioners that a statute which is void within the meaning of Article 13(2) of the Constitution is non-existent and is not available for amendment. All that can be said about such a statute is that it is ineffectual, nugatory and devoid of any legal force or binding effect. ( 15. ) Though the con .....

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eir very inception and they cannot therefore continue to exist for any purpose". Do these words mean that a post-Constitution statute as distinguished from a pre-Constitution statute becomes non-existent or notionally obliterated from the statute book? I am unable to attribute any such meaning to them. For, the only difference between the pre-Constitution and the post-Constitution laws being void under Article 13 is this: The pre-Constitution laws continue to exist till they come into confl .....

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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) w .....

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ticle 13 and would place them on the same footing in respect of the meaning of the word "void". Article 251 of the Constitution is also based on the same principle which underlies Article 254(1) except that the power of Parliament to make laws on State subjects under Articles 249 and 250 is expected to be of a short duration. Article 251 expressly states that the State law which is repugnant to the law of Parliament shall be "inoperative". This would indicate that the word &q .....

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t this aspect of the decision has no bearing on the question before us which is whether the void statute itself can be amended by Parliament. It is more relevant to point out that a Constitutional amendment which specifically refers to the void statutes such as the Constitution (First Amendment) Act 1951 inserting Article 31B and the Ninth Schedule in the Constitution (later supplemented by the Fourth and the Seventeenth Amendments of the Constitution), validated all the statutes enumerated in t .....

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pal Act is a result of our decision which simply means that this Court 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 .....

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gnored 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 Article 13(1) on a pre-Constitution law is similar to that of an implied repeal. The effect of Article 13(2) on a post-Constitution law is to make it ultra vires to the extent it is inconsistent with fundamental rights. In either case .....

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s to the judicial control (not repeal) of subordinate legislation by the courts through the doctrine of ultra vires. At pages 268-269 the learned author warns us against taking "mere decisions in themselves as settling disputed points and forgetting the fundamental principle which governs the whole employment of precedent. That principle, as we have seen, was insisted upon by Lord Mansfield, and it was re-affirmed by Sir George Jessel with his usual clarity when he said: (In re Hallett' .....

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in Birch v. Brown (1931) A.C. at page 631. The essential difference between legislation and judicial decision in their effect on pre-existing laws including statutes is also brought out by Salmond in his "Jurisprudence" Eighth Edition, page 176 as follows: "The first virtue of legislation lies in its abrogative power. It is not merely a source of new law but is equally effective in abolishing that which already exists. But precedent possesses merely constitutive efficacy . . . . .....

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eparate 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 annu .....

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simply refuses to recognise it, and determines the rights of the parties just as if such stature had no application. The court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the court may operate as a precedent for the determination of ether similar cases, but it does not strike the statute from the statute book; it does not repeal. . . . the statuth. The parties to .....

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the Courts who are entrusted with the solemn duty of adjudicating upon questions of constitutionality reluctant to refuse to give effect to the expressed will of the Legislature. For the Judiciary is a branch of the Government coordinate with the Legislature and the Executive although it may appear to occupy a position of superiority. In point of law the Court is not entrusted with any power to veto the acts of the Legislature; its function is to decide between litigants and to enforce its decr .....

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parties and the statute remains on the Statute Book as a subsisting law; in so far as the Court has refused to enforce it, because it is in conflict with the Constitution and it is assumed that the decision will not be followed if subsequent proceedings 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 su .....

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estrictions. 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 Pesikaka v. The State of Bombay, at pages 654 .....

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ess, such law is judge made law. It is not legislation and therefore it does not directly repeal or amend the statute which is declared void by it. This was recognised by Bhagwati J. in the same case at page 621 in the following words:- "Even though under Article 141 of the Constitution the law declared by this Court is binding on all the courts within the territory of Union and is to be the law of the land the effect of that declaration was not to enact a statutory provision or to alter or .....

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ed in the Interpretation Act or the General Clauses Act. . .. None of those however have any application to the construction of statutes framed in language like the one contained in Article 13(1) of the Constitution ........it is difficult to apply that rule (that the repeal of a statute has obliterated it completely) on any sentimental grounds at this date to the case of statutes which are declared void or declared to have no effect whatsoever after a certain date only." ( 26. ) In the sam .....

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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 und .....

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the view expressed by the court regarding its inconsistency with the fundamental rights. The Legislature is therefore entitled to pass fresh legislation with a view to remove the vice of unconstitutionality from such a statute and to make it valid. ( 28. ) It is not the scheme of the Constitution that the Legislature only enacts a statute but has no further concern with it. The repeal of a statute is not left to be brought about by a judicial decision. When court is said to "strike down&qu .....

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arding the continued existence of a statute declared void under Article 13(2). The statute does not continue to exist in the sense that it does not possess any binding force or enforceability. But such a statute is on the statute book for the purpose of further parliamentary legislation. This distinction is brought out by the following Supreme Court decisions. In Ram Kirpal Bhagat v. State of Bihar (Criminal Appeal 182 of 1966 decided on 13-ll-1969 the question was whether the Land Customs Act, .....

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so in force. It was held that laws which were existing laws in territories other than the excluded and partially excluded areas would not be existing laws in relation to excluded or partially excluded areas. The Land Customs Act, 1924 could not therefore apply to the Santhal Parganas as an existing law. An existing law in that case was equated with the law in force. A law which was not in force or in operation in a particular area was not an existing law in that area. ft is clear that it is the .....

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ib 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 therefo .....

