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Sadaria and anr. Vs. the Rajasthan Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 610 of 1952
Judge
Reported inAIR1954Raj224
ActsTenancy Law; Rajasthan (Protection of Tenants) Ordinance, 1949 - Sections 1(3) and 3; Constitution of India - Articles 10(3), 212A, 245 and 385; Code of Civil Procedure (CPC) , 1908; Constitution (Removal of Difficulties) Order, 1950; Code of Criminal Procedure (CrPC) , 1898 - Sections 145
AppellantSadaria and anr.
RespondentThe Rajasthan Board of Revenue and ors.
Appellant Advocate P.N. Dutt, Adv.
Respondent Advocate K.S. Hajela, Adv.-General and; D.M. Bhandari, Adv. for Respondent No. 2
DispositionPetition dismissed
Cases ReferredSukhpal v. Rajasthan Board of Revenue
Excerpt:
- - , 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. 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. 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. in the case of rajasthan, where both the function of preparation of a bill and giving consent were to be performed by the rajpramukh, any legislation promulgated by the rajpramukh would be good'.....bapna j. 1. this is a petition under article 226 of the constitution of india. 2. the facts of the case are that on 11-8-1952,bhomla, respondent no. 2, made an application under sections 7 of the rajasthan (protection of tenants) ordinance (9 of 1949), to the anti-ejectment officer, sikar, for restoration of possession on the allegation that he had been driven out of the land on 3-7-1952, by sadaria and jhunta petitioners. the anti-ejectment officer allowed the petition after notice to the opposite party, and the revision filed by the petitioner was dismissed by the board of revenue on 10-11-1952. it is urged that the rajas-than (protection of tenants) ordinance, 1949, was promulgated by the rajpramukh who had no powers to do so, and, in any case, it had ceased to have the force of law.....
Judgment:

Bapna J.

1. This is a petition under Article 226 of the Constitution of India.

2. The facts of the case are that on 11-8-1952,Bhomla, respondent No. 2, made an application under Sections 7 of the Rajasthan (Protection of Tenants) Ordinance (9 of 1949), to the Anti-Ejectment Officer, Sikar, for restoration of possession on the allegation that he had been driven out of the land on 3-7-1952, by Sadaria and Jhunta petitioners. The Anti-Ejectment Officer allowed the petition after notice to the opposite party, and the revision filed by the petitioner was dismissed by the Board of Revenue on 10-11-1952. It is urged that the Rajas-than (Protection of Tenants) Ordinance, 1949, was promulgated by the Rajpramukh who had no powers to do so, and, in any case, it had ceased to have the force of law after the expiry of the period provided for its duration, and that its extension for two years by Notification No. F 1(2) Rev./50 dated 14-6-1951, was ultra vires.

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 extension by the Rajpramukh beyond the period of two years during which it was to remain in force according to Section 1(3) of the Ordinance was ultra vires. This is based on a two-fold argument. Firstly, the extension was made in pursuance of a delegated authority to the Rajpramukh, and he had notified the extension as the executive head of the State, & not as a legislative authority functioning in the State, and such delegation of authority was not valid. The legislative authority, it was argued, could not abdicate its functions and hand over its legislative authority to any other person, and, therefore, the extension under the delegated authority was invalid.

Secondly, if the extension be deemed to have been made by the Rajpramukh in exercise of his legislative authority, that authority had to be exercised on the date of the extension according to the provisions of Article 212A of the Constitution and as the procedure prescribed in that Article had not been followed, the extension was invalid. It was urged that if the extension was invalid as aforesaid, the Rajasthan (Protection of Tenants) Ordinance, 1949, expired on 21-6-1951, and respondent No. 2 had no right to make any application under a law which did not exist, and for the same reason the power conferred on various officers to act inthe manner provided by the Ordinance came to an end, and the entire proceedings taken by Bhomla before the Anti-Ejectment Officer and the Board should be quashed.

5. On behalf of the State it was argued that the extension was made by virtue of the power conferred on the Raj Pramukh by Sub-section (3) of Section 1 of the Ordinance, and such conferment of power was not illegal.

6. Sub-section (3) of Section 1 of the Ordinance reads as follows:

'It (the Rajasthan (Protection of Tenants) Ordinance) shall come into force at once and shall remain in force for a period of two years unless this period is further extended by the Rajpramukh by notification in the Rajasthan Gazette.'

