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 Clause 44 of the bill contained the following : "the Bihar Abolition of Zimindaris Act, 1918, is hereby repealed.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 :"there shall for every Province be a Provincial Legislature which shall consist of His Majesty, represented by the Governor, and in the Province of Bihar, two Chambers. " section 75 of the Act states: "a Bill which has been passed. . by both Chambers of the Provincial Legislature, shall be presented to the Governor, and the Governor shall declare either that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the Governor-General. "section 76 (1) states :"when a Bill is reserved by a Governor for the consideration of the Governor General, the Governor-General shall declare, either that ho assents in His Majesty's name to the Bill, or that he withholds assent therefrom. "his Majesty is as much a branch of the legislature in each of the Dominions and of the Legislature in each of the States or provinces comprised in each Dominion, as ho is a branch of the Parliament of the United Kingdom of Great Britain and Northern Ireland, which consists of His Majesty, the Lords Spiritual and Temporal, and the Commons. The circumstance that each of the Constitution Acts of the Dominions contain, or at one time contained, provisions authorising or requiring a Governor to reserve bills for the consideration of the Governor-General, and provisions authorising or requiring the Governor-General to reserve bills for the signification of His Majesty's pleasure, itself goes to show that the assent of the King to proposed laws is His Majesty's assent as a separate, independent and co-equal branch of the legislature is which the proposed law has been introduced (Vide Quick and Garran on the Constitution of the Australian Commonwealth, p. 689). In order to understand how provisions of this kind came to be inserted in the Constitution Acts of the Dominions, it is necessary to go back into history. The right of His Majesty to assent to, or withhold his assent from, any legislation proposed to be passed by a Colonial legislature is part of the royal prerogative. It would obviously have been in the highest degree inconvenient that, before any proposed law could be enacted and given effect to, the proposed law should actually be laid before His Majesty for his assent to be formally given to it. His Majesty's assent to a proposed law in some distant colony could not be so easily obtained as His assent to a bill which had passed through both Houses of the Imperial Parliament. Yet delay in obtaining His Majesty's assent might have had disastrous consequences Powers were, therefore, given to the Governors of colonies to assent in His Majesty's name to proposed laws, their discretion in this matter being, however, limited by the Instrument of Instructions issued to them (vide Section 4, Colonial Laws Validity Act, 1865). In the first decade, alter the passing of the British North Amtrica Act, 1867, no fewer than twenty-one bills were reserved by the Governor-General for the signification of His Majesty's pleasure (vide Egerton on Federations and Unions in the British Empire p. 187). Shortly afterwards however, the practice of reserving bills way abandoned, it being considered that the power of His Majesty to disallow Acts passed by a Dominion Legislature was sufficient for the protection of imperial interests. Finally, as a result of the resolutions of the Imperial Conference of 1930, a convention was established that Dominion Acts cannot constitutionally be disallowed by the Crown on the advice of British Ministers, nor can assent be refused to reserved bills, nor bills, be reserved save on Dominion advice By the Indian Independence Act, 1947, India became a Dominion, and Sub-section (a) of Section 6 of the Act provided that"so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure thereon or the suspension of the operation of saws until the signification of His Majesty's pleasure thereon shall not apply to laws of the Legislature of either of the new Dominions. "nevertheless, although the Governor-General directly, and the Governors of Provinces indirectly, are no longer required by any Instrument of Instructions to reserve bills for the signification of His Majesty's pleasure, Governors are still required or authorised to reserve certain bills for the consideration of the Governor-General under Sub-section (2) of a 107, Government of India ACT, Section 90, British North America Act, 1867, similarly empowers the Lieutenant Governors of Canadian Provinces to reserve bills for the consideration of the Governor General of Canada. A device invented by British state men a century ago for the protection of imperial interests and the prevention of international incidents has been made to sub-serve another and very different purpose. The provisions in the Constitution Acts of India and Canada, to which I have just referred, are now used for substantially the same purpose, namely to ensure that a Provincial Legislature doss not enact a law which is illegal or unconstitutional in whole or part, or a law clashing with the legislation of the Federal Legislature. The necessity for a provision of this kind in the Indian Constitution Act is the greater, as in a large number of matters the Federal and Provincial Legislatures have concurrent powers. Mr. P. R. Das, is, of