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Atmaram Vs. Madanlal Rathi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberMisc. Writ No. 90 of 1951
Judge
Reported inAIR1953Raj123
ActsRajasthan Premises Control of Rent and Eviction Act, 1950 - Sections 2, 4, 27(2) and 30; General Clauses Act, 1897 - Sections 5; India (Adaptation of Existing Indian Laws) Order, 1947 - Sections 5(1); United State of Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948 - Sections 30
AppellantAtmaram
RespondentMadanlal Rathi and ors.
Appellant Advocate Kan Singh, Assistant Government Adv.; Chhandmal, Adv.
Respondent Advocate B.B. Desai, Adv.
DispositionApplication allowed
Cases ReferredHarla v. State of Rajasthan
Excerpt:
.....authority of the united state shall vest in the raj pramukch, who may make and promulgate ordinance for the peace and good government of the state or any part thereof, and any ordinance so made shall have the like force of law as an act passed by the legislature of the united state. it is not right that we should allow an order like the one passed by the rent controller on 28th september 1951, to exist when it is clearly without jurisdiction, 12. we, therefore, allow this application, andquash the order of the rent controller, dated28th september 1951. in view of the peculiar circumstances of the case, and considering that thepoint on which the applicant has succeeded wasnot taken by him in his application, we orderparties to bear their own costs of these proceedings......for issue of a writ of certiorari or mandamus against the additional commissioner udaipur, and the rent controller, udaipur.2. the case of the applicant is that he took a shop on lease from shyamlal who has also been made a party to his application. shyamlal made an application under the (former) united state of rajasthan buildings (lease and rent control) ordinance no. 22 of 1948 before the rent controller, udaipur, on 9th december 1950. that application was decided on 28th september 1951, by which date the rajasthan premises control of rent and eviction act (17 of 1950) had come into force. the applicant filed an appeal before the commissioner, as provided in the (former) united state of rajasthan buildings (lease and rent control) ordinance (no. 22) of 1948. he also took the.....
Judgment:

Wanchoo, C.J.

1. This Is an application by Atmaram under Article 226, Constitution of India for issue of a writ of certiorari or mandamus against the Additional Commissioner Udaipur, and the Rent Controller, Udaipur.

2. The case of the applicant is that he took a shop on lease from Shyamlal who has also been made a party to his application. Shyamlal made an application under the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance No. 22 of 1948 before the Rent Controller, Udaipur, on 9th December 1950. That application was decided on 28th September 1951, by which date the Rajasthan Premises Control of Rent and Eviction Act (17 of 1950) had come into force. The applicant filed an appeal before the Commissioner, as provided in the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. 22) of 1948. He also took the precaution of filing an appeal before the District Magistrate under Section 22 of Act 17 of 1950. The appeal before the Commissioner was heard by the Additional Commissioner who, however, held that he had no jurisdiction to hear the appeal and returned it for presentation to proper authority on 10th December 1951. The appeal, which was pending before the District Magistrate, was not decided up to 21st December 1951, when the present application was made in this Court. It was decided later and the District Magistrate held that he had no jurisdiction to hear the appeal. The applicant's contention is that the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. 22) of 1948, gave him the substantive right of appeal against the order of the Rent Controller. That right could not be, and has not been, taken away by the Rajasthan Act No. 17 of 1950, and therefore his appeal should be heard by some authority, and he should not be told, both by the Commissioner who was the authority under the (former) United state of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. 22) of 1948, and by the District Magistrate who is now the Appellate Authority under the Rajasthan Premises Control of Rent and Eviction Act (No. 17) of 1950, that neither of them can hear the appeal.

3. Before we decide the question as to which is the proper forum for hearing the appeal in this case, we have to decide which law was in force on 9th December, 1950 when Shyamlal made his application before the Rent Controller, it is contended that the law in force was Ordinance No. 22 of 1948, and not Act 17 of 1950. That Assistant Government Advocate, however, contends that Act 17 of 1950 had come into force on 28th November 1950. Section 2 of that Act provides that certain sections shall come into force at once, while others shall come into force with effect from such date as may, from time to time, be notified by the Government in the Rajasthan Gazette. Section 30 is one of the sections which is provided as coming into force at once. The other provisions of the Act, which were to come into force on Notification by the Government, were in this particular case notified on 16th February 1951, to apply to the town of Nathdwara from which this case comes. Section 30 of Act 17 of 1950 reads as follows:

