- (1.) THIS is a petition under Art. 226 of the Constitution of India.
(2.) RESPONDENT No. 3 Chhaju, made an application to the Sub-Divisional Officer, Behror, on 11th June, 1952, on the allegations that he was a cultivator of the fourth share in his plots of land measuring in all 16 bighas and 11 biswas situated at village Rampur, but had been wrongfully dispossessed by Ram Deo and Lakhmi Singh on 1st June, 1952. He claimed to be put in possession of the land falling to his share under sec. 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949. The Sub-Divisional Officer, Behror, dismissed the petition, and Chhaju filed a revision application before the Board of Revenue on 12th March, 1953. The Board, after entertaining the application, fixed 28th August, 1953, for hearing. The present petition has been made for prohibiting the Board of Revenue to proceed with the application on the ground that the operation of the Rajasthan (Protection of Tenants) Ordinance (No. IX of 1949) had come to an end, and the Revenue Board had no jurisdiction to proceed further in the matter of the revision. The Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949) (hereinafter called R. T. O. 1949), was promulgated by the Rajpramukh on 21st June, 1949, and sub-sec. (3) of section 1 thereof provided that: - "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. " On 14th June, 1951, the Rajpramukh issued a notification No, F. 1 (2) Rev. /50 dated 14th June, 1951, as follows ; - "in pursuance of sub-sec. (3) of sec. 1 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949), R. H. 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 the 21st of June, 1951 " The validity of this extension was challenged by learned counsel for the petitioner, but the point is covered by two decisions of this Court, viz , Sukhlal vs. Revenue Board Rajasthan (1) and Sadaria vs. The Rajasthan Board of Revenue (2) (Since reported as 1955 R. L. W. 355 ). It was said In these case that the Rajpramukh extension, which was equivalent to legislation, had been properly made. We agree with the view taken in these cases and no new ground was urged in support of the contention that the said extension was invalid. The period of extension by the aforesaid notification, however, expired on 21st June, 1953, and on 20th June, 1953, the Rajpramukh issued a notification No F. 1 (4) Rev. l/b/52 to the following effect: - "in exercise of the powers conferred by sub-sec. 3 of sec. 1 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No IX of 1949), H. H. the Rajpramukh is pleased further to extend the period for which the said Ordinance shall remain in force for a further term of one year with effect from 21st day of June 1953. " Learned counsel for the petitioner contended that this second extension was invalid. A two-fold argument was advanced in this connection. The Notification, on the face of it, purports to have been issued under a delegated power. By that date the State Legislature had been constituted, and extension of law, which amounted to a fresh legislation, could not have been made under a delegated power. Further, Sec. 1, sub-sec. (3) R. P. T. O. 1949 did not purport to delegate any power to the Rajpramukh. Reliance was placed on the decision of this Court in Sadaria vs. The Rajasthan Board of Revenue (2), referred to above. It may be pointed out that Raj-pramukh's power to legislate conferred upon him by the Covenant entered into by the Rulers in 1949 was preserved by Art. 335 of the Constitution only for such period as the Legislature of the State had not been duly constituted and summoned to meet for the first session under the provision of the Constitution. That body had been constituted and had met prior to 20th of June 1953, and, therefore, the legislative powers under Art. 385 had come to an end. The other power conferred upon the Rajpramukh under Art. 213 had not been exercised in issuing the Notification of 20th June, 1953, and need not be examined. The Rajpramukh having no legislative power under Art. 385 of the Constitution, the Notification extending the duration of Ordinance No. IX of 1949 for one year with effect from 21st June, 1953. under colour of power delegated to him was invalid, as being legislation under a delegated authority. In Sadaria's case it was also held that no power had been delegated to the Rajpramukh by sec. 1 (3) R. P. T. O. 1949, and that if he purported to extend the R. P. T. O. under a delegated authority, it would be invalid. The validity of the first extension was, however, upheld as on the earlier occasion the Rajpramukh had vested in him the power to legislate, because the State Legislature had not been constituted till then, and the Notification did not purport to have been issued in exercise of any delegated