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Mohd. Sami Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4561 of 1956
Judge
Reported inAIR1960All218
ActsConstitution of India - Articles 32 and 226; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 4(4), 7A and 7A(2); Uttar Pradesh (Temporary) Control of Rent and Eviction (Amendment) Act, 1952; Uttar Pradesh General Clauses Act, 1904 - Sections 5(2)
AppellantMohd. Sami
RespondentState of Uttar Pradesh and ors.
Appellant AdvocateV.P. Misra, Adv.
Respondent AdvocateRama Devi Gupta, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
constitution- tenancy - capacity to file writ - article 226 of constitution of india and section 7-a (2) of u. p. (temporary) control of rent and eviction act, 1947 - notice of ejectment served on brother of petitioner - petitioner filed writ petition as his right too affected - held, petitioner can validly file a writ petition in this case as he is also an aggrieved party. - - 1. this petition under article 226 of the constitution raises the interesting question whether the expiry of one day and the commencement of the next are separated by any gap of time and whether a law purporting to extend the life of an act expiring on 30-9-1952 at midnight could be effective if it was to take effect itself on the expiry of 30-9-1952. the petitioner prays for the quashing of the order of the.....orders.s. dhavan, j. 1. this petition under article 226 of the constitution raises the interesting question whether the expiry of one day and the commencement of the next are separated by any gap of time and whether a law purporting to extend the life of an act expiring on 30-9-1952 at midnight could be effective if it was to take effect itself on the expiry of 30-9-1952. the petitioner prays for the quashing of the order of the rent control and eviction officer, sultanpur, dated 6-12-1956, directing the brother of the petitioner, a man called mohammad mustafa to hand over the possession of a certain building to murari prasad respondent no. 4, who was allotted the building by the aforesaid officer.in view of the fact that the only argument submitted on behalf of the petitioner is that the.....
Judgment:
ORDER

S.S. Dhavan, J.

1. This petition under Article 226 of the Constitution raises the interesting question whether the expiry of one day and the commencement of the next are separated by any gap of time and whether a law purporting to extend the life of an Act expiring on 30-9-1952 at midnight could be effective if it was to take effect itself on the expiry of 30-9-1952. The petitioner prays for the quashing of the order of the Rent Control and Eviction Officer, Sultanpur, dated 6-12-1956, directing the brother of the petitioner, a man called Mohammad Mustafa to hand over the possession of a certain building to Murari Prasad respondent No. 4, who was allotted the building by the aforesaid officer.

In view of the fact that the only argument submitted On behalf of the petitioner is that the Act was not validly extended, and any controversy as to facts is immaterial for the decision of the sole legal question in this case. Very briefly, the petitioner's case, as alleged in this affidavit, is this. He says that he and his brother Mohammad Mustafa are the owners and landlords of a shop in Sultanpur city known as 85/A, Parkinsonganj. It fell vacant on 8-8-1955. The petitioner's brother Mohammed Mustafa has been running a tobacco shop in another locality in Sultanpur city known as mohallah Shahganj.

On 17-9-1955 the petitioner obtained a licence for dealing in tobacco. According to the petitioner this licence was neither an extension of his brother's licence nor was taken on behalf of the joint family (in other words, the petitioner claims that the licence was his personal affair). The petitioner alleges that he made an application for the allotment of the aforesaid shop No. 85/A which was referred to a housing committee for advice. On 29-9-1955, the District Magistrate, on the advice of the committee, allotted the shop to Murari Prasad, respondent No. 4.

The allotment order is attached as annexure 'A' to the petitioner's affidavit. It contains an endorsement intimating that a copy of the order was being forwarded to 'the landlord Shri Mustafa' for information and compliance. A copy of the order purporting to reject the application alleged to have been made -by the petitioner is also filed as Annexure 'B' of the petitioner's affidavit. But in this order Mohammed Mustafa (and not the petitioner) is described as the owner of the shop.

