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1955 DIGILAW 278 (RAJ)

Bhuralal v. Chhoga

1955-09-26

K.S.RANAWAT, KANWAR BAHADUR, ROOP NARAIN, SHYAMLAL

body1955
The following point has been referred by a Division Bench to a Full Bench for decision— "Are the provisions of the Rajasthan (Protection of Tenants) Ordinance,1949 (No.IX i of 1949) applicable to the enclaves in Rajasthan which ceased to from part of Madhya Bharat and became part of Rajasthan on 20th January, 1950" ? 2. To appreciate and discuss the point involved for decision in this case, the relevant facts may be summarised as follows— Bhurmal, son of Keshrimal, resident of Kathoda, instituted a suit in the court of the S.D.O. Begun against Chhoga son of Rama, of the same village, for recovery of areas of rent and ejectment in respect of the land in dispute. The trial court held that the defendant having acquired occupancy rights was not liable to ejectment and further,as the plaintiff has not secured a certificate of arrears of rent, he was not entitled for a decree for arrears of rent as well. The plaintiff went up in appeal before the Additional Commissioner, Udaipur, who held that— no decree can be passed against the defendant so long as the Rajasthan (Protection of Tenants) Ordinance, 1949, is in force in Rajasthan. The village previously belonged to Madhya Bharat and was merged to the State of Rajasthan in the year 1950 and consequently there can be no question that the Rajasthan(Protection of Tenants) Ordinance is not applicable to village Kethoda." The first appellate court therefore granted a decree for payment of Rs. 9/- against the defendant and dismissed the suit as regards ejectment. The plaintiff has filed a second appeal before the Board. The Division Bench concerned after hearing the arguments of the parties has referred the point referred to above the Full Bench. 3. The United State of Rajasthan started functioning on the 7th of April, 1949,Prior to the date on which the Constitution of India came into force, 26th January,1950, the Rajpra-mukh of Rajasthan enacted legislation for the State in the form of Ordinance in exercise of the powers conferred on him by clause 3 of Art. X of the Covenant establishing the State of Rajasthan The Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949) (hereafter to be referred to as the Ordinance) was promulgated by His Highness the Rajpramukh on the 21st Day of June, 1949. As laid down in sec. 1(2) of the Ordinance it extends to the whole of Rajasthan. As laid down in sec. 1(2) of the Ordinance it extends to the whole of Rajasthan. On 20th January,1950 an agreement was made between the Rajpramukh of the United State1 of Rajasthan and the United State of Madhya Bharat whereby the enclaves in Madhya Bharat ceased to from part of Rajasthan and became part of Madhya Bharat. Similarly the enclaves in Rajasthan ceased to form part of Madhya Bharat and became part of Rajasthan. The first Schedule to this agreement listed the enclaves in Madhya Bharat and the second schedule listed those in Rajasthan. Kethoda, the village to which the parties in the case belong, is included within the second schedule. The learned counsel appearing for the appellant, Shri Shobhalal Desora, has ably argued before us that as the village Kethoda was not included within the territorial limits of the State of Rajasthan at the time of promulgation of the Ordinance, the provisions of the Ordinance, cannot be held applicable thereto. 4. To substantiate this argument a reference has been made to the provinces and States (Absorption of Enclaves) Order, 1950. This order provides that from the appointed day every enclave specified in the second schedule of the order shall cease to form part of the surrendering unit and the boundaries of that unit shall be altered so as to exclude from them that enclave, and every such enclave shall be administered in all respects by the absorbing unit as if it formed part of that unit. The sections of this order relevant to the point in issue are 6, 7 and 8 which may be quoted as below— "6. All property and assets within an enclave which immediately before the appointed day vested in the Government of the surrendering unit shall, as from that day vest in the Government of the absorbing unit. 7. All rights and liabilities and obligations, whether arising out of contractor otherwise, of the Government of a surrendering unit in relation to an enclave shall, as from the appointed day, be the right, liabilities and obligations respectively of the Government of the absorbing unit. 8. 