Munawar Khan Hussein Khan Since ... vs Somnath H. Holkar
2003 Latest Caselaw 955 Bom

JUDGMENT

D.G. Karnik, J.

1. Heard learned counsel for the parties.

2. Following question of law arises for consideration in this Writ Petition:

1. Whether amendments to the Bombay Rents Hotels and Lodging Houses Rates Control Ac, 1947 (for short 'Bombay Rent Act') made by the legislature of Maharashtra, after it was made applicable to the cantonment areas in he State of Maharashtra by a notification dated 27th December, 1969 issued by the Central Government are also applicable to the cantonment areas?

3. The facts giving rise to the petition may briefly be stated thus:

The suit property consists of a room in House No. 392, Kolsa Galli, Mahatma Gandhi Road situated within the local limits of Pune Cantonment, in the State of Maharashtra. The suit premises were owned by the respondent No. 1, Somnath Laxman Holkar, who has died during the pendency of the petition and is represented by his legal representatives. One Ms. Aminabi Bohari was a tenant of the suit premises and the respondent No. 2 is said to be an heir of Ms. Aminabi. Munawar Khan Hussein Khan was a sub tenant of Aminabi and the present petitioners are the heirs of the sub tenant Munnawar Khan. The respondent No. 1 filed a suit for possession against the petitioner and the respondent No. 2 in the Small Causes Court, Pune interalia on the ground that Aminabi had unlawfully sublet the suit premises to Munnawar Khan. In the trial court, the petitioners interalia contended that they were in possession of the suit premises prior to the year 1959 and were thus, protected sub tenants by virtue of Bombay Act No. 49 of 1959. The trial court however found that Munnawar Khan through whom the petitioners claim was a sub tenant since the year 1961 and hence was not a protected sub tenant and passed a decree for possession. On appeal, the Appellate Court held that Aminabi had sublet the suit premises to Munawar Khan sometime after the year 1963-64 and therefore. Munnawar Khan was an unlawful sub tenant and confirmed the decree for possession. Being aggrieved by the said judgment and order, the petitioner have filed this petition challenging the judgment and order of the Appellate Court confirming the decree for possession.

4. Shri Dalvi, the learned counsel for the petitioners submitted that Sub-section (2) of Section 15 of the Bombay Rent Act, 1947 was amended retrospectively w.e.f. 1st February 1973 by Maharashtra Act No. 18 of 1987 by which the prohibition against subletting has been retrospectively removed upto 1st February 1973. In other words, sub tenants inducted prior to 1st February 1973 are protected and cannot be evicted on the ground that the remises were illegally sublet to them. Since both the courts below have concurrently held that the petitioners were subtenants prior to the year 1963-64 the decree for possession on the ground of unlawful subletting cannot stand and has to be set aside.

5. Shri Salvi, learned counsel for the respondent No. 1 submitted that the amendment made to the Bombay Rent Act, 1947 by Maharashtra Amending Act No. 18 of 1987 was not applicable and could not be applied to the suit premises which were situated in Pune Cantonment area. Therefore, the protection given to the sub tenants inducted on or before 1st February 1973 was not applicable to the petitioners.

6. In Indu Bhushan v. Rama S. Debi and Ors. (decided on 29th April 1969) reported in 1970 S.C.228 the Supreme Court held that the power to make laws on the subject of house accommodation in a cantonment area belongs exclusively to the Parliament and not to the State Legislature. The effect of the pronouncement by Supreme Court was that the Bombay Rent Act, 1947 which was passed by the State Legislature could not apply to the Pune Cantonment area as the State legislature had no legislative competence to apply Rent Act to Cantonment areas.

7. The Cantonments (Extension of Rent Control Laws) Act, 1957 (hereinafter for the sake of brevity referred to as 'the Cantonments Rent Extension Act' was enacted by the Parliament before the Supreme Court decided Indu Bhushan's case. Section 3(1) of the said Act empowers the Central Government, by issuing the notification in the official Gazette, to extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to control and rent and regulation of house accommodation which is in force in the State in which the cantonment is situated. Section 3(1) of the Cantonments Rent Extension Act 1957 (excluding the proviso which is not relevant for the purpose of this case) as it initially stood reads as under: under:-

3(1) The 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 the Notification in the State in which the Cantonment is situated.

