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TMI Blog2002 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion is negatived for the reasons recorded hereinafter. It is held that consideration by the President and his assent under Article 254(2) is limited to the proposal made by the State Government; the State legislation would prevail only qua the laws for which repugnancy was pointed out and the 'assent' of the President was sought for. Proposal by the State is sine qua non for 'consideration' and 'assent'. 4. The aforesaid question arose before the High Court of Bombay in writ petitions and appeals which were filed challenging the vires of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the P.P. Eviction Act ) insofar as it is made applicable to the premises belonging to Government companies and corporations. Firstly, it was submitted that the P.P. Eviction Act was violative of Articles 14, 19(1)(f) and 19(1)(g) of the Constitution of India. It was further 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 (hereinafter referred to as the Bombay Rent Act ) would prevail over those of the P.P. Eviction Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether Government companies and statutory corporations could not and cannot avail of the provisions of the P.P. Eviction Act against their tenants and protected licensees for securing eviction except on grounds specified in Sections 12 and 13 of the Bombay Rent Act, 1947? 4. Whether it is permissible for a Court of Law to enquire into and ascertain the circumstances in which assent to a law under Article 254(2) was given and hold as a result of such consideration that the State law even with respect to a matter enumerated in the Concurrent List (after having been reserved for the consideration of the President and after having received his assent) does not prevail in that State. Contention Nos. 1 and 2. 6. It is submitted by the learned senior counsel that the P.P. Eviction Act abridges the right conferred by Article 19(1)(f) [which is deleted from the Chapter of Fundamental Rights w.e.f. 20.6.1979] 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. In our view, it cannot be held that because summary procedure un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of the P.P. Eviction Act, this Court in Northern India Caterers Private Ltd. Anr. v. State of Punjab and Anr, clarified-- the Act does not create any new right of eviction. It creates remedy for a right existing under the General law. The remedy is speedier than one by way of a suit under the ordinary law of eviction. 7. The learned senior counsel at the time of hearing of this matter did not press the contention No. 2 as enumerated above. Hence, it is not required to be dealt with further. 8. It is contended that 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. In substance, it has been contended by the learned senior counsel Mr. Nariman that 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tobe exhibited without objection by the appellants herein. d) 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. Essentials of Article 254- 10. For deciding the controversy, we found first refer to Article 254, which reads thus:-- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served for consideration of the President'; and (2) has received 'his assent'; would prevail in that State. 13. Hence, it can be stated that for the State law to prevail, following requirements must be satisfied-- (1) law made by the legislature of a State should be with respect to one of the matters enumerated in the Concurrent List; (2) it contains any provision repugnant to the provision of an earlier law made by the Parliament or an existing law with respect to that matter; (3) the law so made by the Legislature of the State has been reserved for the consideration of the President; and (4) it has received 'his assent'. 14. In view of aforesaid requirements, 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 int eh 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Official, judicial,or formal sanction; the actio or instrument that signifies such sanction ME. 3. Accord. 4.Opinion. 5. Agreement with a statement, or matter of opinion; mental acceptance. Bouvier's Law Dictionary--Assent--Approval of something done. An undertaking to do something in compliance with a request... Law Lexicon of British India by P. Ramanatha Aiyar-- Assent.--The act of the mind in admitting or agreeing to the truth of a proposition proposed for acceptance; consent, agreeing to; to admit, yield, or conceded: to express an agreement of the mind to what is alleged or proposed, (as) Royal assent or Viceeroy's assent to an enactment passed in the Legislative Assembly; Executor's assent to a legacy; assent of a corporation to bye-laws. Royal Assent, in England, the approbation given by the Sovereign in Parliament to a bill which has passed both houses, after which it becomes law. This assent may be given in two ways; (a) in person, when the Sovereign comes to the House of Peers, the Commons are sent for, and the titles of all the bills which have passed are read. The royal assent in declared in Norman. French by the Clerk of the Parliament. (b) By l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar State should be permitted to make a provision of law different from the provision made by Parliament, he should give his assent and thereupon the State legislation would prevail. [Emphasis supplied] 18. Further, in Gram Panchayat of Village Jamalpur v. Malwinder Singh and Ors., this Court has also held that the assent o the President under Article 254(2) of the Constitution is not a matter of ideal formality and the President has at least to be apprised of the reason as to why his assent is sought and the special reason for doing so. 19. Mr. Nariman, learned senior counsel submitted that when the President has given assent to a State legislation, the Court cannot call for the files to find out whether the assent was limited to repugnancy between the State legislation and laws mentioned therein. 20. 