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Madhusudhan Debnath Vs. Sm. Radharani Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 4272 of 1968
Judge
Reported inAIR1971Cal534
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 17(1), 17(2), 17(2A), 17(2B) and 17(3); ;Constitution of India - Articles 19(1), 226, 254(1), 254(2) and 357(1); ;West Bengal State Legislature (Delegation of Powers) Act, 1968 - Section 3
AppellantMadhusudhan Debnath
RespondentSm. Radharani Mondal and ors.
Appellant AdvocateSrischandra Nath, Adv.
Respondent AdvocateAdv. General and ;B. Basack, Adv.
DispositionPetition dismissed
Cases ReferredAbanindra Kumar Maity v. A. K. Mazumdar
Excerpt:
- .....17 (3), instead, the petitioner filed an application under clause (b) of section 17(2-a) of the west bengal premises tenancy act, 1956, together with an application under section 5 of the limitation act, 1963.4. the learned munsif came to the findings that section 5 of the limitation act did not apply to the facts and circumstances of the case, and that the petitioner was not entitled to any protection under section 17 (2-a) (b) of the west bengal premises tenancy act, 1956. on the said findings the learned munsif allowed the application of the opposite parties under section 17 (3) and directed striking out of the defence of the petitioner against delivery of possession. hence this rule.5. mr. nath, learned advocate for the petitioner contended that section 17 (2-b) of the west bengal.....
Judgment:

M.M. Dutt, J.

1. This Rule is directed against an order dated September 4, 1968, of the Munsif, Additional Court, Krishnagar striking out the defence of the petitioner against delivery of possession under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956.

2. The landlords-opposite parties instituted the suit for ejectment against the tenant-petitioner on the ground of default in payment of rent since Falgoon 1370 B. S. The petitioner entered appearance in the suit on March 12, 1968, and filed a written statement on May 20, 1968. In his written statement the petitioner denied that he was a defaulter in payment of rent as alleged. The case of the petitioner was that he spent a sum of Rs. 150/- for the repairs of the suit premises which is a shop room. It was alleged by the petitioner that there was an agreement between the petitioner and the opposite party No. 2 that the petitioner would repair the suit premises and that the money that would be spent by the petitioner for repairs would be adjusted against rent. The petitioner alleged that he deducted the said sum of Rs. 150/- spent by him towards repairs from the monthly rentals and offered the balance of the rentals, but the opposite parties refused to accept the same.

3. After entering appearance in the suit, the petitioner did not deposit any rent under Section 17 (1) of the Act nor did the petitioner make any application under Section 17 (2) disputing the amount of rent. The opposite parties filed an application under Section 17 (3) praying for striking out the defence of the petitioner against delivery of possession. The application was fixed for hearing on September 19, 1968. The petitioner did not file any petition of objection against the application of the opposite parties under Section 17 (3), instead, the petitioner filed an application under Clause (b) of Section 17(2-A) of the West Bengal Premises Tenancy Act, 1956, together with an application under Section 5 of the Limitation Act, 1963.

4. The learned Munsif came to the findings that Section 5 of the Limitation Act did not apply to the facts and circumstances of the case, and that the petitioner was not entitled to any protection under Section 17 (2-A) (b) of the West Bengal Premises Tenancy Act, 1956. On the said findings the learned Munsif allowed the application of the opposite parties under Section 17 (3) and directed striking out of the defence of the petitioner against delivery of possession. Hence this Rule.

5. Mr. Nath, learned Advocate for the petitioner contended that Section 17 (2-B) of the West Bengal Premises Tenancy Act, 1956, was ultra vires the provisions of Section 17 (2-A). It was further contended that Section 17 (2-B) was contradictory and repugnant to the provisions of Section 17 (2-A). The provisions of Sub-sections (2-A) and (2-B) of Section 17 are as follows:--

'(2-A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), on the application of the tenant, the court may, by order,--

(a) extend the time specified in Subsection (1) or Sub-section (2) for the deposit or payment of any amount referred to therein;

(b) having regard to the circumstances of the tenant as also of the landlord and the total sum inclusive of interest required to be deposited or paid under Sub-section (i) on account of default in the payment of rent, permit the tenant to deposit or pay such sum in such instalments and by such dates as the Court may fix:

Provided that where payment is permitted by instalments, such sum shall include all amounts calculated at the rate of rent for the period of default including the period subsequent thereto upto the end of the month previous to that in which the order under this subsection is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable upto the date of such order.

