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TMI Blog2005 (9) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... esidential building on the ground of his own use on account of the amendment made to it by the Amendment Act, 1956 by which the words a non residential building or occurring in Section 13(3)(a)(ii) of the 1949 Act had been omitted. Consequently in the Union Territory of Chandigarh a landlord has no right to seek eviction of a tenant from a non-residential building on the ground of his own use as there exists no provision to that effect in the law applicable thereto. In our opinion, the principle of law underlying legislation by incorporation or legislation by reference has not much relevance in the present case. We do not have to examine the effect of any amendment or repeal of any enactment. Section 3 of the Chandigarh Extension Act makes the East Punjab Urban Rent Restriction Act, 1949, subject to the modification specified in the Schedule, applicable to the Union Territory of Chandigarh with effect form 4.11.1972. It is not a case where any specific section or provision of the 1949 Act may have been made applicable, but the provisions of the entire 1949 Act have been extended and made applicable to the Union Territory of Chandigarh. It is in fact a case of extension of an Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Restriction (Extension to Chandigarh) Act, 1974, a landlord can seek eviction of a tenant from a non-residential building on the ground of his own use. In this view of the matter, we do not consider it necessary to adjudicate the pleas raised in the writ petition as substantive relief has already been granted to the writ petitioner. The writ petition and the I.As. moved therein are disposed of. In all these matters the Rent Controller and the Appellate Authority have recorded concurrent finding of fact that the landlord bona fide requires the premises for his own use and this finding has been affirmed in revision by the High Court. For the reasons given in Civil Appeal, there is no merit in the civil appeals and the special leave petition, which are hereby dismissed with costs. The tenants are given six months time to vacate the premises subject to their filing usual undertaking within one month. - R. C. Lahoti, G. P. Mathur And P. K. Balasubramanyan, JJ. JUDGMENT G.P. Mathur, J. Civil Appeal No. 2894 of 2001 1. This appeal, by special leave, has been filed against the judgment and order dated 20.12.2000 of the High Court of Punjab and Haryana at Chandigarh by which the revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of bona fide requirement of the landlord is not provided for in the East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 and also after the amendment of the said Act in 1982 and, therefore, the eviction petition filed by the respondent landlord wherein he had sought eviction of the appellant's father, who was the sitting tenant, was not maintainable and the view taken by the Rent Control Authorities and also by the High Court is erroneous in law. 4. Shri Sudhir Chandra, learned senior counsel for the respondent has, on the other hand, submitted that on a correct interpretation of the provisions of the enactment applicable to Chandigarh a landlord can seek eviction of a tenant on the ground of his bona fide requirement and the contention to the contrary raised by the learned counsel for the tenant is wholly erroneous in law. 5. In order to appreciate the controversy raised it is necessary to set out the relevant provisions of the concerned enactments. The main enactment wherein restrictions were imposed on the increase of rent of certain premises situated within the limit of urban areas and the eviction of tenants therefrom is the East Punjab Urban Rent Rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the present case, are being reproduced below: 2. Amendment of section 13 of East Punjab Act III of 1949. In clause (a) of sub section (3) of section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the principal Act (i) (a) In sub clause (i), the words or a scheduled shall be omitted. (b) In sub-paragraph (b), the words or a scheduled and the words as the case may be shall be omitted. (ii) (a) In sub-clause (ii) the words a non-residential building or shall be omitted. (b) In sub-paragraph (b), the words building or and the words as the case may be shall be omitted. (c) In sub-paragraph (c), the words a building or shall be omitted. As a result of the amendment made by the Amendment Act, 1956 the relevant provisions of the East Punjab Urban Rent Restriction Act, 1949 read as under: - 13. Eviction of tenants (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab (being areas which were administered by municipal committees, cantonment boards, town committee or notified area committee or areas notified as urban areas for the purposes of that Act) immediately before the 1st day of November, 1966. 