Holding

The President’s assent under Article 254(2) is confined to the specific repugnancies identified in the State’s proposal and does not give the State law blanket precedence over all central statutes.

Summary

The Supreme Court examined whether the President’s assent under Article 254(2) of the Constitution applies only to the specific repugnancies identified by the State or confers a blanket supremacy to the State law over all central statutes. The Court held that the President’s consideration and assent are limited to the proposal made by the State, i.e., only to the repugnancy with the Transfer of Property Act and the Presidency Small Cause Courts Act, and not to the Public Premises (Eviction of Unauthorised Occupants) Act. Consequently, the P.P. Eviction Act remains valid and the Bombay Rent Act is void to the extent of its repugnancy. The Court also clarified that while the validity of the President’s assent is not subject to judicial review, courts may examine the State’s proposal to determine the scope of the assent. The appeals and related writ petitions were dismissed.

Issues considered

Whether the President’s assent under Article 254(2) is limited to the specific repugnancies pointed out by the State or extends to all central laws.
Whether the Public Premises (Eviction of Unauthorised Occupants) Act violates Article 19(1)(f) and other fundamental rights.
Whether an extension of a temporary enactment amounts to a new law requiring presidential assent.
Whether the President’s assent is justiciable or subject to judicial review.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. Section 12, s. Section 13
Constitution of Indias. Article 19(1)(f), s. Article 254(1), s. Article 254(2), s. Article 366(10), s. Article 372
Presidency Small Cause Courts Act, 1882
Public Premises (Eviction of Unauthorised Occupants) Act, 1971
Transfer of Property Act, 1882

Subjects

Article 254Presidential assentRepugnancyConcurrent ListState legislation vs Parliament legislationJudicial reviewFundamental rightsArticle 19Temporary legislationExtension of Acts

Judgment

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

SEPTEMBER 25, 2002
B
[G.B. PATTANAIK, M.B. SHAH, DORAISWAMY RAJU, S.N.
VARIA VA AND D. M. DHARMADHJKARI, JJ]

Constitution of India, 1950-Artic/e 254(2):
c
Inconsistency between proposed State laws and earlier laws made by
parliament-Grant of 'assent' by President to State legislation-Contention
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.
E
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 of-
Discussed '

Assent to legislations given by President whether given qua the F
repugnancy between State legislation and earlier law made by Par/iament-
Justiciahility 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. H
555
556 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A Extension of temporary enactment if amounting to enactment of new t:
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 r
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.
)
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.
G
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)

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 t
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
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
F
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. G
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
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
In
general assent. 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 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.

D 2. It cannot be held that because summary procedure under P.P. Eviction
Act is prescribed for evicting the tenants or unauthorized occupants or sub-
tenants, 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
B
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
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
there is no question of applying the said part of Article 254(1).
D (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: ' 563
of underlying Article 254(2). [601-D-G) 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)

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.
c 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 post-
constitutional 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:

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
B 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
c 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)?

(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
E 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
F 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?
G
(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?
H
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. Ia substance,
it has been contended by the learned senior counsel Mr. Nariman that since
1947, the Bombay Rent Act is extended from time to time and on each
occasion assent of the President is received. Once assent of the President is
obtained, the Bombay Rent Act prevails in the State of Maharashtra and not
p the P.P. Eviction Act. He further submitted that once the assent is received,
it is not open to the Court to go behind the said 'assent' and arrive at the
conclusion that President's assent is given qua repugnancy of a particular law
or !aws, made by the Parliament, such as, Transfer of Property Act and Indian
Contract Act. He also submitted that giving of assent by the President is law
making process and the steps taken in such process cannot be examined by
G the Court. Advisors of the President would point out the relevant laws on the
subject and if the assent is unconditional or unrestricted, the law or laws of
the Parliament on the subject have to give way to the State legislation. It is
his contention that 'assent' given by the President is not subject to judicial
review. In any .case, there was no reason for the High Court to summon the
H file submitted before the President before grant of assent.
I KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH. J.] 571
As against this, learned Addi. Solicitor General Mr. Altaf Ahmad, learned A
senior counsel Mr. T.R. Andhyarujina, Mr. Sudhir Chandra and learned counsel
Mr. C. Ravichandran Iyer submitted that before granting 'assent', the President
has to consider specific provisions of the State legislation which are repugnant
to the provisions of an earlier or existing law made by the Parliament. Before
granting assent, the President has to apply his mind to the proposed State
law and the law made by the Parliament. The consideration would be restricted B
to the proposal made by the State Government and President's assent would
only be with regard to the laws specified therein. For this, proposal made by
the State Government for obtaining assent is required to be looked into and
that has been done in almost all such cases. It has also been submitted as
under:- c
(a) That the assent of the President given to the Extension Acts of
1981 and 1986 of the Bombay Rent Act, 1947 was only for the
limited purpose of repugnancy to the Transfer of Property Act,
1882 and the Presidency Small Cause Courts Act, 1882. There is
no assent applicable to the P.P. Eviction Act. D
(b) The High Court committed an error in holding that Bombay Rent
Act was extended by Act 10 of 1981 and by Act 16 of 1986 and,
therefore, the Bombay Rent Act must be considered to be a new
law and the P.P. Eviction Act is the earlier law, for the purpose
of Article 254(2). E
(c) In the alternative, in any case the assent given to the Extension
Acts of 1981 and 1986 is also limited to specified repugnancies
to the Transfer of Property Act and to the Presidency Small
Cause Courts Act. For this purpose, the High Court rightly referred
to the documents tendered as Ex.F collectively. These documents F
were allowed to be exhibited without objection by the appellants
herein.
(d) The phrase "reserved for the consideration of the President"
under Article 254(2) implies that the State has to draw the attention
of the President to the particular repugnancy arising between G
specified Central Laws and the contemplated State legislation
requiring consideration of the President for obtaining his assent.

Essentials of Article 254

For deciding the controversy, we would first refer to Article 254, which
~s~: H
572 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A "254. Inconsistency between laws made by Parliament and laws made
by the Legislatures of States. (I) If any provision of a law made by
the legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters
enumerated in the Concurrent List, then, subject to the provisions of
B clause (2), the law made by Parliament, whether passed before or
after the law made by the legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by the
legislature of the State shall, to the extent of the repugnancy, be
void.
c 2. Where a law made by the Legislature of a State with respect to one
of the matters enumerated in the Concurrent list contains any
provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter, then, the law
so made by the Legislature of such State shall, if it has been reserved
D for the consideration of the President and has received his assent,
prevail in that State:"

Provided that nothing in this clause shall prevent Parliament from
enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature
E of the State."
[Emphasis supplied]

It is apparent that language of Clause (I) of Article 254 gives supremacy
to the law made by the Parliament, which Parliament is competent to enact.
It inter a/ia provides [subject to the provisions of Clause (2)] that-
F
(a) if any provision of law made by the Legislature of State is
repugnant to any provision of a law made by the Parliament,
which the Parliament is competent to enact, then the law made
by the Parliament whether passed before or after the law made
by the Legislature of such State shall prevail and the law made
G by Legislature of the State shall, to the extent of repugnancy, be
void; or
(b) if any provision of a law made by the legislature of State is
repugnant to any prevision of an existing law with respect to one
of the matters enumerated in the Concurrent List, then the existing
H law shall prevail and the law made by the legislature of the State
J KAISER-I-HIND PVT. LTD. v. N.T.C. (M.B. SHAH, J.] 573

shall, to the extent of repugnancy, be void. A
For the purpose of the present case, Clause (2) requires interpretation,
which on the analysis provides that where a law:

(a) made by the legislature of a State;
(b) with respect to one of the matters enumerated in the Concurrent B
List;
(c) contains any provision repugnant to the provisions of an earlier
law made by the Parliament or existing law with respect to that
matter;

then, the law so made by the legislature of the State shall -
c
(!) if it has been 'reserved for consideration of the President'; and.
(2) has received 'his assent';

would prevail in that State. D
Hence it can be stated that for the State law to prevail, following
requirements must be satisfied
r
(I) law made !>Y the legislature of a State should be with respect to
one of t,he matters enumerated in the Concurrent List; E
(2) it contains any provision repugnant to the provision of an earlier
law made by the Parliament or an existing law with respect to that
matter;
(3) the law so made by the Legislature of the State has been reserved
for the consideration of the President; and F
(4) it has received 'his assent'.

In view of aforesaid requirements, before obtaining the assent of the
President, the State Government has to point out that the law made by the
State legislature is in respect of one of the matters enumerated in the Concurrent G
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 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 H
574 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A and circumstances of the matter, which is repugnant to a law enacted by the
Parliament prevailing in a State. The word 'consideration' would manifest that
after careful thinking over and due application of mind regarding the necessity
of having State Jaw which is repugnant to the law made by the Parliament,
the President may grant assent. This aspect is further reaffirmed by use of
B word "assent" in Clause (2), which implies knowledge of the President to the
repugnancy between the State law and the earlier Jaw 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.

c different
The learned counsel Mr. Ravichandran has rightly pointed out the
meanings given to the word "assent" in various dictionaries, which
are as under: -

Corpus Juris Secundum -

D Assent-( As a Noun) A passive act of concurrence; the act of the mind
in admitting or agreeing to anything; the act of agreeing or consenting to
accept some proposition; and, by context, "acceptance''. It also has been
defined as agreement or approval; ............" Assent" implies knowledge of some
kind in the party assenting to that to which he assents; also permission on
the part of the party assenting; .............. As used in some statutes, however,
E the term has been held to require affirmative, positive action on the part of
the party assenting. It has been said that the term indicates the meeting of
the minds of the contracting parties, and that the word is applicable only to
conduct before or at the time of the doing of an act and hence does not
include an approval after the commission of an act.. ..
F Assent-(As a Verb)-The verb implies affirmative action of some sort
as distinguished from mere silence and inaction; and has been defined as
meaning to accept, agree to, or consent, to accord, agree, concede, or yield;
to express an agreement of the mind to what is alleged or proposed; to
express one's agreement, acquiescence, or concurrence; also to admit a thing
G as true; to approve, ratify, or confirm; and sometimes to authorize or empower.
Shorter Oxford Dictionary -

Assent~The concurrence of the will, compliance with a desire. 2. Official,
judicial, or formal sanction; the action or instrument that signifies such
H sanction ME. 3. Accord. 4. Opinion. 5. Agreement with a statement, or matter
KAISER-I-HIND PVT. LTD .. v. N.T.C. [M.B. SHAH, J.] 575
of opinion; mental acceptance. A
Bouvier's Law Dictionwy

Assent-Approval of something done. An undertaking to do something
in compliance with a request
B
Law Lexicon of British India by P. Ramanatha Aiyar

Assent-The act of the mind in admitting or agreeing to the truth of a
proposition proposed for acceptance; consent, agreeing to;· to admit, yield,
or concede: to express an agreement of the mind to what is alleged or
proposed, (as) Royal assent or Viceroy's assent to an enactment passed in C
the Legislative Assembly; Executor's assent to a legacy; assent of a
corporation to bye-laws.

