Srikant Lal v. State Of Bihar — 1958 DIGILAW 50 (PAT)

Judgment V.Ramaswami, J. 1. In this case the petitioner; Srikant Lal, has obtained a rule from the High Court, calling upon the respondents to show cause why the orders of the Mica Controller, dated 17-2-1955 and 10-3-1955, should not be quashed by a writ in the nature of certiorari under Article 226 of the Constitution. Cause has been shown by the learned Government Advocate on behalf of the respondents to whom notice of the rule was ordered to be given. 2. The petitioner obtained a lease of mining area of village Sawaiyatand, bearing tauzi No. 12561, from his wife, Srimati Ambika Bhawani Devi, by a registered patta dated 8-3-1938, for the years 1345 to 1349 Fasli. The lease expired in 1349 Fasli, but the petitioner continued to hold over with the assent of Srimati Ambika Bhawani Devi and also paid rent from year to year. The petitioner also took a hukumnama from Srimati Ambika Bhawani Devi with regard to mining lands situated in village Lat, tauzi No. 11109. On 4-5-1943, the petitioner obtained a lease of mining area of village Madih Kalonda, tauzi Nos. 3174, 3195 and 3196, from Pearey Mohan Prasad for a period of 51 years. On 3-8-1946, the petitioner made an application for a mining licence to the District Magistrate of Gaya with regard to all the three villages, namely, Sawaiyatand, Lot and Madih Kalonda. On 18-7-1947, the Mica Controller of Hazaribagh granted a licence No. 23G to the petitioner for all the properties on the recommendation of the District Magistrate. On 27-6-1953, a notification was issued under the Bihar Land Reforms Act, by virtue of which the proprietary interest of Srimati Ambika Bhawani Devi vested in the State of Bihar with regard to villages Sawaiyatand and Lat. In January, 1955, the petitioner applied for renewal of the mining licence. The Mica Controller renewed the licence but informed the petitioner by his memo. No. 166, dated 17-2-1955, that he had expunged Sawaiyatand and Lat from the mining licence, because the Additional Collector of Gaya had reported that the lease in respect of these two villages was not valid and had not been recognised under the Bihar Land Reforms Act. The petitioner submitted a representation before the Mica Controller for reconsideration of his order, but this representation was rejected by the Mica Controller on 10-3-1955. The petitioner submitted a representation before the Mica Controller for reconsideration of his order, but this representation was rejected by the Mica Controller on 10-3-1955. The orders of the Mica Controller dated 17-2-1955 and 10-3-1955 are annexures D and E to the application of the petitioner. The case of the petitioner is that Bihar Act I of 1949, which amended Bihar Act 10 of 1948, did not receive the assent of the Governor-General and was repugnant to the Mica Control Order, 1940 , made by the Central Government under Rule 81(2) of the Defence of India Rules. It was argued that Sec. 6 (6) and Sec.17(3) of the Bihar Mica Act, 1947 , are void and ultra vires and inoperative as they are repugnant to the corresponding provisions of the Mica Control Order, 1940 . It was also contended on behalf of the petitioner that Sec. 6 (6) and Section 17(3) of the Bihar Mica Act are void and inoperative because they impose unreasonable restrictions on the fundamental right of the petitioner under Article 19(g) of the Constitution, It was also argued that the order of the Mica Controller was passed without giving a hearing to the petitioner and that a copy of the report of the Additional Collector of Gaya was not supplied to the petitioner and hence there was a violation of the principle of natural justice. 3. A counter-affidavit has been filed on behalf of the respondents in this case. 4. It was argued in the first place on behalf of the petitioner that Bihar Act I of 1949 did not receive the assent of the Governor-General, and under the provisions of Sec.107(1) of the Government of India Act there was repugnancy between the Bihar Mica Act and the provisions of the Mica Control Order, 1940 , made by the Central Government under Rule 81(2) of the Defence of India Rules. Bihar Act I of 1949 is an amending Act. Bihar Act 10 of 1948 was a temporary Act and was to remain in force for a period of one year. That Act received the Governor-Generals assent. Bihar Act I of 1949 amended Sec.1(2) of Bihar Act 10 of 1948 and the effect of the amendment was to make Bihar Act 10 of 1948 a permanent Act. The amending Act did not receive the Governor-Generals assent. That Act received the Governor-Generals assent. Bihar Act I of 1949 amended Sec.1(2) of