Rajendra Kumar Malhotra And ... vs Ashok Kumar Jain And 3 Others
2017 Latest Caselaw 8192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on  22.09.2017
 
                                       Judgment Delivered on  21.12.2017
 

 
Court No. - 2
 

 
Case :- WRIT - A No. - 44802 of 2017
 

 
Petitioner :- Rajendra Kumar Malhotra And Another
 
Respondent :- Ashok Kumar Jain And 3 Others
 
Counsel for Petitioner :- C.K.Parekh
 
Counsel for Respondent :- Rahul Chaudhary
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri C.K.Parekh, learned counsel for the defendants-petitioners and Sri Madho Jain, learned counsel for the plaintiffs-respondents/landlord.

Facts :

2. Briefly stated, facts of the present case, are that the plaintiffs-respondents had filed a release application under Section 21(1)(a) of U.P. Act No.13 of 1972. being P.A. Case No.90 of 2010 (Ashok Kumar Jain v. Rajendra Kumar Jain and others) in which seven issues were framed by the Prescribed Authority. The Prescribed Authority/Judge Small Cause Court, Agra, decided the issue Nos. 1,2,4,5 and 6 in favour of the plaintiffs-respondents/landlords. The last issue i.e. issue No.7 "whether non-compliance of the provisions of Order VI Rule 15(4) C.P.C. would render the release application to be not maintainable", was decided against the plaintiffs and consequently the aforesaid P.A. Case was dismissed.

3. Aggrieved with the judgment of the Prescribed Authority dated 3.6.2013 in the aforesaid P.A. Case No.90 of 2010, the plaintiffs-respondents/landlords filed a Rent Appeal No.83 of 2013 (Ashok Kumar Jain v. Rajendra Kumar Malhotra and another), which has been allowed by the impugned judgment dated 25.7.2017. and the P.A. case has been decreed.

4. Aggrieved with the aforesaid judgment in appeal the defendant-petitioner has filed the present writ petition under Article 226 of the Constitution of India.

Submissions

5. Sri C.K. Parekh, learned counsel for the defendants-petitioners submits as under:

(i) By Rule 15 (2) of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act , 1972 (hereinafter referred to as the Rules) the provision of Order VI Rule 14 and 15 C.P.C. have been made applicable which is a legislation by reference and therefore, every subsequent amendment in Order VI Rule 15 would be deemed to have been made applicable in Rule 15(2) of the Rules.

(ii) In any case the appeal of the plaintiffs-respondents/landlord before the appellate court was only against the findings of the trial court on issue no.6 i.e. applicability of the provisions of Order VI Rule 15(4) C.P.C. and not on merits of issue Nos. 1,2,4, 5 and 6 which were decided in their favour. Since the suit itself was dismissed by the trial court and as such the defendant-petitioner could not get an opportunity to assail the order of the Prescribed Authority on the findings on the aforesaid issues. Under the circumstances, the appellate court should have afforded opportunity of hearing to the defendants-petitioners on these issues before allowing the appeal in totality, in view of the provisions of order XLI Rule 33 C.P.C.

6. In support of his submissions, Sri C.K. Parekh, has referred the provisions of Section 34 of the Act, Rule 15(2) of the Rules and the Provisions of Order VI Rule 15 and Order XLI Rule 33 C.P.C. and relied upon the judgment of Privy Council in Secretary of State for India in Council and Hindusthan Co-operative Insurance Society, Limited AIR 1931 PC 149, judgments of Hon'ble Supreme Court in The Collector of Customs, Madras Vs. Nathella Sampathu Chetty and Anr. AIR 1962 SC 316 (paras 37 to 42), Ram Kirpal Bhagat and Ors.Vs. State of Bihar AIR 1970 SC 951 (paras 18 to 20), State of M.P. Vs. M.V. Narasimhan, 1975, 2 SCC 377 (para 15), Bajaya Vs. Gopikabai and Anr. 1978(2) SCC 542 (paras 25 to 27), M Mahindra and Mahindra Ltd. Vs. Union of India and Anr.1979 (2) SCC 529 (paras 8 and 9), Shiv Dutt Rai Fateh Chand and Ors Vs. Union of India and Anr. 1983(3) SCC 529 (para 19), Ujagar Prints(II) Vs. Union of India 1989(3) SCC 488 (paras 93 to 95), State of Kerala Vs. Attsse (Agro Industrial Trading Corpn.) 1989 Supp.(1) SCC 733(3), Rajasthan S.R.T.C. Vs. Poonam Pahwa 1997(6) SCC 100 (paras 27,28 and 34), Kulwant Kaur and ors. Vs. Gurdian Singh Mann (dead)Lrs. And Ors.2001(4) SCC 262 (paras 2,5,7,10,12,13,15,18,34 and 36), Nagppur Improvement Trust Vs. Vasantrao and Ors 2002(7) SCC 657 (paras 31 to 36), Maharashtra State Road Transport Corporation Vs. State of Maharashtra 2003(4) SCC 200 (para 8), Bharat Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employeess Union 2007(4) SCC (paras 15 to 21), Girnar Tradeers (3) Vs. State of Maharashtra 2011 (3) SCC1 and State of Uttarakhand Vs. Mohan Singh (2012) 13 SCC 281.

