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Nawal Mal Vs. Nathu Mal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Ref. No. 99 of 1959
Judge
Reported inAIR1962Raj190
ActsConstitution of India - Articles 246 and 254; Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 2(1), 2(2) and 5 to 26; Rajasthan Premises (Control of Rent and Eviction) Act, 1957
AppellantNawal Mal
RespondentNathu Mal
Appellant Advocate Kan Singh, Government Adv.
Respondent Advocate R.R. Chacha, Adv.
Cases ReferredState of Bombay v. F. N. Balsara
Excerpt:
- - 36 of 1956 and that, that being so, this state has legislative competence in the matter of making a law, like the one with which we are concerned, under entries nos. 6, 7 and 13 of list 3 (concurrent list of the 7th schedule of the constitution). strong reliance was placed in support of this position on a bench decision of this court in milap chand v. 7 (ii)..h (d)/57 dated the 27th november, 1957, referred to above, was perfectly valid. 7. the first case, to which we should like to refer in this connection, is mt. dashrathlal pyarelal, air 195.6 nag 268. the short question, which was decided in this case, was that the objection raised by the defendants that a notice to quit could not be sewed upon the tenants without first obtaining the permission of the rent controller, was well.....modi j.1. this reference originally came before a learned single judge and has in turn been made by him to a larger bench.2. the questions referred to this bench for answer are as follows:(1) whether section 2(i) of the rajasthan premises (control of rent and eviction) act, 1950 (act no. xvii of 1950) as amended by the amending and extending act, 1957 (act no. 34 of 1957) in so far as it applies to the cantonment area of nasirabad and section 2(2) of the said act which brings into force at once sections 1 to 4 and 27 to 31 of that act and authorises the state of rajasthan to extend the remaining provisions to such areas in that state and from such date as may from time to time be notified by the state government in the official gazette in so far as it affects the cantonment area of.....
Judgment:

Modi J.

1. This reference originally came before a learned single Judge and has in turn been made by him to a larger bench.

2. The questions referred to this bench for answer are as follows:

(1) Whether Section 2(i) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) as amended by the Amending and Extending Act, 1957 (Act No. 34 of 1957) in so far as it applies to the Cantonment Area of Nasirabad and Section 2(2) of the said Act which brings into force at once Sections 1 to 4 and 27 to 31 of that Act and authorises the State of Rajasthan to extend the remaining provisions to such areas in that State and from such date as may from time to time be notified by the State Government in the official Gazette in so far as it affects the Cantonment area of Nasirabad is beyond the legislative competence of the Rajasthan State Legislature for the reason that the subject-matter covered by the said Rajastham Act is within the exclusive competence of the Union Parliament by virtue of Article 246 read with entry 3 in list 1 of the 7th schedule of the Constitution of India so far as Cantonment Area of Nasirabad is concerned?

(2) Whether the provisions contained in Section 2(1) and (2) of the said Rajasthan Act in so far as they apply or affect the cantonment area of Nasirabad are repugnant to the provisions contained in Section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 (Act No. 46 of 1957) of the Union Parliament and void under Article 254 of the Constitution of India?

3. At the outset we may state a few facts which have culminated in this reference. The plaintiff Nawal Mal filed a suit against the defendant Nathu Lal for recovery of arrears of rent and ejectment in the Court of the Munsif, Ajmer District, Ajmer in the first instance, and thence, it was transferred to the Court Of the Munsif, Nasirabad, from whom this reference has emanated. The plaintiff is a landlord and the defendant a tenant. This suit was filed on the 1st of April, 1958. The plaintiff claimed ejectment of the defendant on the ground of default in payment of rents and further that the former required, the suit premises reasonably and bona fide for the use or occupation of himself or his family within the meaning of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act of 1950).