'The United State of Rajasthan Buildings (Lease and Rent Control) Ordinance 1948, the Matsya Premises (Rent Control) Ordinance, 1948, the Jaipur Rent Control Order, 1947, the Marwar House Rent Control Act, 1949, the Sirohi State Rent Restriction Act, 3944, and other corresponding laws of the Covenanting States dealing with the control of rents and evictions shall be repealed with effect from the date on which this section comes into force:'

There is a proviso which makes the usual provision that anything done or action taken before such date under the repealed law shall, until varied or superseded under the new Act, con-tinue and be deemed to have been done or taken in 'pursuance of the new Act as if it was then in force.

4. It is urged that Section 30 is provided as coming into force at once under Section 2, and as His Highness the Rajpramukh made Act 17 of 1950 on 28th November 1950, the repealing section came into force from 28th November 1950, and the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. 22) of 1948 was not in existence on 9th December 1950, when Shyamlal made his application. Therefore, Section 27 (2) of Act 17 of 1950, which applies to pending applications, would not apply to this case, and the Rent Controller, who purported to act under Section 17 (2) and treated it as a pending case, and followed the law under the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. 22) of 1948, had no jurisdiction to pass the order of eviction of the applicant which he did.

5. The reply to this argument, is that Act 17 of 1950 was published, for the first time, in the Rajasthan Gazette on 23rd December 1950. On that very date, certain towns were notified to which the rest of the provisions of the Act were applied by the Government under Section 2. Nathdwara, of course, was not in that list, and the Act was applied to Nathdwara on 16th February, 1951. It is urged that as there was no legislature in Rajasthan when Act 17 of 1950 was passed, it should be deemed to have come into force on 23rd December 1950, when it was first published in the Rajasthan Gazette. If this view is correct, the former Act would be in force on 9th December 1950.

6. We are, however, of opinion that the view urged by the Assistant Government Advocate is correct, and Act 17 of 1950 came into force on the 28th November, 1950, when it was made by His Highness the Raj Pramukh. We may in this connection refer to our decision, dated 1st May 1952, in -- 'Surajmal v. The Rajasthan State', Civil Misc. Writ Appln. No. 65 of 1951. In that case, the question arose whether Ordinance 16 of 1949 came into force on 9th September 1949, when it was promulgated by His Highness the Raj Pramukh, or on 19th September 1949, when it was, for the first time, published in the Rajasthan Gazette. We came to the conclusion 'that that Ordinance must be held to have come into force on 9th September 1949, when it was promulgated by His Highness the Raj Pramukh. That Ordinance like Act 17 of 1950 provided that the provisions of the General Clauses Act, 1897, of the Central Legislature shall 'mutatis mutandis' apply, so far as may be, to it. In that case, we relied on Section 5A, General Clauses Act of 1897. We now find that Section 5A had been repealed by the India (Adaptation of Existing Indian Laws) Order, 1947. The mistake took place because the copy of the General Clauses Act 1897 then before us did not mention the repeal. However, we are of opinion that that makes no difference, because the material words of Section 5A, General Clauses Act are exactly the same as in Section 5(1) which reads as follows :

'Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent --

(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and

(b) in the case of an Act of Parliament, of the President.'

This section is applied 'mutatis mutandis' to the interpretation of Act 17 of 1950 by Section 4 of that Act. In Article 385 of the Constitution, it is provided that until the House or Houses of the Legislature of a State specified in Part B of Schedule 1 has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified. There was no legislature in Rajasthan and before the Constitution came into force on 26th January 1950, laws used to be framed in the shape of Ordinances under Article X(3) of the Covenant by which the United State of Rajasthan was brought into existence. That Article is as follows:

'Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukch, who may make and promulgate Ordinance for the peace and good Government of the State or any part thereof, and any Ordinance so made shall have the like force of law as an Act passed by the legislature of the United State.'.

In view of this provision His Highness the Raj Pramukh was the legislature for Rajasthan when Act XVII of 1950 was passed. He was also the Raj Pramukh whose duty it was under the Constitution to give assent to laws passed by the legislature. Thus the functions of the legislature and the President who gives assent to laws passed by the legislature were vested in the same person in Rajasthan, namely, His Highness the Raj Pramukh.

