# KAISER-I-HIND PVT. LTD. AND ANR v. NATIONAL TEXTILE CORPORATION (MAHARASHTRA NORTH) LTD. AND ORS

- **Citation:** [2002] Supp. 2 S.C.R. 555
- **Court:** Supreme Court of India
- **Decided:** 2002-09-25
- **Case number:** Civil Appeal No. 2555of1991
- **Bench:** G.B. Pattanaik, M.B. Shah, Doraiswamy Raju, S.N. V Aria Va, D. M. Dharmadhjkari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaiser-i-hind-pvt-ltd-and-anr-v-national-textile-corporation-maharashtra-north-18723
- **Pages:** 57

## Headnote

Constitution of India, 1950-Artic/e 254(2):
Inconsistency between proposed State laws and earlier laws made by
parliament-Grant of 'assent' by President to State legislation-Contention
A
B
c
that State law would prevail and such 'assent' would be deemed to be an
assent qua all earlier enactments made by Parliament-On appeal, held that
'consideration' by President and his 'assent' is limited to proposal made by D
State Government, State legislatio11 would prevail only qua the laws for
which repugnancy was pointed 0111 and 'assent' of President was sought
for-Proposal by State is sine qua non for 'consideration' and 'assent'-
Public Premises (Eviction of Unauthorised Occupants) Act, 1971-Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947.
Summoning by court of the file submitted to the President before grant
of assent-To enquire and ascertain the circumstances in which 'assent'
given under Article 254(2) to law made by State-Permissibility ofDiscussed
'
E
Assent to legislations given by President whether given qua the F
repugnancy between State legislation and earlier law made by Par/iamentJusticiahility of-Held, the assent is not subjected to any judicial review--
Mere look at the record for which assent was sought would not mean that
the Court is deciding whether the assent is rightly, wrongly or er~oneously
granted-Consideration by Court is limited to the extent that whether the G
State has sought assent qua particular earlier law or laws made by the
Parliament prevailing in the State or it has sought general assent.
Assent to legislations by President-Grant of-ls part of legislative
procedure and· not exercise of legislative power of President-Constitution
of India, 1950-Article 123.
555
H
556
SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.
A
Extension of temporary enactment if amounting to enactment of new
law requiring assent of President-Held, extending the duration of a
temporary enactment does not amount to enactment of a new law requiring
assent of President-However in case of repugnancy such extension may
require asse/1/ of President.
B
Article 372, explanation Ill-Scope of-ls of general application and
applies to all temporary enactme/1/s enacted pre-constitution.
Public Premises (Eviction of Unauthorised Occupants) Act, 197 /-
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Whether
C Central Act would prevail-Held, once the Central Act came into force the
existing State Act would be void so far as it is repugnant to the law made
by the Parliament, thus the law made by the Parliament would prevail.
Public Premises (Eviction of Unauthorised Occupams) Act, 197 /-
Constitution of India, 1950-Article 19(/)(j)-P.P. Eviction Act empowering
D Government companies and statutory corporations to evict their tenants
through summary procedure-Contention that such procedure abridges the
right conferred by Article 19(/)(j)-Held, such procedure not violative of
Article (19)(/)(j) if it is reasonable and in conformity with the principles of
natural justice.
E
Words and Phrases:
'Reserved for consideration' and 'assent '-Meaning of in the co/1/ext
of Article 254(2) of the Constitution of Jndia, 1950.
The question which arose in these appeals was whether the "assent"
p given by the President under Article 254(2) of the Constitution oflndia 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 would it
prevail qua other laws for which no assent was sought
G
Appellants challenged the vires of Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 contending that P.P. Eviction Act was
violative of Articles 14, 19(1)(1) and 19(1)(g) of the Constitution of India; and
that having regard to Article 254(2) provisions of Bombay Rents, Hotel and
H Lodging House Rates C

## Text

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KAISER-I-HIND PVT. LTD. AND ANR.
v.
NATIONAL TEXTILE CORPORATION (MAHARASHTRA NORTH)
LTD. AND ORS.
