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TMI Blog1940 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... iffs contended that these remissions were beyond the power of the Government to order and that the defendants were not therefore entitled to rely upon them. On this issue both the trial Judge and the District Judge on appeal decided in the defendants' favour. The plaintiffs then appealed to the High Court, and during the pendency of the appeal a Division Bench of the High Court held in another case, Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158, that remissions made in pursuance of the Government order above referred to had no legal effect. In order to appreciate the legal questions involved, it is necessary to refer to certain statutory provisions contained in the Agra Tenancy Act, 1926, which at all material times regulated the relations between the parties, though it has since been repealed and only re-enacted with substantial alterations. 2. The purpose of the Act is indicated by its title, "an Act to consolidate and amend the law relating to agricultural tenancies and certain other matters in Agra," and it may be described as a Code of landlord and tenant law for the province of Agra. At the end of that part of the Act which dealt wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as were dealt with in Section 72; but a remission or suspension of land revenue Under Section 73 would destroy the basis upon which they must necessarily have contracted and it would be inequitable if a consequential adjustment were not permitted. 4. In 1931, the United Provinces were faced with a catastrophic fall in agricultural prices followed by threats to withhold rent on a large scale. Faced with what was clearly a most difficult situation, the Government appears to have acted with courage and promptitude. It took the view that the most urgent problem was that of rent, and devised a scheme for the systematic reduction of rents, varying with the circumstances of the different districts, followed later by consequential adjustments in land revenue. The plans adopted were described in a series of communiques issued from time to time, the first being dated 29th April 1931 and the last 28th October 1932. The Government appears to have been well aware of the legal position, for, in its last communique, a statement on the report of the rent and revenue committee of the Legislative Council, it observed that the Governor in Council recognizes that the action which Government were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the generosity with which the Agra landlords had shown their willingness to grant remission to a large number of cultivators. It is desirable that this should be said, for Courts of justice, while giving no countenance to the theory that governments are at liberty to break the law whenever they find it convenient to do so, ought to abstain from harsh or ungenerous criticism of measures taken in good faith by those who bear the responsibility of government, when suddenly faced with a serious and perhaps dangerous situation. 6. The Regularization of Remissions Act, 1938, had been passed before the present appeal came before the High Court, and when the appellants sought to take advantage of it, on the ground that the respondents could no longer challenge the validity of the remission orders, the latter replied by challenging the new Act itself. This point was referred to a Full Bench, which held the Act to be beyond the competency of the Legislature to enact. The three learned Judges who composed the Bench (Iqbal Ahmad, Bajpai and Mohammad Ismail, JJ.) all took the view that the Act was contrary to the provisions of Section 292, Constitution Act, because it attempted to legislate re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, to be added. 9. Counsel for the lessors argued that the desire of the Province to secure the right of appeal did not make Order 1, Rule 10(2) applicable to the case; but, he also based his argument on broader grounds and contended that the mere fact that the validity of provincial legislation was being challenged was no sufficient reason for making the Province a party to a suit between private persons. 10. I desire to say at the outset that, assuming for the moment that there was jurisdiction to add a party to represent the executive Government of the Province, that party ought not in my opinion to have been the Province itself. It is true that by Section 170(1), Constitution Act, a Provincial Government may sue or be sued by the name of the Province, and may, subject to any provisions which may be made by Act of the Federal or the Provincial Legislature, sue or be sued in relation to its affairs in the like cases as the Secretary of State in Council might have sued or been sued if the Act had not been passed. But it seems to me that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the country at the present day, paramount, imperial, local, delegated, subordinate, etc., I feel that questions of ultra vires are certain to be raised in the Courts in increasingly large numbers of cases and I refuse to contemplate with equanimity the prospect of the Secretary of State for India being required by every defendant to be made a party in every one of them. 12. This judgment was criticised and dissented from in Secretary of State v. Murugesa Mudaliar, AIR 1929 Mad 443 by Venkata Subbarao J., a case in which the plaintiff had brought a suit against a district board for a declaration that he had been duly elected a member of the board by a resolution passed at the meeting of a certain taluq board. The Government applied to be joined as a defendant, but both plaintiff and defendant opposed the application. It was held that since by a local Act Government had the power of control over all local boards in the province and could suspend the execution of any resolution (as they had apparently done in the case of the taluq board), it was a proper party to the suit and ought to be added. The learned Judge was of the opinion (which I cannot myself share) that Srinivasa A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Devolution Rules, questions of ultra vires in the case of provincial statutes could have come before the Court. The decision in the later case may have been justified on the facts, but those facts were very different from those which are now under consideration. 