PETITIONER:
RAJA BHAIREBENDRA NARAYAN BHUP
Vs.
RESPONDENT:
THE STATE OF ASSAM(with connected appeal)
DATE OF JUDGMENT:
11/04/1956
BENCH:
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
IMAM, SYED JAFFER
CITATION:
1956 AIR 503 1956 SCR 303
ACT
Zamindaries, Acquisition of-Bill passed by the Provincial
Legislative Assembly reserved by the Governor for
consideration of the Governor General-Returned by the
Governor General suggesting reservation for the President-
Promulgation of the Constitution- Effect-Competency of the
Governor to reserve-State Legislative Assembly, if could
continue the Bill-Constitutional validity of the Act-
Provisions, if discriminatory and violative of fundamental
rights-Assam State Acquisition of Zamindaries Act of 1951
(Assam Act XVIII of 1951) as amended by Assam Act VI of
1954-Constitution of India, Arts. 389, 395, 31(A), 31(2),
14-Government of India Act, 1935 (26 Geo. 5. Ch. 2), ss. 75,
76.
HEADNOTE
The appellants by two suits, which were heard by a Full
Bench of the Assam High Court, challenged the Constitutional
validity of the Assam State Acquisition of Zamindaries Act
of 1951 as amended by the Assam Act VI of 1954. The Assam
Legislative Assembly had passed the Bill on March 28, 1949.
It was presented to the Governor and reserved by him for the
consideration of the Governor General who, in view of the
impending constitutional changes, on January 25, 1950,
returned the Bill to the Governor suggesting that it might
be reserved for the consideration of the President. While
the Bill was in transit and before it actually reached the
Governor, the Constitution came into force. The Governor
reserved the Bill for the consideration of the President and
sent it to him. The President returned the Bill suggesting
certain alterations. The State Legislative Assembly
considered them and passed the Bill suitably amended. It
received the President’s assent on July 27, 1951, and became
an Act. On September 11, 1951, the State Legislative
Assembly passed an amending Bill which was assented to by
the President. The Act as amended was brought into force on
April 15, 1954, and a Notification was issued by the State
Government under the impugned Act declaring that the
properties of the appellants, along with those of others,
would vest in the State. It was contended on behalf of the
appellants that the impugned Act was not within the
competence of the State Legislature, it was not enacted
according to law and infringed the fundamental rights of the
appellants under Arts. 31(2) and 14 of the Constitution.
The High Court repelled these contentions and they were
reiterated in appeal.
Held, that the impugned Act was passed according to law, its
40
304
provisions were constitutionally valid and the decision of
the High court must be affirmed.
That the repeal of the Government of India Act, 1935, by
Art. 395 of the Constitution could not wipe out the Bill as
it was, immediately before the commencement of the
Constitution, pending before the Governor General and/or the
Governor who represented His Majesty the King who was a part
of the Provincial Legislature and was, therefore, pending
before the Provincial Legislature and, consequently, the
State Legislature of Assam was competent under Art. 389 to
continue the same.
That although the Governor General might not have acted
constitutionally under s. 76 of the Government of India Act,
1935, in suggesting that the Bill might be reserved for the
President’s consideration, his action, in the absence of a
positive declaration to that effect, could not amount to a
withholding of assent under that section and effect a
termination of the bill, contrary to his express intention
indicated by the suggestion itself that it should remain
pending.
That under the Government of India Act, 1935, His Majesty
the King was an integral part of the Legislature and when
the Bill was presented to the Governor or the Governor
General under s. 75 or s. 76 of the Act, in due course of
legislation, and neither of them gave or withheld assent in
the name of His Majesty, it remained pending, both in law
and reality, before his Majesty and, therefore, before the
Legislature and could properly be continued by the State
Legislature after the commencement of the Constitution. The
Governor was, therefore, within his powers in reserving it
for the President and the subsequent enactment of the Bill
was in accordance with the Constitution.
That the word ’Legislature’ is not used in the same sense in
different articles of the Constitution, or even in different
parts of the same article, and its exact meaning has to be
ascertained with reference to the subject-matter on the
context and in Art. 389 it is used in the larger sense so as
to comprise the entire legislative machinery including His
Majesty represented by the Governor General or the Governor
and does not mean merely the Legislative Chamber or
Chambers. The Constitution intended to keep alive not
merely Bills which were actually pending before the
Legislative Chamber but also Bills, such as the present,
that had reached the final stages of the legislative process
and were awaiting assent of the Governor General or the
Governor representing His Majesty.
Visweshwar Rao v. The State of Madhya Pradesh, [1952] S.C.R.
1020, referred to.
That the impugned Act was a law providing for the
acquisition of estates by the State within the meaning of
Art. 31-A of the Constitution and was, as such, fully
protected by it, and its validity could not be questioned on
the ground of any contravention of any
305
of the provisions of Part III of the Constitution dealing
with fundamental rights.
That the Act could not, in the absence of any question as to
legislative incompetency, be impugned as a colourable
exercise of legislative power on account of the provisions
it made for payment of compensation and any question
relating to the quantum of compensation would be barred
under Art. 31-A of the Constitution.
