TMI Blog1949 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. Their applications under Section 491, Criminal P.C. were heard by a Bench of two Judges of the Patna High Court. On a difference of opinion between the Judges on the true interpretation of the notification dated 7th March 1949, a reference was made and heard by the same Special Bench of three Judges which dismissed the application of the appellant in case No. VI of 1949. The question referred to the Special Bench by the Division Bench was whether, assuming that the provisions of Section 4(1), Bihar Maintenance of Public Order Act, 1949 have been complied with in these cases...the detention of the petitioners is illegal in view of the Notification dated 7th March 1949 issued by H.E. the Governor under Section 92(1), Government of India Act, 1945....? The special Bench held that a reference to this notification was not relevant because the notification issued by the Governor in 1947 applying the whole of the Act to the Chhota Nagpur Division was valid and operative and therefore the detention of the appellants was legal. After the Special Bench gave its judgment, the Division Bench dismissed the applications of these persons also. In cases XIV, XV and XVI of 1949, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 16th March 1948. On 7th March 1949, the Governor of Bihar, in exercise of his power under Section 92(), Government of India Act, issued a further notification directing that the said Bihar Maintenance of Public Order Act shall apply and shall always be deemed to have applied to the Chhota Nagpur Division and to the Santhal Parganas District with effect from 16th March 1948. On 15th March 1949, Bihar Act, V [5] of 1949, being an Act to amend the Bihar Maintenance of Public Order Act 1947, was passed. The Act (in?) material part is in these terms: Whereas it is expedient to amend the Bihar Maintenance of Public Order Act 1947, in the manner hereinafter appearing, it is hereby enaoted as follows: * * * * * (2) in Sub-section 3 of Section 1, (Bihar) Maintenance of Public Order Act 1947, for the words 'for a period of one year from the date of its commencement' the words and figures 'till 31st March 1950' shall be substituted. 3. Following that, on 12th March 1949, a public notification was published in the Government Gazette stating that in exercise of the powers conferred by Section 92(1), Government of India Act, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct as one year. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolutions of the two Houses of Legislature of the Province and further gave the Provincial Government the power of modification, if any, of the Act. It was contended that the power to extend the life of an Act, beyond the prescribed period, was clearly legislative power and the Provincial Legislature had no power by the proviso to delegate this power to the two Houses of the Legislature of the Province of Bihar so as to extend the life of the Act by their resolutions only. It was urged that this is not conditional legislation at all, because the power of modification is an essential characteristic of the power given by the proviso. That gives power to the authority named in the proviso to make changes in the Act passed by the Legislature. Such power of modification--and there is no limitation to the extent of the modifications in the Act permitted to be made under the power--is therefore necessarily legislative power. It was pointed out that the Government of India Act is divided in different parts and part III deals with the Governor's Provinces. Chapter i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of a Legislature, without any limitation on the extent of the power of modification, is undoubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only. It seems to me, therefore, that the power contain-ed in the proviso is legislative. Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded as it is, as conditional legislation by the Provincial Government. Section 1(3) and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority, which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat when the Bihar Amending Act V [5] of 1949 was passed, there was no Bihar Maintenance of Public Order Act, 1947, in operation in the Province which could be amended and the notification of 18th March 1949, issued in the name of the Governor, could not improve the position. As regards temporary legislation, it is stated in Craies on Statute Law (4th Edn.) that every statute for which no time is limited is called a perpetual Act and continues in force until it is repealed. If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called temporary Act. As a general rule and unless it contains some special provisions to the contrary, after a temporary Act has expired, no proceedings can be taken upon it as it ceases to have any further effect. In England, it is the practice to pass; an Expiring Laws Continuance Act each session and to put into a schedule each temporary Act which it is intended to continue. When, however, an Act is not continued by a further statute,, before the expiration of the time mentioned in the temporary Act, but a bill has been introduced for its extension which has not been passed and, therefore, has not become a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was, however, a proviso to the effect that the Provincial Government may, by notification on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification. Although by Section 1(2) the Act was declared to extend