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Milap Chand Vs. Dwarka Das - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberMisc. Case No. 75 of 1953
Judge
Reported inAIR1954Raj252
ActsConstitution of India - Articles 14, 245 and 254(1); Rajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 6, 8, 28 and 31; Transfer of Property Act, 1882 - Sections 105 and 108(1); Contract Act, 1872 - Sections 37; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantMilap Chand
RespondentDwarka Das
Appellant Advocate H.P. Gupta,; D.P. Gupta and; M.M. Seth, Advs.
Respondent Advocate K.S. Hajela, Adv. General
Cases ReferredJoylal Agarwala v. The State
Excerpt:
- - the impugned act contains provisions for fixation of standard rent as well as for eviction. the impugned act, therefore, was a supplementary law, and was not intended to repeal any law in existence, though if any parts of it are-clearly repugnant to the three acts mentioned, above, they may be hit by article 254(1). the main attack is on sections 6, 8 and 22 of the impugned act, section 6 provides for fixation of standard rent, and lays down that where no rent was fixed, or for any reason it is claimed to be excessive, a suit may be instituted for fixation of standard rent. it cannot, in our opinion, be said that sections 6 and 8 of the impugned act create a repugnancy with section 105 or section 108(1), transfer of property act, in view of the provisions of section 37, contract.....wanchoo, c.j. 1. milap chand is a defendant in a suit filed by dwarka das, opposite party, in the court of munsif east, jaipur city. dwarka das had taken a house on rent from the applicant by a rentdetd, and had agreed to pay rs. 60/- per month as rent. in november, 1952, dwarka das filed a suit under section 6, rajasthan premises (control of bent and eviction) act, 1950, (hereinafter called the impugned act) for fixation of standard rent. the suit was resisted by the applicant, and one of the main grounds was that the impugned act was void for various reasons. issues were framed by the munsif, and the suit is still pending in that court. an application was made to this court under article 228 praying that as the suit involved a substantial question of law as to the interpretation of the.....
Judgment:

Wanchoo, C.J.

1. Milap Chand is a defendant in a suit filed by Dwarka Das, opposite party, in the Court of Munsif East, Jaipur City. Dwarka Das had taken a house on rent from the applicant by a rentdetd, and had agreed to pay Rs. 60/- per month as rent. In November, 1952, Dwarka Das filed a suit under Section 6, Rajasthan Premises (Control of Bent and Eviction) Act, 1950, (hereinafter called the impugned Act) for fixation of standard rent. The suit was resisted by the applicant, and one of the main grounds was that the impugned Act was void for various reasons.

Issues were framed by the Munsif, and the suit is still pending in that Court. An application was made to this Court under Article 228 praying that as the suit involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for its disposal, this Court might either dispose of the suit itself, or determine the said question of law and return the case to the Court concerned with a copy of its judgment on such question. This application was allowed, and the matter is now before us for determining the question of law, namely whether certain provisions of the impugned Act are void under the Constitution.

2. Learned counsel for the applicant has attacked the validity of the impugned Act before us on the following three grounds:

(1) The impugned Act is ultra vires of the powers of the State Legislature as it is a piece of legislation relating to an item in the Concurrent List, and has been passed without the sanction of the President.

(2) The impugned Act is a discriminatory piece of legislation both on the face of the Act, and in the manner in which it has been applied, and is, therefore, void under Article 13(2) of the Constitution read with Article 14.

(3) The impugned Act was passed for two years only from November, 1950, and its extension by the Rajpramukh by notification, dated 20-11-1952, was invalid under the Constitution, and therefore it was in no case in force after November, 1952.

3. Though the State was not a party to the suit in the Munsif's Court, notice was issued by us to the Advocate General, as the case involved the validity or otherwise of a piece of legislation. We have heard the learned Advocate General also, and his contention is that there is no force in any of the three points urged on behalf of the applicant, and that the law in question did not require the sanction of the President as it was within the competence of the State Legislature, and it is not discriminatory; nor was its extension after November, 1952, invalid.

