SIR KAMESHWAR SINGH Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) The object of the British Parliament is enacting Sub-section (2) of Section 299, Government of India Act, 1935, and of His Majesty the King in inserting in the Instruments of Instructions, which were issued under the Royal sign Manual to the Governor-General and to the Governors of Provinces, a direction not to assent to any bill regarding which they felt doubt, whether it did or did not offend against that section, was to secure owners of property in the enjoyment of their rights and to ensure that, in the event of the State, in exercise of the right known to American jurists as the tight of eminent domain, depriving them of their property, they should receive compensation, meaning thereby the value in money of the property to the owner at the time at which he is called upon to relinquish it On 6-7-1949, the Governor General gave his assent to an Act entitled the Bihar Abolition of Zamindaris Act, 1943 (Bihar Act XVIII [18] of 1918). That Act empowered the Provincial Government to deprive proprietors and tenure-holders of their estates and tenures it provided, or purported to provide, for the payment of compensation to them, but the compensation was not, and perhaps, in the circumstances of the case, could not be, compensation within the meaning of the term as used in such statutes as the Consolidation of Lands Clauses Act in England or the Land Acquisition Act is India, The plaintiff who is the owner of the largest and one of the oldest zamindaris in Bihar, thereupon instituted a suit in which he asked for a declaration that the Bihar Abolition of Zamindaris Act, 1948, was an unconstitutional law and for an injunction restraining the Government of Bihar from putting it into operation. The suit was instituted in the Court of the Subordinate Judge at Darbhanga, and on 25 11-1949, was removed to this Court to be tried by it in exercise of its extra-ordinary original civil jurisdiction on 9-12-1949, a bill, entitled the Bihar Land Reforms Bill, 1949, was published, and was later introduced in the Bihar Legislative Assembly. Many of the provisions contained is this bill are provisions which were contained in the Abolition of Zamindaris Act, 1948. Clause 44 of the bill contained the following : "The Bihar Abolition of Zimindaris Act, 1918, is hereby repealed." Subsequently, however, this clause in the bill was deleted and a separate Act, entitled the "Bihar Abolition of Zamindaris Repealing Act, 1960 (Bihar Act IX [9] of 1950)", was passed by the Bihar legislature. This Act was assented to by the Governor of Bihar on 18-1-1950, that is, on the day before that on which this suit was set down for hearing. A preliminary issue has therefore been framed as to whether, in consequence of this enactment, any cause of action, which the plaintiff had or may have had, has not been taken away and whether or not the suit can or ought to proceed.

(2.) As I have just said, while assent to the Bihar Abolition of Zamindaris Act, 1948, was given by the Governor-General, assent to the Act which repeals, or purports to repeal it was given by the Governor. The main argument which had been addressed to us by Mr. P. R. Das for the plaintiff, on the preliminary issue is based on this circumstance and is, in short that the legislative body or authority which has purported to repeal the Act is not the legislative body or authority which enacted it. The legislative body or authority, it is said, consisted, in the former case, of the Governor and the two Chambers of the legislature, and, in the latter case, of the Governor-General and the two Chambers of the legislature. It is, Mr. P. R. Das said, axiomatic that the legislative body or authority which is competent to repeal an act must be the same legislative body or authority as enacted it, or a legislative body or authority having powers co-extensive with the powers of the legislative body or authority which enacted it. It necesaarily follows, it is suggested, that the repealing Act is null and void, that, in consequence, the impugned Act still remains on the statute book and that the plaintiff is entitled to show and, if he succeeds in showing, to obtain, a declaration, that the impugned Act is an unconstitutional Jaw. The short answer to the contention put forward by the learned counsel for the plaintiff is, in my opinion, that the legislature which has repealed the Act is the game legislature as enacted it, namely, the legislature consisting of his Majesty and of the Bihar Legislative Assembly and the Bihar Legislative Council. Section 60 (1), Government of India Act, 1935, states :

(3.) Mr. N. C. Chatterji, who followed Mr. P. R. Das, for the plaintiff, put forward an argument which, 1 must confess, I had some difficulty in comprehending. The question or one of the questions, raised is the preliminary issue is as to whether the Bihar Abolition of Zainindaris Repealing Act, 1950, is intra vires of the Provincial Legislature. If, Mr. Chatterji said, the Bihar Abotition of Zamindaris Act, 1948, is itself void and of no effect the Bihar Abolition of Zamindaris Repealing Act, 1960, is similarly and necessarily void and of no effect. In other words if I understood the argument correctly, Mr. Chatterji contended that it was impossible to distinguish between the two Acts and that in consequence, we must consider and could not avoid deciding, whether the Bihar Abolition of Zamindaris Act, 1948, was or was not an unconstitutional law. There is, in my opinion, no substance in this argument. It is, of course, true that an unconstitutional law has no validity whatever, and that rights which it may purport to take away from individuals continue to exist to the same extent as they would have existed if the law had never been enacted. On the other hand, a law is not an unconstitutional law unless and until it has been so decided by a judicial tribunal competent to pronounce on its validity. Moreover, unless and until a question as to its validity is directly raised and a Court of law has no option but to decide it, the Courts must proceed on the assumption that the law is a valid law. In that situation, it appears to me that, if the validity of the repealing Act can be questioned at all, it can be questioned only on the ground raised by Mr. P. R. Das, namely,