Judges: G.B. Pattanaik, M.B. Shah, Doraiswamy Raju, S.N. Variava and D.M. Dharmadhikari, JJ.

Facts:

The question that "whether the "assent" given by the President under Article 254(2) of the Constitution of India with regard to the repugnancy of the State legislation and the earlier law made by the Parliament or the existing law could only be qua the "assent" sought by the State with regard to repugnancy of the laws or would it prevail qua other laws for which no assent was sought" has been arose before the High Court of Bombay in writ petitions and appeals. These petitions and appeals were filed challenging the vires of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (P.P. Eviction Act) insofar as it is made applicable to the premises belonging to Government companies and corporations. The vires has been challenged on grounds that P.P. Eviction Act was violative of Articles 14, 19(1)(f) and 19(1)(g) of the Constitution of India. It was also contended the having regard to Article 254(2) of the Constitution of India, provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) would prevail over those of the P.P. Eviction Act.

The challenge was rejected by the High Court and the validity of the P.P. Eviction Act has been upheld. The Court has negatived the contention that the provisions of the Bombay Rent Act prevail in the state of Maharashtra over the P.P. Eviction Act.

Thereafter, the Court granted Certificate that substantial question of law relating to the interpretation of the Constitution arises and hence, on the basis of that certificate, these appeals are filed before present Court.

Issue:

I. Whether the P.P. Eviction Act specifically empowering government companies and statutory corporations to evict their tenants through the summary procedure provided therein took away or abridged the rights conferred by Article 19(1)(f) of the Constitution and was, to that extent, void from its inception?.

II. Whether the provisions of the Bombay Rent Act, 1947 having been re-enacted after 1971 by the State Legislature with the assent of the President must prevail in the State of Maharashtra over the provisions of the P.P Eviction Act by virtue of Article 254(2) of the Constitution?

III. Whether extension of temporary enactment amounts to enactment of new law?

IV. Whether the "assent" given by the President under Article 254(2) of the Constitution of India with regard to the repugnancy of the State legislation and the earlier law made by the Parliament or the existing law could only be qua the "assent" sought by the State with regard to repugnancy of the laws mentioned in the submission made to the President for his consideration before grant of assent? Or would it prevail qua other laws for which no assent was sought?

Law:

Constitution of India - Article 254 - Inconsistency between laws made by Parliament and laws made by the Legislatures of States -- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

2. Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting 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."

Contention:

Appellants

I. The P.P. Eviction Act abridges the right conferred by Article 19(1)(f) of the Constitution insofar as it empowers the Government companies and statutory corporations to evict their tenants thought the summary procedure provided therein and was to that extent void from its very inception.

II. It was not permissible for the High Court to enquire into and ascertain the circumstances in which "assent" to law made by the State under Article 254(2) of the Constitution was given and to hold, as a result of such enquiry, that the said law even with respect to a matter enumerated in the Concurrent List does not prevail in the State.

III. Since 1947, the Bombay Rent Act is extended from time to time and on each occasion assent of the President is received. Once assent of the President is obtained, the Bombay Rent Act prevails in the State of Maharashtra and not the P.P. Eviction Act.

IV. Once the President grants the 'assent' to the State legislation, the State law would prevail on the said subject and such 'assent' would be deemed to be an assent qua all earlier enactments made by the Parliament on the subject.

Respondent

I. Before granting 'assent' the President has to consider specific provisions of the State legislation which are repugnant to the provisions of an earlier or existing law made by the Parliament. Before granting assent, the President has to apply his mind to the proposed State law and the law made by the Parliament. The consideration would be restricted to the proposal made by the State Government and President's assent would only be with regard to the laws specified therein.

II. The assent of the President given to the Extension Acts of 1981 and 1986 of the Bombay Rent Act, 1947 was only for the limited purpose of repugnancy to the Transfer of Property Act, 1882 and the Presidency Small Cause Courts Act, 1882. There is no assent applicable to the P.P. Eviction Act.

III. The High Court committed an error in holding that Bombay Rent Act was extended by Act 10 of 1981 and by Act 16 of 1986 and, therefore, the Bombay Rent Act must be considered to be a new law and the P.P. Eviction Act is the earlier law, for the purpose of Article 254(2).

IV. In the alternative, in any case the assent given to the Extension Acts of 1981 and 1986 is also limited to specified repugnancies to the Transfer of Property Act and to the Presidency Small Cause Courts Act. For this purpose, the High Court rightly referred to the documents tendered as Ex.F collectively. There documents were allowed to be exhibited without objection by the appellants herein.

V. The phrase "reserved for the consideration of the President" under Article 254(2) implies that the State has to draw the attention of the President to the particular repugnancy arising between specified Central Laws and the contemplated State legislation requiring consideration of the President for obtaining his assent.

Analysis:

Validity of P.P. Eviction Act

I. It cannot be held that because summary procedure under the P.P. Eviction Act is prescribed for evicting the tenants or unauthorised occupants or sub-tenants, it abridges the rights of the tenants conferred by Article 19(1)(f) of the Constitution. It is for the Legislature to provide summary procedure for evicting such persons or to direct the parties to approach the civil Court. If the Legislature considers in its wisdom that under General law the eviction process is dilatory and provides for other speedier procedure for evicting unauthorised occupants, sub-tenants, whose tenancy is terminated, it cannot be said that the said procedure would be in any way, violative of Article 19(1)(f) of the Constitution.

