Sardar Inder Singh Vs. The State of
Rajasthan  INSC 11 (8 February 1957)
AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN
(CJ) SINHA, BHUVNESHWAR P.
CITATION: 1957 AIR 510 1957 SCR 605
Constitutional law-Delegated legislation and
conditional legislation-Distinction-Statute conferring Power on outside
authority to extend its operation-Validity-Rajasthan (Protection of Tenants)
Ordinance, 1949 (Rajasthan Ordinance NO. IX of 1949), ss. 3, 4, 7(1),
15-Notifications by Rajpramukh-Validity-Whether Ordinance contravenes Arts. 14
and 19(1)(f) 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 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 the above Ordinance
" shall remain in force for a further period of two years with effect from
June 21, 1951 ", and on June 20, ,953, 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 having been raised as to the validity
of the notification dated June 20, 1953, the Rajpramukh issued another
Ordinance on February 5, 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 five years ". It was contended inter
alia for the petitioners that the Ordinance dated June 2i, 1949, and the
notifications issued by the Rajpramukh were invalid on the grounds (1) that s.
3 of the Ordinance was ultra vires as the power which it conferred on the
Rajpramukh to extend the period fixed therein was an unconstitutional
delegation of legislative power, (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 Rajpramukh to legislate conferred by Art. 385 of
the Constitution of India had, on that date, come to an end and (3) that the
Ordinance contravened Arts. 14 and 19(1) (f) of the Constitution.
Held:(1) Section 3 Of the Ordinance 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 vires.
606 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 is valid, and it can make no difference in the character of a legislation
as a conditional one that the legislature, after itself 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.
Queen v. Burah, (1878) 5 I.A. 178, relied on.
In re The Delhi Laws Act, 1912, (1951) S.C.R.
747 and State of Bombay v. Narothamdas jethabai, (1951) S.C.R. 51, referred to.
Jatindra Nath Gupta v. The State of Bihar,
(1949) F. C. R.
595, in so far as it decided that a power to
extend the life of an enactment cannot validly be conferred on an outside
authority, dissented from.
(2) The Rajpramukh issued the notification
dated June 20, 1953, in his character as the authority on whom power was
conferred under S. 3 of the Ordinance and not as the legislative authority of the
State and accordingly the notification is valid.
(3) The Ordinance cannot be held to be bad
under Art. 14 Of the Constitution on the ground that s. 15 of the Ordinance
which authorises the Government to exempt any person or class of persons from
the operation of the Ordinance does hot lay down the principles on which
exemption could be granted leaving the matter to the unfettered and uncanalised
discretion of the Government, because, the preamble to the Ordinance sets out
with sufficient clearness the policy of the legislature and as that governs s.
I5, the decision of the Government cannot be said to be unguided.
Harishankay Bagla v. The State of Madhya
Pradesh, (1955) 1 S.C.R. 380, 388, relied on.
Where the preamble to the Ordinance recites
that it is expedient to enact a law for giving protection to tenants, and for
granting relief to them the legislature decides from what date the law should
be given operation, that is a matter exclusively for the legislature to
determine, and is not open to question in Courts on the ground of
discrimination in that the landlords who had tenants on their lands before
-that date were free from its restrictions.
(4) The provisions of the Ordinance which
oblige the landowners to keep tenants on their lands, thereby preventing them
from themselves 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 cultivate the lands, but 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 in 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, (192O) 256 U. S. I35: 65 L.
Ed. 865, relied on.
ORIGINAL JURISDICTION :Petitions Nos. 50,
145, 149, 150, 188, 243, 261, 266 and 362 of 1955 and 205 of 1956.
Petitions under Article 32 of the
Constitution of India for the enforcement of fundamental rights.
M. M. Tiwari and K. R. Choudhry, for the
petitioners in Petitions Nos. 50, 150, 243, 261, 266 and 362 of 1955.
Ganpat Rai, for petitioners in 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
Petit' ion No. 149 of 1955.
Tarachand 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 608 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 there under 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 Rulers 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 Union
called the United State of Rajasthan. The constitution of the State was settled
in a Covenant, to which all the Rulers agreed. Under Art 11 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, authorities and jurisdiction to the new State which "shall
thereafter be exercisable only as provided by this Covenant or by the
Constitution to' be framed there under". Article X(3) provides that,
"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 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 law as an Act passed by the legislature of the United
State." Article X(3) was subsequently modified by substituting for the
words "Until a Constitution so framed comes into operation after receiving
the assent of the Rajpramukh", the words " Until the Legislative
Assembly of Rajasthan has been duly constituted and 609 summoned to meet for
the first session under the pro.
visions of the Constitution of India."
