1949 (5) TMI 21 - Other - Indian Laws

Issues Involved:
1. Validity of the detention under the Bihar Maintenance of Public Order Act, 1947.
2. Legislative powers of the Governor under Section 92(1), Government of India Act, 1935.
3. Delegation of legislative powers by the Provincial Legislature.
4. Retrospective application of the Governor's notification.
5. Effect of Bihar Act V of 1949 on the expired Act of 1947.

Issue-Wise Detailed Analysis:

1. Validity of the detention under the Bihar Maintenance of Public Order Act, 1947:
The appellants were detained under the Bihar Maintenance of Public Order Act, 1947, which was initially in force for one year from its commencement on 16th March 1947. The Act was extended for another year by the Provincial Government on 11th March 1948. However, the appellants contended that the Act was not validly in force in the Chhota Nagpur Division after 15th March 1948, as there was no fresh notification by the Governor under Section 92(1), Government of India Act, 1935, making it applicable to Chhota Nagpur after the extension.

2. Legislative powers of the Governor under Section 92(1), Government of India Act, 1935:
The Governor of Bihar issued a notification on 16th March 1947, applying the Bihar Maintenance of Public Order Act, 1947, to the Chhota Nagpur Division. The appellants argued that the Governor's power under Section 92(1) was legislative, and a fresh notification was required after the Act was extended. The Court held that the Governor's power under Section 92(1) was indeed legislative, as it involved the authority to modify and apply Acts to excluded areas. However, the Court found that the Governor's notification of 16th March 1947 was valid and operative, making the Act applicable to Chhota Nagpur for its entire duration.

3. Delegation of legislative powers by the Provincial Legislature:
The appellants argued that the proviso to Section 1(3) of the Bihar Maintenance of Public Order Act, 1947, which allowed the Provincial Government to extend the Act's duration with modifications, was an improper delegation of legislative power. The Court agreed, stating that the power to extend the Act's duration and modify its provisions was legislative and could not be delegated to an external authority. The proviso was thus held to be ultra vires the Provincial Legislature.

4. Retrospective application of the Governor's notification:
The Governor issued a notification on 7th March 1949, purporting to apply the Act retrospectively to Chhota Nagpur from 16th March 1948. The Court held that the Governor's power under Section 92(1) did not include the authority to apply an Act retrospectively. The notification of 7th March 1949 was therefore invalid.

5. Effect of Bihar Act V of 1949 on the expired Act of 1947:
Bihar Act V of 1949 amended the Bihar Maintenance of Public Order Act, 1947, extending its duration till 31st March 1950. The respondents argued that this amendment retrospectively validated the Act. However, the Court held that the 1949 Act was an amending Act and could not revive the expired 1947 Act. The 1947 Act had ceased to be in operation after 15th March 1948, and the 1949 amendment could not retroactively validate it.

Conclusion:
The Court concluded that the Bihar Maintenance of Public Order Act, 1947, was not validly in force in the Chhota Nagpur Division after 15th March 1948. The proviso to Section 1(3) of the Act was an improper delegation of legislative power and was ultra vires. The Governor's notification of 7th March 1949 could not apply the Act retrospectively. Consequently, the detention of the appellants was illegal, and they were ordered to be released.

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