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Hirji Laxmidas Vs. Francis Fernandez - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSmall Cause Court Suit No. 195/3977 of 1944
Judge
Reported inAIR1945Bom352; (1945)47BOMLR294
AppellantHirji Laxmidas
RespondentFrancis Fernandez
DispositionAppeal dismissed
Excerpt:
bombay rents, hotel rates and lodging house rates (control) act (bom. vii of 1944) - whether ultra vires-government of india act, 1935 (26 geo. v, c. 2), sections 93, 223, 293-government of india (adaptation of indian laws) order, 1937, sections 2, 7-high court, curtailment of powers of-provincial governor, acting under proclamation under section 93, powers of-letters patent, clause 44.;the bombay rents, hotel rates and lodging house rates (control) act (bom. vii of 1944), promulgated by the governor of the province of bombay, under proclamation issued under section 93 of the government of india act (constitution act), 1935, is not ultra vires.;the governor of a province legislating under section 93 of the constitution act has power to legislate with retrospective effect.;emperor v......leonard stone, kt., c.j.1. this suit was commenced in the small cause court at bombay, and is brought by the plaintiffs, who are the landlords, against defendant no. 1, who is the tenant, to eject him from 31-d matarpakhdi, mazgaon, bombay, held by him under a monthly tenancy at a rent of rs. 125 per month. the tenancy is alleged to have been terminated by notice dated april 29, 1943. the defence of defendant no, 1 is to plead the bombay rents, hotel rates and lodging house rates (control) act, 1944, which i will refer to as 'the 1944 act', and to rely on the fact that before this act came into operation the plaintiffs had applied to the controller for a certificate under the bombay rent restriction order, 1942, (which i will refer to as 'the 1942 order'), which was refused. such refusal,.....
Judgment:

Leonard Stone, Kt., C.J.

1. This suit was commenced in the Small Cause Court at Bombay, and is brought by the plaintiffs, who are the landlords, against defendant No. 1, who is the tenant, to eject him from 31-D Matarpakhdi, Mazgaon, Bombay, held by him under a monthly tenancy at a rent of Rs. 125 per month. The tenancy is alleged to have been terminated by notice dated April 29, 1943. The defence of defendant No, 1 is to plead the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, which I will refer to as 'the 1944 Act', and to rely on the fact that before this Act came into operation the plaintiffs had applied to the Controller for a certificate under the Bombay Rent Restriction Order, 1942, (which I will refer to as 'the 1942 Order'), which was refused. Such refusal, it is said, is binding upon the plaintiffs under Section 15 of the 1944 Act.

2. In reply the plaintiffs allege that Part II of the 1944 Act is ultra vires and void for the reasons to which I will presently refer.

3. It is obvious that the challenge to the validity of Part II of the 1944 Act raises a question of public importance, since if Part II of the Act be invalid, all premises to which it is intended to apply would in effect never have been controlled at all owing to the; invalidity of the 1942 Order. In these circumstances, the Advocate General for Bombay was added as a party to the suit, which was in effect transferred at his request to the High Court and has been heard by this bench. No question is raised by any one as to the regularity or propriety of this procedure.

4. As I have already said, the notice to determine the tenancy was given on April 29, 1943, and an application was subsequently made to the Controller under the 1942 Order for a certificate which, if granted, would have had the effect of avoiding the restriction placed on the recovery of possession by the 1942 Order then supposed to be valid. This application was refused, and the plaintiffs then went on appeal to the Collector under Section 12 of the 1942 Order. Again they were unsuccessful. On April 6, 1944, a full bench of this Court held Sections 8, 9 and 12 of the 1942 Order invalid, and accordingly the plaintiffs commenced this suit on April 12, 1944. On May 12, 1944, the 1944 Act was promulgated by the Governor, part of the preamble to the Act being as follows:

AND WHEREAS the Governor of Bombay has assumed to himself under the Proclamation dated the 4th November 1939, issued by him under Section 93 of the Government of India Act, 1935, all powers vested by or under the said Art in the Provincial Legislature;

NOW, THEREFORE, in exercise of the said powers, the Governor of Bombay is pleased to make the following Act :.

