KAISER-I-HIND PVT. LTD. AND ANR. v. NATIONAL TEXTILE CORPORATION (MAHARASHTRA NORTH) LTD. AND ORS.

A or some existing law in the concurrent field because there was nothing in the Act itself which made it repugnant to any Act passed by Parliament or any existing law. But when he assented in 1967 to the Act extending 1he life of the Kera/a Act by another two years the declaration of electricity as an essential article had been made and should be deemed to have become part of the Act. So far we are in B agreement with the argument of the learned Solicitor General. But when he goes further and argues that in so far as the consequence of such declaration was that the State Government was enabled to make orders regarding production, supply and distribution of electricity, there was a possibility of such orders being repugnant to the provisions c of the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 and therefore any such repugnance was cured by the assent given by the President, we cannot agree. We agree that the assent should be deemed not merely to the substitution of the words "five years" by the words "seven years" in the Kerala Act, but to the Act as a whole, , . that is, as amended by the 1967 Act and any repugnance between the D Kerala Act and the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 should be deemed to have .been cured by such assent. When assenting to the 1967 Act the President should naturally have looked into the whole Act, that is, the 1961 Act as amended by the 1967 Act. But the declaration itself did 1wt create any repugnancy E with the 1948 Act. It was in 1968 that the Surcharge Order was made, in pursuance of which the bills were served on the various respondents in these appeals and demands made for enhancing charges for electricity. And it was the Surcharge Order that can be said to create the repugnancy if at all. It is only actual repugnancy that can be cured by Presidential assent and not the possibility of repugnancy." F From the aforesaid observations, it is clear that when the President gave assent to Kerala Act in 1962, there was no repugnancy to the Act made by the Parliament or some existing law in concurrent field. However, before grant of subsequent assent in 1967 to the Act extending the life of the Kerala Act by another two years, the declaration of electricity as an essential article G had been made and was part of the Act. Thereafter, the Court observed that the assent of the President should be deemed not merely to the substitution of the words "five years" by the words "seven years" in the Kerala Act but to the Act as a whole, that is the Act as amended by the 1967 Act and any repugnancy between the Kera la Act and Electricity Act, 1910 and the H Electricity (Supply) Act, 1948 should be deemed to have been cured by such

KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH . .I.) 595 assent. A From the aforesaid discussion, it would appear that (a) if there is extension of the duration of the temporary Act, it cannot be said that new Act is enacted, old act continues and its life is extended; (b) however, while extending the duration if there is any substantial amendment in the statutory provisions as found in Basantilal Banarsi/a/'s case (Supra), it cannot be said B that it was mere extension of existing law.

Additional contention:-

On behalf of the appellant, following additional ground is raised in the written submission. c "Article 254(1) incorporates the principle of Supremacy of Parliamentary law - it applies to any provision of "a law made by the Legislature of a State" which is repugnant to any Parliamentary law or (which is repugnant) to any existing law. Article 254(1) opening D part, does not expressly give supremacy to Parliamentary law over· existing State/Provincial law - i.e. law made in the Provinces before · the Constitution: hence Constitution, the Bombay Amending Act 43 of 1951 (the first law enacted by the State legislature after the Constitution) - even though a mere extension law - must Constitutionally be regarded as a law made by the legislature of a E State, for purposes of applicability of Article 254(1 ), which it could only be if it was a substantive law re-enacting or incorporating the provisions of the Act 1947 Act, post-Constitution. That it was reserved for the consideration of the President and received his assent lends support to the fact that it was not a mere extension but treated as a F substantive enactment."

The aforesaid submission requires to be rejected mainly because Article 254 (I) as quoted above clearly inter a/ia provides that if any provision of a law made by the legislature of State is repugnant to any provision of a law made by Parliament then the law made by Parliament, whether passed before G or after the law made by the legislature of such State, shall prevail. It also provides that the law made by the legislature of the State shall, to the extent of repugnancy, be void.