The order states that 'the request of the house owner is .............. rejected and the shop is allotted in favour of Shri Murari Prasad'. The petitioner further alleges that he had already taken possession of the shop on 8-8-1955 when it fell vacant. He states that on 17-8-1955, he opened his tobacco shop, and commenced his tobacco business in it. On 6-11-1955, the petitioner's brother Mohammad Mustafa received a notice under Section 7-A (I) of the U. P. (Temporary) Control of Rent and Eviction Act from the Rent Control and Eviction Officer, Sultanpur, asking him to show cause why be should not be evicted from the premises. On 7-12-1955, Mohammed Mustafa received another notice under Section 7-A (2) directing him to vacate the premises.

Mustafa went up in revision before the Commissioner against the notice under Section 7-A (2) which was rejected on 8-12-1955. Mustafa then filed a writ petition in this Court challenging the validity of the allotment in favour of the respondent Murari Prasad and also oF the order rejecting his own application for allotment. This petition was rejected on 5-9-1956, on the ground that neither of the orders affected him. On 6-12-1956, the Rent Control and Eviction Officer, Sultanpur issued a notice to Mohammed Mustafa under Section 7-A (2) of the Act, directing him to hand over the possession of the premises to the allottee Murari Prasad within 4 days.

2. The petitioner impugns the legality of this notice served on his brother Mustafa on the ground that it affects his rights as he is occupying the premises in dispute in his own right. The petitioner prays for a writ of prohibition directing the District Magistrate, Sultanpur not to take any steps to eject the petitioner from the premises. He also prays for a writ of certiorari quashing the notice dated 6-12-1956.

3. The petition is opposed by Murari Prasad, respondent No. 4 in whose favour the allotment order was made and also by the Rent Control and Eviction Officer Sultanpur. Counter-affidavits have been filed on behalf of both. Murari Prasad has denied the petitioner's allegation that he made any application for the allotment of the shop to him or for the release of the shop for his benefit. He states that Mohammed Mustafa and not the petitioner filed an application before the Rent Control and Eviction Officer.

In this application Mustafa claimed to be the owner of shop No. 85/A and prayed for the ejection of a certain person called Balram Prasad from this shop. He stated that ho wanted to use the premises for himself. Both the application and its supporting affidavit are filed as annexures to the counter-affidavit. Murari Prasad states that the allotment order in his favour was passed after considering the claims cf Mohammed Mustafa.

He denies that the petitioner Sami took possession of the shop on 8-8-1955, when it fell vacant. He points out that, in his writ petition filed in this court, Mohammed Mustafa stated in his affidavit that he (Mustafa) had taken possession of the shop on 8-8-1955 when it fell vacant. Murari Prasad also states that Mohammed Mustafa never stated in any of his objections before the Rent Control and Eviction Officer that the house was in possession of the petitioner Mohammed Sami.

This respondent denies that the petitioner is in possession of the shop in his own right and states that the shop is in the possession of Mohammed Mustafa. He points out the fact that Mohammed Sami never filed any objection before the Rent Control and Eviction Officer against the notice under Section 7-A.

4. In the counter-affidavit filed on behalf of the State the petitioner's ownership of the shop No. 85/A is denied. It is stated that it was Mohammed Mustafa who claimed before the Rent Control authorities to be the owner of the shop and that the petitioner Sami never appeared in any of the proceedings nor filed any application. It is also stated that Mohammed Mustafa (and not the petitioner) filed an application before the Rent Control and Eviction Officer that he wanted to start his own business in shop No. 85/A and that he never stated that the business was a joint family concern.

It is also stated that it was Mohammed Mustafa who took possession of the shop as owner and not the petitioner. It is pointed out that the notices under Sections 7-A (1) and 7-A (2) were issued to Mohammed Mustafa. It is contended on behalf of the Rent Control and Eviction Officer that the present petition has been filed at the instance of Mohammed Mustafa who, having failed in his writ petition to get any relief from this Court, hasnow made a second attempt through his brother Mohammed Sami, the present petitioner. It is stated that the petition is merely an attempt to defeat the process of the law. It is further pointed out that the petitioner neither made any objections under Section 7-A before the Rent Control and Eviction Officer nor filed any revision before the Commissioner.

5. Learned counsel for the petitioner addressed only one argument before me, He contended that the U. P. (Temporary) Control of Rent and Eviction Act came to an end on 30-9-1952, but was never validly extended. Consequently there is no Act in force today and all the orders passed by the Rent Control and Eviction Officer in the exercise of his powers under this Act are ultra vires, void and of no effect.