14. Since the new Constitution Act, however, the position with regard to the competence of Indian Legislatures, whether the Central Legislature or the Legislatures of the Provinces, is completely changed; and the cases which have already come before this Court during its brief history show the difficulty and complexity of the disputes in which questions of legislative competence are involved. I think that it would be a matter of great regret to this Court if in any such case it had not the assistance of the Advocate-General of the Province concerned, and this point was not overlooked when the rules of the Court were drafted: see Federal Court Rules, Order 36. But, in the absence of such an express rule in the Code, it is necessary to decide, first, whether, the Advocate-General was rightly empowered to intervene as a party on the record, and, secondly whether in the particular circumstances of the present case he has an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral is nevertheless a necessary and proper party and may be joined as a defendant by the plaintiff. In that case the validity of a Crown grant, and not of a statute, was challenged, but I draw attention to the following observations of Lord Buckmaster, who delivered the judgment of the Committee: It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Crown asked to do any act or grant any estate or privilege; but in the event of the plaintiffs' success the rights existing in the Crown and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as a defendant and that is the best means of testing the necessity of the attendance of the Crown (at page 363). 17. Adapting these words, I might say that in the event of the lessors succeeding in the present case, certain rights of the Crown, that is, of the executive, of the province will cease to exist, in the sense that they will no longer have that extended effect which it was believed that the impugned Act had given them. In a recent case in a, Canadian Province, Beauharnois L.H. & P. Co. v. Hydro-Electric P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court of Alberta had held that a statute under which a husband had been ordered to pay a certain sum towards the maintenance of his wife was beyond the competence of the Provincial Legislature to enact. The Attorney-General of the Province had intervened to uphold the validity of the Act, and special leave to appeal to the Supreme Court of Canada had been granted both to the Attorney-General and to the wife, but the wife failed to perfect her appeal. The Supreme Court were of opinion that though, on an appeal to the Court by the wife, the Attorney-General would, in the ordinary course, have the right to appear in order to support the validity of the Act, he had no status to appeal to the Court, so long as the wife had not perfected her appeal, and that until she had done so the Court had no jurisdiction. This decision seems to me, if I may respectfully say so, to be based upon sound principle, and in my opinion this Court ought to follow it. There is a significant observation by Lord Haldane in John Deere Plow Co. v. Wharton ('14) 1 AIR 1914 PC 174 at p. 334, that Attorneys-General intervening in private litigation were only entitled to present their views to the Judicial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority. 21. It is said that since these words keep existing British Indian laws in force until they are altered or repealed or amended by competent authority, it is beyond the powers of any authority, no matter how competent otherwise, to legislate with retrospective effect; because, if they do so, they are contravening the provisions of the section which makes those laws continue in force up to the moment of alteration, repeal or amendment. The purpose of Section 292 was clearly to negative the possibility of any existing Indian law being held to be no longer in force by reason of the repeal of the law which authorized its enactment; and it is a safeguard usually inserted by draftsmen in similar circumstances. An analogous provision was included in Section 130, Government of India Act, 1919, though in that case it took the form of a proviso that the repeal of earlier Government of India Acts should not affect the validity of any existing law. The Union of South Africa Act, 1909, Section 135, is almost identical with Section 292, but a slightly diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry of counsel was unable to suggest, nor have I myself been able to discover, that the interpretation which commended itself to the High Court of Allahabad has ever been even hinted at in any South African Court. The same may be said of the Canadian and Australian sections; for though it is true that the wording of those sections is a little different, I confess that I can detect no difference in the meaning of the language used. 24. I find myself unable to agree with the decision of the High Court on this point, and it is only out of respect for the three learned Judges who have taken a contrary view that I have dealt with the question at any length; for, but for their unanimous opinion, I should have thought it scarcely open to argument. It must always be remembered that within their own sphere the powers of the Indian Legislatures are as large and ample as those of Parliament itself, Reg. v. Burah, (1878) 3 AC 889 and the burden of proving that they are subject to a strange and unusual prohibition against restrospective legislation must certainly lie upon those who assert it. I can see nothing in the language of Section 292 which suggests any intention on the part of Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... road and general import. In the case of some of these categories, such as "Local Government," "Education," "Water" "Agriculture" and "Land," the general word is amplified and explained by a number of examples or illustrations, some of which would probably on any construction have been held to fall under the more general word, while the inclusion of others might not be so obvious. Thus "Courts of Wards" and "treasure-trove" might