Fmther, in the present case, there is no question of considering that the Bombay Rent Act was an existing law as defined under Article 366( I0). H

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A Explanation Ill to Article 372 specifically provides that nothing in the said Article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if the Constitution had not come into force. Therefore, there is no question of applying the concept of "existing law" as defined under Article 366 to a law of which duration is extended from time to time. Article 254(1 ), inter B alia, also provides that if any provision of a law made by the Legislature of State is repugnant to any provision of an existing law, the existing law shall prevail and law made by the Legislature of the State shall to the extent of repugnancy be void but in the present case there is no question of applying th~ said part of Article 254(1 ).

c The result of the foregoing discussion is: -

I. It cannot be held that summary speedier procedure prescribed under the P.P. Eviction Act for evicting the tenants, sub-tenants or unauthorised occupants, if it is reasonable and in conformity with the principles of natural justice, would abridge the rights conferred under the Constitution.

2. (a) Article 254(2) contemplates 'reservation for consideration of the President' and also 'assent'. Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnancy between the earlier law made by the Parliament and the contemplated State legislation and the reasons for having such law despite the enactment by the Parliament. (b) The word 'assent' used in clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State. (c) In case where it is not indicated that 'assent' is qua a particular law made by the Parliament, then it is open to the Court to call for the proposals made by the State for the consideration of the President before obtaining assent. G

3. Extending the duration of a temporary enactment does not amount to enactment of a new law. However such extension may require assent of the President in case of repugnancy.

In this view of the matter, in the present case there is no question H of giving supremacy to the Bombay Rent Act qua the law made by the

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Par! iament. A In the result, the appeals are dismissed.

WP (Civil) Nos.1056, 1081of1991and162 of 1992

These writ petitions are filed challenging the vires of certain provisions B of the P.P. Eviction Act. In view of the order passed above, these writ petitions are dismissed.

SLP (Civil) Nos.20669, 20731 of 1995 AND 3404-05 of 1992.

These petitions are filed against the judgments and orders dated 9.8.1995, C 14.2.1992 and 8.1.1992 passed by the High Court of Bombay in Writ Petition Nos.3141/95, 3162/95, RP No.836 of 1992 and WP No.32 of 1992 respectively. By orders dated 4. 12.1995 and 11.9.1995, these petitions were ordered to be listed along with Civil Appeal No.2555 of 1991 etc. In view of the order passed above in C.A. No.2555/91 etc., these petitions would not survive and are dismissed accordingly.

- There shall be no order as to costs.

D. RAJU, J. I have carefully gone through the judgment prepared by learned brother Justice M.B. Shah, dismissing the appeals and other connected writ and allied petitions and I am in respectful agreement with the same. Yet, having regard to the nature of issues involved and the likelihood of recurrence of such question, in the light of similar and frequent recourse often made to Article 254(2) of the Constitution, I wish to place on record some of my views also in the matter. F The factual background, the details relating to the decision arrived at by the Bombay High Court and the contentions raised on behalf of the appellants/petitioners before us have been adverted to in detail in the judgment of Shah, 1. and I do not want to refer to them and further burden this judgment. Article 254( I) declares that, if any provision of a law including an 'existing law' made by the legislature of a State is 'repugnant' to any provision of a G law enacted by the Parliament, which it is competent to enact, or to any provision of an existing law, with respect to 'one of the matters' enumerated in the concurrent list, subject to the exception provided in Clause (2) of Article 254, the law made by the Parliament, whether passed before or after the law made by the State Legislature concerned or the existing law, as the H

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A case may be, shall prevail and to that extent of repugnancy, the State law shall be void. The exception engrafted in Clause (2) to enable the State law to prevail in that State, the Legislature of which has enacted it, notwithstanding its repugnancy, as above, as long as both the laws deal with a concurrent subject, will enure to its benefit, if it has been reserved for the consideration ... B of the President and has received his assent', under the said provision of the Constitution of India. Thus, the sweep of mandate and serious nature of the result flowing from the assent renders, in my view, the very exercise of power by the President and the attendant formalities whereof, as of great .!. significance and vitally important, and not a mere routine or mechanical exercise. Despite, such assent having been obtained, power of the Parliament C to enact, at any time, any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State, with the assent envisaged under Clause (2) of Article 254 has also been conserved and preserved in the proviso to the said clause. In substance, the Parliament has undisputed power to undo the effect or ' consequences flowing from the presidential assent obtained under Clause (2), D by enacting a subsequent law creating once more a 'repugnancy' and thereby override or repeal impliedly, to the extent of such repugnancy, the State law.