Reference may also be made to Art. 385 of the Constitution of India, which runs
" Until the House or Houses of the
Legislature of a State specified in Part B of the First Schedule has or have
been duly constituted-and summoned to meet for the first session 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 Constitution on the House or Houses of the
Legislature of the State so specified " It may be mentioned that the
Legislative Assembly of Rajasthan was constituted and came into being on March
29, 1952, and 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 dispossess tenants from
their holdings, and in the wider national interest of increasing the production
of foodgrains, 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 provides:
"So long as the Ordinance is in force in
any area of Rajasthan, no tenant shall be liable to ejectment or dispossession
from the whole 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, but had been subsequently
dispossessed; and by an Amendment Act No. XVII of 1952, this right was extended
to tenants, who got into possession even after the first day of April.
610 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, 195 1, providing that Ordinance No. IX of 1949
"shall remain in force for a further period of two years with effect 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
around that as the State Legislature had come into being on March 29, 1952, the
power of the Rajpramukh to legislate under Art. 385 of the Constitution had
come to an end on that date. To resolve the doubt, the Rajpramukh issued on
February 15, 1954, an Ordinance under Art. 238 of the Constitution,, No. III of
1954, substituting for s. 3 the following:
" 3. It 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. III of 1954, and enacted the
Rajasthan (Protection of Tenants) Amendment Act No. X of 1954, and that came
into force on April 17, 1954. Under this Act, a. 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 June 20,1953, and of Act No. X of 1954. It appears that on
October 15, 1955, a new enactment, the Rajasthan Tenancy 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 611 number of petitions filed
by the tenants under Ordinance No. IX of 1949 are still undisposed of by reason
of stay orders obtained by the petitioners herein, it is necessary for the
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 petitioners.
We accordingly proceed to a consideration of
the present petitions on their merits.
Counsel for petitioners urged the following
contentions in support of the petitions:
(1)The notifications dated June 14, 1951, and
June 20, 1953, are bad, as s. 3 of the Ordinance under which they were issued
is ultra vires, as constituting delegation of legislative power.
(2)The notification dated June 20,1953, is
further bad, because the Legislature of Rajasthan had been constituted on March
29, 1952, and the authority of the Rajpramukh to legislate conferred by Art.
385 of the Constitution had, on 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 the said Ordinance had
already become dead.
(4)The impugned Ordinance is bad as being
repugnant to Art.
14 of the Constitution; and (5)The Ordinance
also contravenes Art. 19(1)(g) of the Constitution in that it imposes
unreasonable restrictions on the 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 impugned, notifi. cations dated June 14, 195 1, and June 20, 1953, and in
that event, the first two contentions will not survive for determination. The
argument of the petitioners 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, 195 1 ; and that neither Act No. X of 1954 which came into force on 612
April 17, 1954, nor even 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 ; but 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 efflux 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 amendment, could
operate, and that it was therefore ineffective. Some support for this
contention might be found in the observations of Kania C.J. in Jatindra Nath
Gupta v. The Province of Bihar (1) at page 606, of Mahajan J. at pages 627-628
and of Mukherjea 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 bad, 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 authority, 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 Jatindra 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 Public Order Act V of 1947 to Chota
Nagpur Division and the Santhal Parganas District with retrospective effect
from March 16, 1948, Section (1)  F.C.R. 595.
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 learned Judges
expressed the view that the power to extend the operation of an Act was purely
a legislative function, and that it could not be delegated to an outside
authority. Thus, Kania C. J. observed at pages 604-605:
"The power to extend the operation of
the Act beyond the period mentioned in the Act prima facie 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 Government. 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 functions had prescribed 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 authority, which was not the
legislative authority of the Province." Mahajan J. dealing with this
question observed at 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 language of s. 1(3) also amounts to an act of legislation and does not fall
under the rule laid 614 down in The Queen v. Burah (1). The Actin a mandatory
form stated that it 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 (1), 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 modifications". Fazl Ali J.
took the contrary view. He observed -at page 646:
"So far as the extension of the Act is
concerned, I am not prepared to hold that it amounts to legislation or exercise
of legislative 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 seems 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 leaving it
to the discretion of the executive authority whether the Act should be extended
for a further period of one year or not. It 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 in to effect to the discretion of the
executive authority and that it cannot leave any other matter to its
discretion. The extension of the Act for a further period of one year does not
amount to its reenactment. It merely amounts to a continuance of the Act for
the maximum period contemplated by the Legislature when enacting it." (1)
 L.R. 5 I.A. 178.
615 It will be noticed that the authority
conferred on the Bihar Government by the proviso to s. 3 was one not 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 the proviso as a whole was bad was based primarily on the
view that that clause was ultra vires.
Kania C. J. no doubt observed that the power
to extend the operation of the Act was, even apart from the power to modify it,
a legislative 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 severed 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 Jethabai (1). There, the Bombay
High Court had held, relying on the decision in Jatindra Nath Gupta v. The,
Province of Bihar (2), that s. 4 of the Bombay City Civil Courts Act, 1948
which conferred authority on the State to invest Civil 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 Bombay High
Court in coming to their decision on the point seem to have been influenced to
some extent by the pronouncement of the, Federal Court in Jatindranath Gupta v.