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nsistency validated it, (M.P.V. Sunduraramier v. State of A.P. (1958) SCR 1422). The Legislature therefore regarded the said unconstitutional provision as being in existence on the statute book which could be validated by subsequent legislation. In State of Mysore and another v. D. Achiah Chetty etc., AIR 1969 SC 477(19), the Mysore Land Acquisition Act which contained a shorter procedure for the acquisition of land was held to be discriminatory inasmuch as an alternative procedure more favourab .....

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n cannot ever be validated and that the validating Act was ineffective for that reason, was repelled by the learned Chief Justice of India in the following words:- "This argument leads to the logical conclusion that a discrimination arising from selection of one law for action rather than the other, when two procedures are available, can never be righted by removing retrospectively one of the competing laws from the field. This is a wrong assumption. in Piare Dusadh and others v. K.E. (1944 .....

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n a given case be found discrimination. 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 .....

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egislation. 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 in deciding the rights of parties. But it very much exists on the statute book and may be either repealed or amended by the legislature. To illustrate the difference between the two further, it may be pointed out that the repeal of a statute revives under the com .....

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aled statute cannot revive. For instance, a reversal of the judicial construction which had resulted in repeal by implication would revive the impliedly repealed statute. Similarly an amendment of either the Constitution or the impliedly repealed statute removing the inconsistencies between the two would also revive the impliedly repealed statute. No such revival is possible of a statute which has been expressly repealed. An express repeal of a statute is like a termination of its existence whic .....

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statute which is on the statute book and is yet non-existent on the statute book for the purpose of further legislation. The non-existence of a void statute is only a figure of speech. It is only because such a statute is incapable of supporting any rights or liabilities that it is regarded as ineffectual, nugatory or without binding force. But such a statute very much exists and is capable of being repealed or amended. It is in no sense non-existent for the purpose of further legislation. ( 33 .....

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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 legis .....

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232). The said decision was relied upon in Deep Chand's case for the proposition that a subsequent amendment of the Constitution did not revive a void statute. At page 24 of the report of Deep Chand's case, however, the whole of the passage from Willoughby is re-produced and contrasted with a subsequent passage from the same author with the following comment:- "For the former proposition, the decision in Newberry v. United States') and for the latter proposition the decision in .....

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tutional Limitations' was approved by Mukherjee J. in Ssghir Ahmed v. State of U.P. (1955) I SCR 707 at 728 "(A) statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the Constitutional objection but must be re-enacted." ( 36. ) Since no decisions are cited by these learned authors in support of these views, the explanation for these views appears to be two-fold. Firstly, all that they mean is that there is no au .....

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enacting the whole statute. The word "re-enact" therefore is only an omnibus expression to mean the appropriate legislative action. Alternatively, the explanation seems to be that in the Constitutions of certain States 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 Const .....

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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, however, as pointed out by the Supreme Court of California in Fletcher .....

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and is a statute which is expressly repealed. In paragraph 1903, it is pointed out that such a statute cannot be amended for the simple reason that it is not on the statute book at all. In the same class are unconstitutional statute's in those States in which a mere amendment without re-enactment is forbidden by the State constitution. The courts in these States have regarded an unconstitutional statute as legally non-existent which cannot be given effect to by an attempt to amend it. For, & .....

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dment, The unconstitutional Act physically exists in the official statutes of the state and is there available for reference, and as it is only unenforceable, the purported amendment is given effect. If the Jaw as amended is constitutional, it will be enforced. The amendment need not be intelligible and complete on its subject although that is obviously desirable. ( 39. ) This escape from the legal fiction that an unconstitutional Act does not exist is sound. That fiction serves only as a too co .....

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ints 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-ena .....

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stands amended. ( 41. ) In Allison v. Corker, Supreme Court of New Jersey, 1902, 67 N.J.L. 596-52 A. 362, 60 L.R.A. 564, it was observed as follows:- "The argument is that an unconstitutional statute is a nullity. Granting this, it does not follow that it may not be imported into valid legislation by appropriate reference. It is entirely within the legislative power to give effect to documents without their full recital..... .The matter is one purely of identification. Surely nothing can b .....

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h the constitution has committed government by the people, can encroach upon the domain of another. The function of the judicial department with respect to legislation deemed unconstitutional is not exercised in rem, but always in personam. The Supreme Court cannot set aside a statute as it can a municipal ordinance. It simply ignores statutes deemed unconstitutional. For many purposes an unconstitutional statute may influence judicial judgment where, for example, under colour of it private or p .....

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arded as a dead statute. What was merely a figure of speech is taken to be a reality. A void statute which is only unenforceable is imagined to be dead and therefore gone out of the statute book. It is this misconception which has given rise to the view that a statute which does not exist at all cannot be amended as there is nothing to amend. For, the statute is very much available on the statute book for amendment by the legislature. ( 43. ) Further , the same argument which concedes that a voi .....

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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 .....

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dment of a void statute which removes the cause of its unconstitutionality is therefore the proper course for the Legislature to adopt in dealing with an unconstitutional statute. It is not only permissible but is also desirable. As further observed by the learned Chief Justice of India, there are only two conditions to be observed in making such an amendment. Firstly, the Legislature must be competent to enact the amending Act. Secondly, the result of the amendment must make the statute constit .....

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ed its legislative function. Though the unconstitutionality did not arise under Article 13(2) of the Constitution, the decisions in Deep Chand and Mahendra Lal Jaini cases were referred to at pages 661 of the report to show that the Act was void. The Pondicherry General Sales Tax (Amendment) Act, 1966, purported to amend the Pondicherry General Sales Tax Act, 1965, but the majority at page 662 held that the Amending Act proceeded on the footing that the Principal Act was valid and still on the s .....

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effect of 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. ( .....

