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Potti Sarvaiah v. Warvara Narsing Rao And Another
Factual and Procedural Background
A batch of writ applications were presented for disposal in light of two recent Full Bench decisions of the High Court: Pannalal Lahoti v. State of Hyderabad (AIR 1954 Hyd 129) and Narayanswamy v. Girdharilal (AIR 1955 Hyd 256). The Full Benches had held that (A) the Defence of Hyderabad Regulations ceased to operate on cessation of the war emergency and (B) the Hyderabad Rent Control Order, 1353 Fasli, which had been made under those Regulations, ceased to have effect following the lapsing of the parent law. The writ petitions before the Court challenged orders made under the Hyderabad Rent Control Order.
After admission of those writ petitions, the State Assembly enacted the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (20 of 1954), which received Presidential assent on 7-6-1954 and came into force on 12-6-1954. Section 31 of the new Act repealed the Hyderabad Rent Control Order, 1353 Fasli, but also contained clauses that (in effect) gave retrospective operation and validation to orders, penalties, prosecutions and proceedings under the repealed Order "so far as may be" by deeming them to have been made under the corresponding provisions of the new Act and by treating pending proceedings as if instituted under the new Act.
The petitioners in the pending writs contended that Section 31 was invalid because it attempted to override the Full Bench decisions that the earlier Order had lapsed, and that orders passed under the earlier Order must stand or fall according to the law under which they were passed. Alternatively, petitioners sought relief under Section 21 of the new Act, which provides for revision to the High Court from final appellate orders on specified grounds.
Legal Issues Presented
- Whether Section 31 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 is legally valid and intra vires — in particular, whether its retrospective/deeming provisions can lawfully validate or treat as effective orders and proceedings which earlier Full Benches had held to have lapsed with the parent law.
- Whether Section 31, by its terms, impermissibly usurps judicial functions by reversing or nullifying judicial decisions (i.e., whether it amounts to the Legislature exercising judicial power).
- Whether the pending writ applications challenging orders under the Hyderabad Rent Control Order should be converted into applications for revision under Section 21 of the new Act and be disposed of as such.
Arguments of the Parties
Petitioners' Arguments
- Section 31 is not "good law" and cannot take away the force of the Full Bench decisions in Pannalal Lahoti and Narayanswamy, which had held that the Hyderabad Rent Control Order had lapsed.
- The retrospective validation in Section 31 attempts to render valid and operative what the Court had declared invalid or lapsed, effectively reversing judicial decisions — a power that, petitioners contended, the Legislature does not possess because it would amount to exercising judicial functions.
- Reliance was placed on an extract from Cooley's Constitutional Limitations (Vol. I, p. 190) and on the case Bankey v. Jhingan (AIR 1952 Pat 166) to the effect that the Legislature cannot reverse decisions of courts and that reversal of judicial decisions would be tantamount to judicial action by the Legislature.
- It was argued that the use of the word "repealed" in Sub-s. (1) of S. 31 implies that the Legislature treated the earlier Order as having remained valid and operative until repealed, contrary to the judicial pronouncements of lapse.
- In the alternative, if S. 31 were held valid, petitioners sought the benefit of Section 21 of the new Act, which permits High Court revision from specified final orders on grounds of jurisdictional error or material illegality/irregularity.
