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PETITIONER: SARDAR INDER SINGH

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN(and connected petitions)

DATE OF JUDGMENT: 08/02/1957

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN (CJ) SINHA, BHUVNESHWAR P. DAS, S.K. GAJENDRAGADKAR, P.B.

CITATION:  1957 AIR  510            1957 SCR  605

ACT: 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.

HEADNOTE: 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  Raj- pramukh  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

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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  land- owners  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

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on.

JUDGMENT: 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 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 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 thereunder".  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

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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 as follows: "  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

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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

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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 noti- fications 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)  [1949] 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

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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)  [1878] 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

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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) [1951] S.C.R. 51. (2) [1949] 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

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v. Burah(s).  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. (2) [1951] 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 follows: "  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 placeperson, 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 legislation. The  petitioners do not dispute this.  What they contend  is

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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  legistation  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)  [1878] 5 I.A. 178. (3)  [1951] S.C.R. 747. 80 (2) [1949] F.C.R. 595. 620

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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 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 State.  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 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)  [1920]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  land- owners  to keep tenants on their lands,  thereby  preventing

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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) [1955] 1 S.C.R. 380, 388.  (2) [1920] 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. Petitions dismissed. (1)  [1877] 94 U.S. 113 24 L. Ed. 77. (2)  [1950] S.C.R. 519, 526. 623