Gurcharan Singh & Ors Vs. V. K.
Kaushal [1980] INSC 156 (21 August 1980)
PATHAK, R.S.
PATHAK, R.S.
GUPTA, A.C.
CITATION: 1980 AIR 1866 1981 SCR (1) 490 1980
SCC (4) 244
CITATOR INFO :
R 1987 SC 770 (4)
ACT:
Rent legislation-East Punjab Urban Rent Restriction
Act, 1949-Section 13(2) (ii) (a)Scope of Rent Act extended to cantonments by
virtue of power Conferred under Cantonments (Extension of Rent Control Laws)
Act, 1957- By an amendment of the 1957 Act power conferred on Central
Government to extend the Act both retrospectively and prospectively-Validity
of.
HEADNOTE:
Section 3 of the Cantonments (Extension of
Rent Control Laws) Act 1957 empowers the Central Government to extend by
notification to any cantonment any enactment relating to the control of rent
and regulation of house accommodation which was in force on the date of
notification in the State in which the cantonment was situated. In exercise of
this power the Central Government by a notification dated November 21, 1969
extended the East Punjab Urban Rent Restriction Act, 1949 to the cantonments in
the States of Haryana and Punjab.
By virtue of section 3(2) which was added in
the 1957 Act in 1972, the Central Government enjoyed power to extend an
enactment from a date earlier than the date of notification or from a future
date. In January, 1974 the Central Government issued a notification superseding
the earlier notification dated November 21, 1969 and extended afresh the 1949
Act to cantonments in Haryana and Punjab.
Section 13(2)(ii)(a) of the 1949 Act provides
for an order of eviction if the Controller is satisfied that the tenant has,
after the commencement of this Act without the written consent of the landlord
has sublet the entire building or a portion thereof.
The respondent-landlord in the instant case
applied for possession of his premises in Ambala Cantonment under the
occupation of the appellant-tenant on the ground that without his written
consent the tenant had sub-let the shop.
The appellant claimed that it was the joint
Hindu family of which he was a member that was the tenant and therefore there
was no question of the premises being sub-let by him to the joint family.
The Rent Controller ordered eviction. His
order was affirmed by the appellate authority. The High Court dismissed the
tenant's revision application.
Before this Court it was contended that (1)
there was no evidence that the shop was sub-let; (2) since the 1949 Act was not
in force in the Ambala Cantonment in 1967 when the sub-letting was alleged to
have taken place, the landlord could not avail of the provisions of that Act
and (3) the notification issued in 1974 was without statutory sanction and was
invalid because once the Central Government had exercised the power in 1969
that power stood exhausted and the Government could not invoke it again in
1974.
491 Dismissing the appeal, ^
HELD: 1 The finding of the High Court and the
Rent Controller that the tenant had sub-let the shop is unassailable. The shop,
to begin with, was let out to the appellant alone and not to the joint Hindu
family. The business carried on by him was later taken over by a partnership
consisting of the father and brothers and he was no longer the proprietor of
the business. [493 G & B] 2(a) The 1949 Act became law operating in the
Ambala Cantonment with affect from November 21, 1969 when the Central
Government extended that Act to the cantonments in Haryana and Punjab. The
sub-letting having taken place in 1967 when the 1949 Act was not in force the
landlord could not avail of the provisions of that Act. [494B-D] (b) In the context
of section 13(2)(ii)(a) of the 1949 Act the words "has sub-let" imply
that the sub-letting must subsist on the date when the Act came into force. the
words "has sub-let", if they are unqualified by any reference to the
commencement of the Act, refer to a transaction of sub- letting entered into
before or after commencement of the Act and in a case where sub-letting has
been effected before the commencement of the Act the sub-lease must subsist,
and the rights under it continue to now, on the date of the commencement of the
Act. In the present case, section 13(2)(ii)(a) confines its scope to sub-leases
effected after the commencement of the Act, that is to say, transactions of
sub-letting effected after the date when the Act came into force. For that reason,
a sub-letting effected before the commencement of the Act cannot be brought
within the mischief of the section even though it continues to subsist on or
after the commencement of the Act. [494H; 495A-B] Goppulal v. Thakurji Shriji
Shriji Dwarkadheeshji & Anr. [1969] 3 S.C.R. 989 held inapplicable.