Province of Bihar (2 ), and the learned Counsel for the respondents naturally
placed reliance upon it......... Mr. Seervai would have been probably right in
invoking the decision in that case as an authority 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 Legislature itself. The
proviso, however, went further and authorised the Provincial Government to
decide at the end of the year not merely whether the Act should be continued
for another year but whether the Act itself was to be modified in any (1)
 S.C.R. 51.
(2)  F.C.R. 595.
616 way or not. It was conceded by the
learned Counsel appearing for the Province of Bihar that to authorise another
body to modify a statute amounts to investing that body with legislative
powers. What the learned Counsel contended for was that the 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 Jatindra 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 refer to the decision in In re
The Delhi Laws Act, 1912 (2), wherein the law relating to delegated legislation
was exhaustively 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 that 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 conditional 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
The, Queen v. Burah(s). There, the question was as to the validity of a
notification issued by the Lieutenant-Governor of-Bengal (1)  F.C.R. 595
(3)  5 I.A, 178.
(2)  S.C.R. 747.
617 on October 14, 1871, extending the
provisions of Act No. XXII of 1869 to a territory known as the Jaintia and Khasi
Hills in exercise of a power conferred by s. 9 of that Act, which was as
" 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
Jaintia 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 of legislative
authority. But that decision 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 Lordships agree that the
Governor-General in Council could not, by any form of enactment, create in
India, and arm with general legislative authority, 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 due 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 now absolute. Where plenary powers of legislation exist as to
particular subjects, whether in an Imperial or in a provincial Legislature,
they may (in 318 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 whom it places confidence, is no uncommon 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 constituting the Indian Legislature, contemplate this'
kind of conditional legislation as within the scope of the legislative powers
which it from time to time conferred. " This is clear authority that s
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 Constitution Act any limitation on its power to enact such a
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 why if the one is competent, the other is not. The reason for upholding a
legislative provision authorising an outside authority to bring an Act into
force at such time &a 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, and 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; ma no difference in the character of a legislation
as -a conditional one that the legislature, after itself enacting the law and
fixing, on a consideration 619 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 clearly 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 understanding 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 beyond
that period, if the state of affairs then should require it.
When such extension is decided by the
Rajpramukh and notified, the law that will operate is the law which was enacted
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 unable to agree with the statement of the law in
Jatindra Nath Gupta v. The, State of Bihar(2) that a power to extend the life
of an enactment 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, and we reserve
our opinion thereon.
(2) It is next contended that the
notification dated June 20, 1953, is bad, because after the Constitution 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 29, 1952. This
argument proceeds on a misconception as to the true character of a notification
issued under s. 3 of the Ordinance. It was not an independent piece of
legislation such as could be enacted only by the then competent legislative (1)
 5 I.A. 178.
(3)  S.C.R. 747.
80 (2)  F.C.R. 595.
620 authority of the State, but merely an
exercise of a power conferred by a statute which had been previously enacted by
the appropriate legislative authority. The exercise of such a power is
referable not to the legislative competence of the Rajpramukh but to Ordinance
NoIX of 1949, and provided s. 3 is valid, the validity of the notification is
coextensive 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 State. This objection should accordingly be
(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 contention with reference to s. 7(1) is
that under that section landlords who had tenants on their lands on April 1,
1948, were subjected to various restrictions in the enjoyment of their rights
as owners, while other landlords were free from similar restrictions. There is
no substance in this contention. The preamble to the Ordinance recites that
there was a 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 question in
Courts. We should add that the petitioners sought to dispute the correctness of
the recitals in the preamble.
This they clearly cannot do. Vide the
observations of Holmes J. in Block v. Hirsh (1).
(1) 256 U.S. 135: 65 L. Ed. 865.
621 A more substantial contention is the one
based or a. 15, which authorises the Government to exempt any person or class
of persons from the operation of the Act. It is argued that that section does
not lay 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 clearness
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 Bagla v. The State of Madhya Pradesh (1). But even if s. 15 were to
be held to be bad, that does not affect 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 contended that the provisions
of the Act are repugnant to Art. 19 (1) (f) in that they oblige the landowners
to keep 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 be
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 possession even after the expiry
of the lease, was held to be valid, Holmes J.
observing, (1)  1 S.C.R. 380, 388. (2)
 256. U.S. 135; 65 L.Ed. 865.
622 "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 down. But if the
public interest be established, the regulation of rates is one of the first
forms in which it is asserted, and the validity of such regulation has been
settled since Munn v. People of Illinois (1) .... :..... 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 (2), that is a factor to be
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 dismissed, but in the
circumstances, without costs.
(1)  94 U.S. 113 24 L. Ed. 77.
(2)  S.C.R. 519, 526.