Patna High Court
Sir Kameshwar Singh vs Province Of Bihar on 24 January, 1950
Equivalent citations: AIR1951PAT246, AIR 1951 PATNA 246, ILR 29 PAT 1952
JUDGMENT Shearer, J.
1. The object of the British Parliament is enacting Sub-section (2) of Section 299, Government of India Act, 1935, and of His Majesty the King in inserting in the Instruments of Instructions, which were issued under the Royal sign Manual to the Governor-General and to the Governors of Provinces, a direction not to assent to any bill regarding which they felt doubt, whether it did or did not offend against that section, was to secure owners of property in the enjoyment of their rights and to ensure that, in the event of the State, in exercise of the right known to American jurists as the tight of eminent domain, depriving them of their property, they should receive compensation, meaning thereby the value in money of the property to the owner at the time at which he is called upon to relinquish it On 6-7-1949, the Governor General gave his assent to an Act entitled the Bihar Abolition of Zamindaris Act, 1943 (Bihar Act XVIII [18] of 1918). That Act empowered the Provincial Government to deprive proprietors and tenure-holders of their estates and tenures it provided, or purported to provide, for the payment of compensation to them, but the compensation was not, and perhaps, in the circumstances of the case, could not be, compensation within the meaning of the term as used in such statutes as the Consolidation of Lands Clauses Act in England or the Land Acquisition Act is India, The plaintiff who is the owner of the largest and one of the oldest zamindaris in Bihar, thereupon instituted a suit in which he asked for a declaration that the Bihar Abolition of Zamindaris Act, 1948, was an unconstitutional law and for an injunction restraining the Government of Bihar from putting it into operation. The suit was instituted in the Court of the Subordinate Judge at Darbhanga, and on 25 11-1949, was removed to this Court to be tried by it in exercise of its extra-ordinary original civil jurisdiction on 9-12-1949, a bill, entitled the Bihar Land Reforms Bill, 1949, was published, and was later introduced in the Bihar Legislative Assembly. Many of the provisions contained is this bill are provisions which were contained in the Abolition of Zamindaris Act, 1948. Clause 44 of the bill contained the following : "The Bihar Abolition of Zimindaris Act, 1918, is hereby repealed." Subsequently, however, this clause in the bill was deleted and a separate Act, entitled the "Bihar Abolition of Zamindaris Repealing Act, 1960 (Bihar Act IX [9] of 1950)", was passed by the Bihar legislature. This Act was assented to by the Governor of Bihar on 18-1-1950, that is, on the day before that on which this suit was set down for hearing. A preliminary issue has therefore been framed as to whether, in consequence of this enactment, any cause of action, which the plaintiff had or may have had, has not been taken away and whether or not the suit can or ought to proceed.
2. As I have just said, while assent to the Bihar Abolition of Zamindaris Act, 1948, was given by the Governor-General, assent to the Act which repeals, or purports to repeal it was given by the Governor. The main argument which had been addressed to us by Mr. P. R. Das for the plaintiff, on the preliminary issue is based on this circumstance and is, in short that the legislative body or authority which has purported to repeal the Act is not the legislative body or authority which enacted it. The legislative body or authority, it is said, consisted, in the former case, of the Governor and the two Chambers of the legislature, and, in the latter case, of the Governor-General and the two Chambers of the legislature. It is, Mr. P. R. Das said, axiomatic that the legislative body or authority which is competent to repeal an act must be the same legislative body or authority as enacted it, or a legislative body or authority having powers co-extensive with the powers of the legislative body or authority which enacted it. It necesaarily follows, it is suggested, that the repealing Act is null and void, that, in consequence, the impugned Act still remains on the statute book and that the plaintiff is entitled to show and, if he succeeds in showing, to obtain, a declaration, that the impugned Act is an unconstitutional Jaw. The short answer to the contention put forward by the learned counsel for the plaintiff is, in my opinion, that the legislature which has repealed the Act is the game legislature as enacted it, namely, the legislature consisting of his Majesty and of the Bihar Legislative Assembly and the Bihar Legislative Council. Section 60 (1), Government of India Act, 1935, states :
"There shall for every Province be a Provincial Legislature which shall consist of His Majesty, represented by the Governor, and in the Province of Bihar, two Chambers."
