S.C.R.

SUPREME COURT REPORTS 605

SARDAR INDER SINGH v.

THE STATE OF RAJASTHAN

(and connected petitions)

(S. R.

DAS C.J., V ENKATARAMA

AYYAR, B. P. SINHA, S. K. DAs and GA.JENDRAC; ADKAR JJ.)

C01.stit11tio11a! la/IJ-Delegated legislation and conditional legislation-Distinction-Statute co11fe1"1'ing power 0•1 outside authority to extend its operatio11-Validity-Rajastha11 (Protection of Tenants)

Ordinance, 1949, (Rajasthan Ordi11a11ce No. IX of 1949), SS. 3, 4, 7(1) 15-Notifications by R.ajpramukh-Validity-Whether Ordini!nce contravwes Aus. 14 ,;11d 19( 7)(/) of the Constitution of India.

By s. 3(1) of the Rajasthan (Protection of Tenants) Ordinance, 1949, which was promulgated on June 21, 1949, by the Rajpramukh of Rajasthan, it was provided : "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 Rajprnmukh by notification in the Rajasthan Gazette."

In exercise of the power conferred by this section the Rajpramukh issued a nctification on June 14, 1951, providing that the above Ordinance "shall remain in force for a further period of two years with effect from June 21, 1951'', and on June 20, 1953, he issued a iurther notification providing that the said Ordinance "shall r•':main in force for a term of one vear with effect from June 21, 1953'".

Doubts having been raised as to the validity of the notification <lated June 20, 1953, the Rajprarnukh issued anothe~ Ordinance 0~1 February 15, 1954, substituting for s. 3 of the original Ordinance dated June 21, 1949, the: following : "It shall come into force at once and shall remain in force for a period of fiye years"'.

It was contended inter alia for the petitioners that the Ordinance dated June 21, 1949, and the notifications issued by the Rajpramukh were invalid on the grounds ( l) that s. 3 of the Ordinance was ultra viru as the power which it conferred '-Oil the !bipr'1mukh to extend the period fixed therein \vas an unconstituti011:1i delcg;.Hion of legislative po\ver,

(2) that. the notification dated June 20, 1953, was bad because the Legislature of Rajasthan had been constituted on March 29, 1952, and the authority of the Rajprmnkh to legislate conferred by Art. 385 of the Constitution of India had, on that date, conl<: to an end and (3) that the Ordinance rnntraYcned Arts. 14 and 19(1) (f) of the Constitution.

Held: (1) Section 3 of the Or<lina1m: in so far as it authorised the Rajpramukh to extend the life of the Ordinance fell within the category of conditional legislation and is intra t•ires.

February 8.

-Sardar lnder Singh

The State of

Rqjasthan

A provision in a statute conferring a po\ver on an outside authority to bring it into force at such tin1e as it might. in its O\VJ1 discretion, deter91ine, is conditional an<l not delegattd legislation and is valid, and it can make no difference in the character of a legislation as a con<litional one that the legislature, after itself enacting the hnv and fixing, on a consi<lcration of the iacrs as they might have then existed, the period of its duration, confers a pov.er on an outsi<le authority to extend its operation for a further period if it is satisfied that the state of facts \vhich called forth the lcgisbtion continues to subsist.

Queen v. l!urah. (1878) 5 I.A. 178, rclie<l on. l:i re '[he /)clhi Latvs /let, 1912, ( 1Sl'51) S.C.R. 7~7 anJ State of nonihay v. 1Varotharnda.• /ethabai, (1951)

S.C.R. 51, referred to.

fatind1a Nath Guptn v. 595, in so far as it decided cnact1ncnt cannot validly be dissented frotn.