4. We shall first deal with the contention that the impugned Act is ultra vires of the competence of the State Legislature as the sanction of the President has not been obtained, and is hit by Article 254 of the Constitution, which reads as follows:

'(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of thematters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'

It is clear that if the assent of the President has not been given a law made by the Legislature of a State is void under Article 254(1) to the extent of its repugnancy with the existing law or the law made by Parliament whether passed before or after the law made by the Legislature of the State. The suit before the Munsif is concerned with the fixation of standard rent. The impugned Act contains provisions for fixation of standard rent as well as for eviction. As the provisions relating to eviction are not in dispute in the suit in the Munsif's Court, we shall confine ourselves to the provisions relating to fixation of standard rent.

5. The argument on behalf of the applicant is put in this way. The impugned Act is legislation under List III of the Seventh Schedule, and, comes under item 6 (Transfer of Property other than agricultural land), item 7 (Contracts including partnership, agency, contracts of carriage and other special forms of contracts, but not including contracts relating to agricultural land) and item 13 (Civil Procedure, including all matters included, in the Code of Civil Procedure at the commencement of this Constitution). As the legislation is under these three items, and as it is repugnant to certain provisions of the law made by Parliament and as it has not received the sanction of the President under Article 254(2), it is void under Article 254(1).

6. The reply of the learned Advocate General is that this is legislation under item 18 (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) of List II of the Seventh Schedule. It is thus within the exclusive competence of the State Legislature, and Article 254 has no application to such a law.

7. That the impugned Act obviously falls within items 6, 7 and 13 of List III requires no elaborate argument. The question is whether it comes under item 18 of List II. In this connection, the applicant contends that item 18 of List II deals only with land and not with buildings, and that the word 'land' used in item 18 cannot be extended to include buildings, though it may apply to lands both agricultural and non-agricultural. Item 18 of List II corresponds more or less to item 21 of List II of the Government of India Act, 1935.

In -- 'Megh Raj v. Allah Rakhia', AIR 1947 PC 72 (A), it was held that the word 'land' used in item 21 applied to every form of land whether agricultural or not. The same meaning may be given to the word 'land' in item 18 of List II now. But it is difficult to see how the word 'land' would include building standing over the land, for that would be giving a very wide meaning indeed to the word 'land' as used in this item. In this connection, attention may be drawn to item 35 ofList II (Works, lands and buildings vested in or in the possession of the State), to item 36 (Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III) and also to item 49 (Taxes on lands and buildings).

If the intention of the framers of the Constitution was that the word 'land' would include buildings standing on it, there is no reason why both the words 'lands' and 'buildings' were used in items 35 and 49 of List II, and why in item 36 the word 'property' was used, which, of course, is wide enough to include both land and building, among other things. Under the English law, the word 'land' includes buildings in case of all enactments passed after the year one thousand eight hundred and fifty whether before or after the commencement of the Interpretation Act (52 and 53 Vict. C. 68) of 1889; but that is because Section 3 of that. Act defines the expression 'land' as including messuages, tenements and hereditaments, houses, and buildings of any tenure.

Article 367 applies the General Clauses Act, 1897, for the interpretation of the Constitution. In that Act the word 'land' has not been defined.

But Section 3, Sub-section (26) defines 'immovable property' as including land, benefits to arise out of ' land, and things attached to the earth, or permanently fastened to anything attached to theearth. We are therefore of opinion that the word 'land' as used in item 18 of List II does not refer 'to buildings.

8. Learned Advocate General relies in this connection on -- 'Raman Das v. State of Uttar Pradesh', AIR 1952 All 703 (FB) (B). In that case the validity of the U. P. Temporary Control of Rent and Eviction Act (3 of 1947) was in question, and the learned Judges held that the word 'land' in item 21 of List II, Government of India Act, 1935, was wide enough to include house or house property. It is enough to say that the Government of India Act, 1935, was an Act of the English Parliament to which the Interpretation Act, 1889, applied, and unless the contrary intention appeared in item 21, the word 'land' used there would include houses in view of Section 3, Interpretation Act. Those considerations, however, donot apply to the interpretation of item 18 of ListII of the Constitution, because the Interpretation Act, 1889, has no application to the Constitution. This case, therefore, is no authority for the interpretation of the word 'land' as used in item 18 of List II of the Constitution.

