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SUPREME COURT OF INDIA
5th December 1952.
M. PATANJALI SASTRI, CJI., B.K. MUKHERJEA, CHANDRASEKHARA AIYAR, BOSE AND GHULAM HASAN, JJ.
Sisir Kumar Dutta, Appellant
Versus
The State of W.B., Respondent; The Union of India, Intervener.
Case No. 275 of 1951.
Advocates appeared
Shri N. C. Chakravarti. Advocate, instructed by Shri S. C. Banerjee, Agent, for Appellant; Shri B. Sen, Advocate, instructed by Shri P. K. Bose, Agent, for Respondent; Shri M. C. Setalvad, Attorney-General for India (Shri P. A. Mehta, Advocate, with him), instructed by Shri G. H. Rajadhyaksha, Agent, for the Intervener.
India Central Government and Legislature Act (1946), as adapted by India (Provisional Constitutional) Order, 1947, Ss. 4, 4AExtension of Essential Supplies (Temporary Powers)Act (1946) from 1.4.1950 up till 31.3.1951 by resolution of Constituent Assembly-Validity. - Articles 379 (I), 372 (1) and 394-Essential Supplies (Temporary Powers) Act (1946) S. 1 (3)-Extension of Act from 1.4.1950 to 31.3.1951 by resolution of Constituent Assembly (legislative), dated 26th December 1949-Validity-India (Central Government and Legislature) Act (1946) as adapted by India (Provisional Constitution) Order, Ss. 4 and 4-A.
Held: The Constituent Assembly derived its authority to pass the Resolution from S. 4-A India (Central Government and Legislature) Act of 1946. This was an Act of the British Parliament which originally conferred on the British Houses of Parliament the power of approving by resolution8 the extension of the period fixed by S. 4. Later, the Indian Independence Act of 1947 was passed by the British Parliament and in exercise of the powers conferred by 5s. 9 and 19 of that Act the Governor General by an adaptation order substituted the words "Dominion Legislature" for the words "Houses of Parliament" and thus enabled the Dominion Legislature to exercise the powers of Parliament in this behalf. At the same time, the Governor-General introduced S. 4.A into the British Act of 1946, the India (Central Government and Legislature Act 1946,4 by way of adaptation and conferred on the Constituent Assembly the powers of the Dominion Legislature. Thus the Constituent Assembly became empowered to extend the period fixed in S. 4 by the passing of a resolution and that in its turn had the effect of extending the life of the Essential Supplies Act of 1946.
By sub-section (1) of S. 3, Indian Independence Act, 1947, the British Parliament invested the Constituent Assembly with all the powers
1. See paragraph 26 of the Order.
2. See also under" Minimum Wages Act" post. 3. The Resolution ran as follows:
"In pursuance of the proviso to S. 4, India (Central Government and Legislature) Act, 1946, as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in Ss. 2 and 3 of the said Act for a further period of twelve months commencing on the first day of April, 1950."
4. S. 4-A provided that the Constituent Assembly shall have the powers of the Dominion Legislature under the British Act "until other provision is made by or in accordance with a law made by the Constituent Assembly under sub-section (1) of S. 3, Indian Independence Act, 1947."
of the Dominion Legislature "for the purpose of making provision as to the constitution of the Dominion." That power it exercised and drew up the Indian Constitution, but in doing so it decided to bring the Constitution into being in two instalments and it did that by enacting Art. 394 and enacting in it that that Article and certain others including Art. 379, should come into force "at once"-at once being 26th November 1949-while the remaining Articles were to come into force on 26th January 1950. Even if under Article 379 of the Constitution the provisional Parliament was intended to function on 26th November 1949 and not from 26th January 1950, the Constituent Assembly was to continue in existence "till the commencement of the Constitution" which, by Art. 394 is 26th January 1950. Consequently, the power conferred on it as a designated body, by the English statute, as adapted by the Governor-General, could be validiy exercised on 20th December 1949 and was so exercised when it passed the resolution of that date. The provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in S. 4 of the English Statute as that was not one of "the powers conferred by this Constitution on Parliament," nor can bringing the provisional Parliament into existence on 26th November 1949 (assuming that to be the case) be regarded as "other provision" made by the Constituent Assembly within the meaning of S. 4-A of the English Act. It follows the Constituent Assembly was not deprived of these specially designated powers on the date of the Resolution.