Section 75 of the Act states:
"A Bill which has been passed .... by both Chambers of the Provincial Legislature, shall be presented to the Governor, and the Governor shall declare either that he assents in His Majesty's name to the Bill, or that he withholds assent therefrom, or that he reserves the Bill for the consideration of the Governor-General."
Section 76 (1) states :
"When a Bill is reserved by a Governor for the consideration of the Governor General, the Governor-General shall declare, either that ho assents in His Majesty's name to the Bill, or that he withholds assent therefrom."
His Majesty is as much a branch of the legislature in each of the Dominions and of the Legislature in each of the States or provinces comprised in each Dominion, as ho is a branch of the Parliament of the United Kingdom of Great Britain and Northern Ireland, which consists of His Majesty, the Lords Spiritual and Temporal, and the Commons. The circumstance that each of the Constitution Acts of the Dominions contain, or at one time contained, provisions authorising or requiring a Governor to reserve bills for the consideration of the Governor-General, and provisions authorising or requiring the Governor-General to reserve bills for the signification of His Majesty's pleasure, itself goes to show that the assent of the King to proposed laws is His Majesty's assent as a separate, independent and co-equal branch of the legislature is which the proposed law has been introduced (Vide Quick and Garran on the Constitution of the Australian Commonwealth, p. 689). In order to understand how provisions of this kind came to be inserted in the Constitution Acts of the Dominions, it is necessary to go back into history. The right of His Majesty to assent to, or withhold his assent from, any legislation proposed to be passed by a Colonial legislature is part of the royal prerogative. It would obviously have been in the highest degree inconvenient that, before any proposed law could be enacted and given effect to, the proposed law should actually be laid before His Majesty for his assent to be formally given to it. His Majesty's assent to a proposed law in some distant colony could not be so easily obtained as His assent to a bill which had passed through both Houses of the Imperial Parliament. Yet delay in obtaining His Majesty's assent might have had disastrous consequences Powers were, therefore, given to the Governors of colonies to assent in His Majesty's name to proposed laws, their discretion in this matter being, however, limited by the Instrument of Instructions issued to them (vide Section 4, Colonial Laws Validity Act, 1865). In the first decade, alter the passing of the British North Amtrica Act, 1867, no fewer than twenty-one bills were reserved by the Governor-General for the signification of His Majesty's pleasure (vide Egerton on Federations and Unions in the British Empire p. 187). Shortly afterwards however, the practice of reserving bills way abandoned, it being considered that the power of His Majesty to disallow Acts passed by a Dominion Legislature was sufficient for the protection of imperial interests. Finally, as a result of the resolutions of the Imperial Conference of 1930, a convention was established that Dominion Acts cannot constitutionally be disallowed by the Crown on the advice of British Ministers, nor can assent be refused to reserved bills, nor bills, be reserved save on Dominion advice By the Indian Independence Act, 1947, India became a Dominion, and Sub-section (a) of Section 6 of the Act provided that "so much of any Act as relates to the disallowance of laws by His Majesty or the reservation of laws for the signification of His Majesty's pleasure thereon or the suspension of the operation of saws until the signification of His Majesty's pleasure thereon shall not apply to laws of the Legislature of either of the new Dominions."
