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Luvana Thakarsi @ Shankerlal Karsandas Vs. Bhatia Hirji Damodar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR397
AppellantLuvana Thakarsi @ Shankerlal Karsandas
RespondentBhatia Hirji Damodar and ors.
Cases ReferredKanaiyalal v. State
Excerpt:
- - 1 had retransferred to him his right in the suit shop as a going concern together with good-will and the tenancy rights and as such it was transfer permissible by law. notice given was valid and the suit was not bad for mis-joinder of parties. 2 even as a going concern and with the good-will was illegal being in contravention of section 15(1) of the act; that any notification issued under the provision by the bombay government before 19th september, 1951 whereby the transaction of transfer of tenancy rights with the good-will was exempted from the application of the bar under sub-section (1), was not applicable to kutch area and therefore the transfer being illegal, the plaintiffs were entitled to recover possession under section 13(1)(e) of the act and dismissed the appeal......n.k. vakil, j.1. the petitioner in this civil revision application is the original defendant no. 2. opponent nos. 1 to 3 were plaintiffs and opponent no. 4 was the original defendant no. 1. plaintiffs, filed regular civil suit no. 12 of 1964 to recover possession of the suit premises which was a shop situated at nalia in kutch district from the defendants on the grounds that (i) defendant no. 1 had illegally transferred the tenancy rights to defendant no. 2 (ii) the premises were reasonably and bona fide required for personal use by the plaintiff no. 1 and (iii) the tenant was in arrears of rent for a period of six months and more. the suit was defended by defendant no. 2 inter alia on the ground that the defendant no. 1 had retransferred to him his right in the suit shop as a going.....
Judgment:

N.K. Vakil, J.

1. The petitioner in this Civil Revision Application is the original defendant No. 2. Opponent Nos. 1 to 3 were plaintiffs and opponent No. 4 was the original defendant No. 1. Plaintiffs, filed Regular civil suit No. 12 of 1964 to recover possession of the suit premises which was a shop situated at Nalia in Kutch District from the defendants on the grounds that (i) defendant No. 1 had illegally transferred the tenancy rights to defendant No. 2 (ii) the premises were reasonably and bona fide required for personal use by the plaintiff No. 1 and (iii) the tenant was in arrears of rent for a period of six months and more. The suit was defended by defendant No. 2 inter alia on the ground that the defendant No. 1 had retransferred to him his right in the suit shop as a going concern together with good-will and the tenancy rights and as such it was transfer permissible by law. The trial Court held that the suit premises were not required by the plaintiff reasonably and bona fide for their personal use and greater hardship would be caused to defendant No. 2 if decree for possession was to be passed. But the Court found that defendant No. 2 did not acquire any legal status as a tenant under the deed of assignment daced 24th October, 1960 as subletting or assigning of interest of a tenant was prohibited by Sub-section (1) of Section 15 of the Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 (hereafter referred to as 'the Act) as made applicable to Kutch area and the plaintiffs were entitled to get possession on the ground. It was further held that the rent-note passed by the defendant No. 1 required compulsory registration; notice given was valid and the suit was not bad for mis-joinder of parties. The trial Court thereupon passed a decree for possession and also for arrears of rent, mesne profits and cost of the suit. The defendant No. 2 then filed appeal No. 59 of 1966 challenging the decree passed on various grounds. The plaintiffs being aggrieved by the finding that the premises was not required reasonably and bona fide by them, filed cross objections. At the hearing of the appeal, the learned advocates of the parties pressed and argued only one contention viz. whether the appellant defendant No. 2 had become a lawful tenant by transfer of tenancy rights by defendant No. 1 to defendant No. 2. The learned advocate for the appellant did not press any other issue nor raised any other contention. The appellate Court came to the conclusion that the assignment of the right as a tenant by defendant No. 1 to defendant No. 2 even as a going concern and with the good-will was illegal being in contravention of Section 15(1) of the Act; that any notification issued under the provision by the Bombay Government before 19th September, 1951 whereby the transaction of transfer of tenancy rights with the good-will was exempted from the application of the bar under Sub-section (1), was not applicable to Kutch area and therefore the transfer being illegal, the plaintiffs were entitled to recover possession under Section 13(1)(e) of the Act and dismissed the appeal. The plaintiffs did not press the cross-objections. This civil Revision Application is filed against the said order made by the appellate Court.

