10 October 1958
Supreme Court
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SHREE VINOD KUMAR & OTHERS. Vs STATE OF HIMACHAL PRADESH(and connected petition)

Bench: DAS, SUDHI RANJAN (CJ),BHAGWATI, NATWARLAL H.,SINHA, BHUVNESHWAR P.,SUBBARAO, K.,WANCHOO, K.N.
Case number: Writ Petition (Civil) 120 of 1955


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PETITIONER: SHREE VINOD KUMAR & OTHERS.

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH(and connected petition)

DATE OF JUDGMENT: 10/10/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1959 AIR  223            1959 SCR  Supl. (1) 160  CITATOR INFO :  E          1968 SC 360  (1)  RF         1975 SC2299  (606)

ACT:        Estates  Abolition-Validity  of  enactment-Himachal  Pradesh        Abolition  of Big Landed Estates and Land Reforms Act,  1953        (Himachal 15 of 1954).

HEADNOTE: The  petitioners, who were land-owners of Himachal  Pradesh, challenged  the  constitutional  validity  of  the  Himachal Pradesh  Abolition  of Big Landed Estates and  Land  Reforms Act, 1953 (Himachal 15 of 1954), said to have been passed by the  Legislative Assembly of the State of  Himachal  Pradesh functioning  under  the Himachal Pradesh and  Bilaspur  (New State) Act (32 Of 1954).  The impugned Act was introduced as a  bill in the first session of the Legislative Assembly  of the  Old  Himachal Pradesh elected under the  Government  of Part  C States Act (49 Of 1951).  Before the bill  could  be passed,  the Himachal Pradesh and Bilaspur (New  State)  Act (32 Of 1954) came into force on July 1, 1954, abolishing the old  Act  and uniting the two States into  one.   While  the Legislative  Assembly  for  the  New State  was  yet  to  be constituted,  on  July  7, 1954,  the  Governor  issued  the following   notification,-"  The  Lieutenant  Governor,   in exercise  of.  the  powers conferred by  Section  9  of  the Government of Part C States Act, 1951 (49 Of 1951), has been pleased  to  direct that the Second Session,  1954,  Of  the Himachal  Pradesh  Legislative Assembly will  commence  from Monday,  the 16th August, 1954, at 9-30 a.m. in the  Council Chamber, Simla-4." It  was  at this session that the impugned Act  was  passed. Its provisions were said to be drastic and to infringe Arts. 14,  19  and 31 Of the Constitution.  It  was  contended  on behalf  of the petitioners that apart from  violating  those Articles,  the  impugned  Act was void as it  had  not  been passed by a duly constituted legislature.  It was sought  to be contended on behalf of the respondent that under the  new Act  the  members of the Old Legislative  Assembly  must  be

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deemed  to constitute the legislature for the New State  and it was as such called by the Governor. Held, that the contention raised by the respondent was with- out  substance and must be negatived.  It was apparent  that the  so called Assembly which the Governor had convened  and which  purported  to  pass  the impugned  Act  was  not  the Legislative Assembly of the New State constituted under  the Himachal  Pradesh and Bilaspur (New State) Act (32 Of  1954) and  as such the Act could not be regarded as a valid  piece of legislation. 161

