United Provinces vs Mt. Atiqa Begum and Ors.

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between the parties, though it has since been repealed and only re-enacted with substantial alterations.

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.

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 of rent allowed by the Court and sanctioned by the Collector; and that, in the second,

remission of rent might be ordered by the Collector only after the Local Government had remitted or suspended the land revenue. Section 73 was

expressly extended to thekadars by Section 219 of the Act, but not Section 72. The reason no doubt was that where the parties had embodied

their contract in a formal written instrument, they must in agreeing upon the amount of rent be assumed to have had in mind the possibility of such

occurrences as were dealt with in Section 72; but a remission or suspension of land revenue Under Section 73 would destroy the basis upon which

they must necessarily have contracted and it would be inequitable if a consequential adjustment were not permitted.

In 1931, the United Provinces were faced with a catastrophic fall in agricultural prices followed by threats to withhold rent on a large scale.

Faced with what was clearly a most difficult situation, the Government appears to have acted with courage and promptitude. It took the view that

the most urgent problem was that of rent, and devised a scheme for the systematic reduction of rents, varying with the circumstances of the

different districts, followed later by consequential adjustments in land revenue. The plans adopted were described in a series of communiques

issued from time to time, the first being dated 29th April 1931 and the last 28th October 1932. The Government appears to have been well aware

of the legal position, for, in its last communique, a statement on the report of the rent and revenue committee of the Legislative Council, it observed

that

the Governor in Council recognizes that the action which Government were compelled to take last year was not covered by any provision in the

existing law, and he is as anxious as any party that the position should be regularized as soon as possible. But owing to the magnitude of the

problem the process will inevitably take time. The law was not framed to meet such a position as has arisen from the recent severe fall in prices.

The Government, in other words, were faced with a problem with which executive governments have often to deal; a grave emergency,

threatening public order, and inadequate powers for meeting it. In circumstances such as these, a government has to do the best it can, relying, if it

exceeds the limit of its powers, upon the willingness of the Legislature to indemnify it subsequently; and Legislatures are usually prepared to grant a

government absolution, if they are satisfied of the gravity of the emergency, of the bona fides of the action taken, and of the reasonableness of the

measures adopted. A government however always runs the risk of the measures which it has taken becoming the subject of legal proceedings

before it has obtained its indemnity, and this is what happened in the present case. It is clear that Section 73 of the Act, only enabled remissions of

rent to be ordered, if there had been a prior remission of land revenue; and therefore the orders of the Government on this occasion had no legal

force or effect and could not be relied upon by any tenant in a suit by his landlord for the recovery of arrears of rent. The Allahabad High Court so

decided, as I have already stated; and it was because of this decision that the Government found themselves compelled to invite the Legislature to

pass the Act which is the subject of the present appeal; the question is whether that Act is effective for the purpose for which it was designed. I

think it right to observe in justice to the Government, though the matter does not of course affect the legal position, that while no doubt its action

exposed it to much criticism, a substantial number of landlords were willing to co-operate with it in meeting the emergency. This appears from the

communique of 11th May 1931 in which the Government recorded its appreciation of the spirit shown by a deputation of the taluqdars of Oudh

who had waived their legal claims and agreed without condition to remit whatever Government considered fair to their tenants; and also of the

generosity with which the Agra landlords had shown their willingness to grant remission to a large number of cultivators. It is desirable that this

should be said, for Courts of justice, while giving no countenance to the theory that governments are at liberty to break the law whenever they find

it convenient to do so, ought to abstain from harsh or ungenerous criticism of measures taken in good faith by those who bear the responsibility of

government, when suddenly faced with a serious and perhaps dangerous situation.

The Regularization of Remissions Act, 1938, had been passed before the present appeal came before the High Court, and when the appellants

sought to take advantage of it, on the ground that the respondents could no longer challenge the validity of the remission orders, the latter replied

by challenging the new Act itself. This point was referred to a Full Bench, which held the Act to be beyond the competency of the Legislature to

enact. The three learned Judges who composed the Bench (Iqbal Ahmad, Bajpai and Mohammad Ismail, JJ.) all took the view that the Act was

contrary to the provisions of Section 292, Constitution Act, because it attempted to legislate retrospectively; but Iqbal Ahmad J. was also of

opinion that none of its provisions were with respect to any of the matters set out in List 2 of Schedule 7 to the Constitution Act, nor indeed with

respect to any of the matters in List 3, the Concurrent List.

Before the case was heard by the Full Bench, the High Court had caused notice to be given to the Advocate-General of the Province, in order

that, if the United Provinces Government so directed, he might appear and support the validity of the Act. The Advocate-General was accordingly

heard; and when, after the Full Bench had given judgment, the case came again before the High Court to be finally dealt with, the Government

applied to be made a party to the appeal, in order that (as the application stated) it might have a right of appeal to the Federal Court. The

application not being opposed, the Government was duly made a party; and its name appeared thereafter as respondents on the record, under the

style of the United Provinces Government, in addition to those of the plaintiffs appellants and the defendants. In the final order of the High Court,

however, admitting the appeal to this Court, the parties on the record are described as ""the United Provinces, Applicant (sic) to the Federal

Court,"" with all the original plaintiffs and defendants as respondents. It is in that form that the appeal has now come before us. It should be added

that the defendants did not enter an appearance in this Court and only the United Provinces and the plaintiffs were represented at the hearing.

In these circumstances counsel for the lessors took a preliminary objection and contended in a very able argument that the Advocate-General

ought not to be heard, because the High Court had no power to make the Province a party to the suit and the Province had therefore no right to

appeal. He put it as a matter of jurisdiction and not merely as a wrongful exercise of discretion by the High Court. The application of the United

Provinces was made Under Order 1, Rule 10(2), Civil P.C., the material words of which are as follows ;

The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the

Court to be just, order. . . that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before

the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the

suit, to be added.

Counsel for the lessors argued that the desire of the Province to secure the right of appeal did not make Order 1, Rule 10(2) applicable to the

case; but, he also based his argument on broader grounds and contended that the mere fact that the validity of provincial legislation was being

challenged was no sufficient reason for making the Province a party to a suit between private persons.

I desire to say at the outset that, assuming for the moment that there was jurisdiction to add a party to represent the executive Government of

the Province, that party ought not in my opinion to have been the Province itself. It is true that by Section 170(1), Constitution Act, a Provincial

Government may sue or be sued by the name of the Province, and may, subject to any provisions which may be made by Act of the Federal or the

Provincial Legislature, sue or be sued in relation to its affairs in the like cases as the Secretary of State in Council might have sued or been sued if

the Act had not been passed. But it seems to me that where the validity or constitutionality of provincial legislation is in issue, and not any matter

relating to the proprietary rights or interests of the Province, it is more convenient and more correct that the Advocate-General should represent

the executive Government for the time being of the Province. This is the Dominion practice, and in my opinion it ought to be followed in India. The

Secretary of State was first made liable to be sued by Section 65, Government of India Act, 1858, and the same suits and remedies were made

available against him as had been available against the East India Company. He was no doubt substituted for the East India Company after the

transfer of all the rights of the Company to the Crown, because under the constitutional arrangements made by the Act of 1858 he had complete

control of all the revenues of India. But the question of the constitutionality of an Indian statute could rarely have arisen before the present

Constitution Act, and even more rarely still in the case of a provincial statute; and it seems to me, as I have said, that the more convenient course is

to confine the operation of Section 176(1) to cases in which the proprietary rights or interests of the Provinces are affected, and, if the Government

of a Province desires to uphold the validity of a Provincial Act or to challenge that of a Federal Act, it should direct the Advocate-General of the

province to intervene on its behalf.

A number of cases were cited on the true construction of Order 1, Rule 10. Counsel for the lessors relied principally upon Prayaga Doss Jee

Varu v. Board of Commissioners for Hindu Religious Endowments, Madras (''26) 13 AIR 1926 Mad 836 in which Srinivasa Ayyangar J. refused

an application by the Secretary of State to be added as a party in a case said to involve the question whether an Act of the Provincial Legislature

was ultra vires. The learned Judge, treating the case as one of first impression, held that the words ""all the questions involved in the suit"" must refer

to questions as between the parties to the litigation, that neither on principle or authority could the Secretary of State be regarded as a necessary or

a proper party, and that he ought not to be joined as an additional defendant. He concluded his judgment with these words:

Having regard to the number and variety of legislative bodies and authorities in the country at the present day, paramount, imperial, local,

delegated, subordinate, etc., I feel that questions of ultra vires are certain to be raised in the Courts in increasingly large numbers of cases and I

refuse to contemplate with equanimity the prospect of the Secretary of State for India being required by every defendant to be made a party in

every one of them.

This judgment was criticised and dissented from in Secretary of State v. Murugesa Mudaliar, AIR 1929 Mad 443 by Venkata Subbarao J., a

case in which the plaintiff had brought a suit against a district board for a declaration that he had been duly elected a member of the board by a

resolution passed at the meeting of a certain taluq board. The Government applied to be joined as a defendant, but both plaintiff and defendant

opposed the application. It was held that since by a local Act Government had the power of control over all local boards in the province and could

suspend the execution of any resolution (as they had apparently done in the case of the taluq board), it was a proper party to the suit and ought to

be added. The learned Judge was of the opinion (which I cannot myself share) that Srinivasa Ayyangar J., had in the earlier judgment ignored the

distinction made in Order 1, Rule 10 between (1) persons who ought to have been joined, and (2) persons whose presence is necessary to enable

the Court completely and effectually to adjudicate upon and settle all the questions involved in the suit, i. e., between necessary parties and proper

parties. Basing his opinion on earlier English and Indian authorities, he held that the Court was not bound to decide a dispute in the absence of

persons whom it most vitally concerned, and that in the case before him it was the Government who had interfered with the alleged right of the

plaintiff by suspending the execution of the resolution of the taluq board. Hence he concluded that the Government was a proper party to the suit.

It is not clear to me that Srinivasa Ayyangar J., would have come to a conclusion contrary to that of his brother Judge, if the later case had

come before him; for different principles appear to be involved in the two cases. The question of the validity of the Act could certainly have been

decided in the absence of the Secretary of State in the first case, though it might have been convenient to have him represented before the Court.

In the second case, it was in effect the action of the Government itself of which the plaintiff complained. But it is obvious that in the later case a

wider view was taken of the powers conferred by Order 1, Rule 10, and stress was laid rather upon the words ""effectually and completely to

adjudicate upon and settle all the questions involved in the suit"" than upon the words ""necessary to enable the Court"" which preceded them. The

Allahabad High Court appear to have gone further in Mt. Jaimala Kunwar v. Collector of Saharanpur (''34) 21 AIR 1934 All 4 and to have held

that the Court has inherent powers of its own in the matter which are not restricted by Order 1, Rule 10; but I should always hesitate to rely on

unspecified and undefined inherent powers as a justification for any action taken, if it is possible to avoid doing so. In any case, the first of the

Madras decisions is directly in point in the present ease, though the report does not indicate how the question of ultra vires in fact arose in

connection with the provincial statute which was under discussion, nor is it easy to see how under the Government of India Act, 1919, and the

Devolution Rules, questions of ultra vires in the case of provincial statutes could have come before the Court. The decision in the later case may

have been justified on the facts, but those facts were very different from those which are now under consideration.

Since the new Constitution Act, however, the position with regard to the competence of Indian Legislatures, whether the Central Legislature or

the Legislatures of the Provinces, is completely changed; and the cases which have already come before this Court during its brief history show the

difficulty and complexity of the disputes in which questions of legislative competence are involved. I think that it would be a matter of great regret

to this Court if in any such case it had not the assistance of the Advocate-General of the Province concerned, and this point was not overlooked

when the rules of the Court were drafted: see Federal Court Rules, Order 36. But, in the absence of such an express rule in the Code, it is

necessary to decide, first, whether, the Advocate-General was rightly empowered to intervene as a party on the record, and, secondly whether in

the particular circumstances of the present case he has an independent right of appeal.

It can but rarely happen, in cases between private persons involving the constitutional validity of a statute, that an Advocate-General is a

necessary"" party; and I am not prepared to say without further consideration that he is even a ""proper"" party in each and every case. But in a

number of cases, of which the present is an example, the question whether a statute is or is not valid involves the question of the scope of the

executive authority of the province. The executive authority of a province vests in the Governor on behalf of the Crown, and extends to all matters

with respect to which the Legislature of the province has power to make laws (Section 49, Constitution Act). If then a provincial Act purporting to

confer powers upon the executive is held to be beyond the competence of the Provincial Legislature, the scope of the executive authority of the

province is thereby declared to be more restricted than Legislature and Government had supposed or intended. If the Act impugned in the present

case is held to be invalid, orders issued by or under the authority of the Provincial Government in the past can be questioned in a Court of law, and

the Government would have no power to issue any orders of the kind in the future. It is therefore impossible for a Court so to decide in litigation

between private parties without imposing a hitherto unsuspected restriction upon the powers of the Government; and it does not seem right that this

should be done without the Government being a party to the proceedings before the Court. In my opinion, the Advocate-General of the province is

a proper party, in the sense that without him the Court cannot effectually and completely adjudicate upon and settle all the questions involved in the

suit. I am not prepared to extend the operation of Order 1, Rule 10, beyond what is necessary, but it seems to me that to allow the Advocate-

General to intervene as a party in cases of this kind is for the reasons which I have given within the spirit and I think also the letter of the rule.