The relevant sections of the 1944 Act are Sections 9 and 14. Section 9 is as follows:

(1) The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, rent to the full extent allowable by this Part and performs the other conditions of the tenancy:

Provided that nothing in this section shall apply where the landlord has obtained a certificate from the Controller certifying that the tenant has committed any act contrary to the provisions of Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct: which is a nuisance or an annoyance to any adjoining or neighbouring occupiers or that the rent charged to a sub-tenant is in excess of the standard rent, or that the premises are reasonably and bona fide required by the landlord either for his own occupation or for the occupation of any person for whose benefit the premises are held or for any other cause which may be deemed satisfactory by the Controller.

(2) Where an order for the recovery of possession has been made in favour of a landlord on or after the 6th day of April 1944 but not executed before the date of publication of this Act, the Court by which the order was made may, if it is of the opinion that the order would not have been made if this Part had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Part.

Section 14 is:

(1) Any person aggrieved by an order passed by the Controller, under the provisions of this Part (including an order granting a certificate under the proviso to Sub-section (1) of Section 9) may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector.

(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.

(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this Part, be final; and no Civil Court shall have jurisdiction to settle, decide or deal with any question) which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

5. The Governor's competency to exercise the Provincial legislative function arises by virtue of the powers conferred on him by Section 93 of the Government of India Act, 1935, which I will refer to as 'the Constitution Act', and a Proclamation made by him on November 4, 1939. Section 93, so far as material, is as follows:

(1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation

(a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion;

(b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority ;

and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority:

Provided that nothing in this sub-section shall authorise the Governor Jo assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts.' Sub-section (2) deals with revocation, and Sub-section (3) contains certain consequential provisions.

Sub-section (4) is as follows:

If the Governor, by a Proclamation under this section, assumes to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature,

and then come the following words which are important:

and any reference in this Act to Provincial Acts, Provincial Laws, or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law.

i.e. a law made by the Governor.

The Proclamation of November 4, 1939, commences with the following preamble:

WHEREAS the Governor of the Province of Bombay is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Governments of India Act, 1935 (hereinafter referred to as 'the Act'):

And the operative part of the Proclamation is this:

Now, therefore, in the exercise of the powers conferred by Section 93 of the Act and with the concurrence of the Governor General, the Governor by this Proclamation-

(a) declares that all his functions under the Act shall be exercised by him in his discretion ;

(b) assumes to himself all powers vested by or under the Act in the Provincial Legislature and all powers vested in either Chamber of the Legislature but not so as to affect any power exercisable by His Majesty with respect to Bills reserved for his consideration or the disallowance of Acts ; and he hereby makes the following incidental or consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely-

Then there follow clauses suspending the operation of certain ministerial sections of the Constitution Act and certain sections referential to legislative machinery of the Provincial Legislature.

6. Mr. Hathi in his very full and exhaustive argument has attacked the validity of the 1944 Act on four grounds:

(1) That the Governor legislating under Section 93 of the Constitution Act has not power to legislate retrospectively at all;

(2) That the Provincial Legislature itself cannot legislate retrospectively in the concurrent field, and it is said that the law we are concerned with is in the concurrent field;

(3) That Sections 9 and 14 of the 1944 Act are void, because they interfere with the powers and jurisdiction of the High Court contrary to the proviso to Section 93 of the Constitution Act; and

(4) That the Provincial Legislature has not power to interfere with the powers and jurisdiction of the High Court.

7. With regard to the first ground, there is no question as to the retrospective operation of the 1944 Act. Section 2 and Schedules A and B and Sub-section 9(2), which deals with the period from April 6, to May 12, 1944, make this retroactive operation abundantly clear. So far as the retroactive operation of the exercise of legislative powers is concerned, there is no difference between the position of the Governor General under Section 72 in the Ninth Schedule to the Constitution Act and the position; of a Provincial Governor under Section 93. Indeed the contrary has not been contended. The position in this respect of the Governor General is covered by authority which is binding upon us. In the case of Emperor v. Prabhakar Kondaji Bhapkar (1943) 46 Bom. L.R. 50., which is a decision of a full bench of this High Court, the validity of Ordinance XIV of 1943 promulgated by the Governor General under Section 72 in the Ninth Schedule was challenged, and the Chief Justice, Sir John Beaumont, said this (p. 52):

It is argued, in the first instance, that that Ordinance was beyond the powers of the Governor General under Section 72 of the Ninth Schedule to the Government of India Act. But there is really no substance in that point. Under that section the Governor General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature. That is the material part of the section, and the limitation of six months has been removed by the St. 3 and 4 Geo. VI. c. 33.