The assent of the President envisaged under A11icle 254 (2) is neither an idle or empty formality, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague, general or indefinite in the terms sought for to claim that once sought and obtained as well as published, a curtain or veil is drawn, to preclude any probe or contention for consideration that what was sought and obtained was not really what should and ought to have been, to claim the protection envisaged under Clause (2) in respect of a particular State law vis-a-vis or with reference to any particular or specified law on the same subject made by the Parliament or an existing law, in force. The repugnancy envisaged under Clause (l) or enabled under Clause (2) to get excepted from under the protective coverage of the assent obtained from the President, is such that there is a legislation or legislative provision(s), covering and operating on the same field or identical subject matter made by both the Union and the State, both of them being competent to enact in respect of the same subject matter or the legislative field, but the legislation by the Parliament has come to occupy the entire field. Necessarily, in the quasi-federal structure adopted for the nation, predominance is given to the law made by the Parliament and in such circumstances only the State law which secured the assent of the President H under Clause (2) of Article 254 comes to be protected, subject of course to

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the powers of Parliament under the Proviso to the said clause. Therefore, the A President has to be apprised of the reasons at least as to why his assent is being sought, the need or necessity and the justification or otherwise for claiming predominance for the State law concerned. This itself would postulate an obligation, inherent in the scheme underlying as well as the very purpose and object of seeking the assent under clause (2) of Article 254, to enumerate B or specify and illustrate the particular Central law or provision with reference to which the predominance is desired. The absence of any standardized or stipulated form in which it is to be sought for, should not detract the State concerned, to disown its obligation to be precise and specific in the extent of protection sought having regard to the serious consequences which thereby inevitably follows, i.e .. , the substitution of the Union law in force by the C State law, in the territorial limits of the State concerned, with drastic alteration or change in the rights of citizen, which it may, thereby bring about.

The mere forwarding of a copy of the bill may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with reference to which, the predominance is claimed or purported to be claimed. The deliberate use of the word 'consideration' in clause· (2) of Article 254, in my view, not only connote that there should be an active application of mind, but also postulate a deliberate and careful thought process before taking a decision to accord or not to accord the assent sought for. If the object of referring the State law for consideration is to have the repugnancy resolved by securing predominance to the State law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirabilities involved therein, though may not be obliged to write a judgment in the same manner, the courts of law does, before arriving at a conclusion to grant or refuse to F • grant or even grant partially, ifthe repugnancy is with reference to more than one law in force made by the Parliament. Protection cannot be claimed for the State law, when questioned before courts, taking cover under the assent, merely asserting that it was in general form, irrespective of the actual fact whether the State claimed for such protection against a specific law or the G attention of the President was invited to at least an apprehended repugnancy vis-a-vis the particular Central law. In the teeth of innumerable Central laws enacted and in force on concurrent subjects enumerated in List III of the Vllth Schedule to the Constitution, and the hoard of provisions contained therein, artificial assumptions based on some suppo!;ed knowledge of all those provisions and the presumed regularity of official acts, cannot be blown H

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A out of proportion, to do away with an essential exercise, to make the 'assent' meaningful. as if they are empty formalities. except at the risk of rendering Article 254 itself a dead letter or mere otiose. The significant and serious alteration in or modification of the rights of parties, both individuals or institutions resulting from the 'assent' cannot be overlooked or lightly brushed ... B aside as of no significance, whatsoever. In a Federal structure, peculiar to the one adopted by our Constitution it would become necessary for the President to be apprised of the reason as to why and for what special reason or object and purpose, predominance for the State law over the Central law is sought, deviating from the law in force made by the Parliament for the entire country, including that part of the State. When this Court observed in Gram Panchayat C of Village Jama/pur v. Ma/winder Singh and Ors., [ 1985] 3 SCC 661, that when the assent of President is sought for a specific purpose the efficacy of the assent would be limited to that purpose and cannot be extended beyond it, and that if the assent is sought and given in general terms so as to be effective for all purposes different considerations may legitimately arise, it D cannot legitimately be contended that this court had also declared that reservation of the State law can also be by mere reference to Article 254 (2) alone with no further disclosures to be made or that the mere forwarding of the bill, no other information or detail was either a permissible or legalized and approved course to be adopted or that such course was held to be sufficient, by this Court, to serve the purpose of the said Article. The observation E 'general terms' need to be understood, in my view, a reference to a particular law as a whole in contrast to any one particular or individual in the said law and not that, it can be even without any reference whatsoever. The further observation therein, "not only was the President not apprised in the instant case that his assent was sought because of the repugnancy between the State Act and the pre-existing Central Act on the vesting of evacuee properties but his assent was sought for a different, specific purpose altogether", would belie any such claim. Per contra, it would only reinforce the principle that the . consideration as well as the decision to accord consent should be a conscious one, after due application of mind, relevant and necessary for the purpose. Though, submission ofa thesis on the various aspects ofrepugnancy involved may not be the requirement, the reservation for 'consideration' would necessarily obligate an invitation of the attention of the President as to which of the pre-existing central enactments or which provisions of those enactments are considered or apprehended to be repugnant, with reference to which the assent envisaged in A1ticle 254 (2) is sought for. This becomes all the more necessary also for the reason that the repugnancy in respect of which predominance is sought to be secured must be shown to exist or apprehended,