6. Mr. Misra expounded his argument thus. The U. P. (Temporary) Control of Rent and Eviction Act was first passed by the legislature in the year 1947 as a temporary measure. It was due to expire on 30-9-1948. It was, however, extended from time to time. The Amending Act of 1948 extended it till the expiry of 30-9-1952.

The next extension was by the Amending Act of 1952 (No. 24 of 1952) which extended its life till 30-9-1954. The next extension was by the Amending Act of 1954 which extended it till the expiry of 30-9-1953. The manner of each extension on each occasion was somewhat peculiar. Each Amending Act did not say that the Act was being extended till specified date.

It merely changed the figure in Section 4 (4) of the original Act which said, 'It shall cease to have effect on the expiry of 30-9-1948 ..............' Thus,the Amending Act of 1948 contained a sub-section providing that 'for the figure 1948, the figure 1952 shall be substituted'. The Amending Act of 1952 contained a section providing that 'for the figure 1952 the figure 1954 shall be substituted'.

Lastly, the Amending Act of 1954 contained a sub-section providing that 'for the figure 1954, the figure 1958 shall be substituted'. Thus, though the indirect effect of these provisions was to extend the life of the Act, strictly speaking each statute amended the Act.

7. Mr. Misra concentrated his attack on the Amending Act No. 24 of 1952 which purported to extend the life of the old Act by substituting the figure 1954 for the figure 1952, The Amending Act itself came into force 'with effect from 1-10-1952'. The position, therefore, was this. The old Act came to an end on the expiry of 30-9-1952, whereas the Amending Act came into force on the 1st of October.

There was thus a gap of time, however small, between the expiry of the old Act & the beginning of the Amending Act--the gap between the expiry of 30th September and the beginning of 1st October. Mr. Misra argued that there could be no power to amend before the Amending Act came into force, but by the time 1st October had arrived, the Act to be amended had expired already and there was nothing left to amend.

There could not be, according to Misra, any amendment of an Act which was not in existence. The amendment was, therefore, ineffective and the result, Mr. Misra contended, must be that the old Act was never extended in 1952 and there was no Act in existence from the expiry of 30-9-1952 till 30-9-1954. Consequently, the Amending Act of 1954 was equally ineffective, as it purported to amend an Act which did not exist.

Following the same line of reasoning, Mr. Misra argued that the Amending Act of 1954 was ineffective and could not have extended an Act which did not exist on the expiry of 30-9-1954.

8. Mr. Misra frankly conceded that his entire argument was based on the proposition that there must be an interval of time between the expiry of 30th September and 1st October in other words, between the end of one day at midnight and the beginning of another.

9. Mr. Misra pointed out that the U. P. Legislature appears to have realised that it was a mistake to fix the commencement of the Amending Act of 1952 from October 1 of that year. Every other Amending Act came into effect before the old Act was allowed to expire. For example, the Amending Act No. 27 of 1954 came into force 'with effect from September 30, 1954', and not October 1 of that year.

In other words, the Amending Act took effect before the old Act had expired. Mr. Misra conceded that if the Amending Act of 1952 had also been made effective from 30-9-1952 instead of October 1, he would have had no case. But due to some oversight October 1 was fixed as the date from which the Amending Act of 1952 came into effect. This was a fatal error, according Mr. Misra, because it left a gap between September 30 and October 1 during which the old Act expired before the Amending Act came into effect.

10. Before I consider Mr. Misra's argument on merits, it is necessary to dispose of a preliminary objection raised on behalf of the State. Learned Junior Standing Counsel contended that the petitioner is not entitled to be heard on merits as he has no locus standi in this case. He pointed out that the order under Section 7A is not addressed to him. Nor do the premises in dispute belong to him as an owner.

In these circumstances, the petitioner has no right to impugn the legality of the order passed under Section 7A. Learned counsel relied on the principle laid down by the Supreme Court in the State of Orissa v. Madan Gopal, AIR 1952 SC 12, that the existence of a right is the foundation of a petition under Article 226 and consequently a person cannot claim to be heard under Article 226 unless he can show that there has been an infringement of some right vested in him. Learned counsel contended that as in the present case the petitioner could not claim any infringement of his right, consequently he has no locus standi in this petition.

