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PETITIONER: SISIR KUMAR DUTTA

       Vs.

RESPONDENT: STATE OF WEST BENGALUNION OF INDIA-Intervener.

DATE OF JUDGMENT: 05/12/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA HASAN, GHULAM

CITATION:  1953 AIR   63            1953 SCR  644

ACT: Essential Supplies (Temporary Powers) Act, 1946, s. 4-Exten- sion  of  Act  up  to 31st March,  1951,  by  resolution  of Constituent    Assembly-Validity-Powers    of    Constituent Assembly-India  (Central  Government and  Legislature)  Act, 1946,  ss. 4, 4-A -India (Provisional  Constitution)  Order, 1947-Constitution of India, 1950, Arts. 372, 379 (1), 394.

HEADNOTE:    The  Essential Supplies (Temporary Powers) Act,  1946,  a temporary  Act  which was being extended from time  to  time after  the date of its first expiry, for a year at  a  time, was  extended  up  to the 31st March, 1951,  from  the  31st March,  1950,  by  a resolution passed  by  the  Constituent Assembly  (Legislative)  at  a  meeting  held  on  the  20th December,  1949.   The appellant who was  convicted  for  an offence  committed under the Act on the 24th October,  1950, contended  that  the Constituent Assembly had  no  power  to extend the Act in view of, the provisions of Art. 379 (1) of the  Constitution, and that at any rate it had no  power  to extend the duration of the Act beyond the 26th January, 1950 645 Held, that, even assuming that under Art. 379 (1) the Provi- sional  Parliament  was intended to function from  the  26th November,  1949, and not from the 26th.  January,  1950,  as the  Constituent Assembly was to continue in existence  till the  26th  January  1950, the power conferred  on  it  as  a designated  body  by  the  India  (Central  Government   and Legislature) Act, 1946, of the British Parliament as adapted by  the India (Provisional Constitution) Order, 1947,  could be validly exercised on the 20th December, 1949, and was  so exercised  when it passed the resolution on that date.   The Provisional Parliament was not a body authorised to exercise the  special power of approving the extension of the  period mentioned  in s. 4 of the India Act of 1946 as that was  not one  of  the  powers conferred by the  Constitution  on  the Provisional  Parliament,  nor can bringing  the  Provisional Parliament  into  existence  on  the  26th  November,  1949, assuming  that  to  be  the case, be  regarded  as  "  other

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provision  "  made by the Constituent  Assembly  within  the meaning of s. 4 of the India Act of 1946.   Held  further, that the resolution extending the  life  of the  Act beyond the 26th of January, 1950, was not  invalid, as  it  came into immediate effect and not -on  the  1st  of April,   1950,   when  the   previous   extension   expired. Accordingly the Act with its duration extended by virtue  of the  resolution was an Act- immediately in force before  the commencement  of the Constitution anti so was saved by  Art. 372 (1) and Explanation III.

JUDGMENT:   CRIMINAL  APPELLATE JURISDICTION: Case No. 275  of  1951. Appeal under Art. 132 (1) of the Constitution of India  from the  Judgment  and Order dated April 11, 1951, of  the  High Court  of  Judicature at Calcutta (Das Gupta  and  Mookerjee JJ.) in Criminal Revision Case No. 1028 of 1950 arising  out of  the  Order dated November 23, 1950,  of  the  Presidency Magistrate,  8th Court, Calcutta, in P. R. Case No. 2107  of 1950. N.C. Chakravarti for the appellant. B.Sen for the respondent. M.C. Setalvad, Attorney-General for India (P.  A. Mehta, with him), for the intervener. 1952.   December 5. The Judgment of the Court was  delivered by BOSE  J.-This  is  an appeal under article 132  (1)  of  the Constitution.  Leave to appeal was granted by the High Court at Calcutta. 84 646 The appellant was convicted under section 7 (1) of essential Supplies (Temporary Powers) Act of 1946 for an offence  said to  have  been committed on the 24th of  October,  1950  The conviction was on At two counts: (1) for selling cloth above the  controlled  rate and (2) for not issuing a  cash  memo. The sentence was rigorous imprisonment for three months  and a fine of Rs. 200 with another three months in default.  The trial  was before the 8th Presidency Magistrate at  Calcutta who adopted a summary procedure.  There  was  an application for revision  before  the  High Court  but  it was dismissed.  An application for  leave  to appeal  to this Court was then filed.  It was granted  on  a ground  which was not taken either in the original court  or in  the  revision  before the High Court,  namely  that  the Essential Supplies Act of 1946 under which the appellant was convicted  was  not in force on the 24th of  October,  1950, and-so there could be no conviction under it.  The validity of this Act was challenged in Joylal Agarwala v. The State(1) but this Court he-Id that the Act was  valid up  to the 31st of March, 1950, that being the life  of  the Act  at the date relevant to that case.  It is necessary  to explain  that the Act-is a temporary Act and that  its  life has  been extended from time to time after the date  of  its first expiry for a year at a time.  The latest extension  at the  date of the previous case was up to the 31st of  March, 1950.  We therefore start with the position that the Act was a good Act up till that date.  The  Act was further extended up till the 31st  of  March, 1951,  by  a resolution dated the 20th  of  December,  1949. This is the extension with which we are concerned and  which is  now  challenged, the argument being that  there  was  no legislative  body  in existence on that  date  competent  to

