1. This appeal involves a challenge to the validity of Section 2 of the Union Territories (Laws) Act, 1950 and to the extension by a notification thereunder (by the Central Government) of the Punjab Pre-emption (Amendment) Act, 1960, to Himachal Pradesh. The appellant's claim for pre-emption was dismissed by the lower Appellate Court reversing the judgment of the trial Court on the ground that she, as the sister of respondent No. 3, Mast Ram, had no right to pre-empt a sale deed dated 24th September, 1965 by Mast Ram to respondents 1 and 2, Mathu Ram and Sant Ram, in view of the amendment of Section 15 of the Punjab Pre-emption Act, 1913, made by the amending Act No. 19 of 1960 (hereinafter called the Amendment Act).

2. The Punjab Pre-emption Act, 1913, was extended to Himachal Pradesh by the Central Government in 1949, acting under the Himachal Pradesh (Application of Laws) Order, 1948. It is common ground that under Section 15 of the Punjab Preemption Act, 1913, a sister was not entitled to pre-empt a sale by her brother. The Hindu Law of Inheritance (Amendment) Act (No. 2 of 1929), however, introduced the sister in the order of succession to the separate property of a Hindu male who dies intestate. The effect was that the sister thereafter became entitled to pre-empt a sale by her brother under Section 15 of the Punjab Pre-emption Act, 1913. The amendment Act was extended by the Central Government to Himachal Pradesh in exercise of the powers conferred on it by Section 2 of the Union Territories (Laws) Act, 1950, by Notification No. G.S.R dated 17-5-1963. The effect of the amendment was that the sister of the vendor lost her right of pre-emption which she had accidentally got in 1929.

3. The appellant contends firstly that Section 2 of the Union Territories (Laws) Act, 1950, did not give the Central Government the power to extend the Amendment Act to Himachal Pradesh inasmuch as the Central Government could not amend the Existing law, i.e the Punjab Pre-emption Act, 1913, which already applied to the Himachal Pradesh. Secondly, even if the Central Government had the power to extend the Amendment Act to Himachal Pradesh, then Section 2 of the Union Territories (Laws) Act, 1950, which purported to give such a power to it, was unconstitutional. Section 2 of the Union Territories (Laws) Act, 1950, runs as follows:

“The Central Government may by notification in the Official Gazette, extend to the Union Territory of Delhi, Himachal Pradesh, Manipur or Tripura or to any part of such territory with such restrictions and modifications as it thinks fit, any enactment which is in force in a State at the date of the notification.”

4. On a plain reading it gives the Central Government the power to extend to Himachal Pradesh any enactment which is in force in a State at the date of the Notification. The Amendment Act was in force in the State of Punjab on the date of the Notification and it would appear that the Central Government had the power to extend it to Himachal Pradesh. The reasoning by which the appellant challenges the said power of the Central Government is as follows. The extension of the Amendment Act to Himachal Pradesh by the Central Government is an exercise of legislative power. The appellant challenges the common view that the said power was conferred on the Central Government by Section 2 of the Union Territories (Laws) Act, 1950. She contends that Parliament can delegate legislative power to the Central Government only for subsidiary and ancillary purposes. The legislative policy has to be laid down by Parliament. The Union Territories (Laws) Act, 1950, prior to the Adaptation of Laws Order, 1956 was known as Part C States (Laws) Act, 1950. Section 2 of the latter Act prior to its amendment in 1952 had contained the following additional words, viz., “and provision may be made in any enactment so extended for the repeal or amendment of any corresponding Law (other than a Central Act) which is for the time being applicable to that Part C State.” These words were struck down by the Supreme Court in the Delhi Laws Act (1912) case, AIR 1951 SC 332, as unconstitutional on the ground that the repeal or amendment of an enactment was essentially a matter of legislative policy and, therefore, Parliament could not validly delegate to the executive the said power.