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n 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 it to be unenforceable every where in India. It often happens that different High Courts take different views regarding the constitutionality of a statute. The Principal Act itself was held to be valid by the Special Bench of Calcutta High Court in Standard Literature Company v. Union of In .....

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recedent in other cases within the jurisdiction of the said High Court. ( 50. ) Secondly the unconstitutionality of the Pondicherry General Salex Tax Act, 1965 was not by reason of it being contrary to any provision of Part III of the Constitution. Therefore Article 13 of the Constitution was not attracted at all. Consequently it is not a decision as to the nature of unconstitutionality under Article 13(2) of the Constitution. For the same reason it does not decide whether an Act void under Arti .....

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ri S.T. Desai for the petitioner at page 661-G was that the Principal Act being void, the Amendment Act could not resuscitate it. This was a noval contention not supported by any previous authority. The learned counsel relied on the decisions in Deep Chand and Mahendra Lal Jaini cases. But none of them had decided that a void Act could not be revived by an amendment of the said Act itself. Secondly, learned counsel's argument was self-contradictory inasmuch as he had bracketed the decision i .....

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, 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 Am .....

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which is not subject to any infirmity. The Amending Act effectively cured the defect in the Principal Act the whole of which was not void. It is the same Constitution Bench which was so divided that came to hear Devi Das's case. ( 52. ) The majority of the Court in Sham Rao's case had approved of an extreme contention that a void law could not be amended at all though as respectfully pointed above, this proposition was not supported by any previous authority. In effect, this was new law .....

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from any defect. One recent instance of such legislative practice would be sufficient to bring out this point. In Union of India v. Kamala Bai (1968) I SCR 463, the-Supreme Court 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 whole purpose of the Act was to requisition and acquire property for a public purpose. According to Article 31(2) of the Constitution, no such acquisition cou .....

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of the Act. Act No. 31 of 1968, namely, the Requisitioning and Acquisition of Immovable Property Amendment Act, 1968, therefore, merely amended that portion of the Act without re-enacting the whole of the Act. 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 .....

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o 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 following words:- "No doubt in terms the section inserts the words "not exceeding two pice .....

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owed without qualification, the amendment of section 5 of the East Punjab General Sales Tax Act, 1948 would have been insufficient inasmuch as the whole of section 5 was not re-enacted by it. The very fact that an amendment of a void section was held to bring about the same effect as re-enactment shows how the previous decision was modified. This may be the reason why the learned two Judges who had dissented from the majority decision in Sham Rao's case were in agreement with the other learn .....

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ould be necessarily objectionable. ( 56. ) The invalidity of section 5 of the East Punjab General Sales Tax Act, 1948 was due to the same reason as was present in Sham Rao's .case, namely, the excessive delegation of legislative power amounting to a surrender of its function by the legislature. The decision in Devi Das'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. If this principle a .....

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verted 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 authorit .....

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39;cattle fair' to mean a gathering of more than 25 persons for the purpose of general sale or purchase of cattle'. Fair Officers were appointed under section 4(1) of the Act and under section 4(2) they declared certain areas as fair areas. Some of the areas so declared belonged to a Municipal Committee in the State. The Municipal Committee, a lessee from the Municipal Committee and some residents in the State challenged the Act in the Supreme Court, inter alia, on the following ground: .....

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that decision was only that the Act was in law, non-existent, so long as there was no definition of the expression "cattle fair" in the Act. That defect has "been remedied by the Punjab Act 18 of 1968". ( 59. ) These two observations fully support the distinction made by me above (at page 20) between the two different aspects of the nature of a void statute. On the one hand, such a statute does not cease to exist in law as a result of the Court decision declaring it void ina .....

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e temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment." ( 61. ) AT page 453, their Lordships sounded a salutary warning that "the rule that an Act of a competent legislature may be "struck down" by the Courts on the ground of vagueness is alien to our Constitutional system. The Legislature of the St .....

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hips 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 .....

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s case was retrospective and this had the effect of overruling the judicial decision which had invalidated section 5. The judicial decision had the effect of holding that section 5 was void ab initio from the inception. Therefore a validation of section 5 had to be given effect to retrospectively from the time of its enactment if the effect of the judicial decision is to be wiped out. In the present case, it is argued, the amendment of 1968 is only prospective and it would not have the effect of .....

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the past transactions are to be validated, the retrospective amendment is not intended to wipe out the judicial decision holding the statute unconstitutional. In fact, as pointed out by the Supreme Court in Mahal Chand Sethia v State of West Bengal (1969) 2 SCR 500 at pages 504-505, "It (Legislature) 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 defect pointed by a Court of law or on coming to know of it aliunde. .....

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. 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 .....

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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, if retrospective, must not try to invalidate the judicial decision which had held the Principal Act to be unconstitutional. On the other hand, as was observed by the learned Chief Justice of India inPrithvi Cotton Mills' case "a court's decision must always bind unless the conditions on which it is based are so .....

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us judicial decision was wrong but because the provisions of the statute are altered. ( 66. ) The argument therefore that a retrospective amendment alone can cure the unconstitutionality of a statute is ill-founded. A prospective amendment can alter the provisions of the statute equally well and is in fact less open to objections than a retrospective amendment. It is not possible therefore to distinguish the principle established by the Supreme Court in Devi Das's and Amritsar Municipal Comm .....

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rue principle is that an amendment which changes the provisions of an unconstitutional statute with a view to make it constitutional is in effect a reenactment of such a statute. It is stated in American Jurisprudence" Vol. 50, paragraph 468, at page 482 as follows:- "The amended statute is regarded as if the original statute has been repealed and the whole statute re-enacted with the amendment " ( 68. ) On the second aspect of the question also, therefore, the contention of the P .....

