# Syed Qasim Razvi v. The Stat• of Hyderabad and Others

- **Citation:** [1953] 1 S.C.R. 644
- **Court:** Supreme Court of India
- **Decided:** 1951-03-31
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-qasim-razvi-v-the-stat-of-hyderabad-and-others-180
- **Pages:** 8

## Headnote

1958
Syed Qasim
Razvi
v.
The Stat• of
Hyderabad
and Others.
1952
Dec. 5.
644
SUPREME COURT REPORTS
[1953)
ORDER.
BY THE CounT :-As the
Constitutional
issue~
raised in the petitions have also been raised in the
appeals preferred by the petitioners they have been
dealt with in the appeals by consent of parties, and
the petitions are dismis•ed. The constitutional points
in the appeals having been decided against the
appellants by the maiority
the appeals will be
heard on other points when the appeals are ready for
hearing.
'
Petitions dismiss ea.
Agent for the petitioners/a,ppellants: Rajinder
Narain.
Agent for the respondent: G. H. Rajadhyaksha.
SISIR KUMAR DUTTA
v.
STATE OF WEST BENGAL
UNION OF INDIA-Intervener.
[PATANJALI SASTRI, C.J., MuKHERJEA, CHANDRASEKHARA AIYAR, VIVIAN BOSE and GHULAM
HASAN JJ).
Essential Supplies (Temporary Powers) Act, 1946, s. 4-Extension of Act up to 31st March, 1951, by resol!ttion of Constituent
Assembly - Validity-Powers
of
Constituent
Assembly-India
(Central Government and Legislature) Act, 1946, ss. 4, 4·k-India
(Provisional Constitution) Order, 1947-Constitution of India,
1950, Arts. 372, 379 (1), 394.
The Essential Supplies (Temporary Powers) Act, 1946, a
temporary Act which was being extended from time to time after
the date of its first expiry, for a year at a time, was extended up
to the 31st March, 1951, from the 31st March, 1950, by a resolution passed by the Constituent Assembly (Legislative) at a meeting held on the 20th December, 1949.
The appellant who was
convicted for an offence committed under the Act on the 24th
October, 1950, contended that the Constituent Assembly had no
power to extend the Act in view of the provisions of Art. 379 (1)
of the Constitution, and that at any rate it had no power to
~11tend the duration o! the Act beyond the 26th January, 1950;
S.C.R.
SUPREME 'COURT REPORTS
645
Held, that, even assuming that under Art. 379 (l) the Provisional Parliament was intended to function
from the 26th
November, 1949, and not from the 26th January, 1950, as the
Constituent Assembly was to continue in existence till the 26th
January, 1950, the power conferred nn it as a designated body by
the India (Central Government and Legislature) Act, 1946, of the
British Parliament as adapted by the Indfa (Provisional Constitution) Order, 1947, could be validly exercised on the 20th
December, 1949, and was so exercised when it passed the resolution on that date. The Provisional Parliament was not a body
authorised to exercise the special power of approving the extension of the period mentioned in s. 4 of the Inaia Act of 1946 as
that was not one of the powers conferred by the Constitution on
the Provisi9nal Parliament, nor can bringing the Provisional
Parliament into existence on the 26th November, 1949, assuming
that to be the case, be regarded as "other provision" made by
the Constituent Assembly within the meaning of s. 4 of the
India Act ot 1946.
Held further, that the resolution extending the life of the Act
beyond the 26~h of January, 1950, was not invalid, as it came into
immediate effect and not on the 1st of .\pril, 1950, when the previous extension expired. Accordingly thi2 Act with its duration extended by virtue of the resolution was an Act immediately in force
before the commencement of the Constitution and so was saved
by Art. 372 (1) and Explanation III.
