MODI, J. - (1.) THIS miscellaneous application by the respondents Madanlal and Krishan Kumar in civil second appeal No. 727 of 1959 raises an important question as to the validity of rule 5 (11) of the Rajasthan Zamindari and Biswedari Abolition Rules, 1959, as amended (hereinafter called the Rules) in circumstances presently to be mentioned.
(2.) THE respondents were plaintiffs in this suit for specific performance of an agreement to transfer certain land, which was decreed against the defendants by both Courts below. THE defendants then came to this Court in second appeal No. 727 of 1959. By my judgment dated the 20th July, 1960, this appeal was stayed and eventually ordered to be abated by force of clause (1) of Sec. 5 (2) of the Rajasthan Zamindari and Biswedari Abolition Act, 1959 (Act No. 8 of 1959) (hereinafter called the Act) read with rule 5 of the Rules made under the Act. THE plaintiffs respondents have now preferred the present application under sub-rule (11) of Rule 5 of the Rules, which rule has since been amended by the Government of Rajasthan by its Notification No, F. 1 (152) Rev. A/59 dated the 23rd December, 1960, published in the Rajasthan Rajpatra Part IV (C) dated the 2nd February, 1961, 2nd the prayer is that the appeal be revived and re-admitted to its original number and disposed of on the merits. Rule 5 as amended reads as follows : - "suits and proceedings affecting abolished estates : - (1) In all suits and proceedings by or against the Biswedar or Zamindar affecting his estate that has vested in the State Government by a notification issued under sec. 4 of the Act in which, because of such vesting the State Govern-nment will be a necessary party, that were pending in any court, civil or revenue, at the date of vesting, and in all proceedings consequent upon any decree or order passed in any such suit or proceeding before the said date, the court shall give a notice to the Collector (in whose district such estate is situated) regarding the pendency of the said suit or proceeding. (2) If any application is made in that be half by any party to such suit or proceeding or by the Collector, the court, after notice to other parties, shall cause the State Government to be made a party and shall proceed with the suit or the proceeding as the case may be. The State Government so made a party may make any defence appropriate to its character on account of the vesting of the estate in it. (3) Where, within the time limited hereunder no application is made under sub-rule (2), the suit or proceeding shall abate as regards the reliefs for or against the Biswedar's or Zamindar's estate that has vested in the State Government. (4) That application under sub-rule (2) may be made within three months by the Collector from the date of the service of notice on him and by any of the parties from the date when the court directs issue of notice to the Collector. (5) Where a question arises as to whether a State Government is or is not the necessary party, such question shall be determined by the court. (6) Notwithstanding anything contained in the foregoing sub-rules, whether the cause of action survives or not, there shall be no abatement by reason of the: vesting of the estate in the State Government between the conclusion of the healing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the vesting and shall have the same force and effect as if it had been pronounced before the vesting took place. (7) (i) Where a suit or proceeding abates under this rule, no fresh suit or proceeding shall be brought on the same cause of action. (ii) The State Government or the party effected may apply for the order to set aside the abatement; and if it is proved that it was prevented by any sufficient cause from continuing the suit or the proceeding, the court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit. (iii) The provisions of sec. 6 of the Indian Limitation Act, 1877, shall apply to applications under clause (ii ). (8) In the application of this rule to appeals and revisions, etc. , so far as may be, the word "suit" shall be held to include an appeal or a revision or a reference. (9) The provisions of this rule shall apply to proceedings in execution of a decree or order. (10) Immediately on receipt of a notice issued under sub-rule (1) or on an application under sub-rule (2), the Collector shall take steps for proper representation in the suit or the proceedings as the case may be. (11) All suits and proceedings that have been stayed in accordance with clause (i) of sub- sec. (2) of sec. 5 of the Act as it stood prior to the 4th of July 1960 and abated in accordance with rule 5 of these rules as it stood prior to this amendment shall be revived, suo-moto or otherwise by the court. Whereupon the provisions of sub-rules (1) to (10) shall be applicable. We are principally concerned with sub-rule (11) which I have underlined above for facility of reference, Now, rule 5 originally stood as follows: - "abatement of suit or proceeding by court or authority.