C.Gajapati Narain Deb v. State of Orissa, ([1954] S.C.R. 1),
referred to.
That Art. 14 of the Constitution could not really help the
appellants, it being no longer open to them to contend, in
view of the decisions of this Court, that the State could
pick and choose and thus discriminate between one estate and
another.
Biswambhar Singh v. The State of Orissa, ([1954] S.C.R. 842)
and Thakur Amar Singh v. The State of Rajasthan, ([1955] 2
S.C.R. 303), referred to.
That, in view of the decisions of this Court, the Act could
not be said to discriminate by reason of its application
being limited to such Lakheraj estates alone as fell within
the boundaries of permanently settled estates and not
extending to other Lakheraj estates as the former
constituted a distinct class by themselves and acquisition
of them facilitated the object of the Act. Nor could the
provision for different scales of compensation prescribed
for different estates amount to discrimination as there is a
rational basis for such classification of proprietors of
different income groups.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 310 and 311
of 1955.
Appeals under Article 132 of the Constitution from the
judgment and order dated the 6th April, 1955 of the Assam
High Court in Title Suits Nos. 1 & 3 of 1955.
N. C. Chatterji, P. N. Mitter, D. N. Mukerji and R. R.
Biswas, for the appellant in C. A. No. 310 of 1955.
P.K. Chatterji, for the appellant in C. A. No. 311 of
1955.
M.C. Setalvad, Attorney-General for India, S. M. Lahiri,
Advocate-General of Assam and Naunit Lal, for the respondent
in both appeals.
306
1956. April 11. The Judgment of the Court was delivered by
DAS C. J.-It is intended by this judgment to dispose of both
the appeals mentioned above. The appeals have come up
before us in circumstances which may shortly be recounted.
On 6th December 1954 the appellant Raja Bhairabendra Narain
Bhup of Bijni filed T. S. No. 27 of 1954 in the Court of the
Subordinate Judge of Lower Assam District at Dhubri praying,
inter alia, for a declaration that the Assam State
Acquisition of Zamindaris Act, 1951 (Assam Act XVIII of
1951) as amended by Assam Act VI of 1954 was not validly
passed, was not law at all and was unconstitutional, ultra
vires and void and for a declaration that the impugned Act
was, at any rate, inapplicable to the plaintiff’s properties
and the Notification purporting to be issued under section
3(1) of the impugned Act in respect of the plaintiff’s
properties was illegal, ultra vires and void.
On the 23rd December, 1954 the appellant Sm. Bedabala Debi
wife of Sri Nripendra Narain Choudhury as the Trustee of
Chapor Trust estate filed T. S. No. 34 of 1954 in the Court
of the Subordinate Judge of Lower Assam District at Dbubri
challenging the constitutionality of the same Act. In this
suit there was no contention, as there was in the Raja’s
suit, that the Act, if valid, did not apply to the estate of
which she was the Trustee.
By two several orders made under article 228 by the Assam
High Court on the 21st January 1955 and the 16th February
1955 respectively the said two suits were transferred to the
High Court and renumbered as T. S. No. 1 of 1955 and T. S.
No. 3 of 1955 respectively. The State of Assam duly filed
its written statements in both the suits controverting the
contentions set forth in the respective plaints.
The High Court framed 11 issues in the Raja’s T.S. No. 1 of
1955. The issues common to the two suits were as follows:-
(1)Whether the Assam State Acquisition of Zamindaris Act,
1951 (Assam Act XV111 of 1951) and its
307
amendments are within the competence of the State
Legislature and whether they were enacted according to law?
(2)Whether the Notification No. Rt./24/54/21 dated 19th
July 1954 published in the Assam Gazette dated 21st July
1954 and issued under the Act aforesaid is valid?
(3)Whether the said Act and its amendments infringe the
fundamental rights of the plaintiff under article 31(2) and
article 14 of the Constitution; or whether the legislation
is protected under article 3 1 A and article 31(4) of the
Constitution?
(4)Whether the provisions of the Act and its amendments
can be enforced against the properties in suit, even if the
legislation is held to be valid?
(5)To what relief, if any, is the plaintiff entitled? The
parties through their respective counsel agreed that the
issues of law which did not depend upon adjudication of
disputed facts should be heard and decided first, leaving
the other issues, if necessary, to be dealt with later.
The two cases were beard by a Full Bench of the Assam High
Court. The learned Judges answered issues 1 and 3 against
the plaintiffs, although not for identical reasons. They
also answered issue 2 against the plaintiffs, subject, as to
the Raja, the plaintiff in T.S. No. 1 of 1955, to the answer
to issue 4. On the last mentioned issue the Bench held that
the Act and the Notification being valid they could be
enforced against Sm. Bedabala, the plaintiff in T. S. No. 3
of 1955. As regards the Raja, the plaintiff in T.S. No. 1
of 1955, the Bench held that as the question whether the
properties of the Raja sought to have been notified were
"estate" within the meaning of the impugned Act was one of
fact, issue 4 could only be decided, as between the Raja and
the defendant State, upon evidence led in the case. In the
result the Bench dismissed Sm. Bedabala’s T.S. No. 3 of
1955 with costs and directed the records of the Raja’s T.S.