CR!ilHNAL APPELLATE JURISDICTION: Case No. 275
of 195 l. Appeal under Art. 132 (1) of the Constitution of India from the Judgment and Ordal' dated
April 11, 1951, of the High Court of 'Judicature at
Calcutta (Das Gupta and Mookerjee JJ.) in Criminal Revision Case No. 1028 of 1950 arising out of
the Order dated November 23, 1950, of the Presidency Magistrate, 8th Court, Calcutta, in P. R. Case
No. 2107 of 1950.
N. C. Chakravarti for the appellant.
B. Senior the respondent.
M. C. Setalvad, Attorn~y-General for India (P. A.
Mehta, with him), for the intervener.
1952. December 5.
'rhe Judgment of the Court
was delivered by
BosE

## Text

1958
Syed Qasim
Razvi
v.
The Stat• of
Hyderabad
and Others.
1952
Dec. 5.
644
SUPREME COURT REPORTS
[1953)
ORDER.
BY THE CounT :-As the
Constitutional
issue~
raised in the petitions have also been raised in the
appeals preferred by the petitioners they have been
dealt with in the appeals by consent of parties, and
the petitions are dismis•ed. The constitutional points
in the appeals having been decided against the
appellants by the maiority
the appeals will be
heard on other points when the appeals are ready for
hearing.
'
Petitions dismiss ea.
Agent for the petitioners/a,ppellants: Rajinder
Narain.
Agent for the respondent: G. H. Rajadhyaksha.
SISIR KUMAR DUTTA
v.
STATE OF WEST BENGAL
UNION OF INDIA-Intervener.
[PATANJALI SASTRI, C.J., MuKHERJEA, CHANDRASEKHARA AIYAR, VIVIAN BOSE and GHULAM
HASAN JJ).
Essential Supplies (Temporary Powers) Act, 1946, s. 4-Extension of Act up to 31st March, 1951, by resol!ttion of Constituent
Assembly - Validity-Powers
of
Constituent
Assembly-India
(Central Government and Legislature) Act, 1946, ss. 4, 4·k-India
(Provisional Constitution) Order, 1947-Constitution of India,
1950, Arts. 372, 379 (1), 394.
The Essential Supplies (Temporary Powers) Act, 1946, a
temporary Act which was being extended from time to time after
the date of its first expiry, for a year at a time, was extended up
to the 31st March, 1951, from the 31st March, 1950, by a resolution passed by the Constituent Assembly (Legislative) at a meeting held on the 20th December, 1949.
The appellant who was
convicted for an offence committed under the Act on the 24th
October, 1950, contended that the Constituent Assembly had no
power to extend the Act in view of the provisions of Art. 379 (1)
of the Constitution, and that at any rate it had no power to
~11tend the duration o! the Act beyond the 26th January, 1950;
S.C.R.
SUPREME 'COURT REPORTS
645
Held, that, even assuming that under Art. 379 (l) the Provisional Parliament was intended to function
from the 26th
November, 1949, and not from the 26th January, 1950, as the
Constituent Assembly was to continue in existence till the 26th
January, 1950, the power conferred nn it as a designated body by
the India (Central Government and Legislature) Act, 1946, of the
British Parliament as adapted by the Indfa (Provisional Constitution) Order, 1947, could be validly exercised on the 20th
December, 1949, and was so exercised when it passed the resolution on that date. The Provisional Parliament was not a body
authorised to exercise the special power of approving the extension of the period mentioned in s. 4 of the Inaia Act of 1946 as
that was not one of the powers conferred by the Constitution on
the Provisi9nal Parliament, nor can bringing the Provisional
Parliament into existence on the 26th November, 1949, assuming
that to be the case, be regarded as "other provision" made by
the Constituent Assembly within the meaning of s. 4 of the
India Act ot 1946.
Held further, that the resolution extending the life of the Act
beyond the 26~h of January, 1950, was not invalid, as it came into
immediate effect and not on the 1st of .\pril, 1950, when the previous extension expired. Accordingly thi2 Act with its duration extended by virtue of the resolution was an Act immediately in force
before the commencement of the Constitution and so was saved
by Art. 372 (1) and Explanation III.
