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Subodh Gopal Bose Vs. Behari Lal Dolui and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberReference No. 4 of 1950
Reported inAIR1951Cal85,55CWN433
ActsBengal Land Revenue Sales (West Bengal Amendment) Act, 1950 - Section 7; ;Constitution of India - Articles 13(1), 19(1) and 19(5)
AppellantSubodh Gopal Bose
RespondentBehari Lal Dolui and ors.
Appellant AdvocateAtul Chandra Gupta and ;Joy Gopal Ghose, Advs.;S.M. Bose and ;Chandra Sekhar Sen, Advs.
Respondent AdvocateHemenara Kumar Das and ;Bon Behari Mookerjee, Advs.
Cases ReferredCase of Charanjit Lal v. Union of India
- banerjee, j.1. the question raised in this reference is as to whether section 7, west bengal act vii [7] of 1950 or any part of it, is ultra vires the const. ind.2. the appeal was pending in the ct. of the addl. dist. j. of 24-parganas when on an appln. made by the pltf who is the resp. in the appeal, we, under article 228, const. ind. transferred the appeal to this ct. for decision of the constitutional point involved in it.3. the facts, in so far as they are material to this judgment, are as follows: the petnr. purchased the entire touzi being no. 341 of the 24 parganas collectorate at a revenue sale held on 9-1-1942. after purchase the purchaser annulled the under-tenures & tenancies which he was entitled to avoid & annul under section 87, act xi [11] of 1859, as it stood at the date.....

Banerjee, J.

1. The question raised in this reference is as to whether Section 7, West Bengal Act VII [7] of 1950 or any part of it, is ultra vires the Const. Ind.

2. The appeal was pending in the Ct. of the Addl. Dist. J. of 24-Parganas when on an appln. made by the pltf who is the resp. in the appeal, we, under Article 228, Const. Ind. transferred the appeal to this Ct. for decision of the constitutional point involved in it.

3. The facts, in so far as they are material to this judgment, are as follows: The petnr. purchased the entire Touzi being No. 341 of the 24 Parganas Collectorate at a revenue sale held on 9-1-1942. After purchase the purchaser annulled the under-tenures & tenancies which he was entitled to avoid & annul Under Section 87, Act XI [11] of 1859, as it stood at the date of the sale (9-1-1942) & at the date of the institution of the suit.

4. On 18-3 1946, the pltf. instituted the suit out of which this appeal arises, in the Ct. of the Fourth Subordinate Judge, 24-Parganas (T. S. No. 35 of 1946) for ejectment. There were several defts.

5. The pltf's east is that by purchase at the sale, he acquired the estate free from all incumbrances imposed upon it after the time of settlement & was entitled to avoid & annul the under-tenure's & tenaucies & forthwith to eject the tenants under that section; that by notice duly served, he has annulled the tenures & tenancies & is entitled to recover possession of the suit lands.

6. The suit was contested by deft. 1 alone. His defence, inter alia, was that he was a raiyat within the meaning of the proviso to that section & was not liable to be ejected. He further claimed protection under the fourth exception to that section.

7. The learned trial Judge delivered judgment on 14-2-1949. He overruled the objections of the deft. save as to two plots & passed a decree in pltf's. favour accordingly. The suit against the other defts. was dismissed, the learned Judge holding that they were not necessary parties to the suit.

8. The deft. on 25-3-1949, preferred an appeal to the Dist. J. (T. A. No. 252 of 1949), which was transferred to the Addl. Dist. J. & was pending before him, when the appln. for transfer was made to this Ct. under Article 228 of the Constitution.

9. The West Bengal legislature has passed an Act called 'West Bengal Act VII [7] of 1950--The Bengal Land-Revenue Sales (West Bengal Amendment) Act, 1950', which received the assent of His Excellency the Governor on 15-3-1950, & was published in the Calcutta Gazette Extraordinary of that date. The preamble of the Act is:

'Whereas it is expedient further to amend the Bengal Land Revenue Sales Act, 1859, in its application to West Bengal, for the purposes & in the manner hereinafter appearing.'