JUDGMENT: ORIGINAL  JURISDICTION:  Petitions Nos. 120-122,  164,  199, 213,  255, 260, 363, 378, 402 & 407 of 1955, 6, 7, 43,  120, 126, 142, 153, 154, 198, 216 & 223 of 1956, 32, 49, 60,  61, 141 & 143 of 1957, 3, 7 & 104 of 1958. Petitions  under  Article  32 of the  Constitution  for  the enforcement of fundamental-rights. Achhru  Ram and Ganpat Rai, for the petitioners in  Petition No. 120/55. D.R.  Prem  and  Ganpat  Rai,  for  the  petitioners   in Petitions Nos. 120, 121, 122, 164, 199, 213, 255, 260,  363, 402  & 407 of 1955, 6, 7, 43, 125, 142, 154, 198, 216 &  223 of 1956, 32, 60 & 143 of 1957, 7 & 104 of 1958. D.R.  Prem  and  S.  D. Sekhri,  for  the  petitioner  in Petition No. 378 of 1955. D.R.  Prem  and  P. C. Aggarwal, for  the  petitioner  in Petition No. 120/56. D.R. Prem and Raghu Nath, for the petitioner in  Petition No. 49/57. D.R. Prem and K. L. Mehta, for the petitioner in Petition No. 153/56. Y.Kumar, for the petitioner in Petitions Nos. 61 & 141 of 1957 & 3 of 1958. H.   N. Sanyal, Additional Solicitor General of India, H.   J. Umrigar  and T. M. Sen, for the respondent.    1958.   October  10.   The  Judgment  of  the  Court   was delivered by DAS,  C. J.-By each of these 32 petitions under Art.  32  of our  Constitution,  which  have  been  heard  together,  the respective petitioners challenge the constitutional validity of the Himachal Pradesh Abolition of Big Landed Estates  and Land Reforms Act, 1953. (Himachal 15 of 1954) which is said, to  have  been passed by the,.Legislative  Assembly  of  the State  of Himachal Pradesh created by the  Himachal  Pradesh and Bilaspur (New State) Act (32 of 1954). On November 23, 1954, the President of India gave his assent to the Bill which on being so assented to 21 162 became the Himachal Pradesh Abolition of Big Landed  Estates and   Land  Reforms  Act,  1953,  (Himachal  15   of   1954) (hereinafter  called  the Abolition Act).   On  January  26, 1955,  this  Abolition  Act  was brought  into  force  by  a notification  issued  under  s. 1(3) thereof.   It  will  be convenient  at this stage to refer to some of  the  relevant sections  of  the Abolition Act.  Section 11 confers  a  new right  on the tenants to acquire the interests of the  land- owners.  According to this section notwithstanding any  law, custom,  or contract to the contrary a tenant other  than  a sub-tenant  shall, on application made to  the  compensation officer  at any time after the commencement of the  Act,  be

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entitled to acquire, on payment of compensation, the  right, title  and  interest of the land-owner in the  land  of  the tenancy  held by him under the landowner subject to  certain terms  and conditions therein mentioned. Section 14  permits the acquisition by the tenant of the rights of the landowner in  a  portion  of  the lands  of  the  tenancy  in  certain specified circumstances on the surrender of the rest of  the lands.   Section 15 sanctions the acquisition by  the  State Government  of the rights of the landowners by  notification in  the  Gazette declaring that, as from such  date  and  in respect   of   such  area  as  may  be  specified   in   the notification, the right, title and interest of the landowner in the lands of any tenancy held under him by a tenant shall stand  transferred to and vest in the State Government  free from   all  encumbrances  created  in  such  lands  by   the landowner.   Section  16  provides for the  payment  to  the landowner,  whose right, title and interest in lands,  would be  acquired  by  the  State  Government  under  s.  15,  of compensation  to  be  calculated,  as  far  as  practicable, according  to the provisions of ss. 12 and 13.   Section  27 provides  that  notwithstanding anything  contained  in  the provisions  of  the foregoing sections of  that  Chapter,  a landowner  who holds land, the annual land revenue of  which exceeds  Rs. 125 per year, the right, title and interest  of such  owner  in  such  land shall be  deemed  to  have  been transferred and vested in the State Government free from all encumbrances.  Sub-section (3) of this section lays down 163 that  the landowner whose right is acquired under subs.  (1) by  the  State  Government, shall  be  entitled  to  receive compensation  which shall be determined by the  Compensation Officer  having  regard  to ss. 17 and 18 of  this  Act,  in accordance  with the provisions of Schedule II, but  in  the case  of such occupancy tenant who is liable to pay rent  in terms  of land revenue or the multiple of land revenue,  the compensation  payable to his landowner shall be computed  in accordance  with  Schedule I. The compensation  provided  in Schedule  II to the Abolition Act may in certain cases  work out  to  no more than twice the land  revenue.   Section  39 fixes  the maximum rent at one fourth of the crop which,  it is apprehended, may not even cover the land revenue and  the local  rates and cesses.  Section 80 provides for the  State management of lands in certain cases therein mentioned.   It is not necessary for our present purpose to refer to any  of the other provisions of the Abolition Act. On a cursory perusal of the foregoing sections one -may well understand  the natural apprehension of the landowners  that the  provisions  thereof  are  much  too  drastic  and   are inconsistent with and take away or at any rate substantially abridge  the right to their respective properties  conferred on  and guaranteed to them by Part III of  our  Constitution and  thereby infringe the provisions of Arts. 14, 19 or  31. It is, therefore, not surprising that the petitioners in all these petitions, all of whom are landowners, have moved this Court   by  separate  petitions  under  Art.  32   for   the enforcement of their fundamental rights to their  respective properties.   In  each of the several petitions  which  have been  heard  together  two broad  points  have  been  taken, namely:- (i)That  the Abolition Act is entirely void by  reason  of its   not   having  been  passed  by  a   duly   constituted legislature; and (ii)That,  in any event, the provisions of Ch.  III and  of Ch.  VIII are repugnant to the Constitution. Re (i) : In the First Schedule to the Constitution, as it   was

