Rajasthan High Court - Jaipur
Madan Singh And Ors. vs Collector Sikar on 16 April, 1953
Equivalent citations: AIR1954RAJ104
JUDGMENT Sharma, J.
1. These are 105 petitions filed by various state grantees and cultivators of the territories included in the former Jaipur State, which have now been included in the Districts of Jaipur, Jhunjhunu, Sawai Madhopur, Sikar and Tonk of the present State of Rajasthan. In the year 1947 the then Jaipur State passed an Act known as the Jaipur District Boards Act, 1947 (hereinafter to be referred to as the Act). This Act came into force on " 3-10-1947.
2. Section 3 of the Act provided as follows:
"(3) (i) There shall be one Board of every District or any area which the Government may by notification in the Jaipur Gazette, declare.
The jurisdiction of the Board shall not extend to Town Municipalities."
(ii) Every Board shall be a body corporate by the name of "the (name of district) district board" and shall have perpetual succession and a common seal and shall be vested with the capacity of suing and being sued in its corporate name, of acquiring, holding and transferring property, moveable or immovable, and of entering into contracts."
3. Under Section 4 of the Act every Board was to consist of (a) elected members and (b) such persons as might be nominated by the Government. It was also provided in the said section that the number of elected members was not to be less than two-thirds of the whole Board.
4. On 4-10-1948 while the erstwhile Jaipur State was still in existence an amendment was passed by which a new Section (Section 4-A) was added to the Act and it ran as follows:
"4-A (1) The Government may, pending the formation of the Board under Section 4, constitute provisionally for any area a Board consisting wholly of members nominated by the Government.
(2) The term of a Board constituted under Sub-section (1) shall be two years or until a Board consisting of both elected and nominated members is formed under Section 4, whichever period may be less."
5. By Section 2 (6) of the Amendment Act which will hereinafter be referred to as the First Amendment Act "District" was denned as follows:
"District" means a district constituted under Sections 18 and 19 of the Jaipur Land Revenue Act, 1947, and includes any area which the-Government may, by notification in the Jaipur Rajpatra declare to be a district for the purposes of this Act, but does not include any portion thereof which is a municipality under the Jaipur State Town Municipalities Act, 1943, or the City of Jaipur Municipal Act, 1943."
6. In accordance with the Act four District Boards were constituted, one for each of the following Districts of the then Jaipur State;
1. Sawai Jaipur.
2. Sawai Madhopur.
3. Jhunjhunu.
4. Malpura.
7. After the merger of the then Jaipur State with the present State of Rajasthan, the District of Malpura was abolished and its area was divided between the newly formed Districts of Tonk and Sikar. Resolutions had been passed by the Dis-tricb Boards of Jaipur, Jhunjhunu, Sawai Madhopur and Malpura when the former Jaipur State was in existence for the levying of the cess in accordance with Section 31 of the Act. After the present Rajasthan State came into being the District Board of Sikar and Tonk as well as of Jaipur, Sawai Madhopur and Jhunjhunu proceeded to realise the cess from the petitioners of petitions Nos. 19, 20, 22, 28, 29. 30, 33, 35, 38, 37, 45, 52, 53, 57, 60, 61, 62, 67, 68, 69, 71, 72, 81, 84, 85, 86, 87, 89, 92, 104, 105, 109, 111, 114, 117, 122, 123, 126, 127, 132, 148, 149, 153 and 162 of 1952. They filed these petitions in this Court under Article 226 of the Constitution of India for a writ of 'certiorari', 'prohibition', 'quo-warranto', 'mandamus' or any other appropriate order or direction against the collectors of each of these five Districts, Tahsildars of the Tahsils concerned, and the District Board concerned. For the sake of brevity, I will call all these petitions collectively petitions of Group A in this judgment and shall further sub-
divide them District Board-wise into the following sub-groups of Group A:
1. District Board Jaipur SUB-GROUP A-JUDGMENT Petitions Nos. 28, 29, 33, 45, 52, 53, 57, 60, 61, 67, 81, 84, 85, 86, 87, 92, 104, 105, 111, 117, 123, 127 and 162 ot 1952.
2. District Board Sawai Madhopur SUB-GROUP A-SM Petitions Nos. 30, 35, 36, 132, 148 and 149 of 1952.
3. District Board Sikar SUB-GROUP A-Commissioner Petitions Nos. 19, 20, 22, 62, 72, 126 and 153 Of 1952.
4. District Board Tonk SUB-GROUP A-T Petitions Nos. 37, 69 and 122 of 1952.
5. District Board Jhunjhunu SUB-GROUP A-JH Petitions Nos. 68, 71, 89 and 114 of 1950.
6. District Board Sawai Madhopur and Tonk SUB-GROUP A-Sm and T Petition No. 109 of 1952.
8. In all these petitions the common grounds on which the validity of the cess has been attacked are principally as follows:
1. The District Boards were not properly constituted as all the members were not appointee at the time of their constitution. Some of the members were added afterwards.
2. The Chairman was not appointed first as a member at the time of the nomination of other members. The appointment as a Chairman without being a member first was illegal,
3. No resolution with the previous sanction of the Government was passed or published in the Jaipur Gazette regarding levy of cess as required under Section 31 of the Act and Clause (4) of the Cess Rules made thereunder.
4. The Cess was not levied according to the procedure prescribed by law.
5. The members and the Chairman are required to be appointed by name under the Act but some of them were not appointed by name but only by the post which they held under the Government.
9. On behalf of the respondents replies were filed and it was asserted that all the five District Boards were validly constituted and the cess was imposed in accordance with the provisions of the Act. It was also pleaded that the various writs sought for could not be issued in the cases and that an alternative remedy being available in the shape of a Civil suit the petitioners had no right to file the petitions. It was further pleaded that the petitioners were all Jagirdars who had not to pay the cess out of their own pockets but were entitled to realise it from the tenants. They were therefore, not persons sufficiently interested to bring the petitions. It was also pleaded that the fact that the Chairman or some of the Members were not notified in the Gazette by name but by the post they held under the Government did not render the constitution of the Boards invalid.
In the case of the District Boards of Sikar and Tonk, an additional ground was taken by the petitioners that the District Boards of these Districts were not the same as the District Board of Malpura and they could not be called the successors of Malpura District Board and were, therefore, not entitled to realise the cess imposed by Malpura District Board. To this it was replied by the respondents that by a notification of the Rajasthan Government dated 18-7-1950 published in the Rajasthan Gazette dated 22-7-1950. Malpura District Board was dissolved and in its place the two District Boards of Tonk and Sikar created and a part of the area of the former Malpura District Board was included in Tonk District and another part in the Sikar District Board. The District Boards of Sikar and Tonk were, therefore, the successors of the former District Board of Malpura and could realise the cess levied by the Malpura District Board.
The 44 petitions mentioned above were heard on 17 and 19-9-1952 before this very Bench and it was very vehemently argued on behalf of the petitioners that under Section 31 of the Act it was necessary that the sanction of the Government should be obtained before the levying of the cess which (could be levied by a resolution after the sanction of the Government had been given. As in these cases no resolution was passed by the District Boards concerned after the according of sanction by the Government, the District Boards had no right to collect the cess.
Judgments were reserved in all the petitions and before they could be delivered applications were made on behalf of the respondents in the cases relating to Sikar and Jhunjhunu District Boards that after the sanction of the Government, resolutions levying cess had been passed by the District Boards concerned and so the defect, if at all, had been removed and praying that the cases be decided after taking into consideration the said resolution. These applications were made on 3-10-1952. Thereafter, a motion was made on behalf of the respondents that Section 31 of the Act had been amended so as to obviate the necessity of passing a resolution after the sanction of the Government and that the amendment was to have retrospective effect and it was prayed that the petitions be, decided in accordance with the latest amendment and if necessary parties be heard on the point.
It was also moved that by another provision in the same amendment Act (hereinafter to be referred to as the Third Amendment Act) newly constituted Boards in respect of any area or vested with jurisdiction over any area under Sub-section (1) of Section 3 (a) had been invested with the powers to collect all such cesses, realise all such amounts and do all such acts as were being exercised, collected, realised and done in such area by the previously existing Board, if any, immediately before such constitution or vesting as aforesaid. This amendment had also retrospective effect and affected the petitions filed before the amendment, and should also be consequently taken into consideration.