Royal Assent, in England, the approbation given by the Sovereign in
P.arliament to a bill which has passed both houses, after which it becomes law. D
This assent may be given in two ways; (a) in person, when the Sovereign
comes to the House of Peers, the Commons are sent for, and the titles of all
the bills which have passed are read The royal assent is declared in Norman-
French by the Clerk of the Parliament. (b) By letters patent, under the great
seal signed by the Sovereign, and notified in his or her absence.
E
Websters' 3rd New International Dictionary (Vol.I)

Assent-I. common accord : general approval c: concurrence with
approval: 2 :the accepting as true or certain of something (as a doctrine or
conclusion) proposed for belief
F
Random House Dictionary

Assent-To agree or concur; subscribe to (often fol. By to): to assent
to a statement. 2. To give in; yield; concede; Assenting to his demands, she
did as she was told - n. 3. Agreement, as to a proposal; concurrence. 4. G
Acquiescence; compliance.

Words & Phrases Judicial Dictionary Mitra

Assent-Assent means agreeing to or recognizing a matter ... etc.
Wharton's Law Lexicon. H
576 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Applyir.g the aforesaid meaning of the word 'assent' and from the
phraseology used in Clause (2), the object of Article 254(2) appears that even
though the law made by the Parliament would have supremacy, after considering
the situation prevailing in the State and after considering the repugnancy
between the State legislation and earlier law made by the Parliament, the
B President may give 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
C amount to accepting or 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 President. The 'consideration'
could only be to the proposal made by the State.
D
This aspect has been succinctly stated at the earliest by Chagla, CJ,
in Basantlal Banarsilal v. Bansilal Dagdulal, AIR (1955) Bombay 35 as
under:

"The principle underlying this clause is clear, viz., that the
E President should apply his mind to what Parliament has enacted
and also consider the local conditions prevailing in a particular
State, and if he is satisfied that judging by the local conditions a
particular State should be permitted to make a provision of law
different from the provision made by Parliament, he should give his
F assent and thereupon the State legislation would prevail. "

[Emphasis supplied]

Further, in Gram Panchayat of Village Jamalpur v. Ma/winder Singh
and Ors., [1985] 3 SCc'661 relevant at 669, this Court has also held that the
G assent of the President under Article 254(2) of the Constitution is not a matter
of idle formality and the President has at least to be apprised of the reason
as to why his assent is sought and the special reason for doing so.

Mr. Nariman, learned senior counsel submitted that when the President
has given assent to a State legislation, the Court cannot call for the files to
H find out whether the assent was limited to repugnancy between the State
KAISER-I-HIND PVT.LTD. v. N.T.C. [M.B. SHAH, J.] 577

l!!gislation and laws mentioned therein. A
It is true that President's assent as notified in the Act nowhere mentions
that assent was obtained qua repugnancy between the State legislation and
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. As discussed above, before grant of B
the assent, consideration of the reasons for having such law is necessary and
the consideration would mean consideration of the proposal made by the
State for the law enacted 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 law and law or laws specified in the C
said proposal, then it cannot be said that the assent was granted qua the
repugnancy between the State law and other laws for which no assent was
sought for. Take for illustration that a particular provision, namely, Section 3
of the State law is repugnant to enactment 'A' made by Parliament; other
provision namely Section 4 is repugnant to some provisions of enactment 'B'
made by Parliament and Sections 5 and 6 are repugnant to some provisions D
of enactment 'C' and the State submits proposal seeking 'assent' mentioning
repugnancy between State law and provisions of enactments 'A' and 'B'
without mentioning anything with regard to enactment 'C'. In this set of
circumstances, if the assent of the President is obtained, the State law with
regard to enactments 'A' and 'B' would prevail but with regard to 'C', there
E
is no proposal and hence there is no 'consideration' or 'assent'. Proposal by
the State pointing out repugnancy between the State law and of the law
enacted by the 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 Fresident is restricted or unrestricted,
the letter written or the proposal made by the State Government for obtaining F
'assent' is required to be looked into.

We would also make it clear that in all the decisions relied upon,
wherein such question was raised, this Court has referred to the correspondence
made by the State Government for obtaining the assent of the President to
find out whether the assent was with regard to repugnancy between the State G
legislature and particular enactment of the Parliament. For this purpose, we
would straightway refer to the decision in Gram Panchayat 's case (supra),
wherein the Court considered the alleged repugnancy between the
Administration of Evacuee Property Act of 1950 and the Punjab Common
Lands (Regulation) Act of 1953. The controversy was between the right of H
578 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Gram Panchayats (eight petitioner-panchayats) to the Shamlat-deh lands
situated in those villages which fell within their jurisdiction and the right of
Rehabilitation Department of the Central Government to allot lands of that
description to the extent of evacuee interest therein to persons who migrated
from Pakistan to India after pa11ition of the country. Under the provisions of
the Punjab Act, the land on the specified day vested in the Panchayat having
B jurisdiction over the village. Under Section 8(2) of the Central Act, namely,
Administration of Evacuee Property Act, 1950, evacuee property is deemed
to have been vested in the custodian. The Court thereafter considered Article
254 and observed that Punjab Act was reserved for consideration of the
President and received his assent on December 26, 1953. Prima facie, by
C reason of the assent
I
of the President, the Punjab Act would prevail in the
State of Punjab over the Act of the Parliament and the Panchayats would be
at liberty to deal with the Shamlat-deh lands according to the relevant Rules
or bye-laws governing the matter, including the evacuee interest therein. In
that case also the High Court of Punjab had adjourned the matter to enable
the State Government to place material before the Court showing the purpose
D for which the Punjab Act of I 953 was forwarded to the President for his
assent. As per the record of that case, the Act was not reserved for the assent
of the President on the ground that it was repugnant to the earlier Act passed
by the Parliament, namely Central Act of I 950. The Court thereafter pertinently
held thus:
E " ........ The record shows, and it was not disputed either before us or
in the High Court, that the Act was not reserved for the assent of the
President on the ground that it was repugnant to an earlier Act passed
by the Parliament, namely, the Central. Act of 1950. In these
circumstances, we agree with the High Court that the Punjab Act of
F 1953 cannot be said to have been reserved for the assent of the
President within the meaning of clause (2) of Article 254 of the
Constitution insofar as its repugnancy with the Central Act of 1950
is concerned. The assent of the President under Article 254(2) of the
Constitution is not a matter of idle formality. The President has, at
feast, to be apprised of the reason why his assent is sought, if there
G is any special reason for doing so. If the assent is sought and given
in general terms so as to be effective for all purposes, different
considerations may legitimately arise. But if, as in the instant case, the
assent of the President is sought to the Law for a specific purpose,
the efficacy of the assent would be limited to that purpose and cannot
H be extended beyond it. Not only was the President not apprised in
KAISER-I-HIND PVT. tTD. v. N.T.C. [M.B. SHAH, J.] 579

the instant case !hat his assent was sought because of the repugnancy A
between the Stale Act and the pre-existing Central Act on the vesting
of evacuee properties but, his assent was sought for a different,
specific purpose altogether. Therefore, that assent cannot avail the
State Government for the purpose of according precedence to the law
made by the State Legislature, namely, the Punjab Act of 1953, over
the law made by the Parliament, even within the jurisdiction of the B
State."

We are in entire agreement with the aforesaid enunciation of law with
regard to interpretation of Article 254(2) of the Constitution. In P.N. Krishna
Lal and Ors. v. Govt. of Kera/a and Anr., (1995) Supp. 2 SCC I87 this Court C
has relied upon the aforesaid decision.

The learned senior counsel Mr. Nariman next submitted that the assent
given by the President is not justiciable and placed reliance on decision of
this Court in Bharat Sevashram Sangh and Ors. v. State of Gujarat and Ors.,
(1986) 4 sec 51, wherein this Court observed thus: D
" ....... it cannot be said that the assent which was given by the President
was conditional. The records relating to the above proceedings were
also made available to the court. On going through the material
placed before us we are satisfied that the President had given assent
to the Act and it is not correct to say that it was a qualified assent. E
The Act which was duly published in the official Gazette contains the
recital that the said Act had received the assent of the President on
September 28, 1973. Moreover, questions relating to the fact whether
assent is given by the Governor or the President cannot be agitated
also in this manner. In Mis Hoechst Pharmaceuticals Ltd. v. State of F
Bihar, [1983) 4 SCC 45, this Court has observed thus

We have no hesitation in holding that the assent of the President
is not justiciable and we cannot spell out any infirmity arising out
of his decision to give such assent.

The above contention relating to the assent given by the President G
is, therefore, rejected."