The Act of 1950 was made applicable to the Nasirabad cantonment area by this State from the 27th of November, 1957 by a notification dated 27th November, 1957 issued under Sub-section (2) of Section 2 of the Act of 1950, as amended by the Rajasthan Premises (Control of Rent and Eviction) Amending and Extending Act, 1957 (Act No. 34 of 1957 hereinafter referred to as the Amending Act of 1957), and published in the Rajasthan. Gazette Extra Ordinary Part 4 (A) at page 157 of the same date. Prior to this, the Delhi and Ajmer Rent Control Act No. 38 of 1952 (hereinafter referred to as the Act of 1952) was in force in the Nasirabad cantonment area. This Act was passed by the Indian Parliament and was brought into force in the Ajmer territory, in which the Nasirabad cantonment area is included, on the 9th of June, 1952.

When the case, came up for arguments before the Munsif, it was strenuously contended before him on behalf of the defendant that the Act of 1950 could not be applied to the present case which arises out of the said cantonment area, inasmuch as the legislature of this State had no legislative competence to enact any law for the regulation of house accommodation including the control of rent in the cantonment area of Nasirabad, this head of legislation falling within entry 3 in list 1 of the 7th schedule of the Constitution, and, therefore, being exclusively a union subject. It was, therefore, contended, that Section 2 of the Act of 1950 in so far as the provisions of that Act were extended thereunder to the Nasirabad cantonment area, was ultra vires of the legislature of the State, and, consequently, the notification dated the 27th November 1957, under which the provisions of this Act were extended to the area in question, was void & of no legal effect. It was further contended that that being so, the provisions of the Act of 1952 would still govern this case as the legislature of this State was incompetent to repeal the provisions of that Act qua this area.

The question as to which of the two Acts, namely, the Act of 1950 or the Act of 1952, is applicable assumes importance, as the provisions of the two Acts, as correctly stated by the learned Munsif, are substantially different in so far as the eviction of a tenant may be claimed by a landlord, whether on the ground of bona fide or personal necessity or, on the ground of default in payment of rent, and further because the central question raised in this reference is likely to have a bearing on a large number of cases pending in subordinate Courts, arising out of this part of the State. This is in short the background against which the questions referred to us arise for answer.

4. The learned Government Advocate has opposed this reference. The position taken up by him is that the Nasirabad cantonment is undoubtedly a part and parcel of the territory of the State of Rajasthan, as it now exists under the States Reorganisation Central Act No. 36 of 1956 and that, that being so, this State has legislative competence in the matter of making a law, like the one with which we are concerned, under entries Nos. 6, 7 and 13 of list 3 (concurrent list of the 7th schedule of the Constitution). Strong reliance was placed in support of this position on a bench decision of this Court in Milap Chand v. Dwarka Das, ILR (1954) 4 Raj 958 : (AIR 1954 Raj 252).

Developing his argument further, the learned Government Advocate contended that entry No. 3 of list 1 the Union list of the 7th schedule did not pertain to the regulation of control of rents in cantonment areas between private landlords and tenants, and that the control of rent envisaged in this entry Was limited to the houses acquired, requisitioned or allocated, by Government within the meaning of this entry, and, therefore, a law regulating rents between private landlords and tenants, even in cantonment areas in so far as it did not pertain to house accommodation, which had been acquired, requisitioned or allocated by the Government or by any competent authority to which this power had been delegated by it, was not a union subject of legislature at all, within the true scope of the aforesaid entry and, therefore, the State legislature was fully competent to extend the application of the Act of 1950 to the Nasirabad cantonment.

It was thus argued that, in this view of the whole matter, the encroachment, if any, on the union field was only incidental, and the Act of 1950 as amended would be fully saved on the doctrine of pith and substance. Lastly, it was argued in this connection that, on the hypothesis that the law in question correctly fell within the concurrent list, any provision of such law made by the legislature of a State which may be repugntant to the provisions, of an earlier law made by Parliament, would be saved, if such law has been reserved for the consideration of the President and has received his assent, and it was submitted that the Amending Act of 1957 had been so reserved and had also received the assent of the President, on the 23rd November, 1957 and so, when the Act of 1950 was extended with certain modifications to the Ajmer area among others (and as this area undoubtedly includes Nasirabad cantonment area) this law must be allowed to prevail in that area and could not be said to be ultra vires of the legislature of this State, and the notification No. F. 7 (ii)......H (D)/57 dated the 27th November, 1957, referred to above, was perfectly valid.

