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Sheikh Mohammad Zia Vs. United Provinces - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Reported inAIR1943All345
AppellantSheikh Mohammad Zia
RespondentUnited Provinces
Excerpt:
- - first it is said that the provisions of the act which are complained about in this case fall within section 299(2), constitution act. and since no two constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. , was bad for two reasons. these are :(1) that, in the united states, it operates as a limitation upon the legislative as well as upon the executive branch of the government, and (2) that it relates to substantive as well as to procedural rights. in the united states it has been considered that the constitution imposes limitations upon all the powers of government, legislative as well as executive and judicial.collister, j.1. this is a suit against the united provinces by a land-holder of the district of allahabad, by name sheikh mohammad zia. he challenges the validity of 12 specific sections of the u. p. tenancy act (17 of 1939) and he also challenges the validity of the u. p. stayed arrears of rent (remissions) act--act 18 of 1939. the plaint recites the history of the legislation for consolidating and amending the law relating to agricultural tenancies from 20th april 1988, the date of the introduction of the bill in the legislative assembly, to 1st january 1940, the date when the act came into force. it is alleged that when leave was sought to introduce the bill, certain members of the legislative assembly objected that, as some of the provisions were of an expropriatory character against.....
Judgment:

Collister, J.

1. This is a suit against the United Provinces by a land-holder of the district of Allahabad, by name Sheikh Mohammad Zia. He challenges the validity of 12 specific sections of the U. P. Tenancy Act (17 of 1939) and he also challenges the validity of the U. P. Stayed Arrears of Rent (Remissions) Act--Act 18 of 1939. The plaint recites the history of the legislation for consolidating and amending the law relating to agricultural tenancies from 20th April 1988, the date of the introduction of the bill in the Legislative Assembly, to 1st January 1940, the date when the Act came into force. It is alleged that when leave was sought to introduce the bill, certain members of the Legislative Assembly objected that, as some of the provisions were of an expropriatory character against the land-holders, the previous sanction of the Governor for its introduction was necessary under Section 299(3), Government of India Act; and, thereafter, the matter was referred to the Governor, who accorded his sanction on the assumption that such sanction was necessary. It is alleged on behalf of the plaintiff that the Legislature had no jurisdiction to consider the bill without having first obtained such sanction. It is further contended that when the bill was passed, it was the duty of the Governor under his Instrument of Instructions to reserve his assent for consideration of the bill by the Governor-General inasmuch as he had expressed a doubt as to whether the bill offended against the provisions of Section 299, Government of India Act.

2. In paras. 7 and 8 of the plaint it was alleged that the plaintiff had instituted certain suits against his tenants for arrears of rent and in some of those suits he had obtained decrees, but the hearing of the suits and the execution of the decrees have all along been stayed by a series of Acts, namely Act 4 of 1937, Act 6 of 1987 and Act 9 of 1938, and finally the U. P. Stayed Arrears of Bent (Remissions) Act--Act 18 of 1939 was passed by the Legislature and received the assent of the Governor on 30th January 1940, and by the operation of that Act all arrears of rent due to the plaintiff -- whether decreed or undecreed -- up to 1944 Fasli have been completely wiped off. The land-holders have thereby been deprived of their valuable rights recognized by the existing law, and the Act--that is to say Act 18 of 1939--was ultra vires of the Provincial Legislature. The relief claimed in the plaint was a declaration that the U. P. Tenancy Act -- Act 17 of 1939 -- and the U. P. Stayed Arrears of Kent (Remissions) Act--Act 18 of 1939--were ultra vires of the Legislature, being opposed to Section 299 and other provisions of the Government of India Act.

3. In defence the allegations of invalidity were denied. It was contended that the impugned sections of Act 17 of 1939 and the provisions of Act 18 of 1939 were not ultra vires, that Section 299, Government of India Act, had no application, that in any case nothing that was done offended against the provisions of that section, that it was unnecessary for the Governor to reserve his assent and that, even if it was necessary for him to do so, the matter of his assent cannot be called in question in a Court of law--vide Sections 53(2) and 75, Government of India Act. It was also contended that the plaint disclosed no cause of action, that a suit for a declaration of this character is incompetent and that it is barred by Section 42, Specific Relief Act. It was further alleged that the notice given by the plaintiff under Section 80, Civil P. C.; was invalid and on this ground also the suit was liable to be dismissed. The following issues were settled :

1. Has the plaintiff any cause of action against the defendant ?

2. Does a suit lie for a mere declaration that an Act of the Legislature or any of its provisions is illegal and ultra vires and has the civil Court jurisdiction to entertain such a suit ?

