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Pranshankar Shankarlal Joshi and ors. Vs. Fulsinhji Kesharisinhji Parmar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 1332 of 1981
Judge
Reported inAIR1985Guj9
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 29(l); Constitution of India - Article 245; Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantPranshankar Shankarlal Joshi and ors.
RespondentFulsinhji Kesharisinhji Parmar
Appellant Advocate S.K. Zaveri, Adv.
Respondent Advocate N.S. Sheth, Adv.
Cases ReferredB. Shama Rao v. Union Territory of Pondicherry
Excerpt:
tenancy - interpretation - section 29 of bombay rents, hotel and lodging house rates control act, 1947, article 245 of constitution of india and section 47 of code of civil procedure, 1908 - dispute regarding interpretation of section 29 - whether appeal would lie against determination of question contemplated under section 47 in execution proceedings for enforcing decrees and orders under act of 1947 - section 29 (1) means as it stood on date of amendment in 1953 by way of incorporation - it should not be read as providing inclusion of future amendments - court should not read section in manner as to render it to some extent otiose - if this interpretation not put on this proviso then it will be held void - appeal would lie against determination of question under section 47 in execution.....i.c. bhatt, j.1. in this reference, a question of far-reaching importance as to the interpretation of a proviso to s. 29 of the bombay rents, hotels and lodging house rates control act, 1947, arises for consideration. the question which is referred to this bench is whether an appeal would lie against the determination of any question contemplated under s. 47 of the civil p. c. in execution proceedings for enforcing decrees and orders under the bombay rents hotels and lodging house rates control act, 1947 (hereinafter referred to as the rent act) and the rules made thereunder.2. the relations of landlord and tenant are covered by the transfer of property act, 1882, chap.-v, ss. 105 to 117. but the provisions were found inadequate to meet the situation created by acute shortage of housing.....
Judgment:

I.C. Bhatt, J.

1. In this reference, a question of far-reaching importance as to the interpretation of a proviso to S. 29 of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947, arises for consideration. The question which is referred to this Bench is whether an appeal would lie against the determination of any question contemplated under S. 47 of the Civil P. C. in execution proceedings for enforcing decrees and orders under the Bombay Rents Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act) and the Rules made thereunder.

2. The relations of landlord and tenant are covered by the Transfer of Property Act, 1882, Chap.-V, Ss. 105 to 117. But the provisions were found inadequate to meet the situation created by acute shortage of housing accommodation. Therefore, Rent (War Restriction) Act 2 of 1918 was the first enactment brought into force for controlling the rent and housing accommodation. It came into force in the Bombay Presidency on April 10, 1918 and remained in force up to Dec. 31, 1925. Thereafter on the expiry of Bombay Act 2 of 1918, upto 1939, the relations of landlord and tenant were governed by the provisions of the T. P. Act. In 1939, the Bombay Rent Restriction Act, 16 of 1939 was enacted. It came into force on June 19, 1939 and remained in force upto Mar. 31, 1948. After the advent of the World War IL Bombay Rent Restriction Order, 1942 was made in exercise of the powers conferred by Defence of India Rules. 19-19. Separate Order namely the Bombay Storage Accommodation Rent Restriction Order of 1942 and the Hotels and Lodging Houses Control Order, 1942, were also framed. The provisions of these Orders, with certain modifications, were enacted by the Bombay legislature, in the Bombay Rents, Hotels and Lodging House Rates (Control) Act 7 of 1944, which came into force , on 12th May 1944 and was made applicable on different dates in different areas. This Act did not apply to the business premises. The Bombay Act. 15 of 1939 and the Bombay Act 7 of 1944 both were repealed by S. 50 of the present Act, which apparently, recasts in some measure the provisions of the earlier Acts and .provides for a large number of matters between the landlords and tenants.

3. The Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, was enacted on 19th Jan. 1948 and came into force on 14-2-19-M. The purpose of the Act is indicated by its preamble to wit 'Whereas it is expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions'. Part-11 of the Act applies to premises which are let for specific relevant portion of which (Clause 17) purposes by a landlord to his tenant. Ss. 7 reads as under to 11 regulate the rents and permitted increase which a landlord may recover from his tenant; Ss- 12, 13, 16 and 17 regulate the relations of landlord and tenant so far as eviction is concerned. Ss. 23 and 24 relate to the rights and obligations of landlord and tenant with respect to the repair of premises and supply of essential services. Ss. 23 and 27 relate CODE OF CIVto collection of rent. S. 22 is regarding the jurisdiction of the Court and S. 29 provides for appeal. Part-III regulates the relations of lodgers and lodging house-keepers with respect to eviction of lodgers and rates for lodging and other incidental services. This statute is within the express powers of the State Legislature. S. 29 of the Rent Act is the relevant section for the purpose of the present case. S. 29, as it stood prior to its amendment in 1953. reads as under:

'29 (1) Notwithstanding anything contained in any law, an appeal shall lie-

(a) in Greater Bombay, from a decree or order made by the Court of Small Causes, Bombay, exercising jurisdiction under S. 28, to a bench of two Judges of the said Court which shall not include the Judge who made such decree or order:

(b) elsewhere, from a decree or order made by a Judge of the Court of Small Causes established under the Provincial Small Cause Courts Act, 1887, or by the Court of the Civil Judge deemed to be the Court of Small Causes under Clause (c) of sub-section (2) of S. 28 or by a Civil Judge exercising such jurisdiction, to the District Court,

(I A) Every appeal under sub-section (1) shall be made within thirty days from the date of the decree or order, as the case may be;

Provided that in computing the period of limitation prescribed by this subsection the provisions contained in Ss. 4, 5 and 12 of the Limitation Act, 1908 shall, so far as may be apply.

(2) No further appeal shall lie against any decision in appeal under sub-section (1).'

This S. 29 was amended by the Bombay Rents, Hotel and Lodging House Rates Control (second Amendment) Act. 1953, relevant portion of which (Clause 17 reads as under :

' In S. 29 of the said Act-

to sub-section ( 1), the following proviso shall be added. namely-

'Provided that no such appeal shall lie f rom-

(i) a decree or order made in any suit or proceeding in respect of which no appeal lies under the Code of Civil Procedure, 1908;

(ii).....

(iii).....

(iv) ...........

The whole controversy centres round the interpretation of the aforesaid proviso ( 1) to S. 29(1) of the Rent Act.

4. Now in order to answer the question, it is necessary to state a few relevant facts. A Civil Suit No. 51/75 was instituted in the Court of the Civil Judge (J. D.) Santrampur, against the p I resent petitioner No.1 and deceased Jaswantlal Shankerlal Joshi for recovery of possession of the demised premises. Decree for possession was passed in favour of the landlord-opponent herein. Execution Darkhast No. 31/79 was filed and the learned Civil Judge ordered to issue possession warrant under 0. 21 R. 35 of the Civil P. C. Against the said order, the judgment debtor preferred an appeal, being Regular Civil Appeal No. 4/80 in the District Court, Panchmahals at Godhra. The learned Joint District Judge, who heard the appeal, came to the conclusion that the appeal being against the order passed in execution proceedings under S. 47 of the Civil P. C., is not maintainable and dismissed the appeal. Against the said order, the present Civil Revision Application No. 1332 of 19h 1 has been filed before this Court. The Civil Revision. Application came up for hearing before a Division Bench of this Court on 14-9-1982. Before the Division Bench, the above mentioned question arose and the Division Bench referred the said question to the larger Bench. This is how, this matter is before this Bench.

5. The learned advocate Mr. S. K. Jhaveri for the. petitioner submitted that in view of the fact that the right of appeal was granted under S. 29(1) of the Rent Act and the proviso merely sought to carve out an exception by providing that no appeal shall lie from a decree or order made in any suit or proceeding in respect of which no appeal lies under the Civil P. C., 1908, the Court, for the purpose of determining whether by virtue of the proviso the right of appeal is lost, must confine itself to the position that obtained under the Civil P. C., 1908, on the date it was incorporated i.e. of 1953. The definition of 'decree' in Civil P. C., 1908, as it stood in 1953, reads as follows :

' 'decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 of S. 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default'.

Thereafter the definition of 'decree' came to be amended by Amendment Act, 1976. Now the definition of 'decree' reads as under:

' 'decree' means the formal expression of an adjudication which, so far as regards the Civil expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47, of S.144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

Mr. Jhaveri submitted that the subsequent amendment of 1976 in the Civil P. C., 1908, cannot take away the right which vested in the judgment-debtor, and an appeal would still be competent. He further submitted that the proviso ( 1) to sub-section (1) of S. 29 of the Rent Act, has to be read, as if it incorporated the provision regarding appeals from decrees under the Civil P. C., 1908 as existing when the said proviso to S. 29 of the Rent Act was engrafted in the Rent Act and not the subsequently amended provision of Civil P. C. regarding appeals from decrees and orders, as amended in 1976, or as may be amended from time to time.

6. Now, on the question whether reference to Civil P. C. in the proviso (1) to S. 29(1) of the Rent Act and the Rules made thereunder, is by way of reference, citation or incorporation into the Rent Act catena of authorities have been cited at the Bar, but it will be profitable to refer to some of them, which are relevant for deciding the question referred to us.

