TaxTMI 
TaxTMI 
1995 (5) TMI 245
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....hat it is not inconsistent with the CPC Central (Amendment) Act 104/76 (for short, 'the Central Act') and is not void under Article 254(1) of the Constitution. By U.P. Act 37/72, s.4 of the Provincial Small Causes Court Act was amended empowering the Court of Small Causes to decree suit for possession of immovable property and for recovery of arrears of rent or interest in such property. By U.P. Act 37/72, brought on statute, Rule 5 of Order 15, stating thus:- "5. Striking off defence on failure to deposit admitted rent, etc. - (I) In any suit by a lessor for the eviction of a lessee after the determination of his lease and for the recovery from him of rent or compensation for use and occupation, the defendants shall, at or before the first hearing of the suit, deposit the entire amount admitted by him to be due together with interest thereon at the rate of nine per centum per annum and whether or not he admits any amount to be due, he shall throughout the continuation of the suit regularly deposit the monthly amount due within a week from the date of its accrual, and in the event of any default in making, the deposit of the entire amount admitted by him to be d....
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.... in the Central Gazette on December 10, 1976, the U.P. State Legislature swung into action and enacted U.P. Civil Laws (Reforms and Amendment) Act 57/76 on December 13, 1976 reserved for consideration and received the assent of the President on December 30, 1976. It was published in the Gazette on December 31, 1976 brought into force with effect from January 1, 1977. The Central Act became operative with effect from February 1, 1977. In U.P. Act 57/76 "by s.7 thereof, three Explanations to Sub-rule (1) to Rule 5 of Order 15 were added as referred to hereinbefore. When these appeals came up for final disposal, on July 14, 1987 a Bench consisting of E.S. Venkataramaiah and K.N. Singh, JJ (as they then were) referred the appeals for consideration by a Bench of three Judges. Thus these appeals have come up before us. Shri Parag, learned counsel, after thorough preparation, placing strong reliance on Ganpat Giri v. Ilnd Addl. District Judge, (1986) 1 SCR 151, argued with commitment and conviction, that the object of the Central Act was that Parliament intended that CPC should be uniform throughout India. The U.P. Act came into force prior to the Central Act was brought into fo....
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...., the State legislature stepped in and introduced Rule 5 to Order 15 so as to enable the landlord to make an application to the Court for direction to pay the admitted rent and on an order passed in that behalf and on failure to comply therewith, the Court is empowered to strike off the defence of the tenant so as to enable the landlord to have the suit decreed and to recover possession and arrears of rent. The Central Act was enacted pursuant to the recommendation made by the Law Commission of India. The Central Act is an Amending Act as its title itself unmistakably indicates. In Order 15, the Central Act amended only Rule 2 but Rules 3 and 4 remain unamended. The U.P. Act, added Rule 5 to get over the inequilibrium created by recalcitrant tenants, giving an opportunity to the defaulting tenants to pay the admitted rent pending suit at the pain of striking down the defence. The question, therefore, is whether Rule 5 of Order 15 is inconsistent with the Central Act and thereby became void under Article 254(1) of the Constitution? Entry 13 of the Concurrent List of the 7th Schedule to the Court, namely, Civil Procedure, including all matters included in the Code....
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....tion is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will equally applicable to a question under article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law." It was held that Bombay Act cannot prevail against the Central Act. This Court in Ch. Tika Ramji v. State of U.P., [1956] SCR 393, another Constitution Bench was to consider whether the U.P. Sugarcane Act, 1953 was inconsistent with the Essential Commodities Act, 1955. Having adverted to the three principles laid by Nicholas in his Australian Constitution, 2nd Ed. p.303 approved them as those applicable to test inconsistency or repugnancy, namely (1) there may be inconsistency in the actual terms between competing statutes, (2) though there may be no direct conflict, a State law may be inoperative because the Commonwealth law or the award of the Commonwealth Court, is intended to be complete exhaustive code, and (3) even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers for the same subject matter. It was, theref....
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.... altered or derogated merely by force of such general words without any indication of a particular intention to do so. Mere general rule is not enough even though by its term, it is stated widely that it would, taken by itself, cover special cases of that kind referred to earlier. In Gauri Shankar Gaur v. State of U.P., [1994] 1 SCC 92, the question was whether the Land Acquisition (Amendment) Act 68/84 repealed the U.P. Avas and Vikas Parishad Adhiniyam, 1965, one of us (K. Ramaswamy, J.) considered the case law whether Central Act would be applicable by reference or by incorporation and held that certain provisions of the Central Act were by incorporation and not by reference. On incompatibility under Article 254 of the Constitution, considered the cases starting from Zaverbhai's upto T. Barai v. Henry Ah Hoe, [1983] 1 SCR 905, held that the State law was not repugnant to the Central Act and both would operate consistently and they did not occupy the same field. State law was not fully inconsistent with the Central Act. Equally, it is not absolutely irreconcilable. Both the State and the Central Acts do co-exist in relation to the procedure prescribed under the respecti....
