TMI Blog1954 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... Certain other pleas as to the legality of the Ordinance were taken in the petition, but were given up .at the time of arguments. It was, however, argued that on the merits also, there was an error apparent on the lace of the record, and the Board of Revenue had exercised a jurisdiction contrary to the .express provisions of Section 145, Cr. P. C., and that respondent No. 2, Bhomla, should have been directed by the Board to file a regular suit, as in certain earlier proceedings under Section 145, Cr. p. C., the Sub-Divisional Magistrate had declared the petitioner Sadaria to be in lawful possession of the well, and entitled to remain in such possession unless dispossessed according to law. 3. The Ordinance No. 9 of 1949 was issued by the Rajpramukh on 21-6-1949. The State of Rajas-than was formed on 7-4-1949, and by Article 10(3) of the Covenant, the Rajpramukh was authorised to make and promulgate Ordinances for the peace and good government of the State of Rajasthan. The Ordinance No. 9 of 1949 was enacted in exercise of the said powers, and was, therefore, a perfectly valid piece of legislation on the date it was enacted. 4. The next contention is that its exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinance will automatically come to an end at the expiry of two years. On the date of promulgation of the Ordinance (21-6-1949), the Rajpramukh was the sole legislative authority, and there are no words to signify that the power to extend was delegated to some authority and rightly so, because the Rajpramukh did not require any delegation by himself for he was already vested with legislative powers under the Covenant. The language of the notification also does not show that it was issued under any delegated power. The said notification runs thus: In pursuance of Sub-section (3) of Section 1 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. 9 of 1949), His Highness .the Rajpramukh is pleased to extend the period for which the said Ordinance shall remain in force for a further term of two years with effect from 21-6-1951. The words in pursuance of do not mean what would be conveyed by in exercise of powers conferred by . The words in pursuance of have several meanings, and the most appropriate in the present case would be 'conformable to' or in accordance with', and indicate that as envisaged by Sub-section (3) of Section 1 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icials interested in this legislation. These may kindly be sent to the Chairman, Revenue Board, before the end of July. The interpretation made by the Government cannot be accepted, if it is otherwise incorrect, Various enactments were referred to at the bar, in which delegation of power was made and in all of them there were clear words authorising the doing of a particular act by the delegated authority. Learned counsel for the petitioner relied on the language of an English Act, the special Areas (Development and Improvement) Act, 1934 (25 Geo. 5, Chap. I); but the illustration, instead of assisting learned counsel, goes directly against his contention. Section 8(3) of that Act was as follows : This Act shall continue in force until the thirty-first day of March, nineteen hundred and thirty-seven, and no longer, unless Parliament otherwise determines. Parliament, according to the British Constitution, is supreme in its legislative functions, and there could not be any delegation of power by Parliament to Parliament. What the language purported to show was that the law was enacted by the Parliament so as to continue in force for a period of 7 years, unless the Parlia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) The provisions of Arts. 174 to 189 (both inclusive), 193 to 199 (both inclusive), the first proviso, to Article 200, the proviso to Article 201, Clauses (1) and (2) and Sub-clause (b) of Clause (3) of Article 202 Articles 203, to 212 (both inclusive) shall not apply to any State which has no House of the Legislature but Clauses (2) and (3) shall apply in relation to such States in place of the said provisions. (2) The Rajpramukh or other authority exercising legislative powers in any such State as-aforesaid under Article 385 shall prepare such Eills-as may be deemed necessary, and the Rajpramukh shall declare as respects any Bill so prepared either that he assents to the Bill or that he withholds assent therefrom or that he reserves it for the consideration of the President. (3) Any expenditure from the Consolidated Fund of any such State incurred after the 31st day of March, 1950, whether expenditure charged by this Constitution on such Fund or not, shall be deemed to have been duly authorised if it is included in an Appropriation Act made under Clause (2) providing for the appropriation out of the Consolidated Fund of the State of all moneys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice, and any other form which may unmistakably indicate that the authority having the