Nevertheless, although the Governor-General directly, and the Governors of Provinces indirectly, are no longer required by any Instrument of Instructions to reserve bills for the signification of His Majesty's pleasure, Governors are still required or authorised to reserve certain bills for the consideration of the Governor-General under Sub-section (2) of a 107, Government of India ACT, Section 90, British North America Act, 1867, similarly empowers the Lieutenant Governors of Canadian Provinces to reserve bills for the consideration of the Governor General of Canada. A device invented by British state men a century ago for the protection of imperial interests and the prevention of international incidents has been made to sub-serve another and very different purpose. The provisions in the Constitution Acts of India and Canada, to which I have just referred, are now used for substantially the same purpose, namely to ensure that a Provincial Legislature doss not enact a law which is illegal or unconstitutional in whole or part, or a law clashing with the legislation of the Federal Legislature. The necessity for a provision of this kind in the Indian Constitution Act is the greater, as in a large number of matters the Federal and Provincial Legislatures have concurrent powers. Mr. P. R. Das, is, of course, correct to this extent that an Act of the Provincial Legislature may be unconstitutional if it has received the assent of the Governor and yet would have been constitutional if it had received the assent of the Governor-General. It does not, however, at all follow that the criterion to be adopted in deciding whether a law is or is not unconstitutional, is to see whether it has been assented to in the name of His Majesty by the one representative of His Majesty or the other representative. The criterion must, in each case, be whether the Provincial law deals with a matter enumerated in the Concurrent Legislative List and, if so, whether it contains any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter. It may well be that the Bihar Abolition of Zamindaris Act, 1918, dealt with matters enumerated in the Concurrent Legislative List and contained provisions repugnant to the provisions of an existing law, or existing laws, of the Federal Legislature with respect to these matters. Presumably, it did, in fact, contain such provisions, or was believed to contain such provisions, as the object of reserving the bill fur the assent of the Governor General was to ensure that the bill should be subjected to scrutiny by the legal advisers of the Government of India in order that the Government of India might decide whether, if the effect of it was to make the law in certain matters in Bihar different from the law in these matters prevailing in other provinces, there was, on grounds of policy, any objection to this. It is important to notice that the checks on, or safeguards against, a clash between Jaws passed by the Federal and the Provincial Legislatures which were devised by the British Parliament and embodied in Section 107 (2) and other connected sections of the Government of India Act were twofold. In the first place when a proposed law of a Provincial Legislature has the effect of altering or repealing an Act of the Federal legislature, it has to be reserved for the consideration of the Governor-General. Secondly, when the Governor-General has given his assent to such a proposed law and, in consequence, the law which obtains in that province is different from the law, which prevails in other provinces, no proposed law which has the effect of again altering that law, can be introduced in the Federal Legislature without the previous sanction of the Governor-General. While, however, the Federal Legislature cannot repeal the Provincial law unless the repealing bill has received the previous sanction; of the Governor-General before it is introduced in the Federal Legislature there is clearly nothing to prevent the Provincial Legislature itself repealing it. The effect of the repeal is merely to restore the status quo ante and to bring the law in that province once more into conformity with the law prevailing in the rest of India. There is, on principle, no reason why, before such a course is taken by a Provincial Government, the Government of India should be consulted. In fact, as the original object of His Majesty in delegating to the Governors of Provinces authority to assent in His name to proposed legislation was to avoid unnecessary delay in His assent being obtained, there is every reason why an Act which merely repeals an existing Act, and does not purport to do anything more, should not be reserved
3. Mr. N. C. Chatterji, who followed Mr. P. R. Das, for the plaintiff, put forward an argument which, 1 must confess, I had some difficulty in comprehending. The question or one of the questions, raised is the preliminary issue is as to whether the Bihar Abolition of Zainindaris Repealing Act, 1950, is intra vires of the Provincial Legislature. If, Mr. Chatterji said, the Bihar Abotition of Zamindaris Act, 1948, is itself void and of no effect the Bihar Abolition of Zamindaris Repealing Act, 1960, is similarly and necessarily void and of no effect. In other words if I understood the argument correctly, Mr. Chatterji contended that it was impossible to distinguish between the two Acts and that in consequence, we must consider and could not avoid deciding, whether the Bihar Abolition of Zamindaris Act, 1948, was or was not an unconstitutional law. There is, in my opinion, no substance in this argument. It is, of course, true that an unconstitutional law has no validity whatever, and that rights which it may purport to take away from individuals continue to exist to the same extent as they would have existed