The Judicial Committee held in Rsquimalt and Nanaimo Railway Co. v. Wilson (1920) AC 358 that when an action, if successful, will affect

the rights claimed by the Crown, but the plaintiff has against the Crown no claim to which the procedure by petition of right is applicable, the

Attorney-General is nevertheless a necessary and proper party and may be joined as a defendant by the plaintiff. In that case the validity of a

Crown grant, and not of a statute, was challenged, but I draw attention to the following observations of Lord Buckmaster, who delivered the

judgment of the Committee:

It is quite true that the title of the Crown to the land in question is not in controversy, nor is the Crown asked to do any act or grant any estate or

privilege; but in the event of the plaintiffs'' success the rights existing in the Crown and consequent upon the grant to the respondents will cease. If

these interests lay in a third party, he ought certainly to be added as a defendant and that is the best means of testing the necessity of the attendance

of the Crown (at page 363).

Adapting these words, I might say that in the event of the lessors succeeding in the present case, certain rights of the Crown, that is, of the

executive, of the province will cease to exist, in the sense that they will no longer have that extended effect which it was believed that the impugned

Act had given them. In a recent case in a, Canadian Province, Beauharnois L.H. & P. Co. v. Hydro-Electric Power Commission (1937) 3 DLR

(Ont) at p. 458 a local Judicature Act had provided, that no Act of the Provincial Legislature should be adjudged invalid in any proceedings until

after notice had been given to the Attorney-General of Canada and to the Attorney-General of the province and that the two Attorneys-General

were entitled as of right to be heard, notwithstanding that the Crown was not a party to the proceedings. This enactment was held not to preclude

the making of the Crown, represented by the Attorney-General, a party to an action, and the Court stating that in cases admitting of doubt it was

desirable that the Crown should be made a party, declared the Attorney-General to be a proper, if not. a necessary, party to the litigation before it.

It is not necessary for me to say whether I agree with this more general proposition ; I am content to limit my observations to cases where to

challenge the validity of a statute would, if successful, affect the executive authority of the province. It would no doubt be often, perhaps usually,

convenient if the Court had the Advocate-General of the province before it, when the validity of a provincial statute is in issue; and High Courts

may desire to consider whether they should not frame a rule of their own upon the subject which will set all doubts at rest.

It seems to me however by no means to follow that, because the Advocate-General of the province has been permitted to be put on the

record as an intervener in the suit, he is also entitled to prefer an independent appeal to this Court, in the absence of any appeal by the parties. He

has an interest in the litigation, it is true, but the suit is after all between private parties; and if they are content with the decision of the Court,

whether it be in favour of the plaintiff or the defendant, it is difficult to see on what principle the Advocate-General can be held to have a locus

standi sufficient to justify an independent appeal of his own. If one of the parties appeals, then of course the Advocate-General has a right to

appear before this Court, since he is an intervener in the suit; but he is a party only in a very special and limited sense. The doubts which I have felt

on this point are not diminished by a very recent decision of the Canadian Supreme Court:Attorney Gen of Alberta (Intervenant) v. Kazakewich

(1937) Can SCR 427. In that case the Supreme Court of Alberta had held that a statute under which a husband had been ordered to pay a certain

sum towards the maintenance of his wife was beyond the competence of the Provincial Legislature to enact. The Attorney-General of the Province

had intervened to uphold the validity of the Act, and special leave to appeal to the Supreme Court of Canada had been granted both to the

Attorney-General and to the wife, but the wife failed to perfect her appeal. The Supreme Court were of opinion that though, on an appeal to the

Court by the wife, the Attorney-General would, in the ordinary course, have the right to appear in order to support the validity of the Act, he had

no status to appeal to the Court, so long as the wife had not perfected her appeal, and that until she had done so the Court had no jurisdiction. This

decision seems to me, if I may respectfully say so, to be based upon sound principle, and in my opinion this Court ought to follow it. There is a

significant observation by Lord Haldane in John Deere Plow Co. v. Wharton (''14) 1 AIR 1914 PC 174 at p. 334, that Attorneys-General

intervening in private litigation were only entitled to present their views to the Judicial Committee and had no right of reply. If an Attorney-General

had in such circumstances an independent right of appeal of his own, it is difficult to see why he should not be allowed a right of reply like any other

appellant.

I should be disposed to hold therefore in favour of the lessors on the preliminary point; but as both my brethren are of a different opinion, I will

not formally dissent from them. I am very conscious of the difficulty which might be caused if the doubts which I have thought it right to express

were justified, for, private persons could by a private settlement of their dispute, or even by collusion, prevent a Provincial Government from

obtaining a decision of the Federal Court on issues of the highest importance. This is a matter which might well engage the attention of the Central

Legislature, who have power Under Section 215, Constitution Act, to make provision for conferring on the Federal Court such supplementary

powers not inconsistent with any of the provisions of the Act as may appear necessary or desirable to enable the Court more effectively to exercise

the jurisdiction conferred upon it by or under the Act. I now come to the impugned Act itself. The Preamble to the Act runs as follows:

Whereas it is necessary to regularize the remissions of rent made before the passing of this Act on account of the fall in prices,"" and Section 2 then

provides that ""notwithstanding anything in the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886, or in any other law for the time being in force

where rent has been remitted on account of any fall in the price of agricultural produce which took place before the commencement of this Act,

under the order of the Provincial Government or any authority empowered by it in that behalf, such order, whether passed before or after the

commencement of this Act, shall not be called in question in any civil or revenue Court.

All three Judges in the High Court have held that these provisions were beyond the competence of the United Provinces Legislature by reason

of Section 292, Constitution Act. That section provides that

Notwithstanding the repeal by this Act of the Government of India Act, (that is to say, the Government of India Act, 1919), ""but subject to the

other provisions of this Act, all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force

in British India until altered or repealed or amended by a competent Legislature or other competent authority.

It is said that since these words keep existing British Indian laws in force until they are altered or repealed or amended by competent authority,

it is beyond the powers of any authority, no matter how competent otherwise, to legislate with retrospective effect; because, if they do so, they are

contravening the provisions of the section which makes those laws continue in force up to the moment of alteration, repeal or amendment. The

purpose of Section 292 was clearly to negative the possibility of any existing Indian law being held to be no longer in force by reason of the repeal

of the law which authorized its enactment; and it is a safeguard usually inserted by draftsmen in similar circumstances. An analogous provision was

included in Section 130, Government of India Act, 1919, though in that ease it took the form of a proviso that the repeal of earlier Government of

India Acts should not affect the validity of any existing law. The Union of South Africa Act, 1909, Section 135, is almost identical with Section

292, but a slightly different formula was adopted in the British North America Act, 1867, and in the Commonwealth of Australia Constitution Act,

1900. Section 129 of the former is as follows:

Except as otherwise provided by this Act, all laws in force in Canada, Nova Scotia or New Brunswick at the Union . . . . shall continue in Ontario,

Quebec, Nova Scotia and New Brunswick respectively as if the Union had not been made ; subject nevertheless . . . . to be repealed, abolished

or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the authority of the Parliament or of that

Legislature under this Act.

Section 108, Australian Act is as follows:

Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the

Commonwealth shall, subject to this Constitution, continue in force in the State; and until provision is made in that behalf by the Parliament of the

Commonwealth, the Parliament of the State shall have such powers of alteration or repeal in respect of any such law as the Parliament of the

Colony had until the Colony became a State.

I pause here to inquire what reason there can have been for Parliament to place such a fetter as is suggested upon, the powers of the new

Indian Legislatures. No such fetter was imposed by Section 130, Government of India Act, 1919, for there is nothing in the words of that section

which could by any stretch of language be construed as a prohibition of retrospective legislation. But the suggestion now is that the new

Legislatures set up by the Act of 1935, which have certainly been given powers no less wide than those of their predecessors, have nevertheless

had a restriction imposed upon them which Parliament admittedly saw no reason to impose at an earlier date. I agree that it is not for this Court to

speculate upon the reasons which may have induced Parliament to legislate in one way rather than another; but when I am told that these novel and

unexpected provisions have been enacted and that no apparent reason can be assigned for them, I am entitled to ask whether it is not possible to

place a different and more reasonable construction upon the language which Parliament has used. It then appears that Parliament has used almost

identical language when it enacted the constitution of the Union of South Africa ; and the industry of counsel was unable to suggest, nor have I

myself been able to discover, that the interpretation which commended itself to the High Court of Allahabad has ever been even hinted at in any

South African Court. The same may be said of the Canadian and Australian sections; for though it is true that the wording of those sections is a

little different, I confess that I can detect no difference in the meaning of the language used.

I find myself unable to agree with the decision of the High Court on this point, and it is only out of respect for the three learned Judges who

have taken a contrary view that I have dealt with the question at any length; for, but for their unanimous opinion, I should have thought it scarcely

open to argument. It must always be remembered that within their own sphere the powers of the Indian Legislatures are as large and ample as

those of Parliament itself, Reg. v. Burah, (1878) 3 AC 889 and the burden of proving that they are subject to a strange and unusual prohibition

against restrospective legislation must certainly lie upon those who assert it. I can see nothing in the language of Section 292 which suggests any

intention on the part of Parliament to make them subject to that prohibition, nor, so far as that may be relevant, any explanation why Parliament

should have desired to do so. The sections in the Dominion Acts to which our attention was called do not seem to have been cited to the learned

Judges in the High Court; and I cannot but think that their decision might have been different if they had had those sections before them.

Apart however from the above considerations, I doubt whether the Regularization of Remissions Act does in fact alter, repeal or amend any

existing Indian law. There is nothing in it inconsistent with, or repugnant to, the Agra Tenancy Act, 1926. No doubt it adds another case in which a

tenant may claim the benefit of remissions of rent as against his landlord to those already specified in the latter Act; but it appears to me to have

succeeded in doing so without touching any of the provisions of that Act itself. The view that the Regularization of Remissions Act was invalid

because it was not enacted ''with respect to'' any of the matters enumerated in List II or List III of schedule 7 to the Constitution Act, though it was

strenuously argued in this Court, only found favour in the High Court with Iqbal Ahmad J., the two other Judges holding that the Act was within

items No. 2 or 21 of List II, or partly within one and partly within the other. These two items are as follows:

2, Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List; procedure in rent and revenue

Courts.

Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer,

alienation and devolution of agricultural land ; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached

estates; treasure trove.

I am of opinion that in enacting the Act the Legislature has legislated with respect to matters covered by item 21. The subjects dealt with in the

three legislative lists are not always set out with scientific definition. It would be practically impossible for example to define each item in the

Provincial List in such a way as to make it exclusive of every other item in that list, and Parliament seems to have been content to take a number of

comprehensive categories and to describe each of them by a word of broad and general import. In the case of some of these categories, such as

Local Government,"" ""Education,"" ""Water"" ""Agriculture"" and ""Land,"" the general word is amplified and explained by a number of examples or

illustrations, some of which would probably on any construction have been held to fall under the more general word, while the inclusion of others

might not be so obvious. Thus ""Courts of Wards"" and ""treasure-trove"" might not ordinarily have been regarded as included under ""Land,"" if they

had not been specifically mentioned in item 21. I think however that none of the items in the lists is to be read in a narrow or restricted sense, and

that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended

in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be

sufficient and much wiser to determine each case as and when it comes before this Court. I am moved to make this observation because of a

passage in the judgment of Iqbal Ahmad J., in which he says:

By the authority given to it to make laws about the ""collection of rents"" the Provincial Legislature is in my judgment authorized to provide about

payment of rent in cash or in kind; to fix the instalments in which rent is to be collected, to make provision about abatement or enhancement of

rent, to prescribe the conditions under which the rent may be remitted, to regulate the method by which rent is to be collected and to legislate

about kindred matters. The impugned Act, however, is not with respect to any such matter. It is therefore outside the scope of entry 21 of the

Provincial List.

I do not know why the learned Judge should assume that the list of illustrations which he gives is necessarily exhaustive. I agree that, if it were,

his conclusion might follow logically from his premises; but such a priori assumptions are a dangerous guide for the construing of a statute. The

general descriptive words in item 21 include ""the collection of rents""; and if a Provincial Legislature can legislate with respect to the collection of

rents, it must also have power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the

remission of rents as well as to their collection. Item 22 of the Provincial List is ""forests""; could it reasonably be argued that the power to legislate

with respect to forests did not include a power to legislate with respect not only to afforestation but also to disafforestation? Item 24 is ""fisheries"";

could it reasonably be argued that this only included the regulation of fishing itself and did not include the prohibition of fishing altogether in

particular places or at particular times? I have no doubt that legislation with respect to the remission of rents is legislation with respect to a matter

included in item 21.

It is then necessary to inquire whether the impugned Act is an Act with respect to ""remission of rents,"" for, if it is, it follows from what I have

just said that it was within the competence of the Provincial Legislature to enact it. In my opinion, it is such an Act, although it may also be an Act

with respect to something else, that is to say, the validation of doubtful executive orders. It does not seem to me necessary to consider what the

pith and substance of the Act is, to use a now familiar phrase; for that question does not arise, unless the Court is inquiring whether a particular Act

falls within one Legislative List or another. In the present ease, there is no suggestion of any competition between List I and List II, and if the Act

does not fall within List II, (since no one has suggested that it falls within List III), it can only be an Act with respect to a subject-matter which has

been overlooked or forgotten, and no Legislature in India could deal with it until the Governor-General had exercised his powers Under Section

104, Constitution Act. The validation of doubtful executive acts is not so unusual or extraordinary a thing that little surprise would be felt if

Parliament had overlooked it, and it would take a great deal to persuade me that legislative power for the purpose has been denied to every

Legislature, including the Central or Federal Legislature, in India. It is true that ""validation of executive orders"" or any entry even remotely

analogous to it is not to be found in any of the three Lists ; but I am clear that legislation for that purpose must necessarily be regarded as

subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued.