9. A similar Act relating to control of rent and eviction from buildings came up for consideration before the Patna High Court in -- 'Mangtulal v. Radha Shyam', AIR 1953 Pat 14 (PB) (C), and it was held that such an Act would not come within item 18 of List II, and that the word 'land' used there could not be given such an enlarged meaning. We respectfully agree with this view, and hold that there are no words in item 18 of List II to justify legislation of this kind relating to houses and buildings, and that this legislation can only be justified under items 6, 7 and 13 of List III.

10. The impugned Act can, therefore, be passed only under the powers conferred on the State Legislature under the Concurrent List. The provisions, however, of the impugned Act would only be ultra vires under Article 254(1), (for admittedly the assent of the President has not been taken in this case) in so far as they are repugnant to any existing law or any law passed by Parliament relating to the same matter before or after the impugned Act was passed. The contentionof the applicant is that certain provisions of the Act are repugnant to certain sections of the Transfer of Property Act and the Contract Act which were extended to Rajasthan by the Part B States (Laws) Act (3 of 1951), and also to certain sections of the Civil Procedure Code which was extended to Rajasthan by the Code of Civil Procedure (Amendment) Act (2 of 1951).

It may, however, be pointed out that Section 28 of the impugned Act says that the provisions of this Act shall be in addition to, and not derogatory of, any other law on the subject for the time being in force in the whole or any part of Rajasthan. The impugned Act, therefore, was a supplementary law, and was not intended to repeal any law in existence, though if any parts of it are-clearly repugnant to the three Acts mentioned, above, they may be hit by Article 254(1). The main attack is on Sections 6, 8 and 22 of the impugned Act, Section 6 provides for fixation of standard rent, and lays down that where no rent was fixed, or for any reason it is claimed to be excessive, a suit may be instituted for fixation of standard rent. Section 8 provides that a tenant would only be liable to pay the standard rent, and anything in excess of the standard rent need not be paid. Section 22 provides for appeals and revisions ana forbids a second appeal.

11. It is urged that Sections 6 and 8 inasmuch as they provide for scaling down of the agreed rent and forbid realization of any rent above the standard rent fixed by the Court, are repugnant to Section 108(1) of the Transfer of Property Act which is applicable to Rajasthan, and are therefore void under Article 254(1). Section 108 provides for the rights and liabilities of the lessor and the lessee in the absence of a contract or local usage to the contrary. Clause (1) lays down that the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf. Rent is defined in Section 105 as money, a share of crops, service or any other thing of value to be rendered periodically by the transferee to the transferor, who accepts the transfer on such terms.

It is submitted that in view of the definition of rent in Section 105, and Section 108(1), the lessee is bound. to pay the agreed rent, and inasmuch as the impugned Act permits the Court to reduce the agreed rent, the provisions in Sections 6 and 8 are repugnant to Sections 105 and 108(1), Transfer of Property Act. It may, however, be pointed out that Section 108(1) only applies to those cases where there is no contract or local usage to the contrary. It lays down the liability of the lessee to pay at the proper time and place the rent to the lessor or his agent. The emphasis in Clause (1) is on payment or tender at the proper time or place. Clause (1) has nothing to do with the fixation of rent, and therefore the provisions of the impugned Act, which give power to the Courts to scale down the agreed rent, cannot be said to be repugnant to Clause (1), but they are only supplementary to it. It is true that the rent, as defined in Section 105, means the amount which is to be paid by the lessee to the lessor according to the agreement between the parties. But this agreement, in our opinion, is not sacrosanct as is clear from Section 37, Contract Act. That section is as follows:

'The parties to a contract must either perform, or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.'

