The Director of Industries &
Commerce. Government of A. P., Vs. V. Venkata Reddy & Ors [1972] INSC 240 (3
October 1972)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) RAY, A.N.
DUA, I.D.
PALEKAR, D.G.
BEG, M. HAMEEDULLAH
CITATION: 1973 AIR 827 1973 SCR (2) 562 1973
SCC (1) 99
CITATOR INFO :
E&D 1987 SC 663 (1)
ACT:
Hyderabad Civil Service Regulations
promulgated by Nizam's Firman dated 25th Ramzan 1337H--Mulki Rules--Validity
of-- Rule 1(b) and r. 3 whether 'laws in force' at commencement of
Constitution--Whether continued in force by Art. 35(b) of the
Constitution--Whether continue in force under Re- organisation of States Act
1956--Whether Repealed by s. 2 of Public Employment (Requirement as to
Residence) Act 1957.
HEADNOTE:
The Mulki Rules promulgated by the Nizam of
Hyderabad before The merger of that State with India laid down certain
Qualifications as to residence in the State for the, purpose of appointment to
the State services. After the States Reorganisation Act 1956 the Telangana area
of Hyderabad State and the State of Andhra were: combined to form the new State
of Andhra Pradesh. The respondents who were officers in :he Department of
Industries in Andhra Pradesh and were adversely affected by the Mulki Rules
filed writ petitions in the High Court challenging the validity of the said
Rules. The High Court, held these to be invalid. In appeal to this Court by
certificate the Questions which arise for decision were : (1) Were r. 1 (b)
read with r. 3 of the Mulki Rules and Art. 39 of the Constitution, laws in
force immediately before the commencement of the Constitution in the territory
of India ? (ii) Were they continued it force by Art. 35(b) of the Constitution
? (iii) Did they continue in force after the Constitution of the State of
Andhra Pradesh under the Reorganisation of States Act, 1956 ? (iv) Did they
continue or they stand repealed by s. 2 of the Public Employment (Requirement
as to Residence) Act 1957, notwithstanding that s. 3 of the said Act was
declared void in so far as it dealt with Telengana ? Allowing the appeal,
HELD : i) The words "laws in force in
the territory of India" in Art. 35(b) also occur in Art. 372 which
continue in force existing laws which existed not only in the Provinces of
British India but in all Indian States. It would be remarkable if it were
otherwise. In the context of Art. 372 What has to be seen is not whether the
State of Hyderabad was part of the territory of India before the commencement
of the Constitution but whether its territory is included in India after its
commencement. The same test applies to the old Provinces or part of Provinces
of British India. [569H] Janardan Reddy v. The State, [1950] S.C.R. 940,
distinguished.
(ii) This Court interpreted Art. 16(3) in
Narasimha Rao's case to mean that it speaks of a whole State as the venue for
residential qualification., It cannot be said that the impugned Mulki Rules
Could not be provided for by Parliament under Art. 16(3). They are with respect
to the matter referred to in Art 16(3). Article 16(3) confers legislative power
on Parliament with respect to matter mentioned therein. It 563 confers no less
power than Arts. 245-246 do, read with List I and List III. The impugned rules
prescribed requirements as to residence ,he whole of Hyderabad State and
therefore are saved and continued in force by Art. 35(b). Merely because
certain-other Mulki Rules became void on the commencement of the Constitution
the impugned rules could not be said to have also become void because Art.
35(b) expressly saves laws like the impugned rules. Effect Must be given to the
intention clearly expressed in Art. 35(b).
[570E] Narasimha Rao v. The State of Andhra
Pradesh, [1970] 1 S.C R. 115, applied.
(iii) The impugned rules continued in force
even after the constitution of the State of Andhra Pradesh under the
Re-organisation of the States Act, 1956.
On the terms of Art 35(b) the only proper
question to be asked is 'Has Parliament in exercise of its powers under Art.