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( 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. Si .....

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tutional requirement that an amendment must be made by way of re-enactment only. India falls into the second group of States. The legislative practice in India is also the same, namely, to amend unconstitutional Acts (when the extent of amendment is small) and not to repeal and re-enact them unless amendment is extensive It is not for this Court to dictate to Parliament which of the above two methods it should adopt to cure the unconstitutionality of the Principal Act. That is exclusively the ch .....

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use to see it? Can the Court shut its eyes to the Principal Act? If Parliament could read the Principal Act why cannot the Court do so? It would be against common sense and logic to deny that the Principal Act can be read on the statute book and the Amending Act can be read as incorporated in it. Once this is done, there is no difficulty in arriving at the conclusion that the Amending Act has served its purpose and cured the Principal Act of its unconstitutionality. ( 71. ) Even the Courts have .....

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Shelby County, 118, U.S. 425, 442; Chicago I &L Ry Co Vs Hackett, 228 U S 559, 566. It is quite clear, however, "that such broad statements as to the effect of 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 inval .....

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ion 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 Supreme Court was considering the Hyderabad Act 21 of 1950 which was struck down by the Andhra Pradesh High Court in Inamiars of Sulhana .....

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the amending Acts, it would be difficult to hold that the President had never assented to the parent Act, namely, Hyderabad Act No. 21 of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act No. 3 of 1954 was assented to." ( 73. ) This observation of the Supreme Court is extremely important as it shows that a void Act can be validated by the amendment and the President is deemed to have taken notice of the void Act when assenting t .....

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s to be void under Article 13(2) even after the Amendment of 1968. Still Jess has this Court any power to declare that the Amending Act of 1968 is not effective in serving its purpose. If Parliament could read the Principal Act as it was on the statute book, this Court would not act in a hypocritical manner and refuse to read the same. There is no authority or principle to support the contention that a statute declared void by this Court goes out of the statute book. Therefore, Parliament was co .....

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f 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 .....

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ing Act of 1968 and no further re-enactment of it was necessary. I would sum up my conclusions as follows :- (1) A statute enacted by the Legislature can be repealed only by the Legislature. (2) Unless expressly repealed, the statute continues to be on the statute book to be rea '. by the Legislature and also by the Courts. (3) Article 13 does not itself repeal any statute. (4) The function of the Courts is only to construe a statute vis-a-vis the Constitution and give a judicial decision wh .....

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ts existence on the statute book. (7) Both the Legislature and the Courts have to take note of every statute on the statute book. (8) A Court may refuse to enforce an unconstitutional statute but may still be influenced by it, for example, when considering whether an act is done under the colour of a statute even though the statute was unconstitutional or in considering the effect of unconstitutionality on past transactions which are closed. (9) The Legislature and the Courts function in two dif .....

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ctment, amendment without repeal or enacting independent legislation by way of validation or otherwise. (12) Courts cannot hold a statute to be unconstitutional unless it conflicts with the Constitution. The Amending Act of 1968 does not conflict with the Constitution and cannot be held to be ineffective, void or unconstitutional. (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 on .....

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ut 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 .....

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circumstances in which the above writ petition and the connected petitions (Civil Writ Nos 322 of 1970, 439 of 1969 and 967 of 1967) have been placed before this Full Bench are these : ( 80. ) The petitioners in each case are occupiers of premises as defined in section 2(b) of the Public Premises (Eviction of Unauthorized Occupants) Act, XXXII of 1958 which will hereafter be referred to as the Principal Act. Section 4 of the said Act empowers an "estate officer" appointed under the Ac .....

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tion 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the estate officer is satisfied that the public premises are in unauthorized occupation the estate officer may,-on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affix .....

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o 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 orde .....

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specified in the order : Provided that no such order shall be made until after issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer. (3) If any person refuses or fails to pay the arrears of rent or any instalment thereof payable under sub-section (1) or the d .....

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s on the ground that both section 5 and section 7 of the Act are void, being discriminatory and violative of Article 14 of the Constitution and, therefore, any action taken under them was illegal and invalid. On behalf of the respondents the validity of the action .was sought to be supported on the plea that the vice of discrimination was removed by the Public Premises (Eviction of unauthorized occupants) Amendment Act XXXII of 1968 which came into force on August 16, 1968 and inasmuch as action .....

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d by Parliament by mere insertion of section ICE in the Principal Act without the whole Act being re-enacted. A similar contention was . raised by a petitioner in a case that came before one of us (Prakash Narain J.) and was accepted by the learned Judge. ( 83. ) The judgment in that case was followed by S.N. Shankar J. in another case which was decided by his Lordship. As the question raised in the present petitions, which were first admitted for hearing before a Division Bench, was of great im .....

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nce 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, ther .....

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ers Pvt. Ltd. v. State of Punjab (1967) 3 S.C.R. (399) the Supreme Court held section 5 of the Punjab Act which is in terms identical with section 5 of the Principal Act, to be void on the ground that it enabled the Government to discriminate, contrary to Article 14 of the Constitution, between the occupiers of public premises by evicting some of them under the summary procedure laid down in section 5 while resorting to the ordinary procedure of a civil suit in evicting others. ( 86. ) Meanwhile .....

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id. In Hukam Chand v. S.D. Arya (Civil Reference No. 1 of 1968) a Division Bench of this Court (Inder Dev Dua C.J. and Deshpande J.) by their judgment dated May 29, 1968, held section 7(2) of the Principal Act to be void for the same reasons on which section 5 of the Punjab Act was struck down by the Superme Court and section 5 of the Principal Act by the High Court of Calcutta. The decision of the Supreme Court was responsible for promulgation on June 17, 1968 of an Ordinance called the Public .....