The case of Collector of Customs, Madras v. Nathalal Sampathu Chetty, AIR 1962 SC 316, is cited before us. In that case, the Officers of the Preventive Section of the Customs Department seized from one Nandgopal four blocks of gold weighing in all about 1000 tolas. Inquiries were made as to the source from which Nandgopal obtained the gold. The Collector of Customs being prima facie of the view that the gold seized had been smuggled, issued notice to the respondent to show cause why the said gold should not be confiscated and ultimately the Collector of Customs had held that the onus which had been caused upon the respondent by S. 178-A of the Sea Customs Act was not discharged and ordered confiscation of the said gold. Writ Petition was filed for quashing the said order, which was allowed by the High Court of Madras. Another Writ Petition was also filed for the return of the gold which was confiscated. Both these Writ Petitions were heard together. The High Court held that S. 178-A of the Sea Customs Act was void under Art. 13 of the Constitution. It was further held that even if S. 178-A were valid the condition precedent for invoking the rule as to the burden of proof prescribed by the Section had not been complied with and ultimately held that the order of confiscation was invalid. Besides, the High Court was of the view that S. 178A of the Sea Customs Act could not be invoked in adjudicating a contravention of a Notification under the Foreign Exchange Regulation Act which imposed restrictions on the import of gold. Though on these conclusions the order of the Collector of Customs confiscating the gold was set aside, the High Court held that the respondent was not entitled to an order for the return of the gold, but only to a direction to the Collector to hear and determine the question about the gold seized being smuggled gold without reference. to the rule as to onus of proof enacted by S. 178-A. Against this, the Collector of Customs, Madras, went to Supreme Court of India. The Supreme Court, in that case held that there was no incorporation of the Sea Customs Act, 1978 in S. 23-A of the Foreign Exchange Regulation Act, 1947. A distinction has also been drawn between a mere reference or citation of one statute into another and incorporation. In the former case a modification repeal or re-enactment of the statute that is referred gets automatically attached to the referring statute but in the latter case any change in the incorporated -statute by way of amendment or repeal has no repercussion on the incorporating statute. It has been observed by the Supreme Court in that context as under:

'The effect, therefore, of S. 23-A is to treat the text of the notification by the Central Government under S. 8(l) as if it had been issued under S. 19 of the Sea Customs Act with the title and the recital of the source of power appropriate to it by Abe creation of a legal fiction. It would be obvious that in the context and on the language here' employed, if S. 19 of the Sea Customs Act were repealed,' there would no longer be any legal foundation for invoking the penal provisions of the Sea Customs. Act to a contravention of a notification under S. 8(l) of the Foreign Exchange Regulation Act'

The Supreme Court has further observed-

'A comparison of these formulae with the text of S. 23-A shows that the reference in it to S. 19 of the Sea Customs Act is merely for rendering notifications under the named provisions of the. Foreign Exchange Regulations Act to operate as notifications under the Sea Customs Act and that it cannot have the effect of incorporating the relevant provisions of the earlier Act into the Act of 1947, so as to attract the rule formulated by Brett L J. in (1881) 8-QBD 63 already quoted.'

The Supreme Court has next observed-

'It was for this, among other reasons, that the Judicial Committee held that rights of appeal created by amendments effected to the Land Acquisition Act subsequent to the enactment of the Local Act were not attracted to the incorporated provisions in the 'Local Act'. We consider no analogy between the provisions ' held to be incorporated in Calcutta Improvement Trust, Act, 1911, dealt with by Privy Council and S. 23-A of the Foreign Exchange Regulation Act now under discussion. We hold therefore that when a notification issued under S. 8(l) of the Foreign Exchange Regulation Act is deemed for all purposes to be a notification issued under S. 19 of the notification attracts to it each and every provision of the Sea Customs Act which isin force at the date of the notification (sic) (contravention?)'

In the case of New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise, Allahabad : 1978(2)ELT393(SC) , three contentions were raised The first was that S. 12 of the Central Excise and Salt Act, 1944, was void as the powers delegated to the Central Government by the legislature were excessive and beyond permissible limits. The second point was that the Sea Customs Act, 1887, having been repealed it was not open to the Central Government under S. 12 of the Act to apply S. 105(l) of the Customs Act, 1962, to the Act and the notification dt. May 4, 1963, by which this was done was illegal and ultra vires. The third was that the search and seizure made by the respondents under the impugned authorisation dt. Aug. 11, 1968, and the authorisation itself were not in accordance with the provisions of S. 105 of the Customs Act, 1962. On the first point, it was held by the Supreme Court that that contention was purely of academic interest in the case. It was further held that no question was involved of delegation either of any essential legislative functions ,or any change of legislative policy. On the second point, it was held that the notification issued under S. 12 of the Act after the enactment of Customs Act, 1962, the previous notification under the Sea Customs Act 1878 stood superseded and no question survived with regard to the validity of the notification issued in 1963 and amended in 1965. On the third point, no merit was found in the contention and it was rejected.

