Girjashanker vs Lalu

Wanchoo, C.J.—This case has come before this Full Bench because Bapna J. had some doubt about the validity of the extension of the Rajasthan (Protection of Tenants) Ordinance (No. IX) of 1949, which was made by a notification on 20-6-1953. As the mattes was of considerable importance, he referred the case to a Division Bench.

Thereupon, a Full Bench was ordered to be constituted in view of the importance of the point involved. Before, however, a Full Bench could meet an Ordinance No. III of 1954 was promulgated on 15-2-1954, making certain amendments in Ordinance No. IX of 1949. Then Ordinance No. III of 4954 was replaced by the Rajasthan (Protection of Tenants) Amendment Act (No. X) of 1954.

The question of validity therefore of the extension made in June 1953 by a notification has to be considered keeping in view these two enactments of 1954.

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 21-6-1949, and S. 1, sub-s. (3) stated that ft would come into force at once, and remain in force for a period of two years unless this period was further extended by the Raj Pramukh by notification in the Rajasthan Gazette.

On 18-6-1951, the term of the Ordinance was extended for another two years. Then on 20-6-1953, 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 Sukh Pal Vs. Rajasthan Revenue Board, Jaipur and Others, and it was held that the extension was valid.

Then came another case before another Division Bench, namely - Sadaria and Another Vs. The Rajasthan Board of Revenue and Others, In that case, Bapna, J. adhered to the view that he had taken in Sukh Pal''s case (A), namely that the extension was valid, while Sharma J. was doubtful of the validity of even that extension, but agreed with the final order in view of the earlier decision in - ''Sukh Pal''s case (A)'' which was held to be binding.

Then came another case, namely - ''Ram Deo v. State of Rajasthan'' Writ Appln. No. 254 of 1953, D/- 29-9-1954 (Raj) (C), by another Bench. In that case, it was held that the extension of the Ordinance by Notification dated 20-6-1953, 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 6f 1949 must be deemed to be in force for a period of seven years from 21-6-1949.

Then came - ''Laxmichand v. State of Rajasthan'', Civil Writ No. 250 of 1953, D/- 24-11-1954 (Raj) (D), to which one of us was a party. In that case the decision in Ramdeo''s case (C) 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 1949 must be held to be valid for seven years from the date of its coming into force, namely 21-6-1949.

We do not think it necessary to repeat what has already been said in Ramdeo''s case (C) as well as in - ''Laxmichand''s case (D)'', It is enough to say that Act X of 1954 is clearly a piece of retrospective legislation and comes into force from 21-6-1949. Further by S. 2 of this Act, sub-section (3) of Section 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 21-6-1949, had these words from the very beginning. Once we put these words in sub-s. (3) of S. 1 of Ordinance No. IX of 1949, all subsequent notifications extending its operation become useless, and Ordinance No. 9 of 1949 remains in force for a period of seven years by virtue of this sub-section.

There is no question of reviving a dead Act by means of Act 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 21-6-1949, and in view of the retrospective nature of the amendment by Act No. X of 1954, the principle in - AIR 1949 175 (Federal Court) would not apply.

Learned counsel do not contend that Act No. X of 1954 is not retrospective in operation; nor is it contended that it does not put a period of seven years as the life of Ordinance No. IX of 1949 into that Ordinance from the very day it came into existence, namely 21-6-1949. What has been contended is that Ordinance No. 9 of 1949 did not come into existence on 21-6-1949, and therefore even if Act No. 10 of 1954 is retrospective, it cannot put anything into another enactment at a tune when that enactment was not even in existence.

It is urged that this is but an inference from the principle laid down in Jatindra Nath Gupta''s case (E) where it was held that nothing can be inserted into an enactment which was already dead. The argument before us is that on the same principle nothing can be inserted into an enactment before it is born. So we have to see whether Ordinance No. IX of 1949 was in force on 21-6-1949.

The argument in this connection is that Ordinance No. IX of 1949 was published in the Rajasthan Gazette on 25-6-1949, and therefore it must be held to commence from that day and not earlier. Reliance in this connection is placed on Harla Vs. The State of Rajasthan, .

We are, however, of opinion that there is no force in this argument. All that Harla''s case (F) lays down is in these words:

In the absence therefore of any law, role, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.

Learned counsel urges that the words ''promulgation'' or ''publication'' mean the same thing and that unless there was publication Ordinance No. IX of 1949 could not come into force as there was no General Clauses Act in force in Rajasthan at that time, and Ordinance No. IX of 1949 did not apply the Central General Clauses Act mutatis mutandis to this Ordinance.

That is how learned counsel wants to distinguish the two cases of this Court, namely - Surajmal Vs. The Rajasthan State, and - Atmaram Vs. Madanlal Rathi and Others, . It is correct that in the laws dealt with in those two cases, there was a provision applying the Central General Clauses Act mutatis mutandis to those two Acts. As there is no such provision in Ordinance No. IX of 1949, there is some difference between the two laws dealt with in those cases and the present Ordinance.

But even though this difference is there, we are of opinion that Ordinance No. IX of 1949 did come into force on 21-6-1949. It is stated in the Gazette in which the Ordinance was published that it was promulgated by His Highness the Raj Pramukh on 21-6-1949. Under sub-s. (3) of S. 1 it was to come into force at once, and not from the date of its publication in the Gazette, and therefore unless there is something which compels us to hold that it can only come into force from the date of its publication in the Gazette, it is obvious that it must be held to have come into force on the date it was promulgated by His Highness the Rajpramukh, namely 21-6-1949.

In this connection, we have to examine the argument that there is no difference between ''promulgation'' and ''publication''. The very fact that the Supreme Court has said that ''promulgation'' or ''publication'' of some reasonable sort is essential shows that there is a difference between ''promulgation'' and ''publication'', and that it may be possible that one may have ''promulgation'' without ''publication''.

In the Oxford English Dictionary ''promulgate'' has a number of meanings, namely ''to make known by public declaration'', "to publish" and so on. Where a distinction has to be drawn between ''publication'', and ''promulgation'' it is obvious that ''promulgation'' properly so called is only making known by means of a declaration, and would not necessarily include publication in the Gazette or through any other means.

The matter is made clear in Webster''s Dictionary where the primary meaning of ''promulgate'' is given as "to make known by open declaration as a law, decree etc." Further it is said at the same place that promulgation of a law is the executive act by which a valid law is put into force after being passed; it may or may not involve publication. Promulgation then cannot be synonymous with publication, though there is some element of ''publication in promulgation.

For example if a king were to appear in a market place and declare to the people assembled there that he was making such and such law front that moment, that would be promulgation of that law, though it may not amount to publication in the sense that it was made widely known to his subjects. 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.

This 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.

Let us see then what actually happened in this case. Ordinance IX of 1949 was published in the Gazette on 25-6-1949. It is mentioned there that it was promulgated by His Highness the Rajpramukh on 21-6-1949. 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 21-6-1949, 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 21-6-1949, 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-section (3) of Section 1, as it is so in so many cases.

The result therefore is that this Ordinance having been promulgated on 21-6-1949, must be held to have come into force from that very day, and there is no question of its being hit by the principle enunciated in Harla''s case (F) for that case recognises that a law can be made either by promulgation or by publication.

Them is no other point urged on behalf of the appellant, and in view of the decisions in Ramdeo''s case (C) and Laxmichand''s case (D), we are of opinion that Ordinance No. IX of 1949 came into force from 21-6-1949, and has to remain in force for seven years as provided by Act X of 1954. In view of this decision, the appeal will remain temporarily consigned to the records till the Ordinance remains in force. Thereafter it will be laid before a learned Single Judge for decision.