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rdinance or enacting the Amending Act were not unaware of the decisions of Calcutta High Court and this Court, 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 evicti .....

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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 Punjab Act and it is by a process of analogy and parity of reasoning that Parliament apprehending that sections 5 and 7 were in imminent danger of being struck down, set about finding ways and means .....

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occupants of those premises while against other occupants of similar promises Government might show leniency by resorting to a civil suit for the same purpose. ( 89. ) It is thus the alternative remedy available to Government under the Code of Civil Procedure, 1908 that made the Principal Act discriminatory. Parliament could have removed the vice of discrimination from the Principal Act either by amending the Code of Civil Procedure and providing that no suit in respect of anything done under th .....

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incipal Act prior to its amendment in 1968 was void. Section 5 and section 7(2) have been declared void by two High Courts. Section 7(1) though not formally declared so, was none-the-less void for the same reason. The remaining provisions of the Act were merely incidental and were intended to subserve and/or effectuate the proceedings for the recovery of rent damages and possession which were instituted under sections 7(1), 7(2) and 5. These other provisions could not separately exist as their e .....

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rn 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 .....

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against under the Act as amended. The action taken against them is, therefore, under an Act which is immune from attack on any ground on which the Principal Act was being attacked. ( 92. ) In my opinion section 7(1) of the Principal Act was open to the same objection as sections 5 and 7(2) and that it too was void. In fact the Legislature also seems to have taken the same view and has made provision for it in section IOE. I am also of the opinion that without these sections the rest of the Act .....

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t with the contents of the Amending Act added to it. ( 94. ) On behalf of the petitioners a two-fold argument has been advanced. Firstly, it is urged that a statute which is void within the meaning of Article 13(2) of the Constitution is non-existent. Such a statute has been variously described as dead, still-born and non-existent for all purposes, including amendment; secondly, such a statute cannot be amended but must be reenacted. ( 95. ) The question of voidness of a statute under Article 13 .....

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ere inconsistent with the fundamental rights void ab initio, but only rendered such laws ineffectual and void with respect to the exercise of the fundamental rights on and after the date of the commencement of the Constitution and that the Article had no retrospective effect. Mahajan J. (as he 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 t .....

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tions 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 course, .....

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Prohibition i Act XXV of 1949 and, therefore, involved the impact of Article 13(1) of the Constitution on that Act. The case is, however, of importance as in the course of his judgment Mahajan C.J. who spoke for the majority while reiterating his earlier view of Article 13(1) in Keshavan Madhava Menon's case specifically referred to and dissented from the observations of Willoughby (The Constitution of the United States, 2nd Edition, Volume I, page 10) on which reliance has been placed by m .....

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; a new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent." ( 97. ) Dealing with the aforesaid observations, his Lordship observed: "Article 141 of the Constitution declares that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. In view of this clear enactment there is no scope in India for the application of the American doct .....

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aw 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 c .....

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in its favour to the exclusion of all motor transport operators. The ease of the petitioners was that with the advent of the Constitution the Act was rendered void under Article 13(1) of the Constitution being inconsistent with the provisions of Articles 19(l)(g) and 31(2) of the Constitution, and reliance was placed on the decision of the Supreme Court in Saghir Ahmed v. the State of U.P. and others, 1955 I SCR 707). On behalf of the respondents it was contended that although as a result of the .....

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aghir Ahmed's case had no application and that the contentions put forward by the respondents were well-founded. ( 99. ) Saghir Ahmed's case was the first case in which the impact of Fundamental Rights guaranteed inter alia under Article 19(l)(g) of the Constitution as amended by the Constitution of India (First Amendment) Act, 1951 on a post-Constitution Act viz. the U.P. Road Transport Act II of 1951 came to be examined. The case is important because it was there held that a legislatio .....

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itations 'a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted.' We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Articlel9(l)(g) of the Constitution and is not shown to be protected by clause (6) of the article, as it stood at the time of enactment, must be held to b .....

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r. 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 P .....

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( 102. ) After stating the above proposition my learned brother has considered the source of the above statement of law by Professor Willoughby and has found explanation for it in the constitutions of some of the federating States in America where there is an express provision that a statute must not be amended merely by referring to its title but must be reenacted as a whole with the new portion incorporated in it. ( 103. ) With very great respect the whole of that discussion which includes ext .....

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roved by the Supreme Court, in my opinion it is not open to this Court to strike down the effect of those observations by trying to find explanations why they were made. ( 104. ) After the decision in the case of Saghir Ahmed, came the decision in M .P. V. Sundararamier and Company v. The State of Andhra Pradesh and another (1958 Supreme Court Report 1422) which again dealt with a post- Constitution law. One of the questions raised in that case was whether section 22 of the Madras General Sales .....

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t but valid as to the rest, assuming of course that the two portions are severable. 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." ( .....

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he 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 only one of the sections of the Act was void; the rest of the Act was valid. It was therefore said that the statute could not be held to have been wiped out of the statute book. It may also be mentioned that I have not been a .....

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as approvingly referred to in the judgment of S.R. Das C.J. and Subba Rao J. after dealing with the powers of Parliament and the Legislatures of the States and observing that those powers were subject to the limitations imposed by Part III of the Constitution, referred to the distinction between clauses (1) and (2) of Article 13 and said : "There is a clear distinction between the two clauses. Under cl. (1), a preconstitution law subsists except to the extent of its inconsistency with the p .....

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oes not embody a curtailment of the power to legislature or that it imposes only a check but not a prohibition. constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions; nor can we appreciate the argument that the words 'any law' in the second line of Article 13(2) posits the survival of the law made in the teeth of such prohibition. ( 107. ) It is said that a law ca .....