2. The only contention raised before me by the learned advocate Shri K.N. Mankad for the petitioners is that the appellate Court has erred in law in holding that the assignment by the original tenant defendant No. 1 in favour of defendant No. 2 present petitioner was illegal as it was prohibited by Section 15(1) of the Act and that the benefit of notification issued by the Government of Bombay was not available to the petitioner.

3. The suit premises were given on rent to defendant No. 1 on the 30th November 1949. By a document dated 24th October 1962 the son of defendant No. 1 who was then managing his business transferred the business together with the tenancy rights to defendant No. 2. Argument on behalf of the petitioner is that the said transfer was not hit by Sub-section (1) of Section 15 of the Act as the notification issued by the then Bombay Government under the proviso also extended to the Kutch area when the Act was applied to the area on the 19th of September 1951. In 1950 Kutch was a Part 'C State and was administered by the Central. Parliament passed Act No. XXX of 1950 called part 'C States (Laws) Act, 1950. Section 2 thereof provided that the Central Government may by notification in the official Gazette extend to any part of 'C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such restrictions and modifications as it thinks fit, any enactment which is in force in a part 'A' State at the date of the notification and provision may be made in any corrhsponding law (other than a Central Act) which is for the time being applicable to that part of 'C State. In exercise of this power conferred by Section 2 of the Act, the Central Government published the following notification on the 19th of September, 1951:

S.R.O. 1475: In exercise of the powers conferred by Section 2 of the Part C States (Laws) Act, 1950 (XXX of 1950), the Central Government hereby extends to the State of Kutch the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (Bombay Act LV11 of 1947) as at present in force in the State of Bombay subject to the following modifications:.

what is to be noted is that there is no modification made in Section 15 of the Act.

4. Section 15(1) of the Rent Act which has a bearing on the subject, reads as follows:

15(1). Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein;

Provided that the State Government may, by notification in the official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.

In exercise of the powers vested in the Government under the proviso, the then Government of Bombay issued a notification on the 12th of May 1948 which was subsequently amended on the 6th of April, 1949. By this notification with effect from 12th of May 1948 the Government of Bombay permitted in all areas to which Part II of the Act extended, all transfers and assignments by leases of their interest in leasehold premises as and to the extent specified in the schedule as under:

(1)...

(2)Transfer or assignment incidental to the sale of a business as a going concern together with the stock-in-trade and the good-will thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such lease hold premises together with the business and the stock-in-trade and good-will thereof.

It is clear that if this latter notification can be said to have extended to Kutch area at the relevant time, the transaction of transfer by defendant No. 1 to defendant No. 2 the present petitioner by the document dated 24th October 1962, assuming the transaction otherwise complied with the requirement of Clause (2) of the said notification and is otherwise valid, would be fully protected and the bar under Section 15(1) would not operate. The only narrow question, therefore, that arises for consideration is whether the said notification can be held to be in operation in the Kutch State at the relevant date. It is not a disputed fact that apart from the aforesaid notification issued in 1948 by the then State of Bombay, no other notification has been issued after the Rent Control Act was extended to the State of Kutch, on 19th September 1951. The learned advocate on behalf of the petitioner submitted that there was no need to issue another or separate notification under the proviso of Section 15(1) because no sooner the notification was issued in 1948 it became as if a part of Section 15(1) itself and therefore when the Act was extended to Kutch State, exemption created under the notification automatically extended to the whole area where the Act applied. This proposition was tried to be supported by the learned advocate on three grounds; (i) the notification issued under the provision by the Government of Bombay is delegated or subordinate legislation and has, therefore, the force of law. Consequently when the notification creating exemptions was issued, they became engrafted in the Statute itself and the exemptions have to be read as part of Section 15(1) itself; (ii) the expression 'as at present in force' in the notification dated 19th of September 1951, whereby the Act was extended to the State of Kutch given its proper meaning and force must be read to include the notifications issued under the Act and which had the force of law, being delegated legislation; (iii) it is held by this High Court in civil Revision Application No. 386 of 1961 decided on the 10th of August 1966 that on the extension of the Rent Act itself to a given area automatically the notification issued under the proviso to Section 15(1) would also apply to that area. I am not able to accept this submission of Mr. Mankad for reasons I have given hereafter.