5. The appellant strongly relied upon the following observations of Mukherjea. J With respect to the offending words:

“It will be noticed that the powers conferred by this Section upon the Central Government are far in excess of those conferred by the other two legislative provisions, at least in accordance with the interpretation which I have attempted to put upon them. As has been stated already, it is quite an intelligible policy that so long as a proper legislative machinery is not set up in a particular area, the Parliament might empower an executive authority to introduce laws validly passed by a competent legislature and actually in force in other parts of the country to such area, with such modifications and restrictions as the authority thinks proper, the modifications being limited to local adjustments or changes of a minor character. But this pre-supposes that there is no existing law on that particular subject actually in force in that territory. If any such law exists and power is given to repeal or abrogate such laws either in whole or in part and substituted in place of the same other laws which are in force in other areas, it would certainly amount to an unwarrantable delegation of legislative powers. To repeal or abrogate an existing law is the exercise of an essential legislative power, and the policy behind such acts must be the policy of the legislature itself. If the legislature invests the executive with the power to determine as to which of the laws in force in a particular territory are useful or proper and if it is given to that authority to replace any of them by laws brought from other provinces with such modifications as it thinks proper, that would be to invest the executive with the determination of the entire legislative policy and not merely of carrying out a policy which the legislature has already laid down. Thus the power of extension which is contemplated by Section 2 of Part C States (Laws) Act, includes the power of introducing laws which may be in actual conflict with the laws validly established and already in operation in that territory. This shows how the practice, which was adopted during the early British period as an expedient and possibly harmless measure with the object of providing laws for a newly acquired territory or backward area till it grew up into full-fledged administrative and political unit, is being resorted to in later times for no other purpose than that of vesting almost unrestricted legislative powers with regard to certain areas in the executive government. The executive government is given the authority to alter, repeal or amend any laws in existence at that area under the guise of bringing in laws there which are valid in other parts of India. This, in my opinion, is an unwarrantable delegation of legislative duties and cannot be permitted. The last portion of Section 2 of Part C States (Laws) Act is, therefore, “ultra vires” the powers of the Parliament as being a delegation of essential legislative powers in favour of a body not competent to exercise it and to that extent the legislation must be held to be void. This portion is however severable; and so the entire Section need not be declared invalid.”

6. It may, however, be pointed out with great respect firstly, that the above observations were made with regard to the words which were omitted from Section 2 of the Part C States (Laws) Act, 1950, as a result of the Supreme Court decision. These observations cannot therefore be made to apply to the amended Section 2. Secondly and again with great respect, the following words were too wide in the context of the actual language of the offending part of Section 2 of the Part C States (Laws) Act, 1950, viz.

“Section 2 of the Part C States (Laws) Act, 1950 is ultra vires to the extent that it empowers the Central Government to extend to the Part C States laws which are in force in Part A States even though such laws might conflict with or affect laws already in existence in the area to which they are extended.”

7. In so far as this observation seems to imply that the Central Government could not extend to a Part C State any enactment which was in any way inconsistent with the pre-existing law in force in that Part C State, it was not concurred in by any of the other learned Judges who were party to the said Supreme Court decision. It would be relevant here to reproduce the whole of the unamended Section 2 of Part C States (Laws) Act, 1950, as below:

“Power to extend enactments to certain Part C States:

The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State.”

8. It will be noted that the subject of the above sentence is the Central Government. It is the Central Government which is empowered to extend to a Part C State any enactment which is in force in a Part A State. Therefore, the words “and provision may be made in any Act so extended” mean that such provision may be made by the Central Government, These words cannot mean that such provision may be made by the State Legislature which originally enacted the enactment which is being extended to a Part C State by the Central Government. It follows therefore that what the Supreme Court decided in the Delhi Laws Act case, AIR 1951 SC 332 was that the power to amend or repeal an existing law was not to be exercised by the Central Government as a delegate of Parliament. The Supreme Court did not decide that the State Legislature was not competent to amend or repeal its own previous enactment which had been extended to a Part C State. Further, the Supreme Court did not decide that the amending or repealing Act passed by the State Legislature could not be extended by the Central Government to a Part C State. A little reflection will show that Parliament could not have intended that the Central Government could not extend any enactment of a Part A State to a Part C State if ft was in any way inconsistent with a law already in force in a Part C State.