Now, as I read this sub-section, there is no delegation at all of any power to the Rajpramukh. What the sub-section says is that the Ordinance shall remain in force for a period of two years, and it gives a further intimation that the law may be extended beyond the said period so that people may be prepared to expect an extension, and not consider that the Ordinance 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 of the Ordinance it was being extended. The extension of the Ordinance was thus not under any delegated authority, and the validity or otherwise of the extension has to be determined by a consideration of the authority and powers of the Rajpramukh on the date of the extension. It may, however, be pointed that if this were a case of extension of a law under a delegated authority, it would not be a valid extension for it is now settled law that extension of a certain law amounts to enacting a law, and if such extension is done by an authority who has itself no power of legislation but only purports to act under a delegated authority, such extension is not valid. -- 'Jatindra Nath v. Province of Bihar', AIR 1949 FQ 175 (A);-- 'Badal Bose v. Chief Secretary, West Bengal', 53 Cal WN 728 (B). -- 'in re Kalyana Veerabhadr-ayya', AIR 1950 Mad 243 (C); -- 'Krishna Chandra v. Sushila Mitra', AIR 1951 Orissa 105 (PB) (D);-- 'Ram Kishan v. State', AIR 1951 All 181 (PB) (E).

7. A point was made out that the legislative enactments made or promulgated by the Rajpramukh, usually bear his signatures at the end in the publications, but the present extension was issued under the signature of the Chief Secretary 'By order of the Rajpramukh', and it was argued that this phraseology is usually employed for publishing the orders of the Executive Government of the United State of Rajasthan by virtue of Article 166 of theConstitution. An affidavit was filed during the course of arguments by the learned Advocate General that in this particular case the notification was approved by the Rajpramukh himself, and the approval bore his signature.

8. It was argued by learned counsel for the petitioner that the notification was construed by the Government itself as having been issued by the Government of the State of Rajasthan and not by the Rajpramukh in exercise of his legislative powers, as we find a Government notification dated 10-7-1951, in the Rajasthan Rajpatra of 21-7-1951, as follows:

'No. F. 1(2) Rev. 1/50, --The term of Protection of Tenants Ordinance, 1949, has been extended by Government by 2 years vide Gazette Notification No. 55, dated 18-6-1951.Proposals for the amendment of certain provisions, of this Act are under consideration. Suggestions are, therefore, invited from all officials and non-officials 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 Parliament decided in the meanwhile to terminate it earlier. It was argued that the Parliament only meant the two Houses of Parliament, while the legislative authority was vested in the Crown. This was entirely an erroneous argument. 'The Parliament of the United Kingdom is composed of the Sovereign, the House of Lords and the House of Commons; these several powers collectively form the legislature.' (May's Parliamentary Practice, 14th Edn. page 3).

9. Learned counsel for the petitioner drew our attention to the notification of extension of the Ordinance for another period of one year from 21-6-1953, which is in the following terms:

'June 20, 1953.No. P. 1 (4) Rev. 1 B/52 -- In exercise of the powers conferred by Sub-section (3) of Section 1 of the Rajas-than (Protection of Tenants) Ordinance, 1949, His Highness the Rajpramukh is pleased further to extend the period for which the said Ordinance shall remain in force for a term of one year with effect from 21-6-1953.'

and it was argued that the Government, at any rate, had all along understood that the power to extend had been conferred by Sub-section (3) of Section 1 of the Ordinance and it was in exercise of that power that the first and second extension was made. The validity of the second extension is not in dispute in this case, and is probably the subject-matter of contention in several other cases. Without, there-tore, expressing any opinion as to the validity of .the second extension it may need only be said thatwhatever the Government may understand by the-, language of any enactment is not of much consequence, if the language used does not bear that construction & that the courts wilt not be guided by any opinion of the Government as to the interpretation of a legislative enactment according to the light that it receives from its legal advisers.

10. The second line of attack now remains to be examined. Tne argument on this score is that although the Rajpramukh may have power to legislate under Article 385 of the Constitution, after its-enforcement on 26-1-1950, yet before the constitution of the Legislature the mode of legislation is provided under Article 212A of the Constitution, and the procedure indicated under that Article had not been followed. That Article, which is added by the Constitution (Removal of Difficulties) Order No. II, is as under:

'(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, required to meet such expenditure.

(4) Any reference in this Constitution to Acts or laws of, or made by, the Legislature of a State shall be construed as including a reference to Acts made under this Article.'