It is said that the Governor General cannot pass a retrospective ordinance. But as this Ordinance is to have the like force of law as an Act passed by the Indian legislature, and it has not been disputed that the Indian legislature can pass a retrospective Act, there seems to be no force in that contention.

Nor is there any force in the contention that the Governor General cannot amend an existing Act of the Indian legislature. The same reasoning applies to that. The Indian legislature can amend an Act, and, therefore, the Governor General can under Section 72. This Court very recently upheld a retrospective Ordinance made by the Governor General in Emperor v. Shreekant Pandurang Kelkar : (1943)45BOMLR323 ..

8. The second ground is that the Provincial Legislature itself cannot legislate retrospectively in the concurrent field, i.e. in respect of the subject-matters enumerated in list III in the seventh schedule of the Constitution Act, and it is suggested that the 1944 Act deals with the subject-matters enumerated under item 4 'Civil Procedure', item 8 'Transfer of property', item 10 'Contracts' and item 15 'Jurisdiction and powers of all Courts'. But even if this was so, the answer in this case is that the Governor General has given his assent to the 1944 Act; and Mr. Hathi concedes that if there was any repugnancy, it is cured by such assent : (See Section 107(2)). There is also authority for this in the judgment of Mr. Justice Sulaiman in Ramnandan v. Goshwami Madhwanand Ramji (1939) 3 Fed. L.J. 1 5. Mr. Hathi, however, says that notwithstanding this there is a distinction in the case of a law which as here is to have retrospective effect. In my opinion, there is no substance in this point. The Governor General has given his assent to the 1944 Act, which is retrospective on the face of it.

9. It is the third ground which really forms Mr. Hathi's main assault upon the validity of the 1944 Act. Clearly the proviso to Section 9 of that Act deals with matters which are within the jurisdiction of the High Court to determine, such as whether the tenant has committed an act contrary to the provisions of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to any adjoining or neighbouring occupiers. The granting of a certificate with regard to these matters is placed in the hands of an executive officer, a Controller, with an appeal to another executive officer, namely the Collector. Further, by Section 14 it is expressly provided that

No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

Mr. Hathi points to the proviso to Section 93 of the Constitution Act relating to High Courts, and he then invites attention to Section 223 of that Act, which is as follows:

Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Fart III of this Act.

10. Two things should be observed : In the first place, there is nothing in the Proclamation itself by which the Governor has assumed to himself any power of the High Court or suspended, either in whole or in part, the operation of the Constitution Act so far as it relates to High Courts. In the second place, it is provided by Sub-section 93(4) that

any reference in this Act to Provincial Acts, Provincial laws or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law,

i.e. a law made by a Governor. Under Section 93 such a law is to have the same force and effect as a law enacted by the Provincial Legislature. The question is : does the proviso refer to the powers with which the Governor may invest himself under the Proclamation, or does it cut down or restrict what he may do if he invests himself as he has done with the same plenary 'powers as the Provincial Legislature? In my opinion, it must be the former. If it were the latter, he could not change the law at all, since he would be suspending the operation of the law as administered in the High Court as it stood immediately before he assumed the powers under the Proclamation. Be it observed that Section 223 itself is made 'subject to the provisions of any Act of the appropriate Legislature', and the Governor is the appropriate Legislature. The High Court is a Provincial authority within the meaning of Section 93; and, in my judgment, the effect of the proviso is to prevent the Governor from assuming or suspending the powers and jurisdiction of the High Court by any Proclamation under Section 93, but does not extend to alteration of the law by or under the assumed legislative powers which are within the competency of the Provincial Legislature, once the Governor has assumed those powers. In my opinion, this is clear when Section 93 is analysed. It provides that in the event therein mentioned the Governor may, by Proclamation, assume to himself all or any of the powers vested in, or exercised by, any Provincial body or authority. As I have already said, the High Court is such an authority. Then there follows an incidental particularization of some of the things the Proclamation may contain, including provisions for suspending in whole or in part the operation of any provisions of the Act relating to any Provincial authority. Then follows the proviso. In my opinion, the assumption and the suspension mentioned in the proviso are referential to the assumption mentioned in Sub-section 93(1)(b) and the suspension mentioned in the particularization of the subject-matters which the Proclamation may contain. In the result this attack on the validity of the 1944 Act also fails.