7. All rights and liabilities and obligations, whether arising out of contractor otherwise, of the Government of a surrendering unit in relation to an enclave shall, as from the appointed day, be the right, liabilities and obligations respectively of the Government of the absorbing unit. 8. All laws in force in an enclave immediately before the appointed day shall, as from that day cease to be in force in that enclave, and all ways in force in the absorbing unit shall as from that day, extend to, and be in force in that enclave : Provided that anything done or any action taken under the laws in force in the enclave before the appointed day shall be deemed to have been done or taken under the corresponding law extended to and in force in, that enclave as from the appointed day. Explanation :—In this article "Law" included any Act, Ordinance or Regulation, and any notification order, schedule, rule from or by-law issued, made or prescribed under any Act, Ordinance or Regulation." Shri Shobhalal Desora has argued that clause 8 of the order expressly provides that all laws in force in an enclave immediately before the appointed date caused to have any validity and all laws in force in absorbing unit shall be extended to and be enforced in that enclave. The agreement made between the Rajpramukhs of the States of Rajasthan and Madhya Bharat did not include a similar provision for the extention of the laws of the absorbing unit in derogation of those of the surrendering unit. Art II of the agreement laid down that from the 24th day of January,1950 the enclaves in Madhya Bharat shall cease to form part of Rajasthan and shall become part of Madhya Bharat, and the enclaves in Rajasthan shall cease to form part of Madhya Bharat and shall become part of Rajasthan. Art II of the agreement laid down that from the 24th day of January,1950 the enclaves in Madhya Bharat shall cease to form part of Rajasthan and shall become part of Madhya Bharat, and the enclaves in Rajasthan shall cease to form part of Madhya Bharat and shall become part of Rajasthan. Art. III which is relevant to the present points runs as follows— "As from the aforesaid day— (a) all property and assets within the enclaves in Madhya Bharat which immediately before that day, were vested in Rajasthan shall vest in Madhya Bharat and all property and assets within the enclaves in Rajasthan which immediately before that day were vested in Madhya Bharat shall vest in Rajasthan; and (b) all rights, liabilities, and obligations arising out of a contract or otherwise, of the Government of Rajasthan in relation to the enclaves in Madhya Bharat and of the Government of Madhya Bharat in relation to the enclaves in Rajasthan shall, respectively, be the rights, liabilities and obligations of the Government of Madhya Bharat and of the Government of Rajasthan." A comparison of the relevant provisions of the Provinces and States (Adsorption of Enclaves Order, 1950, and the agreement of the Rajpramukhs will thus reveal that a similar procedure was prescribed for the vesting of all property and assets within an enclave in the absorbing unit and the transfer of all rights and liabilities and obligations of the Government of surrendering unit in favour of the absorbing unit. The provisions contained in Clause 1 of the order regarding the extension and enforcement of the laws of the absorbing unit are conspicuous by their absence from the agreement made between the Rajpramukhs of Madhya Bharat and Rajasthan. It has been argued on this ground that the Rajpramukhs while making this agreement intended that the laws of the surrendering unit should continue in the enclaves till they were repealed by the legislature of the absorbing unit. A reference has been made in this connection to Rajasthan Administration Ordinance (No.1 of 1949), 1949. It has been argued on this ground that the Rajpramukhs while making this agreement intended that the laws of the surrendering unit should continue in the enclaves till they were repealed by the legislature of the absorbing unit. A reference has been made in this connection to Rajasthan Administration Ordinance (No.1 of 1949), 1949. Sec. 3 of this Ordinance runs as follows— "3 Continuance of existing laws— (1) All the laws in the force in any Covenanting State shall immediately before the commencement of this Ordinance in that State shall, until altered or repealed or amended by a competent legislature or other competent authority, in force in that State subject to the modification that reference therein to the Ruler or Government of that State shall be construed as a reference to the Rajpramukh or as the case may be, to the Government of Rajasthan. (2) In this section "Law" means any Act, Ordinance Regulation, rule, order or bye-law which having been made by a competent legislature or other competent authority in a covenanting State, has the force of law in that State." Thus it is clearly provided that all the laws in force in any covenanting State shall continue in force in that State until altered or repealed or amended by a competent legislature or other competent authority. The Rajasthan Laws (Application to Sirohi) Act, 1953 (Act No. III of 1953) deserves to be examined in this connection. The statement of objects and reasons which led to the introduction of the bill in the Legislative Assembly may be, which advantage, quoted in full— "Statement of Objects and Reasons. When the administration of a part of the former Sirohi State was delegated to the Government of Rajasthan, it was presumed that the Rajasthan Ordinances promulgated between the 7th of April, 1947(the date of formation of