P L D 1957 Dacca 1 (PLP)

AMIN AHMED, C. J.

Under subsections (1) and (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII ;of 1951) as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance III of 1956) (promulgated by the Governor of East Pakistan on the 22nd of March 1956, on the 2nd of April 1956, the Government of East Pakistan published various notifications in the Dacca Gazette (Extraordinary) to the effect that all interests of rent-receivers as well as their khas lands in the districts of the Province were acquired with effect from the 14th of April 1956. Except that the interest acquired is either rent-receiving or khas lands and the numbers of notifications and the names of districts-acquisitions being made district-wise are different, the other contents of the notifications in all the present Writ Petitions are one and the same and one of each kind of notification, i.e., one relating to acquisition of rent-receiving interest and the other relating to acquisition of khas lands (copied. from the annexure of one of the Writ Petitions, being Writ Petition No. 13 of 1956), is set out below. (i) Notification No. 4835-L. R., dated 2nd April 1956, relating to rent-receiving interest: "in exercise of the power conferred by subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956, (East Bengal Ordinance (No. III of 1956) it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all interests of all rent-receivers in their respective estates, talukas, tenures, holdings and tenancies situated in the district of Mymensingh, including their interests In all sub-soil and rights to minerals in such estates, talukas, tenures, holdings and tenancies, except the interests and rights which have already been acquired by, and have already vested in, the Provincial Government tinder the provisions of the said Act." (ii) Notification No. 4839-L. R., dated 2nd April 1956, relating to khas lands: "In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950, (East Bengal Act XXVIII of 1951) as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance III of 1956), It Is hereby notified, for the information of all concerned, that the Governor Is pleased to acquire, with effect from the 14th April 1956, all lands In the khas possession of all rent -receivers situated in the district of Bogra, other than the classes of lands coming under clauses (a) and (b) of subsection (2) of section 20 and other than such lands as have already been acquired by, and have already vested in, the Provincial Govern ment under the provisions of the said Act." On the 13th of April, 1956, all these Writ Petitions 83 (eighty-three) In number, were moved against the Province of East Pakistan and the Secretary, Finance and Revenue Depart ment, East Pakistan Secretariat, Dacca, for Writs of Mandamus or Writs in the nature of Mandamus directing them to withdraw or rescind all these notifications mainly on the grounds that: (1) certain sections of the East Bengal State Acquisition and Tenancy Act, 19'10 (hereinafter called the impugned Act) and those of the East Bengal Ordinance III of 1956 (hereinafter called the impugned Ordinance) which offend against the provisions of Article 5 of the Constitution of the Islamic Republic of Pakistan (hereinafter called the Constitution) are void; that inasmuch as section 37 of the impugned Act provides for graduated rates of compensation on the basis of the net income of the rent-receiver and not on the basis of the market value of the hind acquired and also discriminates between one rent-receiver and another ; and that the interests of' some rent-receivers :acre acquired long before the Constitution came into force: and those of others have been acquired after the date of the Constitution and that some interests will be; acquired hereafter in accordance with the provisions of section 44 of the impugned Act, they are repugnant to the said Article 5 ; that (ii) the impugned Ordinance is ultra vires as it modifies Central Acts like the Transfer of Property Act and the Code of Civil Procedure as also on the grounds that It was pro mulgated on the 22nd of March 1956, by the Governor without the previous instructions or assent of the Governor-General and that it was not passed within 5 years of the establishment of the Federation as required by the section 3 of the Validation of Laws Act, l956 ; that (iii) in case of waqf and debutter properties, which are the subject-matter of some Writ Petitions, they have been acquired in violation of the Preamble, the Directive Principles and Article 25 of the Constitution; that (iv) (a) even under the impugned Act, waqf and debutter properties cannot be acquired as the acquisition offends against the provisions of subsection (5) of section 20 of the impugned Act and (b) and that the acquisition of waqf property is contrary to Quranic Law are Sunnah; and that (v) the acquisition of interests in lands situated in the partially excluded areas after the date of the Constitution by Ordinance (v of 1956, promulgated on 13th April 1956) and not by notification by the Governor is ultra vires of the Constitution. Although these Writ Petitions have been presented by different parties, as all the advocates appearing in the other Writ Petitions have adopted the arguments of Mr. Das, who appears only in Writ Petitions Nos. 13 and 14 of 1956, in respect of the common points and all the Writ Petitions raise the above identical questions under the impugned Act and the impugned Ordinance for consideration, they can be conveniently-disposed of by one and the same judgment. Where there are any special features in any of the Writ Petitions, they will be dealt with hereafter. At this stage, suffice it to say that some of the rent-receiving interests are alleged by the petitioners to be either situated in partially excluded areas in the district of Mymensingh or that some portions of the khas lands acquired are claimed to be either wakf or debutter properties and, therefore, not liable to be acquired even under the impugned Act as it stood before its amendment on the 22nd of March 1956. In order to appreciate the points of law involved in the present case and the arguments advanced by the learned lawyers of the respective parties, it is necessary to trace the history of the impugned Act and the impugned Ordinance and they be set out chronologically: 16-2-1950-The E. B. State Acquisition and Tenancy Act, 1950, i.e., the impugned Act, was passed and reserved on the 16th of July 1950, for the assent of the Governor-General. 19-4-1951--Government of India (Second Amendment) Act, 1951, amending section 299 of the Government of India Act, 1935, as passed by the Constituent Assembly of Pakistan was published in the Pakistan Gazette. 16-5-1951-Assent of the Governor-General for the impugned Act was first published in the Dacca Gazette, Extraordinary. 21-3-1955-Constitutional Civil Appeal No.1 of 1955 Federation of Pakistan v. Maulvi Tamizuddin Khan (P L D 1955 C 240) was decided. 16-5-1955-Special Reference made by Governor-General (Special Reference No.1 of 1955 of the Federal Court of Pakistan (P L D 1955 F C 435) was disposed of and it was held that all provisions made by the Constituent Assembly for the constitution of the Dominion under subsection (1) of section b of the Indian Independence Act without the assent of Governor-General were rot valid laws. 1-10-1955-The Validation of Laws Act, 1955, was passed by the Constituent Assembly. 2-10-1955-Ti:e said Validation of Laws Act, 1955, received the assent of the Governor-General. 3-10-1955-The said Validation Act a as published in the Gazette of Pakistan, (Extraordinary) and carne into force and validated all the constitutional laws like Indian Independence (Amend ment) Act, 1948, and all subsequent amendments of the Independence Act and the Government of India (Amendment) Act, 1948, Including Government of India (Second Amendment) Act, 1951 and other amendments of Government of India Act, 1535, made until the date of this Validation Act, and other Acts mentioned in the Schedule of the Act with retrospective effect. 28-2-1956-The Constituent Assembly passed the Validation of Laws Act, 1956. 29-2-1956-This Validation Act received the assent of Governor General and on the same date it was published in the Gazette. This validated four Acts, one of which is the impugned Act and the latter was validated with effect from 16th May, 1951, sections 3, 4 and 5 of the said Act, which are relevant, run thus "

3. Amendment of section 299 of the Government of India Act, 1935. For clause (a) and the proviso thereto in subsection (4-A) of section 299 of the said Act, the following shall be substituted and shall be deemed always to have been substituted, namely :- (a) any provision in any law of the kind referred to in that subsection which purports to fix the amount of compensation or to specify the principles on winch and the manner in which compensation is to be determined and given on the ground that it contravenes the provisions of that subsection or that com pensation is not provided for or is inadequate: Provided that such law has been made or passed within a period of five years next after the establishment of the Federation". "

4. Declaration o/ validity.-The laws set out in column (1) of the Schedule to this Act are hereby declared to be valid and shall be deemed to nave tad the force and effect of law on and from the dates mentioned against then in column GO of that Schedule and anything done there under in accordance with, the provisions thereof shall be deemed to have been validly cone, and any rights declared or acquired in derogation of the provisions of those laws whether by decree or order of a Court of civil or revenue jurisdiction or by any other means are hereby declared to he void and of no effect." "

5. Bar of Jurisdiction.-The validity of any law to which section 4 applies shall not be called in question in any Court." 2-3-1956-Constitution of Pakistan was passed by the Constituent Assembly and also received the assent of Governor-General. 22-3-1956-East Bengal Ordinance III of 1956-East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956, was published in the Dacca Gazette, Extraordinary. The impugned Ordinance amended certain provision., of the impugned Act; the relevant ones are Section 4 of the impugned Ordinance amended section 3 of the impugned Act, section 14 of the impugned Ordinance amended section 60 of the impugned Act by adding section 60-A, and section 15 of the impugned Ordinance amended section 68 of the impugned Act by adding, among others, 68-B(1), (2) and (3). 23-3-1956-The Constitution of Pakistan came into force. 2-4-1956-Government published various notifications in the Dacca Gazette, Extraordinary acquiring en bloc with effect from the 14th of April 1956, all remaining rent-receiving interests of rent-receivers in all districts of the Province under subsection (1) of section 3 of the impugned Act; and also all khas lands in their possession under subsection (2) of section 3 with the exception of all classes of lands in (a) and (b) of section 20 of the Act. 13-4-1956-Another Ordinance, namely, Ordinance V of 1956, East Bengal State Acquisition and Tenancy (Second Amend ment) Ordinance V of 1956, was promulgated by the Governor. Section 2 of the said Ordinance under clause (1) of Article 102 of the Constitution purported to extend the application of East Bengal Ordinance III of 1956 to that area in the district of Mymensingh which was a partially excluded area immediately before the date of the Constitution retrospectively with effect from the 22nd of March 1956. It may be mentioned here that in case of 3 Writ Petitions, namely, 34/56, 35/56 and 36/56; the above second impugned Ordinance V of 1956 retrospectively extended the application of the first impugned Ordinance III of 1950 promulgated on the 22nd of March 1956, to the areas of the district of Mymensingh known as partially excluded areas before the date of the Constitution with effect from 22nd March 1956, and all rent-receiving interests and khas lands in the district of Mymensingh were acquired by Notifications Nos. 4835-L. R. and: 4852-L. R., which were published in the Dacca Extraordinary Gazette on the 2nd of April 1956. For the disposal of all these Writ Petitions it is convenient to group them under the following heads though owing to the nature of the interest involved and special features of some of the petitions the g aping may overlap in certain cases:

Group I:

Only rent-receiving interest.-Writ Petitions Nos. 30, 44, 45, 48, 49, 54, 64 and 94 of 1956 are against the notifications which notified acquiring only rent-receiving interest except that in Writ Petitions Nos. 30, 45, 48, 49, 54, 64 and 94 although In the prayers only notifications relating to rent-receiv ing .interests are mentioned, in the body of the petitions it is mentioned that both rent-receiving interest and khan lands have been acquired. Group II:

In Writ Petitions Nos. 34, 35 and 36 the relators claim that some of their properties are situated also in areas which are partially excluded areas before the Constitution came into being. Group III:

Rent-receiving interest and khas lands in, possession. Writ Petitions Nos. 13, 16,23, 24, 27, 31, 34, 35;36, 37, 39, 40, 41, 42, 43, 46, 4, 50-53, 55-60, 63; 66, 68, 69, 71, 73-79, 81-93, 96, 98, 99, 100 and 110 of 1956 are against the notifications which notified acquiring not only 'the rent-receiving interest but also the khas lands of the rent-receivers. (a) In Writ Petitions Nos. 14, 17, 19, 22, 26, 28, 29, 61, 62, 65, 67, 70, 72 and 80 of 1955 some of the khas lands in posses sion are also claimed to be wakf properties and excepted by i subsection (5) of section 20 of the impugned Act. (b) In Writ Petitions Nos. 95, 101, 102 and 109 of 1956 it is also claimed that some of the properties acquired are debutter properties and, therefore, they cannot be acquired under sub section (5) of section 20 of the impugned Act. . It is not necessary to set out the allegations contained in all the Writ Petitions or those in the affidavits in opposition or in the affidavits in reply. We shall refer only to one petition of each kind. Although in each case affidavit in opposition and affidavit in reply have been filed, the material facts are not disputed except that in certain cases the respondent does not expressly admit that certain properties are wakf or debutter or are excepted by any provi sion of law. Of course as to the applicability of the provisions of law as alleged by-the relators, there is a total denial by the respon dents. In Writ Petition No. 13 of 1956 the affidavit in support of the allegations contained in the said petition, has been sworn by the relator himself. The relator claims to have properties and rent-receiving interests in the different districts of Mymensingh, Dacca, Bogra and Rajshahl the annual income of which is about rupees six lakhs; and he has 1/3rd share in all the said properties and income. Most of the other allegations in the petition do not relate to facts but to the provision of law contained in the im pugned Act and the impugned Ordinance and certain Articles of the Constitution. The main allegation in the petitions is one of discrimina tion: Section 3 of the impugned Act gives unfettered discretion so far as the time, mode and the person are concerned, for, it is open to the Government, to acquire the interests of one rent-receiver at one time and leave out others having similar interests without any reasonable basis for such acquisi tion ; even sections 4, 5, 6, 23, 31, 17, 35 and 46(a) have been alleged to be discriminatory ; but we need not set out these as Mr. P. R. Das has not referred to them at all; only the provisions of section 37 are claimed to be arbitrary, discriminatory and unreasonable inasmuch as according to these provisions rent -receivers whose income is low are given compensation at a higher rate than those given to rent-receivers whose income is high irrespective of the value of the land acquired; and compensation under section 37 is given on the basis of net profits without taking into consideration the market value of the properties concerned; and, therefore, all the above provisions of the impugned Act are hit by Articles 5, 11, 15 and 198 of the Constitution; as to the impugned Ordinance III of 1956, it is alleged that sections 4, 5, 6, 7, 8, 9, 10, 14, 15, 16 and 17 are discriminatory, unreasonable and arbitrary and, as such, are bit by Article 5 of the Constitution. Further, it is claimed that by reason of section 299 of the Govern ment of India Act, 1935, the legislature had no power to pass the impugned Act on the 16th of February, 1950 without providing for payment of compensation or providing only illusory compen sation; that the Constituent Assembly was not competent to amend section 299 of the Government of India Act and add section 4(a) of the Government of India (Second Amendment) Act, 1951, contrary to the Government of India Act, 1935 and the Indian Independence Act, 1947 and, therefore, they, are null and void as no assent of the Governor-General was taken; that the Validation of Laws Act of 1955 could not remove the defect and validate the Second Government of India Amendment Act, 1951; that, in any event, the assent of the Governor-General was not taken in respect of the impugned Ordinance nor was it promulgated with the instructions from the Governor-General inasmuch as some of the provisions were not within the legislative competence of the Provincial Legislature; that the impugned Ordinance was not passed within the period mentioned In the proviso to section 299 of the Government of India Act; and that the impugned Act and the impugned Ordinance were repugnant to the injunctions of the Islamic Law is laid down in the holy Quran and the Sunnah. In the affidavit in opposition, as already indicated, most of the allegations and assertions of law are denied. Among other things, it is also expressly denied that all the khas lands of the petitioner have been acquired; that there is no discrimination as alleged; that in view of the amendment of section 299 of the Government of India Act, 1935, by the Government of India (Second Amendment) Act, 1951, the amendment is quite valid and the Act, in accordance with the provision of section 299, does provide for the giving of com pensation for the interests acquired on the principle laid down in the Government of India Act; that the Government of India (Second Amendment) Act, 1951, was passed by the Constituent Assembly in the exercise of its Constitution making power and it was competent to pass the same; that as the Validation of Laws Act, 1955, validated the Govern ment of India (Second Amendment) Act, 1951, with effect from the 19th of April, 1951, the validity of the latter Act or of any resolution passed by the Constituent Assembly cannot be ques tioned in any Court of law; that neither the impugned Act nor the impugned Ordinance requires for its validity the previous instructions or subsequent assent of the Governor-General under the provisions of the Government of India Act, 1935 and the im pugned Ordinance does not amend the provisions of the impugned Act regarding compensation; and that in view of the provisions of section 299 of the Government of India Act, 1935 as amended in 1951 and also clause (3) of Article 15 of the Constitution, none of the contentions of the relator is of any substance. As regards the assertion that the impugned Act and the impugned Ordinance are repugnant to the injunctions of Islamic law as laid down in the holy Quran and the Sunnah, sub-Article (3), Article 198 of the Constitution is relied upon and it is stated that the said contention is premature. Writ Petition No. 14 of 1956 is directed against Notifications Nos. 4821, 4823, 4824 and 4844-L. R., and the relator is one Shah Zillur Rahman Chowdhury Mutwalli of Shah Muhammad Ibrahim Wakf Estate of Porsha, district Rajshahi. In this Writ Petition, in addition to similar allegations made in W. P. No. 13 of 1956 set out above, among other things, it is stated that the relator is the sole Mutwalli of Shah Muhammad Ibrahim Wakf Estate which comprises extensive rent-receiving interests in the districts of Rajshaht, Rangpur and Bogra and khas lands, the area of which is very much in excess of 100 standard bighas; that the Wakf deed contains provisions for maintenance of religious and chari table institutions like mosques, big musafirkhana and in the month of Ramzan to feed 7,000/8,000 people every year, and for utilizing the resources of the estate for me benefit of the heirs of the Wakf; that the property being Wakf property is vested in Allah; that the Notifications Nos. 4021, 4823 and 4524 purport to acquire the rent-receiving interest of the wakf estates and Notification No. 4844 purports to acquire the khas land; that the promulgation of the impugned Ordinance is not permitted by section 88 of the now repealed Government of India Act, 1535, nor by Article 102 of the Constitution; and that tire impugned Act and the Impugned Ordinance and the Notifications not laving complied with sub-Article (2) of Article 25, are ultra vines and void. In the affidavit in opposition sworn by the Secretary, Finance and Revenue Department of the Province of East Pakistan, as to the acquiring of rent-receiving interest of the Wakf Estate, all that is stated is: "win: reference to paras. 4 and 5 of the petition I say that the allegations contained therein excepting the allegations as to the rent-receiving interest of the alleged Wakf Estate arc matters of record'. Here also in other respects there, is no general denial and in, addition to what is stated in tree affidavit in opposition of Writ Petition No. 13 of 1956 which was also reiterated in, this Writ Petition and others it is stated that in view of subsection 4(a) of section 299 of the Government of India Act, and of sub-Article (3) of Article 15 of the Constitution, the impugned Act is not liable to be challenged but that even assuming t; at there was discrimination, such a discrimination was based on real and substantial grounds having regard to the object of the Act; that it is not correct to say that the properties are vested in Allah and cannot to acquired by the State; arid that as the impugned Ordinance was promulgated in accordance with the provisions of section 88 of the Government of India Act, Article 102 of the Constitution is not applicable. In Writ Petition No. 95 of 1956; the relators are Amal Chandra Banerjee and others. It is stated therein that they have rent-receiving interests in the district of Dacca which are debutter and used, as such, for worship of the deity Sreedar, Raj Rajeswar and for Atithkhana and other charitable purposes. In this petition also the impugned Act and the impugned Ordinance are challenged on the basis of Articles 5, 11, 15 and 198 of the Constitution and also on other common grounds mentioned in Writ Petitions Nos. 13 and 14 of 19`

