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TMI Blog1940 (12) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of the Government to order and that the defendants were not therefore entitled to rely upon them. On this issue both the trial Judge and the District Judge on appeal decided in the defendants' favour. The plaintiffs then appealed to the High Court, and during the pendency of the appeal a Division Bench of the High Court held in another case, Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158, that remissions made in pursuance of the Government order above referred to had no legal effect. In order to appreciate the legal questions involved, it is necessary to refer to certain statutory provisions contained in the Agra Tenancy Act, 1926, which at all material times regulated the relations between the parties, though it has since been repealed and only re-enacted with substantial alterations. 2. The purpose of the Act is indicated by its title, an Act to consolidate and amend the law relating to agricultural tenancies and certain other matters in Agra, and it may be described as a Code of landlord and tenant law for the province of Agra. At the end of that part of the Act which dealt with the subject of rent and of the machinery whereby in certain c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd revenue Under Section 73 would destroy the basis upon which they must necessarily have contracted and it would be inequitable if a consequential adjustment were not permitted. 4. In 1931, the United Provinces were faced with a catastrophic fall in agricultural prices followed by threats to withhold rent on a large scale. Faced with what was clearly a most difficult situation, the Government appears to have acted with courage and promptitude. It took the view that the most urgent problem was that of rent, and devised a scheme for the systematic reduction of rents, varying with the circumstances of the different districts, followed later by consequential adjustments in land revenue. The plans adopted were described in a series of communiques issued from time to time, the first being dated 29th April 1931 and the last 28th October 1932. The Government appears to have been well aware of the legal position, for, in its last communique, a statement on the report of the rent and revenue committee of the Legislative Council, it observed that the Governor in Council recognizes that the action which Government were compelled to take last year was not covered by any provision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngness to grant remission to a large number of cultivators. It is desirable that this should be said, for Courts of justice, while giving no countenance to the theory that governments are at liberty to break the law whenever they find it convenient to do so, ought to abstain from harsh or ungenerous criticism of measures taken in good faith by those who bear the responsibility of government, when suddenly faced with a serious and perhaps dangerous situation. 6. The Regularization of Remissions Act, 1938, had been passed before the present appeal came before the High Court, and when the appellants sought to take advantage of it, on the ground that the respondents could no longer challenge the validity of the remission orders, the latter replied by challenging the new Act itself. This point was referred to a Full Bench, which held the Act to be beyond the competency of the Legislature to enact. The three learned Judges who composed the Bench (Iqbal Ahmad, Bajpai and Mohammad Ismail, JJ.) all took the view that the Act was contrary to the provisions of Section 292, Constitution Act, because it attempted to legislate retrospectively; but Iqbal Ahmad J. was also of opinion that none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletely to adjudicate upon and settle all the questions involved in the suit, to be added. 9. Counsel for the lessors argued that the desire of the Province to secure the right of appeal did not make Order 1, Rule 10(2) applicable to the case; but, he also based his argument on broader grounds and contended that the mere fact that the validity of provincial legislation was being challenged was no sufficient reason for making the Province a party to a suit between private persons. 10. I desire to say at the outset that, assuming for the moment that there was jurisdiction to add a party to represent the executive Government of the Province, that party ought not in my opinion to have been the Province itself. It is true that by Section 170(1), Constitution Act, a Provincial Government may sue or be sued by the name of the Province, and may, subject to any provisions which may be made by Act of the Federal or the Provincial Legislature, sue or be sued in relation to its affairs in the like cases as the Secretary of State in Council might have sued or been sued if the Act had not been passed. But it seems to me that where the validity or constitutionality of provincial legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, subordinate, etc., I feel that questions of ultra vires are certain to be raised in the Courts in increasingly large numbers of cases and I refuse to contemplate with equanimity the prospect of the Secretary of State for India being required by every defendant to be made a party in every one of them. 12. This judgment was criticised and dissented from in Secretary of State v. Murugesa Mudaliar, AIR 1929 Mad 443 by Venkata Subbarao J., a case in which the plaintiff had brought a suit against a district board for a declaration that he had been duly elected a member of the board by a resolution passed at the meeting of a certain taluq board. The Government applied to be joined as a defendant, but both plaintiff and defendant opposed the application. It was held that since by a local Act Government had the power of control over all local boards in the province and could suspend the execution of any resolution (as they had apparently done in the case of the taluq board), it was a proper party to the suit and ought to be added. The learned Judge was of the opinion (which I cannot myself share) that Srinivasa Ayyangar J., had in the earlier judgment ignored the distinction made i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave come before the Court. The decision in the later case may have been justified on the facts, but those facts were very different from those which are now under consideration. 