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TMI Blog1988 (10) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court and hence the present appeal. We are not conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 position so far as the State of U.P. was concerned. As we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 principal questions, it was pointed out by Shri Tandon (appearing for the petitioner in SLP No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect 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 Court on the basis of Act 68 of 1971 is that on the issue of the notification dated 3-4-1972, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 2 exhausts itself on extension of the enactment; it cannot be exercised repeatedly or subsequently to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 difficulty arises in the working of the Act after its enforcement, subject of course to the time-limit, if any, for its exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 the Central Government issued on 21-11-1969 a notification extending the East Punjab Rent Restriction Act, 1949, to cantonments in the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litative 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 of Rent Control Laws) Act, 1957, under which the earlier notification was issued is without force and must be rejected (Underlining ours) This princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri 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 given carte blanche to do whatever it likes in this respect and that its power of notification is restricted to merely extending to cantonment areas the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 clear that the primary power bestowed by the section on the Central Government, is one of extension, that is, bringing into operation and effect, in a Union Territory, an enactment alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 of This court in B. Shama Rao v. Union Territory of Pondicherry [1967]2SCR650 . In that case the legislative assembly for the Union Territory of Pondicherry passed the Pondicherry General Sales Tax Act ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 non-application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Madras Act, viz., the section which provides for the Appellate Tribunal and the said Schedule. But the core of a taxing statute is in the, charging section and the provisions levying such a tax and defining persons who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 existing laws, either Central or Provincial, with alterations and modifications; and (7) Where the authorisation was to apply future laws under the same conditions: The views of the various members of the Bench were not as clear-cut as in the first five cases, so it will be necessary to analyse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied 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 local sales tax for the purpose of central sales tax. Indeed, as mentioned earlier, the adoption of the local sales tax is in pursuance of a legislative policy induced by the desire to prevent evasion of the payment of central sales tax by discouraging inter-State sales to unregistered dealers. No such policy could be discerned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter of detail of drafting, of not much significance or importance, once the general policy was clear. It is only this matter of detail that has been delegated to the Central Government to be attended to while passing appropriate notifications in each case. As pointed out in Sita Ram Bishambher Dayal v. State of U.P. [1972]2SCR141 in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 Section-3(1) that the statute proposed to be extended should be as in force on the date of the notification. In other words despite the enlarged power conferred by amending Act 22 of 1972 the notification is couched in the same way as the earlier notification of 3rd April 1972 and purports to extend to the cantonments only the provisions of Act 13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 urged on behalf of the tenant before the High Court, in addition to the principal argument that Act 13 of 1972 was not at all applicable to cantonment areas, was that Sri Srivastava, appointed in pursuance of the amendment Act 28 of 1976, was not the Prescribed Authority authorised in accordance with the provisions of the Act as they stood on 1st September, 1973, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 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 by Sri Srivastava. We have already expressed nor opinion that amended Section 3 of Act XLVI of 1957, on a proper construction, validly empowers the Central Government, by notification, to extend the provisions of Act 13 of 1972 to the cantonments in the State of Uttar Pradesh, not only in the form in which it stood on the date of the said notification but also along with its subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 amended at any time after the earlier date but before the commencement of the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, such enactment, as amended shall apply to the cantonment on and from the date on which the enactment by which such amendment was made came into force. (4) Where, before the extension to a cantonment of any enactment relating to the control of rent and regulation of house accommodation therein (hereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 terms is not as confined. It applies to all cases of decrees or orders made before the extension of a State Legislation to a cantonment area irrespective of the question whether such extension is retrospective or not. The essential condition to be fulfilled is that the decree or order must have been made as if the State Legislation was already in force, although, strictly speaking, it was not so in force. In our view Sub-section (4) is wide enough to save all decrees and orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rview 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 be accepted in view of the position in law as discussed hereinbefore. It was submitted on behalf of the respondent that Section 24-B gave substantive rights to the appellant and Section 24-C was the procedure for enforcing those substantive rights. Therefore, these were not only procedural rights. Therefore, there was no question of retrospective operation to take away vested right. We are, however, of the opinion that it would be an exercise in futility if the application is di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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