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1988 (10) TMI 286
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....ration is that in the case of Brij S under Kapoor v. Addl. District Judge reported in 1980. All R C 319. which answered the question in the affirmative. The Allahabad High Court has reiterated the same view in its later decision in Lekh Raj v. 4th Addl. Dt. Judge, Meerut AIR1982All265 , which we are told, is also under appeal to This court. 2. It is sufficient to set out certain brief facts in the matter of Brij Sunder Kapoor (C.A.No. 2606 of 1980) in order to appreciate the question of law that arises for consideration. Jhansi is a cantonment in Uttar Pradesh. Brij Sunder Kapoor is a tenant of premises No. 103, Sadar Bazar, Jhansi of which respondent No. 3 Bhagwan Das Gupta is the landlord. In 1975, the landlord Bhagwan Das Gupta filed an application before the prescribed authority under Section 21 of the Act praying that he needed the above premises for his personal occupation and that the same may be released to him. The tenant contested the application. The application was dismissed by the prescribed authority but allowed, on appeal, by the Additional District Judge. The tenant preferred a writ petition which has been dismissed by a learned single Judge of the Allahabad High....
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....t enacted the Cantonments (Extension of Rent Control Laws) Act, 1957 (Act XLVI of 1957). Act 22 of 1972 gave it retrospective effect from 26-1-1950. It provided for the extension, to cantonments in each State, of laws relating to the control of rent and regulation of house accommodation prevalent in the particular State in respect of areas other than cantonments. The Statement of Objects and Reasons of this Act specifically states that the Act became necessary because the power to make laws with respect to rent control and house accommodation in cantonment areas is exclusively vested in Parliament. Section 3 of this Act originally read thus: Thus Central Government may by notification in the official gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force on the date of notification in the State in which the cantonment is situated. The words on the date of the notification" in he section were omitted by Section 3 of Central Act 22 of 1972 with full retrospective effect. 6. The promulgation of this Act created a somewhat anomalous ....
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.... view of the above notification that respondent No. 3 filed his application under Section 21 of the said Act, which has given rise to the present proceedings. 9. Three questions were posed by Shri S. N. Kacker who opened the arguments for the appellants (but unfortunately could not complete them due to his unexpected demise) and Shri Agarwal who followed him. These were: (i) Does Act XLVI of 1957 apply to the State of U.P. at a 11 in view of the fact that Act 10 of 1952, which was a detailed and elaborate enactment, contained special provisions applicable to cantonments in this State? (ii) Did not the power of the Central Government under Section 3 of Act XLVI of 1957 get exhausted when the notification dated 3rd April, 1972 was issued, by which the provisions o [Act III of 1947 were extended to cantonments in U.P.? If yes, was not the second notification dated 1-9-1973 purporting to extend the provisions of Act 13 of 1972 to cantonments in U.P. illegal and non est? (iii) Does not Section 3 of Act XLVI of 1957 suffer from the vice of excessive delegation of legislative powers and is it not consequently void and inoperative? Apart from these pr....
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.... does not justify any such restriction. Secondly, since the Act has been given retrospective effect from 26-1-1950, it should be deemed to have been in force from that date. On that date Act 10 of 1952 was not in force in the State: of U.P. and so the terms of Act 46 of 1957 would be applicable to cantonments in all States' including U.P. This takes away the entire basis of the argument. Again, there might have been some difficulty if, by a notification under Section 3 of this Act, the Central Government had sought to apply Act III of 1947 to cantonments in the State of Uttar Pradesh, without there being a repeal of Act 10 of 1952. But this possible repugnancy between two legislations operating in the State of Uttar Pradesh (One by virtue of the notification under Section 3 of Act 46 of 1957 and the other by virtue of the provisions of Act 10 of 1952) has been obviated by the provisions of Act 68 of 1971. These provisions have rendered Act 10 of 1952 inoperative as and from 3-4-1972 leaving the provisions of Act III of 1947 in the field only until it. was replaced by Act 13 of 1972. 11. One more, somewhat different, argument which seems to have been addressed before the High....
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....vance on the third contention also to which we shall advert later. So far as the aspect presently under discussion is concerned, its relevance arises in this way. In that case, Section 2 of the Part C States (Laws) Act, 1950 empowered the Central Government to extend, by notification in the official gazette, to any Part C State or part of it, any enactment in a Part A State. The Central Government, in exercise of this power, issued a notification in 1951, extending the provisions of the Bengal Finance (Sales Tax) Act, 1941 to the then Part C State of Delhi with certain modifications set out in Section 6. In 1957, the Central Government issued another notification, again in purported exercise of the powers conferred by Section 2, by which an additional modification of Section 6 of the Bengal Act was introduced in the 1951 notification as a result of which certain exemptions available to the petitioner were withdrawn at shorter notice than was permissible under the modifications notified in 1951. The notification of 1957 was held to be invalid and ineffective on several grounds, one of which was thus stated at page 801 (of SCR) : At p. 724 of AIR: The power given by Section ....