- Every suit or proceeding, whether pending in the court of first instance or in appeal or on revision, stayed under clause (i) of sub-sec. (2) of sec. 5 of the Act shall be abated by the court or the authority before which it may be pending after giving notice to the parties and giving them an opportunity of being heard. " It may be stated at this place that the Act of 1959 came into force on the 1st November, 59. The Rules also came into force simultaneously. This Act was enacted, as its preamble says, to provide for the abolition of, and the acquisition of the right, title and interest in, estates held by Zamindars and Biswedars in this State and with other matters connected therewith. The scheme of the Act was that the abolition of and the acquisition of the right, title and interest of a Zamindar or Biswedar in his estate was to take place after the issue of a notification by by the State Government for vesting of such estate therein and it was then to stand transferred to the State Government and vested in the State free from all encumbrances. This is, broadly speaking, the effect of secs. 4 and 5 of the Act. Clause (1) of sub-sec. (2) of sec. 5 of the Act, at the time I disposed of the appeal stood as follows: - "subject to any rules made in this behalf, all suits and proceedings relating to such estate pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any decree or order passed in any such suit or proceeding before such date, shall be stayed. " Then sec. 36 gives the State Government power to make rules to carry out all or any of the purposes of this Act. It would be thus clear that when I had ordered the suit, out of which the present application arises, to be abated, it was by virtue of sec. 5 (2) (1) of the Act read with R. 5 of the Rules as they stood then that I did so. It is necessary to point out at this stage that cl. (1) of sub-sec, (2) of sec. 5 of the Act was retrospectively amended by the Rajasthan Zamindari and Biswedari Abolition (Amendment) Ordinance, 1969 (No. 7 of 1960) as follows: - "subject to any rules made in this behalf, all suits and proceedings affecting such estate in which because of the same having vested in the State Government, the latter will be a necessary party pending in any court, civil or revenue, at the date of vesting, and all proceedings consequent upon any decree or order passed in any such suit or proceeding before such date shall be stayed. " This Ordinance came into force on the 4th July, 1960. This clause was eventually amended by the Rajasthan Zamindari and Biswedari Abolition (Amendment) Act, 1960 (Act No. 35 of 1959) by which Ordinance No. 7 of 1960 was repealed so that it now reads as follows - " (1) Subject to any rules made in this behalf, all suits and proceedings effecting such estate, in which, because of the same having vested in the State Government, the latter will be a necessary party, pending in any court, civil or revenue, at the date of vesting, and all proceedings conse quent upon any decree or order passed in any such suit or proceeding before such date, shall not be proceeded with till, on an application made in that behalf, the State Government is made a party thereto. '' This amendment was published in the Rajasthan State Gazette on the 27th September, 1960, and came into force on that date, and this is how this provision stands at the present moment. The point to note is that this section has been amended with retrospective effect, inasmuch as it has been stated in the amending provision that the section shall be and shall be deemed always to have been substituted as it stands now. It would be well to remember that it was after this amendment of the statute that rule 5 came to be consequentially amended as stated above. It is in these circumstances that the precise effect of sub-rule (11) of rule 5 falls to be considered. Put in plain language, this rule provides that all suits and proceedings which were stayed and abated in accordance with the law as it stood before the Ordinance No. 7 of 1960 came into force shall be revived by the court suo-moto or on an application by a party, whereupon the case will be dealt with in accordance with the provisions of sub-rules (1) to (10) of Rule 5 as set out above. Now, it was forcefully contended by learned counsel for the defendants appellants that the Government which is the rule-making authority under the Act had no power to amend rule 5 of the Rules retrospectively so as to affect the cases which already stood finally disposed of by the order of the Court and therefore sub-rule (11) was void and inoperative. In other words, what was contended for was that the order of this Court holding that the suit out of which this appeal arose had abated had become final, and that order having become final could not be deprived of its finality by the executive under its rule making powers. Reliance was placed in this connection on sec. 23 of the Rajasthan General Clauses Act 1955 (No. 8 of 1955), which reads as follows : - "power to make or issue to include power to add to, amend, vary or rescind orders etc.- Where, by any Rajasthan law, a power to make or issue orders, rules; regulations, schemes, forms, bye-laws or notifications is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions (if any), to add, to amend, vary or rescind any orders, rules, regulations, schemes, forms, bye-laws or notifications so made or issued. " It was further submitted that there was authority for holding that sec. 23 does not permit the rule-making authority to make rules retrospectively, and my attention was invited in this connection to a bench decision of this Court in M. S. U. Mills Vs. Industrial Tribunal, Jaipur (1) and to the decision of their Lordships of the Supreme Court in Strawboard Manufacturing Co. Ltd. , Vs. Gutta Mill Workers' Union (2) referred to in that case. The effect of these decisions undoubtedly is that the rule-making authority broadly speaking, has no power to amend rules retrospectively, and that if they are so amended, these can only come into effect prospectively and they would be void and inoperative in so far as they are intended to have