Rajamannar, C.J. - (1.) In these applications the validity of Madras Act XXVI (26) of 1048 (The Madras Estates (Abolition and Conversion into Ryotwari) Act) is challenged. Of the many grounds on which it was challenged, several have become unavailable to the petitioners on account of the Constitution (First Amendment) Act, 1951. and the recent decision of the Supreme Court which held that Act to be valid (vide -- 'Shankari Prasad Singh v. Union of India', 1951 SCJ 775. For instance, it is no longer open to the petitioners to contend that the Act has become void as being inconsistent with, or taking away, or abridging, any of the rights conferred by any of the provisions of Part III of the Constitution.
(2.) But learned counsel for the petitioners contended that the Act is still liable to be challenged on other grounds. The first of such grounds pressed before us was that it contravenes the provisions of Sub-section (2) of Section 299 of the Government of India Act, 1935. To this ground the answer of the State is that this ground is not open to the petitioners in view of Article 31(6) of the Constitution which runs as follows: "Any law of the State enacted not more than 18 months before the commencement of this Constitution may within 3 months from such commencement be submitted to the President for his certification; & thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of Clause (2) of this article or has contravened the provisions of Sub-section (2) of Section 299 of the Government of India Act, 1935." It is common ground that there has been a certification by the President in accordance with this clause. But the petitioners' counsel attempted to get out of this difficulty by putting forward two arguments. The first argument was that the President's certification could cure only irregularities and like defects which do not substantially affect the validity of the Act, but where the impugned Act is void 'ab initio' the President's certificate would not save it. This argument was built upon a construction of the words "any law of the State" as meaning any valid enactment. In support of this argument. learned counsel relied upon certain observations of Sinha J. in -- 'Kameshwar Singh v. State of Bihar', 29 Pat 790 (SB). At p. 860 that learned Judge said: "The opening words of the clause are -- 'Any law of the State'. They are not 'Any Act passed by the State'. Hence in order to attract the operation of the clause, the first essential condition is that it must be a valid law of the State. In other words, the certification by the President may cure an irregularity or an illegality in some details of the law in valid piece of legislation but it cannot cure a nullity. If the impugned Act was a nullity, the certification by the President could not give life to something which was void 'ab initio' and a law which is void 'ab initio' is something which was never in existence -- see in this connection the following observations of the Supreme Court of America in the case of 'Norton v. Shelby County', (1885) 118 US 178 at p. 186, 'An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." In the same case Das J. was apparently of a different view. In his opinion, Article 31(6) as worded would prevent the Court from calling into question a law coming within the purview of that clause which is liable to be challenged only on the ground covered by that clause and which must be held to be valid law because it can not be called into question on that ground which renders it invalid. "Thus there will be no question of reviving something which is dead or validating a nullity. A law passed by a competent Legislature is valid unless it is declared invalid by a competent court of law. If the court cannot call it into question on a particular ground, that ground cannot be urged for its invalidity either at the inception or at a subsequent stage; for to do so would nullify the provisions of Article 31(6) of the Constitution." With great respect, I am in entire agreement with the opinion expressed by Das J. and I must express my respectful dissent from the observations of Sinha J. on this point. I am clearly of opinion that the words "any law of the State" mean any Act, ordinance or order enacted by the State without any reference to its validity.
(3.) Of course, this does not mean that it is not open to the petitioners to challenge the validity of the Act on other grounds. Article 31(6) does not say that the Act shall not be called in question on any ground whatever. On the other hand, that clause expressly limits the effect of the certificate to the only ground that it contravenes the provisions of Clause 2 of Article 31 or has contravened the provisions of Sub-section 2 of Section 299 of the Government of India Act, 1935.;