1. This is a reference made to this Court by the learned Civil Judge, Senior Division, Baroda, under the proviso to Section 113, Civil P. C. which has been added by Act 24 of 1951. The learned Judge was satisfied that fhe case in which he has made the present reference involves the decision of the question as to the validity of the Baroda Ordinance No. 11 of 1949, and he has added that he was himself disposed to take the view that the Ordinance was invalid. That is why he has made the present reference.
2. The Ordinance in question is Ordinance No. 11 of 1949 and it was promulgated by the Maharaja of Baroda on 30-4-1949. The object of promulgating this Ordinance, as mentioned in the Ordinance itself, was to give protection to agriculturists who needed immediate relief on account of the emergency which had arisen owing to scarcity of rain. The duration of the Ordinance was limited for one year from the date of its promulgation. The Ordinance contained two operative sections.
Section 1 of this Ordinance provided that, notwithstanding anything contained in Sub-section (2) of Section. 64 of the 'Jamin Mahesul Nibhandh' (Baroda Land Revenue Code), no holder of land or any person on his behalf shall be entitled to take possession of the land from the tenant. Section 2 of the Ordinance provided for the restoration of possession to the tenant from the landlord in cases where the landlord has dispossessed the tenant. The benefit of this Section was confined to the tenants who had cultivated the lands in the monsoon of the year 2004 Samvat and who had been deprived of their possession otherwise than in execution of a decree of a civil Court.
The Ordinance further directed that the 'vahivatdar' should arrange to get possession from the landlord if he is not willing to part with it in favour of the tenant. Section 3 of the Ordinance provides for punishment for contravention of the provisions of the ordinance.
3. It appears that the plaintiff who has instituted the present suit No. 757 of 1948-49 was dispossessed by the 'vahivatdar' by virtue of the provisions of the said Ordinance and the tenant was put in possession, These orders were passed on an application made by the tenant invoking the protection of the Ordinance. In the present suit, the landlord claims to recover possession of the suit lands, and the principal ground on which he makes the claim is based on his contention that Ordinance No. 11 of 1949, under which he has been dispossessed, was 'ultra vires' the authority of the Maharaja of Baroda. If this plea succeeds, the plaintiff would be entitled to recover the possession of his lands.
That is how the principal issue which the learned Judge has to try in this suit is whether the Ordinance impugned is 'ultra vires' of the Baroda State. Since the learned Judge was himself disposed to take the view that the Ordinance was 'ultra vires', he has made the present reference to us for the decision of the said question.
4. Before dealing with this question, it would be convenient to refer to the development of legislation relevant on this point. On 1-2-1940, the Government of Baroda Act, No. 6 of 1940, was passed. The Proclamation which runs as a Preamble to this Act announced the intention of the Maharaja of Baroda to associate his subjects with himself in the governance of the State. It was with the object of taking a further step in the policy of associating the people of the State with the administration that the Maharaja has directed that the said Act should be promulgated from the date of this Proclamation. The Act itself consists of five parts.
Part I is introductory and has four sections; Part II deals with the Executive; Part III deals with the Legislature; Part IV deals with the Judicature and Part V with miscellaneous matters. As from the date of this Proclamation, the Executive Council of the Maharaja was reconstituted. It was to consist of the Dewan and three other members. A non-official member was appointed to the Council during the lifetime of the Dhara Sabha and the position of this non-official member was to be exactly the same as that of the other members of the Executive Council. In his Proclamation, the Maharaja earnestly invited the co-operation of his subjects and he expressed his hope that the greatly increased opportunities for service which the new constitution offered to them would be utilised with a full sense of responsibility.
It would thus be noticed that the object in issuing the Proclamation and promulgating the Government of Baroda Act was that the Maharaja wanted to make a further advance in the constitutional experiment of associating his subjects to a larger extent in the matter of the governance of the State.