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on the date of the State law and not in vacuum to cure any and every possible repugnancy in respect of all laws - irrespective of whether it was in the contemplation or not of the seeker of the assent or of the President at the time of 'consideration' for according assent.

Th is Court has, no doubt, held that the assent accorded by the President is not justifiable, and courts cannot spell out any infirmity in the decision arrived at, to give the assent. Similarly, when the President was found to have accorded assent and the same was duly published, it cannot be contended that the assent was not really that of the President, as claimed. It is also not given to anyone to challenge the decision of the President according assent, on merits and as to its legality, propriety or desirability. But that is not the same thing as approving an attempt to draw a blanket or veil so as to preclude an examination by this court or the High Court as to the justifiability and sufficiency or otherwise of the protection or predominance claimed for the State law over the law made by the Parliament or the existing law, based upon the assent accorded, resulting at times in substantial alteration, change or modification in the rights and obligations of citizen, including the D Fundamental Rights. When the Constitution extends a form of protection to a repugnant State law, permitting predominance and also to hold the field in the place of the law made by the Centre, conditioned upon the reservation of the State law for consideration of the President and obtaining his assent, it is to be necessarily viewed as an esseniial prerequisite to be effectively and meticulously fulfilled before ever availing of the protection and the same cannot be viewed merely as a ceremonial ritual. If such a vitally essential procedure and safeguard is to be merely viewed as a routine formality which can be observed in whatever manner desired by those concerned and that it would be merely enough, if the assent has been secured howsoever obtained, it would amount to belittling its very importance in the context of distribution of legislative powers and the absolute necessity to preserve the supremacy of the Parliament to enact a law on a concurrent topic in List III, for the entire country. It would also amount to acceptance of even a farce of compliance to be actual or real compliance. Such a course could not be adopted by Courts, except by doing violence to the language, as well as the scheme, and very object underlying Article 254 (2).

Different provisions of the Constitution envisage the grant of assent by the President as well the Governor of a State. Article 111 provides for the assent of the President to a Bill passed by the Houses of Parliament, in the same manner in which Article 200 empowers the Governor of a State in H

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A respect of a Bill passed by the Legislative Assembly or by the Houses of the Legislature where there is a Legislative Council in addition to the Assembly. The Parliament for the Union consists of the President and two Houses as the Legislature of States consist of the Governor and the House or Houses, as the case may be (vide A1ticles 79 and 168). The policy making executive power of the Union also vest with the President, as the executive power of the State vest with the Governor, and those powers have to be exercised with the aid and advice of the council of ministers, for the Union headed by the Prime Minister and for the State to be headed by the Chief Minister. The President or the Governor, as the case may be, as and when a Bill after having been passed is presented, may accord assent or as soon as possible thereafter return the Bill to the Houses with a message requesting to reconsider the Bill or any provisions thereof, including the introduction of any amendment as recommended in his message and if thereafter the Houses on reconsideration of the Bill, pass the Bill again with or without amendment and present the same for the assent, the President/Governor, as the case may be, shall not withhold his assent. Being an exercise pertaining to expression of political will, apparently, the will of the people expressed through the legislation passed by their elected representatives is given prominence by specifically providing for a compulsory consent or assent. The same could not be said with reference to the 'assent' of the President envisaged under Articles 31 A, 31 C, 254 (2) and 304 (b) of the Constitutioa. In my view, the 'assent' E envisaged in these Articles by the very nature and character of the powers conferred constitute a distinct class and category of their own, different from. the normal 'assent' envisaged under Articles 111 of the President or 200 of the Governor., Article 20 I also would indicate that even when for the second time the Houses of the State Legislature passes the Bill and presented for 'consideration', there is no compulsion for the President to accord assent. F Therefore, the reservation of any Bill/Act for the 'consideration' of the President for according his assent, keeping in view, also the avowed object envisaged under Article 254 (2), renders it qualitatively different from the ordinary assent to be given by the President to a Bill passed by the Parliament or that of the Governor to a Bill passed by the Legislature(s) of the State G concerned.