5. There is no dispute that the notification issued by the Government of Bombay under the proviso is delegated or subordinate legislation and that it has the force of law. But merely because it is so, in my view it does not become a part of the statute itself. It cannot in law be said either to have been engrafted in the Act or can it be deemed to have merged for all purposes in the statutory provisions of Section 15 proprio vigore. The intention of the Legislature in enacting the proviso and in vesting the State Government with this authority is clear. The Legislature cannot foresees all possibilities, circumstances and difficulties which may justify exempting of transfers in different parts of the State or in respect of different kinds of premiums. The provision is intended to give power of removing genuine difficulties and tone down the rigour of the bar created by Section 15(1) of the Act. As the nature of those difficulties and the provisions which may be needed to meet them, cannot at the date of the passing of the Act be fully visualised, guided power is vested in the Government to be exercised after applying its rinds to the various factors to achieve the object of the Act. The notification issued in exercise of that power all the same retained its separate identity. Mr. Mankad urged that the moment the notification was issued, the power vested in the State Government got exhausted. It had then no authority to vary, amend or rescind the notification. The subordinate legislation thus brought into existence being notification in exercise of the power vested in the Government, becomes a part of the main statute itself for all purposes. But this reasoning to my mind is clearly erroneous. Section 14 of the Bombay General Clauses Act, 1904 provides that where, by any Bombay Act or Gujarat Act made after the commencement of this Act, any power is conferred on any Government, then that power may be exercised from time to time as occasion requires. Then Section 21 provides that where by any Bombay Act, or Gujarat Act a power to issue notifications, orders, rules or by-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or by-laws, so issued. If under law, as argued by Mr. Mankad, the notifications issued by the Government were to lose its separate identity and become a part of the Act, then Section 14 and 21 would be useless pieces of legislation. These provisions of law indicate that though the provisions made by the issuance of the notification is law in force it still remains subordinate legislation distinct and separate from the main legislation, to be amended, varied, applied or rescinded by the authority that made it viz. the State Government and it cannot be treated in law as a part of the statute for all purposes so as to be extended automatically on the extension of the Act itself to any given area. I am fortified in this view of mine when we notice that whenever any subordinate or delegated legislation is intended to be treated as a part of the statute itself expressions such as 'as if enacted in this Act' have been resorted to by the law-makers. (Vide Craies on Statute law, VI Edition P. 309). We find that the Indian Legislators while enacting any rules or subordinate legislation made in exercise of the powers given under the statute, intend subordinate legislation also to be placed on par with the statute itself, specifically indicate that the said delegated legislation shall be treated as forming part of the Act itself. We find such a device resorted to even in England. The following passage from Craies on page 297 is very instructive:

The initial difference between the subordinate legislation and statute law is held to lie in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Courts of law as a general rule will not give affect to the rules etc. thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts, the validity of delegated legislation as a general rule can be. The Courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form of substance of the regulation, or the sanction, if any, attached to the regulation : and it follows that the Court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.

In, England resorf appeals to iaye been made to this legislative devjpe in order to put not only the validity of the statute outside the cognizance of the Courts of that country but also the rules and orders which were to have validity 'as if enacted in this Act' and gave equal protection to the rules and orders also from judicial examination. This would show that the submission on behalf of the petitioners that as soon as the subordinate legislation is made in exercise of the powers reserved in the statute, the subordinate legislation becomes part of the statute, is not correct and the two remain distinct and separate.

6. There is one more provision in the General Clauses Act to which I would like to refer in support of the view I am taking. Section 20 of the Bombay General Clauses Act, 1904 provides that where by any Bombay Act a power to issue any notification, order, scheme, rule, by-law or form is conferred, then expressions used in the notification, order, scheme, rule, by-law or form, if it is made after the commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective meanings as in the Act conferring the power. It is manifest from this provision that the subordinate legislations mentioned in the section do not get merged nor do they become automatically a part of the Act itself. If they did, the provisions of this nature would not be necessary.