In the case of State of Madhya Pradesh v. M. V. Narasimhan, AIR 19755, SC 1835, the Supreme Court was considering the question whether the amendment of S. 21 of the Penal Code by the Criminal Law (Amendment) Act, 1958, Was also applicable for purposes of the Prevention of Corruption Act, 1947, which by S. 2 incorporates the definition of 'Public Servant as contained in S. 21 of the Penal Code. It was held that the two Acts were supplemental to each other and therefore the amendment Act was applicable to amend the definition of 'Public Servant' incorporated in the Prevention of Corruption Act. In para-10, the Supreme Court observed as under:

'...... that it may not be possible to hold that the Act and the Penal Code were statutes in pari materia. It would appear that the Act is a completely self contained statute with its own provisions and has created a specific offence of criminal misconduct which is quite different from the offence of bribery as defined in the Penal Code. Both these statutes have different objects and create offences with separate ingredients. No authority has been cited before us in support of the provision that the Act namely the Prevention of Corruption Act and the Penal Code are statutes in pari materia so as to form one system.'

In para-12, the Supreme Court observed-

'.......We have already indicated that the object of the Act was to eradicate corruption from various levels either in Government services or in services under the Corporation or Government companies. The Penal Code no doubt creates offences like those mentioned in Ss. 161 and 165 of the Code but they were not found sufficient to cope with the present situation and the expanding needs of the nation. In these circumstances, it was considered necessary to evolve a quick expeditious and effective machinery to destroy the evil of corruption existing in any form. If therefore the Penal Code with the same object enlarged the definition of S. 21 by adding the twelfth clause by virtue of the Criminal Law (Amendment) Act, 1958, and the Anti Corruption Laws (Amendment) Act, 1964, there is no reason why the extended meaning to the provision of S. 2 of the Act as borrowed from S. 21 of the Penal Code be not given to that section.'

In-paras 13 and 14, authorities have been considered. In para 16, it has been observed as under:

'On a consideration of these authorities, therefore, it seems that the following proposition emerges:

Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:

(a) where the subsequent Act and the previous Act are supplemelital to other.

(b) where the two Acts are in part material;

(c) where the amendment in the previous Act if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and

(d) where the amendment of the previous Act. either expressly or by necessary intendment, applies the said provisions to the subsequent Act.'

In the case of Bajya v. Smt. GopikabaL AIR 1978, SC 793, the expression personal law referred to in S. 151 of the M. P. Land Revenue Code (1954) was under consideration. In para-26, it is observed as under:-

'The questions posed above turn on an interpretation of the language of S. 151. There are no words in that section or elsewhere in the Code, which limit the scope of the expression 'personal law' to that prevailing on Feb. 5, 1955. On the contrary, the words on his death used in S. 151 clearly show that the legislative intent was that 'personal law' as amended upto the date on which the devolution of the tenure holder's interest is to be determined shall be the rule of decision.'

In para 27, it is observed that-

'Broadly speaking, legislation by referential, incorporation falls in two categories: First where a statute by specific reference incorporates the provisions of another statute as of the time of adoption, Second where a statute incorporates by general reference the law concerning a particular subject as a genus. in the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent ' amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus

'A statute which refers to the law of a subject generally adopts- the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted' (Vide Sutherlands Statutory Construction, Third Edition, Art. 5208, P-5208). Corpus Juris Secundum also enunciates the same principle in these terms.

' ..Where the reference in an adopting statute is to the law generally which governs the particular subject and not to any specific statute or part thereof .... the reference will he held to include the law as it stands at the time it is sought to be applied ' with all the changes made from time to time at least as far as the changes are consistent with the purpose of the adopting statute.-

In para-28. it is observed that-

'Construed in accordance with the above principle the expression 'personal law' referred to in S. 151 of the Code comprehends the Hindu Succession Act, 1956, which will undoubtedly govern the inheritance to the'estate7 of Sm Sarji who died on Nov. 6, 1956, much after the coming into force of that Act. If we can say so with due deference, the view taken on this point by the Bombay High Court in Smt. Indubafs case AIR 1906 Bom 64 and by the Madhya Pradesh High Court in Kumari Ramlalfs case : AIR1968MP247 and in Nahar Hirasingif s case : AIR1974MP141 is correct.'

In the case of Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, the incorporation of S. 55 of the Monopolies and Restrictive Trade Practices Act, 1969, was under consideration. In that case, the question was that the grounds specified in the then exiting S. 100 C. P. C. were incorporated in S. 55 and the substitution of the new S. 100 did not affect or restrict the grounds as incorporated. S. 55 is an instance of legislation by incorporation and not legislation by reference. S. 55 of the Monopolies and Restrictive ' Trade Practices Act, 1%9, provides for an appeal to the Supreme Court against the orders of the Monopolies and Restrictive. Trade Practices Commission on 'one or more of the grounds specified in S. 100 of the Civil P. C., 1908'. S. 100 of the Civil P. C. was substituted by a new section in 1976 which narrowed the grounds of appeal under that section. In construing S. eal under S. 55. In para 9, it is. observed as under:

'We have no doubt that S. 55 is an instance of legislation by incorporation and not legislation by reference. S. 55 provides for an appeal to this Court on 'one or more of the grounds specified in S. 100.' It is obvious that the legislature did not want to confer an unlimited right of appeal but wanted to restrict it and turning to S. 100 it found that the grounds there set out were appropriate for restricting the right of appeal and hence it incorporated them in S. 55. The tight of appeal was clearly intended it) be limited to the grounds set out in the then existing S. 100. Those were the grounds which were before the legislature and to which the legislature could have applied its mind and it is reasonable to assume that it was with reference to those specific and known grounds that the legislature intended to restrict the right of appeal. The legislature could never have intended to limit the right of appeal to any ground or grounds which might from time to time find place in S. 100 without knowing what those grounds were. The grounds specified in S. 100 might be changed from time to time having regard to the legislative policy relating to second appeals and it is difficult to see any valid reason why the legislature should have thought it necessary that these changes should also be reflected in S. 55 which deals with the right of appeal in a totally different context. We must, therefore, reject the preliminary objection raised on behalf of the respondents against the maintainability of the present appeal.'

In the case of Western Coalfields Ltd. v. Spl. Area Development Authority : [1982]2SCR1 , the facts were that the Special Area Development Authority for the Korba Special Area was constituted under S. 65 of the M. P. Nager Tatha Gram Nivesh Adhiniyam Q3 of 1973). That Act was passed by M. P. Legislature. S. 68 of the said Act which prescribes the function of the Development Authority, by Cls. (v) and(vi) lays down that the Development Authority shall make provision for the municipal services and municipal management of the Special Area. S. 69 by Cls. (c) and (d) of the said Act confers upon the Development Authority powers for the purpose of municipal administration and for the purpose of taxation. These two clauses of S. 69 and Cls (v) and (vi) of S. 68 were inserted in their present shape by Ord. 26 of 1975, which came into force on Feb. 27, 1976. The Ordinance was replaced by the M. P. Nagar Tetha Gram Nivesh (Sanshodhan) Adhiniyarn 1976 (6 of 1976). Since there was not Municipal Corporation or Municipal Council in the Korba Special Area prior to the constitution of the Development Authority, the Government was required under sub-clause (b) of S. 69 to direct whether the M. P., Municipal Corporation Act, 1956 or the M. P. Municipaliti6s Act 1961 shall apply to the Korba Special Area for the purposes of Cls. (v) and (vi) of S. 68 and Cls. (c) and (d) of S. 69. Such a direction was first issued by Notification dated Jan. 28, 1976 by which the Development Authority Korba was directed to exercise the powers and perform the functions of a class I Municipality constituted under the 114 P. Municipalities Act, 1961. This Notification became effective from 27-2-1976 from which date Ordinance No. 26 of 1975 was made effective. By another Notification dt. 15-3-1977 the Development Authority, Korba, was directed under the aforesaid Cls. of Ss. 68 and 69 to exercise the powers and perform the functions under the M. P. Municipal Corporation Act, 1956. By a Notice issued under S. 65 of the Act of 1973 and by another Notice issued under S. 164(3) of the M. P. Municipalities Act, 1961, the Chief Executive Officer of respondent No. I - the Special Area Development Authority called upon the Company to pay property tax for the year 1976-77. Thereafter the company was further called upon to pay property tax for the year 1977-78. The Company disputed its liability to pay the aforesaid tax on the ground principally that no tax was leviable on its property since the Company was owned wholly by the Government of India and that respondent No. 1 was estopped from levying the property tax by reason of the agreement of 1976. Having failed to persuade the respondent 1 - Special Area Development Authority, the Company filed a Writ Petition in M. P. High Court which was dismissed. The matter thus reached the Supreme Court of India. The first contention of the learned Attorney General was that respondent I could exercise only such powers to levy property tax as the Municipal Corporation or the Municipal Council had under the M. P. Municipal Corporation Act, 1956 or the M. P. Municipalities Act, 1961 as these Acts stood on Feb. 27, 1976, when clause (d) was-inserted in its present form in S. 69 of the Act of 1973. It was argued that the provisions conferring powers of taxation under the aforesaid two Acts must be taken to have been incorporated in S. 69(d) of the Act of 1973 and any, subsequent change in those provisions by amendment of the two Acts could not be availed of by respondent 1. The answer. To this contention will depend mainly upon whether the provisions of the Municipalities Act and the Municipal Corporation Act were incorporated into the Act of 1973by its S. 69(d). The Supreme Court. in that context in paras 16 and 17 observed as under :

'Applying these principles, we are of the opinion that in the instant case, subsequent amendments made to the Municipal Corporation Act and the Municipalities Act will also apply to the power of taxation provided for in S. 69(d) of the Act of 1973. The Act of 1973did not by S. 69(d)-incorporate in its true signification any particular provision of the two earlier Acts. It provides that for the purpose of, taxation, the Special Area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the M. P. Municipal Corporation Act, 1956 or the M.P. Municipalities Act, 1961. The case, therefore, is not one of incorporation but of mere reference to the powers conferred by the earlier Acts. As observed in Nathella. Sampathu Chetty : 1983ECR2198D(SC) there is a distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another so much so that the repeal of the former leaves the latter wholly untouched. S. 69(d) of the Act of 1973 must accordingly be read to mean that respondent I shall have all the powers of taxation which a Municipal Corporation or a Municipal Council has for the time being, that is to say, at the time when respondent I seeks to exercise those powers.'