Objections were filed on behalf of the petitioners that the amendments relied upon by the respondents had neither retrospective effect nor could be taken into consideration at the stage they were sought to be relied upon. Another objection was also taken that the Act itself was void being repugnant to Arts. 13 and 14, Constitution of India. A date was, therefore, fixed for re-hearing of the petitions.
10. Some time before the arguments were heard in the petitions of Group A some petitions had been filed but they were not heard along with the petitions of Group A because they were not ripe for hearing. After the hearing of the petitions of Group A but before the Amending Ordinance was published in the Rajasthan Gazette (Extraordinary) dated the 4-10-1952 which had the same provisions as the Third Amendment Act some more petitions were filed. All these petitions will be referred to collectively as petitions of Group B, and District Board-wise they will be referred to as follows :
GROUP B.
1. DISTRICT BOARD JAIPUR.
sub-Group B-J. Petitions Nos. 140, 203, 223, 224, 242, 24G, 247, 274, 282, 288, 295, 345, 347 and 438 of 1952.
2. DISTRICT BOARD SAWAI MADHOPUR.
Sub-Group B-SM.
Petitions Nos. : 187, 204, 268, 287 and 388 of 1952.
3. DISTRICT BOARD SIKAR.
Sub-Group B-S. Petitions Nos. : 289, 290, 291 and 329 of 1952.
4. DISTRICT BOARD TONK Sub-Group B-T. Petitions Nos. : 219, 348 and 391 of 1952.
5. DISTRICT BOARD JHUNJHUNU.
Sub-Group B-Jh.
Petition No.: 333 of 1952.
6. DISTRICT BOARD JAIPUR & S. MADHOPUR.
Sub-Group B-J £ SM.
Petition No.: 193 of 1952.
7. DISTRICT BOARD S. MADHOPUR & TONK.
Sub-Group B-SM & T. Petition No.: 206 of 1952.
11. After the passing of the above Amending Ordinance which was in the same terms as the Third Amendment Act, the following petitions were filed. They shall be referred to collectively as petitions of C Group and District Board-wise as follows :
GROUP C.
1. DISTRICT BOARD JAIPUR.
Sub-Group C-J. Petitions Nos. : 455, 520, 673, 674, 682, 683, 711 Of 1952., 1, 27, 29, 48, 53, 58, 94 and 112 of 1953.
2. DISTRICT BOARD SAWAI MADHOPUR Sub-Group C-SM.
Petitions Nos. : 451, 454. 575, 648, 732 Of 1952 and 41 of 1953.
3. DISTRICT BOARD SIKAR.
Sub-Group C-S. Petitions Nos. : 531 of 1952, 52 and 59 of 1953.
4. DISTRICT BOARD TONK.
Sub-Group C-T. Petition No. : 51 of 1953.
5. DISTRICT BOARD JHUNJHUNU.
Sub-Group C-Jh.
Petitions Nos. 450, 452, 453, 456 and 664 of 1952.
6. DISTRICT BOARD JAIPUR, S. MADHOPUR. & TONK.
Sub-Group C-J. Sm. & T. Petition No. 527 of 1952.
12. All these petitions of A, B and C group were heard together on 19-and 20-3-1953 and are being disposed of by this judgment as principal questions raised in all are the same.
13. Before I consider the arguments advanced by the learned counsel of parties, it would be more convenient to give, a chronological list of the important events which have a bearing upon the present petitions ;
3-10-1947 : Jaipur District Boards Act passed.
4-10-1948 : First amendment of District Boards Act passed by which Section 4A was inserted providing for constituting provisionally for any area a Board consisting wholly of members nominated by the Government the term of which would be two years or until a Board consisting of both elected and nominated members was formed under Section 4 whichever period might be less.
16-10-1948: District Boards of Bawai Jaipur, Sawai Madhopur, Jhunjhunu, and Malpura constituted.
22-10-1948 : Rules framed under the Act 1-11-1948 : Rules published in the Gazette.
6-11-1948 : District Boards of Sawai Madhopur, Jhunjhunu and Malpura passed resolutions for levy of cess.
19-11-1948 : Proceedings of a meeting under the Chairmanship of Education Minister.
29-11-1948: Resolution dated 6-11-1948 published in the Jaipure Gazette mentioning that sanction of the Govt. had been accorded.
27-2-1949 : Jaipur District Board passed a resolution levying cess.
6-4-1949 : Resolution dated 27-2-1949 published in the Jaipur Gazette mentioning that Government sanction had been received.
8-11-1949: 2nd amendment of the Act passed Section 3 (a) added regarding constitution of Districts and inclusion and exclusion of areas. Another Section 4(a) also added, providing for provisional Boards consisting of all nominated members only. This amendment was made by the Rajpramukh of Rajasthan after the formation of the present State of Rajasthan.
22-7-1950 : Following five District Boards constituted :
1. Jaipur.
2. Jhunjhunu.
3. Sawai Madhopur.
4. Sikar.
5. Tonk.
Malpura District Board abolished. List of members of District Boards given. 21-10-1950: An Official member added and made Chairman.
25-8-1951 : Above District Boards abolished. New Boards with new members constituted.
17 & 19-9-52 : Petitions of Group A heard.
24-9-1952 : Resolution levying cess passed by Sikar District Board.
25-9-1952 : Government sanction accorded to Sikar Resolution dated 24-9-1952.
1-10-1952: Resolution levying cess passed by Jhunjhunu District Board.
1-10-1952 : After the sanction of the Government resolution for levy of cess passed by District Board, Sikar.
4-10-1952: Amendment of the Act passed by the Jaipur District Boards Act Amendment Ordinance No. 3 of 1952 by which Section 31 was amended and a new Section 59 was inserted.
17-11-1952 : Jaipur District Boards Act (Amendment) No. 24 of 1952 passed with the same provisions as those of amendment Ordinance No. 3 of 1952.
14. From the arguments of the learned counsel for the parties the following points emerge for decision :
1. Whether the District Boards in question were validly constituted?
2. Whether the Act, the Amending Ordinance or the Third Amendment Act is void being repugnant to Arts. 13 and 14, Constitution of India?
3. Whether those petitioners who are State Grantees have sufficient interest to file the petitions?
4. Whether Section 31 of the Act, as it stood before the Amending Ordinance and the Third Amendment Act, made it obligatory that the sanction of the Government ought to be obtained first and thereafter a resolution passed by the. Board levying cess?
5. Whether in view of the amendment made in Section 31 by the Amendment Ordinance and the Third Amendment Act it is not necessary to obtain Government sanction first and then pass a resolution levying the cess?
6. Whether the amendments made by the Amending Ordinance and the Third Amendment Act have retrospective effect? If so, whether they affect even those petitions which were filed before the Amending Ordinance and the Third Amendment Act came into force i.e., the petitions of Group A & B?
7. Whether the District Boards of Sikar and Tonk could validly realise the cess levied by Malpura District Board?
8. Whether by the passing of the resolution dated 1-10-1952, the District Boards of Sikar and Jhunjhunu validated the levying of cess?
9. Whether there was any effective and adequate alternate remedy available to the petitioners. If so, are the petitions to be rejected on this ground alone?
10. What relief, if any, are the petitioners or any of them entitled to?
15. Point 1. : It was argued on this point by Mr. V. P. Gupta appearing on behalf of the petitioners that it was necessary under the Act that all the members of the District Board should be appointed at one and the same time and not at different times, and that the Act also requires that the Chairman should be first appointed a member and then he should be appointed Chairman. Further, it was argued that the members should be appointed and notified by names and not by their offices which they hold under the Government. In the present cases all the members were not appointed at one and the same time but at different times and the Chairmen were not appointed members first before being appointed Chairmen. Moreover, some of the members were appointed and notified by the offices they held under the Government and not by their names. The Boards were therefore, not validly constituted.
16. It was argued by Mr. D. M. Bhandari on behalf of the respondents that it was not necessary that all the members of the District Board should be appointed at one and the same time and that there was no prohibition against the members being appointed at different times. It was also argued that there was no bar to the members being appointed 'ex-officio' and that Section 15, Jaipur General Clauses Act, 1944, which applied to the Act lays down that where, by any Act or Regulation, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly pro-
vided, any such appointment may be made either by name or by virtue of office. Nothing is otherwise expressly provided in the Act so far as th& appointment of members is concerned, Members-could, therefore, be appointed either by their personal names or by virtue of their office. So far as the Chairman is concerned, there is an express provision under Section 16 of the Act that he may be appointed 'ex-officio'. The fact that some members, were appointed 'ex-officio' did not render the constitution of the District Boards invalid.