I arrive at the conclusion therefore that the remission of rent is a matter covered by item 21, that the impugned Act is an Act with respect to the

remission of rent, and that it was within the competence of the United Provinces Legislature to enact it. On this view of the matter, it is not

necessary to decide whether the Act is also with respect to matters covered by item 2, that is to say, ""Jurisdiction and Powers of the Provincial

Courts""; but, if it had been otherwise, I should have been disposed to say that the jurisdiction and powers of the Courts are not affected merely

because certain executive orders are not allowed to be questioned in any Court. If the Act had provided, as it well might, either that these

particular orders, if produced from the proper custody, should prove themselves, or (if the Act is to be given a rather wider interpretation) that they

should be conclusively presumed to have been lawfully made, then it does not seem to me that any doubt could have arisen, unless indeed any Act

relating to evidence must also be held to relate to the jurisdiction and powers of the Courts; but this can scarcely be so, in view of item No. 5 in the

Concurrent List. If, on the other hand, it were to be contended that the impugned Act was an Evidence Act and therefore in competition with List

III then I should have no hesitation in holding that its pith and substance is rent or remission of rent and not an amendment of the law of evidence,

and that therefore it still fell within List II.

Two other points were raised in the course of the argument, but they need only be mentioned to be dismissed. There is nothing in the

contention that the Act is void Under Section 299(3), Constitution Act, because the prior sanction of the Governor had not been obtained to the

introduction of the Bill, since it is completely disposed of by the provisions of Section 109(2). The contention that the Act bars a civil remedy and

therefore conflicts with Sections 4 and 9, Civil P.C., a matter falling under List III, so that by reason of Section 107(2), Constitution Act, the

assent of the Governor-General would be required to make an Act passed by a Provincial Legislature with respect to it valid, is equally barren of

substance. Section 4 of the Code only applies ""in the absence of any specific provision to the contrary"" and Section 9 excepts suits which

expressly or impliedly are not cognizable by the Courts.

But, if, as I hold, the Regularization of Remissions Act was not beyond the competence of the Legislature to enact, the question still remains

what is to be the effect of such a decision. The thekadars, the original defendants, entered no appearance in this Court, and the province was the

only appellant. The province was not interested in any way in the original dispute between the plaintiffs and the defendants, save to uphold the

validity of a particular law which had been challenged in the course of the proceedings. It is, in my opinion, impossible for this Court, at the instance

of a third party who had no direct interest in the original suit, to order the High Court to vary the decree which it has given as between plaintiffs and

defendants; and the difficulties which would arise if any other view were taken lend additional force to the doubts which I have already expressed

on the right of the province to appeal at all. I think therefore that the appeal should be dismissed, and my brothers concur, though for different

reasons. In these circumstances it is not necessary for me to express an opinion on two other points which were strongly argued before us by

counsel for the lessors, that is to say, whether the Act ought to be construed as having no application in the case of suits pending at the time when it

is passed, and whether the provision in it which forbids the remissions from being questioned in a Court of law has the effect of validating them for

all purposes, and of preventing any suit for recovery of the rent alleged to have been remitted. Many interesting questions of law arise in connection

with both these points, which might be profitably discussed on a more appropriate occasion, but I express no opinion on them now. The appeal

will be dismissed. There will be no order as to costs.

Sulaiman, J.

This is an appeal by the United Provinces which intervened and were impleaded in the second appeal before the High Court. The present suit

was instituted on 5th December 1934, by two landholders for their share of the arrears of rent for the period, 1339-1341 Fasli (1931-1934

A.D.), against the defendants who were thekadars (lessees of proprietary rights in agricultural lands) under a registered document, dated 20th

April 1928, fixing an annual rent of Rs. 948 and entitling the thekadars to make collection of rents from tenants. The defendants claimed a

deduction on account of remissions of rent which had been ordered. The Assistant Collector rejected the plaintiffs'' contention that remissions

could not be set off under the terms of the thekanama, made a deduction of Rs. 908-8-3 on that account in the rent for the years in suit, and

allowing for Rs. 105 as remission in revenue, decreed the suit in part. On appeal, the District Judge rejected the contention that the scale of

remission of rent was excessive and upheld the first Court''s decree.

On 26th September 1935, the landholders appealed to the High Court and in their grounds Nos. 2, 3 and 6 urged that it had not been shown

that remissions in revenue and rents were made Under Section 73, Agra Tenancy Act (Act 3 of 1926), and that the decision of the Assistant

Collector was not final Under Section 74 of that Act, which had been misconstrued. Another suit, which had been filed by Muhammad Abdul

Qaiyum, a landholder, in 1935, against the Secretary of State, for a declaration that orders for remission of rents previously made were not legally

authorized and for injunctions and damages, came up in appeal before the High Court and was disposed of on 13th May 1937: Muhammad Abdul

Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158. The High Court held that the remissions, not being in accordance with Section 73, Agra

Tenancy Act, were ultra vires and illegal, and Section 74 of that Act was not a bar to that suit; but the suit was dismissed on the ground that the

then plaintiff should have sued his tenants ignoring the remissions. While the appeal in the present case was pending in the High Court, the

impugned Act, viz., the U.P. Regularization of Remissions Act (Act 14 of 1938) came into force on 24th September 1938. The appeal came up

before a Bench of two Judges who allowed time to the U.P. Advocate-General to consult his Government whether they would like to be heard on

the question of the ultra vires nature of the impugned Act. Later, the question of law whether Act 14 of 1938, was or was not intra vires the

Legislature, was referred to a Full Bench of three Judges for an authoritative pronouncement. Before the Full Bench the Advocate-General was

allowed to be heard on behalf of the Government. Although there were differences of opinion on some of the points raised in the case, all the three

learned Judges ultimately came to the conclusion that the Act was ultra vires the Legislature. The case then went back to the Division Bench, On

8th April 1940, an application was presented on behalf of the United Provinces Government praying that the Government be formally impleaded

as a party to the case. The application came up for disposal on 9th April 1940. The Court ordered, ""This application is not opposed. Let the

United Provinces Government be made a party to the appeal."" On 12th April 1940, the Division Bench, accepting the opinion of the Full Bench,

allowed the appeal and decreed the claim to the extent of the remissions. On the same date the High Court granted the required certificate Under

Section 205(1), Government of India Act. The appeal was finally admitted on 18th June 1940.

Preliminary objection -- Mr. Pearey Lal Banerji has raised a preliminary objection to the hearing of the appeal filed by the United Provinces.

The statement in the order of the High Court that the application was not opposed and the fixing of a date with consent, implied that some

advocate for the plaintiffs-appellants was present and did not think it fit to oppose the application. There is no affidavit before us to show that both

of the appellants'' advocates were absent, or to show that the advocate who was present had no authority to accept notice. They admittedly

appeared at the next hearing. It is however urged that their acquiescence would at best amount to an admission on a point of law that an

application for impleading the United Provinces Government was not improper, and so there should be no estoppel against the objection being

considered on its merits here.

Section 107(2), Civil P.C., confers on an appellate Court the same power and directs it to perform, as nearly as may be, the same duties as

are conferred on Courts of original jurisdiction. Courts of original jurisdiction have Under Order 1, Rule 10(2), Civil P.C., power to order that the

name of any person who ought to have been joined or whose presence before the Court may be necessary in order to enable the Court effectually

and completely to adjudicate upon and settle all the questions involved, be added. A person would be a necessary party if he ought to have been

joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is

necessary for an effectual or complete adjudication. In a suit between a landholder and his tenant, the Provincial Government cannot be considered

a necessary party at all, as a proper decree can certainly be passed in their absence. But when in such a suit the validity of an Act of the Provincial

Legislature is in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested

in such an adjudication. In the present case, the Government were interested to this further extent that the effect of the High Court''s ruling would

be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act.

Apparently, the defendants were too poor to think of preferring an appeal to the Federal Court; and the High Court thought that it would not only

be convenient but quite fair to make the U. P. Government a respondent to enable it to secure a more authoritative pronouncement. As the Act

was passed during the pendency of the High Court appeal, there was no earlier occasion on which the Government could have been impleaded. It

is contended before us that the powers of an appellate Court are restricted within the limits imposed by Order 41, Rule 20, and that the same

restriction is imposed on a Court hearing a second appeal under Order 42, Civil P.C. That rule no doubt permits of making a person respondent,

who was a party to the suit in the original Court, and who has not been made a party to the appeal, but is interested in the result of the appeal.

Obviously, this rule would not apply to the present case. But the language of the rule does not show that it is exclusive or exhaustive so as to

deprive a Court of any inherent power which it may possess and can exercise in special circumstances, and which has been saved by Section 151,

Civil P.C.

The Allahabad High Court in Mt. Jaimala Kunwar v. Collector of Saharanpur (''34) 21 AIR 1934 All 4 at p. 832 referred to some cases

where it had been held that there is also an inherent jurisdiction to add a new party even outside Order 41, Rule 20. There is nothing in Shiam Lal

v. Dhanpat Rai (''25) 12 AIR 1925 All 768 which in any way conflicts with this. Unfortunately, the headnote of that case is incomplete. It was

obviously not intended to lay down that the appellate Court has no power to implead a person who was no party to the original suit at all. All that

was said was that there was no such power Under Order 41, Rule 20, Civil P.C. It was pointed out that Section 107, Civil P.C., gives an

appellate Court powers, generally speaking, of the trial Court. In that case the District Judge had impleaded a new person in the appeal and then

set aside the decree of the first Court and ""remanded the case for retrial."" It was pointed out by the High Court that the proper procedure was to

remand the case to the first Court with the direction to implead that person and then to proceed to dispose of the case. It would then have been

possible for this new party to file his written statement upon which the Court would be in a position to consider whether there should be a trial de

novo on all the issues or whether only some of the issues should be retried. The order of the District Judge for the trial de novo, before knowing

what pleas the new party would take, was considered wrong. It was therefore suggested that the more appropriate course should be to direct the

Court below to implead him and give him an opportunity to file a written statement. In the present case the impleading of the U. P. Government

necessitated no retrial. Pachkauri v. Ram Khilawan (''14) 1 AIR 1914 All 293 was a peculiar case where a pro forma defendant, who had

benefited under the first Court''s decree; was not impleaded in the first appeal by the principal defendants and was sought to be impleaded in the

second appeal by the same defendants long after limitation had expired. The High Court naturally declined to implead him. The earlier cases

referred to therein were under the previous Code. I, therefore, find it difficult to hold that the High Court had no jurisdiction at all to implead the U.

P. Government as a party to the appeal, particularly when no objection was taken on behalf of the plaintiffs on that occasion. If there were no such

jurisdiction at all, then the Provincial Government cannot appeal.

Really, the question before us is not whether the U. P. Government were rightly impleaded. As regards that point, I myself may prefer a

different course. The only question that now remains is whether the appeal itself is incompetent on the ground that the High Court erred (assuming

that it did) in impleading the D. P. Government. If the discretion was wrongly exercised, that would be no ground for holding that the appeal itself

does not lie. Section 205(2), Government of India Act, lays down that where the certificate Under Sub-section (1) has been given (as it has been

done in the present case) ""any party in the case"" may appeal to the Federal Court, on the ground that any such (constitutional) question, as

aforesaid, has been wrongly decided. This was not like a case where an Advocate-General may be allowed to intervene merely to present before

the Court the point of view of his Government, if such a duty is assigned to him by the Governor Under Section 55(2) of the Act. In such a case,

he would have no independent right of appeal. In India we have a specific provision in Section 176(1) under which a Provincial Government can

be sued and therefore made a party by the name of the province. Here the High Court by an express order brought the U. P. Government on the

record and then made them a party to the appeal, and indeed it did so with the idea that that would give to the U. P. Government a right to appeal

to the Federal Court. It cannot now be said that the U. P. Government were not ""any party"" in the appeal. Section 205 does not say any party

directly aggrieved by the judgment, decree or the final order,"" much less ""directly aggrieved by the decree actually passed."" In the absence of any

such restriction in Section 205 and in view of the fact that an appeal lies even on a constitutional question alone without raising any other ground, I

am unable to hold that the U. P. Government who were a party to the appeal in the High Court have no right of appeal at all. Whether, if we allow

the appeal, we should direct the High Court to exercise powers similar to that given by Order 41, Rule 33, Civil P.C., so as to vary the decree,

would be another matter. Several objections were taken to the validity of the impugned Act, 14 of 1938. These may be classified under three

heads;

(1) The objection, which has been accepted by all the three learned Judges, is that the Act is void as it offends against Section 292,

Government of India Act. (2) The objection, which has been accepted by one of the learned Judges and not the other two, is that the Act is invalid

because it is not with respect to any of the matters enumerated in List II, entries 2 and 21, or List III, entry 4, relied upon by the United Provinces.

(3) The objections, which have been rejected by all the three learned Judges, are that: (a) the Act is void as it offends against Section 299,

Government of India Act; and (b) it is void because it is repugnant to the existing Section 9, Civil P.C.

The respondents have pressed all these before us. The last two can be disposed of summarily.

Section 299 of the Act - The objection taken Under Section 299(3) of the Act that previous sanction of the Governor had not been obtained

is completely met by Section 109(2), as assent was later given to it.

Section 9, Civil P.C. Similarly, the objection that the Act bars a civil remedy and therefore conflicts with Section 9, Civil P.C., has no force. In

the first place, even if there were repugnancy, the Act would Under Section 107(1) be void only to the extent of the repugnancy. Section 9,

therefore, cannot stand in the way of its applicability to a revenue case. In the second place, Section 9 itself contains an exception in favour of suits

of which cognizance is either expressly or impliedly barred. Section 4, Civil P.C., also contains a saving clause. Not being repugnant to any of the

provisions of the Code, the impugned Act does not fall under entries 4 and 15 of List III.