(2B) No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2-A) shall be entertained unless it is made before the expiry of the time specified therefor in Sub-section (1) or Sub-section (2), and no application for permission to pay in instalment under Clause (b) of Sub-section (2-A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent;'

6. Mr. Nath submitted that in view of the non-obstante Clause contained in the opening words of Section 17 (2-A) the provisions of Section 17 (2-B) fixing the time limit for making the application under Section 17 (2-A) was repugnant to the provisions of Section 17 (2-A). It has been argued that Section 17 (2-A) overrides the provisions of Section 17 (1) and Section 17 (2) under which the deposit has to be made within a certain time and that accordingly it is unreasonable to fix a time limit for making an application under Section 17 (2-A) which makes the provisions of Section 17 (2-A) nugatory. We are unable to accept the said contention of Mr. Nath. It is true that the time limit fixed for making the deposit under Section 17 (1) and Section 17 (2) is not applicable so far as Section 17 (2-A) is concerned, but Section 17 (2-B) only directs that an application for permission to pay in instalment under Clause (b) of Section 17 (2-A) shall not be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent. Instead of mentioning the period of limitation Sub-section (2-B) only specifies the period by referring to the provisions of Section 17 (1). Section 17 (1) puts the time limit for deposit and Section 17 (2-B) adopts the same time limit for making an application for permission to pay in instalment. We do not find any conflict between the provisions of Section 17 (2-B) and Section 17 (2-A). We, therefore, overrule the said contention of Mr. Nath.

7. It was next contended by Mr. Nath that Section 17 (2-B) and Section 17 (3) were ultra vires the provisions of Article 254 and also Article 19(1)(g) of the Constitution. In order to appreciate the submissions made by Mr. Nath, on this point some facts are necessary to be stated. On August 26, 1967, the Government of West Bengal promulgated an Ordinance being West Bengal Ordinance VI of 1967. By this Ordinance certain amendments were made in the West Bengal Premises Tenancy Act, 1956. Both these provisions of Section 17 (2-A) and Section 17 (2-B) were incorporated by way of amendment in the West Bengal Premises Tenancy Act, 1956. On February 20, 1968, a proclamation was made by the President of India under Article 356(1) and a declaration was made by him under Clause (b) of Article 356(1) that the powers of the Legislature of the State of West Bengal would be ex-ercisable by or under authority of Parliament. While the proclamation was in force, on March 25, 1968, the Parliament enacted West Bengal State Legislature (Delegation of Powers) Act, 1968, under Article 357(1)(a), which authorises the Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to Impose, the power so conferred to any other authority to be specified by him in that behalf. By Section 3 of the West Bengal State Legislature (Delegation of Powers) Act, 1968, the power of the State Legislature to make laws was conferred on the President of India. By virtue of that power conferred on the President, the President enacted Act 4 of 1968 which is the West Bengal Premises Tenancy (Amendment) Act, 1968, hereinafter referred to as the President's Act. After the withdrawal of the proclamation the State Legislature enacted West Bengal Premises Tenancy (Amendment) Act 30 of 1969 on October 31, 1969. The provisions of Section 17 (2-A) and Sec. 17 (2-B) were also incorporated in the West Bengal Premises Tenancy Act, 1956, by the said Act 30 of 1969.

8. In the first instance it was argued that Section 17 (2-B) and Section 17 (3) were ultra vires the provisions of Article 19(1)(g) of the Constitution. It was submitted that the petitioner had been carrying on business in the suit permises and that his defence against delivery of possession having been struck out as he was held not entitled to make an application under Section 17 (2-A) beyond the time limit fixed under Section 17 (2-B), his fundamental right to carry on business was infringed. In our view, this is too remote a proposition to attract the provisions of Article 19(1)(g). There is no fundamental right in making defaults in payment of rent or in making deposits of rent. Under the provisions of sub-sections (1) and (2) of Section 17 a tenant is required to deposit rent within, the time mentioned in these two sub-sections and his de-, fence against delivery of possession is liable to be struck out under Sec. 17 (3) on his failure to comply with the provisions of Sub-sections (1) and (2), Section 17 (2-A) provides for granting of instalments for the deposit of the arrears of rent and Sub-section (2-B) provides for making an application praying for permission to deposit rent in instalments. If there is no fundamental right in making defaults in payment of rent, the Legislature is entitled to fix a time limit for deposit of rent or for making an application for permission to deposit rent in instalments. We fail to understand how the question of violation of any fundamental right arises. If the tenant does not comply with the provisions of Sub-sections (1) and (2) and fails to deposit rent in accordance with Sub-sections (1) and (2) or does not make an application for permission to deposit rent in instalments within the time fixed under Sub-section (2-B), the tenant is to suffer the consequence, namely, that his defence against delivery of possession will be struck out. It may be that in certain cases the tenant may not have any further defence to resist the decree for ejectment but that will not make the provisions of either Sub-section (2-B) or Sub-section (3) as violative of the provisions of Article 19(1)(g). In our view, there is no substance in the contention that Section 17 (2-B) and Section 17 (3) infringe the fundamental right of the petitioner to carry on his business in the disputed premises and that accordingly they are unconstitutional and void.

