JUDGMENT
Wanchoo, C.J.
1. This is an application by Lachhman Singh for a writ of certiorari under Article 226 of the Constitution, and has arisen in the following circumstances :
2. Ghisa Bai, Gajra Bai, and Phunda Bai, opposite parties, made an application under Section 7 of the Rajasthan (Protection of Tenants) Ordinance 9 of 1949, for reinstatement over certain lands of which Lachhman Singh had taken possession. Their case was that they were tenants of the land for a long time but had been ejected without process of law by Lachhman Singh applicant. Thereafter, they were put back in possession in June, 1947. They were, however, again ejected by Lachhman Singh, and thereafter regained possession on the 27th April, 1948. They were again ejected soon after by Lachhman Singh without any authority of law. They therefore claimed reinstatement as mentioned above.
3. The Sub-Divisional Officer came to the conclusion that the applicants had been ejected in June or July, 1947, and got back possession on the 27th April 1948, and were ejected again thereafter. He, therefore, ordered them to be put back in possession, and this order was upheld by the Board of Revenue on the 20th of July 1950. Thereafter, there was a review by the applicant, as his contention was that the three ladies were not in occupation on the 1st of April 1948, and therefore the Revenue Courts had no jurisdiction to reinstate them under Section 7 of the Ordinance. This application was however rejected. The Board held that the ladies were in possession. in June 1947, and were ejected soon after, and were again in possession on the 27th April 1948, whereafter they were again ejected. It was further held that’ from all these facts it was clear that the ladies were legally in possession of the holding on the 1st of April 1948, although they were not in cultivatory possession and the actual possession was with Lachhman Singh who was a trespasser. The Board went on to say that it seemed equitable to hold that the entry in the name of the tenants as against a trespasser should be recognised as occupation of the holding for purposes of Section 7 of the Rajasthan (Protection of Tenants) Ordinance, 1949.
4. It has been contended on behalf of the applicant that the Revenue Courts had no jurisdiction to pass an order under Ordinance 9 of 1949, as the three ladies were not in possession on the 1st April 1948. Reliance is placed on the words of Section 7 which are as follows : "Any tenant who was in occupation of his holding on the first day of April 1948 and has thereafter been ejected therefrom, or dispossessed thereof or from or any part thereof before the commencement of this Ordinance, otherwise than by process of law ..... may, within three months from the date of such ejectment or dispossession or the commencement of this Ordinance, whichever happens to be later, apply to the Sub-Divisional Officer or other officer of equal status for his re-instatement in such holding or part as the case may be."
5. It is obvious from a bare perusal of this section that it is not enough for a person to be a tenant to get re-instatement. It is also necessary that the tenant should have been in occupation of the holding on the first day of April 1948. This occupation may be by means of actual cultivatory possession or through a subtenant. In this case the finding of the Board is that the three ladies came into possession on the 27th April 1948, and were obviously not in occupation of the holding on the 1st of April either through actual cultivatory possession or through any sub-tenant of theirs. Under these circumstances, the mere fact that the ladies were tenants of the holding would not entitle them to reinstatement under this section, as the second condition, namely that the tenants should be in occupation of the holding on the 1st day of April, 1948, has not been fulfilled in this case. Inasmuch as the Revenue Court and the Board gave themselves jurisdiction by a patently wrong decision on a question of collateral fact on which their jurisdiction depended, this Court has jurisdiction to interfere on a writ of certiorari. The decision of these collateral facts, namely, whether the person applying under Section 7 was a tenant and was in occupation on the first day of April 1948, has not been left solely to the decision of the revenue court as is apparent from the words used in Section 7, wherein an objective test is obviously implied. In this connection reference may be
made to the very lucid exposition of the law by Lord Esher, M. R. in the –‘Queen v. Commissioner for Special Purposes of the Income-tax’, (1) in these words:
“When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases 1 have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”
The present case is of the first kind contemplated by Lord Esher. The Board, therefore, made a patent mistake when they held that the three ladies, merely because they were tenants, were entitled to reinstatement, for under Section 7 they had further to find that the three ladies were in occupation of the holding on the 1st of April 1948, which they did not find.
6. This, however, does not dispose of the present case in view of a recent amendment of Section 7 of the Ordinance, which reads as follows: “2. Amendment of Section 7:– In Sub-section (1) of the Rajasthan (Protection of Tenants) Ordinance, 1949, for the words and figures “was in occupation of his holding on the first day of April 1948, and”, the words and figures “being in occupation of his holding on or after the first day of April 1948″ shall be substituted.” (Vide Law Department Notification No. F. 12(19)-L/52, dated 9th May 1952). If this amendment applies to this case, the three ladies would be protected, because they were in possession on the 27th April 1948 and were ejected sometime afterwards. The contention on their behalf and on behalf of the State is that in view of this amendment, the application should be dismissed.
7. This argument however is met on behalf of the applicant in two ways. In the first place, it is urged that the proceedings under the Rajasthan (Protection of Tenants) Ordinance, 1949 came to an end with the decision of the Board on review on the 11th June, 1951, long before the amendment was made, and therefore
there are no pending proceedings to which the amendment can apply. In the alternative, it is urged that even if the proceedings are held to be pending now, the amendment has no retrospective operation and therefore would not apply to the present case.