35(b), read which Art. 16(3), altered or repealed or amended the impugned rules
?" That this is the proper question follows from the words
"notwithstanding anything in the Constitution". This expression
equally applies to Art.
35(a) and Art. 35(b). In Art. 35(b) the
effect of these words is not only to continue the impugned rules but to
continue them until Parliament repeals, amends or alters them. It seems to us
that the effect of reorganisation of States made under Arts. 3 and 4 of making
Telengana a part of a new State has to be ignored under Art. 35(b); otherwise a
fundamental right conferred on persons under Art. 35(b)-it must be remembered
that Art., 35(b) is a part of the Chapter on Fundamental Rights-would be liable
to be taken away by the reorganisation of States. It cannot be denied that the
purpose of reorganisation of States is not to take away fundamental rights.
[571C] (iv) Section 2 of the Public Employment (Requirement as to Residence) Act
1957 Act is not severable from s. 3 which was struck by the Court in Narasimha
Rao's case.
It is clear that Parliament would not have
enacted s. 2 without s. 3 as far as Telengana is concerned. The whole history
of the legislation its object tide and the Preamble to it point to that
conclusion. Further. the Constitution (Seventh Amendment) Act 1956,
substituting Art. 1 for the old also shows that it was intended to give special
consideration to the Telengana region. [573G-H] Principles laid down in R.M.D.
Chamarbaugwala v. Union of India. [1957] S.C.R. 930. held applicable.
The contention that s. 2 insofar as it dealt
with Telengana region cannot be given an independent existence was not
acceptable. It is only a matter of drafting and if the Telengana. region had
been dealt with separately in a separate act it could without hesitation be
held that s. 2 would fall with s. 3. The fact that s. 2 deals with laws and
rules in various States would not prevent the separation of the valid portion
from the invalid portion. This Court specifically held in Narasimha Rao's case'
that s. 3 was bad insofar as it dealt with the Telengana region. Section 2 must
also be held to be bad insofar as it dealt with Telengana area. [574B-D].
(v) whether the Mulki Rules were unjust to
the respondents was a matter for Parliament to decide. This Court was only
concerned with their validity. [574E] 564
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 993 of 1972.
Appeal by certificate from the judgment and
order dated February 18, 1972 of the Andhra Pradesh High Court at Hyderabad in
Writ Appeal No. 633 of 1970.
M. C. Chagla, K. V. Narasinga Rao and P.
Parameshwara Rao, for appellant No. 1.
C. K. Daphtary, K. V. Narasinga Rao and P.
Parameshwara Rao, for appellant No. 2.
P. A. Choudhry and K. Rajendra Choudhry, for
respondents Nos. 1 and 5-7.
H. S. Gururaja Rao and S. Markandey, for
interveners.
The Judgment of the Court was delivered-by
SIKRI, C.J.-This appeal by certificate granted by the High Court of Andhra
Pradesh is directed against the judgment of the High Court, dated February 18,
1972, passed in Writ Appeal No. 633 of 1970, which arose out of the order of
the High Court of Andhra Pradesh, dated July 9, 1969, in Writ Petition No. 2524
of 1967. Before the Division Bench of the High Court the Full Bench judgment of
the High Court dated December 9, 1970 (P. L. Rao v. State of Andhra Pradesh(1)
was cited, but as this Full Bench decision was challenged before it and it
thought that a reference of the matter to a Full Bench of five judges is
advisable it directed that the papers be laid before the Hon'ble the Chief
Justice of the High Court for constitution of a larger Bench. The Chief Justice
of the High Court accordingly constituted the Full Bench of five Judges. This
Full Bench, by majority, held that 'the mulki rules are not valid and operative
after the formation of the State of Andhra Pradesh. In any event, they do not
revive and cannot be deemed to be valid and operative in view of the decision
of the Supreme Court in A.V.S Narasimha Rao's case (2) . The Full Bench
decision in P. Lakshmana Rao's case(3) is thus overruled. W.A. No. 633 of 1970
along with W.A.M.P. Nos. 493 and 494 of 1971 will be posted before the Division
Bench for further orders." Receiving this opinion, the Division Bench
delivered the following judgment:
"We have already indicated in the order
of reference that it a reference to Full Bench is made, and if the decision of
the Full Bench is to the effect that the Mulki (1) A.I.R. 1971 A.P. 118.