17. I have considered the arguments of both the learned counsel on this point. I do not find, any particular provision in the Act, according to which all the members should be appointed by their personal names and none can be appointed 'ex-officio'. According to Section 15, Jaipur General Clauses Act, which applies to the Act, unless there were otherwise expressly provided, power to appoint any person to fill the office of a member of a District Board could be exercised by the appointment either by name or by virtue of office. This power was exercised when some of the members were appointed by office. So far as the Chairman is concerned, he too could be appointed 'ex-officio' even if there were no express provision in the Act to that effect. But I find that this power is expressly conferred by Section 16(2) of the Act which provides that the Chairman may be appointed 'ex-officio'.
Reliance was placed on Section 11 of the Act in support of his contention by the counsel for the petitioners. That Section however, only provides that the names of all members finally elected to any Board as well as the names of the nominated members, if any, appointed thereto and the names of elected or appointed Chairman or Vice chairman shall be published as soon as convenient in the Gazette. Learned counsel for the petitioners argued that Section 11 does not say that the-nominated members shall be notified in the Gazette by their posts and it therefore, shows that their appointment is to be made and the notification to that effect published in the Gazette by their personal names. This argument does not appeal to me.
As regards a Chairman, there is an express provision that he can be appointed 'ex-officio' too. If a Chairman is appointed 'ex-officeo', it is only the name of the post which can be published in the Gazette and not his personal name. Section 11 uses the words "names of members......"
and not the names of all the persons or individuals nominated as members etc. Members and Chairman, as has been discussed above, can under the Act be appointed by their personal names or 'ex-officio'. In case, therefore, the members or Chairmen are appointed 'ex-officio', reasonable interpretation which can be given to the words "names of members........" can only be that in case members or Chairmen are appointed by their personal names their personal names shall be notified in the Gazette, but if they are appointed by the name of the office they hold, the publication shall be by the name of the office. In no other way can Section 16(2) of the Act be reconciled with Section 11.
It is a well-known principle of law that an Act should be read as a harmonious whole and every attempt should be made to reconcile one part of it with the other. If the narrow interpretation to the words "names of members......"
is given according to the suggestion of the learned counsel for the petitioners Section 16(2) will have no meaning and will be redundant. It is a well known principle of interpretation that no words tin a statute will be considered to be a surplus age unless an absurdity will follow from giving effect to them and that such sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent -- 'Craies on Statute Law, 1952 Edn. p. 99'. On the same page the learned author gives a quotation of Erle C. J. in -- 'R. v. St. John, Westgate and Elswick, Burial Board', (1862) 2 B & S 703 at p. 706 (A), Which is as follows :
"To reject words as insensible is the 'ultima ratio' when an absurdity would follow from giving effect to the words of an enactment as they stand."
Again there is a quotation of Lord Holt in --'Harcourt v. Fox', (1693) 1 Show 506 at p. 532 (B), which runs as follows :
"I think we should be very bold men, when we are entrusted with the interpretation of Acts of Parliament to reject any words that are, sensible in an Act."
It cannot be said that the provision in Section 16 (2) is absurd or insensible. It cannot, therefore, be rejected as such. The presumption is against its being a surplusage. Every attempt should, therefore, be made to reconcile it with Section 11. It would not be doing any violence to the language of Section 11 if it is reconciled with Section 16 (2) by interpreting the words "names of members, Chairman etc." as including the names of the offices, the holders of which have been nominated as members or Chairmen. The publication by the name of an office, therefore, was not in contravention of any provision of the Act and the Boards were not improperly constituted simply because those members and Chairman who were appointed 'ex-officio' were notified in the Gazette by the names of their offices and not by their personal names.
18. Coming to the next argument on this point that Chairmen ought also to have been appointed members and without being appointed members their appointment as Chairmen was invalid, the learned counsel for the petitioners argued that Section 16 clearly provides that the Chairman whether he is elected or appointed, must be a member of the Board. This is true but in the present case, I find that the Chairmen were appointed members also . In the Jaipur Gazette (Extraordinary) dated 16-10-1948, a list of the members of the various District Boards has been published and in that list the Chairman is put at No. 1. There, of course, he is described as 'ex-officio' Chairman. But that is because in addition to his being appointed a member he was also appointed a Chairman. This is clear from the opening part which says that the list of the members is given below.
19. In the notifications made after the Rajas-than State came into being Collectors of the Districts of Jaipur, Sawai Madhopur, Jhunjhunu and Sikar were appointed members and the Chairmen of the District Board of their Districts whereas the Sub-divisional Officer of Malpura was appointed member and Chairman of the District Board, Tonk by two separate notifications. A notification No. F. 1 (1014) L.S.G./50/V, dated 18-7-1950, was published in the Rajasthan Gazette dated 22-7-1950 and the names of all the members who were appointed by their individual names have been given there. By another notification No, F. 1 (1014) L.S.G./50/II, dated 12-8-1950 it has been notified in the Rajasthan Gazette dated 21-10-1950 that the Collectors of Jaipur, Sawai Madhopur, Jhunjhunu and Sikar were appointed members of the District Boards of their Districts and the Sub-divisional Officer, Malpura, was appointed member of the District Board, Tonk.
There is yet another notification of the same date before the notification mentioned above in the same Gazette which is to the effect that the Collectors of Jaipur, Sawai Madliopur, Jhunjhunu and Sikar and Sub-divisional Officer of Malpura were appointed Chairmen of District Boards, Jaipur, Sawai Madhopur, Jhunjhunu, Sikar and Tonk respectively. Similar notifications have been published in the Rajasthan Gazette dated 25-8-51. Therefore the position has still more been clarified in the Gazette of Rajasthan that the Chairmen were also appointed members.
20. The argument, therefore, that the Chairmen were not appointed members falls to the ground. As regards the contention that all the members ought to have been appointed at one and the same time I do not find any, warrant in the Act for it.
21. I, therefore, hold that the District Boards in question were properly and validly constituted.
22. POINT NO. 2: Learned counsel for the petitioners argued that not only the Amending Ordinance and the Third Amendment Act, but also the Act itself is void as it is repugnant to Article 14, Constitution of India, inasmuch as, it gives District Boards, only to a part of Rajasthan with the consequence of saddling the State grantees and cultivators of that part with the liability to pay cess. It was argued that the Jaipur District Board Act applies only to the territories comprised in the erstwhile Jaipur State and not to any other part of Rajasthan. Wherever this Act applies, the State grantees and cultivators are liable to pay cess. The legislation is, therefore, discriminatory in character.
Learned counsel for the respondents argued that first of all this objection was not taken in the petitions and secondly, the legislation is not discriminatory. There is, a reasonable basis for classification inasmuch as the inhabitants of the erstwhile Jaipur State had the privilege of enjoying the benefits of Local Self-Government by virtue of the Act and consequently, they had the liability to pay cess for carrying on these institutions. District Boards had existed in the erstwhile Jaipur State even before the Rajasthan State came into being and there was no reason why those parts of Rajasthan which had enjoyed these self-governing local institutions should be deprived of those institutions after the formation of Rajasthan State simply because other parts had not those advantages.
I have considered the arguments of both the learned counsel. The objection put forward in the arguments has not been taken in so many words in any of the 105 petitions. In the petitions of Group A, there is no whisper about any discrimination. In the majority of the petitions of Group B and Group C too, there is no such suggestion. In petitions Nos. 450, 520, 673 of 1952 and 48 of 1953 of C Group, objection has been taken that the Cess Rules offend against the provisions of Article 19. This is quite different from saying that the Act offends against the provisions of Article 14 because Article 19 does not say anything about discrimination, but provides protection of certain rights regarding freedom of speech, acquiring, holding and disposal of property etc. It has not been argued at the Bar that Article 19 has any application to any of the cases.