In para 17 it is observed that-

'The Act of 1973 does not provide for any independent power of taxation or any machinery of its own for exercising the power of taxation. It rests content by pointing its finger to the provisions contained in the two Municipal Acts. The three Acts are therefore, supplemental, from which it must follow that amendments made to the earlier Acts after the enactment of S. 69(d) shall have robe read into that section. Without recourse to such a construction, the power of taxation conferred by that section will become ineffectual. A reading of the reference to the two earlier Municipal Acts as a reference to those Acts as they stand at the time when the power of taxation is sought to be exercised by respondent No. 1. will not possibly cause repugnancy 1985 between the two earlier Acts on one hand and the Act of 1973 on the other, nor indeed will it cause any confusion in the practical application of the earlier Acts because the Act of 1973 does not contain any independent provision or machinery for exercising the power of taxation. The first contention of the AttorneyGeneral must, therefore, fail.'

The Supreme Court held that S. 69(d) of the Madhya Pradesh Gram Nagar Tatha Gram Nivesh Adhiniyam, 1973, enacted that the Special Area Development Authority shall for the purpose of taxation have the powers which a Municipal Corporation or Council has, as, the case may be, under the M. P. Municipal Corporation Act, 1956 or the M. P. Municipalities Act, 1961. This was held to be not a case of incorporation but of mere reference and hence additional power of taxation conferred on the Municipal Corporation or Municipalities by amending the Corporation Act and the Municipalities Act became available to the Special Development Authority.

7. Keeping in the background, for the moment, the abovementioned aspect of a statute or provisions of it whether it is incorporated into another Act or whether it is by way of mere reference or citation - we my now consider another aspect of the matter. The law is well settled that when the Constitution has entrusted the task of lawmaking to a legislature, the duty of law-making must be performed by the legislature itself and the legislature cannot abdicate or efface itself. The legislature alone must perform the essential legislative function and the essential power of legislation cannot be renounced by it in favour of any other body. It may here be noted that under Art. 196, before any enactment is made, a Bill has to be originated in either House of the Legislature of a State which has a Legislative Council. Thereafter the Bill is considered and discussed. After the Bill. is passed by the Legislative Assembly of a State, it is to be presented- to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. After it is assented to, it becomes an Act. This procedure cannot be abdicated in favour of the Parliament or another legislative body or other authority. It is sufficient to attract the constitutional inhibition if them is surrender by the legislature of-essential legislative authority even in respect of a particular subject-matter of legislation in favour of another person or authority which is not empowered by the Constitution to exercise this function. A legislature cannot be permitted to shift the onus of legislation. The reason is that this high prerogative of legislation has been entrusted to the wisdom, judgment and patriotism of the legislature and not to those of other persons and the legislature will act ultra vires if it undertakes to renounce the trust in favour of another body instead of executing it. The legislature cannot shirk its duty by making a law that it shall not operate on its allotted field but somebody else will operate on its behalf. It is possible that a legislature refuses to perform its legislative function entrusted to it. However, mere refusal may not amount to abdication in a given case but when it not only adopts such an act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature from time to time there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to, it. It will be a case of abdication or effacement in favour of another legislature a t least in regard to that particular matter. If it would be impermissible for a State Legislature to abdicate its functions and adopt without applying its mind any future parliamentary legislation, then we should construe the present section in such a way as to render that provision constitutional. Therefore we have to examine the question as to what the State Legislature means when it refers to a parliamentary law in its enactment. Of course, the State Legislature must have applied its mind to parliamentary legislation as it stood on die date when the State legislature adopted it. But at that time what form the parliamentary legislation may take in future it cannot know. If it simply adopts whatever law is made by the Parliament from time to time without applying its mind, it will amount to abdication of its function. The legislature can necessarily delegate subsidiary or ancillary powers of legislation to delegates of its choice for carrying out the policy laid down in the enactment and leave such delegates to work out the details within the framework of the policy to suit the varying aspects and needs of a complex situation. This would be all the more necessary in modern times when the legislature is called upon to enact laws to meet the challenge of complex socio-economic problems.therefore, the legislature may within the policy laid down confer or delegate powers to adopt such policy or frame rules so as to implement the policy. Such delegation can be given. But is there is excessive delegation' it may amount to abdication or self-effacement. In several authorities a distinction between abdication and delegation of powers or what excessive delegation of legislative power may amount to abdication of its essential legislative function by the legislature has been considered, but there is a vital and fundamental distinction between the two concepts which must be noticed and constantly kept in mind.