power to legislate had applied its mind and ordered the extension of the law in unmistakable terms is, in my opinion, as good as would be effected by the enactment of a Continuance of Laws Act. 13. It has been observed by Craies at page 19 of his learned treatise on Statute Law, 4th Edn.: The Legislature, when they intend to pass, to continue, or to repeal a law, are not bound to use any precise form of words. Consequently we find that at different periods of English history statutes have been drawn in different ways and according to different methods. Again, quoting from -- 'Salmon v. Duncombe, (1886) 11 AC 627 (F). It is a very serious matter to hold that, where the' intention of a statute is clear, it shall be reduced to a nullity by the draftsman's unskil fulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, Out their Lordships hold that nothing can justify it except necessity, or the absolute intractability of the language used. The following passage from May's Parliamentary .Practice, 14th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Tenants Protection Ordinance are to be applied in supersession of' all other laws, including the Code of Criminal Procedure, the order of the Board of Revenue on the finding arrived at cannot be reasonably assailed. 16. In my opinion, therefore, the petition has no ibrce, and is accordingly dismissed. In the special circumstances of the case, each party will bear its own costs. Sharma, J. 17. 1 have read the judgment of my learned brother Bapna J. The important question involved-in the case is whether the Notification dated 14-6-1951 (hereinafter to be referred to as the Notification ) issued in the name of the Rajpramukh of Rajasthan and published in the Rajasthan Gazette dated 18-6-1951 could validly extend the Rajasthan (Protection of Tenants) Ordinance No. 9 of 1949 which will, hereinafter be referred to as the Ordinance , for a further period of two years. The Ordinance was promulgated by the Rajpramukh on 21-6-1949 in exercise of his powers conferred by CI. (3) of Art. X of the Covenant of the United State of Rajasthan. This Article has three clauses although we are directly concerned with Clause (3) alone it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remain in force for a further term of two years with effect from 21-6-1951. By Order of His Highness the Rajpramukh, S. W. Shiveshwarkar, Chief Secretary to Government 19. The petitioner's case is that the power of extension was a legislative power and it could not be delegated by the legislative authority to any other authority. It has, therefore, been argued that under the delegated authority given by Subsection (3) of Section 1 of the Ordinance, the Rajpramukh as executive head of Rajasthan could not extend the duration of the Ordinance. Further, it has been argued that for exercising his legislative authority, the Rajpramukh had to follow the provisions of Article 212-A (2) of the Constitution which has been inserted therein by the Constitution (Removal of Difficulties) Order, No. XX of 1950. This Sub-clause (2) of Article 212-A runs as follows: The Rajpramukh or other authority exercising legislative powers in any such State as aforesaid under Article 385 shall prepare such Bills as may be deemed necessary, and the Rajpramukh shall declare as respects any Bill so prepared either that he assents to the Bill or that he withholds assent there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to any other authority, but that these provisions are capable of interpretation that the Rajpramukh who was the legislative authority intimated to the public that he as legislative head might extend the Ordinance if he so liked. So far therefore, I have no cause of disagreement with the view of my learned brother. 22. Further question, however, that arises for determination is whether the Rajpramukh when he issued the Notification exercised his legislative powers or only his executive powers. It is clear that the Rajpramukh had both the capacities at that time i.e., legislative as well as executive. He had the legislative capacity by virtue of Article 10 (3) of the Covenant of the United State of Rajasthan read with Article 385 of the Constitution of India. This Article 385 runs as follows: Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench on a question of law. If a Division Bench does not accepb as correct the decision on a question of law of another Division Bench, the only right and proper course to adopt is to refer the matter to a Full Bench for which rules of High Court provide. In a Full Bench decision of Lahore High Court in the case of -- 'Ajudhia Pershad v. Sham Sunder', AIR 1947 Lah 13 (L), it was held that No Division Bench of a High Court, even if it disagreed with the decision of another Division Bench of that High Court would be competent to overrule it. A Division Bench of Bombay High Court in the case of -- 'Udhavji Anandji v. Bapudas Ramdas', AIR 1950 Bom 94 (M) held that If a Divisional Bench decides a question of law, it is binding on subsequent Benches unless it is possible to distinguish the decision on the facts of that particular case. The same principle was enunciated by a Division Bench of this very High Court in the case of --'Lala v. State', AIR 1951 Raj 61 (N), wherein it was observed that One Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In view of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication in the State Gazette. 