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originally  passed, were set out under the heading   Part  C States " the names of 10 States.  In that 164 list  of  Part  C States Bilaspur was shown as  item  3  and Himachal  Pradesh  as  item 7. The  two  States  were  quite separate, having separate territories respectively described at  the  foot  of  the  said  list  in  that  Schedule    as "territories which, by virtue of an order made under s. 290A of  the  Government  of India Act,  1935,  were  immediately before   the   commencement  of  this   Constitution   being administered as if they were a Chief Commissioner’s Province of the same name." The   Government  of  Part  C  States  Act  (49  of   1951), hereinafter  referred  to  as " the Part  C  States  Act  ", provides  for Legislative Assemblies, Councils of  Ministers and Councils of Advisers for Part C States.  By s.  2(1)(g), however, " State " is defined to mean any State specified in Part C of the First Schedule to the Constitution other  than Bilaspur.   Therefore,  the  Part C State  of  Bilaspur  was excluded  from the operation of that Act and was dealt  with separately.   The  Part C State of Himachal Pradesh,  as  it then  was,  which  is hereinafter called  the  old  Himachal Pradesh  was,  however, governed by the Part C  States  Act. Section 3 of that Act provides that there shall be a  Legis- lative  Assembly for each State and that the  allocation  of the  seats  in the Legislative Assemblies of  the  6  States therein mentioned shall be as set out in the Third Schedule. According  to the Third Schedule, ’as it  stood  originally, the  total  number of seats allocated to  the  old  Himachal Pradesh  was  36 including 8 seats  reserved  for  scheduled castes.  Section 4 authorises the President to determine  by order  the  constituencies into which such  State  shall  be divided,  the extent of such constituencies, the  number  of seats  allotted to each such constituency and the number  of seats reserved for the scheduled castes or scheduled tribes. Section  5  prescribes  the  duration  of  the   Legislative Assemblies.   According  to  that  section  the  Legislative Assembly,  unless sooner dissolved, is to continue for  five years  from the date appointed for the first meeting and  no longer.  Section 8 makes the provisions of Part I and  Parts III to XI of the Representation of the People Act, 1951  and of  any  rules  and orders  made  thereunder  applicable  in relation to an election to the 165 Legislative  Assembly of a Part C State as they  applied  in relation  to  an election to the Legislative Assembly  of  a Part A State, subject to such modification as the  President may,  after  consultation with the Election  Commission,  by order  direct.  Section 9 authorises the Chief  Commissioner to  summon  the Legislative Assembly from time to  time  but provides  that  six months shall not intervene  between  its last  sitting in one session and the date appointed for  its first  sitting  in  the  next  session.   Under  s.  10  the Legislative Assembly must, as soon as may be, choose two  of its  members to be respectively the Speakers and the  Deputy Speaker  thereof.  Section 14 enjoins that every  member  of the Legislative Assembly shall, before taking his seat, make and  subscribe before the Chief Commissioner or some  person appointed  in  that  behalf by him an  oath  or  affirmation ’according to the form set out for the purpose in the Fourth Schedule.  The form set out in the, Fourth Schedule ends  by affirming  that such member " will faithfully discharge  the duty  upon  which  I  am  about to  enter  ",  which  is  in consonance with the provision of the section that oath is to be taken " before taking his seat ". Section 16 provides for