Section 292 of the Act.Section 292, Government of India Act, contains a saving clause for the continuance of the existing laws.

Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British

India immediately before the commencement of Part 3 of this Act shall continue in force in British India until altered or repealed or amended by a

competent Legislature or other competent authority.

The High Court has laid a great emphasis on the use of the expression "". . . . shall continue in force . . . . until altered or repealed or amended.

Iqbal Ahmad J. has thought that this section is more than a mere saving or preserving section. Its effect is not merely to declare that the repeal will

not affect the validity of the existing laws, but it proceeds further and enjoins that all the laws shall continue in force until altered, repealed or

amended. This is thought to imply that the alteration, repeal or amendment of any previously existing law cannot be made with a retrospective

effect at all. It is suggested that the word ""until"" puts a time limit on the power of the Legislatures. As regards the plea that the provisions of Section

2 of the impugned Act should be upheld so far as they relate to the orders passed after the passing of the Act, it has been held that the two

portions cannot be separated. Bajpai J. also concurred in holding that Section 292 is mandatory and that the law would continue in force until

altered, etc., and that as the impugned Act had attempted to do something indirectly which it could not do directly, this cannot be countenanced.

The learned Judge further held that what Section 292 says has to be preserved in terms of the section only, and not in the manner adopted by the

U. P. Legislature. Ismail J. held that as the Agra Tenancy Act (3 of 1926), had been neither repealed nor altered at the time the Act was passed,

the Legislature was not competent to nullify the provisions of the subsisting Act. The Legislature could not take away the rights conferred by the

old Act without repealing or altering the Act.

Although there can be no doubt that the main object of enacting Section 292 was to preserve the enforceability of the then existing laws, the

language of Section 292 is certainly more emphatic than would have been ordinarily necessary. Section 130, Government of India Act, 1919, was

a similar section couched in a simple language: ""This repeal shall not affect the validity of any law, etc., etc."" There is a saving provision in Section

129, British North America Act, 1867, but the words there are:

All laws in force in Canada, Nova Scotia or New Brunswick at the Union . . . shall continue in Ontario, Quebec, Nova Scotia or New Brunswick,

as if the Union had not been made; subject nevertheless to be repealed, abolished or altered . . . .

Similarly, Section 108, Commonwealth of Australia Constitution Act, 1900, though embodying a somewhat similar provision, has a different

phraseology:

Every law. . . . shall, subject to this Constitution, continue in the State; and, until provision is made in that behalf by the Parliament of the

Commonwealth, the Parliament of the State shall have . . . . powers of alteration and of repeal, etc., etc.

No doubt in Canada and Australia retrospective legislation has been upheld. But in the constitutions of these Dominions the language, as

already quoted, is not identical with that used in Section 292 of the Indian Act. The corresponding Section 135, Union of South Africa Act, 1909,

is, however, similar in phraseology to Section 292, Government of India Act. It says:

Subject to the provisions of this Act, all laws in force . . . . shall continue in force . . . . until repealed or amended, etc., etc.

In spite of the departure from the phraseology adopted in the constitutions of Canada and Australia, there appear to be no adequate historical

grounds for singling out the Union of South Africa for a different treatment. There have certainly been several Acts passed by the Union Parliament

which have a retrospective operation, particularly in the case of Marriage Laws, Act 20 of 1913, amending the law in force in the several

provinces relating to marriage by banns, contained Section 2 which applied to marriages solemnized ""before or after the commencement of this

Act."" Similarly Section 2 of Act 17 of 1921 provided that any marriage contracted before the commencement of that Act, which would have been

void or voidable by reason of any law repealed by that Act, shall (subject to two conditions) be deemed to be as valid as if duly solemnized after

the commencement of that Act. Again, there have been Acts passed in the Union which came into effect by the assent of the Governor-General

later than the date from which their operation began. Act 29 of 1922, relating to the payment of duty upon the estates of deceased persons and in

respect of successions to inheritances, is an instance in point. Our attention has not been drawn to any case where the validity of any South African

Act, with a retrospective effect, has been challenged. The passing of such Acts merely shows the interpretation put on Section 129 of the Union

Act by the South African Legislature and does not take us very far, so long as there is no judicial pronouncement on their validity.

The difference in the language employed in Section 130 of the old Act and Section 292 of the new Act is certainly marked. The former is in a

negative form: ""Provided that this repeal shall not affect the validity of any law, etc., etc."" The latter is in a positive form: ""Notwithstanding the

repeal. . . . all the law . . . shall continue in force . . . . until repealed, altered or amended, etc., etc."" The former is a mere saving clause, pure and

simple, its effect being to make it clear that the mere repeal of the previous Government of India Act shall not ipso facto put an end to the other

laws previously in force. The latter is a little more than that, inasmuch as it affirmatively continues the other laws until such laws are hereafter

altered, repealed or amended. In the former section, the word ""repeal"" related to the Constitutional Acts specified in the Schedule attached. In the

latter section ""repealed, etc.,"" refer to the other laws which are not repealed etc., by the Government of India Act, 1935, but may thereafter be

repealed, etc. The effect certainly is that until altered, repealed or amended, such other laws do continue in force. The High Court was apparently

impressed by the obvious departure from the phraseology of the old Section 130, as such a deliberate change is not ordinarily made without a

special significance.

There is no doubt that the word ""until"" does ordinarily connote a point of time. Until altered, repealed or amended'' is equivalent to saying ''until

the alteration, repealment or amendment''. This can have two possible meaningsfirst, until the date from which the alteration, repealment or

amendment takes place, and second, the date on which the Act altering or repealing or amending the previous law is actually passed, or rather

when it comes into force. If the Act is retrospective, it would obviously operate from a date earlier than that on which it comes into force. If the

view taken in the High Court were to prevail, then no legislation altering, repealing or amending the law which was in force when the Government

of India Act was passed, no matter how long afterwards it comes to be passed, can have any retrospective provision so as to affect any

transactions prior in time to the date when such Act is actually passed. It would follow that not only the Provincial Legislature but also the Central

Legislature would be debarred from giving any retrospective effect whatsoever to any Act by which not only a previous Act but any other law is

altered, repealed or amended. This is a drastic consequence which, it is difficult to believe, could have been contemplated. As long ago as 1878,

their Lordships of the Privy Council in Reg. v. Burah (1878) 3 AC 889 when speaking of the powers of the Indian Legislature remarked:

When acting within these limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary

powers of legislation as large and of the same nature as those of Parliament itself.

Even though we are not concerned with the wisdom of the Legislature, one cannot help saying that there appears to be no adequate reason

why the power to give retrospective effect to a new legislation should be curtailed, limited or minimized, particularly when Section 292 applies not

only to statutory enactments then in force but to all laws, including even personal laws, customary laws and common laws. The suggestion made on

behalf of the respondents that the idea was not to permit retrospective legislation haying effect from a date earlier than the coming into force of the

Government of India Act when legislative powers of the Centre and the Provinces were separately allocated cannot be accepted, because the

effect would be not only to stop at the year 1937, but to prohibit retrospective legislation right up to the date of the passing of any new Act, no

matter how long after 1937 that may happen. If there are two possible interpretations, it is the duty of a Court to accept that one which is more

reasonable, more consistent with ordinary practice and less likely to produce impracticable results. It must, therefore, be held that there is nothing

in Section 292, Government of India Act, which debars the Central or a Provincial Legislature, which has altered, repealed or amended a

previously existing law, from giving the new provision a retrospective effect from dates earlier than when the Act is passed.

One must not, however, overlook the important provision that the previously existing law must in any case continue in force, until altered,

repealed or amended. Unless, therefore, there is an Act which actually alters, repeals, or amends it, that law must, in view of the provisions of

Section 292, continue in force and cannot be considered as nonexistent. Those provisions not merely preserve such laws but keep them in force

until actually altered, repealed or amended.

But it is not absolutely necessary that a statute must be repealed by express language, e. g ., shown as repealed in an attached schedule.

Repeal, and certainly alteration or amendment, can be effected by necessary implication also. When two Acts are clearly inconsistent with or

repugnant to each other, the former will be deemed to have been impliedly repealed or amended, as the last expression of the will of the

Legislature must always prevail. But they must really be irreconcilable with each other. Two negative enactments need not, however, be

contradictory. An earlier statute expressed in negative language may be included in or absorbed by a later statute expressed in a similar negative

language, but with a wider scope. The former in such a case would not be repealed, nor even necessarily altered by the latter, as they both can

stand together, but it can be said to have been amended.

The impugned Act did not in reality repeal, alter or amend the provisions of the law contained in Section 73, Agra Tenancy Act. Indeed, that

was repealed subsequently by Act, XVII of 1939. It therefore stood intact in December 1939, by virtue of the provisions of Section 292,

Government of India Act. What the impugned Act attempted to do was to widen the scope of Section74(1) without embodying anything like the

provisions of Section 74(2), which would have destroyed the right to sue. Section 74(1) of the old U. P. Act prevented any order, passed Under

Section 73 from being questioned. The impugned Act attempts to prohibit any order for remission from being questioned, without saying any

order, ""under"" or ""in accordance with"" Section 73. It follows that without altering the substantive law so as to give a Collector power to order

remission of rent exceeding the remission of revenue in proportion, it has merely created a further bar which completely restricts a civil right to

challenge it Under Section 9, Civil P.C. Whether valid or invalid on any other ground, it cannot be said to offend against the provisions of Section

292, Government of India Act.

List II, Nos. 2 and 21. - While Iqbal Ahmad J., has held that the subject-matter of the impugned Act does not fall within any of the entries in

List II or List III of Schedule 7 of the Act, both Bajpai and Ismail JJ. have held that it falls under these two entries.

It is true that the three lists even if taken together may not prove to be absolutely exhaustive. As legislation can cover a very wide range, it is

quite possible to conceive of cases which are not comprised in any of the lists. It was with the consciousness of this possibility that provision as to

residual power of legislation was made in Section 104 which assumes that there may be a matter with respect to which a law may be enacted,

which is not enumerated in the lists of Schedule 7. But the lists are so comprehensive that apart from personal laws it would be only extremely rare

cases which would not be covered by them at all.

Entry No. 21 of List II includes ''land, with rights therein, land tenures, including the relation of landlord and tenant, and the collection of rents,''

besides other categories. This itself has a wide scope. If the impugned Act were in pith and substance one for remission of rent, it would be

impossible to exclude it from this entry. Entry No. 2 of List II includes jurisdiction and powers of all Courts, with respect to any of the matters in

that list. Accordingly, entries Nos. 2 and 21 read together would cover any restriction that may be imposed on the jurisdiction and powers of

Courts, with respect to land, land tenures, relation of landlord and tenant, and collection of rents. As there is no category in List I or List III which

is similar to entry No. 21 of List II, the latter must be given a liberal interpretation so as to invest Provincial Legislature with full power to legislate

with respect to them, so long as such legislation does not conflict with any other provision. I am not prepared to hold that entry No. 21 must

necessarily be confined to substantive provisions and not to procedural law. Methods of collection of rent may be a matter of procedure and yet

fall under this head. Provisions as to registration of leases, functions of special officers in fixing rents and giving of certain notices, may well be

procedural and yet fall within this entry. These are but a few instances. On the other hand, legislation, which affects the jurisdiction and powers of

civil or revenue Courts, would come under entry No. 2. Legislation affecting procedure in rent and revenue Courts would also fall under the same

entry. But mere procedure in civil Courts will be outside those entries, and can only come under entry No. 4 of List III. The result is that if the

subject-matter is within entry No. 21, then restriction on jurisdiction and powers of civil and revenue Courts with respect to it would also be within

the authority of Provincial Legislatures. If, however, the matter itself is not within List II, then it cannot be brought under entry No. 2 of that List,

which in express terms refers only to matters in that List.

Tenancy Law. - The defendants were thekadars, holding under a registered lease of proprietary rights, (including a right to receive rents and

profits), from the landholders for a term of years on a fixed annual rent. The word tenant in the Agra Tenancy Act excludes a thekadar, though

certain specified provisions relating to tenants, including Sections73 and 74, also apply to them. (See chapter. 13, Agra Tenancy Act, 1926).

Outside that Act the United Provinces Government had no special power to interfere with the agreement between a landholder and his thekadar.

The landholder would be entitled to enforce the liability of the thekadar to pay the rent. There are provisions for enhancement and abatement of

rent, subject to certain limitations but with them the Government were not concerned. There was no power given to the Government themselves to

order remission of rent in individual cases. Under Section 72, if remission of rent were granted by a Court on account of draught, hail, deposit of

sand or other like calamity, then proportionate remission of revenue was to be ordered by the revenue authorities subsequently. Section 78(1) was

intended to cover the converse ease. When for any cause the Local Government, or any authority empowered by it, had in the first instance

remitted or suspended"" whole or part of revenue, a Collector, or if so empowered by Government, a first class Assistant Collector, might order

the remission or suspension of rents to an amount ""which shall bear the same proportion to the whole of the rent payable in respect of the land as

the revenue of which the payment has been so remitted or suspended."" Under Sub-section (2), where revenue has been wholly or partly ""released,

compounded for or redeemed,"" remission or suspension of rent could be ordered by such authority and in accordance with such scale as the Local

Government may by rule direct. This sub-section did not apply to the case where revenue had been ""remitted or suspended."" Sub-section (3)

made this provision applicable to a thekadar. Section 74(1) provided that an order ""under Sub-section (1) or Sub-section (2) of Section 73"" shall

not be questioned in any civil or revenue Court. Sub-section (2) provided that a suit shall not lie for the recovery of any rent of which the payment

has been remitted or suspended ""in accordance with the provisions of Section 73."" As already mentioned, the High Court in Muhammad Abdul

Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158 interpreted these two sections as meaning that a civil suit would be barred only if the

order were in accordance with Section 73, that is to say, if the remission ordered by the Collector were in proportion to the remission of the

revenue. It further held that the aggrieved landholder could sue for arrears of rent ignoring the order of remission, or pay revenue under protest and

sue the Government for refund Under Section 183, U. P. Land Revenue Act (3 of 1901).

