S.C.R.

SUPREME COURT REPORTS 605

SARDAR INDER SINGH v.

THE STATE OF RAJASTHAN

(and connected petitions)

(S. R.

DAS C.J., V ENKATARAMA

AYYAR, B. P. SINHA, S. K. DAs and GA.JENDRAC; ADKAR JJ.)

C01.stit11tio11a! la/IJ-Delegated legislation and conditional legislation-Distinction-Statute co11fe1"1'ing power 0•1 outside authority to extend its operatio11-Validity-Rajastha11 (Protection of Tenants)

Ordinance, 1949, (Rajasthan Ordi11a11ce No. IX of 1949), SS. 3, 4, 7(1) 15-Notifications by R.ajpramukh-Validity-Whether Ordini!nce contravwes Aus. 14 ,;11d 19( 7)(/) of the Constitution of India.

By s. 3(1) of the Rajasthan (Protection of Tenants) Ordinance, 1949, which was promulgated on June 21, 1949, by the Rajpramukh of Rajasthan, it was provided : "It shall come into force at once, and shall remain in force for a period of two years unless this period is further extended by the Rajprnmukh by notification in the Rajasthan Gazette."

In exercise of the power conferred by this section the Rajpramukh issued a nctification on June 14, 1951, providing that the above Ordinance "shall remain in force for a further period of two years with effect from June 21, 1951'', and on June 20, 1953, he issued a iurther notification providing that the said Ordinance "shall r•':main in force for a term of one vear with effect from June 21, 1953'".

Doubts having been raised as to the validity of the notification <lated June 20, 1953, the Rajprarnukh issued anothe~ Ordinance 0~1 February 15, 1954, substituting for s. 3 of the original Ordinance dated June 21, 1949, the: following : "It shall come into force at once and shall remain in force for a period of fiye years"'.

It was contended inter alia for the petitioners that the Ordinance dated June 21, 1949, and the notifications issued by the Rajpramukh were invalid on the grounds ( l) that s. 3 of the Ordinance was ultra viru as the power which it conferred '-Oil the !bipr'1mukh to extend the period fixed therein \vas an unconstituti011:1i delcg;.Hion of legislative po\ver,

(2) that. the notification dated June 20, 1953, was bad because the Legislature of Rajasthan had been constituted on March 29, 1952, and the authority of the Rajprmnkh to legislate conferred by Art. 385 of the Constitution of India had, on that date, conl<: to an end and (3) that the Ordinance rnntraYcned Arts. 14 and 19(1) (f) of the Constitution.

Held: (1) Section 3 of the Or<lina1m: in so far as it authorised the Rajpramukh to extend the life of the Ordinance fell within the category of conditional legislation and is intra t•ires.

February 8.

-Sardar lnder Singh

The State of

Rqjasthan

A provision in a statute conferring a po\ver on an outside authority to bring it into force at such tin1e as it might. in its O\VJ1 discretion, deter91ine, is conditional an<l not delegattd legislation and is valid, and it can make no difference in the character of a legislation as a con<litional one that the legislature, after itself enacting the hnv and fixing, on a consi<lcration of the iacrs as they might have then existed, the period of its duration, confers a pov.er on an outsi<le authority to extend its operation for a further period if it is satisfied that the state of facts \vhich called forth the lcgisbtion continues to subsist.

Queen v. l!urah. (1878) 5 I.A. 178, rclie<l on. l:i re '[he /)clhi Latvs /let, 1912, ( 1Sl'51) S.C.R. 7~7 anJ State of nonihay v. 1Varotharnda.• /ethabai, (1951)

S.C.R. 51, referred to.

fatind1a Nath Guptn v. 595, in so far as it decided cnact1ncnt cannot validly be dissented frotn.

The State of Bihar. (1949) I'. C. R.

thtl a po"ver to e:-:tend the lilc of an coni"r.::rrc<l on an outside authority,

(2) 1"hc Rajpratnukh issued the notification tLJ.tcd June 20, 1953, in his character as the autl1urity on \Vho1n po\ver \Vas conferred under s. 3 of the ()rdinanct and not as the legisl:Htve authority of the State and accordingly the notification is \'::ilid. '

( 3) The Ordin:.ince cannot be held to be bad under , \rt. J 4 of the Constitution on the ground that s. I 5 of the Ordinance \vhich authorises the (; overn1ncnt to exeinpt any person or class of persons froin the operation of the OrJinancc dos not lay do\\n the principles on vvhich excn1ption could be granted leaving the matter to the unfettered and uncanalised discretion of the Governn1cnt, because, the prean1ble to the Ordinance sets out \Vith sullicient clearness the policy of the legislature and as thJ.t governs s. 15, the decision of the Governn1cnt cannot be said to be unguided. 1-larishankar Bagla v. The State of 1\1adhya Pradesh, ( 1955) 1 S.C.R. 380, 388, relied on.

\:Vhere the prea1nblc to the Ordinance recites that it is expedient to enact a la\v for giving protection to tenants, :i.nd tor granting relief to thctn the legislature decides fro1n \Vhat date the law should be given operation, that is a 1natter exclusively for the legislature to dcterrninc, and is not open to question in Courts on the ground of discri1nination in that the landlords who had tenants on their lands before that date were free fron1 its restrictions. ( 4) The provisions of the Ordinance \Vhich oblige the landowners to keep tenants on their lands, thereby preventing them fro1n then1selvcs cultivating the same, are not repugnant to Art. 19(1) (f) of the Constitution, because the object of the

Ordinance 'was not to put a restriction on the right of the owner himself to cuitivatc the lands, hut to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause, and a law which requires that an owner

who is not, himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to be unreasonable.

Block

v. Hirsh, (1920) 256 U.

S. 135: 65 L. Ed. 865, relied on.

ORIGINAL

JURISDICTION: 149, 150, 188, 243, 261, 266 of 1956.

Petitions Nos.

50. 145, and 362 of 1955 and 205

Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.

M. M. Tiwari and K. R. Chaudhry, for the peti tioners in Petitions Nos. 50, 150, 243, 261, 266 and 362 of 1955.

Ganpat Rai, for pet1t10ners 111 Petitions Nos. 145, 149, 188 of 1955 and 205 of 1956.

Porus A. Mehta and T. M. Sen, for the State of Rajasthan and Board of Revenue in all the Petitions.

Udhai Bhan Chaudhry, for respondents Nos. 2 and 3 in Petition No. 145 of 1955.

K. P. Gupta for respondents Nos. 4 to 6 in Petition No. 149 of 1955.

T arachand Brijmohan Lal, for respondents Nos. 3 to 9 in Petition No. 243 of 1955.

Bhawani Lal and P. C.

Aggarwal, for respondents Nos. 3 to 5 in Petition No. 261 of 1955.

S. S. Shukla, for respondent No. 4 in Petition No. 266 of 1955.

S. N. Anand, for respondent No. 3 in Petition No. 362 of 1955.

K. L. Mehta, for respondent No. 2 in Petition No. 205 of 1956.

1957. February 8. The Judgment of the Court was delivered by

VENKATARAMA

AYYAR J.-These are petitions filed under Art. 32 of the Constitution by proprietors of

Sardar lnder Singh

T~ State of

RqjasthlLll

.~'ardar Indt1 Singh , ..