5. The central question which emerges for decision, in these circumstances, is: what is the true import and scope of entry No. 3 of list 1 of the 7th schedule, and whether a law relating to control of rents in a cantonment area even between private landlords and tenants falls within the scope of this Act? Entry No. 3 of list 1 of the 7th schedule reads as follows:

'Delimitation of contonment areas, local self-government in such area, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas'.

6. We shall now refer to a few decided cases in which the meaning and scope of this entry have come up for consideration.

7. The first case, to which we should like to refer in this connection, is Mt. Ahmadi Begum v. District Magistrate, Agra, AIR 1951 All 830. In this case, the District Magistrate Agra requisitioned a house under Section 3, U. P. (Temporary) Accommodation Requisition Act (XXV of 1947) situate within the limits of the Agra cantonment for the purposes of allotting it to the M. The owner of the house A was in occupation of the house. She refused to vacate the house. The question arose whether the U. P., (Temporary) Accommodation Requisition Act, 1947 was ultra vires of the legislature of that State, in so far as it was sought to regulate accommodation in cantonment areas under that Act. It was held that the said Act, being an Act of Provincial Legislature, could not apply to regulate accommodation in cantonment areas which was exclusively a federal subject (this was a pre constitution case and arose under the Government of India Act, 1935) under Schedule 7, list 1, item 2 of the Government of India Act.

It may be pointed out here that the U. P. (Temporary) Accommodation Requisition Act, 1947 was undoubtedly extensible to the whole of the United Provinces and in any case it had been made applicable to a number of districts including the district of Agra wherein the Agra cantonment was situate. It was, however, held that although normally the term 'District Agra'' would include the cantonment area, that area could not be covered by the expression aforesaid as the Provincial Legislature had no power to legislate for the cantonment areas in view of Schedule 7, list 11, item No. 2 of the Government of India Act, (1935. Entry 2 of list 1 of the Government of India Act read as follows:

'Naval, military and air force works; local self-Government in cantonment areas (not being cantonment areas of Indian State troops), (the constitution and powers within such areas of cantonment authorities) the regulation of house accommodation in such areas, and, within British India, the delimitation of such area'.

It may be noted that this entry has been split up into two separate entries in list 1 of the Constitution and is practically the same in both enactments except that the phrase 'including the control of rents' occurring after the 'regulation of house accommodation' did not find place in the relevant entry under the Government of India Act, while it does find a mention in entry 3 of list 1 of the 7th schedule under the Constitution. Reverting to the judgment in this Allahabad case (2), the learned Judges of the High Court further observed that if the Agra cantonment area was to be deemed to be included in the scope of the notification applying the Act to the Agra District among others, it must be held that the notice itself was ultra vires qua that area. In this view of the matter, it was concluded that in either event the District Magistrate had no jurisdiction to issue the order that he did.

8. In Mulla Tyebali v. Dwarka Harkishan, AIR 1953 Madh-B 5 the question arose whether the Sthan Niyantran Vidhan of samvat year 2006 was ultra vires so far as the Mhow cantonment was concerned in view of the alleged, incompetency of the legislature of that State to enact any laws for cantonment areas, having regard to item No. 3 of list 1 of the 7th schedule of the Constitution read with Article 246 of the Constitution, whereunder, the Parliament alone had the exclusive power to enact laws with respect to any matter enumerated in that list. The learned Judges observed that, if Mhow was a cantonment area on the 9th of February, 1950, when the Sthan Niyantran Vidhan was made applicable to it, then certainly the State legislature had no legislative authority to extend the provisions of the said Act to that area. It was, however, held that Mhow was not a cantonment area when the Constitution came into force, on the 26th of January, 1950, and, therefore, it may be taken that the opinion expressed by the learned Judges in this case as regards the applicability of the relevant entry of the Constitution was in the nature of obiter dicta. This case, therefore, is of no real assistance to us here.