11. It is contended that under Article 212-A (2), the Rajpramukh is to prepare a Bill, and then declare as regards any Bill so prepared whether he assents to the Bill or whether he withholds assent therefrom, or whether he reserves it for the consideration of the President.

12. It may be pointed out that this procedure is prescribed not only for the Rajpramukh of a State which has been formed by integration of various States, but also for all B States until the House or Houses of the Legislature are duly constituted and summoned to meet in the first Session under the provisions of the Constitution. While some of the Part B states were formed by integration of various States, some others, however, were considered as viable units and were given the status of Part B States, and in such States the previous legislative machinery remained unaltered.

Where the legislative authority was other than the Rajpramukh himself, the provisions of preparing the Bill and declaring the assent or withholding the assent, or reserving the bill for the consideration of the President could be literally followed. In the case of Rajasthan, where both the function of preparation of a Bill and giving consent were to be performed by the Rajpramukh, any legislation promulgated by the Rajpramukh would be good' legislation, even if the formalities required for preparation of a Bill and then declaring the assent were not in the form in which enactments areusually made where the legislative power is to be exercised by passage of the Bill through various stages and through different hands, A Bill in its ordinary meaning is a draft of legislation.

In the present case, the affidavit filed by the Government shows that the draft of me notification was submitted to the Rajpramukh, who approved of the same. The technical procedure of a draft legislation being put up before the Rajpramukh has, therefore, been fulfilled. It may be said that the modern legislative method of extending the duration of any Act is to frame & promulgate an Act providing for the continuance of that enactment, but that is only a form of the law according to modern 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 Edn., page 564, is also very relevant:

'The forms commonly observed by both Houses in the passing of bills having been explained, it must be understood that they are not absolutely binding. Though founded upon long parliamentary usage, either House may vary its own peculiar forms, without question elsewhere, and without affecting the validity of any act which has received, in proper form, the ultimate sanction of the three branches of the legislature.'

14. The power conferred on the Rajpramukh to make laws is conferred by Article 385 of the Constitution and the mode of exercise of that power is given in Article 212-A of the Constitution. Any irregularity in the mode of exercise of that power will not, in my opinion, invalidate the law made and promulgated by the Rajpramukh in the exercise of the power which he undoubtedly had. I am, therefore, of opinion that the notification dated 14-6-1951, having been made with the approval of the Rajpramukh, who had power to legislate, was a valid extension of the Rajasthan (Protection of Tenants) Ordinance, 1949, for a period of two years from 21-6-1951.

15. On the merits, learned counsel argued that the petitioner having been declared to have been in lawful possession in proceedings under Section 145, Cr. P. C., was entitled to remain in such possession until evicted in due course of law. It may, however, be pointed out that the Rajasthan (Protection of Tenants) Ordinance is to be applied in supersession of other laws, as Section 3 thereof lays down that

'the provisions of the Ordinance and of any rules made thereunder shall have effect, notwithstanding anything to the contrary in any other lawor rule, order, instrument or usage having the force of law, in any part of Rajastiian.'

Further, the declaration under Section 145, Cr. P. C., was made on 22-7-1952, in respect of the preliminary order passed under Section 145 on 19-7-1952. While the criminal court may have been fully justified in putting that party in possession of the property, who was in possession on the date of the preliminary order, the Tenants Protection Ordinance provided a remedy even if the dispossession had been made prior to two months of that order. What the Revenue Board has found in the present case was that Bhomla was in possession upto 1-7-1952, and had subsequently been dispossessed by Sadaria. As the provisions 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 be convenient for the sake of clarity to give in extenso all the three clauses. They are as follows:

'Article X:

(1) There shall be formed, as soon as practicable, a constituent Assembly in such manner as the Rajpramukh may, in consultation with the Government of India in the State Ministry prescribe.

(2) It shall be the duty of the said Assembly to frame a Constitution for the United State within the frame work of this Covenant and the Constitution of India and providing for a government responsible to the legislature.

(3) Until a Constitution so framed comes into operation after receiving the assent by the Rajpramukh, the legislative authority of the United State shall vest in the Rajpramukh, who may make and promulgate Ordinances for the peace and good government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the legislature of the United States.'

18. Till the date the Ordinance was promulgated no Constituent Assembly for the United State of Rajasthan had been constituted and so the Rajpramukh could legislate for the State by means of an Ordinance under Clause (3) and in this legislative capacity he promulgated the Ordinance. By Sub-section (3) of Section 1 of the Ordinance which is as follows, the Ordinance was to remain in force for a period of two years unless that period was extended by the Rajpramukh by notification in the Rajasthan Gazette.