No. 1 of 1955 to be sent down to the court belowfor trial
and disposal on the determination of issue 4 and other
issues. In view of the importance of the ques-
308
tion involved in the issues dealt with by the Bench they
gave leave under article 132 to the plaintiffs in both the
suits to appeal to this Court. Hence the present appeals.
At the hearing before us arguments have proceeded on issues
1, 2 and 3. It will be convenient, therefore, to deal with
the issues seriatim.
Re issue-1: Issue 1, it will be observed, has two parts.
The first relates to the competence of the State Legislature
in enacting the impugned law and the second part relates to
the question whether the impugned Act was enacted according
to law. As a greater emphasis has been laid by learned
counsel appearing in support of the appeals on the second
part of this issue, we take up and deal with that part
first.
" The facts bearing on this part of the issue may now be
summarised. On the 11th August 1948 a Bill called Assam
State Acquisition of Zamindaris Bill was published in the
Assam Gazette. On the 23rd September 1948 the Bill was
introduced in the Legislative Assembly of Assam, which was
its only Legislative Chamber. The Bill was passed by the
legislative Assembly on the 28th March 1949. The Governor
of Assam, acting under section 75 of the Government of India
Act, 1935, reserved the Bill for the consideration of the
Governor-General. In view of the then impending
commencement of the Constitution, the Governor-General on
the 25th January 1950. returned the Bill to the Governor of
Assam with the remark that the Bill be reserved for the
consideration of the President. On the 26th of January 1950
the Constitution of India came into force. Two days later,
that is to say, on the 28th January 1950, the Governor of
Assam actually received back the Bill. The Governor of
Assam then reserved the Bill for the consideration of the
President and sent the Bill to the President. In October
1950 the President returned the Bill to the Governor of
Assam suggesting certain alterations. The Bill, together
with the suggested amendments, was placed before the Legis-
lative Assembly of Assam. The Legislative Assembly
309
considered the suggested alterations and passed the Bill
suitably amended. The amended Bill thereupon was again
forwarded to the President and on the 27th July 1951 it
received the assent of the President and became Assam Act
XVIII of 1951. The Act was published in the Assam Gazette
of the 8th August 1951. On the 11th September 1951 the
Legislative Assembly passed a Bill amending Assam Act XVIII
of 1951 in certain particulars and this Bill, having been
reserved by the Governor for the consideration of the
President, received the assent of the President on the 25th
March 1954 and became Assam Act VI of 1954. The Acts were
brought into force on the 15th April 1954 by a Notification
issued by the Assam Government on the 9th June 1954. On the
19th July 1954 a Notification was published in the Assam
Gazette under section 3(1) of the impugned Act declaring
that the properties therein mentioned, including the
properties which, formed the subject matter of the two suits
would vest in the State free from all encumbrances with
effect from the 15th April 1955. Two suits out of which the
present appeals arise were then filed in December 1954.
The second part of issue raises the contention that the
impugned Act was not enacted according to law. The
following reasons have been urged in support of this
contention.
(a)The Bill was introduced in the Assembly without the
sanction of the Governor which was required by section
299(3) of the Government of India Act.
(b) When the Bill was placed before the Governor-General for
his assent and he did not assent to it, the assent must be
deemed to have been withheld. His suggestion that it be
reserved for the consideration of the President was void and
of no effect.
(c)The Bill was not pending in the Legislature at the date
of the commencement of the Constitution and it could not be
reserved for the assent of the President.
(d)The Legislature functioning under the Constitution has
no power to. consider the amendments’
310
suggested by the President or to pass the same.
(e)The Bill having been passed by the Legislative Assembly
and thereafter having been reserved for the consideration of
the Governor-General under the Government of India Act, 1935
and the Governor- General not having taken any
constitutional action in respect of it, as prescribed/by
that Act up to the time that Act was operating,’ the Bill
lapsed on the repeal of the Government of India Act, 1935
and the promulgation of the Constitution.
(f)The subsequent acts of the Governor, the Legislative
Assembly and the purported assent of the President are all
unconstitutional and void.
The reason under beading above may be disposed of in a few
words. ’The impugned Act undoubtedly provides for the
compulsory acquisition of land and had, therefore, to comply
with the requirements of section 299 of the Government of
India Act, 1935, which was in force at the date of the
introduction of the Bill in the Legislative Assembly of the
province of Assam. Sub-section (3) of that section provided
that no Bill making provision for the transference to public
ownership of any land should be introduced in either Chamber
of Federal Legislature without the previous sanction of the
Governor-General in his discretion or in a, Chamber of
Provincial Legislature without the previous sanction of the
Governor in his discretion. It was alleged that the pre-
vious sanction of the Governor of Assam had not been
obtained before the Bill, which eventually became the
impugned Act, was introduced in the Legislative Assembly.