12. It is possible, therefore, that the terms of a contract may not be performed if there is a law excusing or dispensing with such performance. It is urged that Section 37, Contract Act, appearing as it does in a general Act, does not override the provisions of the Transfer of Property Act which is a special Act. We are of opinion that there is no question of Section 37, Contract Act, overriding the provisions of Section 105 or Section 108(1), Transfer of Property Act. Section 37 must be read as supplementary to the provisions of the Transfer of Property Act, and where a law is made dispensing with or excusing the performance of any agreement, the parties can take advantage of that law which also will be supplementary to the Transfer of Property Act. The impugned Act is obviously a supplementary Act as shown by Section 28. It provides that the agreement between the parties may be varied on certain grounds', and the procedure for this variation is provided in the Act. It cannot, in our opinion, be said that Sections 6 and 8 of the impugned Act create a repugnancy with Section 105 or Section 108(1), Transfer of Property Act, in view of the provisions of Section 37, Contract Act, which clearly envisages interference with agreement by validly made law.

13. Our attention was drawn to -- 'Kedar Lal v. Hari Lal', AIR 1952 SC 47 (D) in this connection. That was, however, a case where the question arose whether Section 43, Contract Act, applied, or Section 82, Transfer of Property Act, to a case of contribution. It was held by the Supreme Court that both these sections dealt with the question of contribution, but Section 43 was a provision dealing with contracts generally, while Section 82 applied to mortgages. As the right to contribution arose in that case under a mortgage Section 82 was held to exclude Section 43, on the principle that when there is a general law and a special law dealing with a particular matter, the special excludes the general.

These considerations, however, do not apply to Section 105. Transfer of Property Act, and Section 37, Contract Act. The two provisions do not deal ,with the same matter. There is nothing in Section 105, Transfer of Property Act, as to excusing or dispensing with the performance of contracts. That provision is only to be found in the Contract Act, and must therefore be held to be supplementary to Section 105 and Section 108(1). Transfer of Property Act. We are, therefore, of the opinion that Sections 6 and 8 of the impugned Act are merely supplementary to the Transfer of Property Act. and are not repugnant to Section 105 or 108(1), and therefore it was not necessary to obtain the assent of the President for enacting these provisions, as they were not hit by Article 254(1) on the ground of repugnancy, and the State Legislature could validly enact them.

14. As to Section 22, it is urged that the provision forbidding second appeals is repugnant to Section 100, Civil P. C. A short answer to that argument is that Section 100 itself provides for second appeals 'save as otherwise expressly provided in the body of this Code, or by any other law for the time being in force.' It is open to the State Legislature under item 3 of List II of the Constitution to provide for the constitution and organisation of all Courts except the Supreme Court and the High Court, and under this item the State Legislature can well provide for a machinery for fixation of standard rent and further provide that there will be no second appeals in such cases. There is thus no repugnancy between Section 22(2) of the impugned Act and Section 100, Civil P. C., and therefore Article 254(1) has no application.

15. We now turn to the argument that the impugned legislation is discriminatory, and therefore hit by Article 14. It has been urged that the impugned Act does not provide any basis according to which the Government can extend the application of the impugned Act to various towns in Rajasthan. The Act is called an Act to control eviction from, letting of, and rents for, certain premises in Rajasthan, and the preamble says that it is expedient to provide for these matters. It is no doubt true that the Act itself does not mention the circumstances in which it would be applicable to certain towns, and does not lay down a basis for selection. So it is submitted that the absence of the basis for selection in the Act is sufficient to invalidate an Act as a piece of arbitrary legislation arming the executive with arbitrary powers of extending the Act wherever it likes. This argument appears attractive so far as it goes; but it is not sufficient to dispose of the matter. It is desirable where legislation of this bind is passed that the basis of selection should be put down in the Act itself or indicated in the preamble, so that the Courts may easily test the Act on the anvil of Article 14, and may not have to search far and wide for a basis of classification. In the absence of such provision in the Act itself or in the preamble as a basis of classification, it may not be possible for the Courts to conceive of them reasonably. But the mere absence of such basis is not enough to invalidate a law, if the Courts can reasonably conceive of a state of facts which would sustain it. We may in this connection draw attention to -- 'Lindsley.v. Natural Carbonic Gas Co.', (1911) 220 US 61 (E), where the following test was laid down for the application of the equal protection clause at p. 78--

'The rules by which this contention must be tested as is shown by repeated decisions of this Court, are these:

(1) The equal-protection clause of the 14th Amendment does riot take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary;

(2) A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. .