SEPTEMBER 25, 2002
[G.B. PATTANAIK, M.B. SHAH, DORAISWAMY RAJU, S.N.
V ARIA VA AND D. M. DHARMADHJKARI, JJ]
Constitution of India, 1950-Artic/e 254(2):
Inconsistency between proposed State laws and earlier laws made by
parliament-Grant of 'assent' by President to State legislation-Contention
A
B
c
that State law would prevail and such 'assent' would be deemed to be an
assent qua all earlier enactments made by Parliament-On appeal, held that
'consideration' by President and his 'assent' is limited to proposal made by D
State Government, State legislatio11 would prevail only qua the laws for
which repugnancy was pointed 0111 and 'assent' of President was sought
for-Proposal by State is sine qua non for 'consideration' and 'assent'-
Public Premises (Eviction of Unauthorised Occupants) Act, 1971-Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947.
Summoning by court of the file submitted to the President before grant
of assent-To enquire and ascertain the circumstances in which 'assent'
given under Article 254(2) to law made by State-Permissibility ofDiscussed
'
E
Assent to legislations given by President whether given qua the F
repugnancy between State legislation and earlier law made by Par/iamentJusticiahility of-Held, the assent is not subjected to any judicial review--
Mere look at the record for which assent was sought would not mean that
the Court is deciding whether the assent is rightly, wrongly or er~oneously
granted-Consideration by Court is limited to the extent that whether the G
State has sought assent qua particular earlier law or laws made by the
Parliament prevailing in the State or it has sought general assent.
Assent to legislations by President-Grant of-ls part of legislative
procedure and· not exercise of legislative power of President-Constitution
of India, 1950-Article 123.
555
H
556
SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.
A
Extension of temporary enactment if amounting to enactment of new
law requiring assent of President-Held, extending the duration of a
temporary enactment does not amount to enactment of a new law requiring
assent of President-However in case of repugnancy such extension may
require asse/1/ of President.
B
Article 372, explanation Ill-Scope of-ls of general application and
applies to all temporary enactme/1/s enacted pre-constitution.
Public Premises (Eviction of Unauthorised Occupants) Act, 197 /-
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Whether
C Central Act would prevail-Held, once the Central Act came into force the
existing State Act would be void so far as it is repugnant to the law made
by the Parliament, thus the law made by the Parliament would prevail.
Public Premises (Eviction of Unauthorised Occupams) Act, 197 /-
Constitution of India, 1950-Article 19(/)(j)-P.P. Eviction Act empowering
D Government companies and statutory corporations to evict their tenants
through summary procedure-Contention that such procedure abridges the
right conferred by Article 19(/)(j)-Held, such procedure not violative of
Article (19)(/)(j) if it is reasonable and in conformity with the principles of
natural justice.
E
Words and Phrases:
'Reserved for consideration' and 'assent '-Meaning of in the co/1/ext
of Article 254(2) of the Constitution of Jndia, 1950.
The question which arose in these appeals was whether the "assent"
p given by the President under Article 254(2) of the Constitution oflndia 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 would it
prevail qua other laws for which no assent was sought
G
Appellants challenged the vires of Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 contending that P.P. Eviction Act was
violative of Articles 14, 19(1)(1) and 19(1)(g) of the Constitution of India; and
that having regard to Article 254(2) provisions of Bombay Rents, Hotel and
H Lodging House Rates Control Act, 1947 would prevail over provisions of P.P.
t
-
r
)
KAISER-I-HIND PVT.LTD. v. N.T.C.
557
Eviction Act. High Court summoned the file submitted before the President A
before grant of assent to find out the purpose for which 'assent' of the
President to the Extension of Acts extending the duration of Bombay Rent
Act was sought for and given. It concluded that assent of President was sought
to overcome its repugnancy between Bombay Rent Act on one hand and
Transfer of Property Act and President Small Cause Courts Act on other
hand and President's assent was limited to that purpose only, thus P.P. Eviction B
Act would prevail and not Bombay Rent Act. Hence the present appeals.