8. Therefore, now let us consider what is the position in the present ease. In the instant case, S. 29(l) of the Bombay Rent Act, as it originally stood prior to its amendment in 1953, provides that an appeal shall lie in the cases mentioned therein. At that relevant time, there was no restriction and all decrees or orders passed under the Rent Act were made appealable. Thereafter, by amendment in 1953, the proviso was added and restriction was imposed to sub-section (1) to S. 29 of the Act to the effect that there shall not be any appeal from a decree or order made in any suit or proceedings in respect of which no appeal lies under the Civil P. C., 1908. Therefore, for the first time, a restriction was brought in by way of the said proviso (1). At that relevant time, the definition of 'decree' as provided in Civil P. C. 1908, read as under:

' 'decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and maybe either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 47 or S. 144 but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.'

Therefore, at that relevant time as per the definition of 'decree' or order as provided in Civil P. C., an appeal was competent from any order under S. 47 of the Civil P. C. and the incorporation of the relevant provisions of Civil P.C. was to that effect. What that, incorporation of the provisions of Civil P. C. into proviso (1) of S. 29(l) of the Act, could be, was to be ascertained and for that purpose, we called upon the lea med Advocate for the petitioner to put it in writing as to how and what the incorporation in the proviso at that relevant time, should be. The learned Advocate had submitted in writing, as under:

'Provided that no such appeal shall lie from-

(i) A decree passed by the Court with consent of parties.

(ii) Where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

(iii) no appeal shall lie from the order other than the following orders

(a) an order under S. 35-A of the Code; Provided that no appeal shall lie save on the ground that no order nor an order for the payment of a less amount ought to have been made;

(b) an order under S. 95 of the Code.

(c) an order under any of the provisions of the Code imposing a fine or directing the arrest or detention in the Civil prison of any person except where such arrest or detention is in execution of a decree;

(d) any order made under rules in the first schedule of the Code from which an appeal is expressly allowed by 0. XLIII, R. 1.

(iv)(a) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appealed from any error, defect or irregularity in any order affecting the decision of die case, may be set forth as a ground of objection in the memorandum of appeal;

(b) Notwithstanding anything contained in sub-section (a). where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'

Now, by the Amendment Act of 1976, in the provisions of the Civil P. C.. definition of 'decree' was modified and that amendment Would bring an additional restriction in the proviso of non-appealability provided in proviso( 1) to S. 29(1) of the Rent Act. By the amendment of 1976 of the Civil P.C., the definition of 'decree'' reads as under :

' 'decree' means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within S. 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

EXPLANATION: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

9. Now, in 1953, when the proviso (1) was introduced to S. 29(l) of the Rent Act. at; appeal was competent against the determination of any question made under S. 47, and it was appealable as if it were a decree and the orders passed under S. 47 of the Civil P. C. in execution proceedings were appealable. But, after the amendment in 1916, reference to S. 47 of the Civil P. C. is omitted by the Amendment Act. 1976. The question in the present case is, therefore. whether the mention of Civil P. C. washy way of a reference or citation or. incorporation. It is submitted that this would be legislation b y incorporation.

10. At this juncture, we may refer to a decision of the Supreme Court in 13. Sharna Rao v. Union Territory of Pondicherry. : [1967]2SCR650 . In that case the question which arose for determination was whether the Pondicherry General Sales Tax Act 1 (10 of 1965) was a valid piece of legislation, The legislative assembly of Pondicherry passed this Act in exercise of the legislative power conferred upon it under the Union Territories Act (20 of 1963) and it became law on receiving the assent of the President on 25 May 1965. Sub-sec (2) of S. I of the Pondicherry Act provided that the Act shall come into force on such date as the Government may by notification appoint and pursuant to this provision the Pondicherry Government issued a notification dt. Mar 1. 1966 bringing the said Act into force from 1st April 1965. S.2 (1) 0f the Pondicherry Act provided that the Madras General Sales Tax Act, 1959 as in force in the State of Madras immediately before the commencement of the Pondicherry Act, shall extend to and be in force in the Union Territory of Pondicherry subject to certain modifications and adaptions and S. 2 sub-sec (2) of the Pondicherry Act enacted that the Madras General Sales Tax Rules, 1959 or any other rules made or issued under the Madras Act and in force in the State of Madras immediately before the coming into force of the Pondichery Act shall apply to the Union Territory of Pondicherry. Now, in the meantime the Madras legislature had amended the Madras Act and consequently it was the Madras Act as amended upto 1st April 1966. The Pondicherry Act came into force on 25th May 1966. It was therefore, contended on behalf of the petitioners before the Supreme Court that the Pondicherry Legislature had wholly abdicated its legislative function and effaced itself by adopting whatever might be the general sales tax law of the Madras State in force at a future date when the Pondicherry Act came into force and the pondicherry Act was therefore, null and void. This contention found favour with the majority Judges of the Supreme Court and the majority Judges speaking through J. M. Shelat J gave the following reasons for accepting this contention:

'The question then is whether in extending the Madras Act in the manner and to the extent it did under S. 2(l) of the Principal Act the Pondicherry Legislature abdicated its legislative power in favour of the -Madras Legislature. It is mainfest that the Assembly refused to perform its legislative function entrusted under the Act constituting it. It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such tin Act. But when it not only adopts such an Act But also provides that the Act applicable to its territory shall be the Act amended in future by the other Legislature, there is nothing for it to predicate whit t the a me tided Ac t would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter.'