3. Is the suit barred by Section 42, Specific Relief Act ?

4. (a) Are the provisions of Sections 6, 16, 20, 81, 90, 91, 158, 163, 165/252, 294 and 296, U. P. Tenancy Act 17 of 1939 or any of them ultra vires the U. P. Legislature (b) Are the above sections intra vires the U. P. Legislature under entries 2, 21 and 39 of List 2 of Schedule 7 attached to the Government of India Act, 1935 ?

5. Is the U. P. Stayed Arrears of Rent (Remissions) Act (18 of 1939) ultra vires the United Provinces Legislature ?

6. Does Section 299, Government of India Act, 1935, apply to the provisions of the sections of the U. P. Tenancy Act (17 of 1939) mentioned in Para. 6 of the plaint ?

7. (a) Have the formalities required by Section 299, Government of India Act, 1935, been duly complied with (b) If not, what is the legal effect of such non-compliance (c) Had the United Provinces Legislature any jurisdiction to consider the United Provinces Tenancy Bill without having obtained the previous sanction of the Governor to the introduction of the bill and had it jurisdiction thereafter to pass the bill into an Act (d) If there was any defect of jurisdiction, was it cured by the subsequent sanction given by the Governor ?

8. (a) Was the Governor bound under the circumstances of the case to reserve under his Instrument of Instructions the bill for the consideration of the Governor-General (b) What is the legal effect of such an omission on the part of the Governor (c) Can the question of the Governor's action in respect of this matter be raised in a civil Court ?

9. In the circumstances of the case should this Court in exercise of its discretion grant the declaration prayed for ?

10. Was the notice given by the plaintiff to the Government under Section 80, Civil P. C., not valid If so, is the suit liable to be dismissed on that ground ?

4. Since we are dismissing the suit on merits, we consider it unnecessary to record findings upon the first three issues. I will first take up issues Nos. 4 and 6. The contention of Sir Tej Bahadur Sapru is that the provisions of the 12 sections mentioned in issue 4 (a) are of an expropriatory character and that the Provincial Legislature is not competent to pass an enactment adversely affecting the fundamental rights of a subject in property, except within, the limits of Section 299, Government of India Act, and it is pleaded that these sections of the Tenancy Act are in violation of the provisions of the last-mentioned section of the Government of India Act. I will deal with this matter on the assumption that all the 12 sections are expropriatory in effect--which is not admitted by learned Counsel for the defendant. List 2 of Schedule 7 of the Act sets out the subjects in respect to which the Provincial Legislature is competent to legislate. Item 21 mentions inter alia 'Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant and the collection of rents' and it has been held by the Federal Court in Jagan Nath Baksh Singh v. United Provinces which was a case from Oudh-that

the provisions of the Act fall within entry No. 21 of the Provincial Legislative List and it was prima facie within the competence of the Provincial Legislature to enact it.

5. I may mention that the question for decision before the Federal Court was whether the U. P. Tenancy Act or certain specified provisions of it were ultra vires for the reasons that the Act cut down the absolute rights which were claimed by the taluqdars to be comprised in the grant of their estates, as evidenced by sanads granted by the British Government; and it was held that this was within the competence of the U. P. Legislature and that the Act was not open to challenge on any of the grounds argued before the Court. The plea which Sir Tej Bahadur has advanced before us, however, is that the Legislature has no power to divest any subject of the fundamental rights in property which are already vested in him and recognised by the pre-existing law, and for this proposition he relies on certain authorities which I shall shortly mention. Section 299, Government of India Act, has three clauses. I shall first discuss the second clause because the argument based on it can be very briefly disposed of. This clause provides that no Legislature in India shall have power to make any law authorising the compulsory acquisition of property for public purposes, unless the law provides for the payment of compensation and either fixes the amount of the compensation or specifies the principle on which and the manner in which it is to be determined. At p. 63 of the judgment in Jagan Nath Baksh Singh v. United Provinces , already referred to, the learned Chief Justice of India says:

First it is said that the provisions of the Act which are complained about in this case fall within Section 299(2), Constitution Act.... The answer to this is that a law which regulates the relations of landlord and tenant and thereby diminishes the rights which the landlord has hitherto exercised in connexion with his land does not authorise the compulsory acquisition of the laud for public or any other purposes; and therefore the question of compensation does not arise.