5.It would be necessary to consider Sections 3 and 4 inPart I ofthis Act in detailbecause thedecision ofthe questionwhich hasbeen referred to usby the learnedJudgedepends substantiallyupon theproper construction of these sections. Section 3 lays down that,
'The territories for the time being vested in HisHighnessare governedby and inthe name of His Highness, and all rights, authority and jurisdiction which appertain or are incidentalto thegovernment ofsuch territories are exercisable by His Highness, except in so far as may be otherwiseprovided by or under this Act, or as may be otherwise directed by His Highness.'
Section 4 provides that,
'Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority.'
It may be convenient at this stage to refer to the material provisions of the Act in regard to the Legislature. The Legislature of the State was to consist of His Highness and a Chamber to be known as the Dhara Sabha. In Section.17 are mentioned what may be adequately described as 'Reserved Subjects'. On these subjects the Dhara Sabha had no authority to legislate. Section 18 refers to the measures which could be passed by the Dhara Sabha only with the previous sanction of His Highness, The result of these two sections obviously is to confer upon the Dhara Sabha jurisdiction to deal with matters not falling either under Section 17 or under Section 18. It is common ground that the regulation of the relations between landlords and tenants and their respective rights and liabilities is outside the provisions of Sections 17 and 18. In other words, the Dhara Sabha had full jurisdiction to legislate on the topic on which the impugned Ordinance has been issued.
Section 27 provides for the legislative procedure. When a Bill is passed by the Dhara Sabha, authority is given to the Dewan whereby he may, instead of presenting it for the assent of His Highness, return it to the Dhara Sabha for reconsideration in whole or in part, together with any amendments which he may recommend. I should have stated that the basis of this Act is that all laws passed by the Dhara Sabha would come into force after they receive the assent of His Highness. If a Bill is passed by the Dhara Sabha and is not returned to it by the Dewan for reconsideration, it is to be submitted to His Highness for his assent, and there is power in His Highness either to declare that he assents to the Bill or that be withholds his assent therefrom.
Section 27(b) expressly confers upon His Highness the power to veto a Bill which has been duly passed by the Dhara Sabha. After the Bill is passed and assented, it has to be published in the Adnyapatrika and it comes into force as from the date of the publication. Section 27(d) is somewhat important. If a Bill is rejected at any stage by the Dhara Sabha, the Dewan is given the power to certify that the Bill is an emergent measure, and with this certificate it has to be placed before the Dhara Sabha. If the Dhara Sabha refuses to reconsider its decision, the Dewan may submit the Bill to His Highness who may enact it as an emergent measure.
These sections emphasize the fact that, though an important step was taken in associating the public of Baroda with the Government of Baroda, the change brought about by the Act fell far short of full responsible government. Certain topics were excluded from the jurisdiction of the Dhara Sabha altogether under Section 17. On certain topics the Dhara Sabha was given jurisdiction to legislate only with the previous sanction of His Highness; and even in regard to the topics falling within the jurisdiction of the Dhara Sabha, power was reserved to the Dewan to ask the Dhara Sabha to reconsider its decisions and this power was so large that, if a Bill was rejected by the Dhara Sabha, it was open to the Dewan to certify the Bill as an emergent measure and to obtain the sanction of His Highness. If His Highness sanctioned such an emergent measure, it would be enacted as an emergent measure and would have the force of law.
6. After this Act was in force for nearly eight years. His Highness issued a Proclamation on 9-1-1948, by which he expressed his intention to set up a Constituent Assembly in further pursuance of the policy on which the Government of Baroda Act itself was based. It is unnecessary to consider the relevant features of the Constituent Assembly as it was then proposed to be set up. It would be relevant only to mention the fact that from the purview of the Constituent Assembly which was then proposed to be set up certain topics were intended to be excluded and they are mentioned in Schedule II to the Proclamation. Paragraph 1 in Schedule II refers to the Ruler and his prerogatives, amongst other things. In other words, if the Constituent Assembly had been set up, as it was then proposed, it would not have been open To the said Assembly to consider any question relating to the Ruler and his prerogatives. With the other paragraphs in Schedule. II we are not directly concerned in this case.