11. That brings us to the fourth ground, which is, whether the Provincial Legislature could have passed the 1944 Act. The only argument addressed to us on this point is founded on Clause 44 of the Letters Patent, which declares that all the provisions of the Letters Patent, and it is Clause 12 which gives the High Court jurisdiction, are subject to the legislative powers of the Governor General as therein mentioned. There is nothing1 in this point, since by the conjoint effect of Section 293 of the Constitution Act and Sections 2 and 7 of the Government of India (Adaptation of Indian Laws) Order of 1937 the reference to the Governor General in Clause 44 of the Letters Patent refers to all other competent authorities.

12. It must follow that as a result this action must be dismissed.

Kania, J.

13. These proceedings were started by the plaintiff landlord in August 1941 under the Presidency Small Causes Courts Act to eject his tenant on whom the notice to quit was duly served on April 29, 1941. The relevant provisions of the Government of India Act, the Proclamation issued by the Governor of Bombay under Section 93, and Bombay Act VII of 1944 enacted by the Governor, have been set out in the judgment of the learned Chief Justice. The only point urged before us is whether Bombay Act VII of 1944 is ultra vires. If the contention fails, these proceedings must be dismissed.

14. The argument that Bombay Act VIII of 1944 is ultra vires is based on four contentions. They are set out in the judgment of the learned Chief Justice. The first contention is that the Governor has no authority to make retrospective legislation and his powers are not co-extensive with those of the Provincial Legislature. For this counsel relied on the words of the proviso to Section 93 of the Government of India Act, which was contended to limit the Governor's powers, It was argued that in King-Emperor v. Sibnath Banerjee [1944] F.C.R. 1 the Federal Court expressed the view that an Ordinance, issued by the Governor-General in exercise of his powers under Section 72 of the Government of India Act, cannot be made retrospective. It was contended that the powers of the Governor acting under Section 93 had the same limitations, and therefore the Governor had no power to make retrospective laws. This argument is unsound because the Federal Court did not decide that point in Sibnath Bannerjee's case. The Court only discussed the various aspects of the powers of the Governor General acting under Section 72 and at p. 15 stated:

As the general question framed by the Calcutta High Court cannot be satisfactorily answered without further discussion of the above and other similar aspects of the problem, we refrain from expressing any final opinion upon it, as no such decision is necessary for the disposal of 'these cases.

The argument advanced before the Federal Court was in respect of Sections 2 and 3 of Ordinance XIV of 1943. The Federal Court thus declined to express any definite opinion in respect of Section 2, while in respect of Section 3 it decided that the same was valid. On the other hand our High Court in Emperor v. Shreekant Pandurang Ketkar : (1943)45BOMLR323 expressed the opinion that in construing emergency legislation it is not necessary to express words or necessary intent to make the same of retrospective effect, unlike the normal rule of construction applicable to Acts passed in normal times. A full bench of this Court in Emperor v. Prabhakar Kondaji Bhapkar (1943) 46 Bom. L.R. 50. held that the Governor General's powers to make retrospective Ordinance was valid and relied on the previous decision of this Court in Emperor v. Ketkar (supra). In order to consider whether the Governor has such power or not the relevant question is what is the position of the Governor on the issue of a proclamation under Section 93. If his powers are the same as of the Provincial Legislature, he has the power to pass laws having retrospective effect. This cannot be disputed because a Provincial Legislature, within the orbit of its legislative sphere, has plenary powers, and all legislatures having plenary powers are held to have power to make laws with retrospective effect within the scope of its authority. This contention will therefore depend on the decision of the third contention urged on behalf of the landlord.