(3) When the classification in such, a law is called m question if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.

(4) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.'

16. Reference may also be made to the observations of Fazl Ali j. in -- 'Charanjit Lal Chowdhury v. Union of India', AIR 1951 SC 41 (P). The learned Judge quoted the following passage from a book by Prof. Willis 'Constitutional Law', 1st Edn., p. 579, with respect to the equal protection clause of the United States Constitution--'It does not take from the States the power to classify either in the adoption of police laws, or tax laws or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are notrequired. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.' The learned Judge then observed as follows at page 44--

'There can be no doubt that Article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while accepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, I wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.'

17. In -- 'Iswari Prosad v. N. K. Sen', AIR 1952 Cal 273 (PB) CG), the validity of the West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) came up for consideration. In that case, the validity was attacked on account of breach of Article 19(1)(f), and not under Article 14. The learned Judges practically took judicial notice of the circumstances prevailing at the time when the Act was passed in judging whether the restrictions placed by it were reasonable. Harries C. J. observed as follows at p. 275:

'Whether a restriction on a fundamental right by a piece of legislation is reasonable or not must depend upon the circumstances existing when that piece of legislation was enacted. Drastic remedies may be necessary to meet conditions giving rise to serious and urgent problems and a piece of legislation which may well impose unreasonable restrictions in one set of circumstances may be eminently reasonable in a different set of circumstances. The Rent Acts in this State were enacted to meet the grave housing shortage caused by the last Great War and the congestion particularly in the cities and towns of West Bengal caused by the War and the partition of the province in the year 1947.

There can be no doubt that the war and the partition created very serious problems in this State. During the war building was to a very large extent at a standstill and after partition lakhs of people flocked into this State particularly into Calcutta and the large towns of the State. That the Government of West Bengal was faced with a serious problem is, I think, clear and it was to meet that problem that these Acts were from time to time enacted.'

Later, the learned Chief Justice observed againat the same page as follows: 'It appears to me that in the interests of law and order and good Government, restrictionson the landlord's rights were absolutely necessary, for otherwise thousands of tenants would have been ejected and persons would have been compelled to pay far more than they could afford for most inferior accommodation. In considering whether the restrictions imposed on the landlords are reasonable regard must be had to the position of the tenants. Would it be in the interest of good Government and in the public interest generally for thousands, of people to be rendered homeless and for thousands of others to be compelled to pay exorbitant rents and to be literally at the mercy of of their landlords? It appears to me that in the circumstances existing in this country and particularly in this State, the control of rents during the war and particularly after partition, was essential and had any Government failed to take action in this matter serious consequences might well have arisen which might have shaken the very foundations of this State and indeed of the whole of India;'

18. What the learned Advocate General asks us is that we should also take notice of the circumstances which were prevailing at the time when the impugned Act was passed, and if we do so, it will be found that the restrictions placed were not only reasonable restrictions, but that the State was justified in passing this law which, on the face of it, applies to the whole of Rajas-than. and in applying it to such towns where those conditions existed, which led to the passing of the law. Whether conditions existed in a particular town to which the impugned Act was applied is a question of fact which can most properly be judged by the Government and unless it is proved that there were mala fides in a particular case, the application of the impugned Act to a particular town must be held to be based on the existence of those conditions. We feel that the conditions existing in Rajasthan at the end of 1950 when this Act came to be passed were not dissimilar from those described by Harries C. J. in -- 'Iswari Prosad's case (G)', and there was therefore justification for passing the impugned Act in order to control rents. The same circumstances, in our opinion, justify the selective application of the law to such towns as required, in the opinion of the Government, the enforcement of the impugned Act.

19. That such selective application is justified is clear from the observations of the Supreme Court in -- 'Kedar Nath Bajoria v. State of West Bengal', AIR 1953 SC 404 (H) at p. 407:

'The argument overlooks the distinction between those cases where the Legislature itself makes a complete classification of persons or things and applies to them the law which it enacts, and others where the Legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain common characteristics, but being unable to make a precise and complete classification, leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group, whilelaying down the standards or at least indicating in clear terms the underlying policy and purpose, in accordance with, and in fulfilment of, which the administrative authority is expected to select the persons or things to be brought under the operation of the law.'