11. I do not agree. Even assuming that the house in dispute is not owned by the petitioner and that he is occupying the house illegally, the real question is whether the special powers under the U. P. (Temporary) Control of Rent an Eviction Act can be invoked to eject him. If this Act were not in existence, Government would not have power to take summary proceedings against the petitioner under Section 7A for his ejectment.

As rightly pointed out by Mr. Misra, the petitioner is not a trespasser in the sense that he is in occupation of the premises against the wishes of the owner, who is his own brother. At the most he can be considered to be in 'unauthorised occupation' within the meaning of Section 7A. But if the Act itself is non est the petitioner could not be considered in unauthorised possession, nor could the Government invoke the summary powers of Section 7A for the eviction of the petitioner.

It seems to me, therefore, that the fact that the petitioner is not the owner of the premises in dispute or that the notice under Section 7A has notbeen issued against him is not material, The real question is whether Government has the power to evict the petitioner, who is in possession of the premises in dispute by the summary procedure under the Act. The petitioner is entitled to come to this Court and show, if he can, that the very Act under which the Government are proceeding against him does not exist.

12. I shall now consider Mr. Misra's arguments on merits. As pointed out above, his whole case rests on the proposition that there must be a gap of time between the expiry of 30-9-1952 when the old Act ceased to exist and the commencement of October 1 when the Amending Act came into effect. I pointed out to Mr. Misra that Section 5 (2) of the U. P, General Clauses Act would apply to this case. This sub-section runs thus:

'Unless the contrary is expressed, an (Uttar Pradesh) Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement,'

13. According to this sub-section, an Act which comes into operation on October 1 shall be construed as coming into operation immediately on the expiration of September 30. Therefore, the Amending Act of 1952 which came into force with effect from 1-10-1952 must be deemed to have come into operation immediately on the expiration of September 30 of that year.

The controversy in the present case, therefore, is not whether there is a gap of time between the expiry of September 30 and the commencement of October 1 but whether there is such a gap between the extinction of the old Act (on the expiry of September 30) and the coming into effect of the Amending Act (also on the expiry of September 30). The controversy may be stated in another way. Both the expiry of the old Act and the coming into effect of the Amending Act was on the expiry of 30-9-1952. Can it be said that there was a gap of time between these two events which took place simultaneously at the same time?

14. Mr. Misra contended that Sub-section (2) of Section 5 of the U. P. General Clauses Act applies only to those cases where no date of commencement is expressed in the statute. He contended that Sub-section (2) is really a continuation of the general discussion under Section 5 relating to statutes where no date of commencement is given. It does not cover cases like the Amending Act where the date of coming into effect is specified.

15. I do not agree that Sub-section (2) does not apply to the present case. It says that, unless the contrary is expressed, a U. P. Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It, therefore, applies to all Acts in which a date of commencement of the Act is specified. In the Amending Act No. 24 of 1952 the date of commencement was specified as 1-10-1952.

Therefore, Section 5 (2) of the U. P. General Clauses Act shall apply, and the Amending Act shall be deemed to have come into operation immediately on the expiration of the day preceding October 1 that is, on the expiration of 30th September.

16. Mr. Misra then argued in the alternative that, even if the Amending Act is deemed to have come into operation immediately on the expiration of September 30, there shall still be a gap of time between the extinction of the old Act and the commencement of the Amending Act. He argued that the words 'on the expiry of do not connote simultaneity. Mr. Misra conceded that the word'on' may be used either as a preposition or as an adverb.

When used as a preposition it means 'simultaneously with', but as an adverb it means 'immediately after'. Thus the preposition 'on' is used to describe simultaneous events, whereas the adverb 'on' denotes a sequence of events. By way of illustration, if it is said that the constitution came into force on the stroke of 12 at midnight it may mean that the striking of 12 and the commencement of the Constitution were simultaneous events. But, Mr. Misra argued, the words in Section 5 (2) 'immediately on the expiration of the day preceding its commencement' mean immediately after the day had expired. Therefore, there must be a gap of time between the expiry of the dying Act and the commencement of the new.