power, The aforesaid finding as to the invalidity of the second extension is, however, not sufficient to dispose of the case. It seems that the contention of the State that a power had been delegated by sub-sec. (3) of sec. l of the R. P. T. O. 1949 to the Rajpramukh to extend the Notification having been questioned in Sadari's case and the invalidity of the extension of a law under a delegated power having been canali-sed out in that case, the Government felt that legislative measures were necessary to cure the invalidity of the extension, and the Rajpramukh in exercise of his powers under Art. 213 of the Constitution promulgated an Ordinance No. III of 1954 on the 15th of February, 1954, while the present petition was pending, It consists of the following three sections: - "1. (1) This Ordinance may be called the Rajasthan (Protection of Tenants) Amendment Ordinance, 1954. (2) It shall be deemed to have come into force on the 21st day of June, 1949. 2. For sub-sec. (3) of sec. 1 of the Rajasthan (Protection of Tenants) Ordinance, l949, (hereinafter referred to as the said Ordinance), the following sub-section shall be substituted and shall be deemed always to have been substituted namely: - " (3) It shall come into force at once and shall remain in force for a period of five years. " 3. For the removal of doubts, it is hereby declared that notwithstanding any defect in sub-sec. (3) of sec. 1 of the said Ordinance as originally enacted or in any notification issued by the Raj Pramukh thereunder, the said Ordinance as amended by this Ordinance shall be and shall always be deemed to have been validly in operation from the 21st day of June, 1949. " The State Legislature soon after passed the Rajasthan (Protection of Tenants) Amendment Act; 1954 (Act No. X of 1954), which received the assent of the Raj Pramukh on 16th April, 1954, and was published on the next day. It consists of 4 sections which are as follows: - "1. (1) This Act may be called the Rajasthan (Protection of Tenants) Amendment Act, 1954. (2) It shall be deemed to have come into force on the 21st day of June, 1949. 2. For sub-sec. (3) of sec- 1 of the Rajasthan (Protection of Tenants) Ordinance, 1949 (hereinafter referred to as the said Ordinance), the following sub section shall be substituted and shall be deemed always to have been substituted namely: - " (3) It shall come into force at once and shall remain in force for a period of seven years. " 3. For the removal of doubts it is hereby declared that notwithstanding any defect in sub-sec. , (3) of sec. 1 of the said Ordinance as originally enacted or in any notification issued by the Raj Pramukh thereunder, the said Ordinance as amended by this Act shall be and shall always be deemed to have been validly in operation from the 21st day of June. 1949. 4. The Rajasthan (Asamiyon ke Sanarakshan ka Sanshodhan Adhyadesh, 1954. The Rajasthan (Protection of Ten-ants) Amendment Ordinance, 1954, (Rajasthan Ordinance No. III of 1954) is hereby repealed but not so as to affect in any way its previous operation. " The learned Advocate General contended that the effect of the Ordinance and the Act was that the duration of the Ordinance No. IX of 1949 became 7 years from 21st June, 1949, and, therefore, the Board of Revenue continued to have jurisdiction to entertain revision according to the provisions of Ordinance No. IX of 1949 even after the original period had expired in 1951. Learned counsel for the petitioner challenged the validity of Ordinance No, III of 1954 and Act No. X of 1954 on the ground that Ordinance No. IX of 1949 had expired on the 21st of June, 1951, and even if the first extension from 21st June, 1951, be held to be valid as held by this Court in the two cases referred to above, it came to an end on the 21st of June, 1953. The extension for another year by notification of 20th June, 1955, being in-valid, the Ordinance expired, at any rate, on the 21st of June, 1953, and having become dead, it could not be rejuvenated by Ordinance No. III of 1954 or Act No X of 1954, which were promulgated on 15th February, 1954, and 17th April, 1954, respectively. The contention of learned counsel for the petitioner is that after the expiry of Ordinance No. IX of 1949 at the latest on 21st June, 1953, it remained obliterated from the Statute book, and could not be revived except in the manner indicated in Jatindra Nath Gupta vs. Province of Bihar (3) Reliance was placed on the following observation of Mahajan J. (as he then was) at page 187: - "the only apt manner of reviving the , expired Act was by enacting a fresh statute or by enacting a statute expressly saying that Act is herewith revived. " It may be pointed out that the observations of the learned Judge of the Federal Court only illustrated the manner in