(2) [1970] 1 S.C.R. 115 565 Rules are not
operative, then appeal has to be allowed. Having regard to the direction
previously given by us in the order of reference, and in the light of the
decision of the Full Bench, the Writ Appeal has to be allowed. We accordingly
allow the Writ Appeal with costs." In this appeal we are thus concerned
with the validity of the so-called Mulki Rules. Before dealing with the
questions of law which have been debated before us it is necessary to give a
few relevant facts. Writ Petition No.
2524 of 1967 out of which the present appeal
arises was filed by 12 Extension Officers in the Department of Industries,
Government of Andhra Pradesh. They were appointed as Extension Officers in May,
1961, and after they underwent training, were posted in various districts. The
strength of the cadre of Extension Officers was reduced and that led to the
retrenchment of some of the personnel including the petitioners, who were
absorbed in another cadre, viz., Senior Inspectors. This absorption resulted in
diminution in their scale of pay. Their grievance was that persons appointed
later and juniors to them in service were retained as Extension. Officers,
whereas they, by an order dated September 28, 1967, were retrenched and that,
instead of following the rule 'last come, first go', the juniors in rank were
sought to be retained as Extension Officers by reason of their residence in
Telengana area and that such a preferential treatment on the basis of
residential qualifi- cation is discriminatory and violative of Art. 16 of the
Constitution.
It was admitted in the counter affidavit of
the Government that "except the Telengana employees who were posted only
in Telengana region, and to which Andhra Personnel cannot be posted", no
juniors of the petitioners were allowed to continue in their posts in
preference to the rights of the petitioners.
The Mulki Rules formed part of the Hyderabad
Civil Service Regulations promulgated in obedience to His Exalted Highness the
Nizam's Firman dated 25th Ramzan 1337H. The State of Hyderabad was then a
native Indian State which had not acceded to the Dominion of India after the
Indian Independence Act, 1947. Chapter III of the Regulations contained article
39 which reads as follows :
"39. No person will be appointed in any
Superior or Inferior service without the specific sanction of His Exalted
Highness, if he is not a Mulki in terms of the rules laid down in Appendix 'N'.
Any person whose domicile is cancelled under para 9 of the Mulki rules, will be
considered to have been dismissed from his post from the date of such
cancellation." 566 The. following rules in Appendix 'N' may be set out
1. A person shall be called a Mulki if-- (a)
by birth he is a subject of the Hyderabad State, or (b) by residence in the
Hyderabad State he has been entitled to be Mulki, or (c) his father having
completed 15 years of service was in the Government service at the time of his
birth, or (d) she is a wife of a person who is a Mulki.
3. A person shall be called a Mulki who has a
per manent residence in the Hyderabad State for at least 15 years and had
abandoned the idea of returning to the place of his previous residence and has
obtained an affidavit to that effect on a prescribed form attested by a
Magistrate.
Rule 7 prescribes he contents of the
application to be made for grant of a Mulki certificate and required the
applicant, among other things, to say:
(a) (b) (c) (d) Where was he residing prior
to his residing in the Hyderabad State.
(e) Place of birth and nationality of his
father and grandfather.
