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1951 (7) TMI 21

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..... ombay 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 requisitioned. He, therefore, issued a writ of mandamus against the State of Bombay restraining it from enforcing or taking any proceedings in the enforcement of that order. The State of Bombay has appealed from that decision. 2. In considering the validity of the Requisition Act, we have to bear in mind that although the administration of the Act may have resulted in some hardship, on the whole it is a beneficent measure intended to subserve a very pressing social need. It, therefore, calls at our hands a benevolent interpretation. The Court must always lean in favour of holding the validity of an Act rather than against it. There may be cases where a law is alleged to contravene fundamental rights. In such a case, undoubtedly, the Court must zealously scrutinize the provisions of the impugned Act in order to see that fundame .....

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..... d 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 Tan Bug Taim v. Collector of Bombay, 47 Bom. L.R. 1010, Bhagwati J. took the view that requisition was not acquisition because it only created in the Government the right to temporary use and possession of land and did not transfer any title. Pie therefore, took the view that the Provincial Legislature had no competence to legislate with regard to requisition of land as the subject-matter did not fall within Entry 9 of List II which dealt with compulsory acquisition of land. In view of this decision, the Government of India issued a notification on 21-10-1947, under Section 104, Government of India Act, by which the Governor. General empowered all Provincial Legislatures to enact laws with respect be the requisitioning of land, being a matter not enumerated in any of the Lists in Schedule 7 to the A .....

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..... 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 judgment correctly lays down the law, the judgment of Bhagwati J. must be considered to be overruled. Turning to this Australian case, the facts on which the judgment of the High Court was baaed we're that one Arthur Dalziel was the occupier as a weekly tenant of certain vacant land and this land was taken possession of by the Commonwealth of Australia. The taking possession of was held to be for an indefinite period, and the question that arose was whether on these facts the taking possession constituted an acquisition of property within the meaning of the placitum in the Australian Constitution (Section 51 (xxxi)) which empowered the Parliament to make laws with respect to the acquisition of property on just terms from any state or person for any purpose in respect of w .....

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..... 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 difficult to see how from this obiter it is possible to infer that Mukherjea J. overruled the judgment of Bhagawati J. or that he accepted the view of the majority in the Australian case that acquisition does not necessarily imply a transfer of title or ownership. 8. Mr. Jhaveri has asked us not to interpret Section 299(2) in the light of Article 31(2). He rightly points out that Article 31(2) deals both with acquisition and taking possession and the Constitution has provided safeguards in favour of the citizen both when the State acquires property or takes possession of property. Therefore, according to him a distinction may legitimately be drawn between the connotation of the expression acquisition and the connotation of the expressio .....

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..... 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 operative. But Section 7 does not authorise the Government to continue in force orders of requisitioning made under the Act after the expiry of the Act. The power of Government to requisition property springs from the provisions of the Act, and if the Act lapses, then these powers must also cease to exist. It would have been open to the Legislature to continue in force the orders of requisitioning made under the Act after the expiry of the Act, but the Legislature has not chosen to do so, and Section 7, Bombay General Clauses Act, can-not be construed to mean that by reason of its provisions the orders of requisitioning passed under the Act do not cease to be operative and continue in operation for an indefinite period. It is instructive to consider the language of Section 20 which re .....

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..... ere 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, the mere omission of these words cannot possibly affect the true interpretation of Section 7, General Clauses Act. Those words may have been inserted for greater caution, and the absence of these words cannot lead one to the conclusion that the requisitioning orders made under the Act would continue to be in force after the Act had expired. 11. Therefore, in our opinion, the power of requisitioning given to Government under the Act was not for an indefinite period; the power was restricted and circumscribed by the duration of the Act. We, therefore, hold that Act XXXIII [33] of 1948 was intra vires of the Provincial Legislature. 12. We have nest to consider the validity of Act [II] of 1950. That Act amended Act XXXIII [33] .....

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..... 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 of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. It was also pointed out by the Privy Council in Hodge v. The Queen (1833) 9 A.C. 117: . . .It was argued as the Bar that a Legislature committing important regulations to agents of delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has treated and set up another, or take the matter directly into its own hands. 13. Therefore, when the Legislature by Act II [2] of 1950 extended the Act for two years, it was not passing any new legislation, but it was doing exactly what th .....