The impugned Act - If the Provincial Legislature felt that the sections had been wrongly interpreted by the High Court, it was open to it to pass

a declaratory or explanatory Act, to make its intention clear. Such a legislation would, of course, have been retrospective in nature, and would

have nullified the effect of the High Court''s ruling. No such course was followed and instead the impugned Act (U. P. Act 14 of 1938) was

passed. The Preamble stated its object to be to ""regularize"" the remissions of rent made ""before"" the passing of that Act, which meant that certain

orders already passed, which might have been irregular, were to be made regular by this Act. But in fact the provisions of Section 2 on the one

hand fall short of the object by not attempting to validate any invalid orders that might have been passed before, and on the other hand they go

beyond the Preamble by making orders passed even after the Act equally unquestionable. They are in the following terms:

Notwithstanding anything in the Agra Tenancy Act, 1926, . . . . where rent has been remitted on account of any fall in the price of agricultural

produce which took place before the commencement of this Act, under the order of the Provincial Government or any authority empowered by it

in that behalf, such order, whether passed before or after the commencement of this Act, shall not be called in question in any civil or revenue

Court.

There are two provisos, the first limiting the amount to what may be ordered in the agricultural year in which the Act comes into force, and the

other to the period of the settlement. The Act was to come into force when notified.

Interpretation - The intention of the Legislature has to be gathered from the language actually employed in the Act. For statutes which confer or

take away legal rights, whether public or private, or alter the jurisdiction of Courts of law, express and unambiguous words are necessary. No

loopholes should be left for escape. The order of remission dealt with by the U. P. Act is not one necessarily within the four corners of Section 73,

nor is there any specific reference to that section. The language actually used can suggest that the section was intended to prevent the order of the

Provincial Government, or any authority empowered by it in that behalf, from being questioned. In the main section, the word order is used only

when referring to ""the order of the Provincial Government or any authority empowered by it in that behalf"". This is followed immediately by the

words ""such order etc."". The word ""such"" ordinarily means ''aforementioned''. The normal construction of the section would then imply that such

order of the Provincial Government, or any authority empowered by it in that behalf, shall not be called in question.

A reference to Section 73, Sub-section (2) shows that where revenue has been ""released, compounded for or redeemed"" (and not ''remitted''

or ''suspended'' as Under Sub-section (1)) the local Government can nominate an authority and make a rule fixing a scale according to which

remission or suspension of rent may be ordered. The Government had no power whatsoever to fix any scale for remission or suspension of rent

where revenue had been ""remitted or suspended"" Under Sub-section (1). Nor can it itself make any order of remissions; it is the Collector who

does so in each case under the statutory authority conferred on him by Sub-section (1). The Government can empower an Assistant Collector of

the first-class to act instead of the Collector, but the order of remission made by him also will not be ""under the order of the Provincial

Government"" but Under Section 73(1). It is probable that in issuing the notification containing a scale of remissions the distinction between the two

sub-sections was overlooked. At any rate for over seven years no attempt was made to approach the Legislature to validate such action. Similarly,

when the bill was introduced, it was assumed that the Provincial Government itself could order remissions, and it was on that assumption that the

Legislature proceeded to enact that such an order should not be questioned. The words ""under the order of the Provincial Government"" have no

meaning so far as Section 73(1) is concerned. On this interpretation, the section would be wholly ineffectual, because in a suit for arrears of rent

the landholder is not challenging the scale which the local Government was pleased to lay down, amounting at best to instructions to Collectors, but

is challenging the order of the Collector or the Assistant Collector, passed under statutory authority, on the ground that it was not in accordance

with Section 73, his suit not being barred Under Section 74.

A majority of the learned Judges of the High Court have expressed the opinion that the real object of the U. P. Act was not what it purports to

suggest. Iqbal Ahmad J., has remarked:

Here again the substance of the section, apart from its form, is to regularize and validate irregular and invalid orders as to remissions of rent passed

by the provincial executive. There is, therefore, no escape from the conclusion that by the impugned Act, validity is given to wholly arbitrary and

invalid orders already passed or to be passed in future by the executive authorities.

He has again remarked:

Now a scrutiny of the impugned Act as a whole leads to the irresistable conclusion that it was designed to, and does in substance, though not in

form, validate the invalid orders as to remissions passed by the provincial executive . . . . In short the impugned Act, though disguised as an

enactment regulating procedure, is, in fact and substance, an enactment regularizing illegal executive orders. It is a disguised and colourable

legislation intended to serve the purpose indicated above, and this is not permissible.

Bajpai J. has said:

The Act pretends to deal with procedure only for it attempts to regularize the remissions of rent and says that certain orders of the Provincial

Government shall not be called in question in any civil or revenue Court, but this is only a masquerade and the real purport of the Act is to take

away the rights of the landlords which were contained in Sections 73 and 74, Agra Tenancy Act, as-interpreted by this Court in Muhammad

Abdul Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158 I therefore feel inclined to hold that the Act does not deal merely with matters of

procedure but deals with substantive rights as well.

Ismail J., has not expressed any such opinion.

Past orders - As regards past orders, Section 2 does not contain any substantive provision which would even imply that the orders were in fact

valid or were being made valid. Nor is there any mention that the liability of the tenant to pay the rent remitted has ceased, and the right of the

landholder to realize it has been extinguished. It merely attempts to create a bar against the question being agitated in a civil or revenue Court. This

is quite a different thing from a substantive provision validating any order that might have been passed in contravention of the provisions of Section

73, Agra Tenancy Act. The opening words ""Notwithstanding anything in the Agra Tenancy Act, 1926"" do not amount to an alteration, repeal or

modification of Section73 of that Act. Indeed, not only was Section 73 not mentioned in this Act as having been repealed by it, but was actually

repealed later by Act 17 of 1938, which came into force in December of that year. It is possible to conceive of cases, for example, where the

whole rent has been paid with mutual consent, where the landholder would not stand in need of suing for it, so as to be compelled to call in

question the order of remission. His right has not been extinguished, only his remedy in a Court of law is barred. The essence of the landholders''

grievance is that the Government made them give up their rents in part without in their own turn making compensation to them by giving up a

proportionate amount of the revenue. The alleged illegality of the order of remission arises from the circumstances that the Provincial Legislature

prevents them from challenging the illegal action of the Government.

Future orders.The limit to which the past orders of remission had gone was perfectly known. But as regards future orders, the scope of

Section 2 is very wide. The Government could up to June 1939 (and later if the notification were delayed) issue any order of remissions that it

chose. Such an order would be operative irrespective of the extent of the remission, even up to the remission of the entire rent, irrespective of the

period of remission, as it can be continued even up to the expiry of the settlement, and also irrespective of the amount of remission of revenue,

even to the extent of there being no remission of revenue at all. If it is a valid Act, it enabled the Provincial Government to issue an order directing

Collectors to remit to all the tenants the whole of the rents for the entire province for the reminder of the period of the settlement, while not

remitting any revenue at all. This would mean that landholders would be compelled to pay revenue to Government, although they would be

prevented from realizing any rents at all from their tenants. For all practical purposes, this would amount to an extinction of the relation of landlord

and tenant for the time being. Such a measure is highly inconceivable, and yet it is not beyond all possibility that a Government, bent on abolishing

zamindari rights, may resort to it under the authority of this section. In spite of the confiscatory powers exercised by the Government, no remedy,

whatsoever would be open to the aggrieved landholders in any civil or revenue Court to which alone they can have recourse. This section would

therefore invest the Provincial Government with full powers to do what they like, no matter to what extent the contract between a landholder and

his lessee is disturbed. Such a drastic interference may well infringe the proprietary rights possessed by landholders, and may also in an extreme

case amount to a flagrant breach of the agreement entered into by the Government at the time of the settlement for its duration. Of course, no Act

can be invalidated on the mere ground that it may possibly be abused; but in order to see in which list it falls, its provisions have to be examined in

their full scope.

""With respect to""The crucial point in this appeal is whether this section can be held to be ""with respect to"" any of the matters mentioned in entry

No. 21 of List II, in particular, land, relation of landlord and tenant, and collection of rents. The words ""with respect to"" are not necessarily the

exact equivalent of ''relating to'' or ''connected with''. These words may not include a case where the subject of legislation is only remotely related

or very indirectly connected with the matters mentioned in the categories. An Act may principally be with respect to some other subject and yet it

may incidently relate to one under consideration. The mere fact that there is a slight, remote or indirect relation or connexion, would not be

sufficient to answer in the affirmative the question whether it is with respect to such subject. It is not enough that it should in its working somehow

overreach that subject. It has to be seen whether it appertains to such matters substantially and directly, and not only whether it would in actual

operation affect any such matters in an indirect way. Again, a provision of law may be partly in one category and partly outside it. The mere fact

that it is partly in that category would not suffice for making it valid if it is ultra vires with regard to the other portion. When the question is whether

any impugned Act is within any of the three lists, or in none at all, it is the duty of Courts to consider the Act as a whole, and decide whether in pith

and substance the Act is with respect to particular categories or not. This can be inferred only from the design and purport of the Act as disclosed

by its language and the effect which it would have in its actual operation.

Their Lordships of the Privy Council have repeatedly stressed the fact that we must look to the pith and substance of the Act in order to

ascertain its true nature and character. As laid down in Russel v. Reg (1882) 7 AC 829,

the true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class

of subject to which it really belongs.

In Attorney-General for Canada v. Attorney-General for Ontario (''37) 24 AIR 1937 PC 89 at p. 367, Lord Atkin laid down:

In other words, Dominion legislation, even though it deals with Dominion property, may yet be so framed as to invade rights within the province, or

encroach upon the classes of subjects which are reserved to provincial competence. It is not necessary that it should be a colourable device, or a

pretence. If on the true view of the legislation it is found that in reality in pith and substance the legislation invades civil rights within the province, or

in respect of other classes of subjects otherwise encroaches upon the provincial field, the legislation will be invalid.

As it was found that the impugned Act was in pith and substance an Insurance Act, affecting the civil rights of employers and employed, it was

held to be ultra vires. In Attorney-General for British Columbia v. Attorney-General for Canada (''37) 24 AIR 1937 PC 91, Lord Atkin, after

pointing out the limitation on the plenary power of the Dominion that Parliament ""shall not in the guise of enacting criminal legislation in truth and in

substance encroach on any of the classes of subjects enumerated in Section 92"", though there would be no objection if there were a genuine

attempt to amend the criminal law, remarked:

In the present case there seems to be no reason for supposing that the Dominion are using the criminal law as a pretence or pretext, or that the

Legislature is in pith and substance only interfering with civil rights in the province.

In Attorney-General for British Columbia v. Attorney-General for Canada (''37) 24 AIR 1937 PC 93 at p. 389, Lord Atkin after agreeing

with the view that the sections said to be severable were in fact incidental and ancillary to the main legislation, remarked:

As the main legislation is invalid as being in pith and substance an encroachment upon the provincial rights the section referred to must fall with it as

being in part merely ancillary to it.

In Shannon v. Lower Mainland Dairy Products Board (''39) 26 AIR 1939 PC 36, Lord Atkin''s remark was quoted: ""It is well established that

you are to look at the ''true nature and character of the legislation,'' Russel v. Reg (1882) 7 AC 829, ''the pith and substance of the legislation''.

See also In the matter of C.P. and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (''39) 26 AIR 1939 FC 1 at p. 65.

Section 2 - The question raised in Muhammad Abdul Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158 was not a constitutional one,

but merely turned on an interpretation of Sections 73 and 74 of the old Agra Tenancy Act. Its soundness has not been questioned before us, and I

can only assume that the previous order of remission of rent as held therein was ultra vires and illegal. Had the previous order of remission of rent

been merely irregular, as not being in strict conformity with the existing law, but without any absence of jurisdiction in the authority issuing it, for

instance when some mistake in the calculation of the ratio is made or there has been any other defect of procedure, then Section 2 of the impugned

Act would certainly be with respect to ""the collection of rents,"" so far as such orders are concerned, and it would be intra vires.

If the order of remission, which the impugned Act attempts to make unquestionable, was in fact wholly ultra vires and totally void, issued by an

authority not at all competent to do so, with a view not only to benefit the tenants but also to protect Government officers against any suit for

damages that may be brought on account of their illegal orders, or protect the Government in a suit brought against it Under Section 183, U. P.

Land Revenue Act, (3 of 1926), (assuming that the suggestion made in Muhammad Abdul Qaiyum v. Secretary of State (''38) 25 AIR 1938 All

158 was correct), then the U. P. Act which merely prevents such an order from being questioned in a civil or revenue Court, would not be so

much with respect to ""collection of rents,"" as with respect to ""validating void orders."" There is a clear distinction between challenging the legality of

an order in the sense that for non-compliance with certain provisions of law it is invalid or ineffective, and challenging the authority, power or

jurisdiction of the person or body, who issued that order. In the latter case the challenge is much more than merely calling in question the order

itself. It is an assertion that the act of that authority or body was itself a nullity and no more binding than the act of a man in the street. If the U. P.