14. Since the new Constitution Act, however, the position with regard to the competence of Indian Legislatures, whether the Central Legislature or the Legislatures of the Provinces, is completely changed; and the cases which have already come before this Court during its brief history show the difficulty and complexity of the disputes in which questions of legislative competence are involved. I think that it would be a matter of great regret to this Court if in any such case it had not the assistance of the Advocate-General of the Province concerned, and this point was not overlooked when the rules of the Court were drafted: see Federal Court Rules, Order 36. But, in the absence of such an express rule in the Code, it is necessary to decide, first, whether, the Advocate-General was rightly empowered to intervene as a party on the record, and, secondly whether in the particular circumstances of the present case he has an independent right of appeal. 15. It can but rarely happen, in cases between privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In that case the validity of a Crown grant, and not of a statute, was challenged, but I draw attention to the following observations of Lord Buckmaster, who delivered the judgment of the Committee: It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Crown asked to do any act or grant any estate or privilege; but in the event of the plaintiffs' success the rights existing in the Crown and consequent upon the grant to the respondents will cease. If these interests lay in a third party, he ought certainly to be added as a defendant and that is the best means of testing the necessity of the attendance of the Crown (at page 363). 17. Adapting these words, I might say that in the event of the lessors succeeding in the present case, certain rights of the Crown, that is, of the executive, of the province will cease to exist, in the sense that they will no longer have that extended effect which it was believed that the impugned Act had given them. In a recent case in a, Canadian Province, Beauharnois L.H. P. Co. v. Hydro-Electric Power Commission (1937) 3 DLR (Ont) at p. 458 a local Judicature Act had provided, that no Act of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in sum towards the maintenance of his wife was beyond the competence of the Provincial Legislature to enact. The Attorney-General of the Province had intervened to uphold the validity of the Act, and special leave to appeal to the Supreme Court of Canada had been granted both to the Attorney-General and to the wife, but the wife failed to perfect her appeal. The Supreme Court were of opinion that though, on an appeal to the Court by the wife, the Attorney-General would, in the ordinary course, have the right to appear in order to support the validity of the Act, he had no status to appeal to the Court, so long as the wife had not perfected her appeal, and that until she had done so the Court had no jurisdiction. This decision seems to me, if I may respectfully say so, to be based upon sound principle, and in my opinion this Court ought to follow it. There is a significant observation by Lord Haldane in John Deere Plow Co. v. Wharton ('14) 1 AIR 1914 PC 174 at p. 334, that Attorneys-General intervening in private litigation were only entitled to present their views to the Judicial Committee and had no right of reply. If an Attorney-General had in such circumstances an independen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture or other competent authority. 21. It is said that since these words keep existing British Indian laws in force until they are altered or repealed or amended by competent authority, it is beyond the powers of any authority, no matter how competent otherwise, to legislate with retrospective effect; because, if they do so, they are contravening the provisions of the section which makes those laws continue in force up to the moment of alteration, repeal or amendment. The purpose of Section 292 was clearly to negative the possibility of any existing Indian law being held to be no longer in force by reason of the repeal of the law which authorized its enactment; and it is a safeguard usually inserted by draftsmen in similar circumstances. An analogous provision was included in Section 130, Government of India Act, 1919, though in that case it took the form of a proviso that the repeal of earlier Government of India Acts should not affect the validity of any existing law. The Union of South Africa Act, 1909, Section 135, is almost identical with Section 292, but a slightly different formula was adopted in the British North America Act, 1867, and in the Commonwealth of Australia Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation which commended itself to the High Court of Allahabad has ever been even hinted at in any South African Court. The same may be said of the Canadian and Australian sections; for though it is true that the wording of those sections is a little different, I confess that I can detect no difference in the meaning of the language used. 24. I find myself unable to agree with the decision of the High Court on this point, and it is only out of respect for the three learned Judges who have taken a contrary view that I have dealt with the question at any length; for, but for their unanimous opinion, I should have thought it scarcely open to argument. It must always be remembered that within their own sphere the powers of the Indian Legislatures are as large and ample as those of Parliament itself, Reg. v. Burah, (1878) 3 AC 889 and the burden of proving that they are subject to a strange and unusual prohibition against restrospective legislation must certainly lie upon those who assert it. I can see nothing in the language of Section 292 which suggests any intention on the part of Parliament to make them subject to that prohibition, nor, so far as that may be relevant, any expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, Education, Water Agriculture and Land, the general word is amplified and explained by a number of examples or illustrations, some of which would probably on any construction have been held to fall under the more general word, while the inclusion of others might not be so obvious. Thus Courts of Wards and treasure-trove might not