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..... ny 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 provisions of Act XXXIII [331 of 1948 by enacting amendments in Act II [2] of 1950. 15. The authorities also draw a distinction between the repeal of an old Act and the re-enacting of a new Act and the extension of an old Act. When an Act is passed extending the duration of some law, it cannot be said that some new law was created. The old law already on the statute book continues. Our attention was drawn to an American case which is relevant on the point. In United States v. Powers, (1938) 307 U.S.R. 1245, the Connally Act of 22-2-1935, originally provided that it should cease to be in effect on 16-6-1937, but it was extended prior to 16-6-1937 to 30-6-1933, and the Su .....

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..... 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 potentiality of being extended up to 31-3 1952. If this be the true position, then Act XXXIII [33] of 1948 as amended by Act II [2] of 1950 to the extent that it merely extended its duration up to 31-3-1952, was an existing law. If it was an existing law even though it contravened the provisions of Article 31(2), inasmuch as the power of requisitioning vested in Government was not restricted to public purposes, even so it would not be void as the contravention is permissible under Article 31(5)(a), The question may be looked at from another point of view. Article 31(2) prohibits the State, which includes the Legislature, from making any law which t .....

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..... sions 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 provisions for its potential extension, the actual law is saved under Article 31(5)(a), but to the extent that it may be extended in future it may become void under Article 13(1) if it contravenes any of the fundamental rights. This argument is advanced for the contention that as far as Act XXXIII [33] of 1948 was concerned what was saved by Article 31(5)(a) was the actual operation of law till 81-8-1950, but to the extent that it was potentially capable of being extended for two years beyond 31-3-1950, it was not saved by Article 31(5)(a). According to Mr. Palkhivala, the Constituent Assembly drew a dead line at laws actually in operation and refused to save them beyond that line if they contravened any of the fundamental rights .....

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..... 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 expression used in S. 292 and 293 is law in force and not existing law, the expression ''existing law is also to be found in the Government of India Act, but the actual expression used is not ''existing law but existing Indian law , and existing Indian law is also defined similarly to its definition in the Constitution as any law, ordinance, order, bye law, rule or regulation passed or made before the commencement of Part III of this Act by any Legislature, authority or person in any territories for the time being comprised in British India being a Legislature, authority or person having power to make such a law, ordinance, order, bye law, rule or regulation. Neither Section 292 nor Section 293, Government of India Act contained the explanation which we find in .....

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..... bservations 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 in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament. In this particular case, their Lordships were construing Act I of 1869 and the construction which commended itself to their Lordships gave a meaning to every part of the sections under consideration. It is perfectly true that if the sections by themselves make the meaning of the words used by the Legislature plain and explicit, marginal notes cannot be invoked for the purpose of adding to, subtracting or altering the words used by the Legislature, But when the words are ambiguous, there should be no objection to looking at the marginal cote in order to under-stand, to use She language of Calling M.R., the drift of the section. It should also be borne in .....

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..... 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 learned Chief Justice points out other constitutional enactments where similar provision is inserted. One learned Judge of our own Supreme Court has used existing law and law in force as interchangeable terms. In Keshavan, Madhava, Menon v. The State of Bombay 1951CriLJ680 , Mr. Justice Das says (p. 334): ... What Article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. Now, it may be remembered that the expression used in Article 13(1) is lass in force and not existing laws and yet the learned Judge reads that expression as meaning existing laws . Frankly the point is not free from difficulty or doubt, but on the whole we have come to the conclusion that in the Constitution the expressions existing laws and laws in force have bemused without any d .....

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..... 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 Union, and the other limitation is that the Union Parliament may legislate with regard to compensation and the form and the manner is which such compensation is to be given, notwithstanding the fact that laws with regard to acquisition or requisitioning for the purposes other than the purposes of the Union may be enacted by the State Legislature, if subject to the provisions of Entry 42 in List in were intended to import the limitation with regard to public purposes or purposes of the State, it is difficult to see why similar limitation was not put in Entry 33 of List I. The interpretation placed by the learned Judge, with very great respect to him, is based upon the contusion between competence and contravention of fundamental rights. The State Legislature may be competent to legislate for any purpose other than the purpose of the Union, and yet if it so legislated, it may contravene the provisions of Article 31(2) in whic .....