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....he limited purpose of bringing an act into operation and it should accordingly be in most precise language restricted to those purely machinery arrangements vitally requisite for that purpose; and the clause should always contain a maximum time-limit of one year after which the power should lapse. It may be seen that the time-limit of one year within which the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is not an inherent attribute of such power. In one sense, the power of extension-cum-modification given under Section 2 of the Laws Act and the power of modification and adaptation conferred under a usual 'Henry VIII Clause' are kindred powers of fractional legislation, delegated by the legislature within narrow circumscribed limits. But there is one significant difference between the two. While the power under Section 2 can be exercised only once when the Act is extended, that under a 'Henry VIII Clause' can be invoked, if there is nothing to the contrary in the clause - more than once, on the arising of a difficulty when the Act is operative. That is to say, the power under such a clause can be exercised whenever a....
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....son why Act 22 of 1972 amended Section 3 of Act XLVI of 1957 to omit the words "on the date of the notification" retrospectively. The provisions of Section 3 of Act XLVI of 1957 should, in the circumstances be construed so as to achieve this purpose and as enabling the Central Government to issue notifications from time to time and not as exhausted by a single invocation as in the case of the statute considered in the Delhi Laws Act case AIR 1951 SC 332 (supra). Section 3 could, therefore, be invoked from time to time as occasion arises and the notifications dated 1-9-1973 and 17-2-1982 are valid and intra vires. In such a situation, we think, the limitation suggested in the above decision will not operate. On the other hand the provisions of Section 14 and Section 21 of the General Clauses Act will apply and it will be open to the Government to extend another legislation or further legislations to cantonments in place of the one that had been repealed. 15. The above conclusion can also be supported on the ratio of decision in Gurcharan Singh v. V. K. Kaushal [1981]1SCR490 , also a case concerned with notifications under Section 3 of Act XLVI of 1957. In exercise of this power t....
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.... amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a power of extension even as it was under the unamended Act, there is a vital qualitative difference between the two. The power under the unamended Act was a limited power. It could operate prospectively only. There was no choice in the matter. After amendment, the Act provided for a power which could be exercised retrospectively. The power extended to giving retrospective effect to an enactment in force in the State in the form in which that enactment was in force on the date on which the extension was made. It was a power whose reach and cover extended far beyond what the power under the unamended Act could achieve. We are of the view that in issuing the notification dated January 24, 1974 and thereby extending the East Punjab Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect from January 26, 1950, the Central Government exercised a power not available to it when it issued the notification dated November 21, 1969. The contention that the issue of the notification of January 24, 1974 amounted to a further exercise of power conferred by Section 3 of the Cantonments (Extension o....
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....n as well as for the reason given in Gurcharan Singh's case [1981]1SCR490 . The validity of the notification dated 17-2-1982 is, therefore, upheld. 17. Shri S. K. Mehta also contended that, even if the notification of 1-9-1973 is left out of account, the notification of 3-4-1972 was itself sufficient to achieve the present purpose. He submitted that since Act 13 of 1972 repealed and re-enacted the provisions of Act III of 1947, all references in Act 28 of 1971 as well as in the notification dated 3-4- 1972 to Act III of 1947 and its provisions should be construed as references to Act 13 of 1972 and its corresponding provisions as amended from time to time. He relied on Section 8 of the General Clauses Act. In the view we have taken above, we consider it unnecessary to deal with this contention or express any opinion thereon 18. Now to turn to the principal contention in the case: the contention is that Act XLV1 of 1957 does not itself enact any provisions in respect of house accommodation in the cantonment areas of U.P. Section 3 of Act XLVI of 1957 purports only to empower the Central Government to legislate for such areas. It is true that the Central Government is not g....
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.... Counsel submitted that there is not even a broad indication in the principal statute viz. Act XIVI of 1957 as to the nature of the provisions of the enactment which it would like to be applied to cantonments. A mandate to the Government for a blind application, at its choice, of an enactment, existing or future, to cantonment areas within a State merely because such an enactment happens to be operative in respect of other areas in the State, it is said, amounts to a complete abdication of legislative power by Parliament which is not permissible under our Constitution. 19. We may at once deal with limb (c) of the above contention, a direct answer to which is furnished by the decision in Lachmi Narain's case [1976]2SCR785 already discussed Referring to the judgments in the Delhi Laws Act case [1951]2SCR747 and Rajnarain Singh's case [1955]1SCR290 on the scope of expressions such as "subject to such restrictions and modifications as it thinks fit", Sarkaria, J. observed: Bearing in mind the principles and the scope and meaning of the expression 'restrictions and modifications' explained in Delhi Laws Act, let us now have a close look atS. 2. It will be cle....