7. Now we turn to Section 5(1) of the General Clauses Act. That section says that where a Central Act is not expressed to come into operation on a particular day, it shall come into operation on the day it receives the assent of the President. Act 17 of 1950 does not express any particular day on which it comes into operation. That would have been so if a date had been specified in Section 2 for coming into operation of the Act. No such date has been specified, and all that is said is that certain sections shall come into force at once, and certain other sections shall come into force when the Government so notifies with respect to a particular town. Therefore, Act 17 of 1950 was not expressed to come into operation on a particular day. If it was a Central Act, it would have come into operation on the day it received the assent of the President. The provisions of Section 5 have to the applied 'mutatis mutandis' to Act 17 of 1950. This means that in place of the words 'Central Act' in that section, we have to read the 'Rajasthan Act', and in place 'of the words 'Act of Parliament' we have to read the words 'Act made by the Raj Pramukh', and in place of the 'President' we have to read the word 'Rajpramukh'. Making these changes, it follows that a Rajasthan Act, made at a time when Article 385 of the Constitution was applicable, as in this case, would come into force when it receives the assent of the Rajpramukh, if it does not express any particular date on which it is to come into operation. The Act says that certain sections will come into force at once, that is as soon as the Act is enforced. The Act comes into force as soon as it receives the assent of the Rajpramukh. We know that the Act was made by the Rajpramukh on28th November, 1950. That must, therefore, be the date on which it received his assent. That therefore is the date on which Act 17 of 1950 must be held to have come into force. The view, therefore, that we have taken in Surajmal's case mentioned above is correct, even though we have mentioned Section 5A of the General Clauses Act 1897 there, for we have arrived at the same conclusion using Section 5(1) instead.

8. Learned counsel cited General Clauses Acts of certain Part A States in this connection. It is enough to say that in those Acts, there is a specific provision that laws made would come into force on the date of publication. Those Acts, therefore, are not helpful in our case because we are governed by the General Clauses Act of 1897.

9. Our attention is also drawn to certain observations in -- 'Harla v. State of Rajasthan', AIR 1951 SC 467 which are as follows:

'The thought that a decision reached in the secret recesses of a chamber to which the public have no access, and to which even their accredited representative have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.'

These observations, however do not apply to the facts of the case before us, because we have Section 5, General Clauses Act, which provides when an Act will come into force, and it is on the interpretation of that section that we come to the conclusion that Act 17 of 1950 came into force on 28th November 1950.

10. We have now to see how this affects the position in this case. Act 17 of 1950 came into force on 28th November 1950. Section 2 provides that Section 30 shall come into force at once, and Section 30 repeals the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948, from the date it comes into force, Shyamlal's application, which was filed on 9th December, 1950, could not be under Ordinance 22 of 1948, because that Ordinance was repealed on 28th November, 1950. Therefore Section 27(2) of Act 17 of 1950 can have no application to Shyamlal's petition of 9th December, 1950. As a matter of fact, till the Government notified on 16th February 1951 that Act 17 of 1950 would apply to Nathdwara, there was no Act for control of rent and eviction in force in Nathdwara, between 28th November 1950 and 16th February 1951. Further the Notification of 16th February 1951, gave jurisdiction to Extra Magistrate Nathdwara to deal with applications under Act 17 of 1950. The Rent Controller, Udai-pur, who had decided this application treating it as a pending application under Ordinance 22 of 1948, had thus no jurisdiction whatsoever: to decide this application which was filed after Ordinance 22 of 1950 had been repealed, and it could not, therefore, be treated as a pending application under Section 27(2) of Act 17 of 1950.

11. In this view of the matter it is not necessary to decide where the appeal would lie, for this is a clear case where the Rent Controller, who passed the order dated 28th September 1951, had no jurisdiction whatsoever. As the case has come before us, and the Rent Controller, Udaipur, who passed the order, is also a party, we have jurisdiction to make suitable orders in the case. It is not right that we should allow an order like the one passed by the Rent Controller on 28th September 1951, to exist when it is clearly without jurisdiction,

12. We, therefore, allow this application, andquash the order of the Rent Controller, dated28th September 1951. In view of the peculiar circumstances of the case, and considering that thepoint on which the applicant has succeeded wasnot taken by him in his application, we orderparties to bear their own costs of these proceedings.


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