The Stale uj

Rajaslhan

VenkataTnma

A):l'(IT ].

lands in the State of Rajasthan, challenging the vires of The Rajasthan (Protection of Tenants) Ordinance, 1949, Ordinance No. IX of 1949, hereinafter referred to as the Ordinance, of notifications dated June 14, 1951 and June 20, 1953, issued thereunder and of the Rajasthan (Protection of Tenants) Amendment Act No. X of 1954.

It will be useful at the outset to state briefly the facts relating to the constitution of the legislative authority, in the exercise of which the impugned Ordinance and notifications were issued.

When the British were the Rukrs of this Country, Rajputana.. as the State was then known, consisted of 18 principalities claiming sovereign status.

After independence, a movement was set afoot for the integration of all the principalities into a single State, and the process was completed on May 5, 1949, when all of them became merged in a Unio11 called the United State of Rajasthan.

The constitution of the State was settled in a Covenant, to which all the Rulers agreed.

Under Art. II of the Covenant, the States agreed "to unite and integrate their territories in one State with a common executive, legislature and judiciary by the name of the United State of Rajasthan".

Under Art. VI(2), the Rulers made over all their rights, ; mthorities and jurisdiction to the new State which "shall thereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder".

Article X(3) provides tli:tl,

"Until a Constitution so framed comes into operation after receiving the assent of the Rajpramukh, the legislative authority of the United State shall vest in the Rajpramukh, who may m1kc and promulgate Ordinances for the peace and good government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the lC!, islature of the United State." ·? Article X(3) was subsequently modified by substitutinc: fnr the words "Until a Constitution so framed co; nes into operation after receiving the assent of the

Rajpramukh", the words "Until the Legislative Assembly of Rajasthan ha:; been duly constituted and

summoned to meet for the first :; ession under the provisions of the Constitution of India." Reference may aiso be made to Art. .385 of the Constitution of India, which runs as follows : . "Until the House or Houses of the Legislature of :i State specified in Part B of the First Schedule has or have bern dulv constituted and summoned to meet for the first sessio~ under the provisions of the Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Co'nstitution on the Hotlse or Houses of the Legislature of the State so specified." Ir may be mentioned that the Legislative Assembly of Rajasthan was constituted and came into being on March 29, 1952, :'md until then, it was the Rajpramukh in whom the Legislative authority of the State was vested. ·

On June 21, 1949 the Rajpramukh promulgated the impugned legislation, the Rajasthan (Protection of Tenants) Ordinance No. IX of 1949.

The preamble to the Ordinance runs as follows : ''Whereas with a view to putting a check on the growing tendency of landholders to eject or .qispossess tenants from their holdings, and in the wider 'r1ational interest of increasing the production of foodgraihs, it is expedient to make provisions for the protection of tenants in Rajasthan from ejectment or dispossession from their holdings."

Section 4 of the Ordinance prmides : "So long as the Ordinance is in force m any area of Raj:.isthan. no tenant shall be liable to ejectment or dispossession from the whok or a part of his holding in such area on any ground whatsoever."

Section 7 provides for reinstatement of tenants who had been in occupation on the first daY of April, 1948, hut had been subsequently dispossessed : and by an Amendment Act No. XVII of 1952, this right was extended to tenants, who got into possession e\'tn after the first day of April. 2-79 S. r; India/'.i'l

19.5i

Sardar lnder Singh

The State of

Rajasthan

Venkatarama

Ayyar ].

S•dar Imler S1n;.h

Thd Stah of

Rajasthan

v,, J; atarama

Ay_'ar ] ••

Section 3( 1) of the Ordinance. which is very material for the present petitions, runs as follows :

"It shall come into force at once, and shall remain in force for a period of two years unless this period is further extended by the Rajpramukh by notification in the.

Rajasthan Gazette." In exercise of the power conferred by this section, the Rajpramukh issued a notification on June 14, 1951. providing that Ordinance No. IX of 1949 "shall remain in force for a further period of two years with elfcrt from June 21, 1951".

On June 20, 1953, he issued a further notification providing that the said Ordinance "shall remain in force for a term of one year with effect from June 21, 1953." Doubts would appear to have been expressed about the validity of the notification dated June 20, 1953; on the ground that as the State Legislature had come into being on March 29, 1952, the power Qf the Rajpramukh, to legislate under Art. 385 of the Constitution had come to, an end on that <late.

To resolve the doubt, the, Rajpramukh issued on February 15, 1954, an Ordinance under Art. 238 of the Constitution. No. Ill of 1954, substituting for s. 3 the following :

"3. lt shall come into force at once and shall remain in force for a period of five years."

That would have given operation to Ordinance No.

IX of 1949 up to June 21, 1954.

Then the Legislature of the State repealed Ordinance No. Ill of 1954, and enacted the Rajasthan (Protection of Tenants) Amendment J\ct No. X of 1954, and that came into force on April 17, 1954.

Under this Act, s. 3 of Ordinance No. "IX of 1949 was re-enacted as follows :

"It shall come into force at once and shall remain in force for a period of seven years."

The petitioners question the validity of Ordinance No. IX of 1949, of the notifications dated June 14, 1951, and J1111c 20, 1953, and of Act No. X of 1954.

It appears that on October 15, 1955, a new enactment, the Rajasthan Tenancv Act No. III of 1955, came into force, and the relationship between landlords and tenants is now governed by this Act.

But as a large

number of petition'.. filed bv the tenants under Ordinance No. JX of 19·19 a1c still undisposcd of hy reason of stay orders obtained lw the petitioners herein, it is

necessary for tht: purpose of granting relief to them on these petitions, to decide whether the impugned Ordinance and notifications are bad on any of the grounds put forward by the petit10ners.

We accordingly proceed to a consideration of the present petitions on their merits. Counsel for pet1t10ners urged the following content:on; in support of the petitions : (I) The notifications chtecl June 14, 1951, and T11:1c 20, 1952, are h;1d, as s. 3 of the Ordinance un.-ler

~., hich the\' v, cerc issued is ultra vires, as constitutinr: delegation f legislativ<~ power. . . . ,

(2) The notific3tio11 dated June 20, 1953, is further tr.ht hecanse the Lcrri;; latme of Raiasthan had been comtitutcd on March" 29, 1952, an..! the authority of the Rajpr:unukh to lt>gislate conferred hv Art. 38l:i of tht Constitution had, 011 that date, come to an end.

(3) Act No. X of 1954 is bad, as it purports to extend the life of Ordinance No. IX of 1949 after tht said Ordinancr had already become dead.

(4) The impugned Ordinancr.- i~ bad as hcinr; repugnant to Art. 14 of the Comtitution ; and

(5) The Ordinance also contravenes Art. 19(1)(g) of the Constitution in that it irriposes unreasonable restrictions on tht right of the petitioners to hold property.

In logical sequence, it is the third contention that should first be considered, because if Act No. X of 1954 is upheld, that must validate Ordinance No. IX of 1949 for the periods covered by the impugneJ notifications dated June 14, 1951, and June 20, 1953, and in that event, the first two contentions will not survive for determination.

The argument of the petitionerj in support of this contention is that even if either of the two notifications aforesaid is held to be bad, then the impugned Ordinance would have expired at least on June 21, 1953, if not earlier on June 21, 1951; and th3t 1 neither Act No. X of 1954 which came into force on

;('57

Sardar lndtr Si11tft

T'lte Stntt of

Rqiasth-:.n

Vmkatrama

Ayyar ].

Smdur lnder Singh

Tlit StaU of

Rajasthan

Vtiikatarama

A"ar ].

April 17, 1954, nor e1en Ordinance No. III of 1954 which was promulgated on February 15, 1954, could give life to what was already dead.