6. In the affidavit in opposition the Government denies the allegations made in paragraphs 1 and 2 of the petition alleging that the properties are debutter properties. In paragraph 4 of the affidavit in reply it is, however, reiterated that certain touzis include debuner properties the income of which is used for sheba puja of the deities and for atithkhana. The allegations in Writ Petition No. 34 of 1956 (Writ Petitions Nos 35 and 36 of 1956 being the only remaining once which refer to partially excluded areas of Mymensingh) are almost identical with those of the Writ Petitions Nos. 13 and 14 of 1956. The only special feature is: that it is directed against the Notifications Nos. 4835 and 4852-L. R., dated 2nd April 1956, which relate to acquisition of rent-receiving interests and that of khas lands respectively. It is stated therein that the major portion of the properties of the relator are in the partially excluded area of the district of Mymensingh; that the relator in the proprietor of Sherpur 2 annas Bara Taraf Estate, district Mymensingh, tree annual income of which is nearly Rs. 80,000; and that major portion of the properties being; in partially excluded areas, the impugned Ordinance which has been made applicable by Ordinance V of 1956 is not applicable to partially excluded areas without a notifi cation extending the application of the impugned Ordinance as required by the Constitutions. In the affidavit in opposition the allegations contained in paragraphs 1 and 2 of this Writ Petition relating to partially excluded areas are admitted; and the other assertions of law have been answered in the same way as in the case of the other Writ Petitions some of which have already been set out. But a, to the Ordinance V of 1956 it is stated that the stud Ordinance was made applicable to the partially; excluded areas at the relevant time and, there fore, is good and valid. Before we examine the provisions of the Constitution vis-a-vis those of the impugned Act and impugned Ordinances in view of tae arguments that even the existing law is hit by the Constitution in so far as the former comes into Conflict with the supreme Constitution and the acquisition made after the Constitution is also discriminatory with reference-to that done before, the date of Constitution and that may be done hereafter, it is necessary to bear in mind the principle that should be followed in determining the effect of pre-Constitu tion law contravening Article 5 or in any other Article of the Constitu tion. This much is clear that the Constitution has no retrospective effect and even if the provisions of certain laws be discriminatory` in view of Article 5 or any other Article, they must be held to be valid for all past transactions algid for the enforcement of rights and liabilities accrued before the coming into force of the Constitution. Indeed in so far as the fundamental rights are concerned they were created and not merely recognised by the Constitution. Consequently, a citizen had no fundamental rights in the sense in which they are now understood. If these fundamental rights came into existence as such on the coming into force of the Constitution, nothing done before the 23rd of March 1956, cant be said to have infringed any fundamental right. In this connection we may refer to the case of Keshavan Mudhara Menon v. The State of Bombay (1951 S C R 201) in which majority of Supreme Court Judges including Das, J., concurring dismissed the appeal. This was a case under section 18(1) of the Indian Press (Emergency Powers) Act, 1931, for publishing an article without authority. During the pendency of the proceedings the Constitution of India came into force on the 26th of January 1950. On the 8th of February 1950, an application was moved for quashing the proceedings in the High Court of Bombay. This was refused and Das, J., observed: "An argument founded on what is claimed to, be the spirit of the Constitution is always, attractive for it has a powerful appeal to sentiment and emotion; but a Court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution car not prevail if the language of the Cons titution does not support that view . . . . . . It is, therefore, quite clear that the Court should construe the language of Article 13(1) according to the established rules of interpretation and arrive art its- true meaning uninfluenced by any assumed spirit of the Constitution. "Article 13 () with which we are concerned for the purposes of this application is in these terms :- "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with tire provisions of this part, shall, to the extent of such inconsistency, be void". "It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall to the extent of such inconsistency, be void. Every statute is prima faice prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for tire purpose of interpreting our Constitution. We find nothing in the language of Article 13 (1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is "Fundamental Rights." These rights are given, for the first time, by and under our Constitution. Before the Consti tution came into force there was no such thing as fundamental right. What Article 13 (1) provides is that, all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on, and from the date of the Constitution the question of the incon sistency of the existing laws with those rights must necessarily; arise on and from the date those rights came into being. It must follow, therefore, that Article 13 (1) can have no retros pective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that Article 13 (1) does not in terms make the existing laws which are incon sistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, In so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency. They are nc; void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. 1n other words, on and after the commencement of the Constitu tion in existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the void-ness of the existing law is limited to the future exercise of the funda mental rights. Article 13 (I) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book, for to do so, will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution . . . . . As already explained, Article 13 (1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any le which, after the Constitution, becomes void with respect to tt exercise of any of the fundamental rights, the inconsistent law, is not wiped out so far as the past Act is concerned, for to set' that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted sand punished for an offence committed before the Constitu tion came into force. So far as the past Acts are concerned the law exists notwithstanding that it does net exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds." The case of Qasim Razvi s and others v. The State of Hyderabad and others (1953 S C A 742), was a case of trial under section 3 of the Special Tribunal Regulation, which empowered the Military Governor to direct a Special Tribunal to try an offence committed by a parti cular person or to try an individual case. A Writ of Certiorari was applied for, questioning the orders of the High Court as well as of the Special Tribunal on the ground that the proceedings before the Tribunal became void after the 26th of January 1950, or they came into conflict with the provisions of Articles l4 and 21 of the Indian Constitution which came into force on the 26th of January 1950. In Qasim Razvi's case Mukherjee, J. observed as follows:

"Looking first of ail to the provisions of the Special Tribunal Regulation, it is to be noticed that the preamble to the Regu lation does not specify the object of the enactment or the legislative policy behind it. Apparently an unfettered discretion bas been vested in the Military Governor and he can send any offence or class of offences to be tried by the Special Tribunal in any way he lilies and there is no\ objective expressly stated in the statute itself in relation to which his discretion is to be guided or controlled. It is indeed a matter of common knowledge that this regulation was promulgated just after the termination of the police action in Hyderabad when a most alarming and unsettled state of affairs prevailed in the State. There was undoubtedly ample justification for a special measure like this; but the question still arises whether there are provisions in the Regulation, which being repugnant to the fundamental rights enunciated in the Constitution, could not be enforced after the Constitution came into force? . . . . . . . The powers of revision and transfer are wholly taken away and so also are the provisions relating to confirmation of sentences . . . . It would appear from what has been stated above that there are a few provisions in the procedure for trial by a Special Tribunal appointed under the Regulation mentioned above, which differ from ordinary procedure, and they ate printa facie preju dicial to the accused. Under Article 13 (1) of the Constitution, all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the fundamental rights under Part III of the Constitution shall, to the extent of such inconsistency, be void. The argument of Mr. Peerbhoy seems to be that it may be that all the provisions relating to trial by a Special Tribunal are not bad, but as some of them undoubtedly are, the whole law on the face of it is discriminatory and must be held to be void as conflicting with the equal protection clause, and the question as to how it was actually worked out in a particular case is not a material fact for consideration at all. In support of this contention the learned counsel relies upon the view accepted by the majority of this Court in the case of the State of West Bengal v. Anwar Al: Sarkar ((1951) S C It 228: 1951 C W N 201 (S C)). In our opinion the position here is materially different from that in Anwar Ali Sarkar's case. In Arwar Ali Sarkar's case, the opinion expressed by the majority of this Court was that section 5 (1) of the West Bengal Special Courts Act was ultra vires the Constitution in so far as it authorised the State Government to direct any case to be tried by the Special Court. The clause was held to be invalid as the Act, which was passed after the coming into force of the Constitution, did not mention in what cases or offences such directions could be given, nor did it purport to lay down the criterion or the basis upon which the classification was to be made. AS this portion of section 5 (1) of the statute was on the face of it discriminatory, the question as to how it was applied on the facts of a particular case could not and did not arise. "In the case before us, the impugned Regulation was in operation from long before the date of the Constitution. Section 3 of the Regulation, which is similar to section 5 (1) of the West Bengal Special Courts Act, might be in conflict with the provision of Article 14 of the Constitution, but as has been held by this Court in Keshavan Madhava Menon's case ((1952) S C R 284: (1952) S C A 148), the effect of Article 13 (1) of the Constitution is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing right; and liabilities accrued before the advent of the Constitution. On this principle, the order made by the Military Governor, referring this case to the Special Tribunal, cannot be impeached and consequently the Special Tribunal must be deemed to have taken cognizance of the case quite properly, and its proceedings up to the date of the coining in of the Con stitution would also have to be regarded as valid . . . . "It is not disputed that under Article 13 (1) of the Consti tution those provisions of the Special Tribunal Regulation which are is conflict with Article 14 of the Constitution became void as soon as the Constitution came into force; but Article 13 (1) does not wake the whole statute invalid, it invalidates only those provisions which are inconsistent with the fundamental rights guaranteed sander Part III of the Constitution and simply because the trial was continued even after 25th January 1950, tinder the same Regulation would rot necessarily render the subsequent proceedings invalid. All that the accused could claim is that what remained of the trial must not deviate from the normal standard in material respects so as to amount to a denial of the equal protection of laws within the meaning of Article 14 of the Constitution . . . . . In cases of the type which we have before us where part of the trial could not he challenged as bad and the validity of the other part depends on the question as to whether the accused has been deprived of equal protection in matters of procedure, it is incumbent upon the Court to consider firstly whether the discriminatory or unequal provisions of law could be separated from the rest and even without them a fair measure of equality in the matter of procedure could be secured to the accused. In the second place, it has got to consider whether the procedure actually followed did or did not proceed upon the basis of the discriminatory provisions. In our opinion, a mere threat or possibility of unequal treat ment is not sufficient. If actually the accused has been discri minated against, then and then 'only he can complain, not otherwise." The case of Habeeb Muhammad v. The State of Hyder abad ((1953) S C A 789) is a case of Hyderabad Special Tribunal Regulation (Regulation X of 1355-F) passed by the Government on the 13th of December, 1949. In that case Mukherjee, J. observed as follows:

"As regards the first point, it is to be noted at the outset that the impugned Regulation was a pre-Constitution statute. In determining the validity or otherwise of such legislation on the ground of any of its provisions being repugnant to the equal protection clause, two principles would have to be borne in mind, which were enunciated by the majority of this Court in the case of Quasim Razvi v. .The State of Hyderabad ((1953) S C A 742) decided on the 19th of January, 1953, where the earlier decision in Lachman Dos Kewalram v. The State of Bombay ((1952) S C R 710: (1952) S C A 352) was discussed and explained. Firstly, the Constitution has no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for enforcement of rights and liabilities accrued before the coming into force of the Constitution. Secondly, Article 13 (1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution. It invalidates only those provisions, which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution. The statute becomes void only to the extent of such inconsistency but otherwise remains valid and operative. As was said in Quasim Razvi's case, the fact that "trial was continued even after 26th January, 1950, under the same Regulation would not necessarily render the subsequent proceedings invalid. All that the accused could claim is that what remained of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of Article 14 of the Constitution. For the purpose of the determining whether the accused was deprived of such protection, we have to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case." "As has been stated already, the Special Judge took cogni zance of this case on the 5th of January 1950, which was prior to the advent of the Constitution. It must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself an inequality in the eye of the law. The trial undoubtedly commenced from the 11th of February 1950, that is to say, subsequent to the coming into force of the Constitu tion, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting under the impugned Regulation did give the accused the substance of a normal trial, or in other words, whether he had been given a fair measure of equality in the matter of procedure." From the ruling and reasoning of the above cases with which we respectfully agree it is necessary that in a case like the present one the second most important principle that we should keep in the forefront is that even though the substantive rights and liabilities accrued before the Constitution came into existence under a pre-Constitution law, if those rights or liabilities are sought to be enforced after the Constitution, they will hit at the discriminatory procedure or against so much as takes place after the Constitution, vide also the cases of: Lachmandas v. State of Bombay ((1952) S C A 352), Dhirendhra v. Legal Remembrancer (A I R 1954 S C 424 (428)). Thirdly, even if there are discriminatory provisions in the pre-Constitution law unless they are actually applied after the Constitution came into force, they are not hit by Article 5 simply because the Statute contains provisions which are repugnant to Article 5 and there is a possibility of applying them and meting out unequal treatment. This is also supported by Quasim Razvi's case ((1953) S C A 742) already referred to. In addition to these we may also refer here to the seven principles enunciated and summarised by Fazal Ali, J., with regard to the meaning and scope of the equal protec tion clause in the case of The State of Bambay and another v. F. N. Balsara (known as the Prohibition case) (A I R 1951 S C 318 (326)). "(1) The presumption is always in favour of the consti tutionality of an enactment, since it must be assumed that the legislature understands, and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. "(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any offer individual or class, and yet the law bits only a particular individual or class. "(3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment. "(4) The principle does not take away from the State the power of classifying persons for legitimate purposes. "(5) Every classification is in some degree likely to pro duce some inequality, and mere production of inequality is not enough. "(6) If a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the, ground that it has no application to other persons. "(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the: classification cannot be made arbitrarily and without any-substantial basis." We may mention here that Mr. P. R. Das relies upon the last and the 7th principle. In view of the constant reference that has been matte at the bar by both sides to the Indian decisions, we might indicate at this stage that Articles 4, 5, 11, 15 and 18 of our Constitution correspond substantially to Articles 13, 14, 19, 31 and 25 respectively of the Indian Consti tution. Having examined some of the Indian decisions let us now see what the American Jurists from whose Constitution the equal protection clause has been borrowed, have to say about it. Hugh Evander Willis in his "Constitutional Law of the United States" (1936 Edition), cited by the learned Advocates, states at page 579 :- . "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification v. high rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. "1t merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condo Lions boil; in the privileges conferred and in the liabilities imposed." "The inhibition of the amend ment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation." It does not take from the States the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required: Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of acts must be- assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." In respect of the 14th Amendment of American Constitu tion the last part of section (1) of which corresponds to Article 5 of the Constitution, we may quote the following passage from Nichol's Book on Eminent Domain (3rd Edition, Volume 1, page 403) :- "

415. The equal protection of the laws.-The fourteenth amendment prohibits a State from depriving any person of the equal protection of the laws, and thus renders unconstitutional any statute which imposes an arbitrary discrimination between persons and things not founded upon a distinction which might fairly be considered reasonable. The application of this prohibi tion to the exercise of eminent domain is, however, very limited; since the grant of the power of eminent domain to appropriate gencies involves not only a decision as to what public improve ments shall be constructed and where, which is entirely within the discretion of the legislature, but a delectus personaram with respect to the grantees of the power as well, and one person or corporation cannot complain because the legislature has refused to grant the power of eminent domain to him or to it but has granted it to another. "A case might be imagined which would be objectionable to the equal protection clause, as in a case where the legislature by general law should grant the power of eminent domain to corporations formed by person of a certain race; but such a case does not appear to hove arisen. So, also, there is an opportunity for discrimination in laying down a rule of damages; but it is undoubtedly within the power of the legislature to make a liberal provision in one class of takings without being bound to adopt it in all others. Under a general statute, all persons similarly situated should share alike, unless there is some reasonable ground for a distinction. The distinction between municipal and private, corporations is so obvious that it is within the power of the legislature to establish a different rule of damages in the case of tire taking by one from that which prevails with tile other. It has been held, however, that any distinction between a private individual and a private corporation is founded upon an immaterial fact, and cannot, be constitu tionally enforced. Any classification which discriminates between persons and corporations, which is based on a real difference, from the point of view of such classification, is not violative of the equal protection clause, provided the distinction drawn is not arbitrary or unreasonable, and provided further, that all persons within the particular category are accorded equal rights and privileges." In this connection we may also refer to the following passage from "A Treatise on the Constitutional Limitations" by Thomas M. Cooley, Volume I (Eighth Edition), page 376 (referred to by Mr. Das) :- "The duty of the Court uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favour of such a construction of the statute as might not at first view seem most obvious and natural. For as a conflict between the statute and the Constitution is not to be implied, it would seem to follow, where the meaning of the Constitution is clear, that the Court, if possible, must give the statute such a construction as will enable it to have effect. This is only saying, in another form of words, that the Court must construe the statute in accordance with the legislative intent; since it is always to be presumed the legislature designed the statute to take effect, and not to be a nullity." At this stage before we take up for consideration the argu ments advanced in the case we may notice here some extreme points which were canvassed at the bar but reed not be dealt with in extenso. Mr. Sen, Counsel, on behalf. of the petitioners has argued that inasmuch as the impugned Ordinance was not passed within a period of 5 years after the establishment of the Federation as required by the proviso of section 3 of the Valida tion Act of 1956, It has not been validated by the said Act. While Mr. Brohi for the respondent No. 2 relying on section 5 of the said Act, has gone so far as to contend that inasmuch as the Validation Act, 1956, has validated the impugned Act and as the said Validation Act of 1956 is also an existing law, the impugned Act cannot be challenged in any Court of law includ ing this Court even after the Constitution came into existence on the 23rd of March, 1956. Section 5 of the said Validation of Laws Act, 1956 runs thus: "Bar of jurisdiction. -The validity of any law to which section 4 applies shall not be called in question in any Court." These extreme arguments of Mr. A. K. Sen and Mr. A. K. Brohi need only be stated without any further comment, for, we have already stated the principles which govern a pre-Constitu tion Statute with reference to the Constitution and the effect of statutory provisions in respect of rights and liabilities which accrued before the Constitution came into being and those which accrued after the Constitution. The Constitution is not retros pective in its operation nor is the Validation Act prospective and valid in the sense that it validates the existing law even if it comes into conflict with the Constitution for which the legislation could not possibly provide in anticipation. So, it cannot be seriously argued that Articles 4 and 5 of the Constitution which is supreme, cannot render any portion of a pre-existing law void even if it is repugnant to and comes into conflict with these Articles of the Constitution because of the provisions of Article 15 and those of the Validation Act, 1956. Articles 4, 5 and 15 of the Constitu tion run this "Article 4.-(1) Any existing law, or any custom or usage having the force of law, in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part, and any law in contravention of this clause shall, to the extent of such contra vention, be void. (3) Nothing in this Article shall apply to any law relating to the members of the Armed Forces, or the Forces charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them". "Article 5.-(1) All citizens are equal before law and are entitled to equal protection of law. (2) No person shall be deprived of life or liberty save in accordance with law." "Relevant portion of Article 15.-(1) No person shall be depriv ed of his property save in accordance with law. (2) No property shall be compulsorily acquired or taken' possession of save for a public purpose, and save by the autho rity of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be deter mined and given. (3) Nothing in this Article shall affect the validity of- (a) any existing law . . . . ." Mr. Das, however, has conceded that after the passing of the Validation Act, 1956 and the decision of the Federal Court In the case of Malik Khizar Hayat loran (P L D 1956 F C 200) he cannot in this Court challenge the impugned Act on the ground that the Act has not made any provision for payment of adequate compensation or that the acquisition Is not for a public purpose as required by Article 15 or on account of any defect existing uptil the 29th of February 1956, when the said Validation Act was passed ; never theless be contends that this does not prevent him from attacking the impugned Act on the basis of the provision of the Constitution and the impugned Act is open to be tested upon the Constitution after the Constitution came into being unless the Constitution itself expressly bars such a challenge. Mr. Das refers also to the provisions of section 37 of the impugned Act and urges that according to section 37 ex facie there is discrimination made between a rich man and a poor man, as the rate of compensation varies according to the net income of the recipients of the compensation and not on the basis of the value of the lards acquired. Relevant portion of section 37 runs thus: "After the net income has been computed under sections 35 and 36, the amount of compensation to be payable in respect of the acquisition of the interest, of rent-receivers shall be determined as follows: (1) in the case where the rent-receiver is a proprietor of an estate, a holder of a permanent tenure or tenancy or a raiyat or an under-raiyat, the compensation payable in respect of the acquisition of the interest of such rent-receiver shall be determined on the basis of his total net income from rent -receiving interests in the Province in accordance with the follow ing table, namely: Amount of the total net Income in the Province. Rate of compensation payable. (a) Where the net income so computed does not exceed Rs.

500. Ten times such net income. (b) Where the net income so computed exceeds Rs. 500 but does not exceed Rs. 2,

000. Eight times such net income or the maximum amount under item (a) above increased by the excess of the net income over the maximum net income under item (a) above, whichever is greater. (c) Where the net income exceeds Rs. 2,000 but does not exceed Rs. 5,000 Seven times such net income or the maximum amount under item (b) above increased by the excess of the net income over the maximum net income under item (b) above, whichever is greater. (d) Where the net income exceeds Rs. 5,000, but does not exceed Rs. 10,

000. Six times such net income or the maximum amount under item (c) above increased by the, exceeds of the net income over the maximum net income under item (c) above, whichever is greater. Pointing out the above provisions Mr. Das contends that although it is open to the Government to fix any multiple the Government like but once they fix it, it should have been the same for every one and not made to vary according to the net income of the rent-receiver; and that such a classification is arbitrary and has no reasonable relation to the object of the legislation, particularly, when section 3 and section 37 of the impugned Act have expressly provided for payment of compensation. It is pointed out that the value of the land does not vary according to the means of the rent-receiver and If there is one law for A who is rich and another law for B who Is not rich, it is a denial of the guarantee of equality before law; and that the different rates of compensation to be given to different persons has no nexus or connection whatsoever with the object of the legislation. Mr. Das maintains that the word compensation has a well- known meaning in law and the acquisition of property means taking over of property upon payment of compensation. If the acquisition is for public purpose, even then the compensation for the land acquired has to be paid, for, subsection (5) of section 3 of the impugned Act expressly provides for compensation. Sub section (5) of section 3 runs thus :- "The outgoing rent-receivers, whose interests have been acquired under this section, shall be entitled to compensation as provided in this Act." In this connection Mr. Das also refers to Article 29 (a) of Part III of the Constitution. Article 29 (a) runs thus:

29. The State shall endeavour to- (a) secure the well-being of the people, irrespective of caste, creed, or race, by raising the standard of living of the common man, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of the interests of the common man, and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants." Mr. Das maintains that even if the object of the Act is to prevent the concentration of wealth, that has been done by acquisition of property and there is no reason why it should be done by varying the amount of the compensation for the property acquired and in respect of the same property ore should treat one person in one way and another person in another way. Further, Mr. Das urges that these Articles of the Constitution relating to fundamental right, have to be enforced in preference to the classification which cannot be Justified by reference to the fundamental rights and the directive principles; and that where there is a conflict between the Articles of fundamental rights and Articles of directive principles in the Constitution, the former must prevail over the latter. It is also claimed that the declared object of section 37 is to pay compensation for lands compulso rily acquired. In support of his argument Mr. Das relies on the cases of Yick Wo v. Peter Hopkira, Sheriff of the City and County of San Francisco (30 Lawyers' Edition, p. 220), Karneswar Singh and others v. The State of Bihar and another (A I R 1951 Pat. 91 (SP. B.)), A. K. Gopalan v. The State of Madras and another ((1950) S C R 88) and Charanjit Lal Choudhury v. The Union of India and others (A I R 1951 S C 41). Yick Wo's case (30 Lawyers' Edition, 220) is the ease of a Chinese Laundry man of the name of Yick Wo who along with many other Chinese men was found guilty and sentenced to imprisonment for violation of certain Ordinances to the effect that it shall be un-lawful for any person to establish, maintain, or carry on business of Laundry within the City and County of San Francisco without first having obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone. The Supreme Court held: The order of the City and County of San Francisco, providing that it should be unlawful for any person to engage in the laundry business within the corporate limits `without having first obtained the consent of the board of supervisors except the same be located in a building constructed either of brick or stone,' does not prescribe a rule and conditions for the regulation of the use of laundry property to which all similarly situated may conform; but it confers a naked arbitrary power upon the board to give or withhold consent, and makes all engaged in the business the tenants at will as to their means of living, under the board of supervisors. The rights of the petitioners in the present case are not less because they are aliens, and subjects of the Emperor of China. Though a law be fair on its face and impartial in appearance, yet, it is administered icy public authority with an evil eye and an unequal hand, so as practically to make illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." Mr. Das relies also on the following passages in Lie judgment of Matthews, J.:

"We are consequently constrained, at the outset, to differ front the Supreme Court of California upon the real meaning of the Ordinances in question. That Court considered these Ordinances as vesting in the board of supervisors a not unusual discretion in granting or with holding their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case, with a view to the protection of the public against the dangers of fire. We are not able to concur in that interpretation of the power conferred upon supervisors. There is nothing in the Ordi nances which points to such a regulation of the business of keeping and conducting laundries. They seers intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, bat as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition-demanded by any public interest, shout-J, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent, without reason and without responsibility. The power given to them is not confined to their discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary; and acknowledges neither guidance nor restraint . . . . For, the very idea that one man nay be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country, where freedom prevails, as being; the essence of slavery itself . . . . . It appears that both petitioners have complied with every requisite, deemed by the law or by the public officers charged with its administration necessary for the protection of neighbouring property from fire, or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they- should not be permitted to carry on, in the accus tomed manner their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happened to be Chinese Subjects eighty others, not Chinese Subjects, are permitted to carry on the same business under similar condi tions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified file discrimination is therefore, illegal and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of tile Constitution." In the case of Homer Adolph Plessy v. John H. Ferguson (41 Lawyers' Edition, 256), in which tile said Chinese Laundry's case has been referred to, the following passage has been relied upon:

"In this connection it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the State Legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose heir is of a certain color, or who are aliens, or wino belong to certain nation alities, or to enact laws requiring colored people to walk upon one side of the street, and white people upon the other, or requiring white men's houses to be painted white, and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exer cise of the police power must be reasonable, arid extent only to such taws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. Thus in Yick Wo v. Hopkins (30 Lawyer's Ed. 220), it was held by this Court that a municipal Ordinance of the city of San Francisco to regulate the carrying on of public laundries within the limits of the municipality violated the provisions of the Constitution of the United States if it conferred upon the municipal authorities arbitrary power, at their own will, and without regard to discretion, to the legal sense of the term, to give or withhold consent as to person or places, without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance alike principle has been held to apply to Acts of a State Legislature passed in the exercise of the police power. The cases of Kameswar Singh and others v. The State of Bihar and another (A I R 1951 Pat. 91) and of Raja Suryapalsingh and others v. The Utter Pradesh Government (A I R 1951 All. "674), in both of which Mr. Das argued-for the petitioner, related to the Bihar Land Reforms Act (XXX of 1950) and the Utter Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act I of 1950) respectively. It is claimed by Mr. Das that as a result o' the decisions of the above two cases, Article 31 of the Constitution of India which corresponds to Article 15 of our Constitution was amended by incorporating in the Indian Constitution Article 31-A. Article 31-A runs thus: "31-A. ( ) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisition by the State of any estate cr of any rights therein or for the extinguishments or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part: Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) In this Article