In petitions Nos. 51, 53, 94 and 112 of 1953, the ground which has been taken is that the amendment is against law and constitution. There is no objection that the Act itself is against law and constitution. Then there is no mention as to what particular provisions of the Constitution have been contravened by the Amending Ordinance and the Third Amendment Act, Thus, the position is not clear that the petitioners wanted to set up a case of the Act being repugnant to the provisions of Article 14, Constitution of India. In petitions Nos. 187 and 388 of 1952 of Group B only, objection has been taken that the Act is discriminating. Even there, it has not been said that the Act offends against the provisions of Art, 14, but we may not be so technical and it may be taken that in these two petitions only, objection has been taken that the Act offends against the provisions of Article 14.
22a. The only argument put forward is that the Act applies only to those parts which formerly comprised Jaipur State and does not apply to any other part 'of Rajasthan. The Act creates the liability to pay cess upon the State grantees and cultivators of those parts only to which it applies. Thus there is a discrimination between the citizens of one part of Rajasthan State and those of other parts because whereas particular classes of one part are liable to pay cess under the Act those very classes' of other parts are not. Reliance was placed upon the case of -- 'Mancharsinghji v. State of Rajasthan', AIR 1953 Raj 22 (C). In that case, three ordinances Nos. 27 of 1948, 10 and 15 of 1949 of the former Rajasthan State were the subject-matter of attack by the petitioners on the ground that under those Ordinances, the former state of Rajasthan assumed the management of the 'jagirs' including the 'jagir' of the petitioner R. S. Manoharsinghji.
It was alleged that these three ordinances were 'ultra vires' of the Constitution as they discriminated between the 'Jagirdars' of one part of Rajasthan and those of others, inasmuch as, the 'Jagirs' of the 'Jagirdars' in the territories comprised in the former State of Rajasthan were taken in State management while those of the other parts were not taken. It was held by a Division Bench consisting of the Hon'ble the Chief Justice and Bapna J. on a review of a number of cases of the Supreme Court of the United States of America bearing upon the 'equal protection of law clause' of the 14th Amendment of the Constitution of the United States of America which is in the same words as 'the equality before law clause' of Article 14, Constitution of India that there was no reasonable basis for discriminating between the 'jagirs' of the former State of Rajasthan and those of other parts of the present State of Rajasthan. It was, however, observed that:
"If there is some reasonable basis for a classification based on any reasonable differentiation, it is permissible for a State to have different laws in different parts of it. But the basis must be reasonable and the law must not discriminate purely arbitrarily."
"It is possible to have a classification based on geographical distribution but such distribution must be based on the particular needs of that geographical area which are distinct and real as compared to needs of the remaining geographical area."
It was further observed that "If the Ordinances in question can be justified with regard to the welfare of all classes of a particular territory or jurisdiction, that would give a reasonable basis for classification and the Ordinances would not be hit by Article 14 of the Constitution."
The facts of that case are quite distinguishable from the facts of the present case. There is a, reasonable basis for classification in the present case, inasmuch as, the District Boards had been in existence in the erstwhile Jaipur State before-the present Rajasthan came into being. The District Boards are local self-governing institutions and the inhabitants of the area where District Boards are in existence have got the privilege of self-Government in many matters. There must be some funds to carry on the self-governing Institutions and their purposes. For that the Act provided for the cess. The liability to pay cess arises from the privilege of self-Government in, matters provided for by the Act. It is a sign of advancement that local self-governing institutions existed in certain parts.
Among the directive principles the Constitution of India has provided under Article 40 for the organisation of village 'panchayats' and endowing them with such powers and authority as may be necessary to enable them to function as units of self-government. When the Constitution envisages the organisation of self governing institutions even in villages, to abolish the District Boards which are self governing institutions for a whole District from those parts where they existed, simply because other parts have not got them, would be a ' retrograde step and would be against the spirit of the Constitution. It is, therefore, but fair to continue these self governing institutions wherever they existed before the present State of Rajasthan came into being. There is thus a reasonable basis for maintaining District Boards in those parts where they had existed since before the State of Rajasthan came into being.
23. It was held in the case of -- 'Prank J. Bowman v. Edward A. Lewis', (1878) 101 US 22 (D) that "A State may, if it please, establish one system of law in one portion of its territory, and another system in another; provided, always, that it does not encroach upon the proper jurisdiction of the United States, and does not abridge the privileges and immunities of citizens of the United States, nor deprive any person of his rights without due processes of law, nor deny to any person within its jurisdiction the equal protection of the laws in the same district."
In that case the Constitution and laws of Missouri provided:
"A Court called the St. Louis Court of Appeals had exclusive jurisdiction, in certain cases, of all appeals from the circuit courts in St. Louis and some adjoining counties, the Supreme Court had jurisdiction of appeal in like cases from the circuit courts of the remaining counties of the State."
It was held that "this adjustment of appellate jurisdiction was not forbidden by anything contained' in the 14th Amendment."
as the State had full powers to make political sub-divisions of its territories for municipal purposes and to regulate their local Government including the constitution of Courts and the extent of their jurisdiction.
24. In the case of -- 'S. H. Williams v. Arthur E. Eggleston', (1897) 170 US 304 (E), five towns of Hartford, East Windsor, Glastonbury, Manchester and South Windsor in the State of Connecticut were put into a class by themselves and organised in a single municipal corporation and separated from other towns in the State by being subjected to different control in respect to highways. This placed these five towns under an obligation to assist in the construction of a new bridge. The Board of Commissioners of the District composed of all the above towns, having expended a certain sum in the ordinary support and maintenance of the bridge passed a resolution apportioning the amount between these five towns and drew a warrant for the sum of $ 15 on the town of Glastonbury, its portion of the sum expended.
The treasurer of that town refused to pay the order, whereupon, the Board presented an application to the superior Court of Hartford county for an alternative writ of 'mandamus' against him. The treasurer pleaded 'inter alia' that the proceedings of the Board denied the equal protection of the laws under the 14th Amendment of the Constitution of the United States of America to the Town of Glastonbury. It was held that:
"the regulation of municipal corporations is a matter peculiarly within the domain of State control, that the State is not compelled by the Federal Constitution to grant to all its municipal corporations the same territorial extent, or the same duties and powers."
It was further held that "A municipal corporation is, so far as its purely municipal relations are concerned, simply an agency of the state for conducting the affairs of government, and as such it is subject to the control of the legislature. That body may place one part of the State under one municipal organization and another part of the State under another organisation of an entirely different character."
It was also held that "Whether territory shall be governed for local purposes by a country, a city, or a township organisation is one of the most usual and ordinary subjects of State legislation."
25. In the famous case of -- 'Charanjit Lal v. Union of India', AIR 1951 SC 41 (P), decided by the Supreme Court, it was held that "A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. Any classification which 3s arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed."
It was further held that "The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles."
26. In the present case, as has been said above, there is a basis for reasonable classification inasmuch as the parts of the present State of Rajasthan comprised in the erstwhile Jaipur State were considered to be fit enough to have local self governing institutions in the shape of District Boards under the Act. They had, therefore, the privilege of having self governing local Institutions before the present State of Rajasthan came into being. It is therefore, quite justifiable that the privilege they had from before may be continued even after the establishment of the present State of Rajasthan. The Constitution in its directive principles encourages the establishment of local self governing institutions. The Government of the State of Rajasthan is contemplating to extend such institutions to the entire State of Rajasthan. It, therefore, did not consider it proper to withdraw the privileges which had already been given to those parts which were formerly comprised in Jaipur State.
It cannot be said that in doing so it made unreasonable discrimination between these parts and other parts of Rajasthan. The guarantee of equal protection does not prevent the State from applying different laws or different systems of judicature to different parts or local conditions, for the clause does not secure to all persons the benefit of the same laws and same remedies. If the petitioners were not liable to pay the cess under the Act, they would have no grudge against the Act which gave to the inhabitants of the erstwhile State of Jaipur the benefit of self governing institutions like the District Boards, simply because for the privilege given by the Act, the petitioners have to contribute their mite to the upkeep of those institutions and for the carrying out of their purposes, it cannot be said that any unfair discrimination has been made between them and the inhabitants of other parts of Rajasthan.
The burden of showing that the classification, rests upon an arbitrary and unreasonable basis is upon the person who impeaches the law as being opposed to "equality before law clause". In, the present case, the petitioners have failed to show that the classification made by the Act rests upon an arbitrary and unreasonable basis. In fact all the petitioners excepting two, have not even alleged in their petitions that unfair discrimination has been made between them and the residents of other parts of Rajasthan. It cannot be said that there was no occasion for taking such an objection at the time those petitions were filed because the Amending Ordinance and the Third Amendment Act have been passed after they were filed.