6. This observation concludes the matter so far as the second clause of Section 299 is concerned. Clause 1 of Section 299 provides : 'No person shall be deprived of his property in British India save by authority of law.' The apparent meaning of this is that a person can be deprived of his property if a law is passed which has the effect of expropriating him. But Sir Tej Bahadur does not accept this interpretation; he says that what was meant by this clause was that--no person unless adequately compensated--shall be deprived by any subsequent Act of the Legislature of the fundamental rights in property which are already vested in him, and he contends that this is a vital principle of British constitutional law. In this connexion he has drawn our attention to the following passage in Queen Victoria's Proclamation of 1858:

We know and respect the feelings of attachment with which the natives of India regard the lands inherited by them from their ancestors; and we desire to protect them in all rights connected therewith, subject to the equitable demands of the State; and we will that generally in framing and administering the law due regard be paid to the ancient rights, usages and customs of India.

7. We have been referred to two English decisions but they do not appear to bear out the proposition for which Sir Tej Bahadur contends. In Western Counties Railway Co. v. Windsor and Annapolis Railway Co. (1882) 7 A. C. 178, it was held by their Lordships of the Privy Council that the canon of construction applicable to the statute which was there under consideration was that

it must not be deemed to take away or exceed the right of the respondent company, unless it appears by express words or by plain implication that it was the intention of the Legislature to do so.

8. Similarly in Commissioner of Public Works v. Logan (1903) 1903 A. C. 355, it was laid down by the Privy Council that it is a sound canon of construction that an intention to take away property without compensation should not be imputed to a Legislature unless it be expressed in unequivocal terms. Thus all that is required according to these authorities is that the intention to expropriate must appear either expressly or by clear implication. For the purpose of explaining Section 299, Government of India Act, Sir Tej Bahadur has referred us to para. 869 of the Joint Parliamentary Committee's Report and he bases his right to refer to this report upon an observation of the learned Chief Justice of India in In re The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act . The authors of the report first stated their opinion in para. 369 that legislation expropriating particular individuals should be lawful only if confined to expropriation for public purposes and upon payment of compensation, and they then go on to say:

General legislation on the other hand, the effect of which would be to transfer to public ownership some particular class of property or to extinguish or modify the rights of individuals in it ought, we think, to require the previous sanction of the Governor-General or Governor (as the case may be) to its introduction; and in that event he should be directed by his Instrument of Instructions to take into account as a relevant factor the language of the provisions proposed for compensating those whose interests will be adversely affected by the legislation.

9. The opinion here expressed as regards the necessity for previous sanction was given effect to in Clause (3) of Section 299 with which I shall presently have to deal; and compensation is provided for in Clause (2). Whatever the authors of the report may have had in mind as regards the scope of compensation, I do not think that the passage upon which learned Counsel for the plaintiff relies can assist him substantially. It is the Act, not the report, which we have to interpret; and the opinion of the authors of the report cannot prevail where it is found to be at variance with the clear provisions of the Act. Sir Tej Bahadur has then drawn our attention to Broom's Constitutional Law, Edn. 2, pp. 281 and 232; but the observations upon which he relies are concerned with the protection of property against invasion by the Crown. There is no question here of any such invasion. We are next referred to certain American commentaries in support of learned Counsel's contention and for the proposition that a legislative enactment is not necessarily the 'law of the land.' These are Willoughby on the Constitution of the United States, Edn. 2, vol. 3, and Cooley's Constitutional Limitations, vol. 2. I have carefully examined the passages to which our attention has been drawn, but I do not think it is necessary to cite them. The law in America has to be interpreted with reference to the constitution of the United States, and, what may be implicit in the terms of that constitution is by no means necessarily implicit in the terms of the Government of India Act. In the case re-ported in In re The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act , already mentioned, the learned Chief Justice of India, after stating that decisions from the Courts of Australia, Canada and the United States had been cited in argument, observes at p. 16; . . .

there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the constitution which the Court is interpreting; and since no two constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases; for a word or a phrase may take a colour from its context and bear different senses accordingly.