to the whole of the Province of Bihar , it could not of its own force operate in the Chotanagpur Division which had been declared to be a partially excluded area under Section 91, Government of India Act, as Section 92(1) provides, inter alia, that notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature shall apply to an excluded area or a partially excluded area unless the Governor by public notification so directs. The Governor of Bihar accordingly issued a public notification (No. 900, dated 16th March 1947) in exercise of his powers under that section directing that the Act should apply to the Chotanagpur Division. On 11th March 1948, i.e., a few days before the Act was due to expire, its life was extended for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant in case No. 6 who had, in the meanwhile, applied for his release on similar grounds. The learned Judges were of opinion that, the Governor having applied the whole of the Act including the proviso to Section 1(3) to Chotanagpur by his notification of 16th March 1947, the Act was in force in that area for whatever its duration might eventually be, and, when it was extended for another year from 16th March 1948 by the Provincial Government in exercise of its powers under the proviso after fulfilling the conditions therein laid down, such extension was operative in Chotanagpur as well. Such extension by notification by the Provincial Government was not fresh legislation which would need a fresh notification by the Governor under Section 92(1) to remove the bar to its operation in Chotanagpur. In this view, they thought that the notification of 7th March 1949 was unnecessary for legalising the detention, but they expressed the view that the Governor acting under Section 92(1) had no power to apply an Act retrospectively. They answered the question referred accordingly, and dismissed the application of the appellant in case No. 6 rejecting his other contentions and holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of an enactment by way of restriction, limitation or proviso may involve the exercise of a legislative power as much as its modification, which is only a more comprehensive term. Their Lord-ships criticised the view taken by the majority of the Judges of the Calcutta High Court on two grounds. They pointed out that the Indian Legislature was not in any sense an agent or a delegate of the British Parliament in exercising its legislative powers, as was supposed. That Legislature, when acting within the limits defined by the Imperial Parliament, had plenary powers of legislation as large and of the same nature as those of Parliament itself . Secondly, they observed that the decision of the majority rested upon a mistaken view of the nature and principles of legislation . Legislation could be either absolute or conditional on the use of particular powers or on the exercise of a limited discretion by local administrative authorities. In the particular case before them they held that the proper legislature has exercised its judgment as to place, person, laws, powers ; but left to the Lieut. Governor, the time and the manner of carrying the legislation (for removing ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very Legislature the discretion as to whether or not to prolong the operation of the Act in those areas for another year from 16th March 1948--for, his application of the proviso to Chotanagpur could mean nothing less--amounted, in my opinion, to abdication of his function in that regard. Such a shifting of the burden of his responsibility could not have been contemplated by Section 92(1), Government of India Act. It follows that the application of proviso 1 to Section 1, Sub-section (8) of the Act to Chotanagpur by the notification No. 900 dated 16th March 1947 was unconstitutional and, assuming, without deciding, that the enactment of the proviso by the Provincial Legislature was intra vires, and the notification issued by the Provincial Government on 11th March 1948 under that proviso was effective to extend the duration of the Act for one more year, a fresh notification by the Governor was necessary to bring the extended Act into force in Chotanagpur, and in the absence of such notification the arrest and detention of the appellants must be held to be unauthorised and illegal. In this view it is unnecessary to consider the other contentions raised on behalf of the appellants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents. 17. In the result, the appeals are allowed and the appellants will be set at liberty forthwith. Mahajan, J. 18. The appellant, Jatindra Nath Gupta, at present detained in the Hazaribagh Central Jail, is an employee of Messrs. Jagjiwan Trambaklal and Co., coal merchants at Calcutta and was at the time of his arrest on 23rd February 1949 in charge of their Jharia office as manager. He was served with an order of detention purported to have been passed by the Governor of Bihar on 17th February 1949 under the Bihar Maintenance of Public Order Act, 1947. On 24th March 1949 an application was filed in the High Court of Patna under Section 491, Criminal P.C., challenging the legality and propriety of the detention (Criminal Miscellaneous No. 149 of 1949). This was dismissed by a Special Bench, of the High Court consisting of Meredith, Shearer and Imam JJ., on 13th April 1949. It was certified under Section 205, Government of India Act, that the case involved a substantial question of law as to the interpretation of the various sections of the said Act. This appeal has been preferred to this Court on the foot of that certificate and as invariably happens i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, no Act of the Dominion Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. (2) The Governor may make regulations for the peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature, or any existing law, which is for the time being applicable to the area in question. Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect. The first part of the section extends the executive authority of a Province to excluded or partially excluded areas, i. e., in regard to the exercise of executive authority, excluded areas stand on the same footing as the rest of the Province ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n possibly arise for the exercise of the legislative power of the Governor under Section 92(1). The second limit laid down is that the scope of the statute of the Provincial Legislature is the outside reach of the Governor's power. He cannot go beyond it, he must function within it. He can subtract from its provisions and can modify it. If the statute is not retrospective, he cannot make it retrospective by his notification as it would amount to going beyond the range of the Provincial statute, the existence of which alone brings into play the powers of the Governor. He can, of course, give effect to the statute by the notification in the excluded areas from the date of its commencement. It will thus be seen that a limited field of legislation has been given to the Governor under Section 92(1) regarding excluded areas or partially excluded areas. He can exercise his legislative power within that field but he cannot trespass beyond the prescribed limits. 21. Section 92(2), however, gives the Governor plenary power of legislation concerning excluded areas by framing regulations. He may repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Act was -applied to Chota Nagpur by a notification of the Governor dated 15th March 1919. 24. The question to decide is whether on the date of the appellant's arrest the Bihar Maintenance of Public Order Act, 1917, was validly in force in Bihar and also in the excluded area. On behalf of the detenu it is contended that the Act had come to an end as the one year period for which it was to remain in force expired on 16th March 1948 and that the proviso to Sub-clause (3) of Section 1 of the Act was void as it amounted to delegation of legislative power by the Provincial Legislature and this it was not empowered to do. It was argued that a Legislature is not permitted to abdicate or transfer to others the essential legislative functions with which it is invested. The attack on the proviso is this : that it amounts to an improper delegation of the powers of the Provincial Legislature. If this contention has force and the proviso to Sub-clause (3) of Section 1 is ultra vires of the Bihar Provincial Legislature, then it follows that the Act ceased to be law in Bihar on 16th March 1948 and on the relevant date of the arrest of the appellant neither that Act was in force in Bihar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the earlier part of this judgment, unless the power of the Provincial Government is co-extensive with the power of the Provincial Legislature, it is difficult to see how it can have the power to modify a statute passed by that Legislature. Modification of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted from it. The power to modify may-even involve a power to repeal parts of it. A modified statute is not the same original statute. It is a new Act and logically speaking, it amounts to enacting a new law. The dictionary meaning of the word modify is to make some-thing existing much les3 severe or to tone it down or to make partial changes in it. What modifications are to be made in a statute or whether any are necessary is an exercise of lawmaking power and cannot amount merely to an act of execution of a power already conferred by the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r only. That being so, the power given in the proviso to re-enact it for another year is legislative power and does not amount to conditional legislation. In letter and in spirit this proviso gives the impression that the Bihar Legislature for reasons best known to itself wanted to retain the power saying that the law shall continue for another year with such modifications as it thinks fit, but that it did not want to meet as a Legislature with its necessary safeguards but wanted to do so by a resolution. The Legislature in doing so acted beyond the powers conferred on it by the Act of Parliament. 27. Reliance was placed in the High Court on certain observations made by their Lordships of the Privy Council in a number of cases, principally on the case in The Queen v. Burah 5 I.A. 178. In none of these cases, however, the power was given to modify the original statute, to the delegate and hence these cases are not authority for the decision of the present case. The learned Judges of the High Court placed considerable reliance on the following observations in The Queen v. Burah 5 I.A. 178: Where plenary powers of legislation exist as to particular subjects, whether in an imperi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he new statute which has to be extended for a further period of one year, would look like. 29. The same view was expressed by their Lordships in Russell v. The Queen (1882)7 A.C. 829. In that case the mode of bringing the second part of the Canada Temperance