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....sought to be extended. Such a wide construction must be eschewed lest the very validity of the section becomes vulnerable on account of the vice of excessive delegation. Moreover, such a construction would be repugnant to the context and the content of the section, read as a whole, and the statutory limits and conditions attaching to the exercise of the power. We must, therefore, confine the scope of the words 'restrictions and modifications' to alterations of such a character which keep the in-built policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory. These observations make it clear that, though apparently wide in scope, the power of the Central Government for the extension of laws is a very limited one and cannot change the basic essential structure or the material provisions of the law sought to be extended to cantonment areas. 20. The principal decision on which counsel for the appellants placed reliance in support of the other limbs of his contention is the decision o....
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....sion in the case of Delhi Laws Act [1951]2SCR747 , Shelat, I, speaking for the Court observed as follows: The question then is whether in extending the Madras Act in the manner and to the extent it did under Section 2(1) of the principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it. It may be that a there refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for if to predicate what the amended Act would be. Such a case would be clearly one of ....
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....so enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry government would issue its notification it would be the amended Act which would apply. The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry. In point of fact the Madras Act was amended and by reason of Section 2(1) read with Section 1(2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry legislature accepted the amended Act though it was not and could not be aware what the provisions of the amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said 'still-born'. It was however argued that the Act cannot be said to be still-born as it contained certain provisions independent of ....
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..... The variations were as follows: (1) where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the legislative sway of the center to the new area: This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way: This was upheld by five to two. (4) Where the authorisation was to select future provincial laws and apply them as above. This was also upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification. This was held to be ultra vires by a majority of four to three. (6) Where the authorisation was to apply exi....
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....ch, the learned judges did not choose to apply it perhaps as they felt that he Pondicherry legislature, in the case before them, had completely abdicated its functions to the Madras Legislature. There was also, it should be remembered, a substantial difference between the Madras Act to which the Pondicherry legislature had applied its mind and the Madras Act which actually became applicable by a deferment of the date of commencement. Such a vast change, within a short time, could not at all have been in the contemplation of the Pondicherry legislature and this is perhaps what heavily weighed with the Judges. This decision has been distinguished in the Gwalior Rayon's case [1974]94ITR204(SC) by Khanna J. and Mathew J. who delivered separate but concurring judgments. Khanna j. observed (at p. 1664): It would appear from the above that the reason which prevailed with the majority in striking down the Pondicherry Act was the total surrender in the matter of sales tax legislation by the Pondicherry Legislature in favour of the Madras Legislature. No such surrender is involved in the present case because of the, Parliament having adopted in one particular respect the rate of....
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.... different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive colony for army personnel. It was, therefore, but natural for Parliament to decide, as a matter of policy, that there should be no difference, in the matter of housing accommodation, between persons residing in cantonment areas of a State and those residing in other parts of the State and it is this policy that was given effect to by Act XLV1 of 1957. Having decided upon this policy, it was open to Parliament to do one of two things : pass a separate enactment in respect of the cantonment areas in each State or to merely extend the statutes prevalent in other parts of the respective States by a single enactment. The second course was opted upon but there was one difficulty. The enactments in force in the various States may need some modifications or changes before they could be fitted to the requirements of the cantonments. We have already explained that the expression 'restrictions and modifications" has a very limited connotation. If this is borne in mind, it. will be clear that the nature of modifications or restrictions each statute would require can only be a ....
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....s and modifications permitted by Section 3, it is open to Parliament to legislate independently for such cantonment areas. But the decision that, in the main, such State legislation should apply is unexceptionable and cannot be said to constitute an abdication of its legislative function by Parliament. 25. But here the difficulty arises not so much because of the language of Section 3 of Act XLVI of 1957 as on account of the language of the notification issued on 1st September, 1973. The wording of this notification has been set out earlier. It reads that, in supersession of the earlier notification of 3rd April, 1972, the Central Government extends to the cantonments in the State of Uttar Pradesh the "Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (U.P. Act XIII of 1972) as in force on the date of this notification in the State of Uttar Pradesh with the following modifications...." It must be pointed out in this connection that this notification was issued after Act XLVI of 1957 had been amended by Act 22 of 1972 and a power had been conferred on the Central Government to issue the notification without the restriction previously contained in S....