Bihar Act 10 of 1948 and the effect of the amendment was to make Bihar Act 10 of 1948 a permanent Act. The amending Act did not receive the Governor-Generals assent. Further amendments were made to Bihar Act 10 of 1948 by amending Act 28 of 1953, as a result of which Sections 6(6) and 17 (3) were inserted. The amending Act 28 of 1953 received the Governor-Generals assent. The submission of learned Counsel for the petitioner is that Bihar Act I of 1949 did not receive the Governor-Generals assent and that as a result of Sec.107(1) of the Government of India Act, the provisions of Bihar Act 10 of 1948, as subsequently amended, are repugnant to the Mica Control Order and are hence void and inoperative. In support of his argument learned Counsel also referred to Sec.2 (1) of the India (Central Government and Legislature) Act, 1946, Chapter 39, 9 and 10 Geo. 6, by which the Government of India Act, 1935, was amended with regard to certain matters. Sec.2(1) of this Act states: "2. In support of his argument learned Counsel also referred to Sec.2 (1) of the India (Central Government and Legislature) Act, 1946, Chapter 39, 9 and 10 Geo. 6, by which the Government of India Act, 1935, was amended with regard to certain matters. Sec.2(1) of this Act states: "2. (1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall during the period mentioned in section four of this Act have power to make laws with respect to the following matters: (a) trade and commerce (whether or not within a Province) in, and the production, supply and distribution of, cotton and woolen textiles, paper (including news-print), foodstuffs (including edible seeds and oils), petroleum and petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; and * * * * * (c) offences against laws with respect to any of the matters mentioned in the preceding paragraphs of tins sub-section, enquiries and statistics for the purposes of any of those matters, jurisdiction and powers of all Courts, except the Federal Court, with respect to any of those matters, and fees in respect of any of those matters, but not including fees taken in any Court, but any law made by the Indian Legislature which that Legislature would not, but for the provisions of this section, have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of the said period except as respects things done or omitted to be done before the expiration thereof." Sec.2(4) of this Act is important and must be reproduced in full: "2. (4) Sub-section (2) of section one hundred and seven of the Government of India Act, 1985 (which relates to inconsistency between Federal Laws and Provincial laws) and Sub-section (2) of Sec.126 of that Act (which relates to the giving of directions to a Province as to the carrying into execution of Federal laws relating to matters specified in Part II of the Concurrent Legislative List) shall apply in relation to a law enacted by virtue of this section with respect to any matter, being a matter with respect to which a Province has power to make laws, as if that matter were a matter specified in Part II of the Concurrent Legislative List. 5. 5. It was contended by learned Counsel, for the petitioner that for the duration of the period mentioned in Sec. 4 of the Act the Indian Legislature had power to make laws with regard to matters enumerated in Sec.2(1)(a). It was argued that the Mica Control Order, 1940 , enacted by the Central Government was intended to be a complete and exhaustive Code and so the provisions of the Bihar Mica Act were void and ultra vires. It was argued that the Parliament has evinced its intention to occupy the whole field and so the Bihar Legislature has no power to enter to any extent upon the same field, and the provisions of the Bihar Mica Act are, therefore, void and ultra vires. In support of this argument learned counsel for the petitioner referred to Clyde Engineering Company Limited v. Cowburn, (1926) 37 Com-WLR 466 (A) and also Tika Ramji V/s. State of Uttar Pradesh, (S) AIR 1956 SC 676 (B). The opposite view-point was presented by the learned Government Advocate. It was submitted that the doctrine of "occupied field" cannot be applied under Article 254 of the Constitution or under Sec.107 of the Government of India Act and that the only test was to compare the two competing enactments in a quantitative manner in order to ascertain what is excessive or contradictory in the State enactment and nothing more should be declared void and inoperative. In support of this proposition the Government Advocate referred to the judgment of Sulaiman, J. in Shyamakant Lal V/s. Rambhajan Singh, 1939 FCR 193 at p. 212: (AIR 1939 FCR 74): (at P. 83) (C). In my opinion there is great force in the argument of the learned Government Advocate and there is perhaps no reason to import the doctrine of "occupied field" in the interpretation of Article 254 of the Constitution or of Sec.107 of the Government of India Act. Even in Australia the doctrine of "occupied field" has been criticised as unsatisfactory & inadequate. For example, Wynes has stated the legal position as follows in his treatise on Legislative, Executive and Judicial Powers in Australia, 2nd edition, at page 130: "The second question, namely, as to the test of inconsistency, is one which gives rise to no inconsiderable difficulty, and it is no easy matter to lay down precise rules. For example, Wynes has stated the legal position as follows in his treatise on Legislative, Executive and Judicial Powers in Australia, 2nd edition, at page 130: "The second question, namely, as to the test of inconsistency, is one which gives rise to no inconsiderable difficulty, and it is no easy matter to lay down precise rules. In the United States it has been held that Congressional legislation supersedes State law where the same matter is the subject of legislation by both especially if different rules are prescribed by each authority and that the inconsistency must be direct and positive but that there may be a collision of wills. In the Canadian cases referred to above, there were conflicting express provisions in both Dominion and Provincial Acts with reference to the same matter. Lefroy thinks that the rule applies only in case of absolutely conflicting legislation in pari materia when it would be an impossibility to give effect to both the Dominion and the provincial enactments". Again at page 131 of the book the following passage occurs: "Varying tests have been applied by the Court for the purposes of determining whether inconsistency within the meaning of Sec.109 exists, ranging from the principle already mentioned that if it is possible to obey both laws without disobeying either there is no inconsistency, to the doctrine commonly referred to as covering the field according to which, if the Commonwealth legislation is considered to cover a certain field of legal relationships, tell State legislation upon the subject is held to be inconsistent therewith. The first principle has been rejected while the second, which perhaps represents the other extreme, was criticised as a universal test by Evatt, J. in Victoria V/s. Commonwealth (1937) 58 C. L. R. at p. 634 (D)." 6. It is not, however, necessary for me to express in this case a concluded opinion as to whether the doctrine of "occupied field" should be applied as a test of repugnancy under Sec.107 of the Government of India Act, or whether the correct test of repugnancy is the "quantitative" test; in other words, a quantitative comparison of the two enactments side by side in order to ascertain what is excessive or contradictory in the State enactment. 7. 7. I shall assume in favour of the petitioner that there is repugnancy between the Bihar Mica Act, 1947 , and the Mica Control Order, 1940 , within the meaning of Sec.107 (1) of the Government of India Act. As I have already said, the Mica Control Order, 1940 , was made under Rule 81 (2) of the Defence of India Rules. It is necessary to state that the Defence of India Act was a temporary Act and the emergency was revoked on 1-11-1946, and the Essential Supplies Act (Act XXIV of 1946) was enacted by Parliament to provide for the continuance of powers to control the production and supply of certain commodities, including Mica. Parliament enacted Act 65 of 1952, by which the life of the Essential Supplies Act was continued to 26-1-1955. On 26-1-1955, the Essential Supplies Act came to an end and the consequence was that the Mica Control Order of 1940 also came to an end. Ordinance No. 1 of 1955 was promulgated on 21-1-1955, and came into effect from 26-1-1955. The preamble to Ordinance I of 1955 states as follows : "Whereas the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), which confers powers to control the production, supply and distribution of, and trade and commerce in, certain commodities, expires on 26-1-1955; And whereas it is necessary, in the interests of the general public, to provide for the continuance of such powers in relation to some of the commodities specified in that Act and certain other commodities; And whereas Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action; Now, therefore, in exercise of the powers conferred by Clause (1) of Article 123 of the Constitution, the President is pleased to promulgate the following Ordinance : Sec.2 of the Ordinance defines "essential commodity," but it is vital to notice that Mica is not included in this definition. The Ordinance was repealed by Central Act, 10 of 1955, which came into force on 1-4-1955. Sec.2 of this Act defines "essential commodity", but it is vital to notice that the definition does not include mica. The result, therefore, is that with effect from 26-1-1955, there is no competing statute with regard to mica, and the State legislation, namely, Bihar Act 10 of 1948, alone stands in the field. 