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Maman Chand Ratilal Agarwal Vs. Jaysingh Jairam Tyagi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2564 of 1974 with 723 and 1719 of 1977
Judge
Reported in(1978)80BOMLR349
AppellantMaman Chand Ratilal Agarwal
RespondentJaysingh Jairam Tyagi
Excerpt:
.....of rent control laws) act extending the act retrospectively is necessary to validate the decrees passed before the prospective extension of the bombay rents, hotel and lodging house rates control act under the earlier notification defied december 27, 1969--constitution of india, schedule vii, list i, entry 3, list ii, entry 18, list iii, entry 6--interpretation of statutes--statutory fictions.;giving retrospective effect to any act or part thereof is not the only method of curing past defective acts. the device of validating the invalid acts, simpliciter, without furnishing the legislative basis, equally serves the purpose. that both the devices are sometimes resorted to by way of abundant precaution cannot affect this legal position. yet another device of extending..........case was taken up for hearing before chandurkar j. the judgment debtor raised a question if the decree dated march 12, 1967 passed before extension of the act on december 29, 1969 could become valid and executable at all in the absence of any fresh notification under the amended section 3 of the act. hajarnavis, vaidya and shah jj., earlier had answered this very question in the affirmative. chandurkar j., however, on the contrary, held that, without fresh notification under section 3, expressly extending the rent act retrospectively from an earlier date than the date of decree, pre-extension defective decrees cannot get cured. by his order dated july 15, 1976 the learned judge referred the case to the division bench to enable it to resolve the conflict of opinion, indicated in his.....
Judgment:

Deshpande, J.

1. This case and the group of connected cases is referred to this division Bench. It raises an important question as to the true interpretation of Section 3(4) of the Cantonments (Extension of Rent Control Laws) Act being Act No. 46 of 1957 (hereinafter referred to as 'the Central Act'), as amended by Amendment Act No. 22 of 1972. The question is whether fresh notification under amended Section 3 of the Central Act extending the Act retrospectively is necessary to validate the decrees, etc. passed before the prospective extension of the Rent Act under earlier notification dated December 27, 1969?

2. The petitioner is the landlord. His suit for eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the Rent Act' against his tenant, the respondent, from a house in a cantonment area in Kirkee, was decreed on March 12, 1967 in the belief that the Rent Act applied to the said area.

3. The house in dispute in this case as also the houses in other connected cases are all situated in Cantonment areas. Power to legislate delimitation of Cantonment area, and regulating of house accommodations therein, vests in the Parliament under Entry 3, List I of the seventh schedule of the Constitution, while legislative power in regard to (1) relationship between the landlord and tenant as to the land or (2) transfer of non-agricultural properties, vests in the State Legislature respectively under Entry 18, List II and Entry 6, List III. Doubts were, therefore, entertained if the State legislations as to the Control of Rents and Eviction, hereinafter referred to as the State Rent Acts, such as the Rent Act of Bombay, would be applicable to houses in Cantonment areas at all. In the case of A.C. Patel v. Vishwanath : AIR1954Bom204 , this Court held that, it would. Entry 18 in List II was relied on as the source of the legislative power.

4. The Parliament, however, appears to have thought otherwise and passed the Central Act. It is a short enactment consisting only of five sections. Rather than itself legislate on the topic directly, it empowers the Central Government, under Section 3 thereof to extend the concerned State Rent Acts to the Cantonment areas, lying within the said State as in force 'on the date of Notification'. The Central Government did not exercise this power, qua Cantonment areas in the State of Maharashtra, till Supreme Court by its decision dated April 29, 1969, in Indu Bhusan v. Rama Sundari : [1970]1SCR443 over-ruled A.C. Patel's case (supra) and laid down that not the State Legislature but the Parliament alone was competent to legislate in this behalf. The Central Government then extended the Rent Act to the Cantonment areas on December 27, 1969 with certain modifications which are not relevant in this case. However, this extension was prospective with effect from December 27, 1969. Section 3 of the Central Act, as it then stood, did not authorise retrospective extension. The proceedings initiated and the orders and decrees passed under the Rent Act, prior to such extension, on the assumption of it being effective in such areas, had become ineffective and void as a result of Indu Bhusan's judgment. Act No, 46 of 1957 came to be amended on June 2, 1972 under Act No. 22 of 1972 to revive and validate the same. Admittedly no fresh notification under amended Section 3 extending the Rent Act with retrospective effect is issued till this day.

