Very Important point
‘Consideration’ by the President and his ‘assent’ under Article 254(2) of Constitution of India is limited to the proposal made by the State Govt., the State Legislature would prevail only qua the laws for which repugnancy as pointed out and the ‘assent’ of the President was sought for. Proposal by the State is sine qua non for ‘consideration’ and ‘assent’.

Headnote:Constitution of India—Article 254(2)—Public Premises (Eviction of Unauthorised Occupants) Act, 1971—Vires of the Act insofar as it is made applicable to the premises belonging to Government Companies and Corporations—It was contended that having regard to Article 254(2) of the Constitution of India, provisions of Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 would prevail over those of the P.P. Eviction Act—Rejected by Bombay High Court and upheld validity—Appeal to Constitution Bench of Apex Court by certificate from High Court—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’ would be deemed to be the assent qua all earlier enactments made by the Parliament on the subject—This contention is negatived by majority of 4 : 1—Result appeals are dismissed—Case law discussed—(Cross Ref : Transfer of Property Act, 1882, Presidency Small Causes Act, Constitution of India—Article 19(1)(f) and concurrent List in 7th Schedule).
       Held (Per majority) 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 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’. (Para 3)
       Held (Per Dharmadhikari, J.) (dissenting opinion) : My conclusion, therefore, is that the assent of the President to the State Act having been obtained in a general way, State Act would prevail over the Central Act. (Para 99)
       Summary of discussion by majority of Pattanaik, Shah, Raju and Variava, JJ.)
       Held : The result of the foregoing discussion is:–
        1. 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 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 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 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.
        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 of giving supremacy to the Bombay Rent Act qua the law made by the Parliament. In the result, the appeals are dismissed. (Paras 66, 67, 68)
       Summary of dissenting opinion of Dharmadhikari, J.
       Held : I do not find myself persuaded to agree with the view that assent of the President is subject of legislative 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 legislative procedure. 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 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 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 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, 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 his mind to the alleged repugnancy of the State Act to a particular Central Act. 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. The validity of the State Act is not under 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 to ascertain whether there was due application of mind of the President to the repugnancy between the State and the Central Act under 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 Article 254. In my considered opinion, the court cannot go behind the declaration 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 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 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 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 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 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. (Paras 94 to 98)

Judgment

Shah, J.—

CA Nos. 2555, 1320, 1351, 2192, 2218, 2622-2623, 3047 and 3053 of 1991:

Short but important question involved in 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 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?

2. 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 would be deemed to be an assent qua all earlier enactments made by the Parliament on the subject.

3. 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 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’.

2. The aforesaid question arose before the High Court of Bombay in writ petitions and appeals which were filed challenging the vires of the Public Premises (Eviction of 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, 19(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 of India, provisions of the Bombay Rents, 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 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.

5. Mr. F.S. Nariman, learned senior counsel for the appellant submitted that following questions arise for determination by this Court:–

1. Whether the P.P. Eviction Act specifically empowering government companies and statutory corporations to evict their tenants through the summary procedure provided therein took away or abridged the rights conferred by Article 19(1)(f) of the Constitution and was, to that extent, void from its inception?.

Note: In Municipal Corporation of Greater Bombay v. Lala Pancham of Bombay & Others [(1965) 1 SCR 542], this Court held that "no doubt that a tenant has both under the Transfer of Property Act, and under Section 12 of Bombay Rents Hotel and Lodging House Rates Control Act, 1947, an interest in the demised premises which squarely falls within the expression "property" occurring in sub-clause (f) of clause (1) of Article 19 of the Constitution".

2. (a) Whether the deletion of Article 19(1)(f) by the Constitution 44th 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)(f) could not survive after the repeal of Article 19(1)(f) o

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2002 Supreme(SC) 961

Cases Referred (9)