Jatindra Nath Gupta vs. Province of Bihar (28 May 1949)

JUDGMENT

Kania, C.J.

1. These are eleven appeals from the judgments and orders of High Court at Patna, rejecting the applications of the appellants under Section 491, Criminal P.C. In case No. VI, under an order dated 12th February 1949 and made by the Provincial Government of Bihar, the appellant was arrested on 23rd February 1949, under Section 2, Bihar Maintenance of Public Order Act, 1947. Under Section 4 of said Act, the grounds for his detention were served on him on 8th March 1949. The appellant filed a petition under Section 491, Criminal P.C. before the Patna High Court on 24th March 1949. His petition came for hearing before a Special Bench of three Judges and the same was dismissed. They granted a certificate under Section 205(1), Government of India Act. In cases VII to XIII of 1949, the appellants were detained under the provisions of the same Act, on different dates in December 1949 and February 1949. This difference is however immaterial for the decision of the appeals. Their applications under Section 491, Criminal P.C. were heard by a Bench of two Judges of the Patna High Court. On a difference of opinion between the Judges on the true interpretation of the notification dated 7th March 1949, a reference was made and heard by the same Special Bench of three Judges which dismissed the application of the appellant in case No. VI of 1949. The question referred to the Special Bench by the Division Bench was whether, assuming that the provisions of Section 4(1), Bihar Maintenance of Public Order Act, 1949 have been complied with in these cases…the detention of the petitioners is illegal in view of the Notification dated 7th March 1949 issued by H.E. the Governor under Section 92(1), Government of India Act, 1945….?

2. Section1(3), Bihar Maintenance of Public Order Act 1947, provides that it shall remain in force for a period of one year from the date of its commencement. It has a proviso in the following terms:

3. Following that, on 12th March 1949, a public notification was published in the Government Gazette stating that in exercise of the powers conferred by Section 92(1), Government of India Act, as adapted by the India (Provisional Constitution) Order, 1947, the Governor of Bihar was pleased to direct that the Bihar Act V [5] of 1949 shall apply to the Chhota Nagpur Division and to the Santhal Parganas District.

4. On behalf of the appellants it was argued before us that Section 92, Government of India Act, conferred on the Governor of Bihar legislative powers. The words of sub.s.(1) clearly exclude the application of any Dominion or Provincial Act to the excluded area unless the Governor, by public notification, directs it to be applied to that area. In giving such direction, he is given power also to direct that the Act shall have effect subject to such exceptions or modifications, as he thinks fit. Under Section 92(2), the Governor is given powers to legislate independently for that area. He is given the wide power to override the Acts of the Central or Provincial Legislature, but subject to the consent of the Governor. General being obtained in such case. It was argued that the two parts of the section thus confer complete legislative powers on the Governor over the excluded or partially excluded area to the exclusion of the legislative powers, both of the Dominion and Provincial Governments. The powers contained in both parts of the section were, therefore, clearly legislative powers. The nature of the power of the Governor contained in Section 92(1), Government of India Act, 1935, was debated before this Court in Chatturam and Ors. v. Commissioner of Income-tax, Bihar A.I.R. (34) 1947 F.C. 32. Emphasising that as the Governor had power also to modify the Act of the Dominion or Provincial Government, the Court held that the power given to the Governor under Section 92(1) was legislative. In my opinion, it is not necessary to discuss the question further in the present case. It is not disputed by either party that the power given to the Governor under Section 92(1) is legislative power and was to be exercised in his individual discretion, under the Constitution Act as it existed in March 1947.

5. The main discussion in all the appeals centred round the proviso to Section 1(3) in the Bihar Maintenance of Public Order Act, 1947, quoted above. On behalf of the appellants, it was argued that this Act (and the proviso to Section 1(3) is included in the Act) was enacted by the Bihar Provincial Legislature. Section 1(3) prescribed the life of the Act as one year. The proviso contained a power to extend the operation of the Act for a further period of one year by the resolutions of the two Houses of Legislature of the Province and further gave the Provincial Government the power of modification, if any, of the Act. It was contended that the power to extend the life of an Act, beyond the prescribed period, was clearly legislative power and the Provincial Legislature had no power by the proviso to delegate this power to the two Houses of the Legislature of the Province of Bihar so as to extend the life of the Act by their resolutions only. It was urged that this is not conditional legislation at all, because the power of modification is an essential characteristic of the power given by the proviso. That gives power to the authority named in the proviso to make changes in the Act passed by the Legislature. Such power of modification–and there is no limitation to the extent of the modifications in the Act permitted to be made under the power–is therefore necessarily legislative power. It was pointed out that the Government of India Act is divided in different parts and part III deals with the Governor’s Provinces. Chapter in of that part contains the general provisions relating to the Provincial Legislature. Section 60 in that Chapter provides that there shall, for every Province, be a Provincial Legislature which shall consist of His Majesty represented by the Governor and two Chambers in the Province of Bihar. It was, therefore contended that the Provincial Legislature had created by the Proviso an entirely new body consisting of the two Chambers only to make legislation. It was further urged that the legislative procedure prescribed in Section 73 and subsequent sections of the Constitution Act was substituted by the special procedure of making legislation by resolutions only of the two Chambers of the Province. It was contended that the creation of such a legislative body by a sub-ordinate Legislature like the Bihar Legislatures was in contravention of the provisions of the Constitution Act and therefore any extension of the life of the Act made by such a body in accordance with the terms and procedure of the proviso was ultra vires the Provincial Government. This was argued not to be a case of conditional legislation as the Legislature had not passed the Act itself and made its operation, either as to its commencement or the area, dependent on the order of an extraneous authority.

6. On behalf of the respondent it was not disputed that to the extent the proviso conferred the power of modification it was legislative power. But it was argued that only that portion of the power might be considered ultra vires and therefore excluded from the proviso. It was pointed out that by their resolutions the two Chambers and the Provincial Government had made no modifications in the Act. The power to extend the legislation for one year more was legislative power but was conditional legislation and therefore it was not ultra vires the Provincial Government. Our attention was drawn to a decision of the Allahabad High Court in Gaurinandan v. Rex A.I.R. (35) 1948 ALL. 414.

7. In my opinion, the contention of the appellants on this point is correct. The proviso contains the power to extend the Act for a period of one year, with modifications, if any. It is one power and not two severable powers. The fact that no modifications were made in the Act when the power was exercised cannot help in determining the true nature of the power. The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of a Legislature, without any limitation on the extent of the power of modification, is undoubtedly a legislative power. It is not a power confined subject to any restriction, limitation or proviso (which is the same as an exception) only. It seems to me, therefore, that the power contain-ed in the proviso is legislative. Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded as it is, as conditional legislation by the Provincial Government. Section 1(3) and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority, which was not the legislative authority of the Province. The proviso is framed in the affirmative form, stating that it shall be extended for a period of one year by the Provincial Government on a resolution passed by the two Chambers. I also think that on a true construction of the proviso this power of legislation to extend the life of the Act beyond the first year is not left in the legislative body established by the Government of India Act for the Province, but in a different body. For the extension of the Act beyond the first year, the consent of the Governor of the Province is not required under the proviso. While Section 69, Constitution Act, makes the Governor an essential part of the Government of the Province in performing its legislative functions, the procedure laid down for the extension of the Act beyond the first year is also different from the procedure prescribed under Section 78 etc., Constitution Act. Applying the principles laid down by the Judicial Committee of the Privy Council in The Queen v. Burah 51.A. 178 and Russell v. The Queen (1882) 7 A.C. 829, I do not think the extension of the Act beyond the first year by the Notifications can escape being classed as delegated legislation. It is not and cannot be disputed that delegated legislation will be ultra vires.