3. Extension of East Punjab Act III of 1949 to Chandigarh. Notwithstanding anything contained in any judgment, decree or order of any court, the Act shall, subject to the modifications specified in the Schedule, be in force in, and be deemed to have been in force with effect from the 4th day of November, 1972 in the Union Territory of Chandigarh, as if the provisions of the Act as so modified had been included in and formed part of this section and as if this section had been in force at all material times. Section 4 makes provisions for validation and savings of any judgment, decree or order passed by any court under the 1949 Act and the Schedule makes some minor modifications whereunder it is provided that for State Government occurring in the 1949 Act Central Government shall be substituted and definition of Urban Area has been given, which means the area comprised in the Union Territory of Chandigarh and makes further provision empowering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. State of Punjab and another (1996) 1 SCC 1. The judgment in this case was delivered on 5.12.1995. After a thorough examination of the provisions of the aforesaid Act the Court recorded its conclusion as under in paragraphs 13, 17 and 18 of the reports: - 13. The provisions of the Act, prior to the amendment, were uniformly applicable to the residential and non-residential buildings. The amendment, in the year 1956, created the impugned classification. The objects and reasons of the Act indicate that it was enacted with a view to restrict the increase of rents and to safeguard against the mala fide eviction of tenants. The Act, therefore, initially provided-- conforming to its objects and reasons--bona fide requirement of the premises by the landlord, whether residential or non- residential, as a ground of eviction of the tenant. The classification created by the amendment has no nexus with the object sought to be achieved by the Act. To vacate a premises for the bona fide requirement of the landlord would not cause any hardships to the tenant. Statutory protection to a tenant cannot be extended to such an extent that the landlord is precluded from evicting the tenant for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operating before coming into force of the amendment. The net result is that a landlord - under the Act - can seek eviction of a tenant from a non-residential building on the ground that he requires it for his own use. The parties to bear their own costs. In view of the above quoted conclusions of this Court the position of law, which emerges, is that a landlord can seek eviction of a tenant on the ground of his own use both from residential and also non-residential building under the East Punjab Urban Rent Restriction Act, 1949. 9. Now, we turn to the main controversy involved in the present case where the landlord has sought eviction of his tenant from a Shop-cum-Flat on the ground of his own use. As shown earlier as a result of the East Punjab Urban Rent Restriction (Chandigarh Amendment) Act, 1982 a Shop-cum-Flat let under a single tenancy would be a 'non-residential building . The question, which arises for consideration is, whether in the Union Territory of Chandigarh a landlord can seek eviction of a tenant from a non-residential building on the ground of his own use. Shri Ashwani Chopra, learned senior counsel for the tenant has submitted that the Parliament enacted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. The amendments made were thus struck down. Clause (2) of Article 13 of the Constitution says that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this clause shall, to the extent of the contravention, be void. The real effect and import of this constitutional prohibition contained in clause (2) of Article 13 of the Constitution has been considered and examined in two Constitution Bench decisions of this Court. In Deep Chand etc. vs. The State of Uttar Pradesh and others AIR 1959 SC 648, Subba Rao, J. (as His Lordship then was) held as under in paragraph 13 of the reports: - 13. .............................A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13. Article 13(1) deals with laws in force in the territory of India before the commencement of the Constitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. The clause, therefore, recognizes the validity of the pre-Constitution laws and only declares that the said laws would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vides that the law shall be void to the extent of the contravention. Now contravention in the context takes place only once when the law is made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of the contravention of Art. 13(2) being a continuing matter. Therefore, where there is a question of a post-Constitution law, there is a prohibition against the State from taking away or abridging fundamental rights and there is a further provision that if the prohibition is contravened the law shall be void to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse............................... (emphasis supplied) These two Constitution Bench decisions clearly lay down that having regard to the prohibition contained in clause (2) of Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd as if this Section had been in force at all material times, though the Chandigarh Extension Act was published in the Gazette on 20.12.1974. This Section not only made the 1949 Act applicable to the Union Territory of Chandigarh but gave it retrospective effect from 4th November, 1972 by virtue of the deeming provision. It is well known principle of interpretation of statute that full effect must be given to a statutory fiction and it should be carried to its logical conclusion. In view of the mandate contained in clause (2) of Article 13 of the Constitution Section 3 of the Chandigarh Extension Act cannot be interpreted to mean that the Parliament while extending and applying the East Punjab Urban Rent Restriction Act, 1949 to the Union of Territory of Chandigarh also applied those provisions which were stillborn or were dead from the very inception. The mandate of Article 13(2) of the Constitution will equally apply to the Parliament when it is functioning as a Legislature for making an Act. The Parliament cannot be deemed to have taken into consideration something which was stillborn or dead. 14. Learned counsel for the appellant-tenant has next submitted that at the time when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of Courts to busy themselves with supposed intentions ................. It, therefore, appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or accused. In Emperor vs. Benoari Lal Sarma and others AIR 1945 PC 48, Lord Chancellor Viscount Simon said, In construing enacted words the Court is not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used. Therefore, any supposed intention of the Parliament cannot be taken into consideration for interpretation of the Chandigarh Extension Act, 1974. 