In the aforesaid decision also the records relating to assent were made
available to the Court and on going through the material placed before it, the
Court was satisfied that the President had given assent to the Act and it was
incorrect to say that it was qualified assent. In Mis. Hoechst Pharmaceuticals H
580 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Ltd. and Ors., v. State of Bihar and Ors., [J983] 4 SCC 45 relevant para 84)
this Court held thus:

"84 ........ That being so, the decision in The Cheng Poh alias Char
Meh v. Public Prosecutor, Malaysia, [J 980] AC 458 is not an authority
for the proposition that the assent of the President is justiciable nor
B can it be spelled out that the court can enquire into the reasons why
the Bill was reserved by the Governor under Article 200 for the assent
of the President nor whether the President applied his mind to the
question whether there was repugnancy between the Bill reserved for
his consideration and received his assent under Article 254(2)."
c The Court further observed:

" ..... We have no hesitation in holding that the assent of the
President is not justiciable, and we cannot spell out any infirmity
arising out of his decision to give such assent."
D Jn our view, for finding out whether the assent was given qua the
repugnancy between the State legislation and the earlier law made by the
Parliament, there is no question of deciding validity of such assent nor the
assent is subjected to any judicial review. That is to say, merely looking at
the record, for which assent was sought, would not mean that ,1he Court is
E deciding whether the assent is rightly, wrongly or erroneously granted. The
consideration by the Court is limited to the extent that whether the State has
sought assent qua particular earlier Jaw or laws made by fhe Parliament
prevailing in the State or it has sought general assent. Jn such case, the Court
is not required to decide the validity of the 'assent' granted by the President.
In the present case, the assent was given after considering extent and nature
F of repugnancy between the Bombay Rent Act and Transfer of Property Act
as well as the Presidency Small Cause Courts Act. Therefore, it would be
totally unjustified to hold that once the assent is granted by the President,
the. State law would prevail qua earlier other law enacted by the Parliament
for which no assent was sought for nor which was reserved for the
G consideration of the President.

The learned senior counsel for the appellant further referred to the
decision of Madras High Court in Mis Bapalal and Co. v. P. Thakur{ias and
Ors., AIR (1982) Madras 399, wherein the Court held thus:

H " ........ In this case the assent is sought to be invalidated on the
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH, J.] 581

ground that the President was not made aware of the repugnancy A
between the proposed State Law (Rent Control Act) and the existing
Central Law (the Transfer of Property Act) in Ex.P.12, which does not
indicate the extent to which the State law is repugnant to the earlier
existing Central Law. It is said that in this case Ex.P.12 does not
exactly indicate how far the proposed State Act is repugnant to the B
provisions of the existing Central law and any assent given without
considering the extent and the nature of the repugnancy should be
.... taken to be no assent at all. However, a perusal ofEx.P.12 shows that
S.10 of the Act has been referred as a provision which can be said
to be repugnant to the provisions of the Civil Procedure Code and the
Transfer of Property Act which are existing laws on the concurrent C
subject. Further, a copy of the Bill has been reserved for the
consideration of the President under Art. 254(2) of the Constitution.
Therefore, even if the State Legislature did not point out the provisions
of the Bill which are repugnant to the existing Central Law, the
President should be presumed to have gone through the Bill to see
whether any of the provisions is repugnant to the Central Law and D
whether such a legislation is to be permitted before giving assent to
the Bill. Merely because the State Government when seeking the
assent of the President does not indicate the exact provisions which
are repugnant to the earlier Central Law under Concurrent List, the
assent given by the President cannot be said to be invalid. According E
to the learned Advocate-General inconsistency between the proposed
law and the existing Central Law has been pointed out under Ex.P. I 2,
and the Bill has been sent for scrutiny and that the Central Government
should be taken to know its job while considering the question as to
whether the assent is to be given or withheld, and, therefore, there is
no room for any contention that the assent in this case is not valid." F
In that case, the Court also observed thus:-

"The assent given by the President to the Tamil Nadu Buildings
(Lease and Rent Control) Act of 1960 cannot be held to be invalid for
two reasons (i) the inconsistency between the State Law and the G
Central Law on the subject was in fact pointed out while seeking the
assent of the President and (ii) even otherwise the Bill having been
sent for the scrutiny of the President, the President should be taken
to have scrutinised the bill before giving his assent with the assistance
of his legal advisers."
H
582 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A In this case, we have made it clear that we are not considering a
question that the assent of the President was rightly or wrongly given. We
are also not considering the question that whether 'assent' given without
considering the extent and the nature of the repugnancy should be taken as
no assent at all. Further, in the aforesaid case, before Madras High Court, also
the relevant proposal made by the State was produced. The Court had
B specifically arrived at a conclusion that Ex.P.12 shows that Section IO of the
Act has been referred to as the provision which can be said to be repugnant
to the provisions of Code of Civil Procedure and the Transfer of Property Act,
which are existing laws on the concurrent subject. After observing that, the
..
Court has raised the presumption. We do not think that it was necessary to
C do so. In any case as discussed above, the essential ingredients of Article
254(2) are - (I) mentioning of the entry/entries with respect to one of the
matters enumerated in the Concurrent List; (2) stating repugnancy to the
provisions of an earlier law made by the Parliament and the State law and
reasons for having such law; (3) thereafter it is required to be reserved for
consideration of the President; and (4) receipt of the assent of the President.
D
In this view of the matter, it cannot be said that the High Court committed
any error in looking at the file of the correspondence Ex.F collectively for
finding out - for what purpose 'assent' of the President to the Extension of
Acts extending the duration of Bombay Rent Act was sought for and given.
E After looking at the said file, the Court considered relevant portion of the
letter, which referred to the Bill passed by the Maharashtra Legislative Council
and the Maharashtra Legislative Assembly e'xtending the duration of the
Bombay Rent Act for 5 years from 1st April, 1986. The letter stated: "As the
provisions of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 are repugnant to the provisions of the Transfer of Property Act,
F 1882 and the Presidency Small Cause Courts Act, 1882, which are the existing
laws relating to entries 6, 13 and 46 in the Concurrent Legislative List, and
as Clause 2 of the Bill is intended to extend the life of the principal Act for
a period of five years, it is necessary to reserve the Bill for the consideration
and assent of the President with reference to Article 254(2) of the Constitution
of India. The Governor has reserved the Bill for the consideration of the
G President under Article 200 of the Constitution of India." A telegraphic
message dated 25th February, 1986 sent by the Special Commissioner, New
Delhi, addressed to two Secretaries of the State of Maharashtra and the
Secretary to the Governor of the State of Maharashtra shows that the President
accorded his assent to this Bill on 23rd February, 1986. Thereafter, the Court
H rightly relied upon the decision in Gram Panchayat 's case (supra) for arriving
KAISER-I-HIND PVT.LTD. v. N.T.C. [M.B. SHAH, J.] 583

at the conclusion that the assent of the President was sought to the Extension A
Acts for the purpose of overcoming its repugnancy between the Bombay
Rent Act on the one hand and the Transfer of Property Act and the President
Small Cause Courts Act on the other. The efficacy of the President's assent
was limited to that purpose only. Therefore, the P.P. Eviction Act would
prevail and not the Bombay Rent Act.
B
We further make it clear that granting of assent under Article 254(2) is
not exercise of legislative power of President such as contemplated under
Article I 23 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. C
Finally, we would observe that the challenge of this nature could be
avoided if at the commencement of the Act, it is stated that the Act has
received the assent with regard to the repugnancy between the State Law and
specified Central law or laws.
D
Whether extension of temporary enactment amounts to enactment of
new law?

Or

Is it an extension of existing law? E
Submissions-

Learned senior counsel, Mr. Nariman, submitted that the Bombay Rent
Act, 194 7 was enacted by the Bombay Legislature and received the assent
of the Governor General on 13th January, 1948. It was published in the official F
gazette on 19th January, I 948 under Section 107 of the Government of India
Act, 1935. It prevails over all Central Acts to the extent of any repugnancy
between the Rent Act and the relevant Central Acts. It was a temporary law
as provided in Section 2 and it was to remain in force up to 31st day of March,
1950. The said period was extended up to 3 I st March, 1952. It is also pointed G
out that after the Constitution, the Bombay Amending Act 43 of 1951 extended
and amended the Bombay Rent Act by providing that it was extended from
31st March, I 952 to 3 lst March, 1953. It received Presidential assent under
Article 254(2) read with Article 20 I, since it was reserved by the Governor for
Presidential Assent-which could only be if it was treated as enacting a
substantive law repugnant to existing Central law (e.g. the Transfer of Property H
584 SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A Act 1882): otherwise a mere extension Act only required Governor's assent.
It is also pointed out that on 31st March, 1970, the operation of the
Bombay Rent Act was extended by Maharashtra Act No.12 of 1970 up to 3 Ist
March, 1973, and thereafter by Maharashtra Act No.17 of 1973 up to 31st .,
March, 1976, by Maharashtra Act No.4of1976 up to 31st March, 1977, by
B Maharashtra Act No.8 of 1977 up to 31st March, 1978, by Maharashtra Act
No.67 of 1977 up to 31st March, 1979, by Maharashtra Act No.3 of 1979 up
to 31st March, 1981, by Maharashtra Act No.16 of 1981 up to 31st March,
1986, and by Maharashtra Act No.JO of 1986 up to 31st March, 1991.
..
C It is further submitted that the necessity of passing Bombay Amending
Act 43 of 1951 was because the Bombay Rent Act was not an "existing law"
which continued after the commencement of the Constitution by force of
Article 372 read with Article 366 (I 0). For this purpose, he referred to Article
366(10) and relevant part of Article 372 of the Constitution. Article 366 (10)
reads thus:
D
"366. Definitions.-ln this Constitution, unless the context otherwise
requires, the following expressions have the meaning hereby
respectively assigned to them, that is to say: -

(I 0) existing law" means any law, Ordinance, order, bye-law, rule
E or regulation passed or made before the commencement of this
Constitution by any Legislature, authority or person having power to
make such a law, Ordinance, order, bye-law, rule or regulation."

Relevant part of Article 372 and Explanation III thereto read thus: -

F "3 72. Continuance in force of existing laws and their adaptation:-
(1) Notwithstanding the repeal by this Constitution of the enactments
referred to in Article 395 but subject to the other provisions of this
Constitution, all the laws in force in the territory of India immediately
before the commencement of this Constitution shall continue in force
therein until altered or repealed or amended by a competent Legislature
G or other competent authority.

Explanation-Ill-Nothing in this 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 if this Constitution
H had not come into force."
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH . .J.] 585

There is nothing in Explanation Ill to Article 372 which even remotely A
suggests that it is restricted to the provisions of that Article alone. On the
contrary it is of general application, i.e., it applies to all temporary enactments
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 B
law in force, beyond the date fixed for its expiration.