5. After Indu Bhusan's case (supra) tenant's plea as to the decree being a nullity, in the course of Darkhast proceedings was accepted by the executing Court on November 19, 1971 and the decree was declared as inexecutable. The Central Government notification dated December 27, 1969, issued in the meanwhile, by itself was ineffective for validating this decree. This could however be said to have been achieved by the Amendment Act of 1972. Though therefore no fresh notification was issued under amended Section 3 extending the Rent Act retrospectively, the petitioner filed a fresh Darkhast in 1973 after this amendment. Executing Court, following the judgment of this Court in Shantilal Chunilal Gandhi v J.L. Mody (1973) Special Civil Application No. 232 of 1971, overruled the objection of the judgment-debtor, as to the continued inexecutability of the decree, by its order dated October 12, 1973 and adjourned the case for examining other pleas of the judgment-debtor. On appeal by the judgment-debtor, the Assistant Judge allowed it, holding that, earlier order in this case dated November 19, 1971 was conclusive and, therefore, the decree was inexecutable and Darkhast not maintainable. Validity of this order is challenged in this Special Civil Application.

6. When the case was taken up for hearing before Chandurkar J. the judgment debtor raised a question if the decree dated March 12, 1967 passed before extension of the Act on December 29, 1969 could become valid and executable at all in the absence of any fresh notification under the amended Section 3 of the Act. Hajarnavis, Vaidya and Shah JJ., earlier had answered this very question in the affirmative. Chandurkar J., however, on the contrary, held that, without fresh notification under Section 3, expressly extending the Rent Act retrospectively from an earlier date than the date of decree, pre-extension defective decrees cannot get cured. By his order dated July 15, 1976 the learned Judge referred the case to the division Bench to enable it to resolve the conflict of opinion, indicated in his referring order and the judgments of the learned Judges referred to by him therein. The points discussed in the referring order do not appear to have been raised earlier before these learned Judges, though Shah J. had occasion to deal with one such point.

7. According to Chandurkar J. mere validating provision of Section 3(4) cannot have the effect of (1) conferring jurisdiction on the Courts on the date when the decrees were passed, and (2) curing the defects in the decrees passed before December 27, 1969, without retrospective extension of such State Rent Act to the Cantonment areas with effect from an earlier date than the date of such decrees or orders. The learned Judge carefully examined the scheme of the Central Act and relied on (1) the words of Sub-section (4) 'on or from the date on which the Rent Control Act is extended' as also (2) on the statement of the objects of the Amendment Act No. 22 of 1972 and (3) the limits of retrospectivity indicated in the proviso to Sub-section (2) of Section 3 of the Act, in support of this view. The learned Judge also emphasised how 'extension' adverted to in Section 3(4) is the one contemplated under Sub-sections (1) and (2) of Section 3, while dissenting from Shah J.'s view that validating provision of Sub-section (4) is independent of Sub-sections (2) and (3) thereof.

8. Mr. Paranjape, the learned advocate appearing for the petitioner in this case, contends that such an approach (A) ignores the statutory fictions raised under the concluding part of Sub-section (4) of Sections 3 and (B) unwarrantedly assumes this sub-section to have been confined to retrospective extensions only. Mr. Advani, Mr. Rane and Mr. Patankar, the learned advocates, in other cases, support these contentions. Mr. Abhyankar, the learned advocate appearing for the respondent, on the other hand, supports the reasoning of the referring judgment and further contends that any other interpretation would render Sub-sections (1) and (2) redundant. Miss Ranjana Samant supports Mr. Abhyankar.

9. We find much substance in the contention of Mr. Paranjape. It is true that on the ratio of Indu Bhusan's case, any State Act such as the Rent Act cannot be effective in Cantonment areas till it is extended under the Central Act, if not substituted by any Central law. That is why immediately after the decision in Indu Bhusan's case, the Rent Act was so extended by a Notification dated December 27, 1969. The extension, however, on the face of it, is prospective and effective from the date of the notification. Even so Sub-section (4) of Section 3 (as now amended in 1972) is so couched as to dispense with extending the Act expressly with retrospective effect afresh, at any rate, for the limited purpose of making decrees and orders passed earlier, effective from the date of their being passed. Shorn of all the unnecessary verbiage, Section 3(4) reads as follows:

Where, before the extension (of Rent Control Act)....