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extend the life of the Act for another year.  The Gazette notification setting out the resolution is  in the following terms (1)  [1952] S.C.R. 127.                            647 ‘‘ New Delhi, the 22nd December, 1949.  No.  F.-7  WL (1) 47.-The following resolution  which  wag passed  by  the Constituent Assembly  (Legislative)  at  its meeting  held  on  the 20th of  December,  1949,  is  hereby published for general information :  In  pursuance  of the proviso to section 4  of  the  India (Central  Government and Legislature) Act, 1946, as  adapted by  the India (Provisional Constitution) Order,  1947,  this Assembly  hereby  approves  the  extension  of  the   period mentioned in sections 2 and 3 of the said Act  for a further period  of  twelve  months commencing on the  first  day  of April, 1950."   It  has  to be seen whether the body  which  passed  that resolution had the power to extend the Act.  It  can  be accepted, because of the  decision  in  Joylal Agarwala v. The State(1), that the Constituent Assembly  had authority  on 25th of February, 1948, and again on  23rd  of March,  1949,  to  make two  successive  extensions  of  the Essential  Supplies Act of a year each.  The only  question, therefore, is whether any body continued to have that  power on the dates material here.   The  extensions jug t referred to were brought  about  as follows.  The Constituent Assembly derived its authority  to pass  the  above resolution from section 4-A  of  the  India (Central Government and Legislature) Act of 1946.  This  was an Act of the British Parliament which originally  conferred on  the British Houses of Parliament the power of  approving by  resolution the extension of the period fixed by  section 4. Later, the Indian Independence Act of 1947 was passed  by the  British  Parliament  and  in  exercise  of  the  powers conferred  by  sections 9 and 19 of that Act  the  Governor- General  by  an  Adaptation Order substituted  the  words  " Dominion Legislature " for the words " Houses of  Parliament " and thus enabled the Dominion Legislature to exercise  the powers of Parliament in this behalf.  At the same time, the (1) [1952] S. C. R. 127at 131. 648 Governor-General introduced section4-A into the British  Act of 1946, the India (Central Government and Legislature) Act, 1946, by way of adaptation and conferred on the  Constituent Assembly the, powers of the Dominion Legislature.  Thus  the Constituent  Assembly became empowered to extend the  period fixed  in section 4 by the passing of a resolution and  that in  its  turn had the effect of extending the  life  of  the Essential  Supplies  Act of 1946, because section 1  (3)  of that  Act  says that it shall cease to have  effect  on  the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act of 1946.  Now  section  4-A provides that the  Constituent  Assembly shall have the powers of the Dominion Legislature under  the British  Act  "  until  other provision is  made  by  or  in accordance with a law made by the Constituent Assembly under sub-section (1) of section 8 of the Indian Independence Act, 1947."   Turning to sub-section (1) of section 8 we find that  the British  Parliament invested the Constituent  Assembly  with all the powers of the Dominion Legislature " for the purpose of making provision as to the constitution of the Dominion."  That   power   it  exercised  and  drew  up   the   Indian Constitution,  but  in  doing so it  decided  to  bring  the