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’vacation  of  seats  on the  happening  of  certain  events therein mentioned.  Section 18 provides penalty for sitting, and  voting  before  making  and  subscribing  the  oath  or affirmation  which  may  extend to Rs.  500  for  each  day. According  to s. 35 the validity of any proceedings  in  the Legislative Assembly of a State cannot be called in question on the ground of any alleged irregularity of procedure.   It is  not necessary, for our present purpose, to refer to  any other section of the Part C States Act. In  exercise of the powers conferred on him by s. 4  of  the Part  C  States  Act,  the President  duly  made  an  order, determining  the constituencies into which the old  Himachal Pradesh  would be divided and thereafter in  1952  elections were duly held and 36 members were elected by the voters  of the  different constituencies so delimited.  Presumably  the results of the general elections to the Legislative Assembly of the old Himachal Pradesh and the names of the members 166 elected for the various constituencies at the said  election were duly published under s. 74 of the Representation of the People  Act,  1951, in the official gazette  by  the  proper authority  as soon after the date or the  last of the  dates fixed  for  the  completion of the  said  elections  as  was possible.   There  is no dispute that, in  exercise  of  the powers  conferred on him by s. 9 of the Part C  States  Act, the Chief Commissioner summoned the Legislative Assembly  of the  old  Himachal Pradesh thus constituted to meet  at  the appointed  time  and place.  There is also no  dispute  that every member of that Legislative Assembly before taking  his seat made and subscribed the usual oath or affirmation under s.  14  of  the Part C States Act and  elected  one  of  the members  Shri Jaiwant Ram as the Speaker and that the  first session of the Assembly so constituted commenced functioning as  the Legislative Assembly. of the old  Himachal  Pradesh. It was in this first session of this Legislative Assembly of the old Himachal Pradesh that in 1953 a Bill (Himachal 15 of 1953) which became the Abolition Act was introduced. Pending the passage of that bill into an Act Parliament,  on May 8, 1954, enacted an Act called the Himachal Pradesh  and Bilaspur  (New  State)  Act  (32  of  1954),  hereinafter  I referred  to as "the New State Act ". This Act received  the assent  of  the President on May 28, 1954, and  was  brought into force by a notification, dated July 1, 1954, issued  by the  Government  of India in the official gazette  under  s. 1(2) of the Act.  It will be convenient at this stage to set out  the  relevant  provisions  of this  Act  on  which  our decision  on this point largely depends.  Section 3  of  the New State Act says: "  3.  As from the commencement of this Act there  shall  be formed by uniting the existing States a new Part C State  to be known as the State of Himachal Pradesh (hereafter in this Act referred to as the " new State) ". Section 12 provides as follows: " 12. (1) There shall be a Legislative Assembly for the  new State. 167 (2)The total number of seats in that Legislative  Assembly which shall be filled by direct election shall be 41." Section  14,  which is very important, is expressed  in  the following terms:- " 14. (1) The new State shall, until other provision is made by  law, consist of the following  Assembly  constituencies, namely :- (i)the  constituencies shown at the commencement  of  this Act in the Delimitation of Assembly Constituencies (Himachal