Respondents' Position (as recorded)
The opinion does not present a detailed, point-by-point account of the respondents' legal arguments in the manner in which the petitioners' submissions are set out. The record does note, however, that the "opposite parties" conceded the point that, if Section 31 is valid, the applicants would have a right to apply in revision under Section 21 of the new Act; consequently the petitions could be registered under Section 21 and be disposed of on merits. Beyond that concession, specific respondent arguments are not elaborated in the provided opinion text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pannalal Lahoti v. State Of Hyderabad, AIR 1954 Hyd 129 (Full Bench) | Held that Defence of Hyderabad Regulations ceased to operate on cessation of the war emergency; relevant to the continuity of the Hyderabad Rent Control Order. | Identified as one of the Full Bench decisions which declared that the Hyderabad Rent Control Order had lapsed; the Court considered whether Section 31 could operate notwithstanding that decision. |
| Narayanswamy v. Girdharilal, AIR 1955 Hyd 256 (Full Bench) | Held that the Hyderabad Rent Control Order, 1353 Fasli, ceased to have effect after the lapsing of the parent law. | Also identified as a controlling Full Bench decision whose effect petitioners sought to preserve against retrospective validation by Section 31. |
| Bankey v. Jhingan, AIR 1952 Pat 166 | Authority cited for the proposition that the Legislature has no power to reverse decisions of Courts; legislative reopening of past controversies cannot reverse judicial decisions (remarks of the Chief Justice at p. 173). | The Court discussed this authority and explained that the observations must be understood in the light of Federal Court decisions; the Court concluded that Bankey v. Jhingan did not establish an absolute prohibition on validating statutes. |
| Piare Dusadh & Others v. The King Emperor, AIR 1944 FC 1 | Considered whether repeal/validation provisions in ordinances amounted to an exercise of judicial functions and whether such validation could be effected by the executive/legislature. | The Court relied on this Federal Court decision to show that validation provisions (of sentences/orders under a repealed ordinance) were lawful and did not necessarily constitute an exercise of judicial power. |
| Emperor v. Benoari Lall Sarma, AIR 1943 FC 36 | Federal Court decision referenced to show that certain Courts under a repealed ordinance lacked jurisdiction. | Used as factual background in relation to Piare Dusadh; the Court noted that validation measures were considered after the Federal Court's ruling on jurisdictional defects. |
| Kumar Singh v. Emperor, AIR 1946 PC 169 | Privy Council affirmed the legal effect of validation provisions, observing that the executive intended to render valid punishments by deeming them imposed under existing procedural law while leaving validity of convictions to ordinary judicial process. | The Court cited this authority to support the proposition that validating legislation or orders intended to cure defects can be sustained and are not necessarily an unlawful assumption of judicial power. |
| Federal Commissioner of Taxation v. Munro, 38 Com-W. LR 153 | Authority on the ancillary/validation power of a legislature to enact provisions effecting validation within its legislative competence. | Referred to in Piare Dusadh and relied on to demonstrate that validation can be ancillary to legislative power to deal with a subject. |
| Jamnadas Prabhudas v. Commissioner Of Income-Tax, Bombay City, AIR 1951 Bom 438 | Established that Article 141 does not prevent a competent legislature from altering a law even if it is contrary to a decision of the Supreme Court. | The Court cited it to show under the present Constitution the legislature may change law declared by courts, i.e., the Constitution does not preclude validating statutes. |
| Ram Niwas v. State Of Uttar Pradesh, 1951 All LJ 620 | Held that under the Constitution there is no limitation on legislature's power to enact validating statutes. | The Court expressly agreed with this view and relied upon it in concluding that the legislature may give retrospective effect to a statute and validate prior acts within its competence. |
| Basantachandra Ghose v. Emperor, AIR 1944 FC 86 | Discussed the distinction between legislative acts and judicial acts and the limits of legislative action in relation to judicial functions. | The Court invoked this reasoning to explain the distinction: statutes can enact rules of law applicable to facts to be ascertained by courts, which is legislative rather than judicial. |
| Rola Co. (Australia) Proprietary Ltd. v. Commonwealth, 69 Com-W. LR 188 | Definition/description of the true function of judicial power: to investigate, declare and enforce rights and obligations on present or past facts. | The Court cited the statement to delineate judicial functions (adjudication on facts) and to contrast them with legislative power to enact rules of law, supporting its conclusion that S.31 did not usurp judicial power. |
Court's Reasoning and Analysis
The Court undertook a structured analysis:
- Framed the petitioners' primary contention: that S.31 attempted to override Full Bench decisions which had held the Hyderabad Rent Control Order lapsed and that such legislative action would amount to reversing judicial decisions, an impermissible exercise of judicial power by the Legislature.