if the law had never been enacted. On the other hand, a law is not an unconstitutional law unless and until it has been so decided by a judicial tribunal competent to pronounce on its validity. Moreover, unless and until a question as to its validity is directly raised and a Court of law has no option but to decide it, the Courts must proceed on the assumption that the law is a valid law. In that situation, it appears to me that, if the validity of the repealing Act can be questioned at all, it can be questioned only on the ground raised by Mr. P. R. Das, namely, "that in enacting it the proper procedure was not followed, and, for the reasons just given, that ground must fail. There is another and more cogent reason for our declining to go into the question which Mr. Chatterji asks us to, namely, that as the impugned Act has been repealed, the Government of Bihar is debarred from taking any action under it. If, however, no action can be taken under the impugned Act, the question as to whether that Act was or was not an unconstitutional law becomes a question of purely academic interest. Sir Alladi Krishnaswamy Ayyar, for the defendant, cited a number of authorities to show that the Courts will not decide such questions. One of these decisions namely, Attorney-General for Alberta v. Attorney General for Canada, 1939 A. C. 117 : (A. I. R. (26) 1933 P. C. 53), is very much in point. That was an appeal against an opinion expressed by the Supreme Court of Canada that two bills which had been introduced in the legislature of the Province of Alberta were ultra vires of that legislature. If the proposed laws had been enacted, no action could nave been taken under them except under and in accordance with certain provisions contained in another Act, known as the Alberta Social Credit Act. During the pendency of the appeal this Act was, however, repealed. Lord Maugham, after observing that the bills could no longer be brought into operation, said:
"Since nothing can be done thereunder, the appeal from the order of the Supreme Court is one of no practical interest. It is contrary to the long established practice of this Board to entertain appeals which have no relation to existing rights created or purported to be created ; and their Lordships have, therefore, found it necessary to decline to hear arguments on this appeal in so far as it relates to the bills."
The other decisions cited were Sun Life Assurance Co. of Canada v. Jervis, 1944 A. C. 111 : (113 L. J. K. B. 174), and Lawrence P. Mills v. W. Briggs Green, 159 U. S. S. C. R. 651.
4. Paragraph 10 of the plaint is as follows :
"The plaintiff is further advised and submits that his title to the said properties will subsist notwithstanding any notification that may be issued by the defendant declaring that the estates or tenures of the plaintiff have passed to and become vested in the Crown. He further submits that the promulgation of the said Act by the defendant constitutes an infringement, or a threatened infringement, upon his title to the properties collectively known as "Raj Reyasat Darbhanga" and that as a cloud has been thrown upon his title, he is entitled to a declaration that the said Act is wholly void and inoperative."
As I have already said, while the Bihar Abolition of Zamindaris Act, 1948, has been repealed, a bill which contains precisely the same provisions has been introduced in the Provincial Legislature. Mr. P. R. Das, for the plaintiff, made a great deal of this and said, more than once, that the cloud which had been cast on his client's title and which constituted his cause of action had not been dissipated. The defendant, however, does not deny the title of the plaintiff and the suit cannot be said to be a suit falling under III. (g), Section 42, Specific Relief Act, The intention of the Crown, as manifested in the bill now pending in the Legislative Assembly, is to deprive the plaintiff of his property in exercise of its sovereign powers. That the right or power of the State to deprive a citizen of his property is one of the incidents of sovereignty, there can be no question. In most democratic countries, the Constitution imposes on the exercise of this power a twofold limitation. In the first place, it is to be used only for the enjoyment and exercise of the powers conferred on the executive and, secondly, when it is used, it is to be used "on just terms", to borrow the expression used in the Australian Constitution Act (vide Clause XXXI of Section 51, Commonwealth of Australian Constitution Act). The people of India have adopted a Constitution and that Constitution is to come into operation in the course of this week. What limitations the Constitution imposes on the exercise of the right of eminent domain is a matter to be determined hereafter. For the present, it is enough to say that the Bihar Abolition of Zamidaris Repealing Act, 1950, is intra vires of the Provincial Legislature and that the effect of that Act is to deprive the plaintiff of the cause of action on which he sued. Mr. P. R. Das suggested that, as we were not a final Court of appeal, we ought to decide the other issues. We have, however, a discretion in the matter and, in my opinion, we would be exercising it wrongly if we went into the others issues. In the events which have happened, the suit cannot and ought not, in my judgment, to proceed, I would accordingly, dismiss it but would make no order for costs against the plaintiff. In order to avoid any misapprehension, I wish to say that, as at present advised, I am not prepared to say that when a Saw is enacted and before it is pat into operation or any action is taken under, it, a parson who may be prejudicially affected by it, is entitled to ask the Courts for a declaration that it is an unconstitutional law.