retrospective operation. On the other hand, learned counsel for the respondents stre-nuosly argued that the appeal had not been decided by this Court on the merits and that it had only been abated and therefore it was, as if in a state of suspended animation, and consequently if the rule-making authority made a provision that it could be revived, that did not amount to any retrospective operation of the rule. Now, so far as this last mentioned argument is concerned, it does not appear to me to have much substance. For the notion of abatement as it seems to have been employed in the framing of rule 5, as it stood prior to the present amendment, cannot, in my opinion, be equated with the kind of abatement which comes into play under sec. 22 C. P. C. The abatement that occurs under the last-mentioned provision is automatic, whereas the abatement of which rule 5 speaks has to be made by an Order of the Court, and is, therefore, essentially different in its character from the former. Besides, unlike the abatement under the Code of Civil Procedure, there was no provision to be found for setting aside the abatement under the law as it stood at the time of the decision of the appeal. In the circumstances, it seems to me that the expression "abatement" was used in its general sense of the mere termination of a proceeding without more. In its ordinary dictionary meaning, the word "abate" ments "to put an end to", "to terminate". Therefore, it cannot be justifiably premised that when this Court ordered the litigation, out of which this appeal arose, to be abated by its order dated 20th July, 1960, it merely said or did some thing which amounted to placing the same under some kind of suspension. In fact, after the order of abatement was passed, the litigation was closed once and for all so far as this Court or any of the courts subordinate to it were concerned. It further appears to me that a provision which would deprive such an order of its finality by an amendment of the rules which it would otherwise have by a subsequent amendment thereof would be doing something retrospectively. And I am satisfied, both on authority as well as principle, that rule, as such, cannot be so amended with retrospective force by an agency which, after all is said and done, is a delegate of the sovereign statutory authority, (which is the Legislature. All this is perfectly true so far as it goes; but the matter, in my opinion, is not concluded by this. For, I am disposed to think that here there was not merely an amendment of the rule which has the effect of the re-opening of a case decided and determined on the ground of abatement, but the parent Act also was amended by the Legislature with retrospective effect. It is this, in my judgment that clinches the issue. I would here draw pointed attention to the amendment of clause (1) of sec. 5 (2) of the Act by the Amendment Act 35 of 1960. This amendment, once it came to be enacted, in my opinion, unmistakably prevents a court from proceeding with a suit or proceeding affecting a Biswedari or a Zamindari estate, wherein because of the same having vested in the State Government, the latter is a necessary party until the State Government is made a party thereto. It is further significant that this provision is subject to any rules made in this behalf. That apart, however, the most important thing to remember about this amendment is that it has been made retrospectively, inasmuch as it has been mentioned in the amending Act, that it shall be and shall be deemed always to have been substituted for the original provision as contained in the Act. The position, therefore, boils down to this that in a case, like the present, where admittedly the estate was of a Biswedar and it had vested in the State Government, the court could not have possibly proceeded with the appeal arising out of the suit until the State Government was made a party, and in these circumstances, it seems to me clear that the rule-making authority in enacting sub-rule (11) of rule 5 of the Rules was only following the mandate of the Legislature and not doing something on its own authority when it said that all suits which had been stayed and abated in accordance with the state of the law as it stood prior to the 4th July, 1960, shall be revived by the court suo-moto or otherwise and thereupon the provisions of sub-rules (1) to (10) shall be applicable. In other words, in the context in which it appears, sub-rule (11) is nothing more than a consequential provision and the correct position in law is that whatever retrospective force rule 5 as amended possesses is not by virtue of anything contained in the rule itself but it derives its efficacy by virtue of sec. 5 (2) (1) as amended by the Amendment Act No. 3 5 of 1960. 20. In this view of the matter, I find myself unable to hold that rule 5 (11) is invalid inasmuch as it merely carries out the purpose of sec. 5 (2) (1) of the Act which the Legistlature, in its wisdom, has thought fit to amend retrospectively. 1 hold accordingly. 21. For the reasons mentioned above, I allow this application, vacate my judgment dated the 20th July, 1960, and hereby direct that the appeal shall be restored to its original number and that notice shall go to the Collector in whose district the estate is situate regarding the pendency of this application shall this appeal. I further direct that the appellants who are respondents in I take such further steps for making the Government a party to the appeal as may be necessary under the rules. There will be no order as to costs of this application. . ;