10. Section 37 of the Act of 1859 has been replaced by Section 4 of the Act of 1950 which defines the rights of a purchaser of a permanently settled estate sold for its own arrears.

11. Section 37 of the Act of 1859 gave the purchaser of an entire estate the right to avoid certain incumbrances & under-tenures & acquire the estate in the condition in which it was at the time of the permanent settlement. The words of the section are:

'the purchaser....... shall acquire the estate free from all incumbrances which may have been imposed upon it after the time of settlement; & shall be entitled to avoid & annul all under-tenures & forthwith to eject all under tenants with the following exceptions: . . . .'

Though this right was given to the purchaser for the protection of the Govt. revenue, the right was an extremely valuable one.

12. The effect of Section 4, on the other hand, is that the purchaser is not entitled to annul tenures & tenancies such as he could do Under Section 37 of the Act, of 1859. A purchaser of an estate, who purchases after the commencement of the Amending Act, does not Under Section 4, get that extensive right of annulling tenures & tenancies which a purchaser got under the Act of 1859.

13. Then comes Section 7 of the Amending Act which is as follows:

'7. (1) (a) Every suit or proceeding for the ejectment of any person from any land in pursuance of Section 37 or Section 52 of the said Act. &

(b) every appeal or appln. for review or revn. arising out of such suit or proceeding, pending at the date of commencement of this Act shall, if the suit, proceeding, appeal or appln. could not have been validly instituted, preferred or made, had this Act been in operation at the date of the institution, the preferring or the making, thereof, abate.

(2) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of Section 37 or Section 52 of the said Act shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void :

Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act.(3) Wherever any suit, proceeding, appeal or appln. abates under Sub-s. (1) or any decree or order becomes void under sub-s. (2), all fees paid under the C. F. Act, 1870, shall be refunded to the parties by whom the same were respectively paid.'

14. It is clear that under this section, pltf.'s suit abates & the decree becomes void.

15. It is argued on behalf of the petnr. that Section 7 violates the fundamental right assured to him by Article 19(1)(f) of the Constitution--to acquire, hold & dispose of property--& as such is void, under Article 13.

16. The material portions of Articles 19 & 13 of the Constitution are as follows :

'Article 19(1)--All citizens shall have the right --

(f) to acquire, hold & dispose of property; &

(5) Nothing in Sub-clause (f) shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clause either in the interests of the general public or for the protection of the interests of any Schedule Tribe.

Article 13(1)--All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part & any law made in contravention of this clause shall to the extent of the contravention, be void.'

17. Property has various meanings. In its strict sense, it denotes a right--indefinite in point of user--unrestricted in point of disposition--& unlimited in point of duration--over a determinate thing. Another meaning of it is the aggregate of a man's faculties, rights, or means. When we speak of a man of property, meaning a wealthy man,--we seem chiefly to contemplate the value of his rights in external things, or of the debts due to him; the most conspicuous proportion of his rights. (Austin's Jurisprudence).

18. Cooley in his Constitutional law defines property thus :

'Whatever a man produces by the labour of his hand or his brain, whatever he obtains in exchange for something of his own, & whatever is given to him, the law will protect him in the use, enjoyment & disposition of.'

19. The purchaser acquired the 'property' with all rights under then existing law & is entitled to hold it in the condition he acquired it. The Legislature by the Amending Act abridges the rights. Under the Act then existing he could annul certain tenures etc. The amending Act says he cannot. After annulling the tenures under the Act of 1859, he filed a suit for possession. He got a decree in the trial Ct. & when the appeal was pending in the Ct. of the Addl. Dist. J., the Act was passed enacting that his suit for ejectment must abate & the decree is void. What is the position ?

20. The right acquired by the subject of a Govt. under existing laws is sacred. The supreme duty of the Govt. is to protect it. Any needless interference with the right is a positive evil & injury.

21. In spite of the fact that philosophical writers have denied that any Legislature ought to have the power to pass acts having retrospective operation, no one denies that it is competent for the Legislature to do so & they have many times done so in the past.

