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1951 (7) TMI 21

..... vai, Adv. For the Respondent : M.M. Javeri and N.A. Palkhiwala, Advs. JUDGMENT M.C. Chagla, C.J. 1. This appeal arises out of a petition challenging an order of requisition made under Section 6 (4) (a), Bombay Land Requisition Act, 1948, requisitioning the premises of the petitioner who occupied them as a sub-tenant. When this petition first came up before Tendolkar J. he held that Act XXXIII [33] of 1948 was void. The State of Bombay came in appeal and we held Heman Santlal Alreja v. State of Bombay, 53 com. L.R. 355, that that Act was not void and remanded the petition to the learned Judge for disposal on merits. The learned Judge considered various preliminary points that were raised with regard to the validity of legislation dealing with requisition. He came to the conclusion that Act XXXIII [33] of 1948 amended by the Bombay Land Requisition (Amendment) Act, 1950, (Act II [2] of 1950) and further amended by the Bombay Land Requisition (Second Amendment) Act, 1950, (Act XXXIX [39] of 1950) was void on various grounds and he also held that the order of requisition dated 29 5 1950, was bad inasmuch as it did not state the public purpose for which the premises had been requisition .....

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..... provided (to the extent that it is material) that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land. The Act under consideration is an Act authorising the Government to requisition land for any purpose and the learned Judge has taken the view that requisition permissible under the Act is for an indefinite period and, therefore, in law such requisitioning amounts to compulsory acquisition, and as compulsory acquisition is admittedly not for public purposes, the Provincial Legislature were debarred from enacting any such law by reason of Section 299(2), Government of India Act. Therefore the question that we have to determine is whether on a true construction of Act XXXIII [33] of 1948 it can be said that it is a law authorising the compulsory acquisition for public purposes of any land. The first question that arises is whether requisitioning, whether for a definite or indefinite duration, amounts to compulsory acquisition within the meaning of Section 299(2), and in order to answer this question it is necessary to state the legislative history with regard to this sub-section. In T .....

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..... f this be the correct test, then it is clear that when Government take possession of property under the powers given to it under Act XXXIII (33) of 1918, they are requisitioning property and not acquiring it, because it is not disputed that there is no transfer of ownership or title when possession is handed over to Government, the ownership and title continuing to remain vested in the owner of the property. The view we took as to the meaning of acquisition has received support from a judgment of the Supreme Court in Charanjit Lal v. Union of India, 53 Bom. L.R. 489 sc . Mukherjea J. at p. 515 says: In the context in which the word 'acquisition' appears in Article 31(2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title,... 6. The learned Judge has come to the conclusion that he has on the ground that Bhagwati J.'s judgment in Tan Bug Taim v. Collector of Bombay, 47 Bom L.R. 1010 was based upon the minority judgment in Minister of State for the Army v. Dalziel, (1944) 63 L.R. 261 and according to Tendolkar J. as the Supreme Court has now held that the minority judgment is no longer good law but the majority judg .....

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..... the totality of the rights which the ownership of the object connotes, and the learned Judge states at p. 516 that he found it difficult to accept that contention. He says: The teat would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietary right. It was in this connection that he referred to a passage from the judgment of Rich J. in Dalziel's case (1941-68 c. L.R. 261). Then the learned Judge goes on to say that it was not necessary to pursue the matter any further as in his opinion there had been no possession of the rights of the shareholder in that case. Therefore, in the first place, the observation of Mukherjea J. is an obiter and he definitely refused to decide the question; in the second place the obiter is with regard to the question of taking possession and not acquisition; and, finally, the obiter merely lays down that in order to constitute taking possession the totality of rights need not be taken away: but if a person is substantially deprived of his rights, then it would constitute taking possession within the meaning of Article 31. It is .....

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..... tute itself. Now, it is well settled that when a temporary Act lapses, the rules and orders made thereunder expire, and Act XXXIII (33) of 1949 is a temporary Act which was liable to expire on 31-3-1950 unless it was ox-tended for a further period not exceeding two years. Therefore, in any case the outside limit of the duration of the Act was fixed at 31-31952. The learned Judge has taken the view that by reason of the fact that under Section 3 (2) of the Act Section 7, Bombay General Clauses Act, 1904, has been made applicable upon the expiry of the Act, orders of requisition made under the Act would continue in force for an indefinite period after the Act lapses by efflux of time. In our opinion, the view taken by the learned Judge, with respect, of the effect of Section 7, Bombay General Clauses Act is not a correct one. Section 7 merely saves anything duly done or suffered under a repealed Act or any right, privilege, obligation or liability acquired, accrued or incurred under such an Act. Any action taken or any right acquired or liability incurred under any requisitioning order made under Act XXXIII [33] of 1948 is saved notwithstanding the fact that the Act may cease to be o .....