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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 ma .....

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rn law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be noquestion of its revival under the doctrine of eclipse. plain reading therefore of the words in Article 13(1) and Article 13(2) brings out a clear distinction between the two. Article 13(1) declares such pre-Constitution laws as are inconsistent with fundamental rights void. Article 13(2) consists of two parts; the first part imposes an inhibition on the power .....

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o postconstitution laws. Therefore in the case of Article 13(1) which applies to existing law, the doctrine of eclipse is applicable as laid down in Bikaji Naram's case, but in the case o a law made after the Constitution came into force, it is Article 13(2) which applies and the effect of that is what we have already indicated and which was indicated by this Court as far back as Saghir Ahmed's case." ( 109. ) The statute under challenge in that" case was U.P. Land Tenures (Reg .....

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ed without legislative competence, and the doctrine of eclipse does not apply to them. We are therefore of opinion that the Constitution (Fourth Amendment) Act cannot be applied to the Transfer Act in this case by virtue of the doctrine of eclipse. It follows therefore 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 accordi .....

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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 the laws which were void were ineffectu .....

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e does not seem to be willing concede the full implications of the statement of law laid down therein. It was there said: "But there is one, vital difference between pre-Constitution and post Constitution laws in this matter. The voidness of the preconstitution laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for some time and for certain purposes: the voidness of post-Constitution laws is from their very inception .....

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on. ( 112. ) Riding to my learned brother, the decision in Mahendra Lal Jaini's case "confirms the view that the statute itself continues to exist on the statute book but has become ineffectual, nugatory and devoid of any legal force or binding effect. The thrust of these words is that such a law cannot be given effect to by the Courts in deciding upon the rights of the parties. These words are significant only for the purpeses of the Courts visa-vis the rights of the parties. They woul .....

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r '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 e .....

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tizens and therefore if ths shadow was removed by a constitutional amendment it would immediately be applicable even to the citizens without being re-enacted. But even the learned Chief Justice was not prepared to go further and he said, "whether a post-Constitution law of the other kind, namely, which infringes a fundamental right guaranteed all person, irrespective of whether they are citizens or not, and which, therefore, can have no operation at all when it is enacted, is to be regarded .....

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Jaini's case is a clear authority for the proposition that the doctrine of eclipse cannot apply even to a statute of the kind which S.R. Das C.J. had in mind for it is clearly said there that " in the case of post-Constitution laws, it would be hardly appropriate to distinguish between laws which are wholly void as for instance, laws contravening Article 19. Theoretically, the laws falling under the latter category may be valid qua non-citizens; but that is a wholly unrealistic consider .....

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On behalf of the respondents it was argued that the cases of Deep Chand v. the State of Uttar Pradesh and others') and Mahendra Lal Jaini v. the State of UttarPradesh and others') could not be treated as authoritative in view of the fact that Sundararamier's case was neither cited nor considered in either of these two cases. With regard to Deep Chand's case it was also argued that since all the Judges in that case were unanimously of the view that the Act did not violate Article .....

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tween 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 wa .....

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nce is due to the clear separation of functions between the Legislature and the Judiciary. The function of the Legislature is fundamental and formal. No statute can come into existence unless the Legislature makes it. No statute can go out of existence unless the Legislature repeals it. The Courts do not possess the power to make a statute or repeal a statute. The function of the Courts is to interpret a statute and to give it a meaning. If, according to the decision of a Court a statute or a pa .....

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e competence which can repeal a statute. But that is by no means the entire statement of law on the point. What the court does when it holds a statute to be void under Article 13(2) is to declare that such a statute had not been enacted at all. It existed neither in the past nor shall it exist in future. Having been born dead there is nothing except its reversal that can revitalise it. The activities of the two organs of State, namely, the legislature and the Courts, though complementary and in .....

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titution or any other Constitutional provision which 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 wh .....

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mstance 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 statute is not printed. It may be that once a statute is repealed, a red line is drawn across it in the statute book to show that it is no longer there. The same result will follow or at any rate, should follow, when a statute is declared void by the Su .....

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y my learned brother need not be reproduced here. I find it hard to subscribe to the view that when the Supreme Court declares a statute or a part of it as void under Article 13(2) of the Constitution, it merely decides the rights of the parties and there is no judgment against the statute or that the decision merely operates as a precedent for the determination of other similar cases but it does not strike the statute from the statute-book'. Having regard to the provisions of Article 141 of .....

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remains on the statute book as a subsisting law for any purpose. The argument that the Supreme Court is not bound by its previous decisions is neither here nor there for there is nothing under the sun which is ever-lastingly immutable. Human judgment being the result of finite intelligence is variable and subject to change and, therefore, any declaration made by ajudgment in respect of a statute may also suffer from the same infirmity. There is nothing absolute. All perception and knowledge is .....

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fies 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 Cou .....

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e Supreme Court to which our attention was invited by the learned counsel. The argument by analogy, based on the two cases : (1) Ram Kirpal Bhagat v. State of Bihar-Criminal Appeal No. 182 of 1966 decided on 13-11-1969(16) and (2) Sadasib Prakash Brahmchariv. The State of Orissa (1956 SCR 43) also does not carry the point further. There is no parallel between an existing law which though in force in some area has not yet been extended to another area and a law which has been declared by courts t .....

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. Prather 102 Cal. 412=36 Pacific 658 (1894) Allison v. Corker 1902, N.L.J. 596-52A. 362 60 L.R.A. 564) and has extracted passages from those judgments. I have not had the benefit of reading those judgments and would therefore not like to say anything about them. ( 128. ) This takes me to the second part of the petitioner's argument, namely, that since a void statute cannot be amended the only way to achieve the object which the Legislature has in view, consistently with the provisions of th .....