The State of Bihar. (1949) I'. C. R.

thtl a po"ver to e:-:tend the lilc of an coni"r.::rrc<l on an outside authority,

(2) 1"hc Rajpratnukh issued the notification tLJ.tcd June 20, 1953, in his character as the autl1urity on \Vho1n po\ver \Vas conferred under s. 3 of the ()rdinanct and not as the legisl:Htve authority of the State and accordingly the notification is \'::ilid. '

( 3) The Ordin:.ince cannot be held to be bad under , \rt. J 4 of the Constitution on the ground that s. I 5 of the Ordinance \vhich authorises the (; overn1ncnt to exeinpt any person or class of persons froin the operation of the OrJinancc dos not lay do\\n the principles on vvhich excn1ption could be granted leaving the matter to the unfettered and uncanalised discretion of the Governn1cnt, because, the prean1ble to the Ordinance sets out \Vith sullicient clearness the policy of the legislature and as thJ.t governs s. 15, the decision of the Governn1cnt cannot be said to be unguided. 1-larishankar Bagla v. The State of 1\1adhya Pradesh, ( 1955) 1 S.C.R. 380, 388, relied on.

\:Vhere the prea1nblc to the Ordinance recites that it is expedient to enact a la\v for giving protection to tenants, :i.nd tor granting relief to thctn the legislature decides fro1n \Vhat date the law should be given operation, that is a 1natter exclusively for the legislature to dcterrninc, and is not open to question in Courts on the ground of discri1nination in that the landlords who had tenants on their lands before that date were free fron1 its restrictions. ( 4) The provisions of the Ordinance \Vhich oblige the landowners to keep tenants on their lands, thereby preventing them fro1n then1selvcs cultivating the same, are not repugnant to Art. 19(1) (f) of the Constitution, because the object of the

Ordinance 'was not to put a restriction on the right of the owner himself to cuitivatc the lands, hut to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause, and a law which requires that an owner

who is not, himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to be unreasonable.

Block

v. Hirsh, (1920) 256 U.

S. 135: 65 L. Ed. 865, relied on.

ORIGINAL

JURISDICTION: 149, 150, 188, 243, 261, 266 of 1956.

Petitions Nos.

50. 145, and 362 of 1955 and 205

Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.

M. M. Tiwari and K. R. Chaudhry, for the peti tioners in Petitions Nos. 50, 150, 243, 261, 266 and 362 of 1955.

Ganpat Rai, for pet1t10ners 111 Petitions Nos. 145, 149, 188 of 1955 and 205 of 1956.

Porus A. Mehta and T. M. Sen, for the State of Rajasthan and Board of Revenue in all the Petitions.

Udhai Bhan Chaudhry, for respondents Nos. 2 and 3 in Petition No. 145 of 1955.

K. P. Gupta for respondents Nos. 4 to 6 in Petition No. 149 of 1955.

T arachand Brijmohan Lal, for respondents Nos. 3 to 9 in Petition No. 243 of 1955.

Bhawani Lal and P. C.

Aggarwal, for respondents Nos. 3 to 5 in Petition No. 261 of 1955.

S. S. Shukla, for respondent No. 4 in Petition No. 266 of 1955.

S. N. Anand, for respondent No. 3 in Petition No. 362 of 1955.

K. L. Mehta, for respondent No. 2 in Petition No. 205 of 1956.

1957. February 8. The Judgment of the Court was delivered by

VENKATARAMA

AYYAR J.-These are petitions filed under Art. 32 of the Constitution by proprietors of

Sardar lnder Singh

T~ State of

RqjasthlLll

.~'ardar Indt1 Singh , ..

The Stale uj

Rajaslhan

VenkataTnma

A):l'(IT ].

lands in the State of Rajasthan, challenging the vires of The Rajasthan (Protection of Tenants) Ordinance, 1949, Ordinance No. IX of 1949, hereinafter referred to as the Ordinance, of notifications dated June 14, 1951 and June 20, 1953, issued thereunder and of the Rajasthan (Protection of Tenants) Amendment Act No. X of 1954.

It will be useful at the outset to state briefly the facts relating to the constitution of the legislative authority, in the exercise of which the impugned Ordinance and notifications were issued.

When the British were the Rukrs of this Country, Rajputana.. as the State was then known, consisted of 18 principalities claiming sovereign status.

After independence, a movement was set afoot for the integration of all the principalities into a single State, and the process was completed on May 5, 1949, when all of them became merged in a Unio11 called the United State of Rajasthan.