7. Mr. Mankad, however, argued that the rules made under the statutory authority is also delegated legislation and stands on the same footing as the notification in this case which also is subordinate legislation, having the force of law. He further urged that the statutory rules are in law treated as part and parcel of the statute itself and therefore there is no reason why the notification under consideration should also not be held to have become part of the statute itself. Reliance was placed in support of this proposition on the following decisions:

8. My attention was first drawn to : [1953]4SCR290 T.B. lbrahim v. Regional Transport Authority at page 82. In the said case a question inter alia arose whether Rule 268 (as amended) made under Section 68 of the Motor Vehicles Act, 1939 was ultra vires and it was beyond the rule making power< conferred by Section 68 Sub-section (1) of the Motor Vehicles Act. The Supreme Court found that rule 268 was within the powers of the rule making authority. The argument was that Sub-section (2)(r) of Section 68 did not confer the power upon the Transport authority to direct the fixing or the alteration of a bus stand and that rule 268 of the Rules framed under that section was therefore ultra vires. It was contended that the authority which is clothed with the power to fix a stand, was the Municipality under Sections 270(b), 270(c) and 270(e), 1, 2, and 3 of the Madras District Munipalities Act V of 1920. While negativing this contention, the Supreme Court observed that these powers of the Madras Municipalities Act did not affect the powers of the Transport authority to regulate traffic control or impose restrictions upon the license of any such cart stand. If rule 268 is therefore within the power of the rule making authority, it follows that it cannot be challenged as being void be cause it is not consistent with some general law. On behalf of the petitioners before the Supreme Court reliance was placed on a passage from Craies on Statute law in support of the contention that rules cannot be inconsistent with the general law and while dealing with the submission the Supreme Court further observed that:

Reliance was placed on a passage at page 299 of Craies on Statute law as laying down that a by-law must not be repugnant to the statute or the General law. But by-laws and rules made under a rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself.

Mr. Mankad relied particularly on the last observation of the Supreme Court to urge that this decision of the Supreme Court lays down that rules are part and parcel of the Act under which they are made. But in my view these observations are made for deciding whether rules could be struck down as being repugnant to the general law viz. Municipal Act. The Supreme Court held in the negative because they formed part of the Statute and consequently Court is only to see the repugnance thereof to the provisions of the statute itself under which they are made. In my view this was only discussed to bring out the distinction between by-laws and rules and that too only for the purposes of the construction of the rules. 1 will point out a little later when I deal with the next decision of the Supreme Court that under certain conditions for the purpose of construction of statutory rules, they are to be treated as part of the statute itself under which they are made. This decision therefore cannot be held to support the proposition canvassed by Mr. Mankad.

9. The next decision relied upon by Mr. Mankad is State of U.P. v. Babu Ram : 1961CriLJ773 . In the said decision a question arose whether the rules made under the powers given under Section 7 and 46(2) of the Police Act of 1861 are mere administrative directions or have the same effect as the provisions of the statute where under they are made in so far as they are not inconsistent with the provisions of the Act. The Supreme Court after examining the decisions cited and the arguments advanced came to the conclusion that the rules have the force of law and are not mere administrative directions and therefore in making a departmental enquiry, the provisions of the Act as well as the rules must be followed; if not, the order of dismissal made in the inquiry will be invalid. While discussing this question, the Supreme Court appears to have relied upon the following quotation from Maxwell on the 'Interpretation of Statutes', 10th ed. pp. 50-51:

Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation,

After referring to this question, the Supreme Court has observed that:

The statutory rules cannot be described as, or equated with, administrative directions. If so, the Police Act and the rules made there under constitute a self-contaiued code providing for the appointment of police officers and prescribing the procedure for their removal. It follows that where the appropriate authority takes disciplinary action under the Police Act or the rules made there under, it must conform to the provisions of the statute or the rules which have conferred upon it the power to take the said action, If there is any violation of the said provisions, subject to the question which we will presently consider whether the rules are directory or mandatory, the public servant would have a right to challenge the decision of that authority.