7. Sri Madho Jain, learned counsel for the plaintiffs-respondents/landlord submits that Rule 15(2) of the Rules specifically incorporates the Provisions of Order VI Rule 15(2) C.P.C. Therefore, it is a legislation by incorporation. Consequently, the provisions contained in Order VI Rule 15 C.P.C. as it existed at the time when the Rules 1972 were enacted, could only be deemed to have been incorporated. Subsequent amendment in order VI Rule 15 C.P.C. by inserting Sub-rule (4) by Act No.46 of 1999 w.e.f. 1.7.2002 is neither relevant nor shall be deemed to have been incorporated in Rule 15(2) of the Rules. Referring to paragraph 8 of the impugned judgment of the appellate court he submits that sufficient opportunity was afforded to the defendant-petitioner/tenant to address on all points as were available to him but the defendants-petitioners themselves have not availed that opportunity and, therefore, arguments of learned counsel for the defendants-petitioners as noted above, deserves rejection.

8. In support of his submissions Sri Jain has relied upon the judgments of Hon'ble Supreme Court in the case of Bajya Vs. Gopikabai and another, AIR 1978 SC 793 (para 27), M/s. Ujagar Prints etc. etc. Vs. Union of India and others etc.AIR 1989 SC 516 (Para 49), M/s. Girnar Traders Vs. State of Maharashtra & Ors. AIR 3180 (para 57), Raghunath Vs. Kedarnath AIR 1969 SC1316 (para 4) and P. Purushottam Reddy Vs. M/s. Pratap Steels Ltd. AIR 2002 SC 771.

9. Thus, three questions are involved in this petition, which are being framed with the consent of learned counsels for the parties, as under:-

Question

(i) Whether the provisions of Sub Rule (4) of Rule 15 of Order VI C.P.C. inserted by Act No.46 of 1999 w.e.f. 1.7. 2002 would be deemed to have been incorporated in Rule 15 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972 ?

(ii) Whether under the facts and circumstances of the case the appellate court was justified in allowing the appeal of the landlord merely on account its decision on issue no.7 reversing the decision of the trial court on issue no.6 and without examining the merits of the decision of the trial court on issue nos. 1,2,4, 5 and 6?

(iii) Whether non-examination of decision of trial court of issue nos. 1,2,4 5 and 6 and not affording opportunity to the defendants-petitioner/tenants to address on merits on issue nos. 1,2,4 5 and 6 would amount to violation of principles of natural justice and breach of the provisions of Order XLI Rule 33 C.P.C.

Discussion and Findings

Question No.(ii) and (iii)

10. Relevant facts in brief concerning these two issues are that in P.A. Case No.90 of 2010 (Ashok Kumar Jain v. Rajendra Kumar Jain and others) under Section 21(1)(a) of the U.P. Act No.13 of 1972 filed by the plaintiffs-respondents/landlords, seven issues were framed by the Prescribed Authority as under:

 
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11. Issue nos.1,2,4,5 and 6 were decided by the Prescribed Authority in favour of the plaintiffs-respondents/landlords, vide Order dated 3.6.2013. The issue no.7 was decided in favour of the defendant-petitioner and against the plaintiffs-respondents/landlords holding that since the release application was not in the manner as provided under Order VI Rule 15 (4) of the Rules and as such the release application was not instituted as per law. Therefore, the release application was rejected. Aggrieved with the aforesaid order dated 3.6.2013 in P.A. Case No.90 of 2010 the plaintiffs-respondents/landlords filed a Rent Control Misc. Appeal No.83 of 2013 (Ashok Kumar Jain v. Rajendra Kumar Malhotra and another), which has been allowed by the impugned judgment and order dated 25.7.2017, passed by the Court of Additional District Judge Court No.6, Agra. While allowing the appeal, the Appellate Court observed/recorded finding in paragraphs 8 and 23 of the impugned order as under:

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12. It is admitted case of the defendant-petitioner that although issue nos. 1,2,4,5 and 6 were decided against him and in favour of the plaintiffs-respondents/landlords and merely issue no.7 was decided in his favour and yet he had not challenged the order of the Prescribed Authority in P.A. Case No.90 of 2010 on the aforesaid issues. As evident from paragraph 8 of the Appellate Order, the defendant-petitioner was afforded opportunity of hearing to submit his written and oral submissions yet he has not objected to the findings of the Prescribed Authority on issue Nos.1,2,4,5 and 6.

13. Section 22 of the U.P. Act No.13 of 1972 provides that any person aggrieved by an order under Section 21 or Section 24 may, within 30 days from the date of the order, prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal.

14. Section 10 of the Act provides that Appellate Authority may confirm, vary or rescind the order or remand the case for rehearing and may also take any additional evidence and pending its decision, stay the operation of the order under Appeal on such terms, if any, as it thinks fit.

15. Order XLI Rule 22 C.P.C. is relevant on principles. This provision was considered by Hon'ble Supreme Court in the case of Ramanbhai Ashabhai Patel vs Dabhi Ajithkumar Fulsinji AIR 1965 SC 669 in which facts were that the loosing candidate of an Assembly Election challenged before the Tribunal the election of the winning candidate on several grounds including the grounds of corrupt practices and that the acceptance of the nomination paper of the winning candidate was improper as he was below 25 years of age. The Tribunal rejected all the allegations relating to corrupt practices but allowed the petition on the ground that the nomination paper of the winning candidate was improperly accepted. In appeal the High Court reversed the finding of the Tribunal regarding the age of the winning candidate but held that the election is liable to be declared void by reason of corrupt practices. Consequently, the winning candidate filed a Civil Appeal no.506 of 1964 before the Hon'ble Supreme Court which was decided by the Constitution Bench by judgment dated 9.10.1964. Since the respondent had not filed an appeal and as such the question arose as to whether the respondent who had not filed an appeal can assail the finding. Hon'ble Supreme Court referred to the provisions of Order XLI Rule 22 C.P.C. and held that normally a party in whose favour the judgment appealed from has been passed, will not be granted Special Leave to Appeal from it but in appropriate cases it may permit a party to support the judgment in his favour even upon grounds which were negatived in that judgment.

16. Order XLI Rule 22 C.P.C. specifically provides as under:

"22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been In his favour; and may also take any cross objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one months from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow:

Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or In part, in favour of that respondent.

(2) Form of objection and provisions applicable thereto--Such cross objection shall be in the form of the memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) [.....]

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or Is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit,

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. "

17. Before passing the impugned judgment the appellate court afforded an opportunity to the defendant-petitioner to make all his written and oral submissions as evident from the observations made in paragraph 8 of the impugned judgment. The defendant-petitioner had not objected to the finding of the Prescribed Authority which were against him. Thus, it can be safely concluded that the defendant-petitioner has voluntarily not objected to the findings of the Prescribed Authority on issue nos. 1 to 6 before the Appellate Court.

18. According to his own case as stated in paragraph 55 of the writ petition he filed objection only regarding maintainability of the appeal although the Appellate Court had framed three questions and the question no.3 was whether the plaintiffs-respondents/landlord is entitled to any relief?

19. The observations made in paragraph 8 of the impugned judgment of the Appellate Court has not been even disputed before this Court. Thus the defendant-petitioner has not denied that an opportunity was afforded by the Appellate Court to him to make his written and oral submissions but he had not made any submission on any issue except the issue No.7.