'Sub-section (3) of section 1 of the Ordinance:

It (the Rajasthan (Protection of Tenants) Ordinance) shall come into force at once and shall remain in force for a period of two yearsunless this period is further extended by the Rajpramukh by notification in the RajasthanGazette.'

Note: The underlined words (in the bracket) are mine.

Before the period of two years expired, the Notification was issued on 14-6-1951. This Notification purported to extend the Ordinance to a further period of two years and is as follows:

Government of Rajasthan

Revenue Department

Notification.

Jaipur, June 14, 1951.

No. F. 1 (2) Rev./ 50.-- 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.

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 therefrom or that he reserves it for the consideration of the President.'

20. My learned brother has held that the extension of duration of a statute amounts to legislation and therefore, this power cannot be delegated to any other authority. He has relied 'inter alia' on the cases of 'AIR 1949 FC 175 (A)', and 'AIR 1951 All 181 (FB) (E). In the Federal Court case, power to extend the Bihar Maintenance of Public Order Act (5 of 1947) was given by proviso to Sub-section (3) of Section 2. it ran as follows:

'Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modification, if any, as may be specified in the notification.'

It was held by the majority consisting of their Lordships Kania C- J. and Patanjali Sastri, Maha-jan and B.K. Mukherjea, JJ. that

'The power to extend the operation of the Act beyond the period mentioned in the Act 'prima facie' is a legislative power. It is for the Legislature to state how long a particular legislation will be in operation, and it cannot be left to the discretion of some other man.'

Similarly in the Allahabad case referred to, it was held by a Full Bench that

'the duration of a Statute is a matter for determination by the Legislature itself. It is of thenature of an essential legislative act. Delegation of such a power is not permitted by law.'

In view of these authorities, I am in perfect agreement with my learned brother that the extension of the period of the Ordinance was a legislative act, and could be made only by the Legislature of the State and this power could not be delegated to any other' authority.

21. My learned brother has held that in fact no authority for extending the Act was delegated by Sub-section (3) of Section 1 of the Ordinance to any other authority, but that the language of the said sub-section shows that the Rajpramukh who was also the legislative authority intimated by this provision that if he so considered proper, he could further extend the period during which the Ordinance was to remain in force. I am inclined to agree that under the provisions of Sub-section (3) of Section 1 no power was delegated by the legislative authority 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 powers and perform the duties conferred by the provisions of this Constitution on the House of the Legislature of the State so specified.' As no House or Houses of the Legislature had come into being till the time the Notification was issued, the Rajpramukh had power to legislate, and I agree with my learned brother that any legislative act done by the Rajpramukh at that time would have been perfectly valid. The question, however, is whether the Notification in question amounted to an act of Legislation.

23. The question whether the Notification could be treated as legislative act of the Rajpramukh arose directly for decision before a Bench of this Court in the case of -- 'Sukh Pal v. Rajasthan Board of Revenue', AIR 1954 Raj 169 (G), and it was held that it was a piece of legislation. There are a number of authorities of different High Courts in India in which it has been held that a Division Bench of a High Court is bound to follow the decision of Division Benches of that very court unless it is satisfied that that decision is incorrect and unless a reference is made to a Full Bench. This view was taken by a Division Bench of Patna High Court in the case of -- 'Ramroop Mahton v. Mano Mian'. AIR 1934 Pat 86 (H). In another case of the same High Court in the case of --'Mahadeo Prasad v. Jagarnath Prasad', AIR, 1934 Pat 173 (I), it was held by another Division Bench that

'The decision of a Division Bench of a High Court is bidning not only on the subordinateCourts but also on the other Division Benchesof that Court so long as that decision is not overruled by a Full Bench of that High Court or on appeal by the Privy Council.'

A Division Bench of Calcutta High Court in the case of -- 'Gaibandho Loan Office Ltd. v. Mt. Sajyedunnessa Khatun, AIR 1943 Cal 114 (J) also took the same view and held that

'Where a Division Bench disagrees with the decision of another Division Bench it is its duty to refer the matter to a Full Bench and it cannot simply ignore the earlier decision.