It is manifest from the quotations from Maxwell itself and also the observations of the Supreme Court that the rules made under a statute are to be treated as if they were in the Act and have the same effect as if contained in the Act only for the purpose of construction and obligation and not for all purposes. Where therefore a question arises as regards the construction of statutory rules they are to be construed consistently with the provisions of the statute itself. The Supreme Court therefore held that under that principle the provisions of the Police Act and the regulations made there under by Government constitute a self-contained code providing for the appointment of the police officers and prescribing the procedure for their removal. Consequently they held that the rules could not be considered to be mere administrative directions issued by the Government. In my view this decision of the Supreme Court cannot be read to lay down any law that statutory rules are to be treated for all purposes as part of the statute. We can also usefully refer to Maxwell's comments from which the question is to be found under Sub-head 'Statutory Instruments', As the foot-note shows, in England after coming into force of the statutory Instruments Act of 1946, all statutory rules and orders are referred to as 'statutory Instruments'. Under the said sub-head, Maxwell states as follows:

Instruments made under an act which prescribes that they shall be laid before Parliament for a prescribed number of days, during which period they may be annulled by a resolution of either House, but that if not so annulled they are to be of the same effect as if contained in the Act, and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act. If there is a conflict between one of these instruments and a section of the Act, it must be dealt, with in the same spirit as a conflict between two sections of the Act would be dealt with. If reconciliation is impossible, the subordinate provision must give way, and probably the instrument would be treated as subordinate to the section. If a statutory instrument contains words identical to those used in the Act under which it is made, those words must be construed in the same way as they are construed in the Act.

I have reproduced this whole passage from Maxwell to bring out particularly two facts: (i) that even in England only those rules are to be treated as part of the Act which under the provisions of the Act are required to lay before the parliament for a prescribed number of days during which period Parliament has the authority to annul but if they are not so annulled then they have the effect as if they are contained in the Act. The other fact which draws our attention is that they so become a part of the statute only for the purpose of construction. In the present case the provisions made under the notification are neither placed before the Legislature nor any question of interpretation thereof arises. Neither the decision of the Supreme Court nor the commentary in Maxwell therefore can help the petitioner.

10. The next decision is: Tintu Kharia v. State : AIR1952Ori258 . In the said case the question arose whether the Forest Act as applied to Bamra State when it merged with the Province of Orissa, the rules made by the Government under the Forest Act should also be held to have come into force though they were not separately formally applied to the Bamra State by any valid procedure. While considering this question, the learned single Judge dealing with the case observed:

This argument overlooks an important principle regarding the coming into force of any statutory rules in any area on the very date on which the Act is brought into force in that area. This principle has been reiterated in the case of 'Mahabir Sahu v. Emperor. 25 Patna 98 where it was pointed out:

Once an Act has been extended to an excluded area, or partially excluded area, it necessarily follows that any rule or order made in the exercise of powers conferred by the Act also comes into operation in such area.

The same principle would apply as regards the coming into force of the statutory rules made under the Acts which are applied to Orissa States in exercise of powers conferred by Extra Provincial Jurisdiction Act. It must therefore, be held that the rules made under the Indian Forest Act also came into force in Bamra State on 1-1-48.

The learned Judge has given no reason of his o,vn in support of what he has referred to as the principle but has merely relied on the decision of Patna High Court where according to the learned Judge the principle has been reiterated. It is therefore necessary to examine that decision to see what exactly is the principle. In A.I.R. 1947 Patna p. 160 Mahavir Sahu v. Emperor the petitioner was convicted for having contravened the Food-grains Control Order by keeping for sale more than 20 mds. of rice without a permit. The said order was made by the Government of India in exercise of the powers conferred by Sub-Rule (2) of Rule 81 of the Defence of India Rules. Section 1(2) of the said Order provided that it should come into force in any province only on such date as the Provincial Government may by notification in the official Gazette appoint. The Government of Bihar on the 9th of July 1949 by a notification made it applicable the in province of Bihar from the 16th of July 1942. The Petitioner of that case was a shop-keeper in Ranchi and on his behalf it was contended that as Ranchi was situated within a partially excluded area the provincial Government should have issued a separate notification regarding it. This contention was negatived by the Court on the following observations:

The defence of India Act was, however, declared to be in force in Chhota Nagpur and other partially excluded areas in Bihar on 15-11-1939. Once the Defence of India Act, had been extended the Chhota Nagpur, it was quite necessary for the Provincial Government to issue separate notifications directing that every rule made under the Act and every order made under this rules should come into operation in such areas. Once an Act has been extended to an excluded area; or partially excluded area., it necessarily follow that any rule or order made in exercise of powers conferred by the Act also comes into operation in such area.

