TMI Blog1956 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the plaintiff's properties was illegal, ultra vires and void. 3. On the 23rd December, 1954 the appellant Sm. Bedabala Debi wife of Sri Nripendra Narain Choudhury as the Trustee of Chapor Trust estate filed T. S. No. 34 of 1954 in the Court of the Subordinate Judge of Lower Assam District at Dhubri challenging the constitutionality of the same Act. In this suit there was no contention, as there was in the Raja's suit, that the Act, if valid, did not apply to the estate of which she was the Trustee. 4. By two several orders made under article 228 by the Assam High Court on the 21st January 1955 and the 16th February 1955 respectively the said two suits were transferred to the High Court and renumbered as T. S. No. 1 of 1955 and T. S. No. 3 of 1955 respectively. The State of Assam duly filed its written statements in both the suits controverting the contentions set forth in the respective plaints. 5. The High Court framed 11 issues in the Raja's T. S. No. 1 of 1955. The issues common to the two suits were as follows :- (1) Whether the Assam State Acquisition of Zamindaris Act, 1951 (Assam Act XVIII of 1951) and its amendments are within the compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue - 1 : Issues 1, it will be observed, has two parts. The first relates to the competence of the State Legislature in enacting the impugned law and the second part relates to the question whether the impugned Act was enacted according to law. As a greater emphasis has been laid by learned counsel appearing in support of the appeals on the second part of this issue, we take up and deal with that part first. 10. The facts bearing on this part of the issue may now be summarised. on the 11th August 1948 a Bill called Assam State Acquisition of Zamindaris Bill was published in the Assam Gazette. On the 23rd September 1948 the Bill was introduced in the Legislative Assembly of Assam, which was its only Legislative Chamber. The Bill was passed by the Legislative Assembly on the 28th March 1949. The Governor of Assam, acting under section 75 of the Government of India Act, 1935, reserved the Bill for the consideration of the Governor-General. In view of the then impending commencement of the Constitution, the Governor-General on the 25th January 1950 returned the Bill to the Governor of Assam with the remark that the Bill be reserved for the consideration of the President. On the 26t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assent of the President. (d) The Legislature functioning under the Constitution has no power to consider the amendments suggested by the President or to pass the same. (e) The Bill having been passed by the Legislative Assembly and thereafter having been reserved for the consideration of the Governor-General under the Government of India Act, 1935 and the Governor-General not having taken any constitutional action in respect of it, as prescribed by that Act up to the time that Act was operating, the Bill lapsed on the repeal of the Government of India Act, 1935 and the promulgation of the Constitution. (f) The subsequent acts of the Governor, the Legislative Assembly and the purported assent of the President are all unconstitutional and void. 12. The reason under heading (a) above may be disposed of in a few words. The impugned Act undoubtedly provides for the compulsory acquisition of land and had, therefore, to comply with the requirements of section 299 of the Government of India Act, 1935, which was in force at the date of the introduction of the Bill in the Legislative Assembly of the province of Assam. Sub-section (3) of that section provided that no Bill maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-General or he could in his discretion return the Bill together with a message requesting the Chamber or Chambers to reconsider the Bill or any specified provisions thereof. In this case the Governor in his discretion reserved the Bill for the consideration of the Governor-General and forwarded the Bill to him. Under section 76 of that Act the Governor-General could do one of four things, namely, that he could in his discretion declare that he assented in His Majesty's name to the Bill or that he withheld assent there from or that he reserved the Bill for the signification of His Majesty's pleasure thereon or he could, if in his discretion he thought fit, direct the Governor to return the Bill to the Chamber or Chambers of the Provincial Legislature together with such a message as was mentioned in the preceding section. What happened in this case is that, in view of the impending constitutional changes, the Governor-General, on the 25th January 1950, returned the Bill to the Governor of Assam advising him to reserve the Bill for the consideration of the President. While the Bill was in transit and before it was actually received by the Governor, which he did on the 28th Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the commencement of the Constitution, then clearly it was quite properly continued in the Legislature of the corresponding State. Two questions, therefore, arise, namely (1) whether at the commencement of the Constitution the Bill was pending at all and (2) if it was, whether it was pending in the Legislature of Assam. 15. As to (1) :- Section 30 of the Government of India Act, 1935 made provision for the introduction of Bills in the Chambers of the Federal Legislature and section 73 provided for the introduction of Bills in the Chamber or Chambers of the Provincial Legislature. Section 32 of the Act laid down provisions for presentation of the Bill passed by the Federal Legislative Chambers to the Governor-General and section 75 for the presentation of the Bill passed by the Provincial Legislative Chamber or Chambers to the Governor. Broadly speaking it may be said that a Bill begins to pend with its introduction in the Legislative Chamber and it ceases to pend - (a) when it lapses under section 73(4) or (b) when the Governor declares that he assents in his Majesty's name to the Bill in which case the Bill ripens into an Act or (c) when the Governor declares that he withh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to that Bill. Therefore, when the Governor-General returned the Bill to the Governor with the suggestion that the same Bill be reserved for the consideration of the President, the Governor-General quite clearly evinced an intention that the Bill should remain alive, for otherwise there could be no question of further reservation of the same Bill for the consideration of the President. The very suggestion of the further reservation of the Bill for the consideration of the President makes it impossible for us to hold, inferentially or fictionally, as we are asked to do, that the