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Sanwaldas Gobindram Vs. State of Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberO.C.J. Misc. No. 170 of 1952
Judge
Reported inAIR1953Bom415; (1953)55BOMLR478; ILR1953Bom836
ActsBombay Refugees Act, 1948 - Sections 2, 3, 4, 5, 6 and 7; Government of India Act, 1935 -Sections 5 and 9; Government of India (Amendment) Act, 1949; Constituent Assembly Act, 1949 - Sections 3 and 8(1A)
AppellantSanwaldas Gobindram
RespondentState of Bombay and anr.
Appellant AdvocateR.B. Jethmalani, Adv.
Respondent AdvocateG.N. Joshi, Adv.
Excerpt:
.....or inoculated, a section which by itself is clearly within item 14 in the provincial legislative list 'public health and sanitation'.none of the other sections of the act is of importance in determining what is the pith and substance of the act; section 7 cannot fall within the scope of the entry 'public health'.8. entry 32 in the provincial legislative list which has been invoked deals with 'relief of the poor'.now, it may be that some of the refugees are poor, but yet others are probably just evacuees, and it is difficult to say that an act such as this, which according to the amended preamble is an act for the registration and for regulating the movements of refugees, is an act which can fall within the legislative head 'relief of the poor'.in my opinion, therefore, in so far as..........or inoculated, a section which by itself is clearly within item 14 in the provincial legislative list 'public health and sanitation'. none of the other sections of the act is of importance in determining what is the pith and substance of the act; and it is clear to my mind that the pith and substance of the act is the relief and rehabilitation of displaced persons. obviously, there was no item of this nature in the provincial or concurrent legislative list prior to the constituent assembly act 4 of 1949. but on behalf of the respondents it has been urged that the authority for enacting this act is to be found from items i. 14 and 32 or any one of them in the provincial legislative list. 6. now, item 1 is 'public order', and as i have pointed out earlier, besides the use of the words.....
Judgment:
ORDER

1. This is a petition for a writ of mandamus or prohibition directing the State of Bombay, who are respondent No. 1 and the Director of Rehabilitation, who is respondent 2, from enforcing an order dated 11-6-1952, made under Section 7, Bombay Refugees Act, 1948, against the petitioner. The order requires that the petitioner shall leave the Chembur colony with all his belongings within a period of 3 days from the date of the service of the order and shall not re-enter the said colony.

2. The order is challenged on various grounds, but there is one ground which goes to the very root of the matter, viz., that Section 7 of the Act under which the order was made was 'ultra vires' the Bombay Legislature. Since, in my opinion, this contention appears to be well-founded, it is not necessary to consider the rest of the grounds on which the petition is based.

3. Now, the Bombay Refugees Act, 1948, being Act 22 of 1948, was published on 29-3-1948. It is contended on behalf of the petitioner that at toe said date the local Legislature did not have power to legislate regarding refugees, their movements and rehabilitation.

4. Now, it appears that the Constituent Assembly Act 4 of 1949, which was published on 24-8-1949, by Section 5 (b) 'inter alia' provides for the insertion of item 31C in the Concurrent Legislative List in Sch. 7, Government of India Act, 1935. The entry is as follows:

'31C. Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan.'

By the same Act, (Section 3, Constituent Assembly Act 4 of 1949), the Government of India Act; 1935. Section 8, was also amended. Now, that section in Sub-section (1) thereof enacts that the executive authority of the Dominion extends to the matters with respect to which the Dominion Legislature has power to make laws. Then the section has a proviso which is as follows: 'Provided that

(i) the said authority does not, save as ex-pressly provided in this Act or in any law made by the Dominion Legislature with respect to any of the matters specified in the next succeeding sub-section, extend in any Province to matters with respect to which the Provincial Legislature has powers to make laws....,.' I have reproduced this proviso as amended by the Constituent Assembly Act 1 of 1949. Then by the same Act Sub-section (1A) was inserted in Section 8, Government of India Act which enumerated the matters referred to in Clause (i) of the proviso to Sub-section (1). The Constituent Assembly Act 4 of 1949 amended Sub-section (1A) by adding to the List of these matters an item exactly identical with the item 31C inserted in the Concurrent Legislative List. The effect of these provisions is that as from 24-8-1949, in so far as relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan was specifically made item 31C in the Concurrent Legislative List, both the Dominion and the State Legislatures had authority to legislate in respect thereof, but the executive authority of the Dominion did not extend to this particular matter except in so far as expressly provided by the Government of India Act or by any other law made by the Dominion Legislature. It is clear, therefore, that after the date of the Constituent Assembly Act 4 of 1949 the Bombay Refugees Act, 1948, would, without Question, fall within entry No. 31C in the Concurrent Legislative List and would, therefore, be within the competence of the local Legislature. The question, however, is whether before this amendment the local Legislature has power to enact the said Act.