which a revival of an expired Act could be effected and cannot be taken to be an exhaustive enumeration of the manner in which a revival of an expired statute can be made. In the case before their Lordships of the Faderal Court, sec. 1 (3) of the Bihar Maintenance of Public Order Act, 1947, provided that * it shall remain in force for a period of one year from the date of its commencement". It had a proviso in the following terms: - "provided that the Provincial Government may, 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 modifications, if any, as may be specified in the notification. " A notification was published on 11th March, 1949 extending the Bihar Maintenance of Public Order Act, 1947, for a further period of one year from 15th March, 1948, mention-ing that a resolution had been passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council for extending the period of the Act for one year. On 15th March, 1949, Bihar Act V of 1949 was public Order Act, 1947, and the material part was in these terms: - "whereas it was expedient to amend the Bihar Maintenance of Public Order Act 1947, in the manner hereinafter appearing, it is hereby enacted as follows; (2j In sub-sec. 3 of sec. 1 (Bihar) Maintenance of Public Order Act 1947, for the words 'for a period of one year from the date of its commencement, the words and figures 'till 31st March 1950', shall substituted. " Their Lordship of the Federal Court held that the power to extend the duration of the Act for a further period of one year, with modification, if any, was ultra vires, and therefore, the first extension made by the Governor of Bihar beyond the first year mentioned in the Act was ultra vires On contention being raised by the State of Bihar that even if the extension be invalid, the amendment made by the Bihar Act No. V of 1949 by substituting 'till 31st March 1950' in place of 'for a period of one year from the date of its commencement' made the Act of 1947 in operation till the aforesaid date, it was held that the Bihar Maintenance of Public Order Act was only a temporary Act and came to an end with the expiration of the first year,and the Act was not (thereafter) in operation so as to be capable of being amended, and unless the Act of 1947 was revived, no amendment made could be of any effect. The Bihar Act No. V of 1949 was not declared to be in force retrospectively, and no the date when the amendment was made in the parent Act, the said Act was no longer in force. There is, however, no doubt that if the Legislature is competent to make an Act, it may declare that it would be retrospective in its operation. The authority of the Rajpramukh to promulgate Ordinance No. III of 1954 of the State Legislature to enact Act X of 1954 has not been challenged. According to the first section of the Ordinance it was declared to come into force on the 21st day of June, 1949. The second section purported to amend sub-sec. (3) of sec. 1 of the R. P. T. O. 1949 by substituting a period of 5 years for a period of two years The effect of the two sections is that the substitution of the period of duration of 5 years, for 2 years was made on 21st June, 1949, when the R. P. T. O. 1949 was in force. The present case is, therefore, distinguishable from the case of Jatindra Nath Gupta (3), inasmuch as in the case of Jatindra Nath the amendment was brought into force on a day when the parent law was no longer in operation. Similarly Act No. X of 1954 purported to amend Ordinance No. 21st of 1949 on 21st of June, 1949, when it was in force by substituting a period of 7 years for a period of 2years (according to the parent Act, or five years according to the amendment made by the Ordinance ).
(3.) IN Ram Kishan vs. State (4) a certain Act expired on 20th September, 1947, and subsequent attempts to keep it alive or continue its operation by an Ordinance and Act brought into force on 23-9 48 and 16. 12. 48 respectively were held to be unsuccessful for two reasons viz. , "1. Neither the Ordinance, nor the Act purports to have retrospective effect as both of these proceed explicitly on the footing that the Act was alive till the date of their one enactment. 