The objection of unfair discrimination as appears from the arguments is not against the amendments but against the Act itself, as it originally stood before the Amendment Act. If the petitioners thought that the Act made any unreasonable discrimination it was their duty to have taken this objection in the petitions themselves. Even in the petitions filed after the amendments, it is only in two petitions in which an objection on the ground of unreasonable discrimination has been taken. As a matter of fact, neither the Act nor its amendments in question make any unreasonable discrimination between one part and another as has been discussed above. The objection is, therefore, futile and must be rejected.
27. Point No. 3 : Under Section 32(b) of the Act all sums due from tenants in areas other than 'khalsa' including the tenants of sub-grantees shall be recoverable from the grantees and remitted by them to the Government. Thus in the first instance, the cess has been made recoverable from the grantees. Of course, it has been provided that the State grantees shall be entitled to realise the cess from their tenants and the sub-grantees. It is however not necessary that the State grantees might be able to realise every pie of the cess from the tenants which they themselves might have to pay by virtue of Section 32 (b). Most of the tenants or at least some may not be financially able to recoup the loss to the State grantee which he might suffer on their account. Moreover, under Section 34 the State grantee is liable to contribute an amount equal to the aggregate of the amount of cess payable to by his tenants. Thus he has to pay an equal amount from his own pocket. It cannot, therefore be said that the State grantees have no interest to challenge the validity of the cess levied.
28. Point No. 4 : It was argued by Mr. H. P. Gupta for the petitioners that the opening words of Section 31 as it stood before the Amending Ordinance and the Third Amendment Act were as follows :
"With the previous sanction of the Government a Board shall levy by means of a resolution."
29. It was argued that it was clearly meant that the sanction of the Government should be obtained first and then by means of a resolution the cess should be levied. In none of the present cases sanction of the Government was obtained before the passing of the resolution. The case was just the reverse as the resolution was passed first and then the sanction of the Government was obtained. The resolution, therefore, had no iorce and cess could not be validly levied on its strength. A number of rulings were cited on behalf of the petitioners to show that in cases where the words "previous sanction" were used it was held that sanction received afterwards would not validate the act which required previous sanction. Some of the rulings relate to Section 197, Criminal P. C. , where the words "previous sanction" have been used.
It was argued that taxing legislation should be strictly construed and in cases of doubt advantage should be given to the subject. I need not refer to the rulings in which it has been held that taxing legislation should be strictly construed and benefit of doubt should be given to the subject, because it is a well known principle of law. Likewise, no help from any ruling is required in the interpretation of the opening part quoted above of Section 31 as it is quite clear and unambiguous. The words used are "previous sanction" and they are followed by the words "a board shall levy by means of a resolution." It is therefore quite clear that the Legislature meant that sanction of the Government should be obtained first and then a resolution should be passed levying cess. In the absence of strict compliance with this procedure the levying of the cess would not be valid.
It is clear that the resolution about the levying of the cess were passed by the District Boards of Sawai Madhopur, Malpura and Jhunjhunu on 6-11-1948. The sanction of the Government was given later on and was published in the Jaipur Gazette dated 29-11-1948. The sanction therefore followed and not preceded the resolution for the levying of cess. In the same way resolution for the levy of cess was passed by the Jaipur District Board on 27-2-1949 and the Government sanction was given later on and published in the Gazette of 6-4-1949. In the case of this District Board too the sanction followed and not preceded the resolution levying cess. The fact that a resolution was passed for the levy of cess and sanction of Government was also obtained would not make the levying of the cess valid if the procedure which as laid down in law was not followed.
In terms of Section 31 as it stood before the Amending Ordinance and the Third Amendment Act, a resolution ought to have been passed after the receipt of Government sanction. Taxing enactments have to be strictly construed and the benefit of doubt, if any, should be given to the subject and not to the taxing authority. I therefore find myself unable to agree with the arguments of learned counsel for the respondents that by receiving sanction after the passing of the resolution there was substantial compliance with the provisions of Section 31. It was argued by Mr. D. M. Bhandari that a meeting was held under the Presidentship of the Education Minister, Jaipur, who also held the portfolio of local self Government on 19-10-1948, and that the proceedings of that meeting showed that the Government had given its sanction and so the resolution of Jaipur District Board passed on 27-2-1949 was perfectly valid as having been passed after the sanction.
If any sanction of the Government can be gathered from the proceedings of 19-10-1948 it will only be the petitions of groups A-J, B-J and C-J and the petitions of Group C-J, S-M and T in part which would be affected. The proceedings in the first instance do not show that any sanction was given for the levying of the cess. Secondly only one of the Ministers of the Government participated in it and not the whole Cabinet. The only proceedings of this meeting which are relied upon is resolution No. 10 which only says that wide publicity of the resolution regarding recovery of the cess may be given in the district, and that soon after it is passed by the Board in anticipation of the Government sanction circulars to the Tahsildars, grantees, and sub-grantees may be issued to realise the District Board cess at the rate of one anna per rupee from the tenants along with the land revenue for the current 'siyalu.
This resolution only gives directions what: should be done after the passing of the resolution by the Board in anticipation of Government sanction. This does not show that the resolution itself amounted to sanction of the Government. Moreover, as has been said above, only one of the Ministers of the Government had no authority to give Government sanction. It was argued that every Minister was given the powers of the Government so far as the Departments under him were concerned by the notification published in the Gazette of 3-3-1949. This was however after the passing of the resolution as also after the meeting of 19-10-1948. Any sanction invalidly given, before 3-3-1949 could not be valid by virtue of the fact that afterwards the Minister was given the powers of the whole Cabinet.
It was argued that the proceedings of the meeting of 19-10-1948 were signed by the Secretary, Local Self-Government and therefore the resolution No. 10 ought to be considered sanction of the Government. This to my mind has no force. The secretary has only signed the proceedings of the meeting and he does not purport to issue any Government sanction. I am therefore unable to accept the argument that there is anything in the proceedings of 19-10-1948 from which valid Government sanction might be inferred. It was further argued that at least in the case of Sawai Madhopur, resolution about cess was passed by the Board on 23-1-1951. In the case of Sawai Madhopur of course, resolution was passed on 23-1-1951 after the sanction of the Government was received. This resolution is perfectly in order and as it was passed after the Government sanction was obtained it can be said to levy cess validly.
However, it was argued by the learned counsel for the petitioners that this resolution was not given publicity as required by Rule 4-A. The petitioners have taken an objection in their petitions that the subsequent resolution of 23-1-1951 was not published in the Gazette as required. Rule 4-A made under Section 48 of the Act required that the Board shall give publicity to the resolution inter alia by publication in the Jaipur Ra] Patra and a local newspaper, if any. The respondents failed to show that this resolution was published in the Gazette as required by the said rule. Therefore, no further proceedings can be taken on the strength of this resolution unless it is published in the Gazette as required in Rule 4-A. Till then the proceedings for realisation of cess which are in progress cannot be sustained, if Section 31 is to stand as it was before the Amendment.
30. Point No. 5.
After the hearing of the petitions of A group by this Bench judgment was reserved. Before judgment could be prepared the Rajpramukh of Rajasthan promulgated the Amending Ordinance and it was published in the Rajasthan Gazette (Extra-ordinary) - dated 4-10-1952. By Section 2 of this Ordinance an amendment was made in Section 31 of the Act, By this amendment for the words "with the previous sanction of the Government, a Board shall levy by means of resolution"
the following words were substituted:
"A Board shall levy, with the sanction of the Government."
31. The above Ordinance was followed by the Third Amendment Act which was published in the Rajasthan Gazette (Extra-ordinary) dated 17-11-1952. This Amendment Act also made the same amendment in Section 31 as was made by the Amending Ordinance. After the passing of the Third Amendment Act the respondents moved this court to decide the cases in the light of the amendments made. It may be noted that before this motion was made two applications had been made in the cases relating to the District Boards of Jhunjhunu and Sikar that resolution had been passed by each of these two Boards on 1-10-1952 after the sanction of the Government for levying cess, and, therefore, the cases might be considered in the light of these two resolutions.