10. we have to consider in this suit is the meaning of the provisions of Section 299, Government of India Act. Clause (1) is apparently in the nature of a safeguard against arbitrary acts of the executive authority; it says that a person can only be deprived of property by authority of law. And Clauses (2) and (3) lay down conditions -- as regards compensation and sanction--in respect to certain kinds of expropriation and as regards modification and extinguishment of rights. As we have already seen, Clause (2) has no application to the Tenancy Act and it is unnecessary to discuss it any further. Clause (3) of the section provides:

No bill or amendment making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion, or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion.

11. It will be seen that this clause is concerned exclusively with land. It lays down that the previous sanction of the Governor must be obtained before a bill is introduced providing for the transference of land to public ownership or before a bill is introduced providing for the extinguishment or modification of rights in land. It has been suggested before us that the sense of the words 'transference to public ownership' after the word 'provision' should also be understood after the words 'extinguishment or modification;' that is to say, that what the Legislature meant was that the extinguishment or modification of rights in land, as contemplated in this clause, was the extinguishment or modification of rights for public purposes. I find nothing in the language of the clause to justify this interpretation and it appears to me that the provisions of this clause empower the Legislature, after previous sanction by the Governor, to pass any Act which will have the effect of extinguishing or modifying rights in land; and this is what the Tenancy Act under consideration is alleged by the plaintiff to have done. In The United Provinces v. Atiqa Begum , a point was taken that the Regularisation of Remissions Act of 1938 was void under Section 299(3) because the prior sanction of the Governor had not been obtained before its introduction and it seems to have been accepted that it was an Act such as is contemplated in Section 299(3); but it was held that, assent to the Act having been subsequently accorded, the defect was completely cured by Section 109(2) : vide the observations of the Chief Justice of India at p. 185 and of Sulaiman J. at p. 201. In my opinion the U. P. Legislature was specifically empowered by Clause (3) of Section 299, Government of India Act, to pass the Tenancy Act, with which this suit is concerned and whereby certain rights are modified and extinguished.

12. But assuming that this view is not correct and whatever the authors of the Joint Parliamentary Committee may have thought as regards the desirability of safeguarding the rights of individuals in private property--vide para. 369, already referred to,--Clause (1) of Section 299, Government of India Act, is plain in its language and sufficiently wide in my opinion, to be construed as empowering the Legislature to enact all those sections of the U. P. Tenancy Act which are impugned in the plaint of this suit. All that Clause (1) re-quires is that there should be 'authority of law.' The restrictions which it was intended to impose upon the legislative powers of the Indian Chambers are to be found in chaps. 2 and 3 of Part 5 of the Act and these chapters contain no such restriction as is contended for by learned Counsel for the plaintiff. The only other restrictions in the Act are those which are mentioned in Clauses (2) and (3) of Section 299. These I have already discussed. In Jagan Nath Baksh Singh v. United Provinces there is the following observation :

If once it be found that the subject-matter of a Crown grant is within the competence of a Provincial Legislature, nothing can prevent that Legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally. Safeguards may be found in the Constitution Act against hasty or improvident legislation on some matters, as for instance, the prohibition against the introduction of legislative proposals without the prior sanction of the Governor; or the clause in the Governor's Instrument of Instructions to which our attention was drawn in a recent appeal requiring him to reserve for the signification of His Majesty's pleasure any bill which affects the permanent settlement. In the appeal now before us we are concerned with the question of legislative competence only; and we decline to extract from the delaying or safeguarding provisions of the Constitution Act anything which would prohibit a Legislature from legislating at all. Such a prohibition must be express and specific, since, as we have observed in another case, every intendment ought to be made in favour of a Provincial Legislature which is exercising its legislative powers.

13. I can find no grounds which would justify this Court in holding that it was not within the competence of the U. P. Legislature to pass the impugned sections of the U. P. Tenancy Act, if not specifically under Clause (8), then, generally under Clause (1) of Section 299, Government of India Act. On issues 4 and 6, therefore, my findings are that under the provisions of Section 299, Government of India Act, the sections of the U. P. Tenancy Act, set out in issue 4 (a), were not ultra vires of the U. P. Legislature and do not offend against the provisions of the last mentioned section.