- Considered authorities both domestic and from the Federal Court/Privy Council. The Court reviewed Piare Dusadh and the Privy Council decision in Kumar Singh as examples where validation provisions were sustained and held not to be an exercise of judicial power. The Court noted that the American doctrine excluding legislative variation of judicial rules was not accepted in full domestically.
- Addressed the import of Jamnadas Prabhudas and Ram Niwas which held that under the Constitution there is no prohibition against legislative enactment of validating statutes or alteration of law declared by courts. The Court stated its respectful agreement with those views.
- Distinguished legislative functions from judicial functions: legislation enacts rules of law applicable to facts to be ascertained by the courts, whereas judicial acts adjudicate facts and apply existing law to those facts. The Court accepted the principle that if an enactment simply prescribes legal rules and gives them retrospective effect, leaving factual determinations to courts, it is a legislative act, not a judicial adjudication.
- Applied that distinction to Section 31: Sub-section (1) merely repeals the earlier Order. Sub-section (2) does not pronounce on the merits of individual cases; instead it deems, "so far as may be," various orders/decisions/actions under the earlier Order to be made under the new Act and directs that pending proceedings be treated as instituted under the corresponding provisions of the new Act. The Act thus prescribes legal consequences and leaves the application to particular facts and the disposal of pending matters to the courts.
- Concluded that Section 31 is an exercise of the Legislature's incidental power to vary a rule of law and give retrospective effect, a power vested in the State Legislature under item 18 of List II of the Seventh Schedule of the Constitution. Therefore, Section 31 does not usurp judicial functions and is not ultra vires of the Hyderabad Legislative Assembly.
- Addressed the procedural consequence: because Section 31 is valid, the applicants' right of revision under Section 21 of the new Act arises (if the impugned orders suffer from defects enumerated in S.21). The Court recorded that the opposite parties conceded the point regarding S.21.
- Ordered that the writ petitions be registered as petitions under Section 21 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act and be listed for determination on their merits in the ordinary course.
Holding and Implications
Holding:
1. Section 31 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 is not ultra vires the legislative powers of the Hyderabad Legislative Assembly and is not an impermissible usurpation of judicial functions.
2. The pending writ petitions challenging orders given under the Hyderabad Rent Control Order, 1353 Fasli shall be registered as petitions under Section 21 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, and each will be proceeded with and determined on its merits as a revision application under that Section.
Implications
- Direct effect on the parties: The petitions previously filed under extraordinary writ jurisdiction are to be treated and processed as revision petitions under Section 21 of the new Act; petitioners therefore have a statutory route of revision on the grounds enumerated in S.21.
- On the broader point addressed: The Court confirmed that, within the constitutional scheme and subject to legislative competence, the legislature may enact validating statutes or give retrospective effect to new statutes even where earlier judicial decisions have declared prior measures invalid or inoperative; such legislative action, when it prescribes rules of law and leaves factual adjudication to courts, does not necessarily amount to an exercise of judicial power.
- The opinion does not purport to set aside or replace the Full Bench decisions; it interprets the scope of legislative power to validate or give retrospective effect and applies that interpretation to Section 31. The immediate legal consequence is the conversion of the pending writ proceedings into revision proceedings under S.21; the petitions will be adjudicated on their merits under the statutory procedure.
Order: "Order accordingly." (D.H.Z.) — All petitions to be registered as petitions under Section 21 and listed for determination on merits.
1. These Writ applications have been laid before us en masse for disposal in view of the recent Full Bench decisions of this Court in the case of — ‘Pannalal Lahoti v. State Of Hyderabad of Hyderabad’, AIR 1954 Hyd 129 (FB) (A), and — ‘Narayanswamy v. Girdharilal’, AIR 1955 Hyd 256 (FB) (B). In the first of these cases, it was ruled that the Defence of Hyderabad Regulations ceased to operate on the cessation of the war emergency for the duration of which it was enacted.
2. The other case laid down that the Hyderabad Rent Control Order, 1353 F., which was passed in pursuance of the order-making powers conferred on the President of the Hyderabad Executive Council by the Regulations and under which the decisions sought to be quashed by the applicants in each of these applications were given, ceased to have effect after the lapsing of the parent law.