This Bench considered it proper to give a hearing to the parties in the light of the two resolutions and the amendments made by the Amending Ordinance and the Third Amendment Act. As has been said earlier in this judgment at the hearing of the petitions of group A some other petitions could not be heard along with those petitions as they were not ripe for hearing. A number of petitions of group B had been made after the hearing of the petitions of group A but before the passing of the Amending Ordinances some petitions of group C were filed after the passing of the amending Ordinance & the rest after the passing of the Third Amendment Act. These petitions of group B and C were also heard at the time of the further hearing of the petitions of group A on 19 and 29-3-1953.
32. The first objection which was made by the counsel for the petitioners at this last hearing was that no notice should be taken of the resolutions and the amendments made during the pendency of the petitions of group A and that the petitions should be decided on the arguments made in September, 1952. This objection cannot in any case prevail so far as the petitions of group B and C are concerned, because they had not been heard before the passing of the resolutions in question or before the passing of the Amending Ordinance or the Third Amendment Act. As regards the petitions of group A which had been heard in September, 1952, too, I do not think we can shut our eyes to the change of law which had taken place before those cases could be decided because if that amendment makes the cesses in question valid we would not be justified in holding them to be invalid in face of the clear provisions of law.
33. In the case of -- 'Jones v. Rosenberg', 1950-1 All ER 296 (G)', arguments were reheard on account of the change in law after the 1st hearing and before the judgment could be pronounced and it was held that the court was at liberty to hear further arguments before judgment.
34. Coming to the amendment it was argued by the learned counsel for the petitioners that even after the amendment the position remained the same as before the amendment. It was argued that the words "a Board shall levy with the sanction of the Government" mean the same thing as the words "with the previous sanction of the Government, a Board shall levy". It was contended that by omitting the word "previous" before the word "sanction" the Legislature has not been successful in making the levy of the cess legal without the previous sanction of the Government. Reliance was placed upon the ruling in the case of -- 'Manak Chand v. Municipal Council of Jaipur', AIR 1951 Raj 139 (H).
On behalf of the respondent it was argued by Mr. D. M. Bhandari that the amendment has made a lot of difference. In omitting the word "previous" before the word "sanction" the Legislature had made it clear that it is not necessary to obtain previous sanction before passing the resolution levying cess. It was argued that it has been made still more clear by omitting the words "by means of a resolution" after the word "levy". The amendment now made makes it clear that for the levy of the cess the only thing which is necessary is that the sanction of the Government be obtained prior to passing of resolution levying cess or after it. As regards the ruling in the case AIR 1951 Raj 139 (H) cited by the counsel for the petitioners it was argued that provisions of Sections 77, 78 and 79, City of Jaipur Municipal Act on the basis of which it was held that previous sanction of the Government was necessary before passing a resolution levying tax were Quite different from the provisions of Section 31 of the Act as now amended.
35. I have very carefully considered the arguments of both the learned counsel. The amendment in question was made after the hearing of the applications of Group A in September, 1952. It is quite clear that the amendment was made with a view to obviate any difficulty which might be created by the language of Section 31 as it originally stood in the realisation of the cess in question. The preamble of the amending Ordinance recites:
"whereas circumstances exist which render it necessary further to amend the Jaipur District Boards Act, 1947, for the purposes hereinafter appearing; and whereas the Rajasthan Legislative Assembly is not in session etc."
The circumstances which are referred to were clearly the objections raised by the petitioners to the legality of the cess on the language of Section 31. The Legislature intended that before the judgment is delivered by this Court, it should come out with an amendment, which might obviate the necessity of previous sanction before passing a resolution levying cess and as the Assembly was not in session an Ordinance was promulgated. It was observed by their Lordships of the Privy Council in the case of. -- D. R. Praser & Co. Ltd. v. Minister of National Revenue', AIR 1949 PC 120 (I), "In tax legislation it is far from uncommon to find amendments introduced at the instance of the Revenue Department to obviate judicial, decisions which the department considers to be; attended with undesirable results.' Their Lordships further observed:
"When an Amending Act alters the language of principal statute, the alteration must be taken 'to have been made deliberately."
Their Lordships had to deal in that case with an amendment made by Section 10 of 1940 Cc) 34 in Section 4(1) (a), Dominion Income War Tax Act. Before the amendment the word "shall" was used in Section 4(1) (a) but by the amendment the word "may" was substituted in place of the word "shall". It was argued on behalf of the assessee that notwithstanding the substitution of the word "may" in place of the word "shall" the Minister was still under the obligation to make exemption, and deductions in the tax, and that the substitution of the word "may" in place of the word "shall" did not make it discretionary with the Minister to allow exemption and deduction on account of depreciation but he was bound to make some allowance.
Their Lordships, of course, came to the conclusion on the language of the Act as amended that the substitution of the word "may" made it discretionary with the Minister to allow any exemption or deduction. Their Lordships, however, also took into account the fact that in the case of -- 'Pioneer Laundry and Dry Cleaners Ltd. v. Minister of National Revenue', 1940 AC 127 (J), which related to a claim for depreciation, the Board had held that the assessees were entitled to a deduction for depreciation to such extent as the Minister might allow, and that the Minister had not properly exercised his discretion inasmuch as he had had regard to inadmissible consideration and that it was after this decision that the statute was amended.
36. Coming to the language of the amendment made by the Amending Ordinance and the Third Amendment Act it is significant that the word "previous" has been omitted before the word "sanction" and the words "by means of resolution" after the word "levy" have been omitted. It cannot, therefore, be said that Section 31 of the Act as amended makes it obligatory that the sanction of the Government must be obtained previously and then cess should be levied by means of a resolution. The only thing which has been made obligatory is to obtain the sanction of the Government. This sanction may be obtained before or after the passing of the resolution levying cess. If there is any ambiguity it is cleared by comparison of the language of Section 31 as it stood prior to the amendment and the language substituted by the amendment, and also the circumstances under which the amendment was made.
The amendment was deliberate and it was made with a view to obviate the difficulty created by the language of Section 31 as it originally stood. It cannot be said that the language of the section after the amendment clearly admits of one interpretation & one interpretation only, that is, that the sanction should be obtained before the passing of resolution regarding levy of cess. When there is no qualification attached to the word "sanction", it may be obtained before or, after passing the resolution regarding cess. If there is any ambiguity, assistance may be legitimately taken from the history of the legislation as well as the circumstances under which necessicy arose of the amendment in question.
I am clear in my mind that on the language of Section 31 as amended, under the circumstances of the case, it cannot be held that it was obligatory on the Board to obtain sanction of the Government before passing a resolution regarding levy-
ing of cess. If the resolution is sanctioned by the Government without any modification it becomes effective as soon as the sanction of the Government is obtained and published. Only in case there is modification by the Government, it may be necessary for the Board to reconsider the resolution in the light of the modification made in the Government sanction.
37. Learned counsel for the petitioners relied upon the ruling of a Division Bench of this court in AIR 1951 Raj 139 (H). The facts of that case were, however, different. The city of Jaipur Municipal Act under which the tax was levied made a provision under Section 78 for preliminary procedure before imposing the tax. The first step under the preliminary procedure was to pass a resolution at a general meeting selecting one or other of the taxes specified in Section 77 and prepare rules for the purposes of Clause (h), Section 62 prescribing the tax selected and certain things as for example classes of persons or property and amounts or rates etc. were to be specified in-such resolution and in such rules. After the passing of the resolution, rules so prepared were to be published with a notice in a form prescribed.
Within one month from the publication of the notice any inhabitant of the Municipality could object to the imposition of the tax or to the amount of rate proposed or to the classes of persons or property to be made liable thereto or to any exemption proposed. The Municipal Board was required to take such objections into consideration and unless it decided to abandon the proposed tax it was required to submit such objection with its opinion thereon and any modification proposed in accordance therewith, together with the notice and rules to the Government. On receipt of the opinion of the Municipal Board, the Government had a discretion to either refuse to sanction the rules submitted or to return them to the Municipal Board for further consideration, or if no objection, which was in its opinion sufficient, was made to the proposed tax within one month from the publication of the notice, to sanction the rules either without modification or subject to certain modifications or conditions.