ordinarily have been regarded as included under Land, if they had not been specifically mentioned in item 21. I think however that none of the items in the lists is to be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court. I am moved to make this observation because of a passage in the judgment of Iqbal Ahmad J., in which he says: By the authority given to it to make laws about the collection of rents the Provincial Legislature is in my judgment authorized to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any competition between List I and List II, and if the Act does not fall within List II, (since no one has suggested that it falls within List III), it can only be an Act with respect to a subject-matter which has been overlooked or forgotten, and no Legislature in India could deal with it until the Governor-General had exercised his powers Under Section 104, Constitution Act. The validation of doubtful executive acts is not so unusual or extraordinary a thing that little surprise would be felt if Parliament had overlooked it, and it would take a great deal to persuade me that legislative power for the purpose has been denied to every Legislature, including the Central or Federal Legislature, in India. It is true that validation of executive orders or any entry even remotely analogous to it is not to be found in any of the three Lists ; but I am clear that legislation for that purpose must necessarily be regarded as subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued. 29. I arrive at the conclusion therefore that the remission of rent is a matter covered by item 21, that the impugned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the competence of the Legislature to enact, the question still remains what is to be the effect of such a decision. The thekadars, the original defendants, entered no appearance in this Court, and the province was the only appellant. The province was not interested in any way in the original dispute between the plaintiffs and the defendants, save to uphold the validity of a particular law which had been challenged in the course of the proceedings. It is, in my opinion, impossible for this Court, at the instance of a third party who had no direct interest in the original suit, to order the High Court to vary the decree which it has given as between plaintiffs and defendants; and the difficulties which would arise if any other view were taken lend additional force to the doubts which I have already expressed on the right of the province to appeal at all. I think therefore that the appeal should be dismissed, and my brothers concur, though for different reasons. In these circumstances it is not necessary for me to express an opinion on two other points which were strongly argued before us by counsel for the lessors, that is to say, whether the Act ought to be construed as having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;38) 25 AIR 1938 All 158. The High Court held that the remissions, not being in accordance with Section 73, Agra Tenancy Act, were ultra vires and illegal, and Section 74 of that Act was not a bar to that suit; but the suit was dismissed on the ground that the then plaintiff should have sued his tenants ignoring the remissions. While the appeal in the present case was pending in the High Court, the impugned Act, viz., the U.P. Regularization of Remissions Act (Act 14 of 1938) came into force on 24th September 1938. The appeal came up before a Bench of two Judges who allowed time to the U.P. Advocate-General to consult his Government whether they would like to be heard on the question of the ultra vires nature of the impugned Act. Later, the question of law whether Act 14 of 1938, was or was not intra vires the Legislature, was referred to a Full Bench of three Judges for an authoritative pronouncement. Before the Full Bench the Advocate-General was allowed to be heard on behalf of the Government. Although there were differences of opinion on some of the points raised in the case, all the three learned Judges ultimately came to the conclusion that the Act was ultra vires the Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between a landholder and his tenant, the Provincial Government cannot be considered a necessary party at all, as a proper decree can certainly be passed in their absence. But when in such a suit the validity of an Act of the Provincial Legislature is in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested in such an adjudication. In the present case, the Government were interested to this further extent that the effect of the High Court's ruling would be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act. Apparently, the defendants were too poor to think of preferring an appeal to the Federal Court; and the High Court thought that it would not only be convenient but quite fair to make the U. P. Government a respondent to enable it to secure a more authoritative pronouncement. As the Act was passed during the pendency of the High Court appeal, there was no earlier occasion on which the Government could have been impleaded. It is contended before us that the powers of an appellate Court are restricted within the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Pachkauri v. Ram Khilawan ('14) 1 AIR 1914 All 293 was a peculiar case where a pro forma defendant, who had benefited under the first Court's decree; was not impleaded in the first appeal by the principal defendants and was sought to be impleaded in the second appeal by the same defendants long after limitation had expired. The High Court naturally declined to implead him. The earlier cases referred to therein were under the previous Code. I, therefore, find it difficult to hold that the High Court had no jurisdiction at all to implead the U. P. Government as a party to the appeal, particularly when no objection was taken on behalf of the plaintiffs on that occasion. If there were no such jurisdiction at all, then the Provincial Government cannot appeal. 37. Really, the question before us is not whether the U. P. Government were rightly impleaded. As regards that point, I myself may prefer a different course. The only question that now remains is whether the appeal itself is incompetent on the ground that the High Court erred (assuming that it did) in impleading the D. P. Government. If the discretion was wrongly exercised, that would be no ground for holding that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judges, are that: (a) the Act is void as it offends against Section 299, Government of India Act; and (b) it is void because it is repugnant to the existing Section 9, Civil P.C. 39. The respondents have pressed all these before us. The last two can be disposed of summarily. 