It is conceded that a legislation might be retrospective ; hut it is contended that Act No. X of 1954 was not an independent legislation enacting a code of provisions which were to operate retroactively but an amendment of Ordinance No. IX of 1949, and as that Ordinance had expired by effiux of time on June 21, 1951, if the notifications dated June 14, 1951, and June 20, 1953, were bad, then there was, when Act No. X of 1954 was passed, no Ordinance in existence on which the amend ment could operate, and that it was therefore indfective.

Some support for this _contention might be found in the observations of Kania C.J. in fati11dra Nath Gupta v. The Province of Bihar(1) at page 606, of Mahajan J. at pages 627628 and of Muliherjea J. at pages 643-644.

There is, however, no need to discuss the matter further, as we are of opinion that the petitioners must fail in their contentions on the first two questions.

Taking the first question as to whether s. 3 of the Ordinance is had, in so far as it authorised the Rajpramukh to extend the life of the Act, the contention of the petitioners is that it is essentially a matter for legislative determination as to how long a statute should operate, that s. 3 having provided that the Ordinance should be in force for a period of two years, any extension of that period could only be made by the Legislature and not by an outside outhority, and that accordingly the power conferred by that section on the Rajpramukh to extend the period fixed therein is an unconstitutional delegation of legislative power.

Reliance is placed in support .of this contention on the decision in fatindra Nath Gupta v . .The Province of Bihar( 1). There, the question was as to the validity of a notification issued by the Government of Bihar on March 7; 1949, extending .the operation of the Bihar Maintenance of Publjc Order Act V of 1947 to Chota Nagpur Division arid the Santhal Parganas District with retrospective .effect from Mar.ch 16, 1948.

Section

(1) [I9f9] F.C.R. 595.

S.C.R.

SUPREME. COUllT REPORTS 613

1 (3) of the Act had provided that it shall remain in force for a period of one year from its commencement, but that was subject to a proviso, which ran as follows :

"Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be prescribed in the notification." The notification in question was issued in exercise of the power conferred under this proviso, and it was held by the majority of the Court that the proviso was unconstitutional as it amounted to delegation of legislative authority, and that, therefore, the notification issued pursuant thereto was bad.

Three of the learne<l Judges expressed the view that the power to extend the operation of an /\ct was purely a legislative function, aud that it could not be delegated to an outside authority.

Thus, Kania

C.J. observed at pages 604-605:

"The power to extend the operatio1i of the Act beyond the period mentioned in the Act prim a f acie is a legislative power.

It is for the Legislature to state how long a particular legislation will be in operation.

That cannot be left to the discretion of some other body .......... Even keeping apart the power to modify the Act, I am unable to construe the proviso, worded, as it is, as conditional legislation by the Provincial Governn1ent.

Section 1 (3)_ and the proviso read together cannot be properly interpreted to mean that the Government of Bihar in the performance of its legislative function' ha<l pw; cribe<l the life of the Act beyond one year.

For its continued existence beyond the period of one year it had not exercised its volition or judgment but left the same to another a.uthority, which was not the legislative authority of the Province."

Mahajan J. dealing with this question observed al page 623:

"I am further of the opinion that the power given to extend the life of the Act for another year in the context of the langmge of s. 1(3) also amounts ta .an act of legislation and does not fall under the rule laid

Sardar lnder Si>1J(h

The State o/'

Rajasthan

Vmkatarama

Ayyar J.

Sar.tor l11dtr Sinlh

Tht Stat1 of

Rojasl!zan

V cnkatarnma

Ayyar J.

down in The Queen v. Burah (' ). The Act in a mandatory form stated that is shall be in force for one year only. + That being so, the power given in the proviso to reenact it for another year is legislative power and does not amount to conditional legislation."

Mukherjea J. was of the opinion that if the legislation was to take effect on the determination of some fact or condition by an extraneous authority, it would be conditional legislation, and that would be valid on the authority of the decision in The Queen v. Burah ('), but that it would not be valid if it was left to an outside authority "to determine at some future \date whether the Act should be extended for one year further with or without rnodificatio1h". Faz! Ali J. took the\ contrary view. He observed at page 646 :

"So far as the extension of the Act is concerr, ed, I am not prepared to hold that .it amounts to legislation or exercise of legisla1', e power.

From the Act, it is clear that, though it was in the first instance to remain in force for a period of one year, the Legislature did contemplate that it might have to be extended for a further period of one year.

Having decided that it -.... might have to be extended, it left the matter of the extension to the discretion of the Provincial Government.

It 'eems to me that the Legislature having exercised its judgment as to the period for . which the- >- Act was or might have to remain in force, there was nothing wrong in its legislating conditionally and leavfing it to the discretion of the executive authority whether the Act should be extended for a further period of one year or • not. 1t would be taking a somewhat narrow view of the decision in Burah's case( 1) to hold that all that the Legislature can do when legislating conditionally, is to leave merely the time and the manner of carrying its legislation into effect to the discretion of the executive authority am] that it cannot

leave any other matter to its discretion. • The extension of the Act for a further period of one year does not 'r-'-' amount to its re-enactment.

It merely amounts to a continuance of the Act for the maximum period contemplated by the 'Legislature when enacting it."

(1) [1878] L.R. 5 I.A. 178 .

• -+

-~ '

S.C.R.

~ . '

1957 , It will be noticed that the authoritY conferred on the Bihar Government by the , proviso to s. 3 was one iiot merely to extend the life of the Act as in the present case, but also to extend it with such modifications as • might be,.specified in the notification.

It is this latter clause that came in principally for attack in the judgments of the majority, and the decision that proviso

Sardar lnder Singh•

as a whole was bad was based primarily on the view tl1at that clause was ultra vires. Ka1{ia C. J. no , doubt observed that the power to extend the operation of the .fl.ct was, even .apart from the power to modify it, a kgislati ve function.

But he also added that the power conferred by the proviso was a single one and that the power to extend the life of the Act could not be sevei"- ed from the power to modify it.

The matter was made even 'more plain by Mukherjea J, in his judgment in State of Bombay v. Narothamdas fethabai ( 1 ).

There,. ' the Bombay High Court had held, relying on the decision in /atindra Natlz Gupta v.

The Protlince of Bihar( ')<that s. 4 of the Bombay City Civil Courts Act, 1948 wnich conferred authority on the State to invest Ci vii Courts by notification with jurisdiction to try suits not exceeding Rs. 25,000 was bad.

In disagreeing with this conclusion, Mukherjea J. observed :

., "The learned Judges of the B, cimbay High Court in coming to their decision on the point seem to .have been influenced to some extent by the pronouncement of the Fcdeal Court in Jatindranath Gupta v.

l'rnvinc~ of Bihar( '), and .the learned Counsel for the respondents. I naturally placed reliance 1;1pon it .. : ... : .

Mr. Seerva1 would have been probably nght 1n mvoking the decision in that case a~ an !uthority in his favour if the proviso simply empowered the Provincial Government, upon compliance with the conditions prescribed therein, to extend the duration of the Act for a further period of one year, the maximum period being fixed by the Legis laturc itself.

The ptoviso, however, went further and authorised the Provincial Government to decide at the end of the year not merely w hcther the Act should be continued for another vear but whther the Act itself was to be inodified in "any

(1) [1951] S.C.R. 51.

,(2) [1949] F.C.R. 595

, v.

The State of

Rajas than

V n1katarama

4Y.>ar J.

" .

,,~·if-.

