BALIA, J. - (1.) THE petitioner challenges the continued operation of Rajasthan Public Gambling Ordinance, 1949 promulgated by His Highness the Raj Pramukh on 14th Dec. , 1949 inter alia on the ground that ordinance having not been subsequently enacted as a legislative Act before expiry of 6 months period, it automatically lapsed in terms of Article 123/213 of the Constitution of India and Section 88 of the Government of India Act, 1935.
(2.) THIS contention is not well founded as the contention is based on an assumption that Raj Pramukh, before the commencement of Constitution was exercising legislative power in terms of Section 88 of the Government of India Act 1935 only during the absence of session of Legislative Assembly and it was required to be placed before House when legislative assembly was convened. The Raj Pramukh of United States of Rajasthan in promulgating Ordinance was not exercising power under Section 88 of Government of India Act, 1935, but was exercising power as parent legislature, until legislative council was constituted. The power was exercised by Raj Pramukh of United States of Rajasthan which was an association of erstwhile India rulers which were not part of British India and were not governed by any of Government of India Act, 1935. They became part of Union of India only on inauguration of Constitution. The complete legislative powers which were conferred upon the Raj Pramukh in terms stated that "the legislative authority of United State of Rajasthan vest in Raj Pramukh who may make and promulgate ordinance in Government of State or any part thereof and now it shall be by the United States. " The full legislative power vested in Raj Pramukh under the covenant which founded the United States of Rajasthan and which provided its charter until legislative assembly was duly constituted for the State under the covenant, the Raj Pramukh was to exercise legislative function of the State. The ordinance had the same fiber strength which any Act of legislature has. As the Ordinance promulgated by the Raj Pramukh was in exercise of legislative power vesting in him in absolute terms, it constituted an "existing law" in terms of Article 366 (10) of the Constitution of India, which was in force in the territory of India immediately before commencement of constitution. When the Constitution was inaugurated in terms of Article 372, until it is so altered or repealed or modified by a competent legislature or other authority, the Rajasthan Public Gambling Ordinance, 1949 continued to remain in force. It did not lapse with the expiry of 6 months as contemplated under Section 88 of the Government of India Act, 1935 or Article 123/213 of the Constitution of India as both the provisions did not apply to the Ordinance promulgated by the then Raj Pramukh, of United State of Rajasthan constituted under the aforesaid covenant.
(3.) IT will be profitable to notice the relevant part of Article 10 which reads as under:- " (1) There shall be formed, as soon as practicable, a Constituent Assembly in such manner as the Raj Pramukh may, in consultation with the Government of India in the States Ministry prescribe. (2) IT shall be the duty of the said assembly to frame a Constitution for the United State within the frame work of this Covenant and the Constitution of India, and providing for a Government responsible to the legislature. (3) Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukh who may make and promulgate Ordinances for the peace and good Government of the State or any part thereof, and any Ordinance so made shall have the like force of the law as an Act passed by the legislature of the United State. Obviously, it was in exercise of absolute authority of the legislature that the Raj Pramukh has enacted the Public Gambling Ordinance, 1949. The conditions of promulgating Ordinance in exercise of emergency power, that has been made subject to condition under which the Governor can exercise power to promulgate Ordinance when the session of legislature or the Parliament is not in vogue and require it to place the Ordinance before the competent legislative authority as soon as the session is convened, cannot be imported in the Ordinance making power of the Raj Pramukh acting under the covenant. The power of making Ordinance under the covenant, therefore, did not have the limitations as the Ordinances made under the Government of India Act, 1935 or Article 123/213 of the Constitution has. ;