The constitution of the State was settled in a Covenant, to which all the Rulers agreed.

Under Art. II of the Covenant, the States agreed "to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of the United State of Rajasthan".

Under Art. VI(2), the Rulers made over all their rights, ; mthorities and jurisdiction to the new State which "shall thereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder".

Article X(3) provides tli:tl,

"Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh, the legislative authority of the United State shall vest in the Rajpramukh, who may m1kc 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 law as an Act passed by the lC!, islature of the United State." ·? Article X(3) was subsequently modified by substitutinc: fnr the words "Until a Constitution so framed co; nes into operation after receiving the assent of the

Rajpramukh", the words "Until the Legislative Assembly of Rajasthan ha:; been duly constituted and

summoned to meet for the first :; ession under the provisions of the Constitution of India." Reference may aiso be made to Art. .385 of the Constitution of India, which runs as follows : . "Until the House or Houses of the Legislature of :i State specified in Part B of the First Schedule has or have bern dulv constituted and summoned to meet for the first sessio~ under the provisions of the Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Co'nstitution on the Hotlse or Houses of the Legislature of the State so specified." Ir may be mentioned that the Legislative Assembly of Rajasthan was constituted and came into being on March 29, 1952, :'md until then, it was the Rajpramukh in whom the Legislative authority of the State was vested. ·

On June 21, 1949 the Rajpramukh promulgated the impugned legislation, the Rajasthan (Protection of Tenants) Ordinance No. IX of 1949.

The preamble to the Ordinance runs as follows : ''Whereas with a view to putting a check on the growing tendency of landholders to eject or .qispossess tenants from their holdings, and in the wider 'r1ational interest of increasing the production of foodgraihs, it is expedient to make provisions for the protection of tenants in Rajasthan from ejectment or dispossession from their holdings."

Section 4 of the Ordinance prmides : "So long as the Ordinance is in force m any area of Raj:.isthan. no tenant shall be liable to ejectment or dispossession from the whok or a part of his holding in such area on any ground whatsoever."

Section 7 provides for reinstatement of tenants who had been in occupation on the first daY of April, 1948, hut had been subsequently dispossessed : and by an Amendment Act No. XVII of 1952, this right was extended to tenants, who got into possession e\'tn after the first day of April. 2-79 S. r; India/'.i'l

19.5i

Sardar lnder Singh

The State of

Rajasthan

Venkatarama

Ayyar ].

S•dar Imler S1n;.h

Thd Stah of

Rajasthan

v,, J; atarama

Ay_'ar ] ••

Section 3( 1) of the Ordinance. which is very material for the present petitions, runs as follows :

"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." In exercise of the power conferred by this section, the Rajpramukh issued a notification on June 14, 1951. providing that Ordinance No. IX of 1949 "shall remain in force for a further period of two years with elfcrt from June 21, 1951".

On June 20, 1953, he issued a further notification providing that the said Ordinance "shall remain in force for a term of one year with effect from June 21, 1953." Doubts would appear to have been expressed about the validity of the notification dated June 20, 1953; on the ground that as the State Legislature had come into being on March 29, 1952, the power Qf the Rajpramukh, to legislate under Art. 385 of the Constitution had come to, an end on that <late.

To resolve the doubt, the, Rajpramukh issued on February 15, 1954, an Ordinance under Art. 238 of the Constitution. No. Ill of 1954, substituting for s. 3 the following :

"3. lt shall come into force at once and shall remain in force for a period of five years."

That would have given operation to Ordinance No.

IX of 1949 up to June 21, 1954.

Then the Legislature of the State repealed Ordinance No. Ill of 1954, and enacted the Rajasthan (Protection of Tenants) Amendment J\ct No. X of 1954, and that came into force on April 17, 1954.

Under this Act, s. 3 of Ordinance No. "IX of 1949 was re-enacted as follows :

"It shall come into force at once and shall remain in force for a period of seven years."

The petitioners question the validity of Ordinance No. IX of 1949, of the notifications dated June 14, 1951, and J1111c 20, 1953, and of Act No. X of 1954.