not ordinarily have been regarded as included under "Land," if they had not been specifically mentioned in item 21. I think however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court. I am moved to make this observation because of a passage in the judgment of Iqbal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, to use a now familiar phrase; for that question does not arise, unless the Court is inquiring whether a particular Act falls within one Legislative List or another. In the present case, there is no suggestion of any competition between List I and List II, and if the Act does not fall within List II, (since no one has suggested that it falls within List III), it can only be an Act with respect to a subject-matter which has been overlooked or forgotten, and no Legislature in India could deal with it until the Governor-General had exercised his powers Under Section 104, Constitution Act. The validation of doubtful executive acts is not so unusual or extraordinary a thing that little surprise would be felt if Parliament had overlooked it, and it would take a great deal to persuade me that legislative power for the purpose has been denied to every Legislature, including the Central or Federal Legislature, in India. It is true that "validation of executive orders" or any entry even remotely analogous to it is not to be found in any of the three Lists ; but I am clear that legislation for that purpose must necessarily be regarded as subsidiary or ancillary to the power of leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es "in the absence of any specific provision to the contrary" and Section 9 excepts suits which expressly or impliedly are not cognizable by the Courts. 31. But, if, as I hold, the Regularization of Remissions Act was not beyond the competence of the Legislature to enact, the question still remains what is to be the effect of such a decision. The thekadars, the original defendants, entered no appearance in this Court, and the province was the only appellant. The province was not interested in any way in the original dispute between the plaintiffs and the defendants, save to uphold the validity of a particular law which had been challenged in the course of the proceedings. It is, in my opinion, impossible for this Court, at the instance of a third party who had no direct interest in the original suit, to order the High Court to vary the decree which it has given as between plaintiffs and defendants; and the difficulties which would arise if any other view were taken lend additional force to the doubts which I have already expressed on the right of the province to appeal at all. I think therefore that the appeal should be dismissed, and my brothers concur, though for diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for remission of rents previously made were not legally authorized and for injunctions and damages, came up in appeal before the High Court and was disposed of on 13th May 1937: Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158. The High Court held that the remissions, not being in accordance with Section 73, Agra Tenancy Act, were ultra vires and illegal, and Section 74 of that Act was not a bar to that suit; but the suit was dismissed on the ground that the then plaintiff should have sued his tenants ignoring the remissions. While the appeal in the present case was pending in the High Court, the impugned Act, viz., the U.P. Regularization of Remissions Act (Act 14 of 1938) came into force on 24th September 1938. The appeal came up before a Bench of two Judges who allowed time to the U.P. Advocate-General to consult his Government whether they would like to be heard on the question of the ultra vires nature of the impugned Act. Later, the question of law whether Act 14 of 1938, was or was not intra vires the Legislature, was referred to a Full Bench of three Judges for an authoritative pronouncement. Before the Full Bench the Advocate-General was allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication. In a suit between a landholder and his tenant, the Provincial Government cannot be considered a necessary party at all, as a proper decree can certainly be passed in their absence. But when in such a suit the validity of an Act of the Provincial Legislature is in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested in such an adjudication. In the present case, the Government were interested to this further extent that the effect of the High Court's ruling would be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act. Apparently, the defendants were too poor to think of preferring an appeal to the Federal Court; and the High Court thought that it would not only be convenient but quite fair to make the U. P. Government a respondent to enable it to secure a more authoritative pronouncement. As the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore suggested that the more appropriate course should be to direct the Court below to implead him and give him an opportunity to file a written statement. In the present case the impleading of the U. P. Government necessitated no retrial. Pachkauri v. Ram Khilawan ('14) 1 AIR 1914 All 293 was a peculiar case where a pro forma defendant, who had benefited under the first Court's decree; was not impleaded in the first appeal by the principal defendants and was sought to be impleaded in the second appeal by the same defendants long after limitation had expired. The High Court naturally declined to implead him. The earlier cases referred to therein were under the previous Code. I, therefore, find it difficult to hold that the High Court had no jurisdiction at all to implead the U. P. Government as a party to the appeal, particularly when no objection was taken on behalf of the plaintiffs on that occasion. If there were no such jurisdiction at all, then the Provincial Government cannot appeal. 