8. Sec.2 of this Act defines "essential commodity", but it is vital to notice that the definition does not include mica. The result, therefore, is that with effect from 26-1-1955, there is no competing statute with regard to mica, and the State legislation, namely, Bihar Act 10 of 1948, alone stands in the field. 8. It was argued on behalf of the petitioner that at the time when Bihar Act I of 1949 was passed, the Central Mica Control Order, 1940 , was in force and, therefore, Bihar Act I of 1949 was repugnant within the meaning of Sec.107 of the Government of India Act. It was contended that Bihar Act was void for unconstitutionality and was dead and could not be revivified or revitalised by the lapse of the Central Mica Control Order on 26-1-1955. I am unable to accept this argument as correct. Sec.107 (1) of the Government of India Act is in the following terms: "107. (1) If any provision of a Provincial law is repugnant to any provision of a Dominion law which the Dominion Legislature is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the Dominion law, whether Passed before or after the Provincial law, or, as the case may be, the existing law, shall prevail and the Provincial law shall, to the extent of the repugnancy, be void". In my opinion, the true effect of Sec.107(1) of the Govt. of India Act is to render the Provincial Law repugnant to the Dominion law and inoperative to the extent of the repugnancy. In other words, the Provincial law was not dead but was in abeyance; it was merely overshadowed by the fundamental right and remained dormant. The true position is that the Provincial law was eclipsed or overshadowed by the Dominion legislation, and as soon as the Dominion legislation ceased to operate, the shadow was removed and the Provincial law was vitalised and revived and made free from all blemish or infirmity. 9. It was pointed out in Chhaya Devi V/s. State of Bihar, 1956 Pat LR 540: ((S) AIR 1957 Pat 44 ) (E) that a statute may be invalid because there is lack of legislative competence or affirmative grant of power. 9. It was pointed out in Chhaya Devi V/s. State of Bihar, 1956 Pat LR 540: ((S) AIR 1957 Pat 44 ) (E) that a statute may be invalid because there is lack of legislative competence or affirmative grant of power. A statute may also be invalid because there is a constitutional check imposed upon legislation. As a matter of principle, the invalidity arising in the former case cannot be cured by the subsequent grant of the affirmative power. But in the fetter case the statute would become valid and enforceable once the constitutional prohibition is removed. The doctrine is stated as follows in Willoughby on the Constitution of the United States, Volume I, at page 11: "The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. However, it had been held that where an act is within the general legislative power of the enacting body, but is rendered unconstitutional by example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or, by reason of its silence, is to be construed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed". I think the same distinction applies in Indian Constitutional Law. This distinction is implicit in the line of reasoning adopted by S.R. Das, J. (as he then was) in Bhikaji Narain V/s. State of Madhya Pradesh, 1955 SCR 589 : ((S) AIR 1955 SC 781 ) (F). In that ease the question debated was whether C. P. and Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) was constitutionally valid. It was argued by the petitioners in that case that the Act was inconsistent with the provisions of Article 19(1)(g) of the Constitution and, therefore, Act III of 1948 was void. It was, however, contended on behalf the respondents that the inconsistency was removed by the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, and so the Amending Act (III of 1948) became operative and revitalised. It was, however, contended on behalf the respondents that the inconsistency was removed by the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, and so the Amending Act (III of 