9. The next case, to which reference may be made, is, A. C. Patel v. Vishwanath Chada, AIR 1954 Bom 204. This was also a case of a landlord suing his tenant for eviction, the premises being situate, in the cantonment area of Kirkee. The trial Court held that the tenant was protected from eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), and so, the suit was dismissed. The landlord's appeal before the District Judge also met the same fate. In a revision, which was then carried to the High Court, the question was debated whether the aforesaid Act was at all applicable to the cantonment area of Kirkee. Reliance was placed on Entry 2 in list 1 of the Seventh Schedule of the Government of India Act, (1935) as this was a pre-constitution case.

It was held by Chagla C. J., who delivered the judgment of the Bench, that the pith and substance of the Bombay Act No. 57 of 1947 was to regulate relationship between landlords and tenants, and, that, in doing so, it could not be said to be regulaing house accommodation in a cantonment area. In this view of the matter, it was held that the Act of 1947 did not fall in entry 2 of list 1 of the 7th schedule of the Government of India Act, and that the State Legislature was competent to regulate rents in cantonment area between private landlords and tenants. It may be observed incidentally that, according to this decision, the Act of 1947 fell in entry 21 of list 2 (the Provincial Legislative List) of the Government of India Act, 1935, which corresponds to entry No. 18 of list 2 (State list) of the seventh schedule of the Constitution.

In giving this decision, the learned Chief Justice made it clear that he was not called, upon to interpret entry 3 in list 1 of the seventh schedule of the Constitution and that he had referred to it in his decision only as a matter of constitutional history. The question of the interpretation of the last mentioned, entry under the Constitution especially arose in F.E. Damkhanawalla v. Khemchand Lalchand, AIR 1954 Bom 254. In this case, it was pointedly contended that the Bombay Act of 1947 could not have any application to cantonment areas, as under the Constitution power to regulate rents under such areas was exclusively conferred upon Parliament by entry 3 of list I of the seventh schedule, and that when the legislature extended the Bombay Rents, Hotel and Lorging House Rates Control Act LVIII of 1947, as amended by the Bombay Act XLIII of 1951 to the cantonment area of Deolali, wherein the suit premises were situate, it had trespassed upon the field reserved for Parliament, and that such extension of the Act of 1947 was not valid.

This contention was rejected, and Chagla C. J., who also delivered the judgment of the bench in this case, held that the expression, 'including the control of rents' in entry 3 of list 1, really meant the further power to control rents in relation to the regulation of house accommedation in cantonment areas which, according to the learned Chief Justice, meant that the additional power which had been conferred upon the Parliament under the Constitution was not confined to regulating of house accommodation in the sense of requisitioning, acquiring or allocating houses (by the State) in cantonment areas, but it also extended ta the regulation of rents with respect to the houses so dealt with but no more. The learned Chief Justice thus adhered to his earlier view that it was cot the intention of the Constituent Assembly to confer upon Parliament the power to control rents between private landlords and tenants even in cantonment areas, and that that power was left to the State Legislatures under List II, and, that, in this view of the matter, the State Legislature was competent to enact the Amending Act of 1951 and to apply it to the cantonment area of Deolali.