37. Really, the question before us is not whether the U. P. Government were rightly impleaded. As regards that point, I myself may prefer a different course. The only question that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judges and not the other two, is that the Act is invalid because it is not with respect to any of the matters enumerated in List II, entries 2 and 21, or List III, entry 4, relied upon by the United Provinces. (3) The objections, which have been rejected by all the three learned Judges, are that: (a) the Act is void as it offends against Section 299, Government of India Act; and (b) it is void because it is repugnant to the existing Section 9, Civil P.C. 39. The respondents have pressed all these before us. The last two can be disposed of summarily. 40. Section 299 of the Act - The objection taken Under Section 299(3) of the Act that previous sanction of the Governor had not been obtained is completely met by Section 109(2), as assent was later given to it. 41. Section 9, Civil P.C.- Similarly, the objection that the Act bars a civil remedy and therefore conflicts with Section 9, Civil P.C., has no force. In the first place, even if there were repugnancy, the Act would Under Section 107(1) be void only to the extent of the repugnancy. Section 9, therefore, cannot stand in the way of its applicability to a revenue case. In the second place, Section 9 itself contains an exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act without repealing or altering the Act. 44. Although there can be no doubt that the main object of enacting Section 292 was to preserve the enforceability of the then existing laws, the language of Section 292 is certainly more emphatic than would have been ordinarily necessary. Section 130, Government of India Act, 1919, was a similar section couched in a simple language: "This repeal shall not affect the validity of any law, etc., etc." There is a saving provision in Section 129, British North America Act, 1867, but the words there are: All laws in force in Canada, Nova Scotia or New Brunswick at the Union . . . shall continue in Ontario, Quebec, Nova Scotia or New Brunswick, as if the Union had not been made; subject nevertheless to be repealed, abolished or altered . . . . 45. Similarly, Section 108, Commonwealth of Australia Constitution Act, 1900, though embodying a somewhat similar provision, has a different phraseology: Every law. . . . shall, subject to this Constitution, continue in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have . . . . powers of alteration and of rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm: "Notwithstanding the repeal. . . . all the law . . . shall continue in force . . . . until repealed, altered or amended, etc., etc." The former is a mere saving clause, pure and simple, its effect being to make it clear that the mere repeal of the previous Government of India Act shall not ipso facto put an end to the other laws previously in force. The latter is a little more than that, inasmuch as it affirmatively continues the other laws until such laws are hereafter altered, repealed or amended. In the former section, the word "repeal" related to the Constitutional Acts specified in the Schedule attached. In the latter section "repealed, etc.," refer to the other laws which are not repealed etc., by the Government of India Act, 1935, but may thereafter be repealed, etc. The effect certainly is that until altered, repealed or amended, such other laws do continue in force. The High Court was apparently impressed by the obvious departure from the phraseology of the old Section 130, as such a deliberate change is not ordinarily made without a special significance. 49. There is no doubt that the word "until" does ordinarily connote a poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it retrospective legislation right up to the date of the passing of any new Act, no matter how long after 1937 that may happen. If there are two possible interpretations, it is the duty of a Court to accept that one which is more reasonable, more consistent with ordinary practice and less likely to produce impracticable results. It must, therefore, be held that there is nothing in Section 292, Government of India Act, which debars the Central or a Provincial Legislature, which has altered, repealed or amended a previously existing law, from giving the new provision a retrospective effect from dates earlier than when the Act is passed. 51. One must not, however, overlook the important provision that the previously existing law must in any case continue in force, until altered, repealed or amended. Unless, therefore, there is an Act which actually alters, repeals, or amends it, that law must, in view of the provisions of Section 292, continue in force and cannot be considered as nonexistent. Those provisions not merely preserve such laws but keep them in force until actually altered, repealed or amended. 52. But it is not absolutely necessary that a statute must be repealed by expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation can cover a very wide range, it is quite possible to conceive of cases which are not comprised in any of the lists. It was with the consciousness of this possibility that provision as to residual power of legislation was made in Section 104 which assumes that there may be a matter with respect to which a law may be enacted, which is not enumerated in the lists of Schedule 7. But the lists are so comprehensive that apart from personal laws it would be only extremely rare cases which would not be covered by them at all. 56. Entry No. 21 of List II includes 'land, with rights therein, land tenures, including the relation of landlord and tenant, and the collection of rents,' besides other categories. This itself has a wide scope. If the impugned Act were in pith and substance one for remission of rent, it would be impossible to exclude it from this entry. Entry No. 2 of List II includes jurisdiction and powers of all Courts, with respect to any of the matters in that list. Accordingly, entries Nos. 2 and 21 read together would cover any restriction that may be imposed on the jurisdiction and powers of Courts, with respect to land, land tenures, relation of landlord and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 72, if remission of rent were granted by a Court on account of draught, hail, deposit of sand or other like calamity, then proportionate remission of revenue was to be ordered by the revenue authorities subsequently. Section 78(1) was intended to cover the converse case. When for any cause the Local Government, or any authority