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. As discussed above be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersy was between the right of Gram Panchayats (eight petitioner-panchyats) o the Shamlat-deh lands situated in those villages which fell within their jurisdiction and the right of Rehabilitation Department of the Central Government to allot ladns of that description to the extent of evacuee interest therein to person who migrated from Pakistan to India after partition of the country. Under the provisions of the Punjab Act, the land on the specified day vested in the Panchayat having jurisdiction over the village. Under Section 8(2) of the Central Act, namely, Administration of Evacuee Property Act, 1950, evacuee property is deemed to have been vested in the custodian. The Court thereafter considered Article 254 and observed that Punjab Act was reserved for consideration of the President and received his assent on December 26, 1953. Prima facie , by reason of the assent of the President, the Punjab Act would prevail in the State of Punjab over the Act of the Parliament and the Panchayats would be at liberty to deal with the Shamlat-deh lands according to the relevant Rules or bye-laws governing the mater, including the evacuee interest therein. In that case also the High Court of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sident is not justiciable and placed reliance on decision of this Court in Bharat Sevashram Sangh and Ors. v. State of Gujarat and Ors., wherein this Court observed thus:-- it cannot be said that the assent which was given by the President was conditional. The records relating to the above proceedings were also made available to the court. On going through the material placed before us we are satisfied that the President had given assent to the Act and it is not correct to say that it was a qualified assent. The Act which was duly published in the official Gazette contains the recital that the said Act had received the assent of the President on September 28, 1973. Moreover, questions relating to the fact whether assent is given by the Governor or the President cannot be agitated also in this manner. In Hoechst Pharmaceuticals Ltd. v. State of Bihar, this Court has observed thus-- We have no hesitation in holding that the asset of the President is not justiciable and we cannot spell out any infirmity arising out of his decision to give such assent. The above contention relating to the assent given by the President is, therefore, rejected. 24. In the aforesaid decision also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the decision of Madras High Court in Bapalal and Co. v. P. Thakurdas and Ors. wherein the Court held thus:-- In this case the assent is sought to be invalidated on the ground that the President was not made aware of the repugnancy between the proposed State Law (Rent Control Act) and the existing Central Law (the Transfer of Property Act) in Ex.P.12, which does indicate the extent to which the State law is repugnant to the earlier existing Central Law. It is said that in this case Ex.P.12 does not exactly indicate how far the proposed State Act is repugnant to the provisions of the existing Central law and any assent given without considering the extent and the nature of the repugnancy should be taken to be no assent at all. However, a perusal of Ex.P.12 shows that Section 10 of the Act has been referred as a provision which can be said to be repugnant to the provisions of the Civil Procedure Code and the Transfer of Property Act which are existing laws on the concurrent subject. Further, a copy of the Bill has been reserved for the consideration of the President under Article 254(2) of the Constitution. Therefore, even if the State Legislature did not point out the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed above, the essential ingredients of Article 254(2) are -- (1) mentioning of the entry/entries with respect to one of the matters enumerated in the Concurrent List; (2) stating repugnancy to the provisions of an earlier law made by the Parliament and the State law and reasons for having such law; (3) thereafter it is required to be reserved for consideration of the President; and (4) receipt of the assent of the President. 29. In this view of the matter, 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. After looking at the said file, the Court considered relevant portion of the letter, which referred to the Bill passed by the Maharashtra Legislative Council and the Maharashtra Legislative Assembly extending the duration of the Bombay Rent Act for 5 years from Ist April, 1986. The letter stated: As the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 are repugnant to the provisions of the Transfer of Property Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Central Acts to the extent of any repugnancy between the Rent Act and the relevant Central Acts. It was a temporary law as provided in Section 2 and it was to remain in force up to 31st day of March, 1950. The said period was extended up to 31st March, 1952. It is also pointed out that after the Constitution, the Bombay Amending Act 43 of 1951 extended and amended the Bombay Rent Act by providing that it was extended from 31st March, 1952 to 31st March, 1953. It received Presidential assent under Article 254(2) read with Article 201, since it was reserved by the Governor for Presidential Assent- which could only be if it was treated as enacting a substantive law repugnant to existing Central law (e.g. the Transfer of Property Act 1882): otherwise a mere extension Act only required Governor's assent. 33. It is also pointed out that on 31st March, 1970, the operation of the Bombay Rent Act was extended by Maharashtra Act No. 12 of 1970 up to 31st March, 1973, and thereafter by Maharashtra Act No. 17 of 1973 up to 31st March, 1976, by Maharashtra Act No. 4 of 1976 up to 31st March, 1977, by Maharashtra Act No. 8 of 1977 up to 31st March, 1978, by Maharashtra Act No. 67 of 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is expiration. 