Appellants contented that once the President grants the.'assent' to the
State legislation, the State law would prevail on the said subject and such
'assent' would be deemed to be an assent qua all earlier enactments made by C
the Parliament; that the P.P. Eviction Act abridges the right conferred by
Article 19(l)(t) of the Constitution; that it was not permissible for the High
Court to summon the file submitted before the President before grant of assent
and eiwuire into and ascertain the circumstances in which 'assent' to law
made tif"$1ie State was given and to hold, as a result of such inquiry, that the
said law even with respect to a matter enumerated in the Concurrent List D
does not prevail in the State; that when the President has given a~sent to a
State legislation, Court cannot call for the files to find out whether the assent
was limited t& repugnancy between the State legislation and laws mentioned
therein; t~t:_~assent given by the President is not justiciable; that for
extension ~f the Act also the assent of the President is taken and therefore, E
it would amount to re-enactment of the existing law or enacting the new law;·
and that the State Amending Act was not a mere extension but treated as a
substantive enactment.
Respondents contended that before granting 'assent', the President has
to consider specific provisions of the State legislation which are repugnant p
to the provisions of an earlier or existing law made by the Parliam~nt and
has to apply his mind to the proposed State law and t~ law made by the
Parliament '11ich would be restricted to the proposal made by the State
Government ~!Id.President's assent would only be with regard to the laws
specified thereln.
Dismissing the appeals and Writ Petitions, the Court
HELD: (Per M.B. Shah, J for himself and G.B. Pattanaik, Doraiswamy
Raju and S.N. Variava, JJ)
G
1.1. It is held that 'consideration' by the President and his 'assent' under H
558
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A Article 254(2) is limited to 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'. 1577-E, FJ
1.2. Before obtaining the assent of the President, State Government has
B to point out that the law made by the State legislature is in respect of one of
the matters enumerated in the 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
C 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. The
word 'consideration' would manifest that after careful thinking over and due
application of mind regarding the necessity of having State law which is
repugnant to the law made by the Parliament, the President may grant assent
D 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 grant of such assent The word "assent" would mean in the
context as an expressed agreement of mind to what is proposed by the State.
E
(573-F-H; 574-A, Bl
1.3. 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
p his assent to the law made by the State legislature. This would require
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. The word 'assent' is used purposefully indicating
affirmative action of the proposal made by the State for having law repugnant
to the earlier law made by the Parliament. It would amount to accepting or
G conceding and concurring to the demand made by the State for such law. This
cannot be done without consideration of the relevant material. Hence the
phrase used is 'reserved for consideration', which under the Constitution
cannot be an idle formality but would require serious consideration on the
material placed before the Parliament. The 'consideration' could only be to
H the proposal made by the State. [576-A-Dl
t
KAISER-I-HIND PVT. LTD. v. N.T.C.
559
Basantlal Banarsilal v. Bansilal Dagdula/, AIR (1955) Bombay 35, A
approved.
Gram panchayat of Village Jamalpur v. Ma/winder Singh and Ors.,
(1985) 3 sec 661, affirmed.
Corpus Juris Secundum; Shorter Oxford Dictionary; Bouvier's law B
Dictionary; Law Lexicon of British India by P. Ramanatha Aiyar; Websters'
3rd New International Dictionary (Vol.I); Random House Dictionary; Words
and Phrases Judicial Dictionary by Mitra, referred to.
1.4. The President's assent as notified in the Act nowhere mentions
that assent was obtained qua repugnancy between the State legislation and C
specified certain law or laws of the Parliament. But from this, it also cannot
be inferred that as the President has given assent, all earlier law/laws on the
subject would not prevail in the State. Before grant of the assent, consideration
of the r.>asons for having such law is necessary and the consideration would
mean consideration of the proposal made by the State for the law enacted D
despite it being repugnant to the earlier law made by the Parliament on the
same subject. If the proposal made by the State is limited qua the repugnancy
of the State l:iw and law or laws specified in the said proposal, then it cannot
be said that tile assent was granted qua the repugnancy between the State law
and other la\:··· for which no assent was sought for. Proposal by the State
pointing out repugnanfy between the State law and of the law enacted by the E
Parliament is sine qua non for 'consideration' and 'assent'. If there is no
proposal, no question of 'consideration' or 'assent' arises. For finding out
whether 'assent' given by the President is restricted or unrestricted, the letter
written or the proposal made by the State Government for obtaining 'assent'
is required to be looked into. (577-A-C; E-Fl
Gram Panchayat of Village Jamalpur v. Ma/winder Singh and Ors.,
(1985[ 3 sec 661, affirmed.