2. It was expected that Tenancy Laws would be enacted in the meanwhile and there would be no further need for extending the duration of the Ordinance. But tenancy legislation is still under preparation and it will take some time before legislation on the subject is submitted to His Highness for his assent. In the meanwhile, the Ordinance is about to expire and unless its duration is extended, there will be left a vacuum. The very fact that the Ordinance is going to expire soon has given rise to a number of complaints that landlords have begun to dispossess tenants with a view to excluding them from cultivation of the next crop. It is, therefore, desirable that the term of the Ordinance should be extended by two years or till it is substituted by a Tenancy Act, whichever is earlier. 3. The above proposal was approved by the Council of Ministers in the Cabinet meeting held on 12-5-1951. His Highness the Rajpramukh's approval is now solicited for the same. On receipt of His Highness's approval, the draft notification placed below will be issued. The Notification will extend the life of the Ordinance by two years. If a Tenancy A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s State, Bills, Acts and Ordinances have been appearing in the same form here. So far as executive Notifications are concerned, they are after the pattern of the executive Notifications of the Government of India and different Provinces which have now become Part 'A' States. 27. By Article 166 of the Constitution of India' which finds place in Chapter II with the heading The Executive , all executive action of the Government of a State shall be expressed to be taken in the name of the Governor and orders other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. In Part 'B' States, all executive actions of the Government of these States shall be expressed to be taken in the name of the Rajpramukh. The Rajpramukh of Rajasthan was the legislative as well as the executive authority in the State when the Notification was issued. It will be seen that all executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance for a further period by issuing an executive notification in the Gazette and that is why the Notification was issued in the name of the Rajpramukh, exactly in the form in which executive notifications are issued. Under the circumstances, I have great hesitation in accepting the arguments of the learned Advocate General that the issuing of the Notification in this case was a legislative act of the Rajpramukh and with great respect, I find myself unable to agree with the views of my learned brother on this point. 30. My learned brother has quoted an extract from the case of (1886) 11 AC 627 (P)' appearing on page 102 of Craies on Statute Law 4th Edn. I have read that case and find that the question of interpretation involved therein was whether certain words appearing in a certain section should be considered to be surplusage, or the object of the Act should be allowed to be defeated by giving them their literal meaning. It was in that connection that the remark quoted by my learned brother was made. Of course if a particular document is undoubtedly a legislative enactment and if certain words are used in a certain part of it which defeat the very object of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A and the fact that instead of saying that it received the assent of the Rajpramukh on a particular date, it was said that the Act was made by the Rajpramukh did not invalidate the Act on the ground that it did not receive the assent of the Rajpramukh. Of course the objection raised in that case was very technical and I may say with respect that it was rightly rejected, but in that case the Act emerged in the shape of an Act and the Bill which was put up before the Rajpramukh for his assent was also prepared in the form of a Bill. In the present case, the instrument which is relied upon as an Act is in the shape of an executive notification out and out and all that was submitted to the Rajpramukh was a draft of this Notification. The decision in -- 'Raj Sahiban Shersingh's case (O)' therefore, gives no support_ to the contention of the learned Advocate General in this case. 32. After having fully considered the arguments of both the sides and having had the advantage of reading the judgment of my learned brother in this case and also the decision of the Division Bench of this Court in the case of -- 'Sukh Pal v. Rajasthan Board of Revenue (G)' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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