- (1.) THE counsel for the respondent has filed a petition raising the following points:- (1) "that the Rajasthan High Court Ordinance No. 15 of 1949 has been made and promulgated by the Raj Pramukh in exercise of the Powers conferred on him by paragraph 3rd of Art. 10 of the Covenant under which an ordinance can have the force of law like an Act passed by the legislature of the United State of Rajasthan. THE powers and scope of the legislature of the United State of Rajasthan to make laws are not certain and defined either in the Covenant or in any other instrument and will entirely depend on the Constitution to be framed by the Constituent Assembly, which shall be formed under para-I of Article 10 of the Covenant on some future date. It cannot. therefore be ascertained today in what sphere and on what subjects and to what extent the future legislature of the United State of Rajasthan shall have the power to make acts; as such the aforesaid Ordinance is not valid and cannot have the force of law. "
(2.) "that the aforesaid Ordinance is not applicable to the present High Court which has not been erected and established under the aforesaid Ordinance as there is no provision for the erection and establishment of this High Court in the body of the Ordinance and as such the composition, jurisdiction and other incidental matters of the present High Court are yet to be defined by the competent authority. " " That as provided under sec. II of the Ordinance, the High Court shall have and use a seal as described therein. All the proceedings so far taken by this Hon'ble High Court are being taken in disregard to the said express provision and are therefore invalid and further because of this provision the Rajasthan High Court cannot function except at one place where there shall be kept the seal of the High Court. " "that the writs, summonses and orders and other mandatory processes so far issued by this Hon'ble Court being neither in the form provided under sec. 12 of the Ordinance nor bearing the seal of the High Court cannot be deemed to have been validly issued. " "that the Rajasthan High Court can exercise appellate jurisdiction in such civil and criminal cases only as are declared subject to appeal to the Rajasthan High Court by virtue of any law for the time being in force. This Hon'ble High Court cannot exercise appellate jurisdiction in the case, because there is no provision in any law for the time being in force under which this Hon'ble Court can exercise appellate jurisdiction. Since these points related to the establishment, formation and the constitution of the Rajasthan High Court, and its exercise of appellate, criminal and civil jurisdiction, a rule was issued to the Government Advocate also. It has been conceded by the applicant that points Nos. 3, 4 and 5 do not arise in the present case. It is, therefore, not necessary to deal with them here. Regarding the first point it may be noted that Article 10 of the Covenant entered into by the Rulers of Banswara, Bundi, Bikaner, Dungarpur, Jaipur, Jaisalmer, Jhalawar, Jodhpur, Kishengarh, Mewar, Kotah, Partab-garh, Shahpura, and Tonk for reconsti-tution of the United State of Rajasthan runs as follows:- " (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. It is contended that since Art. 10 (3) lays down that any Ordinance made by the Raj Pramukh shall have the like force of the law as an Act passed by the legislature of the United State the legislative authority of the Raj Pramukh under this covenant should be considered to be firstly to the subjects mentioned in lists II and III of schedule VII of the Govt. of India Act, limited by the provisions of the instruments of accession, and secondly to scope, that may be prescribed for the legislature under the Constitution of the United State of Rajasthan hereafter to be framed by the Constituent Assembly acting under Article 10 (1) of the Covenant. In consequence of the aforesaid assumptions, it is argued that as the scope of the authority of the legislature of the United State of Rajasthan which is to come into existence hereafter in pursuance of the provisions of Article 10 cannot be at this stage ascertained to any degree of precision the legislative authority of the Raj Pramukh remains indistinct to the same extent. In other words, it is stressed that the future legislature of the United State may not be vested with an authority to create a High Court. Consequently the Ordinance made by the Raj Pramukh erecting and establishing a High Court would be ultra vires. The learned Government Advocate has replied by saying that the legislative authority of the Raj Pramukh under the Covenant is not limited to the scope of the authority of the future legislature of the United State, as would be clear from the language of sub-section (3) of Article 10. In the language "any Ordinance so made shall have the like force of the law as an Act passed by the legislature of the United State" the words "the legislature of the United State" are not qualified so as to mean the legislature that may come into existence