This allegation was controverted and the learned Advocate-
General of Assam produced before the High Court the minutes
of the official proceedings in relation to the Bill. The
Revenue Department’s file No. RT 17/48 dated the 21st July
1948 shows that a note was put up before "H.E.", meaning
obviously His Excellency the Governor, seeking, amongst
other things, his sanction for the introduction of the Assam
State Acquisition of Zamindaris Bill, 1948 under section
299(3) of the Government, of India Act, 1935. At the foot
of that note appear the
311
initials "A.H." over the date 21st July, 1948. It is not
disputed that the initials "A.H." stand for Akbar Hydari,
who was then the Governor of Assam. It is true that the
words "sanction granted" were not endorsed on the note but
there Can be no doubt that the initials were appended to the
note by the Governor for no other purpose than for
signifying his sanction to the introduction of the Bill in
the Legislative Assembly. Moreover under section 109 of
that Act, if there were no other defect vitiating it, the
impugned Act could not be challenged as invalid by reason
only,, that previous sanction was not given by the Governor
to the introduction of the Bill. In our judgment the first
reason urged in support of the contention that the impugned
Act was not enacted according to law has no force and must
be rejected.
The reasons (b) to (f) may conveniently be dealt with
together. It will be recalled that after the Bill had been
passed by the Assam Legislative Assembly on the 28th March,
1949, it was presented to the Governor under section 75 of
the Government of India Act, 1935. Under that Act the
Governor could do one of four things. He could in his
discretion declare that he assented in His Majesty’s name to
the Bill or that he withheld assent therefrom or that he
reserved the Bill for the consideration of the Governor-
General or he could in his discretion return the Bill
together with a message requesting the Chamber or Chambers
to reconsider the Bill or any specified provisions thereof.
In this case the Governor in his discretion reserved the
Bill for the consideration of the Governor-General and
forwarded the Bill to him. Under section 76 of that Act the
Governor-General could do one of four things, namely, that
he could in his discretion declare that he assented in His
Majesty’s name to the Bill or that he withheld assent
therefrom or that he reserved the Bill for the signification
of His Majesty’s pleasure thereon or he could, if in his
discretion he thought fit, direct the Governor to return the
Bill to the Chamber or Chambers of the Provincial
Legislature together with such a message as was mentioned in
the preceding section. What happened in
41
312
this case is that, in view of the impending constitutional
changes, the Governor-General, on the 25th January 1950,
returned the Bill to the Governor of Assam advising him to
reserve the Bill for the consideration of the President.
While the Bill was in transit and before it was actually
received by the Governor, which he did on the 28th January
1950, our Constitution came into force on the 26th January
1950.
Our attention is drawn to article 395 of the Constitution,
whereby the Indian Independence Act, 1947 and the Government
of India Act, 1935 together with all enactments, amending or
supplementing the latter Act but not including the Abolition
of Privy Council Jurisdiction Act, 1949, were repealed. It
is pointed out that there was no saving provision in that
article and consequently it was a total repeal of the enact-
ments referred to therein. Reference is made to the well-
known observations of Tindal, C. J. in Kay v. Godwin(1) and
the dictum of Lord Tenterden, C. J. in Surtees v. Ellison(2)
and to Craies’ Statute Law, 4th Edition, pp. 347 to 348 and
Crawford on Statutory Construction, pp. 599 to 600, all
referred to by Fazl Ali, J. in Keshavan Madhava Menon v. The
State of Bombay(3) and it is contended that the effect of
the repeal of the Government of India Act, 1935 was to
obliterate that Act as completely as if it bad never been
passed and as if it bad never existed except for the purpose
of those actions commenced, prosecuted and concluded whilst
it was an existing law. The Bill in question not having
become an Act before the 26th January 1950 the same, it is
urged, must be regarded as having been wiped out of
existence by reason of the repeal. There might have been a
good deal of force in this contention had there been no
other provision in the Constitution keeping this Bill alive.
Article 389 of the Constitution provides that a Bill which
immediately before the commencement of the Constitution was
pending in the Legislature of the,
(1) [1830] 130 E.R. 1403; Bing. 576.
(2)[1829] 9 B. & C. 750, 752; 109 E.R. 278, 279.
(3) [1951] S.C.R. 228, 237 et seq.
313
Dominion of India or in the Legislature of any Province or
Indian State may, subject to any provisions to the contrary
which may be included in rules made by Parliament or the
Legislature of the corresponding State under this
Constitution, be continued in Parliament or the Legislature
of the corresponding State, as the case may be, as if the
proceedings taken with reference to the Bill in the
Legislature of the Dominion of India or in the Legislature
of the Province or Indian State had been taken in Parliament
or in the Legislature of the corresponding State. If,
therefore, the Bill with which we are concerned was pending
in the Legislature of Assam immediately before the
commencement of the Constitution, then clearly it was quite
properly continued in the Legislature of the corresponding
State. Two questions, therefore, arise, namely (1) whether
at the commencement of the Constitution the Bill was pending
at all and (2) if it was, whether it was pending in the
Legislature of Assam.