(i) any decree....

was made by any court,...in accordance with (Rent Control Act)...such decree.. on and from the date on which the Rent Control Act is extended to that cantonment, (1) be deemed to have been, made under the corresponding provisions of the Rent Control Act,...(2) as if the said Rent Control Act,...were in force in that cantonment, on the date on which such decree or order was made.

(Underlines, figures and words in the brackets supplied by us).

10. The underlined words are pregnant with certain implications. These words assume that the Act under which the decree is passed was not in existence (1) actually or (2) fictionally, for want of its retrospective extension. This omission is sought to be made up by raising two statutory fictions of (1) such Act being in force on the date of the decree, and (2) of the decree, etc. having been passed thereunder. The words 'as if the Rent Control Act were in force' can have no other meaning. The validity of the decree, etc. conceived under this sub-clause is thus made consequential to these statutory fictions. The effect of these fictions is to virtually extend the Rent Act retrospectively with effect from a date prior to the date of the decree, etc. for the limited purpose of clothing the same with validity. This is how the Act is assumed to have effective application on the date of the decree, conferring jurisdiction on the Court and regulating the rights and liabilities of the litigants. Such statutory fictions are effective substitutes for realities and none, including Court can afford to ignore or fail to give full effect thereto. The following observations of Lord Asquith from the case of East End Dwellings Co. v. Finsbury B.C. [1951] 2 All E.R. 587, are illuminating in this context (p. 599):

If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

11. These statutory fictions are sufficient to furnish the required legislative basis assumed to be wanting in the referring order. The judgment of the Supreme Court in Bishambhar Nath v. State of U.P. : [1966]2SCR158 at para. 8 p.577, gives an indication of how such legislative fictions can cure absence of actual legislative basis. Referring order, no doubt, refers to deeming provision as to the decree being passed under the Rent Act. There is no reference to the other fiction of the Act also deemed to have been in force on the said date. The second statutory fiction, in our opinion, makes all the difference to the point under consideration.

12. Secondly, assumption as to the need of any such legislative basis itself is open to grave doubts. Ratio of the case of Udai Ram v. Union of India A.I.R. [1968] S.C. 1138, relied on by Mr. Paranjape militates against any such assumption. A certain property in that case was notified for acquisition under Section 4 of the Land Acquisition Act. Rather than acquire the whole property, the Government proceeded to acquire the same in pieces after holding enquiry separately for each such piece and issuing notifications under Section 6 thereof. The Supreme Court held this to be impermissible and disapproved of treating Section 4 notification as reservoir for such piece meal acquisition. All successive notifications were struck down as being ultra vires the powers under Section 6. The Parliament then came out with a Validating Act No. 13 of 1967. Section 3 thereof permitted such piecemeal acquisition, on enquiry, report and notification under Section 6, while Section 4 validated earlier invalidated notifications. The Validating Act, however, did not contemplate Section 3 to have any retrospective effect. Validity of Section 4 of this Validating Act was challenged in the Supreme Court again in the above case on several grounds. One of the grounds was that validation of notification simpliciter without giving retrospective effect to Section 3, and making piecemeal acquisition permissible on the date of notification, was bad in law. The Supreme Court rejected this and upheld the validity of Section 4 by majority in the following words (p. 1152):.Nor is there any reason to hold that in order to validate action without legislative support the Validating Act must enact provisions to cure the defect for the future and also provide that all actions taken or notifications issued must be deemed to been taken or issued under the new provisions so as to give them full retrospective effect. No doubt legislatures often resort to such practice but it is not absolutely necessary that they should do so, so as to give full scope and effect to the validating Acts.

13. Read this with the relevant contents at page 1146 para. 13.

14. Thus giving retrospective effect to any Act or part thereof is not the only method of curing past defective acts. The device of validating the invalid acts, simpliciter, without furnishing the legislative basis, equally serves the purpose. That both the devices are sometimes resorted to by way of abundant precaution cannot affect this legal position. Yet another device of extending retrospective effect to an enactment by a statutory fiction, in addition to validating such defective acts already done, is invariably adopted when one enactment discovered to be constitutionally defective is required to be repealed by the other free from such defects, and the acts done under the former are sought to be saved by the repealing enactment by statutory fiction of the same having been done under the latter. Bishambhar Nath's case is illustrative of such device. No occasion to advert to this could arise in Udai Ram's case in view of the situation obtaining there. Section 3(4) of the Central Act seeks to follow the above mentioned third device. In addition to validate the past pre-extension decrees, etc., expressly, which device itself would have been effective in the light of the ratio of Udai Ram's case, it seeks to furnish the legislative basis by fictionally extending the Act retrospectively. This fictional retrospective extension, as seen earlier, is as effective as such actual retrospective extension. It only needs be observed, as emphasised in Udai Ram's case, that legislative power to validate the previous Acts and omissions with regard to any topic in any one of the three lists (of the seventh schedule to the Constitution) is incidental to legislate on the said topic itself. No other legislative basis therefore is found to be necessary.