7. Events were apparently moving fast and the Proclamation which was issued on 9-1-1948, was followed by another Proclamation issued on 29-8-1948. By this Proclamation, His Highness conferred upon the Constituent Assembly ordered to be set up jurisdiction to deal with matters which were originally excluded. These matters, as I have already mentioned, were set out in Schedule. II to the earlier Proclamation. This Proclamation pointed out that certain unfortunate difficulties had arisen in the implementation of the declarations made by His Highness in the Proclamation, of 9-1-1948, and it added that His Highness was determined, not only to remove those difficulties, but also to provide adequate safeguards against the emergence of any difficulties in future. Then His Highness proceeded to make important announcements.
It is with the second announcement contained in this Proclamation that we are concerned. The second paragraph of this Proclamation says that, pending the promulgation of the new Constitution to be framed by the Constitution-framing Assembly, the Executive Council of His Highness shall consist of a Dewan who enjoyed the confidence of a majority of the Dhara Sabha, and such other members as will be appointed by His Highness on the recommendation of the Dewan; and that the entire executive authority of the State shall vest in the Executive Council. Then this paragraph goes on to add that the Government of Baroda Act shall be deemed to be amended accordingly, and in particular the words 'or as may be otherwise directed by His Highness' occurring in Section 3 and the whole of Section 4 of the said Act shall be deemed to be omitted. It is this last portion of the second announcement which needs to be carefully examined in the present case.
8. It is conceded by the plaintiff that, before the Government of Baroda Act, 1940, was passed, all powers -- legislative, executive and judicial -- vested in the head of the State. His case, however, is that, by reason of the provisions contained in Sections 3 and 4 of this Act, His Highness had surrendered., some of his powers subject to certain reservations, and those reservations were subsequently deleted by the Proclamation of 29-8-1948. In the result, it is argued, the power to legislate, which undoubtedly vested in His Highness initially had ceased to vest in him at the time when the impugned Ordinance was promulgated on 30-4-1949; and if. His Highness had no jurisdiction to legislate in any form under any circumstances, then clearly the Ordinance would be 'ultra vires'. In support of the Ordinance, it is, however, urged that, if Sections 3 and 4 and the effect of the deletion cf a part of Section 3 and the whole of Section 4 are properly construed, we would come to the conclusion that the power to issue an Ordinance, for the reasons and under the circumstances under which it was promulgated, still vested in His Highness. We must, therefore, now proceed to examine Sections 3 and 4 of the Act.
9. Under Section3, it is made clear that all rights, authority and jurisdiction appertaining or incidental to the government of the State were exercisable by His Highness except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by His Highness. It is not disputed that the rights, authority and jurisdiction appertaining or incidental to the government of any State must include the right to legislate. This right originally vested in His Highness entirely; it continued to vest in His Highness even after the passing of the Government of Baroda Act; but its exercise was subject to the provisions contained in the Act and subject to the directions that may be otherwise issued by His Highness. This last clause apparently conferred upon His Highness jurisdiction to issue any directions for the exercise of his legislative authority even inconsistently with the provisions of this Act.
It appears to us that the use of the word 'otherwise', in the last clause of Section 3, virtually left all the legislative powers of His Highness untouched in effect. The limitation imposed upon the exercise of the said powers by His Highness by the first clause, which provided that the said powers could be exercised only 'in so far as may be otherwise provided by or under this Act', was likely to be nullified by taking recourse to the second clause in Section 3. In fact, we are disposed to think that the effect of this last clause in Section 3 is the same as the effect of the provisions contained in Section 4. Section 4 preserved the inherent powers of His Highness 'notwithstanding anything contained in this or any other Act.'