It is submitted that thus on a conjoint reading of Article 372(1) and
Explanation III thereof, read with A1iicle 366(10) it is clear that the Constitution
did not envisage or provide for the continuance in force of existing laws if C
such existing laws were only temporary laws. Such temporary laws continued
in force only till the date fixed for their expiration; alternatively, till the date
on which they would have expired if the Constitution had not come into force.

It is his submission that being a temporary law in force till 31st March,
1952, the Bombay Rent Act, 1947 could not have continued after 31.3.1952 D
unless re-enacted and the words 'existing law' and 'law in force' are inter-
changeable. For this purpose, he relied· upon the decision in Keshavan
Madhava Menon v. The State of Bombay, [1951] 2 SCR 228. He also relied
upon the State of Bombay v. Heman Sant/al Alreja, AIR (1952) 39 Bombay
16, wherein Chag/a, CJ observed thus:
E
"In Keshavan Madhava Menon v. The State of Bombay, [1951] 2 SCR
228, Mr. Justice Das says (P. 234) :

"....... What Article 13(1) provides is that all existing laws which clash
with the exercise of the fundamental rights (which are for the first time
created by the Constitution) shall to that extent be void. F
Now it may be remembered that the expression used in Article
13(1) is "laws in force" and not "existing laws" and yet the learned
Judge reads that expression as meaning "existing laws". Frankly the
point is not free from difficulty or doubt, but on the whole we have
come to the conclusion that in the Constitution the expressions G
"existing laws" and "laws in force" have been used without any
distinction or difference."

For deciding the aforesaid submissions, we would deal with the same
as under: -
H
586 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A I. Effect of Article 254( I) on the Bombay Rent Act after enactment
of the P.P. Eviction Act in 1971.

II. Legislative intent while extending the duration of Bombay Rent
Act.·

B Ill. Whether it can be deemed to be a new enactment?

Re.I. (Article 254(!)] :-

It is to be stated that the P.P. Eviction Act received the assent of the
President on 23rd August, I97 I but is deemed to have come into force on
-
C September 16, 1958. This is provided in sub-section (3) of Section 1, which
reads thus: -

"I. Short title, extent and commencement.

(I) - (2)
D
(3) It shall be deemed to have come into force on the 16th day of
September, I 958 except Sections 1I, 19 and 20 which shall come ;
into force at once."

Once the P.P. Eviction Act is enacted then Bombay Rent Act would not
E prevail qua the repugnancy between it and the P.P. Eviction Act. To the extent
of repugnancy, the State law would be void under Article 254(1) and the law
made by the Parliament would prevail. Admittedly, the duration of the Bombay
Rent Act was extended up to 31st March, 1973 by Maharashtra Act No. 12
of I 970. The res.ult would be from the date of the coming into force of the
P.P. Eviction Act, the Bombay Rent Act qua the properties of the Government
F and Government companies would be inoperative. For this purpose, language
of Article 254( I) is unambiguous and specifically provides that if any provision
of law made by the Legislature of State is repugnant to the provision of law
made by the Parliament, then the law made by the Parliament whether passed
before or after the law made by the Legislature of the State, would prevail.
G It also makes it clear that the law made by the Legislature of the State, to the
extent of repu'gnancy, would be void.

Hence, once the P.P. Eviction Act came into force w.e.f. 23rd August,
I 97 I, 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 254( I), the Jaw made
H by the Parliament would prevail.
KAISER-I-HIND PVT.LTD. v. N.T.C. [M.B. SHAH. J.] 587
Re. (fl) and (I!f): - A
The next question is - what is the effect of extension of the Bombay
Rent Act from time to time after 3 I st March, I 973 - whether it can be held
that there was new enactment (new Bombay Rent Act)? Or whether the
Bombay Rent Act which was for a temporary period continues by the Act by
which its duration or life is extended? After 1970, the next extension is given B
by Maharashtra Act No. 17of1973. Section 4 of the said Act only substitutes
the figures '1973' by figures '1976' meaning thereby the duration of the
Bombay Rent Act is extended up to 1976. It is equally true that by the said
Act, licensees are also given protection of the Rent Act and correspondingly
Bombay Rent Act is amended. Some other minor amendments are also provided. C
·However, it nowhere provides that notwithstanding anything contained in the
P.P. Eviction Act, the Rent Act would prevail qua the properties owned by
the Government companies/corporations etc.

Thereafter, last extension for our consideration in these matters would
be Maharashtra Act No.16 of ! 986 and the relevant provisions thereof are as D
under:

I. This Act may be called the Bombay Rents, Hotel and Lodging
House Rates Control (Extension. of Duration) Act, 1986;
2. In se~tion 3 of the Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947, in sub-section (2), for the figures "1986" E
the figures "199 l" shall be substituted."

From the aforesaid language used by the State Legislature, it is crystal
clear that Legislature considers this as extension of the duration of Bombay
Rent Act and not enactment of new law or re-enactment of the law in force.
The phraseology used by the Legislature is only "extension of duration''. F

Learned senior counsel for the appellants submitted that for extension
of the Act also the assent of the President is taken and, therefore, it would
amount to re-enactment of the existing law or enacting the new law. In our
view, merely because assent of the President is taken, as it is required to be G
taken, it would not mean that there is new enactment. For extending the
duration of the temporary Legislation the assent of the President is required,
otherwise in case of repugnancy law enacted by the Parliament would prevail.

On the question whether extension of duration of the law which is in
force amounts to re-enactment of a law or passing of a new Act, the learned H
588 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A counsel for the parties at the time of hearing of this matter referred to
decisions in The State of Bombay v. Heman Sant/a/ Alreja, AIR 39 (1952)
Bombay 16, Mangtulal and Anr. v. Radha Shyam and Anr., AIR (1953) Patna
14, Basantlal Bansilal v. Bans ii al Dagdulal, AIR ( 1955) Bombay 35, State of
Vilar Pradesh v. The Benaras Electric Light and Po1\'er Co. ltd. and Anr.,
B AIR (1973) Allahabad 74 and Kerct!a State Electricity Board v. The Indian
Aluminium Co. ltd., (1976] 1 SCC 466.

In Heman Sant/a/ 's case (supra) Chagla, CJ dealt with a question whether
the Bombay Land Requisition Act, 1948 provided for requisitioning the premises
was a temporary statute. The duration of the said law was extended from 31st
C March, 1950 to 31st March, 1952 and in that context Court observed that
when an Act is passed extending the duration of some law, it cannot be said
that new law was created. The old law already on the statute book continues.
For this proposition, relevant discussion is as under-

"15. The authorities also draw a distinction between the repeal of
D an old Act and the re-enacting of a new Act and the extension of an
old Act. When an Act is passed extending the duration of some law,
it cannot be said that some new law was created. The old law already
on the statute book continues. Our attention was drawn to an American
case which is relevant on the point. In United States v. Powers, (1938)
307 USR 1245 the Connally Act of 22.2.1935, originally provided that
-
E it should cease to be in effect on 16.6.1937, but it was extended prior
to 16.6.1937 to 30.6.1939, and the Supreme Com1 of America held that
the amended Act authorised a prosecution for violations committed
prior to 16.6.1937, under an indictment returned subsequent thereto
but prior to 30.6.1939. In the judgment of Douglas J., it is stated
F (p.1248)

'" ...... Due to the amendment, the Act has never ceased
to be in effect. No new law was created; no old one was
repealed. Without hiatus of any kind, the original Act was
given extended life."
G It is true that in this case the amending Act did not in any way alter
the substantive provisions of the original Act. But, as I said before, we are
only considering the effect of Act ll (2) of 1950 to the extent that it extends
the duration of Act XXXIll (33) of 1948. Even temporary statutes which are r
made perpetual by subsequent Acts become perpetual not from the date of
H the subsequent Act but ab initio.See Halsbury, Vol.31 p.512, Art. 665. And
KAISER I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH, J.) 589

Maxwell on Interpretation of Statutes, Edn.9, p.406, states the law thus: A
"If a temporary Act be continued by a subsequent one,
or an expired Act be revived by a later one, all infringements
of the provisions contained in it are breaches of it rather
than of the renewing or reviving statutes."
B
Therefore, to the extent that the Legislature enacted S.2 of Act II (2)
of 1950, it did not put on the statute book any new legislation. The
old law instead of expiring on 31.3.1950, continued till 31.3.1952."

We agree with the aforesaid observations. In case of a temporary statute
when the Act is passed extending the duration of the said statute, it cannot C
be said that some new Act was created. The old law continues. Result is -
duration or life of old temporary statute is extended for a further period. As
observed by Douglas, J., the Act never ceased to be in effect and the original
Act was given extended life. Similarly, Craies on Statute Law (7th Edn. Page
No. 408) defines 'commencement' as - if an Act is in the first instance
temporary, and is continued from time to time by subsequent Acts, it is D
considered as a statute passed in the session when it was first passed, and not
as a statute passed in.the session in which the Act which continues its operation
was passed.

In the aforesaid case, the Court also considered the phrase "existing E
law" as defined under Article 366 (I 0) and observed that in order that a law
should be an existing law, the only qualification laid down by the Constitution
is that it should have been passed before the commencement of the Constitution
by any legislature, authority or person having power to make such a law and,
therefore, the Bombay Land Requisition Act was existing law. The Court,
therefore, held that the Legislature when passed Act 2 of 1950 which extended F
the duration of the existing law, was not making any law contrary to the
provisions of Article 31 (2) and it had been saved by Article 31 (5)(a).

However, learned senior counsel Mr. Nariman submitted that in
Basantlal Banarsilal 's case (supra), the Court distinguished its earlier decision
rendered in Heman Sant/a/ 's case (supra). In that case, the Court was G
considering the provisions of Bombay Forward Contracts Control Act, 1947.
1
Section 8 of that Act declared forward contracts of any goods specified in a
notification to be issued under Section 1(3) to be illegal, if these were not
entered into, made or performed in the manner laid down in that Section. The
Court was also required to consider the provisions of the Essential Supplies H

1
590 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A (Temporary Powers) Act, which would have expired on 1.4.1951 but for the
fact that Article 369 of the Constitution gave to the Parliament during a
period of five years from the commencement of the Constitution, the power
to make laws with respect to certain matters enumerated in the Concurrent
List, and in exercise of the power, the original Essential Supplies Act with
certain important amendments was continued up to 31st December, 1952.
B While dealing with the contention that Bombay Forward Contracts Control
Act being a legislation passed by the State, it would prevail in view of Article
254, the Court considered Article 254 and observed thus:

" ..... if the State legislature passes a law subsequent to the law passed
by the Parliament and the State Legislature wants in any way to
c depart from the provisions of the law as laid down by the Parliament,
it could do so, "provided it satisfies the condition, viz., that it reserves
the bill for the consideration of the President and the President give
his assent."