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..... 1952 save as respects things done or omitted to be done before that date. Therefore, we had a provision in that Act for saving what had already been done and yet that was not considered sufficient to save preventive detention orders made under the Act after the expiry of the Act. Mahajan also dealt with the operation of temporary statutes. The learned Judge says (p. 463): Such temporary statutes cease to have any effect after they expire, they automatically come to an end at the expiry of the period for which they have been enacted and nothing further can be done under them. The learned Judge below has considered an analogous legislation with regard to the requisitioning of land under the Defence of India Act and he has pointed out tint there express provision was made that all requisitioned land shall continue to be subject to be requisitioned until the expiry of the Ordinance or the Act as the case may be, and the learned Judge draws the inference that as such words are omitted from Act XXXIII [33] of 1948, therefore the legislature did not intend the requisitioning orders made under the Act to cease to have effect after the expiry of the Act, With respect to the learned Judge, t .....

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..... gislature. It is also well settled that if pursuant to the power conferred upon it by Section 8 of Act XXXIII [33] of 1948 the Provincial Government had issued a notification extending the Act for a further period of two years, the efficacy of such notification could not have been due to any independent power vested in the Provincial Government, but would have been duo to the Legislature itself which had provided for the issue of such a notification. In The Empress v. Burah, 5 Ind. App 178 power was given to the -Lieutenant-Governor under Act XXII [as] of 1869 to issue various notifications, and dealing with this power their Lordships of the Privy Council at p. 195 say; Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them will be due to any other legislative authority than that of the Governor General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (XXII [22] of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result .....

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..... o the Legislature to take the power directly into its own hands which it had conferred upon Government. But it is pointed out that the Legislature did not merely extend the duration of Act XXXIII [33] of 1948 by Act II [2l of 1950 ; it also passed substantive legislation ; and therefore it is pointed out that it would be a mistake to think that the Legislature was merely functioning to give effect to the power it had conferred upon the Provincial Government. 14. Now, in this appeal we are strictly not concerned with the other provisions of Act II [2] of 1950. In our opinion, these provisions are clearly severable from Section 2 with which we are concerned. There can be hardly any doubt as to the severability of the other provisions of Act II [2] of 1950, because Act XXXIII [33] of 1948 could be administered without these provisions till Act II [2] of 1950 was passed. The petitioner in this case is in no way affected by any of the substantive provisions of Act II [2] of 1950. He is only concerned with these provisions of Act XXXIII [33] of 1948 which have been extended by Act II [2] of 1950. Therefore, we do not propose to decide whether the Legislature effectively amended certain p .....

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..... xisting law referred to in Article 31(5)(a) are merely the provisions of Act XXXIII [33] of 1948 which keeps the Act in force up to 31-3-1950, or whether they also include the provision which permits of its extension for a further period of two years. Existing law is defined in Article 366(10) as any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation. Therefore, in order that a law should be an "existing law" the only qualification laid down by the Constitution is that it should have been passed before the commencement of the Constitution. Inasmuch as the Provincial Legislature in 1918 not only passed the law fixing its duration till 31-3-1950, but also passed conditional legislation extending its duration up to 31-3-1952, on a plain reading of the definition of "existing law" the provisions of an existing law for the purposes of Article 31(5)(a) included both the actual operation of Act XXXIII [33] of 1948 and its potential operation in the sense that the Act had within itself the pote .....

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..... des not only law actually in force but also law potentially in force in the sense of the law being capable of being extended by means of a notification or other method. According to Mr. Palkhivala the scheme of the Constitution is this. Article 373(1) continues in force all the laws in force in the territory of India immediately before the commencement of the Constitution. This includes laws actually in operation and also by reason of Explanation I laws which may not be in operation at the date of commencement of the Constitution or laws applied only to particular parts and not extended to the whole country. These laws in force are to continue subject to the provisions of the Constitution and one of the provisions in the Constitution is Article 13(1). Article 13(1) makes void all laws actually in operation and also all laws potentially in operation to the extent that they are inconsistent with fundamental rights, When we turn to Article 31(5)(a) what is saved is not "laws in force" but "existing laws," Therefore, only laws in actual operation and not potentially in operation are saved. Therefore, when we have a law which is actually in operation which contains p .....