hereafter. He has further argued that the word "force" appearing in this language of Article 10 (3) does not mean the scope of authority but it simply means that an ordinance made shall be deemed to have the same force of law as an Act of a legislature. Had it been the intention of the Covenant to limit the powers of the Raj Pramukh, in this respect, a clear Provision to this effect could have been inserted at the place where a provision has been made to invest legislative authority in the Raj Pramukh. It may be observed that no question has arisen in the present case regarding invalidity of an ordinance made by the Raj Pramukh by reason of it being repugnant to the provisions of an Instrument of Accession. The Language of Article 10 of the Covenant is very plain and it does not admit of any doubt regarding the legislative authority of the Raj Pramukh and the idea that the legislative authority of the Raj Pramukh is to be construed to be limited within the scope of the authority of the future legislature of the United State cannot be gathered from the language of Art. 10 of the Covenant. The words "an ordinance so made shall have the like force of the law as an Act passed by the legislature of the United State" only mean that the force of an Ordinance so made by the Raj Pramukh shall be similar to the force of an Act passed by a compe-tent legislature. The limitations of the authority of a future legislature cannot be imposed on legislative authority of the Raj Pramukh. The authority of the Raj Pramukh to make an Ordinance erecting and establishing a High Court cannot, therefore, be questioned, when all legislative authority has been vested in him under the Covenant. The second point hinges on the assumption that the language "now, therefore, in exercise of the powers conferred by paragraph (3) of Article 10 of the Covenant and all other powers enabling him in this behalf, His Highness the Raj Pramukh is pleased to make and promulgate the. following Ordinance, and to erect and establish for Rajasthan a High Court of Judicature which shall be called, 'the High Court of Judicature for. Rajasthan' or shortly 'the Rajasthan High Court', and to constitute the said Court to be a Court of Record" appearing in the Rajasthan High Court Ordinance, 1949, is part of its preamble.
(3.) IN order to come to a correct decision on this point it is necessary to find out the true meaning of the English word "preamble". The Imperial Dictionary defines "preamble" as the introductory part of a statute, which states the reasons and intent of the law. Similarly, the Shorter Oxford Dictionary gives the following meaning of the word "preamble": - "an introductory paragraph or part in a statute, deed etc. , setting forth the grounds and intention of it. " Wharton's Law Lexicon, 13th Edn. gives "preamble" as "introduction, preface; also, the beginning of an act of Parliament etc. , serving to portray the intents of its framers, and the mischiefs to be remedied; a good means to find out the meaning of the statute, and as it were a key to open the understanding thereof; the effect of the cases being that as a general rule the preamble is to be resorted to only in cases of ambiguity in the statute itself. Preambles which in early Acts and even in comparatively modern Acts often extended to very great length are now very frequently discontinued and in Statute Law Revision Act passed since 1888 Parliament has taken the very strong course of repealing the preambles of statutes kill in force". It would be clear from the foregoing definitions of the world ''preamble" that it relates only to an introductory part of a statute & it cannot be deemed to include an operative portion of a statute. Coming to the Rajasthan High Court Ordinance, 1949, it may be remarked that the words "whereas for the peace & good government of the United State of Rajasthan, it is expedient to erect and establish a High Court of Judicature for the said State" form part of its preamble and the language "now, therefore, in exercise of the powers etc. , etc. ," forms part of the operative portion of the Ordinance and it cannot by any stretch of imagination be construed as preamble to the Ordinance. The mere fact that the words "erecting and establish-ing a High Court" appearing in this paragraph have not been numbered as a section of the Ordinance, does not in any way take them out of the body of the Ordinance. The learned Government Advocate has significantly pointed out that the provision of sec. 1 should be read along with the aforesaid provision appearing in the aforesaid paragraph of the ordinance. There is little force in the argument of the counsel for the respondent that the High Court of the United State of Rajasthan has been erected by the Raj Pramukh independently of Rajasthan High Court Ordinance. Though the High Court Ordinance was made and promulgated on 21st June 1949, yet the High Court was erected and established, on 29th August 1949 under the Ordinance, at the time of its inauguration at Jodhpur. The application fails and is, therefore, dismissed. . ;