P.N. Krishna Lal and Ors. v. Govt. of Kera/a and Anr., (1995) Supp. 2
sec 187, referred to.
1.5. 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
F
G
to any judicial review. Merely looking at the record, for which assent was
sought, would not mean that the Court is deciding whether the assent is rightly, H
560
SUPREME COURT REPORTS [2002] ~JPP. 2 S.C.R.
A wrongly or erroneously granted. 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 instant case, the assent was
B given after considering the extent and nature of rep11gnancy between the
Bombay Rent Act and Transfer of Property Act as well as the Presidency Small
Cause Courts Act. Therefore, it would be totally unjustified to hold that once
the President grants the assent, 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. [580-0-G)
c
D
Bharat Sevashram Sangh and Ors. v. State of Gujarat and Ors., (1986)
4 SCC 51; Mis. Hoechst Pharmaceuticals Ltd and Ors. v. State of Bihar and
Ors., [19831 4 SCC 45 and Mis. Bapalal and Co. v. P. Thakurdas and Ors.,
AIR (1982) Madras 399, referred to.
2. It cannot be held that because summary procedure under P.P. Eviction
Act is prescribed for evicting the tenants or unauthorized occupants or subtenants, if it is reasonable and in conformity with the principles of natural
justice, it abridges the rights of the tenants conferred by Article 19(1)(1) of
the Constitution. It is for the Legislature to provide summary procedure for
evicting such persons or to direct the parties to approach the Civil Court. If
E the Legislature considers in its wisdom that under General law the eviction
process is dilatory and provides for other speedier' procedure for evicting
unauthorised 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)(1) of the Constitution.1596-C)
F
Municipal Corporation of Greater Bombay v. Lala Pancham of Bombay
& Ors., (1965) 1SCR542 and Northern India Caterers Private Ltd and Anr.,
v. State of Punjab and Anr., (1967) 3 SCR 399, relied on.
3. Granting of assent under Article 254(2) is not exercise of legislative
G 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
4. There is nothing in Explanation Ill to Article 372 which even remotely
H suggests that it is restricted to the provisions of that Article alone. On the
KAISER-I-HIND PVT. LTD. v. N.T.C.
561
contrary it is of general application. It applies to all temporary enactments A
which were enacted pre-Constitution. Article 372(1) applies in general terms
to all existing laws/laws in force and continues their operation after the
commencement of the Constitution and Explanation-III explains or clarifies
that nothing in Article 372 shall be construed as continuing any temporary
law in force, beyond the date fixed for its expiration. (585-A, BJ
5.l. Once the P.P. Eviction Act is enacted then Bombay Rent Act would
not prevail qua the repugnancy between it and P.P. Eviction Act. To the extent
B
of repugnancy, State law would be void under Article 254(1) and law made by
Parliament would prevail. Admittedly, Maharashtra Act No.12 of 1970
extended the duration of Bombay Rent Act up to 31st March 1973. The result C
would be from the date of the coming into force of P.P. Eviction Act, Bombay
Rent Act qua the properties of the Government and Government companies
wo~ld be inoperative. For this purpose, language of Article 254(1) is
unambiguous and specifically provides.that if any provision of law made by
the Legislature of the State is repugnant to the provision of law made by the
Parliament, then the law made by the Parliament whether passed before or D
after the law made by the Legislature of the State, would prevail. It also makes
it clear that the law made by the Legislature of the State, to the extent of
repugnancy, would be void. Hence once the P.P. Eviction Act came into force
. w.e.f. 23rd 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 E
254(1), the law made by the Parliament would prevail. (586-E-H)
5.2. In case of a temporary statute when the Act is passed extending the
duration of the said statute, it cannot be said that some new Act was created.
