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Smt. Shanti Devi Vs. Mohinder Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 125D of 1951
Judge
Reported inAIR1953P& H240
ActsDelhi Rent Control Order, 1939; Defence of India Rules, 1939 - Rule 81(2); Evidence Act, 1872 - Sections 114
AppellantSmt. Shanti Devi
RespondentMohinder Singh
Appellant Advocate Darya Dutt, Adv.
Respondent Advocate K.L. Gosain and; Anant Ram Whig, Advs.
DispositionAppeal allowed
Cases ReferredOntario v. Attorney General
Excerpt:
.....to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in..........in deciding the point the subordinate courts seem to think that the central government was not empowered by rule 81 (2) (bb) of the defence of india rules to enact clause 11 (a) of the order.8. in approaching the matter i wish to state that there is a presumption in favour of the validity of the provision of law contained in clause 11a (2) (iii) of the order until it is proved beyond reasonable doubt that that provision of law is 'ultra vires'.9. in order to appreciate the point it is necessary to set out the provisions of rule 81 (2) (bb) of the defence of india rules. those provisions read:'the central government or the provincial government so far as appears to it to be necessary or expedient for securing the defence of british india or the efficient prosecution of the war, or for.....
Judgment:

Harnam Singh, J.

1. On 13-11-1948, the Assistant Rent Controller, Delhi, made an order under Clause 11-A (2) (iii) of the Delhi Rent Control Order, 1939, hereinafter referred to as the Order, directing Mohinder Singh tenant to put 'Shrimati' Shanti Devi landlord in possession of house No. 5764-05, Shanti Bhawan, 3, Darya Ganj, Delhi, on the finding that the tenant had without the consent of the landlord, sublet the entire house and used the house for a purpose other than that for which it was leased.

2. On 23-3-1948, Mohindar Singh instituted civil suit No. 219 of 1948 for declaration that Clause 11-A of the Order being 'ultra vires' the order passed by the Controller on 13-11-1946, was not binding on him. Shrimati Shanti Devi resisted the suit.

3. Finding that Clause 11-A of the Order was 'ultra vires' the Court of first instance decreed with costs civil suit No. 219 of 1948 on 6-7-1949.

4. From the decree passed by the Court of first instance on 6-7-1949, Shrimati Shanti Devi appealed in the Court of the Senior Sub Judge, Delhi. That appeal has been dismissed with costs.

5. Shrimati Shanti Devi defendant appeals under Section 100, Civil P. C. from the decree passed on appeal.

6. In these proceedings the point that arises for decision is whether Clause 11-A (2) (iii) of the Order is 'ultra vires'.

7. In deciding the point the subordinate Courts seem to think that the Central Government was not empowered by Rule 81 (2) (bb) of the Defence of India Rules to enact Clause 11 (A) of the Order.

8. In approaching the matter I wish to state that there is a presumption in favour of the validity of the provision of law contained in Clause 11A (2) (iii) of the Order until it is proved beyond reasonable doubt that that provision of law is 'ultra vires'.

9. In order to appreciate the point it is necessary to set out the provisions of Rule 81 (2) (bb) of the Defence of India Rules. Those provisions read:

'The Central Government or the Provincial Government so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community may by order provide:

x x x x x(bb) for regulating the letting and sub-letting of any accommodation or class of accommodation whether residential or non-residential, whether furnished or unfurnished and whether with or without board, and in particular, (i) for controlling the rents for such accommodation either generally or when let to specified person or classes of persons or in specified circumstances;

(ii) for preventing in specified circumstances the eviction of tenants and sub-tenants from such accommodation; and

(iii) for requiring such accommodation to be let either generally, or to specified persons or classes of persons or in specified circumstances.'

10. Indisputably, the power to make the impugned law is conferred, on the Central Government by Rule 31 (2) (bb) of the Defence of India Rules, and paras (i), (ii) and (iii) of Clause (bb) are merely illustrative of the power so conferred. For authority on this point - 'Emperor v. Sibnath Banerji', AIR 1945 PC. 156 (A), may be seen.

11. Clause 11A (2) (iii) of the Order provides that if the controller after giving the tenant a reasonable opportunity of showing cause against the application is satisfied that the tenant has, without the consent of the landlord, sublet the entire house or used it for a purpose other than that for which it was leased, the controller shall make an order directing the tenant to put the landlord in possession of the house. In plain English Clause 11A .

(2) (iii) deals with the regulation of letting land subletting of accommodation within Clause (bb) of Rule 81 (2) of the Defence of India Rules.

12. Basing himself on -- 'Attorney-General for Ontario v. Attorney General for the Dominion of Canada', (1896) A C 348 (B), Mr. Gosain urges that the provisions dealing with (he eviction of tenants do not fall within Rule 81 (2) (bb) for the reason that the power to regulate letting and subletting given by Rule 81 (2) (bb) implies the continued existence of that which is to be regulated. In -- 'Attorney-General for Ontario v. Attorney General for the Dominion of Canada', (B) Lord Watson said:

'A power to regulate, naturally if not necessarily, assumes, 'unless it is enlarged by the context', the conservation of the thing which is to be made the subject of regulation.'

13. In my judgment the argument raised cannot be sustained. In the first place, the subject-matter of regulation in Clause 11-A (2) (iii) of the Order is the accommodation and it cannot be said that Clause 11-A (2) (iii) of the Order does not conserve the thing which is the subject of regulation. In the second place, the provisions of Rule 81 (2) (bb) read with para, (iii) of Clause (bb) show that the law-making authority within Rule 81 (2) (bb) possesses the power to make the law dealing with the eviction of tenants in specified circumstances.

14. Mr. Gosain then urges that Rule 81 (bb) does not authorise the Central Government to empower the Controller to deal with cases of the eviction of tenants. Indeed, it is said that Rule 81

(2) (bb) contemplates the eviction of tenants I to be dealt with by civil Courts. I do not accept the argument raised for, in my opinion, the law-making authority under Rule 81 (2) (bb) possesses power to set up suitable machinery for the enforcement of the law made by it.

15. Giving the matter my best consideration, I think,, that the subordinate Courts have erred in thinking that Clause 11A (2) (iii) of the| Order is 'ultra vires'.

16. No other point arises in these proceedings.

17 In the result I allow the appeal, set aside the judgments and decrees of the subordinate Courts and dismiss the suit with costs throughout.

18. Counsel asks for leave to appeal under Clause 10 of the Letters Patent which I refuse.

19. Mohindar Singh will vacate the premises within three months from today. In case Mohindar Singh fails to vacate the premises within the time allowed to him Shrimati Shanti Devi will be entitled to initiate proceedings for his eviction.


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