20. Even in this writ petition the defendant-petitioner has merely objected to the findings of fact recorded by the Prescribed Authority on issues Nos.1 to 6 and the findings recorded by the Appellate Authority on question nos. 1 and 2 relatable to issue no.7 framed by the Prescribed Authority. Since the findings of fact recorded by the Prescribed Authority on issue nos. 1 to 6 remained undisputed before the Appellate Court, therefore, the Appellate Court was justified in allowing the appeal of the plaintiffs-respondents/landlord while reversing the decision of the Prescribed Authority on issue no.7. The appellate Court also considered in para 23 of the impugned judgment with respect to question no.3 and found that landlord-tenant relationship between parties has been admitted and the comparative hardship with respect to the disputed property is of the plaintiffs-respondents/landlord.

21. It shall not be out of place to mention that the disputed premises was purchased by Smt. Radharani Jain, the mother of the plaintiffs-respondents/landlord for their personal need. The aforesaid Smt. Radharani Jain died on 25.5.2003. The plaintiff being heirs and legal representative of Smt. Radharani Jain, became owner and landlord of the disputed premises. This fact was not denied by the defendant-petitioner before the Prescribed Authority as evident from the findings of fact recorded by the Prescribed Authority on issue no.1 with reference to the pleadings and exhibit no.45. Thus the finding of landlord - tenant relationship between the respondent-plaintiffs and petitioner defendant is undisputed.

22. The Prescribed Authority examined the facts and evidence in detail and recorded a finding of fact regarding bonafide need and comparative hardship in favour of the respondent-plaintiff. Finding of fact on issue nos.1,2,4,5 and 6 have also been recorded based on consideration of relevant evidence on record. These being the findings of fact can not be interfered with in writ jurisdiction under Article 226 of the Constitution of India.

23. The facts as noted above leaves no manner of doubt that there was no violation of principles of natural justice by the appellate court while passing the impugned judgment.

24. Therefore, the question nos. 2 and 3 are answered against the defendant-petitioner and in favour of the plaintiffs-respondents/landlord .

Question No.1

25. Rule 15 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Rules 1972 provides as under:

"15. Obligation to intimate vacancy to District Magistrate -(1) Every landlord, shall on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever gives notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy.

(2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy.

(3) The notice under sub-section (1) or sub-section (2) shall contain such particulars as may be prescribed.

(4) The District Magistrate, on being satisfied on an application made to him in that behalf that there was sufficient cause for the landlord or the tenant not to give notice under sub-section (1) or sub-section(2) within time, may condone such delay."

26. The aforesaid Rules 1972 was enacted vide Notification No.3347 dated 1.7.1972 and it was published in the U.P. Gazette extraordinary, dated 1.7.1972. At the time when the aforesaid Rule was enacted, the provisions of Order VI Rule 15 C.P.C. stood as under :

"15. Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

27. By Act No.46 of 1999 w.e.f. 1.7.2002, Sub-Rule (4) was substituted in Order VI Rule 15 stated as under

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."

28. The objection of the defendant-petitioner is that while verifying the pleadings of the Application under Section 21(1)(a) of the Act the plaintiffs-respondents/landlords has not furnished an affidavit in support of his pleadings. This objection was accepted by the Prescribed Authority while deciding the issue No.7 and accordingly the release application was dismissed. However, the Appellate Court reversed the order of the Prescribed Authority of issue No.7. The provisions of Order VI Rule 15 C.P.C. was incorporated in the Rules 1972 by Rule 15(2) of the Rules 1972. Thus it is a case of legislation by incorporation. Under the circumstances, the subsequent amendment made in order VI Rule 15 C.P.C. by substituting sub-Rule 4 shall not be part of Rule 15(2) of the Rules 1972.

29. Subsequent legislation often makes a reference to the earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation whereunder the provisions of the earlier legislation to which reference is made are incorporated into the later legislation by reference. Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. The legal position with regard to the legislation by incorporation has been summed up by Hon'ble Supreme Court in the case of State of M.P. Vs. M.V. Narasimhan, 1975, 2 SCC 377 (para 15) as under:

"On a consideration of these authorities, therefore, it seems that the following proposition emerges:

Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are to tally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:

(a) where the subsequent Act and the previous Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."