D Thereafter, the Court considered the contention that once the Bombay
Forward Contracts Control Act passed in 194 7 and received the assent of the
Governor General, there is no subsequent legislation which has altered the
position with regard to the prohibition against entering into forward contracts
in the State of Bombay. The Court also considered the contention that whether
the extension given to the Essential Supplies (Temporary Powers) Act, was
E mere continuation of the Old Act or not. In that context, the Court referred
to Heman Santlal's case and observed that it is difficult to accept the view
that Act 52 of 1950 is merely extension of Essential Supplies Act, 1946,
firstly because it is an Act passed for the purpose of amending the Act of
1946 and in the body of this, there were many provisions which substantially
amended the provisions of law contained in the Act. The Court observed that
F other important consideration was that the Act was not an extension of the
old Act as the Act was passed in exercise of a power expressly conferred by
the Constitution upon the Parliament by Article 369, which empowered the
Parliament for a period of five years, the power to legislate upon certain
matters which were in the said list as if they were in Concurrent List. The
G Court specifically observed thus: -

"It is, therefore, difficult to accept the pos1t10n that all that
Parliament was doing when it passed Act 52 of 1950 was extending
the life of the Essential Supplies Act of 1946. It was not a normal
legislative activity on the part of Parliament. In the course of its
H ordinary legislative activity it had no power to extend the life of the
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH, J.] 591
Essential Supplies Act of 1946, and it would have died a natural A
death on 1.4.195 l. It was really a different legislative activity on the
part of Parliament when it put Act 52 of 1950 on the statute book. It
was an activity, the justification for which was to be found in Article
369 and which was in the exercise of the power conferred by that
article."
B
From the aforesaid decision, it cannot be held that the law laid down
in Heman Sant/a/ 's case was in any way altered or modified by the Court.
In that particular case, as Essential Supplies Act, 1946 was not only extended
but substantially altered and was also passed by the Parliament in exercise of
its legislative power conferred under Article 369.
c
Further reliance is placed on the decision rendered by the Full Bench
of Patna High Court in Mangtulal's case (supra). In that case, the Full Bench
considered the following questions:

"1. Whether, in the circumstances stated above, the Bihar Buildings, D
(Lease, Rent and Eviction) Control (Amendment) Act, 1951,
required assent of the President under the provisions of Article
254 of the Constitution of India, and
2. Whether in the absence of such assent, the provisions of the
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947,
still operate, after the 14th of March, 1952, in spite of the E
provisions being repugnant to existing law contained in the Civil
Procedure Code, the Indian Contract Act or the Transfer of
Property Act."

In the said case, it was admitted position that though the Act of 1947
namely, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and F
the Amending Act, 1949 had received the assent of the Governor General in
accordance with the provisions of Government of India Act, 1935, which
were in force prior to the commencement of the Constitution, the Amending
Act of 1951 had not received the assent of the President. In that context,
Narayan, J. first obs.erved thus: G
"In a bald and simple form it may also be correct to say that the
amended statute or the statute which extends the duration of the
original statute is not a new and independent statute and that, in
effect and substance, it remains the same statute as had been originally
passed. But these abstract propositions of law cannot be applied H
592 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A regardless of the facts and regardless of the constitutional inhibition
if any .. "

Thereafter, with regard to Article 254(2) the Court observed thus: -

" ......... The only manner in which the repugnancy between the
B provisions of the Act of 194 7 and the existing laws contained in the
Code of Civil Procedure, the Indian Contract Act and the Transfer of
Property Act could be resolved was by obtaining the assent of the
President. If the assent of the President has not been obtained to the
amending Act of 1951 by which the duration of the Act of 1947 was
extended "up to and including the 14th March, 1954", this amending
c Act cannot be deemed to be valid law, and the Act of 1947 would be
deemed to have been extended only for the period mentioned in the
Amending Act of 1949. Under the Amending Act of 1949 there was
an extension for only five years, and the Act thus expired on the 14th
of March, 1952. Not taking the President's assent is an omission
which is fatal to the Act and it cannot be remedied by the Court by
D
any recognised canons of interpretation. The Act having been passed
in absolute contravention of Article 254(2) so much of it as is
repugnant to or inconsistent with th~ existing law as embodied in the
Code of Civil Procedure, the Indian Contract Act and the Transfer of
Property Act must be declared to be void."
E
Thereafter, the Court considered the decision in Heman Sant/al 's case
(supra) and observed that the Amending Act of 1951 came to be passed after
the Constitution had come into force and according to the Constitution the
repugnancy of the temporary Act to the provisions of the existing law could
be resolved only by obtaining the assent of the President. In concurring
F judgment, Ramaswami, J. observed that in Heman Sant/al 's case question at
issue was different namely what is the correct interpretation to be placed on
the phrase "existing law" in Article 31(5) and no question was raised under
Article 254 of the Constitution and the effect of the absence of the President's
assent to an Amending Act was not considered in that case. Concurring with
G the aforesaid judgment, Das, J held that whether Amending Act is new Act
or not is material for the purpose of Article 254 and that such a continuation
of the Act would require the assent of the President so as to make the State
law prevail over the existing law.

From this decision also, it cannot be stated that the Court arrived at the
H conclusion that by extending duration of a temporary statute, new and
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH, .l.] 593
independent statute comes into existence. A
Reliance is also placed on decision rendered by the High Court of
Allahabad in Benaras Electric Light and Power Co. Ltd. 's case (supra). In
that case, the Court considered the observation made by the Douglas, J .,
Maxwell on Interpretation of Statutes, Craies (in Treatise on Statute Law)
and referred to Heman Santlal's case and observed that in the eye of law, the B
extending Act did not place any new legislation on the statute book; the
various continuing Acts had, in law, the effect of continuing in force the
original Act of 194 7 as it was; they were not fresh legislation on the subject
of electricity.

As against this, Mr. Nariman learned senior counsel submitted that the
c
High Court has rightly referred to the decision rendered by this Court in
Kera/a State Electricity Board's case (supra) for arriving at the conclusion
that by amending and extending duration of the temporary statute and thereafter
obtaining the assent of the President would mean that there is re-enactment
of the existing law. In that case, Constitution Bench was considering the D .
validity of Kerala State Electricity Supply (Kerala State Electricity Board and
Licensees Areas) Surcharge Order, 1968. That order was passed in exercise
of the powers conferred by Section 3 of the Kerala Essential Articles Control
(Temporary Powers) Act, 1961. It obliged the Board to collect surcharges
from non-licensee consumers of electricity even though the Board may have
entered into long-term contracts with them with regard to the rate at which E
electricity is to be supplied to them. The Court, firstly, observed that the Act
in question in pith and substance was with respect to trade and commerce and
production, supply and distribution; it was not a permanent legislation with
respect to electricity but a temporary one dealing with a temporary situation
thereafter and that it was a matter falling under Entries No.26 and 27 of List p
II. Thereafter, while dealing with the alternative submission, the Court observed
thus: -

"The Kerala Act insofar as it deals with electricity can be deemed
to be legislation under Entry 38 of List III. Though the Act itself has
not declared any article as an essential article, when a declaration was G
made under Section 2(a) in 1965 declaring electricity as an essential
article for the purposes of the Act, it became part of the Act. When
the President assented to the Kera/a Act in 1962 it may be that it
cannot be deemed that he had assented to it on the basis that the
provisions of that Act were repugnant to some Act made by Parliament H
594 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A or some existing law in the concurrent field because there was nothing
in the Act itself which made it repugnant to any Act passed by
Parliament or any existing law. But when he assented in 1967 to the
Act extending 1he life of the Kera/a Act by another two years the
declaration of electricity as an essential article had been made and
should be deemed to have become part of the Act. So far we are in
B agreement with the argument of the learned Solicitor General. But
when he goes further and argues that in so far as the consequence of
such declaration was that the State Government was enabled to make
orders regarding production, supply and distribution of electricity,
there was a possibility of such orders being repugnant to the provisions
c of the Electricity Act, 1910 and the Electricity (Supply) Act, 1948
and therefore any such repugnance was cured by the assent given by
the President, we cannot agree. We agree that the assent should be
deemed not merely to the substitution of the words "five years" by
the words "seven years" in the Kerala Act, but to the Act as a whole, , .
that is, as amended by the 1967 Act and any repugnance between the
D Kerala Act and the Electricity Act, 1910 and the Electricity (Supply)
Act, 1948 should be deemed to have .been cured by such assent.
When assenting to the 1967 Act the President should naturally have
looked into the whole Act, that is, the 1961 Act as amended by the
1967 Act. But the declaration itself did 1wt create any repugnancy
E with the 1948 Act. It was in 1968 that the Surcharge Order was made,
in pursuance of which the bills were served on the various respondents
in these appeals and demands made for enhancing charges for
electricity. And it was the Surcharge Order that can be said to create
the repugnancy if at all. It is only actual repugnancy that can be cured
by Presidential assent and not the possibility of repugnancy."
F
From the aforesaid observations, it is clear that when the President
gave assent to Kerala Act in 1962, there was no repugnancy to the Act made
by the Parliament or some existing law in concurrent field. However, before
grant of subsequent assent in 1967 to the Act extending the life of the Kerala
Act by another two years, the declaration of electricity as an essential article
G had been made and was part of the Act. Thereafter, the Court observed that
the assent of the President should be deemed not merely to the substitution
of the words "five years" by the words "seven years" in the Kerala Act but
to the Act as a whole, that is the Act as amended by the 1967 Act and any
repugnancy between the Kera la Act and Electricity Act, 1910 and the
H Electricity (Supply) Act, 1948 should be deemed to have been cured by such
KAISER-I-HIND PVT. LTD. v. N.T.C. [M.B. SHAH . .I.) 595
assent. A
From the aforesaid discussion, it would appear that (a) if there is
extension of the duration of the temporary Act, it cannot be said that new Act
is enacted, old act continues and its life is extended; (b) however, while
extending the duration if there is any substantial amendment in the statutory
provisions as found in Basantilal Banarsi/a/'s case (Supra), it cannot be said B
that it was mere extension of existing law.