(2) The Resolution of 20th December 1949 took immediate effect and its effect was to alter the date fixed for the expiration of the period mentioned in S. 4 of the English Statute from 31st March 1950 to 31st March 1951. The Essential Supplies Act fixed the date for its own expiration as the date fixed for the expiration of the period mentioned in S. 4 above. Accordingly, it was an Act which was alive immediately before 26th January 1950 and which was due, at that time, to expire of its own force not on 31st March 1950 but on 31st March 1951, and as this was a law in force immediately before the commencement of the Constitution it continued in force, because of Art. 372 (1) and Expln. III, until it was due to expire. - Essential Supplies (Temporary Powers) Act (1946), S. 1 (3) Extension of Act from 1. 4. 1950 to 31. 3. 1951 by resolution of Constituent Assembly (legislative) dated 26th December, 1949-Validity-India (Central Government and Legislature) Act (1946) as adapted by. India (Provincial Constitution) Order, 1947, Ss. 4 and 4-A-Constition of India, Arts. 379 (1), 372 (1) and 394.
Judgement
BOSE J. : This is an appeal under Art. 132 (1) of the Constitution. Leave to appeal was granted by the High Court at Calcutta.
2. The appellant was convicted under S. 7 (1), Essential Supplies (Temporary Powers) Act of 1946 for an offence said to have been committed on 24th October 1950. The conviction was on two counts ; (1) for selling cloth above the controlled rate and (2) for not issuing a cash memo. The sentence was rigorous imprisonment for three months and a fine of Rs. 200 with another three months in default. The trial was before the 8th Presidency Magistrate at Calcutta who adopted a summary procedure.
3. There was an application for revision before the High Court but it was dismissed. An application for leave to appeal to this Court was then filed. It was granted on a ground which was not taken either in the original Court or in the revision before the High Court, namely that the Essential Supplies Act of 1946 under which the appellant was convicted was not in force on 24th Otctober 1950 and so there could be no conviction under it.
4. The validity of this Act was challenged in - Joylal Agarwala v. The State , 1952 SCR 127, but this Court held that the Act was valid up to 31st March 1950 that being the life of the Act at the date relevant to that case. It is necessary to explain that the Act is a temporary Act and that its life has been extended from time to time after the date of its first expiry for a year at a time. The latest extension at the date of the previous case was up to 31st March 1950. We therefore start with the position that the Act was a good Act up till that date.
5. The Act was further extended up till 31st March 1951 by a Resolution dated 20th December 1949. This is the extension with which we are concerned and which is now challenged, the argument being that there was no legislative body in existence on that date competent to extend the life of the Act for another year.
6. The Gazette Notification setting out the Resolution is in the following terms :
" New Delhi, 22nd December 1949.
No. F. - 7 WL (1) 47.-The following resolution which was passed by the Constituent Assembly (Legislative) at its meeting held on 20th December 1949, is hereby published for general information :
In pursuance of the proviso to S. 4, India (Central Government and Legislature) Act, 1946, as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in Ss. 2 and 3 of the said Act for a further period of twelve months commencing on the first day of April, 1950."
It has to be seen whether the body which passed that Resolution had the power to extend the Act.
7. It can be accepted, because of the decision in - Joylal Agarwala v. The State , 1952 SCR 127 at p. 131 that the Constituent Assembly had authority on 25-2-1948 and again on 23-3-1949 to make two successive extensions of the Essential Supplies Act of a year each. The only question, therefore, is whether any body continued to have that power on the dates material here.
8. The extention just referred to were brought about as follows. The Constituent Assembly derived its authority to pass the above Resolution from S. 4-A, India (Central Government and Legislature) Act of 1946. This was an Act of the British Parliament which originally conferred on the British Houses of Parliament the power of approving by resolution the extension of the period fixed by S. 4. Later, the Indian Independence Act of 1947 was passed by the British Parliament and in exercise of the powers conferred by Ss. 9 and 19 of that Act the Governor-General by an adaptation Order substituted the words "Dominion Legislature" for the words "Houses of Parliament" and thus enabled the Dominion Legislature to exercise the powers of Parliament in this behalf. At the same time, the Governor-General introduced S. 4-A into the British Act of 1946, the India (Central Government and Legislature) Act 1946, by way of adaptation and conferred on t
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