(The words emphasised were omitted with retrospective effect by Act No. 22 of 1972 of the Parliament)

(Proviso, being not relevant not reproduced)

In pursuance of the power conferred by Section 3(1) of the Cantonments Rent Extensions Act, 1957, the Central Government issued a notification No. SRO/8/E dated 27th December 1969, published in the Gazette of India (Extra Ordinary) dated 29th December 1969, which reads as under:

S.R.O.8/E - In exercise of the powers conferred by Section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 (46 of 1957), the Central Government hereby extends to all the cantonments in the state of Maharashtra except the Cantonments on Aurangabad and Kamptee, the Bombay Rents, Hotel And Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947) as in force on the date of this notification in the state of Maharashtra in which the cantonments are situated with the following modifications, namely:-

In the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947:-

(a) for Section 2, the following Section shall be substituted namely:-

"(2)(1) It extends to the cantonments of Ahmednagar, Dehu Road, Deolali, Kirkee, and Poona.

(2) The Central Government may, at any time by notification, direct that any or all the provisions of this Act shall cease to extend to such area and on such date as may be specified in the notification; and on that date the said provisions shall cease to be in force in such area.;

(b) in Section 3, for Sub-section (1), the following sub-section shall be substituted, namely:-

(1) It shall come into force at once.

(c) (i) in Section 4, for Sub-section (i), the following sub-section shall be substituted, namely:-

(1) Nothing contained in this Act shall apply to-

(i) any premises within a cantonment belonging to the Government or Cantonment Board;

(ii) any tenancy or other like relationship created by a grant from the Government in respect of premises within the Cantonment taken on lease or requisitioned by the Government; or

(iii) any house within a cantonment which is, or may be, appropriated by the Central Government on lease under the Cantonment (House Accommodation) Act 1923 (6 of 1923)

(ii) Sub-section (3) shall be omitted

(iii) in Sub-section (4), Clause (b) shall be omitted.

(d) Section 4A shall be omitted.

(e) in Section 5 after Clause (4) the following clause shall be inserted, namely:-

(4-A) 'Local Authority' includes a Cantonment Board."

(f) in Section 6, for Sub-section (1) and (1A), the following sub-sections shall be instituted, namely:-

"(1) This part shall apply to premises let for residence, education business, trade or storage: Provided that the State Government may, by notification in the Official Gazette, direct that in any of the cantonment areas, this part shall cease to apply to premises let for any of the said purposes.

Provides further that the State Government may, by like notification, direct that in any of the said areas, this part shall re-apply to premises let for such of the aforesaid purposes as may be specified in the notification.

(1A) The State Government may, by notification in the Official Gazette direct that in the cantonment areas, this part shall apply to premises let for any other purpose."

(g) Section 50 shall be omitted.

(h) Schedules I and II shall be omitted.

(underlining supplied)

7. By this notification dated 27th December, 1969, the Central Government made applicable the Bombay Rent Act 1947 as was in force on the date of the notification, to the Pune Cantonment area, subject to certain modifications. The amendments made to the Bombay Rent Act 1947 subsequent to the date of the notification were expressly not made applicable to the Pune Cantonment area. The short question that arises for consideration is whether amendments made to the Bombay Rent Act, 1947 after 27th December 1969 are applicable to the Pune Cantonment area? If the amendments are not applicable the petitioners who are subtenants inducted before the year 1973 would be liable to be evicted, but if the amendments are applicable they would be protected by virtue of Maharashtra Act No. 8 of 1987.

8. After the decision of the Supreme Court in Indu Bhusan's case it cannot be doubted that power to legislate in respect of houses and rents in the Cantonment Area vests in the Parliament and not with the State Legislatures. The Parliament has exercised that power by enacting Cantonment Rent Extension Act 1957 (Central Act No. 46 of 1957). As the Cantonment areas are spread throughout the country, the need and the extent of protection to be given to the tenants of the premises situated in different Cantonment areas, situated in different parts of the country, may be different. Therefore, instead of enacting a common Rent Act for all cantonments in different parts of the country, the Parliament chose to delegate the power to the Central Government to apply,with such modifications as the Central Government though fit to the different Cantonment areas the respective Rent Acts applicable in the State in which the Cantonment is situated. This extension of the Rent Act applicable in the State (hereinafter referred as the State Rent Act) is to be made by the Central Government by issuing a notification under Section 3 of the Cantonment Rent Extension Act, 1957. Undoubtedly, the Central Government in issuing of the notification under Section 3 of the Cantonments Rent Extension Act 1957, exercises a delegated power of legislation. Issuance of a notification dated 27th December 1969 making the Bombay Rent Act 1947 applicable to the Pune Cantonment area is undoubtedly, a delegated legislation. This delegated legislative power is not to make the law by itself but the power to apply respective State Rent Acts by referential incorporation, subject to suitable modifications.