8. On behalf of the respondent it was argued that even though there might be defect in this legislation, when passing orders on the applications made under Section 491, Criminal P.C., the Court has to decide whether according to the law then in existence the appellants should be released. It was pointed out that by Bihar Act, V [5] of 1919, the words “for a period of one year from the date of its commencement” in Section 1(3); Bihar Maintenance of Public Order Act, 1947, were substituted by the words “till the 31st March 1950”. It was argued, therefore, that the Bihar Maintenance of Public Order Act, 1947, was in operation in the Province of Bihar throughout and by the notification issued by the Governor on 18th March 1949 the Act was similarly in operation in the Chhota Nagpur Division. It was therefore contended that the appellants could not be released. In my opinion this contention has no substance. Bihar Act V [5] of 1949 is an amending Act. It is not a new Act. It purports only to amend the Bihar Maintenance of Public Order Act, 1947. That Act, which was a temporary Act, as its duration was fixed for one year by the Act itself, came to an end when the first year expired. The result is that when the Bihar Amending Act V [5] of 1949 was passed, there was no Bihar Maintenance of Public Order Act, 1947, in operation in the Province which could be amended and the notification of 18th March 1949, issued in the name of the Governor, could not improve the position. As regards temporary legislation, it is stated in Craies on Statute Law (4th Edn.) that every statute for which no time is limited is called a perpetual Act and continues in force until it is repealed. If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called temporary Act. As a general rule and unless it contains some special provisions to the contrary, after a temporary Act has expired, no proceedings can be taken upon it as it ceases to have any further effect. In England, it is the practice to pass; an Expiring Laws Continuance Act each session and to put into a schedule each temporary Act which it is intended to continue. When, however, an Act is not continued by a further statute,, before the expiration of the time mentioned in the temporary Act, but a bill has been introduced for its extension which has not been passed and, therefore, has not become a statute, it is provided by the Acts of Parliament Expirations. Act, 1808, that if the bill subsequently becomes a statute it would be considered as if it had been a statute from the date the bill was introduced. The necessity of passing those Acts in England lends strong support to the view that once a temporary Act ceased to be in operation, because the period mentioned in it had passed, if the measure has to be brought into operation again, fresh legislation must be resorted to. Under the circumstances, this contention of the respondent cannot support the detention of any of the appellants.

9. On behalf of the appellants, several other grounds mentioned in their petitions were raised and argued. In view of my conclusion in respect of the proviso to Section 1(3) it is not necessary to deal with those arguments. In the same way it is not necessary to deal with the application for leave to urge further grounds under Section 205(2) of the Government of India Act, although I must say that if the decision on the constitutional questions had gone against the appellants, I would not be prepared to entertain the applications under Section 205(2).

10. The result is that all the appeals are allowed. In my opinion in place of the order of High Court, the order that the appellants should be released, should be substituted.

11. These appeals arise out of applications made to the High Court of Judicature at Patna under Section 491, Criminal P.C., for the release of the appellants who are under detention in. pursuance of orders purporting to be made by the Governor of Bihar under Section 2(1)(a), Bihar Maintenance of Public Order Act, 1949 (hereinafter referred to as “the Act”). The High Court dismissed the applications holding that the detention was not illegal and certified in each case that a substantial question of law as to the interpretation of Section 92(1), Government of India Act, 1935, was involved.

12. The detenus were arrested in the Chota-nagpur Division of Bihar, some in January and the others in February 1949. Their main contention is that the Act was not in effective operation in the Chotanagpur Division at the time when they were arrested and the orders for their detention were made. The Act came into force on 16th March 1947 and by Section 1(3) its operation was limited to one year from the date of its commencement. There was, however, a proviso to the effect that

13. On the latter date, however, the Governor issued a public notification under Section 92(1) directing that the Act

14. In Chatturam and Ors. v. Commissioner of Income-tax, Bihar A.I.R. (34) 1947 P.C.32, this Court expressed the view that when the Governor made a notification under Section 92(1), Constitution Act, he exercised a legislative power. It may be mentioned’ here in passing that Meredith J. appears to have under, stood the decision in the above mentioned case as holding that the Governor exercised a legislative power only when he applied an Act with modifications. This is a misapprehension. The power of modification was stressed and relied on in that case only as throwing light on the true nature of the power conferred under Section 92(1). On this view, the question arises whether, in applying the proviso to Section 1(3) of the Act to Chotanagpur, the Governor exceeded his power under Section 92(1), Government of India Act, 1935. The proviso leaves it to the discretion of the Provincial Government and the two Chambers of the Provincial Legislature to prolong the duration of the Act for a further period of one year with such modifications as they may think fit. This, in my opinion, is also a legislative power and not a matter of mere administrative discretion. It was accordingly suggested that the delegation of such a power was beyond the competence of the Provincial Legislature and that the proviso was ultra vires and void. On the other hand, learned Counsel for the respondent submitted, that it was only a case of “conditional legislation” such as was held to be within the competence of Legislatures with plenary powers in The Queen v. Burah 6 I.A. 178, Rusell v. The Queen (1882) 7 A.C. 829 and King Emperor v. Benoari Lal Sarma A.I.R. (32) 1945 P.C. 48 In the first-mentioned case, their Lordships appear to have regarded the power entrusted under Section 39 of Act XXIII [23] of 1861 to the Local Government of extending the Code of Civil Procedure of 1859 to certain areas “subject to any restrictions, limitation or proviso which the Local Government may think proper” as an instance of valid conditional legislation although alteration of an enactment by way of “restriction, limitation or proviso” may involve the exercise of a legislative power as much as its “modification,” which is only a more comprehensive term. Their Lord-ships criticised the view taken by the majority of the Judges of the Calcutta High Court on two grounds. They pointed out that the Indian Legislature was not in any sense an agent or a delegate of the British Parliament in exercising its legislative powers, as was supposed. That Legislature, when acting within the limits defined by the Imperial Parliament, had plenary powers of legislation “as large and of the same nature as those of Parliament itself”. Secondly, they observed that the decision of the majority rested upon a mistaken view of the “nature and principles of legislation”. Legislation could be either absolute or conditional on the use of “particular powers” or on the exercise of a “limited discretion” by local administrative authorities. In the particular case before them they held that “the proper legislature has exercised its judgment as to place, person, laws, powers”; but left to the Lieut. Governor, “the time and the manner” of carrying the legislation (for removing certain districts from the jurisdiction of the High Court) into effect. But neither in this, which is the leading case on the point, nor in the subsequent decisions already referred to, is any clear indication discernible as to the true dividing line between a “limited discretion” whose delegation is permissible and a legislative power which cannot constitutionally be delegated. It is not easy nor perhaps wise to attempt to define the limits beyond which the one broadens into the other. While it may be a satisfactory working test in many cases to see whether the power delegated is a legislative power, it may not always be a conclusive test. The trend of modern legislative practice has been in favour of conferring on administrative authorities the power of making rules and byelaws which may, in a certain sense, be said to be legislative. It is, however, unnecessary to pursue this point further, as I am of opinion that, whether or not it was competent for the Provincial Legislature to enact the proviso in question, the Governor acting under Section 92(1), Government of India Act, had no power to direct that the proviso should apply to Chotanagpur. For, the power under Section 92(1), though it may be legislative in character, is a very limited power and has been specially vested in the Governor whose personal discretion and judgment are an important factor in its exercise. The securing of “the peace and good government” of the partially excluded areas is made the “special responsibility” of the Governor under Section 52(1)(e), in respect of which he is to exercise his individual judgment under Sub-section (3). This arrangement, which “excludes” those areas from the purview of normal legislation, had its origin, as is well known in the consideration that the people inhabiting those areas were not, on account of their primitive er backward condition, fully capable yet of safe-guarding their welfare by joint political action in the legislatures of the country, and might otherwise suffer neglect or oppression. The Governor is thus made the sole judge as, to whether an Act of the Provincial Legislature is suitable for application to those areas, having regard to their peculiar needs and local conditions which greatly vary from those prevailing in the rest of the Province. His divesting himself in effect of this personal responsibility and delegating in advance to that very Legislature the discretion as to whether or not to prolong the operation of the Act in those areas for another year from 16th March 1948–for, his application of the proviso to Chotanagpur could mean nothing less–amounted, in my opinion, to abdication of his function in that regard. Such a shifting of the burden of his responsibility could not have been contemplated by Section 92(1), Government of India Act. It follows that the application of proviso 1 to Section 1, Sub-section (8) of the Act to Chotanagpur by the notification No. 900 dated 16th March 1947 was unconstitutional and, assuming, without deciding, that the enactment of the proviso by the Provincial Legislature was intra vires, and the notification issued by the Provincial Government on 11th March 1948 under that proviso wag effective to extend the duration of the Act for one more year, a fresh notification by the Governor was necessary to bring the extended Act into force in Chotanagpur, and in the absence of such notification the arrest and detention of the appellants must be held to be unauthorised and illegal. In this view it is unnecessary to consider the other contentions raised on behalf of the appellants.