15. Now, the condition precedent for the application of the validating provision of Section 3(4) is the extension of the Rent Act to Cantonment areas under Section 3(1) thereof. This is evident from the opening part of this sub-section and the words 'on and from the date on which the Rent Control Act is extended' thereof, quoted in the referring order. The referring order, however, also assumes as if this phraseology makes retrospective extension of the Rent Act sine qua non for attracting this validating provision of Sub-section (4). We are unable, to trace any basis in this phraseology to warrant such an assumption. The extreme contention of Mr. Abhyankar that prospective extensions are outside the purview of this Sub-section (4) also appears to us to be wholly untenable. Legislative background and even the plain wording of Section 3 militates against such assumption and contention. Sub-section (1) of Section 3 is verbatim reproduction of unamended Section 3 excepting for the deletion of the words 'on the date of the notification'. Original Section 3 obviously contemplated extension of the Act, so extended, with immediate effect, excluding extension with retrospective or future effect. The Amended Act of 1972, firstly, raised a fiction under Section 1(2) of the Central Act of 1957 having been enforced on January 26, 1950. Secondly, it introduced these three more sub-sections in Section 3 in addition to retaining old Section 3 as Sub-section (1). Sub-section (2) so added, enabled the Central Government to extend the State Rent. Act with effect from earlier or future date. The proviso thereof, however, limited such retrospective effect upto January 26, 1950. The object of the deleted words of old Section 3 namely to extend the Rent Act with up-to-date amendments was achieved by introducing Sub-section (3) to fit in with the scheme of Sub-section (2). Sub-section (4) then, thirdly, is introduced to validate the decrees passed before such extension and discovered to be void in view of the ratio of Indu Bhusan's case. Sub-section (1) thus still continues to be the source of the power of extension of the State Rent Acts, Sub-section (2) merely indicating the width and the limitations of the same power. Thus extension with effect from any past, present or future date is covered by Sub-sections (1) and (2) of Section 3 of, the Act, and the contention that prospective extension is out side the pale of Section 3(4) of the Act or retrospective extension alone can bring the validating provision to operate is not correct.

16. Thus the 'extension' referred to in Section 3(4) and made sine qua non for validating the decrees etc., covers the extensions of either kinds contemplated under Sub-section (1) or (2) of the Act. In fact all the sub-sections being integrally connected with each other as part of the same scheme, any such extension can conceivably have no other context. In the instant case of prospective extension the date of notification, i.e. December 27, 1969, will itself be such relevant date. Validity conceived under this sub-section would come into operation with effect from December 27, 1969, together with the statutory fictions conceived under the concluding portion thereof. In other words, every decree, etc. passed before the date of this prospective extension will become valid from December 27, 1969 onwards and will be deemed to have been passed as if the extended Act were in force on the date of the decree to (1) confer jurisdiction on the Court passing the decree and (2) regulate the relations between the parties to the dispute. It is difficult to exclude such prospective extension of the Act from the purview of this sub-section.

17. Shah J., no doubt, observed in his judgment dated April 6, 1976 in Kantilal Keshavlal Shah v. Narayan Hanmanta Bhurewar (1976) Special Civil Application No. 3320 of 1975, that Sub-section (4) differs in scope from other sub-sections of Section 3 and must be read independently of Sub-sections (1) and (2) thereof. Mr. Abhyankar relied on this in support of his view, though this is a part of the reasoning of the learned Judge to reach quite an opposite conclusion. This cannot be held to run counter to the above view of ours, unless it is torn out of the context. All that the learned Judge really thereby meant is that validations of the decrees become operative independently and irrespective of the nature of such extension, i.e. retrospective or prospective and the date from which the extension is made effective. In a sense four subsections of Section 3 deal independently with different four aspects of such extensions. These observations are not intended to deny the organic unity running through them.