(f) (g) (h) From what period the-applicant is
permanently residing in (the Hyderabad State and whether he has abandoned the
idea of returning to his native land, (i) (j) Has the applicant's father or he
himself created such connections within the Hyderabad State which lead to
believe that they have made Hyderabad State their native land." Rule 9
reads as follows :
"Government in the Police Department may
cancel any Mulki certificate if the Government finds that any of the entries
made in the application for the Mulki 567 certificate under Rule 7 is not
correct or that it was obtained by false personation or false statements and it
may cancel certificates of persons mentioned in clauses (b), (c) and (d) of
Rule 1 if the holder of the Mulki certificate is disloyal to H.E.H. or the
Hyderabad Government in his conduct or behaviour or is directly or indirectly
connected with such political activities which are detrimental or contrary to
the interest of the Hyderabad Government." The Constitution of India came
into force on January 26, 1950, except the parts which had been enforced
earlier. The relevant articles for our purposes are Arts. 13, 14, 16 and 35.
The conditions as ;they prevailed in the
Hyderabad State been summarised by Madhava Reddy, J., in his judgment in Pull Bench,
and we may usefully reproduce this summary Here "Hyderabad State was one
among the several other Princely States of India. Due to Political conditions
and Historical reasons the State remained isolated. There were no adequate
Educational facilities afforded to the People of the State, in the result,
there were very few opportunities available to the people of the Region to
enter public service in competition with others from outside the State. Another
contributing factor in this behalf was the use of Urdu, which was not the
language of nearly ninety per cent of the people, as the Official Language in
the entire administration of Hyderabad state. Similar conditions prevailed in a
few other states as well. So much so, that these people were not in a position
to compete with others in the matter of employment even in their own state, if
no protection was afforded to them in this behalf on the basis of residence
within that State." In view of these conditions, Madhaya Reddy, J.,
further stated that "the Constituent Assembly while guaranteeing
fundamental rights in the matter of employment under the State, took of this
vast disparity in the development of various States and felt it imperative to
continue that protection in the matter of employment afforded on the basis of
residence within ;the State and made provision under Article 33(b) of the
Constitution for the continuance of those laws." A few more historical
facts may also be noticed here. The States Re-organisation Commission set up by
the Central Government recommended the disintegration of the Hyderabad State
and suggested the continuance of the Telengana region of the 568 Hyderabad
State as a separate State. However, an agreement was reached by the elders of
the Andhra & Telengana Regions, among whom were the Chief Miniser and the
Dy. Chief Minister of the State of Andhra and the Chief Minister, Revenue
Minister and the some other Ministers of the Hyderabad State amongst whom one
later became the first Chief Minister and most others members of the first
Council of Ministers of the State of Andhra Pradesh with a view to allay the
fears of the people of this underdeveloped Region and to reserve to them the
benefit of securing employment in the Region on the strength of their
residence. For safeguarding their legitimate interests in certain matters the
formation of a Regional Standing Committee of the State Assembly consisting of
the members of the State Assembly of this Region was also agreed upon.
We may mention that in this agreement in
clause B Domicile Rules were dealt with as follows :
"B. A temporary provision will be made
to ensure that for a period of five years, Telengana is regarded as a unit as
far as recruitment to subordinate services in the area is concerned; posts
borne on the cadre of these services may be reserved for being filled by
persons who satisfy the domicile conditions as prescribed under the existing
Hyderabad Rules".
Parliament, in effect, gave statutory
recognition to this agree by making, the necessary constitutional amendment in
Art. 371 providing for the constitution of the Telengana Regional Committee.
The Constitution (Seventh Amendment) Act, 1956, inter alia, substituted a new
article 371 for the old, the relevant part of which reads as follows :
"371. Special provision with respect to
the States of Andhra Pradesh, Punjab and Bombay.--(1) Not withstanding anything
in this Constitution, the President may, by order made with respect to the
State of Andhra Pradesh provide for the constitution and functions of regional
committees of the Legislative Assembly of the State, for the modifications to
be made in the. rules of business of the Government and in the rules of
procedure of the Legislative Assembly of the State and for any special
responsibility. of the Governor in order to secure the proper functioning of
the regional committees" The State of Andhra Pradesh was reconstituted on
November 3, 1956.