15. It was argued by the respondents’ learned Counsel that the Bihar Act V [5] of 1949, which came into force on 15th March 1949 and which was applied by the Governor by a notification! under Section 92(1), to Chotanagpur, having amended the Act of 1947 by the substitution of the words and figures “till 81st March 1950” for the words “for a period of one year from the date of its commencement” in Sub-section(3) of Section 1 of the Act of 1947, the arrest and detention of the appellants were retrospectively legalised. This argument cannot be accepted. If, as I have held above, the Governor’s notification No. 900 of 16th March 1947 was inoperative in so far it purported to apply the proviso to Chotanagpur, the Act must be taken to have expired in that area on 15th March 1948, notwithstanding the notification of the Provincial Government of llth March 1948 purporting to extend it from 16th March 1948 to 15th March 1949. Even if the Act was kept in force in the rest of the Province by such notification when the amending Act v [5] of 1949 was passed and was effectually amended thereby, notification by the Governor under Section 92(1), which accompanied the amending Act could not effectually bring the amendment into operation in Chotanagpur, where the Act had already expired and was no longer in force at the time of the last mentioned notification.

16. Reliance was also placed on behalf of the respondents on the Governor’s notification of 7th March 1949 as validating the arrest and detention of the appellants. That notification, it will be recalled, purported to extend the Act of 1947 retrospectively from 16th March 1948. All the learned Judges excepting the Chief Justice in the Court below were of opinion that it was. beyond the power of the Governor to apply an existing Act with retrospective effect, and I share that opinion. As already pointed out, the Governor’s only power under Section 92(1), is to apply an existing Act of the Central or Provincial Legislature to excluded or partially excluded areas and it is only on such application’ by him that the Act can begin to operate in those areas. This implies to my mind that he cannot by his notification apply an Act retrospectively, that is to say, make it operate even prior to the date of his notification. I am, therefore, of opinion that the notification of 7th March 1949 is of no avail to the respondents.

17. In the result, the appeals are allowed and the appellants will be set at liberty forthwith.

18. The appellant, Jatindra Nath Gupta, at present detained in the Hazaribagh Central Jail, is an employee of Messrs. Jagjiwan Trambaklal and Co., coal merchants at Calcutta and was at the time of his arrest on 23rd February 1949 in charge of their Jharia office as manager. He was served with an order of detention purported to have been passed by the Governor of Bihar on 17th February 1949 under the Bihar Maintenance of Public Order Act, 1947. On 24th March 1949 an application was filed in the High Court of Patna under Section 491, Criminal P.C., challenging the legality and propriety of the detention (Criminal Miscellaneous No. 149 of 1949). This was dismissed by a Special Bench, of the High Court consisting of Meredith, Shearer and Imam JJ., on 13th April 1949. It was certified under Section 205, Government of India Act, that the case involved a substantial question of law as to the interpretation of the various sections of the said Act. This appeal has been preferred to this Court on the foot of that certificate and as invariably happens in all Each cases, an application has been made for leave to argue other points. This application, however, does not require any serious consideration as the points raised are not of such exceptional importance as to incline us to reopen the case on the merits in the exercise of the jurisdiction vested in us under Sub-clause (2) of Section 205, Constitution Act.

19. As regards the constitutional issue, it lies within a narrow compass. The facts which raise this point are these : the Bihar Maintenance of Public Order Act, 1947 (Act V [5] of 1947) came into force on 16th March 1947. Sub-clause (3) of Section 1 of the Act says:

20. Chota Nagpur, within which area the appellant was arrested, though a part of the Province of Bihar, is a partially excluded area and is outside the reach of the legislative power of the Provincial Legislature. Though Section 99, Government of India Act, 1935, enacts that a Provincial Legislature may make laws for the Province or for any part thereof, excluded and partially excluded areas have been removed from the field of legislation of this legislature by Section 92 of the Act. This section is in these terms:

21. Section 92(2), however, gives the Governor plenary power of legislation concerning excluded areas by framing regulations. He may repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature or any existing law. He has sovereign authority to legislate for an excluded area subject to the assent of the Governor-General. Unless a law made for the peace and good government of an excluded area has been assented to by the Governor-General, it can have no effect. Thus wherever a Governor wishes to act at his own initiative and wants to make laws, he can make them acting in his sovereign legislative authority by himself with assent of the Governor-General; but when he wishes to adopt a line of convenience and wishes not to legislate in exercise of his powers under Section 92(2) and subject to its safeguards and acts under Section 92(1), then he can only do so subject to the conditions and limitations provided therein.