The old law continues. Result is-duration of life of old temporary statute is
extended for a further period. However such extension may require assent of F
the President in case of repugnancy. Further while extending the duration if
there is any substantial amendment in the statutory provisions it cannot be
said that it was mere extension of existing law. (589-C; 597-A, BJ
The State of Bombay v. Heman Sant/a/ Alreja, AIR (39) 1952 Bombay
16 and Basantlal Bansi/al v. Bansilal Dagdula/, AIR (1955) Bombay 35, G
approved.
Mangtulal and Anr. v. Radha Shyam and Anr., AIR (1953) Patna 14;
'
State of Uttar Pradesh v. The Benaras Electric Light and Power Co. Ltd and
Anr., AIR (1973) Allahabad 74 and Kera/a State Electricity Board v. The
Indian Aluminium Co. Ltd, (1976) I SCC 466, referred to.
H
562
SUPREME COURT REPORTS [2002] SUPP. 2 $.C.R.
A
Craies on Statute Law (7th Edn.-page No.408), referred to.
6. The contention that the State Amending Act was not a mere extension
but treated as a substantive enactment cannot be accepted.
7. There is no question of considering that Bombay Rent Act was an
B existing law as defined under Article 366(10). Explanation Ill to Article 372
specifically provides that nothing in the said Article shall be construed as
continuing .any temporary law in force beyond the date fixed for its expiration
or the date on which it would have expired ifthe Constitution had not come
into force. Therefore, there is no question of applying the concept of"existing
C law" as defined under Article 366 to a law of which duration is extended from
time to time. Article 254(1), inter alia, also provides that if any provision of
a law made by the Legislature of State is repugnant to any provision of an
existing law, the existing law shall prevail and law made by the Legislature of
the State shall to the extent of repugnancy be void but in the instant case
D
there is no question of applying the said part of Article 254(1).
(595-H; 596-A-BI
8. In the aforesaid view, in the instant case ttiere is no question of giving
Supremacy to the Bombay Rent Act qua the law made by the Parliament
(596-H; 597-A)
E
Per, Doraiswamy Raju, J. (Supplementing)
1. When the Constitution extends a form of protection to a repugnant
State law, permitting predominance and also to hold the field in the place of
the law made by the Centre, conditioned upon the reservation of the State law
for consideration of the President and obtaining his assent, it is to be
F necessarily viewed as an essential prerequisite to be effectively and
meticulously fulfilled before ever availing of the protection and the same
cannot be viewed merely as a ceremonial ritual. If such a vitally essential
procedtffe and safeguard is to be merely viewed as a routine formality which
can be observed in whatever manner desired by those concerned and that it
G would be merely enough, if the assent has been secured howsoever obtained,
it would amount to belittling its very importance in the context of distribution
of legislative powers and the absolute necessity to preserve the supremacy of
the Parliament to enact a law on a concurrent topic in List III, for the entire
country. It would also amount to acceptance of even a farce of compliance to
be actual or real compliance. Such a course could not be adopted by Courts
H except by doing violence to the language as well as the scheme, and very object
KAISER-I-HIND PVT. LTp. v. ).l.:f!C: '
of underlying Article 254(2). [601-D-G)
563
A
2. The reservation of any Bill/ Act for the 'consideration' of the President
for according his assent, keeping in view, also the avowed object envisaged .