Act, 1878, into force was stated as follows: On a petition to the Governor in the Council, signed by not less than one fourth in number of the electors of any county or city in the Dominion qualified to vote at the election of a member of the House of Commons, praying that the second part of the Act should be in force and take effect in such county or city, and that the votes of all the electors be taken for or against the adoption of the petition, the Governor-General, after certain prescribed notices and evidence, may issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption. When any petition has been adopted by the electors of the county or city named in it, the Governor-General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force when such notification is rescinded. In view of this last provision it was contended that the Ordinance was invalid either because the language of the section showed that the Governor-General, notwithstanding the preamble, did not consider that an emergency existed but was making provision in case one should arise in future, or else because the section amounted to what was called delegated legislation , by which the Governor-General without legal authority sought to pass the decision whether an emergency existed to the Provincial Government instead of deciding it for himself. As regards this last contention their Lordships observed as follows: It is undoubtedly true that the Governor-General, acting under Section 72 of Schedule IX must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities. But the Governor-General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian Legislature which, as already pointed out, in view of the proclamation under Section 102, had power to make laws for a Province even in respect of matters which would oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be decided. 32. The result is that the detention of the appellant is illegal and he is directed to be set at liberty. 33. The other ten appeals also stand decided' by my decision in the above case. A point was raised that Act V [5] of 1949, which amended the original Act of 1947, saved these cases from the effect of this decision. In my opinion, this contention is not sound. Act V [5] of 1949 enacted an amendment in the original Act of 1947 which had died a natural death on 16th March 1948. Unless that Act was revived, no amendment made in it could be of any effect. The only apt manner of reviving the expired Act was by enacting a fresh statute or by enacting a statute expressly saying that that Act is herewith revived. The result, therefore, is that all these appeals are allowed and the appellants are directed to be set at liberty. B.K. Mukherjea, J. 34. I agree with my Lord the Chief Justice that these appeals should be allowed; and I would like to say a few words on the questions of constitutional law which have been raised in these cases. 35. The substantial point that requires consideration is whether the Bihar Maintenance of Public Order Act (1947 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before a Division Bench consisting of Agarwala C.J. and Nageswar Prasad J. A contention was raised on behalf of the applicants that the Bihar Maintenance of Public Order Act had no operation in the Division of Chhota Nagpur after 15th March 1948, as no notification in terms of Section 92(1), Government of India Act was published by the Governor of Bihar making it applicable to Chhota Nagpur after the life of the Act was extended for a further period of one year in accordance with proviso to Section 1(3) mentioned above. It appears that pending the hearing of these applications under Section 491, Criminal P.C., the Governor of Bihar published a notification on 7th March 1949 purporting to do so under Section 92(1), Government of India Act, by which it was declared that the Maintenance of Public Order Act should apply and should be deemed to have always applied to the Division of Chhota Nagpur from 16th March 1948. Fresh arguments were heard by the learned Judges on this point and the judgment was delivered on 23rd March 1949. One of the petitioners named Kanailal Paul was released on the ground that sufficient materials were not supplied to him to which he was entitled under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agpur after it was ex-tended for another year by the Provincial Government in accordance with the proviso to Section 1(3) of the Act. The extension, it was said, was not a fresh Act of legislation, but flowed from the provision of the Act itself which in its entirety became operative in Chhota Nagpur by the notification of the Governor dated 16th March 1947. The notification of 7th March 1949 was, therefore, wholly unnecessary, though according to learned Judges, it could not have any retro, apective effect. The conclusion of the Special Bench was that the detention of the petitioners was not illegal even without the notification of 7th March 1949. As the view of the majority of the learned Judges was that the detentions were not illegal, the applications of the seven detained persons were dismissed on 19th April 1949 by Agarwala C.J. and Nageswar Prasad J. The petition of Jatindra Nath Gupta was dismissed on its merits by the Special Bench itself. Certificates were granted in all these cases under Section 205(1), Government of India Act, and on the strength of these certificates these appeals have come up before us. 40. The main contentions put forward on behalf of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature, or any existing law which is for the time being applicable to the area in question Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him shall have no effect. 