3. It was felt that since the sole ground on which each of these Writ petitions was admitted, questioned the validity and the constitutionality of the Hyderabad Rent Control Order, they could now be disposed of together in the light of the rule enunciated by the Full Benches in spite of the fact that the other matters raised therein which related to the merits of the case could not be made the subject of reconsideration in exercise of the extraordinary Writ jurisdiction of this Court. Since then the position has, however, altered on account of the passing by the State Assembly of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (20 of 1954) which received the assent of the President on 7-6-1954. The enactment came into force on its publication in the Hyderabad Gazette Extra-ordinary on 12-6-1954.
4. S. 31 which is relevant for our present purpose lays down that:
“(a) The Hyderabad Rent Control Order, 1353 Fasli is hereby repealed.
(2) Notwithstanding any decision or order of any Court to the contrary—
(a) Any order made or deemed or purporting to have been made any decision or direction given or deemed or purported to have been given, any notification issued or deemed or purporting to have been issued, any action of proceeding taken or deemed or purporting to have been taken, or anything done or deemed or purporting to have been done under the provisions of the said order shall, so far as may be, be deemed to be made, given, issued, taken or done under the provisions of this Act;
(b) any liability or penalty incurred or deemed of purporting to have been incurred, any punishment awarded or deemed or purporting to have been awarded; and any prosecution commenced or deemed or purporting to have been commenced under the provisions of the said order shall be deemed to have been incurred, awarded, made or commenced under the corresponding provisions of this Act;
(c) any application made, appeal preferred or other proceeding instituted under the said order and pending at the commencement of this Act shall be deemed to have been made, preferred or instituted under the corresponding provision of this Act and shall be disposed of as if this Act had been in force at the time when such application, appeal or proceeding was made, preferred or instituted.”
5. On the face of it, the Section gives retrospective effect to the provisions of the Act and validates the decisions given previously under the Hyderabad Rent Control Order, 1353 Fasli in so far as they may be in consonance with the provisions of the new Act. It is contended on behalf of the petitioners in each of the cases before us that S. 31 is not good law, that it does not take away the force of the rule laid down in Pannalal Lahoti's case (A), and the Full Bench decision in Narayanswamy's case (B), and that the orders sought to be quashed by issue of a Writ Certiorari must stand or fall with the law under which they were passed.
6. Further it is urged that in case the above argument does not find favour with us, the applicants should he given the benefit of Sec. 21 of the new Act which provides:
“Notwithstanding anything contained in this Act or any other law for the time being in force, an application for revision shall lie to the High Court from any final order passed on appeal by an appellate authority on the following grounds:
(a) that the original or appellate authority exercised a jurisdiction not vested in it by law, or
(b) that the original or appellate authority failed to exercise a jurisdiction so vested, or
(c) in following the procedure or passing the order, the original or appellate authority acted illegally or with material irregularity”.
7. The argument relating to the invalidity of the provision contained in S. 31 is founded on the ground that the Section operates to override the effect of the two Full Bench decisions of this High Court and to render valid what was previously the law in spite of a judicial pronouncement to the effect that the Hyderabad Rent Control Order had lapsed on the termination of the emergency created by the last World War. In support of this contention, the learned counsel has relied on a passage in Cooley's Constitutional Limitations. Vol. I at page 190 wherein the author declares that legislative action cannot be made to retroact upon past controversies and to reverse decisions of Courts of law.
8. The reason given for this view is that the violation of the rule would be tantamount to the exercise of judicial functions and would operate to turn the Legislature into a Court of review. Reference was also made to the case of — ‘Bankey v. Jhingan’, AIR 1952 Pat 166 (C), and to the remarks of the learned Chief Justice at p. 173, saying that although the Legislature has power to reopen past controversies and make laws, it has no power to reverse the decision of any Court inasmuch as such power is essentially judicial in its nature and has not been conferred upon the Legislature by the Constitution either expressly or by necessary implication.
