|Case||KAISER-I-HIND PVT. LTD. AND ORS VS NATIONAL TEXTILE
CORPORATION, AIR 2002 SC 3404
|Court||Before the Supreme Court of India|
|Bench||G.B.PATTANAIK, M.B.SHAH, DORAISWAMY RAJU, S.N.VARIAVA, D.M.DHARMADHIKARI|
|Author of the judgment||Justice MB Shah, Justice, Doraiswamy Raju and Justice Dharmadhikari.|
|Advocate for the appellant||Mr. F.S. Nariman|
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 Brief||Mansi Khandelwal|
|Keywords||Rent, 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.
- 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?
- 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”?
- 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)?
- 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?
- 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?
- 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.