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constitution  into being in two instalments and it did  that by enacting article 394 and enacting in it that that-article and certain others, including article 379, should come  into force " at once "-at once being the 26th of November,  1949- while the remaining articles were to come into force on  the 26th of January, 1950.  Now article 379 (1) provides that-- ‘‘   Until  both  Houses  of  Parliament  have   been   duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the   Constituent   Assembly  of  the  Dominion   of   India immediately  before  the commencement of  this  Constitution shall be the Provisional 649 Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this  Constitution on Parliament."  It was argued on behalf the appellant that because of this article the Constituent Assembly disappeared as a law making body  on and after the 26th of November, 1949, and that  its place was taken by the Provisional Parliament referred to by that  article, and as the resolution of the  20th  December, 1949,  purports  to  be  a  resolution  of  the  Constituent Assembly   (Legislative)   and  not   of   the   Provisional Parliament, it is a resolution of a body which no longer had authority  to enact laws or pass a resolution of  this  kind affecting the laws of the land.  The  learned Attorney- General argues, on the other  hand, that the Constituent Assembly continued to function as  such and  to retain its right to exercise its dual  functions  of constitution  making  and law making right up  to  the  last stroke  of midnight on the 25th of January, 1950.  The  very next  second, when a new day ushered in a new era  for  this country,  it ceased to exist as a Constituent  Assembly  and its place was taken by the Provisional Parliament of India.   We   need  not  decide  this  point,  for  even  if   the Provisional Parliament was intended to function on -the 26th of  November, 1949, and not from the 26th of January,  1950, it is clear that the Constituent Assembly was to continue in existence  till  "  the commencement  of  the  Constitution" which,  by  article  394,  is the  26th  of  January,  1950. Consequently,  the  power conferred on it  as  a  designated body,  by the English statute, as adapted by  the  Governor- General, could be validly exercised on the 20th of December, 1949, and was so exercised when it passed,the resolution  of that  date.   The  Provisional Parliament  was  not  a  body authorised  to exercise the special power of  approving  the extension  of  the  period mentioned in  section  4  of  the English statute as that was not one of "the powers conferred by  this Constitution on Parliament," nor can  bringing  the Provisional  Parliament  into  existence  on  the  26th   of November, 1949 650 (  assuming  that  to  be the case)  be  regarded  as  other provision"  made  by  the Constituent  Assembly  within  the meaning  of section 4-A of the English Act.  It follows  the Constituent  Assembly  was not deprived of  these  specially designated powers on the date of the resolution.   The next question is whether the Constituent Assembly had the  power  to extend the life of this particular  piece  of legislation beyond the 26th of January, 1950.  The  question was  posed in this way.  It was conceded that the  Essential Supplies  Act was validly extended up to the 31st of  March, 1950.   The resolution  which extended its life for  another year  beyond this was passed on the 20th of December,  1949,

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but  it was argued that it could not take effect till  after the expiry of the previous extension, that is, not until the 1st  of April, 1950.  But by that time the Constitution  had come into being and so neither the Constituent Assembly  nor the  Provisional Parliament could have extended the life  of the temporary Act after its expiration on the 31st of March, 1950, because of Explanation III to article 372.  It follows that the Constituent Assembly which purported to effect  the extension ahead of time could not do, in anticipation,  what the Constitution says cannot be done after its commencement. There is nothing in this contention.  The resolution of  the 20th  December, 1949, took immediate effect and  its  effect was to alter the date fixed for the expiration of the period mentioned in section 4 of the English statute from the  31st of  March, 1950, to the 31st of March, 1951.  The  Essential Supplies  Act fixed the date for its own expiration  as  the date  flied  for the expiration of the period  mentioned  in section 4 above.  Accordingly, it was an Act which was alive immediately before the 26th of January, 1950, and which  was due,  at that time, to expire of its own force, not  on  the 31st of March, 1950, but on the 31st of March, 1951, and  as this was a law in force immediately before the  commencement of the Constitution 651 it  continued  in  force,  because  of  article  372(1)  and Explanation III, until it was due to expire.  That  exhausts  the constitutional points.  We  bold  that there  was  a  body  in existence.  at  all  material  times competent to extend the life of the Act up till the 31st  of March, 1951, and that it did so extend its life on the  20th of  December, 1949.  The Act continued in force until  after the Constitution and therefore was a living Act at the  date of the offences, namely the 24th of October, 1950.  Counsel  then  sought to attack the  conviction  on  other grounds  but  a,,; the leave to appeal was confined  to  the constitutional points be cannot so far as that is concerned, be  permitted to travel further.  Of course, it  would  have been  competent  for  him to file a  separate  petition  for special leave to appeal on the other points but had be  done so it would have followed the usual course and he would have been  obliged to obtain special leave in the usual way.   We therefore  treated this part of the argument -as one  asking for special leave to appeal.  We heard him fully and are  of opinion  that these remaining points are not ones  on  which special  leave  to appeal should be granted.   We  therefore reject  this irregular petition for special leave to  appeal on its merits.  The appeal filed under article 132 (1) is also dismissed.                                       Appeal dismissed. Agent for the appellant: S. C. Banerjee. Agent for the respondent:     P. K. Bose. Agent for the intervener: G. H. Rajadhyaksha. 652