5. Now, whilst considering the competence of a Legislature to enact legislation it has been well settled that one has to look to the pith and substance of the legislation, to determine whether it falls within the legislative competence of the Dominion or Provincial Legislature. For the purpose of determining the pith and substance one has got to consider the Act as a whole. Now, the preamble to that Act is as follows: 'Whereas with a view to securing public safety, maintaining order, public health and sanitation and avoiding pressure on accommodation, it is expedient to provide for compulsory registration and movement of refugees and for certain other purposes; It is hereby enacted as follows:' It will be noticed that certain words of the preamble are reproductions of certain entries in the Provincial Legislative List in Sch. 7, Government of India Act, e.g., 'securing public safety, maintaining order' is item 1 in that List, 'public health and sanitation' is item 14 in that List. However, this preamble of the Act was by Bombay Act 66 of 1948 substituted by the following:

'Whereas it is expedient to provide for the registration and to regulate the movement of refugees with a view to facilitating their relief and rehabilitation and to securing public health, sanitation and safety and for certain other purposes herein specified; It is hereby enacted as follows.'

The important alteration to be noticed is that the words 'maintenance of public order' which were to be found in the first preamble find no place in the substituted preamble although the Act remains substantially the same. It is, therefore, legitimate to assume that the recital in the preamble that the Act had been enacted for the 'maintenance of public order' was nothing more than a colourable device to attempt to bring this Act within the scope of item 1 in the Provincial Legislative List, unless of course there is any provision of the Act which may indicate that 'maintenance of public order' has been provided for in the Act. Section 2 of the Act defines a 'refugee' as follows:

'In this Act, 'refugee' means any person who has since the first day of August 1917, entered the Province of Bombay, having left his place of residence elsewhere on account of civil disturbances in that place or the fear of such disturbances.'

It seems to me that this definition is capable of embracing two different classes of persons: (a) persons coming from another Province to this Province, and (b) persons coming from outside India to this Province. The importance of this lies in the fact that there is in Sch. 7, List 1 of the Government of India Act in the Federal Legislative List an entry No. 50 'Migration within India from or into a Governor's Province or a Chief Commissioner's Province'. Then proceeding further with the Act, Sections 3 to 6 deal with registration of refugees. Section 7, under which the order impugned purports to have been made, gives power to the Provincial Government to control the movement of refugees by directing that they shall reside in any particular camp or shall leave one camp or place and go and reside in another camp or place. Section 8 prescribes the penalty for disobedience of an order under Section 1. Section 9 deals with the authority of the Provincial Government to require refugees to get themselves vaccinated or inoculated, a section which by itself is clearly within item 14 in the Provincial Legislative List 'public health and sanitation'. None of the other sections of the Act is of importance in determining what is the pith and substance of the Act; and it is clear to my mind that the pith and substance of the Act is the relief and rehabilitation of displaced persons. Obviously, there was no item of this nature in the Provincial or Concurrent Legislative List prior to the Constituent Assembly Act 4 of 1949. But on behalf of the respondents it has been urged that the authority for enacting this Act is to be found from items I. 14 and 32 or any one of them in the Provincial Legislative List.

6. Now, item 1 is 'public order', and as I have pointed out earlier, besides the use of the words 'maintaining order' which appear in the preamble to the Act as originally enacted and which have been subsequently deleted from the preamble, there is nothing in the Act to indicate that the Act in any way deals with 'public order'.

7. Turning next to item 14 which deals with 'public health and sanitation' no doubt Section 9 of the Act in terms falls within the scope of the terms of this entry and it may be that the provisions for the registration of refugees which are to be found in Sections 3 to 6 may be incidental to the provisions of Section 9 which empower the Provincial Government to order refugees to get themselves vaccinated or inoculated, but the same cannot be said of Section 7 which empowers the Provincial Government to require a particular refugee to leave any camp or place and to go and reside in any other camp or place. In any event, therefore. Section 7 cannot fall within the scope of the entry 'public health'.

8. Entry 32 in the Provincial Legislative List which has been invoked deals with 'relief of the poor'. Now, it may be that some of the refugees are poor, but yet others are probably just evacuees, and it is difficult to say that an Act such as this, which according to the amended preamble is an Act for the registration and for regulating the movements of refugees, is an Act which can fall within the legislative head 'relief of the poor'. In my opinion, therefore, in so far as Section 1 of the Act is concerned, it is not in any event within the competence of the local Legislature and is 'ultra vires' of the said Legislature.

9. This conclusion is also supported by another consideration. As I have pointed out earlier, the definition of 'refugee' embraces within its scope persons coming from another Province into this Province. Tins interpretation is challenged on behalf of the respondents and it is pointed out that in Sch. 1 to the Act there is a form of registration and in that form sub-entry 8 refers to property left by the refugee 'in the country from which he migrated', which, according to Mr. Joshi for the respondents, clearly indicates that the word 'refugee' is used in the sense of a person coming from outside India. But I fear that the meaning of a word denned in a statute cannot be limited by reference to some item in the Schedule, and in any event the form which is a common form for persons who come into the Province both from outside India and from another Province, would legitimately provide for a column showing the property if any left by such refugee in the country from which he migrated. In my opinion, the definition clearly embraces within its scope a person who has come into the Province from another Province and to the extent to which it does so the Act falls within entry 50 in the Federal Legislative List in Sch. 7, Government of India Act, viz., 'Migration within India from or into a Governor's Province or a Chief Commissioner's Province'. It is, therefore, a matter which was within the competence of the Dominion Legislature and not of the Provincial Legislature. Looked at from either point of view, therefore, Section 7 of the Act is, in my opinion, 'ultra vires' of the local Legislature.

10. Since I have held that Section 7 of the Act is 'ultra vires' the local Legislature, the order made under the section is without jurisdiction. The rule will, therefore, be made absolute with costs.

11. Rule made absolute.


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