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Pradesh) Order, 1951 ; and (ii)the constituencies into which the part of the new State comprising the existing State of Bilaspur shall be divided. (2)The  President  shall,  as soon as  may  be  after  the commencement  of  this Act, after  consulting  the  Election Commission  of  India, amend the  Delimitation  of  Assembly Constituencies  (Himachal  Pradesh) Order, 1951,  so  as  to include  therein the constituencies into which the  part  of the  new  State comprising the existing State  of  Bilaspur, shall  be divided and the said Order as so  amended,  shall, until superseded, be the Order relating to the  delimitation of constituencies of the new State Sections 15 and 16 may also be set out: "  15. (1) Every sitting member of the Legislative  Assembly of  the existing State of -Himachal Pradesh  representing  a constituency  of  the  said State shall,  on  and  from  the commencement of this Act, represent the constituency of  the same name in the new State and shall be deemed to have  been elected to the Legislative Assembly of the new State by that constituency. (2)As  soon as may be after the commencement of this  Act, there  shall  be held elections to fill those seats  of  the Legislative  Assembly  which  have  been  allotted  to   the constituencies  into  which  the  part  of  the  new   State comprising   the  existing  State  of  Bilaspur   shall   be divided..... "16.   The period of five years referred to in section 5  of the  Government  of Part C States Act, 1951 (XLIX  of  1951) shall, in the case of the Legislative 168 Assembly  of the new State, be deemed to have  commenced  on the  date  on  which  the said period in  the  case  of  the Legislative  Assembly  of  the existing  State  of  Himachal Pradesh actually commenced." Subsequently,  in exercise of powers conferred on him by  s. 14(2)  the President made an order for the  delimitation  of the  constituencies for the area that previously formed  the territories  of the then Part C State of Bilaspur and  which after the commencement of the New State Act formed a part of the new Part C State of Himachal Pradesh created thereby and hereinafter called the new Himachal Pradesh.  Thereafter, on May 13, 1955, five members were elected by the voters of the constituencies  of that area so delimited so as to bring  up the total number of members of the new Legislative  Assembly of the new Himachal Pradesh to 41 as prescribed by s. 12  of the New State Act. In  the  meantime,  on  July 7, 1954,  to  be  precise,  the following notification was issued in the official Gazette:-                        "Legislative Assembly                        NOTIFICATION   Simla-4, the 7th July, 1954. No.  L.A.-109-28/54-The Lieutenant Governor, in exercise  of the powers conferred by. section 9 of the Government of Part C  States  Act,  1951 (XLIX of 1951), has  been  pleased  to direct  that  the  Second Session,  1954,  of  the  Himachal Pradesh Legislative Assembly will commerce from Monday,  the 16th August, 1954, at 9.30 a.m. in the Council Chamber,, Simla-4.                          By order,                 of the Lieut.-Governor                    Mahesh Chandra                   (Judicial) Secretary" It  is worthy of note. that the notification, ex facie  con- vened the second session of the Legislative Assembly 0.PO1

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169 of  Himachal Pradesh.  It is not in dispute that,  prior  to the  date  of  the  aforesaid  notification  summoning   the Legislative  Assembly,  no notification was  issued  by  the appropriate authority declaring the 36 persons who had  been the  members  of  the old Legislative Assembly  of  the  old Himachal Pradesh as members of the new Legislative  Assembly of  the  New Himachal Pradesh or formally  constituting  and bringing into being the new Legislative Assembly of the  new Himachal  Pradesh  created by and under the New  State  Act. Nor  is  it  in  dispute that the  36  members  of  the  old Legislative Assembly of the old Himachal Pradesh did not, in point  of  fact,  make  or  subscribe  any  fresh  oath   or affirmation  as members of the new Legislative  Assembly  of the new Himachal Pradesh as required by s. 14 of the Part  C States  Act, which is on the same lines as Arts. 99 and  108 of the Constitution or that they elected a Speaker under  s. 10 of that Act.  There can be no getting away from the  fact that the New State Act did create and bring into being a new State, also called the Himachal Pradesh.  It is not the case of  the  respondent  that some  additional  territory  which formerly belonged to the Part C State of Bilaspur was  added to  or  merged  into the territories  of  the  old  Himachal Pradesh  and  that  the old Himachal  Pradesh  continued  to exist.   The  true legal position admittedly is  that  as  a result of the New State Act the old Himachal Pradesh as well as the old State of Bilaspur both ceased to exist and  there sprang  to  life  a  new Himachal  Pradesh  having  for  its territory  the aggregate of the separate territories of  the two defunct States, namely, the old Himachal Pradesh and the old Bilaspur.  Under s. 12(1) of the New State Act, as under s. 3(1) of the Part C States Act, this new Himachal  Pradesh has  to  have a Legislative Assembly of its  own  the  total number  of members whereof, under s. 12(2) of the New  State Act shall consist of 41 to be filled by direct election. The learned  Additional Solicitor General takes his stand on  s. 15  of  the New State Act which has already been  quoted  in full.  According to sub-s. (1) of that section every sitting member of the 22 170 Legislative  Assembly  of  the existing  State  of  Himachal Pradesh  (that  is to say, the old  Himachal  Pradesh)  that existed  immediately  prior to the commencement of  the  New State  Act representing a constituency of ,,the  said  State shall,  on and from the commencement of this Act,  represent the  constituency  of  the same name  in  the  new  Himachal Pradesh  and  shall be deemed to have been  elected  to  the Legislative  Assembly  of the now Himachal Pradesh  by  that constituency.  Sub-section (2) of that section provides  for the  holding  of  elections, as soon as  may  be  after  the commencement  of  that  Act,  to fill  those  seats  of  the Legislative Assembly which would under s. 14(2) be  allotted to  the  constituencies  into which that  part  of  the  new Himachal  Pradesh  which was formerly comprised in  the  old State of Bilaspur would be divided.  The learned  Additional Solicitor General also relies on s. 16 of the New State  Act which  prescribes  the life of the Legislative  Assembly  by making  the  period of five years mentioned in s. 5  of  the Part  C States Act, for the purposes of computation, to  run from  the date when the old Legislative Assembly of the  old Himachal  Pradesh came into being.  His contention  is  that the result of these sections clearly is that the 36  members who  had  been  elected previously as  members  of  the  old Legislative  Assembly of the old Himachal Pradesh  were,  by