15. The second contention is that the Provincial Legislature cannot legislate retrospectively on matters falling in the concurrent list. It was not disputed that in respect of the exclusive list II, found in the seventh schedule of the Constitution Act, the Provincial Legislature had authority to pass a law having retrospective effect. The contention was that in respect of the concurrent list the Provincial Legislature had not unconditional and absolute plenary powers because the Federal Legislature had also authority to pass laws on the same matters. I apprehend that the two questions are mixed up in advancing this argument. The first question is whether the Act passed by the appropriate authority in respect of a concurrent list is valid or not. The second question is whether, it being valid, there can remain any objection to its validity on the ground that it has been given retrospective effect. The question of validity of the Act must depend on the true construction of Section 100 and Section 107(2) of the Government of India Act. In Subramanyan v. Muttuswami A.I.R [1941] Fed. 47 the Federal Court had occasion to distinguish the spheres of the separate lists and the concurrent list found in the seventh schedule to the Constitution Act. It observed (p. 57):

.On a very strict interpretation of Section 100, it would necessarily follow that from all matters in list II which are exclusively assigned to Provincial Legislature, all portions which fall in list I or list III must be excluded. Similarly, from all matters falling in list III, all portions which fall in list I must be excluded. The section would then mean that the Federal Legislature has full and exclusive power to legislate with respect to matters in list I, and has also power to legislate with respect to matters in list III. A Provincial Legislature has exclusive power to legislate with respect to list II 'minus matters falling in list I or list III, has concurrent power to legislate with respect to matters in list III, 'minus matters falling in list I'. In its fullest scope Section 100 would then mean that if it happens that there is any subject in list II which also falls in list I or list III it must be taken as cut out from lislt II. On this strict interpretation there would be no question of any real overlapping at all. If a subject falls exclusively in list II and no other list, then the power of the Provincial legislature is supreme. But if it does also fall within list I, then it must be deemed as if it is not included in list II at all. Similarly, if it also falls in list III, it must be deemed to have been excluded from list II. The dominant position of the Central Legislature with regard to matters in list I and list III is thus established. But the rigour of the literal interpretation is relaxed by the use of the words 'with respect to' which as already pointed out only signify 'pith and substance,' and do not forbid a mere incidental encroachment. But, even if such an accidental encroachment may be ordinarily permissible, the field may not be clear. There may be competency and yet repugnancy also. The question is how to prevent a clash, if the trespass is on a field already occupied by the Central Legislation.

Under Section 107(2) it is clear that in respect of an item found in the concurrent list if an Act of the Central Legislature exists and the Provincial Legislature passes an Act, the same has to receive the consent of the Governor General. The effect of such consent is also provided for in the same section. The effect is that in the Province the Provincial Act is supreme. It is further provided that this need not prevent the Central Legislature from further passing an Act, if it was so minded, but its authority to pass such Act is circumscribed by the previous consent of the Governor-General being obtained to introduce any Bill for that purpose. Therefore, once it is found that the sanction of the Governor-General under Section 107(2) in respect of a Provincial Act has been obtained, there can remain no question of repugnancy. In the Province, the Provincial Act has the overriding force. Once that stage is reached, I do not see how the question of the Act being ultra vires, because it gives retrospective effect, remains. The Governor-General having given consent to the Provincial Act, the Provincial Legislature is given power to pass that law and it is valid. If so, the same is within the powers of the Provincial Legislature. Every Provincial Legislature, having plenary powers, is entitled to enact a law having retrospective effect, and I do not see any difference in the position of an Act passed in respect of an item mentioned in the concurrent list, which has obtained the consent of the Governor-General, and an Act passed in respect of a matter in the exclusive list, after both are held valid. This argument must therefore fail.