Das J.
5. I agree.
6. In view of the importance of the questions raised, I would like to state, briefly and in my own words, the conclusions I have reached with regard to the preliminary issue,--an issue raised by way of a bar to the suit being proceeded with, on the decision of which, I think, the fate of this suit depends. Mr. Setalvad appearing for the defendant has, I think, rightly pointed out that the preliminary issue consists of three parts. As a matter of logical sequence, the questions involved in this issue may be stated in the following order--(1) Is the Bihar Abolition of Zamindaria Repealing Act, 1950 (Bihar Act IX [9] of 1950), hereinafter to be referred to as the Repealing Act, validly enacted ; (2) if so, does it take away the plaintiff's cause of action based on the Bihar Abolition of Zamindaris Act, 1948 (Bihar Act XVIII [18) of 1949), hereinafter referred to as the Abolition Act; and (3) should the suit proceed to trial on the other issues?
7. As to question (1), Mr. P. R. Das appearing for the plaintiff has contended that the Repealing Act is not validly enacted. His main thesis is that the Abolition Act was passed by a different authority, and on the principle that the repealing authority must be the same as the enacting authority, the Repealing Act is bad for want of assent of the Governor. General, which assent was given to the Abolition Act on 6-7-1949. Mr. Das has developed his argument in the following way. He states that from Sections 99 to 107, and in particular Section 107 (2), Government of India Act, 1935, as adapted by the India (Provisional Constitution) Order, 1947, follows the conclusion that the Governor-General is an integral part of the machinery for legislation when the Provincial Law relates to one of the matters enumerated in the Concurrent Legislative List, particularly to a field already occupied by an earlier Dominion law or existing law. The Abolition Act, according to him, contained provisions repugnant to or in conflict with, provisions of (a) the Civil Procedure Code, (b) the Transfer of Property Act, (c) the Contract Act, (d) the Trusts Act etc, : therefore, under the provisions of Sub-section (2) of Section 107, the Abolition Act required the assent of the Governor-General for its validity. If with regard to the Abolition Act the assent of the Governor-General was necessary, such assent is also necessary for the Repealing Act this, in substance, is the contention of Mr. Das.
