KISHENLAL Vs. BHANWARLAL

JUDGEMENT

(1.) This reference to the Full Court raises a question of considerable importance. A number of appeals are pending which according to the procedure prevailing at one time could have been disposed of by the Ijlas-i-Khas, Jodbpur but under an ordinance promulgated by His Highness the Raj Pramukh to which detailed reference will be made liter, the High Court of Rajasthan has been authorised to hear, determine and dispose them of. Accordingly on 26--1-1950, then the Constitution of India came into force, these appeals were available for disposal in the High Court. It has however, been urged on behalf of the appellant that according to Article 374 (4) of the Constitution, these appeals should be transferred to and disposed of by the Supreme Court. Article 874(4) runs as follows : "On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Counsil in a state specified in Part B of Seh. 1 to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any Court within that State shall cease, and all appeals and other proceedings pending before the said authority at such commencement shall be transferred to, and disposed of by, the Supreme Court."

(2.) The question which calls for a determination is whether in respect of the above mentioned appeals the High Court of Rajasthan could be deemed to be functioning as the Privy Council, for, in that case, there would be no alteruative but to hold that they cannot be heard and disposed of here and that the records relating to them should be transferred to the Supreme Court.

(3.) In connection with the above question, it will be pertinent to refer to the various Ordinances which have a bearing on its determination. On 18-11-1949, The Rajasthan Appeals and Petitions (Discontinuance) Ordinance, 1949, was published in the Rajpatra, providing for the repeal of such laws as related to the presentation of appeals, revisions, reference and petitions to the Rulers of Covenanting States, for the discontinuance of the future presentation of such appeals, revisions etc. and also for the disposal of such of them as had already been preferred, brought, made or presented. According to Section 3 of this Ordinance, it was specifically provided that appeals etc., which lay to the Ruler and had been preferred to him or to any authority known by the designation of Ijlas-i-Khas or Judicial Committee shall not so lie or be so preferred after the commencement of the Ordinance from or against any decision of a High Court. As regards pending appeals, Section 4 of the Ordinance provided that they shall be heard, determined and disposed of by a Special Court to be constituted by the Raj Pramukh by notification in the Rajasthan Gazette. This Ordinance was amended by Ordinance XII [12] of 1950 and in Section 4, subs. (1) cl. (a) for the words "by a Special Court to be constituted by the Raj Pramukh by notification in the Rajasthan Gazette", the words and figures "by the High Court of Judicature for Rajasthan established under the Rajasthan High Court Ordinance, 1949," were substituted. It is under the provisions of this amending Ordinance that the appeals which lay to the Ijlas-i-Khas and were pending, they were all transferred to the High Court of Rajasthan, By the express language of Section 3 of the Ordinance published on 18-11-1919, the Ijlas-i-Khas ceased to exist and His Highness the Raj Pramukh conferred powers upon the High Court of Rajasthan for the purpose of hearing appeals which had been preferred from the judgments and decrees passed by the High Court of Jodhpur. Under Sections 18 and 19, Rajasthan High Court Ordinance of 1949, power to hear appeals in the ordinary course was conferred on the High Court, and although according to Section 39 of this Ordinance, the Raj Pramukh had the power to constitute a Court to hear appeals from the judgments, decrees or orders of the High Court, according to Section 40 until such Court was constituted, the High Court; of Rajasthan was to remain the highest Court of appeal, reference and revision. Section 40, further provided that the High Court shall have jurisdiction to entertain and dispose of such appeals, revisions, references, cases and other proceedings as it was empowered to entertain and dispose of under this Ordinance or any enactment or law in force in the State. According to Section 45, the jurisdiction, powers, and authority of the High Court were subject to the legislative powers of any authority competent to legislate for the time being for the State. It is admitted that in the absence of a Legislature in this State, the only authority competent to legislate for the time being is His Highness the Raj Pramukh and, he, therefore, bad the power and the authority to promulgate the Ordinance under which the Ijlas-i-khas ceased to exist and powers were conferred on the High Court to hear and dispose of appeals which lay to the Ijlas-i-khas. According to Article 6 of the Covenant entered into by the Rulers of the Covenanting States for the reconstitution of the United States of Rajasthan, the Rulers of each Covenanting State made over the administration of State to the Raj Pramukh and thereupon, all rights, authority and jurisdiction belonging to the ruler which appertained or were incidental to Government of the Coven. anting State vested in the United Stales of Rajasthan and were exercisable only as provided by the Covenant or by the Constitution to be framed thereunder. According to Article 10, until the Constitution was framed, the legislative authority of the United States voated in the Raj Pramukh who was authorised to make and promulgate Ordinances for the peace and good government of the State and any Ordinance so made had the same force of law as an Act passed by the Legislature of the State. Therefore, according to the various provisions) of the Covenant, there can be no question that the Ordinance, under which the Ijlas-i-khas was abolished and the High Court empowered to hear and dispose of appeals which lay or were pending there was in order. On 24-11-1949, by means of a proclamation, the Government of the United States of Rajasthan declared that the Constitution of India shortly to be adopted, by the Constituent Assembly of India shall be the Constitution for the Rajasthan State as for the other parts of India and shall be in force as such in accordance with the tenor of its provisions. Now, according to Article 225 of the Constitution, it was provided that subject to its provisions and to the provisions of any law of the appropriate Legislature, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges , thereof in relation to the administration of justice in the Court shall be the same as immediately before the commencement of the Constitution. According to Article 372 also, subject to the provisions of the Constitution, all the law in force in the territory of India immediately' before the commencement of the Constitution was to continue in force until altered, repealed or amended by a competent Legislature or other competent authority, According to the Expln. I, "law in force" included a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed. According to Article 385, until the House or the Houses of the Legislature of a State specified in part B of Schedule 1 had, been duly constituted and summoned to meet, the authority functioning immediately before the commencement of the Constitution as the Legislature of the State was to exercise the powers and perform the duties conferred by the provisions of the Constitution on the House or Houses of the Legislature of the State. Thus, from a bare perusal of the provisions of the Constitution as well the power and authority of His Highness the Raj Pramukh to promulgate the Ordinance whereby the authority of the Ijlas-i-khas was discontinued and power conferred upon the High Court to dispose of the appeals which lay there cannot be questioned. It was however argued by the learned counsel for the appellant that the Constitution abrogated the power of His Highness the Raj Pramukh to authorise the High Court to hear appeals which were pending before the Ijlas-ikhas. This contention was put forward with reference to the three lists appended to Schedule 7 framed under Article 246 of the Constitution. In List I at items 74 and 95, power has been given to the Parliament alone to make laws relating to the Constitution and organization of the High Court and Jurisdiction and powers of all Courts except the Supreme Court, with respect to any of the matters in this list. In List II at items 3 and 65, power has been conferred on the State Legislature to legislate with regard to the Constitution and organization of all Courts except the Supreme Court and the High Court and the jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters contained in the list. In List III which is a concurrent list, item 46 relates to jurisdiction and powers of all Courts except the Supreme Court with respect to any of the matters in this list. Item 97 in List I covers all matters not enumerated in List II or List in. Thus there is no doubt whatsoever that in all such matters in which authority to legislate has not been conferred on the State Legislature, it has been reserved to the Parliament. The learned counsel argued that inasmuch as the power to confer authority on the High Court to dispose of appeals which lay in the Ijlas-i-khas or were pending there, had not been conferred upon the State Legislature, the Ordinances promulgated by His Highness the Raj Pramukh were ultra vires. This argument, however, ignores the various provisions of the Constitution to which a reference has already been made according to which the powers of the legislative authority functioning before the commencement of the Constitution have been confirmed.