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Article 3 in The Constitution Of India 1949
Article 368 in The Constitution Of India 1949
The Andhra Pradesh And Madras (Alteration Of Boundaries) Act, 1959
The States Reorganisation Act, 1956
Section 27 in The Andhra Pradesh And Madras (Alteration Of Boundaries) Act, 1959

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Andhra High Court
Nalluri Venkataraju And Anr. vs The State Of Andhra Pradesh And ... on 15 April, 1960
Equivalent citations: AIR 1961 AP 50
Author: C Reddy
Bench: P C Reddy, Srinivasachari

JUDGMENT

Chandra Reddy, C.J.

1. Two of the residents of Balakrishnapuram, Tiruitanj Taluk, which was till the 1st of April, 1930 a part of Chittoor District, question the vires of the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, (hereinafter referred to as the 'Act' for the sake of brevity). They seek a writ of mandamus to restrain the State of Andhra Pradesh from enforcing the provisions of the said Act.

2. It is necessary to trace briefly the origin of the Act. On 1st October 1953, the Andhra State was formed under the Andhra State Act, 1953. At that time, the boundaries between the Andhra State and the State of Madras and Mysore were not finally settled and the Prime Minister of India announced that a Boundary Commission or Commissions might have to be appointed to determine the exact boundaries of these States. Pursuant to this, several steps were taken for adjusting the boundaries between Andhra and Madras States and a census of the various border villages was collected by the officers appointed by the Government of India. Ministers of both the States had protracted negotiations regarding these areas and the concerned Chief Ministers had also participated in these matters.

3. Subsequently, Sri H. V. Pataskar was appointed by the Union Government to mediate in the disputes between the two States. To facilitate the work in this behalf, the Government of Madras supplied Sri Pataskar with a map relating to the border villages based on the census of 1951.

4. Meanwhile, the State of Andhra Pradesh was constituted on 1st November 1956 consequent on the passing of the States Reorganization Act and It included a few of the districts of the erstwhile Hyderabad State popularly known as Telangana.

5. Ultimately, Sri Pataskar presented his award on 25-5-1957 proposing certain adjustments with regard to the boundarias between the States of Andhra Pradesh and Madras. To give effect to this award, a bill was introduced on 12-8-1959 in Parliament on the recommendation of the President as required by the proviso to Article 3 of the Constitution and finally on its being passed by both the Houses, it received the President's assent on 24th December, 1959. The appointed date from which the territorial changes Were to come into effect was 1st April 1980. As a result of this Act, 318 villages of Andhra Pradesh covering an area of 405 sq. miles with a population of 2.40 lakhs were transferred to the State of Madras and 151 villages of the State of Madras covering an area of 326 sq. miles with a population of 95,000 were transferred to the State of Andhra Pradesh. The former is set out in Schedule II annexed to the Act and the latter in Schedule I.

6. The constitutionality of the Act is assailed on Various grounds :

1. The Act envisaged only the alteration of the boundaries of both the States and not the increase of the area of one State or the diminution of the area of another State and consequently it was beyond the competence of the Govt. of the Andhra Pradesh to transfer part of its territory to the State of Madras,

2. The enactment in question is invalid since the procedure laid down in Article 368 of the Constitution was not followed.

3. The proposal for the legislation emanated from the concerned States and not from the President as required by Article 3 of the Constitution and consequently the Act is invalid.

4. The Act violated the proviso to Article 3 of the Constitution in that the bill was not referred back to the State Legislatures after some of the clauses thereof were amended in the Parliament.

5. The Act which was passed by the Parliament had dealt with matters committed to the State Legislatures, thus trenching upon the field allotted to the State Legislatures and as such invalid also Sections 11, 15 and 17 of the statute offend against the provisions of Articles. 80, 81, 170 and 171 of the Constitution.

6. The provisions extending the jurisdiction of the High Court of either State over the transfer red area had violated Articles 214 and 215 of the Constitution.

7. Some of the sections of the Act have conferred legislative powers on the executive and the judiciary and this amounts to unconstitutional delegation of legislative power and

8. At any rate, the transfer of 55 villages, which were not enumerated in Schedule II was beyond the authority of the Government of Andhra Pradesh.