2. Neither if them purports to revive an enactment which had already ceased to be operative. " In the present case both the Ordinance No. III of 1954 and No. X of 1954 were retrospective in their operation, as having been declared to have come into force on the 21st day of June, 1949. As observed by Mukherjee J. in the case of Jatindra Nath (3) at page 192: - "it is certainly competent to the Legislature in exercise of its plenary powers to revive or re-enact a legislation which has already expired lapse of time. The Legislature is also competent to legislate with retrospective effect. " Learned counsel for the petitioner relied on In re Kalyanam Veerabhadrayya (5 ). In that case the Madras Maintenance of Public Order Act, 1947, received the assent of the Governor-General on 11th March, 1947 and was published on the 13th March, 1947, and its duration was fixed for a period of one year, but the Provincial Government was empowered to extend the continuance of this Act for a further period not exceeding one year. Before the expiry of the period of one year the Provincial Government extended the duration for a further period of one year from 12th March, 1948. The Act was amended by Act No. XVII of 1949 by substituting for the words "for a further period or periods not exceeding one year in the aggregate" the words "for a further period or periods not exceeding three years in the aggregate". The Amending Act received the assent of the Governor General on 17th August, 1948, and was published in the Gazette on 20th August, 1949, and was published in the Gazette on 20th August, 1948. The life on the Act was extended by another notification for a period of one year from 19th March, 1949. The Federal Court decided on 22nd May, 1949, in Jatindra Nath Gupta vs. Province of Bihar that the power delegated to the Provincial Government to extent the duration of the Bihar Maintenance of Public Order Act, 1947, on a resolution passed by the Legislative Assembly and agreed to by the Bihar Legislative Council, without notification was invalid, and that the said. Act ceased to have operation on the termination of the period of one year from the commencement of that Act. The Calcutta High Court declared on the 27th of June, 1949, in Badal Bose vs. Chief Secretary Government of West Bengal (6) that the power of extending the life of an Act by a resolution of the Provincial Legislature contained in the West Bengal Security Act, 1948, was invalid. The Governor of Madras issued an Ordinance on the 11th August, 1949 in exercise of the powers conferred upon him by sec. 23 (1) of the Constitution Act, declaring that the Madras Maintenance of Public Order Act, 1947, remained in force on and from 12th March 1949, and shall continue to remain in force so long as the Ordinance remains Jin operation, and it purported to validate Act No. XVII of 1948, and sub-sec. (3) stated that : - "no sec. ion or proceeding taken, on notification issued, on order make, and nothing done, by any authority in accordance with the provisions of the said Act at any time on or after 12th March 1948 shall be questioned on the ground that the said Act was not in force at that time. " It was held that the Madras Maintenance of Public Order Act ceased to have operation and died a natural death on 11th March, 1949, and the amending provisions of the Ordinance of 1949 were of no effect on the ground that the main Act came to an end when the first year expired. It was observed that unless there was a re enacting provision in the Ordinance which amounted to a new Act, the declarators and amending provisions of the Act were not valid. Learned counsel contended that as the provisions of the expired Act had not been re-enacted, the amending provisions were of no effect, as the main Act had expired, at any rate, on the 21st of June, 1953, if not earlier. The learned Advocate General cited In re Valyudan case (7), and it appears that the Governor of Madras, after the decision in In re Veerabhadrayya's case promulgated another Ordinance No. IV of 1949, whereby the Madras Act of 1947 as amended by Madras Act 1948 with the additional section inserted by the Ordinance of 1949 was re-enacted with some additions, and sec. 1 (3) of the Ordinance laid down that 'it shall be deemed to have came into force on and from 12th March 1948". This Ordinance No. IV of 1949 come for examination in In re Valyudan 7), and it was held that the power of a Governor to make Ordinance being as vide as the powers of the Legislature, there was no reason why a Governor should not be at liberty to promulgate retrospective Ordinance having the effect even of re-opening transactions which had been adjudicated upon by courts of law. While referring to the observations made in In re Veerbhadrayya (8), it was observed that the Ordinance-making authority was conforming to the views expressed in that judgment, and a legislature had power to intervene and set right the result of case law which in the opinion of the legislature was against public interest, and the Court upheld the validity of Ordinance No. IV of 1949, the provisions where of were retrospective in their effect. Crawford in his treatise on "statutory Construction" stated in paragraph 321 that: - "after a statute has been repealed, it may again become operative as law, either through the enactment of legislation expressly reviving it, or by the operation of law. " ;