14. The next issue which falls properly to be considered is No. 7. The plea involved in this issue is that the Act is invalid for the reason that the previous sanction of the Governor was not obtained as required by Section 299(3), before the introduction of the bill. There is no force in this plea. We have before us the Legislative Assembly proceedings of 1988, vol. 6, and the relevant pages are pages 724 et seq. It appears that on 20th April 1938, the Revenue Member asked leave to introduce the bill. An objection was taken that the previous sanction of the Governor was necessary under Section 299(3). The Speaker referred the matter to the Governor -- vide page 730 -- and on that same day, i. e., 20th April 1938, he received the following reply :

The question whether the previous sanction of the Governor to the introduction of the U. P. Tenancy Bill is, in fact, required under the terms of the Government of India Act appears to me to be of some doubt. In the circumstances, I consider it prudent that I should proceed on the assumption that previous sanction is necessary and, taking that view I hereby accord my sanction to the introduction of the bill.

15. The reply will be found at p. 764. The bill was then introduced and in due course it was passed into law. Prom the above statement of facts it is clear that sanction was obtained before the bill was introduced; and even if this were not so, any defect that might have occurred would be cured by the provisions of Section 109(2) of the Act. The formalities required by Section 299 were fully complied with and the Legislature was competent to take the bill into consideration. We now come to issue 8. It is contended on behalf of the plaintiff that, having regard to para. 17 (c) of the Instrument of Instructions, it was the duty of the Governor to reserve the bill for the consideration of the Governor-General under Section 75 of the Act. Paragraph 17 (c) of the Instrument of Instructions provides that the Governor shall not assent to, but shall reserve for the consideration of the Governor-General any bill regarding which he feels doubt whether it does or does not offend against the purposes of Ch. 3 of Part 5 or Section 299 of the Act. But the letter of the Governor dated 20th April 1938, already cited, shows that the only doubt which the Governor entertained was whether his previous sanction was required under Clause (3) of Section 299; there is nothing to indicate that he had any doubt as to whether the bill offended against the purposes of Section 299. Moreover, under Section 53(2) of the Act the validity of the assent accorded by the Governor cannot be called in question. I am unable to accept learned Counsel's contention, based on the marginal note of Section 87, that Section 53(2) does not exclude the right to call an act of the Governor in question in a Court of law. The language of Section 53(2), in my opinion, affords no support to this plea. My finding on issue 8 is that the Governor was not bound to reserve the bill and in any case his action in according assent cannot be called in question in the civil Court.

16. I will now take up issue 5, which is concerned with the U. P. Stayed Arrears of Rent (Remissions) Act--Act 18 of 1939. The argument is that the Act is confiscatory and as such was ultra vires of the U. P. Legislature. This issue is, I think, concluded against the plaintiff by my reasoning in respect to issues 4 and 6 and also by the decision of the Federal Court in The United Provinces v. Atiqa Begum , where the U. P. Regularization of Remissions Act--Act 14 of 1938--was under consideration. My finding is that the Act with which this issue is concerned was not ultra vires of the U. P. Legislature. We are left with issue 10. It arises out of a plea taken by the defendant. The contention is that the notice under Section 80, Civil P. C., was bad for two reasons. One is that in the draft plaint attached to it the valuation of the suit was given as Rs. 10,300, whereas in the plaint as presented in Court the valuation appears as Rs. 60,000. The other ground is that in the notice there were two reliefs. One was a relief for damages and the other for a declaration, whereas in the plaint of the suit the only relief prayed for was that of declaration. This is a sheer technicality, which cannot operate to defeat the suit. Section 80 does not require that the valuation of the suit shall be stated and the defendant has been in no way prejudiced by the fact of one of the two reliefs being subsequently dropped. I find this issue against the defendant. The result of my findings is that I would dismiss this suit with costs.

Allsop, J.

17. I have had the advantage of seeing my learned brother's judgment and I agree that the suit must be dismissed. The first question is whether the legislative provisions with which we are, concerned deal with matters which are among those enumerated in the provincial legislative list in Schedule 7, Government of India Act, 1935. This list includes in para. 21

land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents ; transfer, alienation and devolution of agricultural land ; land improvement and agricultural loans.

18. It seems clear on the face of it that these provisions deal with matters included within this paragraph, but if there could be any doubt upon the point, this doubt would be resolved by the authority of the Federal Court. It was held in Jagan Nath Baksh Singh v. United Provinces that the provisions of the United Provinces Tenancy Act fall within entry 21 of the provincial legislative list and in The United Provinces v. Atiqa Begum that the Provincial Legislature could deal with remission of rent which is the subject-matter of the U. P. Stayed Arrears of Rent (Remissions) Act, 18 of 1939.