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the  New State Act itself, constituted the  new  Legislative Assembly of the new Himachal Pradesh and that provision  was made  for the addition to this new Legislative  Assembly  of five  members  as  and when elected by  the  voters  of  the constituencies into which the area formerly comprised in the territory of the old State of Bilaspur shall be divided.  In other  words, his argument is that immediately on  the  com- mencement  of the New State Act the Legislative Assembly  of the new Himachal Pradesh was duly constituted and came  into being  with  36 members as persona designate and  that  only five  more members had to be brought in as and when  elected so  as to bring the total strength to 41.  According to  the learned  Additional, Solicitor General, the position in  law is that there was a Legislative Assembly of the 171 new Himachal Pradesh then consisting of 36 members and  that it  was that Legislative Assembly that had been summoned  by the  Lieutenant Governor.  The learned Additional  Solicitor General  maintains that the fact that five members  had  not been elected from-’ the constituencies of the area which was formerly  comprised  in  the territories  of  the  State  of Bilaspur   did  not  vitiate  tile  proceedings,   for   the Legislative  Assembly  had,  under s. 15(3) of  the  Part  C States Act, power to act notwithstanding any vacancy in  the membership  thereof.   He  has  referred  us  to   Webster’s Dictionary  and  Oxford Dictionary for the  meaning  of  the words " vacant " and " vacancy ". He has also referred us to s. 147(2) of the Representation of the People Act, 1951  and s. 25 of the States Reorganisation Act, 1956, in support  of his proposition that a post or place may be as appropriately said to be vacant when after its creation it had never  been filled as it can be said to be vacant in the case of a  post or  place which after its creation had been filled  and  had then been vacated.  The learned Additional Solicitor General concedes  that strictly speaking the 36 members of  the  old Legislative Assembly of the old Himachal Pradesh who, by the fiction created by s. 15(1) of the New State Act had  become members of the new Legislative Assembly of the new  Himachal Pradesh,  should  have made and subscribed a fresh  oath  or affirmation but that the absence of that formality is a mere irregularity  which,  by virtue of s. 15(3) of  the  Part  C States  Act corresponding to Arts. 100(2) and 189(2) of  the Constitution,  did  not  vitiate  the  proceedings  of   the Legislative  Assembly  which had passed the  Abolition  Act, which is under challenge in these petitions. Section  15(1) of the New State Act only provides that  each of the 36 sitting members of the old Legislative Assembly of the old Himachal Pradesh shall on and from the  commencement of  the Act represent the constituency of the same  name  in the  new Himachal Pradesh and shall be deemed to  have  been elected  by that constituency.  The purpose of this  section is  to  obviate the necessity for going through  the  entire process of a fresh election so far as these 36 members 172 were  concerned.   In  other words, these  36  members  were exempted  from  seeking election or from being  elected  and were,  by a statutory fiction, taken as having been  elected to  the Legislative Assembly of the I new Himachal  Pradesh. By  the  operation of the deeming provision embodied  in  s. 15(1)  the 36 members have been placed in the same  position as they would have been placed in had they gone through  the entire  process of election and had been  returned  elected. The requirements of law to be followed after the election is completed  have yet to be followed.  For the section to  say that these 36 members shall represent the constituencies  of

