Kaiser-I-Hind Pvt. Ltd. and others v. National Textile Corporation, AIR 2002 SC 3404

CaseKAISER-I-HIND PVT. LTD. AND ORS VS NATIONAL TEXTILE
CORPORATION, AIR 2002 SC 3404
CourtBefore the Supreme Court of India
BenchG.B.PATTANAIK, M.B.SHAH, DORAISWAMY RAJU, S.N.VARIAVA, D.M.DHARMADHIKARI
Author of the judgmentJustice MB Shah, Justice, Doraiswamy Raju and Justice Dharmadhikari.
Decided On25/09/2002
Advocate for the appellant Mr. F.S. Nariman
Abstract

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. The question of repugnancy arises with the matters in respect of Concurrent list(List III), 7th Sch. Under Art.246(2) both Union & state Legislatures have concurrent powers to legislate with respect to the list. Hence, an absurd situation will result if two inconsistent laws, each of equal validity, could exist side by side within the same territory. It is well settled that Repugnancy is a question to be determined by the Courts and not by either of the two Legislatures concerned.

Author of the BriefMansi Khandelwal
KeywordsRent, Constitution, Transfer of Property, Parliament, Central Laws, Summary Procedure.
  • The state of Maharashtra reserved the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act”) under Article 254(2) for the President’s assent, and received it, qua its repugnancy with the Transfer of Property Act, a central law.
  • The main question before the High Court of Bombay, when this Bombay Rent Act was challenged before it, was 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 whether it would prevail qua other laws for which no assent was sought.
  • 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 Unauthorized 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.
  • 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 Act would prevail over those of the P.P. Eviction Act.
  • The contentions raised by the appellant were rejected by the High Court and the Court upheld the validity of the P.P. Eviction Act.
  • The Court after elaborate discussion 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, an appeal was filed before the Supreme Court, giving rise to the case at hand.
  1. WHETHER THE P.P. EVICTION ACT (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?
    1. WHETHER DUE TO DELETION OF ARTICLE 19(1)(F) BY THE CONSTITUTION 44TH AMENDMENT ACT, 1978 HAS MADE THE PUBLIC PREMISES ACT, 1971, “WHOLLY ENFORCEABLE”?
    2. WHETHER THE CHALLENGE TO THE P.P. EVICTION ACT ROOTED IN ARTICLE 19(1) (F) COULD NOT SURVIVE AFTER THE REPEAL OF ARTICLE 19(1)(F) OF THE CONSTITUTION (AS HELD BY THE DIVISION BENCH JUDGMENT OF THE HIGH COURT)?
  2. WHETHER THE PROVISIONS OF THE BOMBAY RENT ACT, 1947 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?
  3. WHETHER THE COURT HAS THE POWER TO ENQUIRE INTO AND ASCERTAIN THE CIRCUMSTANCES IN WHICH ASSENT TO A LAW UNDER ARTICLE 254(2) WAS GIVEN AND HOLD 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?
  4. WHETHER THE EXTENSION OF A TEMPORARY ENACTMENT AMOUNTS TO THE ENACTMENT OF A NEW LAW, OR WHETHER IT IS AN EXTENSION OF THE EXISTING LAW?

Contentions of the appellants:

  • It was 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.
  • It was contended by the appellants 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) 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.
  • It was also contended that since 1947, the Bombay Rent Act is extended from time to time and assent of the President is received, & once such assent is received the Bombay Rent Act prevails in the State of Maharashtra and not the P.P. Eviction Act. It is not open to the Court to go behind the said assent’ and arrive at the conclusion that President’s assent is given qua repugnancy of a particular law or laws, made by the Parliament such as, Transfer of Property Act and Indian Contract Act.
  • It was also submitted that giving of assent by the President is law making process and the steps taken in such process cannot be examined by the Court. Assent’ given by the President is not subject to judicial review. In any case, there was no reason for the High Court to summon the file submitted before the President before grant of assent.
  • Bombay Rent Act, 1947 was enacted by the Bombay Legislature and received the assent of the Governor General on 13th January, 1948. It was published in the official gazette and prevails over all Central Acts to the extent of any repugnancy between the Rent Act and the relevant Central Acts. It was further submitted that the necessity of passing Bombay Amending Act 43 of 1951 was because, 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. Therefore, 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

Contentions of the respondent:

  • The counsels for the Respondents submitted that 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.
    • 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.
    • 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.
    • 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).
  • 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.
  • With respect to the first contention raised by the Appellants, the Court held following:
    • It cannot be held that summary procedure under the P.P. Eviction Act abridges the rights of the tenants conferred by Article 19(1)(f) of the Constitution. If the Legislature considers in its wisdom that under General law the eviction process provides for other speedier procedure for evicting unauthorized 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.
    • The Court completely declined to rule on the ‘validity’ of the assent, & held that 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. Merely looking at the record, would not mean that the Court is deciding whether the absent is rightly, wrongly or erroneously granted.
  • With respect to the second contention the court held the following:
    • 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. 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 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.
    • The Court further made it clear that 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.
  • With respect to the third and the fourth contention raised by the appellant the court held the following:
    • For the state law to prevail the following conditions must be satisfied-
      • Law made by the legislature of a State should be with respect to one of the matters enumerated in the Concurrent List;
      • 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;
      • the law so made by the Legislature of the State has been reserved for the consideration of the President; and
      • it has received ‘his assent’ in view of aforesaid requirements, before obtaining the assent of the President.
    • 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.
    • 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 the grant of such assent.
    • After due consideration to these definitions, the Court ruled that 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. This would require the application of mind to both the laws and the repugnancy as well as the peculiar requirement of the State to have such a law, which is repugnant to the law made by the Parliament.
  • With regards to the fifth contention the court held the following:
    • Effect of Article 254(1) on the Bombay Rent Act after enactment of the P.P. Eviction Act in 1971.
      • 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.
    • Legislative intent while extending the duration of Bombay Rent Act.
      • From the language used by the State Legislature in the Maharashtra Act No. 16 of 1986 and the relevant provisions thereof, the Court was convinced that the Legislature considered this as an extension of the duration of Bombay Rent Act and not the enactment of new law or re-enactment of the law in force.
      • The phraseology used by the Legislature is only “extension of duration”.
    • Whether it can be deemed to be a new enactment?
      • Learned senior counsel for the appellants submitted that for extension of the Act also the assent of the President is taken and therefore it would amount to a re-enactment of the existing law or enactment the new law.
      • In the view of the Court, merely because assent of the President is taken, as it is required to be taken, it would not mean that there is new enactment. For extending the duration of the temporary Legislation the assent of the President is required, otherwise, in case of repugnancy law enacted by the Parliament would prevail.
      • Relying on various cases, the Court arrived at the conclusion that by extending duration of a temporary statute, it does not signify that a new and independent statute comes into existence