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TMI Blog1957 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise of which the impugned Ordinance and notifications were issued. When the British were the Rulers of this Country, Rajputana, as the State was then known, consisted of 18 principalities claiming sovereign status. After independence, a movement was set afoot for the integration of all the principalities into a single State, and the process was completed on May 5, 1949, when all of them became merged in a Union called the United State of Rajasthan. The constitution of the State was settled in a Covenant, to which all the Rulers agreed. Under Art 11 of the Covenant, the States agreed to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of the United State of Rajasthan . Under Art. VI(2), the Rulers made over all their rights, authorities and jurisdiction to the new State which shall thereafter be exercisable only as provided by this Covenant or by the Constitution to' be framed thereunder . Article X(3) provides that, Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh, the legislative authority of the United State shall vest in the Rajpramukh, who may make and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into possession even after the first day of April. Section 3(1) of the Ordinance, which is very material for the present petitions, runs as follows: It 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. In exercise of the power conferred by this section, the Rajpramukh issued a notification on June 14, 195 1, providing that Ordinance No. IX of 1949 shall remain in force for a further period of two years with effect from June 21, 1951 . On June 20, 1953, he issued a further notification providing that the said Ordinance shall remain in force for a term of one year with effect from June 21, 1953. Doubts would appear to have been expressed about the validity of the notification, dated June 20, 1953, on the around that as the State Legislature had come into being on March 29, 1952, the power of the Rajpramukh to legislate under Art. 385 of the Constitution had come to an end on that date. To resolve the doubt, the Rajpramukh issued on February 15, 1954, an Ordinance under Art. 238 of the Constitution,, No. III of 1954, substituting for s. 3 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if Act No. X of 1954 is upheld, that must validate Ordinance No. IX of 1949 for the periods covered by the impugned, notifi. cations dated June 14, 195 1, and June 20, 1953, and in that event, the first two contentions will not survive for determination. The argument of the petitioners in support, of this contention is that even if either of the two notifications aforesaid is held to be bad, then the impugned Ordinance would have expired at least on June 21, 1953, if not earlier on June 21, 1951; and that neither Act No. X of 1954 which came into force on April 17, 1954, nor even Ordinance No. III of 1954 which was promulgated on February 15, 1954, could give life to what was already dead. It is conceded that a legislation might be retrospective ; but it is contended that Act No. X of 1954 was not an independent legislation enacting a code of provisions which were to-operate retroactively but an amendment of Ordinance No. IX of 1949, and as that Ordinance had expired by efflux of time on June 21, 1951, if the noti- fications dated June 14, 1951 , and June 20, 1953, were bad, then there was, when Act No. X of 1954 was passed, no Ordinance in existence on which the amendment, could o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely a legislative function, and that it could not be delegated to an outside authority. Thus, Kania C. J. observed at pages 604-605: 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. That cannot be left to the discretion of some other body. Even keeping apart the power to modify the Act, I am unable to construe the proviso' worded, as it is, as conditional legislation by the Provincial Government. Section 1(3) and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative functions had prescribed the life of the Act beyond one year. For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another authority, which was not the legislative authority of the Province. Mahajan J. dealing with this question observed at page 623: I am further of the opinion that the power given to extend the life of the Act for another year in the context of the language of s. 1(3) also amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tend the life of the Act as in the present case, but also to extend it with such modifications as might be specified in the notification. It is this latter clause that came in principally for attack in the judgments of the majority, and the decision that the proviso as a whole was bad was based primarily on the view that that clause was ultra vires. Kania C. J. no doubt observed that the power to extend the operation of the Act was, even apart from the power to modify it, a legislative function. But he also added that the power conferred by the proviso was a single one and that the power to extend the life of the Act could not be severed from the power to modify it. The matter was made even more plain by Mukherjea J. in his judgment in State of Bombay v. Narothamdas Jethabai [1951] S.C.R. 51. There, the Bombay High Court had held, relying on the decision in Jatindra Nath Gupta v. The, Province of Bihar [1949] F.C.R. 595., that s. 4 of the Bombay City Civil Courts Act, 1948 which conferred authority on the State to invest Civil Courts by notification with jurisdiction to try suits not exceeding ₹ 25,000 was bad. In disagreeing with this conclusion, Mukherjea J. observed: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and -not delegated legislation, and that such legislation is valid. In our opinion,, s. 3 of the Ordinance in so far as it authorises the Rajpramukh to extend the life of the Act falls within the category of conditional legislation, and is, in consequence, intra vires. The leading authority on the question is the decision of the Privy Council in The, Queen v. Burah [1878] 5 I.A, 178. There, the question was as to the validity of a notification issued by the Lieutenant-Governor of-- Bengal on October 14, 1871, extending the provisions of Act No. XXII of 1869 to a territory known as the Jaintia and Khasi Hills in exercise of a power conferred by s. 9 of that Act, which was as follows: The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills, as for the time being forms part of British India. The High Court had held by a majority that that section was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n discretion, determine, is conditional and not delegated legislation, and that it will be valid, unless there is in the Constitution Act any limitation on its power to enact such a legislation. The petitioners do not dispute this. What they contend is that while it may be competent to the Legislature to leave it to an outside authority to decide when an enactment might be brought into force, it is not competent to it to authorise that authority to extend the life of the Act beyond the period fixed therein. On principle , it is difficult to see why if the one is competent, the other is not. The reason for upholding a legislative provision authorising an outside authority to bring an Act into force at such time a it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should then be made to operate, and that the decision of such an issue is best left to an executive authority. Such legislation is termed conditional, because the Legislature has itself made the law in all its completeness as regards place, person, laws, powers',',, leaving nothing for an outside authority to legislate on, the only function assigned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of a power conferred by a statute which had been previously enacted by the appropriate legislative authority. The exercise of such a power is referable not to the legislative competence of the Rajpramukh but to Ordinance No- IX of 1949, and provided s. 3 is valid, the validity of the notification is co- extensive with that of the Ordinance. If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed-neither did the power to issue a notification which is conferred therein. The true position is that it is in his character as the authority on whom power was conferred under s. 3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the State. This objection should accordingly be overruled. (4) We shall next consider the contention that the provisions of the Ordinance are repugnant to Art. 14 of the Constitution, and that it must therefore be held to have become void. In the argument before us, the attack was mainly directed against ss. 7 (1) and 15 of the Ordinance. The contention with reference to s. 7(1) is that und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. The object of the Ordinance, as set out in the preamble, is clearly not to put a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause. A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to be unreasonable. Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus, in Block v. Hirsh [1920] 256. U.S. 135; 65 L.Ed. 865, a statute which gave a right to tenants to continue in possession even after the expiry of the lease, was held to be valid, Holmes J. observing, The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established, the regulation of rates is one of the first forms in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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