3(a) By virtue of the amendments made to the 1957
Act in 1972 the 1949 Act will be deemed to have come into force in the Ambala
cantonment on January 26, 1950. Therefore, the sub-letting effected in 1967 must
plainly be regarded as having been made after the commencement of that Act.
[496D- E] (b) In issuing the notification dated January 24, 1974 and thereby
extending the 1949 Act to the Ambala Cantonment retrospectively with effect
from January 26, 1950 the Central Government exercised a power not available to
it when it issued the earlier notification of November 21, 1969. The contention
that the notification of January, 1974 amounted to a further exercise of the
same power conferred by section 3 of the 1957 Act is without force. [497 D-E]
The power under which the notification of January, 1974 had been issued is a
separate and distinct power from that under which the earlier notification was
made. The power now exercised passed into the 1957 Act when it was amended in
1972. In its nature and quality it is not identifiable with the power vested
under the un-amended Act. A power conferred by statute is distinguished by the
character and content of its essential components. If one or more material
components characterising the power cannot be identified with the material
components of another, they are two different and distinct powers. The power
under the un-amended Act was a limited Dower 492 which could operate
prospectively only while the power after amendment was retrospective. It was a
power whose reach and cover extended far beyond what the power under the un-amended
Act could achieve. [497 A-C] (c) The words "this Act" occurring in
the commencement of this Act" in clause (c) of the proviso to section 3(2)
of the 1957 Act refer to the principal Act in which sub-section (2) was
inserted in section 3 and not to the Amendment Act of 1972. By virtue of
section 2(2) as amended it is the principal Act which must be deemed to have
come into force on January 26, 1950 [497 G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 840 of 1978.
Appeal by Special Leave from the Judgment and
order dated 14th December 1977 of the Punjab and Haryana High Court in Civil
Revision No 613/74.
Govind Das, Mrs. Urmila Kapoor and Mrs. Shobha
Dixit for the Appellant.
M.N. Phadke, N.C. Jain, S.K. Dhingra and S.L.
Sethia for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by special leave is directed against a judgment of the
High Court of Punjab & Haryana dismissing a tenants' revision petition.
under s. 15(5), East Punjab Urban Rent Restriction Act, 1949 arising out of
eviction proceedings.
The respondent, as landlord, applied under s.
13(2) (ii) (a) of the East Punjab Urban Rent Restriction Act, 1949 for the
possession of a shop forming part of the premises No. 6283, Nicholson Road.
Ambala Cantonment occupied by the appellants. He claimed that the shop had been
let out to the first appellant, Gurcharan Singh but that he had without the
written consent of the respondent, sublet the shop to his father, Gurdayal
Singh and his brothers, Anoop Singh and Jagjit Singh. The appellants denied
that the shop had been sub-let and pleaded that they, along with their father
constituted a joint Hindu family, and that the joint Hindu family was the
tenant of the shop. The Rent Controller found in favour of the respondent and
passed an order of eviction, which was subsequently affirmed by the Appellate
Authority.
The appellants applied in revision, and the
High Court has, by its judgment and order dated 14th December, 1977 dismissed
the revision application.
The first contention of the appellant is that
there is no evidence that the shop was sub-let, and the finding is misconceived
in' point of law.
493 It is sufficient to point out that the
Rent Control Authorities and the High Court have concurrently found that the
shop was let out to Gurcharan Singh and not to the joint Hindu family, and that
Gurcharan Singh sub-let it in 1967 to a partnership firm consisting of his father
and brother. The finding is supported by ample evidence on the record. The
material shows that the shop was let out to Gurcharan Singh alone, and the
business carried on by him was later taken over by a partnership consisting of
his father and brothers.
He was no longer proprietor of the business,
and merely extended his assistance under a power of attorney enabling him to,
act for the partnership. The execution of the power of attorney establishes
that he was not a partner. It appears that Gurcharan Singh individually carried
on some other business, but there is no evidence to show that business was
lodged in the shop under consideration. The material before us demonstrates
that the shop was occupied exclusively by the partnership firm and that Gurcharan
Singh was left with no right to possession therein. The evidence is
incompatible with the case, now set up before us, that the partnership was
merely a licensee of Gurcharan Singh.