Act, which obviously falls short of validating previous illegal and void orders, is principally for preventing illegal orders, from being called in

question, then it is more substantially with respect to validating such illegal orders than with respect to the matter to which those orders had

originally related. In such a case it would not fall solely within the catagories ""relation of landlord and tenant"" or ""collection of rent.

Furthermore, the impugned Act is not confined to the orders of remission previously passed, but goes further and provides that even all future

orders of remission, regardless of the fact whether they are or not authorized by any law or are contrary to any existing laws, shall be

unquestionable. This is inextricably interwoven into the whole scheme so as not to be separable. The whole purport of the Act is indirectly to invest

the Provincial Government with very extensive powers to pass any order of remission which it chooses to do even to the extent of stopping all

payments of rents. It thus confers in an indirect way a wide power on the Government or authority empowered by it to pass in the future even

arbitrary orders for remission, with or without authority, in utter disregard of the existing legislation. If a Legislature cannot itself enact a wholesale

deprivation of legal rights, then, it cannot by enactment adopt the device of appointing an authority invested with such powers. What the Legislature

cannot do directly, it cannot do indirectly: Great West. Saddlery Co. v. Reg (''21) 8 AIR 1921 PC 148. But if it can so enact then the possibility of

the power being abused in future cannot invalidate the Act: see In the matter of C.P. and Berar Sales of Motor Spirit and Lubricants Taxation Act,

1938 (''39) 26 AIR 1939 FC 1. It seems to me that Section 2 goes beyond the subject of remission of rents. In pith and substance, it is an Act not

only with respect ,to ""the relation of landlord and tenant"" or the ""collection of rents,"" but is also with respect to conferring on the Provincial

Government very extensive powers of interference with the legal rights of landholders in their lands. But the category of ""land"" in entry No. 21 of

List II includes ''rights in and over land,'' and is also within the exclusive authority of the Provincial Legislature. Even if by any chance the impugned

Act were indirectly with respect to assessment of revenue, it will fall within entry No. 39, and be still in List II. We are not concerned with any

unfairness or injustice of the legislation, nor with any injury that may be caused to private rights so long as there is authority to pass it. The only

protection available, even though of a limited character, is that contained in Section 299(3), Government of India Act, requiring a previous sanction

of the Governor, and if that is gone then a representation that assent should be withheld. It would be too late to object afterwards. The want of a

previous sanction of the Governor in the present case is cured by the assent given to the Act subsequently. In view of the fresh tenancy legislation

that came into effect in the United Provinces later, the present case is probably the last pending case in which this difficult point has to be decided.

Pending action - The learned advocate for the plaintiffs has in the last resort sought to support the decree of the High Court on the ground that

the impugned Act did not apply to the pending action at all. Unfortunately, this point was not raised or argued before the High Court, nor is this a

constitutional question. But, if we overrule the High Court, we cannot direct it to modify its decree in the light of that Act without disposing of this

plea. In that case we must either ask the High Court to do so, or decide the point ourselves.

Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect

pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does

not compel them to do so. It is a well recognized rule that statutes should, as far as possible be so interpreted, as not to affect vested rights

adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a

Court in enforcing the law as it stands, its retrospective cha-| racter must be clearly expressed. Ambiguities in it should not be removed by Courts,

nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly, and not given a

liberal interpretation.

In Moon v. Durden (1848) 2 Ex 22, a new Act (Gaming Act, 1845), which was passed while an action was pending, was held not to be

retrospective in its effect so as to defeat that action, even though Section 18 had said, ""no suit shall be brought or maintained for recovering money

etc."" The alternative ""or maintained"" would ordinarily have been held to be applicable to a pending suit. Nevertheless, Parke, B. remarked:

It seems a strong thing to hold that the Legislature could have meant that a party who under a contract made prior to the Act had as perfect a title

to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation.

Similarly, in Smithies v. National Union of Operative Plasterers (1909) 1 KB 310, Section 4, Trade Disputes Act, 1906, was interpreted as

not preventing a Court from disposing of an action begun before the passing of that Act, although Section 4 had enacted: ""an action for tort against

a trade union shall not be entertained by any Court."" Again in Beadling v. Goll (1922) 39 TLR 128, the Gaming Act, 1922, which had repealed a

section of an earlier Gaming Act, was held by the Court of Appeal not to operate to put an end to the pending action, even though it had enacted

that ""no action for the recovery of money under the said section shall be entertained by any Court."" In Henshall v. Porter (1923) 2 KB 193, the

Court went further and held that the Gaming Act of 1922 did not prevent the bringing of an action under the repealed section of the older Act,

even after the date when the Repealing Act came into force in respect of a cause of action which had arisen before that date. In Thistleton v.

Frewer (1862) 31 LJ Ex 230,, followed in subsequent cases, it was held that Section 32, Medical Act, 1858 (C. 90) did not apply to an action for

medical services begun before that date, but tried after it, although the section had enacted that no person should after 1st January 1859, recover

any charge for medical treatment unless he shall prove at the trial that he was on the Medical Register. The case in Colonial Sugar Refining Co. v.

Irving (1905) AC 369 was pending when the Commonwealth of Australia Constitution Act, 1900, came into force, Under Section 73 of which a

decision of a Court of any State, from which an appeal would have previously lain to the Queen in Council, became appealable only to the High

Court. At p. 372, Lord Macnaghten, while considering whether an appeal lay to the Privy Council, laid down the general principles applicable to

the retrospective character of a legislation and remarked:

On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if

it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long

line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not

retrospective by express enactment or by necessary intendment.

It was further remarked:

In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act

retrospectively unless a clear intention to that effect is manifested.

This view was of course followed by a Full Bench of the Allahabad High Court in Ram Singha v. Shankar Dayal (''28) 15 AIR 1928 All 437.

In Suleman Quadir v. Salimullah Bahadur (''22) 9 AIR 1922 PC 107, their Lordships had to consider the effect of the Mussalman Wakf Validating

Act (6 of 1913) of which, the Preamble had expressly stated:

Whereas doubts have arisen regarding the validity of wakfs created by persons professing the Mussalman faith . . . .; and whereas it is expedient to

remove such doubts.

Section 3 said: ""It shall be lawful ... to create a wakf, etc."" ; and Section 4 said: No such wakf shall be deemed to be invalid, etc."" Their

Lordships held that the Act could not be construed as validating deeds executed before its date. In this case the Act had been passed even before

the suit had commenced. No doubt in Shyamakant Lal v. Rambhajan Singh (''39) 26 AIR 1939 FC 74, this Court applied a new Bihar Money-

lenders Act (7 of 1939) which came into force after the filing of the appeal. But Section 13 expressly said: ""When an application is made before or

after the commencement of this Act, etc."" Since then Section 7 of the new Act has been consistently applied in all the Bihar cases, even in suits

pending in appeal. But here again Section 7 contains the words,

in any suit brought by a money-lender . . . . before or after the commencement of this Act in respect of a loan advanced before or after the

commencement of this Act or in any appeal or proceedings in revision arising out of such suit,

which in express terms refer to a pending suit.. In Mukherjee v. M st. Ram Ratan Kuer (''36) 23 AIR 1936 PC 49 the new Bihar Act had express

words to the effect that all transactions from 1910 shall be deemed to be valid, which if applicable to the appeal would take away the appellant''s

right altogether. Their Lordships held that in view of that enactment the appeal should not be allowed. In Quilter v. Mapleson (1882) 9 QBD 672,

a new Act had come into force, Section 14 of which made the section applicable to old leases as well, and which clearly deprived the landlord of a

right to claim forfeiture. In that case the landlord had not till then re-entered. The Court of appeal applied the new Act on the ground that appeals

had the character of rehearing and the appellate Court could make such order as ought to be made according to the state of things at that time.

As already mentioned, the landholders in the present case ignoring the order of remission had claimed the full amount of the arrears of rent

from the very beginning. Even in the second appeal before the High Court, they had challenged the order of remissions of rent in grounds Nos. 2, 3

and 6 of their memorandum of appeal, several years before the impugned Act came into force. They had already called the previous order in

question, and that plea was already before the High Court for consideration. The Legislature was presumably aware of the previous decision in

Muhammad Abdul Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158 and must also have been aware that numerous other suits for arrears

of rent must be pending. And yet no express words were put in the impugned Act to show that it should apply to all actions pending in appeal.

Further, the provisions that no such order shall be called in question has a certain amount of ambiguity in it and leaves it doubtful whether only the

parties are prevented from questioning the order or even the Court is debarred from ignoring it as having been issued by an unauthorized body, and

enforcing the law that has not been repealed or amended by the U. P. Act. Of course, no such bar would exist against the Federal Court; but in

declaring what decree should be passed by the High Court it cannot ignore such a bar if it exists. In view of the trend of judicial decisions already

referred to, I am of the opinion that the impugned Act was not applicable to the appeal pending before the High Court. The decree of the High

Court must therefore stand and this appeal should be dismissed.

Varadachariar, J.

The constitutional question arising for decision in this appeal relates to the validity of the Regularisation of Remissions Act (14 of 1938) passed

by the Legislature of the United Provinces. A Full Bench of the Allahabad High Court held the Act to be ultra vires that Legislature. All the three

learned Judges who constituted the Full Bench were of the opinion that as the Act attempted to legislate with respect to a period anterior to the

date of its enactment, a period during which another valid Act was in force, it contravened the provisions of Section 292, Constitution Act. One of

the learned Judges (Iqbal Ahmad J.) based his conclusion on an additional ground viz., that the impugned legislation was not one made ""with

respect to any of the matters enumerated in List II"" of Schedule 7 to the Constitution Act nor even one with respect to one of those enumerated in

the List III. The circumstances that led up to the impugned legislation and to the attack on its legality have been stated in the judgments just

delivered. Reference has also there been made to the stage at which the Government of the United Provinces came to be impleaded as a party to

this litigation and to the fact that this appeal has been preferred not by the original defendant but by the Government of the United Provinces.

At the hearing of this appeal, the learned counsel for the plaintiffs-respondents took a preliminary objection to the maintainability of the appeal

by the Government of the United Provinces. He contended that there was no decree in this case against that Government, that the Government

was not aggrieved or affected by the decree of the High Court and that it accordingly had no locus standi to prefer the appeal. Though Section

205, Constitution Act, provides in general terms that ""any party"" in the case may, appeal to the Federal Court, the learned counsel maintained that

these general words must be limited in the manner in which Section 96, Civil P.C, has been limited, and he argued that the mere fact that the United

Provinces Government had been formally impleaded as a party in the second appeal would not give it a right to appeal to this Court. He further

said that where a person who ought not to have been impleaded had been improperly added as a party by the Court, such person should not be

regarded as a party competent to prefer an appeal and he insisted that on the admitted facts of the case the order of the High Court impleading''

the United Provinces Government as a party to the second appeal should be held to be unwarranted and without jurisdiction. In support of his

contention that the United Provinces Government should not have been added as a party, he relied on the observations of a learned Judge of the

Madras High Court in Prayaga Doss Jee Varu v. Board of Commissioners for Hindu Religious Endowments, Madras (''26) 13 AIR 1926 Mad

836, and of the Court of appeal in England in Moser v. Morsden (1892)1 Ch 487. He invited attention to the fact that even the allegations made in

support of the petition filed in the High Court to join the United Provinces Government as a party did not attempt to bring the case within Order 1,

Rule 10, Civil P.C., or suggest that, the Government was at least a ""proper"" (if not ""necessary"") party to the proceeding and he contended that the

alleged desire or intention of the Government to take the case on appeal to the Federal Court which was all that was set out in the petition was no

ground for impleading it as a party. The learned Advocate-General of the United Provinces relied on the circumstance that his petition was not

opposed before the High Court; to this, the learned counsel for the plaintiff''s replied that even if the absence of opposition should be held to

amount to consent, such consent could not cure a defect of jurisdiction and that such consent would not in any event give the United Provinces

Government a right of appeal which it did not otherwise possess.

I am free to admit the force of some of those contentions. The circumstance that some of the observations in Prayaga Doss Jee Varu v. Board

of Commissioners for Hindu Religious Endowments, Madras (''26) 13 AIR 1926 Mad 836, have been doubted by another learned Judge of the

same Court in Secretary of State v. Murugesa Mudaliar (''29) 16 AIR 1929 Mad 443 does not seem to me to carry Dr. Asthana very far. Again,

it is true that in Mt. Jaimala Kunwar v. Collector of Saharanpur (''34) 21 AIR 1934 All 4, the Court observed that the power to add parties had

not always been limited to cases falling within the language of Order 1, Rule 10, Civil P.C.; but an examination of the facts of that case and of the

decisions referred to in that judgment will show that in these cases, the person added was not really a third party but one who on some recognized

principle would be bound by the result of the litigation. In Moser v. Morsden (1892)1 Ch 487, the Court of appeal (in reversal of the trial Court''s

order) dismissed the application of the third party, even while recognizing that that party might be ""indirectly"" affected by the result of the case. The

allegation made in support of the petition in that case was that the defendant on record ""will not contest the case properly"" and yet Kay L. J. was

content to answer ""we cannot help that."" It however appears to me that in a case like the present, it will not be right to regard the state as standing

for all purposes on the same footing as a private third party. Its character as the guardian of the public interests cannot be ignored and it will not be

right to limit its interest in a litigation strictly to cases in which its pecuniary or proprietary interests or the interests of the public revenue are

involved.

