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Rajasthan High Court, Full Bench
Wanchoo C J. Dave & Modi JJ.
Girjashanker - Appellant
Versus
Lalu - Respondents
S.B. Civil Regular Second Appeal No. 133 of 1950
Decided On : April 07, 1955
Act X of 1945 is clearly a piece of retrospective legislation, and comes into force from the 21st of June, 1949. Further, by section 2 of this Act, sub-sec. (3) of sec. 1 of Ordinance No. IX of 1949 has been worded as follows—"It shall come into force at once and shall remain in force for a period of seven years." The result of this amendment is as if Ordinance No. IX of 1949, when it came into force from the 21st of June, 1949, had these words from the very beginning, There is no question of reviving a dead Act by means of X of 1954. What Act No. X of 1954 does is to put in Ordinance No. IX of 1949 a certain period as if that was done from the very beginning, namely the 21st June 1949 . (Para3).
Where a distinction has to be drawn between publication and promulgation, it is obvious that promulgation properly so called is only making know by means of a declaration, and would not necessarily include publication in the gazette or through any other means. Promulgation then cannot be synonymous with publication, though there is some element of publication in promulgation. It seems that promulgation precedes publication, and is a declaration by the authority having the power to make laws that the law has been made The declaration may be made to a limited number of persons, (may be the servants of the authority concerned) and it is for them later on to publish the law as promulgated by the authority, This seems to be the distinction between these two words, and promulgation comes before publication, and is not always synonymous with it.
Ordinance IX of 1949 was published in the gazette on the 25th of June, 1949. It is mentioned there that it was promulgated by His Highness the Rajpramukh on the 21st of June, 1949. We infer from this that His Highness the Rajpramukh made it known, presumably to the public servants in the Secretariat, that he was promulgating this law and left it to them to see that it was published. He also made it clear at the same time that the law was to come into force at once, and that meant that it was to come into force as soon as he promulgated it. In these circumstances, the Ordinance having been promulgated by His Highness on the 21st of June,1949, and it being provided that it was to come into force at once, we must hold that it came into force from the day of its promulgation, namely the 21st of June, 1949, and not from the date on which it was published in the Rajasthan Gazette. If the intention was that it should come into force from the date of its publication, it could have been made amply clear by so providing it in sub-sec. (3) of sec. 1, as it is done in so many cases. (Paras 6 and 7).
2. The position would be clearer if we give a brief history of this legislation namely the Rajasthan (Protection of Tenants) Ordinance (No. IX) of 1949. It was passed and promulgated on the 21st of June, 1949, and sec. 1, sub-sec. (3) stated that it would come into force at once, and remain in force for a period of two years unless this period was further extended by the Rajpramukh by notification in the Rajasthan Gazette On the 18th of June, 1951, the term of the Ordinance was extended for another two years. Then on the 20th of June 1953, followed another notification extending the term of the Ordinance for a further period of one year Doubts were raised as to the validity of these two extensions. The first (extension came up for consideration before a Bench of this Court in Sukhlal vs. Revenue Board Rajasthan(l), and it was held that the extension was valid. Then came another case before another Division Bench, namely Sadaria vs. Rajasthan Board of Revenue(2). In that case, Bapna J. adhered to the view that he had taken in Sukhlals case(l), namely that the extension was valid, while Sharma J. was doubtful of he validity of even that extension, but agreed with the final order in view of the earlier decision in Sukhlals case(l) which was held to be binding. Then came another case, namely Ram Deo vs. The State of Rajasthan (reported 1955 RLW 368) by another Bench. In that case, it was held that the extension of the Ordinances by Notification dated the 20th of June, 1953, was not valid, But, as by the time that case came to be decided Ordinance No. III of 1954 and Act No. X of 1954 had already come into force, it was held that in view of these two enactments, Ordinance No. IX of 1949 must be deemed to be in force for a period of seven years from the 21st of June, 1949. The came Laxmichand vs. the State of Rajasthan (reported 1955 RLW 376) decided on the 24th of November, 1954, to which one of us was a party. In that case the decision in Ramdeos case was approved and Sharma J., who was doubtful about the validity of the extension of 1951, concurred in the view that because of Ordinance No III of 1954, and Act No. X of 1954, the matter of extension by notifications in 1951 and 1953 had lost all force, and that Ordinance No. IX of 1946 must be held to be valid for seven years from the date of its coming into force, namely the 21st of June, 1949.
3. We do not think it necessary to repeat what has already been said in Ramdeos case as well as in Laxmichands case. It is enough to say that Act X of 1954 is clearly a piece of retrospective legislation, and comes into force from the 21st of June, 1949. Further by sec.2 of this Act, sub-sec. (3) of sec. 1 of Ordinance No.IX of 1949 has been worded as follows:—
"It shall come into force at once and shall remain in force for a period of seven years."
The result of this amendment is as if Ordinance No. IX of 1949, when it came into force from the 21st of June, 1949, had these words from the very beginning. Once we put these words in sub-sec. (3) of sec. 1 of Ordinance No. IX of 1949, all subsequent notifications exte
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