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the  same  name  in the new Himachal Pradesh  and  shall  be deemed  to have been elected to the Legislative Assembly  of the new Himachal Pradesh by the same constituencies -is  not to   say  that  these  36  persons  alone   constitute   the Legislative  Assembly of the new Himachal Pradesh.  It  only lays down that these 36 persons shall be deemed to have been elected   without  going  through  the  actual  process   of election.  Apart from providing that these 36 persons  shall represent the several constituencies and shall be deemed  to have been elected by the voters of those constituencies,  s. 15(1)  does  not go further and say that  these  36  persons shall,  without more, constitute the  Legislative  Assembly. Therefore, the requirements of Law applicable to the further stages after the election is over have still to be  complied with.   In  other words the purpose of s. 15(1)  is  not  to Constitute  and bring into being the  Legislative  Assembly. For that a notification under s. 74 of the Representation of the  People Act, 1951, has to be issued.  That  notification -gives  life  to the Legislative Assembly as s.  73  of  the amended section clearly indicates. What  did  the  Lieutenant Governor do or intend  to  do  by issuing the notification dated July 7, 1954, quoted above  ? The  fact  that the Lieutenant Governor did  not  intend  to summon a meeting of the new Legislative Assembly of the  new Himachal  Pradesh  is  made clear by the fact  that  by  the notification  in question he convened what he  described  as the second ,session of the Legislative Assembly.  After  the creation 173 of  the  new  Himachal Pradesh there had  been  no  previous session  of its Legislative Assembly at all and the  session convened,  if it was to be a session of the new  Legislative Assembly  of  the new Himachal Pradesh, was to be  its  very first  session.  It was, there-, fore, wholly  inappropriate and utterly incorrect to describe the session thus  convened as  the second session.  The provision of s. 16 of  the  new State  Act which computes the period of five years  duration from  the  date of the commencement of the  old  Legislative Assembly of the old Himachal Pradesh cannot affect the  fact that  the  old  Legislative  Assembly as  well  as  the  old Himachal Pradesh had ceased to exist and that the meeting of the  new  Legislative Assembly of the new  State  after  the commencement of the New State Act must be its first  session and  not  the second.  It may well be  that  the  Lieutenant Governor took the view that the new Legislative Assembly  of the  new  Himachal  Pradesh would  not  be  constituted  and brought into being until five members from the Bilaspur area had been elected so as to bring the total number of  members to  41  as prescribed by s. 12 and that until then  the  old Himachal  Pradesh  and the old  Legislative  Assembly  would remain  alive and that, therefore, the Bill which  had  been introduced  in  the  first session of  the  old  Legislative Assembly of old Himachal Pradesh had not lapsed under s.  25 of  Part  C States Act.  The Lieutenant Governor in  such  a situation  may well have thought that as under s. 9  of  the Part  C States Act more than six months must  not  intervene between  its  last  sitting in one  session  and  ,the  date appointed  for  its first sitting in the next  session,  and accordingly  may  have thought- fit to  convene  the  second session  of  the old Assembly.  This conclusion  is  further reinforced  by  the  fact that no oath  or  affirmation  was administered  to  the  36 persons  when  they  assembled  in pursuance of the summons as required by s. 14 of the Part  C States  Act  as  well  as  by  the  further  fact  that  the Legislative  Assembly which was summoned by  the  Lieutenant