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..... ded to certain territories. Because its connotation was narrow and restricted, the Constitution had to give to it an extended meaning both in Article 13 and in Article 372 by including in the expression ''law in force" any law or any part thereof which may not be in operation at the date of the commencement of the Constitution at all or in particular areas. I must frankly confess I am at a loss to understand why instead if giving this extended moaning by an explanation the Constitution did not use the same expression "existing law" in Article 13 and in Article 372. The ways of draftsmen like these of Providence are very often inscrutable. But Mr. Seervai has pointed out an explanation which according to him does not make the ways of draftmen so inscrutable as we think they are. He has drawn our attention to the Government of India Act, 1935, which was the constitutional predecessor of our Constitution and be points out that Section 282, Government of India Act in terms corresponded to Article 372. Section 293, Government of India Act dealt with adaptation of laws which is dealt with in our Constitution by Article 372(3), and just as in Article 372 the express .....

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..... ate of the passing of this Act, when we turn to Article 31(5)(a) the expression used is "existing Jaw" and not "law in force." There is one indication which we might resort to, although with some hesitation, and that is the marginal note both to the Government of India Act and the Constitution. It is clear that marginal notes to sections in statutes may not be looked at for the purpose of construing the section. But as Maxwell points out at p. 45, the rule regarding the rejection of marginal notes for the purposes of interpretation is now of imperfect obligation, and the learned author cites with approval the language of Collins M.R. in Bushell v. Hammond. (1904) 73 L.J. K.B. 1005, "the side-note, although it forms no part of the section, is of some assistance, inasmuch as it shows the drift of the section." 19. Reference has been made to the observations of their Lordships of the Privy Council in Balraj Kunwar v. Rae Jagatpal Singh, 31 Ind. App. 132 (P.c.) where they say (p. 142): It is well settled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated i .....

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..... egard to any future law that the State might make. Therefore, it would not be true as far as Article 19 is concerned that the intention of the Constituent Assembly was to save only laws actually in operation and to declare void laws only potentially in force and laws to be made in future. We also find that high judicial authority has also taken the same view of the interpretation of the two expressions 'law in force" and "existing law". In The United Provinces v. Mt. Atiqa Begum, 1910 2 F.C.R. 110, an Act which was retrospective in ids effect was challenged on the ground that it contravened Section 292, Government of India Act, which directed all laws which were in force to continue in force until they were repealed or amended, and Sir Maurice Gwyer C. J. says (p. 131): The purpose of Section 292 was clearly to negative the possibility of any existing Indian law being held to be no longer in force by reason of the repeal of the law which authorised its enactment; and it is a safeguard usually inserted by draftsmen in similar circumstances. Therefore, the learned Chief Justice looked upon Section 292 as an enactment which kept in force existing law, and the learne .....

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..... urposes of the Union. But the construction of Entry 36 in the State List presents considerable difficulty. It is difficult to see why acquisition or requisitioning of property is qualified by "except for the purposes of the Union" because under Article 246(6) the power of the State Legislature has been made subject to the power conferred upon the Union Legislature under Lift I. It is equally difficult to understand why the power of the Provincial Legislature is made further subject to the provisions of Entry 42 of List III, because the power of the State Legislature again has been made subject to the powers conferred under the Con-current List. The learned Judge below read the expression ''subject to the provisions of Entry 42 of List III" as importing into it the limitation upon the power of the State Legislature to acquire or requisition property only for the purposes of the State or for any other public purpose. With respect, we are unable to agree with that construction. The only limitation placed upon the State Legislature is that it can-not legislate with regard to acquisition or requisitioning of property for purposes which are for the purposes of the .....

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..... islature rather than outside these limits. This principle was clearly enunciated by Sir Maurice Gwyer in In re The Hindu Women's Rights to Property Act, 1937, (1941) 3 F.C.R. 12. The question that was agitated before the Court in that case was whether the Hindu Womens Eights to Property Act, 1937, was void inasmuch as it affected succession to agricultural land. This Act was passed by the Legislative Assembly of the Indian Legislature on 4th February 1937. This was before Fart in of the Government of India Act came into force. At that time the powers of the Indian Legislature were plenary. It was passed by the Council of State on 6th April 1937, after Part Hi came into operation and received the Governor. General's assent on 14th April 1937. After Part III came into force, which was on 1st April 1037, the Central Legislature was precluded from dealing with the subjects enumerated in List II of the Seventh Schedule to the Government of India Act. Laws with regard to the devolution of agricultural laud could be only on acted by Provincial Legislatures and the Central Legislature had no competence to legislate with regard to agricultural land. The word used in the Hindu Women& .....