Additional contention:-

On behalf of the appellant, following additional ground is raised in the
written submission. c
"Article 254(1) incorporates the principle of Supremacy of
Parliamentary law - it applies to any provision of "a law made by the
Legislature of a State" which is repugnant to any Parliamentary law
or (which is repugnant) to any existing law. Article 254(1) opening D
part, does not expressly give supremacy to Parliamentary law over·
existing State/Provincial law - i.e. law made in the Provinces before ·
the Constitution: hence Constitution, the Bombay Amending Act 43
of 1951 (the first law enacted by the State legislature after the
Constitution) - even though a mere extension law - must
Constitutionally be regarded as a law made by the legislature of a E
State, for purposes of applicability of Article 254(1 ), which it could
only be if it was a substantive law re-enacting or incorporating the
provisions of the Act 1947 Act, post-Constitution. That it was reserved
for the consideration of the President and received his assent lends
support to the fact that it was not a mere extension but treated as a
F
substantive enactment."

The aforesaid submission requires to be rejected mainly because Article
254 (I) as quoted above clearly inter a/ia provides that if any provision of
a law made by the legislature of State is repugnant to any provision of a law
made by Parliament then the law made by Parliament, whether passed before G
or after the law made by the legislature of such State, shall prevail. It also
provides that the law made by the legislature of the State shall, to the extent
of repugnancy, be void.

Fmther, in the present case, there is no question of considering that the
Bombay Rent Act was an existing law as defined under Article 366( I0). H
596 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A 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
if the Constitution had not come into force. Therefore, there is no question
of applying the concept of "existing law" as defined under Article 366 to a
law of which duration is extended from time to time. Article 254(1 ), inter
B 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 present case there is no question of applying
th~ said part of Article 254(1 ).

c The result of the foregoing discussion is: -

I. It cannot be held that summary speedier procedure prescribed
under the P.P. Eviction Act for evicting the tenants, sub-tenants
or unauthorised occupants, if it is reasonable and in conformity
D with the principles of natural justice, would abridge the rights
conferred under the Constitution.
2. (a) Article 254(2) contemplates 'reservation for consideration of
the President' and also 'assent'. Reservation for consideration is
not an empty formality. Pointed attention of the President is
required to be drawn to the repugnancy between the earlier law
E
made by the Parliament and the contemplated State legislation
and the reasons for having such law despite the enactment by the
Parliament.
(b) The word 'assent' used in clause (2) of Article 254 would in
context mean express agreement of mind to what is proposed by
F
the State.
(c) In case where it is not indicated that 'assent' is qua a particular
law made by the Parliament, then it is open to the Court to call
for the proposals made by the State for the consideration of the
President before obtaining assent.
G
3. Extending the duration of a temporary enactment does not amount
to enactment of a new law. However such extension may require
assent of the President in case of repugnancy.

In this view of the matter, in the present case there is no question
H of giving supremacy to the Bombay Rent Act qua the law made by the
KAISER-I-HIND PVT. LTD. v. N.T.C. [D. RAJU, J.] 597
Par! iament. A
In the result, the appeals are dismissed.

WP (Civil) Nos.1056, 1081of1991and162 of 1992

These writ petitions are filed challenging the vires of certain provisions B
of the P.P. Eviction Act. In view of the order passed above, these writ petitions
are dismissed.

SLP (Civil) Nos.20669, 20731 of 1995 AND 3404-05 of 1992.

These petitions are filed against the judgments and orders dated 9.8.1995, C
14.2.1992 and 8.1.1992 passed by the High Court of Bombay in Writ Petition
Nos.3141/95, 3162/95, RP No.836 of 1992 and WP No.32 of 1992
respectively. By orders dated 4. 12.1995 and 11.9.1995, these petitions were
ordered to be listed along with Civil Appeal No.2555 of 1991 etc. In view
of the order passed above in C.A. No.2555/91 etc., these petitions would not D
survive and are dismissed accordingly.

- There shall be no order as to costs.

D. RAJU, J. I have carefully gone through the judgment prepared by
learned brother Justice M.B. Shah, dismissing the appeals and other connected
E
writ and allied petitions and I am in respectful agreement with the same. Yet,
having regard to the nature of issues involved and the likelihood of recurrence
of such question, in the light of similar and frequent recourse often made to
Article 254(2) of the Constitution, I wish to place on record some of my
views also in the matter.
F
The factual background, the details relating to the decision arrived at
by the Bombay High Court and the contentions raised on behalf of the
appellants/petitioners before us have been adverted to in detail in the judgment
of Shah, 1. and I do not want to refer to them and further burden this judgment.
Article 254( I) declares that, if any provision of a law including an 'existing
law' made by the legislature of a State is 'repugnant' to any provision of a G
law enacted by the Parliament, which it is competent to enact, or to any
provision of an existing law, with respect to 'one of the matters' enumerated
in the concurrent list, subject to the exception provided in Clause (2) of
Article 254, the law made by the Parliament, whether passed before or after
the law made by the State Legislature concerned or the existing law, as the H
598 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A case may be, shall prevail and to that extent of repugnancy, the State law
shall be void. The exception engrafted in Clause (2) to enable the State law
to prevail in that State, the Legislature of which has enacted it, notwithstanding
its repugnancy, as above, as long as both the laws deal with a concurrent
subject, will enure to its benefit, if it has been reserved for the consideration ...
B of the President and has received his assent', under the said provision of the
Constitution of India. Thus, the sweep of mandate and serious nature of the
result flowing from the assent renders, in my view, the very exercise of
power by the President and the attendant formalities whereof, as of great .!.
significance and vitally important, and not a mere routine or mechanical
exercise. Despite, such assent having been obtained, power of the Parliament
C to enact, at any time, any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature
of the State, with the assent envisaged under Clause (2) of Article 254 has
also been conserved and preserved in the proviso to the said clause. In
substance, the Parliament has undisputed power to undo the effect or '
consequences flowing from the presidential assent obtained under Clause (2),
D by enacting a subsequent law creating once more a 'repugnancy' and thereby
override or repeal impliedly, to the extent of such repugnancy, the State law.

The assent of the President envisaged under A11icle 254 (2) is neither
an idle or empty formality, nor an automatic event, necessitated or to be
E given for the mere asking, in whatever form or manner and whether specific,
vague, general or indefinite in the terms sought for to claim that once sought
and obtained as well as published, a curtain or veil is drawn, to preclude any
probe or contention for consideration that what was sought and obtained was
not really what should and ought to have been, to claim the protection
envisaged under Clause (2) in respect of a particular State law vis-a-vis or
F with reference to any particular or specified law on the same subject made
by the Parliament or an existing law, in force. The repugnancy envisaged
under Clause (l) or enabled under Clause (2) to get excepted from under the
protective coverage of the assent obtained from the President, is such that
there is a legislation or legislative provision(s), covering and operating on the
G same field or identical subject matter made by both the Union and the State,
both of them being competent to enact in respect of the same subject matter
or the legislative field, but the legislation by the Parliament has come to
occupy the entire field. Necessarily, in the quasi-federal structure adopted for
the nation, predominance is given to the law made by the Parliament and in
such circumstances only the State law which secured the assent of the President
H under Clause (2) of Article 254 comes to be protected, subject of course to
KAISER-I-HIND PVT. LTD. v. N.T.C. [D. RA.JU . .I.] 599

the powers of Parliament under the Proviso to the said clause. Therefore, the A
President has to be apprised of the reasons at least as to why his assent is
being sought, the need or necessity and the justification or otherwise for
claiming predominance for the State law concerned. This itself would postulate
an obligation, inherent in the scheme underlying as well as the very purpose
and object of seeking the assent under clause (2) of Article 254, to enumerate B
or specify and illustrate the particular Central law or provision with reference
to which the predominance is desired. The absence of any standardized or
stipulated form in which it is to be sought for, should not detract the State
concerned, to disown its obligation to be precise and specific in the extent of
protection sought having regard to the serious consequences which thereby
inevitably follows, i.e .. , the substitution of the Union law in force by the C
State law, in the territorial limits of the State concerned, with drastic alteration
or change in the rights of citizen, which it may, thereby bring about.