7. At this stage, it is advisable to look at Articles. 3 and 4 of the Constitution.

8. Article 3 recites:

"Parliament may by law :

(a) form a new State by separation of territory from any State or uniting two or more States or parts of States or by uniting any territory to a part of any State,

(b) increase the area of any State;

(c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State;

Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.

Article 4 enacts :

(1) Any law referred to in Article 2 or Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of Article 368."

9. We will now take up the points presented by the learned counsel seriatim.

10. The first contention is based on the title and the preamble of the Act. The Act is instituted the Andhra Pradesh and Madras (Alteration of Boundaries) Act and the preamble says :

"An Act to provide for the alteration of boundaries of the States of Andhra Pradesh and Madras and for matters connected therewith".

11. Neither the title nor the preamble sustains the argument. The alteration of boundaries necessarily involves an increase or diminution in the area of one or the other of the States. There can be no alteration of the boundaries of two states without affecting the area of the States.

12. Further, the Statute has not left this matter in any doubt. A specific provision is made in that behalf in the shape of Section 3, which provides ;

(a) As from the appointed day, there shall be added to the State of Andhra Pradesh the territories specified in the First Schedule which shall thereupon cease to form part of the State of Madras and

(b) to the State of Madras, the territories specified in tile second schedule which shall thereupon cease to form part of the State of Madras and

(c) to the State of Madras the territories specified in the second schedule which shall thereupon cease to form part of the State of Andhra Pradesh.

13. It is thus abundantly clear that provision is made for the transfer of the villages set out in the respective schedules to either of the two Slates. This submission is, therefore, unsubstantial and has to be negatived.

Objection 2. In discussing this question, it is necessary to read Article 368.

"An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the bill is passed in each House by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change in

(a) Article 54, Article 55, Article 73, Article 162 or Article 241 or

(b) Chapter IV of Part V, Ch, V of Part IV, or Ch. I of Part XI or

(c) any of the Lists in the Seventh Schedule,

or

(d) the representation of States in Parliament,

Or

(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.''

14. A reference to Article 4(2) establishes that legislations made by Parliament under Articles 2 and 3 of the Constitution are not subject to the limitations contained in Article 368. That Article excludes the amendments authorised by Articles 2 and 3 from the category of amendments contemplated by Article 368. Hence in making laws under these two provisions, the procedure laid down by Article 368 need not be followed.

15. Objections 3 and 4 could be disposed of together as they are founded in Article 3 of the Constitution. The proviso to Article 3 which lays down certain conditions for the exercise of the power vested in Parliament by the substantive part of that Article, only requires that it should he introduced in either House of Parliament on the recommendation of the President. Here it is not disputed that the Bill was introduced in Parliament on the recommendation of the President. The Article does not lay down that the proposals for the settlement of disputes, which were ultimately embodied in the Bill, should be traceable to the initiative of the President as thought by the petitioner's counsel: Article 3 is not concerned with genesis of the Bill. Further, it cannot be postulated that the Bill was the result of mutual agreements between two states in regard to the division of territories "on grounds of political expediency or other considerations" as contended by the learned counsel.

That, that is not the real position could be gauged from the circumstance that Sri Pataskar was appointed as arbitrator to decide these disputes. The mere fact that the Chief Ministers of the concerned States had participated in the talks at the earlier stages does not indicate that the proposals embodied in the bill were the result of an agreement between the two states. This need not detain us any further as we feel that the provisions of the Article have been complied with in toto in this regard.

16. The fourth objection is equally untenable; The intendment of Article 3 is that an opportunity should be afforded to the State Legislatures to express their views within the time allowed and Parliament is not bound to accept the views of the Legislature. All that Article 3 contemplates is that the proposal contained in the hill should be referred to the Legislature of the proper States and not every amendment made in the bill subsequently by the Parliament. There is no such obligation cast1 011 the President by this Article. Article 3 does not require a fresh reference every time an amendment of the proposal contained in the bill is moved and accepted in accordance with the rules of procedure of Parliament.