22. As already mentioned, the Bihar Maintenance of Public Order Act, 1917, came into force on 16th March 1917. The Governor acting under Section 92(1) applied it in its entirety including the proviso to Sub-section(3) of Section 1, to Chota Nagpur on the same date by notification No. 900 (Extraordinary). Acting under the proviso the Provincial Government on 11th March 1918 extended by notification the life of the Act by one year. Having applied the proviso to Cbota Nagpur and having delegated to the Provincial Government the power to extend the life of the Act, provision for which already existed within the four corners of the statute, the Governor assumed that he need issue no second notification under Section 92(1) for giving validity to the extension of the life of the Act in the excluded area. Accordingly, no notification was issued in terms stating that the life of the Act had been further extended by one year so far as Chota Nagpur was concerned.

23. The appellant was served with a detention order in February 1919. When he raised the question of the propriety of his arrest in his petition under Section 191, the Governor was advised to issue a validating notification on 7th March 1949, No. 3430 C, saying that the Act stood ex, tended by one year to Chota Nagpur from 16th March 1918 and that it should be deemed that it always had application there. This notification was impugned on the ground that under Section 92(1) the Governor could not exercise his powers with retrospective effect. When by the Bihar Act of 1919 the life of the Act was extended to 3lst March 1950 by substituting the words already quoted in the Act of 1947, the amending Act was -applied to Chota Nagpur by a notification of the Governor dated 15th March 1919.

24. The question to decide is whether on the date of the appellant’s arrest the Bihar Maintenance of Public Order Act, 1917, was validly in force in Bihar and also in the excluded area. On behalf of the detenu it is contended that the Act had come to an end as the one year period for which it was to remain in force expired on 16th March 1948 and that the proviso to Sub-clause (3) of Section 1 of the Act was void as it amounted to delegation of legislative power by the Provincial Legislature and this it was not empowered to do. It was argued that a Legislature is not permitted to abdicate or transfer to others the essential legislative functions with which it is invested. The attack on the proviso is this : that it amounts to an improper delegation of the powers of the Provincial Legislature. If this contention has force and the proviso to Sub-clause (3) of Section 1 is ultra vires of the Bihar Provincial Legislature, then it follows that the Act ceased to be law in Bihar on 16th March 1948 and on the relevant date of the arrest of the appellant neither that Act was in force in Bihar nor could the Governor legitimately issue any notification prospectively or retrospectively applying a non-existing Act under Section 92(1) to Chota Nagpur. The result would be that the detention of the appellant would be illegal and it shall have to be directed that he be released.

25. It was observed by their Lordships of the Privy Council in King-Emperor v. Benoart Lal Sarma A.I.R. (32) 1945 P.C. 48 that:

26. The proviso which has been assailed in this case, judged on the above test, comes with-in the ambit of delegated legislation and is thus an improper piece of legislation and void. To my mind, it not only amounts to abdication of legislative authority by the Provincial Legislature, it goes further and amounts to setting up a parallel legislation for enacting a modified Bihar Maintenance of Public Order Act and for enacting a provision in it that that Act has to be enacted for a further period of one year. A careful analysis of the proviso bears out the above conclusion. It may be asked what does the proviso purport to do in terms and in substance? The answer is that it empowers the Provincial Government to issue a notification saying that the Provincial Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification. As stated in the earlier part of this judgment, unless the power of the Provincial Government is co-extensive with the power of the Provincial Legislature, it is difficult to see how it can have the power to modify a statute passed by that Legislature. Modification of statute amounts to re-enacting it partially. It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted from it. The power to modify may-even involve a power to repeal parts of it. A modified statute is not the same original statute. It is a new Act and logically speaking, it amounts to enacting a new law. The dictionary meaning of the word “modify” is to make some-thing existing much les3 severe or to tone it down or to make partial changes in it. What modifications are to be made in a statute or whether any are necessary is an exercise of lawmaking power and cannot amount merely to an act of execution of a power already conferred by the statute. The extent of changes is left to external authority, i. e., the Provincial Government. Nothing is here being done in pursuance of any law. What is being delegated is the power to determine whether a law shall be in force after its normal life has ended and if so, what that law will be, whether that what was originally enacted or something different. The body appointed as a delegate for declaring whether a penal Act of this character shall have longer life than originally contemplated by the Legislature and if so, with what modification, is a new kind of Legislature than entrusted with the duty under the Government of India Act, 1935. Under Section 99 of the Act, a Provincial Legislature alone can make laws for a Province. The legislative procedure for enacting such laws’ is laid down by Sections 73, 74 and 75 of the Act and when a Bill is passed by the two Houses of Legislature and is assented to by the Governor, it becomes law; but under the proviso, it is said that the Provincial Government can modify the law on a resolution of the two Houses and a new legislative authority is vested by the proviso in the Provincial Government as a substitute for the authority constituted under the Government of India Act, 1935, for modifying or enacting a Provincial statute. In my opinion, no external body can be delegated with the duty of making modifications in a statute, but that is what the proviso has done. This novel device of defeating the Constitution Act adopted by the Provincial Legislature cannot have the approval of this Court. It is a dangerous device to defeat the clear and unambiguous provisions of the Constitution Act and if encouraged, may lead to the substitution of new law-making bodies under cover of so-called conditional legislation. If both the Houses of the Provincial Legislature were to meet to pass a resolution, one fails to understand why could they not meet to re-enact the law for a further period of one year; instead of passing a resolution, a Bill could be mooted and passed and assent of the Governor obtained. I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of Section 1(3) also amounts to an Act of Legislation and does not fall under the rule laid down in The Queen v. Burch 5 I.A. 178. The Act in a mandatory form stated that it shall be in force for one year only. That being so, the power given in the proviso to re-enact it for another year is legislative power and does not amount to conditional legislation. In letter and in spirit this proviso gives the impression that the Bihar Legislature for reasons best known to itself wanted to retain the power saying that the law shall continue for another year with such modifications as it thinks fit, but that it did not want to meet as a Legislature with its necessary safeguards but wanted to do so by a resolution. The Legislature in doing so acted beyond the powers conferred on it by the Act of Parliament.

27. Reliance was placed in the High Court on certain observations made by their Lordships of the Privy Council in a number of cases, principally on the case in The Queen v. Burah 5 I.A. 178. In none of these cases, however, the power was given to modify the original statute, to the delegate and hence these cases are not authority for the decision of the present case. The learned Judges of the High Court placed considerable reliance on the following observations in The Queen v. Burah 5 I.A. 178:

28. These observations clearly have no application to the present case, because it was said that no power was given to the Lieutenant-Governor to make what laws he pleased, while in the present case a power has been given to the Provincial Government to say how the new statute which has to be extended for a further period of one year, would look like.