As to (1) election 30 of the Government of India Act, 1935
made provision for the introduction of Bills in the Chambers
of the Federal Legislature and section 73 provided for the
introduction of Bills in the Chamber or Chambers of the
Provincial Legislature. Section 32 of the Act laid down
provisions for presentation of the Bill passed by the
Federal Legislative Chambers to the Governor-General and
section 75 for the presentation of the Bill passed by the
Provincial Legislative Chamber or Chambers to the Governor.
Broadly speaking it may be said that a Bill begins to pend
with its introduction in the Legislative Chamber and it
ceases to pend-(a) when it lapses under section 73(4) or (b)
when the Governor declares that be assents in his
Majesty’s name to the Bill in which case the Bill ripens
into an Act or (c) when the Governor declares that he
withholds his assent therefrom, in which case the Bill falls
through or (d) when being reserved by the Governor for the
consideration of the Governor-General, the Governor-General
acting under section 76 declares that he assents in His
Majesty’s name to the Bill, in which case also
314
the Bill becomes an Act or (e) when, having been so reserved
by the Governor, the Governor-General declares that he
withholds his assent therefrom, in which case again the Bill
falls through or (f) when the Bill having been reserved by
the Governor-General for the signification of His Majesty’s
pleasure thereon under section 76(1), the Governor under
section 76(2) makes known by public notification that His
Majesty had assented thereto, in which case again the Bill
becomes an Act and lastly (g) when no such notification is
issued by the Governor within twelve months from the date on
which it was presented to the Governor, in which event also
the Bill comes to an end. In short a Bill may be said to be
pending as long as it does not lapse or it does not become
an Act by. receiving the assent by the appropriate authority
or is not terminated by the withholding of assent by such
appropriate authority. The contention of the appellant is
that when the Bill under consideration had been, under
section 76, reserved by the Governor for the consideration
of the Governor-General and sent to the Governor-General and
the latter did not declare his assent in the name of His
Majesty to the Bill but sent it back to the Governor, the
Governor-General must be deemed to have withheld his assent
from the Bill. As already stated, under section 76, the
Governor-General could have declared that he assented in the
name of His Majesty to the Bill or that he withheld his
assent therefrom, or that he reserved the Bill for the
signification of His Majesty’s pleasure or he could have
returned it to the Governor for being presented to the
Chamber for reconsideration but he could not do anything
else. Therefore, his act of returning the Bill to the
Governor with the suggestion to place it before the Presi-
dent was, it is urged, wholly unauthorised and amounted to
his withholding his assent from the Bill. We are unable to
accept this argument as sound. The Governor-General knew
that if he declared that he withheld his assent then the
Bill would come to a termination and no further step could
be taken in relation to that Bill. Therefore, when the
Governor-
315
General returned the Bill to the Governor with the
suggestion that the same Bill be reserved for the con-
sideration of the President, the Governor-General quite
clearly evinced an intention that the Bill should remain
alive, for otherwise there could be no question of further
reservation of the same Bill for the consideration of the
President. The very suggestion of the further reservation
of the Bill for the consideration of the President makes it
impossible for us to hold, inferentially or fictionally, as
we are asked to do, that the Governor-General had withheld
his assent. It is clear on the facts that the Governor-
General neither assented to, nor withheld his assent from,
the Bill. His action may have been unconstitutional, but it
cannot be regarded as amounting to a declaration that he was
withholding his assent from the Bill, for the assenting to,
or the withholding of assent from a Bill postulates a
conscious and positive declaration that the assent is so
given or withheld. The suggestion that the Bill be reserved
for the consideration of the President clearly militates
against the view that the Governor-General had, positively
or even tacitly, withheld his assent from the Bill. The
very suggestion indicates that the Governor-General intended
that the Bill should remain pending so that it could be
reserved for the consideration of the President and receive
his assent or dissent. In the premises it cannot be held
that the Bill ceased to be pending by reason of the assent
of the Governor-General having been withheld from it. In
our view, in the facts and circumstances of this case, the
Bill was pending at the date when our Constitution came into
force.
As to (2):-Learned counsel for the appellant then contends
that even if the Bill was pending, it was certainly not
pending before the Legislature of Assam. What, then, was
the Legislature of the Province of Assam immediately before
the commencement of our Constitution? This involves a
consideration of the relevant provisions of the Government
of India Act, 1935. The Government of India Act, 1935 was a
statute passed by the British Parliament. The
316
Parliament of the United Kingdom of Great Britain and
Northern Ireland consists of the Sovereign and the three
Estates of the Realm, namely, the Lords Spiritual and the
Lords Temporal, who sit together in the House of Lords and
the elected representatives of the people, who sit in the
House of Commons. When a Bill is passed by both Houses of
Parliament or is passed by the House of Commons in the
manner provided by Parliament Act, 1911, it becomes ready to
receive the Royal assent. No Bill passed by both Houses of
Parliament or in the last mentioned case by the House of
Commons can become law and be entered in the Statute Book
without the Royal assent. It is thus clear that according
to British Constitutional theory, the Sovereign is an
integral part of Parliament. This notion is reflected in
sections 17, 55 and 56 of the British North America Act,
with regard to the Canadian Parliament and sections 69, 71
and 90 of the same Act with regard to the Provincial
Legislatures of that Dominion. The same idea was adopted in
the Government of India Act, 1935. Section 18 of this Act,
as it originally stood, provided for a Federal Legislature
consisting of His Majesty represented by the Governor-
General and two Chambers to be known respectively as the
Council of States and the House of Assembly. Section 60
provided for a Legislature for every Province consisting of
His Majesty represented by the Governor and in certain
Provinces two Chambers and in other Provinces one Chamber.