empowered by it, had in the first instance "remitted or suspended" whole or part of revenue, a Collector, or if so empowered by Government, a first class Assistant Collector, might order the remission or suspension of rents to an amount "which shall bear the same proportion to the whole of the rent payable in respect of the land as the revenue of which the payment has been so remitted or suspended." Under Sub-section (2), where revenue has been wholly or partly "released, compounded for or redeemed," remission or suspension of rent could be ordered by such authority and in accordance with such scale as the Local Government may by rule direct. This sub-section did not apply to the case where revenue had been "remitted or suspended." Sub-section (3) made this provision applicable to a thekadar. Section 74(1) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first limiting the amount to what may be ordered in the agricultural year in which the Act comes into force, and the other to the period of the settlement. The Act was to come into force when notified. 60. Interpretation - The intention of the Legislature has to be gathered from the language actually employed in the Act. For statutes which confer or take away legal rights, whether public or private, or alter the jurisdiction of Courts of law, express and unambiguous words are necessary. No loopholes should be left for escape. The order of remission dealt with by the U. P. Act is not one necessarily within the four corners of Section 73, nor is there any specific reference to that section. The language actually used can suggest that the section was intended to prevent the order of the Provincial Government, or any authority empowered by it in that behalf, from being questioned. In the main section, the word order is used only when referring to "the order of the Provincial Government or any authority empowered by it in that behalf". This is followed immediately by the words "such order etc.". The word "such" ordinarily means 'aforementioned' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, apart from its form, is to regularize and validate irregular and invalid orders as to remissions of rent passed by the provincial executive. There is, therefore, no escape from the conclusion that by the impugned Act, validity is given to wholly arbitrary and invalid orders already passed or to be passed in future by the executive authorities. 63. He has again remarked: Now a scrutiny of the impugned Act as a whole leads to the irresistable conclusion that it was designed to, and does in substance, though not in form, validate the invalid orders as to remissions passed by the provincial executive . . . . In short the impugned Act, though disguised as an enactment regulating procedure, is, in fact and substance, an enactment regularizing illegal executive orders. It is a disguised and colourable legislation intended to serve the purpose indicated above, and this is not permissible. 64. Bajpai J. has said: The Act pretends to deal with procedure only for it attempts to regularize the remissions of rent and says that certain orders of the Provincial Government shall not be called in question in any civil or revenue Court, but this is only a masquerade and the real purport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er would be operative irrespective of the extent of the remission, even up to the remission of the entire rent, irrespective of the period of remission, as it can be continued even up to the expiry of the settlement, and also irrespective of the amount of remission of revenue, even to the extent of there being no remission of revenue at all. If it is a valid Act, it enabled the Provincial Government to issue an order directing Collectors to remit to all the tenants the whole of the rents for the entire province for the reminder of the period of the settlement, while not remitting any revenue at all. This would mean that landholders would be compelled to pay revenue to Government, although they would be prevented from realizing any rents at all from their tenants. For all practical purposes, this would amount to an extinction of the relation of landlord and tenant for the time being. Such a measure is highly inconceivable, and yet it is not beyond all possibility that a Government, bent on abolishing zamindari rights, may resort to it under the authority of this section. In spite of the confiscatory powers exercised by the Government, no remedy, whatsoever would be open to the aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclosed by its language and the effect which it would have in its actual operation. 69. Their Lordships of the Privy Council have repeatedly stressed the fact that we must look to the pith and substance of the Act in order to ascertain its true nature and character. As laid down in Russel v. Reg (1882) 7 AC 829, the true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class of subject to which it really belongs. 70. In Attorney-General for Canada v. Attorney-General for Ontario ('37) 24 AIR 1937 PC 89 at p. 367, Lord Atkin laid down: In other words, Dominion legislation, even though it deals with Dominion property, may yet be so framed as to invade rights within the province, or encroach upon the classes of subjects which are reserved to provincial competence. It is not necessary that it should be a colourable device, or a pretence. If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the province, or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r instance when some mistake in the calculation of the ratio is made or there has been any other defect of procedure, then Section 2 of the impugned Act would certainly be with respect to "the collection of rents," so far as such orders are concerned, and it would be intra vires. 