9. Next it was argued by Mr. Nath that Section 17 (3) and Section 17 (2-B) were ultra vires Article 254(1) of the Constitution, for, in enacting the President's Act, there was non-compliance of Article 254(2) of the Constitution. It was submitted that Section 17 (3) was repugnant to the provisions of the Code of Civil Procedure inasmuch as the Code of Civil Procedure does not make any provision for striking out defence against delivery of possession under the circumstances as mentioned in Section 17 (3). 'Civil Procedure' including all matters included in the Code of Civil Procedure is concurrent subject being, item No. 13 of the Concurrent List. It was submitted that Section 17 (3) having made provisions for striking out the defence against delivery of possession contrary to the provisions of the Code of Civil Procedure and the President not having complied with the procedure laid down in Article 254(2) of the Constitution, it was ultra vires. The short and simple answer to this contention made on behalf of the petitioner is that Section 17 (3) was not enacted or introduced in the West Bengal Premises Tenancy Act, 1956, by the President's Act. It is a provision of the West Bengal Premises Tenancy Act, 1956 (West Bengal Act 12 of 1936). The West Bengal Premises Tenancy Act, 1956. containing the provisions of Section 17 (3) received the assent of the President on March 30, 1956. Even assuming the Section 17 (3) was repugnant to some of the provisions of the Code of Civil Procedure, the provisions of Article 254(2) of the Constitution having been complied with will prevail and cannot be said to be unconstitutional and void. This disposes of the contention of Mr. Nath challenging the constitutionality of Section 17 (3).

10. Section 17 (2-B) was, however, enacted by the President's Act. We do not see any reason to hold that Section 17 (2-B) is repugnant to any of the provisions of the Code of Civil Procedure. As already stated, that if the tenant fails to make an application within the time fixed under Section 17 (2-B) for the relief under Clause (b) of Section 17 (2-A) the defence against delivery of possession of the tenant may be struck out But, the defence against delivery of possession has to be struck out under Section 17 (3) and if Section 17 (3) is held, to be constitutional in view of the prior assent of the President, it cannot be contended that Section 17 (2-B) is repugnant to the provisions of the Code of Civil Procedure. Clause (b) of Section 17 (2-A) gives a further opportunity to the tenant to make deposit of arrears of rent by instalments. But, that opportunity has to be availed of within the time limit fixed under Sec. 17 (2-B). There is nothing unreasonable in the provisions of Section 17(2-B). In the view we take, it is not necessary for us to dilate on the point any further by referring to cases dealing with the question of repugnancy of the provisions of a State Act with those of a Central Act in respect of the matter enumerated in the concurrent list.

11. Under Clause (1) of Article 254 of the Constitution if any provision of law made by the Legislature of a State is repugnant to any provision of law made by the Parliament, the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. Clause (1) is subject to Clause (2) which inter alia provides that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List, contains any provision repugnant to the provisions of a law made by the Parliament with respect to that matter the law 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 the State.

12. It is clear that Clauses (1) and (2) of Article 254 will apply only when the impugned law is made by the Legislature of the State. The law made by the President in exercise of his powers conferred by Section 3 of the West Bengal State Legislature (Delegation of Powers Act) 1968 cannot be said to be the law made by the Legislature of the State of West Bengal. In enacting the President's Act, the President only exercised the power of the State Legislature as conferred by the Parliament in accordance with Article 357(1)(a) of the Constitution. In our opinion, when a law is made by the President by virtue of the power conferred on him by the Parliament under Article 357(1)(a) of the Constitution, the provisions of Article 254(2) will not apply.