17. This controversy is set at rest by the pronouncement of the Supreme Court in Babulal Parate v. State of Bombay, . A

similar argument was repelled by their Lordships of the Supreme Court in these words :

"The proviso does not say that if and when a proposal contained in the Bill is modified subsequently by an amendment properly moved and accepted in Parliament, there must be a fresh reference to the State Legislature and fresh bill must be introduced. It was pointed out in the course of arguments that if the second condition required a fresh reference and a fresh bill for every amendment, it might result in an interminable process; because any and evciy amendment of the original proposal contained in the Bill would then necessitate a fresh reference to the State Legislature. Other difficulties might also arise if such a construction were put on the proviso; for example, in a case where two or three states were involved, different views might be expressed by the Legislatures of different States. If Parliament were to accept the views of one of the Legislatures and not of the other, a fresh reference would still be necessary by reason of any amendment in the original proposal contained in the Bill."

This passage furnishes an answer to the argument of the counsel for the petitioners in this behalf.

18. Objection 5. Here the attack against the statute is based on Sections 4, 5 and 7, Sections 26, 27 and 28 and also on Sections 11, 15 and 17. The first branch of the argument is that the Act enacting Sections 4 and 5 seeks to distribute the areas between different districts and taluks within each of the states which is entirely a matter for a State Government and outside the authority of Parliament. Similarly, Sections 26, 27] and 28 of the Act purport to deal with matters falling within the executive sphere of State Legislatures under Articles 198 and 207 and, as such, ultra vires the powers of Parliament. The third branch, of the contention is that Sections 11,15 and 17 which provide that sitting members shall be deemed to have been elected from constituencies other than those from which they had been elected in accordance with the provisions of the Constitution and the laws made thereunder have amended and altered the provisions of the Constitution which could not be done without satisfying Article 368.

We do not think that either of the three groups is open to challenge on any ground. Sections 4 and 5 make a temporary division of the transferred areas to obviate difficulties the concerned States may experience in redistributing these areas amongst different districts and taluks of the States. This provision is a consequential one and cannot be impeached successfully. Under Section 7, the power ot the State Government is preserved, to alter after the appointed day, the name, extent or boundaries of any district, taluk firka or village in the State.

19. Adverting to Sections 26, 27 and 28 these sections relate to the collection and the appropriation of taxes, a subject committed to the State Legislatures. Sections 26 and 27 merely empower the State, of which the transferred villages form part, to collect taxes and duties on properties and recover loans. This is an incidental power of every state. Similarly, if the authority to collect tax is vested in one State, it is that state that has to refund the tax collected in excess. These provisions are incidental to the alteration of boundaries, which has resulted in the shifting of the situs of the properties.

We do not think that it can be posited that it was beyond the competence of Parliament to make such a law. A perusal of Article 3 makes it plain that this article had conferred plenary powers on Parliament to insert any provision in an enactment in order to carry out the purpose of the enactment. That power is not an ordinary legislative power. It is in the nature of a constituent power not subject to the limitations imposed by the legislative lists save those Provided by Articles 3 and 4. Article 4 confers powers of widest amplitude to mate any laws which become necessary as a result of the redistribution of States or areas, as could be judged from the clause

"and may also contain such supplemental, incidental and consequential provisions including provisions as to representation in Parliament and in the legislature or legislatures of the State or States affected, by such law as Parliament may deem necessary."

20.Thus, the power vested by the Article in Parliament is not controlled by the legislative lists, being in the nature of a constituent power.

21. Article 4 has conferred on the Parliament power to pass comprehensive legislation dealing with all matters that arise as a result of the transfer of territories irrespective of the other constitutional provisions which regulate the normal legislative and executive functions of the Centre as well as the States. It is as much a part of the Constitution as the Articles in Chapter I of Part XI of the Constitution. Moreover, all these provisions are transitional in nature and they do not affect permanently cither the powers of the concerned State Legislature Or Government.

22. Likewise Sections 11, 15 and 17 are consequential provisions. In fact a specific power is conferred on the Parliament in this behalf by Article 4 of the Constitution. In our opinion these sections do not, in any way touch the matters dealt with by Articles 80, 81, 170 and 171. By virtue of these sections the sitting members of the legislatures will continue to represent the original constituency notwithstanding the alteration in the extent of the constituency. Where altogether a new constituency is created, provision is made for a bye-election in regard thereto. Therefore, the aforementioned sections cannot be said to be unconstitutional. There is no repugnancy between these sections and the articles cited above. They do not infringe any of these articles of the Constitution.

