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TMI Blog1988 (7) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... parties requested me to take up the matter. It was in these circumstances that I became a party to this judgment. I agree with my learned Brother that the appeal should be dismissed and the order he proposes to make as to costs. It is not necessary in view of the facts and circumstances of the case to refer in detail to the reasons. I would, however, make it clear that I prefer the view of the Division Bench of the Madhya Pradesh High Court in the case of L.S. Nair v. Hindustan Steel Ltd. Bhilai, AIR 1980 MP 106. I would prefer this view in preference to that of the F. Iearned Single Judge of the Bombay High Court in Miscellaneous Petition No. 458/79 Elliot Waud Hill (P) Ltd. v. Life Insurance Corpn. Further, it is necessary to reiterate that in this case we have proceeded on the short question canvassed before the Division Bench of the High Court out of which this appeal arises, i.e., whether the impugned Act which provides for eviction of unauthorised occupants from public premises to the extent it has been extended to premises belonging or taken on lease by a corporation established by or under a Central Act and owned or controlled by the Central Govt. is ultra vires o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the matter, it cannot in my opinion, be canvassed that the 197 1 legislation in question was beyond the competence of the legislature. With these observations I agree with respect with my learned Brother that the appeal should be dismissed without any order as to cost S. RANGANATHAN, J. The first appellant is a private limited company. The company is occupying a portion of premises No. 18, Russel Street, Calcutta. The premises belong to the United Commercial Bank, a statutory corporation constituted under the Banking Companies (Acquisition Transfer of Undertakings) Act, 1970. The appellant company claims to be the tenant of the Bank but this is not admitted by the respondent Bank. The Bank alleges that the appellant company, when somewhat differently constituted, had been allowed to occupy a portion of the Bank s premises as licensee in consideration of certain accountancy and secretarial services which it was required to render to the Bank. It appears that sometime in 1975 the respondent Bank issued a notice of eviction to the appellant company under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 1956 Act ). Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government, as well as premises placed by that Government under the control of either House of Parliament for providing residential accommodation to the members of the staff of the Secretariat of either House of Parliament. Sub-clause (3) of clause (e) takes in premises belonging to certain local authorities in the Union Territory of Delhi. Sub-clause (2) of clause (e) brings in premises belonging to or taken on lease by, or on behalf of, various kinds of bodies, such as Universities, Institutes of Technology, Board of Trustees of Major Port Trusts and the Bhakra Management Board. It takes in any premises belonging to or taken on lease by, or on behalf of, a Government company or its subsidiary. It also takes in-and this is what we are concerned with here-premises of any corporation (not being a company as defined in section 3 of the Companies Act, 1956 or a local authority) established by or under a Central Act and onwed or controlled by the Central Government . There is no dispute that the premises in question in the present appeal is public premises within the meaning of the Act. The Act contemplates the appointment of an Estate officer who is a high placed offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case does not fall within any of these categories and, according to the appellants before us, the provisions of 1956 Act were squarely applicable and should have been resorted to by the Bank for evicting them. This is one. The other relevant statute is the West Bengal Public Land (Eviction of Unauthorised occupants) Act, 1962, (hereinafter referred to as the 1962 Act ). This legislation is on the same pattern as the 1971 Act, a pattern which appears to have been in existence in various States, conferring special powers on statutorily named officers to evict unauthorised occupants of public premises. The definitions of land , public land and unauthorised occupation contained in sections 2(2), 2(7) and 2(8) are so wide as to leave no doubt that the premises belonging to the Bank would be within the scope of the said Act and that proceedings for eviction of the appellants could also be initiated by the Collector under that Act. It thus appears that the procedure for the eviction of the petitioners will be governed by the 1971 Act as well as either or both of the State Acts and the question is, which of these will prevail? The appellants urge that a legislation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding or not, with objects not confined to one State, but not including universities. LIST II--STATE LIST LIST II--PROVlNClAL LIST ENTRY 18: ENTRY 21: Land, that is to say, rights Land, that is to say, rights in or over land, land tenun in or over land, land