(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent his in the existing law relating to land tenures in force in that area, arid shall also include any jagir, inam or muafi or other similar grant; (b) the expression "rights", in relation to an estate, shall include any rights vesting to a proprietor; sub-proprietor, under proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue." Mr. Das adopts as part of his arguments the following passages in hameswar Singh's case (A I R 1951 Pat. 91):

Finally, it has been contended by Mr. Das that the impugned Act is void as it is a piece of legislation which is expressly prohibited by Article 14 of the Constitution. Article 14 is based on arid largely reproduces, the language used in the fourteenth amendment to the Constitution of the United States of America. That amendment was adopted after the war of succession, because, in the southern States, the Negro population had never enjoyed equality with the white race in the Constitutions of law. The American Constitution is a very brief instrument couched in very general language, and the framers of it and also the framers of the amendments were content to leave a very great deal to the Constitutions. In the period of very nearly a century which has elapsed since the fourteenth amendment was adopted the language used in it has been interpreted in an overgrowing variety of ways in order to make it applicable to the rapidly changing conditions of American life. How far these decisions may legitimately be-- called in aid in construing Article 14 of our Constitution remains to be seen. The Supreme Court in Charanjit Lal v. Union of India (A I R 1951 S C 4), has, however, held that Article 14 prohibits, as the Supreme Court of America has long since decided that the fourteenth amendment prohibits, legislation which is discriminatory and is hostile to an individual or class of individuals. Legislation which affects only one particular class is permissible so long as it does not discriminate against individuals, within the class, and so long as it can be said that such, a class does, in fact, exist ; that is, that there is some thing to distinguish .the individual citizens composing it from all other citizens. It Is, I think, clear that proprietors of estates and tenure-holders may be said to form a distinct class, in that they all enjoy an income, which is an unearned income, and that they derive this unearned income from land, which economist have uniformly regarded as standing on a different footing from other kinds of property. The impugned Act, however, discriminates between individuals falling within the class which it affects. In fact, it divides the class into a large number of sub-classes, and to these sub-classes differential treatment is meted out. It is quite `multiple to say that this subdivision is based on any rational grounds. On what principle, for instance, ought a proprietor or tenure-holder, whose net income is Rs. 20,0.0, to he given eight years purchase while s proprietor or tenure-holder, whose net income is Rs. 20,000 is given only six years' purchase? At one end of the scale are a vast number of proprietors and tenure-holders who are to be allowed twenty years' purchase. It is common knowledge that many small proprietors have a relatively large area of bakasht land it: their estates and that, in recent years, they have had difficulty in collecting such rents as are payable to them. As the net income is to be computed, not on the income actually received, but on the income that ought to have been received if all `raiyats' had paid their rent, such small proprietors who are to retain their 'Bokashr' land, are likely to receive adequate and possibly more than adequate, compensation. At the other end of the scale are the great 'Zamindars', who are to be allowed three years' purchase as I have already pointed out, the result, at least in certain cases, will be that these men will not merely be deprived of their land, but will also be deprived of consi derable sums of money which are due to them. The impugn ed Act confers power on the executive to take over estates and tenures as and when it chooses. The Bihar Zamindari Abolition Act, 1948, which the impugned Act replaced, contained a provision that when any estate or tenure belonging to a particular category was taken over all other estates and tenures belonging to that category should be taken over also. I can well understand that such provision may have led to administrative difficulties. Nevertheless, the provision in the impugned Act, which confers the wide power it does on the executive is clearly discriminatory in character; and there is an obvious danger that when the smaller estates come to be taken over and decisions as to whether particular estates should or should not be taken over have to be made on the recom mendation, in the ultimate analysis,, of quite subordinate officials; grave abuses may result. The difficulty which has been experienced in other countries in carrying out reforms, the object of which is to ensure that the whole of the land in the State will be in the possession of professional cultivators who are likely to make the best use of it, has been the difficulty of providing the funds necessary to expropriate the landlords. The charges for interest on loans raised In order to provide the money necessary were, it has usually been felt, likely to endanger tt a financial stability of the State . . . . . "I now proceed to consider the arguments advanced before its on this part of the case in the light of the principles stated above. Mr. Das has contended that section 3 of the impugned Act gives an arbitrary and naked power to. the State Government untrammelled by any considerations, to pick and choose estates or tenures of any particular proprietor or tenure- holder s and say that they have passed to and become vested in the State, while no action is taken against other proprietors or tenure-holders standing in like circumstances and conditions. It is stated that, as a matter of fact, the estates and tenures of some of the big landlords have only been notified so for. Mr. Das has referred to certain affidavits filed on behalf of his clients. In one of the affidavits (that of Lakshman Nidhi) a statement of the gross income, etc., has been made, and the statement shows that the net income from the estates and tenures of the Maharajadhiraj, calculated under the pro visions of the impugned Act, will be in the neighbourhood of three lakhs only. On that basis, the compensation payable to him will be about ten lakhs . . . . . The contention of Mr. Das is that the effect of section 3 has to be considered in the light of these facts and circumstances and if so considered, the effect is to give arbitrary power to tile State Government to pick and choose a power which is not a reasonable discretion, but which clearly contravenes the equality provision of the Indian Constitution, Mr. Does placed strong reliance on the decision in Yick Wo v. eater Hopkins ((1886) 118 U S 356; 30 Law Ed. 220), where the plaintiff in error was a native of China who had been found guilty of a violation of certain, Ordinances, which made it unlawful for any person or per sons to establish, maintain or carry on a laundry within the cor porate limits of the City and County of San Francisco without having first obtained the consent of a board of supervisors, except the same be located in a building constructed either of brick or store, etc. The Supreme Court of California considered the Ordinance as vesting in the board of supervisors an unusual discrimination in granting or withholding their assent to the use of wooden buildings as laundries, to be Exercised in reference to the circumstances of each case, with a view to the protection of the public against the dangers of fire. The Supreme Court of America held otherwise. "In the case before us, the position is different. I agree that with the best of intentions, it would be impossible for the State Government to take over all the estates and tenures at the same time, nor do they propose to do so. The process of taking over will undoubtedly spread over a number of years. In the meantime there is bound to be unequal treatment. The impugned Act does not prescribe any safeguards or rules, nor does it lay down any stages, indicative of how the process is to be worked out. On the contrary, it leaves the whole matter to the unfettered discretion of the State Government. Even in respect of the same estate or tenure, the operation of section 3 will result in an invidious distinction; the interest of one co-sharer will be taken while the interest of other co-sharers will remain intact, because the scheme of section 3 is to take not estate by estate but pro prietor by proprietor. On what reasonable basis can such a distinction be supported? . . . . . . If there was anything in the impugned Act to show that section 3 was meant to get over or adjust administrative inconvenience or that in actual operation it would have that effect one might hold that the discretion given by section, 3 was a reasonable discretion. 1 am aware that every fact which it is possible for us to assume, must be assumed in favour of the constitutionality of an enact ment; but giving my best consideration to all the facts and circumstances, I am of the view that it is not possible to sustain section 3 on the ground that it gives a reasonable discretion to the State Government. On the contrary, it seems to me that, having regard to the scheme of operation of section 3, it gives such an unrestrained power that it is bound to result it discrimination between members of the, same class standing in like circumstances and conditions; in other words, it denies the protection of equal laws." Mr. Das also refers to the following passage in the judgment of Fazal Ali, J. in Charanjit Lal's case (A I R 1951 S C 41) :- "There can be no doubt that Article 14 provides one of the most valuable and important guarantees in the constitution which should rot be allowed to be whittled down, and, while accepting the statement of Professor Willis as a correct exposi tion of the principles underlying this guarantee, I wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. Mr. Das also relies on the following paage in the case of Southern Railway Company v. Samuel E. Greene (54 Lawyer's Edition 536 at p. 539) :- "The Federal Constitution, it is only elementary to say, is the supreme law of the land, and all its applicable provisions are bind ing upon all within the territory of t5he United States. Whenever its protection is invoked the Courts of the United States both state and Federal, are bound to see that rights guaranteed by the Federal Constitution are not violated by legislation of the State. One of the provisions of the 14th Amendment, thus binding upon ever, State of the Federal Union, prevents any State from denying to any person or persons within its jurisdic tion the equal protection of the laws. If this statute, as it is interpreted and sought to be enforced in the State of Alabama, deprives the plaintiff, of the equal protection of the laws, it can not stand. The equal protection of the laws means subjection to equal laws, applying alike to all in the same situation. If the plaintiff is a person within the jurisdiction of the State of Alabama within the meaning of the 14th Amendment, it is entitled to stand before the law upon equal terms, to enjoy the same rights as belong to, and to bear the same burdens as are imposed upon other persons in a lie situation. Mr. Das has also cited the case of Slewart Dry Goods Company v. John B. Lewis (79 Lawyer's Edition 1054), and strongly relies on the following passage in that case :- "The appellants charge that the statute violates several sections of the Constitution of Kentucky and several provisions of the Federal Constitution. We shall not stop to enumerate these, since we must sustain the claim that the classification made by section 2 (Sec. 2: Every retail merchant, Gs defined herein, shall pay at annual license tart for the opening; establishing, operating. or maintaining of any store or stores as defined herein, determined by comput ing the tax on the amount of the gross sales as follows . . - . .)" denies the appellants the equal protection of the laws assured by the Fourteenth Amendment. "The trial Court's relevant findings are: The act is essentially a revenue measure. The tax is en gross sales, not on gross collections from vendees. Sales made by merchants taxed under any of the brackets of the act are made in competition with like sales of the same character of merchandise by those who are taxed under other brackets. As a general proposition increased volume of sales results in increased profits and increased ability to pay the tax. The rate of profit from retail sales generally varies with the character of the goods sold. The management of a store or stores is one of the fundamental factors in deter mining whether or not a profit is realized and the amount of profit. As a general proposition these merchants doing largest amount of trade are enabled to secure the- highest type of management. "In the light of these findings, does the Act tax sales In an unequal and arbitrary way, classifying them for the imposition of different rates without reference to any real or substantial distinction, as appellants insist; or does it impose an excise upon the conduct of retail business reasonably adjusted in amount with regard to substantial differences in the nature of the privileges exercised as appellees contend. "The Law arbitrarily classifies these vendors for the imposition of a varying rate of taxation, soley by reference to the volume of their transactions, disregarding the observe of any reasonable relation between the chosen criterion of classification and the privileges the enjoyment of which is said to be subject taxed." According to Mr. Das this latter directly applies to the present case. Mr. Das has also referred to the following passage in the case of Carless U. Cotting and Francis Lee Higginson v. A. A. Godard as Attorney-General of the State of Kansas, Kansas City Stock-Yards Company (46 Lawyer's Edition, p. 92 at pp. 106 & 110.):- "If the average daily receipts of a stock-yard are more than 100 head of cattle, or more than 300 head of hogs, or more than 300 stead of sheep, it comes within the purview of this statute. If less than that amount it is free from legislative restriction. No matter what yards it may touch today or in the near or far future, the express declaration of the statute is that stock yards doing a business in excess of a certain amount of stock shall be subjected to this regulation, and that ail others doing less business shall be free front its provisions. Clearly the classification is based solely on the amount of business done, and without any reference to the character or value of the services rendered. Kindred legislation would be found in a statute like this . . . . . . This statute is not simply legislation which in its Indirect results affects different individuals or corporations differently, nor with those in which a classification is based upon inherent differences in the character of the business, but is a positive and direct discrimination between persons engaged in the same class of business, arid based simply upon the quantity of business which each may do. If such legislation does not deny the equal protection of the laws, we are unable to perceive what legislation would " He has also relied on paragraph 53 at page 111 of the case of Kameshwar Sirth v. State of Bihar (A I R 1951 Pat. 91), and also on the judgment of the Chief Justice to the case o` Raja Suryapalsingh and others v, The U. P. Government (A I R 1951 All. 674), who disagreed with the majority of the Judges and has urged that the decision in Kameshwar Singh's case was right and the majority judgment in the case of Suryapalsingh and others v. The U. P Government was wrong. He has also relied on Anwar All's case (A I R 1952 S C 75) With regard to the meaning of the word compensation Mr. Das refers to the following observation of Fletcher Moulton L. J. in the case of In. re: an arbitration between Lucas and The Chesterfield Gas and Water Boord ((1909) 1 K B D 16) :- "The principles upon which compensation is assessed when land is taken under compulsory powers are well-settled. The owner receives for the lands he gives up their equivalent, i.e., that which they were worth to him in money. His property is therefore not diminished in amount but to that extent it is compulsorily changed in form But the equivalent is estimated on the value to him, and not on the value-in tire purchaser, and hence it has from the first been recognised as an absolute rule that this value is to be estimated as it stood before the grant of the compulsory powers. The owner is only to receive compen sation based upon the market value of his lands as they stood before the scheme was authorised by which they are put, to public uses. Subject to that he is entitled to be paid the full price for his lands and any and every element of value which they possess must be taken into consideration in so far as they increase the value to him." The following passage from Nichol's Book on Eminent Domain (1950) Edition, Volume 1, pages 26-29, as to what con stitutes compensation, has also been placed before us :- "Compensation as used in the constitutional provision as a limitation upon the power of eminent domain, implies a full and complete equivalent (usually monetary) for the loss sustained by the owner whose lard has been taken or damaged. "Many of the State constitutions rewire that tire com pensation shall be 'just', 'reasonable' or `adequate', but these words are mere epithats rather than qualifications and add nothing to the meaning., Tike phrase just compensation means the value of the land taken and the damage, if any, to land not taken. More than this it does not imply. The adjective `just' only emphasizes what would be true if omitted namely, that the compensation should be the equivalent of the property." Mr. Das, upon the principles accepted in the above decisions, urges that section 3 of the impugned Act violates all provisions of equality before law inasmuch as it confers a privilege on one and imposes a penalty on another; and he refers to clause 3, para graph 10 of the Writ Petition No. 13 of 1956 which sets out the two alleged m 'odes of acquisition : One sets out the specific mode of acquisition under section 3 before the preparation of any compen sation assessment roll and the other mentions a general mode of acquisition under section 44 after the publication of the compen sation assessment roll. On tire face of it, it is said, section 3 read with section 44 makes a discrimination. Mr. Das has illustrated this by pointing out the cases of those whose properties were acquired in 1 951 or so and who were deprived of the enjoyment of the -usufructs of the land as rent receivers from that date as distin guished from those whose lands have been acquired with effect from the 12th April 1956. It is urged that although his clients, the petitioners in Writ Petitions "Nos. 13 and 14 of 1956, have been deprived of the rent-receiving interest and also of their khas lands only with effect from the 12th April and are in a more favour-able position than those whose properties were acquired long before, say, in 1951. 1952 and so on, yet the favourable position of his client does not preclude him from taking exception to the 'dis crimination made by the respondents in enforcing the impugned Act or the provisions of section 3 and section 44 which on their very face offend the doctrine of equality before law as laid down in Article 5 of the Constitution. According to Mr. Das, section 3 of the impugned Act permits the Government to pick and choose both as regards rent-receivers and as regards the time of acquisitioned Government may notify or may net notify at all in case of source persons; Section 3 of the impugned Act does not provide for any basis or criteria for notifi cation of acquisition and. inasmuch as it gives unfettered and unguided discretion to the officers of tie Government to acquire "with an evil eye and unequal hand" it must be held that these provisions are discriminatory and are hit by Article 5 of the Constitutions. Subsections (1) and (2) of section 3 of the impugned Act run thus: "3. (1) At any time after the commencement of this Act, it shall be lawful for the Provincial Government to acquire, by notification in the Official Gazette, with effect from such date as may be specified in the notification (hereinafter referred to a 3 the notified date), (i) all interests of such of the rent-receivers as may be specified in the notification, in their respective estates, taluks, tenures, holdings or tenancies, as the case may be, in any' district" part of a district or local area, and (ii) all interests of all rent-receivers whose properties are, for the time being, under the management of the Court of Wards under the Court of Wards Act, 1879, in 'their respective estates, taluks, tenures, holdings or tenancies, as the case may be, includ ing all their interests in all sub-soil 3 d rights to minerals in such estates, taluk, holdings or tenancies. (2) Subject to the provisions of subsections (2), (3), (4) and (5) of section 20, the Provincial Government may also, simultaneously with or at any time after the publication of a notification under subsection (1) in respect of the interests of any rent receivers in any estate, taluks tenure, holding or tenancy, acquire by notification in the Official Gazette, wits effect from such date as may be specified in the notification (here-in-after referred to as the notified date), all or any of the lands in his khas possession of which he shall not be entitled to retain possession under the said section and so much of the lands in his khas possession as has been acquired under this subsection and has not vested in the Provincial Government under clause (a) of subsection (4), shall vest absolutely in the Provincial Government free from all incumbrances." Mr. Pritt on the other hand, contends that if Article 15 has been satisfied, it must be taken that Article 5 has also been satisfied, for, Article 15 saves existing law. Mr. Pritt also refers to the langu age of Article 5 arid its setting with reference to the preamble and the directives in tire Constitution. I-1;s argument is : Preamble and directives have to be taken into consecration for the purpose of interpretation of the Articles. All that equality before law means is that no citizen is to get any privilege against another citizen before law arid Article 5 does not say protection of equal law' nor doss it say 'equal protection of equal law'. All that it says is that citizens tire entitled to equal protection of law a s they are equal before law: Whatever the law is, every one is entitled to the advantage of it and nothing more and it does not impose limits are legislative powers. Concept of equality does riot lend itself to precise regal construction or application. Equality is not possible in an unequal society and if Mr. Das's meaning of equality is accepted, every existing law would break down. Article 5 should be approached with a much broader view. In this connection Mr. Prit Draws our attention to the following :- Paragraph 2 of the Preamble-" Whereas the Founder of Pakistan, Quaid-i-Azam Muhammad Ali Jinnah, declared that Pakisltiri would be a democratic State based on Islamic Principles of social justice." Article "14-(1) In respect of access to places of public entertainment or resort, not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of raze, religion, caste, sex or place of birth." Article 17