That means that the surrender of a part of his legislative and other authority, which was intended to be effected by Section 3, was likely to be rendered illusory by the provisions of Section 4. It may be that, at the time when this Act was passed, His Highness may have taken the view that, though the next big step in pursuance of the ultimate goal of full and complete self-government should be taken, it would not be safe to surrender wholly any part of his legislative, executive or judicial authority. With the wisdom of this assumption we are not concerned. But looking at Sections 3 and 4 together, it seems to us that Section.4 contains overriding provisions and keeps alive His Highness' inherent powers as a sovereign ruler of a State. But for the provisions of Section.4 and of the last clause of Section 3, the position would have been that the legislative powers which initially vested in His Highness were partially conferred upon the Dhara Sabha, and after the conferment of these powers on the Dhara Sabha His Highness could exercise his own remaining legislative powers except in so far as may have been provided by or under this Act.
Normally and ordinarily, in regard to topics on which the Dhara Sabha could legislate) His Highness could not exercise his legislative authority. But the presence of the last clause jn Section.3 and Section.4 was likely to render even the partial conferment of legislative jurisdiction on the Dhara Sabha illusory or doubtful. That is why, by the Proclamation issued on 29-8-1948, His Highness deleted the last clause from Section.3 and the whole of Section.4 from the Government of Baroda Act. The plaintiff's argument is that, as a result of this deletion, His Highness must be deemed to have surrendered all his inherent powers to legislate; and in support of this contention, reliance is placed upon the marginal note to Section 4 which refers to the powers mentioned in this section as 'His Highness', inherent powers.
10. Mr. Karlekar contends that, after the deletion effected by the second Proclamation, there was no longer any jurisdiction in His Highness to legislate on matters falling within the purview of the Dhara Sabha. Mr. Karlekar reads Section.4 as saving the inherent powers of His Highness and Section 3 as amounting to a complete surrender of the powers of His Highness in favour of the Dhara Sabha. We are not pre-pared to accept this construction of the two sections. In our opinion, under Section.4 it was open to His Highness to exercise all his previous powers notwithstanding anything contained in the Government of Baroda Act, whereas under Section 3, unfortunately, the same position would have followed if effect was given literally to the last clause in that section. It seems to us that the last clause in Section 3 and Section 4 virtually amount to the same provision. That, we think, is the reason why, while His Highness deleted Section 4, he also deleted the last clause of Section 3 which contained similar provisions.
If these two provisions are excluded and the remaining Section 3 is construed reasonably, it seems to us to follow that a part of the inherent authority of His Highness in the matter of legislation was conferred on the Dhara Sabha by the provisions of the Government of Baroda Act; and, as I have already mentioned, this authority could be exercised by the Dhara Sabha subject to the restrictions and conditions mentioned by the provisions of the Act. But since the whole of the legislative authority vesting in His Highness had not been surrendered to the Dhara Sabha, that which remained unsurrendered still continued to vest in His Highness. If the Dhara Sabha is net in session and an emergency arises which needs the pio-mulgation of an Ordinance. His Highness continued to have authority to promulgate such an Ordinance under the provisions of Section.3 of the Act. In construing Section 3, we must try to find out what it was that was surrendered by His Highness.
Having determinedthenatureand theextent of the powers surrenderedby His High-ness, we must deduct those powers from the totality of legislative powers which vestedin His Highness before the Act. We do not think it can be seriously disputed that His Highness had initially the power to issue ordinances in cases of emergency. This power has clearly not been conferred upon the Dhara Sabha. Apart from this, the jurisdiction of His Highness to legislate on topics excluded from the purview of the Dhara Sabha still continued. In our opinion, therefore, there can be no doubt that the legislative authority of His Highness did not completely come to an end under the provisions of Section 3 and that a substantial part of that authority still remained with His High ness.
Otherwise we do not see how the material rights appertaining or incidental to the government could be exercised by His Highness after the Act came into force. Upon the exercise of such powers the only limitation imposed was that they were exercisable except in so far as may be otherwise provided by or under this Act. In dealing with the question as to the legislative competence of His Highness to issue-the Ordinance in question, the question which the Court must ask itself is whether there is any provision otherwise made by or under this. Act. If there is no provision otherwise made by or under this Act, then the authority which inherently vested in His Highness would not be affected by the provisions of this Act. That, in our opinion, is the plain effect of Section 3 after the last clause of that section and the provisions of Section 4 were subsequently deleted.