tenures, including the relation of including the relation of landlord and tenant, and the landlord and tenant, and the collection of rents; transfer collection of rents; transfer, and alienation of agricultural alienation and devolution of land; land improvement a agricultural land; land agricultural loans; improvement and agricultural colonization. loans; colonization; courts of Wards; encumbered and attached estates; treasure trove. List 111--CONCURRENT LIST LIST 111--CONCURRENT LIST ENTRY 5: ENTRY 7: Marriage and divorce; infants, Wills, intestacy, and succession, and minors; adoption; wills save as regards agricultural intestacy and succession; land. joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. ENTRY 6: ENTRY 8: Transfer of property other Transfer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultural or non-agricultural, vacant or built up-but also buildings put up thereon. Since the entry specifically includes the relationship of landlord and tenant, there can be no doubt that tenancy legislations pertaining to land and buildings derive their authority from Entry 18. He referred in this context inter alia, to Manohar v. C. Desai, AIR 1951 Nag 33; A. C. Patel v. Vishwanath Chadda, ILR 1954 Bom 434, Raman Doss v State, AIR 1954 ALL 707; Darukhanawala v. Khemchand, ILR 1954 Bom. 546; M. Karuna v. State, AIR 1955 Nag. 153; Kevalchand v. Dashrathlal, I.L.R. 1956 Nag. 618; Sukumar Dutta v. Gauriskanker, [1964] 69 CWN 833; Raval Co. v. Ramackandran, AIR 1967 Mad. 57 and a detailed and comprehensive judgment of Parekh J. in Elliot Waud and Hill P. Ltd. v. L.I.C., [1980] Bom. C.R. 590 Which we are informed is pending consideration on appeal, before a Full Bench of the Bombay High Court. We do not, however, propose to discuss these cases at length firstly, because there is a contrary line of decisions also vide Mangtulal v. Radheshyam, AIR 1953 Pat. 14; Milap Chand v. Dwarakadas, AIR 1954 Raj. 252; Nawal Mal v. Nathu Mal, AIR 1962 Raj 193, Rama Sundari v. Indu Bhushan, AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would probably on any construction have been held to fall under the more general word, while the inclusion (of) others might not be so obvious. Thus Courts of Wards and treasure-trove might not ordinarily have been regarded as included under the head Land , if they had not been specifically mentioned in item no 21. I think, however, that none of the items is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions; it will be sufficient and much wiser to determine each case as and when it comes before this Court. The Court then proceeded to hold that, if the Provincial Legislature could legislate in respect of collection of rents, it must also have the power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the remission of rents as well as to their collection. (2) The next decision, on certain observation in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e portions some within and some outside the legislative powers of the province. Such a conflict of jurisdiction is not to be expected. Item 21 is part of a constitution and would on ordinary principles receive the idest construction, unless for some reason, it is cut down either by the terms of Item 21 itself or by other parts of the constitution which has to be read as a whole. As to Item 21 land , the governing word is followed by the rest of the item, which goes on to say, that is to say . These words introduce the most general concept- rights in or over land. Rights in land must include general rights like full ownership or leasehold or all such rights. Rights over land would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a clue for particular matters; thus there are the words relation of landlord and tenant and collection of rents. These words are appropriate to lands which are not agricultural equally with agricultural lands. Rent is that which issues from the land. Then the next two sentences specifically ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n restitution of the mortgaged lands on terms less onerous than the mortgage deeds require. It is limited to existing mortgages of land as defined in s. 3, effected prior to 8.6.1901. That definition restricts it to land occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture . The addition of the word pasture has been relied on as extending the scope of the Act beyond agriculture, but pasture is certainly land within Item 21 or Item 3. It may have been mentioned ex abundanti cautela but in any case it is sufficiently allied to agriculture generally to be treated as a species of agricultural land or at least as land occupied or let for purposes subservient to agriculture and as such within the general scope of an Act dealing with agricultural land. Section 3 of the Act goes on, it is true, to give a number of specific types of land which are included, but they are all governed by the controlling words of sub.s.