75. If the order of remission, which the impugned Act attempts to make unquestionable, was in fact wholly ultra vires and totally void, issued by an authority not at all competent to do so, with a view not only to benefit the tenants but also to protect Government officers against any suit for damages that may be brought on account of their illegal orders, or protect the Government in a suit brought against it Under Section 183, U. P. Land Revenue Act, (3 of 1926), (assuming that the suggestion made in Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158 was correct), then the U. P. Act which merely prevents such an order from being questioned in a civil or revenue Court, would not be so much with respect to "collection of rents," as with respect to "validating void orders." There is a clear distinction between challenging the legality of an order in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of landlord and tenant" or the "collection of rents," but is also with respect to conferring on the Provincial Government very extensive powers of interference with the legal rights of landholders in their lands. But the category of "land" in entry No. 21 of List II includes 'rights in and over land,' and is also within the exclusive authority of the Provincial Legislature. Even if by any chance the impugned Act were indirectly with respect to assessment of revenue, it will fall within entry No. 39, and be still in List II. We are not concerned with any unfairness or injustice of the legislation, nor with any injury that may be caused to private rights so long as there is authority to pass it. The only protection available, even though of a limited character, is that contained in Section 299(3), Government of India Act, requiring a previous sanction of the Governor, and if that is gone then a representation that assent should be withheld. It would be too late to object afterwards. The want of a previous sanction of the Governor in the present case is cured by the assent given to the Act subsequently. In view of the fresh tenancy legislation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terers (1909) 1 KB 310, Section 4, Trade Disputes Act, 1906, was interpreted as not preventing a Court from disposing of an action begun before the passing of that Act, although Section 4 had enacted: "an action for tort against a trade union shall not be entertained by any Court." Again in Beadling v. Goll (1922) 39 TLR 128, the Gaming Act, 1922, which had repealed a section of an earlier Gaming Act, was held by the Court of Appeal not to operate to put an end to the pending action, even though it had enacted that "no action for the recovery of money under the said section shall be entertained by any Court." In Henshall v. Porter (1923) 2 KB 193, the Court went further and held that the Gaming Act of 1922 did not prevent the bringing of an action under the repealed section of the older Act, even after the date when the Repealing Act came into force in respect of a cause of action which had arisen before that date. In Thistleton v. Frewer (1862) 31 LJ Ex 230,, followed in subsequent cases, it was held that Section 32, Medical Act, 1858 (C. 90) did not apply to an action for medical services begun before that date, but tried after it, although the section had ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Bihar Money-lenders Act (7 of 1939) which came into force after the filing of the appeal. But Section 13 expressly said: "When an application is made before or after the commencement of this Act, etc." Since then Section 7 of the new Act has been consistently applied in all the Bihar cases, even in suits pending in appeal. But here again Section 7 contains the words, in any suit brought by a money-lender . . . . before or after the commencement of this Act in respect of a loan advanced before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit, which in express terms refer to a pending suit.. In Mukherjee v. M st. Ram Ratan Kuer ('36) 23 AIR 1936 PC 49 the new Bihar Act had express words to the effect that all transactions from 1910 shall be deemed to be valid, which if applicable to the appeal would take away the appellant's right altogether. Their Lordships held that in view of that enactment the appeal should not be allowed. In Quilter v. Mapleson (1882) 9 QBD 672, a new Act had come into force, Section 14 of which made the section applicable to old leases as well, and which clearly deprived the landl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period anterior to the date of its enactment, a period during which another valid Act was in force, it contravened the provisions of Section 292, Constitution Act. One of the learned Judges (Iqbal Ahmad J.) based his conclusion on an additional ground viz., that the impugned legislation was not one made "with respect to any of the matters enumerated in List II" of Schedule 7 to the Constitution Act nor even one with respect to one of those enumerated in the List III. The circumstances that led up to the impugned legislation and to the attack on its legality have been stated in the judgments just delivered. Reference has also there been made to the stage at which the Government of the United Provinces came to be impleaded as a party to this litigation and to the fact that this appeal has been preferred not by the original defendant but by the Government of the United Provinces. 86. At the hearing of this appeal, the learned counsel for the plaintiffs-respondents took a preliminary objection to the maintainability of the appeal by the Government of the United Provinces. He contended that there was no decree in this case against that Government, that the Government was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 87. I am free to admit the force of some of those contentions. The circumstance that some of the observations in Prayaga Doss Jee Varu v. Board of Commissioners for Hindu Religious Endowments, Madras ('26) 13 AIR 1926 Mad 836, have been doubted by another learned Judge of the same Court in Secretary of State v. Murugesa Mudaliar ('29) 16 AIR 1929 Mad 443 does not seem to me to carry Dr. Asthana very far. Again, it is true that in Mt. Jaimala Kunwar v. Collector of Saharanpur ('34) 21 AIR 1934 All 4, the Court observed that the power to add parties had not always been limited to cases falling within the language of Order 1, Rule 10, Civil P.C.; but an examination of the facts of that case and of the decisions referred to in that judgment will show that in these cases, the person added was not really a third party but one who on some recognized principle would be bound by the result of the litigation. In Moser v. Morsden (1892)1 Ch 487, the Court of appeal (in reversal of the trial Court's order) dismissed the application of the third party, even while recognizing that that party might be "indirectly" affected by the result of the case. The allegation mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil Courts. And it cannot even be said that a well-defined course of practice has grown up as to the cases or circumstances in which the Advocate-General is entitled to intervene or to be impleaded as a party, apart from his representing the Crown or the Secretary of State in suits in which either the Crown or the Secretary of State happens to be a party. Even in England, the distinction between cases in which the Attorney-General figures as a party and cases in which he only intervenes or is merely heard does not appear to be very clearly marked. 