We may now refer to the attempts made to
safeguard and apply the Mulki Rules. Appendix 'N' of the Hyderabad Civil 569
Service Regulation was amended and an explanation was inserted, which reads :
"Explanation : The above Mulki Rules
shall be read in conjunction with the clarifications contained in the following
circular letters and Notification issued by the Government of Hyderabad in the
General Administration Department (reproduced)." One of the circular
letters dated June 14, 1950 briefly stated "...... Government is now
advised that the Mulki Rules are save to the extent of their inconsistency with
the Constitution of India saved by clause (b). of art. 35. It is, therefore,
necessary to put out of operation the requirements laid down by the Mulki Rules
to the extent that they prescribe qualifications regarding Birth and Descent.
" Another circular letter dated September 18, 1951, stated that the
Government had decided that "the period of Fifteen Years' Residence
prescribed in the existing Mulki Rules, should be 'continuous' with the proviso
that periods spent outside the State for educational or medical purposes will
not count as a 'break' in this. period of 15 years, where permanent residence
has been and continues to be in Hyderabad State." The following questions
emerge from the submissions of 'the learned counsel before us :
1. Were r. 1 (b), read with r. 3, of the
Mulki Rules hereinafter referred to as the impugned Mulki Rules and art. 39
laws in force immediately before the commencement of the Constitution in the
territory of India ?
2. Were they continued in force by art. 35
(b) of the Constitution ?
3. Did they continue in force after the
constitution of the State of Andhra Pradesh under the Re-organisation of States
Act, 1956 ?
4. Did they stand repealed by s. 2 of the
Public Employment (Requirement as to Residence) Act, 1957 (Act 44 of 1957)
notwithstanding that s. 3 of the said Act wag declared void in so far as it
dealt with Telengana ? We will deal with these questions one by one. The first
question is easy to answer. On this question the Judges of the Full Bench are
agreed that the answer must be in the affirmative. The words "laws in
force in the territory of India" in art. 35(b) 570 also occur in art. 372,
which continue in force existing laws which existed not only in the Provinces
of British India but in all Indian States. It would be remarkable if it% were
otherwise. In the context of art. "3 5 (b) and art.. 372 what has to be,
seen is not whether the State of Hyderabad was part of the territory of India
before the commencement of Constitution but whether its territory is included
in India its commencement. The same test applies to the old Provinces or part
of provinces of British India This Court's decision in Janardan Reddy v. The
State on the construction of art. 136 of the Constitution proceeded on the
basis that to art. 136 "the normal mode of interpreting a legislation as
prospertive" should: be applied. We are not concerned with any such
consideration while interpreting art. 35(b) of the Constitution.
The second question also does not give much
difficulty.
Article 35(b), in terms, saves any law in
force immediately if it before the commencement of the Constitution , if it is
a law "with respect to" a matter referred to in art. 35 (a) (i) The
matter referred to for our purposes is a matter under cl. of art, 16 which may
be provided for by law made by Parliament. 'What is then the matter that can be
provided for under art. 16 (3)" The matter is "any requirement as to
residence within a State in regard to class or classes of employment or
appointment to an office under the Government or any local or other authority".
This Court interpreted art. 16(3) in Narasimha Rao v. The State of Andhra
Pradesh(2) to mean that it speaks of a whole State as the venue for residential
qualifications. It cannot be said .that the impugned Mulki Rules could not be
provided for by Parliament under art. 16(3). They are with respect to the
matter referred to in art.16(3). Article 16(3) confers legislative power on
Parliament with respect to a matter mentioned therein. It confers no less power
than arts. 245-246 do, read with List I and List II. The impugned rules
prescribed requirements as to residence within the whole of Hyderabad State and
therefore are saved and continued in force by art. 35(b).
It was, however, urged that the impugned
rules formed Part of a number of other rules which, become void on the
commencement of ,the Constitution, all the Mulki rules constituted one
integrated, scheme regulating appointments to services and post,,; under the
old Hyderabad State and;
if the other rules are void the impugned
rules would also fall. But 'this principle of interpretation cannot be applied
to art. 35(b), for it expressly saves laws like the impugned Mulki Rules. If we
were, to apply the suggested principle of interpretation we would be rendering
art, 35(b) nugatory for ordinarily rules like the impugned rule would (1)
[1950] S.C.R. 940. (2) [1970] 1 S.C.R. 115.