(1) which limits the whole Act to agricultural land in the sense already stated. Thus head (b) of sub s (1) of s. 3, must be read as referring to an estate or holding in the only class of land with which the Act deals. The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of the legislative competence the Court made the following observations: At the outset, it is necessary to deal with the question of legislative competence, which was raised on behalf of some of the petitioners, though not on behalf of all of them. This argument of want of legislative competence goes to the root of the impugned Act, and if it is well-founded, no other question need be gone into. It has been argued that Entry 18 of List II of the Seventh Schedule to the Constitution, should not be read as authorising the State Legislature to enact a law limiting the extent of the land to be held by a proprietor or a landowner. Entry 18 is in these words: 18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. It will be noticed that the Entry read along with Art. 246(3) of the Constitution, has vested exclusive power in the State to make laws with respect to rights in or over land, land tenures including the relation of landlord and tenant .. . The provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be found in Entry 18. 5. Indu Bhusan Bose v. Rama Sundari Devi, [1970] 1 SCR 443 is a decision of five Judges of this Court and was rendered on an appeal from the Calcutta case cited earlier. The question for consideration was whether the act of a rent controller in fixing fair rent for certain premises within the cantonment area of Barrackpore was valid. The claim of the respondent-owner was that the appellant was not entitled to the protection of 1956 Act since regulation of house accommodation including the control of rents in cantonment areas was the subject matter of Entry 3 of the federal list under the 1935 Act. The State legislature, it was therefore argued, could not competently extend the 1956 Act (applicable in other parts of the State) to the cantonment areas. This plea was upheld. However, one of the contention raised on behalf of the appellants was that the power of Parliament under Entry 3 of List I does not extend to regulating the relationship between landlord and tenant as that power vests in the State Legislature either under Entry 18 of List II or Entries Nos. 6, 7 and 13 of List III. In support of this contention reliance was placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from property leased, would be covered by the field of transfer of property and contracts relating thereto. However, it is not necessary for us to express any definite opinion in this case on this point because of our view that the relationship of landlord and tenant in respect of house accommodation situated in cantonment areas is clearly covered by the Entries in List I. In the Constitution, the effect of Entry 3 of List I is that Parliament has exclusive power to make laws in respect of the matters contained in that Entry, notwithstanding the fact that a similar power may also be found in any Entry in List II or List III. Article 246 of the Constitution confers exclusive power on Parliament to make laws with respect to any of the matters enumerated in List I, notwithstanding the concurrent power of Parliament, and the State Legislature, or the exclusive power of the State Legislature in Lists III and II respectively. The general power of legislating in respect of relationship between landlord and tenant exercisable by the State Legislature either under Entry 18 of List 11 or Entries 6 and 7 of List 111 is subject to the overriding power of Parliament in respect of matters in Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act covered the eleven States which had passed the above resolutions. Subsequently, the Act was adopted by resolution passed by the legislatures of six more States. The primary object and purpose of the Act was the imposition of a ceiling on vacant land in urban agglomerations , the acquisition by the Government of such land in excess of the prescribed ceiling, the regulation of construction of buildings on such land and matters connected therewith. All this was done with a view to prevent the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bring about an equitable distribution of land in urban agglomeration to subserve the common good in furtherance of the Directive Principles enunciated in Art. 39(b) and (c) of the Constitution. The controversy before the Court turned mainly on the construction of Articles 251 and 252 of the Constitution and certain allied questions. Dr. Chitale, however, laid em phasis on three important aspects of this legislation and decision. The first was the language of the resolutions passed by the States in this context, which appear to have been on the same lines and one of which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rban land, the ways and means of developing it and proper utilisation of land situate within the municipal limits. These decisions no doubt establish two propositions: ( 1) The opening word land in entry 18 is not restricted to agricultural land as are the latter portions of it. It would cover all types of land-rural or urban, agricultural or nonagricultural, vacant fallows or pastures. (2) The words which follow land only make it clear that the legislative entry takes in not merely the tangible immovable property one normally describes as land but also all kinds of intangible rights or interests, in or over, land in the broad sense