It is obvious from these observations that the Act itself was already in force in the excluded area and the area was excluded only from the application of some orders made under the Defence of India Rules. Therefore, as soon as the notification was issued under the Act, naturally it would also apply to the excluded areas and no separate notification was necessary. The fact to be noticed is that the Act was already in force in the area concerned and the notification was issued thereafter under the Act. The observations made in the said decision are to be read in the context of these facts and the principle if any iterated therein is to be also appreciated in the context thereof. This principle however can have no application in the present case because the Act itself was not made applicable to the Kutch area till the concerned date. If the notification had been issued at any time after the Act was put into force, then of course it would also apply to Kutch.

11. These two decisions therefore cannot be considered to beany authority for the proposition that in all cases where the Act is made applicable, the notifications and orders made thereunder would also automatically apply.

12. The next authority referred to by Mr. Mankad was: Kanaiyalal v. State VII G.L.R. 717. One of the points to be decided in that case was whether Section 3 Sub-section (4) of the Bombay Commissioners of Divisions Act, 1957 and the two notifications issued by the State Government under the section were invalid. One of the grounds on which the validity thereof was challenged was that Section 3(4) was ultra vires since it involved excessive delegation of legislative power to the State Government which was not permissible to the State Legislature under the authority conferred on it under Article 245 and 246. The learned Advocate General appearing on behalf of the State in order to meet this contention inter alia urged that no delegation of legislative power was involved in Section 3(4) and there was consequently no question of excessive delegation. It was urged by him that when the State Government issues a notification under Section 3(4) adding to or specifying in the schedule the necessary adaptations and modifications in the enactment by way of amendment for the purpose of conferring and imposing on the Commissioners powers and duties under such enactment, an amendment is undoubtedly effected in such enactment, but the amendment is not by the Act of delegate but by the legislative act of the Legislature itself. The High Court howsoever rejected the contention observing that under Section 3(4) of the Commissioners Act the powers to amend an existing law is delegated by the Legislature to the executive and the Legislature says in terms clear and explicit that the action of the executive shall have the effect of amending the existing law. This is the mode therefore sanctioned by the Legislature and the State Government is authorised to add to or specify in the Schedule the necessary in the enactment for the purpose of conferring and imposing on the Commissioner powers and duties under the enactment. Therefore as soon as the Government issues a notification adding to or specifying in the schedule the relevant amendment in the enactment and expresses its will to so amend the enactment, the Legislature says that the enactment shall accordingly be amended and have effect subject to the amendment so made by the State Government. It is further observed that the amendment thus made is by the act of the delegate; of course the authority of the Legislature must be behind the act of the delegate for without legislative sanction the act of the delegate would be ineffectual; but that does not make it an amendment by the Legislature. The will to amend a particular enactment is to be that of the executive the power to do so having been delegated to the executive by the Legislature under Section 3(4) and the delegation is made effective by the Legislature by declaring in Clauses (a) and (b) that as soon as the executive expresses its will by issue of a notification to amend the enactment, the enactment and the schedule shall stand amended. Then again it has been observed that when the Legislature delegate legislative power to the executive, the delegation is indisputably by force of the legislative declaration and the act of the executive in exercise of the delegated power derives its force and efficacy from the legislative sanction but merely because the Legislature says in express terms that the Act of the executive shall have force and effect to bring about a result which it is intended to have, it does not negative delegation of legislative power to the executive. On this reasoning the High Court held that Section 3(4) effects delegation of legislative powers to the State Government.

13. Thus this High Court negatived the submission made on behalf of the State where by in effect it was tried to be urged that the notification was a part of the statute itself for all purposes as it should be considered to be the act of the Legislature itself. This decision on the contrary helps the view that I have taken that the two stand apart and have different identities and the notification does not as if get engrafted on the Act for all purposes.