42. Thug sub-section (1) excludes from an excluded or partially excluded area all legislation passed by the Dominion or the Provincial Legislature and no Act can be operative within such an area unless a notification to that effect has been published by the Governor of the Province in the manner indicated in the sub-section. The Governor is also empowered to lay down, when he publishes any such notification that an Act would be applied, subject to such modifications and exceptions as he considers proper. The provisions of this sub-section are very similar to those contained in Sections 5 and 5A, Scheduled Districts Act (Act XIV [14] of 1874), though in the earlier Act the sanction of the Governor-General in Council was necessary even for making a notification. Sub-section (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incial Legislature will apply to a particular area or a portion of that area. He is further given power to direct that the same shall apply subject to such exceptions and modifications as he thinks fit. By the last words mentioned above, the Governor is therefore authorised either to exclude from its operation certain sections or portions of sections of the Act of a Federal or Provincial Legislature and also he is given authority to make modifications therein. The right to modify an Act of the Legislature can only be legislative power and not administrative power. In making modifications, the whole aspect of an Act or a section may be changed. If so, it is clearly the exercise of legislative powers. 44. This decision which is binding on us, states, in my opinion, the law quite correctly. The function exercised by the Governor in making a notification under Section 92(1), Government of India Act, cannot be a purely executive function; it is not that the Governor merely publishes an Act passed by a legislative body, it is the notification that gives the law which otherwise would have no operation in an excluded area, its authority and binding force. The entire scheme of the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be considered generally for if there is actually any delegation of legislative powers, the clause would be invalid whatever the legislative authority might be. 46. Now it is one of the settled maxims of constitutional law that the power conferred on legislative authority to make laws cannot be delegated by it to any other body or department. The authority must remain where it is located and the power to which the prerogative has been entrusted cannot relieve itself from the responsibility by choosing other organs upon which it shall be devolved. (Vide Cooley's Constitutional Limitations, 8th Edn., vol. 1, p. 227.) There are certain well recognised exceptions, more apparent than real, which have been engrafted upon this maxim. Thus the legislation itself may be conditional and not absolute and its taking effect may be made to depend upon determination of facts and conditions by an outside authority. (Vide Cooley's Constitutional Limitations, vol. 1 p. 227). The legislature, it is true, cannot delegate its power to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provincial Legislature. 48. In the High Court Meredith J. took the view that in enacting the proviso the Bihar Provincial Legislature did not delegate its legislative powers to any external authority. What it did was to enact what is called a conditional legislation, the validity of which has never beer questioned and has been repeatedly affirmed in more than one pronouncements of the Judicial Committee, namely, in The Queen v. Burah 5 I.A. 178, Russel v. The Queen (1882) 7 A.C. 829 and King Emperor v. Benoarilal Sarma A.I.R. (32) 1945 P.C. 48. 49. In The Queen v. Burah 5 I.A. 178, the question arose as to validity of Section 9 of Act XXII [22] of 1869 passed by Indian Legislature. Sections 4 and 5 of the Act removed the District known as Garho Hills from the operation of law prescribed by the Bengal Acts and Regulations and vested the administration of civil and criminal justice and the collection of revenue and other matters in such officers as the Lieutenant Governor might appoint. Section 9 of the Act laid down: The said Lieutenant Governor may from time to time by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute which is-to take effect on the determination of some fact or condition by an extraneous authority. The Act is to take effect at once, and what is left to the outside authority is to determine at some future date whether the Act should be extended for one year further with or without modifications., 52. In Russell v. The Queen (1882) 7 A.C. 829, the validity of the Canadian Temperance Act of 1878 was challenged on, the ground that it was ultra vires of the powers of the Parliament Act of Canada. The Temperance Act was to be brought into force in any county or city if upon a vote of the majority of the electors of that county or city favouring such course the Governor-General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount to a delegation of legislative authority to a majority of the voters in a city or county. Their Lordships said: The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional legislation only. That this was not the intention of the Legislature is, however, clear from the fact that the Provincial Government is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not. To modify a statute