CR!ilHNAL APPELLATE JURISDICTION: Case No. 275
of 195 l. Appeal under Art. 132 (1) of the Constitution of India from the Judgment and Ordal' dated
April 11, 1951, of the High Court of 'Judicature at
Calcutta (Das Gupta and Mookerjee JJ.) in Criminal Revision Case No. 1028 of 1950 arising out of
the Order dated November 23, 1950, of the Presidency Magistrate, 8th Court, Calcutta, in P. R. Case
No. 2107 of 1950.
N. C. Chakravarti for the appellant.
B. Senior the respondent.
M. C. Setalvad, Attorn~y-General for India (P. A.
Mehta, with him), for the intervener.
1952. December 5.
'rhe Judgment of the Court
was delivered by
BosE J.-This is au appeal under article 132 (1)
of the Constitution. Leave to appeal was granted by
the High Court at Calcutt!\.
Bt
•
1952
Si.sir Kumir
Dutt'l
v.
Shte of West
Bengal
195•
Sisi'I" Kumr7.r
Bu-tta
v.
State of West
Bengal
}Jose J.
646
SUPRFlME COURT REPOR1'S
[1953)
The appellant was convicted under section 7 (1) of
the Essential Supplies (Temporary Powers) Act of
1946 for an offence said to have been committed on
the 24th of
Octobe~, 1950.
'1
1he conviction was on
two counts: ( 1) for selling cloth above the controlled
rate and (2) for not issuing a cash memo.
The sentence was rigorous imprisonment for three months
and a fine of Rs. 200 with another three months in
default. The trial was before the 8th Presidency
Magistrate at Calcutta who
adopted a summary
procedure.
There was an application for revision· before the
High Court but it was dismissed. An application for
leave to appeal to this Court was then filed.
It was
granted on a ground which was not taken either in
the original court or in the revision before the High
Court, namely that the Essential Supplies Act of
1946 under which the appellant was convicted was
not in force on the 24th of October, 1!!50, and so
there could be no conviction under it .
. The validity of this Act was challenged in Joylal
Agarwala v. The State(1) but this Court held that the
Act was valid up to the 31st of March, 1950, that
being. the life of the Act at the date relevant to that
case. It is necessary to explain that the Act is a
temporary Act and that its life bas been extended
from time to time after the date of its first expiry for
a year at a time. The latest extension at the date of
the previous case was up to the 31st of March, 19.50.
We therefore start with the position that the Act was
a good Act up till that date.
The Act was further extended up till the 31st of
March,
1951, by a resolution dated the 20th of
December, 1949. This is the extension with which
we are concerned and which is now challenged, the
argument being that there was no legislative body in
existence on that date competent to extend the life
of the Act for another year.
'rhe Gazette notification setting out the resolution is in the following terms :
O) [19521S.C.R.1{7.
•
i
S.C.R.
SUPREME COURT REPORTS
647
".New Delhi, the 22nd December, 1949.
No. F.-7 WL (1) 47.-'l'he following resolution
which was passed by the Constituent Assembly
(Legislative) at its meeting held on the 20th of
December, 1949, is hereby published for general
information :
In pursuance of the proviso to section 4 of the
India (Central Government and Legislature) Act,
1946, as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the
extension of the period mentioned in sections 2 and
3 of the said Act for a further period of twelve months
commencing on the first day of April, 1950."
It has to be seen whether the body which passed
that resolution had th"e power to extend the Act.
It can be accepted, because of the decision in Joylal Agarwala v. The State('), that the Constituent
Assembly had authority on 25th of February, 1948;
and again on 23rd of March, 1949, to make two successive extensions of the Essential Supplies Act of a
year each. The only question, therefore, is whether
any body continued to bave that power on tbe dates
material here.