29. The same view was expressed by their Lordships in Russell v. The Queen (1882)7 A.C. 829. In that case the mode of bringing the second part of the Canada Temperance Act, 1878, into force was stated as follows:

30. Considerable reliance was placed on the decision in King-Emperor v. Benoari Lal Sarma A.I.R. (32) 1945 P.C. 48 In this case an Ordinance issued under Section 72 of Schedule IX, Government of India Act, 1935, by the Governor-General was impugned, inter alia, on the ground of de-legation of legislative authority. The Ordinance recited that “an emergency has arisen which makes it necessary to provide for the setting up of special criminal Courts”, the body of the Ordinance contained the necessary framework for Courts of criminal jurisdiction consisting of Special Judges, Special Magistrates and Summary Courts, the provisions as to their respective limits of jurisdiction and procedure, together with restrictions on appeal, but the Ordinance did not itself set up any of these Courts but provided by Section 1, Sub-section (3), that the Ordinance

31. The other points raised by the learned Counsel for the appellants require no discussion in view of my decision on the principal point involved in the case. The Bihar Maintenance of Public Order Act died a natural death on 16th March 1948 and had not been validly reenacted by the date when the appellant was arrested. The result is that the Governor had no power to adopt it to Chota Nagpur as there was nothing existing to adopt. He could not exercise his powers under Section 92(1) and there was no law under which the appellant could be arrested and detained. Moreover, even under Section 92(1) or (2) the Governor could not make a law enacting a proviso like the one in question in this case as that would again amount to delegated legislation. The subsequent notification issued under Section 92(1) was, in my opinion, a useless attempt to cover a lost ground and does not cure the defect. It is unnecessary to decide that in case the proviso was a piece of valid legislation whether the Governor could issue a notification retrospectively, making the Act applicable to Chota Nagpur. When a suitable occasion arises, the matter will be decided.

32. The result is that the detention of the appellant is illegal and he is directed to be set at liberty.

33. The other ten appeals also stand decided’ by my decision in the above case. A point was raised that Act V [5] of 1949, which amended the original Act of 1947, saved these cases from the effect of this decision. In my opinion, this contention is not sound. Act V [5] of 1949 enacted an amendment in the original Act of 1947 which had died a natural death on 16th March 1948. Unless that Act was revived, no amendment made in it could be of any effect. The only apt manner of reviving the expired Act was by enacting a fresh statute or by enacting a statute expressly saying that that Act is herewith revived. The result, therefore, is that all these appeals are allowed and the appellants are directed to be set at liberty.

34. I agree with my Lord the Chief Justice that these appeals should be allowed; and I would like to say a few words on the questions of constitutional law which have been raised in these cases.

35. The substantial point that requires consideration is whether the Bihar Maintenance of Public Order Act (1947), under which orders for arrest and detention were made against the appellants in all these cases, was validly in operation in the Chhota Nagpur Division of the Province of Bihar, within which these appellants resided, at the dates when the arrests were made or the orders for detention were passed against them,

36. The Bihar Maintenance of Public Order Act is a piece of legislation passed by the Provincial Legislative Council of Bihar and it received the assent of the Governor-General on 15th March 1947. The Act extends to the whole of the Province of Bihar as provided for by Section 1(2); and Sub-section(3) of Section 1 declares that it shall remain in force for a period of one year from its commencement. Upon this sub-section there is engrafted a proviso which runs as follows:

37. The Chhota Nagpur Division is a partially excluded area within the meaning of Chap. 5 of the Government of India Act, 1935, and under Section 92(1) of the Act no Act of the Dominion or the Provincial Legislature is applicable to such area, unless the Governor by a public notification so directs. A notification was issued by the Governor of Bihar in accordance with the provisions of this sub-section and published in the official Gazette on 16th March 1947, extending the Bihar Maintenance of Public Order Act without any exception or modification to the Chhota Nagpur Division of the Province, On 11th March 1948 the Provincial Government, in exercise of its powers under the proviso to Section 1(3), Bihar Maintenance of Public Order Act, referred to above extended the application of the Act for a further period of one year and the Act was thus made operative up to 15th March 1949. The appellants with one exception were arrested in January 1949 and the detention orders were all made in February 1949. Applications were presented soon after on behalf of eight detained persons, including the appellants in Appeals Nos. VII to XIII and one Kanailal Paul since released before the High Court at Patna under Section 491, Criminal P.C.; and the applications came up for hearing before a Division Bench consisting of Agarwala C.J. and Nageswar Prasad J. A contention was raised on behalf of the applicants that the Bihar Maintenance of Public Order Act had no operation in the Division of Chhota Nagpur after 15th March 1948, as no notification in terms of Section 92(1), Government of India Act was published by the Governor of Bihar making it applicable to Chhota Nagpur after the life of the Act was extended for a further period of one year in accordance with proviso to Section 1(3) mentioned above. It appears that pending the hearing of these applications under Section 491, Criminal P.C., the Governor of Bihar published a notification on 7th March 1949 purporting to do so under Section 92(1), Government of India Act, by which it was declared that the Maintenance of Public Order Act should apply and should be deemed to have always applied to the Division of Chhota Nagpur from 16th March 1948. Fresh arguments were heard by the learned Judges on this point and the judgment was delivered on 23rd March 1949. One of the petitioners named Kanailal Paul was released on the ground that sufficient materials were not supplied to him to which he was entitled under the Act to enable him to make effective re-presentation against the order of detention.With regard to the other applicants, the grounds disclosed under Section 4 of the Act were found to be sufficiently specific, but on a question of law the two Judges took different views. Both the Judges seem to have agreed that the Bihar Maintenance of Public Order Act could not apply to Chhota Nagpur after the expiration of the Act on 15th March 1948, by reason merely of the extension made by the Provincial Government in accordance with the proviso to Section 1(3) of the Act, and that a fresh notification by the Governor under Section 92(1), Government of India Act, was necessary. The learned Judges differed, however, as regards the legal effect of the notification published by the Governor of Bihar on 7th March 1949. According to Agarwala C.J. this notice would operate retrospectively, while Nageswar Prased J., was of opinion that it took effect only from the date on which it was published. The result was that the point upon which the two Judges differed was referred under Clause 28, Letters Patent, to a Bench of three Judges consisting of Meredith, Shearer and Imam JJ. The question referred to this Bench of three Judges though not very happily framed was worded as follows:

38. It appears that another detained person named Jatindra Nath Gupta, who is appellant in appeal No. VI of 1949, filed his application under Section 491, Criminal P.C., some time after the applications were presented on behalf of the eight persons mentioned above. Before his case came up for hearing, the learned Judges had already referred the cases of the other seven persons to the Bench of three Judges and the case of Jatindra Nath was also sent along with this batch to be heard and disposed of by the Special Bench.

39. The Special Bench answered the question referred to them in the negative and all the Judges concurred in holding that no fresh notice under Section 92(1), Government of India Act, was necessary for applying the Maintenance of Public Order Act to Chhota Nagpur after it was ex-tended for another year by the Provincial Government in accordance with the proviso to Section 1(3) of the Act. The extension, it was said, was not a fresh Act of legislation, but flowed from the provision of the Act itself which in its entirety became operative in Chhota Nagpur by the notification of the Governor dated 16th March 1947. The notification of 7th March 1949 was, therefore, wholly unnecessary, though according to learned Judges, it could not have any retro, apective effect. The conclusion of the Special Bench was that the detention of the petitioners was not illegal even without the notification of 7th March 1949. As the view of the majority of the learned Judges was that the detentions were not illegal, the applications of the seven detained persons were dismissed on 19th April 1949 by Agarwala C.J. and Nageswar Prasad J. The petition of Jatindra Nath Gupta was dismissed on its merits by the Special Bench itself. Certificates were granted in all these cases under Section 205(1), Government of India Act, and on the strength of these certificates these appeals have come up before us.