89. The Indian Procedure Code does not contemplate the Advocate-General "intervening" without himself or the Secretary of State being a party to the suit. The result is that even in proceedings similar to those in which the Attorney-General will merely intervene according to the English or the Dominion practice, the same result has to be attained in this country by impleading the Government as a party. The new Constitution Act (taken with the adaptation of Section79, Civil P.C.) has introduced a further complication as a result of the provision that in suits by or against the Crown, the Governor-General should be named as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the inter-pretation of the treaty was a matter which concerned the Crown but also on the ground that the question raised was one "which may affect a large section of the British public". 91. I find it difficult to say whether and if so how the same course could have been adopted by a Court governed by the Civil Procedure Code in this country and whether according to the processual law obtaining in this country the Government or the Advocate-General will be the proper party to be impleaded, if the principle of the above decision is to be followed here. A decision of a learned Judge of the Calcutta High Court seems apposite here. In the goods of Bholanath Pal ('31) 18 AIR 1931 Cal 580 the Advocate-General sought to intervene on behalf of the Secretary of State in a succession certificate proceeding with a view to contend that the High Court on its original side could only grant letters of administration but not a succession certificate. It is possible to suggest that the interests of Government revenue were concerned here, because on the issue of letters of administration succession duty might be payable on the whole estate whereas a succession certificate could b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge intimated that but for the opposition of the plaintiff he might have directed the addition of the Secretary of State as a party. 93. To the suggestion that the expression "any party" in Section 205(2), Constitution Act, must be limited on the lines on which the generality of the language of Section 96, Civil P.C., has been limited by decisions, the answer is furnished by the difference in language between the two provisions. Section 96, Civil P.C., does not in terms say who is entitled to prefer, an appeal. But according to the Code it is the "decree" that has to be appealed against. The decisions have therefore laid it down as a matter of inference that a party adversely affected by the decree is the only person entitled to appeal. It was however realised that a rule so limited might cause hardship in some cases. An extension was therefore made by conceding a right of appeal to a party who might be bound by a finding in the judgment, though there was no decree against him: see the cases reviewed in Harachandra Das v. Bholanath Das ('35) 62 Cal 701 Section 205, Constitution Act, provides for an appeal ' from any judgment, decree or final order" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been impleaded as a party with a view to give them a hearing, it seems to me that the Court would fail to give full effect to the language of Section 205(2), Constitution Act, if it should hold that notwithstanding such joinder as a party, the Advocate-General or the Government had no right to prefer an appeal. In proceedings relating to charities, it has been held that where the Advocate-General is a party, he is the proper person to appeal against an adverse judgment: see Jan Mahomed v. Syed Nurudin ('07) 32 Bom 155 following Att.-Gen. v. Wright (1841) 3 Beav 447, (see also In re Rai Rukhiabai ('37) 24 AIR 1937 Bom 63) where the learned Judges took the additional ground that the beneficiary, though he was heard by counsel, was not to be treated as a party. I see no reason why the principle should be different in a case like the present. Neither in the one case nor in the other has the Advocate-General or the Crown or the State any pecuniary or proprietary interest if that is to be the sole test. The right of appeal being a creature of the statute, the right of one who is within the terms of the statute cannot, it seems to me, reasonably be denied when even on the bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier Government of India Act, but as also fixing a time-limit up to which the operation of such law should not be disturbed by anything contained in any enactment that may come to be passed by any of the Legislatures in British India. It was conceded before us and it was recognized before the High Court that a provision like Section 292 is usually inserted in similar Acts, to indicate that the repeal of the parent Act shall not be deemed to have repealed all the laws passed under that Act. (Compare Section 108, Commonwealth of Australia Constitution Act, Section 129, British North America Act and Section 135, Union of South Africa Act). But laying special stress on the words "until altered or repealed or amended" the learned counsel for the plaintiffs desired to read Section 292 as containing a direction by Parliament that the law then in force must in any event continue up to a specified date, namely, the date of its alteration, repeal or amendment by a later Act of the Legislatures in India; and, it was sought to be inferred therefrom that no later Act of such Legislatures can by words of retrospective operation antedate its effect so as to affect rights acquired under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force subject to repeal or amendment by later legislation and the statement that it shall continue in force until repealed or amended by later legislation. The Parliament might have had some reason or motive for denying to the Indian Legislatures the power of retrospective legislation with reference to pre-existing laws seems to me to rest on mere speculation and is not a fair inference from the language used in the section. 