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.... legislature or a provision by the High Court" before the "commencement" of this Act stood repealed. It is to be noted here that the Central Act is an amending Act, not a repealing and consolidating statute to supplant the Principal Act, namely, Act 5 of 1908. Since CPC is a concurrent subject, the Parliament and the Legislature of a State or a High Court in respect of orders in the Schedule are competent to enact or amend CPC respectively. In fact several local amendments made to CPC before the commencement of the Central Act do exist. Pursuant to the recommendation made by the Law. Commission of India to shorten the litigation, the Parliament made the Central Act to streamline the procedure. It is true that inconsistency in the operation of the Central and the State Law would generally arise only after the respective Acts commenced their operation. Section 3(13) of the General Clauses Act defines "commencement" to mean the day on which the Act or Regulation comes into force. The founding fathers were cognizant to the distinction between making the law and commencement of the operation of the Act or Regulation. Article 254, clauses (1) and (2) and in a way s.97 of the Central Act ....
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.... commencement of the respective Acts made by the Parliament and the State legislature. Therefore, the emphasis on commencement of the Act and inconsistency in the operation thereafter does not become relevant when its voidness is required to be decided on the anvil of Art. 254(1). Moreover the legislative business of making law entailing with valuable public time and enormous expenditure would not be made to depend on the volition of the executive to notify the commencement of the Act. In compatibility or repugnancy would be apparent when the effect of the operation is visualised by comparative study. It is true that CPC, the principal Act No. 5 of 1908 as amended by the Central Act and the pre-existing State amendment or a provision made by a High Court was intended to be consistent so that the procedure would uniformly be efficacious and expeditious in adjudicating the substantive civil rights of the parties. It, thereby manifested its intention that there should be amendment to the Principal Act by the Central Act to a particular Section or a Rule or sub-rule or a provision in an Order in the Schedule. If the Principal Act, as so amended, and the pre-existing State ame....
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....ous provisions of the CPC by only 96 Sections to the main Code. It is also true that s.97(l) of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State legislature or a High Court before the commencement of the Central Act shall, except in so far as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act, stood repealed. The contention advanced by the learned counsel for the appellants is that all pre-existing amendments stood obliterated unless fresh amendment, by the State Legislature or a High Court, is made after February 1, 1977 reserved for consideration and received the assent of the President. In support thereof they placed reliance on the ratio in Ganpat Gin's case. It may be mentioned at once that Justice Venkataramaiah (as he then was) who rendered the judgment in Ganpat Gin's case, on behalf of a Bench of two judges, himself referred the cases for consideration by a three Judge Bench. In that case, some observations made would lend support to the contention of the appellant. It was observed thus: "(i) The object of Section 97 of the Amending Act appears to be t....
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....n equilibrium between the rights of the tenants of their fixity of tenures subject to compliance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the President and became a statute. Three Explanations were made by U.P. Act 57/76 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and not a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the State Act made no amendment to Order 15 Rule 2. Rule 5 as was pre- existing was not dealt with in the Central Act. On the other hand, Section 35-B of the Code empowers the Court to strike down the defence if costs are not paid as directed by the Court. Equally, Order 6 Rule 16 empowers the Court to strike down the pleading on conditions mentioned in the said Rule. Order 11 Rule 21 empowers the Court to strike down the defence in case the party fails to comply with any order to answer interrogatories for discovery or inspection of the documents. The Code, thus, by itself envisages striking of the defence in the stated circumstances. Similar provision made by the State Legis....
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....or eviction under the Rent Control Act. The jurisdiction of the Small Causes Court in that behalf was expressly taken out. The further contention that Order 15 Rule 5 makes arbitrary discrimination between two classes of tenants, namely, one making a bona fide mistake in not depositing the rent prior to the date of the first hearing and the other a dishonest tenant who takes a plea disputing the rent itself and permitted the latter to contest the suit by an adjudication and the former is negated by striking down the defence which violates Article 14 also is untenable. As stated earlier the bonafide mistake on the part of the tenant in depositing the rent was given benefit of the discretionary relief may be granted by the Court considering from the previous conduct of the tenant and the mitigating circumstances, if any. Therefore, they are treated as a class. The dispute of tenancy and right to adjudication thereon also stands as a class. The tenant in default at a suit in the court of Small Causes is given right to contest the suit subject to his paying the admitted rent. It is a condition precedent. All those tenants are treated as a class. There is no invidious discrimination in ....