II. There cannot be any doubt that a lessee would have an interest in the property and thereby it would fall within the expression "property" occurring in Sub-clause (f) of Clause (1) of Article 19 of the Constitution. Further, under the Bombay Rent Act, even the tenants whose tenancy has come to an end by afflux of time or by giving notice as provide under the Transfer of Property Act, would have further statutory protection from being evicted except as provided under the Bombay Rent Act. However, withdrawal of such statutory protection would not mean that right to property is abridged.

Assent of President and Repugnancy of Act

I. Before obtaining the assent of the President, the State Government has to point out that the law made by the State legislature is in respect of one of the matters enumerated in the Concurrent List by mentioning entry/entries of Concurrent List and that it contains provision or provisions repugnant to the law made by the Parliament or existing law. Further, the words "reserved for consideration" would definitely indicate that there should be active application of mind by the President to the repugnancy pointed out between the proposed State law and the earlier law made by the Parliament and the necessity of having such a law, in facts and circumstances of the matter, which is repugnant to a law enacted by the Parliament prevailing in a State. The word 'consideration' would mean that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by the Parliament, the President may grant assent. This aspect is further reaffirmed by use of word "assent" in Clause (2) which implies knowledge of the President to the repugnancy between the State law and the earlier law made by the Parliament on the same subject matter and the reasons for grant of such assent. The word "assent" would mean in the context as an expressed agreement of mind to what is proposed by the State.

II. Applying the aforesaid meaning of the word assent' and form the phraseology used in Clause (2) the object of Article 254(2) appears that even though the law made by the Parliament would have supremacy, after considering the situation prevailing in the State and after considering the repugnancy between the State legislation and earlier law made by the Parliament, the President may give his assent to the law made by the State legislature.

III. The word assent is used purposefully indicating affirmative action of the proposal made by the State for having law repugnant to the earlier law made by the Parliament. It would amount to accepting or conceding and concurring to the demand made by the State of such law. This cannot be done without consideration of the relevant material

IV. It is true that President's assent as notified in the Act nowhere mentions that assent was obtained qua repugnancy between the State legislation and specified certain law or laws of the Parliament. But from this, if also cannot be inferred that as the President has given assent, all earlier law/ laws on the subject would not prevail in the State.

V. Before grant of the assent, consideration of the reasons for having such law is necessary and the consideration would mean consideration of the proposal made by the State for the law enacted despite it being repugnant to the earlier law made by the Parliament on the same subject. If the proposal made by the State is limited qua the repugnancy of the State law or laws specified in the said proposal, then it cannot be said that the assent was granted qua the repugnancy between the State law and other laws for which no assent was sought for.

VI. For finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by the Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the absent is rightly, wrongly or erroneously granted. The consideration by the Court is limited to the extent that whether the State has sought assent qua particular earlier law or laws made by the Parliament prevailing in the State or it has sought general assent. In such case, the Court is not required to decide the validity of the 'assent' granted by the President.

VII. In the present case, the assent was given after considering extent and nature of repugnancy between the Bombay Rent Act and Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted by the President, the State law would prevail qua earlier other law enacted by the Parliament for which no assent was sought for nor which was reserved for the consideration of the President.

VIII. Thus, it cannot be said that the High Court committed any error in looking at the file of the correspondence Ex.F collectively for finding out - for what purpose 'assent' of the President to the Extension of Acts extending the duration of Bombay Rent Act was sought for and given.

IX. Further, granting of assent under Article 254(2) is not exercise of legislative power of President such as contemplated under Article 123 but is part of legislative procedure. Whether procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court.

Extension of temporary enactment amounts to enactment of new law

I. There is nothing in Explanation III to Article 372 which even remotely suggests that it is restricted to the provisions of that Article alone. On the contrary it is of general application, i.e., it applies to all temporary enactments which were enacted pre-Constitution. Article 372(1) applies in general terms to all existing laws/laws in force and continues their operation after the commencement of the Constitution: And Explanation-III explains or clarifies that nothing in Article 372 shall be construed as continuing any temporary law in force, beyond the date fixed for this expiration.

II. Once the P.P. Eviction Act is enacted then Bombay Rent Act would not prevail qua the repugnancy between it and the P.P. Eviction Act. To the extent of repugnancy, the State law would be void under Article 254(1) and the law made by the Parliament would prevail.

III. Admittedly, the duration of the Bombay Rent Act was extended up to 31st March, 1973 by Maharashtra Act No. 12 of 1970. The result would be from the date of the coming into force of the P.P. Eviction Act, the Bombay Rent Act qua the properties of the Government and Government companies would be inoperative. For this purpose, language of Article 254(1) is unambiguous and specifically provides that if any provision of law made by the Legislature of State is repugnant to the provision of law made by the Parliament, then the law made by the Parliament whether passed before or after the law made by the Legislature of the State, would prevail. It also makes it clear that the law made by the Legislature of the State, to the extent of repugnancy, would be void.

IV. Hence, once the P.P. Eviction Act came into force w.e.f. 23rd August, 1971, the existing Bombay Rent Act would be void so far as it is repugnant to the law made by the Parliament as in view of Article 254(1), the law made by the Parliament would prevail.

V. Thus, 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. However, while extending the duration if there is any substantial amendment in the statutory provisions, it cannot be said that it was mere extension of existing law.

Law made by State vs. Law Made by Parliament

I. Article 254(1) of Constitution clearly 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 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.

II. Further, in the present case, there is no question of considering that the Bombay Rent Act was an existing law as defined under Article 366(1). Explanation III 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), interalia , 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 exiting 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 the said part of Article 254(1).

Conclusion:

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 right conferred under the Constitution.

ii.     

1. 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 legislature and the reasons for having such law despite the enactment by the Parliament.
2. 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.
3. 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.

iii. 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.

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