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..... 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's Eights to Property Act was property , and it was contended that the word was wide enough to cover both agricultural and non-agricultural land, and therefore the argument was put forward that the Central Legislature was trespassing upon the field reserved for the Provincial Legislature and therefore the Act was void. Sir Maurice Gwyer says (p. 36): If that word (viz. property) necessarily and inevitably comprises all forms of property, including agricultural land then clearly the Act went beyond the powers of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide end general import, the presumption must surely be that it is using it with reference to that kind of property with respect to which it is competent to legislate and to no other. The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffective, the Court is bound to .....

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..... ion 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 arise. Reliance has been placed upon Romesh Thappar v. The State of Madras 1950 S.C.R. 694. In that case Section 9 (1) (a), Madras Maintenance of Public Order Act, 1949, was challenged as being in contravention of Article 19 of the Constitution, That section empowered the Governor of Madras, if he was satisfied that for the purpose of securing the public safety and the maintenance of public order it was necessary so to do, to prohibit the entry into or circulation, sale or distribution in the State of Madras of any newspaper. Under Article 19(s) it is competent to a Legislature to enact a law in respect of any matter which under, mines the security of the State and that is a restriction upon the right given under Article 19(1)(a) of freedom of speech and expression, and the question that fell to be considered by the Supreme Court was whether a legislation with regard to securing the public safety and the maintenance of public order was a legislation fo .....

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..... ith 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 public order and it was impossible to bring black-marketing within the ambit of public order. The Legislature had legislated upon an entirely different topic from the one mentioned in Entry l of List II. Therefore, in our opinion, it is open to us to take the view that when the Legislature passed Act II of 1950, it was legislating for any purpose other than the purpose of the Union. 23. We are conscious of the difficulty that in enacting Act II of 1950 the Legislature was extending the operation of Act XXXIII of 1948 which enabled Government to requisition land for any purpose. But in extending the Act from March 31, 1950, to March 31. 1953, the Legislature must be presumed to have extended it within the scope and ambit of its own competence. It would have been open to the Legislature expressly to have stated in Act II of 1950 that the Act was being extended till March 31, 1952, but the power to requisition for any purpose .....

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..... 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 unconstitutionality. These are cases of creation of moral obligations on the part of the Government, creation of a public office, the civil liability of officers for acts done under unconstitutional statutes, the defence of an officer to an action of mandamus brought to compel him to act under an unconstitutional statute, the curing of the defect of unconstitutionality by statutory amendment, and the curing of the defects of unconstitutionally by change in the Constitution. So the case before us would fall in the category of an unconstitutional statute where the defeat of unconstitutionality has been cured by statutory amendment. Crawford on Statutory Construction (1940 Edn.) at p. 173 says: But where a statute is unconstitutional in part only, It may be laid down, as a general rule, undoubtedly in all jurisdictions, that the statute may be amended by obliterating the invalid provisions or by correcting these which .....

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..... 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 an Act which has cured the unconstitutionally of Act XXXIII [33] of 1948. Should we then, notwithstanding what the Legislature has done, still declare Act XXXIII [33] of 1948 to be void? In our opinion, we are bound to take notice of what the Legislature has done, and if the law is not void today, we should not declare it void because it offended against the provisions of the Constitution prior to its amendment, We are, therefore, of the opinion that the challenge made to the Act on various grounds fails and that the Act must be held to be valid. 27. Another and a minor question arises on the facts of this particular case. The requisitioning order in question dated 29-5-1950, does not on the face of it state what is the public purpose for which the property was requisitioned. We took the view in State of Bombay v. Mohanlal Kapur, 53 Bom TJ. It. 669 that ev .....

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..... osts, 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 as to the validity of the order itself. Mr. Palkhiwala contends that this is a matter of great public importance and we should boar that in mind in awarding costs. As far as this appeal is concerned, there is no doubt that we could have disposed of this appeal on the narrow ground that the order being ex facia had, the petitioner was entitled to succeed and the State was bound to fail in appeal. But the State itself, and rightly so, was anxious that the question of the constitutionality of the Act should be finally decided by the highest Court in the State. Any sense of uncertainty as to what the law was, was not a good thing either for the State or for the citizen, and therefore we acceded to the request of the Solicitor-General that we should deal with the constitutional question raised by Tendolkar J. Therefore, as far as the appeal is .....

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