9. Let me examine generally the effect of legislation by referential incorporation i.e. to say where one statute (in this case the notification issued under Section 3 of the Cantonment Rent Extension Act 1957) incorporates in it another statute (in this case Bombay Rent Act 1947) by reference. More than two centuries ago, in In re: Wood's Estate, (1886) 31 Ch D 607. Lord Esher M.R., while considering the effect of referential incorporation of a former statute in the later statute, observed.

"It is to put them into the Act of 1855, just as if they had been written into it for the first time. 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".

9. In Secretary of State v. Hindustan Co-operative Insurance Society Ltd. , the Privy Council observed:

"It seems to be no less logical to hold that 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 the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition.

10. Dictum laid down by Lord Esher M.R. in Re Wood's Estate has been followed by the Supreme Court in Bolani Ores Ltd. v. State of Orissa , and in Onkarlal Nandlal v. State of Rajasthan . In Onkarlal Nandlal's case, the Supreme Court quoted the passage in it's earlier decision in Shamrao v. Dist. Magistrate, Thana, , which reads as follows:

"The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England : see Craies on Statute Law, 5th Edition, page 207; it is the law in America; see Crawford on Statutory Construction, page 110; and it is the law which the Privy Council applied to India in Keshoram Poddar v. Nandulal Mallick

11. The position thus, appears to be well settled that when a later Act incorporates the provision of earlier Act by a reference, it would have to be held that the provisions in the earlier Act are bodily lifted and written with pen and/or printed in the later Act. Once this is done, there is no occasion to refer to the earlier Act, at all. So construed, there would be no occasion to refer to any amendment made in the earlier Act and the later Act would be deemed to apply without reference to any amendments to the earlier Act. There is however, one execution to this rule and i.e. it may be possible for the later Act to exist effectively without additions or amendments made in the earlier Act, as observed by the Privy Council in the case of Secretary of State v. Hindustan Co-operative Insurance Society Ltd. (Supra). For example where the earlier Act is of limited duration, the provision in the earlier Act limiting its duration, would not apply and the later Act incorporating the earlier Act would continue to exist notwithstanding the fact that the provision in the earlier Act about is cessation or expiry. The precise question of the effect of Sub-section (1) of Section 3 of the Bombay Rent Act 1947 which limited its duration and life on its continued applicability to the Pune Cantonment Area, by virtue of the notification dated 27th December 1969 issued by the Central government, under Section 3 of the Cantonments Rent Extension Act, 1957 came up for consideration of a Division bench of this Court in Fakruddin Taherbhai v. Khemraj Gulabchand (Second Appeal) No. 323 of 1978 with Special C.A. No. 1713/78 and 5053/76 decided on 11th November 1980. Section 3 of the Bombay Rent Act as it stood on 27th December 1969 when the notification was issued by Central Government making the Bombay Rent Act 1947 applicable to the Cantonment areas in the State read as under:

"3(1) This Act shall come into operation on such date as the State Government may, by notification in the official gazette, appoint in this behalf."

"3(2) It shall remain in force upto and inclusive of the 31st day of March 1970 and then shall expire.

While issuing the notification, the Central Government amended Sub-section (1) of Section 3 in its application to the Cantonment act as follows:

3(1) It shall come into force at once. The Central Government however, did not amend Sub-section (2) of Section 3 of the Bombay Rent Act 1947 in its application to the cantonment area.

A contention was therefore, raised by the defendant against whom a decree for possession was passed that the decree was without jurisdiction because the Bombay Rent Act as in force in the Pune Cantonment area had expired on 31st March 1970 as provided in Sub-section (2) of Section 3. Negativing the contention, the Division Bench speaking through V.S. Deshpande, J (as his Lordship then was) observed:

"The Central Government did extend the enactment in exercise of the powers conferred on it under Section 3 without limiting its duration to any particular period. The extension will be effective and the Act could continue to operate till the Government does not choose to cancel its notification or otherwise direct cessation of the operation of the said enactment."