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Governor under s. 9 of the Part C States Act did not  choose any of the members to be the Speaker of that Legislative 174 Assembly.  Indeed the printed resume of the work done by the Himachal  Pradesh  Legislative Assembly  during  the  second session 1954, as published by its Secretary, shows that  the house  granted  leave  of ,absence from  the  House  to  Sri Jaiwant Ram, Speaker, for the duration of that session.  Sri Jaiwant Ram is no other than the person who had been elected the  Speaker  of  the old Legislative Assembly  of  the  old Himachal    Pradesh.    The   discussion    whether    these irregularities can or cannot be cured under s. 15(3) and  s. 35  of  Part  C States Act is not relevant  at  this  stage. Assuming  that the word " vacancy " as used in  the  section has  the  wide  connotation contended  for  by  the  learned Additional  Solicitor General and without, for  our  present purpose,  adverting to the obviously possible abuse  such  a wide meaning may lead to, it must be noted that the  section clearly  contemplates that there is a  Legislative  Assembly duly  constituted and brought into existence and that it  is subsequently  discovered  that "some persons" have  sat  and voted without making and subscribing an oath or affirmation. The  section postulates the existence of a duly  constituted Legislative Assembly.  It does not apply to a case where the Legislative  Assembly  has not at all been  constituted  and brought   into  being  by  a  notification  issued  by   the appropriate   authority  and  then  duly  summoned  by   the Lieutenant Governor.  Whether absence of such a notification will  vitiate  the  proceedings  even  if  all  the  members properly  elected to the Legislative Assembly  are  summoned and they take part in the proceedings after taking the  oath and  electing  a  Speaker need not  be  considered  on  this occasion.   The  present discussion is for  the  purpose  of ascertaining  as to what was -in the mind of the  Lieutenant Governor  when  he  issued the  notification  convening  the second  session  of  the Legislative Assembly  and  what  he purported to do.  The fact that he summoned the  Legislative Assembly  to a second session signifies that he bad in  mind the  Legislative Assembly of the old Himachal Pradesh  which already  bad  a sitting before and summoned it to  a  second session.  The fact that no oath or affirmation 175 was  administered  to  any  member and  that  there  was  no election of a Speaker also quite clearly indicates that  the Lieutenant  Governor was not summoning the  new  Legislative Assembly of the new Himachal Pradesh.  This is made  further clear  by  the fact that the Lieutenant Governor  must  have known  that the old Himachal Pradesh having ceased to  exist its  Legislative Assembly had also gone with it, and that  a bill  pending  in the Legislative  Assembly  thus  dissolved would  have lapsed under s. 25 and the first sitting of  the new  Legislative  Assembly of the., new  State  of  Himachal Pradesh  could  not proceed with the lapsed Bill.   In  this context  the question whether the irregularity can be  cured under  S. 15(3) of the Part C States Act or is  made  immune from  challenge  under  s. 35 does not arise  at  all.   The problem  before  us  is  to  determine  which  Assembly  the Lieutenant  Governor  had convened.  In our opinion  the  so called  Legislative  Assembly which was convened  and  which purported to pass the Abolition Act was not the  Legislative Assembly  of  the new Himachal Pradesh created  by  the  New State Act, therefore, the impugned Act cannot be regarded as a  piece  of validity enacted legislation.  That  being  the position the interference with the rights of the petitioners in  and.  to  their respective properties cannot  be  for  a

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moment  be  justified or permitted and  the  first  question raised  on  behalf of the petitioners must  be  answered  in their favour. In  the view we have taken it is not necessary for us to  go into the second question sought to be raised before its. The  result,  therefore,  is that we issue in  each  of  the petitions  a  mandamus directing the respondent  to  forbear from  giving effect to or acting in any manner under  or  on the basis of the said impugned Act and also restraining  the respondent, its servants and agents, from taking any  action on the basis of the said Act or interfering in any way  with the  petitioners’ properties or their rights in  respect  of their  properties  or  from  disturbing  or  affecting   the petitioners’  possession  thereof The  petitioners  will  be entitled  to the general costs of each of  these  petitions, but the respondent will 176 pay  only three sets of costs for the hearing,  namely,  one set each to the petitioners represented by Shri Achhru  Ram, Shri D. R. Prem and Shri Y. Kumar respectively and also  one set of hearing fees for each of the advocates-on-record. Petitions allowed.