is certainly to perform a legislative act. No restrictions have been laid down regarding the nature of the modifications that could be made. Mr. Mitter appearing for the respondents has conceded in a way that to authorise another body to modify a statute amounts to investing that body with legislative powers. He argues, how-ever, that the power of modification is different and severable from the power of extending its duration; and even if one portion of the proviso is held to be bad, there is no reason why the other part should be held to be invalid also. It is pointed out that in this case the Provincial Government has merely extended the period of the Act without introducing any modification in its terms. This contention though plausible at first sight does not appear to me to be sound. The language of the proviso clearly indicates that modificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any notification by the Provincial Government which was necessary under the old Act. As the new Act is in force at the present moment, the detention orders could be supported under the provisions of the new Act and this would be a complete reply to the prayer for release of the petitioners under Section 491, Criminal P.C. 60. On such materials as have been placed before us, it is difficult to accept the contention of the learned advocate as sound. It is certainly competent to the Legislature in exercise of its plenary powers to revive or re-enact a legislation which has already expired by lapse of time. The Legislature is also competent to legislate with retrospective effect; but neither of these things seems to have been done in the present case. The Legislature proceeds on the footing that the old Act was alive at the date when the new Act was passed, and the new Act merely purports to amend one of the provisions of the old Act. There could be no amendment of an enactment which is not in existence and from the fact that the Legislature purports to amend an Act, it could not be held as a matter of construction that the intention of the Legislature was to renew a dead Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative power and conditional legislation. In that case, the Privy Council had to deal with an Act of the Governor General which purported to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts and for other purposes. Section 9 of the; Act provided that the Lieutenant Governor of the Province may by notification extend mutatis mutandis all or any of the provisions contained in the other sections of the Act by notification to the Khasi and Jaintia Hills, but it was contended that Section 9 of the Act was to be held void and of no effect inasmuch as it was not legislation but it was a delegation of legislative power . The Privy Council however held that the impugned section did not amount to delegation of legislative power but was mere conditional legislation. While dealing with the matter, their Lordships made the following observations: Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also is conferred by the proviso on the Provincial Government, because if the matter is viewed a little strictly, it may appear at the first sight that by empowering the Provincial Government to modify the Act, the Legislature has de-legated to some extent its legislative power to an external authority. But it appears that in Burrah's case 5 I.A. 178 , their Lordships of the Privy Council have among other instances of good conditional legislation referred to Section 39 of Act XXIII of 1861, which reads as follows: When under the provisions of Section 385 of the said Act, the Act is extended to any part of the territories not subject to the General Regulations of Bengal, Madras and Bombay, it shall be lawful for the Government to which the territory is subordinate to declare that the Act shall take effect therein subject to any restriction, limitation, or proviso which it may think proper. In such case the restriction, limitation or proviso shall be inserted in the declaration or notification of such extension. When the Act is extended by the Local Government to any territory subordinate to such Government and such extension is made subject to any restriction, limitation or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a period of one year from the date of its commencement' the words and figures 'till 31st March 1950' shall be substituted. If we substitute the words till 3lst March 1950 in the Act of 1947, then the third clause to Section 1 of the Act will read as follows: It shall remain in force till the 31st March 1950 from the date of its commencement. It is contended on behalf of the appellants that if the notification issued on 11th March 1948, by the Bihar Government under the first proviso to Sub-section (3) of Section 1 of the Act of 1947 is held to be invalid, then the Act was dead on 16th March 1948, and it could not be revived by the amending Act. On the other hand, it is contended on behalf of the Provincial Government that in substance the amending Act provides that Act V of 1947 shall be deemed to be a live Act from the date of its commencement till 31st March. 1950. What is urged is firstly that there is no doubt that the Provincial Government could legislate retrospectively and secondly that the Act as it now reads cannot but have retrospective operation. It is pointed out that the words It shall remain in force till 3lst March 1950 from the date of its co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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