10. The last case, to be referred to in this connection, is Kewalchand Keshrimal v. Dashrathlal Pyarelal, AIR 195.6 Nag 268. The short question, which was decided in this case, was that the objection raised by the defendants that a notice to quit could not be sewed upon the tenants without first obtaining the permission of the Rent Controller, was well founded. The question of the enforcement of the C. P and Berar Letting of Houses and Rents Control Order, 1949 to cantonment areas was however also raised in this case and it was held that that could not be done in view of Sections 100 and 107 of the Government of India Act, and that any attempt to make rules in exercise of the powers vested in the State Government by Section 2 of the Act regarding the regulating of house accommodation, was ultra vires the State Legislature.

It was nevertheless held that the provisions of the order requiring that a landlord should obtain permission of Rent Controller before serving a notice to quit upon the tenant did not fall within the phrase Regulating of House Accommodation and, therefore, no valid objection could be taken if such a provision was made by the State Legislature.

11. We have carefully considered these eases, and the ratio underlying them, and are respectfully of the opinion that, whatever might have have been the correct state of law under the corresponding entry in list 1 of the seventh schedule of the Government of India Act, 1935, it is difficult to hold, except, by a certain straining of the language, that a law pertaining to the control of rents in cantonment areas does not squarely fall within the ambit of entry 3 of list 1 of the seventh schedule under the Constitution. We have already quoted above this entry in extenso and need not reproduce it here. The expression 'including the control of rents' in this entry, in our opinion, could not and need not be limited so as to exclude the control of rents as between what may be called private landlords and their tenants in cantonment areas. We are also inclined to think that the regulation of house accommodation in cantonment areas, having regard to the wide scope of this expression, cannot be confined to the acquiring or requisitioning or allocating the house accommodation therein as referred to in the Bombay case, AIR 1954 Bom 254 (supra). But such regulation may include the control of evictions from or the letting out of or fixation of rents generally for houses situate in cantonment areas.

The expression 'Regulation of House Accommodation' including the control of rents occurring in this entry, has not been hedged round with any qualification, and we see no valid reason to restrict its meaning otherwise than what it seems to us to naturally bear. Reading this entire entry, it is manifest beyond doubt that the administration of cantonment areas, in the sense of defining their limits, and making a provision for local Self-Government therein, and the constitution and powers of the various cantonment authorities, as well as the regulation of house accommodation, and the latter expression has been specifically enlarged so as to include the control of rents therein, has been made an exclusive head of legislation for the Union Parliament. And under Article 246 of the Constitution, the Parliament has exclusive power to make laws with respect to any of the matters enumerated in list I (Union list) notwithstanding anything else in Clauses (2) and (3) of that Article.

Article 246 deals with the distribution of legislative powers as between the Union and the State legislatures with reference to different lists in the seventh Schedule. The gist of this Article put succinctly is that the Union Parliament has full and exclusive power to legislate with respect to matters in list 1. It has also power to legislate with respect to matters in list 3 in the concurrent list Then, the State Legislature has exclusive power to legislate with respect to the matters specified in list 2 leaving out matters falling in lists 1 and 3 and has concurrent power along with the Parliament to legislate with respect to matters included in list 3. But in case of any conflicts between the Union and the other lists, the Union power must prevail unless the two can be fairly reconciled. This takes us to the question whether the control of house accommodation in the sense of control of rents is covered by the two other lists, namely, lists 2 and 3. Some cases have taken the view, and notably the Bombay ones, that this subject falls within the scope of entry No. 18 of list 2 of the State lists. This entry reads as follows :

'Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, colonization''.

As against this view, our own Court has held that this subject properly falls not within the scope of entry 18 of list 2 (or the State list) but of entries 6, 7 and 13 of list 3 or the concurrent list (see ILR (1954) 4 Raj 958: (AIR 1954 Raj 252). These entries respectively read as follows:

No. 6 Transfer of property other than agricultural land; registration of deeds and documents.

No. 7: Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.

No. 13 Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.