Smdar lnder Siu.h

Thr Stafr 1( R(ljasthan

renkatarama

, l, yar J.

way or not. It was conceded by the learmd Counsel appearing for the Province of Hihar that to authorise another body 10 modify a statute. amounts to investing that body with legislative powers.

What the learned Counsel contended for was that rhe power of modification was severable from the power of extending the duration of the Statute and the invalidity of one part of the proviso should not affect its other part.

To this contention my answer was that the two provisions were inter-related in such manner in the statute that one could not be severed from the other." The decision in /11ti11dra Nath Gupta v.

The Province of Bihar ( 1) cannot therefore be regarded as a clear and direct pronouncement that a statutory provision authorising an outside authority to extend the life of a statute is per se bad.

We must now rdcr to the decision in In re Thi Delhi LattJs Act, 1912(

2 ) wherein the law relating to delegated legislation was exhamtively reviewed by this Court.

That was a reference under Art. 143 of the Constitution stating a number of questions for the opinion of this Court.

Due to considerable divergence of views expressed in the several judgments as to the limits of permissible delegation, no unanimity could be reached in the answers to the questions referred.

But it can be said of certain propositions of law t\iat they had the support of the majority of the learned Judges, and one such proposition is that when an appropriate Legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it may decide, that is conditi<>- nal and not delegated legislation, and that such legislation is valid.

In our opinion, s. 3 of the Ordinance in so far as it authorises the Rajpramukh to extend the life of the Act falls within the category of conditional legislation, and is, in consequence, intra vires.

The leading authority on the question is the decision of the Privy Council in T lze Queen v. Burah( • ).

There, the question was as to the validity of a notification issued by the Lieutenant-Governor of Bengal

(1) [1949] F.C.R. 595.

(3) [1878] 5 I.A, 178.

on October 14, 1871, extending the provisions of Act No. XXII of 1869 , to :t territory known as the Jaintia and Khasi Hills in exercise of a power conferred by s. 9 of that Act, which was as follows : l

"The said Lieutenant-Governor may from time to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the J aintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India."

The High Court had held by a majority that that section was ultra vires, as amounting to delegation m legislative authority.

But that decisi.on was reversed on appeal to the Privy Council, which held that it was conditional legislation, and was valid.

Lord Selborne stated the law thus :

"Their Lordshins agree that the Governor-General in Council could not, by any form of enactment, create in India, and arm with general legislative authoritir, a new legislative power, not created or authorised by the Councils' Act.

Nothing of that kind has, in their Lordships' opinion, been done or attempted in the present case.

What has been done is this. .The Governor-General in Council has determined, in. the dt!-: and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal ; leaving it to the Lieutenant-Governor to say at what time that change shall take place .......... The Legislature determined that, so far, a certain change should take place ; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor ...... The proper Legislature has exercised its judgment as to place, person, laws, powers ; and the result of that judgment has been to legislate conditionally as to all these things.

The conditions having been fulfilled, the legislation is 11ow. absolute.

Where plenary powers of . legislation exist as to particular sbjects, whether in an Imperial or in a provincial Legislature, they may (in

Sardar lnder Singh v.

The State oj

Rqjasthan

Venkatarama

Ayyar ].

'957

Sardar !tu/er Sinth

I he State of

Rajastha~

in1katarama

.. {1:.rar J.

their Lordships' judgment) be well exercised, either absolutely or conditionally.

Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whotn it places confi.Oence, is no uncon11non thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it ; and it cannot be supposed that the imperial Parliament did not, when con, tituting the Indian Legislature, contemplate this kind of conditional legislation .ts within the scope of the legislative powers which it from time to time conferred."

This is clear authority that a provision in a statute conferring a power on an outside authority to bring it into force at such time as it might, in its own discretion, determine, is conditional and not delegated legislation, and that it will be valid, unless there is in the Comtitution Act any limitation on its power to enact such a legislation.

The petitioners do not dispute this.

What they contend is that while it may be competent to the Legislature to leave it to an outside authority to decide when an enactment might be brought into force, it is not competent to it to authorise that authority to extend the life of the Act beyond the period fixed therein.

On principle, it is difficult to see wlty if the one is competent, the other is not.

The reason for upholding a legislative prov1S1on authorising an outside authority to bring an Act into force at such time as it may determine is that it must depend on the facts as they may exist at a given point of time whether the law should . then be made to operate, anJ that the decision of such an issue is best left to an executive authority.

Such legislation is termed conditional, because the Legislature has itself made the law in all its completeness as regards "place, person, laws, powers", leaving nothing for an outside authority to legislate on, the only function assigned to it being to bring the law into operation at such time as it might decide.

And it can make no difference in the character of a legislation as a conditional one that the legislature, after itsdf enacting the law and fixing, on a consideration

of the facts as they might have then existed, the period of its duration, confers a power on an outside authority to extend its operation for a further period if it is satisfied that the state of facts which called forth the legislation continues to subsist.

In the present case, the preamble to the Ordinance

clerly recites the state of facts which necessitated the enactment of the law in question, and s. 3 fixed the duration of the Act as two years, on an un<lerstanding of the situation as it then existed.

At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyon<l that period, if the state of affairs then should require it.

When such extrnsion is decided by the Rajpramukh and notified, the law that will operate is the law wbich was cmcteJ by the legislative authority in respect of ''place, person, laws, powers'', and it is clearly conditional and not delegated legislation as laid down in The Queen v. Burah ( 1), and must, in consequence, be held to be valid.

It follows that we are unabk to agrt>e with the statement of the law in /atindra Nath Gupta v.

The State . of Bihar(2) that a power to extend the life of an epactment. cannot validly be conferred on an outside authority.

In this view, the question as to the permissible limits of delegation of legislative authority on which the judgments in In re The Delhi Laws .Act, 1912(3 ), reveal a sharp conflict of opinion does not arise for consideration, anJ we reserve, our .. opii1ion thereon ..

(2) lt is next contended that the notification dated June 20, 1953, is bad, because after the Constitmioi1 came into force, the Rajpramukh derived his authority to legislate from Art. 385, and that under that Article his authority ceased when the Legislature of the State was constituted, which was in the present case, on March ?), 1952.

This argument proceeds on a misconception. :as to the true character of a notifi-· cation issued unt.ler s. 3 of the Ordinance.

It was not an independent piece of legislation such as could be enacted on I y by the then competent legislative

(1) (1878] 5 L:\. 178.

(3J (1951] S.C, R: 747

(o) [19.[9] F.C.R. 595.

Sardar lnder Sing•1

The Stale of

Rajasthar1

Vn1kntarmna

J!yyar ].

Sardar lnder Singh

T lu Stat~ of

Rqjasthafl

Venkatarama

Ayyar J.

authority of the State, but merely an exercise of a power conferred by a statute which had been previously ena\:ted by the appropriate. legislative authority.

The exercise of such a power is referable not to the legislative competence of the Rajpramukh but to Ordinance No. IX of 1949, and provided s. 3 is valid, the validity of the notification is co-extensive with that of the Ordinance.

If the Ordinance did not come to an end by reason of the fact that the authority of the Rajpramukh to legislate came to an end-and that is not and cannot be disputed-neither did the power to issue a notification which is conferred therein.

The true position is that it is in his character as the authority on whom power was conferred under s. 3 of the Ordinance that the Rajpramukh issued the impugned notification, and not as the legislative authority of the

Sate.

This objection should accordingly be overruled. ( 4) We shall next consider the contention that the provisions of the Ordinance are repugnant to Art. 14 of the Constitution, and that it must therefore be held to have become void.