As already stated the Province of Assam had only one
Chamber, the Legislative Assembly. The legislative
procedure of the Chambers of the Federal Legislature was
regulated by section 30 and of the Chamber or Chambers of
the Provincial Legislatures by section 73 of the Government
of India Act, 1935. Procedure subsequent to the passing of
the Bill by the Legislative Chamber or Chambers was governed
by section 32 with regard to Bills passed by the Chambers of
the Federal Legislature and by sections 75 and 76 with
regard to those passed by the Chamber or Chambers of the
Provincial Legislatures. It is true that section 18 of the
Government of
317
India Act, 1935 was adapted as contemplated by section 9 of
the Indian Independence Act, 1947, but there was no
adaptation of section 60 of the Government of India Act,
1935 which dealt with the Provincial Legislature. From the
language used in section 18, as it stood before its
adaptation and in section 60, it is quite clear that it was
His Majesty himself, who was really a constituent part of
the Legislatures, Federal and Provincial, and that be was
represented by the Governor-General in relation to the
Federal Legislature and by the Governor in the case of the
Provincial Legislatures. His Majesty being, thus, an
integral part of the Legislature, Federal and Provincial,
when a Bill passed by the Chambers of the Federal
Legislature or by the Chamber or Chambers of Provincial
Legislatures, was presented to the Governor-General or the
Governor under section 32 or sections 75 and 76 of that Act,
the Legislative process went on and unless and until assent
was given or withheld by the Governor-General or the
Governor in the name of His Majesty there could be no escape
from the position that in law and in reality the Bill was
pending before His Majesty, for the Governor-General or the
Governor was, under that Act, merely the agent representing
His Majesty, who was an integral part of the Legislature.
This was made clear by the provision that when the Governor-
General or the Governor declared that be assented or that he
withheld his assent, such declaration had to be made in the
name of His Majesty. Therefore, whether the Bill was in the
hands of the Governor or in the hands of the Governor-
General or was in transit between the one and the other on
either way, it must be taken to have been pending before His
Majesty and, therefore, before the Legislature. The
declaration giving or withholding assent was undoubtedly a
continuation of the legislative process and until such
declaration was made by the appropriate agency in the name
of His Majesty obviously the Bill was pending and where, in
law and in reality, could it at that stage be pending except
before His Majesty as an integral part of the Legislature?
Such
318
being the position under article 389 read with the relevant
provisions of the Government of India Act, as we apprehend
it, this Bill could properly be continued in the Legislature
of Assam after the commencement of our Constitution. Under
article 168 of our Constitution every State has a
Legislature consisting of the Governor and in certain States
two Houses and in other States, which include Assam, one
House. The Bill having been passed by the Legislative
Assembly of Assam before the commencement of the
Constitution, all that was required to be done under the
Constitution was to continue the legislative process under
article 200. It was, therefore, competent for the Governor
of Assam to reserve the Bill for the consideration of the
President and it was in order for the President, under
article 201, to direct the Governor to return the Bill to
the Legislative Assembly of the State together with the
requisite message and it was quite proper for the
Legislative Assembly, when the Bill was so returned, to
consider it accordingly. It follows, therefore, that when
the Bill was again passed by the Legislative Assembly of
Assam, it was proper to represent the Bill to the President
for his consideration and it was open to the President to
give his assent to the amended Bill, as he, in fact, did.
Reliance is placed by learned counsel for the appellant on
article 31(4) and to a passage in the Judgment of this court
in Visweshwar Rao v. The State of Madhya Pradesh(1) and it
is contended that the word "Legislature", which occurs both
in article 31(4) and article 389 means only the Chamber or
Chambers of the Legislature and not the Governor or the Gov-
ernor-General. We need not discuss the larger question as
to the correct interpretation of the word "Legislature" as
occurring in article 31(4) and suffice it to say that the
very passage relied on by learned counsel makes it quite
clear that the word "Legislature" is used in different
senses in different articles and may be in different senses
in different places in the same article and its meaning has
to be ascertained
(1) [1952] S.C.R. 1020, 1034.
319
keeping in view the subject or the context. In view of the
provisions of sections 18, 30 and 32 and sections 60, 73, 75
and 76 of the Government of India Act, 1935 to which
reference has been made, we are clearly of opinion that the
word "Legislature" has been used in article 389 in the
larger sense, namely, comprising all the units that were
concerned in the entire legislative process and included His
Majesty represented by the Governor-General or the Governor,
as the case might be. We find no reason to think that our
Constitution intended only to keep alive the Bills which
were actually pending before the Legislative Chamber or
Chambers but not those which having been passed by the
Legislative Chamber or Chambers had been presented to the
Governor-General or the Governor and were undergoing the
final legislative process and awaiting the assent of His
Majesty represented by the Governor-General or Governor, as
the case might be. We are, therefore, of opinion, although
for different reasons, that the High Court properly answered
the first part of issue (1).