40. The main contentions put forward on behalf of the appellants are that the Bihar Maintenance of Public Order Act could not have been in force in the districts of Chhota Nagpur after 15th March 1948, firstly because the extension of the Act for a further period of one year by notification of the Provincial Government in terms of the proviso to Section 1(3) of the Act was void and inoperative, the proviso itself being ultra vires the powers of the Provincial Legislature and the legislative authority of the Governor; and secondly because even assuming that the extension of the duration of the Act by the Provincial Government was lawful, the Act could have no application to Chhota Nagpur without a fresh notice by the Governor under Section 92(1), Government of India Act. For a proper decision on these points, it would be necessary and convenient to advert, first of all to the provisions of Section 92, Government of India Act, which deals with the administration of and making of laws for excluded and partially excluded areas.

41. The expressions “excluded” and “partially excluded areas” as used in Chapter V of the Government of India Act really stand for what were described as “scheduled districts” or “backward tracts” in earlier legislation in British India. With regard to these areas, where there appears to be a substantial element of aboriginal population, the policy pursued by the Government had always been to make the general rules of law and procedure obtaining in other parts of the country inapplicable to them and to vest an authority in the Governor-General in Council or the administrative head of the province to legislate for them in a summary manner. Section 92(1), Government of India Act, as it now stands lays down:

42. Thug sub-section (1) excludes from an excluded or partially excluded area all legislation passed by the Dominion or the Provincial Legislature and no Act can be operative within such an area unless a notification to that effect has been published by the Governor of the Province in the manner indicated in the sub-section. The Governor is also empowered to lay down, when he publishes any such notification that an Act would be applied, subject to such modifications and exceptions as he considers proper. The provisions of this sub-section are very similar to those contained in Sections 5 and 5A, Scheduled Districts Act (Act XIV [14] of 1874), though in the earlier Act the sanction of the Governor-General in Council was necessary even for making a notification. Sub-section (2) of Section 92 gives a plenary power of legislation to the Governor of a province in regard to excluded and partially excluded areas within the province and he can make any regulation which, in his opinion, is necessary for peace and good government, the only limitation on his authority being that the regulation must receive the assent of the Governor-General before it can be made operative.

43. There could be no doubt that the powers exercised by a Governor under Section 92(2), Government of India Act, are legislative powers in the proper sense of the expression. The Governor is expressly empowered by this sub-section to repeal or amend any Act of the Dominion Legislature or of the Provincial Legislature or any existing law which he considers necessary in the interest of peace and good government. The exercise of this power is not limited to any period of time or to any particular entry in the three lists in the Seventh Schedule of the Act. The language of Sub-section(1), however, is not so clear and the question was raised before the High Court and also mooted before us whether the Governor really exercises a legislative power when he makes a notification under Section 921), Government of India Act; and reference has been made in this connection to a pronouncement of this Court in Chatturam and Ors. v. Commissioner of Income-tax, Bihar A.I.R. (34) 1947 F.C.32. In that case there was a notification by the Governor of Bihar under Section 92(1), Government of India Act, declaring that the Income-tax Amendment Acts of 1939 and 1940 and the Indian Finance Act of 1940 would be applicable to Chota Nagpur with retrospective effect from the dates on which these Acts come into force in other parts of Bihar. For the purpose of removing any doubt, a regulation was also passed by the Governor of Bihar under Section 92(2), Government of India Act, on exactly the same terms upon which the notification was issued and the regulation received the assent of the Governor-General. It was held by this Court that while the first part of Section 92(1), Government of India Act, deals with executive authority, the latter part of the sub-section deals with the functions of a Governor which are clearly legislative. “By that part of the sub-section” so runs the judgment,

44. This decision which is binding on us, states, in my opinion, the law quite correctly. The function exercised by the Governor in making a notification under Section 92(1), Government of India Act, cannot be a purely executive function; it is not that the Governor merely publishes an Act passed by a legislative body, it is the notification that gives the law which otherwise would have no operation in an excluded area, its authority and binding force. The entire scheme of the Government of India Act in the matter of excluded and partially excluded areas seems to be, like the previous legislation on the subject, to remove these backward areas from the purview of the general law of the land and to make the Governor of the Province the sole repository of legislative power in regard to them. But though the power exercisable by the Governor under Section 92(1), Government of India Act, is in essence legislative power, it is different from and is of a much more restricted and attenuated character than the power conferred upon the Governor by Sub-section (2). Under Sub-section(1), the Governor has no power to make independent legislation. He can only apply to an excluded area a legislation which has already been passed by the Dominion or the Provincial Legislature. It is true that he can make modifications and exceptions but these are only for adjusting the provisions of the Act to the local circumstances. The Governor cannot certainly, by notification under Section 92(1), alter the basic structure of an Act or its policy or principles.

45. Mr. Ghosh appearing for the appellants has accepted the position that the Governor exercises not executive but legislative powers When he makes a notification under Section 92(1), Government of India Act. Strictly speaking, therefore, it must be held that the notification of the Governor of Bihar dated 16th March 1947 made the Bihar Maintenance of Public Order Act applicable to the partially excluded area of Chhota Nagpur as a legislative Act of the Governor himself, and the proviso to Section 1(3) of the Act was necessarily a part of it. The material question for our consideration that now arises is whether legislation by the Governor could validly contain a provision which is embodied in this proviso. If the intention of the Parliament is that the Governor and the Governor alone could exercise legislative authority in respect to an excluded or partially excluded area, could the Governor delegate his powers to any other external authority and empower the latter to extend the duration of the Act with or without modifications as it considers proper ? The learned advocate for the appellants has contended that the proviso to Section 1(3) of the Act amounts to a delegation of the legislative powers to an outside authority and it is ultra vires of the Bihar Provincial Legislative also. The matter, I think, may be considered generally for if there is actually any delegation of legislative powers, the clause would be invalid whatever the legislative authority might be.

46. Now it is one of the settled maxims of constitutional law that the power conferred on legislative authority to make laws cannot be delegated by it to any other body or department. The authority must remain where it is located and the power to which the prerogative has been entrusted cannot relieve itself from the responsibility by choosing other organs upon which it shall be devolved. (Vide Cooley’s Constitutional Limitations, 8th Edn., vol. 1, p. 227.) There are certain well recognised exceptions, more apparent than real, which have been engrafted upon this maxim. Thus the legislation itself may be conditional and not absolute and its taking effect may be made to depend upon determination of facts and conditions by an outside authority. (Vide Cooley’s Constitutional Limitations, vol. 1 p. 227). The legislature, it is true, cannot delegate its power to make law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. (Vide Locke’s Appeal 13 Am. Rep. 716). The inhibition against delegation does not also preclude the Legislature from delegating any power not legislative which it could itself rightfully exercise. Thus the Legislature may authorise another to do something which does involve law-making as a matter of advantage or convenience, although if it so liked it could do that thing itself.