16. Learned counsel for the appellant has laid emphasis on the Statement of Objects and Reasons of the Amendment Act, 1956, which says that the provisions whereunder tenants of commercial premises can be evicted on the ground of personal requirements of the landlord entail a great hardship on such tenants and the provision allowing eviction on the ground of personal use has been misused by certain landlords and, therefore, it was considered necessary that the tenants of non-residential property in Punjab should be placed at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, an independent legislation, which is not modified or repealed by a modification or repeal of the earlier Act. 18. Shri Sudhir Chandra, learned senior counsel for the respondent- landlord has, however, submitted that the principle embodied in legislation by incorporation or legislation by reference can have no application here as the said principle has relevance only in the case of amendment or repeal of an Act. According to the learned counsel as the effect of an amendment or repeal of the Act does not arise for consideration here, it will not be proper to apply the principle governing the cases of legislation by incorporation for the purpose of finding out the real import of Chandigarh Extension Act. 19. Adopting or applying an earlier or existing Act by competent Legislature to a later Act is an accepted device of Legislation. If the adopting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference. Whereas if the provisions of another Act are bodily lifted and incorporated in the Act, then it is known as legislation by incorporation. The determination whether a legislation was by way of incorporation or reference is more a matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er legislation to which reference is made are incorporated into the later legislation by reference. If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in the subsequent legislation. In other words, any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. But if it is a legislation by incorporation the rule of construction is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statue which has been so incorporated that is made after the date of incorporation of such statute does not affect the subsequent statute in which it is incorporated and the provisions of the statue which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R., the legal effect of such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Act to some territory, the latter Act must be taken to be incorporated in the former Act. It may be otherwise, if there were words to show that the earlier Act is to be deemed to be re-enacted by the new Act . The Act in the instant case was only extended but not re-enacted. We should, therefore, proceed on the assumption that the Act itself with the amendments was in force with effect from November 4, 1972 in the Union Territory of Chandigarh. (In this judgment East Punjab Urban Rent Restriction Act, 1949 has been referred to as the Act and East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 has been referred to as the Extension Act see paras 1 and3.) It is, therefore, not possible to accept the submission of the learned counsel for the appellant that the 1949 Act was incorporated in the Chandigarh Extension Act. 23. The ultimate question is what is the Act . For ascertaining the meaning of the words the Act we have to refer back to Section 2, viz., the East Punjab Urban Rent Restriction Act, 1949 and the provisions of this 1949 Act have to be seen and examined as they stood on the date when the eviction petition was filed or till the continuance of the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vires Article 14 of the Constitution of India; and (ii) declare that under the East Punjab Urban Rent Restriction Act, 1949 as extended to Chandigarh vide East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974, ejectment of tenant on bona fide ground can be made both in case of residential building as well as non-residential building; (iii) pass such other order(s) as this Hon'ble Court may deem fit and proper. In Civil Appeal No. 2894 of 2001, we have held that under East Punjab Urban Rent Restriction Act, 1949, as extended to Chandigarh by East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974, a landlord can seek eviction of a tenant from a non-residential building on the ground of his own use. In this view of the matter, we do not consider it necessary to adjudicate the pleas raised in the writ petition as substantive relief has already been granted to the writ petitioner. The writ petition and the I.As. moved therein are disposed of. Civil Appeal Nos. 7049/2001, 3551/2002, 7920-7921/2002 and Special Leave Petition (Civil) No. 20444/2001 In all these matters the Rent Controller and the Appellate Authority have recorded concurrent finding of f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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