Re. issue (2):-The Act having been properly passed by the
Legislature of Assam, the Government of Assam was well
within their rights under section 3 of the Act to declare
that the estates of the tenure holders specified in the
Notification vested in the State free from all encumbrances.
There is no suggestion that the properties of Sm. Beda Bala
Devi, the plaintiff in T. S. No. 3 of 1955, were not
"estates" within the meaning of the Act and accordingly the
High Court has correctly decided this issue in favour of the
State, so far as that plaintiff is concerned. The Raja, the
plaintiff in T. S. No. 1 of 1955, however, raised the
contention that his properties were not "estates" as defined
in the Act and that being the subject matter of issue (4),
this aspect of issue (2) was also left open until the
decision of issue (4). As the High Court has sent down the
suit to the court of Subordinate Judge for disposal and
determination of other issues, the final answer to issue
(2), as regards the Raja, will depend on the determination
of issue (4) and must until then be kept open.
42
320
Re. issue (3):- The Act and its amendments are challenged on
the ground that they infringe the fundamental rights of the
plaintiff under article 31(2) and article 14 of the
Constitution. If, however, the legislation is protected
under article 31-A of the Constitution then the question of
infringement of fundamental rights of the plaintiff under
articles 31(2) and 14 will not arise. Article 31(4)
protects an Act falling within it only against the
contravention of the provisions of clause (2) of that
article but not of those of article 14. Article 31-A,
however, protects an Act falling within it even if it is
inconsistent with or takes away or abridges any of the
rights conferred by the provisions of Part III. It is
obvious, therefore, that article 31-A gives greater and
wider protection than does article 31(4). If, therefore,
article 31-A applies no question can arise under article
31(2) or article 14 and in that case article 31(4) need not
be invoked at all.
What is protected by article 31-A is a law providing for the
acquisition by the State of any estate or of any rights
therein or for the extinguishment or modification of any
such rights. There is no question that the impugned Act,
having been reserved for the consideration of the President,
has in fact received his assent and, therefore, the proviso
to article 31-A does not come into play. The only question
then is-is the impugned Act a law providing for the
acquisition of an estate or any rights therein? The
expression "estate" in relation to any local area, has been
made by clause (2) (a) of this article, to have the same
meaning as that expression or its local equivalent has in
the existing law relating to land tenures in force in that
area. The preamble to the impugned Act recites the
expediency of providing for the acquisition by the State of
the interests of proprietors and tenure-holders and certain
other interests in the permanently settled areas and certain
other estates in the districts of Goalpara, Garo Hills and
Cachar in the State of Assam including their interests in
forests, fisheries, hats, bazars and ferries, mines and
minerals. Section
321
3 of that Act authorizes the State Government to declare,
from time to time, by Notifications that the estate or
tenure of a proprietor or tenure-holder specified in the
Notification shall stand transferred to and vest in the
State free from all encumbrances. Section 4 lays down the
consequences that are to follow. It is thus clear that the
Act purports to be a law for the acquisition by the State of
estates or tenures. The word "estate" as defined in section
2(k) means lands included under one entry in any of the
general registers of revenue paving and revenue-free lands
prepared and maintained under the law for the time being in
force by the Deputy Commissioner and includes revenue-free
lands not entered in any register. Under the Assam Land and
Revenue Regulation (Reg. 1 of 1886) the Deputy Commissioner
of every district is, by section 48, enjoined to prepare and
keep in the prescribed form and manner a general register of
revenue-paying estates, a general register of revenue-free
estates and such other registers as the Government may
direct. Section 49 provides that until such registers are
prepared the Government may direct that the existing
registers kept by or under the control of the Deputy
Commissioner shall be deemed to be registers prepared under
section 48. It will be noticed that what are to be entered
in the general registers are revenue-paying or revenue-free
estates. The word "estate" is defined by section 3(b) to
include six kinds of lands described in the six clauses
therein set out. This definition does not purport to be an
exhaustive definition of "estate" but only includes certain
enumerated items within the meaning of that expression. The
word "estate" is defined in the Goalpara Tenancy Act (Assam
Act 1 of 1929) exactly in the same way as it is defined in
the impugned Act, namely, as meaning lands included under
one entry in any of the General Registers of revenue-paying
or revenue-free lands prepared and maintained by the Deputy
Commissioner. The properties of both the plaintiffs
appellants are and have been in point of fact entered in the
General Register. An "estate" within the meaning of the
322
Assam Land and Revenue Regulation 1 of 1886 is also an
"estate" within the meaning of the Goalpara Tenancy Act (Act
1 of 1929) and of the impugned Act. The impugned Act,
therefore, is a law providing for the acquisition by the
State of an "estate" within the meaning of article 31-A and,
that being so, its constitutionality or validity cannot be
questioned on the ground of any contravention of any of the
provisions of Part III of the Constitution dealing with
fundamental rights. There is no dispute that the lands
comprised in the trust estate of Sm. Beda Bala Devi, the
plaintiff in T. S. No. 3 of 1955 is an "estate" as defined
in each of the aforesaid statutes including the impugned
Act. The question whether the amount paid by the Raja, the
plaintiff in T. S. No. 1 of 1955, is revenue or tribute,
whether his properties have been from before 1886 entered
properly in the General Register of revenue-paying estate
and whether such properties come within the operation of the
impugned Act, are the subject matter of issue (4), but those
questions have no bearing on the question whether the
impugned Act is entitled to the protection of article 31-A.