The assent of the President or the Governor, as the case may be, is considered to be pal1 of the legislative process only for the limited purpose that the legislative process is incomplete without them for enacting a law and in the absence of the assent the Bill passed could not be considered to be an H Act or a piece of legislation, effective and enforceable and not to extend the

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immunity in respect of procedural formalities to be observed inside the respective houses and certification by the presiding officer concerned of their due compliance, to areas or acts outside and besides those formalities . The powers actually exercised by the President, at any rate, under Articles 3 I A, 3 IC, 254 (2) and 304 (b) is a special constituent power vested with the Head of the Union, as the protector and defender of the Constitution and safety valve to safeguard the Fundamental Rights of citizens and Federal structure of the country's polity as adopted in the Constitution. A genuine, real and effective consideration would depend upon specific and sufficient information being provided to him inviting, at any rate, his attention to the Central law with which the State law is considered or apprehended to be repugnant, and in the absence of any effort or exercise shown to have been undertaken, when questioned before courts, the State law cannot be permitted or allowed to have predominance or overriding effect over that Central enactment of the Parliament to which no specific reference of the President at all has been invited to. This, in my view, is a must and an essential requirement to be satisfied; in the absence of which the 'consideration' claimed would be one in vacuum and really oblivious to the hoard of Legislations falling under the D Concurrent List in force in the country and enacted by the Parliament. To uphold as valid the claim for any such blanket assent or all round predominance over any and every such law - whether brought to the notice of the President or not, would amount to legitimization of what was not even in the contemplation or consideration on the basis of some assumed 'consideration'. E Jn order to find out the real state of affairs as to whether the 'Assent' in a given case was after a due and proper application of mind and effective 'consideration' as envisaged by the Constitution, this court as well as the High Court exercising powers of judicial review are entitled to call for the relevant records and look into the same. This the courts have been doing, as and when considered necessary, all along. No exception therefore could be F .. taken to the High Court in this case adopting such a procedure, in discharge of its obligations and exercise of jurisdiction under the Constitution of India.

DHARMADHIKARI, J. After going through the opinion of learned Brother M. B. Shah J, with utmost respect, I find myself unable to agree with G his view.

The main question that needs decision by this Constitution Bench is on the application of Article 254 of the Constitution of India. Learned Brother Shah J, in ·his opinion, has already reproduced Article 254 and discussed relevant decisions of the Supreme Court and other High Courts cited by the H

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A counsel of the parties at the Bar. I would not, therefore, burden the record with repetition of the same.

It is not i11 dispute that there is a clear repugnancy between the provisions of Bombay Rents ( Hotel and Lodging House Rates) Control Act 1947, as has been extended from time to time, after coming into force of the Constitution B in its application, to erstwhile State of Bombay and to the present State of Maharashtra and Public Premises (Eviction and Unauthorized Occupants) Act, 1977. The two Acts mentioned above would hereinafter be referred to as the 'State Act' and the 'Central Act' respectively.

C Under the provisions of the State Act, all occupants of leased or licensed premises including those owned by government companies and corporations have protection against their eviction which can be granted only on proof of. specified grounds before the competent authority. In accordance with the Central Act, the premises belonging to government companies and corporations which are in occupation of tenants and licensees can be got evicted by the prescribed summary procedure after service of notice to the occupier of the alleged unauthorized occupation.

The State Act of 1947 was the pre-constitutional law and 'existing law' for application of Article 254 read with definition of that expression 'existing law' in Clause 10 of Article 366. The said 'existing law' by virtue of Extension Laws passed from time to time by the State Legislature continued in force after coming into force of the Constitution.

The Central Law of 1977 is post-constitutional law and as an effect of Clause (I) of Article 254, in view of its admitted and clear repugnancy with F State Law, the former would have prevailed; but Clause (2) is an exception to Clause (I) of Article 254 and if the State Law has received 'assent of the President' and the subject of Legislation is in Concurrent Lis:, the State Law prevails in its application to the State.