19. The next question is whether the general legislative powers given to the Provincial Legislature by the schedule are restricted under the provisions of the Government of India Act, 1935. These restrictions are contained in Chaps. 2 and 3 Part 5 of the Act. There is nothing in those chapters which would have precluded the Provincial Legislature from enacting the provisions with which we are concerned: Learned Counsel for the plaintiff has, therefore, fallen back upon the provisions of Section 299 of the Act. Sub-section (2) of that section deals in terms with compulsory acquisition for public purposes and cannot apply in this ease. Sub-section (3) deals with Bills making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein. It is arguable that the words 'extinguishment or modification of rights' must refer only to the extinguishment or modification of rights in the interests of the public, but the question is of no importance. Even if we read the words in their widest meaning, the sub-section provides only that a Bill making provision for such extinguishment or modification shall not be introduced without the previous sanction of the Governor in his discretion. It has not been suggested to us that the subsection applies to the U. P. Stayed Arrears of Rent (Remissions) Act, and as for the U. P. Tenancy Act a reference to the proceedings of the Provincial Legislature will show that the sanction of the Governor was accorded before the Act was introduced. The question of sanction was raised when the Revenue Member of the Government asked-for the leave of the Legislature to introduce the Act. At that stage after some discussion the question was referred to the Governor who ultimately gave his sanction. After this sanction had been given the Revenue Member again asked for leave to introduce the Bill and when leave was granted, the Bill was introduced. Even if previous sanction was necessary to the introduction of either of the two Acts and if sanction had not been given, the provisions of Section 109(2) of the Act provide that no Act shall be invalid by reason only that some previous sanction was not given if assent to that Act was given by the Governor. It is not denied that subsequent assent was given to both the Acts with which we are concerned.

20. Learned Counsel has urged that the Governor under the terms of his Instrument of Instructions should not have given assent to the U. P. Tenancy Act but should have withheld it in order to obtain the assent of the Governor-General. The argument is that the Governor had expressed a doubt about the propriety of the Act when he said in giving sanction that be was doubtful whether sanction was necessary. It is clear that the Governor was not expressing any doubt about the propriety of the Act but only about the necessity for his previous sanction to the introduction of the Bill. The question, however, is again of no importance because Section 53(2), Government of India Act, 1935, provides that the validity of anything done by the Governor of a Province shall not be called in question on the ground that it was done otherwise than in accordance with any Instrument of Instructions issued to him.

21. It is clear that Sub-section (8) of Section 299 does not in any way invalidate any of the provisions of the U. P. Tenancy Act or of the other Act with which we are dealing. It remains to consider the effect of Sub-section (1) of Section 299 on which learned Counsel for the plaintiff has relied. This sub-section is in the following terms : 'No person shall be deprived of his property in British India save by authority of law.' In its plain meaning this sub-section lays down that no person shall be deprived of his property without the authority of the Legislature and without recourse to the procedure which the Legislature has provided for the purpose. Learned Counsel has, however, argued that the term 'authority of law' has a special meaning. He has contended that the law includes certain fundamental rights of a citizen with which the Legislature is not entitled to interfere and has referred us to certain passages in two American text-books--Cooley's Constitutional Limitations and Willoughby on the Constitution of the United State's. These passages refer, in my judgment, only to the law as it is understood in the United States of America. This will appear from a passage in one of the text books themselves. Mr. Willoughby on p. 1690 of vol. 8 of Edn. 2 of his work says:

In two most important respects the application in America of the requirement of due process of law has differed from that which it had received in England prior to 1776, and which, indeed, it still receives in that country. These are : (1) that, in the United States, it operates as a limitation upon the legislative as well as upon the executive branch of the government, and (2) that it relates to substantive as well as to procedural rights.

22. In continuing his discussion upon the subject he has referred to the undoubted fact that the omnipotency of Parliament over Common law is absolute. Parliament in England has an unfettered right of legislation and of delegating this right to any subordinate Legislature. In the United States it has been considered that the Constitution imposes limitations upon all the powers of Government, legislative as well as executive and judicial. In England there are no limitations upon the legislative power of Parliament and we have merely to consider in construing the Government of India Act whether Parliament in delegating its powers to the Indian Legislature has imposed any restrictions. There are no restrictions in the Government of India Act which could prevent the Provincial Legislature from enacting the provisions of law with which we are concerned.

23. We dismiss the suit with costs. We certify under Section 205, Government of India Act, 1935, that the case involves a substantial question of law as to the interpretation of the Government of India Act.


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