16. The third contention was subdivided under four heads. It was first contended that the power of the Governor to interfere with the jurisdiction of the High Court was expressly excluded by the proviso to Section 93(1) of the Government of India Act of 1935. A similar provision, with regard to the Governor-General containing a similar proviso, is found in Section 45, when the machinery of the Central Government breaks down. The bearing of the two sections on the scheme of the Constitution Act has therefore to be considered together. The argument is put thus : By the proviso it is enacted that nothing in the sub-section shall authorise the Governor to suspend, either in whole or in part, the operation of any provision of this (Constitution) Act that relates to High Court. It was argued that Section 223 of the Constitution Act maintained the jurisdiction of the High Court as it existed till then. By that section the proper authority was given power to interfere with that jurisdiction. Therefore, Section 223 was a provision of the Constitution Act relating to High Court, and the operation of that section covered the exercise of jurisdiction of the existing High Courts. The proviso to Sections 9 and 14 of the Act VII of 1944, during the existence of that Act, prevented the High Court from exercising its jurisdiction in respect of Section 108 of the Transfer of Property Act and administering that law in the High Court and thus suspended the operation of Section 223 of the Constitution Act. The Bombay Act therefore clearly infringed the words of the proviso and was invalid. In order to appreciate the force of this argument, it is necessary to scrutinise the scheme of Section 93. The section provides for the assumption by the Governor of a province of the government, when a situation had arisen under which the government could not be carried on in accordance with the provisions of the Constitution Act. The first part of the sub-section provides that in such circumstances and with that object the Governor may by a proclamation (a) declare that its function shall be exercised by him in his discretion, and (b) assume to himself all or any of the powers vested in or exercisable by any provincial body or authority-Clause (b) only is relevant for the present discussion. The Governor, therefore, by a proclamation can assume to himself all the powers of any provincial body or authority. Inasmuch as the High Court of a province exercises jurisdiction and has powers exercisable within the province, it is a provincial authority. If the section stopped there, it could be contended that when issuing the proclamation the Governor could state that he would assume the functions of the High Court. The first part of the proviso prevents that possibility. The second part of the sub-section proceeds to state that any such proclamation may contain incidental and consequential provisions, as may be necessary to the objects of the proclamation, including provisions for suspending the operation of any provision of this Act relating to any provincial body or authority. (I have omitted the words which are not material for the present discussion). Therefore, in the proclamation the Governor is given further power to make incidental and consequential provisions which are to attain the objects of the proclamation. Such provisions may include the suspension of the operation of certain provision of the Constitution Act which relate to a provincial body of authority. The second part of the proviso follows the exact words of the last part of the sub-section. The result, therefore, is that if the words in the second part of the proviso did not exist, although the Governor may not assume powers under Clause (b), in including incidental and consequential provisions in the proclamation he may suspend the operation of any section relating to High Court. The second part of the proviso prevents him from doing so. That appears to be the plain scheme of Sub-section (1) read with the proviso.

17. The question to be determined is whether the Governor when acting under Section 93 has infringed the words of this proviso. He has not assumed any of the powers of the High Court. He has not suspended the operation of any provision relating to it. The answer, therefore, to the argument advanced on behalf of the landlord is clearly in the negative. The approach to Section 223, contained in the argument advanced on behalf of the plaintiffs, is erroneous because in passing Act VII of 1944 the Governor has not suspended the operation of any provision relating to the High Court, but in fact he is acting under Section 223. By the proclamation he has assumed all the legislative functions which are vested in the Provincial Legislature. The result is that after the proclamation he becomes the Provincial Legislature, and for the purpose of passing laws in respect of any items mentioned in list II or list III he is the proper legislative authority within the meaning of Section 223. The contention that the Bombay Act trespasses on or curtails the jurisdiction of the High Court is confusing the issue. The only question before the Court is whether the Governor in assuming the powers which he is entitled to under Section 93 has suspended the operation of Section 223. The answer clearly is in the negative, because, firstly, he has not so stated in the proclamation, and, secondly, he has not suspended but is acting under Section 223. It may be argued that this construction renders the proviso quite ineffectual. In my opinion, that is not correct. Under Section 223 the alteration in the jurisdiction of and the law administered in any existing High Court, can be effected by a provision or any Order-in-Council made under the Constitution Act, or any Act of the appropriate Legislature. The last would include an Act of the Central Legislature. Item 15 in list III in the seventh schedule gives authority to the Central Legislature to pass laws in respect of jurisdiction and powers of all Courts, which would include a High Court. If the Governor, acting under Section 93, proclaimed that a portion of Section 223 was suspended, while he himself retained, the power to act in the capacity of a Provincial Legislature to pass laws in respect of the matters included in list II and list III to the extent the field was not already occupied by any Central Act, he would deprive the authority entitled to issue an Order-in-Council and the Central Legislature from passing any Act which would affect the jurisdiction of or the law administered in the Provincial High Court. It is clear that the proviso is framed to prevent the Governor from creating that situation. In my opinion, this construction of Section 93 and Section 223 is perfectly logical and according to the scheme of the Government of India Act. Therefore, the contention that the proviso prevents the Governor from enacting Bombay Act VII of 1944 is unsound.