The extensions just referred to were brought about
as follows. The Constituent Assembly derived its
authority to pass the above resolution from section 4-A of the India (Central Government and Legislature) Act of 1946. This was an Act of the British
Parliament which originally conferred on the British
Houses of Parliament the power of approving by resolution the extension of the period fixed by section 4.
Later, the Indian Independence Act of 1947 was
passed by the British Parliament and in exercise of
the powers conferred by sections 9 and 19 of that Act
the Governor-General by an Adaptation Order substituted the words "Dominion Legislature" for the
words "Houses of Parliament" and thus enabled the
Dominion Legislature to exercise tbe powers of
Parliament in this behalf. At the same time, the
\I) (1952] S. C. R. 127 at 131 •
1952
S·isit· Kumar
Dutta
v.
Stat• of West
Bengal
Bose J.
1952
Sisir Kuma.r
Dutta
v.
State of Wost
Bengal
1
Bos.JJ,
648
SUPREME cou_R'l' REPORTS
[1953]
Governor-General introduced section 4-A into the
British Aot of 1946, the India (Central Government
and Legislature) Act, 1946, by way of adaptation and
conferred on the Constituent Assembly the powers of
the Dominion Legislature. Thus the Constituent
Assembly became empowered to extend the period
fixed in section 4 by the passing of a resolution and
that in its turn had the effect of extending the life of
the Essential Supplies Act of 1946, because section 1
(3) of that Act says that it shall cease to have effect
on the expiration of the period mentioned in section 4
of the India (Central Government and Legislature)
Act of 1946.
Now section 4-A provides that the Constituent
Assembly sha,ll have the powers of the Dominion
Legislature under the British Act "until other provision is made by or in accordance with a law made
by the Constituent Assembly under sub-section (1)
of section 8 of the India::i Independence Act, 1947."
Turning to sub-section ( 1) of section 8 we find that
the British Parliament invested the Constituent Assembly with all the powers of the Dominion Legislature "for the purpose of making provision as to the
constitution of the Dominion."
That power it exercised and drew up the Indian
Constitution, but in doing so it decided to bring the
Constitution into being in two instalments and it did
that by enacting article 394 and enacting in it that
that article and certain others, including article 37\i,
should come into force '' at once" -at once being the
2oth of November, Hl49-while the remaining articles were to come into force on the 26th of J auuary,
11!50.
Now article 379 (1) provides that--
" Until both Houses of Parliament have been duly
constituted and summoned to meet for the first session under the provisions of· this Constitution, the
body functioning as the Constituent Assembly of the
Dominion of India immediately before the commencement of this Constitittion shall be the Provisio11al
S.C.R.
SUPREME COURT REPORTS
649
Parliament and shall exercise all the power;; and perform all the duties conferred by the provi"ions of this
Constitution on Parliament."
It was argued on behalf the appellant that because
of this article the Constituent Assembly disappeared
as a lawmaking body on and after the 26th of November,_ 1!:149, and that its place was taken by the Provisional Parliament referred to by that article, and as
the resolution of the 20th December, 11:!49, purports to be a resolution of the Constituent Assembly
(Legislative) and not of the Provisional Parliament,
it is a resolution of a body which no longer had
authority to enact laws or pass a resolution of this
kind affecting the laws of the land.
The learned Attorney- General argues, on the other
hand, that the Constituent Assembly continued to
function as such and to· retain its right to exercise its
dual functions of constitution making and law making
right up to the last stroke of midmght on the 25th
of January, 1950. 1'he very next second, when a new
day ushered in a new era for this country, it ceased
to exist as a Constituent Assembly and its place was
taken by the .Provisional Parliament of India.