It appears that on October 15, 1955, a new enactment, the Rajasthan Tenancv Act No. III of 1955, came into force, and the relationship between landlords and tenants is now governed by this Act.

But as a large

number of petition'.. filed bv the tenants under Ordinance No. JX of 19·19 a1c still undisposcd of hy reason of stay orders obtained lw the petitioners herein, it is

necessary for tht: purpose of granting relief to them on these petitions, to decide whether the impugned Ordinance and notifications are bad on any of the grounds put forward by the petit10ners.

We accordingly proceed to a consideration of the present petitions on their merits. Counsel for pet1t10ners urged the following content:on; in support of the petitions : (I) The notifications chtecl June 14, 1951, and T11:1c 20, 1952, are h;1d, as s. 3 of the Ordinance un.-ler

~., hich the\' v, cerc issued is ultra vires, as constitutinr: delegation f legislativ<~ power. . . . ,

(2) The notific3tio11 dated June 20, 1953, is further tr.ht hecanse the Lcrri;; latme of Raiasthan had been comtitutcd on March" 29, 1952, an..! the authority of the Rajpr:unukh to lt>gislate conferred hv Art. 38l:i of tht Constitution had, 011 that date, come to an end.

(3) Act No. X of 1954 is bad, as it purports to extend the life of Ordinance No. IX of 1949 after tht said Ordinancr had already become dead.

(4) The impugned Ordinancr.- i~ bad as hcinr; repugnant to Art. 14 of the Comtitution ; and

(5) The Ordinance also contravenes Art. 19(1)(g) of the Constitution in that it irriposes unreasonable restrictions on tht right of the petitioners to hold property.

In logical sequence, it is the third contention that should first be considered, because if Act No. X of 1954 is upheld, that must validate Ordinance No. IX of 1949 for the periods covered by the impugneJ notifications dated June 14, 1951, and June 20, 1953, and in that event, the first two contentions will not survive for determination.

The argument of the petitionerj in support of this contention is that even if either of the two notifications aforesaid is held to be bad, then the impugned Ordinance would have expired at least on June 21, 1953, if not earlier on June 21, 1951; and th3t 1 neither Act No. X of 1954 which came into force on

;('57

Sardar lndtr Si11tft

T'lte Stntt of

Rqiasth-:.n

Vmkatrama

Ayyar ].

Smdur lnder Singh

Tlit StaU of

Rajasthan

Vtiikatarama

A"ar ].

April 17, 1954, nor e1en Ordinance No. III of 1954 which was promulgated on February 15, 1954, could give life to what was already dead.

It is conceded that a legislation might be retrospective ; hut it is contended that Act No. X of 1954 was not an independent legislation enacting a code of provisions which were to operate retroactively but an amendment of Ordinance No. IX of 1949, and as that Ordinance had expired by effiux of time on June 21, 1951, if the notifications dated June 14, 1951, and June 20, 1953, were bad, then there was, when Act No. X of 1954 was passed, no Ordinance in existence on which the amend ment could operate, and that it was therefore indfective.

Some support for this _contention might be found in the observations of Kania C.J. in fati11dra Nath Gupta v. The Province of Bihar(1) at page 606, of Mahajan J. at pages 627628 and of Muliherjea J. at pages 643-644.

There is, however, no need to discuss the matter further, as we are of opinion that the petitioners must fail in their contentions on the first two questions.

Taking the first question as to whether s. 3 of the Ordinance is had, in so far as it authorised the Rajpramukh to extend the life of the Act, the contention of the petitioners is that it is essentially a matter for legislative determination as to how long a statute should operate, that s. 3 having provided that the Ordinance should be in force for a period of two years, any extension of that period could only be made by the Legislature and not by an outside outhority, and that accordingly the power conferred by that section on the Rajpramukh to extend the period fixed therein is an unconstitutional delegation of legislative power.