(Emphasis supplied by me)

30. The law of legislation by incorporation and reference has been further explained by Hon'ble Supreme Court in the case of U.P. Avas Evam Vikas Parishad Vs. Jainul Islam and another 1998 (2) SCC 467 as under:

"A subsequent legislation often makes a reference to an earlier legislation so as to make the provisions of the earlier legislation applicable to matters covered by the later legislation. Such a legislation may either be (i) a referential legislation which merely contains a reference to or the citation of the provisions of the earlier statute; or (ii) a legislation by incorporation where under the provisions of the earlier 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 statue 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 incorporation by reference "is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." [See : Wood's Estate, Re, (1886) 31 Ch D 607. at p. 615]. As to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances. The legal position has been thus summed up by this Court in State of Madhya Pradesh v. M.V. Narasimhan 1976 (1) SCR 6, :-

"where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases :

(a) Where the subsequent Act and the previous Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."

(Emphasis supplied by me)

31. The first judgment on the issue of legislation by reference and legislation by incorporation is the judgment of Privy Council in Secretary of State for India in Council and Hindusthan Co-operative Insurance Society, Limited AIR 1931 PC 149, which was considered by a Constitution Bench of Hon'ble Supreme Court in the case of Collector of Customs, Madras Vs. Nathella Sampathu Chetty and Anr. AIR 1962 SC 316 (paras 37 to 42). The law laid down in the aforequoted two judgments of Hon'ble Supreme Court in M.V. Narasimhan, (supra) and U.P. Avas Evam Vikas Parishad (supra) still holds good and is also supported by judgments in the Collector of Customs, Madras(supra), Ram Kirpal Bhagat and Ors.Vs. State of Bihar AIR 1970 SC 951, Bajaya Vs. Gopikabai and Anr. 1978(2) SCC 542 (para 26), M Mahindra and Mahindra Ltd. Vs. Union of India and Anr.1979 (2) SCC 529, Shiv Dutt Rai Fateh Chand and Ors Vs. Union of India and Anr. 1983(3) SCC 529, Ujagar Prints(II) Vs. Union of India 1989(3) SCC 488 (paras 93 and 94), State of Kerala Vs. Attsse (Agro Industrial Trading Corpn.) 1989 Supp.(1) SCC 733(3), Maharashtra State Road Transport Corporation Vs. State of Maharashtra 2003(4) SCC 200 (para 8), Bharat Coop. Bank (Mumbai) Ltd. Vs. Coop. Bank Employeess Union 2007(4) SCC (paras 17,19,20 and 21). In the case of Girnar Tradeers (3) Vs. State of Maharashtra 2011 (3) SCC1 (para 4,5,88,89, 90,91, 119,120,121) a Constitution Bench of Hon'ble Supreme Court observed/held as under:

"4. Amongst others, doctrines of ''legislation by reference' and ''legislation by incorporation' are the creation of judicial pronouncements. One of the earliest instances, where the Privy Council, then responsible for Indian Judicial system, accepted the plea of ''legislation by incorporation' and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. [AIR 1931 PC 149]. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products [(1963) 1 SCR 47]; Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777]; Mahindra & Mahindra v. Union of India [(1979) 2 SCC 529]; Ujagar Prints v. Union of India [(1989) 3 SCC 488]; U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467]; Nagpur Improvement Trust v. Vasant Rao [(2002) 7 SCC 657] and Maharashtra State Road Transport Corporation v. State of Maharashtra [(2003) 4 SCC 200].

5. The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. (supra) stated,

"where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to 3 the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent to function effectually without the addition".

Though this principle has been reiterated from time to time; with the development of law, still certain doubts were reflected in the judicial pronouncements of the courts as to the application of this principle as an absolute proposition of law. On the contrary, this principle received criticism from various quarters. The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the concerned legislative constituent.

88. In this regard, the judgment of this Court in the case of M.V. Narasimhan (supra) can be usefully noticed where the Court after analyzing various judgments, summed up the exceptions to this rule as follows :

"(a) where the subsequent Act and the previous Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual;and

(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act."

89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already noticed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making

them part of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act.