1948) became operative and revitalised. It was decided by the Supreme Court that the contention put forward by the respondents was well founded and must be accepted. The same principle has been laid down by this High Court in 1956 Pat LR 540: ((S) AIR 1957 Pat 44 ) (E) with regard to Kosi Area (Restoration of Lands to Raiyats) Act, 1951 (Bihar Act 30 of 1951), where the interpretation of Article 13(1) and (2) of the Constitution was the subject-matter of consideration. The same principle has been set forth by the Judicial Committee in Attorney-General for Ontario V/s. Attorney-General for the Dominion, 1896 AC 348 (G) and in Carter V/s. Egg and Egg Pulp Marketing Board for the State of Victoria, 66 Com-W LR 557 at p. 573 (H) where Latham, C. J. states: "I come therefore to arguments based upon Sec.109 of the Constitution. That section is as follows: When a law of a State is inconsistent with a law of Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. This section applies only in cases where, apart from the operation of the section, both the Commonwealth and the State laws which are in question would be valid. If either is invalid ab initio by reason of lack of power, no question can arise under the section. The word invalid in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed, the State law would again become operative, (R. V/s. Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23, at p. 33 (I) per Higgins J.) cf. 1896 AC 348 (G) and Amalgamated Society of Engineers V/s. Adelaide Steamship Co. Ltd., (19201 28 CLR 129 at p. 154 (J). Thus the word invalid should be interpreted as meaning inoperative. This is, I think, made clear by the provision that the Commonwealth law "shall prevail -- that is, the Commonwealth law has superior authority and takes effect to the exclusion of the inconsistent State law". Ltd., (19201 28 CLR 129 at p. 154 (J). Thus the word invalid should be interpreted as meaning inoperative. This is, I think, made clear by the provision that the Commonwealth law "shall prevail -- that is, the Commonwealth law has superior authority and takes effect to the exclusion of the inconsistent State law". Applying the principle to the present case I hold that Bihar Act 10 of 1948, as amended by Bihar Act 1 of 1949, was revived and revitalised with effect from 26-1-1955, when the shadow of the paramount legislation was removed. It followed, therefore, that the orders of the Mica Controller, dated 17-2-1955, and 10-3-1955, which are impugned in the present case, are legally, valid. Learned counsel for the petitioner is unable to make good his submission on this part of the case and his argument must be rejected. 10. I shall next proceed to deal with the contention that Sec. 6(6) of the Bihar Mica Act confers an arbitrary and unfettered discretion upon the Mica Controller to endorse on the licence the particulars of the mines in lawful possession of the licensee and there is a violation of the guarantee under Article 19(1) (f) and Article 19(1)(g) of the Constitution. Sec. 6 (6) of the Bihar Mica Act (Act 10 of 1948), as amended, is in the following term: "6. (6) When granting a miners license under Sub-section (1), or renewing such license under Sub-section (3), the Controller shall endorse on the license the particulars of the mines in lawful possession of the licensee and may, at any time, make any change in such particulars. Explanation -- A person shall be deemed to be not in lawful possession of a mica mine, if he does not hold a valid lease under the Mines and Minerals (Regulation and Development) Act, 1948, and the rules made thereunder." Learned counsel for the petitioner also referred to Sec.17(3) of the Act which states: "17 (3)(i) Any licensee who extracts any mica from a mica mine situated in land which is not included in his license as endorsed by the Controller or has in his possession or sells any mica extracted from such mica mine, shall, on conviction by a Magistrate of the first class, be punishable with fine which may extend to one thousand rupees. (ii) Any licensee who fails to produce his license within a reasonable time after being required by the prescribed authority shall on conviction by a Magistrate of the first class, be punishable with fine which may extend to fifty rupees". Reference was also made to Sec.25(1) (b) which states; 25. The State Government may cancel the license or proprietors certificate of any licensee or registered proprietor who -- * * * * * (b) being a person to whom a miners license has been granted extracts mica from a mine the particulars of which are not endorsed on his license". It was submitted