explained above. The phrases which follow the words rights in or over land in the entry are illustrative and are not restrictive. They only make it clear that the legislative entry takes in not merely the tangible immovable property one describes as land but also all kinds of intangible rights or interests, in or over, land in the broad sense explained above. But none of the decisions contain any support for the further proposition that the legislative entry should be so interpreted as to cover houses and buildings as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this is not so. He points out that the court has been careful to say that it is not expressing any final opinion regarding Entry 21. It has, at another place, referred to the framing of house tenancy legislation either under Entry 18 of List II or Entries 6, 7 and 13 of List III which also indicates that the Court had not made up its mind as to whether this type of legislation will fall under List II or List III. It is submitted also that an analysis of the Calcutta and Rajasthan decisions approved by it would show that they had not at all been considering any conflict between entries in Lists II and III and were concerned only with the interpretation of Entry 2 in List I and Entry 21 of List II. Dr. Chitale, therefore, urges that Indu Bhushan cannot be taken as a decision that house tenancy legislation cannot come under Entry 18 of List II. We are not, however, persuaded that Indu Bhushan s case is capable of being brushed aside so easily. It is true that, ultimately, the decision in that case turned on the wider interpretation of Entry 2 of List I favoured by the Supreme Court in preference to the narrower one preferred by Bombay. Nevertheless the judgment contains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the protection of the needy, not necessarily the so-called weaker section of the society as is commonly and popularly called, there is appreciable inroad on the freedom of contract and a person becomes a tenant of a landlord even against his wishes on the allotment of a particular premises to him by the authority concerned. Under section 107 of the Transfer of Property Act a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has abrogated or affected this provision. Section 108 deals with the rights and liabilities of lessors and lessees. Many State Rent Acts have brought about consider able changes in the rights and liabilities of a lessor and lessee, largely in favour of the latter, although not wholly. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the Con current List, many State Rent Acts have by necessary implication and many of them by starting certain provisions with non-obstante clause have done away with the law engrafted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the relationship of landlord and tenant; and (iii) collection of rents. In our opinion, the true import of the word land can be gathered if we try to ascertain the proper interpretation and ambit of these three phrases, particularly, the first two among them, in the context of other entries in the Union List. Doing so, is it possible to interpret this entry as encompassing within its terms legislation on the relationship of landlord and tenant in regard to houses and buildings? That is the question. After careful consideration, we have reached the conclusion that the answer to this question has to be in the negative for a number of reasons: 1. As pointed out in Megh Raj, there was good reason for placing land in the Provincial List. Land indeed is primarily a matter for provincial concern. It is well known that land in each Province had its special characteristics. There were local customs and traditions in regard to landholding and particular problems of local concern which required provincial consideration. There are no such special features that require placing buildings also in the State list. The problem of scarcity of house accommodation is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act cannot be invoked to interpret the entries in the Constitution. 4. The entry in question specifically refers to the relationship of landlord and tenant but this is in the part of the entry which reads: land tenures including the relationship of landlord and tenant . The words land tenures , are not followed by a comma in some of the editions though the 1935 Act and some of the other editions and text books on the Constitution have a comma in between. But this makes no difference. The words tenant and tenure have a common derivation and the expression tenure no doubt comprehends within it the relationship of landlord and tenant. But this had to be specified and clarified because in India, the expression land tenures , as pointed out in Indu Bhushan, has acquired a special significance. It connotes various types of holdings of land, involving the King or the Government, the zamindar, the inamdar and various other types of holders, lessors, sub-lessors, lessees and sub-lessees under or through them and evolved at various stages of Indian history by various rulers, nawabs and chieftains Hindu, Muslim and British differently in different parts of the country. Sir Baden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land-is