No citizen otherwise qualified for appointment in service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: . Article "29-The State shall endeavour to- (a) secure the well-being of the people, irrespective of caste, creed, or race, by raising the standard of living of the common man by preventing the concentration of wealth arid means of production and distribution in the hands of a few to the detriment of the interest of the common man, and by ensuring equitable adjustment of rights between employers and employees, and land lords and tenants: . . . . " Referring to the above provisions it is urged that if wider meaning was given to 'equality before law then the provisions- in the above Articles would be simply redundant. Besides, Mr. Pritt argues that none of the petitioners has claimed or can claim that they have not been equally treated in respect of the provisions of the impugned Act or that there lies upon then any imminent threat of such unequal treatment simply because some properties were acquired earlier and the pro perties of the petitioners have been acquired recently that does not justify this Wit Petition under Article 170 of the Constitution. It is too much to claim, Mr. Pritt argues, that tile Act is invalid simply because all the lanes h aye not beat taken in one gulp. The Government has been given a discretion aria it should be presumed that they would exercise that discretion properly. In this connection, Mr. Pritt relied on tile following passages in tile case of Raja Suryapalsingh and others v. The U. P. Government (A I R 1951 All. 674 (686)):

"Learned counsel fore tire appellants though conceding that Clause (4) prevents them from raising the question of the adequacy of the compensation leave urged that Clause (4) does not operate to protect the Act from challenge on the ground that the provisions wish regard to the payment of compensation are discriminatory rind therefore contravene the provisions of Article

14. It is contended that the words on the ground that it contravenes tire provisions of Clause (2) appearing in Clause (4) are words of limitation, tae effect of which is to restrict the protection afforded by Clause (4) to a challenge based on, a contra vention of the provisions of Clause (2) alone and that Clause (4) affords n protection if the challenge is founded on the contravention of some other Article. We do not think this distinction can be drawn. Jif a provision with regard to the payment of compensation contravenes the provision of Article 14 because it is discriminatory hen it also contravenes Article 31 (2). That is so because discrimination means a variation in payments based on something other than the value of the property acquired; such payments cannot therefore be equivalent in value of the property and they cannot therefore hr compensation within the meaning of Clause (i). That clause is, therefore, contravened and Clause (4) comes into play. Stated shortly, a provision with regard to the amount of compensation which contravenes Article 14 must necessarily contravene Article 31 (2)." Mr. Pritt has also relied on the following passages in para graphs 85, 86 and 87 of the same case :- "(85) Subsection (1) of that section authorises the State Government to declare by notification that as from a specified date all estates in the Utter Pradesh shall vest in the State, and enacts that from such specified date all such estates shall stand transferred to and vest in the State free from all encumbrances. Under subsection (2) the state Government is empowered, if it so considers necessary, to issue from time to time the notifica tion referred to in subsection (1) of section in respect only of such area or areas as may be specified it is said that under subsection (2) so wide a distinction has been given to the State Government that it Las the power to pick and choose the persons whose estates shall be taken over and that this may result in an unjustifiable inequality of treatment which is con trary to Article 14. "(86) We do not think that this contention can be supported. It has to be borne in mind that the Utter Pradesh is the largest of the part A States in India. The number of intermediaries whose estates will be taken over exceeds 20 lakhs Careful and elaborate administrative arrangements will necessarily have to be made for the taking over of these estates, and it is clearly not unreasonable for the State to be given authority to take over the estates gradually and not all at one time. The equal protection of the laws' does not prohibit the legislation, which is limited either in the objects to which it is directed or by the territory within which it, is to operate. "(87) The State is also presumably the best Judge of the time at which all estates in a particular area may be taken over. There is no presumption that when a discretion has been given to a responsible authority it will be abused. On the contrary it has been held by the Supreme Court in Dr.-N. B. Khare v. The Sure of Delhi (1950 S C R 51.) that there is a presumption that the authority will act according to law and an apprehension of misuse should not weigh with the Court." Alternatively, Mr. Pritt argues that even if we do not accept his argument that it Article 15 is satisfied, Article 5 Is also satisfied, in constructing Article 5 we should Luke into consideration a Preamble arid the policy of the impugned Act and take judicial notice of political, social and economic policy which the legislature might have had in view at the time of passing the impugned Act. He has pointed out that the policy is to eliminate all rent-receivers and to bring the tillers of the soil or raiyats into direct relationship with the State; that equality in the sense claimed by Mir. Das is not possible in an unequal world. He, therefore, maintains that section 37 is a valid classification inasmuch as there is a rational basis for the classifica tion according to the net income of the rent-receivers for the purpose of compensation as laid down in section

37. Mr. Pritt also points out that the second paragraph of the Preamble of the Constitution states that the State of Pakistan should be a State based on Islamic principles of social justice and Article 29 (a) speaks of securing the well-being of the people, irrespective of caste, creed, or race by, among other things, preventing the concentration of wealth in the hands of the few to the detriment of the interest of the common man and also by ensuring equitable adjustment of rights between landlords and tenants ; and it cannot be said that because the directives are not enforceable in the same way as the fundamental rights given by the Constitution, they should not be kept in view in construing the Articles of Funda mental rights. Mr. Pritt distinguishes the facts of Yick Wo's case (1) by pointing out that the facts of that case were quite different from those of the present case, for. in that case there were 320 laundries In the City and County of San Francisco of which 240 belonged to Chinese and out of 320 about 310 were con structed of wood, and although Yick Wo and 150 "other Chinese were arrested and convicted for crying on business without obtaining the special consent of the Board of Supervisors, about 80 others who were not Chinese Mid were carrying on business of laundries under similar conditions were not interfered with. Mr. Pritt has also asked us to presume the following in favour of the Legislature; that the Legislature knows the needs and Interests of those for whom they legislate and acts honestly and the legislation is valid unless the contrary is shown in clear and convincing manner; that as regards the statute it should always be presumed that it is constitutional and the burden is on the petitioner to show that the impugned Act creates certain inequal ity which is justiciable and it is not enough to show that the impugned Act is so worded that in its administration the respondent might succeed in operating it in such a way as to produce inequality. Mr. Brohi supplementing the arguments of Mr. Pritt contends that fn order to determine the concept of equality we must read it in the light of the Preamble, for, that is the key with which one can unlock the spirit of the Constitution. Mr. Brohi also argues that if Article 15 is satisfied, no one can agitate the same thing in a different form in the guise of Article 5 and Mr. Bruhi has even argued that Article 15 has nothing to do with Article

5. He has relied on the general maxim "Generalia specialibus non derogant". It is interest ing to refer to the analysis of Article 5 and Article 15 made by Mr. Brohi: Article 5 has two parts and both parts deal with equality. Sub-Article (2) is the interpretation of sub Article (1). The word 'property' does not occur in sub-Article (2). Therefore, `property' should not be read into sub-Article (1). Sub -Article (2) limits the equality before law in sub-Article (1). So, this Article 5 is a general provision and Article 15 is a special provision relating to property. Besides, sub-Article (3) (a) of Article 15, nothing in this Article shill effect the validity of (al any existing law, overrides even sub-Article (A I R 1950 S C 27) of Article 15 which is: No person shall be deprived of his property save in accordance with law. Therefore, it demolishes the operation of Article 5 and sub-Article (3) is to be read as a warrant for over riding every consideration of the other provisions in Part II of the Constitution. Relying on this analysis Mr. Brohi goes on to argue that as this should be the approach to Part 11 of the Constitution relating to fundamental rights and Article 4 states that any exiting law, in so far as it is inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void, the general pro visions of Article 5 cannot-override the provisions of Article 15, and where two or more Articles cover the same or wider area, the special Article should prevail and at least with regard to the exist ing law its constitutionality should not be tested on any Article other than Article 15, the provisions of Article 15 being more specific than those of the vague general provisions of equality before law under Article

5. Mr. Brohi amplifies his argument Article 5(1) refers only to an ideal which is n6tionally correct but not de facto so. If it were really the assertion as a fact of an existing condition, then equal protection of law would become meaningless and there would be contradiction between the two parts-'equality before law' and equal protection of law', for, the concept of equal protection of law must be taken as subordinate to the concept of equality. Equality before law should not be read in an absolute way but as subordinate to the concept of overall equality. If both these are construed as giving guarantees in rigorously absolute ways then equal protection of law may cause obstacle to equality before law and we will not be able to advance towards our cherished goal of reaching some sort of equality and would be continually static. Alternatively; it is urged -that if this argument is not accepted then Article 15 should be treated as a comprehensive Article with regard to the acquisition of property, and if Article 15 is satisfied and if nothing can be agitated under Article 15, it cannot be done in the guise of indirectly invoking Article

5. Mr. Brchi has relied on the following cases in support of his contention that in case of conflict of a general provision with that of a special provision in the Constitution, the special provision must prevail :- A. K. Gopalan v. State of Madras (1), Dawarkadas Sirnivas v. The Sholapur Spinning and Weaving Co., Ltd. and others (1), Raja Suryapalsingh and others v. The U. P. Government (2), Charanjit Lai Chowdhury v. The Union of India and others (3), Baldoo Singh v. State (4), Sri Kameshwar Singh v. The Province of Bihar (5) and H. P. Khandelwal v. State of U. P. and another (6). Now with regard to section 37 Mr. Brohi's argument is that it does not make any horizontal discrimination and even verti cally the classification is on a basis which has a rational relation to the object of the Act, the dominant purpose of the Legislature being the acquisition of property. It cannot be urged that the object of the legislation is the payment of compensation. As all interests in pursuance -of this Act have been acquired, there Is no inequality about it. In pointing out the object of the Act he has drawn our attention to sections 81, 83, 84, 85 and 90 of the impugned Act and has also referred to Chapter XV of the Act and be has relied on the cases of Jesrie Norton Torrence Magoun v. Illinois Trust and Savings Bank (7) and William Truax and William A. Truax v. Michael Corrigan (8). Mr. Das has tried to meet the arguments of Mr. Pritt and Mr. Brohi by referring to the- passage in Cooley's Constitutional Limitation, Volume 1, page 376 which we have already quoted. But he contends that the principle enunciated by Cooley should not be pushed too far and he relies on the case of Charanjit Lai Chaudhury v. Union of India and others (9) (also known as first Sholapur case). It is a case under the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (XXVIII of 1950). Mr. Das relies on the following passage from the judgment of Das, J. in that case :- "The presumption in favour of the Legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of Individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer, J. in the Gulf Colorado and Santa Fe Railway v. W. H. Ellis (10), under section 150, while good faith and a knowledge of existing conditions on the part of a Legislature was to be presumed, yet to carry, that presumption to the (1) A I R 1951 Bom. 86 (para. 5) (2) A I R 1951 All. 674 (paras. 54 and 55) (3) A 1 R 1951 S C 41 (para. 74) (4) A I R 1951 Madhya Bharat 149 (paras 22 and 27) (5) A I R 1950 Pat. 392 (para. 39) (6) A I R 1955 All. 12 (para. 21) (7) 42 Lawyers' Ed. 1037 p. 1042 (8) 66 Lawyers' Ed. p. 254 (9) A I R 1951 S C 41 (10) (1896) 165 extent of always holding that there must be some undis closed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation was to make the protecting clause a mere rope of sand, in no manner restraining State action.. . . . . 7 11e learned Attorney- General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguarding the needs of the people and that therefore, the onus was upon the petitioner to allege and prove that the classification which he challenged did not rest upon any reason able basis but was essentially arbitrary. I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or clan or discriminating and hostile legislation and, therefore, no presumption can in such circumstances, arise at all. Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from prov ing if he can, from the text of the law itself, that it is actually; and palpably unreasonable and arbitrary and thereby discharging the initial onus." Mr. Das has also referred to the following passage from the judgment of B. K: Mukherjea, J. in the case of Earn Prasad Narayan Sahi and another v. The State of Bihar and others (A I R 1953 S C 215):