9. The learned counsel for the petitioners also maintain that the word ‘repealed’ occurring in Sub-s. (1) of S. 31 of the Act seems to imply that in spite of the decisions of this Court, the Legislature-still insisted that the Hyderabad Rent Control Order, 1353 Fasli was valid and operative and the orders passed thereunder till repealed were good and effective.
10. After hearing the elaborate arguments of the learned counsel on either side we have come to the conclusion that the view contended for is unsound. We will now proceed to give our reasons for this decision.
11. In the case of — ‘Piare Dusadh & Others v. The King Emperor’, AIR 1944 FC 1 (D), the revealment of Ordinance No. 2 of 1942 and certain provisions of Ordinance No. 19 of 1943 in respect of sentences passed by certain Special Courts set up by the repealed Ordinance were challenged by the persons convicted by such Courts, and it was urged that the revealment amounted to exercise of judicial function by the enacting authority.
12. We may mention that in that case the Governor-General had passed the impugned order on the day following the decision of their Lordships of the Federal Court in the case of — “Emperor v. Benoari Lall Sarma’, AIR 1943 FC 36 (E), wherein it was held that Courts constituted under the repealed Ordinance had not been invested with the jurisdiction to try the cases in view of the nature of the provisions contained in Ss. 5, 10 and 16 of the repealed Ordinance.
13. Spens, C.J, after referring to the case of the — ‘Federal Commissioner of Taxation v. Munro’, 38 Com-W. LR 153 (F), held that the provisions in the impugned Ordinance directing particular sentences to be under the Code of Criminal Procedure, did not constitute an exercise of judicial function. According to him the Ordinance was promulgated under the exercise of the power of validation which was ancillary to the power to deal with the subject specified in the legislative list.
14. The rule enunciated in the above decision about the legality and the validity of Ordinance No. 19 of 1943 was affirmed by the Privy Council in — ‘Kumar Singh v. Emperor’, AIR 1946 PC 169 (G), where Sir John Beaumont referring to the language of Sec. 31 of the Ordinance remarked that the Governor-General intended to do no more than to render valid the punishment imposed by the Special Courts by creating the sentences as having been imposed under the Code of Criminal Procedure, and leaving the validity of the convictions to rest on judicial decisions subject to a right of appeal and revision in the ordinary way.
15. It is thus clear that in this country, the American doctrine excluding the Legislature from varying the rule laid down by Judicial Tribunals was not accepted in its entirety under the earlier Constitution as correct.
16. The position in this regard under the present Constitution is the same. In — ‘Jamnadas Prabhudas v. Commissioner Of Income-Tax, Bombay City, Bombay City’, AIR 1951 Bom 438 (H), an amendment of the provisions of the Income-Tax Act, which was contrary to a decision of the Supreme Court was upheld by the Learned Judges and it was ruled that Article 141 of the Constitution did not imply that the law once declared by the Supreme Court could not be altered by a competent legislature.
17. Similarly, in — ‘Ram Niwas v. State Of Uttar Pradesh,’ 1951 All LJ 620 (I), it was held by the Allahabad High Court that under the Constitution there is no limitation on the powers of the legislature to enact validating statutes. We respectfully agree with this view and hold that in this country the legislative functions of the Assemblies are not curtailed by limitations of the nature contended for the applicants and it is open to the legislature acting within the sphere of its constitutional authority I to pass a validating statute or to give a retrospective effect to a new statute notwithstanding the fact that the earlier law governing the same matter is declared by Courts of law as invalid, unenforceable or inoperative.
18. We agree that the competency of the Indian Legislature to enact laws does not confer on it the right of a judicial nature. But although investigation of disputes on facts and enforcement of liability on the basis thereof may be purely a judicial function, the legislature is not precluded by that reason from passing laws which may settle the law for the future or even regulate past disputes by being given a retrospective operation.