In Madras High Court in the case of--'Seshamma v. Venkata Narasimharao', AIR 1940 Mad 356 (FB) (K), it was held by a Full Bench that

'The Division Bench is the final Court of Appeal in Indian High Court, unless the case is referred to a Full Bench, and one Division Bench, should regard itself bound by the decision of another Division 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 overwhelming authorities, I as a member of the Division Bench feel myself bound by the decision of the Division Bench in the case of Sukh Pal (G)' referred to above.

24. Learned counsel for the petitioner, however, argued that in that case the question whether the extension was made in the manner required by Article 212-A of the Constitution of India was not considered and that if it were considered, the Division Bench would not have come to the decision at which it arrived. It is true that from the judgment it appears that the provisions of Article 212-A did not come up for consideration in that case. It is also true that the extension was not made in the manner required by Article 212-A. According to that Article, a Bill ought to have been prepared by the Rajpramukh and then he ought to have declared as respects that Bill either that he assented to or that he withheld assent therefrom or that he reserved it for the consideration of the President. In the present case, it appears that no Bill was prepared by the Rajpramukh as required by Article 212-A(2).

It was argued by learned Advocate-General that the draft of the Notification was placed before the Rajpramukh and that he approved of it. This is, therefore, sufficient compliance with the provisions of Article 212-A. This argument has found favour with my learned brother, but I feel great hesitation in accepting this argument of the learned Advocate-General. What is put forward as a Billunder Article 212-A is a draft of the Notification which runs as follows:

'In pursuance of Sub-section (3)' of Section 1 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. 9 of 1949) His Highness the Raj Pramukh is pleased to extend the period for which the said Ordinance shall remain in force by a further term of two years with effect from 21-6-1951.'

This draft was submitted to His Highness the Rajpramukh for approval with the following proposal :

Submitted to His Highness.

Sub: Extension of the duration of the Rajasthan

(Protection of Tenants) Ordinance, 1949.

The Rajasthan (Protection of Tenants) Ordinance, 1949 was promulgated on 25-6-1949 after His Highness had signified his assent on 21-6-1949. In view of the provisions of Section 1 (3) thereof, the Ordinance will expire on 21-6-1951 unless further extended by the Rajpramukh by Notification 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 Act is prepared before the expiry of that period, a repeal provision will be duly made therein.

Sd/- S. W. Shiveshwarkar

Chief Secretary to Government.

6-6-1951.

25. On this proposal there is the endorsement of His Highness the Rajpramukh in the words 'Approved' and it is dated 10-6-1951. It was argued that no particular form is necessary for a Bill and that the draft of the Notification submitted to His Highness the Rajpramukh for his approval could amount to a Bill under Article 212-A. I have very anxiously considered this argument of the learned Advocate-General. I find it very difficult to accept his argument that even in modern times a Bill can be drafted in any form. My learned brother when accepting this argument of the learned Advocate General has quoted the following passage from craies on Statute Law (4th Ed. Chapter II, p. 19).

'The Legislature, when they intend to pass, tocontinue, or to repeal a law, are not bound touse any precise form of words. Consequently wefind that at different periods of English Historystatutes have been drawn in different ways andaccording to different methods.'

It is true that at different periods of Englishhistory statutes have been drawn in different waysand according to different methods, but the ques-tion is what are the ways in which the statutes are drawn up in modern time. It would be found that in England the Legislative Bills in modern times are invariably drafted in numbered paragraphs denoting the sections which are further sub-divided, if need be, into numbered sub-sections and clauses. These sections deal generally with the following five subjects:

1. Citation and Short Titles.

2. Long Title.

3. Preamble.

4. Enacting Formula.

5. Clauses or the main enacting part.

In some of the Bills, if necessary, Schedules and and explanatory Memorandum are also appended. (May's Parliamentary Practice, 4th Edn., pp. 487-489.)

26. If a Bill is passed into an Act without any amendment, the Act is a copy of the Bill excepting that wherever the word 'Bill' occurs in the Bill, the word 'Act' is substituted in the Act. If, however, some amendments are made, the Act differs from the Bill only so far as it is amended. The same form of the Bills and Acts has been adopted in India and since the establishment of this 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 Notifications which are issued in this State are according to the provisions of Article 166 of the Constitution, whereas all Acts and Ordinances issued by him from time to time in his legislative capacity are in the form of Bills and Acts prevalent in the United Kingdom and in India. It cannot, therefore, be said that the Rajpramukh or his advisers did not know what form should be given to an Act passed by the Rajpramukh in his legislative capacity and what form should be given in executive notifications issued in his name.