47. I will now consider whether the impugned proviso comes within the mischief of the rule which prohibits delegation of legislative-powers or is covered by any of the exceptions. Section 1(3), Maintenance of Public Order Act,. definitely states that the Act shall remain in force for a period of one year from its commencement. The proviso authorises the Provincial Government to extend it by another year with or without modifications provided there is a resolution to that effect passed by the Bihar Legislative Assembly and assented to by the Bihar Legislative Council. It is pointed out to us that even in England there may be legislation by resolutions of both Houses of Parliament. This argument has absolutely no force. As has been said by Chalmers and Asquith in their well known work on Constitutional Law, there have been rare instances of legislation by resolution of both Houses, such resolutions of course resting ultimately on statutory powers. Thus in the Emergency Powers Act, 1920, the King is enabled by proclamation to issue regulations and provision is made by the Act for prolonging the operations of these regulations beyond a period of seven days from their being laid before Parliament if both Houses pass resolutions in favour of such prolongation. (Vide Chalmers and Asquith on Outlines of Constitutional Law, 5th Edition page 98) These exceptional cases rest on express statutory provisions which the British Parliament in the supremacy of its powers can always make. A resolution passed by both Houses of the Bihar Provincial Legislature has certainly not the force of law under the Government of India Act, and the Provincial Government even if it acts on the resolutions of both the Houses of Legislature acts as an out-side authority which is not invested with any legislative powers at all. If to such authority the Provincial Legislature has delegated the power of law making in regard to certain mattiers, such Act would be clearly illegal and outside the competency of the Provincial Legislature.

48. In the High Court Meredith J. took the view that in enacting the proviso the Bihar Provincial Legislature did not delegate its legislative powers to any external authority. What it did was to enact what is called a “conditional legislation,” the validity of which has never beer questioned and has been repeatedly affirmed in more than one pronouncements of the Judicial Committee, namely, in The Queen v. Burah 5 I.A. 178, Russel v. The Queen (1882) 7 A.C. 829 and King Emperor v. Benoarilal Sarma A.I.R. (32) 1945 P.C. 48.

49. In The Queen v. Burah 5 I.A. 178, the question arose as to validity of Section 9 of Act XXII [22] of 1869 passed by Indian Legislature. Sections 4 and 5 of the Act removed the District known as Garho Hills from the operation of law prescribed by the Bengal Acts and Regulations and vested the administration of civil and criminal justice and the collection of revenue and other matters in such officers as the Lieutenant Governor might appoint. Section 9 of the Act laid down:

50. With regard to. this section, the High Court, by a majority, decided that the authority given to the Lieutenant Governor of Bengal to extend the Act of 1869 to the Khasi and Jaiantia Hills was in excess of the legislative powers of the Governor-General in Council. This decision was reversed by the Judicial Committee and their Lordships pointed out that the decision of the majority of the judges of the Calcutta High Court rested upon a mistaken view of the powers of the Indian Legislature and indeed of the nature and principles of legislation. With regard to the first, it was held by the Judicial Committee that the Indian Legislature was not a delegate of the Imperial Parliament and within the limits assigned to it, it had plenary powers of legislation as large and of the same nature as those of Parliament itself. With regard to the second point, their Lordships held that it was certainly not within the power of the Indian Legislature to create a new Legislature and endow it with legislative capacity, but they pointed out that there was nothing like delegation in the present case. Here everything was decided by the Legislature itself and all that was left to the discretion of the Lieutenant Governor was to specify the time and the manner of carrying the law into effect. The case, according to their Lord-ships, fell within the category of what was described as conditional legislation and their Lordships held that such legislation had been in vogue in India and was sanctioned both by usage and considerations of convenience.

51. It will be noticed that in this case all that was left to the Lieutenant Governor to determine was the time when the repealing Act passed by the legislature would come into operation in the Khasi Hills and Jaiantia Hills. There was no legislative Act left to be performed by the Lieutenant Governor. As their Lordships observed in the judgment:

52. In Russell v. The Queen (1882) 7 A.C. 829, the validity of the Canadian Temperance Act of 1878 was challenged on, the ground that it was ultra vires of the powers of the Parliament Act of Canada. The Temperance Act was to be brought into force in any county or city if upon a vote of the majority of the electors of that county or city favouring such course the Governor-General by Order in Council declared the relative part of the Act to be in force. It was held by the Privy Council that this provision did not amount to a delegation of legislative authority to a majority of the voters in a city or county. Their Lordships said:

53. In the present case the Act does not lay-down the condition and everything which is to follow upon the fulfilment of the same. It pro-vides for the determination of the duration as well as the contents of the legislation itself by some external authority at a future date.

54. The principle underlying the decision in King-Emperor V. Benoarilal Sarma A.I.R. (32) 1945 P.C. 48 is identically the same. In that case the validity of an Emergency Ordinance by the Governor-General of India was challenged inter alia on the ground that it provided for setting up of special criminal Courts for trial of particular kinds of offences; but the actual setting up of the Courts was left to the Provincial Governments who were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that:

55. In my opinion, the validity of the proviso to Section 1(3), Bihar Maintenance of Public Order Act, cannot be upheld on the ground of its being a piece of contingent legislation. It cannot also be supported on the ground that what it dele. gates is a mere non-legislative function. The duration of a statute is a matter for determination by the Legislature itself. Prom the language of Sub-section(3) of Section 1 and that of the proviso, it is difficult to say that the Legislature fixed the duration of the Act at two years from the date of the commencement and left it to the Provincial Government to determine at the end of one year in consultation with the two Houses of the Bihar Legislature whether the Act should be in operation for one year more. If that was the real intention of the Legislature, it might have been argued that it was a piece of conditional legislation only. That this was not the intention of the Legislature is, however, clear from the fact that the Provincial Government is authorised to decide at the end of the year not merely whether the Act should be continued for another year but whether the Act itself should be modified in any way or not. To modify a statute is certainly to perform a legislative act. No restrictions have been laid down regarding the nature of the modifications that could be made. Mr. Mitter appearing for the respondents has conceded in a way that to authorise another body to modify a statute amounts to investing that body with legislative powers. He argues, how-ever, that the power of modification is different and severable from the power of extending its duration; and even if one portion of the proviso is held to be bad, there is no reason why the other part should be held to be invalid also. It is pointed out that in this case the Provincial Government has merely extended the period of the Act without introducing any modification in its terms. This contention though plausible at first sight does not appear to me to be sound. The language of the proviso clearly indicates that modification and extension of the period of the statute are inter-related and are treated as integral parts of one and the same Act; the authority which is to determine whether the statute is to be extended or not is to consider at the same time whether the provisions are to be kept intact or modified. Whether modification is actually made or not is perfectly immaterial and the mentioning of the two things together makes it clear that what the Legislature wanted to delegate to the Provincial Government was legislative and not administrative powers.

56. For these reasons, I am inclined to hold that the proviso to Section 1(s), Bihar Maintenance of Public Order Act, must be held to be ultra vires the powers of the Bihar Provincial Legislature and a fortiori it would be ultra vires the legislative authority with which the Governor is invested under Section 92(1), Government of India Act.