9. Learned counsel for the appellant argued that the delegated legislation embodied in the Delhi Laws Act and the Part C States Act was upheld by the Supreme Court only because the legislature in enacting those Acts was guided by the policy that in small areas like the Union Territories which did not have legislatures established by the Constitution, it would be difficult for Parliament to legislate each time on matters in the State list in the 7th Schedule to the Constitution. This is why Parliament entrusted the task of applying suitable enactments from Part A States to the Part C States and Union Territories to the Central Government. It was argued for the appellant that the Punjab Pre-emption Act, 1913, was applied to Himachal Pradesh by the Central Government in pursuance of the legislative policy. Once this was done, the Central Government could not invoke the same legislative policy in applying the Amendment Act to Himachal Pradesh. For, Himachal Pradesh already had a pre-existing law and it was not necessary for the Central Government to apply another law to Himachal Pradesh on the same subject. This argument is fallacious. If accepted, it would mean that a legislature can legislate on one subject only once. If so, there would be no such thing as an amending Act.

10. If a State legislature can amend prospectively or retrospectively a previous enactment passed by itself, it must follow that the Central Government can extend such an amending Act to an Union Territory in exercise of the power conferred on it by Section 2 of the Union Territories (Laws) Act, 1950. The legislative policy of the Parliament remains the same. The policy is that the Union Territories should get the benefit of laws passed by State Legislatures. Such laws include not only the original enactments but also the amending Acts. The irresistible conclusion therefore is that it is the Central Government which is debarred from repealing or amending an existing law. Therefore if a notification issued by the Central Government purports to do so, it would be invalid. But a notification which itself does not repeal or amend any pre-existing law, cannot be invalid merely because it extends to the Union Territory an enactment which has the effect of amending or repealing a preexisting law in the Union Territory.

11. Learned counsel for the appellant relied upon the decision in Abadijan v. Otermal, AIR 1952 Vindh Pra 39. The learned Judicial Commissioner therein purported to follow the broadly worded observations of Mukherjea, J. in the Delhi Laws case, AIR 1951 SC 332. Actually, in the particular facts of the case, it was the Central Government which by a notification purported to repeal the Rewa State Rent Control Ordinance of 1946 in extending the C.P and Berar Regulation of Letting of Accommodation Act, 1946, to Himachal Pradesh. That was clearly wrong and was rightly struck down by the learned Judicial Commissioner. But in so far as he purported to generalise that even without the repeal being by the Central Government notification, the extension of the C.P and Berar Regulation of Letting of Accommodation Act would have been invalid merely because it conflicted with the Rewa State Rent Control Ordinance, the learned Judicial Commissioner was not supported by the decision of the Supreme Court in the Delhi Laws case, AIR 1951 SC 332. This decision is not therefore an authority for the proposition that the Central Government cannot extend to Union Territories any enactment which Is inconsistent with an existing law in force in the Union Territory.