under Article 254(2), renders it quaiitatively different from the ordinary
assent to be given by the President to a Bill passed by the Parliament or that
of the Governor to a Bill passed by the Legislature(s) of the State concerned. B
[602-F, G)
3: The assent of the President or the Governor, as the case may be, is
considered to be part of the legislative process only for the limited purpose
that the legislative process is incomplete without them for enacting a law and C
in the absence of the assent the Bill passed could not be considered to be an
Act or a piece of legislation, effective and enforceable and not to extend the
immunity in respect of procedural formalities to be observed inside the
respective houses and certification by the presiding officer concerned of their
d~ compliance, to areas or acts outside and besides those formalities. The
powers actually exercised by the President, at any rate under Articles 31A, D
31C, 254(2) and 304(b) is a special constituent power vested with the Head of
the Union, as the protector and defender of the Constitution and safety valve
to safegu~rd the Fundamental Rights of citizens and Federal structure of the
country's polity as adopted in the Constitution. (602-H; 603-A-B)
4. A genuine, real and effective consideration would depend upon specific E
and sufficient information being provided to him inviting, at any rate, his
attention to the Central law with which the State law is considered or
apprehended to be repugnant, and in the absence of any effort or exercise
shown to have been undertaken, when questioned before courts, the State law
cannot be permitted or allowed to have predominance or overriding effect over F
that Central enac~ment of the Parliament to which no specific reference of
the President at all has been invited to. This 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 G
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 H
564
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A 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 exception
therefore, could be taken to the High Court in this case adopting, such a
B procedure, in discharge of its obligations and exercise of jurisdiction under
the Constitution of India. (603-B-F)
c
Per D.M Dharmadhikari, J. (Dissenting)
I.I. In the instant case, each time the proposal was moved for obtaining
Presidential sanction, relevant entries of the Concurrent List were mentioned.
The mention of entries in the Concurrent Legislative List including entry 6
which covers the Central Act and use of such expression as repugnancy to
"some of the existing laws" relating to the entries mentioned in Concurrent
List followed by use of words "such as" clearly go to show that 'assent of the
President' was obtained in a general way to give overriding effect to the State
D Law which is admittedly repugnant to many Central Laws referable to various
entries in the Concurrent List. Mention of 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. (607-F-H; 608-A)
1.2. On such an 'assent of the President' having been granted in general
E 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
F 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.1608-8, CJ
1.3. The view that 'assent of the President' is subject of legislative
procedure is not concurred with. In giving overriding effect to the State Law
over Central Laws covert;<I by entries in Concurrent List, the grant of 'assent'
G by the President in exercise of powers under Article 254(2) is a substantive
legislative act. It is only the President who is empowered to exercise that
legislative power in the event of inconsistency between the State Law and
Central Law. Such leg:slative power has been given by the Constitution only
to the President and exercise thereof involves no other procedure. In granting
or refusing 'assent' to a State Act which is repugnant to Central Law, the
H President alone exercises the legislative function. The provision in Article
KAISER-I-HIND PVT. LTD. v. N.T.C.
565
254(2) is a substantive provision on the subject of resolving conflict between A
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 B
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 override the
State Law in its application to the concerned State. [609-A-DJ
1.4. The action of the President of granting 'assent' being a legislative C
Act, it is not open to the Court to sit in judicial review over it. In the instant
case, the question whether Central Act, in its application to leased and licensed
premises of government companies and corporations, should be regulated by
Central Act to make available to the owners of those premises a summary
procedure of eviction or they be governed by State Act with protection extended
to occupants on specified circumstances and grounds is a matter purely of D
legislative wisdom and beyond judicial review. (609-E; 610-Cj
.
1.5. 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 in the Government Gazette contains a declaration in its
preamble, of the law having received 'assent of the President' under Article E
254(2) such declaration becomes part of the Act and it is not open to the Court
to go into the question whether the President had, in fact, applied his mind to
the alleged repugnancy of the State Act to a particular Central Act; and why
and how the President exercised his power of granting or refusing 'assent'.
The President occupies the highest constitutional office and by virtue of p
privilege and protection available to him under Article 361 of the Constitution,
he is not made answerable personally to any court with regard to the discharge
of his constitutional functions. In the instant case, merely on the basis of the
contents of the letters contained in the file summoned and perused by the
Court, it is not possible to ascertain whether there was due application of
mind of the President to the repugnancy between the State and the Central G
Act. (609-E-H; 610-A)
1.6. The State Act of 1947 was an 'existing law' as defined in Article
366(10) at the time of coming into force of the Constitution, because it was a
pre-constitutional law. The said "existing law" which was revived and extended
by State Laws made from time to time with or without amendments by the H
566
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A State Legislature, after coming into force of the Constitution, is a postconstitutional law. The 'existing law' of 1947 and all Extension Laws received
'assent of the President' because of its repugnancy to the Central Act. The
Extension Laws passed from time to time were not only for the purpose of
continuing the 'existing law' or pre-constitutional law of 1947 in the same
B form. The 'Extension Laws' made from time to time to revive State Actofl947,
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. The 'assent of the President' was
obtained each time in a general way by referring to some of the Central Laws
C covered by the relevant entries in the Concurrent List Therefore, the 'assent
of the President' to the State Act having been obtained in a general way, State
Act would prevail over the Central Act. 1610-D-H; 611-AI
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2555of1991.