57. As the appellants are entitled to succeed on this point alone, the other contentions raised by the learned advocate for the appellants need not be considered at all. It would also be un. necessary to consider in the view that I have taken whether the notification of the Governor, dated 7th March 1949 could have retrospective effect. If there was no lawful extension of the Act for any further period after 15th March 1948, the Act could not legally be in operation in any part of the Province at any time after that date. In those circumstances, the question of its being made applicable to any excluded area by notification under Section 92(1), Government of India Act, would not at all arise.

58. I may state, however, that in my opinion although the Governor in making a notification under Section 92(1), Government of India Act, exercises legislative and not executive powers, the language of the sub-section indicates clearly that the Act notified would come into operation in the excluded area only from the date of the notification and not earlier than that. It is not necessary however to decide this question finally in the present case.

59. Towards the close of his arguments, a point was raised by Mr. Mitter that even if the Act was not validly in force when the orders for detention were passed against the appellants, yet the subsequent Act of 1949 (Act V [5] of 1949) by amending Section 1(3) makes the Act operative from its very commencement down to 3lst March 1950, irrespective of any notification by the Provincial Government which was necessary under the old Act. As the new Act is in force at the present moment, the detention orders could be supported under the provisions of the new Act and this would be a complete reply to the prayer for release of the petitioners under Section 491, Criminal P.C.

60. On such materials as have been placed before us, it is difficult to accept the contention of the learned advocate as sound. It is certainly competent to the Legislature in exercise of its plenary powers to revive or re-enact a legislation which has already expired by lapse of time. The Legislature is also competent to legislate with retrospective effect; but neither of these things seems to have been done in the present case. The Legislature proceeds on the footing that the old Act was alive at the date when the new Act was passed, and the new Act merely purports to amend one of the provisions of the old Act. There could be no amendment of an enactment which is not in existence and from the fact that the Legislature purports to amend an Act, it could not be held as a matter of construction that the intention of the Legislature was to renew a dead Act or make a new enactment on the same terms as the old with retrospective effect.

61. The result is that, in my opinion, the appeals should be allowed, the applications of the appellants under Section 491, Criminal P.C., should. be granted and they should be directed to the set at liberty.

62. In view of our decision in the connected Appeals Nos. VI to XIII of 1949, these appeals should also be allowed. The applications of the appellants under Section 491, Criminal P.C., are granted and they are directed to be at liberty.

63. I propose to deal at some length with only one of the questions urged be. fore us, as I do not find myself in agreement with my other colleagues in regard to it. That question is whether the first proviso to Section 1(3), Bihar Maintenance of Public Order Act, 1947 (Bihar Act V [5] of 1947) is void.

64. The first proviso to Section 1(3), Bihar Maintenance of Public Order Act runs as follows:

65. The arguments put to us against this proviso may be summed up as follows: (1) That the Provincial Legislature has no power to create a subordinate legislative authority. (2) That, consequently, the Provincial Legislature is not (competent to delegate its legislative power to an external authority. (3) That the proviso to which reference has been made is void, because it amounts to a delegation of legislative power by the Provincial Legislature to the Provincial Government, in so far as the latter is empowered (i) to extend the Act for a period of one year which amounts to its re-enactment, and (ii) to modify its provisions which may amount to subtracting from, adding to, or varying the existing provisions of the Act.

66. I will presently state my own conclusions with regard to the matters raised in these arguments, but before doing so, I will refer very briefly to Burrah’s case 5 I.A. 178  which appears to me to have a direct bearing on the present discussion and which brings out in a very clear manner the important distinction between delegation of legislative power and conditional legislation. In that case, the Privy Council had to deal with an Act of the Governor General which purported

67. The question to be decided is whether the proviso which is impugned before us can be regarded as a piece of conditional legislation. The proviso in question confers a two fold power on the Provincial Government (1) to extend ha Act for one year; and (2) to make modifications, while extending the Act. So far as the extension of the Act is concerned, I am not prepared to hold that it amounts to legislation or exercise of legislative power. From the Act, it is clear that, though it was in the first instance to remain in force for a period of one year, the Legislature did contemplate that it might have to be extended for a further period of one year. Having decided that it might have to be extended, it left the matter of the extension to the discretion of the Provincial Government. It seems to me that the Legislature having exercised its judgment as to the period for which the Act was or might have to remain in force, there was nothing wrong in its legislating conditionally and leaving it to the discretion of the executive authority whether the Act should be extended for a further period of one year or not, It would be taking a somewhat narrow view of the decision in Burrah’s case 5 I.A. 178, to hold that all that the Legislature can do when legislating conditionally, is to leave merely the time and the manner of carrying its legislation into effect to the discretion of the executive authority and that it cannot leave any other matter to its discretion. The extension of the Act for a further period of one year does not amount to its reenactment. It merely amounts to a continuance of the Act for the maximum period contemplated by the Legislature when enacting it.

68. The matter, however, is not so simple when we deal with the power of modifying the Act which also is conferred by the proviso on the Provincial Government, because if the matter is viewed a little strictly, it may appear at the first sight that by empowering the Provincial Government to modify the Act, the Legislature has de-legated to some extent its legislative power to an external authority. But it appears that in Burrah’s case 5 I.A. 178 , their Lordships of the Privy Council have among other instances of good conditional legislation referred to Section 39 of Act XXIII of 1861, which reads as follows:

69. It seems to me that if the provision empowering an executive authority to subject an Act to any restriction, limitation or proviso which it may think proper while declaring that that Act was to take effect, is an instance of valid conditional legislation, it would be difficult to hold that the proviso with which we are concerned is not an equally good piece of conditional legislation. I do not, however, wish to pursue the matter further, because, in my opinion, the power to extend the Act and the power to modify it are two separate powers, and, assuming that the Act may not be valid in so far as it confers the latter power, it can be held to be valid in so far as it confers the former power. I have already stated my reasons for holding that the proviso cannot be impugned in so far as it confers upon the Provincial Government the power to extend the Act for a further period of one year. The mere fact that the power to extend is coupled verbally with the power to modify the Act will not make the entire proviso invalid. If the provision as to modification is not valid, we can ignore it and read the proviso as if that provision was not there. In my opinion, the two powers mentioned in the proviso are separable and are not so intertwined that the proviso must stand or fall as a whole. In the present case the Provincial Government merely extended the Act and did not modify it. I am certainly not prepared to hold that the modification extending the Act was void and of no legal effect.

70. Another point raised before us was as to the effect of the Bihar Act V of 1949, which is a short Act and which, after reciting that “it was expedient to amend the previous Act in the manner hereinafter appearing”, provides in Section 2 as follows:

71. Several other constitutional points were raised in this case on behalf of the appellants, but it seems to me to be unnecessary to deal with them, as I am in complete agreement with the opinion expressed by the learned Judges of the Special Bench in regard to them.

72. In my opinion, these appeals should be dismissed.

73. In accordance with the opinion of the majority, all the eleven appeals are allowed; and the cases are remitted to the High Court of Judicature at Patna with the declaration that the orders made by the High Court shall be vacated and in their place there shall be substituted orders directing that the appellants be set at liberty.