12. It may be further pointed out that the Amendment Act of 1960 took into account the changing circumstances of modern times to revise the laws of pre-emption In the Punjab. Before the amendment, the right of pre-emption was available to an unjustifiably large number of persons. Since the right of pre-emption is a restriction on the right of the vendor to sell his property, the Punjab State legislature wisely curtailed the number of persons who could pre-empt a sale, to make the right of pre-emption a reasonable restriction on the right to sell. The change in the policy made by the Punjab legislature in fact anticipated what the Supreme Court was to point out later. In Bhau Ram v. Baij Nath, AIR 1962 SC 1476, the Supreme Court held that the right of pre-emption of urban property In so far as it was based only on the ground of vicinage was an unreasonable restriction on the right of the vendor. This decision of the Supreme Court also had the same effect of narrowing the ambit of the right of pre-emption and to restrict it to a smaller number of persons. Can it then be said that the application of the Amendment Act to Himachal Pradesh by the Central Government was in any way contrary to any legislative policy? Ultimately, the right claimed by the appellant is itself based on the amendment of the Hindu Law of Inheritance (Amendment) Act, (No. 2 of 11929). The original Act of 1913 did not give the sister the right of pre-emption. Can it then be argued that only the original Act expresses the legislative policy and that the amendments made thereto by the legislature are not motivated by any legislative policy? So viewed, the argument put forth for the appellant would be reduced to absurdity. There is no alternative therefore than to hold that under Section 2 of the Union Territories (Laws) Act, 1950, the Central Government is empowered to extend to the Union Territories not only the original enactments of State legislatures but also the amendments made thereto by the State legislatures.

13. In fact the contention of the appellant is not a new one. If we turn to paragraph 71 of the judgment of Fad Ali, J. in the Delhi Laws case, AIR 1951 SC 332 referred to above, we will find his Lordship referred to Powell v. Apollo Candle Co., (1885) 10 A.C 282. It was urged before the Privy Council in that case also that the tax in question had been imposed by the Governor and not by the legislature who alone had the power to impose it. Their Lordships of the Judicial Committee of the Privy Council pointed out that “the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.” The same learned Judge in paragraph 79 of his Lordship's Judgment in the Delhi Laws case, AIR 1951 SC 332, referred to Sprigg v. Sigcau, (1897) A.C 238 as an example of the executive authority itself trying to make new laws and adding them to the existing laws of the territory to which it had a power to extend the laws made by competent legislatures. If is this kind of thing which was frowned upon by the Supreme Court in the Delhi Laws case, AIR 1951 SC 332. The Supreme Court did not hold in that case that the Central Government could not extend to Part C States any law which was inconsistent with a pre-existing law. In paragraph 367 of the Judgment of Bose, J. in the Delhi Laws case, AIR 1951 SC 332, it is made clear that the offending part of Section 2 of the Part C States (Laws) Act, 1950, had given the amending and repealing power to the Central Government. This was why the offending part struck down. In the said decision, the Supreme Court did not hold or indicate that the Central Government could not extend to Part C States any law passed by a competent legislature if it would have the effect of amending or repealing a preexisting law.

14. What is still more important is that three of the learned Judges who struck down a part of Section 2 of the Part C States (Laws) Act, 1950, viz., M.C Mahajan, C.J, Mukherjea, J., Vivian Bose, J. along with Bhagwati, J. and Venkatarama Ayyar, J. decided Harishankar Bagla v. State of Madhya Pradesh, (1955) 1 S.C.R 380 : AIR 1954 SC 465. section 6 of the essential supplies (temporary powers) act, 1946 authorised the Central Government to promulgate orders which prevailed over anything inconsistent therewith contained in any enactment other than the Essential Supplies (Temporary Powers) Act, 1946. The Nagpur High Court purporting to follow the Supreme Court decision in the Delhi Laws case, AIR 1951 SC 332 held that such a power to repeal or amend an existing law could not be delegated to the Central Government and therefore Section 6 was unconstitutional. Their Lordships of the Supreme Court unanimously held as follows:

“In our opinion the construction placed on Section 6 by the High Court is not right. Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of Section 6 certainly is not to repeal any one of those laws or abrogate them its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946, or the orders made thereunder. In other words, the orders made under Section 3 would be operative in regard to the essential commodity covered by the Textile Control Order whether there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under Section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions. Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under Section 3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative Act of Parliament itself. By enacting Section 6 Parliament itself has declared that an order made under Section 3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate but the Legislature itself has declared its will that way in Section 6. The abrogation or the implied repeal is by force of the legislative declaration contained in Section 6 and is not by force of the order made by the delegate under Section 3. The power of the delegate is only to make an order under Section 3. Once the delegate has made that order its power is exhausted. Section 6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the Act of the Parliament itself. There is no delegation involved in the provisions of section 6 at all and that Section could not be held to be unconstitutional on that ground.”