the present State of Rajasthan) and the 25th day of January, 1950 (the date just preceding the commencement of the Constitution) would automatically apply to that part and on the strength of that presumption action was taken under some of them. Recently however doubts have been expressed in that respect and it has become necessary with a view to removing these doubts and to having the same laws for administration in Sirohi as in other parts of Rajasthan, to make a clear declaration in that behalf by means of law. Recently however doubts have been expressed in that respect and it has become necessary with a view to removing these doubts and to having the same laws for administration in Sirohi as in other parts of Rajasthan, to make a clear declaration in that behalf by means of law. Hence the Bill, the provisions where are self expiatory." 5. It is thus made clear that the proposition that the laws of Rajasthan would apply automatically to all the territories that were added to the State of Rajasthan after the promulgation of those laws was found untenable and to ensure application of such laws to such territories an Act of the legislature was considered inevitable. 6. Sec. 3 and 4 which provide on the point run as follows — "3. Certain Rajasthan laws to apply to Sirohi The Rajasthan laws specified in the schedule to this Act shall, in so far as they relate to any of the matters enumerated in Lists II and III in the seventh Schedule to the Constitution of India, apply, and as from the appointed to day be deemed to have applied to Sirohi not withstand anything to the contrary contained in the Sirohi Administration Order, 1948, or in any other laws, or instrument: Provided that the application of such laws to Sirohi shall not be deemed to have rendered any person liable to any punishment or penalty under any such law in respect of anything done or omitted to be done by him before the commencement of this Act. 4. Repeal of corresponding laws— If, immediately before the appointed day, there was in force in Sirohi any law corresponding to any of the laws applied to Sirohi under sec. such law shall on the appointed day be deemed to have repealed.: 6. The learned counsel for the appellant has referred to the Chandranagar Merger Act, 1954 (No. 36 of 1954). The extension of India Laws to Chandranagar and repeal of corresponding laws and savings has been provided in secs. 17 and 18 of the Order Sec. 17 lays down that all the laws which immediately before the appointed day extend to or are in force of the State of West Bengal generally shall as from that day extend to or as the case may be come into force in Chandaranagar. Sec. 18 repealed the existing laws of Chandarnagar from the appointed day. Sec. 18 repealed the existing laws of Chandarnagar from the appointed day. It has been frankly conceded by the learned Government Advocate that no such provision has been made either in the Agreement made between the Rajpramukhs of Rajasthan and Madhya Bharat or in any subsequent enactment by the legislature of the State of Rajasthan. 7. A number of authorities on behalf of the appellant in support of the contention that the provisions of the Ordinance are inapplicable to the village Kethoda as it became a part of Rajasthan in 1950 and was not included in Rajasthan at the time of the promulgation of the Rajasthan (Protection of Tenants) Ordinance, 1949. We have examined carefully all of them and are of the opinion that only two of them deserve mention, the others being inapplicable to the present case. In AIR 1954 Madhya Bharat 78, (Babu vs. Parasram) a somewhat similar question arose for determination. The village Bedya having a Panchayat originally belonged to Madhya Pradesh and was transferred to Madhya Bharat by the Provinces and States(Absorption of Enclaves) Order, 1950. This order was published in the Madhya Bharat Gazette dated 26-1-50 and came into force on 20-1-50. On 24-1-50 one Parasram file a complaint against Babu and Sobharam under sec. 504 and 506 I.P.C. and a complaint under sec. 323 I.P.C. against Babu before Village Panchayat, Bediya. The Panchayat court convicted the accused who went up in appeal before the Additional Session Judge. The appeal was rejected and thereafter a revision was filed before the Madhya Bharat High Court. Their lordship after examining the entire case law and the general principals of international law were pleased to observe that— "In acceded territory, the old law continues until the new laws. As already stated the Government had not established any Panchayat for village Bediya in 1950. There was no provision similar to the proviso to sub-sec. 3 of sec. 1 for the newly transferred territory. The position, therefore, is that the new sovereign had not established any Nyaya Panchayat for Bediya in 1950. Until the constitution of the new Panchayat that is, 9-2-1952, the old Panchayat had a right to function in accordance with the principles of the international law. 3 of sec. 1 for the newly transferred territory. The position, therefore, is that the new sovereign had not established any Nyaya Panchayat for