We need not decide this point, for even if the
Provisional Parliament was intended to function on
the 26th of November, 1949, and not from the 26\h
of January, 1950, it is clear that the Constituent
Assembly was to continue in existence till '' the commencement of the Constitution" which, by article 394,
is the 2Gth of January, 1950. Consequently, the
power conferred on it a~ a designated body, by the
English statute, as adapted by the Governor-General,
could be validly exercised on the 20th of December,
1949, and was so exercised when it passed the resolution of that date. The Provisional Parliament was
not a body authorised to exercise the special power
of approving the extension of the period mentioned
in section 4 of the 1£nglish statute as that was not
one of ·'the powers conferred by this Constitution on
Parliament,~' nor can bringing the Provisional Parliament into existence on the 26th of November, 1949,
1952
S'isir Ku1nar
Dutta
v.
Stale of West
Bengal
Bose J.
195~
Sisir Kitmar
D1dta
v.
State of West
Bengal
Bose J.
650
SUPREME COURT REPORTS
[1953]
(assumiug that to be the case) be regarded as "other
provision" made by the Constituent Assembly within
the meaning of section 4-A of the gnglish Act.· It
follows the Constituent Assembly was not deprived of
these specially designated powers on the date of the
resolution.
The next question is whether the Constituent
Assembly had the power to extend the life of this
particular piece of legislation beyond the 26th of
January, 1950. The question was posed in this way.
It was conceded that the :Essential ~upplies Act was
validly extended up to the 3 lst of March, 1950.
The resolution which extended its life for another
year beyond this was passed on the 20th of December,
1949, but it was argued that it could not take effect
till after the expiry of the previous extension, that
is, not until the 1st of April, 1950. But by that time
the Constitution had come into being and so neither
the Coustituent Ass 0 mbly nor the Provisional Parliament could have ext.ended the life of the temporary
Act after its expiration on the 31st of March, 1950,
because of Explanation HI to article :37:J. It follows
that the Constituent Assembly which purported to
effect the exteusion ahead of time could not do, in
anticipation, what the Constitution says cannot be
done after its commencement.
There i:i nothing iu this contention.
The resolution of the 20th December, 1949, took immediate
effect and its effect was to alter the date fixed for the
expiration of the period mentioned in section 4 of the
Engli:ih statute from the 3ls1; of March, 1950, to the
31st of March, 1951.
The Essential Supplies Act
fixed the date for its own expiration as the date fixed
for the expiration of the period mentioned in section
4 above. Accordingly, it was an Act which was alive
immediately before the 26th of January, 1950, and
which was due, at that time, to expire of its own force,
not on the 31st of March, 1950, but on the 31st of
March, 1951, and as this was a law in force immediately before the commencement of the Constitution
•
•
8.0.R.
SUPREME COURT REPORTS
651
it continued in force, because of article 372(1) and
Explanation III, until it was due to expire.
That exhausts the constitutional points. We bold
that there was a body in existence at all material
times competent to extend the life of the Act up till
tbe 31st of March, 1951, and that it did so extend
its life on the 20th of December, 1949.
'['be Act
continued in force until after tbe Constitution and
therefore was a living Act at the date of the offences,
namely the 24th of October, 1950.
'
Counsel then sought to attack the conviction on
other ground~ bnt as the leave to appeal wa> confined to the constitutional points he cannot, so far as
that is concerned, be permitted to travel further. Of
course, it would have been competent for him to file
a separate-petition for special leave to appeal on the
other points but bad he done so it would have followed the usual course and he would have been obliged
to obtain sp.ecial leave in the usual way.
We therefore treated this part of the argument as one asking
for special leave to appeal.
We heard him fully and
are of opinion that these remaining points are not
ones on which special leave to appeal should be
granted.
We therefore reject this irregular petition
for special leave to appeal on its merits.
The appeal filed under article 132 (1) is also
dismissed. ·
Appeal dismissed.
Agent for the appellant: S. 0. Banerjee.
Agent for the respondent: P. K. Bose.
Agent for the intervener: G. H. Rajadhyaksha .
Si~ir K uniar
Dutta
v.
State of West
Bengal
Bose J.