1954 Supreme(Raj) 89

Rajasthan High Court
Bapna & Sharma, JJ.
Sadaria - Appellant
Versus
The Rajasthan Board Of Revenue - Respondents
D.B. Civil Writ Petition No. 610 of 1952
Decided On : April 02, 1954

Headnote:(a) Protection of Tenants Ordinance, sec. 1(3)—Extension of Ordinance, Validity,(b) Protection of Tenants Ordinance, sec. 1(3)—Extension—Power not delegated to exeeuti?e —Notification dated 20/06/1951 whether legislative or executive—Form of notification.(c) Constitution of India, Art. 212 A—Rajpramukhs power—Irregularity in exercise—Rajas-than Protection of Tenants Ordinance—Extension—Notification dated 20th June 1951— Validity.(d) Precedents—Binding nature—D.B. rulings binding on D.B.

       The power conferred on the Raj Pramukh to make laws is conferred by Art. 385 of the Constitution and the mode of exercise of that power of given in Art. 212A of the Constitution. Any irregularity in the mode of exercise of that power will not, invalidate the law made and promulgated by the Raj Pramukh in the exercise of the power which he undoubtedly had. The notification dated 14/06/195I, having been made with the approval of the Raj Pramukh, who had power to legislate, was a valid extension of 21/06/1951. (Para 14)

       In Part B States where the legislative authority was other than the Raj Pramukh himself, the provisions of preparing the Bill and declaring the assent, or withholding the assent, or reserving the Bill for the consideration of the President could be literally followed. In the ease of Rajasthan, where both the functions, of preparation of a Bill and giving consent were to be performed by the Raj Pramukh any legislation promulgated by the Raj Pramukh would be good legislation., even if the formalities required for preparation of a Bill and then declaring the assent were not in the form in which enactments are usually made where the legislative power is to be exercised by passage of the Bill through various stages and through different hands. The modern legislative method of extending the duration of any Act is to frame and promulgate an Act providing for the continuance of that enactment, but that is only a form of the law according to modern practice, and any other form which may unmistakably indicate that the authority having the Power to legislate had applied its mind and ordered the extension of the law in unmistakable terms is, as good as would be effected by the enactment of a Continuance of Laws Act. (Para 12)

       There is no delegation at all of any power to the Raj Pramukh. What the subsection says is that the Ordinance so all remain in force for a period of two years, and it gives a further intimation that the law may be extended beyond the said period so that people may be prepared to expect an extension, and not consider that the Ordinance will automatically come to an end at the expiry of two years. On the date of promulgation of the Ordinance (21/06/1949), the Raj Pramukh was the sole legislative authority, and there are no words to signify that the power to extend was delegated to some authority and rightly so, because the Raj Pramukh did not require any delegation by himself for he was already vested with legislative powers under the Covenant. (Para 6)

       The Raj Pramukh of Rajasthan was the legislative as well as the executive authority in the State when the Notification was issued. It will be seen that all executive Notifications which are issued in this State are according to the provisions of Art. 166 of the Constitution, whereas all Acts and Ordinances issued by him from time to time in his legislative capacity are in the form of the Bills and Acts prevalent in the United Kingdom and in India. It cannot, therefore,be said that the Raj Pramukh or his advisors did not know what form should be given to an Act passed by the Rajpramukh in his legislative capacity and what form should be given to executive notifications issued in his name. The notification is altogether in the form in which executive notifications are issued and it has no resemblance to the Bills or the Acts which are prepared or passed in Rajasthan. In determining therefore, whether the Raj Pramukh acted in his legislative capacity or in his executive capacity at a time when he had both the capacities, the form given to an act of his is very important, otherwise there would be nothing to differentiate an executive act of the Raj Pramukh from a legislative act of his. There is no doubt that the approval of the Raj Pramukh was obtained before the Notification was issued, but that is expected to be done in this case of every executive notification also and, therefore, simply because the approval of the Raj Pramukh was obtained for the issuing of the Notification does not convert it into a legislative act of the Raj Pramukh. It appears that those concerned with the issuing of the Notification, thought that power had been given by the said provision to the Raj Pramukh to extend the Ordinance for a further period by issuing an executive notification in the Gazette and that is why the notification was issued in the name of the Rajpramukh, exactly in the form in which executive Notifications are issued. Under the circumstances, I have great hesitation in accepting the arguments of the learned Advocate General that the issuing of the Notification in this case was a legislative act of the Raj Pramukh. How ever, there being a ruling of a Division Bench of this Court in the case of Sukhpal vs. Rajasthan Board of Revenue (1954 RLW 152) on the very point whether the Notification could validly extend the duration of the Ordinance, neither I nor this Division Bench is entitled to hold that the Notification does not validate the extension of the duration of the Ordinance. The fact that the new argument that has been raise in this case was not raised in the case of Sukhpal would not entitle me to declare the extension to be invalid. (Paras 17 & 18)