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....s, Judicial Magistrates or Executive Magistrates to discharge duties of a Prescribed Authority. This must have meant a very heavy load on the State Government and hence a third change was effected w.e.f. 5-7-1976. Thereafter, a nominee and subordinate of the District Judge was to be the Prescribed Authority. 27. In Civil Appeal No. 6944 of 1983, to which we have made reference earlier, the landlord had made his application under Section 21 of Act XIII of 1972 before the Prescribed Authority on 20-12-1975. It was made before Shri Khem Karan, who had been appointed as the Prescribed Authority on 11-9-1975. However, when the definition was amended by Act 28 of 1976, Shri S. C. Srivastava was appointed as the Prescribed Authority and the application of the landlord was transferred to him and he disposed it of by his order dated 27-9-1977. It may be mentioned that both Shri Khem Karan and Shri Srivastava were munsifs. While Shri Khem Karan was a Prescribed Authority appointed by the State Government under Section 3(e) as amended in 1974, Shri Srivastava was a Prescribed Authority authorised by the District Judge after 5th of July, 1976. 28. In this state of facts the argument urge....
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.... of the Supreme Court in Bajya v. Smt. Gopikabai [1978]3SCR561 , the learned Judge observed: Section 3 of Act 46 of 1957 after its amendment by Act 22 of 1972 as aforesaid on the face of it comes in the latter category referred to in the decision of Bajya (Supra). Consequently, the definition of the term "Prescribed Authority" as it was subsequently amended by U.P. Act 28 of 1976 is applicable for finding out as to who is the Prescribed Authority to entertain an application under Section 21 of the Act even in regard to those buildings which are situated within a cantonment area. The view taken to the contrary by the District Judge in the impugned order suffers from a manifest error of law and deserves to be quashed. He, therefore, held that the application preferred by the landlord had rightly been dealt with by Sri Srivastava and therefore remanded the matter to the learned District Judge for disposing of the appeal filed before him by the tenant on its merits. 30. It is against the order of the learned single Judge that C.A. No. 6944 of 1983 has been preferred. W e are unable f o support the line of reasoning adopted by the learned Judge to uphold the order passed ....
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....force in the State in which the cantonment is situated. Provided that nothing contained in any enactment so extended shall apply to - (a) any premises within the cantonment belonging to the Government; (b) any tenancy or other like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government; or (2) The extension of any enactment under Sub-section (1) may be made from such earlier or future date as the Central Government may think fit: Provided that no such extension shall be made from a date earlier than - (a) the commencement of such enactment, or (b) the establishment of the cantonment, or (c) the commencement of this Act, whichever is later; (3) Where any enactment in force in any State relating to the control of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made (hereafter referred to as the "earlier date"), such enactment, as in force on such earlier date, shall apply to such cantonment and, where any such enactment has been am....
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....for the time being (i.e. as on 27-9-77), in force in the State of Uttar Pradesh. Under Section 3(4), it should, therefore, be deemed to have been made under the corresponding provision of the Rent Control Act (as extended by that notification i.e. as amended in 1976) as if the said amended Rent Control Act as so extended were in force in that cantonment on the date on which such order was made. That this will be the position is clear from the decision of This court in the case of Jai Singh Jairam Tyagi v. Mamanchand Ratilal Agarwal [1980]3SCR224 . It is not necessary to refer to the decision in detail. It is sufficient to refer to the following passage from the judgment (at p. 1204 of AIR): Shri V. M. Tarkunde, learned Counsel for the appellant urged that Sub-section (4) had to be read in the context of Sub-sections (2) and (3) and that it was to be applied only to cases where a notification issued under Sub-section (1) was given retrospective effect under the provisions of Sub-section (2). We see no justification for confining the applicability of Sub-section (4) to cases where notifications are issued with retrospective effect under Sub-section (2), Sub-section (4) in te....
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....24-C of the U.P. Rent Act were inapplicable. This contention was rejected by a Bench of this Court (which included one of us). After pointing out that on the date on which the application was filed as well as on the date on which the order was made, the cantonment area did not come within the ambit of the Act in question and that it was only by the date on which the revisional order was passed by the Additional District Judge that the building in question came within the purview of the Act by reason of the notification dated 17-2-1982, the court observed (at p. 226): In view of the ratio of Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agarwal [1980]3SCR224 , it must be held that the provisions of Chapter IV-A of the Act would be applicable. The amending Act was passed for the express purpose of saving decrees which had already been passed. Therefore action under Section 24-C of the Act in this case was justified. The High Court did not decide this point because it was of the opinion that the second point which we shall note presently, the High Court was in favour of the respondent. We are, however, of the opinion that the first point urged on behalf of the respondent cannot....