17. I do not agree that the word 'on' in Section 5 (2) is used to denote sequence of events. In my view, it connotes events which are simultaneous. 'Immediately on the expiration of the day preceding its commencement' means at the same time as the expiry of the previous day. The expiry of that day and the commencement of the new Act are meant to be simultaneous events under Section 5 (2) of the U. P. General Clauses Act.

This is also borne out by the effect of the use of the word 'immediately.' The word 'immediate'' means, according to the Webster's Dictionary, 'not distant or separated in time or space'. Therefore, if one event is said to take place immediately on the expiry of another event the two events are not separated by any gap of time and are simultaneous. It was held in Sidebotham v. Holland, (1895) 1 QB 378 (384), that the words 'on from' and 'on and from'' can be equivalent expressions.

18. Mr. Misra's argument that the Amending Act should have come into effect while the old Act was still in force might lead to an absurd result. The old Act provided that the Act would continue in force until the expiry of 30-9-1952 whereas the Amending Act provided that it would continue till 1954. If the second came into effect while the first was still in force, the result would be that for a short interval, however small, two Acts were in force simultaneously, the one saying that the U. P. (Temporary) Control of Rent and Eviction Act would expire on 30-9-1952 and the other providing that it would expire in 1954.

But this absurdity is avoided if it is held that the Amending Act came into force immediately on the expiry of the old Act -- in other words, the expiry of the old Act and the commencement of the new were simultaneous events.

19. I am fortified in my opinion by a decision of Mehrotra J., in Sarojini Devi v. Rent Control and Eviction Officer, 1955 All LJ 657 (660): (AIR 1956 All 100 (102)), in which he negatived precisely the same argument which is now raised by Mr. Misra and held that the Amending Act came into operation immediately after the midnight of 30-9-1952, and that simultaneously with the expiry of 1947 Act on the midnight of 30th September the Amending Act of 1952 came into operation. Mehrotra J., observed:

'The main contention of the applicant is that the Act of 1947 expired on the 30th September, 1952. The Amending Act came into operation from 1-10-1952. There is no dispute that the Act of 1947 expired on the midnight of 30-9-1952. Section 1 of the Amending Act 14 of 1952 by which the U. P. (Temporary) Control of Rent and Eviction Act has been amended provides that this Act shall comeinto force with effect from 1-10-1952. Section 5 of the U. P. General Clauses Act provides that when the new State Act is not expressed to come into operation on a particular day then it shall come into operation if it is an Act of the Legislature on the day on which the assent of the Governor is first published in the Official Gazette.

Under Section 5 of the General Clauses Act unless the contrary is expressed, Uttar Pradesh Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It is, therefore, plain that the Amending Act came into operation immediately after the midnight of 30-9-1952 and simultaneously with the expiry of 1947 Act on the midnight of 30th Sept. the Amending Act of 1952 came into operation. The Amending Act of 1952 was, therefore, validly passed and it did not revive any dead Act. It only continued the Act of 1947.'

20. In appeal against this judgment, a Division Bench of this Court (Agarwala and Beg JJ.) considered the question whether Act 24 of 1952 validly extended the operation of the U. P. Control of Rent and Eviction Act beyond 30-9-1952 but left the question undecided with the observation that it presented 'considerable difficulty'. The learned Judges observed:

'The question whether Act 24 of 1952 validly extended the operation of the U. P. Control of Rent and Eviction Act beyond the 30th September, 1952, On which date it expired presents considerable difficulty. The Act purports to come into force on 1-10-1952 and seeks to extend the period of operation of Act III of 1947 for another period of two years. Act III of 1947 had, however, expired on the 30th September, 1952 and the question is whether the extending Act which came into force on the date the previous Act had already expired can validly extend the duration of the former Act. In the view, however, we take upon another point in the case it is not necessary for us to express our final opinion on this question.

Assuming that Act III of 1947 expired on the SOth September, 1952 and was not validly extended by Act 24 of 1952 ..............'