19. Spens, C.J in — ‘Basantachandra Ghose v. Emperor’, AIR 1944 FC 86 (J), at p. 90 observed in this connection:
“The distinction between a ‘legislative’ act and a ‘judicial’ act is wellknown, though in particular instances it might not be easy to say whether an act should be held to fall in one category or in the other. The Legislature is only authorised to enact Jaws. Some of the pending proceedings hit at by Cl. (2) of S. 10 may raise questions of fact and their determination may wholly depend upon questions of fact and not upon any rules of law, as for instance, when it is alleged that an order of detention was not really the act of authority by whom it purports to have been made or that it was a mala fide order or one made by a person who had not been authorised to make it. A direction that such a proceeding is discharged is clearly a judicial act and not the enactment of a law”.
20. See also — ‘Rola Co. (Australia) Proprietary Ltd. v. Commonwealth’, 69 Com-W. LR 188 at p. 211(K) wherein Starke, J., remarked that:
“The true function of judicial power is, as already indicated, to investigate, declare and enforce rights and obligations on present or past facts, by whatever authority such facts are ascertained or determined, and under laws supposed already to exist”.
21. In view of what has been said above the observations of the Patna High Court in the case of AIR 1952 Patna 166 (C), must be understood as having been made in the light of the decisions of the Federal Court by which that High Court was bound.
22. If any enactment disposes of a case by the vigour of the enactment itself without leaving to the judiciary the power to pass the appropriate orders with reference to the law in force at the date of the order, it may, we dare say be open to the objection of judicial functions being usurped by the legislature.
23. Where, however, the legislature enacts a rule of law applicable to certain facts which are to be ascertained by courts, it would lie essentially an exercise of enacting power though the new law may vary or reiterate the earlier law.
24. The exercise of such power would obviously be different from the exercise of judicial power inasmuch as the essential characteristics of a judicial function, namely, adjudication on facts and interpretation of law would he wanting in such a case.
25. Examining Section 31 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act from the above angle it is obvious that the first sub-section merely enacts the revealment of an earlier order and the other sub-section does not pronounce on the merits of the cases but merely lays down that the orders and decisions given under the Hyderabad Rent Control Order 1353-F., shall be deemed to be, as far as possible, orders under the new enactment. The application of the new law to the facts of each case is left to the judicial authorities and the pending proceedings are not decided by the force of the new enactment.
26. It follows that the argument impugning S. 31 on the ground that it trespasses on the judicial functions of a court of law, is incorrect. The section in substance is an exercise of the incidental power of varying a rule of law and making a new law retrospective and this is a function which the Legislature is competent to perform effectively under item 18 of List 2 of the 7th Schedule of the Constitution.
27. The distinction sought to be drawn by the learned counsel for the applicants between a statute that had lapsed and the one that is repealed, scarcely affects the question before us. It would appear that alter the Full Bench decisions of this court to which reference has been made at the commencement of this judgment, the State applied for leave to appeal to Supreme Court and while the application was pending the Legislature stepped in to pass the Hyderabad Houses (Rent, Eviction & Lease) Control Act in order to set the controversy at rest. By sub-s. 2 of S. 31 it did not render the orders or proceedings passed under the Hyderabad Rent Control Order as though they were passed under a good law it merely directed that those orders shall lie deemed to be orders under the new Act to the extent to which they might be covered by it. Obviously, there is nothing wrong in a provision being given a retrospective operation and this is all which the Legislature purports to do. We hold that Section 31 of the Hyd. Houses (Rent, Eviction and Lease) Control Act of 1954 is not ultra vires the legislative powers of the Hyderabad Legislative Assembly.
28. The second question which now falls for determination is whether these writ application should, be converted into applications for revision of the orders challenged therein under S. 21 of the new Act. We have already reproduced in an earlier part of this judgment the provisions of that Section. Consistently with our view that the enactment of a new rule of law with retrospective effect is a proper exercise of the legislative function and within the competence of the State Legislature, the result follows that the right to apply in revision under S. 21 rests in the applicants, if the orders impugned suffer from the defects referred to in that section. The point is conceded by the opposite parties and does not need any elaborate discussion.
29. All these petitions will be registered a petitions under Section 21 of the Hyderabad Houses (Rent, Eviction and Lease) Act of 1934 and each of them will be put up in the normal way for determination on their own merits.
D.H.Z
30. Order accordingly.
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