Reliance is placed in support .of this contention on the decision in fatindra Nath Gupta v . .The Province of Bihar( 1). There, the question was as to the validity of a notification issued by the Government of Bihar on March 7; 1949, extending .the operation of the Bihar Maintenance of Publjc Order Act V of 1947 to Chota Nagpur Division arid the Santhal Parganas District with retrospective .effect from Mar.ch 16, 1948.

Section

(1) [I9f9] F.C.R. 595.

S.C.R.

SUPREME. COUllT REPORTS 613

1 (3) of the Act had provided that it shall remain in force for a period of one year from its commencement, but that was subject to a proviso, which ran as follows :

"Provided that the Provincial Government may, by 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 prescribed in the notification." The notification in question was issued in exercise of the power conferred under this proviso, and it was held by the majority of the Court that the proviso was unconstitutional as it amounted to delegation of legislative authority, and that, therefore, the notification issued pursuant thereto was bad.

Three of the learne<l Judges expressed the view that the power to extend the operation of an /\ct was purely a legislative function, aud that it could not be delegated to an outside authority.

Thus, Kania

C.J. observed at pages 604-605:

"The power to extend the operatio1i of the Act beyond the period mentioned in the Act prim a f acie is a legislative power.

It is for the Legislature to state how long a particular legislation will be in operation.

That cannot be left to the discretion of some other body .......... Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded, as it is, as conditional legislation by the Provincial Governn1ent.

Section 1 (3)_ and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative function' ha<l pw; cribe<l the life of the Act beyond one year.

For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another a.uthority, which was not the legislative authority of the Province."

Mahajan J. dealing with this question observed al page 623:

"I am further of the opinion that the power given to extend the life of the Act for another year in the context of the langmge of s. 1(3) also amounts ta .an act of legislation and does not fall under the rule laid

Sardar lnder Si>1J(h

The State o/'

Rajasthan

Vmkatarama

Ayyar J.

Sar.tor l11dtr Sinlh

Tht Stat1 of

Rojasl!zan

V cnkatarnma

Ayyar J.

down in The Queen v. Burah (' ). The Act in a mandatory form stated that is shall be in force for one year only. + That being so, the power given in the proviso to reenact it for another year is legislative power and does not amount to conditional legislation."

Mukherjea J. was of the opinion that if the legislation was to take effect on the determination of some fact or condition by an extraneous authority, it would be conditional legislation, and that would be valid on the authority of the decision in The Queen v. Burah ('), but that it would not be valid if it was left to an outside authority "to determine at some future \date whether the Act should be extended for one year further with or without rnodificatio1h". Faz! Ali J. took the\ contrary view. He observed at page 646 :

"So far as the extension of the Act is concerr, ed, I am not prepared to hold that .it amounts to legislation or exercise of legisla1', e power.

From the Act, it is clear that, though it was in the first instance to remain in force for a period of one year, the Legislature did contemplate that it might have to be extended for a further period of one year.

Having decided that it -.... might have to be extended, it left the matter of the extension to the discretion of the Provincial Government.

It 'eems to me that the Legislature having exercised its judgment as to the period for . which the- >- Act was or might have to remain in force, there was nothing wrong in its legislating conditionally and leavfing it to the discretion of the executive authority whether the Act should be extended for a further period of one year or • not. 1t would be taking a somewhat narrow view of the decision in Burah's case( 1) to hold that all that the Legislature can do when legislating conditionally, is to leave merely the time and the manner of carrying its legislation into effect to the discretion of the executive authority am] that it cannot

leave any other matter to its discretion. • The extension of the Act for a further period of one year does not 'r-'-' amount to its re-enactment.

It merely amounts to a continuance of the Act for the maximum period contemplated by the 'Legislature when enacting it."

(1) [1878] L.R. 5 I.A. 178 .

• -+

-~ '

S.C.R.

~ . '

1957 , It will be noticed that the authoritY conferred on the Bihar Government by the , proviso to s. 3 was one iiot merely to extend the life of the Act as in the present case, but also to extend it with such modifications as • might be,.specified in the notification.