90. Ultimately, it is the expression and/or the language used in the new law with reference to the existing law that would determine as to under what class of referential legislation it falls. In some of the statutes, expressions like "shall for that purpose be deemed to form part of this Act in the same manner as if they were enacted in the body thereof" or "the provisions of Section of the said Act (set out in the Schedule) shall apply as if they were herein re-enacted" are typical examples of legislation by incorporation. Another glaring example of incorporation one finds in the provision of Bombay Municipal Corporation Act, 1949 where Section 284N uses the expression "the LA Act ... shall for that purpose be deemed to form part of this chapter as if enacted in the body hereof".

91. Another feature of legislation by incorporation is that the language is explicit and positive. This demonstrates the desire of the legislature for legislation by incorporation. Self-contained enactment should be clearly distinguished from supplemental law. When the later law depends on the former law for procedural/substantive provisions or is to draw its strength from the provisions of the former Act, the later Act is termed as the supplemental to the former law. The statement of object and reasons of both the Acts, i.e. the MRTP Act and the Land Acquisition Act as well as the scheme of these Acts, we have already discussed at length. They are Acts which operate in different fields. One is a Central Act while the other is a State Act. They derive their source from different entries in the constitutional lists.

119. The above dissent led to reference of the legal issue to a three Judge Bench in the case of U.P. Avas Evam Vikas Parishad (supra) where the Court took the view that the acquisition effected under the provisions of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, where Section 55 read with the Schedule of that Act adopted the provisions of the Land Acquisition Act, such adoption was held to be legislation by reference and, therefore, the land owners would be entitled to the benefits of Sections 23(1A), 23(2) and 28 as introduced by the Central Act 68 of 1984 as otherwise it would suffer from the vice of arbitrariness and hostile discrimination. This Court while dealing with the provision of Section 55 of the Adhiniyam held that the provisions of the Land Acquisition Act as amended by the Central Act 68 of 1984, relating to determination and payment of compensation, would be applicable to acquisition of land for the purposes of Adhiniyam.

120. The principle of legislation by incorporation as stated in Hindusthan Co-operative Insurance Society Ltd. (supra) had been followed in subsequent cases as well. It was clearly stated that in the case of legislation by incorporation, it is a statute existing at that time which stands incorporated in the later law to the extent it is adopted by the legislature and subsequent amendments are inconsequential for implementation of the law contained in the subsequent Act. Even in the case of Bolani Ores Ltd. (supra), the Court while dealing with the definition of ''motor vehicle' in Section 2(18) of the Motor Vehicles Act, 1939 and Section 2(c) of the Bihar and Orissa Motor Vehicles Tax Acts, 1930 held that the amendment to Section 2(18) of the Motor Vehicles Act by Act 100 of 1956 could not be read into the Bihar Act, as the legislature had intended to incorporate the provisions of the Motor Vehicles Act as it stood in 1939.

121. These are the few examples and principles stated by this Court dealing with both the doctrines of legislation by incorporation as well as by reference. Normally, when it is by reference or citation, the amendment to the earlier law is accepted to be applicable to the later law while in the case of incorporation, the subsequent amendments to the earlier law are irrelevant for application to the subsequent law unless it falls in the exceptions stated by this Court in M.V. Narasimhan's case (supra). It could well be said that even where there is legislation by reference, the Court needs to apply its mind as to what effect the subsequent amendments to the earlier law would have on the application of the later law. The objective of all these principles of interpretation and their application is to ensure that both the Acts operate in harmony and object of the principal statute is not defeated by such incorporation. Courts have made attempts to clarify this distinction by reference to various established canons. But still there are certain grey areas which may require the court to consider other angles of interpretation.

(Emphasis supplied by me)

32. In the case of State of Uttarakhand Vs. Mohan Singh (2012) 13 SCC 281, Hon'ble Supreme Court considered the distinction between legislation by incorporation and legislation by reference and held as under (paras 21 and 25):

"21. This Court in the above mentioned case examined the scope of Section 55 read with Section 100 CPC, both amended and unamended. Section 55 provides inter alia that any person aggrieved by an order made by the Commissioner under Section 13 may prefer an appeal to this Court on "one or more of the grounds" specified in Section 100 C.P.C., 1908. When Section 55 was enacted, namely, 27.12.1969, being the day of coming into force of the Act, Section 100 C.P.C. specified three grounds on which a second appeal could be brought to the High Court on one of those grounds was that the decision appealed against was contrary to law. Therefore, if the reference in Section 55 was to the grounds set out in the then existing Section 100, there can be no doubt that an appeal would lie to this Court under Section 55 on a question of law. The above aspects have been elaborately dealt with in Mahindra and Mahindra (1979)2 SCC 529. The relevant portion of the judgment is as follows:

"8. ....... It was sufficient under Section100 as it stood then that there should be a question of law in order to attract the jurisdiction of the High Court in second appeal and, therefore, if the reference in Section 55 were to the grounds set out in the then existing Section 100, there can be no doubt that an appeal would lie to this Court under Section 55 on a question of law. But subsequent to the enactment of Section 55, Section 100 of the Code of Civil Procedure was substituted by a new section by Section 37 of the Code of Civil Procedure (Amendment) Act, 1976 with effect from 1-2-1977 and the new Section 100 provided that a second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law. The three grounds on which a second appeal could lie under the former Section 100 were abrogated and in their place only one ground was substituted which was a highly stringent ground, namely, that there should be a substantial question of law. This was the new Section 100 which was in force on the date when the present appeal was preferred by the appellant and the argument of the respondents was that the maintainability of the appeal was, therefore, required to be judged by reference to the ground specified in the new Section 100 and the appeal could be entertained only if there was a substantial question of law. The respondents leaned heavily on Section 8(1) of the General Clauses Act, 1897 which provides:

'8. Construction of references to repealed enactments.-(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re- enacted.'

and contended that the substitution of the new Section 100 amounted to repeal and re-enactment of the former Section 100 and, therefore, on an application of the rule of interpretation enacted in Section 8(1), the reference in Section 55 to Section 100 must be construed as reference to the new Section 100 and the appeal could be maintained only on ground specified in the new Section 100, that is, on a substantial question of law. We do not think this contention is well founded. It ignores the distinction between a mere reference to or citation of one statute in another and an incorporation which in effect means bodily letting a provision of one enactment and making it a part of another. Where there is mere reference to or citation of one enactment in another without incorporation, Section 8(1) applies and the repeal and re-enactment of the provision referred to or cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as re-enacted. Such was the case in Collector of Customs v. Nathella Sampathu Chetty (1962) 3 SCR 786 and New Central Jute Mills Co. Ltd. v. CCE. But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter. The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by incorporation is a common legislative device employed by the legislature, where the legislature for convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of setting out for itself at length the provisions which it desires to adopt. Once the incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. Lord Esher, M.R., while dealing with legislation by incorporation in Wood's Estate,In re. (1886) 31 Ch.D. 607(CA) pointed out at p. 615 :

"...If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.'

Lord Justice Brett, also observed to the same effect in Clark v. Bradlaugh (1881) 8 Q.B.D. 63,(Q.B.D. P.69):

...there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second.

25. In Mahindra and Mahindra Ltd. V. Union of India,(1979)2 SCC 529 after referring to the above mentioned judgment, this Court held as follows:

"9. We have no doubt that Section 55 is an instance of legislation by incorporation and not legislation by reference. Section 55 provides for an appeal to this Court on "one or more of the grounds specified in Section 100". It is obvious that the legislature did not want to confer an unlimited right of appeal, but wanted to restrict it and turning to Section 100, it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in Section 55. The right of appeal was clearly intended to be limited to the grounds set out in the existing Section 100. Those were the grounds which were before the Legislature and to which the Legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the Legislature intended to restrict the right of appeal. The Legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in Section 100 without knowing what those grounds were. The grounds specified in Section 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the Legislature should have thought it necessary that these changes should also be reflected in Section 55 which deals with the right of appeal in a totally different context. We fail to appreciate what relevance the legislative policy in regard to second appeals has to the right of appeal under Section 55 so that Section 55 should be inseparably linked or yoked to Section 100 and whatever changes take place in Section 100 must be automatically read into Section 55. It must be remembered that the Act is a self-contained Code dealing with monopolies and restrictive trade practices and it is not possible to believe that the Legislature could have made the right of appeal under such a code dependent on the vicissitudes through which a section in another statute might pass from time to time. The scope and ambit of the appeal could not have been intended to fluctuate or vary with every change in the grounds set out in Section 100. Apart from the absence of any rational justification for doing so, such an indissoluble linking of Section 55 with Section 100 could conceivably lead to a rather absurd and startling result. Take for example a situation where Section 100 might be repealed altogether by the Legislature-a situation which cannot be regarded as wholly unthinkable. It the construction contended for on behalf of the respondents were accepted, Section 55 would in such a case be reduced to futility and the right of appeal would be wholly gone, because then there would be no grounds on which an appeal could lie. Could such a consequence ever have been contemplated by the Legislature? The Legislature clearly intended that there should be a right of appeal, though on limited grounds, and it would be absurd to place on the language of Section 55 an interpretation which might, in a given situation, result in denial of the right of appeal altogether and thus defeat the plain object and purpose of the section. We must, therefore, hold that on a proper interpretation the grounds specified in the then existing Section 100 were incorporated in Section 55 and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated and since the present appeal admittedly raises questions of law, it is clearly maintainable under Section 55. We may point out that even if the right of appeal under Section 55 were restricted to the ground specified in the new Section 100, the present appeal would still be maintainable, since it involves a substantial question of law relating to the interpretation of Section 13(2)."

(Emphasis supplied by me)

33. Doctrine of "legislation by reference" and "legislation by incorporation" are the creation of judicial pronouncements. In case of legislation by reference the provisions of the earlier legislation to which the 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 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.

34. But where a subsequent legislation incorporates provisions of a previous legislation then the borrowed provisions become an integral and independent part of the subsequent legislation and are totally unaffected by any repeal or amendment in the previous legislation. This is called legislation by incorporation. In such a case the repeal of the earlier legislation which is incorporated, does not affect operation of the subsequent legislation in which it has been incorporated. So also amendment in the earlier legislation after date of its incorporation in the subsequent legislation, shall not affect the subsequent legislation in which it is incorporated and the provisions of the statute which have been incorporated would remain the same as they were at the time of incorporation. The subsequent amendment shall not be read in the subsequent legislation. Another feature of legislation by incorporation is that the language is explicit and positive. This demonstrates desire of the legislature for legislation by incorporation. It is a statute existing at the time which stands incorporated in the later law to the extent it is adopted by the legislature. The subsequent amendments to the earlier legislation are totally irrelevant for application to the subsequent law unless it falls within the exceptions stated by Hon'ble Supreme Court in the case of M.V. Narasimhan, (supra).

35. Rule 15(2) of the Rules specifically provides that the application under Section 21(1) of the Act shall be signed and verified in the manner prescribed under Rule 14 and 15 of order VI of the first Schedule to the Code of Civil Procedure 1908 and if there are more than one landlords, the application shall be signed by all the co-landlords. The provisions of order VI Rule 14 and 15 as existed at the time of enactment of the Rules 1972 provided the manner in which pleadings shall be signed by a party and his pleader and the manner in which the pleadings shall be verified. Rule 15(2) of the Rules 1972 has incorporated the provisions of Order VI Rule 14 and 15 C.P.C. only to the extent of signing and verification of the application under Section 21(1) of the Act. It does not provide for supporting the application by an affidavit. Thus the provisions of Rule 15(2) of the Rules 1972 specifically incorporated the provisions of order VI Rule 14 and 15 C.P.C. as it then existed which were confined to signing of a plaint and its verification. The language of Rule 15(2) of the Rules 1972 is explicit and positive. Thus, it is clear case of legislation by incorporation whereby provisions of Rule 14 and 15 of order VI C.P.C. were incorporated in Rule 15(2) of the Rules 1972. The subsequent amendment in Order VI Rule 15 C.P.C. by substituting sub-Rule 4 by Act 46 of 1999 w.e.f. 1.7.2002 provides for furnishing of an affidavit in support of the pleadings which is clearly outside the scope of Rule 15(2) of the Rules 1972.

36. In view of the above discussion, the question No. (i) is answered in favour of the respondent-plaintiff/landlord and against the defendant-petitioner.

37. From the discussions made above, I do not find any merit in this writ petition. The impugned judgment does not suffer from any illegality. Consequently, writ petition fails and is hereby dismissed.

Order Date :- 21.12.2017/vkg