14. It was then suggested that the observations made later in para 16 of the said decision would support, the contention on behalf of the petitioner. In para 10 the Court dealt with the contention of the petitioners in the said case that the notification dated the 5th September 1958 was not valid inasmuch as it had not received the assent of the President as required by Article 31(3) and that in any event it was not operative to effect amendments in the Land Acquisition Act since it had not been assented to by the President as required by Article 254(2). In my view this does not in any way help Mr. Mankad to establish that the notification should be taken to have become a part and parcel of the Act itself. This part of the decision only lays down that the notification being a delegated legislation the Presidential assent given to the Act also enures for the benefit of the delegated legislation as the statute under which this power of subordinate legislation is exercised has already received such assent. This cannot be construed to mean that the delegated legislation does not require the assent because it has merged with the Act or that the subordinate legislation is to be treated as a part of the Act. It only means that the effect of the assent is not only to take into its fold the Act but also whatever subordinate legislation is brought into existence in exercise of the power reserved in the Act. I do not therefore find anything in the decision cited by Mr. Mankad to support his contention or negative the view I have taken.

15. There is one more reason why in my view the notification must be held not to have come into force in Kutch district. As we have seen, Section 2 of the Part 'C' States (Laws) Act, 1950 empowers the Central Government to extend to any part 'C State any enactment which is in force in part 'A' State by a notification and in exercise of this power the Central Government extended the Bombay Rent Act to Kutch area. It is important to notice that what is empowered to be extended is only any enactment which is in force in a part 'A' State at the date of the notification. It is also to be noticed that there is no provision in the said section or in any part of that Act which empowers the Central Government to also extend any rules, by laws, orders, regulations or notifications issued under any such enactments. The word 'enactment' in my view would not ordinarily include any statutory rules, notification orders etc. made under a statute and it only means the Act of a Legislature. This view gets support from the definition given under the Central General Clauses Act as well as the Bombay General Clauses Act which reads as follows:

16. Clause (19) of Section 3 of the Central General Clauses Act reads as under:

(19) Enactment' shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid.

Clause (17) of Section 3 of the Bombay General Clauses Act reads as under:

(17) 'Enactment' shall include any Regulation of the Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid;

17. It is true that this is an inclusive definition but it does indicate that unless otherwise specified, the word 'enactment' only means an act of a Legislature and the definition only enlarges its ambit by including in its ordinary meaning any regulation and also any provision contained in any Act or such regulation. I am further confirmed in this view by referring to other similar laws enacted by the Bombay Legislature, viz. Baroda State (Application of Laws) order, 1949 promulgated in exercise of the powers conferred by Section 4 of the Extra Provincial Jurisdiction Act, 1947. Section 3(1) of the said Order provides that all enactments specified in parts I and II of Schedule I and all notifications, orders, schemes, rules and by-laws issued, made or prescribed under such enactments and in force in the province of Bombay immediately before the coming into force of this order shall extend to and be in force in the Baroda State subject to any amendments to which the said enactments are for the time being generally subject in the Province of Bombay. Then again Sub-section (ii) of the said Section 3 refers to the enactments, notifications, orders, schemes, rules etc. Then Sub-section (iii) states, the enactments (including rules) specified in Schedule II and all other enactments not repealed under paragraph 5 and the notifications, orders, schemes rules and by-laws issued, made or prescribed there under and in force in the Baroda State immediately before the coming into force of this order shall continue in force in the territories of the said State and shall have application until altered, repealed or amended by competent authority. Then in Section 3, dealing with the repeal of enactments in the Baroda State, a separate mention is made of the 'enactments (including rules)' as also to all orders, notifications, rules etc. made under any enactment repealed. All throughout this order, it is manifest that the Legislature has made a specific distinction between 'enactments' and rules, notifications etc. made under such enactments. It is clear therefore from this piece of legislation that the word 'enactment' in legislative parlance includes the Act of the Legislature and does not include notifications, rules etc. made under the Act.

18. Mr. Zaveri, the learned advocate on behalf of the opponents therefore rightly submitted that the authority under which the Central Government extended the Rent Act to the District of Kutch had no authority to extend under the powers given under Section 2, any notifications, rules, orders, etc. made under any enactment, and if such rules, enactments by laws, orders etc. made under such enactments when intended to be extended also to Kutch area will have to be extended by exercise of the powers under the various enactments by the authority prescribed therein. Consequently, notifications issued by the Bombay Government cannot be said to have brought into force in Kutch area under the powers vested under Section 2 of the Part C States (Laws) Act, 1950.