It is this latter clause that came in principally for attack in the judgments of the majority, and the decision that proviso

Sardar lnder Singh•

as a whole was bad was based primarily on the view tl1at that clause was ultra vires. Ka1{ia C. J. no , doubt observed that the power to extend the operation of the .fl.ct was, even .apart from the power to modify it, a kgislati ve function.

But he also added that the power conferred by the proviso was a single one and that the power to extend the life of the Act could not be sevei"- ed from the power to modify it.

The matter was made even 'more plain by Mukherjea J, in his judgment in State of Bombay v. Narothamdas fethabai ( 1 ).

There,. ' the Bombay High Court had held, relying on the decision in /atindra Natlz Gupta v.

The Protlince of Bihar( ')<that s. 4 of the Bombay City Civil Courts Act, 1948 wnich conferred authority on the State to invest Ci vii Courts by notification with jurisdiction to try suits not exceeding Rs. 25,000 was bad.

In disagreeing with this conclusion, Mukherjea J. observed :

., "The learned Judges of the B, cimbay High Court in coming to their decision on the point seem to .have been influenced to some extent by the pronouncement of the Fcdeal Court in Jatindranath Gupta v.

l'rnvinc~ of Bihar( '), and .the learned Counsel for the respondents. I naturally placed reliance 1;1pon it .. : ... : .

Mr. Seerva1 would have been probably nght 1n mvoking the decision in that case a~ an !uthority in his favour if the proviso simply empowered the Provincial Government, upon compliance with the conditions prescribed therein, to extend the duration of the Act for a further period of one year, the maximum period being fixed by the Legis laturc itself.

The ptoviso, however, went further and authorised the Provincial Government to decide at the end of the year not merely w hcther the Act should be continued for another vear but whther the Act itself was to be inodified in "any

(1) [1951] S.C.R. 51.

,(2) [1949] F.C.R. 595

, v.

The State of

Rajas than

V n1katarama

4Y.>ar J.

" .

,,~·if-.

Smdar lnder Siu.h

Thr Stafr 1( R(ljasthan

renkatarama

, l, yar J.

way or not. It was conceded by the learmd Counsel appearing for the Province of Hihar that to authorise another body 10 modify a statute. amounts to investing that body with legislative powers.

What the learned Counsel contended for was that rhe power of modification was severable from the power of extending the duration of the Statute and the invalidity of one part of the proviso should not affect its other part.

To this contention my answer was that the two provisions were inter-related in such manner in the statute that one could not be severed from the other." The decision in /11ti11dra Nath Gupta v.

The Province of Bihar ( 1) cannot therefore be regarded as a clear and direct pronouncement that a statutory provision authorising an outside authority to extend the life of a statute is per se bad.

We must now rdcr to the decision in In re Thi Delhi LattJs Act, 1912(

2 ) wherein the law relating to delegated legislation was exhamtively reviewed by this Court.

That was a reference under Art. 143 of the Constitution stating a number of questions for the opinion of this Court.

Due to considerable divergence of views expressed in the several judgments as to the limits of permissible delegation, no unanimity could be reached in the answers to the questions referred.

But it can be said of certain propositions of law t\iat they had the support of the majority of the learned Judges, and one such proposition is that when an appropriate Legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditi<>- nal and not delegated legislation, and that such legislation is valid.

In our opinion, s. 3 of the Ordinance in so far as it authorises the Rajpramukh to extend the life of the Act falls within the category of conditional legislation, and is, in consequence, intra vires.

The leading authority on the question is the decision of the Privy Council in T lze Queen v. Burah( • ).

There, the question was as to the validity of a notification issued by the Lieutenant-Governor of Bengal

(1) [1949] F.C.R. 595.

(3) [1878] 5 I.A, 178.

on October 14, 1871, extending the provisions of Act No. XXII of 1869 , to :t territory known as the Jaintia and Khasi Hills in exercise of a power conferred by s. 9 of that Act, which was as follows : l

"The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the J aintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India."

The High Court had held by a majority that that section was ultra vires, as amounting to delegation m legislative authority.

But that decisi.on was reversed on appeal to the Privy Council, which held that it was conditional legislation, and was valid.