in the Concurrent List, the State will have exclusive power to legislate in respect of transfer of all property in the nature of land and buildings; in other words, for the words transfer of property other than agricultural land , we will be substituting transfer of property other than lands and buildings . It will mean that though wills, intestacy and succession are in item 5 of the Concurrent List, the State can legislate exclusively in respect of devolution of land and buildings of all description. It will render Entry 35 of List 11 a surplusage in so far as it refers to lands and buildings . We do not think that such an interpretation should be favoured. The more harmonious interpretation would be that any subject matter that involves the element of transfer or alienation of any property (other than agricultural land) or of devolution (on testamentary or intestate succession) of any property or contract (other than one in relation to agricultural land) will fall in the Concurrent List and not in the State List even though it may relate to land or buildings. 6. Another feature of the entries in the Lists also lends support to our view. Reference has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively, is that if land and buildings were so clearly covered by Entry 18 of List II, either the wording of entry 32 would have been made subject to List Il of Entry 18, in this regard, like nos. 23 and 24 would have been made subject to List 1. 9. It is also a relevant consideration that, while the interpretation suggested by appellants completely denies power to Parliament to legislate on the subject matter under consideration, the interpretation preferred by us does not exclude the States power to legislate with respect to the topic. It recognises a concurrent power in Parliament and State Legislatures. For the reasons discussed above, we are of opinion that all the legislations coming up for consideration in the present case are referable to entries in the Concurrent List and the topic of legislation is not referable to Entry 18 List II. The provisions of the 1971 Act, in so far as they are made applicable to the premises of the respondent bank are, therefore, intra vires and valid. Once it is held that the 1971 Act is intra vires Parliament, no further issue between the parties would seem to survive for consideration for, as we have already pointed out, no othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent,. prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. It will be convenient, before applying the provisions of the article to the facts of the present case, to refer to the elucidation of the scope of its provisions by decisions of this Court. In Zaverbhai Amaidas v. State, [1955] SCR 799 the question whether a provision in Central Act XXIV if 1946 as amended by the Act LII of 1950 would prevail against a provision in Bombay Act XXXVI of 1947. Both legislations were referable to the Concurrent List and the State law had been passed after obtaining the assent of the Governor General. Referring to Art. 254(2), the Court said: This is, in substance, a reproduction of section 107(2) of the Government of India A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50. It is sufficient to cite certain observations from one more judgment on this aspect: Hoechst Pharmaceuticals v. State, [1983] 3 SCR 130 which had to consider an alleged conflict between a provision of a State sales tax law and a provision of an order made under the Essential Commodities Act of Parliament. The case dealt with several points with which we are not here concerned. Expatiating on the scope of Article 254, the Court observed: Art. 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Cl. (1) lays down that if a State law relating to a concurrent subject is repugnant to a Union law relating to that subject, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in cl. (1), cl. (2) engrafts an except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, while initially formulating his contentions, outlined an argument that the provision in the 1971 Act appointing one of the officers of the respondent bank as the Estate officers is violative of Article 14. We do not see any substance in this contention. In the very nature of things, only an officer or appointee of the Government, statutory authority or Corporation can be thought of for implementing the provisions of the Act. That apart, personal bias cannot necessarily be attributed to such officer either in favour of the bank or against any occupant who is being proceeded against, merely because he happens to be such officer. Moreover, as pointed out earlier, the Act provides for an appeal to an independent judicial officer against orders passed by the Estate officer. These provisions do not, therefore, suffer from any infirmity. In fact, Dr. Chitale did not pursue this objection seriously. No other contention was urged. The appeal, therefore, fails and is dismissed. We would, however, make no order as to costs as it is the existence of a multiplicity of statutory provisions that enabled the appellant to come to Court. S.L. Appeal dismissed. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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