on behalf of the petitioner that the Mica Controller has an unfettered and arbitrary power to remove particulars of mines from the license and the restrictions imposed by Sec. 6(6) are, therefore, not reasonable within the meaning of Article 19(5) and (6) of the Constitution. I do not accept this argument as right. It is true that although Sec. 6(6) does not provide that the Mica Controller should hear the parties before removing the mines from the license, out by necessary implication of law there is a duty imposed on the Mica Controller to hear the parties at the time of insertion of any mine in the license and also at the time of removal of any mine from the license. The provision for hearing is implicit in Sec. 6(6) as a matter of law, and that is the view taken by this High Court in Ramnath Prasad V/s. Collector of Darbhanga, AIR 1955 Pat 345 (K) and Sheopujan Choudhury V/s. State of Bihar, (S) AIR 1956 Pat 212 (L) with regard to" Sec. 42 of the Bihar and Orissa Excise Act, and in Gobardhan Joshi V/s. State of Bihar, (S) AIR 1957 Pat 340 (M) with regard to Sec. 64A of the Motor Vehicles Act. It was argued on behalf of the petitioner that there is no appeal provided from the order of the Mica Controller under Sec. 6(6), but there is a power of revision given to the State Government under Sec.26A, which is to the following effect: "26A. It was argued on behalf of the petitioner that there is no appeal provided from the order of the Mica Controller under Sec. 6(6), but there is a power of revision given to the State Government under Sec.26A, which is to the following effect: "26A. The State Government may of its own motion, or on the application of any aggrieved person, revise any order passed under this Act by the Controller or the Commissioner of the Division: Provided that no application shall be entertained under this section (i) unless the application is made within ninety days of the order complained of, and (ii) where an appeal lies against the order of the Controller, unless an appeal has been preferred to the Commissioner of the Division and disposed of." I am, therefore, of opinion that the power of the Mica Controller conferred by Section 6(6) is not an unfettered or arbitrary power, but that sufficient safeguards are provided in the statute. I, therefore, reject the argument of the petitioner that there is a violation of the guarantee under Article 19(1)(f) or Article 19(1)(g) of the Constitution. It was lastly argued that the petitioner was not given a hearing by the Mica Controller or by the Additional Collector and hence there has been a violation of the principle of natural justice. In paragraph 13 of the application it is said that the order of the Mica Controller dated 17-2-1955, was passed without giving notice to the petitioner or without giving an opportunity for being heard. There is no substance in this argument because the petitioner admits that he made a representation to the Mica Controller for review of his order dated 17-2-1955, and the petitioner was given a hearing by the Mica Controller before the order of 10-3-1955 was passed, by which the Mica Controller upheld his previous decision. In the counter-affidavit it is definitely said that the Mica Controller gave a hearing to the petitioner before passing the second order dated 10-3-1955. It was also admitted on behalf of the petitioner that the order of the Additional Collector was not shown to the petitioner before the Mica Controller passed the order. It appears however from annexure 2 to the counter-affidavit that the petitioner was given a hearing by the Additional Collector with regard to expunging the properties of Sawaiyatand and Lat. It was also admitted on behalf of the petitioner that the order of the Additional Collector was not shown to the petitioner before the Mica Controller passed the order. It appears however from annexure 2 to the counter-affidavit that the petitioner was given a hearing by the Additional Collector with regard to expunging the properties of Sawaiyatand and Lat. I, therefore, consider that a fair opportunity was given to the petitioner before the Additional Collector and also before the Mica Controller and there is no violation of the principle of natural justice in this case and the argument addressed on behalf of the petitioner on this point must fail. 11. For the reasons expressed I hold that there is no case made out on behalf of the petitioner for grant of a writ under Article 226 of the Constitution in this case. In my opinion this application fails and must be dismissed with costs. Hearing fee Rs. 200.00. R.K.Choudhary, J. 12 I agree.