20. It is urged on behalf of the applicant that if the Legislature had enacted in the impugned Act or indicated in its preamble the conditions on the basis of which the selective application of the law could be made, we might assume the state of facts which would justify such a selective application; but it is not possible for the Court to assume both the basis of the selective application of the law and the state of facts on which the selective application is made, and that -- 'Kedar Nath Bajoria's case (H)' does not go so far.

21. In the Act, which was attacked in --'Kedar Nath Bajoria's case (H)', there was a schedule of offences to which it applied. The Act did not contain any reason why it was applied to that schedule of offences and not to others, and in that connection the Supreme Court considered the background of the legislation also for determining whether there was a basis for reasonable classification, as will appear from tne following observations at p. 407--

'In the present case, it is well-known that during the post-war period various organisations and establishments set up during the continuance of the war had to be wound up, and the distribution and control of essential supplies, compulsory procurement of foodgrains, disposal of accumulated stores, adjustment of war accounts and liquidation of wartime industries had to be undertaken. These undertakings gave special opportunities to unscrupulous persons in public services placed in charge of sucn undertakings to enrich themselves by corrupt practices and anti-social acts tnereoy causing considerable loss to the Government.'

22. It cannot be disputed that the conditions, which justify the passing of an Act and support its provisions as reasonable restrictions for purposes of Article 19(5), can be assumed by the Courts if they can reasonably conceive of these conditions. Where such conditions are also sufficient basis for classification, there seems to us no reason why we should not assume this basis for classification also, if it can be reasonably conceived, for purposes of Article 14. Where, of course, it is not possible for the Courts reasonably to conceive of these conditions, the law must be held to tie arbitrary for want of a basis for classification. We must say that it is rather fortunate that in this case the conditions which justify the restrictions provided in the impugned Act also provide the basis for classification. It may not be possible for the Courts to conceive of such conditions in other cases, and then a piece of legislation, which may be otherwise justified if the basis had been indicated, may fall for want of an indication as to the basis of classification.A recent case of this kind, which came before us is -- 'Madhosingh v. State of Rajasthan', AIR 1954 Raj 197 (I), in which also there was no basis for classification either in the Act or in the preamble, and it was not possible for us to conceive reasonably of circumstances which could justify the passing of the Act and be a basis for classification. In the present case, however, the conditions, which we can assume for holding that the Act is a reasonable restriction under Article 19(5), are also the conditions which are the basis of classification. In these circumstances, we must hold that the Act, which applies to the whole of Rajasthan, is not a piece of arbitrary legislation, and that its selective application is controlled by circumstances which are too well-known, and have been aptly described in --'Iswari Prosad's case (G)'.

23. Learned counsel also urges that the Act was being arbitrarily applied. Relying on 'A Statistical Outline of Rajasthan' issued by the Government of Rajasthan in January, 1953, and the various notifications extending the impugned Act to various towns, he points out that out of 6 towns over 50,000 in population, the impugned. Act is applicable in all; out of 19 towns over. 20,000, the impugned Act is applicable in fourteen. but not in five; out of 35 over 10,000 the Act is applicable in 21 but not in 14; out of 61 towns. over 5000 it is only applicable in 18 and not in the remaining 43; and it is also applicable to 3 towns below 5000 in population, though the number of such towns must be very large. He asks us to infer from this that the impugned. Act is being arbitrarily extended, and therefore its application is hit by Article 14. There is, in our opinion, no force in this argument. Once the basis of classification is assumed to exist, as we feel we should assume in this case, we must further assume that the state of facts, which is necessary for the selective application of the law is also in existence in the towns where it has been applied, and is not in existence where it has not been applied. The basis for classification, which we can reasonably conceive of in this case, obviously is the housing difficulty in various towns of Rajasthan due to non-erection of buildings during the period of the last world war, and increase in population in most cities in the last ten years, the conditions created by the partition of 1947, and the influx of persons from what, is now Pakistan. These assumptions, which are reasonable, provided a basis for classification of towns where these conditions prevail, and therefore, in the peculiar circumstances of this case, we must hold that the law is not discriminatory and is not hit by Article 14 of the Constitution.