D
From the Judgment and Order dated l.2.199! of the Bombay High Court
in Writ Petition No. 873 of 1990.
WITH
C.A. Nos. 1320, 1351, 2218, 2622-23, 3047, 3053, 2192of1991 W.P. (C)
Nos. 1056, 1081 of 1991 and 162 of 1992 and SLP (C) Nos. 20669 and 20731
E of 1995 and 3404-05of1992.
Altaf Ahmed, Additional Soliciter General, F.S. Nariman, Ms. Indira
Jaising, T.R. Andhyarujina, Sudhir Chandra and K.S. Sidhu, N.H. Seervai, P.H.
Parekh, E.R. Kumar, Subhash Shanna, Rohit Altex, Milind Sathe, Sudheer &
Rajan Jayakar, Ms. Sunita Dutt, Ms. Sweety Manchanda, Atul Dayal, P.
F Venugopal, P.S. Sudheer, V. Balachandran, Sajnay Parikh, A.K. Misra, R.P.
Chandrachud, A.N. Singh, W.S.A. Quadri, Mrs. Sunita Sharma, B.V. Bairam
Das, Ms. Sushma Suri for D.S. Mahra, J.B. Dadachanji, Hemant J. Shah, B.A:
Ranganadhan, Hemani J. Shah, A. Dviwedi, Ms. B. Sunita Rao. A.V. Rangam,
A. Ranganadhan, Achintya Dviwedi, Shridhar Y. Chitaley, Ms. Jaishri N.
G Chandra, S.R. Grover, R.S. Suri, Ms. Maldeep Sidhu, C. Ravichandran Iyer,
Gopal Jain, Ms. Arpita Mahajan, Ms. Nina Gupta, Ms. Shalini Rai, Ms. Neha
Mishra and Ms. Bina Gupta for the appearing parties.
The Judgment of the Court was delivered by
H
SHAH, J. CA Nos. 2555, 1320, 1351, 2192, 2218, 2622-2623, 3047
....
KAISER-I-HIND PVT. LTD. v. N.T.C. (M.B. SHAH, J.]
567
and 3053 of 1991:
A
Short but important question involved iri these matters is 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 B
submission made to the President for his consideration before grant of assent?
Or would it prevail qua other laws for which no assent was sought?
The contention is, once the President grants the 'assent' to the State
legislation, the State law would prevail on the said subject and such 'assent' C
would be deemed to be an assent qua all earlier enactments made by the
Parliament on the subject.
This contention 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 D
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'.
The aforesaid question arose before the High Court of Bombay in writ
petitions and appeals which were filed challenging the vires of the Public E
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, I9(1)(f) and 19(1)(g) of
the Constitution of India. It was further contended that having regard to
Article 254(2) of the Constitution oflndia, provisions of the Bombay Rents, F
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.
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 G
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, these appeals are filed before us.
Mr. F.S. Nariman, learned senior counsel for the appellant submitted that H
568
SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.
A following questions arise for determination by this Court:
B
c
I.
Whether the P.P. Eviction Act specifically 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?.
Note: In Municipal Corporation of Greater Bombay v. Lala
Pancham of Bombay & Ors., [1965] I SCR 542, this Court held
that "no doubt that a tenant has both under the Transfer of
Property Act, and under Section 12 of Bombay Rents Hotel and
Lodging House Rates Control Act, 1947, an interest in the demised
premises which squarely falls within the expression "ptoperty"
occurring in sub-clause (f) of clause (1) of Article 19 of the
Constitution".