15. Before closing I need only point out that the observations of Mukherjea, J. in the Supreme Court decision in the Delhi Laws case, AIR 1951 SC 332 relied upon by the appellant were expressly held to refer only to the offending part of Section 2 of the unamended Part C States (Laws) Act, 1950, by a Division Bench of the Punjab High Court in Chander Bhan v. Maha Singh, AIR 1965 Punj 279. Further, the decision in Harishankar Bhagla's case, 1955-1 SCR 380 : AIR 1954 SC 465 was cited with approval in the subsequent case of Vasan Lal v. State of Bombay (now Maharashtra) AIR 1961 SC 4. Finally, it would be appropriate to point out that Shelat, J. speaking for the majority of the Supreme Court in B. Shama Rao v. Union Territory Of Pondicherry, AIR 1967 SC 1480, reviewed the various opinions expressed by their Lordships of the Supreme Court in the Delhi Laws case, AIR 1951 SC 332 and concluded that the enactment of the amended Section 2 of the Part C States (Laws) Act, 1950, corresponding to Section 2 of the Union Territories (Laws) Act, 1950, was a valid piece of delegated or conditional legislation inasmuch as a sound legislative policy lay behind it. I quote from paragraph (6) of the judgment:

“It is not without significance that three of them emphasised the extra-ordinary situation existing in the newly formed Part C States. At p. 838 (of 1951 SCR 747) : (at p. 357 of AIR 1951 SC 332), Fazl Ali, J. stated as follows:

“The situation with which the respective legislatures were faced when these Acts were passed, was that there were certain State or States with no local legislature and a whole bundle of laws had to be enacted for them. It is clear that the legislature concerned, before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption of laws applicable to the other Provinces inasmuch as they covered a wide range of subjects and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures, and secondly, that the matter should be entrusted to an authority which was expected to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made.

16. Thus, everyone of the Acts so enacted, was a complete law, because it embodied a policy, defined a standard, and directed the authority chosen to act within certain prescribed limits and not to go beyond them. Each Act was a complete expression of the will of the legislature to act in a particular way and of its command as to how its will should be carried out.”

17. This passage suggests that the impugned legislation was a conditional legislation as in (1879) 5 Ind. App. 178 (PC) (Supra) and the power conferred on the Government was ministerial and not legislative. The following observations of Mukherjea, J. also indicate that he reached his conclusion from the same situation. At p. 1001 of the report (SCR): (at pp. 405-406 of AIR) he observed:

“The policy behind the Delhi Laws Act seems to be that in a small area like Delhi which was constituted a separate province only recently and which had neither any local legislature of its own or was considered to be of sufficient size or importance to have one in the future, it seemed to the legislature to be quite fit and proper that the laws validly passed and in force in other parts of India should be applied to such area, subject to such restrictions and modifications as might be necessary to make the law suitable to the local conditions.”

18. Therefore the enactment of Section 2 having been motivated by the sound legislative policy referred to above is valid. Therefore, the enactment of Section 2 of the Union Territories (Laws) Act, 1950, having been based on the sound legislative policy recognised by the Supreme Court in the Delhi Laws case, AIR 1951 SC 332 is also valid. It would satisfy even the criteria laid down by the majority of the Supreme Court in their recent decision in the Municipal Corporation of Delhi v. Birla Cotton and Spinning and Weaving Mills C.A Nos. 1857–58 of 1967 D/- 23-2-1968: AIR 1968 SC 1232) in view of the clear enunciation of the legislative policy behind it by the Supreme Court in the Delhi Laws case referred to above.

19. The appeal is therefore dismissed with costs.

20. LGC/D.V.CAppeal dismissed.