22. The Legislature must have power to make such changes in the law as social or political condition requires. Any denial of such power would reduce us to a state of stagnation & immobility. Yet unless there is a compelling necessity, the Legislature cannot make any law mischievously affecting the rights acquired by the subjects. If the Legislature at its sweet will & pleasure could interfere with such right, people would have no incentive to acquire property or work for it. For if a man cannot keep what he has rightly acquired, what should he work for--what should he strive for Any heedless act on the part of the Legislature produces a general sense of insecurity & consequent inactivity in individuals who compose the nation, leading ultimately to its degradation. The Govt., therefore, must be very cautious in passing a law which takes away vested rights. If there is a compelling necessity, the Legislature can pass such law, but then it must be for doing the greatest good to the greatest number.

23. In Bac. Abr. 439 ('statute' C) it is laid down as in general true, 'that no statute is to have a retrospect beyond the time of its commencement.'

24. Puffendorf observes :

'A law can be repealed by the law giver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice with a law all the effects which it had produced.'

25. Sedgwick says :

'The true principle of Legislation is frequently lost sight of in regard to the enactment of statutes having a retrospective effect. Laws are constantly passed, which disturb plans or destroy rights entered into upon the faith of, or created by previous legislation, Nothing short of some great, paramount emergency of public policy, can justify laws of this kind. It will be well for all engaged in the business of Govt., to understand & remember that the steady & uniform rule should be to make statutes operate prospectively only. No exception should be tolerated, but on the ground of a controlling public necessity.'

26. So careful are the Cts. in endeavouring to protect vested rights that we find that in several cases Judges have refused to allow statutes to have a retrospective operation, although their language seemed to imply that such was the intention of the legislature, because, if the statutes had been so construed, vested rights would have been defeated.

27. In Young v. Adams, (1898) A. C. 469 : (67 L. J. P. C. 75), the Judicial Committee had to consider whether a New South Wales Civil Service Act was retrospective in its operation. Lord Watson said :

'It does not seem to be very probable that the legislature should intend to extinguish, by means of retrospective enactment, rights & interests which might have already been valid in a very limited class of persons, consisting, so far as appears, of one individual viz., the resp. In such oases their Lordships are of opinion that the rule laid down by Erie, C. J., in Midland Rly. v. Pye, (1861-10 C. B. (N S) 191) ought to apply. They think that in the present case the learned Chief Justice (of New South Wales) was right in saying that a retrospective operation ought not to be given to the statute unless the intention of the legislature that it should be so construed is expressed in plain & unambiguous language, because it manifestly shocks our sense of justice that an Act, legal at the time of doing it, should be made unlawful by some new enactment. The ratio is equally apparent when a new enactment is said to convert an act wrongfully done into a legal act, & to deprive the person injured of the remedy which the law then gave him.' The italics are mine.

28. In Moon v. Durden, (1848) 2 Ex. 22 (76 R. R. 479), an action to recover a sum of money alleged to have been won upon a wager was commenced in June, 1845. In August, 1845 the Gaming, Act 1845, was passed, which enacted, in Section 18, that 'no suit shall be brought or maintained for recovering' any such sum of 'money', & the question was whether that enactment was retrospective so as to defeat an action already commenced. It was held that it was not retrospective, & Parke B., in his judgment said :

'It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he has to any of his personal property, should be totally deprived of it without compensation.'

And Alderson B, refused to give retrospective operation to the Act on the ground that he could not think

'that the legislature contemplated so gross an act of injustice as, without compensation, to take away an existing right of action already pending, & that, too, with no provision even for the costs incurred in enforcing of what was, before the Act, a legal right.'

29. There are other cases in which Cts. have taken the same view.

30. It is clear that the subjects of a civilised country have the right to expect that they would be allowed to retain rights they acquired under the existing law.

31. Under Section 7 of the new Act the suit abates, & the decree becomes void. It takes away certain rights which the petnr. acquired under the law as it existed before the passing of the new Act. The same thing cannot be said of Section 4. It has prospective operation only. A purchaser who purchases a touzi after the passing of the new Act does so with his eyes open. He knows what rights he will get & what he will not. He knows what tenures & tenancies he can annul & avoid & what he cannot. He offers his bid accordingly, & therefore no exception can be taken to that section

32. Mr. Atul Gupta, learned counsel for the petnr. has not challenged the validity of Section 4. His attack is on Section 7. Section 7 does not provide for payment of any compensation. Out of the purchase money paid by the petnr. a portion will go to liquidate the revenue in arrears & the balance will be paid to the defaulting touzi holder. In other words the legislature by passing Section 7 takes away the property of A & gives it to B. There cannot, therefore, be doubted that a restriction has been imposed on the petnr.'s righti to hold the property he acquired.