28. The Notification is altogether in the form in which executive notifications are issued and it has no resemblance to the Bills or the Acts which are prepared or passed in Rajasthan. In determining, therefore, whether the Rajpramukh acted in his legislative capacity or in his executive capacity at a time when he had both the capacities, the form given to an act of his is very important, otherwise there would be nothing to differentiate an executive act of the Rajpramukh from a legislative act of his. My learned brother has been impressed by the fact that the draft Notification with a proposal to approve the said draft was put up before the Rajpramukh and he approved of it before the Notification was issued.

There is no doubt that the approval of the Rajpramukh was obtained before the notification was issued, but that is expected to be done in the case of every executive notification also. It may be that in certain emergencies, the executive notifications may be issued even without the formal sanction of the Rajpramukh and once such a notification-is authenticated in the manner specified in rules to be made by the Rajpramukh, it cannot be called in question on the ground that it is not an order or instrument made or executed by the Rajpramukh. But normally approval of the Rajpramukh is expected to be obtained before even executive notifications are issued in his name, and therefore, simply because the approval of the Rajpramukh was obtained for the issuing of the Notification, in this case, does not convert it into a legislative act of the Rajpramukh.

29. It appears to be that whatever may be the correct interpretation of Sub-section (3) of Section 1 of the Ordinance, those concerned with the issuing of the Notification, thought that power had been given by the said provision to the Rajpramukh to extend the Ordinance 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 Act, it would be a serious matter to hold where the intention of the statute is clear that it shall be reduced to a nullity by draftman's unskilfulness or ignorance of law.

31. Here in this case, the question is not whether the object of a statute which is indisputably a statute should be reduced to a nullity by the draftman's unskilfulness or ignorance of law but the question is whether the instrument which is put forward as a legislative enactment is a legislative enactment or not. My learned brother has also quoted the following passage from May's Parliamentary Practice (14th Edn., p. 564)

'The form commonly observed by both Houses in the passing of Bills having been explained it must be understood that they are not absolutely binding. Though founded upon long parliamentary usage, either House may vary its own peculiar forms, without question elsewhere, and with out affecting the validity of any act which has received, 'in proper form', the ultimate sanction of the three branches of the Legislature.'

This observation finds place in the context of the 'progress' of the Bill during different stages, and of cout se the 'Legislature in England being supreme it may vary its own peculiar forms.

In India and for the matter of that in Rajasthan the Legislature is neither supreme as its powers are subject to constitutional limitations nor hasthe extension received the ultimate sanction of the Legislature 'in proper form. I have read the decision in the case of -- 'Raj Sahiban Shersingh v. .State of Rajasthan', AIR 1954 Raj 65 (FB) (O) in which the Rajasthan Produce Rents Regulating Act (No. 15 of 1951) was impugned 'inter alia' on the ground that the Bill was never prepared by the Rajpramukh and there was nothing to show that he declared his assent to the Bill so prepared.

In that case the Bill was drafted in the Secre-triat, put up before the Council of Ministers for approval and then was put up before Rajapramukh for his assent. It was held that by Article 212-A, the Rajpramukh is not required to prepare the Bill himself, but that Bill prepared in the Secretariat is to be deemed to be a Bill prepared by the Rajpramukh within the meaning of Article 212-A. it was also held that it was proved that the Rajpramukh had in fact given his assent to the Bill as required by Article 212-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)', I find it difficult to endorse the view that the provisions of Art. 212-A were complied with in extending the Ordinance by the Notification. However, as I have said above, there being a ruling of a Division Bench of this Court in the case of -- 'Sukhpal v. Rajasthan Board of Revenue (G)', referred to above on the very point whether the Notification could validly extend the duration of the Ordinance, neither I nor this Division Bench is entitled to hold that the Notification does not validate the extension of the duration of the Ordinance. The fact that the new argument that has been raised in this case was not raised in the 'case of Sukh Pal (G)' would not entitle me to declare the extension to be invalid.

Of course having my own views about the validity of extension by the Notification, I would have been very happy if the question whether the Notification validly extended the Ordinance could be referred to a Pull Bench, but as my learned brother even after hearing the arguments on the new point raised in this case is of opinion that the Notification validly extended the duration of the Ordinance, this course is not possible. I am, therefore, bound to agree with the order of my learned brother and consequently, dismiss the petition.

BY THE COURT

The petition is dismissed.Each party will bear its own costs.


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