19. That takes me to the second ground urged on behalf of the petitioner. The words: 'as at present in force' of course have to be given its due import and cannot be ignored or overlooked but I do not agree that given its proper meaning they are meant to include at least the notifications that amount to delegated legislation. These words are used because the Rent Act of 1947 had been amended from time to time before 1951 and in order to indicate and emphasize that what is extended is not the Act No. 57 of 1947 when it was first enacted but as it is in force on the date of the notification with all the amendments made therein. If these words were not used, it is possible to say that it only meant Act No. 57 of 1947 as it came on the statute book, has been extended. I therefore see no merit in this second submission also.

20. The last stand of the petitioners before me was to rely upon the decision of Divan J. in Civil Revision Application No. 386 of 1961 decided on 10th August 1966. In the said case the plaintiff alleged that the first defendant had either sub-let or assigned the premises in the suit to the second defendant in contravention of the provisions of law. The suit premises were situate in Amreli town in Amreli District which once formed part of the former state of Baroda. It was a conceded fact that the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 were applied to Amreli. The appellate Court from which the Revision Application was filed had held against the defendant so far as the question of assignment was concerned on the ground that the second defendant was not protected by the provisions of the Act. It is then observed by my learned brother Divan J. that curiously enough the learned District Judge did not consider the question from the point of view of the provisions of Section 15 of the Act and the notification issued by the Government of Bombay under the provisions of that section. Dealing with this part of the law the learned Judge has observed that under Section 15 of the Act it has been provided that notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of the Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. Then he refers to the introduction of the proviso to Section 15(1) by the amending Act No. 36 of 1948 and then he refers to the publication of the notification. The learned Judge has then observed that it was clear that with effect from the date when Part II of the Act was extended, to Amreli, the notification issued by the Government of Bombay on May 12, 1948 also extended to Amreli and consequently the document which was executed on November 7, 1957, was a valid document and effectively assigned the tenancy rights from the first defendant to the second defendant.

21. Relying upon these observations, Mr. Mankad tried to urge that this is a decision of this Court whereby it has been held that no sooner the Act was extended to Kutch, automatically the notification that was issued and was in force in Bombay on the date when the Act was extended would also be extended to the Kutch area. Now at first sight it may appear that what is urged by Mr. Mankad is correct. But on a little scrutiny of the position of law and the facts concerned in the said revision application, it is manifest that the said decision is correct so far as the Baroda territory is concerned and that the learned Judge has not made any specific reference to the Baroda State (Application of Laws) order, 1949 to which I have already made a reference. The basis of his conclusion is to be found in the provisions of that Particular order and that the observations were never meant to lay down any general principle of law. If we turn to the said Baroda State (Application of laws) order, 1949, Section 3 clearly states, not only enactments, specified in parts I and II of schedule I to that order but also notifications, orders, schemes, rules and by laws issued, made or prescribed under such enactments and in force in the Province of Bombay immediately before the coming into force of the Order also shall extend to and be in force in the Baroda State subject of course to any amendments to which the said enactments are for the time being generally subject to in the Province of Bombay. This provision clearly lays down that not only the enactments but notifications, rules etc. were also applied to the area where the Act itself was extended. As I have already pointed out such is not the case with regard to Kutch area. Therefore this decision can be of no help whatever to the petitioners.

22. At the end of is arguments Mr. Mankad appealed to the Court to give some reasonable time to the petitioner to vacate the premises and hand over possession. The facts show that the petitioners have been in possession for about ten years and the Courts below have held that the plaintiffs do not require the premises for their personal bona fide requirement. Under the circumstances, it would be fair and just to give some time to the defendant to hand over peaceful possession to the landlord and under the facts of the case I order that the petitioner-defendant shall vacate and handover peaceful possession to the landlord on the 1st of April 1970 subject to the condition that he has carried out the condition made in the order passed on 30th of June 1966 by this Court for the deposit of the amount during the pendency of the stay obtained and shall also continue to pay mesne profits as and when they accrue due till the time of handing over possession.

The result is that the Revision Application cannot be sustained and is rejected with costs.


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