571 form part of Civil Service Regulations or
laws dealing with appointments especially in the old Indian States. We must
give effect to the intention clearly expressed in art.
35(b). The judges of the Full Bench also came
to the same conclusion and in agreement with them we hold that the impugned
rules were continued in force by art. 35(b) of the Constitution.
The third question is not so easy to answer
as divergent views have been expressed by Judges of the Andhra Pradesh High
Court. It seems to us that here too we must give effect to the intention of the
founders of the Constitution as evinced in art. 35(b). On the terms of art.
35(b) the only proper question to be asked is : "Has Parliament 'in
exercise of its power under art. 35(b), read with art.
16(3), altered or repealed or amended the
impugned rules ?".
That this is the proper question follows from
the words "notwithstanding anything in the Constitution". This
expression equally applies to art. 35(a) and art. 35(b). In art. 35(b) the
effect of these words is not only to continue 'he impugned rules but to
continue them until Parliament repeals, amends or alters them. It seems to us
that the effect of re-Organisation of States made under arts. 3 and 4 of making
Telengana a part of a new State has to be ignored under art. 35(b) it must be
remembered that art. 35(b) is a part of the Chapter on Fundamental Rights-would
be liable to be taken away by the re-organisation of States. It cannot be
denied that the purpose of reorganisation of States is not to take away
fundamental rights.' Accordingly we are of the view that the impugned rules
continued in force even after the constitution of the State of Andhra Pradesh
under the Re-organisation of States Act, 1956.
The fourth question again is not free from
difficulty. In this connection it is necessary to give a few more facts and the
provisions of the Public Employment (Requirement as to Residence) December 7,
1957. The Preamble reads :
"An act to make in pursuance of clause
(3) of Article 16 of the Constitution special provisions for requirement as to
residence in regard to certain clauses of public employment in certain areas
and to repeal existing laws prescribing any such requirement." The object
it is clear from his recital, is two-fold; one, to make ,Provisions in
pursuance of art. 16(3) and, two, to repeal the existing laws relevant thereto.
The Act did not come into force immediately because it provided in S. 1 (2)
that it shall come into force on such date as the Central Government may by
notification 572 in the official gazette appoint. Section 2 contained the
repeal clause and it is in the following terms :
"2. Upon the commencement of this Act,
any law then in force in any State or Union territory by virtue of clause (b)
of Article 35 of the Constitution prescribing in regard to a class or classes
of employment or appointment to an office under the Government of, or any local
or other authority within, that State or Union territory, any requirement as to
residence therein prior to such employment or appointment shall cease to have
effect and is hereby repealed." There is no doubt that the impugned Mulki
Rules fall within s. 2 and if there was nothing more they would stand repealed.
But the second purpose of Parliament was achieved by enacting S. 3 which
provided.
"3. (1) The Central Government may by
notification in the Official Gazette, make rules prescribing, in regard to
appointments to- (a) any subordinate service or post under the State Government
of Andhra Pradesh, or (b) any subordinate ate services or post under the
control of the Administrator of Himachal Pradesh, Manipur or Tripura, or (c)
any service or post under a local or other authority (other than a cantonment
board) within the Telengana area of Andhra Pradesh or with in the Union
territory of Himachal Pradesh, Manipur or Tripura, any requirement as to
residence within the Telengana area, or the said Union territory, as the case
may be, prior to such appointment." Section 4 provided for Parliamentary
scrutiny of rules and s. 5 dealt with duration of rules. Section 5, as
originally enacted, provided:
"Section 3 and all rules made thereunder
shall cease to have effect on the expiration of five years from the
commencement of this Act, but such cesser shall not effect the validity of any
appointment previously made in pursuance of the said rules.