In the argument before us, the attack was mainly directed against ss. 7 ( 1) and 15 of the Ordinance. The contention with reference to s. 7(1) is that under that section landlords who had tenants on thejr lands on April 1, 1948, were subjected to various restnct10ns in the enjoyment of their rights as owners, while other landlords were free from similar restnct10ns.

There is no substance in this contention.

The preamble to the Ordinance recites that there was

:i. growing tendency on the part of the landholders to eject tenants, and that it was therefore expedient to enact a law for giving them protection ; and for granting relief to them, the Legislature had necessarily to decide from what date the law should be given operation, and it decided that it should be from April 1, 1948.

That is a matter exclusively for the Legislature to determine, and the propriety of that determination is not open to que; tion in Courts.

We should add that the petitioners sought to dispute the correctness of the recitals in the preambk.

This they clearly cannot do.

Vide the observations of Holmes J. in Block v. Hirsh(').

(1) [1Q20] 256 U.S. 135 : 65 L. Ed. 865.

A more substantial contention is the one based on s. 15, which authorises' the Government to exempt any person or class of persons from the operation of the Aa. It is argued that that section does not Jay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14.

It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearnes& the policy of the Legislature ; and as that governs s. 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided.

Vide Harishanker Bag/a v. The State of Madhya Pradesh(1).

But even if s. 15 were to be held to be bad, that does not affec:t the rest of the legislation, as the matter dealt with in that section is clearly severable.

In fact, s. 15 was not in the Ordinance as it was originally enacted, and was only introduced later by Ordinance No. XII of 1949.

We must accordingly' hold that the impugned Ordinance cannot be held to be bad under Art. 14.

It is finally contnded that .the provisions of the Act are repugnant to Art. 19 (1) (f) in that they oblige the land-owners to kel"p tenants. on their lands, thereby preventing them from themselves cultivating the same.

The object of the .Ordinance, as set out in the preamble, is clearly not to put a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on , the land from getting rid of him without sufficient cause.

A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to b~ unreasonable.

Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus, in Block v. Hirsh(2 ), a statute which gave a right to tenants to continue in poss.ession eYen after the expiry of the lease, was held to he valid, Holmes J. observing,

(1) (1955] 1 S.C.R. 380, 388. (2) [1920] 256 U.S. 135; 65 L. Ed. 865.

1957 •• Sardar lnhr Singh

The State of Rajasthan

Venkataramd

Ayyar J.

Sardar Inder Singh

The State af Rajasthan

Venkawrama

Ayya~J-

"The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut <lown. But if the public interest bo established, the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settle<l since Mu1111 v. People of Illinois (') ..... .

The preference given to the tenant in possession is an almost necessary ingredient of the _policy, and is traditional in English law. If the tenant remained subject to the landlord's power to evict, the attempt to limit the landlord's demands would fail."

It should also be remembered in this connection that the impugned Ordinance is an emergency legislation of a temporary character, and, as observed in Dr. N. B.

Khare v. The State of Delhi('), that is a factor to he taken into account in judging of its reasonableness.

As already stated, the Ordinance has since come to an end, and has been . replaced by a comprehensive tenancy law.

In the circumstances, we are unable to hold that the impugned Ordinance is void as being in contravention of Art. 19 (1) (f).

All the contentions raised by the petitioners have failed, and the petitions should accordingly be dismisml, but in the circumstances, without costs.

(1) [1877] 94 U.S. 113: 24 L. Ed. 77-

(2) [1950] S.C.R. 519, 526.

Petitions dismissed.

605

SARDAR INDER SINGH

THE STATE OF RAJASTHAN

DAS C.J.

B. P. SINHA

SS. 3, 4, 7(1)

Constitution of India

s. 3(1)

Rajpramukh

June 14, 1951

Rajprarnukh

s. 3

June 21, 1949

s. 3

June 20, 1953

Art. 385

Constitution of India

Arts. 14 and 19(1)

Section 3

Sardar lnder Singh

State of

Rqjasthan

State of Bihar

s. 3

s. 15

1955) 1 S.C.R. 380

Art. 19(1)

S. 135

Article 32

Constitution of India

M. M. Tiwari

K. R. Chaudhry

Ganpat Rai

Porus A. Mehta

T. M. Sen

Udhai Bhan Chaudhry

K. P. Gupta

T arachand Brijmohan Lal

Bhawani Lal

P. C.

Aggarwal

S. S. Shukla

S. N. Anand

K. L. Mehta

VENKATARAMA

AYYAR

Art. 32

Rajputana

May 5, 1949

United State of Rajasthan

United State

Constitution of India

Constitution of India

First Schedule

Legislative Assembly of Rajasthan

March 29, 1952

Rajasthan

Section 4

Section 7

Section 3( 1)

June 21, 1951

June 21, 1953

Art. 385

February 15, 1954

Art. 238

s. 3

June 21, 1954

April 17, 1954

s. 3

October 15, 1955

s. 3

Art. 38

Art. 14

Art. 19(1)(g)

Kania

Mahajan

Muliherjea

s. 3

s. 3

Government of Bihar

March 7; 1949

Order Act V of 1947

Mar.ch 16, 1948

Section 1

s. 1(3)

State

Ayyar

Mukherjea

Faz! Ali

Burah

L.R. 5 I.A. 178

Bihar Government

s. 3

Bombay High Court

s. 4

Bombay City Civil Courts Act, 1948

[1949] F.C.R. 595

State of

Rajas

Art. 143

s. 3

[1949] F.C.R. 595

October 14, 1871

Khasi Hills

s. 9

J aintia Hills

Naga Hills

Selborne

India

Bengal

State of

Rajastha~

s. 3

Art. 385

s. 3

Sardar lnder Sing•1

s. 3

s. 3

Art. 14

ss. 7

s. 7(1)

April 1, 1948

Holmes

S. 135

s. 15

Art. 14

s. 15

s. 15

s. 15

Art. 14

Art. 19

America

(1955] 1 S.C.R. 380

S. 135

State of Rajasthan

Venkataramd

Ayyar

State af Rajasthan

Venkawrama

Ayya

Art. 19

S. 113


S.C.R.

SUPREME COURT REPORTS

K. N. MEHRA

fl.

THE STATE OF RAJASTHAN fJ AGAN N ADHADAS, JAl'ER IMAM and

MENON JJ.l

{; ovINDA

Aircraft, Theft of-Used for training-Implied consent- Dishonest intention-Temporary retention-Theft and Larceny, Di, tinctivn-lndian Penal Code (Act XLTI of 1860), ss. 23, 24, 378.

By s. 378 of the Indian Penal Code : "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent,

1m0\es that property in order to such taking, is said to commit theft".

P and the appel!ant were cadets on training in the Indian Air Force Academy, Jodhpur. but P had been discharged on the ground of misconduct, and on the day of the incident the appellant was due for a local flight in a Dakota as part of his training as a Navigator.

With the help of P, who knew flving, he took off another type of aircraft, Harvard H. T. 822. without authorisation. and on the same day thev force-landed at a place in Pakistan.

Some days later they contacted the authorities in the Indian High Corntnission and on their \vay to India they \Vere arrested at Jodhpur and prosecuted for the theft of the aircraft.

It was contended for the appdlant that as a cadet under training he was entitled to take an aircraft on flight and therefore there was an implied consent to the "moving" of the aircraft within the meaning of s. 378 of the Indian Penal CoJe, and consequently there could be no dishonest intention much less such an intention at the time when the flight was started, so as to constitute theft.