The mere forwarding of a copy of the bill may obviate, if at all, only
the need to refer to each one of the provisions therein in detail in the requisition
sent or the letter forwarding it, but not obliterate the necessity to point out D
specifically the particular Central law or provisions with reference to which,
the predominance is claimed or purported to be claimed. The deliberate use
of the word 'consideration' in clause· (2) of Article 254, in my view, not only
connote that there should be an active application of mind, but also postulate
a deliberate and careful thought process before taking a decision to accord or E
not to accord the assent sought for. If the object of referring the State law for
consideration is to have the repugnancy resolved by securing predominance
to the State law, the President has to necessarily consider the nature and
extent of repugnancy, the feasibility, practicalities and desirabilities involved
therein, though may not be obliged to write a judgment in the same manner,
the courts of law does, before arriving at a conclusion to grant or refuse to F
• grant or even grant partially, ifthe repugnancy is with reference to more than
one law in force made by the Parliament. Protection cannot be claimed for
the State law, when questioned before courts, taking cover under the assent,
merely asserting that it was in general form, irrespective of the actual fact
whether the State claimed for such protection against a specific law or the G
attention of the President was invited to at least an apprehended repugnancy
vis-a-vis the particular Central law. In the teeth of innumerable Central laws
enacted and in force on concurrent subjects enumerated in List III of the
Vllth Schedule to the Constitution, and the hoard of provisions contained
therein, artificial assumptions based on some suppo!;ed knowledge of all
those provisions and the presumed regularity of official acts, cannot be blown H
600 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A out of proportion, to do away with an essential exercise, to make the 'assent'
meaningful. as if they are empty formalities. except at the risk of rendering
Article 254 itself a dead letter or mere otiose. The significant and serious
alteration in or modification of the rights of parties, both individuals or
institutions resulting from the 'assent' cannot be overlooked or lightly brushed
...
B aside as of no significance, whatsoever. In a Federal structure, peculiar to the
one adopted by our Constitution it would become necessary for the President
to be apprised of the reason as to why and for what special reason or object
and purpose, predominance for the State law over the Central law is sought,
deviating from the law in force made by the Parliament for the entire country,
including that part of the State. When this Court observed in Gram Panchayat
C of Village Jama/pur v. Ma/winder Singh and Ors., [ 1985] 3 SCC 661, that
when the assent of President is sought for a specific purpose the efficacy of
the assent would be limited to that purpose and cannot be extended beyond
it, and that if the assent is sought and given in general terms so as to be
effective for all purposes different considerations may legitimately arise, it
D cannot legitimately be contended that this court had also declared that
reservation of the State law can also be by mere reference to Article 254 (2)
alone with no further disclosures to be made or that the mere forwarding of
the bill, no other information or detail was either a permissible or legalized
and approved course to be adopted or that such course was held to be sufficient,
by this Court, to serve the purpose of the said Article. The observation
E 'general terms' need to be understood, in my view, a reference to a particular
law as a whole in contrast to any one particular or individual in the said law
and not that, it can be even without any reference whatsoever. The further
observation therein, "not only was the President not apprised in the instant
case that his assent was sought because of the repugnancy between the State
Act and the pre-existing Central Act on the vesting of evacuee properties but
F his assent was sought for a different, specific purpose altogether", would
belie any such claim. Per contra, it would only reinforce the principle that the
.
consideration as well as the decision to accord consent should be a conscious
one, after due application of mind, relevant and necessary for the purpose.
Though, submission ofa thesis on the various aspects ofrepugnancy involved
G may not be the requirement, the reservation for 'consideration' would
necessarily obligate an invitation of the attention of the President as to which
of the pre-existing central enactments or which provisions of those enactments
are considered or apprehended to be repugnant, with reference to which the
assent envisaged in A1ticle 254 (2) is sought for. This becomes all the more
necessary also for the reason that the repugnancy in respect of which
H predominance is sought to be secured must be shown to exist or apprehended,
KAISER-I-HIND PVT.LTD. v. N.T.C. [D. RA.JU . .I.] 601
on the date of the State law and not in vacuum to cure any and every possible A
repugnancy in respect of all laws - irrespective of whether it was in the
contemplation or not of the seeker of the assent or of the President at the time
of 'consideration' for according assent.

Th is Court has, no doubt, held that the assent accorded by the President
is not justifiable, and courts cannot spell out any infirmity in the decision B
arrived at, to give the assent. Similarly, when the President was found to have
accorded assent and the same was duly published, it cannot be contended that
the assent was not really that of the President, as claimed. It is also not given
to anyone to challenge the decision of the President according assent, on
merits and as to its legality, propriety or desirability. But that is not the same C
thing as approving an attempt to draw a blanket or veil so as to preclude an
examination by this court or the High Court as to the justifiability and
sufficiency or otherwise of the protection or predominance claimed for the
State law over the law made by the Parliament or the existing law, based
upon the assent accorded, resulting at times in substantial alteration, change
or modification in the rights and obligations of citizen, including the D
Fundamental Rights. 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 necessarily viewed as an esseniial prerequisite to be effectively and E
meticulously fulfilled before ever availing of the protection and the same
cannot be viewed merely as a ceremonial ritual. If such a vitally essential
procedure 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
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 F
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, except by doing violence to the language, as well as the scheme, and G
very object underlying Article 254 (2).

Different provisions of the Constitution envisage the grant of assent by
the President as well the Governor of a State. Article 111 provides for the
assent of the President to a Bill passed by the Houses of Parliament, in the
same manner in which Article 200 empowers the Governor of a State in H
602 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A respect of a Bill passed by the Legislative Assembly or by the Houses of the
Legislature where there is a Legislative Council in addition to the Assembly.
The Parliament for the Union consists of the President and two Houses as the
Legislature of States consist of the Governor and the House or Houses, as the
case may be (vide A1ticles 79 and 168). The policy making executive power
B of the Union also vest with the President, as the executive power of the State
vest with the Governor, and those powers have to be exercised with the aid
and advice of the council of ministers, for the Union headed by the Prime
Minister and for the State to be headed by the Chief Minister. The President
or the Governor, as the case may be, as and when a Bill after having been
passed is presented, may accord assent or as soon as possible thereafter
C return the Bill to the Houses with a message requesting to reconsider the Bill
or any provisions thereof, including the introduction of any amendment as
recommended in his message and if thereafter the Houses on reconsideration
of the Bill, pass the Bill again with or without amendment and present the
same for the assent, the President/Governor, as the case may be, shall not
withhold his assent. Being an exercise pertaining to expression of political
D will, apparently, the will of the people expressed through the legislation
passed by their elected representatives is given prominence by specifically
providing for a compulsory consent or assent. The same could not be said
with reference to the 'assent' of the President envisaged under Articles 31 A,
31 C, 254 (2) and 304 (b) of the Constitutioa. In my view, the 'assent'
E envisaged in these Articles by the very nature and character of the powers
conferred constitute a distinct class and category of their own, different from.
the normal 'assent' envisaged under Articles 111 of the President or 200 of
the Governor., Article 20 I also would indicate that even when for the second
time the Houses of the State Legislature passes the Bill and presented for
'consideration', there is no compulsion for the President to accord assent.
F Therefore, 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 qualitatively 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
G concerned.
The assent of the President or the Governor, as the case may be, is
considered to be pal1 of the legislative process only for the limited purpose
that the legislative process is incomplete without them for enacting a law and
in the absence of the assent the Bill passed could not be considered to be an
H Act or a piece of legislation, effective and enforceable and not to extend the
KAISER-I-HIND PVT. LTD. v. N.T.C. [D.M. DHARMADHIKARI. .I.] 603

immunity in respect of procedural formalities to be observed inside the A
respective houses and certification by the presiding officer concerned of their
due compliance, to areas or acts outside and besides those formalities . The
powers actually exercised by the President, at any rate, under Articles 3 I A,
3 IC, 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 safeguard the Fundamental Rights of citizens and Federal structure B
of the country's polity as adopted in the Constitution. A genuine, real and
effective consideration would depend upon specific 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 C
questioned before courts, the State law cannot be permitted or allowed to
have predominance or overriding effect over that Central enactment of the
Parliament to which no specific reference of the President at all has been
invited to. This, in my view, 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 D
Concurrent List in force in the country and enacted by the Parliament. To
uphold as valid the claim for any such blanket 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'. E
Jn 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 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 F
.. taken to the High Court in this case adopting such a procedure, in discharge
of its obligations and exercise of jurisdiction under the Constitution of India.

DHARMADHIKARI, J. After going through the opinion of learned
Brother M. B. Shah J, with utmost respect, I find myself unable to agree with G
his view.

The main question that needs decision by this Constitution Bench is on
the application of Article 254 of the Constitution of India. Learned Brother
Shah J, in ·his opinion, has already reproduced Article 254 and discussed
relevant decisions of the Supreme Court and other High Courts cited by the H
604 SUPREME COURT REPORTS [2002] SUPP 2 S.C.R.

A counsel of the parties at the Bar. I would not, therefore, burden the record
with repetition of the same.

It is not i11 dispute that there is a clear repugnancy between the provisions
of Bombay Rents ( Hotel and Lodging House Rates) Control Act 1947, as
has been extended from time to time, after coming into force of the Constitution
B in its application, to erstwhile State of Bombay and to the present State of
Maharashtra and Public Premises (Eviction and Unauthorized Occupants)
Act, 1977. The two Acts mentioned above would hereinafter be referred to
as the 'State Act' and the 'Central Act' respectively.

C Under the provisions of the State Act, all occupants of leased or licensed
premises including those owned by government companies and corporations
have protection against their eviction which can be granted only on proof of.
specified grounds before the competent authority. In accordance with the
Central Act, the premises belonging to government companies and corporations
which are in occupation of tenants and licensees can be got evicted by the
D prescribed summary procedure after service of notice to the occupier of the
alleged unauthorized occupation.

The State Act of 1947 was the pre-constitutional law and 'existing law'
for application of Article 254 read with definition of that expression 'existing
E law' in Clause 10 of Article 366. The said 'existing law' by virtue of Extension
Laws passed from time to time by the State Legislature continued in force
after coming into force of the Constitution.

The Central Law of 1977 is post-constitutional law and as an effect of
Clause (I) of Article 254, in view of its admitted and clear repugnancy with
F State Law, the former would have prevailed; but Clause (2) is an exception
to Clause (I) of Article 254 and if the State Law has received 'assent of the
President' and the subject of Legislation is in Concurrent Lis:, the State Law
prevails in its application to the State.

The State Act of 1947 which was a pre-constitutional law after it was
G extended by various Extension Laws (mentioned in detail in the opinion of
learned Brother Shah J.) became a post-constitutional law. In order to prevail
over the Central Law, the State Law required the 'assent of the President' in
accordance with Article 254 (2) of the Constitution. It is not in dispute that
the subject matter of Central and State Legislation is covered by entries in
H the Concurrent List of Seventh Schedule of the Constitution.
KAISER-I-HIND PVT. LTD. v. N.T.C. [D.M. DHARMADHIKARL J.) 605

It is also not in dispute that the 'assent of the President' has been A
obtained to each of the State Acts which were passed after corning into force
of the Constitution, either to extend the duration of 'existing law' of 1947 or
to extend its application with amendments to the State. The file containing
proposals which were moved for obtaining 'assent of the President' was not
produced by any of the parties but was summoned by the Court. A perusal B
of file containing proposals moved for obtaining the 'assent of the President'
shows that each time, the Extension Law was passed with or without
amendments for extending duration of the 'existing law' that is Bombay Act
of 194 7, its repugnancy to Central Laws like Transfer of Property Act 1882
and Presidency Small Causes Courts Act 1882, the Indian Contract Act 1892
and Civil Procedure Code, was pointed out but there is no specific mention C
of its repugnancy to the Central Act under consideration before us. It is on
the basis of the letters of the State addressed to the Government of India
containing the proposals for obtaining 'assent of the President', learned Brother
Shah J, has come to the conclusion that there is no 'Presidential Assent'
sought or obtained to the Siate Act qua the Central Act under consideration
before us. Such a conclusion on reading of the file containing the proposals D
is not borne out. Two specific proposals relied on behalf of the appellants
from the letters dated 15.12.1980 and 27.1.1986, need mention and
reproduction in ifs relevant parts. They read as under :-

(I) No.BRA 2 I 80/CR-3222/DESK-3.
E
Housing and Special Assistance Department
Mantralaya, Bombay 400 032
15th December, 1980

To,
F
The Secretary to Government of India,
'1 Ministry of Home Affairs,
New Delhi.