"It is true that-- the presumption is in favour of the, constitu tionality of a legislative enactment and it has to be presumed that a Legislature understands and correctly appreciates the needs of its own people. But when on the face of a statute there is no classification at all, and no attempt has been made to select any individual or group with reference to any differenti ating attribute peculiar to that individual or group and not possessed by others, this presumption is o: little or no assistance to the State." Mr. Das has also tried to distinguish Charanjit Lal's case (A I R 1951 S C 41) stating that in that case it was held that Charanjit Lal's share was not at all affected but here in the present case the petitioners interest have been sufficiently affected. Therefore they have got locus standi and he referred in this connection to the 2nd Sholapur case (A I R 1954 S C 119) and has pointed out that in Charanjit Lal's case that is, the first sholapur case, it would have made no difference whether the writ Petition was allowed or was not allowed but in the 2nd Sholapur case, if the petition was allowed the petitioners would not have to pay the unpaid call money and if they could establish that the Act was bad they could get rid of it. Consequently, if in the Writ Petitions, in the present case, the petitioners can succeed to establish that the impugned Act is on the face of it discriminatory, then they can maintain the present applications as they are directly concerned and affected. Mr. Das in this connection also relied on the case of Yusaf Abdul Aziz v. State (A I R 1951 Bom. 470) to establish that even though a person (a non- citizen in that case) may not be able to enforce a fundamental right yet he may point out to the Court that a particular law violates a fundamental right in order to show that a law is bad and Inoperative and cannot affect him. Mr. Das further points out: sub-Article (3) (a) of Article 15 only says that nothing in the Article shall affect the validity of any existing law but does not say that nothing in Part II shall affect the validity of any existing law. Therefore Article 15 does not bar a challenge on the ground of the contravention of Article

5. Sub. Article (3) (a) of Article 15 only validates the impugned Act so far as the compensation and public purposes are concerned and does not by any means validate it so far as Article 5 is concerned. Though the legislation of the impugned Act has not complied with Article 15 and sub-Article (3) (a) of Article 15 has taken away the remedy to have the Act declared void on the ground of contravention of sub-Articles (1) and (2) of Article 15, petitioners' right has not been taken away but only its enforce ment has been barred. Mr. Das argues that there is a distinction between "barring a right" and "barring a remedy"; and in support of his contention he relies on the following passage in the case of Britain v. Rossiter (11 Q B D 123):

"It was clearly established that on Saturday, the 21st of April, a contract of service was in express terms entered into between the plaintiff and the defendant that the plaintiff should serve the defendant for one year, the contract to commence the Monday following. It cannot be disputed that a contract of that kind is within the 4th section of the Statute of Frauds, that is to say, it is a promise founded upon a sufficient consideration, but it being only verbal neither party can bring an action upon it so as to charge the other. It is, however, contended that as the plaintiff did on Monday, the 23rd of April, enter into the defendant's service and continued in it for some months, another contract to serve for a year ought to be implied, attended with the same consequences as the original contract, but outside the Statute of Frauds. It is alleged that this contract can be implied, because the contract originally entered into is void. But, according to the true construction of the statute, it is not correct to say that the contract is void; and, in my opinion, no distinction exists between the 4th and the 17th sections of the statute; at all events, the contract is not void under the 4th section; the contract exists, but no one is liable upon it. It seems to me impossible that a new contract can be implied from the doing of acts, which were clearly done in performance of the first contract only, and to inter from them a fresh contract would be to draw an inference contrary to the fact. It is a proposition which cannot be disputed that no new contract can he implied from acts done under an express contract, which is still subsisting; all that can be said is that no one can be charged upon the original contract because it is not in writing." So Mr. Das goes on to stress that he is entitled to say that the respondents have not complied with Article 15 not for the purpose of challenging the impugned Acton the ground that it contravened Article 15 but for the purpose of showing that Article 15 has not been complied with and, therefore, Article 5 is attracted. As to the argument of discrimination, from the principles already set out at the beginning of our judgment it will appear that there is no escape from the conclusion that the Constitution has no retrospective effect and it is not open to any one to fall back on certain acts done by the Government before the day of the Constitution, compare them with the present acts of the' Government and say that they are discriminatory. Whatever might have been done under the pre-Constitution law has to be construed in the light of the provisions of the pre-Constitution Statutes and not with reference to the present Constitution. It, is palpably clear and it has been rightly pointed out by both F Mr. Pritt and Mr. Brohi that or, the 2nd of April the Government of East Pakistan, respondent No. 1, by various notifications, acquired en bloc all rent-receiving interests, and khas lands .all over the Province .simultaneously. No one is able to make out that some of the rent-receivers have been left out. So, there is no discrimination whatsoever, so far as acquisition after the Constitution came into force and so far as the petitioners before us are concerned; and Mr. Brohi has rightly described it by saying that the operation of section 3 can be taken, as having been exhausted after these notifications of 2nd April and section 44 may be taken, to all intents and purposes, tol be repealed. In answer to Mr. Pritt's argument that the object of the impugned Act is to remove social injustice as indicated by the Preamble of the Constitution, Mr. Das draws our attention to the fact that iii the Orissa Tenancy case (i) cited by the respondents, the Preamble itself stated that the object of the Act was to secure social justice but the Preamble of the impugned Act does not say ally such thing-the Preamble being "Whereas it is expedient to provide for the acquisition by the State of the interests of rent -receivers and certain other interests in land in East Bengal and to define the law relating to tenancies to be held under the State after such acquisition and other matters connected therewith." In support of the contention that the object of the impugned Act is tile well-being of the citizens, Mr. Brohi has referred to the various sections of the impugned Act, namely, sections 81, 83, 84, 85 and 90 and also Chapter XV Mr. Das, however, claims that an examination of the provisions of the impugned Act will show that the lot of the raiyats has not been improved but has been made worse by certain provisions of the said impugned Act and that the provisions of Chapter XV to which Mr. Brohi has referred are also disadvantageous to the tenants. It is pointed out that sections 21 and 22 sweep away the rent free tenants, service tenants, etc. and subsection (2) of section 62 provides for realisation of rent by certificate proceeding and according to sections 136 and 139 sun-set law is now made applic able in case of tenants. On tile basis of these the learned counsel argues that the Act has definitely modified the provisions of the Bengal Tenancy Act to the disadvantage of the raiyats and, accordingly, there is no question of the Act contributing to social justice. In the view that we have taken it is not necessary for us to consider whether the Government according to the pre-existing Statutes, that is to say the impugned Act or the impugned Ordinance have get unfettered and unguided discretion in the matter of acquisition or that there is any possibility of their making any discrimination in-future with regard to the rent receivers or with regard to the time of acquisition and if we discuss it, it would be purely academical. So, we express no view on the impugned provision being ex facie discriminatory or on the possibility of their being used discriminately. We have, therefore, contented ourselves only by referring in extenso to the arguments advanced by the learned lawyers of both sides out of respect for the preparation they have made and the time they have devoted for the purpose of formulating them all. However learned might have been the arguments of both Mr. Pritt and Mr. Brohi as to Article 15 demolishing or overriding Article 5 we are afraid, we cannot accept that contention nor can we accept this argument of Mr. Brohi based on tie maxim `Generalia specialties non derogant' in the present case. Article is related to the Preamble of the Constitution directly. Paragraph 9 of tae Preamble of the Constitution runs thus:

"Wherein should be guaranteed fundamental rights including rights such as equality of status and of opportunity, equality` before law, freedom of thought, expression, belief, faith, worship and association, and social, economic, and political, justice, subject to law and public morality." The above portion of the Preamble declares that one of the objects of the Constitution is to secure to all tile citizens equality of status, of opportunity and equality before law. Sub-Article (3) of Article 15 can apply only when the property is riot acquired in accordance with sub-Articles and (2) rut if In giving effect to sub-articles (1) and (2) any discrimination is made by the existing law as between a citizen and a citizen and the like is no treated alike, the provisions of Article 5 would be attracted and according to Article 4 such a discrimination offends against equality before lave and equal protection of law', to that extent being in conflict with the Constitution it will have to be declared void. Besides, if Both the Article 5 and Article 15 can be consistently given effect to, there is no reason why only Article 15 should be given effect to Ignoring the other Article

5. Of course, only when two provisions concerning the same subject-matter are inconsistent or contradictory with each other, then according to the maxim `Legas posteriors priores contraries abrogant` the latter will prevail and the doctrine of implied repeal should be brought In and that only if that course is inevitable on the language of the Statute. But where there is an escape from it and a reason able construction can be put on two provisions which seem to be consistent, there is no reason way both should not be given effect to. We cannot accept, as we have already indicated, that, in this case the maxim `Generalia specialibus nor, derogant can be applied. Incidently we may mention that similar arguments with reference to Article 89 and article 170 of our Constitution and of the two Articles-one containing general provision and the other containing special provision the latter should prevail, was argued by Mr. Brohi in the West Pakistan High Court in Writ Petition No. 212 of 1956 Mr. Ahmad Saeed Kirmani v. Choudhury Fazal Elahi, Speaker, West Pakistan Assembly and others (P L D 1956 Lah. 807). His Lordship Mr. Justice S. A. Rahman, Chief Justice, accepted the argument with reference to Article 89 and Article 170 of the Constitution and observed as follows :- "Mr. Brohi, who appeared for respondents Nos. I and 3, argued that tire area of immunity a proceedings in the Assembly, under Article 89 of the new Constitution, is wider than that under section 87 of the old Constitution Act, and in one sense it is narrower in so far as it refers to the "Provincial Assembly" and not to the "Legislature" which includes the Assembly and the Governor. Learned counsel thought that this was probably done deliberately, in order to leave scope for a challenge to the vires of the Legislature in passing a particular law, as a bill passed by the Assembly could only become law after the Governor had assented to it. On the other hand, he suggested that the proceedings in the Assembly were now protected from attack, on any ground. By this Learned counsel evidently meant that the proceedings could not be challenged as invalid by a direct attack fro he conceded that in certain circumstances there may be an indirect challenge to their validity. As an instance he mentioned that if a person had been elected speaker of the Assembly in spite of the fact that he was under a personal disability in respect of membership of the Assembly a Writ of quo warranto could issue to him to show by what lawful authority he was occupying his office. Learned counsel distinguished such a case from one in which the proceedings in the Assembly were the subject of a direct attack, on the basis that here the objection was grounded on the personal disability of the holder of the holder of the Speaker s office, apart from the question of formal validity of the proceedings in the Assembly. Mr. Brohi further thought if a member of the Assembly, in contravention of the provisions of the Consti tution defamed a Judge of a High Court during a discussion in the Assembly, this Court would have jurisdiction to emoting him for contempt, despite the provisions of clause (3) of Article 89 . . . . . In my opinion, the two can be reed together inasmuch as Article 89 is a special provision applicable to a particular subject, whereas Article 170 is general in its terms, and Article 89 can, therefore, be construed as an exception to the general provisions of Article 170 . . . . . It may , be noticed that the defect is the election of Choudhury Fazal Elahi as Speaker, if any, is not peculiar to or inherent in his person so as to attract the exception visualized by Mr. Brohi to the immunity conferred by Article

89. Even if there was sortie irregularity in this appointment, it could be cured by the re-appointment of Choudhuri Fazal Elahi, presuming that the majority was its his favour. Alternatively, if the majority was against him he could be dislodged from his present office by a vote of no confidence moved in accordance with the prescribed procedure. In such circumstances there is authority for the view that a Writ of quo warranto would be inappropriate. Reference may be mad; to Bradley v. Sylvestre (25 T R 459) and King v. Speyer and King v. Cassel ((1916) 1 K B 595)." But Justice Kayani did not entirely subscribe to that view and observed as follows :- "On the one hand, the High Court has transcendent power under Article 170 of the Constitution-not subject to any other provision, and notwithstanding the power of the Supreme Court under Article 22 to issue to any person or Authority direction orders or writs, for the enforcement of fundamental rights and for any other purpose'. On the other hand, Article 89 requires that the validity of any proceeding in the Provincial Assembly shall not be questioned in any Court'. The petitioner says that during the election of the Speaker, which was determined by the casting vote of the Chairman, one member was forced to vote for the Republican candidate, and it was thus that the Muslim League candidate lost. "Now tile election of the Speaker is undoubtedly- a proceeding in the Assembly, and if the matters were confined to the mere validity of the election the Court will have no jurisdiction. This is clear enough; but no less is it clear that a proceeding in the Assembly pray be so vitiated by something repugnant to the principles of natural justice or antagonistic to a fundamental right or perhaps even shocking to recognised procedure that it loses the right of being called a proceeding . . . . . . " "Let our fondness for drawing parallels be subdued for once. We cannot conscientiously compare our democratic institution and their privileges to counties like England and America. Our growth ha not been natural. We have had winters, when there was no growth at all; and we have had rainy seasons; with plenty of mushroom growth. The People in their very wise wisdom have chosen to give their institu tions only a few limited privileges, and in their wisdom they have thought it fit to invest the High Court to issue directions for any.... purpose. It is, therefore, proper that we should not allow these privileges to exceed their purpose. "Therefore, Mr. Fayyaz Ali's plea of total verbal slavery is untenable. And Mr Brohi's partial concession to some aspects of natural justice and some aspects of the Consti tution in the reading of clause (1) of Article 170 meets its grave in the two succeeding clauses. Take a case where the conduct of a Judge, which is immune from discussion under Article 175, is discussed by a member in the Assembly. The Speaker also permits the discussion. The obvious remedy against such discussion lies in contempt proceedings. But under clause (2) the Speaker is not subject to the jurisdiction of a Court for what he does by way of regulating the conduct of business and under clause (3) the member is not liable to any proceedings in any Court in respect of anything said by him in the Assembly. Article 175 will thus be a dead letter. But if it is not-and it is not-then all clauses of Article 89 are subject to just exception." "Perhaps I would not 1ze inclined to follow-I say respect fully-the two English authorities, cited by the learned Chief Justice. That is because in our peculiar conditions we as a High Court have not been crushed into the tight frame of the quo warranto or any other English Writ, and I do not wish lightly to throw away the power vested in us by Article 170." However, the two Articles which we have been called upon to construe in these cases are different and in this connection we may refer to the following passage from the Interpretation of Satutes of Maxwell 9th Edition pages 163 and 164:

"An author must be supposed to be consistent with himself, and, therefore, if in cue place he has expressed his; mind clearly, it ought to be presumed that lie is still of the name mind in another place, unless it clearly appears that he has charged it. In this respect, the work of the Legislature is treated in the same manner ns that of any other author, and the language of every enactment must re construed as far as possible ire accordance with the terms of every ether statute which it does net in express tennis modify or repeal. The law, therefore will not allow the revocation or alteration of a statute by, construc tion, when the wends may be capable of proper operation without it. It cannot be a assumed that Parliament has given with one hand what It has taken away with another. But it is impossible to construe absolute contradictions. Conse quently, if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together, the earlier stands impliedly repealed by the later. Leges posteriores priores contrarias abrogant. Ubi duae contrariae leges sunt, temper antiquae abrogat nova." Mr. Das rightly points out that this principle applies only when the two statutes (provision,) operate in the same field and Article 5 arid Article 15 occupy different fields altogether. Whatever may be the rights and liabilities of the parties before the Constitution was born, there cannot be any doubt that Article 4 expressly provides that any provision of any pre-Constitution statute that offends the provisions of all or any of the Articles set out in Part II of the Constitution relating to fundamental rights to that extent the provisions of the pre-existing statute shall-be- void. The Validation Act of 1956 may have saved and cured all defects up to the date of the passing of the Validation Act, 1956. It never did and nor it could ever cure the defects that have come into existence only after the Consti tution as it could not have legislated in anticipating of the fundamental rights given by the Constitution. Therefore the question is not whether there is any violation of sub-Article (1) or sub-Article (2) but the question is whether Article 5 has been infringed. We cannot accept the view that `equality before law' and 'equal protection of law have no application so far as the law relating to property is concerned as it has been expressly provided for in Article

