USIF PATEL CASE
Underlying issue; under GIA required GG to act in his discretion e.g in sec 93 deals with
provision in case of const. machinery fails in any province the GG has the power to assume
all the powers vested in any body in himself similar provision is the section 45. The powers
granted by section 93 went a few leaps ahead as compared to our present constitution article
234 and empowered the GG to act in the capacity of provincial legislature.
The repealed section 93 was inserted as section 92 by the GG himself on 19th July, 1948 but
the problem was he could only exercise his powers upto 7 months set out in sec 9(5) expiry
date as 31 march, 1948. The time period was prior to the reinstatement of the section
extended by the CA for one year.
After Tamizuddin case many as 46 to 48 acts passed by the CA were now all deemed as
invalid. After a few days of the judgment the GG of that time promulgated the emergency
powers ordinance 9 of 1955 which gave power to the GG of framing provisions of the
constitution and to retrospectively validate all the acts passed the CA.
The appellants were preceded against the magistrate under the Singh control of goondas act/
governors act of 1952. The appellants filed an application for habeas corpus upon the
dismissal by the chief court the appeals came up to the federal court. The argument of the
appellants were the challenging of section 92 that was reinserted by the GG on 19th july four
months after the expiration date and has not received the assent of the GG. The ordinance act
included an exclusion provision that could not be challenged in any court of law and the court
downplayed such provision.
Section 42 powers of GG to promulgate ordinances in absence of legislature
Section 102 powers of legislature to legislate if an emergency ordinance is proclaimed.
“You can not validate on which you can not legislate upon” J udgment stated that when in
MTC the GG was given the power to give or withhold assent did not give him the power to
perform the functions of a CA it was only given to the CA. Under light of section 42 court
favoured the appellants.
Section 92. The federal legislature is subject to a number of restrictions under section 42 not
to legislate with matters of constitution that will be applicable to the GG when acting in the
scope of the federal legislature therefore, he could not legislate on the matters of constitution.
The govt. Relied on section 102 to advance an argument that federal legislature could
legislate on residuary matters not mentioned in the three lists. Court mentioned issue
happened during world war 2 there was rule 75 in the indian defence act which provided
requisition of any property by govt. A case where a person’s motor car was requisitioned he
argued that unless there is a notification to precede section 102 and 104 of GIA the federal
legislate can not legislate on any other matter hence the proclamation of 1946 was passed
which amended the language of section 102 to giving the power to legislate on residuary
matters to the federal legislature.
The federal legislature could not legislate on matters retrospectively because the GG can not
by a mere notification give this power to the legislature the debate was the power of forming
a constitution was entrusted in the CA.
The whole debate about the commencement of IIA 1948 for retrospective validation was of
no effect because no date was mentioned in the IIA1948 hence the court relied on the
definition of the Helzberg law England that said commencement is when the act is given
royal assent. In this case the IIA was given assent in 1955 not in 48 therefore the GG can not
validate any law retrospectively
Against
1.Legal Vacuum
2. Contemporaneous construction Contemporaneous-Construction Doctrine is a principle
used in the interpretation of statutes. It says that an ambiguous statute made by an
administrative agency or lower court is entitled to great deference if the interpretation has
been used over a long period.
3. Validity vs assent
4. Doctrine of necessity
5. GG delegating power goonda’s act a provincial act
FOR
1. One can not validate what you can not legislate”
2. One man tyranny
3. Limitation on GG same as that of legislature
4. If GG has inherent powers the same as that of the legislature then why GG is not a part of
CA.