24. We cannot leave this aspect of the case without sounding a note of warning that it may not be in many cases that we shall be able to conceive of such circumstances as may be a basis of classification, and it would be well if the Legislature takes care to indicate the basis of classification also in the Act or in the preamble.

25. We now come to the last point that has been urged on behalf of the applicant namely that the extension of the Act in November, 1952 was not valid. The notification extending the Act was made under Section 31 which is as follows: '(1) This Act shall remain in force for a period of two years in the first instance:

Provided that the Rajpramukh may, if he considers it expedient to do so, from time to time extend, by order notilied in the Rajasthan Gazette, the duration of the Act by a further period not exceeding five years in the aggregate.'

It is urged that the provision, by which the power of extending the Act was given to the Rajpramukh by Section 31, is not valid, as by this provision the Legislature abdicated its function of legislation, and it could not do so. Reliance is placed on -- 'Jatindra Nath Gupta v. Province of Bihar', AIR 1949 PC 175 (J). There the question of the extension of the Bihar Maintenance of Public Order Act (5 of 1947) was considered. The relevant provision was in the following terms--

'Provided that the Provincial Government may, by notification, on a resolution passed by the Bihar Legislative Assemoly and agreed to by the Bihar Legislative Council, direct that this Act, shall remain in force lor a further period of one year with such modifications, if any, as may be specified in the notification.'

This proviso was held to be invalid, and the main reason was that the proviso gave one power and not two severable powers, and the tact mat no modulations were made in the Act wnen me power was exercised couid not help in determining the true nature of the power. It was also held mat the power of modification of the Act was a legislative power ana mat it was for the Legislature to state how long a particular legislation will be in operation, and that cannot be left to the discretion of some other boay.

This case was relied upon by Wanchoo J. in -- 'Babu Ram Paliwal v. Rex', 1951 All LJ 9 (K), and it was held that the provision in the U.P. Maintenance of Public Order (Temporary) Act (4 of 1947) to the effect that, in the first instance, it snail remain in force lor a period of one year, provided that if belore the expiry of the first period of one year or any extended period a resolution to that effect is passed by the Legislature, it shall remain in force for a further period of one year commencing from the date of such expiry, was invalid so far as that part of it, which related to extension, was concerned. This view was approved by a Full Bench of the Allahabad High Court in -- 'Ram Kishan v. State', AIR 1951 All 181 (L).

26. 'In re Veerabhadrayya', AIR 1950 Mad 243 (M), it was held by the Madras High Court that a bare power to extend an Act is not in the nature of conditional legislation and cannot be delegated. The power of extending the life of an Act is clearly a legislative power. In the Madras Act, however, the words were different from the U. P. Act, for the Madras Act provided for anextension for a further period or periods not exceeding three years in the aggregate. The learned Judges, however, relied on -- 'Jatindra Nath Gupta's case (J)', and held that the power of extension so granted was invalid.

27. In -- 'Krishna Chandra v. Sushila Mitra', AIR 1951 Orissa 105 (FB) (N), a Full Bench of the Orissa High Court held that the power of extension granted by the Orissa House Rent Control Act of 1947 was ultra vires, though the law in that case provided that the Provincial Government might, from time to time, by notiiication extend the continuance of that Act for a further period or periods not exceeding in the aggregate two years, if in their opinion it was expedient so to do. Reliance in this case was placed on -- 'Jatindra Nath Gupta's case (J)'.

23. Since then the Supreme Court has decided -- 'Joylal Agarwala v. The State', AIR 1951 SC 484 CO). In that case the validity of the extension of the life of the Essential Supplies (Temporary Powers) Act, 1946, came up for consideration. Three of the learned Judges, who decided that case, were also parties to the decision in --'Jatindra Nath Gupta's case (J)'. It was however, said that -- 'Jatindra Nath Gupta's case (J)' had no application to the case before them, which was distinguished in these words-

'In the case now before us the Legislature has itself applied its mind and has fixed the duration of the Act, but has left the machinery to reach the maximum period by instalments to be worked out in a particular manner. There is here no question oi delegation at ail. Much less delegation of any legislative powers.'

