JUDGMENT

Gwyer, C.J. - In this case the principal question to be decided is whether the Regularization of Remissions Act, 1938 (14 of 1938), an Act of the Legislature of the United Provinces, was within the competence of the Legislature which enacted it. The litigation in which the question has arisen can be briefly described. The defendants to the original suit were thekadars, a thekadar being, by statutory definition, "a farmer or other lessee of proprietary rights in land, and in particular of the right to receive rents or profits", with the terms of his lease or theka embodied in a written instrument executed by the landlord. They were sued by their lessors for arrears of rent for the year ending June 1931, and the two following years at the rate reserved by the lease, and among other defences pleaded that remissions of rent had been ordered by the Local Government which ought to be taken into account in calculating the amount due. The plaintiffs contended that these remissions were beyond the power of the Government to order and that the defendants were not therefore entitled to rely upon them. On this issue both the trial Judge and the District Judge on appeal decided in the defendants' favour. The plaintiffs then appealed to the High Court, and during the pendency of the appeal a Division Bench of the High Court held in another case, Muhammad Abdul Qaiyum v. Secretary of State ('38) 25 AIR 1938 All 158, that remissions made in pursuance of the Government order above referred to had no legal effect. In order to appreciate the legal questions involved, it is necessary to refer to certain statutory provisions contained in the Agra Tenancy Act, 1926, which at all material times regulated the relations between the parties, though it has since been repealed and only re-enacted with substantial alterations.

2. The purpose of the Act is indicated by its title, "an Act to consolidate and amend the law relating to agricultural tenancies and certain other matters in Agra," and it may be described as a Code of landlord and tenant law for the province of Agra. At the end of that part of the Act which dealt with the subject of rent and of the machinery whereby in certain circumstances rent might be enhanced or abated, there was a fasciculus of sections entitled "exceptional provisions," including three sections which require to be noticed. Section 72 empowered a Court making a decree in a suit for arrears of rent to allow, with the sanction of the Collector, such remissions from the rent payable as might appear to the Court to be just, if the produce of the land had been so diminished by drought, hail, deposit of sand or other like calamity during the period for which the arrears were claimed that the full amount of rent payable by the tenant for that period could not be equitably decreed. The section then provided that where rent was thus remitted, the revenue authorities should, on the report of the Court, grant a remission of land revenue in proportion to the rent remitted for the corresponding area belonging to the same landlord. Section 73 dealt with the converse case, and provided that when for any cause the Local Government, or any authority empowered by it, remitted or suspended for any period the whole or any part of the revenue payable in respect of any land, a Collector might order that the rents of the tenants should be remitted or suspended to an amount which shall bear the same proportion to the whole of the amount payable in respect of the land as the revenue of which the payment has been so remitted or suspended bears to the whole of the revenue payable in respect of such land.

3. By Section 74, an order passed Under Section 73 was not to be questioned in any civil or revenue Court, and no suit was to lie for the recovery of any rent of which the payment had been thus remitted or suspended. It will be seen therefore that, in the first case, the remission or suspension of land revenue followed the remission or suspension