40. Section 299 of the Act - The objection taken Under Section 299(3) of the Act that previous sanction of the Governor had not been obtained is completely met by Section 109(2), as assent was later given to it. 41. Section 9, Civil P.C.- Similarly, the objection that the Act bars a civil remedy and therefore conflicts with Section 9, Civil P.C., has no force. In the first place, even if there were repugnancy, the Act would Under Section 107(1) be void only to the extent of the repugnancy. Section 9, therefore, cannot stand in the way of its applicability to a revenue case. In the second place, Section 9 itself contains an exception in favour of suits of which cognizance is either expressly or impliedly barred. Section 4, Civil P.C., also contains a saving clause. Not being repugnant to any of the provisions of the Code, the impugned Act does not fall under entries 4 and 15 of List III. 42. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 130, Government of India Act, 1919, was a similar section couched in a simple language: This repeal shall not affect the validity of any law, etc., etc. There is a saving provision in Section 129, British North America Act, 1867, but the words there are: All laws in force in Canada, Nova Scotia or New Brunswick at the Union . . . shall continue in Ontario, Quebec, Nova Scotia or New Brunswick, as if the Union had not been made; subject nevertheless to be repealed, abolished or altered . . . . 45. Similarly, Section 108, Commonwealth of Australia Constitution Act, 1900, though embodying a somewhat similar provision, has a different phraseology: Every law. . . . shall, subject to this Constitution, continue in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have . . . . powers of alteration and of repeal, etc., etc. 46. No doubt in Canada and Australia retrospective legislation has been upheld. But in the constitutions of these Dominions the language, as already quoted, is not identical with that used in Section 292 of the Indian Act. The corresponding Section 135, Union of South Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an end to the other laws previously in force. The latter is a little more than that, inasmuch as it affirmatively continues the other laws until such laws are hereafter altered, repealed or amended. In the former section, the word repeal related to the Constitutional Acts specified in the Schedule attached. In the latter section repealed, etc., refer to the other laws which are not repealed etc., by the Government of India Act, 1935, but may thereafter be repealed, etc. The effect certainly is that until altered, repealed or amended, such other laws do continue in force. The High Court was apparently impressed by the obvious departure from the phraseology of the old Section 130, as such a deliberate change is not ordinarily made without a special significance. 49. There is no doubt that the word until does ordinarily connote a point of time. Until altered, repealed or amended' is equivalent to saying 'until the alteration, repealment or amendment'. This can have two possible meanings-first, until the date from which the alteration, repealment or amendment takes place, and second, the date on which the Act altering or repealing or amending the previous law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, be held that there is nothing in Section 292, Government of India Act, which debars the Central or a Provincial Legislature, which has altered, repealed or amended a previously existing law, from giving the new provision a retrospective effect from dates earlier than when the Act is passed. 51. One must not, however, overlook the important provision that the previously existing law must in any case continue in force, until altered, repealed or amended. Unless, therefore, there is an Act which actually alters, repeals, or amends it, that law must, in view of the provisions of Section 292, continue in force and cannot be considered as nonexistent. Those provisions not merely preserve such laws but keep them in force until actually altered, repealed or amended. 52. But it is not absolutely necessary that a statute must be repealed by express language, e. g ., shown as repealed in an attached schedule. Repeal, and certainly alteration or amendment, can be effected by necessary implication also. When two Acts are clearly inconsistent with or repugnant to each other, the former will be deemed to have been impliedly repealed or amended, as the last expression of the will o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated in the lists of Schedule 7. But the lists are so comprehensive that apart from personal laws it would be only extremely rare cases which would not be covered by them at all. 56. Entry No. 21 of List II includes 'land, with rights therein, land tenures, including the relation of landlord and tenant, and the collection of rents,' besides other categories. This itself has a wide scope. If the impugned Act were in pith and substance one for remission of rent, it would be impossible to exclude it from this entry. Entry No. 2 of List II includes jurisdiction and powers of all Courts, with respect to any of the matters in that list. Accordingly, entries Nos. 2 and 21 read together would cover any restriction that may be imposed on the jurisdiction and powers of Courts, with respect to land, land tenures, relation of landlord and tenant, and collection of rents. As there is no category in List I or List III which is similar to entry No. 21 of List II, the latter must be given a liberal interpretation so as to invest Provincial Legislature with full power to legislate with respect to them, so long as such legislation does not conflict with any other provision. I am not pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by it, had in the first instance remitted or suspended whole or part of revenue, a Collector, or if so empowered by Government, a first class Assistant Collector, might order the remission or suspension of rents to an amount which shall