13. Even assuming that Article 254 applies to such a case i.e., to a case where the law is made by the President on a concurrent subject, and a provision of that law is repugnant to the law made by the Parliament on the same subject, it is difficult to hold on any logic that unless there is strict compliance with the provisions of Clause (2) of Article 254, the law so made by the President shall, to the extent of the repugnancy, be void. The assenting authority and the authority making the law being the same, the question of assent cannot arise. We would, accordingly, hold that even if the provisions of Sections 17 (3) and 17 (2-B) are held to be repugnant to the provisions of the Code of Civil Procedure which is a Central Act, those provisions having been enacted by the President by the President's Act, those will prevail notwithstanding the repugnancy.

14. The petitioner sought to avail of the reliefs under Section 17 (2-B) and made an application as provided by Section 17 (2-B) together with an application under Section 5 of the Limitation Act. 1963. The petitioner, however, became unsuccessful as it was held that Section 5 of the Limitation Act was not applicable and that the petitioner having made the application under Section 17 (2-B) beyond the time fixed by that section the petitioner was not entitled to any relief under Section 17 (2-A). Having been unsuccessful the petitioner now says that Section 17 (2-B) is ultra vires the Constitution of India. In our view, the petitioner cannot be permitted to blow hot and cold at the same time. When the petitioner made the application under Section 17 (2-B) for the relief under Section 17 (2-A), the petitioner accepted the provisions of the Act as Constitutional and valid. Having become unsuccessful the petitioner now challenges the said provisions as ultra vires the Constitution, but that is not permissible. If one accepts the provisions of a statute as legal and valid and attempts to get relief under the statute, he cannot be allowed to challenge the statute or any of its provisions as illegal and invalid. In this connection we may refer to a decision of the Special Bench of this Court in Abanindra Kumar Maity v. A. K. Mazumdar, : AIR1956Cal273 . In that case the owners made an application before the Bhag Chhas Conciliation Board for restoration to them of the lands on the ground mentioned in Clauses (a), (b) and (d) of Section 5(1) of the West Bengal Bargadars Act, 1950. The Board allowed the application under Section 5 (1) (d) of the Act The Bargadar preferred appeals to the Appellate Officer and the appeals were allowed. The orders made by the Board were set aside and it was directed that the Bargadar would continue to cultivate the lands as before. Against those orders the petitioner moved this Court under Article 226 of the Constitution. The petitioners impugned the West Bengal Bargadars Act, 1950, as being repugnant to Articles 19(1)(f), 19(1)(g) and 31(2) of the Constitution. It has been held by Chakravartti, C. J, who presided over the Special Bench in that case', the other learned Judges concurring with him, that the petitioners might not be allowed to say on the one hand that the Act is good and the benefit which they obtained under the Act should be restored to them, and say at the same time that the Act is a bad one and should be declared to be utterly void. The same principle as laid down by the Special Bench should also apply in the instant case before us. In our view, therefore, the petitioner was not entitled to impugn the constitutionality and the legality of the provisions oi Sections 17 (3) and 17 (2-B).

15. Lastly, it was contended on behalf of the petitioner that the learned Munsif was wrong in holding that Section 5 of the Limitation Act did not apply to an application for relief under Clause (b) of Section 17 (2-A). Our attention was drawn to the provisions of Section 39 of the West Bengal Premises Tenancy Act, 1956. It was contended that in view of Section 39, Section 5 of the Limitation Act was applicable. It is, however, not necessary for us to decide that point as the learned Munsif could not accept the explanation given by the petitioner for the delay in making the application for relief under Clause (b) of Section 17 (2-A). The finding of the learned Munsif on merits is a finding of fact and it will not be proper on our part to interfere with that finding of fact. We are also of the same view as that of the learned Munsif that the petitioner failed to explain the delay in making the application. We are not also prepared to believe the story that due to the ignorance of the Lawyer of the petitioner of the new provisions of Section 17 (2-B) the application was not made within the time fixed therefor. The lawyer was not examined in the case nor was any affidavit filed by him, In our view, the learned Munsif was right in dismissing the application under Section 5 of the Limitation Act.

16. For the reasons aforesaid, we affirm the order of the learned Munsif striking out the defence of the petitioner against delivery of possession and discharge the Rule. There will, however, be no order as to costs.

Arun K. Mukherjea, J.

17. I agree.


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