18. The second branch of the argument under this heading was that the powers are limited to the purposes mentioned in Section 93, and in this connection counsel referred to Sections 88 and 89 of the Constitution Act. It was urged that in these sections the powers of the Governor are limited to the purposes mentioned therein. This argument is unsound, because the powers under each section are controlled by what is mentioned in the particular section. It is true that in the present case the powers to be assumed by the Governor are for the purposes mentioned in Section 93. But it is irrelevant to consider whether; the passing of Bombay Act VII of 1944 is for the purpose of Section 93. The two questions are quite independent. For the purpose of Section 93 the only question is whether the Governor has assumed the necessary powers required to achieve the objects mentioned therein. It has nothing to do with the question whether the exercise of the legislative functions, which are vested in him on the assumption of powers under Section 93, is for the purpose of Section 93.

19. The third part of this argument was that the 'law passed by the Governor' is not an Act of the Legislature, and, therefore, the words of Section 223 are not complied' with. It is described as the law. In this connection counsel relied on the interpretation clause Section 311(6) and Section 311(2), which defined the Provincial Act and the Provincial Law. This contention overlooks the express words of Section 93(4). The concluding words of that sub-section clearly show that wherever there is a reference to Provincial Act in the Constitution Act, the same is to include the Governor's law passed under Section 93. Reference to Section 311(6) is not useful because the general interpretation clause need not necessarily repeat what had already been provided by the Legislature in Section 93(4). This argument therefore has no substance.

20.The last argument advanced under this heading was the same as the fourth contention advanced in a different form. The contention was that Clause 44 of the Letters Patent can be altered only by the Central Government and not by the Provincial Legislature, and therefore much less by the Governor acting under Section 93. This contention overlooks the provision made in the Government of India (Adaptation of Indian Laws) Order, 1937. Section 293 of the Constitution Act is wide enough to cover the Letters Patent, as a law, according to the last sub-clause of that section. Under Section 2(2) of the Adaptation of Laws Order, 1937, 'Indian law' includes every law which is covered by Section 293 of the Constitution Act. Under Section 7 of the Adaptation of Laws Order 'proper authority' is the authority entitled to legislate on the subject in question. Reading all these together, it is clear that the proper authority to legislate in respect of the matter in question is the Provincial Legislature. As the powers of the Provincial Legislature, by virtue of the Proclamation issued under Section 93, are now vested in the Governor, the proper Legislative Authority is the Governor. This contention therefore must also fail.

21. I therefore agree that the proceedings adopted by the plaintiffs must fail and should be dismissed.

22. Per Curiam. Certificate, under Section 205 of the Government of India Act, to issue. With regard to costs, this matter is admittedly within the Small Cause Court's jurisdiction. It was transferred to the High Court on the application of Government as raising a question of public importance. It is true that the litigating parties did not object; but the result has been that considerably more costs have been incurred, whilst Government have got a decision upon this matter of public importance. In the exercise of our discretion we think that the fair and proper order to make in these circumstances with regard to the first defendant's costs is, first, to quantify them at Rs. 1,000 (one thousand) including all previous orders for costs, and then to direct that half that sum should be paid by the plaintiffs and half by the second defendant. Defendant No. 2 will bear his own costs.


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