It was found that the purpose for which the flight was undertaken was to go to Pakistan with a view to seeking employment there.

Held, that as the flight was unauthorised there could be no consent. and as it was unlawful at the outset. in the circumstances of the case, and the appeilant obtained a temporary use of the aircraft for his ()\Vil purposes and deprived the c; mernment of its use, there was a dishonest intention, and consequently the flight constituted a theft of the aircraft.

A temporary retention of property by a person wrongfully gaining thereby. or a temporary keeping out of property from the person legally entitled thereto, ;1uy amount to theft under s. 378 of the Indian Penal Code, and in this respect the offence differs from "larceny" in English Law which contemplates permanent gain or less.

Queen-Empress v. Nagappa, ( 1890) l.L.R. 15 Rom. 344 and Queen-Empress v. Sri Ch1mi Clmngu ( 189~) l.L.R. 22 Cal. 1017, referred to.

Fehrua; y I I.

K.N. Mthra v.

Tht Statt of Rajasthan

CRnnNAT.

APPELLATJ: !L'Rrsn1cnoN : Criminal Appeal No. 51 nf J955.

Appeal by special leave from the judgment and orJcr c!ared October 22, 1953, of the Rajasthan High Court at jodhpur in Criminal Revision No. 88 of 1953 arising out of the judgment and order dated May 18, 1953, of the Court of Sessions jurlge at Jodhpur in Criminal Appeal No. 31 of 1953.

Jai Gopiil Sethi and W. S. Nantla, for the appellani.

R. Ganpat!ty Iyer, Porns A. Mehta and R. H. Dhebar, for the respondent.

~7. February 11. The )uJgment of the Court was delivered by

jAGANNADHADAS ).-The appellant, K. N. Mehra, anJ one M. Z. Phillips were both convicted under s. 379 of the Indian Penal Code and sentenced to simple imprisonment by the trial Magistrate for eighteen months anrl a fine of Rs. 750 with simple imprisonment in default of payment of fine for a further term of four months.

The conviction and sentence against them have been confirmed .on appeal by the Sessions Judge and on revision by the High Court. 1 ~.c appeal before us is by special leave obtained on behalf of the appellant Meh ra alone.

Both Mehra and Phillips were cadets on training in the Indian Air Force Academy, fodhpur.

The prosecution is with reference to an incident which is rather extraordinary being for alleged theft of an aircraft, which, according to the evidence of the Commanding Officer, P.W. l, has never so far occurred.

The alleged theft was on May 14, 1952.

Phillips was discharged from the Academy just the pre1'ious Jay, i.e., May 13, 1952, on grounds of misconduct.

Mehra was a cadet receiving training as a Navigator.

The duty of a Navigator is only to guide a pilot with the help of instruments and maps.

It is not clear from the evidence whether Philli!'' also had been recei. ing training as a Navigator. lt is in evidence, however, that he knew !lying.

On May 14 .• 1952, Phillips was due to leave Jodhpur by train in v.iew of his discharge.

Mehra was due for lligh1 in " Dakota as part of his training alon!!

with one Om Prakash; a flying cadet.· It is in evidence that he ha<l information about it.

The authorised time to take off for, the flight was between 6 a.m. to 6-30 a.m.

The cadets tinder .training have generally either local flights which mean flying area of about 20 miles from the aerodrnme or they may have cross-country exercises and have Bigbt in the country through the route for which they ::n<" sp.esifically authorised.. On .that morning admittedly Mehra and Phillips took off, not a Dakota, but a Harvard H.T. 822.

This was done before the prescrib('.d time, i.e., at about 5 a.m. without authorisation and without observing any of the formalities, which are l""eequisites for an aircraft-Bight.

It is also admitted that some time in the forenoon the same day they landed at a place in Pakistan about 100 miles away from .the IndcrPakistan border.

It is in the evidence of one J. C. Kapoor who was the Military Adviser to the Indian High Commissioner in Pakistan at Karachi, that Mehra and Phillips contacted him in person on the morning of May 16, 1952, at about 7 a.m. and informed him that they had lost their way and force-landed in a field, 'and that they left the plane there. They requested for his help to go back to Delhi.

Thereupon Kapoor arranged for both of them being sent back to Delhi in an Indian National Airways plane and also arranged for the Harvard aircraft being sent away to Jodhpur.

While they were thus on their return to Ddhi on 1'.fay 17, 1952, the plane was stopped at Jodhpur and they were both arrested.

The case for the prosecution, as appears from the questioning of the trial Magistrate under s. 342 of the Code of Criminal Procedure, was that Mehra along with his ccraccused Phillips stole away the aircraft Harvard H.T. 822 and flew with it to Pakistan with a dishonest intention. The defence, a~ appears from the ans~'lrers thereto, was as follows.

Mehra went to the aerodromt on the morning of May 14, at the usual time and took off the aircraft along with Phillips and they flew for some time.

After a short while the weather became bad and visibilitv bec:ime poor and hence they turned the aircraft back towards Jodhpur-side by guess. They continued what they thought to i the return journey

3-7~ S. C. Ind; a/59

K.N •• Hehra , ..

The Stal• of Rajasthan

Jagannadhadcu ].

K.N. Mehra

The State of Rajasthan

Jagannadhadas J.

for some time ; but finding the petrol nearing exhaustion they force-landed in a field which, ou enquiry, they came to know was in Pakistan territory.

This defence has not been accepted and the Courts below have held the prosecution case to have been proved.

Learned counsel for the appellant, Shri Sethi, attempted to minimise the gravity of the incident by characterising it as a thoughtless prank on the part of a young student aged about 22 years who was receiving training as a flying cadet and that there can be no question of any offence under the Penal Code having been committed, whatever may have been the breach of rules and regulations involved thereby.

None of the three courts below who have dealt with this case were prepared to accept any such suggestion.

Indeed in view of the fact that the appellant himself has not put forward any such defence it is impossible to accede to it.

The next contention of the learned counsel for the appellant-and that appears also to be the defence of the appellant-is that as a cadet under training he was entitled to take an aircraft on flight, no doubt subject to certain rules and regulations and that what at best happened was nothing more than an unauthorised flight by a trainee as part of his training which was due and in which he lost his way.

He had to get force-landed in an unknown place and this turned out to be Pakistan territory.

The prosecution case, however, is that the flight to Pakistan was intentional and that such flight in the circumstances constituted theft of the aircraft.

The main question of fact to be determined, therefore, is whether this was intentional flight into Pakistan (erritory.

It has been strenuously pressed upon us that the trial court was not prepared to accept the story that the flight was an intentional one to Pakistan and hence there was no justification for the appellate court and the High Court to find the contrary.

It is also pointed out that Kapoor, the Military Adviser to the Indian High Commissioner in Pakistan, gave evidence that when the appellant and Phillips met him at Karachi on the morning of May 16, 1952, they told him that they wanted to fly to Delhi with a view to contact the higher authorities

there.

It was also pointed out that neither the appellant nor Phillips took with them in the flight any of their belongings. Now it is clear from the judgments of the courts below that both the High Court on revision, as well as the Sessions Judge on appeal, came to a clear finding on this matter against the appellant.

It is true that the trial court said that the suggestion that the appellant and Phillips wanted to go to Delhi was not beyond the realm of possibility.

But it gave effect to this possibility only for determining the sentence.