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..... se who were actually within their jurisdiction, and within the limits of the Colony. 22. Therefore, in this particular case if the Bombay Legislature was legislating for requisitioning of land for any purpose, it was using an expression of wide and general import and the presumption would be that it was using that expression only with reference to these purposes which it was within its competence to legislate about. It should be noted that this is not a question of severability. The Court is not severing "purposes of the Union" from "other purposes." Severability would imply that the Legislature had legislated both for purposes of the Union and other purposes and then the Court would try and see if the Act was sever-able, and if. so, save that portion of the Act, which was within the competence of the Legislature But as Sir Maurice Gwyer pats it, this is a question of construction, and if on a true cons, traction we hold that the Legislature was legislating for purposes other than the purposes of the Union, then the legislation would be a competent legislation and no question of severing "purposes of the Union" from "other purposes" would ari .....

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..... Therefore, it was the test of severability that Mr. Justice Sastri was applying. As we said before, on the view that we take, we are not dealing with a case of severability but with a case where we have to put a particular construction upon the expression used by the Legislature. Reliance was also placed on a judgment of the Federal Court in Rex v. Basudev, 1940 F.C.R. 657. In that case the Legislature of the United Provinces passed an enactment authorising the Provincial Government preventively to detain any person who habitually indulged in blackmarket. The Federal Court held that the law was bad as it was ultra vires of the Provincial Legislature. It was pointed out by the Federal Court that the power to make laws with respect to preventive detention which a Provincial Legislature had under Entry 1 of List II, Government of India Act, 1935, was strictly limited by the condition that such detention must be for reasons connected with the maintenance of public order, and the Court held that blackmarketing was not a reason connected with the maintenance of public order. It is difficult to see how this decision is of any assistance. The Legislature had passed a law unconnected with p .....

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..... efore, the Legislature attempted retrospectively to bring Act XXXIII [33] of 1818 into conformity with the Constitution by putting Act XXXIX [39] of 1950 on the statute book. Counsel for the petitioner has given up the contentions taken up in the Court below that Act XXXIX [39] of 1950 was bad inasmuch as it did not receive the assent of the President and also the contention that the Legislature could not retrospectively amend an unconstitutional Act. It is, however, urged by Mr. Palkhivala that if Act II [2] of 1950 was void, it was void from its inception and therefore it failed to extend Act XXXIII [33] of 1948, and when Act XXXIX [39] of 1950 was passed there was no law regarding acquisition on the statute book which could be amended by that Act. 26. The American authorities draw a distinction between unconstitutional Acts which are void from their inception and these Acts which become, void only when the Court declared them to be unconstitutional. Willis on Constitutional Law at p. 90 says: There is a second class of situations in which the Courts are in conflict as to whether the rule should be the rule of void ab initio, or the rule of void from date of declaration of uncons .....

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..... as under Article 13(1) it would be for the Courts of law to determine which laws are inconsistent with the Constitution. This case went before the Supreme Court. The Supreme Court came to the same conclusion as we did but on a different ground, and Das J. in Keshavan Madhava Menon v. The State of Bombay, (195l) S.C.R. 228 states: ... it should further be seen that Article 13(1) does not in terms make the existing laws which are inconsistent with fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing laws will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the position today is that when the petitioner comes before us and asks us to declare Act XXXIII [33] of 1948 as void on the ground that it contravenes the fundamental rights of the citizen, we find on the statute book .....

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..... purpose or the purpose of the State in the order, as in fact the law then was different. But the State cannot have it both ways. If the Legislature has retrospectively cured the defect of unconstitutionally in Act XXXIII [33] of 1948 by Act XXXIX [39] of 1950, then any order that offends against the provisions of the amended Act must be held to be bad. The argument that the law in fact was different cannot avail the Solicitor General, because the Legislature has declared that the law must be deemed to have been as amended by Act XXXIX [39] of 1950. Therefore, we must uphold the view of the learned Judge below that the requisitioning order dated 29-5-1950, is bad ex facie, it having failed to mention the purpose for which the order was made, 28. The result, therefore, is that the appeal fails and must be dismissed. 29. On the question of costs, the learned Judge below having held on all points in favour of the petitioner directed that the petitioner should pay the costs of the petition up to the amendment and all costs incurred subsequent thereto should be paid by the respondent. In the appeal before us, the petitioner has lost on all the points urged by him except the minor point a .....

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