8. So far as the first argument is concerned, namely, that no proceedings are pending now, we do not see any force in that. It is true that the proceedings before us are in our extraordinary jurisdiction under Article 226 of the Constitution. But the effect of our order setting aside the order of the Board would be to reverse the judgment of the Board, and three ladies, who have been ordered to be put back in possession by the Board, would not get back possession. When this is the effect of the order that we may pass in this case, we are of opinion that the proceedings under the Rajasthan (Protection of Tenants) Ordinance must be held to be pending. It is true that generally the High Court, when exercising its extraordinary powers under the writ of certiorari, merely quashes the order of the subordinate tribunal and does not substitute its own operative order in its place; and leaves the competent authority to pass the right order. But where, as in this case, the result would be to reverse the order of the Board, and it will not be possible for the three ladies to apply again for protection, we are of opinion that the proceedings must be held to be pending.
9. Then we turn to the question whether the amendment is retrospective in nature in the sense that it applies to all pending cases. There are no words in the amending Act itself expressly applying the amendment retrospectively to pending cases. It is however well settled now that even when there are no express words which make an amending law apply retrospectively to pending cases, it is possible to hold that the amending law is retrospective in its operation so far as pending cases are concerned. In — ‘Hutchinson v. Jauncey’ (2), Sir Raymond Evershed M. R. laid down that retrospective operation to a statute may be given although there are no express terms in the statute to indicate that, provided there is necessary intendment of the Act to affect pending cause of action. In this case, the dictum of Sir George Jessel M. R. in — ‘Re: Joseph Suche & Co. Ltd.’ (3) was criticised as too narrow as it limited the retrospective effect by necessary intendment to those cases only where the law merely affected procedure and not rights of action or existing rights. There is a difference between the interpretation of penal Acts and remedial Acts, the construction being stricter in the case of penal Acts and wider in the case of remedial Acts. Reference in this connection may be made to Craies on Statute Law, Fourth Edition, at page 342, where the following passage appears:
“If a statute is passed for the purpose of protecting the public against some evil or abuse, it will be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.”
10. The present amendment is obviously of a remedial nature intended to remedy the effect in the original ordinance. According to the words of the original ordinance, a tenant, who was in occupation on a particular date, namely the 1st of April, and had been ejected without process of law, was only protected. This obviously worked harshly for a tenant in possession on, say, the 31st March, or 2nd of April 1948, would not be protected because, he was not in occupation on the 1st April 1948. It was to remedy this obvious defect that the amendment was passed and it seems to us that the intention of the legislature necessarily was that the law as amended should apply to all pending cases, so that the defect which was discovered, might not work harshly in such cases.
11. It has been urged that the amendment can only apply to those, cases where the ejectment took place after the amendment, and to no others, for Section 7 provides that a tenant, who has been ejected without the authority of law before the commencement of the Ordinance, may apply within three months to get re-in-statement, and this period of limitation was not changed by the legislature. There is no doubt that the period of limitation was not changed by the legislature; but that does not mean that the Act will not apply retrospectively to pending cases. Section 7(1) (b) provides for protection of tenants who were ejected after the commencement of the Ordinance in contravention of its terms. In that case also the condition was the same, namely that the tenant should have been in occupation of the holding on the first day of April, 1948. Now, under the amendment, occupation even after 1st April 1948, is sufficient for the protection of the tenant. It seems to us that the Legislature clearly intended that all those tenants whose cases were pending should be protected under the amendment, otherwise the mischief to meet which the amendment was passed would still continue. We may give three instances to test whether the intention was to apply the amendment to all pending cases retrospectively. Let us suppose that a tenant was ejected on the 1st of March 1952, in contravention of the provisions of the Ordinance, and he was in occupation of the holding not on the 1st of April, but on the 2nd of April. One such tenant flies his application on the 1st April 1952. Another such tenant files his application on the 1st of June 1952. Then take the case of a tenant who is ejected on the 15th May 1952, after the amendment Came into force, and files his application on the 1st June 1952, this tenant being also in occupation not on the 1st April 1948 but on the 2nd of April. If the argument on behalf of the applicant is sound, the amendment would apply only in the third case, and the tenants in the first two cases would not be protected, because in their case the ejectment took place before the amendment. It could, in our opinion, be hardly the intention of the legislature not to protect the first two tenants when their applications were pending, though in one case the application was made before the amendment, and in the other after the amendment.
12. Considering therefore that this amendment is remedial legislation, we are of opinion that the benefit of it should be given retrospectively to all tenants whose cases were pending on the date of the amendment and that the legislature necessarily intended the benefit to be given to all such tenants. In view of this the three ladies being in possession on the 27th of April 1948, and having been ejected before the commencement of the Ordinance otherwise than by process of law, would be entitled to the benefit of the amendment. We feel therefore that we should not exercise our extraordinary jurisdiction under Article 226 of the Constitution in favour of the applicant,
for if the Board of Revenue were to decide the matter now, they would give protection to the three ladies, and this is what in effect the order of the Board amounts to.
13. We, therefore, dismiss the application,
but in view of the peculiar circumstances of
this case, order parties to bear their own costs.