We consider it unnecessary to enter into a critical examination of these two views for the purposes of the present reference, and would be content to adopt the view which has been laid down by our own Court in Milap Chand's case, ILR (1954) 4 Raj 958: (AIR 1954 Raj 252). Granting then, that the general subject of regulating the relationship of landlords and tenants within the meaning of the various rent restriction Acts is a concurrent subject, on which the Union Parliament as well as the State Legislature would be competent to legislate, the question which next arise is whether it would be permissible for the State Legislature so to legislate in and for a cantonment area, or to extend such enactment, as may be in force in other parts of the State, to such an area.

Now it is a fundamental principle of the interpretation of entries in the legislative lists that in case of any conflict between them, it is the duty of the Court to try and reconcile them between each other, and to see that as far as possible none of the entries become a dead letter, and the legislative power of each legislature under the different entries is maintained, and it is only as a last resort that the superior and predominant legislative power of the Parliament must be invoked (see In the matter of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1935, AIR 1939 FC 1, Attorney General of Alberta v. Attorney General of Canada, AIR 1939 PC 53, State of Bombay v. Narottamdas Jethabhai AIR 1951 SC 69 and, State of Bombay v. F. N. Balsara AIR 1951 SC 318.)

Adopting this principle, we are clearly of the opinion that any conflict between entries Nos. 6, 7 and 13 of list III on the one hand (or for that matter entry No. 18 of List II) and entry No. 3 of list I on the other, can be satisfactorily resolved by holding that any legislation in the matter of control of house regulation including control of rents in the cantonment areas, even if they are situate within the territory of a State, falls exclusively within the competence of the Union Parliament though such legislation in the rest of the territory of that State would be within its own competence, or that of the Union Parliament, as the case may be.

So interpreted, the various entries need present no conflict whatsoever, and the legislative power of each legislature would be preserved without any undue invasion by the other. We are, therefore, clearly of the opinion that, so far as any legislation in the way of control of rents in a cantonment area goes, it is the exclusive field of the Union; and it must follow as a corollary from this that since Parliament has exclusive power so to legislate with respect to these areas, a State Legislature cannot legislate with respect to any such matter even indirectly, on the principle that what one cannot do directly, it will not be permitted to do indirectly.

12. We feel greatly fortified in coming to the conclusion, to which we have come above, by another very important factor, to which it is necessary to draw attention here. That factor is that the Parliament has lately passed an enactment, which is called 'The Cantonments (Extension of Rent Control Laws) Act, 1957 (Act 46 of 1957) (hereinafter referred to as the Union Act of 1957). The preamble of this Act shows that it was passed to provide for the extension to cantonment areas of laws relating to the control of rent and regulation of house accommodation in the relevant States. Section 2 of this Act provides that 'cantonment'' means any place declared to be a cantonment under Section 3 of the Cantonments Act, 1924.

Section 3 is very important for our purposes. This section lays down that the Central Government may, by notification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force on the date of the notification in the State in which the cantonment is situated. A proviso has been further added to this section, which provides that nothing contained in any enactment so extended shall apply to any premises belonging to the Government within the cantonment area, or to any tenancy or like relationship created by a grant from the Government in respect of premises within the cantonment taken on lease or requisitioned by the Government. By Section 4, the Madhya Bharat Accommodation Control Act, 1955, which was in force, broadly speaking in the former State of Madhya Bharat, was extended to the cantonment of Mhow with certain modifications.

We wish to point out that the enactment of this legislation by the Union Parliament leaves no doubt in our mind as to the true intention of the Parliament underlying entry 3 of List I, which we have been endeavouring to interpret above, and that that intension, undoubteuly was that even the subject of rent control using the term in its general or extensive sense in cantonment areas was to be within the exclusive competence of the Union legislative field, and that such control was not intended to be relegated to the State field or the concurrent field of legislation. It would be going very far indeed in face of the Union Act of 1957 to hold that the power to make laws with respect to rent control in cantonment areas, situated within the territories of the various States, is not vested exclusively under List I to the Union, Parliament.