29. A consideration of -- 'Jatindra Nath Gupta (J)' and -- 'Joylal Agarwala's case (O)' leads us to the following conclusion:

30. The power to extend the operation of the Act beyond the initial period mentioned in the Act prima facie is a legislative power. It is for the Legislature to state how long the particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of Legislature without any limitation on the extent of power of modification is undoubtedly legislative power. Where the power to extend and the power to modify are given by the same provision, they are one power and not two separable powers. Where the Legislature passes a temporary Act and specifies the period for which it will be initially in force, and then gives power to some other body to extend it without specifying the period up to which it, can be extended, the power of extension is purely a legislative power and cannot be delegated.

But where the Legislature passes a temporary law and fixes a maximum period for its continuance, but in the first instance applies it for a period shorter than the maximum period, and also provides a machinery for its extension from time to time up to the aggregate period, the power of extension so given is not delegated or conditional legislation. It is merely a method for reaching the maximum period by instalments to be worked out in a particular manner. But wherealong with this power of extension within the maximum fixed by the Legislature, the power of modification is also given the two become one power, and as the power of modification is essentially a legislative power, the extension would be invalidated even though there may be no actual modification.

31. 'Jatindra Nath Gupta's case (J)' was a case where the aggregate period was fixed, but there was a power of modification along with the power of extension, and therefore that power was held as one and invalid. 'Babu Ram Paliwal's case (K)' was of the type where the Legislature had fixed no maximum, and therefore it would be governed by the principles laid down in --'Jatindra Nath Gupta's case (J)', and not on the principles laid down in -- 'Joylal Agarwala's case (O)' where the maximum period for which the temporary law was to be in existence was fixed. In view of the decision in -- 'Joylal Agarwala's case (O)', it seems to us that the decision of the Madras and Orissa High Courts may not be good law now, i'or in those cases there was no power of modification, and the total period for which the temporary Act was to remain in force was fixed by the Legislature, and a machinery was provided for reaching the maximum period after bhe initial period of one year. Those cases would now be governed by the principles laid down in -- 'Joylal Agarwala's case (O)'.

32. In the case before us the maximum period for which the impugned Act will remain in force is fixed as five years. Further, it is provided that it will, in the first instance, remain in force for two years. It is also provided that it the Rajpramukh considers it expedient to do so, he may, from time to time, by order notify in the Rajasthan Gazette the extension of the duration of the Act by a further period up to the maximum of five years. There is no power of modification given to the Rajpramukh while extending the Act, The reason, therefore, which led to the invalidation of the Eihar Maintenance of Public Order Act of 1947 in -- 'Jatindra Nath Gupta's case (J)', namely the power of modification, does not exist in the case before us. Further the case before us is distinguishable from the U. P. cases because there the power of extension was indefinite, and the Legislature had not provided the maximum period for which the Act was to remain in force.

The present case, therefore, is governed by the principles which have been enunciated in --'Joylal Agarwala's case (O)'. The Legislature in this case has applied its mind, and has fixed the total duration of the Act, namely a period of five years. It has left the machinery for reaching the maximum period by instalments to be worked out in a particular manner, namely by order notified in the Rajasthan Gazette by the Rajpramukh. There is thus no question of delegated or conditional legislation in this case, and the extension by the Rajpramukh must be held, under the circumstances, to be valid.

33. We are therefore, of opinion that--

(1) Sections 6, 8 and 22(2) of the impugnedAct are valid and are not hit by Article 254(1) of the Constitution;

(2) the impugned Act is not invalidated of the ground that it is hit by Article 14, and

(3) the impugned Act was validly extended by the Rajpramukh in November, 1952, under the proviso to Section 31.

34. The record will now be returned to the Munsif, East Jaipur, together with a copy of our judgment on these questions of law, and the said Court shall, on receipt thereof, proceed to dispose of the suit in conformity with the judgment.

35. In view of the fact that the basis forclassification was not mentioned in the impugnedAct itself and had to be assumed by us in thepeculiar circumstances of this legislation, weorder parties to bear their own costs of thisCourt.


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