33. The question before us is whether the restriction is reasonable. What is the test of reasonableness One thing seems to be clear that it must mean not more than enough to attain the object'. It must not be greater than the mischief it is intended to prevent. If it is neceesary to pass an Act in the interest of the general public imposing restriction on the exercise of right already acquired, pass it by all means, but then the restriction imposed must not be greater than what is necessary to meet the requirement of the case.

34. The onus is on the petnr. to show that the impugned section violates the principles of Constitution & is arbitrary & unreasonable. That has been held in Charanjit v Union of India, : [1950]1SCR869 . But in this case though there was discussion at the Bar on the question of onus, we need not pause to consider it, because, as I have already said, unless there is compelling public necessity, the legislature cannot pass an Act having retrospective operation.

35. We asked the Advocate General, who appeared on behalf of the State, to tell us what was the compelling necessity that induced the legislature to enact Section 7. The Advocate General, I must say, was not able to give a satisfactory answer. All that he said was that the petnr. knew that an Act might be passed which might take away his vested right & knowing that he purchased the property & so he could not make any grievance. I do not think that it is an answer at all. We might as well say that the purchaser knew that the right he acquired under the existing law would not be taken away. He may as well think that this Act has been in existence ever since 1859 & though the country has passed through many vicissitudes, as no one touched the Act or Section 37 before, no one would do it. By long existence the Act produced a sense of repose in the minds of people. After a hundred years, the Bengal legislature has thought fit to disturb it. How could one anticipate it ?

36. The Advocate General further said that the amendment had been made in furtherance of an agrarian scheme. Be it so. Nobody denies the right of the legislature to pass such Act as it may think fit to improve the lot of the tenants or the raiyats. But the legislature cannot do so at the expense of other people. Why take away the property of A & give it to B How can the legislature take away property without making provision for payment of compensation That right is not given by the people of a country to its Govt.

37. From the preamble it appears that the legislature passed it not because it was necessary to do so but because it thought it was expedient to do so. There is nothing before us to she w that it was necessary to pass the Amending Act at the present social or political condition of the country.

38. Section 7 is clearly separable from the rest of the Act., That has been conceded by counsel for the parties. The principle that a statute is void only so far as its provisions are repugnant to the Constitution, that one provision may be void, & this will not affect other provisions of the statute, has been frequently declared. 'The principle is now well understood,' says the S. C. of Massachusetts.

'that where a statute has been passed by the legislature under all the forms & sanctions requisite to the making of laws, some part of which is not within the competency of the legislative power, or is repugnant to any provision of the Constitution, such part thereof will be adjudged void & of no avail ; whilst all other parts in the Act, not obnoxious to the same objection, will be held valid & have the force of law. There is nothing inconsistent in declaring one part of the same statute valid & another part void.'

This principle is recognized in Article 13 of our Constitution. Section 7 therefore being separable from the rest of the Act, we declare that section to be void.

39. The case is now returned to the Ct. from which it came for disposal in conformity with our judgment.

40. The petnr. is entitled to the costs of the petn. assessed at 15 gold mohurs.

Harries, C.J.

41. I agree.

42. It is not suggested that the Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950 (Act VII [7] of 1950) as a whole is ultra vires the Constitution & therefore void. A person who purchases at a Revenue Sale after the passing of this Act will purchase the property subject to the provisions of the Act. He will have no right to eject various classes of tenants which he could have ejected if this amending Act had not been passed, but it is not suggested that the State legislature cannot cut down the rights of auction-purchasers purchasing after the passing of the Act.