In this view of the matter, we do not think that there is any warrant for us to hold that, on the doctrine of pith and substance, the power to legislate for control of rents and eviction of tenants in cantonment areas falls within the State or the concurrent legislative field, or that the extension of such law as is prevalent in the rest of the State to the cantonment area, by the State Legislature would be merely an incidental encroachment and, therefore, unobjectionable any invasion on the legislative field of the Union Parliament. As we look at the matter, the doctrine of pith and substance is not at all attracted in a case like the present, because what really takes place in the circumstances is a clear and unmistakable encroachment On the Union field of legislation, and this is not at all permissible. For the same reasons, we hold that Article 254 of the Constitution can have no application in such a case.

13. It follows from what we have stated above that the Act of 1950, as amended by the Amending Act of 1957, in so far as it has been made applicable to the cantonment of Nasirabad is ultra vires the legislature of the State. It must further follow that the Act of 1952, which was in force in the area in question and which was repealed by the Amending Act of 1957, must still be held to be in force in this area notwithstanding the fact that its repeal must hold good for the rest of the Ajmer area.

14. We wish to take this opportunity of pointing out that if the State Government be desirous that the law relating to control of rent and eviction of tenants, which is in force in the rest of this State, should also be made applicable to the Nasirabad cantonment, it would be open to the State Government to move the Central Government to extend the same under Section 3 of the Union Act of 1957, and it would be then for the Central Government to extend the Act of 1958, as amended by the Amending Act of 1957, to this area with such restrictions or modifications as the Central Government may think fit.

15. This disposes of the first question, which has been referred to us for answer.

16. As for the second question, namely, whether the provisions contained in Sections 2(1) and (2) of the Act of 1950 are repugnant to the provisions contained in Section 3 of the Union Act of 1957, in so far as the former have been made applicable to the cantonment area of Nasirabad, and therefore, void, we think that strictly speaking, this question hardly arise having regard to the manner in which we have answered the first, but as the learned Munsif has raised it, we think it proper to clarify the situation.

The combined effect of Section 2(1) and (2) of the Act of 1950 read with the notification no. F. 7 (11) H(D)/57 dated the 27th November, 1957 extending the provisions of Sections 5 to 26 of the Act of 1950, is to make the entire Rajasthan law on this subject applicable to the cantonment area of Nasirabad. While this is so, Section 3 of the Union Act of 1957 lays down that the extension of the State law to the cantonment area of Nasirabad could only be made by the Central Government by a notification in the official Gazette, and again, in doing so, it would be open to the Central Government to make such restrictions and modifications as to that law as it may think fit.

This is a clear case of repugnancy between the effect of the Rajasthan laws and the Union laws, if we may say so. But as we look at the matter, the question of repugnancy is one thing; but that of incompetency or ultra vires quite another. In the premises we have held above, the legislature of this State has no legislative authority to make any law for the control of rent and eviction of tenants in the cantonment area of Nasirabad at all, as such legislation is the exclusive preserve of the Union Parliament within the meaning of entry 3 of List I of the seventh schedule of the Constitution.

17. In the light of the aforesaid discussion, our answers to the two questions, that have been referred to us are, as follows:

(1) Section 2(1) and (2) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, as amended by the Rajasthan Premises (Control of Rent and Eviction) Amending and Extending Act, 1957 (Act No. 34 of 1957), in so far as they apply to the cantonment area of Nasirabad, are beyond the legislative competence of the legislature of this State inasmuch as the control of rent within cantonment areas is within the exclusive competence of the Union Parliament by virtue of Entry 3 in List I of the seventh schedule, read with Article 246 of the Constitution. We may also add that the notification No. F 7 (i)H(D)/57 dated the 27th November, 1957, by which Ss. 5 to 26 or the Act of 1950 were made applicable to the cantonment area of Nasirabad, was beyond the competence of the State Government, and is, therefore, of no legal effect.

(2) This question does not arise.

18. Let these answers be returned to the referring Court.


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