bear the same proportion to the whole of the rent payable in respect of the land as the revenue of which the payment has been so remitted or suspended. Under Sub-section (2), where revenue has been wholly or partly released, compounded for or redeemed, remission or suspension of rent could be ordered by such authority and in accordance with such scale as the Local Government may by rule direct. This sub-section did not apply to the case where revenue had been remitted or suspended. Sub-section (3) made this provision applicable to a thekadar. Section 74(1) provided that an order under Sub-section (1) or Sub-section (2) of Section 73 shall not be questioned in any civil or revenue Court. Sub-section (2) provided that a suit shall not lie for the recovery of any rent of which the payment has been remitted or suspended in accordance with the provisions of Section 73. As already mentioned, the High Court in Muhammad Abdul Qaiyum v. Secre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of Courts of law, express and unambiguous words are necessary. No loopholes should be left for escape. The order of remission dealt with by the U. P. Act is not one necessarily within the four corners of Section 73, nor is there any specific reference to that section. The language actually used can suggest that the section was intended to prevent the order of the Provincial Government, or any authority empowered by it in that behalf, from being questioned. In the main section, the word order is used only when referring to the order of the Provincial Government or any authority empowered by it in that behalf . This is followed immediately by the words such order etc. . The word such ordinarily means 'aforementioned'. The normal construction of the section would then imply that such order of the Provincial Government, or any authority empowered by it in that behalf, shall not be called in question. 61. A reference to Section 73, Sub-section (2) shows that where revenue has been released, compounded for or redeemed (and not 'remitted' or 'suspended' as Under Sub-section (1)) the local Government can nominate an authority and make a rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned to, and does in substance, though not in form, validate the invalid orders as to remissions passed by the provincial executive . . . . In short the impugned Act, though disguised as an enactment regulating procedure, is, in fact and substance, an enactment regularizing illegal executive orders. It is a disguised and colourable legislation intended to serve the purpose indicated above, and this is not permissible. 64. Bajpai J. has said: The Act pretends to deal with procedure only for it attempts to regularize the remissions of rent and says that certain orders of the Provincial Government shall not be called in question in any civil or revenue Court, but this is only a masquerade and the real purport of the Act is to take away the rights of the landlords which were contained in Sections 73 and 74, Agra Tenancy Act, as-interpreted by this Court in Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158 I therefore feel inclined to hold that the Act does not deal merely with matters of procedure but deals with substantive rights as well. 65. Ismail J., has not expressed any such opinion. 66. Past orders - As regards past orders, Section 2 does not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rents for the entire province for the reminder of the period of the settlement, while not remitting any revenue at all. This would mean that landholders would be compelled to pay revenue to Government, although they would be prevented from realizing any rents at all from their tenants. For all practical purposes, this would amount to an extinction of the relation of landlord and tenant for the time being. Such a measure is highly inconceivable, and yet it is not beyond all possibility that a Government, bent on abolishing zamindari rights, may resort to it under the authority of this section. In spite of the confiscatory powers exercised by the Government, no remedy, whatsoever would be open to the aggrieved landholders in any civil or revenue Court to which alone they can have recourse. This section would therefore invest the Provincial Government with full powers to do what they like, no matter to what extent the contract between a landholder and his lessee is disturbed. Such a drastic interference may well infringe the proprietary rights possessed by landholders, and may also in an extreme case amount to a flagrant breach of the agreement entered into by the Government at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70. In Attorney-General for Canada v. Attorney-General for Ontario ('37) 24 AIR 1937 PC 89 at p. 367, Lord Atkin laid down: In other words, Dominion legislation, even though it deals with Dominion property, may yet be so framed as to invade rights within the province, or encroach upon the classes of subjects which are reserved to provincial competence. It is not necessary that it should be a colourable device, or a pretence. If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the province, or in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid. 71. As it was found that the impugned Act was in pith and substance an Insurance Act, affecting the civil rights of employers and employed, it was held to be ultra vires. In Attorney-General for British Columbia v. Attorney-General for Canada ('37) 24 AIR 1937 PC 91, Lord Atkin, after pointing out the limitation on the plenary power of the Dominion that Parliament shall not in the guise of enacting criminal legislation in truth and in substance encroach on any of the classes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts but also to protect Government officers against any suit for damages that may be brought on account of their illegal orders, or protect the Government in a suit brought against it Under Section 183, U. P. Land Revenue Act, (3 of 1926), (assuming that the suggestion made in Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158 was correct), then the U. P. Act which merely prevents such an order from being questioned in a civil or revenue Court, would not be so much with respect to collection of rents, as with respect to validating void orders. There is a clear distinction between challenging the legality of an order in the sense that for