After the action had been taken by the Government under Section 79, the Municipal Board was given power to impose any of the taxes allowed by the Act. There was thus an elaborate procedure for the imposing of the tax and on a consideration of it the Division Bench which decided that case came to the conclusion that a second resolution was necessary after the grant of the Government sanction. In Section 31 as amended by the present Act, no such elaborate procedure has been laid down and as has been said above, the only condition laid down is that sanction of the Government must be received for validating the cess. This sanction may be obtained after the passing of the resolution levying, tax.
38. I may also refer to another ruling cited by the learned counsel for the petitioners. It is of a Division Bench of Bombay High Court in the case of -- 'Emperor v. Shirinbai Sohrabji', AIR 1941 Bom 66 (K). In that case, however, in Section 48, Bombay District Municipal Act it was clearly provided that bye-laws had to be made with the previous sanction of the Commissioner. The word 'previous' is significant and the ruling has no application to the present case where the word "previous" has been deliberately omitted by the amendment made by the Legislature. It was argued by the learned counsel for the petitioner that even after the amendment, Rule 4 (a) of the rules made under the Act uses the words "when by a resolution passed with the previous sanction of the Government under Section 31 of the Act it is decided to levy a cess etc.", and these rules have the force of law. It should, therefore, be taken that the legislation did not mean to do away with the provision of obtaining previous sanction before passing the resolution levying cess. This rule was made before the amendment of Section 31 by the Amending Ordinance and the Third Amendment Act. On the language of Section 31 as it then stood this rule was correctly framed. However the fact that the Government which has been authorised to frame rules has not amended this rule in accordance with the amendment made by the Legislature will not affect the language of the amended Section 31. Rules are made for carrying out the language of the Act and they cannot control the language of the Act. This 'objection to my mind has, therefore, no force.
39. Point No. 6 : It was argued by learned counsel for the petitioners that even if it be taken that the amendment made in Section 31 by the Amendment Ordinance and the Third Amendment Act did away with the necessity of obtaining previous sanction of the Government and then passing a resolution levying cess, the amendment has no retrospective effect and did not consequently affect the invalidity of the cess in question. It was argued that every enactment is presumed to be prospective only unless there is any express provision making it retrospective or retrospectivity can be inferred by necessary implication. It was argued that there is no express provision in the Amending Ordinance or the Third Amendment Act making the amendment in Section 31 retrospective in its effect. The argument proceeded that the words used in Section 2 of the Amending Ordinance and the Third Amendment Act by which the amendment is said to have retrospective effect are "shall be, and be deemed always to have been, substituted."
These words, it was contended, do not make the amendment retrospective by necessary implication. Reliance was placed upon the case of --'Kanak Kanti v. Kripa Nath', AIR 1931 Cal 321 (L). In that case Bengal Tenancy Act, 1385 was amended by Act 1 of 1925 during the pendency of the case and a new provision Section 20, Sub-section 1A was introduced thereby. The new sub-section declared "A person shall be deemed ...... to have continually held land in a village ......" It was held that there were no words in the Act by which the sub-section was enacted, which may be construed as indicating an intention that the subjection was to control the section as it stood even before the sub-section was introduced. The observations in the case of -- 'Lachmeshwar Prasad v. Keshwar Lap, AIR 1941 FC 5 (M), made by Suleman J. were also relied upon.
40. On behalf of the respondent it was argued that the words "and be deemed always to have been substituted" clearly show by necessary implication that the Legislature intended to make the amendment retrospective in its effect. It was argued that whenever such words were used in an enactment it was held to be retrospective in its effect. The cases of -- 'West v. Gwynne', (1911) 2 Ch D 1 (N); -- 'Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District 1, Calcutta', AIR 1952 Cal 606 (O); -- 'Tika Sao v. Hari LaP, AIR 1940 Pat 385 (P); -- 'United Commercial Press Ltd. v. Satya Narain', AIR 1953 Cal 136 (Q) and AIR 1949 PC 120 (I) were referred to.
41. Learned counsel for the petitioners argued that even if the amendment be taken to have retrospective effect it cannot affect pending proceedings. For this too reliance was placed upon AIR 1931 Cal 321 (L) and observations of Suleman J. in AIR 1941 FC 5 (M) cited above. Learned counsel for the respondent also relied upon the last mentioned case for showing that the present amendment could affect pending proceedings as well.
42. I have to see first whether the amendment has any retrospective effect at all. If the answer to this question is in the affirmative, it has to be further seen whether the present proceedings are affected by it. The words used in Section 2 of the Amending Ordinance as well as the Third Amendment Act which seeks to amend Section 31 are "shall be, and be deemed always to have been substituted." So far as the words "shall be" are concerned they do not indicate any intention to give retrospectivity to the amendment. Had they stood alone the amendment would have certainly been prospective. The question however is what is the effect of the addition of the words "and be deemed always to have been". Literally the expression means that it would be taken that the words put in by the amendment had always existed in Section 31 in place of the words which were deleted, or in other words these words had existed from the very time Section 31 was enacted.
This clearly means that we have to read Section 31 since the very beginning as if it had contained the words "a Board shall levy, with the sanction of the Government" and never contained the words "with the previous sanction of the Government a Board shall levy by means of resolution." Thus by necessary implication the expression "be deemed always to have been" gives a retrospective effect to the amendment. It cannot be denied that it is within the power of the Legislature to give retrospective effect to any Act. In Craies on Statute Law 1952 Edn., the learned author says:
"If it is a necessary implication from the language employed that the Legislature intended a particular section to have a retrospective operation the courts will give it such an operation."
Observations are given of Lord Hetherely in --'Pardo v. Bingham', (1869) 4 Ch A 735 at p. 740 (R), on the same page which are as follows :
"Baron Parke did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed and said that the question in each case was whether the Legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the statute, and consider what was the former state of law, and what was that the Legislature contemplated."
In AIR 1953 Cal 136 (Q), definition of tenant in the West Bengal Rent Control Act of 1950 was amended by the West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950 which came into force on 30-11-1950. The Amendment Act provided that the new definition was to be deemed always to have been substituted for the original definition in the 1950 Act. Before the passing of the West Bengal Rent Control Act of 1950 and Amendment Act of 1950 a suit had been filed on 29-11-1949 for the ejectment of the tenant under the Rent Control Act of 1948 which was substituted afterwards by the West Bengal Rent Control Act, 1950.
By Section 4 of the Amendment Act it was provided that in all applications made under Sub-section (1) Section 18 of the Act of 1950 which were pending at the commencement of the Amendment Act and in all suits referred to in Sub-section (5) which were pending at such commencement, the said Act as amended by the Amendment Act shall apply and shall be deemed always to have applied. It was held that the expression "shall be deemed always to have applied" made it abundantly clear that the Act as amended shall apply as if the amendment was in the original Act as passed on 31-3-1950. Similarly the words "shall be deemed always to have been substituted" were taken to have given retrospective effect to the amendment In the definition of the term "tenant."
43. When by Act No. 10 of 1927, the definition of the word "attested" in Section 2, Transfer of Property Act was amended, the following words were used in the Amendment Act: "and shall be deemed always to have meant".
44. This expression was taken to give retrospective effect to the definition of the word "attested" provided by the Amendment Act by a Division Bench of the Madras High Court in -- 'Palanippa Chettiar v. Rajagopala Pandara-thar', AIR 1928 Mad 773 (S). This view was confirmed by a Full Bench ruling of Madras High Court in -- 'Veerappa Chettiar v. Subramanya Ayyar', AIR 1929 Mad 1 (T). In (1911) 2 Ch 1 ,(N), Bucbley L. J. observed that "if an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective."
In the present case, the words "shall be deemed always to have been substituted" clearly show that the Act provides that Section 31 of the Act shall be what it was not when it was enacted. The amendment is therefore clearly retrospective.
45. There is another amendment which has been made by the Amending Ordinance as well as the Third Amendment Act. This amendment has been made by Section 3 which adds a new Section 59. About this section also the words used are "and be deemed always to have been inserted". On the same ground on which the amendment of Section 31 has been held to be retrospective in its effect, the newly added Section 59 shall be taken to be retrospective in its effect and it will be assumed that it has been in the Act since the very beginning. The provisions of Section 59 will be discussed in connection with point No. 7.