Lord Selborne stated the law thus :

"Their Lordshins agree that the Governor-General in Council could not, by any form of enactment, create in India, and arm with general legislative authoritir, a new legislative power, not created or authorised by the Councils' Act.

Nothing of that kind has, in their Lordships' opinion, been done or attempted in the present case.

What has been done is this. .The Governor-General in Council has determined, in. the dt!-: and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal ; leaving it to the Lieutenant-Governor to say at what time that change shall take place .......... The Legislature determined that, so far, a certain change should take place ; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor ...... The proper Legislature has exercised its judgment as to place, person, laws, powers ; and the result of that judgment has been to legislate conditionally as to all these things.

The conditions having been fulfilled, the legislation is 11ow. absolute.

Where plenary powers of . legislation exist as to particular sbjects, whether in an Imperial or in a provincial Legislature, they may (in

Sardar lnder Singh v.

The State oj

Rqjasthan

Venkatarama

Ayyar ].

'957

Sardar !tu/er Sinth

I he State of

Rajastha~

in1katarama

.. {1:.rar J.

their Lordships' judgment) be well exercised, either absolutely or conditionally.

Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whotn it places confi.Oence, is no uncon11non thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it ; and it cannot be supposed that the imperial Parliament did not, when con, tituting the Indian Legislature, contemplate this kind of conditional legislation .ts within the scope of the legislative powers which it from time to time conferred."

This is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might, in its own discretion, determine, is conditional and not delegated legislation, and that it will be valid, unless there is in the Comtitution Act any limitation on its power to enact such a legislation.

The petitioners do not dispute this.

What they contend is that while it may be competent to the Legislature to leave it to an outside authority to decide when an enactment might be brought into force, it is not competent to it to authorise that authority to extend the life of the Act beyond the period fixed therein.

On principle, it is difficult to see wlty if the one is competent, the other is not.

The reason for upholding a legislative prov1S1on authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should . then be made to operate, anJ that the decision of such an issue is best left to an executive authority.

Such legislation is termed conditional, because the Legislature has itself made the law in all its completeness as regards "place, person, laws, powers", leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide.

And it can make no difference in the character of a legislation as a conditional one that the legislature, after itsdf enacting the law and fixing, on a consideration

of the facts as they might have then existed, the period of its duration, confers a power on an outside authority to extend its operation for a further period if it is satisfied that the state of facts which called forth the legislation continues to subsist.

In the present case, the preamble to the Ordinance

clerly recites the state of facts which necessitated the enactment of the law in question, and s. 3 fixed the duration of the Act as two years, on an un<lerstanding of the situation as it then existed.

At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyon<l that period, if the state of affairs then should require it.

When such extrnsion is decided by the Rajpramukh and notified, the law that will operate is the law wbich was cmcteJ by the legislative authority in respect of ''place, person, laws, powers'', and it is clearly conditional and not delegated legislation as laid down in The Queen v. Burah ( 1), and must, in consequence, be held to be valid.

It follows that we are unabk to agrt>e with the statement of the law in /atindra Nath Gupta v.

The State . of Bihar(2) that a power to extend the life of an epactment. cannot validly be conferred on an outside authority.

In this view, the question as to the permissible limits of delegation of legislative authority on which the judgments in In re The Delhi Laws .Act, 1912(3 ), reveal a sharp conflict of opinion does not arise for consideration, anJ we reserve, our .. opii1ion thereon ..

(2) lt is next contended that the notification dated June 20, 1953, is bad, because after the Constitmioi1 came into force, the Rajpramukh derived his authority to legislate from Art. 385, and that under that Article his authority ceased when the Legislature of the State was constituted, which was in the present case, on March ?), 1952.

This argument proceeds on a misconception. :as to the true character of a notifi-· cation issued unt.ler s. 3 of the Ordinance.

It was not an independent piece of legislation such as could be enacted on I y by the then competent legislative

(1) (1878] 5 L:\. 178.

(3J (1951] S.C, R: 747

(o) [19.[9] F.C.R. 595.

Sardar lnder Sing•1

The Stale of

Rajasthar1

Vn1kntarmna

J!yyar ].