43. Objection however is taken to Section 7 of the amending Act which makes the provisions of the Act applicable to pending suits, appeals & proceedings & provides that all such suits, appeals or proceedings will abate if such could not have been validly instituted, preferred or made if the Act had been in force when they were instituted. Further, all decrees or orders made before the passing of this Act at the instance of auction-purchasers, are made void except where possession has been delivered to such auction purchaser in execution of such decrees or orders.

44. This amending Act therefore is clearly made applicable to pending litigation & unexecuted decrees & to that extent it has been given retrospective effect. Section 7 it is urged is ultra vires the Constitution in that it imposes a restriction on the right to hold property contrary to the provisions of Article 19(1)(f) & Article 19(5) of the Constitution.

45. Article 19(1)(f) declares that all citizens of the Republic shall have the right to acquire, hold & dispose of property & no law existing when the Constitution came into force or enacted thereafter is valid by reason of Articles 19(5) & 13(1) of the Constitution if it imposes restrictions on these Tights beyond what is reasonable & necessary in the interest of the general public.

46. Section 7 of the amending Act clearly takes away rights which the petnr. bad when the Act came into force. When he purchased the property at the Revenue Sale he became entitled to it under Section 37, Bengal Land Revenue Sales Act, 1859 free from all enoumbranees imposed on the property since the date of the Permanent Settlement & he had the right to annul & avoid all under-tenures & to eject all under tenants with a few exceptions.

47. Section 37, Bengal Land Revenue Sales Act, 1859, is repealed in its entirety by Section 4 of the amending Act of 1950 & this new section protects numerous interests which previously were unprotected and deprived the auction-purchaser of his right to put an end to such interests & to recover possession of the property subject to them. Making Section 4 of the amending Act applicable to pending litigation & unexecuted decrees deprives auction-purchasers in such litigation & the holders of such decrees of valuable rights which had accrued to them on their purchases at Revenue Sales. They were deprived of valuable rights which they were proceeding to enforce when this amending Act was passed.

48. The question for decision is whether Section 7 of the amending Act imposes restrictions on the petnr.'s right to hold property & if so whether such restrictions are or are not reasonable in the interest of the general public.

49. It was contended that the section could not be regarded as imposing any restrictions on the right to hold the property purchased at a Revenue Sale. The section does not deprive an auction-purchaser of the physical property purchased & therefore it is urged that it does not affect his right to hold the property. In my judgment restrictions on the right to hold property do not necessarily involve deprivation of the actual property. In fact it has been strenuously contended in other cases that deprivation of property cannot be regarded as a restriction reasonable or otherwise on the right to hold property. Section 7 of the amending Act though it does not deprive the auction-purchaser of the actual property purchased, does very materially limit his rights over such property & does deprive him of valuable rights in & over the same.

50. The right to hold property is the right to exercise & enforce all the rights which the ownership of property or of any interest therein involves. If any of these rights are taken away or prejudicially affected the right to hold such property has to that extent been affected or restricted. Where any rights are taken away or abridged the owner of the property holds the property with restricted rights therein. His right of enjoyment has been curtailed or restricted & therefore it appears to me to be clear that Section 7 of the amending Act does impose restrictions on the holding of property. It follows therefore that if these restrictions are more than are necessary in the interest of the general public, the section is void as ultra vires Articles 19(1)(f), 19(5) & 13(1) of the Constitution.

51. The petnr contended that the onus rested on the opposite party to show that the restrictions imposed were reasonable. The section it was urged clearly restricted a fundamental right which the petnr. had under the Constitution & therefore the burden rested on the party who sought to justify such a restriction. The opposite party on the other hand contended that the onus rested on the party seeking relief. Where such relief depended upon whether a legislative provision was ultra vires & void the onus of establishing such invalidity rested on the party challenging the provision in question. In my judgment the onus in this case rested on the petnr & this has now been decided by the S. C. in the Case of Charanjit Lal v. Union of India, : [1950]1SCR869 ., observed:

'It is the accepted doctrine of the American Cts., which I consider to be well founded on principle that the presumption is always in favour of the constitutionality of an enactment, & the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.'