The State Act of 1947 which was a pre-constitutional law after it was extended by various Extension Laws (mentioned in detail in the opinion of learned Brother Shah J.) became a post-constitutional law. In order to prevail over the Central Law, the State Law required the 'assent of the President' in accordance with Article 254 (2) of the Constitution. It is not in dispute that the subject matter of Central and State Legislation is covered by entries in the Concurrent List of Seventh Schedule of the Constitution.

KAISER-I-HIND PVT. LTD. v. N.T.C. [D.M. DHARMADHIKARL J.) 605 It is also not in dispute that the 'assent of the President' has been obtained to each of the State Acts which were passed after corning into force of the Constitution, either to extend the duration of 'existing law' of 1947 or to extend its application with amendments to the State. The file containing proposals which were moved for obtaining 'assent of the President' was not produced by any of the parties but was summoned by the Court. A perusal of file containing proposals moved for obtaining the 'assent of the President' shows that each time, the Extension Law was passed with or without amendments for extending duration of the 'existing law' that is Bombay Act of 194 7, its repugnancy to Central Laws like Transfer of Property Act 1882 and Presidency Small Causes Courts Act 1882, the Indian Contract Act 1892 and Civil Procedure Code, was pointed out but there is no specific mention of its repugnancy to the Central Act under consideration before us. It is on the basis of the letters of the State addressed to the Government of India containing the proposals for obtaining 'assent of the President', learned Brother Shah J, has come to the conclusion that there is no 'Presidential Assent' sought or obtained to the Siate Act qua the Central Act under consideration before us. Such a conclusion on reading of the file containing the proposals is not borne out. Two specific proposals relied on behalf of the appellants from the letters dated 15.12.1980 and 27.1.1986, need mention and reproduction in ifs relevant parts. They read as under :-

(I) No.BRA 2 I 80/CR-3222/DESK-3. E Housing and Special Assistance Department Mantralaya, Bombay 400 032 15th December, 1980

To, F The Secretary to Government of India, '1 Ministry of Home Affairs, New Delhi.

Sub : Bill of extend the duration of the Bombay Rent, Hotel and G Lodging Houses Rate Control Act 1974 upto 31st March, 1986.

Sir,

The subject matter of the Bill falls under entries 3, 5, 18,. 31, 35, H

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A 49, 64 and 65 in List-II and entries 1, 2, 6, 7, 11-A and 46 in a List- lll in the Seventh Schedule of the Constitution of India. As the provisions of the Principal Act are repugnant to the provisions of some of the existing laws relating to entries 6, 13, 46 in the concurrent legislative list such as Transfer of Property Act 1882 and the Presidency Small Causes Courts Act 1882 and Clause (2) of the Bill B is intended to extend the life of the Principal Act by a further period of five years i.e. upto 31.3.1986, it is necessary to reserve the Bill after it is passed for consideration and the assent of the President under Article 254(2) of the Constitution of India after it is passed by the State Legislature. Further as the subject matter of the Bill falls c under the entries relatable to the Concurrent Legislative List and administrative approval of the Government of India is required to be obtained before it is introduced in the State Legislature. I am, therefore, to request you to move the Government of India to kindly accord their administrative approval to the proposed Bill. ................... .

D (2) GOVERNMENT OF MAHARASHTRA No. 1419/B LAW AND JUDICIARY DEPARTMENT Mantralaya, Bombay 400 032 E Dated : 27th Jan., 1986

The Secretary to the Governor of Maharashtra, F Raj Bhawan, Bombay 400 035.

Sub : L.C. Bill No. X of 1986 The Bombay Rents, Hotel and Lodging House Rates Control (Extension of Duration) Bill, 1986. Sir, G

The subject matter of the Bill falls under entries 3, 5, 18, 31, 35, 49, 64 and 65 in List-II and entries I, 2, 6, 7, 11-A, 12, 13 and 46 in List-III in the Seventh Schedule to the Constitution of India. As H the provisions of the Bombay Rents, Hotel and Lodging House Rates

KAISER-1-HINDi'V'f. bTD. v. N.T.C. [D.M. DHARMADHIKARI. .1.) 607

Control Act, 194 7 are repugnant to the provisions of th.e Transfer of A Property Act 1882 and the Presidency Small Cause Courts Act 1882 which are the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative List and as Clause 2 of the Bill is intended to extend the life of the Principal Act for a period of five years, it is necessary to reserve the Bill for the consideration and assent of the President with reference to article 254(2) of the Constitution of India. B