98. In the judgments delivered by the learned) Judges of the Full Bench of the Allahabad High Court, I find it stated in some places that Section 2 of the impugned Act in effect repealed Section 73 of the Act of 1926 with retrospective effect or that the provisions of the two Acts were diametrically opposed to each other. With all respect, I find some difficulty in following this view. It is true that; the remission which the impugned Act sought to regularise was not one made in conformity with the provisions of Section 73 of the Act of 1926. But such regularisation would only mean the addition of a new head of remission; it may amount to an alteration, or amendment of the old Act, but will not necessarily involve a repeal of Section 73 of that Act. The co-exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond part, namely "procedure in rent and revenue Courts" can scarcely be held to authorise legislation which in effect dealt with substantive rights, by precluding the landlord from objecting to a remission which had been improperly made under executive authority. 101. Both in the High Court and in the arguments before us, great stress has been laid upon the way in which Section 2 of the impugned Act had been worded and it has been said that all that the Act did was to validate arbitrary executive orders. This view does not seem to me to take the whole of Section 2 into account and give due effect to the substance of the enactment. The Preamble recites the necessity for regularising certain remissions of rent and even if we are to exclude the Preamble from our consideration, Section 2 in terms refers to the fact of remission of rent having been made under orders of the Provincial Government by reason of the fall in the prices of agricultural produce which took place before the commencement of the Act. The succeeding words can, as a matter of grammar only, mean that the order of remission thus passed shall not be called in question. There can thus be little doubt that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive than the words "relating to." [Cf. observations in The King v. Kidman (1915) 20 Com LR 425 at p. 449; Wynes: Legislative and Executive Powers in Australia, at pages 28, 29.] The significance of these expressions may become important in a case where the impugned legislation contains a number of provisions relating to different matters and a question arises as to whether one set of provisions can be described as "passed in respect of a forbidden subject" or can be considered as only incidentally affecting such a subject while forming part of an Act which in the main deals with an authorised subject: see the antithesis indicated by Lord Atkin in Gallagher v. Lynn (1937) AC 863, with reference to the use of the expression "in respect of" in Section 4, Government of Ireland Act. In the present case, the Act in question deals with, only one matter and the distinction between what is "substantial" and what is only "incidental" does not arise for consideration. 104. In coming to the conclusion that the impugned Act did not fall within any of the heads enumerated in item 21 of List II, Iqbal Ahmad J., gave it as one of his reasons that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s? According to my reasoning in the earlier portion of this judgment, the United Provinces Government was interested only in the general question and had no other interest in the particular litigation. In In the goods of Bholanath Pal ('31) 18 AIR 1931 Cal 580, the learned Judge limited the Advocate-General's argument to the question of jurisdiction which alone, he considered was one of public importance. The contesting defendant in the present case does not seem to me to be entitled to ask for a modification of the decree on the principle of Order 41, Rule 4, Civil P.C., because there is no "decree" in this case against the Government and hence there can be no question of a decree proceeding "on a ground common to all the defendants." The anomalous situation of a decree passed against several defendants on the same ground being reversed as against some and being allowed to stand as against the rest will not arise in this case. Further the power recognized by this rule as also the one referred to in Order 41, Rule 33, Civil P.C., is only discretionary and the present case is not in my opinion one in which any discretionary power ought to be exercised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to pending actions, it is common to find the Legislature using language expressly referring to pending actions. But it will be seen from the decision of the Privy Council in ('36) 23 AIR 1936 PC 49, that it is not necessary that the intention of the Legislature should always be expressed in that particular form. In that case, the enactment validated all transactions subsequent to a specified date and their Lordships held that the new law would apply to a transaction of that kind even if it had become the subject of an action prior to the date of the passing of the Act; and in those circumstances, they reversed the usual presumption and looked to see whether there was any reservation, in the Act in respect of pending actions. 107. The question of the applicability of the impugned Act to pending actions is likely to arise only in a few cases and whatever may be its importance to the parties to those cases, it does not seem to me to be a matter in which the United Provinces Government can be said to be interested. As I have already indicated that as between the original parties to this suit there is no justification for this Court's interference with the decree of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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