11. Incidentally, it is also significant that, when the second Proclamation was issued, His Highness has made it clear that he has parted with the whole of his executive authority. After this Proclamation the whole of the executive authority vested in his Executive Council. If his intention in deleting the last clause of Section 3 and the provisions of Section 4 was. to divest himself of the whole of his legislative authority, as he divested himself of the whole of his executive authority, the Proclamation would have said so in clear terms.
It is not argued before us that, in issuing the Ordinance, His Highness has exercised his executive jurisdiction. The Argument before us has proceeded on the assumption that the promulgation of an Ordinance is the exercise of legislative jurisdiction. Therefore, the manner in which the Proclamation has been issued in regard to the executive authority, as distinguished from the legislative authority, also supports the conclusion that the part of legislative authority which had not been surrendered to the Dhara Sabha under the Government of Baroda Act was intended to be retained by His Highness even after the two aforesaid provisions in the Said Act were deleted.
These deleted provisions were obviously repugnant to a substantial part of Section 3 and the object of making the deletion was to leave the substantial part of Section 3 unimpaired. If the deletion had not been made, then His Highness could have exercised legislative authority notwithstanding anything contained in the Act itself.
If the construction for which Mr. Karlekar contends is accepted, then we would have to hold that, as a result of the Government of Baroda Act, the whole of the legislative com-petence of His Highness came to an end at least in regard to the topics which felt within the jurisdiction of the Dhara Sabha. Apart from the difficulty which arises from the words used in Section 3 themselves, such a construction would also mean that the Government of Baroda would have been unable to meet an emergency if and when it arose if the Legislature was not then in session.
The power to issue an emergency legislation has even otherwise been expressly conferred upon the Dewan himself. It is true that this power can be exercised by the Dewan only after the legislative procedure prescribed by Section 27 is followed. But if, after following the said procedure, jt was open to the Dewan to obtain the sanction of His Highness to enact an emergent measure, it does not appear unreasonable or otherwise inconsistent with the provisions of this Act and the spirit underlying the Act to hold that His Highness' powers to deal with an emergency were unaffected by the transfer of power effected by Section 3 of this Act.
It is clear that, when the Ordinance in question was issued, the Dhara Sabha was not in session and the Government of the State had to face an extraordinary emergency arising from the total failure of rainfall. It was under such an emergency and with the object of helping the poor agriculturists that His Highness exercised his inherent power to promulgate an Ordinance. In our opinion, the power thus exercisable to meet an emergency, which originally was a part of the legislative power vesting in His Highness, has not been transferred to the Dhara Sabha under any of the provisions of the Government of Baroda Act, and so it continued to vest in His Highness even after the passing of the Act. If that be the true position, the attack made against the Ordinance on the ground that it was passed by His Highness without authority must fail.
12. We would accordingly hold that Ordinance No. 11 of 1949 promulgated by His Highness on 30-4-1949, is 'intra vires'.
13. I agree with .my learned brother and would like to make a few observations.
14. Mr. Karlekar says that Section 3 of the Government of Baroda Act, 6 of 1940, did not confer upon His Highness any competence to pass legislative, executive or judicial measures in regard to the governance of his State, but that it merely laid down that the governance in all matters -- executive, legislative and judicial - was to be done in the name of His Highness. According to Mr. Karlekar, the competence to exercise executive, legislative and judicial powers was conferred upon His Highness by Section 4 of the Act. In other words, says Mr. Karlekar, Section 4 gave concurrent jurisdiction to His Highness along with the Dhara Sabha and the Executive Council to pass legislative and executive measures. It is difficult to accept this contention of Mr. Karlekar.
The Preamble to the Government of Baroda Act, 6 of 1940, dearly shows that the object of His Highness in enacting Act 6 of 1940 was to associate his people with the administration of the State and not to give concurrent and equal jurisdiction to his people to enact executive, legislative and judicial measures. If we accept Mr. Karlekar's construction of Section 3 of Baroda Act 6 of 1940, namely, that it did not confer any competence upon His Highness to enact or pass executive, legislative or judicial measures, the words 'or as may be otherwise directed by His Highness' would be meaningless. They would not in that case fit into the context at all, if Section 3 were enacted merely to lay down that all governance in matters executive, legislative andjudicialwould be done in the name of His Highness.