non-compliance with certain provisions of law it is invalid or ineffective, and challenging the authority, power or jurisdiction of the person or body, who issued that order. In the latter case the challenge is much more than merely calling in question the order itself. It is an assertion that the act of that authority or body was itself a nullity and no more binding than the act of a man in the street. If the U. P. Act, which obviously falls short of validating previous illegal and void orders, is principally for preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h any unfairness or injustice of the legislation, nor with any injury that may be caused to private rights so long as there is authority to pass it. The only protection available, even though of a limited character, is that contained in Section 299(3), Government of India Act, requiring a previous sanction of the Governor, and if that is gone then a representation that assent should be withheld. It would be too late to object afterwards. The want of a previous sanction of the Governor in the present case is cured by the assent given to the Act subsequently. In view of the fresh tenancy legislation that came into effect in the United Provinces later, the present case is probably the last pending case in which this difficult point has to be decided. 77. Pending action - The learned advocate for the plaintiffs has in the last resort sought to support the decree of the High Court on the ground that the impugned Act did not apply to the pending action at all. Unfortunately, this point was not raised or argued before the High Court, nor is this a constitutional question. But, if we overrule the High Court, we cannot direct it to modify its decree in the light of that Act without dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by any Court. In Henshall v. Porter (1923) 2 KB 193, the Court went further and held that the Gaming Act of 1922 did not prevent the bringing of an action under the repealed section of the older Act, even after the date when the Repealing Act came into force in respect of a cause of action which had arisen before that date. In Thistleton v. Frewer (1862) 31 LJ Ex 230,, followed in subsequent cases, it was held that Section 32, Medical Act, 1858 (C. 90) did not apply to an action for medical services begun before that date, but tried after it, although the section had enacted that no person should after 1st January 1859, recover any charge for medical treatment unless he shall prove at the trial that he was on the Medical Register. The case in Colonial Sugar Refining Co. v. Irving (1905) AC 369 was pending when the Commonwealth of Australia Constitution Act, 1900, came into force, Under Section 73 of which a decision of a Court of any State, from which an appeal would have previously lain to the Queen in Council, became appealable only to the High Court. At p. 372, Lord Macnaghten, while considering whether an appeal lay to the Privy Council, laid down the general principles appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... press terms refer to a pending suit.. In Mukherjee v. M st. Ram Ratan Kuer ('36) 23 AIR 1936 PC 49 the new Bihar Act had express words to the effect that all transactions from 1910 shall be deemed to be valid, which if applicable to the appeal would take away the appellant's right altogether. Their Lordships held that in view of that enactment the appeal should not be allowed. In Quilter v. Mapleson (1882) 9 QBD 672, a new Act had come into force, Section 14 of which made the section applicable to old leases as well, and which clearly deprived the landlord of a right to claim forfeiture. In that case the landlord had not till then re-entered. The Court of appeal applied the new Act on the ground that appeals had the character of rehearing and the appellate Court could make such order as ought to be made according to the state of things at that time. 84. As already mentioned, the landholders in the present case ignoring the order of remission had claimed the full amount of the arrears of rent from the very beginning. Even in the second appeal before the High Court, they had challenged the order of remissions of rent in grounds Nos. 2, 3 and 6 of their memorandum of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also there been made to the stage at which the Government of the United Provinces came to be impleaded as a party to this litigation and to the fact that this appeal has been preferred not by the original defendant but by the Government of the United Provinces. 86. At the hearing of this appeal, the learned counsel for the plaintiffs-respondents took a preliminary objection to the maintainability of the appeal by the Government of the United Provinces. He contended that there was no decree in this case against that Government, that the Government was not aggrieved or affected by the decree of the High Court and that it accordingly had no locus standi to prefer the appeal. Though Section 205, Constitution Act, provides in general terms that any party in the case may, appeal to the Federal Court, the learned counsel maintained that these general words must be limited in the manner in which Section 96, Civil P.C, has been limited, and he argued that the mere fact that the United Provinces Government had been formally impleaded as a party in the second appeal would not give it a right to appeal to this Court. He further said that where a person who ought not to have been implea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C.; but an examination of the facts of that case and of the decisions referred to in that judgment will show that in these cases, the person added was not really a third party but one who on some recognized principle would be bound by the result of the litigation. In Moser v. Morsden (1892)1 Ch 487, the Court of appeal (in reversal of the trial Court's order) dismissed the application of the third party, even while recognizing that that party might be indirectly affected by the result of the case. The allegation made in support of the petition in that case was that the defendant on record will not contest the case properly and yet Kay L. J. was content to answer we cannot help that. It however appears to me that in a case like the present, it will not be right to regard the state as standing for all purposes on the same footing as a private third party. Its character as the guardian of the public interests cannot be ignored and it will not be right to limit its interest in a litigation strictly to cases in which its pecuniary or proprietary interests or the interests of the public revenue are involved. 