If the plaintiff Raja’s properties are not "estate" as
defined in the Assam Land and Revenue Regulation or the
Goalpara Tenancy Act or the impugned Act, then the
Notification under section 3 of the impugned Act will not
affect him but that will be, not because the impugned Act is
not a law providing for the State acquisition of an "estate"
but, because the Raja’s properties are not "estates" within
the purview of the impugned Act. The fact that the
definition of "estate" in the Assam Land and Revenue
Regulation is only an inclusive and not an exhaustive
definition, that the Raja’s properties have been in fact
entered in the General Register of revenue-paying lands and
that the lands falling within any of the six categories
enumerated in section 3 (b) of the Assam Land and Revenue
Regulation will certainly fall within the wider ambit of the
definition of "estate" given in the impugned Act cannot be
overlooked. The impugned Act is nonetheless a law providing
for State acquisition of "estate" even if its
323
definition of "estate" comprises something more than what is
comprised in the six categories included within that term in
section 3(b) of the Assam Land and Revenue Regulation of
1886. In our judgment the impugned Act is fully protected
by article 31-A.
In the view we have taken on article 31-A) it is unnecessary
to discuss the question of the applicability of article
31(4). We have, however, to touch very briefly a few
subsidiary points urged before us.
It has been said that the impugned Act constitutes a
colourable exercise of legislative power, for while it
purports to specify the principles on which and the manner
in which the compensation is to be determined and given, it
actually makes provisions which result in illusory
compensation or no compensation at all. The doctrine of
colourable legislation is relevant only in connection with
the question of legislative competency as explained by this
Court in K. C. Gajapati Narain Deb v. State of Orissa(1).
Here there is no question of any legislative incompetency.
The gravamen of the present complaint is as to the quantum
of compensation, which, in view of the article 31-A, cannot
be raised.
Reference has been made to section 11 of the impugned Act
according to which in the computation of the gross income is
to be included the gross rent payable by the tenant
immediately subordinate, for the agricultural years
preceding the date of vesting. It is argued that the Act is
vague and indefinite, because of the use of the word "years"
in plural. The High Court has given cogent reasons, with
which we agree, for holding that the word "years" in the
plural has been retained in the Act by mistake or oversight
and it should be read in the singular. Moreover, the Act
has since been amended retrospectively by section 4 of Assam
Act V of 1956 and the question does not arise.
The Act is also impugned on the ground of discrimination,
which offends article 14 of the Constitution. This question
again is not open to the appellant in view of our decision
on article 31-A. Further
(1) [1954] S.C.R. 1: A.I.R. 1953 S C. 375.
324
article 14 does not really help the appellant. It is said
that the State can pick and choose the estate of one
zamindar and leave out those of their favourite ones, as
indeed they have since done by withdrawing the Notification
with respect to Gouripore and Prabatjoar estates. There is
no force in this contention in view of the decisions of this
court in Biswambhar Singh v. The State of Orissa and
others(1) and Thakur Amar Singh v. State of Rajasthan(2).
It is said that the Act only applies to some Lakheraj
estates, that is to say, Lakheraj estates within the
boundaries of a permanently settled estate but not to other
Lakheraj estates. The acquisition of Lakheraj estates
within the boundaries of permanently settled estates clearly
facilitates the object of acquiring permanently settled
areas and such Lakheraj estates within the boundaries of
permanently settled estates constitute a class distinct from
other Lakheraj estates not so situate and, therefore, the
charge of discrimination cannot, in view of the principles
laid down by this court, apply to the impugned Act.
Lastly it is said that there is discrimination because of
different scales of compensation which have been prescribed
for different estates. It is not difficult to find a
rational basis for such classification of proprietors of
different income groups. We need not, however, dilate on
this point, for we have already held that the Act is not
open to challenge on the ground of contravention of any of
the provisions of Part III of the Constitution.
There was in the Raja’s T. S. No. 1 of 1955, a prayer for
injunction restraining the State from taking possession of
his estate. The High Court has rejected that prayer on
grounds which appear to us to be quite cogent and convincing
and as we see no substantial risk of irreparable loss to the
Raja we do not consider it right to reverse even that order
of the High Court.
For reasons stated above both these appeals are dismissed
with costs. As the two appeals were heard together there
will be one set of costs of bearing to be apportioned
equally between the two appellants.
(1) (1954] S.C.R. 842. (2) [1955] 2 S.C.R. 303, 316.
325