Sardar lnder Singh

T lu Stat~ of

Rqjasthafl

Venkatarama

Ayyar J.

authority of the State, but merely an exercise of a power conferred by a statute which had been previously ena\:ted by the appropriate. legislative authority.

The exercise of such a power is referable not to the legislative competence of the Rajpramukh but to Ordinance No. IX of 1949, and provided s. 3 is valid, the validity of the notification is co-extensive with that of the Ordinance.

If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed-neither did the power to issue a notification which is conferred therein.

The true position is that it is in his character as the authority on whom power was conferred under s. 3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the

Sate.

This objection should accordingly be overruled. ( 4) We shall next consider the contention that the provisions of the Ordinance are repugnant to Art. 14 of the Constitution, and that it must therefore be held to have become void.

In the argument before us, the attack was mainly directed against ss. 7 ( 1) and 15 of the Ordinance. The contention with reference to s. 7(1) is that under that section landlords who had tenants on thejr lands on April 1, 1948, were subjected to various restnct10ns in the enjoyment of their rights as owners, while other landlords were free from similar restnct10ns.

There is no substance in this contention.

The preamble to the Ordinance recites that there was

:i. growing tendency on the part of the landholders to eject tenants, and that it was therefore expedient to enact a law for giving them protection ; and for granting relief to them, the Legislature had necessarily to decide from what date the law should be given operation, and it decided that it should be from April 1, 1948.

That is a matter exclusively for the Legislature to determine, and the propriety of that determination is not open to que; tion in Courts.

We should add that the petitioners sought to dispute the correctness of the recitals in the preambk.

This they clearly cannot do.

Vide the observations of Holmes J. in Block v. Hirsh(').

(1) [1Q20] 256 U.S. 135 : 65 L. Ed. 865.

A more substantial contention is the one based on s. 15, which authorises' the Government to exempt any person or class of persons from the operation of the Aa. It is argued that that section does not Jay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14.

It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearnes& the policy of the Legislature ; and as that governs s. 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided.

Vide Harishanker Bag/a v. The State of Madhya Pradesh(1).

But even if s. 15 were to be held to be bad, that does not affec:t the rest of the legislation, as the matter dealt with in that section is clearly severable.

In fact, s. 15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949.

We must accordingly' hold that the impugned Ordinance cannot be held to be bad under Art. 14.

It is finally contnded that .the provisions of the Act are repugnant to Art. 19 (1) (f) in that they oblige the land-owners to kel"p tenants. on their lands, thereby preventing them from themselves cultivating the same.

The object of the .Ordinance, as set out in the preamble, is clearly not to put a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on , the land from getting rid of him without sufficient cause.

A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to b~ unreasonable.

Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus, in Block v. Hirsh(2 ), a statute which gave a right to tenants to continue in poss.ession eYen after the expiry of the lease, was held to he valid, Holmes J. observing,

(1) (1955] 1 S.C.R. 380, 388. (2) [1920] 256 U.S. 135; 65 L. Ed. 865.

1957 •• Sardar lnhr Singh

The State of Rajasthan

Venkataramd

Ayyar J.

Sardar Inder Singh

The State af Rajasthan

Venkawrama

Ayya~J-

"The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut <lown. But if the public interest bo established, the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settle<l since Mu1111 v. People of Illinois (') ..... .

The preference given to the tenant in possession is an almost necessary ingredient of the _policy, and is traditional in English law. If the tenant remained subject to the landlord's power to evict, the attempt to limit the landlord's demands would fail."

It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and, as observed in Dr. N. B.

Khare v. The State of Delhi('), that is a factor to he taken into account in judging of its reasonableness.

As already stated, the Ordinance has since come to an end, and has been . replaced by a comprehensive tenancy law.

In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f).

All the contentions raised by the petitioners have failed, and the petitions should accordingly be dismisml, but in the circumstances, without costs.

(1) [1877] 94 U.S. 113: 24 L. Ed. 77-

(2) [1950] S.C.R. 519, 526.

Petitions dismissed.