The trial Court also seems to have been of the view that the flight was intended for Pakistan as appears from the following passage in its judgment.

"Although the facts on the record point almost conclusively that they were heading towards Pakistan, it is impossible to dismiss the other theory beyond the realm of possibility that they were going to Delhi to contact the higher authorities there."

In contemplating this possibility the trial Court seems to have lost sight of the fact that the Delhi theory was not the defence of the appellant in his answers to the questioning under s. 342 of the Code of Criminal Procedure.

It was obviously an excuse given to Kapoor in order to impress him that their flight was innocent and to persuade him to send them back to Delhi instead of to Jodhpur.

The significance of this plea, however, is that the suggestion that the flight was by way of a prank or as part of the flying lessons though unauthorised in the particular instance, is clearly untenable.

In view however of the somewhat halting finding of the trial Court on this matter, we have been taken through the evidence.

It would be enough to mention broadly the facts from which, in our opinion, the conclusion arrived at by the Courts below that the flight was intended for Pakistan is not without sufficient reason and jutification. . As already stated, the aircraft in which the appellant was scheduled to fly on the morning of May 14, was a Dakota but he took off in a Harvard plane.

It is in evidence that this was done between 5 a.m. and 5-30 a.m., i.e., before the prescribed time.

The plane had just then been

K.N. Mehra

The State ef

Rajasthan

Jagannadhadas J.

N. Meltra

T k Stai. of

Rajasthan

gmotatlhadas J,

' brought out from the hangar in order to be utilised for some other flight in the regular course.

Appellant started the engine himself by misrepresenting to P. W. 12, the mechanic on duty at the hangar, that he had the permission of the Section Officer in charge.

He was scheduled to have the flight along with another person, a flight-cadet by name Om Prakash.

But he did not fly with Om Prakash, but managed to take with him a discharged cadet, Phillips, who knew flying.

Before any aircraft can be taken off, the fiight has to be authorised by the Flight Commander.

A flight authorisation book and form No. 700 have to be signed by the person who is to take off the aircraft for the flight Admittedly these have not been done in this case and no authorisation was given.

The explanation of the appellant is that this is not uncommon.

These, however, are not merely empty formalities but are required for the safety of the aircraft as well as of the persons flying in it.

It is impossible to accept the suggestion of the appellant that it is usual to allow trainees to take off the aircraft . without complying with these essential preliminaries.

No such suggestion has been made in cross-examination to any of the officers, and witnesses, who have been examined for the prosecution. It is in evidence that as soon as the taking off of the aircraft was discovered, it inevitably attracted the attention of officers and other persons in the aerodrome and that radio signals were immediately sent out to the occupants in (he aircraft to bring the same back at once to the aerndrome.

But these signals were not heeded.

The explanation of the appellant is that the full apparatus of the radio-telephone was not with them in the aircraft and that he did not receive the message.

The appellant goes so far as to say that there were also no maps . or compass or watch if) the aircraft.

It is proved, however, on the evidence of the responsible officers connected with the aerodrome and by production of . Ex. P-6, that this particular aircraft, before it was brought out from the hangar, had been tested and was airworthy.

It is difficult to believe that the flight would have been undertaken without all the

equipment being in order.

Even according to the evidence of Kapoor, the Military Adviser to the Indian High Commissioner in Pakistan, the appellant and Phillips had told him that the plane was airworthy.

The suggestion of the appellant, therefore, in this behalf cannot obviously be accepted.

It has been pointed out to us that there is some support in the evidence for the suggestion of force-landing on account of the weather being bad and the visibility being poor.

This may be so, but would not explain why the aircraft got force-landed after going beyond the Inrlo- Pakistan border.

There is evidence to show that the appellant Mehra was feeling some kind of dissatisfaction with his course and was contemplating a change.

Seeking employment in Pakistan was, according to the evidence, one of the ideas in his mind, though in a very indefinite sort of way.

Having regard to all these circumstances and the fact that must be assumed against the appellant that an airworthy aircraft was taken off for flight and that a person like Phillips who knew flying sufficiently well and who was discharged the previous day, was deliberately taken into the aircraft, we are satisfied that the finding of the Courts below, viz., that the flight to Pakistan was intentional and not accidental, was justified.

It is, therefore, not possible to treat the facts of this case as being a mere prank or as an unauthorised cross-country flight in the course of which the border was accidentally crossed and force-landing became inevitable.

It has been strenuously urged that if the flight was intended to be to Pakistan the appellant and Phillips would not have contacted Kapoo:- and requested him to send them back to Delhi.

But this does not necessarily negative their intention at the time of taking off.

It may be that after reaching Pakistan the impracticability of their venture dawned upon them and they gave it up. It may be noticed that they were in fact in Pakistan territory for three days and we have nothing but their own word as to how they spent the time on the 14th and 15th.

However this may be, if the circumstances are such from which a Court of fact is in a position to infer the purpose

/(. N. Mehra

The State of Rajas than

Jagannadhadas ].

K . .N. ¥ehra

v~ The State of Rajasthan

Jagannadhadas J.

and intention and the story of having lost the way cannot be accepted having regard to the aircraft being airworthy, with the necessary equipment, the finding that it was a deliberate flight to Pakistan cannot be said to be unreasonable.

It may be true that they did not take with them any of their belongings but this was probably part of the plan in order to take off by surprise and does not exclude the idea of an exploratory flight to Pakistan.

We must, therefore, accept the findings of the Courts below.

In that view, the only point for consideration is whether the facts held to be proved constitute theft under s. 378 of the Indian Penal Code.

Theft is defined in s. 378 of the Indian Penal Code as follows :

"Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention.

Thus, (1) the absence of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft.

In the Courts below a contention was raised, which has also been pressed here, that in the circumstances of this case there was implied consent to the moving of the aircraft inasmuch as the appellant 'was a cadet who, in the normal course, would be allowed to fly in an aircraft for purposes of training.

It is quite clear, however, that the taking out. of the aircraft in the. present case had no relation to any such training.

It was in an aircraft different from that which was intended for the appellant's training course for the day.

It was taken out without the authority of the Flight Commander and, before the appointed time, in the company of a person like Phillips who, having been discharged, could not be allowed to fly in the aircraft.

The flight _ was persisted in, in spite of signals to return back

when the unauthorised nature of the flight was discovered. It is impossible to imply consent in such a situation.

The main contention of the learned counsel for the appellant, however, is that there is no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started.

It \s right! y pointed out that since the definition of theft requires that the moving of the property is to be in order to such taking, "such" meaning "intending to take dishonestly'', the very moving out must be with the dishonest intention.

It is accordingly necessary to consider what "dishonest" intention consists of under the Indian Penal Code. Section 24 of the Code says that "whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly".

Section 23 of the Code says as follows : " 'Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled. 'Wrongful loss' is the loss by unlawful means of property to which the person losing it is legally entitled.

A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully.

A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."

Taking these two definitions together, a person can be said to have dishonest intention if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally entitled.

It is further clear from the definition that the gain or loss contemplated need not be a total acquisition or a total deprivation but it is enough if it is a temporary retention of property by the person wrongfully gaining or a temporary "keeping out" of property from the person legally entitled. This is

K. N. Mehra

v; The StaU of Rajasthan

Jaga"nadhadas J.

K.N. Mehrt!

The State of

Rajasthnn

JagrmnadhaJas J.

clearly brought out in illustration (1) to s. 378 of the Indian Penal Code and is uniformly recognised by various decisions of the High Courts which point out that in this respect "theft" under the Indian Penal Code differs from "larceny" in English law which contemplated permanent gain or loss. (See Queen- Empress v. Sri Chum C!umr;; o (1 ), and Queen-Empress v.