18. There is no doubt that underlying object of the Amendment Act No. 22 of 1972 is to save the decrees and orders that were passed, by the Courts prior to the extension of the Rent Act under Section 3 of the Amended Act, under the belief that the Rent Act did apply to Cantonment areas. This is shown to be achieved in the 'statement' of the objects of the said Act by (1) empowering extension of the Act retrospectively and (2) by saving the decrees, etc. already passed. Validating of decrees, etc. is assumed from this 'statement' to be made dependent on retrospective extension of the Rent Act. In the first place, such a statement and implication of the conjunctive word 'and' is equivocal. It can indicate the intention to save the decrees, etc., as a consequence of such retrospective extension of the Rent Act earlier than the decrees so sought to be validated as assumed in the referring order. It can also be indicative of the intention of resorting to two-fold devices by way of abundant precaution (1) of saving the same by retrospective extension of the Act and also (2) by saving decrees independently of such retrospective extension. As indicated by the Supreme Court in Udai Ram's case, previous invalid acts and omissions can be validated by validating provision simpliciter or by accompanying the same by giving retrospective effect to such curative provisions and also by legislative fiction of its retrospective application, as in the case of Bishambhar Nath's case. The device of fictionally treating the orders passed under the repealed enactment to have been passed under the repealing enactment even in the absence of corresponding provision in the repealed Act is not unknown. Secondly, recourse to such 'statement' by the Courts is permissible only to remove ambiguity in the language of any section. It can never override effect of plain and unambiguous language of the section. The plain meaning of the expression cannot be ignored merely because object can be achieved by either of the devices. Thirdly, and more importantly, Parliament must be deemed to be aware of the extension of such Rent Control State enactments under the amended Section 3, without any retrospective effect. Sub-section (4) might as well have been designed to dispense with fresh extensions with retrospective effect after such as the one prospective extension dated December 27, 1969. Any such design also is within the purview of the object specified in the statement, i.e. to save decrees already passed before such extension. Reliance on this 'statement' of the object thus is not of much assistance.

19. Mr. Abhyankar contends that this interpretation of Sub-section (4) will render Sub-sections (2) and (3) of Section 3 redundant. In the first instance, Sub-section (4) can only validate orders and decrees passed before such extension and not the proceedings invalidated earlier and pending till then. These can be only validated by giving retrospective effect to the Rent Act by availing of Sub-sections (1) and (2) of Section 3 and Sub-section (3) then would govern its interpretation. Sub-sections (2) and (3), therefore, cannot be said to be rendered wholly redundant by our above interpretation. This, however, appears to be incidental and not intentional as the statement of the object does not refer to this as being the object expressly. True position seems to be that, Sub-sections (2) and (3) appears to have been introduced by way of abundant precaution to ensure that intended validation of decrees and orders is not defeated by any possible view that, such validation with even fictional retrospective operation, would not be effective without express statutory power to extend the Act retrospectively. The draftsman may have some Court decision in his mind. The Supreme Court judgment in the case of Udai Ram itself indicates division of opinion on a certain aspect of this very question. The question of such redundancy alone cannot prevent the Court from accepting the extension under consideration to be effectively valid for attracting Sub-section (4) of Section 3, when language of the section in terms clearly admits of such interpretation.

20. Now, it is true that the proviso to Sub-section (2) of Section 3 prevents retrospective extension of the State Rent Act beyond January 26, 1950 even if the said Act happens to be of 1947 and Cantonment areas in dispute happen to have been established long before it. It is a moot question if this also places any identical limitation on the fictional retrospective extension contemplated under Sub-section (4) of Section 3. It is unnecessary to deal with it as it does not arise in this case, nor the question of the validity of any decree passed before January 26, 1950 in respect of any house in such Cantonment area is conceivably likely to arise at this distance of time. This much is clear to us that this limitation introduced by the proviso to Sub-section (2) of Section 3 has no bearing whatsoever on our above interpretation of Section 3(4) of the Act.

21. We are inclined thus to prefer the view of Shah J. and other two learned Judges in substance, to that of Chandurkar J. and to hold that the extension of the Rent Act by Notification dated December 27, 1969 is effective enough to bring into operation the validations and statutory fictions under Section 3(4) of the Act introduced subsequently by amendment in the Act. It is unnecessary to have any fresh notification extending the Act with any retrospective effect to invoke the same.

22. The rest of the judgment is not material to the report.


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