21. Thus the Division Bench decided the appeal on the assumption that the Act had not been validly extended but dismissed it on the ground that the expiry of the old Act on 30-9-1952 would not affect pending proceedings. Mr. Misra pointed out that there is no authoritative decision by a Division Bench which is binding on me and he vehemently urged that the decision of Mehrotra J., is not correct.

22. I do not agree. Mr. Misra's entire argument is based on the hypothesis that there must be an interval of time between the last moment of the preceding day and the first moment of the succeeding day. This hypothesis has no warrant either in law or in the physical laws relating to the passage of time.

23. In law, a day may be either a dies naturalis or natural day, or a dies artificialis or civil day, A natural day begins at midnight and ends at midnight. As stated above the end of one day and the beginning of the other are simultaneous events, and there is no gap of time between the two. Mr. Misra in his argument covered a wide field of natural philosophy including the nature of time and its measurement.

He quoted from articles on 'Time' and 'Day' in both the Encyclopedia Brittanica and the Chambers Encyclopaedia. His argument is that there must be deemed to be an interval or gap of time between the expiry of the old Act and the commencement of the Amending Act.

24. This part of learned counsel's argument compels me to deal with a question which has engaged natural philosophy down the ages: what is time and how is it measured? Time and space are forms of existence of matter, and cannot exist apart from it. Matter is always in motion, from the largest nebula to the smallest electron. Matter without motion (or motion without matter) is inconceivable. Because matter is in motion, there is sequence or simultaneity of events--that is, time. A day is simply the gap denoted by one complete revolution of the earth on its axis. In a universe which is completely still -- an impossible supposition -- there would be no time.

25. In a simple sentence in his paper on 'The Electrodynamics of Moving Bodies' published in 1905 -- 'the simplest ever recorded in a Scientific paper' -- the greatest genius of modern science explained the conception of time thus:

'All our judgments in which time plays a role are judgments about simultaneous events. If I say, for example, the train arrives here at 7, 'this means: the coincidence of the small hand of my watch with the number 7 and the arrival of the train are simultaneous events' -- (Albert Einstein in Annalen Der Physik, Berlin 1905 quoted in Albert Einstein by Leopold Infield, New York 1950).

26. To extend Einstein's analogy to the question in the present case, if Mr. Misra says, 'September 30 expired at midnight it means: (1) that our planet earth is in a state of continuous spinning motion on its axis; (2) that the interval called the 'day' is equal to a complete revolution in space of the earth on its axis; (3) that the coincidence of the small hand of the watch with the figure XXIV and the arrival of a particular point on the Earth's surface (Greenwich) at a particular position during the earth's spin are simultaneous events, and (4) that both events are conveniently labelled 'expiry of September 30.'

27. Thus what we call the passage of time or intervals or gaps of time correspond to the positions of a point on the earth's surface during its spinning motion on its axis. The movement of this point from position A to B denotes an interval or gap of time. Thus time is measured by the motion of matter in space. This leads us to another baffling question: what is motion? Motion has been called a 'contradiction', because a body in motion, at any particular moment, is in one place and also not in that place. At any particular moment, a body in motion is in the process of being on it, and also moving away from it.

If any one were to assert that a bullet fired from a gun is, during its motion, at a particular spot at any particular moment, this would be inaccurate, for a body in motion is at any moment at a given point and also not there. This is a contradiction, and 'the continuous assertion and simultaneous solution of this 'contradiction' is precisely what 'motion' is.

28. If the spinning motion of the earth round its axis is the basis of measurement of time, it would be impossible to say that there is any gap or interval of time between the expiry of one day and the beginning of another, as both are events which take place when a particular point on the Earth's surface (in Greenwich) is in the process of being ona place and moving away from it. In the language of time, it is called midnight or the simultaneous expiry of one day and the commencement of another.

29. In the present case there was no gap of time between the expiry of the old Act and the commencement of the Amending Act 24 of 1952. The two were simultaneous events. Consequently, the Amending Act did not seek to extend an Act which had already become extinct. It might be more accurate to say that the old Act was revived while it was in the process of becoming extinct.

30. In the circumstances, though Mr. Misra argued this somewhat novel point with great charm and lucidity it must fail. The petition is rejected, but there shall be no order as to costs.


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