37. It is submitted that thus on a conjoint reading of Article 372(1) and Explanation III thereof, read with Article 366(10) it is clear that the Constitution did not envisage or provide for the continuance in force of existing laws if such existing laws were only temporary laws. Such temporary laws continued in force only till the date fixed for their expiration; alternatively, till the date on which they would have expired if the Constitution had not come into force. 38. It is his submission that being a temporary law in force till 31st March, 1952, the Bombay Rent Act 1947 could not have continued after 31.3.1952 unless re-enacted and the words 'existing law' and 'law in force' are inter-changeable. For this purpose, he relied upon the decision in Keshavan Madhava Menon v. The State of Bombay (1951 SCR 228). He also relied upon the State of Bombay v. Heman Santlal Alreja [AIR 1952 (39) Bombay 16], wherein Chagla, CJ observed thus:-- In Keshavan Madhava Menon v. The State of Bombay, Mr. Justice Das says (P.234) : What Article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd 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. Re.--(II) and (III):- 43. he next question is--what is the effect of extension of the Bombay Rent Act from time to time after 31st March, 1973 -- whether it can be held that there was new enactment (new Bombay Rent Act)? Or whether the Bombay Rent Act which was for a temporary period continues by the Act by which its duration or life is extended? After 1970, the next extension is given by Maharashtra Act No. 17 of 1973. Section 4 of the said Act only substitutes the figures '1973' by figures '1976' meaning thereby the duration of the Bombay Rent Act is extended up to 1976. It is equally true that by the said Act, licesees are also given protection of the Rent Act and correspondingly Bombay Rent Act is amended. Some other minor amendments are also provided. However, it nowhere provides that notwithstanding anything contained in the P.P. Eviction Act, the Rent Act would prevail qua the properties owned by the Government companies/corporations etc. 44. Thereafter, la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the repeal of an old Act and the re-enacting of a new Act and the extension of an old Act. When an Act is passed extending the duration of some law, it cannot be said that some new law was created. The old law already on the statute book continues. Our attention was drawn to an American case which is relevant on the point. In United States v. Powers [(1938) 307 USR 1245] the Connally Act of 22.2.1935, originally provided that it should cease to be in effect on 16.6.1937, but it was extended prior to 16.6.1937 to 30.6.1939, and the Supreme Court of America held that the amended Act authorised a prosecution for violations committed prior to 16.6.1937, under an indictment returned subsequent thereto but prior to 30.6.1939. In the judgment of Douglas J., it is stated (p. 1248) ...Due to the amendment, the Act has never ceased to be in effect. No new law was created: no old one was repealed. Without hiatus of any kind, the originally Act was given extended life. It is true that in this case the amending Act did not in any way alter the substantive provisions of the original Act. But, as I said before, we are only considering the effect of Act II (2) of 1950 to the extent that it e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's case (supra) . In that case, the Court was considering the provisions of Bombay Forward Contracts Control Act, 1947. Section 8 of that Act declared forward contracts of any goods specified in a notification to be issued under Section 1(3) to be illegal, if these were not entered into, made or performed in the manner laid down in that Section. The Court was also required to consider the provisions of the Essential Supplies (Temporary Powers) Act, which would have expired on 1.4.1951 but for the fact that Article 369 of the Constitution gave to the Parliament, during a period of five years from the commencement of the Constitution, the power to make laws with respect to certain matters enumerated in the Concurrent List, and in exercise of the power, the original Essential Supplies Act with certain important amendments was continued up to 31st December, 1952. While dealing with the contention that bombay forward Contracts Control Act being a legislation passed by the State, it would prevail in view of Article 254, the Court considered Article 254 and observed thus:-- if the State legislature passes a law subsequent to the law passed by the Parliament and the State Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... altered or modified by the Court. In that particular case, as Essential Supplies Act, 1946 was not only extended but substantially altered and was also passed by the Parliament in exercise of its legislative power conferred under Article 369. 54. Further reliance is placed on the decision rendered by the Full Bench of Patna High Court in Mangtulal's case (supra) . In that case, the Full Bench considered the following questions:-- 1. Whether, in the circumstances stated above, the Bihar Buildings, (Lease, Rent and Eviction) Control (Amendment) Act, 1951, required assent of the President under the provisions of Article 254 of the Constitution of India, and 2. Whether in the absence of such assent, the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, still operate, after the 14th of March, 1952, in spite of the provisions being repugnant to existing law contained in the Civil Procedure Code, the Indian Contract Act or the Transfer of Property Act. 55. In the said case, it was admitted position that though the Act of 1947 namely Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and the Amending Act, 1949 had received the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s case question at issue was different namely what is the correct interpretation to be placed on the phrase existing law in Article 31(5) and no question was raised under Article 254 of the Constitution and the effect of the absence of the President's assent to an Amending Act was not considered in that case. Concurring with the aforesaid judgment, Das, J. held that whether Amending Act is new Act or not is material for the purpose of Article 254 and that such a continuation of the Act would require the assent of the President so as to make the State law prevail over the existing law. 58. From this decision also, it cannot be stated that the Court arrived at the conclusion that by extending duration of a temporary statute, new and independent statute comes into existence. 