15. Before Act 6 of 1940 was passed, the Maharaja of Baroda was a sovereign ruler and he had sovereign authority to make any Jaws, issue any ordinances and resort to any executive measures as he liked. In our view, by enacting Section 3 of Act 6 of 1940, this totality of powers was preserved (it was never intended to be surrendered) minus certain deductions and those deductions were referred to in the words 'except in So far as may be otherwise provided by or under this Act'; and in this context Section 17, Section.13, Section 27 and other sections would be the relevant sections. The words 'or as may be otherwise directed by His Highness', which are to be found in Section 3 of the Act, and the entire provisions of Section 4 were repugnant to the above-mentioned deductions and were, therefore, deleted subsequently by the Proclamation issued by His Highness on 29-8-1948.
16. In our view, Section.4 of the Act gave an overriding jurisdiction to the Maharaja. This section would enable His Highness, for instance, to issue an ordinance even in respect of matters for which the competence was transferred to the Dhara Sabha to make laws. Under this overriding jurisdiction, the Maharaja could set at naught even, the limited competence to make Jaws which was conferred by himself upon the Dhara Sabha under Section 3.
If we accept Mr. Karlekar's argument that Section 4 gave concurrent jurisdiction along with the Dhara Sabha to His Highness to make laws, which jurisdiction was subsequently taken away or cancelled by the Proclamation dated 29-8-1948, then the words ' and- all rights, authority and jurisdiction which appertain or are incidental to the government of such territories are exercisable by His Highness' in Section 3 would be meaningless, and it would mean that the intention of His Highness in enacting Act 6 of 1940 and in promulgating the Proclamation of 29-8-1948, was to surrender all his powers -- executive, legislative and judicial --in favour of the Dhara Sabha. We do not think that that was the intention of His Highness at any time.
That the words 'and all rights, authority and jurisdiction which appertain or are incidental to the government of such territories are exercisable by His Highness' occurring in Section 3 of the Act were intended to have a definite purpose there is no doubt, since those words and those provisions of Section 3 were preserved and not deleted by the Proclamation dated 29-8-1948, which deleted the concluding words of Section 3 and the entire provisions of Section.4. The words 'all rights, authority and jurisdiction' occurring in Section 3 must, in our view, have the same import as the words 'all powers, legislative, executive and judicial, in relation to the State and its government' occurring in Section.4, for unless it be so, the words 'notwithstanding anything contained in this or any other Act' occurring at the commencement of Section 4 would have no meaning, since there is no other section in the Act except Section 3 which speaks of the legislative, executive and judicial powers or authority or jurisdiction in matters of governance of the Baroda State.
Therefore, in our view, there is no doubt that the totality of the legislative, executive and judicial powers in the matter of the governanceof the State was preserved in His Highness by Section 3 of Act 6 of 1940 minus certain deductions referred to in the word's 'except in so far as may be otherwise provided by cr under this Act'; and once we take this view, we must hold that Section 4 of the Act gave an overriding jurisdiction to the Maharaja and not merely a concurrent jurisdiction. What was revoked by Ihe Proclamation of 29-8-1948, were the words 'or as may be otherwise directed by His Highness' occurring in Section 3 of the Act and the entire provisions of Section 4, which were repugnant to the limitation imposed by His Highness upon his hithertofore unrestricted legislative and other powers, i.e. the limitation expressed by the words 'except in so far as may be otherwise provided by or under this Act' occurring in Section.3.
17. In our view, therefore, the ordinance or Special Act No. 11 of 1949 giving certain rights and privileges to the tenants as against the landlords in the matter of possession of lands was 'intra vires' of the powers of the Maharaja under Section 3 of the Government of Baroda Act, 6 of 1940.
18. No order as to costs in this reference.
19. Order accordingly.