Several letters addressed from time to time to the Government of India by the State for obtaining 'assent of the President', which are contained in the file, are somewhat similar in wording and phraseology. From the contents of letter dated 15.12.1980, what is to be noted (as reproduced above) is that entries I, 2, 6, 7, J JoA and 46 in List-III that is the Concurrent List in the Seventh Schedule of the Constitution have been specifically mentioned. The language of the proposals contained in the letter is noteworthy. It reads : "the provisions of some of the existing laws relating to entries 6, 13, 46 in the Concurrent Legislative List such as Transfer of Property Act 1882 and the Presidency Small Cause Courts Act 1882 .. ".

Similarly, in the proposals contained in letter dated 27.1.1986, there is specific mention of entries 1, 2, 6, 7, 11-A, 12, 13 and 46 of Concurrent List in Seventh Schedule of the Constitution with specific mention of repugnancy to the provisions of Transfer Property Act 1882 and Presidency Small Cause Courts Act 1882 ..

Each time when the proposal was moved for obtaining Presidential sanction, relevant entries of the Concurrent List have been mentioned. It is not disputed that the Central Act under consideration covers entries 6 and. 7 F of the Concurrent List which are specifically mentioned in the proposal. In the letter dated 15.12.1980, while moving proposal for obtaining assent, it has been very clearly mentioned that the State Act is repugnant to "some of the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative List" and the above language is followed by words "such as" with words G following them 'Transfer of Property Act' and 'Presidency Small Cause Courts Act'. The mention of entries in the Concurrent Legislative List including entry 6 which covers the Central Act and use of such expression as repugnancy to "some of the existing laws'' relating to the entries mentioned in Concurrent List followed by use of words ·'such as" clearly go to show that ·assent of the President' was obtained in a general way to give overriding effect to the H

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A State Law which is admittedly repugnant to many Central Laws referable to various entries in the Concurrent List. Mention of Central Acts was not exhaustive but only illus/rat ive, otherwise the language, in the proposal contained in the letters of the State Government, would have been different.

On such an 'assent of the President' having been granted in general way to the State Act to give it an overriding effect over all repugnant Central Acts on legislative fields covered by specific entries of the Concurrent List, it is not open to the Court to interpret differently the contents of the letters in the file and come to a conclusion that the 'assent of the President' was restricted only to Central Acts mentioned in the proposal and non-mention of the present Central Act was an indication of the mind of the President that no assent was given to the State Act qua the present Central Act.

Learned Brother Shah J. has taken note of all the previous decisions of this court and other High Courts cited by the counsel for the parties at the Bar. The file containing proposals for obtaining assent of the President was summoned and perused. Th is exercise of going into the contents of the file was undertaken with the limited purpose of finding out whether the 'assent of the President' to the State Act, in fact, existed or not. Learned Brother Shah J. accepts the legal position that the court cannot go into th~ question of validity or invalidity of the 'assent of the President' and the scrutiny of the file containing proposals moved for seeking 'assent of the President' is limited to find out.whether, in fact, 'assent' has been granted to the State Act or not and to what extent it has been granted. Law has also been taken note of on the basis of previous decisions of this court that 'Presidential assent' can be obtained qua specific Central Acts and also in a general way.

F As discussed above by me on the contents of two letters containing proposals for 'assent of the President', it is evident that the 'assent' was obtained in a general way by making mention of relevant entries of the Concurrent List and a few repugnant Central enactments illustratively and not exhaustively. The 'assent of the President' was sought in the manner mentioned above and granted. G The preamble of the State Act as notified and published in the Government Gazette contains a declaration that the State Act has received an 'assent of the President' under Article 254(2) of the Constitution. Such declaration of receipt of 'assent of the President' is to be found in the preamble H of all Extension Laws passed after coming into force of the Constitution.