In most of the Indian decisions bearing on the question of joinder of parties, the discussion has had to proceed within the limits imposed by the

language of the relevant statutory provisions which were in the main intended to deal with private parties. The position of the King as parens patria

has long been recognized in this country; but the extent to which the King''s law officer is entitled to initiate or intervene in proceedings in Courts ""to

see that justice is done to every part of the King''s subjects"" (as it is expressed in the old English authorities) has never been clearly or sufficiently

defined. As early as in 53 Geo. III, chapter 155, provision was made authorizing the Advocate-General in this country to take such proceedings as

His Majesty''s Attorney-General may take in the Courts of Equity in England (Section 111). This section was at one time interpreted by the

Supreme Court in Madras as authorizing the Advocate-General to represent the Crown only in cases involving the pecuniary interests of the

Crown. But this narrow interpretation was not endorsed by the Judicial Committee: see Attorney-General v. Brodie (1846-51) 4 MIA 190, a case

relating to a charity. The section was reproduced in successive Government of India Acts up to 1919 (see Section 114, Government of India Act

of 1919); but in the Act of 1935 neither Section 16 nor Section 55 follows the same lines. Barring Sections 91 and 92, Civil P.C. of 1908 relating

to public nuisances and charities and special provisions like Section 26, Patents and Designs Act, 1911, and Section 39, Lunacy Act, 1912, there

are at present no specific provisions in the Indian statute book empowering the Advocate-General to institute or intervene in any proceedings in the

civil Courts. And it cannot even be said that a well-defined course of practice has grown up as to the cases or circumstances in which the

Advocate-General is entitled to intervene or to be impleaded as a party, apart from his representing the Crown or the Secretary of State in suits in

which either the Crown or the Secretary of State happens to be a party. Even in England, the distinction between cases in which the Attorney-

General figures as a party and cases in which he only intervenes or is merely heard does not appear to be very clearly marked.

The Indian Procedure Code does not contemplate the Advocate-General ""intervening"" without himself or the Secretary of State being a party

to the suit. The result is that even in proceedings similar to those in which the Attorney-General will merely intervene according to the English or the

Dominion practice, the same result has to be attained in this country by impleading the Government as a party. The new Constitution Act (taken

with the adaptation of Section79, Civil P.C.) has introduced a further complication as a result of the provision that in suits by or against the Crown,

the Governor-General should be named as the plaintiff or the defendant in certain cases, that in certain other cases the provinces should be so

named, and that in a third group of cases the Secretary of State''s name should be stated. But in whatever form the cause title may run, the theory

is that the Grown is the party. It may he added that even when the Attorney-General figures as the party in England the theory is that the Grown is

a party to the litigation through him: see Attorney-General v. Logan (1891) 2 QB 100 at page 106 and Attorney-General v. Cockermouth Local

Board (1874) 18 Eq 172 at page 176. Such being the state of the law and of precedents as to the position of the Government in this country or the

Advocate-General in relation to proceedings in Courts, it seems to me that when a question like the present one is raised, it must be decided on

broad grounds of justice and convenience and not merely turning on the interpretation of a particular rule in the Civil Procedure Code.

If the practice in England is to be treated as affording any guidance here, it may be useful to refer to two instances. In Ellis v Duke of Bedford

(1899) 1 Ch 494, the Court of appeal directed the Attorney-General to be added as a party defendant to an action in which certain plaintiffs sued

on behalf of themselves and of other growers of fruit, flowers, vegetables, etc., to enforce certain preferential rights to stand in the Covent Garden

market. The Lord of the market was the sole original defendant. The action did not relate to a charity nor did it arise out of a public nuisance. The

Court of appeal nevertheless held that the Attorney-General must be before the Court ""to represent the public as against the alleged preferential

rights of the growers."" This direction was referred to with approval by the Judicial Committee in Rsquimalt and Nanaimo Railway Co. v. Wilson

(1920) AC 358 and In re Chamberlain''s Settlement (1921) 2 Ch 533 P.O. Lawrence J. directed the addition of the Attorney-General as a party

to a proceeding in which the point for decision was whether a tenant for life had forfeited his interests under a particular settlement by reason of his

having become a ""German National"" within the meaning of the Peace Treaty Order of 1919. The tenant for life objected to the addition of the

Attorney-General, but the learned Judge overruled the objection, not merely on the ground that the inter-pretation of the treaty was a matter which

concerned the Crown but also on the ground that the question raised was one ""which may affect a large section of the British public.

I find it difficult to say whether and if so how the same course could have been adopted by a Court governed by the Civil Procedure Code in

this country and whether according to the processual law obtaining in this country the Government or the Advocate-General will be the proper

party to be impleaded, if the principle of the above decision is to be followed here. A decision of a learned Judge of the Calcutta High Court seems

apposite here. In the goods of Bholanath Pal (''31) 18 AIR 1931 Cal 580 the Advocate-General sought to intervene on behalf of the Secretary of

State in a succession certificate proceeding with a view to contend that the High Court on its original side could only grant letters of administration

but not a succession certificate. It is possible to suggest that the interests of Government revenue were concerned here, because on the issue of

letters of administration succession duty might be payable on the whole estate whereas a succession certificate could be limited to particular debts

and the duty payable to Government correspondingly reduced. But the learned Judge (Remfry J.) did not merely hear the Advocate-General on

the question of jurisdiction or court-fee, but added the Secretary of State as a party. The very circumstance that in the present case the High Court

thought it proper to issue notice to the Provincial Government involves a recognition of the fact that the Government was interested in the question

raised - presumably as representing the large class of subjects for whose benefit the Act was intended though its interest may be limited to the

general question, viz., the validity of the enactment. There was also the fact that the remission whose legality was in question had been granted

under the orders of the Provincial Government.

It is not however necessary for me to consider at this stage what this Court should do if it had in the first instance to deal with the application

made by the United Provinces Government to the High Court in this case; nor does it seem to me useful to speculate what the High Court itself

would have done if the application of the United Provinces Government to be joined as a party had been opposed by the plaintiffs. I am not

prepared to go so far as to ignore the fact that the High Court has impleaded the United Provinces Government and that this course has been

adopted with the consent (express or implied) of the plaintiffs. In my opinion, there is no case here of a defect of jurisdiction in the sense in which it

is said that consent cannot cure a defect of jurisdiction. It is true that in, Moser v. Morsden (1892)1 Ch 487 Lindley L. J. observed that the

question was not one of ""discretion but of jurisdiction"". But as the antithesis shows, the learned L. J. apparently had in mind the difference between

the decision of the question of joinder on the interpretation of a rule of law and a direction given by the lower court in the exercise of its discretion,

because in the latter case the Court of appeal would generally be reluctant to interfere. It may even be regarded as a case of excess of jurisdiction

within the meaning of Section 115, Civil P.C., but that will not make the order void in the sense that it may be ignored or treated as if it had never

been passed. In Muhammad Abdul Qaiyum v. Secretary of State (''38) 25 AIR 1938 All 158, the learned Judge intimated that but for the

opposition of the plaintiff he might have directed the addition of the Secretary of State as a party.

To the suggestion that the expression ""any party"" in Section 205(2), Constitution Act, must be limited on the lines on which the generality of the

language of Section 96, Civil P.C., has been limited by decisions, the answer is furnished by the difference in language between the two provisions.

Section 96, Civil P.C., does not in terms say who is entitled to prefer, an appeal. But according to the Code it is the ""decree"" that has to be

appealed against. The decisions have therefore laid it down as a matter of inference that a party adversely affected by the decree is the only person

entitled to appeal. It was however realised that a rule so limited might cause hardship in some cases. An extension was therefore made by

conceding a right of appeal to a party who might be bound by a finding in the judgment, though there was no decree against him: see the cases

reviewed in Harachandra Das v. Bholanath Das (''35) 62 Cal 701 Section 205, Constitution Act, provides for an appeal '' from any judgment,

decree or final order"" an expression which has received varying interpretationsand Sub-section (2) of the section enacts that ""any party in the case

may appeal"". Why should this express provision be qualified by adding the words if adversely affected by the decree? It may be taken as a matter

of ""common sense that there can and will be no appeal when there is nothing to appeal about"": see Krishna Chandra Goldar v. Mohesh Chandra

Saha (''05) 9 CWN 584 at p. 588. But why limit the grievance to a grievance about the decree? Even on the footing that the general language of

Section 205(2) may or must be limited in some manner, it seems to me that its scope ought not to be unduly narrowed so far as the Government

(whether Central or Provincial) in this country is concerned. The section is principally concerned with the determination of constitutional questions

though arising in a litigation between private parties. The Government stands in a peculiar situation: it has no doubt pecuniary or proprietary

interests in one sense, but in another aspect it is also the custodian and the protector of the interests of the public; and the question of the legality of

a statute is one in which it has a special interest.

It is in view of this consideration that this Court has in Order 36 of its Rules provided for notice of any proceedings being given to the

Advocate-General of India or to the Advocates-General of the Provinces and for applications being made by them to be heard in any proceedings

before this Court. Both on principle and as a matter of expediency, it seems to me very undesirable to place the Government in this embarrassing

position, that while it must deem itself bound by an opinion expressed by the High Court as to the invalidity of a statute, it must find ways of

persuading private parties formally to file an appeal, if it desires to have the constitutional question brought up before this Court. The procedure

Under Section 213, Constitution Act, may not be found appropriate when the question of the legality of a statute has actually been put in issue

before a Court of law in a litigation between private parties.

I have already stated that the Indian Civil Procedure Code does not contemplate an ""intervention"" by the Advocate-General as distinguished

from an addition of the Advocate-General or the Government as a party. When either of them has been impleaded as a party with a view to give

them a hearing, it seems to me that the Court would fail to give full effect to the language of Section 205(2), Constitution Act, if it should hold that

notwithstanding such joinder as a party, the Advocate-General or the Government had no right to prefer an appeal. In proceedings relating to

charities, it has been held that where the Advocate-General is a party, he is the proper person to appeal against an adverse judgment: see Jan

Mahomed v. Syed Nurudin (''07) 32 Bom 155 following Att.-Gen. v. Wright (1841) 3 Beav 447, (see also In re Rai Rukhiabai (''37) 24 AIR

1937 Bom 63) where the learned Judges took the additional ground that the beneficiary, though he was heard by counsel, was not to be treated as

a party. I see no reason why the principle should be different in a case like the present. Neither in the one case nor in the other has the Advocate-

General or the Crown or the State any pecuniary or proprietary interest if that is to be the sole test. The right of appeal being a creature of the

statute, the right of one who is within the terms of the statute cannot, it seems to me, reasonably be denied when even on the broader ground of

interest in the litigation, it is conceded that he is sufficiently interested to justify his claim to be heard. In John Deere Plow Co. v. Wharton (''14) 1

AIR 1914 PC 174 the parties concerned had themselves preferred an appeal to the Judicial Committee and the Attorneys-General of Canada and

British Columbia seem to have intervened before the Judicial Committee. The case therefore throws no light on the question of the right of the

Attorney-General of the Dominion to prefer an appeal in a case where he had intervened even in the lower Court. The report of the decision in

Att.-Gen. for Alberta (Intervenant) v. Kazakawich (1937) Can SCR 427 referred to in my Lord''s judgment is very brief and it does not appear

whether the decision was based on the language of any statute and if so what that language was. For the reasons set forth above, I would overrule

the preliminary objection.

There is another aspect of the case which also deserves consideration in this connexion. The application filed by the United Provinces

Government in the High Court put the plaintiffs on notice that that Government sought to come in as a party for the very purpose of placing itself in

a position to prefer an appeal to this Court. If the plaintiffs had opposed the petition, the Government might have taken steps to ensure that an

appeal was formally lodged by the original contesting defendant. This opportunity has now been lost to that Government and this is in a large

measure attributable to the attitude taken by the plaintiffs towards the application in the High Court. This may not create an estoppel nor suffice to

confer on the Government a right of appeal which it would not otherwise possess. But if the Government can bring itself within the letter of the law,

one need not hesitate to uphold its right to prefer an appeal in such circumstances.