It was thus held that the Bombay Rent Act once made applicable to the Pune Cantonment Area by Central Government by issuance of a notification dated 27th December 1969 would continue to apply and it is not necessary to refer to Section 3(2) thereof at all. A contention was raised specifically before the Division Bench that any other amendments made to the Bombay Rent Act 1947 by the Legislature of Bombay would not apply to the Pune Cantonment Area, in respect of which Parliament alone had the legislative of competence. In regard to the said contention, the Division Bench observed at paragraph No. 11 of the judgment as follows:

"It was argued that amendments introduced in the Bombay Rent Act subsequent to the amendment of the Central Act on 2nd June 1972 cannot be said to have been applied to the Pondicherry (sic cantonment) area. Apparently, this contention is plausible. It is, however, unnecessary to express any opinion thereon as Mr. Karnik could not draw our attention to any such amendment which could be said to have any bearing on the points raised by him at the trial stage or at the hearing of the petition before us."

12. The Division Bench thus held that the contention that amendments made to the Bombay Rent Act 1947 after it was made applicable to the Cantonment areas by referential incorporation, do not apply to the Cantonment areas was a plausible contention but did not express any opinion on it, as it was unnecessary for that case. In the present case, however, it is necessary to consider whether the amendment made to the Bombay Rent Act 1947 after 27th December 1969 apply to the Pune Cantonment Area because the petitioners contend that their sub-tenancy is protected by virtue of an amendment made to Section 15 of the Bombay Rent Act 1947 by the Maharashtra Legislature by Maharashtra Act No. 18 of 1987. Sub-section (2) of Section 15 of the Bombay Rent Act 1947 as it stood prior to its amendment by Maharashtra Act No 18 of 1987 is quoted below:

"(2) The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in Sub-section (1), shall, subject to the provisions of this sub-section, be deemed to have had no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a Court, any such sub-lease, assignment or transfer or any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite in favour of any person who has entered into possession, despite the prohibition in Sub-section (1) as a purported sub-lessee, assignee or transferee and has continued in possession at the commencement of the said Ordinance - shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under Clause (e) of Sub-section (1) of Section 13.

The emphasised words "before the commencement of Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959" appearing in Sub-section (2) were replaced by the words "before 1st day of February 1973" and the other underlined words "at the commencement of the said ordinance" were replaced by the words "on the date aforesaid" by the amendment of 1987. Prior to the amendment only the sub-tenants prior to the year 1959 were protected. The effect of the amendment to Sub-section (2) of Section 15 of the Bombay Rent Act 1947 by Maharashtra Act No. 18 of 1987 was to protect the sub-tenants inducted upto 1st February, 1973. In the present case, the sub-tenant as held by the first Appellate Court was inducted in the year 1963-64. The petitioners would not be entitled to the protection but for the amendment of the Bombay Rent Act 1947 made by Maharashtra Legislature by Maharashtra Act No. 18 of 1947.