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SCR 650) which has been noticed by my learned brother himself but has been distinguished on grounds, which if I may say so with very great respect, do not commend themselves to me. The facts of that case are that on June 30, 1965 the Legislative 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 t .....

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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 Legislature passed the Pondicherry General Sales Tax (Amend .....

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n, the Amendment Act could not resuscitate that which was still-born. Support for this contention was sought from the decisions of the Supreme Court in Deep Chand v. the State of Uttar Pradesh and Mahendra Lal Jaini v. the State of Uttar Pradesh and others'). Against that contention the position taken by the respondents was that assuming that the principal Act suffered from the said defect the defect was removed by the Amendment Act inasmuch as the Pondicherry Legislature re-enacted the said .....

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1965 was still-born and, therefore, could not be revived by the Amendment Act of 1966. It was also held that the Amendment Act was passed on the footing that there was in existence a valid Act and that it was and was intended to be an amendment of the Principal Act. It could not be construed as an independent legislation and, therefore, it could not be said that the Pondicherry Legislature had reenacted the Principal Act extending the Madras Act as amended upto April, 1, 1966 to Pondicherry. ( .....

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f 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 Indi .....

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risdiction. Within those territorial limits the statute has to be regarded as 'still-born', 'dead' and 'non-existent' and unless it is re-enacted, it will be wholly inoperative and of no legal effect. Take the case of a statute which has been declared void by the High Court of one State while it has been held to be valid by the High Court of another State. So far as the State where it has been held valid or at any rate, has not been held void, no question of its amendment .....

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) The second ground of distinction pointed out by learned counsel, appears to me to be even less substantial than the first. It is true that unconstitutionality of Pondicherry Act, 1965 was not by reason of its being contrary to any provision of Part III of the Constitution and the decision is, therefore, not one under Article 13(2) of the Constitution. But as I have said before, the constitutional prohibition under Article 13(2) and lack of legislative competence which must include abdication o .....

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of the East Punjab General Sales Tax Act, 1948, as originally enacted, conferred on the Government power to levy tax at such rates as the Government might fix. The section was amended by Act 18 of 1952 with retrospective effect fixing the rate of tax at "not exceeding two pice in a rupee". The appellants' petitions in the High Court challenging the imposition of purchase tax for the years 1958-59 and 1959-60 on the purchase of the goods covered by the Act were dismissed by the High .....

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endment 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 statu .....

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l beinserted and shall be deemed always to have been so inserted, namely :- 'not exceeding two pice in a rupee." ( 137. ) The case of B. Shama Rao was distinguished on the ground that in that case the whole of the Madras Act was void for the simple reason that the core of that Act which was a taxing statute lay in the charging section and the remaining sections had no independent existence. In Devi Das's case the charging section was intact and what was struck out was only the secti .....

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which was not in existence. ( 139. ) The contention was met by the learned Chief Justice in these words :- "No doubt in terms the section inserts the words 'not exceeding two pice in a rupee' in section 5. If section 5 is inserted in the Act by the Amending Act with the said words added, there cannot possibly be any objection, for that would be an Amendment of an existing Act. But insubstance the amendment brings about the same effect. The words 'shall be deemed always to have .....

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have been so inserted" 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 retrospectivel .....

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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 amendment applies only to future transactions. But I am not aware of any decided case in which it has beer) laid down that that is the only purpose of a retrospective amendment. On the other hand, if I understand aright the import of the passage from the judgment of .Dew Da .....

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y definite opinion on this point in the present case. ( 144. ) Cousel for the respondents seemed to take the view that the decision inMahendraLa1 Jaini's case being con- trary to the decision in Deep Chand 's case in so far as it held that there was no distinction between clauses (1) and (2) of Article 13 as to the meaning of the word "void" and therefore the observation at page 662 of the report in B. Shama Rao's case that "an amendment could be made only of a valid A .....

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ke that view of the decision of the Supreme Court. So far as we are concerned we are bound to follow the majority view in B. Shama Rao's case and cannot take shelter behind any notions of supposed legislative piactice nor is it open to us to say that a "rigid adherence to the r) new legal position (as expounded in B. Sahma Rao's case) could un-settle the division of functions between the legislature and the courts enshrined in the Constitution." ( 146. ) In this connection, the .....

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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 .....

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1969) 3 SCR447:(2) MahalChand Sethia v. State of W. Bengal (1969) 3 SCR 500: and Janapada Sabha Chhindwara v. the Central Provinces Syndicate Ltd. and Another (Civil Appeals 125 to 133 of 1967 decided on 23-2-1970). ( 148. ) The circumstances which gave rise to the decision in the Municipal Committee Amritsar and Another v. State of Punjab were these : ( 149. ) The Punjab Cattle Fairs (Regulation) Act, 1967 was struck down by the Punjab High Court by its judgment in several connected writ petiti .....

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High Court the validity of the amending Act and the Act as amended was up-held by its decision reported as Khear Singh v. The State of Punjab and another (1969) 71 PLR 24. ( 150. ) In Mohinder Singh Sawhney's case the principal Act was struck down on the ground that the legislation was vague, uncertain and ambiguous inasmuch as no definition of the words "Cattle Fairs" was to be found in the Principal Act. This definition was provided by the amending Act of 1968. Before the Suprem .....

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of the Supreme Court first dealt with the matter as to whether the principal Act had been rightly and correctly struck down. On this the rule laid down was that the Punjab High Court had applied the test of "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 .....