Bediya in 1950. Until the constitution of the new Panchayat that is, 9-2-1952, the old Panchayat had a right to function in accordance with the principles of the international law. On this ground also the jurisdiction exercised by the Nyaya Panchayat at Bediya cannot be said to be ultra vires." In AIR 1954 Orissa 101, Harihara Singh vs. Hariher Patnaik, a somewhat similar question was decided. The Orissa Tenants Protection Act was passed in 1948. To Khanda-para State, one of the States merged with Orissa, the Act was held applicable only with effect from 1-8-1949, under the provisions of Art III of the States Merger (Governors Provinces) Order, 1949. This Article provided that from the appointed date (1-8-1948) the States specified in the schedules attached to the order shall be administered in all respects as if they formed part of the Provinces specified in the heading of that schedule. The observations of their Lordships may be quoted as below— "(9) It will now be convenient to refer to the provisions of the Orissa Tenants Protection Act and see how for they are applicable to the merged State of Khandapara. The Act purports to provide temporary protection to certain classes of tenants in the Province of Orissa. This object has to be born in mind in interpreting sec. 2 which defines the term "tenant" to whom the Act would be applicable. Sec. 3 of the Act declares that a person who was cultivating any land as tenant on 1-9-47 shall not be liable to eviction and shall be entitled to continue to have the right to cultivate such land. I have already pointed out earlier than the State of Khandapara became merged in the Province on 1-8-1949 under the State Merger (Governors Provinces) Order 1949. It would be anomalous to hold that the Orissa Slate Legislature purported to legislate extra-territo-rially in respect of on area which did not form part of the Orissa Province till 1-8-1949 and gave protection to tenants in each areas with effect from 1-9-1947. The argument adduced by the opposite parties that the State Legislature being competent to enact laws with retrospective effect sec. The argument adduced by the opposite parties that the State Legislature being competent to enact laws with retrospective effect sec. 3 Orissa Tenants Protection Act should be held to have come into force in the merged State of Khandapara from l-9-l947,the date from which the Act is deemed to have operated, appears to me to be fantastic and deserves no consideration whatsoever." 8. Both these rulings clearly lay down the proposition that the laws of an absorbing unit cannot apply automatically to the enclave unless they are made expressly applicable and enforceable in that area by a competent authority. Shri Rupchand Sogani was appointed amicus curiae in the case and he has spared no pains in assisting us by placing all the relevant case law and the views of eminent jurists before us. On page 37 of A Manual of International Law, by George Schwarzenberger, 1959 Edition, while dealing with the subject of continuity of States and States succession, learned author has observed that— "the successor State may claim any State property in the territory over which it acquires sovereignty. On the other hand private rights and the civil law of the former sovereign continue in existence unless the successor State expressly introduces its own system of private law(in contrast to public law which automatically charges on transfer of sovereignty.") It has been contended that the Rajasthan (Protection of Tenants) Ordinance, 1949, may be deemed to be a public law and hence it should be regarded to have been automatically enforced in the territory in question. As laid down in para 2, Appendix III, of Salmonds Jurisprudence "Public law comprises the rules which especially relate to the structure,powers, rights and activities of the State. Private Law includes all the residue of legal principles. It comprises all those rules which specifically concern the subject of the State in their relations to each other, together with those rules which are common to the State and its subjects. Public law is therefore not the whole of the law that is applicable to the State and its relations with its subjects but only those part of it which are different from the private law concerning the subject of the State and their relations to each other." By applying this test, the Rajasthan (Protection of Tenants) Ordinance, 1949, would obviously be within the purview of private law. It provides a speedy and expeditions remedy for certain tenants who may be wrongfully dispossessed from their holding. In other words, it is a law concerning the subjects of the State and their relations to each other. It cannot therefore be regarded as a public law. It being a private law shall be deemed to be enforced in the enclave only when expressly declared to be so by the absorbing unit. 9. Shri Rupchand Sogani cited the case of Mayor of Lyons vs. The East India Company, reported in Volume I page 175, Moores Indian appeals. It was held therein that the introduction of the English Law into a conquered or ceded country does not draw with it that branch which relates to aliens if the Acts of the powers introducing it show that it was introduced not in all its branches but only sub-modo and that with the exception of this portion. This decision does in a way, as far as it goes, support the contention put forth on behalf of the appellant. 