23. We feel that the argument based on Sections 18 and 19 is equally untenable. These sections do not in any way contravene Article 214 of the Constitution. In fact, they merely give effect to that article. Under these sections, the jurisdiction of the respective High Courts is extended over the territories which form part of the respective States. In other words, the jurisdiction of each High Court is made coterminous with the territories of that State. Hence, this contention also has to be rejected,

24. We will now turn to the objection relating to sections 4G and 47 of the Act. The argument presented in this regard is that section 47 amounts to an unconstitutional delegation of the legislative power in that an essential function of the legislature viz., repealing and amending the existing laws in that territory, is given to the executive.

This proposition is sought to be substantiated by the dictum of the Supreme Court in In re Article 143, Constitution of India and Delhi Laws Act, AIR 1951 SC 332. One of the opinions expressed by the majority, of the Judges was that where the legislature authorised the executive to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, central or provincial, with or without modification such authorisation was ultra vires the, powers of the legislature. We do not think that this principle is of much assistance to the petitioners.

25. Here the delegation is only to adapt laws. The section merely sets out the effect of the adaptation of laws. There is no repeal or abrogation of the existing laws because they are not wiped out from the statute book. It only means that those laws do not any longer operate. Moreover, the repeal is only to facilitate the adaptation of laws and is not restricted.

26. In this connection, we may usefully refer to the opinion of Das, J- (as he then was) that so long as Parliament did not abdicate or efface itself and retained control in the sense of retaining the right to recall or destroy or set right or modify anything its delegate did it could confer on the delegate all the rights of legislation which it itself possessed.

27. Assuming a repeal is contemplated, still the delegation is within permissible limits because it is not the delegate that repeals the law but it is the declaration made by the section that results in the abrogation of the existing laws. It is the Parliament that has determined that such laws should be repealed leaving the time of such repeal to the concerned Governments. The practice of the legislatures delegating such powers is not uncommon and, in fact, the statute book contains such examples. We find similar provisions in the Andhra State Act and the States Reorganisation Act. If we adopt the view pressed upon us by the learned counsel for the petitioners, we will be casting doubt upon the validity of a long course of legislation appropriated in such legislations.

28. A similar controversy arose in Harishankar Bagla v. The State of Madhya Pradesh, . One of the points debated there was whether Section 6 of the Essential Supplies (Temporary Powers) Act, which recited that 'any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act', conferred excessive delegation on the executive. Their Lordships of the Supreme Court answered the question in the negative in those words :

"Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3 and the provisions of an existing law, to the extent of the repugnancy the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate hut the repeal is by the legislative act of the Parliament itself. By enacting Section 6, Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by the force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section

3... Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pro-existing law and no exception could be taken on the ground of excessive delegation to the act of Parliament itself."

The instant case, is governed by the doctrine embodied in that passage.

29. The argument that Section 47 confers powers of legislation upon courts is utterly Sacking in substance. No such right flows from that section. It is only an interpretation clause and does not clothe the courts with any legislative powers.

30. There remains the question whether the transfer of 55 villages not mentioned in Schedule II and referred to in para 8 of the affidavit in support of the petition is unauthorised by the Act. What is contended is that in addition to the villages enumerated in Schedule II, the Government of Andhra Pradesh was seeking to transfer another 55 villages indicated in Schedule B annexed to the petition which is beyond the powers of the State Legislature. This allegation is repudiated by the State Government. It is alleged in the counter-affidavit that eight of the said villages viz., items 10, 11, 26, 37. 38. 39, 44 and 52 of Schedule B have been retained in the State of Andhra Pradesh and that the Other villages mentioned therein were included in Schedule II. It is explained there that in some cases two or three revenue villages were grouped as one survey village for the sake of administrative convenience. The counter-affidavit filed on behalf of the 1st respondent further says:

"For the purpose of census operations in 1951, the revenue or the census village as then existing was generally given a census code number. In the case of village panchayats constituting more than one revenue or survey villages, only one census code number was given for the main village by which the panchayat is named. The very preamble to the schedule of the Act clearly shows that it is only the census unit having a particular code number that hag been taken into consideration. The 55 villages referred to in the schedule 'B' to the affidavit are parts of the census units mentioned in the schedule."

The correctness of these allegations could not be challenged by the petitioners. It follows that Schedule II included these villages also and lience-there is nothing unwarranted in the transfer of these villages also. It follows that this contention has to be rejected.

31. In short, we uphold the validity of the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959, since no constitutional infirmity attaches to it.

32. In the result, the petition fails and is dismissed without costs.