13. For the reasons mentioned earlier, I am of the opinion that any amendment made to the Bombay Rent Act 1947 of Maharashtra Legislature after 27th December 1969 would not apply to the Pune Cantonment Area. Shri Dalvi, learned counsel for the petitioner, however, invited my attention to a judgment of a learned Single Judge of this Court in Mohamed Ali Umar Musa v. Pesi D. Pocha and Ors. . In that case, the learned Single Judge noted that Section 3 of the Cantonment Rent Extension Act 1957 was amended to delete the words "on the date of notification" and such deletion was made with retrospective effect. The learned Judge held that the effect of the deletion of the words "on the date of notification" was to enable the Central Government to make the Bombay Rent Act 1947 applicable with all future amendments. The learned Judge also held that since the words "on the date of notification" were deleted from the Principal Act, the said words must also be deemed to have been deleted from the notification dated 27th December 1969. The learned Judge further held under Section 3 of the Cantonment Rent Extension Act after its retrospective amendment the Central Government did not have the power to make the Bombay Rent Act 1947 applicable as it existed on the date of notification. I am unable to agree. Section 3 of the Cantonment Rent Extension Act is only an enabling section which enables the Central Government to make the Rent Acts applicable in a State to the Cantonment areas within that State with such restriction and modification as it deems fit. One of the restrictions which the Central Government could place while making the Bombay Rent Act 1947 applicable was to make the Bombay Rent Act as it stood applicable to cantonment areas in the state amendments. The Central Government could, for good reasons, chose to make the Bombay Rent Act 1947 as it exists on the date of notification without making the future amendments therein applicable to the Cantonment areas in the State. This is because on the date of notification, the Central Government obviously would not know what amendments would be made to the Bombay Rent Act 1947 by Maharashtra Legislature and whether such amendments were suitable for regulating the house accommodation in the Cantonment areas in the State of Maharashtra. To say that the amendments made in Bombay Rent Act 1947 in future after 27th December 1969 also apply to the Cantonment areas in the State of Maharashtra would amount to a blind delegation of the power of amendment to the State Legislature. This cannot be done for two reasons i) firstly while making the Bombay Rent Act applicable to the Cantonment areas in the State of Maharashtra the Central Government exercised a power delegated to it under Section 3 of the Cantonments Rent Extension Act, 1957. The power to legislate and make law relating to regulation of house accommodation, as held by the Supreme Court in Indu Bhushan's case vests in the Parliament. By enacting Cantonment Rent Extension Act, 1957, the Parliament delegated its power of legislative and enacting a law regulating house accommodation to the Central Government. The Central Government itself thus was a delegated of that power. Delegatus non protest delegate - A delegate cannot delegate further. The Central Government therefore, could not further delegate the power of amending the law, (which undoubtedly is a legislative power) relating to the regulation of house accommodation in the cantonment areas to the State Legislature. ii) Secondly, the delegate i.e. the Central Government having exercised that power of legislation of making a law regulating house accommodation in the Cantonment area by applying the Bombay Rent Act 1947 to the Cantonment areas exhausted its power. Assuming that the power was not exhausted, the power could only be exercised by the Central Government. A further delegation, without knowing of the future amendments which State legislature was going to make to the Bombay Rent Act 1947 and applying them to Pune Cantonment areas, would amount to a blind delegation which is not permissible. In B. Sham Rao v. Union Territory of Pondicherry in . Shelat, J. observed (in paragraph No. 8 and 10) as follows:

"(8) The question then is whether in extending the Madras Act in the manner and to the extent it did under Section 2(1) of the Principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature. It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it. It may be that a mere 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 it to predicate what the amendment 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 of another legislature at least in regard to that particular matter."

"(10) In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry Government would issue its notification it would be the amended Act which would apply. The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character of 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".

14. It is well settled principle of construction that if two interpretations are possible and if one would make the statute unconstitutional or stillborn, and the other would sustain the statute, the interpretation which sustains the statute should be preferred. Accepting the interpretation put on the notification of 27th December 1969 by the learned Single Judge of this Court in the case of Mohamed Ali Musa v. Pesi D. Kocha would make the notification as well as the Bombay Rent Act 1947 with all is future amendments as applicable to the Cantonment areas in the state, susceptible to attack of unconstitutionality on the ground that the Central Government made a blind delegation of its powers of the Legislature of Maharashtra. (iii) Thirdly, the State Legislature does not have a power to legislate and make law regulating house accommodation in Cantonment areas. It therefore, cannot have a power to amend the law which has been made applicable to the Cantonment area by the Central Government by a notification dated 27th December 1969. Presence or absence of the words "as on the date of notification" in the notification would have no effect while considering whether future amendments to the Bombay Rent Act, 1947 apply to the Cantonment areas in the State of Maharashtra. Therefore, also, the amendments made to the Bombay Rent Act 1947 by the State Legislature of Maharashtra including amendment made by Act No. 18 of 1987 would not be applicable to the Pune Cantonment areas in the State of Maharashtra.

15. For those reasons, I am unable to agree with the broad view expressed by the learned Single Judge of this Court in Mohd. Ali Musa's case while the Bombay Rent Act, 1947 as it existed on 27th December 1969 as modified by the notification of the Central Government of even date would continue to apply to the Pune Cantonment area, notwithstanding its expiry as provided in Section 3(2) of the Bombay Rent Act 1947 as held by the Division Bench in the case of Fakruddin Taherbai v. Khemraj Gulabchand (Supra), any amendments thereto made by the Legislature of Maharashtra would not apply to the Cantonment areas in the State. In view of this opinion, it is therefore, necessary to make a reference to the larger Bench for decision on the point of law stated in paragraph No. 2 above.

Let the papers be placed before the Hon'ble the Chief Justice for appropriate orders.