46. It was argued by learned counsel for the petitioners that in any case the amendments did not affect the present petitions, because neither the Amending Ordinance nor the Third Amendment Act lays down that the amendment shall affect pending proceedings. So far as petitions of group C are concerned this argument does not at all apply to them, because they were filed after the Amending Ordinance which was confirmed by the Third Amendment Act. Therefore, in any case those petitions should be governed by the amendments in question. The question is only about the petitions of groups A and B. When it has been held that the amendments made by Section 2 as well as Section 3 of the Amending Ordinance and Third Amendment Act are to be considered to have existed in the Act since the very beginning, I do not understand why they should not affect the petitions of groups A and B as well.
In the case of 'K. C. Mukerjee v. Mt. Ramratan Kuer', AIR 1936 PC 49 (U) certain provisions of the Bengal Tenancy Act were amended by the Bihar Tenancy Amendment Act, 1934, when the appeal was pending before His Majesty in Council in that case. By the amendment two new Sub-sections (N) and (O) were added to Section 26. Subsection (N) ran as follows :
"Every person claiming an interest as landlord in any holding or portion thereof shall be deemed to have given his consent to every transfer of such holding or portion by sale, exchange, gift or will made before the first day of January 1923, and, in the case of the transfer of a portion of a holding, to have accepted the distribution of the rent of the holding as stated in the instrument of transfer, or if there is no such instrument, as settled between the transferor and the transferee."
47. It provided that in the case of a transfer made on or after 1-1-1923, but before the date of the commencement of the Act, the transferee may pay to the landlord or deposit with the Collector a transfer fee as therein particularised, and that upon his complying with this condition the consent of every person claiming an interest as landlord in the holding, or portion transferred shall be deemed to have been given to the transfer. This amendment was made after the case had been decided even by the High Court and when the appeal was pending before His Majesty in Council. It was held by their Lordships that unless some saving could be implied as regards occupancy holdings which at the date of the commencement of the Act were in question in a pending suit, Section 26 (N) must be applied to the case and the plaintiff's appeal must fail 'in limine'.
As in their Lordships' opinion no such saving could be implied the amendment was taken to apply to pending proceedings as well. Similarly, it was held that Section 26 (O) affected the case. In the present case amendment has been made not during any appeal but even before the case could be decided by this court. In my opinion, there fore, the amendments affected even the petitions, of groups A and B. In -- 'AIR 1941 FC 5 (M)', relied upon by the learned counsel for the petitioners, there is nothing to show that an Act with the provision "shall be deemed always to have been substituted" and "shall be deemed always to have been inserted" could not apply to pending proceedings.
On the other hand, in that case Bihar Money Lenders Act, 1939, which was passed during the pendency of appeal in the Federal Court and after the decision of the High Court was held to apply to the case even at the stage of Federal Court appeal. In -- 'AIR 1931 Cal 321 (L), relied on by the learned counsel for the petitioners, such expression as "shall be deemed always to have been substituted or inserted" was not under consideration. The only words used were 'a person shall be deemed ............ to have continually held land in a village' and this expression was not held to make the new enactment retrospective to this extent as to apply to the pending case. My view is that the amendments made by Sections 2 and 3 of the Amending Ordinance as well as the Third Amendment Act are retrospective in their effect and govern all the petitions whether they' be of group A, B, or C.
48. Point No. 7.
It has already been held in connection with Point No. 6 that the amendment made by Section 3 of the Amending Ordinance as well as the Third Amendment Act is retrospective in its effect and governs all the petitions of groups A, B, and C. The amendment made is that a new Section 59 has been Inserted and it provides that a newly constituted Board under Section 4 or Section 4-A in respect of any area or which has been vested with jurisdiction over any area under sub-section (1), Section 3-A, shall under the Act exercise all such powers, collect all such cesses, realise all such amounts and do all such acts as were being exercised, collected, realised and done in such area by the previously existing Board, if any, immediately before such constitution or vesting as aforesaid.
Whatever may be the position before this amendment was made, after this amendment which will now be taken to have been inserted in the Act from the very beginning the newly constituted Boards of Tonk & Sikar which include the areas formerly within Malpura District Board shall have all such powers of collecting cesses levied by Malpura Board and are authorised to realise all such amounts and do all such acts as were being exercised, collected, realised & done in such areas by the previously existing Board of Malpura. After the amendment, therefore, the objection of the petitioners that the District Boards of Tonk and Sikar had no power to realise or collect cesses levied by Malpura District Board loses all its force.
49. Point No. 8.
In view of my decision on points Nos. 2, 5 and 6 this point becomes only of academic importance, because even if resolutions were not passed over again by the District Boards of Sikar and Jhunjhunu on 1-10-1952 the previous resolutions after which sanction of the Government had been received -are enough for the valid levying of the cess. If, however, there were no amendments which have been made by the Amending Ordinance and Third Amendment Act I would not have considered the resolutions of 1-10-1952 sufficient to make the proceedings about the realisation of cess which started before the passing of that resolution valid, because in my opinion those resolutions could not have retrospective effect. Of cause the District Boards in question would have been perfectly entitled to take proceedings to enforce the levying of cess in pursuance of these resolutions after giving them due publicity as required by Rule 4-A of the Rules made under the Act.
50. Point No. 9.
In view of my decision on Points Nos. 2, 5 & 6 the decision on this point becomes unnecessary.
51. Point No. 10.
In view of my decision on point Nos. 2, 5, 6 and 7, the petitioners are not entitled to any relief.
52. All the petitions are dismissed. In the circumstances narrated in the opening part of this judgment I order parties to bear their own cost.
Wanchoo, C.J.
53. I have read the judgment of my brother Sharma J., and agree with him that all the petitions should be dismissed and the parties should bear their own costs in the circumstances.
54. As I was a party to the judgment in --AIR 1953 Raj 22 (C), I should like to say a few words about it. Learned counsel for the petitioners relies on that case for the argument that the Jaipur District Boards Act is invalid under Article 14 of the Constitution read with Article 13 as district boards only exist in one part of the State of Rajasthan and not in other parts. As was pointed out in -- 'AIR 1953 Raj 22 (C)', it is permissible for a State to have different laws for different parts of it, provided there is some reasonable basis for the classification based on any reasonable differentiation. The present State of Rajasthan has been constituted by merging a number of territories which were formely under Indian Princes and in various stages of development.
One such State was Jaipur, and it had obviously reached a higher stage of development, and there were district boards in that state, though there were no such boards in many of the other States. When, therefore, the present State of Rajasthan came into existence, district boards existing in the former Jaipur State continued, and apparently a difference arose between people living in the former Jaipur State, and in other parts of Rajasthan. But this difference, which was continued, was in, my opinion, rightly continued.
There was a reasonable basis for classification and the facts of this case are different from the facts of -- AIR 1953 Raj 22 (C). In that case, merely the right of collection of rents had been taken away, and there was no reasonable basis for making any classification as between the 'jagirdars' of one part of Rajasthan and those of others merely for the purpose of collection of rent. In this connection, I wish to emphasise that there can be justification for continuing different laws, and procedure in one part of the State as against others, provided a case can be made out for it.
55. In -- '(1878) 101 U. Section 22 (D)', the following observations were made with regard to the hypothetical case of annexation of a part of the Mexican State by the United States. Merger being more or less similar to annexation, these observations are, therefore, pertinent to the case before us. The learned Judges of the Supreme Court of the United State were considering whether there was any justification for continuing different jaws and procedure in one part of the State which might have been annexed as compared to other parts, and made the following observations:
"It (differentiation) would not be based on any respect of persons or classes, but on municipal considerations alone and in regard to the welfare of all classes within the particular territory or jurisdiction".
56. As has been pointed out by my brother Sharma J., constitution of district boards confer red powers of local self-government on resi dents of the areas comprising the former State of Jaipur, & it would be retrograde to deprive them of the benefits of local self-government on the ground that other areas, which were merged to form the present State of Rajasthan, did not have district boards, not having reached the same stage of development. The continuance, therefore, of district boards in the area, which was formerly in Jaipur State, is justified on the ground that it is for the welfare of all classes within a particular territory, and there is no inequality before the law, because the difference that arises is not based on any respect for persons or classes. The same could not be said for the particular provision of the law which was being considered in -- 'AIR 1953 Raj 22 (C),. That case, therefore, can be differentiated on facts, and has no application to the circumstances of the present cases.