8. In my opinion, the contention has no sound foundation in law. Section 107, Government of India Act, 1935, does not act up any enacting authority, nor does it deal with competency or power to legislate in the strict sense of the term. It merely states what will happen in the case of in consistency between Dominion law and Provincial Law, and in Sub-section (2) lays down how to get over a repugnancy of a particular character. It does not deal with the question of ultra vires, which is far more fundamental than more repugnancy. The position becomes, I think, quite clear, if one examines the provisions in Chap. III Part III, and Chap. I. Part V, Government of India Act, 1935, The former deals with the Provincial Legislature, and the latter with the Distribution of Powers. Under Section 60, the Provincial Legislature of Bihar consists of two Chambers and His Majesty represented by the Governor. That is the legislative body, or the enacting authority Section 73, etc. deal with legislative procedure, Section 75 states that a Bill which bas been passed by both Chambers shall be presented to the Governor, and the latter shall declare either that he assents in His Majesty's name to the Bill or that he withholds assent therefrom or that ha reserves the Bill for the consideration of the Governor-General. Section 76 says that when a Bill is reserved for the consideration of the Governor-General, the latter shall declare either that he assents in His Majesty's name to the Bill or he withholds assent therefrom. It is to be observed that the Governor or the Governor. General, as the case may be, acts in the name of His Majesty. Then come Sections 99 to 107. Section 99 lays down the extent--territorial extent--of different legislatures. Section 100 delimits the field or subject-matter of legislation, with reference to three lists, respectively called the Federal Legislative List (List I), Concurrent Legislative List (List III), and Provincial Legislative List (List II). Under Sub-sections (2) and (3) of Section 100, the Provincial Legislature has power to make laws with respect to any of the matters enumerated in List III and List if. Then there is Section 107, which, as I have already said, deals with inconsistency or repugnancy of a particular character. It would, I think, be wrong to assume from the provisions of Section 107 that the Governor-General as representing His Majesty is part of the legislative machinery of a Province. The legislative machinery is indicated by Section 60, and not by Section 107. A Provincial law even with regard to a matter enumerated in the Concurrent List does not become bad, merely because the assent of the Governor-General has not been taken, The only effect of Section 107 is that, in the absence of such assent, the Provincial Law will be void to the extent of the repugnancy may be in part or entirety. But surely Section 107 can have no application, when there is no repugnancy. The short answer to the argument of Mr. Das, based on Section 107, is that the Repealing Act does not create any repugnancy ; on the contrary, it removes the repugnancy, if any, created by the Abolition Act, the latter Act itself not being either a Dominion law or an existing law as defined in Section 311. The absence of the assent of the Governor-General does not, therefore, invalidate the Repealing Act, which has been enacted by the proper legislative authority of the Province, viz., the two Chambers and His Majesty represented by the Governor. The two decisions Mr. Das relied on are Rev. Robert Dobie v. The Temporalities Board, (1881) 7 A.C. 136 : (51 L. J. P. C. 26) and Watson v. Winch, (1916) 1 K. B. 688 : (85 L. J. K. B. 537). In the former the question raised was whether the Legislature of the Province of Quebec had power, in the year 1875, to modify or repeal the enactments of a statute passed by the Parliament of the province of Canada in the year 1858. It was held that the powers conferred by the British North America Act, 1867, Section 129, upon the legislature of Quebec to repeal and alter the statutes of the old Parliament of Canada were co-extensive with the powers of direct legislation with which the said Legislature was invested by the other clauses of the Act of 1867. The question was considered with reference to Sections 91 and 92 of the British North America Act, which enumerate and define the various matters which are within the exclusive legislative authority of the Parliament of Canada, as well as those in relation to which the Legislature of the respective provinces have the exclusive right of making law. If it cannot be disputed in this case that the Provincial Legislature has power to make laws with regard to compulsory acquisition of land (item 9 of List II) or land and land tenure, including rights in or overland, (item 21 of List II) or even with regard to matters enumerated in List III, then on the principle of the decision in Rev. Robert Dobie v The Temporalities Board, (1881) 7 A. C. 136 : (51 L. J. P. C. 26) that Legislature will have power to repeal, modify or alter such laws. The question of the assent of the Governor. General will come in, not with regard to the competency or power to legislate but in case there is any repugnancy of the kind mentioned in Section 107.
9. The second decision on which Mr. Das relies dues not lays down any proposition which is of any assistance to him and it is not necessary to examine that decision
10. It remains now to consider another argument urged by Mr Das but developed more fully by Mr. Chatterji who followed Mr. Das on behalf of the plaintiff. So far as I have been able to understand the argument, its constituent parts may be stated thus (1) let it be assumed that the Abolition Act was ultra vires, being in contravention of the provisions of Section 299. Government of India Act, 1935; (2) on that assumption, the Repealing Act is also a nullity, because that which is ultra vires does not exist in law and cannot be repealed ; (3) therefore, it is necessary in this suit to decide whether the Abolition Act was ultra vires. In fairness to Mr. Chatterji I must make it clear that he did not state the constituent parts in the way in which I have stated them for the purpose of understanding the implications of his argument. So stated. I think the argument has the obvious fallacy that it assumes the very question to be decided. The Abolition Act was Provincial law till it was repealed, and the effect of the repeal is as if it never existed except as to transactions past and closed. Even assuming that the Abolition Act was bad, it is no longer in the statute; book and no judicial intervention is called for with regard to something which does not exists there being no past transaction under the Act which was never brought into force.