Sub : Bill of extend the duration of the Bombay Rent, Hotel and G
Lodging Houses Rate Control Act 1974 upto 31st March, 1986.

Sir,

The subject matter of the Bill falls under entries 3, 5, 18,. 31, 35, H
606 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A 49, 64 and 65 in List-II and entries 1, 2, 6, 7, 11-A and 46 in a List-
lll in the Seventh Schedule of the Constitution of India. As the
provisions of the Principal Act are repugnant to the provisions of
some of the existing laws relating to entries 6, 13, 46 in the concurrent
legislative list such as Transfer of Property Act 1882 and the
Presidency Small Causes Courts Act 1882 and Clause (2) of the Bill
B is intended to extend the life of the Principal Act by a further period
of five years i.e. upto 31.3.1986, it is necessary to reserve the Bill
after it is passed for consideration and the assent of the President
under Article 254(2) of the Constitution of India after it is passed by
the State Legislature. Further as the subject matter of the Bill falls
c under the entries relatable to the Concurrent Legislative List and
administrative approval of the Government of India is required to be
obtained before it is introduced in the State Legislature. I am, therefore,
to request you to move the Government of India to kindly accord
their administrative approval to the proposed Bill. ................... .

D
(2) GOVERNMENT OF MAHARASHTRA
No. 1419/B
LAW AND JUDICIARY DEPARTMENT
Mantralaya, Bombay 400 032
E Dated : 27th Jan., 1986

To,

The Secretary to the
Governor of Maharashtra,
F Raj Bhawan, Bombay 400 035.

Sub : L.C. Bill No. X of 1986 The Bombay Rents, Hotel and Lodging
House Rates Control (Extension of Duration) Bill, 1986.
Sir,
G

The subject matter of the Bill falls under entries 3, 5, 18, 31, 35,
49, 64 and 65 in List-II and entries I, 2, 6, 7, 11-A, 12, 13 and 46
in List-III in the Seventh Schedule to the Constitution of India. As
H the provisions of the Bombay Rents, Hotel and Lodging House Rates
KAISER-1-HINDi'V'f. bTD. v. N.T.C. [D.M. DHARMADHIKARI. .1.) 607

Control Act, 194 7 are repugnant to the provisions of th.e Transfer of A
Property Act 1882 and the Presidency Small Cause Courts Act 1882
which are the existing laws relating to entries 6, 13 and 46 in the
Concurrent Legislative List and as Clause 2 of the Bill is intended to
extend the life of the Principal Act for a period of five years, it is
necessary to reserve the Bill for the consideration and assent of the
President with reference to article 254(2) of the Constitution of India. B

Several letters addressed from time to time to the Government of India
by the State for obtaining 'assent of the President', which are contained in
the file, are somewhat similar in wording and phraseology. From the contents C
of letter dated 15.12.1980, what is to be noted (as reproduced above) is that
entries I, 2, 6, 7, J JoA and 46 in List-III that is the Concurrent List in the
Seventh Schedule of the Constitution have been specifically mentioned. The
language of the proposals contained in the letter is noteworthy. It reads :
"the provisions of some of the existing laws relating to entries 6, 13, 46 in D
the Concurrent Legislative List such as Transfer of Property Act 1882 and
the Presidency Small Cause Courts Act 1882 .. ".

Similarly, in the proposals contained in letter dated 27.1.1986, there is
specific mention of entries 1, 2, 6, 7, 11-A, 12, 13 and 46 of Concurrent List
in Seventh Schedule of the Constitution with specific mention of repugnancy E
to the provisions of Transfer Property Act 1882 and Presidency Small Cause
Courts Act 1882 ..

Each time when the proposal was moved for obtaining Presidential
sanction, relevant entries of the Concurrent List have been mentioned. It is
not disputed that the Central Act under consideration covers entries 6 and. 7 F
of the Concurrent List which are specifically mentioned in the proposal. In
the letter dated 15.12.1980, while moving proposal for obtaining assent, it
has been very clearly mentioned that the State Act is repugnant to "some of
the existing laws relating to entries 6, 13 and 46 in the Concurrent Legislative
List" and the above language is followed by words "such as" with words G
following them 'Transfer of Property Act' and 'Presidency Small Cause Courts
Act'. 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 H
608 SUPREME COURT REPORTS [2002) SUPP. 2 S.C.R.

A State 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 illus/rat ive, otherwise the language, in the proposal
contained in the letters of the State Government, would have been different.

On such an 'assent of the President' having been granted in general
B 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
C 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.

Learned Brother Shah J. has taken note of all the previous decisions
of this court and other High Courts cited by the counsel for the parties at the
Bar. The file containing proposals for obtaining assent of the President was
D summoned and perused. Th is exercise of going into the contents of the file
was undertaken with the limited purpose of finding out whether the 'assent
of the President' to the State Act, in fact, existed or not. Learned Brother
Shah J. accepts the legal position that the court cannot go into th~ question
of validity or invalidity of the 'assent of the President' and the scrutiny of the
E file containing proposals moved for seeking 'assent of the President' is limited
to find out.whether, in fact, 'assent' has been granted to the State Act or not
and to what extent it has been granted. Law has also been taken note of on
the basis of previous decisions of this court that 'Presidential assent' can be
obtained qua specific Central Acts and also in a general way.

F As discussed above by me on the contents of two letters containing
proposals for 'assent of the President', it is evident that the 'assent' was
obtained in a general way by making mention of relevant entries of the
Concurrent List and a few repugnant Central enactments illustratively and
not exhaustively. The 'assent of the President' was sought in the manner
mentioned above and granted.
G
The preamble of the State Act as notified and published in the
Government Gazette contains a declaration that the State Act has received
an 'assent of the President' under Article 254(2) of the Constitution. Such
declaration of receipt of 'assent of the President' is to be found in the preamble
H of all Extension Laws passed after coming into force of the Constitution.
KAISER-I-HIND PVT.LTD. v. N.T.C. [D.M. DHARMADHIKARI. J.] 609

I do not find myself persuaded to agree with the view that 'assent of A
the President' is subject of legisla1ive procedure. In giving overriding effect
to the State Law over Central Laws covered by entries in Concurrent List, the
grant of 'assent' by the President in exercise of powers under Clause (2) of
Article 254 is a substantive legislative act. It cannot be described merely as
part of legislalive procedure. It is only the President who is empowered to B
exercise that legislative power in the event of inconsistency between the State
Law and Central Law. Such legislative 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 President alone exercises the legislative function. The
provision in Article 254 (2) is a substantive provision on the subject of C
resolving conflict between 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 /D
and to be 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.

The action of the President of granting 'assent' being a legislative Act, E
it is not open to the Court to sit in judicial review over it. 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
contains a declaration in its preamble, of the law having received 'assent of
the President' 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 F
his mind to the alleged repugnancy of the State Act to a particu Jar Central
f.ct. The President occupies the highest constitutional office and by virtue of
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.
G
_The validity of the State Act is riot ul)der challenge nor any material
was produced by the State and Central Governments before the court as to
what weighed with President in granting assent to the State Act under Article
254(2) of the Constitution. Merely on the basis of the contents of the letters
contained in the file summoned and perused by the court, it is not possible H
610 SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A to ascertain whether there was due application of mind of the President to the
repugnuncy between the State and the Central Act uuder consideration before
us. It is not possible for the court to probe into the mind of the President why
and how he exercised his power of granting or refusing 'assent' under A11icle
254. In my considered opinion, the court cannot go behind the declaration
B duly notified and published in the Government Gazette containing the text of
the State Act with preamble therein stating that it has received 'assent of the
President' under Article 254(2).

The question whether Central Act, in its application to leased and
licensed premises of government companies and corporations, should be
C 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 legislative wisdom and beyond judicial review.

I may also add that State Act of 1947 was an 'existing law' as defined
D in Clause (10) of Article 366 at the time of coming into force of the
Constitution, because it was a pre-constitutional law. Explanation III to Article
372 makes it clear that any "existing law" which was a temporary law in
force because of its limited duration would not continue if it had expired
before the Constitution came into force. The said "existing law" which was
E revived and extended by State Laws made from time to time with or without
amendments by the State Legislature, after coming into force of the
Constitution, is a post-constitutional law. The 'existing law' of 1947 and all
Extension Laws passed by the State Legislature after coming into force of the
Constitution made them all post-constitutional laws and each of them has
received 'assent of the President' because of its repugnancy to the Central
F Act. I do not find it relevant that the Extension Laws passed from time to
time were only for the purpose of continuing the 'existing law' or pre-
constitutional law of 1947 in the same form. The fact remains that 'Extension
Laws' made from time to time to revive State Act of 1947, in its application
to the States after the Constitution, were legislations of the State Legislature
G 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. My ,understanding of the proposals contained in
the file is that the 'assent of the President' was obtained each time in a
general way by referring to some of the Central Laws covered by the relevant
entries in the Concurrent List. ·
H
KAISER-I-HIND PVT.LTD. v. N.T.C. [D.M. DHARMADHIKARI, J.J 611

My conclusion, therefore, is that the 'assent of the President' to the A
State Act having been obtained in a general way, State Act would prevail
over the Central Act.

Consequently this appeal and all connected appeals and writ petitions
on this point succeed. The impugned order of the High Court of Bombay
deserves to be set aside. The cases be sent to competent courts for deciding B
remaining legal and factual questions as are involved in each of them. The
cost incurred in this court in each case shall abide the final result of the each
case. The connected SLPs are accordingly disposed of.

N.J. Appeals/Petitions dismissed. C