Governor-General had withheld his assent. It is clear on the facts that the Governor-General neither assented to, nor withheld his assent from, the Bill. His action may have been unconstitutional, but it cannot be regarded as amounting to a declaration that he was withholding his assent from the Bill, for the assenting to, or the withholding of assent from a Bill postulates a conscious and positive declaration that the assent is so given or withheld. The suggestion that the Bill be reserved for the consideration of the President clearly militates against the view that the Governor-General had, positively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governor and in certain Provinces two Chambers and in other Provinces one Chamber. As already stated the Province of Assam had only one Chamber, the Legislative Assembly. The legislative procedure of the Chambers of the Federal Legislature was regulated by section 30 and of the Chamber or Chambers of the Provincial Legislatures by section 73 of the Government of India Act, 1935. Procedure subsequent to the passing of the Bill by the Legislative Chamber or Chambers was governed by section 32 with regard to Bills passed by the Chambers of the Federal Legislature and by section 75 and 76 with regard to those passed by the Chamber or Chambers of the Provincial legislatures. It is true that section 18 of the Government of India Act, 1935 was adapted as contemplated by section 9 of the Indian Independence Act, 1947, but there was no adaptation of section 60 of the Government of India Act, 1935 which dealt with the Provincial Legislature. From the language used in section 18, as it stood before its adaptation and in section 60, it is quite clear that it was His Majesty himself, who was really a constituent part of the Legislatures, Federal and Provincial, and that he was represented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration of the President and it was in order for the President, under article 201, to direct the Governor to return the Bill to the Legislative Assembly of the State together with the requisite message and it was quite proper for the Legislative Assembly, when the Bill was so returned, to consider it accordingly. It follows, therefore, that when the Bill was again passed by the Legislative Assembly of Assam, it was proper to represent the Bill to the President for his consideration and it was open to the President to give his assent to the amended Bill, as he, in fact, did. 17. Reliance is placed by learned counsel for the appellant on article 31(4) and to a passage in the Judgment of this court in Visweshwar Rao v. The State of Madhya Pradesh [1952]1SCR1020 and it is contended that the word Legislature , which occurs both in article 31(4) and article 389 means only the Chamber or Chambers of the Legislature and not the Governor or the Governor-General. We need not discuss the larger question as to the correct interpretation of the word Legislature as occurring in article 31(4) and suffice it to say that the very passage relied on by learned counsel makes it quite clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dments are challenged on the ground that they infringe the fundamental rights of the plaintiff under article 31(2) and article 14 of the Constitution. If, however, the legislation is protected under article 31-A of the Constitution then the question of infringement of fundamental rights of the plaintiff under articles 31(2) and 14 will not arise. Article 31(4) protects an Act falling within it only against the contravention of the provisions of clause (2) of that article but not of those of article 14. Article 31-A, however, protects an Act falling within it even if it is inconsistent with or takes away or abridges any of the rights conferred by the provisions of Part III. It is obvious, therefore, that article 31-A gives greater and wide protection than does article 31(4). If, therefore, article 31-A applies no question can arise under article 31(2) or article 14 and in that case article 31(4) need not be invoked at all. 20. What is protected by article 31-A is a law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights. There is no question that the impugned Act, having been reserved for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in the six clauses therein set out. This definition does not purport to be an exhaustive definition of estate but only includes certain enumerated items within the meaning of that expression. The word estate is defined in the Goalpara Tenancy Act (Assam Act I of 1929) exactly in the same way as it is defined in the impugned Act, namely, as meaning lands included under one entry in any of the General Registers of revenue-paying or revenue-free lands prepared and maintained by the Deputy commissioner. The properties of both the plaintiffs appellants are and have been in point of fact entered in the General Register. An estate within the meaning of the Assam Land and Revenue Regulation I of 1886 is also an estate within the meaning of the Goalpara Tenancy Act (Act I of 1929) and of the impugned Act. The impugned Act, therefore, is a law providing for the acquisition by the State of an estate within the meaning of article 31-A and, that being so, its constitutionality or validity cannot be questioned on the ground of any contravention of any of the provisions of Part III of the Constitution dealing with fundamental rights. There is no dispute that the lands comprised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illusory compensation or no compensation at all. The doctrine of colourable legislation is relevant only in connection with the question of legislative competency as explained by this Court in K. C. Gajapati Narain Deb v. State of Orissa [1954]1SCR1 . Here there is no question of any legislative incompetency. The gravamen of the present complaint is as to the quantum of compensation, which, in view of the article 31-A, cannot be raised. 23. Reference has been made to section 11 of the impugned Act according to which in the computation of the gross income is to be included the gross rent payable by the tenant immediately subordinate, for the agricultural years preceding the date of vesting. It is argued that the Act is vague and indefinite, because of the use of the word years in plural. The High Court has given cogent reasons, with which we agree, for holding that the word years in the plural has been retained in the Act by mistake or oversight and it should be read in the singular. Moreover, the Act has since been amended retrospectively by section 4 of Assam Act V of 1956 and the question does not arise. 24. The Act is also impugned on the ground of discrimination, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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