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F.E. Darukhanawalla Vs. Khemchand Lalchand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Reference No. 5 of 1953
Judge
Reported inAIR1954Bom254; (1954)56BOMLR105; ILR1954Bom544
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947; Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1951 - Sections 28; ;Constitution of India; ;Government of India Act
AppellantF.E. Darukhanawalla
RespondentKhemchand Lalchand
Advocates:G.A. Desai, Adv.;H.M. Choksi, Govt. Pleader
Excerpt:
- - it is a well settled principle of construction of various entries in the seventh schedule to the constitution that as far as possible an attempt must be made to reconcile entries in the union list, the state list and the concurrent list, and that we must avoid attributing to the-constituent assembly an intention of bringing about a conflict between the powers of the state legislatures and parliament. desai is right that the constituent assembly wanted to confer upon parliament a power additional to the power that was enjoyed by the central legislature under the government of india act......chada', : air1954bom204 (a)). there we had to consider whether the bombay rents, hotel and lodging house rents control act, lvii of 1947, applied to the cantonment area of kirkee; and the contention there put forward by mr. kotwal for the petitioner was that the act did not apply because of entry 2 in list i of the government of india act, which conferred 'upon the central legislature the power to legislate with regard to regulation of house accommodation in cantonment areas.we rejected that contention holding that regulation of house accommodation meant requisitioning of property, acquiring of property or allocation of property, but not the question of relations between landlord and tenant; and when the legislature was dealing with relations of landlord and tenant, it was legislating.....
Judgment:

Chagla, C.J.

1. This is a reference made by the Civil Judge, Senior Division, Nasik, and it arises out of a suit filed before him for the recovery of arrears of rent, and for ejectment. The suit was filed on April 18, 1952, and the contention raised before him was that the suit was not maintainable in view of fa. 28 of the Bombay-Rents, Hotel and Lodging House Rates Control Act, 1947, which confers jurisdiction to hear rent suits upon the Civil Judges, Junior Division; and the question that the learned Judge had to consider was, whether the Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947, as amended by Bombay Act XLIII of 1951 applied to the premises in Question, which were situate in the cantonment area of Deolali.

2. Mr. Desai, who has appeared before us to support the reference and the view taken by the learned Judge, viz., that the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, does not apply to cantonment areas, has contended, that under the Constitution power to control rents with regard to properties situate in the cantonment areas is conferred upon Parliament by List I of the Seventh Schedule of the Constitution, which is a Union List, and when the Legislature extended the operation of the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947 up to March 31, 1953, by the amending Act XLIII of 1951 it trespassed upon the field reserved for Parliament, and the extension of the Act was not valid.

3. Mr. Desai says that whatever might have been the position when Bombay Act LVII of 1947 was passed, which was passed under the Government of India Act, the position under the Constitution is different, and the legislation must be considered from the point of view, whether under the Constitution the State Legislature is competent to enact laws controlling rents in cantonment areas.

4. Now, a similar matter came up for consideration before a division bench consisting of myself and my brother Dixit J. (A. C. Patel v. Vishwanath Chada', : AIR1954Bom204 (A)). There we had to consider whether the Bombay Rents, Hotel and Lodging House Rents Control Act, LVII of 1947, applied to the cantonment area of Kirkee; and the contention there put forward by Mr. Kotwal for the petitioner was that the Act did not apply because of entry 2 in List I of the Government of India Act, which conferred 'upon the Central Legislature the power to legislate with regard to regulation of house accommodation in cantonment areas.

We rejected that contention holding that regulation of house accommodation meant requisitioning of property, acquiring of property or allocation of property, but not the question of relations between landlord and tenant; and when the Legislature was dealing with relations of landlord and tenant, it was legislating under the power conferred upon it by entry 21 in List II.

5. Mr. Desai contends that whatever might have been the position under the Government of India Act, under the Constitution entry 3 in List I. which has taken the place of part of entry 2 in List I, is framed in a language which is different from the language used in the Government of India Act; and what is emphasized is that in entry 3 in List I we now find the expression 'including the control of rents', which makes it clear that Parliament has not only the power of regulating the housing accommodation, but also the power of controlling rents in cantonment areas; and. therefore, it is urged, that when the State Legislature extended the operation of the Bombay Act, LVII of 1947, up to March 31, 1953 by the amending Act XLIII of 1951, it was not competent to apply that extension to cantonment areas.

6. In our opinion that contention is not ten-able. It is a well settled principle of construction of various entries in the Seventh Schedule to the Constitution that as far as possible an attempt must be made to reconcile entries in the Union List, the State List and the Concurrent List, and that we must avoid attributing to the-Constituent Assembly an intention of bringing about a conflict between the powers of the State Legislatures and Parliament. In List II of the1 Seventh Schedule we have an entry in identical terms with entry 21 in List II of the Government of India Act, and that entry is No. 18. Therefore,, even under the Constitution a State Legislature has been given the power to legislate with regard-to matters which concern the relation of landlord and tenant and collection of rents. It cannot be disputed that the Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947 deals with relations of landlord and tenant and collection of rents. The question then is, whether it was the intention of the Constituent Assembly that the State Legislature should have no power to legislate with regard to relations of landlord and tenant and collection of rents with regard to properties which are situate in the cantonment areas although those properties might be owned by private owners and. might be tenanted by private individuals. Did the Constituent Assembly intend that merely because a house was situate-in a cantonment area the State Legislature cannot regulate relations between landlord and tenant, although both--the landlord and tenant--were private persons.

7. In our opinion it is not necessary to limit the power of the State Legislature with regard to its legislative competence conferred upon it under entry 18 of List II, because it-is clear that what the expression 'including the control of rents' in entry 3 in List ,I means is that the control of rents contemplated by this entry is in relation to 'the house accommodation', which expression precedes the expression 'including the control of rents'. It is true that we have taken the view in 'A. C. Patel's case, (A)', that on the proper grammatical construction the expression 'including, is an expression of extension, and not the expression of limitation. Therefore, Mr. Desai is right that the Constituent Assembly wanted to confer upon Parliament a power additional to the power that was enjoyed by the Central Legislature under the Government of India Act.

8. But the question is what was the nature of that additional power. It is clear that the nature of that additional power was that Parliament should not only regulate house-accommodation in the sense of acquiring, requisitioning or allocating houses in cantonment areas, but may also, in respect of the houses so acquired, requisitioned, or allocated, control rents. Therefore, the control of rents with which Parliament could deal is not control of rents which had no relationship with the house accommodation which had to be regulated for the purposes of accommodation. It was not the intention of the Constituent Assembly to confer upon Parliament the power to control rents between private landlords and tenants; that power was left to the State Legislatures under List II. It was only when rents had to be controlled as something additional to the regulation of house accommodation in the cantonment area that the power of Parliament arose to deal with that subject. Therefore, in our opinion, the State Legislature was competent to enact the amending Act XLIII of 1951, and to apply it to the cantonment area of Deolali.

9. Therefore, the contention taken before the learned Judge was a sound one, that in view of S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, LVII of 1947, the competent Court was not the Court of the Civil Judge, Senior Division, but the Court of the Civil Judge, Junior Division. We must, therefore, reject the reference.

10. Reference rejected.


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