59. Reliance is also placed on decision rendered by the High Court of Allahabad in Benaras Electric Light and Power Co. Ltd.'s case (supra) . In that case, the Court considered the observation made by the Douglas, J., Maxwell on Interpretation of Statutes, Craies (in Treatise on Statute Law) and referred to Heman Santlal's case and observed that in the eye of law, the extending Act did not pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Kerala 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 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 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 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution) - even though a mere extension law - must Constitutionally be regarded as a law made by the legislature of a 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 lend support to the fact that it was not a mere extension but treated as a substantive enactment. 64. The aforesaid submission requires to be rejected mainly because Article 254(1) as quoted above clearly inter alia 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. 65. 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 nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in provisions 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. 70. These petitions are filed against the judgments and orders dated 9.8.1995, 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. 71. There shall be no order as to costs. 72. I have carefully gone though the judgment prepared by learned brother justice M.B. Shah, dismissing the appeals and other connected writ 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 view also in the matter. 73. The factual backgr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, nor an automatic event, necessitated or to be given for the mere asking, in whatever form or manner and whether specific, vague, general of indefinite - in the terms sought for the claim that once sought and obtained as well as published, a curtain or vell 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 (1) 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant or refuse to grant or even grant partially, if the 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 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 VIIth Schedule to the Constitution, and the heard of provisions contained therein, artificial assumptions based on some supposed knowledge of all those provisions and the presumed regularity of official acts, cannot be blown 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 institution resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts or which provisions of those enactments are considered or apprehended to be repugnant, with reference to which the assent envisaged in Article 254(2) is sough 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 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 'consideration' for according assent. 76. This 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 give to anyone to challenge the decision of the President according assent, on merits and as to its legality property or desirability. But that is not the same thing as approving an attempt to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the 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 'assant' of the President envisaged under Article 31A, 31C, 254(2) and 304(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 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'. In 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 reception therefore could be taken to the High Court in this case adopting such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received 'assent of the President' and the subject of Legislation is in Concurrent List, the State Law prevails in its application to the State. 85. 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 Constitutional. 86. 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 coming 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 mov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. GOVERNMENT OF MAHARASHTRA No. 1419/B LAW AND JUDICIARY DEPARTMENT Mantralaya, Bombay - 400 032 Dated: 27th Jan., 1986 To, The Secretary to the Governor of Maharashtra, 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, The subject matter of the Bill falls under entries 3, 5, 18, 31, 35, 49, 64 and 65 in List-II and entries 1, 2, 6, 7, 11-A, 12, 13 and 46 in List-III in the Seventh Schedule to the Constitution of India. As the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 are repugnant to the provisions of the Transfer of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Acts was not exhaustive but only illustrative, otherwise the language, in the proposal contained in the letters of the State Government, would have been different. 90. 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. 91. 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. This exercise of going into the contents of the file was undertaken with the limited purpose of finding out whether the 'assent of the Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 overriding the State Law in its application to the concerned State. 95. The action of the President of granting 'assent' being a legislative Act, 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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. 99. My conclusion, therefore, is that the 'assent o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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