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I do not find myself persuaded to agree with the view that 'assent of the President' is subject of legisla1ive procedure. In giving overriding effect to the State Law over Central Laws covered by entries in Concurrent List, the grant of 'assent' by the President in exercise of powers under Clause (2) of Article 254 is a substantive legislative act. It cannot be described merely as part of legislalive procedure. It is only the President who is empowered to exercise that legislative power in the event of inconsistency between the State Law and Central Law. Such legislative power has been given by the Constitution only to the President and exercise thereof involves no other procedure. In granting or refusing 'assent' to a State Act which is repugnant to Central Law, the President alone exercises the legislative function. The provision in Article 254 (2) is a substantive provision on the subject of resolving conflict between State and Central Law when both are legislation on entries in Concurrent List. Obtaining and giving 'assent by the President' is not part of any legislative procedure because in the event of conflict between State and Central Law on legislative fields in Concurrent List, the subject does not go either to Parliament or to the State Legislature. In the event of conflict between State and Central Law, the only legislative activity involved /D and to be exercised by the President is to give an 'assent' for giving overriding effect to the State Law or withhold such assent to allow Central Law to override the State Law in its application to the concerned State.

The action of the President of granting 'assent' being a legislative Act, E it is not open to the Court to sit in judicial review over it. The laws are enacted and notified for knowledge of law enforcing agencies and general public who are affected by it. When an Act duly notified and published contains a declaration in its preamble, of the law having received 'assent of the President' such declaration becomes part of the Act and it. is not open to the court to go into the question whether the President had, in fact, applied F his mind to the alleged repugnancy of the State Act to a particu Jar Central f.ct. The President occupies the highest constitutional office and by virtue of privilege and protection available to him under Article 361 of the Constitution, he is not made answerable personally to any court with regard to the discharge of his constitutional functions. G _The validity of the State Act is riot ul)der challenge nor any material was produced by the State and Central Governments before the court as to what weighed with President in granting assent to the State Act under Article 254(2) of the Constitution. Merely on the basis of the contents of the letters contained in the file summoned and perused by the court, it is not possible H

p. 610 Copy page pinpoint

A to ascertain whether there was due application of mind of the President to the repugnuncy between the State and the Central Act uuder consideration before us. It is not possible for the court to probe into the mind of the President why and how he exercised his power of granting or refusing 'assent' under A11icle

254. In my considered opinion, the court cannot go behind the declaration duly notified and published in the Government Gazette containing the text of the State Act with preamble therein stating that it has received 'assent of the President' under Article 254(2).

The question whether Central Act, in its application to leased and licensed premises of government companies and corporations, should be regulated by Central Act to make available to the owners of those premises a summary procedure of eviction or they be governed by State Act with protection extended to occupants on specified circumstances and grounds is a matter purely of legislative wisdom and beyond judicial review.

I may also add that State Act of 1947 was an 'existing law' as defined in Clause (10) of Article 366 at the time of coming into force of the Constitution, because it was a pre-constitutional law. Explanation III to Article 372 makes it clear that any "existing law" which was a temporary law in force because of its limited duration would not continue if it had expired before the Constitution came into force. The said "existing law" which was revived and extended by State Laws made from time to time with or without amendments by the State Legislature, after coming into force of the Constitution, is a post-constitutional law. The 'existing law' of 1947 and all Extension Laws passed by the State Legislature after coming into force of the Constitution made them all post-constitutional laws and each of them has received 'assent of the President' because of its repugnancy to the Central F Act. I do not find it relevant that the Extension Laws passed from time to time were only for the purpose of continuing the 'existing law' or pre- constitutional law of 1947 in the same form. The fact remains that 'Extension Laws' made from time to time to revive State Act of 1947, in its application to the States after the Constitution, were legislations of the State Legislature G on one of the entries in the Concurrent List and each time because of their repugnancy to the Central Law, they were assented to by the President to give them overriding effect. My ,understanding of the proposals contained in the file is that the 'assent of the President' was obtained each time in a general way by referring to some of the Central Laws covered by the relevant entries in the Concurrent List. · H

KAISER-I-HIND PVT.LTD. v. N.T.C. [D.M. DHARMADHIKARI, J.J 611 My conclusion, therefore, is that the 'assent of the President' to the A State Act having been obtained in a general way, State Act would prevail over the Central Act.

Consequently this appeal and all connected appeals and writ petitions on this point succeed. The impugned order of the High Court of Bombay deserves to be set aside. The cases be sent to competent courts for deciding B remaining legal and factual questions as are involved in each of them. The cost incurred in this court in each case shall abide the final result of the each case. The connected SLPs are accordingly disposed of.

N.J. Appeals/Petitions dismissed. C