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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, nonexistent, so long as there was no definition of the expression 'cattle fairs' in the A .....

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n why these observations cannot be regarded as over-ruling the view that re-enactment was necessary is that there is no- reference to those cases nor is there any discussion on the subject. In any case, those decisions were of the Constitution Bench comprised of five Judges while the decision in the case of Municipal Committee of Amritsar is by a non-Constitution Bench of three Judges. ( 153. ) As regards the decision in Mahal Chand Sethia v. State of W. Bengal (1969) 2 SCR 500), the reliance pl .....

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sequently superseded by the State Government and it re-allotted the cases to the Special Court created earlier. The order of re-allotment was challenged in the High Court and was held to be bad. Thereafter West Bengal Criminal Law Amendment (Special Courts) Act, 1954 was passed by the West Bengal Legislature. By this Act the State Government was authorised to withdraw any case from any Special Court and transfer the same to any other Special Court for disposal provided the first court had not ta .....

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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 .....

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actions already taken which would otherwise be invalid as done without legislative sanction. There is nothing in our Constitution which creates any fetter on the Legislature's jurisdiction to amend laws with retrospective effect and validate transactions effected in the past. Further there is nothing in our Constitution which restricts the Jurisdiction of the legislature to cases where Courts of law have not pronounced upon the invalidity or infirmity of any legislative measure. . - . . .&q .....

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in the following words quoted on page 503 of the report:- "The new sub-section shall be and shall be deemed to have always been substituted for the old sub-section." Further, it was also provided in the amendment that notwithstanding anything to the contrary contained in the judgment decree or order of any court where a transfer as made by the State Government had been ordered it shall be deemed to have been validly made as if the amendment was always in force. ( 156. ) The reference t .....

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rlier decision of the Supreme Court was made innocuous as would be apparent from the passage cited by my learned brother and has nothing to do with the point at issue. ( 157. ) It may now refer to two other decisions of the Supreme Court to which our attention was invited by the learned counsel for the respondents. One is State of Mysore and Another v.D.Achiah Chetty etc. (AIR 1969 SC 477). I have not been able to appreciate the precise relevance of this case to the present case. But if at all i .....

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ion 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 corres .....

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ases the provisions of the Improvement Act had been applied. Before the petitions came up for hearing the Governor of Mysore promulgated an Ordinance called the City of Bangalore Improvement (Amendment) Ordinance, 1960 introducing retrospectively 27-A. This was followed by an Act which reenacted the provisions of the Ordinance. By this section compliance with the Third Chapter of the Improvement Act was dispensed with. The petitioners then challegned the Amending Ordinance and the Amending Act o .....

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erefore, struck down. The State appealed against the decision to the Supreme Court but before the appeal came up for hearing the Bangalore Acquisition of Lands (Validation) Act, 1962, was passed by the Mysore State Legislature which received the assent of the President on 4th May, 1963, which purported to validate all past actions notwithstanding any breach of the Improvement Act or any other law or the decree and order of the High Court. The State Government contended that the Validating Act cu .....

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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 no .....

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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 statute is truly nonexistent as it has gone out of the statutebook and would, therefore have to be ignored not only by the Courts but also by the legislature which would have to undertake further legislation. On the other hand, a statute declared void by the Supreme Court or High Court only loses its .....

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o have any relevance. On the other hand, it may be argued with a certain degree of plausibility that the legislature being alive to the difficulty of getting rid of the discrimination resulting from the existence of two parallel procedures enacted a third Act putting out of action retrospectively one of the procedures leaving in the field only the other procedure that had already been followed and thus caused the discrimination to disappear. ( 163. ) In substance the legislative process was one .....

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ounds of illegality or invalidity are capable of being removed and are in fact removed and the text thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the t .....

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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 .....

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165. ) At this stage one other decision of the Supreme Court: N.B. Jeejeebhoy v. Assistant Collector Thana Prant, Thana (1965) I SCR 636) may be noticed. The Land Acquisition (Bombay Amendment) Act, 1948, a preconstitution statute was held to be "still-born" and void at the inception because it did not provide for payment of compensation as required by section 299(2) of the Government of India Act, 1935. It was, therefore, not an "existing law" within the meaning of Article .....

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void statute. It is, however, one other argument that was advanced by the learned Attorney General on behalf of the respondents which is of interest so far as the matter under discussion in the present case is concerned. The argument was based on two earlier decisions of the Supreme Court, namely Dhirubha Devisingh Gohil v. the State ofBombay (1955) I SCR691 and the State of Uttar Pradesh v. H.H. Maharaja Brijender Singh (I.L.R. (1961) 1 Allahabad 236). In the first case the validity of the Bom .....

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1-B of the Constitution which was construed as affording protection to each and every one of the Act specified in the Ninth Schedule from any challenge on the ground of violation of any of the 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 .....

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amely, '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 in the Ninth Schedule would be covered by Article 31-A, this Article would become redundant. Indeed, some of the .....

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ould not save it." ( 168. ) In the result the Amending Act was held void. Counsel for the respondents contended that the decision establishes the principle that a void statute is ignored by the Courts as non-existent in law in deciding the rights of the parties but is taken note of by Parliament as being on the statutebook for the purpose of validating and other legislation. I am unable to appreciate how this result follows from the above decision. In my opinion the ratio of the decision on .....

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may be re-enacted after the vice which had led to the declaration of voidness being removed from it; (ii) The legislature may pass a validating Act retrospectively putting out of the way one of the ccmpeting statutes which enabled unconstitutional discrimination being practised under it and by providing that all action should be deemed to have been taken and shall be continued under the other statute which is otherwise without blemish. (iii) By constitutional amendment specifically mentioning th .....

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