10. A.I.R. 1953 Madras 647, The Masulipatnam Municipality vs. Movvachandrika, has also been cited in this connection by Shri Rupchand Sogani. In this case the right of Masulipatnam Municipal council to levy taxes was questioned on the ground that the property was situated is French pet, that it was never included in the Municipality of Masulipatnam and that the procedure laid down for inclusion under sec. 4 District Municipalities Act was not complied with. As pointed out by their lordships, in 1935, for the first time doubts arose whether the British Indian Court at Masulipatnam had jurisdiction to try an offence which occurred in French pet. An adjournment in that case was obtained to secure a declaration from the Secretary; of State for India regarding the status of the territory in question The Advocate General obtained from the Foreign and Political Department of the Government of India G. D. F. 24. X/35 dated 5-3-35 and the same was communicated to the High Court. This communication was treated as final and the area known as French pet was treated as part of the territories under the dominion of the British Crown. X/35 dated 5-3-35 and the same was communicated to the High Court. This communication was treated as final and the area known as French pet was treated as part of the territories under the dominion of the British Crown. Their lordships were pleased to observe as follows;— "(3) One would have thought therefore that the question whether this Logo was or was , not part of British territory became final by the communication of the Political Department which was accepted by this High Court in 1935, but for the fact that the learned Subordinate Judge in the present case thought that this is of no consequence as it may be a mere paper declaration without effect being given to it. After the declaration of independence in 1947, the provisions of the Government of India Act were amended so as to make them applicable to the altered circumstances that India became a Dominion. Under S. 290, Government of India Apt, as amended, to clear all doubts the Government of India issued a notification which is styled as the Madrass (Entries) Order, 1948." After noticing the various provisions of the Order, their lordships made the following observations which provide clear guidance on the point at issue:— "(6) The exact date when this area became part of British territory in my opinion is irrelevant for on either hypothesis the area formed part of the Municipality. If before the District Municipalities Act, 1920 came into force, the area part of the Bandar town, as British territory the procedure laid down by S. 4 DistrictMunicipalitiesAct,cannot obviously be applied because the provisions of that section are prospective in their operation and not retrospective. If, nowever, the taking over of possession by the British Government was subsequent to the Act of 1920, then the provisions of S. -4 would not apply to an area which was not till then British territory. It applies only to areas which are subject to the jurisdiction of Provincial legislature could have enacted a law. When the possession was taken over, the British Government could make provision for its administration also and extend the operation of the laws which till then applied to what was Bandar town to the newly added area............" 11. It would, therefore appear that unless the laws are extended expressly, the existing Jaws in the enclaves would continue unaltered. When the possession was taken over, the British Government could make provision for its administration also and extend the operation of the laws which till then applied to what was Bandar town to the newly added area............" 11. It would, therefore appear that unless the laws are extended expressly, the existing Jaws in the enclaves would continue unaltered. To conclude therefore, we hold that the authorities cited by the learned counsel for the appellant make it abundantly clear that the provisions of the Rajasthan Protection of Tenants) Ordinance, 1949, cannot apply to the enclaves in question for the obvious reason that these became part of the territory of Rajasthan after the promulgation of the Ordinance, and that the laws of Rajasthan have not been made applicable to that area as yet. The principles of international law, as discussed above, also support this conclusion. The cases cited by the learned amicus curiae on a careful examination also corroborate this view. We would, therefore, answer the reference in the negative and hold that the provisions of the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949)are inapplicable to the enclaves which have formed part of Rajasthan by virtue of the agreement made between the Rajpramukh of Rajasthan and Madhya Bharat.