Nagqppa (' ), In the pre; ent case thee can be no reasonable doubt that the taking out of the Harvard aircraft by the appellant for the unauthorised flight has in fact given the appellant the temporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the J ndian Air Force Squadron that day.

Such use being unauthorised and against all the regulations of aircraft-flying was clearly a gain or loss by u_nlawful means.

Further, the unlawful aspect is emphasised by the fact that it was for flight to a place in Pakistan.

Learned counsel for the appellant has urged that the courts helow have treated absence of consent as making out dishonesty and h:ive not clearly appreciated that the two are distinct and essential constituents of the offence of theft.

The true position, however, is that all the circumtances of the unamhorised flight justify the conclusion both as to the absence of consent and as to the unlawfulness of the means by which there has been a temporary gain or loss by the use of fihe aircraft. \Ve are, therefore, sati, fied that there has been both wrongful gain to the appel\ant and wrongtul loss to the Government.

The only f1trther questions that remain for consideration, therefore, ar~ vvhethcr the causing of such wrongful gain or loss, was intentional and if so whether such intention was entertained at the time when the aircraft was taken.

If, as already found, the purpose for which the flight was undertaken was to go to Pakistan, and if in order to achieve that purpose, breach of various regulations relating to the initial taking out nf such aircraft for flight was committed at the very outset, there is no difficulty in coming to the

(<) [1895] I.L.R. 22 Cal. 1017.

(2) [1890] l.L.R. 15 Born.

...

conclusion, as the courts below have done, that the dishonest intention, if any, was at the very outset.

This is not a case where a person in the position of the appellant started on an authorised flight and exploited it for a <lishonest purpose in the course thereof.

In such a case, inference of initial dishonest intention may be difficult.

The question, however, is whether the wrongful gain and the wrongful loss were intentional.

It is urged that the well-known distinction which the Penal Code makes, in various places, between intention to cause a particular result and the knowledge of likelihood of causing a particular result has not been appreciated.

It is also suggested that the decided cases have pointed out that the maxim that every person must be taken to intend the natural consequence of his acts, is a legal fiction which is not recognised for penal consequences in the Indian Penal Code. (See Vullappa

v. Bheema Row ( 1), Now whatever may be said about these distinctions in an appropriate case, there is no scope for any doubt in this case, that though the ultimate purpose of the flight was to go to Pakistan, the use of the aircraft for that purpose and the unauthorised and hence unlawful gain of that use to the appellant and the consequent loss to the Government of its legitimate use, can only be considered intentional.

This is not by virtue of any presumption but as a legitimate inference from the facts and circumstances of the case.

We are, therefore, satisfied that the facts proved constitute theft.

The conviction of the appellant under s. 379 of the Indian Penal Code is, in our opinion, right and there is no reason to interfere with the same.

Learned counsel for the appellant has very strenuously urged that the circumstances of the case do not warrant the imposition of a substantial sentence of

(simple) imprisonment for eighteen months.

He also urges that the appellant, who is now on bail, has undergone his sentence for nearly an year and presses upon us that the interests of the justice in the case, do not require that, after the lapse of over four years from the date of the commission of the offence, a young man

(1) A.I.R. 1918 1hd. 136(2) F.B.

K.N. Mehta

The State of Rajasthan J agannadhadas J.

K.N.Mehra

The State of Rajasthan

Jagannadhadas J.

February 12,

in the appellant's situation should be sent back to jail to serve out the rest of the sentence.

We have ascertained from the Advocate appeanng for the Government that the appellant has already served a sentence of 11 months and 27 days. Learned counsel for the appellant has also informed us that the appellant was in judicial custody for about eleven months as an under-trial prisoner. In view of all the circumstances of the case, we agree that the interests of justice do not call for his being sent back to jail.

While, therefore, maintaining the conviction of the appellant, K. N. Mehra, we reduce the sentence of imprisonment against him to the period already undergone.

The sentence of fine and the sentence of imprisonment in default thereof shall stand.

With this modification, in sentence, the appeal is dismissed.

Appeal dismissed, and sentence modified.

HANSRAJ MOOLJI

ti.

THE STATE OF BOMBAY

[BHAGWATJ, JAGANNADHADAS, )AFER IMAM,

 GovINDA MENON and j. L. KAPUR, JJ.J

Ordinance, duration of-Promulgaiion under the Emergency ProvisionJ-Declaration of ter1nination of emergency-Scope and effect-Operation of Ordinance after end of emergency-Government of India Act, 1935 (25 & 26 Geo. 5 Ch. 42). Sch. 9 s. 72-India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33), ss. 1 (3), J-High Denomination Bank Not('s (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946), ss. 4. 7.

Under s. 72 of the 9th Sch. of the Government of India Act, 1935 : "The Governor-General may, in cases of en1ergency, make and promulgate ordinances ... and any ordinance so 1nadc shall, for the space of not more than six months from its pron1ulgation, have the like force of la\.V as an Act passed by the Indian Legislature . .. "; s. I ( ~) of the India and Burma ( E1nergency Provisions) Act, 1940, provided that s. 72 of the Government of India Act, 1935, shall as respects Ordinances made during the period beginning with Tune 27, 1940, the <late of the passing of that Act, and ending \.Vith such date as His Majesty may by Order in Council declare to be the end of the emergency, have effect as if

...

K. N. MEHRA

THE STATE OF RAJASTHAN

JAl'ER IMAM

MENON JJ

Penal Code

ss. 23, 24, 378

s. 378

Indian Penal Code

Indian Air Force Academy, Jodhpur

Pakistan

Indian High Corntnission

Jodhpur

s. 378

s. 378

Indian Penal Code

Jai Gopiil Sethi

W. S. Nantla

R. Ganpat!ty Iyer

Porns A. Mehta

R. H. Dhebar

K. N. Mehra

M. Z. Phillips

s. 379

Indian Penal Code

Meh

ra

Mehra

Phillips

Indian Air Force Academy, fodhpur

May 14, 1952

Phillips

May 13, 1952

Mehra

Philli

May 14 .• 1952

Dakota

Om Prakash

J. C. Kapoor

Karachi

May 16, 1952

Delhi

Kapoor

Ddhi

1'.fay 17, 1952

s. 342

Code of Criminal Procedure

K.N. Mehra

State of Rajasthan

Jagannadhadas

Sethi

Penal Code

s. 342

Code of Criminal Procedure

N. Meltra

gmotatlhadas

Kapoor

Kapoo:-

N. Mehra

State of Rajas

Jagannadhadas

K . .N. ¥

State of Rajasthan

s. 378

Indian Penal Code

s. 378

Indian Penal Code

Indian Penal Code

Section 24

Section 23

StaU of Rajasthan

Jaga"nadhadas

K.N. Mehrt

State of

Rajasthnn

JagrmnadhaJas J.

s. 378

Indian Penal Code

Indian Penal Code

J ndian Air Force Squadron

Penal Code

Indian Penal Code

s. 379

Indian Penal Code

K.N. Mehta

State of Rajasthan J agannadhadas

HANSRAJ MOOLJI

STATE OF BOMBAY

AFER IMAM

GovINDA MENON

L. KAPUR

s. 72

ss. 1

ss. 4

s. 72

Government of India Act, 1935

s. 72

Government of India Act, 1935

Tune 27, 1940