course, correct to this extent that an Act of the Provincial Legislature may be unconstitutional if it has received the assent of the Governor and yet would have been constitutional if it had received the assent of the Governor-General. It does not, however, at all follow that the criterion to be adopted in deciding whether a law is or is not unconstitutional, is to see whether it has been assented to in the name of His Majesty by the one representative of His Majesty or the other representative. The criterion must, in each case, be whether the Provincial law deals with a matter enumerated in the Concurrent Legislative List and, if so, whether it contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter. It may well be that the Bihar Abolition of Zamindaris Act, 1918, dealt with matters enumerated in the Concurrent Legislative List and contained provisions repugnant to the provisions of an existing law, or existing laws, of the Federal Legislature with respect to these matters. Presumably, it did, in fact, contain such provisions, or was believed to contain such provisions, as the object of reserving the bill fur the assent of the Governor General was to ensure that the bill should be subjected to scrutiny by the legal advisers of the Government of India in order that the Government of India might decide whether, if the effect of it was to make the law in certain matters in Bihar different from the law in these matters prevailing in other provinces, there was, on grounds of policy, any objection to this. It is important to notice that the checks on, or safeguards against, a clash between Jaws passed by the Federal and the Provincial Legislatures which were devised by the British Parliament and embodied in Section 107 (2) and other connected sections of the Government of India Act were twofold. In the first place when a proposed law of a Provincial Legislature has the effect of altering or repealing an Act of the Federal legislature, it has to be reserved for the consideration of the Governor-General. Secondly, when the Governor-General has given his assent to such a proposed law and, in consequence, the law which obtains in that province is different from the law, which prevails in other provinces, no proposed law which has the effect of again altering that law, can be introduced in the Federal Legislature without the previous sanction of the Governor-General. While, however, the Federal Legislature cannot repeal the Provincial law unless the repealing bill has received the previous sanction; of the Governor-General before it is introduced in the Federal Legislature there is clearly nothing to prevent the Provincial Legislature itself repealing it. The effect of the repeal is merely to restore the status quo ante and to bring the law in that province once more into conformity with the law prevailing in the rest of India. There is, on principle, no reason why, before such a course is taken by a Provincial Government, the Government of India should be consulted. In fact, as the original object of His Majesty in delegating to the Governors of Provinces authority to assent in His name to proposed legislation was to avoid unnecessary delay in His assent being obtained, there is every reason why an Act which merely repeals an existing Act, and does not purport to do anything more, should not be reserved

(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,"that in enacting it the proper procedure was not followed, and, for the reasons just given, that ground must fail. There is another and more cogent reason for our declining to go into the question which Mr. Chatterji asks us to, namely, that as the impugned Act has been repealed, the Government of Bihar is debarred from taking any action under it. If, however, no action can be taken under the impugned Act, the question as to whether that Act was or was not an unconstitutional law becomes a question of purely academic interest. Sir Alladi Krishnaswamy Ayyar, for the defendant, cited a number of authorities to show that the Courts will not decide such questions. One of these decisions namely, Attorney-General for Alberta v. Attorney General for Canada, 1939 A. C. 117 : (A. I. R. (26) 1933 P. C. 53) , is very much in point. That was an appeal against an opinion expressed by the Supreme Court of Canada that two bills which had been introduced in the legislature of the Province of Alberta were ultra vires of that legislature. If the proposed laws had been enacted, no action could nave been taken under them except under and in accordance with certain provisions contained in another Act, known as the Alberta Social Credit Act. During the pendency of the appeal this Act was, however, repealed. Lord Maugham, after observing that the bills could no longer be brought into operation, said: "since nothing can be done thereunder, the appeal from the order of the Supreme Court is one of no practical interest. It is contrary to the long established practice of this Board to entertain appeals which have no relation to existing rights created or purported to be created ; and their Lordships have, therefore, found it necessary to decline to hear arguments on this appeal in so far as it relates to the bills. "the other decisions cited were Sun Life Assurance Co. of Canada v. Jervis, 1944 A. C. 111 : (113 L. J. K. B. 174) , and Lawrence P. Mills v. W. Briggs Green, 159 U. S. S. C. R. 651.