52. The petnr. has in my view discharged this initial onus. The he impugned section makes the amending Act applicable to pending suits & unexecuted decrees. It purports to deprive the pltf.-petnr. of rights which he undoubtedly possessed when he instituted the suit & in fact when the appeal by the unsuccessful deft. was preferred. Prima facie such a section is unreasonable & such has always been the view of all Cts. both in England & India. The Cts. of both these countries declined to give retrospective effect to any statute affecting substantive rights unless such effect was given to it by express words or by necessary intendment or implication. The reason for such a rule of construction was that it was unreasonable to deprive a person of rights which had accrued to him by giving any enactment retrospective effect. Such effect was therefore never given unless by the plain words of the legislative provision or by necessary implication the Cts. were driven to place such a construction upon the enactment.

53. No Ct. would have given retrospective effect to Section 4 of the amending Act apart from the clear provisions of Section 7. Section 7 is prima facie unreasonable & prima facie does impose an unreasonable restriction on the petnr's fundamental right to hold property.

54. Further, it does not appear to me that it was in any way necessary in the interests of the general public to give Section 4 of the amending Act retrospective effect. The Bengal Land Revenue Sales Act which contains Section 37 now replaced by Section 4 of the amending Act was enacted in 1859. Since that date auction-purchasers had the right to annul all under-tenures & to eject all under-tenants with a few exceptions, it may well be that the time had come to amend the law as it is well known that the value of property has increased whereas the revenue demand has remained the same by reason of the Permanent Settlement. It may well have been thought that auction purchasers could now be obtained who would pay sufficient to satisfy the revenue demand without being able to acquire the property free from all encumbrances & with a right to eject various kinds of under-tenure holders & tenants. Why was it necessary however to make the change in this old law applicable to pending litigation & unexecuted decrees & thus deprive persons who had purchased of valuable rights which they acquired by such purchase. The learned Advocate General could give no reason why Section 7 was introduced into the amending Act. There was no suggestion that the number of suits or proceedings pending was abnormally large or that ejectment in 1950 would be followed by consequences more distressing or disastrous than ejectment in 1949 or in any of the years following the War. The law had remained unchanged for ninety years & nothing has been shown or even suggested which would make it imperative or even desirable that the change in the law when made should be made to apply to pending litigation or unexecuted decrees. Making this amendment applicable to pending litigation & unexecuted decrees is particularly objectionable & unreasonable & could only be justified on the ground of reason in very compelling circumstances.

55. The amendment deprives the auction purchaser of valuable rights which accrued to him on the purchase. Nevertheless the amendment makes no provision for abatement of the price which the auction purchaser had paid. In short the auction purchaser will obtain as a result of the amendment an estate in reversion whereas he paid a price for an estate in possession or practically so. Making the amendment applicable to pending suits appears to me therefore to be unfair & unreasonable in the absence of circumstances which made such a course imperative or necessary in the interests of the public.

56. It was urged that the limitation imposed by the amendment would in no way benefit the general public & could never be regarded as made in the public interest. The retrospective effect of this provision would certainly benefit the defaulting proprietor if the price obtained was more than the arrears of revenue. In the present case the revenue demand was Rs. 2287-7-6 whereas the price paid was Rs. 10,500. The defaulting proprietor received the difference which would have been very much less if the property had been purchased without right of ejecting the under tenure holder & most of the under-tenants.

57. Section 7 of the amending Act clearly benefits holders of interests previously liable to ejectment. It does not benefit tenure-holders, lessees or tenants as a whole, but only such who were J. Ds. under unexecuted decrees or who were being sued or could be sued within limitation. The class benefited is therefore a very limited one & therefore it is difficult & indeed impossible to hold that the restrictions or limitations imposed on the auction-purchaser's rights were necessary in the interests of the general public. In my judgment Section 7 of this amending Act is ultra vires Articles 19(1)(f) & 19(5) of the Constitution & it must therefore be held that the section is void by reason of Article 13(1) of the Constitution.

58. The impugned section is clearly severable from the remainder of the Act & this is conceded. Only Section 7 of the Act is therefore void & the appeal must be decided accordingly.

59. The records should be returned forthwith to the lower appellate Ct. which will proceed to decide the appeal bearing in mind the decision of this Ct. on this constitutional point.

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