88. In most of the Indian decisions bearing on the question of jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty to the suit. The result is that even in proceedings similar to those in which the Attorney-General will merely intervene according to the English or the Dominion practice, the same result has to be attained in this country by impleading the Government as a party. The new Constitution Act (taken with the adaptation of Section79, Civil P.C.) has introduced a further complication as a result of the provision that in suits by or against the Crown, the Governor-General should be named as the plaintiff or the defendant in certain cases, that in certain other cases the provinces should be so named, and that in a third group of cases the Secretary of State's name should be stated. But in whatever form the cause title may run, the theory is that the Grown is the party. It may he added that even when the Attorney-General figures as the party in England the theory is that the Grown is a party to the litigation through him: see Attorney-General v. Logan (1891) 2 QB 100 at page 106 and Attorney-General v. Cockermouth Local Board (1874) 18 Eq 172 at page 176. Such being the state of the law and of precedents as to the position of the Government in this country or the Advocate-General in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to intervene on behalf of the Secretary of State in a succession certificate proceeding with a view to contend that the High Court on its original side could only grant letters of administration but not a succession certificate. It is possible to suggest that the interests of Government revenue were concerned here, because on the issue of letters of administration succession duty might be payable on the whole estate whereas a succession certificate could be limited to particular debts and the duty payable to Government correspondingly reduced. But the learned Judge (Remfry J.) did not merely hear the Advocate-General on the question of jurisdiction or court-fee, but added the Secretary of State as a party. The very circumstance that in the present case the High Court thought it proper to issue notice to the Provincial Government involves a recognition of the fact that the Government was interested in the question raised - presumably as representing the large class of subjects for whose benefit the Act was intended -though its interest may be limited to the general question, viz., the validity of the enactment. There was also the fact that the remission whose legality was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. It was however realised that a rule so limited might cause hardship in some cases. An extension was therefore made by conceding a right of appeal to a party who might be bound by a finding in the judgment, though there was no decree against him: see the cases reviewed in Harachandra Das v. Bholanath Das ('35) 62 Cal 701 Section 205, Constitution Act, provides for an appeal ' from any judgment, decree or final order -an expression which has received varying interpretations-and Sub-section (2) of the section enacts that any party in the case may appeal . Why should this express provision be qualified by adding the words if adversely affected by the decree? It may be taken as a matter of common sense that there can and will be no appeal when there is nothing to appeal about : see Krishna Chandra Goldar v. Mohesh Chandra Saha ('05) 9 CWN 584 at p. 588. But why limit the grievance to a grievance about the decree? Even on the footing that the general language of Section 205(2) may or must be limited in some manner, it seems to me that its scope ought not to be unduly narrowed so far as the Government (whether Central or Provincial) in this country is concerned. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason why the principle should be different in a case like the present. Neither in the one case nor in the other has the Advocate-General or the Crown or the State any pecuniary or proprietary interest if that is to be the sole test. The right of appeal being a creature of the statute, the right of one who is within the terms of the statute cannot, it seems to me, reasonably be denied when even on the broader ground of interest in the litigation, it is conceded that he is sufficiently interested to justify his claim to be heard. In John Deere Plow Co. v. Wharton ('14) 1 AIR 1914 PC 174 the parties concerned had themselves preferred an appeal to the Judicial Committee and the Attorneys-General of Canada and British Columbia seem to have intervened before the Judicial Committee. The case therefore throws no light on the question of the right of the Attorney-General of the Dominion to prefer an appeal in a case where he had intervened even in the lower Court. The report of the decision in Att.-Gen. for Alberta (Intervenant) v. Kazakawich (1937) Can SCR 427 referred to in my Lord's judgment is very brief and it does not appear whether the decision was based on the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 as containing a direction by Parliament that the law then in force must in any event continue up to a specified date, namely, the date of its alteration, repeal or amendment by a later Act of the Legislatures in India; and, it was sought to be inferred therefrom that no later Act of such Legislatures can by words of retrospective operation antedate its effect so as to affect rights acquired under a previous law down to the date of the new legislation. At one stage, the learned counsel for the plaintiffs even went so far as to suggest that the Legislatures in India had been deprived by this provision of the power of enacting at any time laws with retrospective effect, or they were at least incompetent to extend the retrospective operation of their enactments to a period anterior to 1st April 1937, when the Constitution Act came into operation in the provinces. These arguments were, however, not persisted in, when it was pointed out that the Indian Legislatures were, within the statutory limits assigned to them, bodies possessing plenary powers: see Reg. v. Burah (1878) 