Case No 275 of 1951
Appeal under article 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
NC Chakravarti for the appellant
BSen for the respondent
MC Setalvad Attorney General for India P A Mehta with him for the intervener
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 vs The State1 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 extend the life of the Act for another year
The Gazette notification setting out the resolution is in the following terms 1  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 vs The State1 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  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 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 passedthe 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 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 3721 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 intervener G H Rajadhyaksha


Summary:
The appellant filed a suit for the recovery of money as price of goods supplied against the Ex Ruler of Jaipur
Subsequently section 87 B was introduced in the Code of Civil Procedure making the provisions of section 86 in respect of suits against rulers of foreign States applicable to the rulers of former Indian States
The Ex Ruler raised the plea that the suit was incompetent as the consent of the Central Government had not been obtained as required by section 87 B
The appellant contended i that section 87 B violated article 14 Of the Constitution and was void ii that section 87 B did not apply to the continuation of a suit pending at the time when section 87 B was enacted but only to the filing of a suit after the enactment of that section
Held that section 87 B did not violate article 14 Of the Constitu tion and was not void
Section 87 B of the Code of Civil Procedure merely continued the privilege which was formerly enjoyed by the Rulers of Indian States and in regard to which the covenants entered into by the Ex Rulers and the Government of India provided for their continuance
This agreement about the privileges was further assured by article 362 Of the Constitution
The Ex Rulers thus formed a class and the special legislation was based upon historical considerations applicable to them as a class
The classification was based on a distinction which was real and substantial and it bore a just relation to the object sought to be attained
Held further that the suit was incompetent against the Ex Ruler of Jaipur
The protection of section 87 B read with section 86 applied both to the filing of a suit and to its pursuit through the courts
Section 86 provides that No Ruler  may be sued in any court  
A person is sued not only when the plaint is filed against him but is sued also when the suit remained pending against him
The word sued covers the entire proceedings in an action
Consequently the consent of the Central Government was necessary not only for the filing of the suit against the Ex Ruler but also for its continuation from the time consent was required
703 Held further that section 87 B was on its terms applicable to pending suits and there was no saving in favour of pending actions
K C Mukherjee vs Mst
Rath Ratan Kuer Pat 268 applied