The words "five years" had
subsequently been substituted by the words "fifteen years." In
pursuance of this Act certain rules, called the Andhra Pradesh Public
Employment (Requirement as to Residence) 573 Rules, 1959 were made. The Act and
the Rules were challen- ged before this Court in Narasimha Rao v. State of
Andhra Pradesh(1). This Court held that S. 3 of the Public Employment (Requirement
as to Residence) Act, 1957, insofar as it related to Telengana--we say nothing
about the other parts-and r. 3 of the Rules made under this Act were ultra
vires the Constitution.
No opinion was expressed in this judgment on
the point whe- ther the Mulki Rules existing in the former Hyderabad State
should continue to operate by virtue of art. 35 (b).
It is urged before us that if S. 3 is void,
so is S. 2 because s. 2 and s. 3 of the said Act form, one scheme; in other
words, it was not the intention of Parliament to simply repeal the existing
laws in Telengana dealing with residential requirements for the purposes of
appointment, the intention being to substitute other rules in place of the
earlier rules.
It is quite clear that Parliament had made up
its mind that rules requiring residence as qualification for appointment to
services or offices shall continue because the Public Employment Act enables
the Central Government to make such rule S. Not only that, but S. 5 assumes
that rules will be made and it is on this assumption that S. 5 originally
proceeded to give a life of five years to them from the commencement of the
Act. It is impossible to read S. 5 and S. 3 together without coming to the
conclusion that it was the intention of Parliament that Central Government
would make the necessary rules. The Central Government also understood the
intention to be the same because it acted under sub-s.1 (2) and S. 3
simultaneously. In other words, the date of commencement of the Act was fixed
as March 21, 1959, and the rules also came into force on the same date.
A number of authorities of this Court and
other authorities have been cited before us in order to enable us determine
whether S. 2 is not severable from S. 3 of-the Public Employment Act. It is not
necessary to refer to them here because the principles are well-known and have
been re- iterated in a number of cases of this Court, including R.M.D.
Chamarbaugwala v. Union of India(-') It seems to us that principles 1 and 3,
mentioned in this judgment at page 950, apply to the facts, of this case. In,
our view' it is clear that Parliament would not have enacted S. 2 without s.3
as far as Telengana is concerned. The whole history of the legislation, its
object, title and the Preamble to it, point to that conclusion. Further, the
Constitution (Seventh Amendment) Act, 1956, (1) [1970] 1 S.C.R. 115.
(2) [1957] S.C.R. 930.
574 substituting new article 371 for the old
also shows that it was intended to give special consideration to the Telengana
region.
We may mention that the earlier Full Bench
came to the same conclusion in P. Lakshmana Rao v. State of Andhra Pradesh It
was urged 'before us that s. 2 insofar as it dealt with Telengana region cannot
be given an independent existence.
We are unable to accede to this. h is only a
matter of drafting and if the Telengana region had been dealt with separately
in a separate act we would have had no hesitation in holding that S. 2 would
fall with s. 3. The fact that s.
2 deals with laws and rules in various states
would not prevent us from separating the valid portion from the invalid
portion. This Court specifically held that S. 3 was bad insofar as it dealt
with the Telengana region. We hold that s. 2 is also bad insofar as it dealt
with Telengana area.
We may mention that we are not concerned with
the interpretation of the Mulki Rules and their applicability after the
adaptation on. No such question was answered by the Full Bench or was dealt
with by the Division Bench.
In the result the appeal is allowed, the
judgments of the Full Bench and the Division Bench are set aside and writ
petition No. 2524 of 1967 is dismissed.
It was suggested by the respondents in the
appeal that the impugned Mulki Rules are unjust to them. This was strongly
denied by the appellants. This is a matter for Parliament and not for us. We
are only concerned with their validity.
In the circumstances the parties will bear
their own costs throughout.
G.C. Appeal allowed.
L 498 Sup C.I.73 2500 -16-3-74-GIPF.
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