2. (a) Whether the deletion of Article 19(1)(!) by the Constitution 44th
D
Amendment Act, 1978 (with effect from 20th June, 1979) has
made the Public Premises Act, 1971, "wholly enforceable" (as
held by the Division Bench judgment of the High Court)?
E
F
G
H
(b) Whether the challenge to the P.P. Eviction Act rooted in Article
19(1)(!) could not survive after the repeal of Article 19(1)(!) of the
Constitution (as held by the Division Bench judgment of the
High Court)?
Note-Involved in the above is the applicability of the "doctrine
of Eclipse" to post constitutional laws: the judgment of the
Division Bench of the Bombay High Court under appeal holds
that it is so applicable.
3. (a) Whether the provisions of the Bombay Rent Act, 1947 having
been re-enacted 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?
(b) As a consequence, whether Government companies and statutory
corporations could not and cannot avail of the provisions of the
P.P. Eviction Act against their tenants and protected licencees for
securing eviction except on grounds specified in Sections 12 and
13 of the Bombay Rent Act, 194 7?
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH, J.]
569
4.
Whether it is permissible for a Court of Law to enquire into and A
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
Conc.urrent List (after having been reserved for the consideration
of the President and after having received his assent) does not B
prevail in that State.
Contention Nos. I and 2.
It is submitted by the learned senior counsel that the P.P. Eviction Act
abridges the right conferred by Article 19(l)(f) [which is deleted from the
Chapter of Fundamental Rights w .e.f. 20.6.1979] of the Constitution insofar as C
it empowers the Government companies and statutory corporations to evict
their tenants through the summary procedure provided therei!1 and was to
that extent void from its very inception. In our view, it cannot be held that
because summary procedure under the P.P. Eviction Act is prescri.bed for
evicting the tenants or unauthorised occupantS or sub-tenants, it abridges
the rights of the tenants conferred by Article 19(1 )(f) of the Constitution. It D
is for the Legislature to provide summary procedure for evicting such persons
or to direct the parties to approach the Civil Court. If the Legislature considers
in its wisdom that under General law the eviction process is dilatory and
provides for other speedier procedure for evicting unauthorised occupants,
sub-tenants, whose tenancy is terminated, it cannot be said that the said E
procedure would be, in any way, violative of Article 19(l)(f) of the Constitution.
Reliance is placed on the decision of this Court in Lala Pancham (Supra)
wherein this· Court has observed that under the Transfer of Property Act as
well as under the Rent Act, a tenant has an interest in the demised premises
which squarely falls within the expression "property" occurring in sub-clause
(f) of clause (I) of Article 19 of the Constitution. But this would not mean F
that legislature has no power to prescribe the procedure for evicting the
tenant whose tenancy is determined either by afflux of time or by giving
notice or on the ground that there is sub-letting etc. There cannot be any
doubt that a lessee would have an interest in the property and thereby it
would fall within the expression "property" occurring in sub-clause (f) of G
clause (I) of Article 19 of the Constitution. Further, under the Bombay Rent
Act, even a tenant whose tenancy has come to an end by afflux of time or
by giving notice as provided under the Transfer of Property Act, would have
further statutory protection from being evicted except as provided under the
Bombay Rent Act. However, withdrawal of such statutory protection would
not mean that right to property is abridged. It is for the legislature to provide H
570
SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.
A to what extent, to whom and how, tenants or sub-tenants of any premises are
to be given protection. Unauthorised occupant including a person whose
tenancy has come to an end, has no right to contend that particular procedure
which was in existence at some point of time should continue. It is for the
legislature to provide reasonable procedure in accordance with principles of
B natural justice for evicting unauthorised occupants including the person
whose tenancy is terminated or a sub-tenant. Further, while upholding validity
of the P.P. Eviction Act, this Court in Northern India Caterers Private ltd.
and Anr. v. State of Punjab and Anr.; [1967] 3 SCR 399 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
C the ordinary law of eviction."
The learned senior counsel at the time of hearing of this matter did not
press the contention No. 2 o.s enumerated above. Hence it is not required to
be dealt with further.
D
Contention Nos. 3 and 4
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
E enumerated in the Concurrent List does not prevail in the State.