15. Although sub-Articles (1) and (2) of Article 5 do not mention a word about property, in our opinion, sub-Article (1) of Article 5 is wide enough to protect all persons in respect of all laws whether they relate to life, liberty or property or anything else. It will be giving too narrow an inter pretation to Article 5 to say that sub-Article (2) qualifies sub-Article (1) and therefore Article 5 has application only in a case where a person is deprived of his life or liberty. Whether we call it `equality before law' or 'Rule of law' as Dicey describes it, there cannot be any, doubt that the underlying principle of sub-Article (l) of Article 5 is to protect all citizens and that all citizens equally circum stanced or equally situated shall be treated as equals in the eye of law and as such they shall enjoy equal protection of the laws of the land. It will be of advantage to refer here to the following passage from Willoughby's Constitutional Law of the United States, Second Edition, Volume III, Pages 1928-1930 which has been pieced before us by Mr. Brohi:

"Section 1267-Equal Protection and Due Process-By the Fourteenth Amendment it is provided: nor shall any State . . . . . deny to any person within its jurisdiction the equal protection of the laws. No similar express prohibition is directed to the Federal Government by the Fifth Amendment which contents itself with the prohibition relating to the process of law. However, as will have been seen in the chapters which have preceded, this due process Clause has been given an interpretation which brings within its scope many forms of arbitrary or unreason able discriminatory action which might be brought, and, when the; States have been concerned, have been brought within the prohibition of denial of equal protection of the laws, Indeed, to such an extent has this been true; that it is still difficult to say precisely in what specific respects the prohibition of the denial of equal protec tion of the laws operates to impose restraints not already covered by the prohibition with regard to the depriving of persons of life, liberty or property without due process of law. "The fact that the requirement as to due process includes, to a very consider able extant at least, the guarantee of equal protection of the laws, is specially shown in the opinion of the Court in Smyth v. Ames where it is said: The equal protection of the laws, which by the Fourteenth Amendment no State can deny to the individual, forbids legislation in whatever form it may be enacted, by which the property of an individual is, without compen sation arrested from rim for the benefit of another, or of the public. "The possible distinction between the two prohibitions we find touched upon by Chief Justice Taft in his opinion in Truax v. Corrigan. He there said: 'It may be that they (the two prohibitions) overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not conterminous . . . . . . The due process clause . . . . . . of course tends to secure equality of law in the sense that it makes a required minimum of protection fear everyone's right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general funda mental principle of equality of application of the law . . . . . . But the framers and adopters of this (Fourteenth) Amendment were not content to depend on a mere minimum secures by the disc, process clause, or upon the spirit of equality at1ich might not be insisted; on by local public opinion. They therefore embodied that spirit in a specific guaranty. The guaranty was aimed at undue favour and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality on the other. It sought ale equality of treatment of all persons, even though all enjoyed the protection of due process . . . . . . . From what has been, said it is clear that ire many cases; laws which have been held invalid as denying due process of the Law might also have been so held: as denying: equal protection of the laws, or else versa, Mild that, in fact, in rot few cases tile Courts have referred to both prohibitions leaving it uncertain which prohibition was deemed the most pertinent and potent in the premises. "One of the best general statements of the scope and intent of tile provision for the equal protection of the laws is that given by Justice Field in his opinion in Barbier v. Connolly, in which, speaking for the Court, he said: The Fourteenth Amendment in declaring that no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, un doubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights ; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the Courts of the Country for the protection of their persons and property, tile prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to till, pursuits by anyone except as applied to the same pursuits by others under like circum stances; that no neater burdens should be laid upon one than are laid upon others ire tire same calling and condition, and that in the administration of criminal Justice no different or higher punishment should be imposed upon one that such as is prescribed to all for like offences." We may also refer to the following passage from Willoughhy's Constitutional Law of United States, Second Edition, Vol. III at page 1930:

"S. 1268. Yick Wo v. Hopkins

The case of Yick Wo v. Hopkins involved the validity; of an Ordinance of the City of San Francisco which required all persons desiring to establish laundries in frame houses to obtain the consent certain municipal officials. Here the law or Ordinance was not upon its face discriminatory but it was held void for the reason that it gave to the designated officials, not a, discretion to be exercised upon a consideration the circumstances of each case, but a naked and arbitrary power to give or with-hold consent not only as to places but, as to persons, and because the evidence showed in fact an administration directed so exclusively against a particular class of persons (the Chinese) as to warrant and; require the conclusion that whatever may have been the intent of the Ordinances so adopted they are applied by the public authorities charged with their administration and thus representing the state itself with a mid so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the law which is secured to the petitioner; as to all other persons by the broad arid benign provisions of the Fourteenth Amendment. The Court then went on to declare the general doctrine: Though the law be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution'." It may be also stated here that although Mr. Das strongly relied on the case of Steward Dry Goods Company v. John B. Letwis (79 Lawyers Ed. 1054) it appears that (at pages 1064, 1065 and 1068) Mr. Justice Cardozo, dissented from the view taken by the majority of Judges and observed as follows :- "One of the consequences of such a tax is to make the shifting of the burden easier for those who pay the higher ones. For that reason the flat rate is thought to be less efficient than the graded one as an instrument of social justice. The large dealer, it is said, occupies, both absolutely and relatively, position of economic superiority by reason of the volume of his business. In that view, to make his tax heavier, both absolutely and relatively is not arbitrary, discrimination, but an attempt to proportion tile payment to capacity to pay and thus to arrive in the end at a more genuine equality. By the statute in controversy to Commonwealth of Kentucky is aligned with that position. It is not the function of a Court to make itself the arbiter between competing economic theories professed by honest men on grounds not wholly frivolous. Otis v. Parker (187 U S 606, 609, 47 L. ed. 323, 327, 23 S Ct. 168). Responsibility for economic wisdom has been laic upon the legislature. There is finality in its choice even though wisdom may be lacking, unless choice can be found to be so void of rationality as to be the expression of a whim rather then tin exercise of judgment. The question then is whether there is rationality in the belief that capacity to pay increases, by and large, with an increase of receipts. Certain it is that merchants have faith in such a correspondent- and act upon that faith." . . . . . " In brief there is a relation of correspondence between capacity to pay and the amount of business done, Exceptions, of course, there are. The la v builds upon the probable, and shapes the measure of tax accordingly. " It is no answer to say that as between one business and another, or even as between one person and another engaged in the same business, there will be varying rates of return upon the amount of investment. This is true also of a tax on net income. Net earnings of $ 1,00,000 may represent for one man a return on a capital of 20,00,000 and for another a return on -a capital of double that amount yet tae tax will be the same for each. So also it is no answer to say that in the administration of this statute two merchants whose sales are very large are subject to as heavy a tax as many thousands of merchants whose sales are in the lowest brackets." . . . . . . . "For answer to all these the thrust will not avail that 'it is difficult to be just and easy to be arbitrary. The derogatory epithet assumes the point to be decided. There is nothing arbitrary in rescuing a vast body of tax payers from the labour and expense of preparing elaborate reports, at best approximately accurate there is nothing arbitrary in rescuing a Government from the labour and expense of setting up the huge and unwieldy machinery of an income tax department with a swarm of investigators and accountants and legal tit d financial experts. To frame a system of taxation in avoidance of evils such as these is no act of sheer oppression, no abandonment of reason, no exercise of general will in perverse or vengeful spirit. Far from being these or any of them, it is a pursuit of legitimate ends by methods honestly conceived End rationally chosen. More will not be asked by those who have learned from experience and history that Government is at best a makeshift, that the attainment of one good may involve the sacrifice of others, and that com promise will be inevitable until the coming of Utopia." So, on reading the Constitution as a whole, particularly the Articles of Part II, in our opinion, it is inconceivable that the framers of the Constitution intended to enjoin protection of law or equality before law only In respect of life and liberty of citizens and not in respect of their property. Although He have set out the arguments of the learned lawyers of the petitioners arid of the respondents at same length, we do not propose to deal v6th each and every one of them as we have already dealt with them by enunciating the general principles and relevant case-laws fn connection with the first point and have also generally indicated what equality before lava mean. As we have now to deal with the specific case of Oleged discrimination under section 37 for the purpose of payment of compensation, i; is necessary that we should examine the provisions of section 37 arid determine whether the differentiation therein based on total income of the recipient whose land has been compulsorily acquired, has any rational basis or is m holly arbitrary. Although almost all the relevant cases co this point have been either cited or we have read them for ourselves, we propose to refer in addition to those already cited relating to more than one point, to some of the passages from them or others which will meet the points canvassed before us. These are the cases of Charanjit Lal Chowdhury v. The Union of India (A I R 19:1 S C 41); The State of Bombay, and others v. F. N. Baisara (A I R 1951 S C 318) (Prohibition case of Bombay); The State of West Bengal v Anwar Ali Sarkar and another (A I R 1952 S C 75); Rampratap Jaidayal v. Dominen of India (A I R 1953 Born. 170) and Kender Nath Bojoria and another v. The State of West Bengal (A I R 1953 S C 404). We are, however, going to quote here only some of the observations made in the above cases with which, with great respect, we agree. (1) Case of Charanjit Lai Chowdhury v. The Union of India and others (A I R 1951 S C 41), also knot n as first Sholapur Case. In this case S. k Das and Patanjali Sastri, JJ, dissented sad Kania, C. J., Fazl Ali and B. K. Mukerjea, JJ., concurred. In this case although the Sholapur Spinning and Weaving Company was governed by the Companies Act; the Central Government passed an Ordinance providing for the taking over of the management and control of the Company and issued a noti fication delegating all its powers exercise able under the Ordinance to the Government of Bombay. The Government of Bombay appointed the respondents as Directors of the Company in accordance with tile said Ordinance. After some time this Ordinance was repealed and an Act was passed by the Parliament of India known as the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (XXVIII of 1950) replacing 'ate said Ordinance and thereby continuing its provisions. The petitioner who is a share-holler of that Company challenged the constitu tional validity of both the Ordinance and the Act. One of the grounds taken was that it infringed Article 14 (which corres ponds to our Article S) of the Constitution of India. This is a leading case to which most of the subsequent cases of the Supreme Court of India and High Courts in India have off and on referred. So we shall quote the following passages from this in extenso. B. K. Mukherjea, J., (who is described as Justice Marshall of India by William O. Douglas in his book `From Marshall to Mukherjea-Studies in American and Indian Constitutional Law' Tagore Law Lectures, delivered in July 1955, in the Calcutta University) observed in Charanjit Lai's case as follows :- "

61. The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of Article 14 of the Constitution. It is urged by the learned counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which of Tends against the provision of Article 14 of the Constitu tion. Article 14 guarantees to all persons in the territory of India equality before the lava, and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled cut as a special subject of discriminatory legislation It is pointed cut that the law in this case ha, selected one particular Company and its share-holders and has taken away from them the right to m. nape their own affairs, but the same treatment has not been meted out to all oilier companies or share-holders situated in an identical manner. "

62. Article 14 of tire Constitution; it may be noted, cor responds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that. no State shall deny to any person within its jurisdic tion the equal protection of laws. We have been referred in course of the arguments on this point by the learned counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construc tion of the equal protection clause in the American Constitu tion came up for consideration. A detailed examination of these reports is neither necessary nor profitable for our present purpose but we think we can call a few general principles from some of the pronouncements of the American Judges whist: might appear to us to ire consonant with reason and help us in determining the true meaning of Article 14 of our Constitution. "

63. I may state here that so far as the violation of the equality clause in the Constitution is concerned, the petitioner, as a share-holder of the Company, has as much right to complain as the Company itself, for his complaint is that apart from the discrimination made against the. Company, the impugned legislation has discriminated against him and the other share holders of the Company as a group vis-a-vis the share-holders of all other companies governed by the Indian Companies Act who have not been treated in a similar way. As the discrimi natory treatment has been in respect to the share-holders of this Company alone, any one of the share-holders, whose interests are thus vitally affected, has a right to complain and it is imma terial that there has been no discrimination inter se amongst the share-holders themselves. "

64. It must be admitted that the guarantee against the denial of equal protection of lawn does not mean that identically the same rules of law should be made applicable to tell persons within the territory of India in-spite of differences of circumstances and conditions As has been said by the Supreme Court of America, equal protection of laws is a pledge of the protection of equal laws, See Yick Wo. v. Hopkins (118 U S 869) and this means 'subjection' to equal laws applying alike to all in the same situation. The Southern Railway Co. v. Greene (216 U S 400 (412)). In other words, there should be no discrimination between one Person and another is as regards the subject-matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule There can certainly be a law applying to one person or to one group of persons and it cannot be held to be unconstitutional if it is not discriminatory in its character. (See Willis Constitutional Law, page 580). It would be bad law if it arbitrarily selects one individuals, or a class of individuals one corporation or a class of corporations and visits a penalty upon them which is not imposed upon others guilty of like delinquency. See Gulf C. & S. F. R. Co, v. Ellis (163 U S 150 (159)). The Legislature undoubtedly has a wide field of choice in determining and classifying the subject of its law, and if the law deals alike wilt, all of a certain class, it is normally not obnoxious to the "charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid. See Sirtgerb Raukwat Co. V. Greene (216 1U S 400 (412)) ..It must he conceded that the Legislature has a wide discretion in determining the subject-matter of its laws. It is an accepted doctrine of the American Courts and which seems to In to be well founded or, principle, that the presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principle. As was said by the Supreme Court of America in Middleton v. Taxas Power and L. Company (249 U S 152 (157)) it must be presumed that a legislature understands and correctly appreciates the needs of its own people; that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. This being the position, it is for the petitioner to establish facts, which would prove that the selection of his particular subject by the Legislature is un-reason able and based upon arbitrary grounds . . . . . . . . . . . . . .It is quite true that the Legislature as, in this instance, proceeded against one company, only and its shale-holder, but even one corpora tion or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some exceptional features which, are not possessed by others. The Courts should prima facie lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the Court which would go to show at the selection is arbitrary and un-supportable. Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose." (2) In the case of The State of Bombay and another v. F. N. Balsara (A I R 1951 S C 318) certain provisions of the Bombay prohibition Act of 1949 were challenged among other grounds, on the basis that it had discriminated between one citizen against another inasmuch as according to this Act Military, Navy, Messes Canteen Warships and Troopships were exempted from the prohibition Act. In this case both the State of Bombay and the petitioner moved the Supreme Court against the decision of the Bombay High Court. The petitioner applied for a Writ of mandamus for ordering the State of Bombay and the prohibition Commissioner to allow him to exercise his right to possess, consume and use certain articles, namely, whisky, brandy, wine, beer, medicated Wire, etc., and to import and export across the customs frontier and to purchase, possess, consume and use any stock of foreign liquor, sell-de-cologne, lavender water medicated wines and medicinal preparations containing alcohol and to forbear from inter fering with his right to possess these articles. High Court accepted some of the contentions of the petitioner and rejected some of the contentions and declared some of the provisions of the Act to be invalid and some to be valid. In that case Fazal Ali J. referred to the decision in the case of Charanjit Lal Chowdhury. The Union of India (A I R 1951 S C 41), and after referring to the principles laid down by him which we have already set out elsewhere Fazal Ali, J., observed as follows:

"With these principles in view, I have to decide whether Article 14 of the Constitution has been violated by the provisions contained in section 39, of the Act before; us. That section runs as follows: The Provincial Government may, on such condition as may be specified in the notification published in the Official cargo boats warships and troopships and in military and naval messes and canteens. What is contended is that the concession shown to the war ships, troopships and military and naval messes and canteens is a violation of the principle of equality and the legislature has acted arbitrarily and capriciously in selecting certain bodies or groups of people for favoured treatment, while subjecting the petitioner and other citizens to tile General provisions of the Act. It is said that the law should (lave been enforced alike against tile civil population and military personnel, between whom no dis tinction can be made at all on any rational ground in the enforce ment of the policy of prohibition. "The scheme of Chapter IV of the Prohibition Act; in which the impugned provision rinds a place, seems inter alia to relax the law in favour of certain persons or groups of persons or institutions by introducing the system of passes, licences, permits and authorizations. A few examples will show that the legis lature did not proceed without making any classification. For instance, section 35 deals with licences to hotels, section 37 with licences to dining cars and coastal steamers, section 38 with licences to shipping companies, section 40 with permits to foreigners and persons who need liquor on grounds of section 41 with permits to foreign sovereigns and diplomates, section 44 with licences to clubs, section 45 with authorization for sacramental purposes, section 46 with visitors permits, and so on. These sections were not challenged before us, and it may be assumed that the classification made by the legislature has been accepted so far as they are concerned. The question is whether in relaxing the rule in favour of warships, troopships, and military and naval messes and canteens, the legislature has acted arbitra rily and capriciously or it has proceeded here also on the basis of reasonable classification The learned Attorney-General referred us to several statutes, army regulations and certain pro visions of the Constitution, in order to show that the military force has been regarded in this country as a class by itself, and there are many special provisions with regard to it. But it is contended that this is not enough and that no classification can be held to be valid unless it is shown to bear a just and reason able relation to tire objects of the particular legislation before us. The argument; in other words, is this: Assuming that the armed forces may be treated as a class for certain purpose can it be treated as a class for the purpose of enforcing prohibition? This argument found favour with the High Court, and section 39 was declared to be void. In my opinion, the judgment of the High Court cannot be supported, because I think that there is an understandable basis for the exemptions granted to the military canteens, etc., by the Act. The armed forces have their own traditions and mode of life, conditioned and regulated by rules or regulations which are the product of long experience find which; aim at maintaining at a high level their morale and those qualities which enable them to face dangers and perform unusual tasks of endurance and hard ship when called to do so qualities such as dash and courage, unbreakable tenacity and energy ready for any sacrifice which should he unfaltering for long days together. By these rules and reputations, drinking among the forces is not prohibited, but it is properly and carefully regulated. It is easy to under stand that the legislature choose not to interfere with the mode of life to which the forces nave been accustomed, lest such inter ference should affect their morale and lead to subterfuges which may prove unwholesome for dicer discipline and good behaviour. Besides when drinking is regulated among a class of persons by specific rules and regulations and drunkenness is made an offence, the relation of the law of prohibition in their case is not likely to produce the same evil result as it may produce under other circumstances. I find, therefore, nothing Wrong prima facie in the legislature according special treatment to persons who form a class by themselves in many respects and who have been treated as such in various enactments and statutory provisions. In my opinion, therefore, section 39 in so far as it affects the military and naval messes and canteens, warships, and troopships, cannot be field to, be invalid. So far as the cargo boats tire concerned it was contended on behalf of the petitioner that do rational differentiation could be made between thorn and the passenger boats, and there was no conceivable ground for granting exemption or concession of any kind to the former. Here again, He cannot assume that the legislature; has proceeded arbitrarily. The cargo-boats being slower boats have to be on the sea for long periods, the number of persons affected by the exemption is comparatively small, and they are mostly sojourners who stay at the port for a short time and then go away. These considerations may well have induced the legislature to show soma concession to them, and we cannot say that these arc irrelevant considerations. The provision relating to exemption of cargo-beets should there fore be held to be valid. "I have already referred to section 46, which deals with visitors permits. That section provides that the Provincial Government may authorise an officer to grant visitors' permits to consume, use and buy foreign liquor to persons who visit the Province for a period of not more than a week. The High Court held this provision to be valid, but it considered Rule 67, of the Bombay Foreign Liquor Rules, framed under section 143 of the Act, to be invalid. That rule provides that any foreigner on a tour of India who enters the State of Bombay and desires to possess, use and consume foreign liquor shall apply to certain officers for obtaining a permit, which may be granted for a period not exceeding one month subject to subsequent renewal. The. High Court declared this rule to be invalid on the ground that it discriminate between foreign visitors and Indian visitors who visit Bombay from neighbouring Provinces. It seems to me that this is hardly a matter, which should have beer gone into on the petitioner's application, since ht claims to be neither a foreigner nor an Indian visitor from another Province. But, in any event, the rule cannot be assailed on the ground of discrimi nation, firstly because though it provides for the case of a foreign visitor there is no prohibition against any other outsider being granted a permit, and secondly, because the policy underlying section 40 of the Act which enables permits to be granted to foreigners under certain conditions." In the case of State of West Bengal v. Anwar All Sarkar and another (A I R 1952 S C 75), Patanjali Sastri, J. differed. We may refer to the following observation of his Lordship particularly with reference to the Chinese Laundry case (Yick Wo's case) and some other American cases (a portion of the following passage was relied upon by Mr. Brohi):

Great reliance was placed on behalf of the respondent upon the decision in Truax v. Corrigan ((1921) 257 U S 312). and Yick Wo v. Hopkins ((1886) 118 U S 356). In the former case it was held by a majority of 5 : 4 that a law which denied the remedy of injunction in a dispute between employer and hi, ex-employees was a denial of the equal protec tion of laws, as such a remedy was allowed in all other cases. But it is to he noted that the minority, which included Holmes and Brandies, JJ. expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly constitutional. Tie legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is not of much assistance to the respondent. In the other case a San Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City with tit having first obtained the consent of the Bard of Supervisors unless it was located in a building cons tructed of brick or stone, was held discriminatory and unconstitu tional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a Chinaman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clothes-washing business in wooden buildings which they bad been occupying for many year, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been refused. Dealing with these facts the Court observed :- Though the law Itself be fair on its face and impartial in appearance, yet if it is applied and administered by public autho rity with an evil eye and an unequal hands so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. It is to be noted that law was administered i.e., not merely applied in a few stray cases but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and colour. Such systematic discriminatory administration in practice of the Ordinance, though impartial on its face, was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Aitchison Topeka and Santa Fe R. Co. v. Matthews ((1889) 174 U S 96 (105)), it was said 'In that case (Yick Wo's case) a municipal ordinance of San Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished.' That is to say, the Ordinance was what the Privy Council called a `colour-able legislative expedient' which, under the 'guise or pretence' of doing what is constitutionally permissible, in subs tance and purpose seeks to effect discrimination,- Morgan Pro prietary Ltd. v. Deputy Commissioner of Taxation for New South Wales ((1940) A C 838 (858)). Thus explained, the Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its Intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional. "On the other hand, there is ample authority-in the American decisions for the view that the necessarily large powers vested In a legislature must include the power of enrust ing to an administrative body a plenary but not arbitrary dis cretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O'Malley ((1911) 219 U S 128), a New York statute prohibiting individuals or partnerships to engage in the business of receiving of deposits without a licence from the con troller who may approve or disapprove the application for a licence in his discretion was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim:

, Holmes, J. said: We should suppose that in each case the controller was expec ted to act for cause. But the nature and extent of the remedy, if any, for a breach of ditty on his part, we think it unnecessary to consider; for the power of the State to make the pursuit of a calling dependent upon obtaining a licence is well-established where safety seems to require it. In New York ex rel. Liemberman v. Van de Cart ((1905)199 U S 552), a provision in the Sanitary Code of the City of New York vested dis cretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the constitu tionality of the provision, Day, J. observed after referring to certain prior decisions: These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation with in the police power of the State is not volative of right secured by the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of State authority, this court has not, hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court. And Holmes, J., added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment. In the light of the foregoing discussion, it seems to me difficult to bold teat section 5 (I) in whole or in part is discriminatory. It does not, either in terms or by necessary implication discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it sloes not by its own force make the special procedure provided' in the Act applicable to the trial of any offence or classes of offences or classes of cases ; for, it is the State Government's notification under the section that attracts the appli cation of ~ the procedure. . . . . If the discretion given to the State Government should be exercised improperly or arbitrarily the administrative action may be challenged as discriminatory but it cannot affect the constitutionality of the lave, whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not he determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion commit ted to it. As observed by Kania, C. J. in Dr. N. B: Khare v. State of Delhi (1950 S 519 (526)). `It is improper to start with such an assumption and decide the legality of an Act on that basis. Abuse of power given by law sometimes occurs; but the validity of the law cannot be contes ted because c` such an apprehension.' On the contrary, it is to be presumed that a public authority will act honest, and reasonably in the exercise of its statutory power, and that the State Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features aril circumstances which might unduly protract its trial under the ordinary procedure and mark it-off for-speedier trial under tile Act. "But it was said that the possibility of the Act being applied in an un-authorised and arbitrary Planner was sufficient to make it un-constitutional according the decisions of this Court in Romesh Thappar v. The Slate of Madras (1930 S C R 594) and Chintaman Rao v. The State of Madhya Pradesh (1950 S C R 759). It will be recalled that this was the main ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have, I think, no application here . . . . . . The important distinction is that in Romesh Thappar's care the impugned enactment, having been passed before tire commence ment of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions. The same remarks apply to the other decisions relied on. The observations of Kania; C. J. quoted above indicate the correct approach. "Even from the point of view of reasonable classification, I can see on reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta, J. that the expediency of speedler trial is too vague and indefinite' to be the basis of a 'well defined classification. Legislative judgment in such maters should not he canvassed by Courts applying dectrinaire definite objective tests. The Court should not insists in such cases on what Holmes J. called Elusive exactness. Teuax v. Corrigan (1921-257 U S 312) All that the Court is expected to see, ht dealing with equal protection claims is whether the law impugned is palpably discriminatory and in considering such a question great weight ought to be attached thought to be attached to the fact that a majority of the elected representatives of the people who made the law did not think so, though that is not of course, conclusive. They alone know the local condition and circumstances, which demanded the enactment of such a law, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the Courts ' (Per Holmes J. in Missouri, K. & T. R. Co. v. May ((1880) 101 U S 22). "After all, what the Legislature of West Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of Special Courts with a shortened and simplified procedure without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive Government, require speedier disposal. I do not think that Article 14 denies to the State Legislature such regulative power. (cf. Missouri v. Lewis), To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of he law without a remedy for, as we have seen, State action on the administrative side can also the challenged as a denial of equal protection and unconstitutional." Rampratap Juidayal v. Dominion of India (A I R I953 Bom. I70). This is a case in which the Government of Bombay according to certain provisions of the Bombay Hotel and Lodging House Rates Control Act (Act XLVII of 1947) provided that the Act was not to apply in case of any premises belonging to the Government. This was challenged oh the ground that it offended the provisions of Article 14 of the Indian Constitution. In this case Chagia, C. J. refers to the 7 principles enunciated by Fall Ali, J. in the decision of the case of The Sate of Bombay and another v. F. N. Balsarai (A I 8-1051 S C 318) and also refers to tire case of The State of West Bengal v. Anwar Ali and another (1952 S C R 284-(A I R 1952 S C 75)) dad observes as follows :- "Now, the matter was considered at some length by tile Supreme Court in State of Bomber v. F. N, Balsara (53 Rom. L R 982 (S C)), better known as the Prohibition Case. At page 993 Mr. Justice Fazl Ali who delivered tae judgment of the Court deduced seven principles from the case of Chiranjitlal v. Union of India (1950 S C R 869) as applying to a case failing under Article 14 of the Constitution. Those seven principles are very interesting and very important and perhaps attention might be drawn to very first where the Supreme Court emphasizes, the fact that the presumption is always in favour of the constitutionality of an enactment and this presumption arises from the fact that the Legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems made manifest by experience app therefore, it must always be presumed that discriminations are based on adequate grounds. But what Mr. Javeri relies upon is the 7th principle enunciated in that case and the principle is (page 994): `While reasonable classification is permissible such classifica tion must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.' "What this principle emphasises Is that, there must be a reasonable and just relation to the object sought by the Legislature to be attained in the legislation, and that the classification must not be without any relationship to that object whatsoever. This principle does not lay down that the relationship roust be such that it must necessarily advance the object of the legislation 'quae' the class exempted from its operation. It is impossible to understand how in any conceivable case when a class is exempted from the operation of a law the object of that legislation can ever be advanced 'quay.' the exempted class. If Mr. Javeri's contention were right then no class can ever be exempted from the operation of any legislation. Take the very prohibition Case which the Supreme Court was considering. The question that fell for determination was whether the legislature was justified in exempting the Army from the operation of the Prohibition Act. If What Mr. Javeri says was correct, then the exemption could not have been up because it is impossible to contend that that the policy of Prohibition was furthered and the moral principle underlying that legislation was advanced by the Army being permitted to consume liquor as against the civilians who could not do so. But the Supreme Court upheld the classification on the ground that it was a reasonable classification, that the Army had a discipline of its own, that the Army locking to its traditions, its past and the dangerous professions which it had to practice, was entitled to certain relaxations which the civilians as n class were not entitled to and it is from this point of view that the Supreme Court came to the conclusion that there was a reasonable and just relation to the class exempted to the object sought by the legislation to be attained. In our opinion in the judgment from which this was an appeal to the Supreme Court we have laid down the Same principles and they are to be found in 'Fram Nusserwanji v. State of Bombay` (52 Bom. L R 799). This is what the judgment says (p. 820): " ..Although it is for the Legislature to determine what classification to make, the- classification mitt have a reasonable and just relation to the subject of the particular legislation, or, as it has been differently put, differences made by the Legislature must be pertinent to the subject in aspect of which the classification is made. "Therefore, what is emphasized is relevancy between tire class exempted and the object of the legislation, or, in other words the logical connection between the tyro What Is emphasized is not the fact that in exempting a class the Legislature must carry out the entire legislation 'quae' the exempted class. It is further pointed out in that judgment that whenever a class is excluded from the operation of the law, it must be possible for the Court to say that there must be some reasonable basis for the exclusion of that class. Therefore, really that is the substantial test. Can it be said in this case that there is no reasonable basis for the exclusion of the Government from the operation of this Act, and the burden must lie upon the appellant to satisfy us that the exemption is so arbitrary and so capricious that the Legislature, knowing the problem It bad to deal with, being the representatives of the people, indulged in an illogical and irrational classification and not a classification which was based on any true principle. Now, it is clear that in this case the legislature was not in any sense exempting the Government from the operation of the Act in order to permit the Govern:-scat to do the very thing which the Legislature was prohibiting in the case of landlords who were not a local authority or Central or State Government. It is not too much to assume as the Legislature did in these cases assume, that the very Government whose object was to protect the tenants anti prevent rent being increased and prevent people being ejected, would not itself when it was the- landlord do those very things which it sought to prohibit its people from doing, and therefore, the underlying assumption of this exemp tion is that Government would not increase rents and would not eject tenants unless it was absolutely necessary in public interest and unless a particular building was required for a public purpose. Mr. Javeri has also relied on two later cases of the Supreme Court. One is State of West Bengal v. Anwar Ali' (1952 S C R 284), and what is relied upon is a passage in the judgment of Mr. Justice Das at page