11. We have been referred to a large number of decisions, some of which my learned brother has noticed, on the point that a Court will not decide a constitutional question which is merely academic and has no live relation to the rights of the parties. I think that it would be otiose on my part to re-examine those decisions, except two on which Mr. Das has relied. The point is summarised at PP. 338-339 of Cooley'a Constitutional Limitations (Edn. 8) as follows :
"Neither will a Court, as a general rule, pass upon constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause. While Courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such weighty matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a co-ordinate department to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision carries a weight with it to which no extra-judicial disquisition is entitled. In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet if the record also presents some other and clear ground upon which the Court may rest its judgment, and there by render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable."
In the present suit the plaintiff asks for two reliefs--(1) a declaration that the Abolition Act is ultra vires and void ; and (a) an order of injunction restraining the defendant and its officers from issuing any notification under Section 3, Abolition Act, in respect of the properties of the plaintiff. The Abolition Act, having been validly repealed, does not exist, and it is unnecessary to pronounce on its validity or otherwise, because the plaintiff has now no cause of action.
12. The two decisions on which Mr. Das relied are The Duke of Newcastle v Robert Morris, (1871) L. R. 4 H. L. 661 : (40 L. J. Bk. 4) and Hitchcock v. Way, (1887) 112 E. R. S60 : (6 Ad. & E. 942). In the latter case the action was brought against the acceptor of a bill of exchange by a bona fide holder. The bill was drawn and originally accepted in part payment of a wager on horse-race. It was urged for defence that the bill was void by statute 9 Ann., C. 14, Section 1. For the plaintiff stat. 5 and 6, W. 4, C. 41, Sections 1 and 2 was relied upon. The latter Act repealed that part of the earlier statute which made the bill void, and enacted that any bill which, if the latter Act had not passed, would have been void, "shall be deemed and taken to ''have been made, drawn" etc., "for an illegal consideration," and the same consequences shall ensue. In those circumstances it was held that the law as it existed when the action was commenced must decide the rights of the parties in the suit, unless the Legislature express a clear intention to vary the relation of litigant parties to each other. In the case before us the very cause of action is taken away by the legislature, and the question of determination of the rights of the parties cannot possibly arise. The other decision rested on the principle thus stated in the head-note :
"Where persons having, as a class, certain privileges, are by statute subjected to certain liabilities, their privileges being expressly reserved to them and other persona having the same privileges, are afterwards, as a class, subjected to the same liabilities, but nothing is said of their privileges, their privileges still continue to exist."
That principle has no application to the facts of the present cage.
13. There has been some argument before us as to the continued threat to the right of the plaintiff in the almost identical clauses of the Land Reforms Bill now pending before the legislature Mr. Das has suggested that the intention of the defendant is to take advantage of Section 31 (4), Constitution Act, when it comes into force on 26-1-1980, so as to make the acquisition of the plaintiff's property, without payment of adequate compensation, not liable to question in any Court. We are, however, not concerned with questions of motive, expediency or policy, nor with legislative ethics. It may even be doubted if the introduction of a Bill by itself constitutes any threat the Bill may or may not be passed, or may be passed with different clauses. These are all speculative matters, and, in my opinion, quite outside the province of judicial enquiry on the present occasion. Obviously, what the position of the plaintiff may be when some new law is made cannot be determined now.
14. For these reasons, my conclusion is that all the three questions involved in the preliminary issue must be answered against the plaintiff, and the suit must fail on that ground.
15. I also agree with my learned brother as to costs.