3 AC 889, Archibald G. Hodge v. Reg (1883) 9 AC 117 at p. 132 and Croft v. Dunphy ('38) 20 AIR 1933 PC 16, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing this view. It is true that; the remission which the impugned Act sought to regularise was not one made in conformity with the provisions of Section 73 of the Act of 1926. But such regularisation would only mean the addition of a new head of remission; it may amount to an alteration, or amendment of the old Act, but will not necessarily involve a repeal of Section 73 of that Act. The co-existence of two kinds of remission given for different reasons is not inconceivable or impossible. It can of course be said that the impugned. Act retrospectively deprived landlords of a share of the rent to which they had already acquired a right. But if on general principles a Legislature has ordinarily power-for reasons which it is not open to the Court to investigate-to enact measures which by retrospective operation may deprive some subjects of vested rights, I see no sufficient reason for treating the present case as standing on any special footing. In this view, it will follow that there is no reason for saying (as Bajpai J. has said) that the impugned Act has attempted to do something indirectly which, it could not do directly . 99. Reference has been made in the judgments; of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emission of rent having been made under orders of the Provincial Government by reason of the fall in the prices of agricultural produce which took place before the commencement of the Act. The succeeding words can, as a matter of grammar only, mean that the order of remission thus passed shall not be called in question. There can thus be little doubt that the Act intended to deal and does deal with the subject of remission of rent made under orders of the Provincial Government. It can make no difference for the present purpose whether it laid down general provisions for remission of rent for all time or dealt with the remission made or to be made in particular years. The subject-matter in every one of these cases must be held to be remission of rent. 102. A point was raised in the course of the discussion before us, whether the words such order'' in Section 2 of Act 14 of 1938 referred to the order of the Provincial Government authorising the remission in general terms or to the consequent orders passed by revenue officers fixing the remission in the case of each individual or holding. I am inclined to think that the reference must be to the order passed by the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween what is substantial and what is only incidental does not arise for consideration. 104. In coming to the conclusion that the impugned Act did not fall within any of the heads enumerated in item 21 of List II, Iqbal Ahmad J., gave it as one of his reasons that that item could only cover provisions of substantive law and that the impugned Act did not embody any provision of substantive law either in respect of rights over land or land tenures or the relation of landlord and tenant or the collection of rent. The fact that the provision is couched in the form of an immunity of the remission order from attack in a civil or revenue court will not, I think, take away from its character as one depriving the landlord of his right to the full rent. It is well settled that the substance of the legislation has to be examined to see what the Legislature was doing, and the form which the statute may have assumed under the hand of the draftsman is not decisive. As explained by Dr. Asthana, it might have been thought sufficient to frame the new Act on the lines of clause (1) of Section 74, Tenancy Act of 1926. The learned Judge enumerated certain provisions which he would regard as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. Further the power recognized by this rule as also the one referred to in Order 41, Rule 33, Civil P.C., is only discretionary and the present case is not in my opinion one in which any discretionary power ought to be exercised in favour of the contesting defendant. He has not merely acquiesced in the decree of the High Court, he has not even appeared before this Court to explain the circumstances in which he did not choose to appeal nor to ask for its modification. This is significant in view of the suggestion thrown out by Dr. Asthana that the original parties to the litigation have in all probability come to a settlement. I am accordingly of opinion that notwithstanding this Court's acceptance of the appellant's contention as to the validity of the impugned Act, there is no justification for disturbing the decree passed by the High Court in the case. 106. Two more contentions of the learned counsel for the respondents remain to be noticed. It was argued that Act 14 of 1938 even if valid, would not preclude the plaintiffs in this case from recovering the full rent due to them, because the Act had not been made applicable to pending actions. There can be little doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the United Provinces Government can be said to be interested. As I have already indicated that as between the original parties to this suit there is no justification for this Court's interference with the decree of the High Court, I do not find it necessary to express any definite opinion on the question of the extent to which the impugned Act operates retrospectively. For the same reason, I refrain from expressing any opinion on the argument urged by the learned counsel for the respondents, as to the effect of the absence from the impugned Act of a clause corresponding to Section 74(2), Agra Tenancy Act, 1926, and Section 5(2) of Act 17 of 1938. He argued that it might be that the impugned Act prevented the order of remission being questioned in a Court, but this would not of itself take away the contractual right of the landlord to the full rent or absolve the tenant from liability for the full amount of the stipulated rent. This again is a question relating to the construction of the Act and does not bear upon the question of its validity; and as it has not been raised or discussed before the High Court, I prefer to leave it alone, as I have held that this appeal should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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