Proceeding now to the question of the invalidity of the impugned Act, it will be convenient to take up first the ground on which all the learned

Judges of the Pull Bench of the High Court agreed, namely, the objection based on Section292, Constitution Act. As I understand the argument,

this objection interprets Section 292 not merely as enacting that the law in force in British India immediately before the commencement of Part. III,

Constitution Act, shall continue in force notwithstanding the repeal of the earlier Government of India Act, but as also fixing a time-limit up to which

the operation of such law should not be disturbed by anything contained in any enactment that may come to be passed by any of the Legislatures in

British India. It was conceded before us and it was recognized before the High Court that a provision like Section 292 is usually inserted in similar

Acts, to indicate that the repeal of the parent Act shall not be deemed to have repealed all the laws passed under that Act. (Compare Section 108,

Commonwealth of Australia Constitution Act, Section 129, British North America Act and Section 135, Union of South Africa Act). But laying

special stress on the words ""until altered or repealed or amended"" the learned counsel for the plaintiffs desired to read Section 292 as containing a

direction by Parliament that the law then in force must in any event continue up to a specified date, namely, the date of its alteration, repeal or

amendment by a later Act of the Legislatures in India; and, it was sought to be inferred therefrom that no later Act of such Legislatures can by

words of retrospective operation antedate its effect so as to affect rights acquired under a previous law down to the date of the new legislation. At

one stage, the learned counsel for the plaintiffs even went so far as to suggest that the Legislatures in India had been deprived by this provision of

the power of enacting at any time laws with retrospective effect, or they were at least incompetent to extend the retrospective operation of their

enactments to a period anterior to 1st April 1937, when the Constitution Act came into operation in the provinces. These arguments were,

however, not persisted in, when it was pointed out that the Indian Legislatures were, within the statutory limits assigned to them, bodies possessing

plenary powers: see Reg. v. Burah (1878) 3 AC 889, Archibald G. Hodge v. Reg (1883) 9 AC 117 at p. 132 and Croft v. Dunphy (''38) 20 AIR

1933 PC 16, and that whatever might be the objection on grounds of reasonableness or expediency to retrospective legislation, there was nothing

in Section 292 to deprive the Indian Legislatures of this particular incident of plenary legislative power. [Compare Phillips v. Eyre (1870) 6 QB 1

at pp. 23, 27 relating to an Act of Jamaica Legislature; and The King v. Kidman (1915) 20 Com LR 425, relating to an Act of the Commonwealth

Parliament in Australia.] The objection was then limited to the power of the Legislature to give retrospective operation to an enactment when, by

so doing, it would prevent a law in existence at the date of the commencement of Part III, Constitution Act, from having its full effect up to the date

of the repealing or amending Act. It was pointed out that the language employed in Section 292, Constitution Act, was not identical with that to be

found in the corresponding provisions in the British North America Act or in the Commonwealth of Australia Act. But, it would appear that this

language is so similar to that found in Section 135, Union of South Africa Act, as to suggest that it might have been taken from it. The reason for a

provision like that contained in Section 292 being the one already stated, it does not seem to me necessary or proper to lay undue stress on the

word ""until"" used in Section 292 and hold that the policy of this provision is different from that underlying similar provisions in the other Constitution

Acts above referred to. I see no justification for drawing a distinction between the statement that the previous law shall continue in force subject to

repeal or amendment by later legislation and the statement that it shall continue in force until repealed or amended by later legislation. The

Parliament might have had some reason or motive for denying to the Indian Legislatures the power of retrospective legislation with reference to

pre-existing laws seems to me to rest on mere speculation and is not a fair inference from the language used in the section.

In the judgments delivered by the learned) Judges of the Pull Bench of the Allahabad High Court, I find it stated in some places that Section 2

of the impugned Act in effect repealed Section 73 of the Act of 1926 with retrospective effect or that the provisions of the two Acts were

diametrically opposed to each other. With all respect, I find some difficulty in following this view. It is true that; the remission which the impugned

Act sought to regularise was not one made in conformity with the provisions of Section 73 of the Act of 1926. But such regularisation would only

mean the addition of a new head of remission; it may amount to an alteration, or amendment of the old Act, but will not necessarily involve a repeal

of Section 73 of that Act. The co-existence of two kinds of remission given for different reasons is not inconceivable or impossible. It can of

course be said that the impugned. Act retrospectively deprived landlords of a share of the rent to which they had already acquired a right. But if on

general principles a Legislature has ordinarily powerfor reasons which it is not open to the Court to investigateto enact measures which by

retrospective operation may deprive some subjects of vested rights, I see no sufficient reason for treating the present case as standing on any

special footing. In this view, it will follow that there is no reason for saying (as Bajpai J. has said) that ""the impugned Act has attempted to do

something indirectly which, it could not do directly"".

Reference has been made in the judgments; of the learned Judges of the High Court and reference was also made in the course of the

arguments before us to the fact that a later Act of the U. P. Legislature, namely, Act 17 of 1938 took care to repeal Sections 73 to 75, Agra

Tenancy Act of 1926 and to add in clause. (2) of Section 5 a provision corresponding to clause. (2) of Section 74 of the Act of 1926, while the

impugned. Act contains no provision corresponding to this clause. It does not appear to me that this is any legitimate ground to be considered; in

the present connexion. The policy of Act 17 of 1938 is apparently not the same as that of the Act of 1926, because the conditions and procedure

stated in Section 4 of the new Act are not identical with those contemplated in Section 73 of the older Act and that, affords a sufficient explanation

for the repeal of Sections 73 to 75 of the old Act.

The additional ground of invalidation, relied on by Iqbal Ahmad J. was also pressed before us at some length by the learned counsel for the

respondent. With all respect it seems to me there is even less force in this objection than in the one based on Section 292. The only question to be

considered in this connexion is whether the impugned Act can reasonably be described as one made ""with respect to"" any of the matters

enumerated in item 21 of List II of Schedule 7, Constitution Act. Item 2 of that list is only of secondary importance in this case, because the first

part of item 2 is governed by the words ""with respect to any of the matters in this list""which takes us to item 21 ; and the second part, namely

procedure in rent and revenue Courts"" can scarcely be held to authorise legislation which in effect dealt with substantive rights, by precluding the

landlord from objecting to a remission which had been improperly made under executive authority.

Both in the High Court and in the arguments before us, great stress has been laid upon the way in which Section 2 of the impugned Act had

been worded and it has been said that all that the Act did was to validate arbitrary executive orders. This view does not seem to me to take the

whole of Section 2 into account and give due effect to the substance of the enactment. The Preamble recites the necessity for regularising certain

remissions of rent and even if we are to exclude the Preamble from our consideration, Section 2 in terms refers to the fact of remission of rent

having been made under orders of the Provincial Government by reason of the fall in the prices of agricultural produce which took place before the

commencement of the Act. The succeeding words can, as a matter of grammar only, mean that the order of remission thus passed shall not be

called in question. There can thus be little doubt that the Act intended to deal and does deal with the subject of remission of rent made under

orders of the Provincial Government. It can make no difference for the present purpose whether it laid down general provisions for remission of

rent for all time or dealt with the remission made or to be made in particular years. The subject-matter in every one of these cases must be held to

be remission of rent.

A point was raised in the course of the discussion before us, whether the words ""such order'''' in Section 2 of Act 14 of 1938 referred to the

order of the Provincial Government authorising the remission in general terms or to the consequent orders passed by revenue officers fixing the

remission in the case of each individual or holding. I am inclined to think that the reference must be to the order passed by the revenue officers with

reference to individual holdings and the reference to the order of the Provincial Government is only to indicate the authority under which the

remission was granted. This is to some extent supported by the reference in the proviso to remissions ""in excess of the remission ordered for the

same holding"", etc. But this again is immaterial, so far as the question of the subject-matter of the Act is concerned. Whether it is the order of the

Provincial Government or the consequent order of the revenue officer, the order was one which related to remission of rent and that is the subject-

matter of the Act. It was pointed out that the section did not in terms purport to validate the remission, and it was argued that an Act which merely

protected from attack an order which granted the remission, could not be said to be an Act dealing with remission. This seems to me an

unsubstantial distinction. Whatever consequences might flow from the absence of a direct provision validating the remission or precluding the

landlord from recovering the remitted rent, the avowed purpose of the Act was to ensure that the tenants had the benefit of the remissions which

had been made.

A point was made by the learned counsel for the respondents that Section 100, Constitution Act used the expression ""with respect to any of

the matters enumerated in the list"" and not words like ""relating to the matters enumerated in the list."" It seems to me that the words ""with respect

are not by any means less comprehensive than the words ""relating to."" [Cf. observations in The King v. Kidman (1915) 20 Com LR 425 at p.

449; Wynes: Legislative and Executive Powers in Australia, at pages 28, 29.] The significance of these expressions may become important in a

case where the impugned legislation contains a number of provisions relating to different matters and a question arises as to whether one set of

provisions can be described as ""passed in respect of a forbidden subject"" or can be considered as only incidentally affecting such a subject while

forming part of an Act which in the main deals with an authorised subject: see the antithesis indicated by Lord Atkin in Gallagher v. Lynn (1937)

AC 863, with reference to the use of the expression ""in respect of"" in Section 4, Government of Ireland Act. In the present case, the Act in

question deals with, only one matter and the distinction between what is ""substantial"" and what is only ""incidental"" does not arise for consideration.

In coming to the conclusion that the impugned Act did not fall within any of the heads enumerated in item 21 of List II, Iqbal Ahmad J., gave

it as one of his reasons that that item could only cover provisions of ""substantive law"" and that the impugned Act did not embody any provision of

substantive law either in respect of rights over land or land tenures or the relation of landlord and tenant or the collection of rent. The fact that the

provision is couched in the form of an immunity of the remission order from attack in a civil or revenue court will not, I think, take away from its

character as one depriving the landlord of his right to the full rent. It is well settled that the substance of the legislation has to be examined to see

what the Legislature was doing, and the form which the statute may have assumed under the hand of the draftsman is not decisive. As explained by

Dr. Asthana, it might have been thought sufficient to frame the new Act on the lines of clause (1) of Section 74, Tenancy Act of 1926. The learned

Judge enumerated certain provisions which he would regard as provisions relating to the ""collection of rents"". But I do not see why the list given by

the learned Judge should be regarded as exhausting all conceivable provisions relating to that head. Section 2 of the impugned Act had a two-fold

operation; on the one hand, it prevented the landlord from questioning the order of remission with a view to recovering the full rent, on the other, it

might also be held to prevent the Court suo motu from questioning the order of remission. In the latter sense, it might be said to be an interference

with the power of the Court and it is in answer to such a possible contention that reliance seems to have been placed on behalf of the Government

on item 2 of List II. One or two other objections were mentioned in the course of the argument, but I did not gather that they were seriously meant

to be urged. In the result, I am of opinion that the impugned Act was within the sphere allotted to the Provincial Legislature by the Constitution Act,

that it was not opposed to Section 292 of that Act and that it was intra vires the United Provinces Legislature.

The question still remains what is the decree to be passed in the case, in the view that the impugned Act was valid. The conclusion of the High

Court against the validity of the Act will no longer hold good, tout will that constitute sufficient reason for modifying the decree of the High Court so

far as it relates to the rights of the original parties? According to my reasoning in the earlier portion of this judgment, the United Provinces

Government was interested only in the general question and had no other interest in the particular litigation. In In the goods of Bholanath Pal (''31)

18 AIR 1931 Cal 580, the learned Judge limited the Advocate-General''s argument to the question of jurisdiction which alone, he considered was

one of public importance. The contesting defendant in the present case does not seem to me to be entitled to ask for a modification of the decree

on the principle of Order 41, Rule 4, Civil P.C., because there is no ""decree"" in this case against the Government and hence there can be no

question of a decree proceeding ""on a ground common to all the defendants."" The anomalous situation of a decree passed against several

defendants on the same ground being reversed as against some and being allowed to stand as against the rest will not arise in this case. Further the

power recognized by this rule as also the one referred to in Order 41, Rule 33, Civil P.C., is only discretionary and the present case is not in my

opinion one in which any discretionary power ought to be exercised in favour of the contesting defendant. He has not merely acquiesced in the

decree of the High Court, he has not even appeared before this Court to explain the circumstances in which he did not choose to appeal nor to ask

for its modification. This is significant in view of the suggestion thrown out by Dr. Asthana that the original parties to the litigation have in all

probability come to a settlement. I am accordingly of opinion that notwithstanding this Court''s acceptance of the appellant''s contention as to the

validity of the impugned Act, there is no justification for disturbing the decree passed by the High Court in the case.

Two more contentions of the learned counsel for the respondents remain to be noticed. It was argued that Act 14 of 1938 even if valid,

would not preclude the plaintiffs in this case from recovering the full rent due to them, because the Act had not been made applicable to pending

actions. There can be little doubt that there is a well-recognized presumption against construing an enactment as governing the rights of the parties

to a pending action. Moon v. Durden (1848) 2 Ex 22 is an instance of the extreme limits to which this rule has been carried; for notwithstanding the

doubt felt by Baron Parke in that case that the denial of the application of the Act to pending actions would render inoperative the words ""or

maintained"" used in the Act, the Court thought it safer not to apply the statute to pending actions. The Act now under consideration was clearly

intended to be retrospective, in so far as it took away certain vested rights which had accrued before the date of its enactment. But the

presumption against retrospective operation is said to be so strong that it has been recognized that even in construing an Act or a section which is

to a certain extent retrospective, it ought not to be given a larger retrospective operation than the words clearly involve: see Reid v. Reid (1886) 31

Ch D 402. There are two recognized principles (1) that vested rights should not be presumed to be affected and (2) that the rights of the parties to

an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used

in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to

pending actions, it is common to find the Legislature using language expressly referring to pending actions. But it will be seen from the decision of

the Privy Council in (''36) 23 AIR 1936 PC 49, that it is not necessary that the intention of the Legislature should always be expressed in that

particular form. In that case, the enactment validated all transactions subsequent to a specified date and their Lordships held that the new law

would apply to a transaction of that kind even if it had become the subject of an action prior to the date of the passing of the Act; and in those

circumstances, they reversed the usual presumption and looked to see whether there was any reservation, in the Act in respect of pending actions.

The question of the applicability of the impugned Act to pending actions is likely to arise only in a few cases and whatever may be its

importance to the parties to those cases, it does not seem to me to be a matter in which the United Provinces Government can be said to be

interested. As I have already indicated that as between the original parties to this suit there is no justification for this Court''s interference with the

decree of the High Court, I do not find it necessary to express any definite opinion on the question of the extent to which the impugned Act

operates retrospectively. For the same reason, I refrain from expressing any opinion on the argument urged by the learned counsel for the

respondents, as to the effect of the absence from the impugned Act of a clause corresponding to Section 74(2), Agra Tenancy Act, 1926, and

Section 5(2) of Act 17 of 1938. He argued that it might be that the impugned Act prevented the order of remission being questioned in a Court,

but this would not of itself take away the contractual right of the landlord to the full rent or absolve the tenant from liability for the full amount of the

stipulated rent. This again is a question relating to the construction of the Act and does not bear upon the question of its validity; and as it has not

been raised or discussed before the High Court, I prefer to leave it alone, as I have held that this appeal should be dismissed for another reason. I

agree that there should be no order as to the costs of this appeal.