In our view, this decision is directly applicable to the facts of the present case and reliance can be placed on it for the purpose of solving the controversy in the present case. Relying on this case, in the present case, if we read that provise (i) to S. 29(l) of the Rent Act to mean as amendment of the Civil PC from time to time by the Parliament, it would be a clear case of abdication or effacement of its legislative function. The relevant proviso to S. 29(l) of the said State Legislature even till to-day has not been amended. Till the State legislature i.e. Legislative Assembly of Gujarat does not make the necessary amendment in the Rent Act and if it allows the amended provisions of Civil P C to be read into proviso (i) to S. 29(l) without considering it by shirking its duty, it would amount to its non-application of mind and abdication of its function because the State legislature of Gujarat has nowhere considered the amendment of 1976 of the Civil PC without performing its essential legislative functions. In the present case, what is to be done is that one has to read the proviso (i) to S. 29(l) of the Rent Act, to mean as it stood on the date of amendment in 1953 by way of incorporation and it should not be read as providing inclusion of the future amendments which may be made by the Parliament in the Civil P C from time to time. In fact, in order to give full effect and to make the said proviso meaningful, the said proviso (4 to S. 29(l) of the Rent Act, will have to be read in this manner only. No canon of construction permits the Court to read the section in such a manner as to render it to some extent otiose. If this interpretation is not put on this proviso, it will have to be held void and not of any effect in view of the Supreme Court judgment in B. Shama section in such ~ manner as to render it to some extent otiose. If this interpretation is not put to this proviso, it will have to be held void and not of any effect in view of the Supreme Court judgment in B. Shania Rao's case (supra). Therefore, the present case would be legislation by incorporation.

11. The learned Advocate for the respondent has cited it case of Rallis India Ltd. v. R. S. Joshi. reported in (197-3) 31 S. T. C. 261 (FB). In the aforesaid case, the question was relating to the constitutional validity of Sales Tax Act, 1956 and in that petition the orders of assesment, reassessment, collection and enforcement of payment of tax or penalty under the Central Act were challenged. The main question before the Court was for consideration as to whether the Parliament has abdicated its legislative function in favour of another legislature in enacting Ss. 6, 8, and 9. There the Court held that S. 6 can not be affected by the vice of abdication. So far as S. 6 is concerned, the Court held that it is difficult to appreciate how in the circumstances the Parliament could be said to have abdicated or effaced itself in enacting the provisions of the Central Act. In S. 9, machinery for assesment, reassesement, penalty, etc. under the Central Act, is provided. At the end, the Court came to the conclusion that it is not necessary to consider and decide the question whether S. 9(2) suffers from the vice of abdication of legislative power in so far as it has adopted the future as well as existing provisions of the general sales tax law of the appropriate state regarding levy of penalty, imposition of tax liability on transferee of, or successor, to a business and recovery of tax from third parties. In the aforesaid judgment, the Supreme Court also referred to the decision of the Supreme Court in the case of B. Shama Rao v. Union Territory of Pondicherry : [1967]2SCR650 and the Supreme Court came to the conclusion that, that decision has no application to the facts of the case and no reliance can be placed on behalf of the petitioner. Ultimately, the Supreme Court came to the conclusion that in the facts of the case, all contentions urged before it were rejected and the petition was dismissed. In our opinion, the facts of the aforesaid case are different and, therefore, this decision has no application to the facts of the present case and no reliance can be placed on behalf of the respondent. On the contrary, in our view, the case of B. Shama Rao (supra) is applicable to the instant case and we have placed reliance on it to come to the conclusion that if we read the reference to Civil PC in proviso (1) of S. 29(l) of the Rent Act as amended from time to time by the Parliament, it would be a clear case of abdication or effacement of the legislative function. Under the circumstances, we answer the question referred to as under.

12. The Civil PC 1908 mentioned in the Rent Act and the Rules made there under would be that Code as it stood in 1953 when it came to be incorporated in the Rent Act and not as amended in 1976. An appeal therefore, would lie against the determination of any question under S. 47 of the Civil PC in execution Proceedings under the Bombay Rent Act and the Rules made there under on the principle of in corporation. We accordingly answer the question referred to us. Parties to bear their own costs. This Revision Application will now go back to the Division Bench of this Court for hearing and final disposal in the light of the answer given by us.

13. Order accordingly.


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