Learned counsel for the appellants relies on
Hira Singh & Ors. v. Banarsi Dass. That case. however, was one of a joint
tenancy, and it was held that the mere circumstance that one of the co-tenants
had ceased living in the premises for some time could not lead to the inference
that he had sub-let it to the other co-tenants. The evidence Showed that all
the co-tenants were carrying or business in partnership, although one of them
was not disclosed was a partner.
Some reliance was placed on the circumstance
that the licence for carrying on the business stood in the name of Gurcharan
Singh. As the evidence plainly shows, the licence was issued to him when he was
carrying on the business, and subsequently, although it continued to stand in
his name, it was. used by the partnership firm, and no inquiry was ever made by
the licensing authority, when renewing it, to determine whether the original
holder of the licence was still carrying on the business.
We are of opinion that the finding of the
High Court and the Rent Control authorities that Gurcharan Singh had sub-let
the shop is unassailable.
Learned counsel for the appellants contends
next that the ground sub-letting taken under the East Punjab Urban Rent
Restriction Act, 1949 is not available to the respondent because on the date
when the sub-letting took place that Act was not in force in the Ambala
Cantonment.
Now, it appears that s. 3 of the Cantonments
(Extension 494 of Rent Control Laws) Act, 1957 empowered the Central Government
to extend, by notification, to any cantonment with such restrictions and
modifications as it thought fit, any enactment relating to the t control of
rent and regulation of house accommodation which was in force on the date of
the notification in the State in which the cantonment was situated. In exercise
of that power, the Central Government issued Notification No. SRO-7. dated 21st
November, 1969 extending the East Punjab Urban Rent Restriction Act, 1949 to
cantonments in the States of Haryana & Punjab. Consequently, with effect
from 21st November. 1969 the East Punjab Urban Rent Restriction Act became a
law operating in the cantonment. Section 13 (2) (ii) (a) of the Act provides
for an order of eviction if the Controller is satisfied "that the tenant
has, after commencement of this Act, without the written consent of the
landlord- (a) transferred his right under the lease or sub- let the entire
building or rented land or any portion thereof." It is clear that the
tenant falls within the mischief of this sub-clause only if he has affected the
transfer or sub- letting after the commencement of the Act. The Act commenced
to operate in the Ambala Cantonment on 21st November, 1969.
In regard to that territory, it was not law
before that date, but only on and from that date. It is clear that the
sub-letting in the present case having been effected in 1967, was not made
after the commencement of the Act.
Learned counsel for the respondent urges that
s.
13(2)(ii)(a) of the Act uses the words
"has sub-let", and submits that sub-letting is a continuous process
and that even though in the present case it may be said to have commenced
before the Act came into force it continued in operation after the Act was
brought into force. Now, when s.
13(2)(ii)(a) speaks of a tenant who "has
sub-let", it refers to a tenant who has entered into a transaction of sub-
letting. And the transaction of sub-letting is preferable to a single point of
time. It is the moment when the act effecting the sub-letting is completed.
That transaction is located at a fixed point. What happens then is that a
flowing stream of rights and obligations issues from the sub letting. Those
rights continue as long as the sub-lease subsists. but they have their source
in the definitive transaction of sub-letting located in a single fixed point of
time. We may add that in the context of s. 13(2)(ii)(a) of the Act. the words
"has sub-let" imply that the sub- letting must subsist on the date
when the Act comes into force. The reason is apparent from the object of the
Act, which is to protect the personal occupation of the tenant.
The protection is not extended to a tenant
who has abandoned occupation of the premises and has passed possession to
another, even though by way of a sub-tenancy.
495 The protection against eviction is not
available for permitting a tenant to make a profit out of his tenancy rights by
sub-letting the premises. Therefore, the words "has sub-let"
unqualified by any reference to the commencement of the Act. refer to a
transaction of sub- letting entered into before or after the commencement of
the Act, and in the case where sub-letting has been effected before the
commencement of the Act the sub-lease must subsist, and the rights under it
continue to flow, on the date of the commencement of the Act. In the present
case, however, s. 13(2)(ii)(a) of the Act confines its scope to sub-leases
effected after the commencement of the Act, that is to say, transactions of
sub-letting effected after the date when the Act came into force. For that
reason, a sub- letting effected before the commencement of the Act cannot be
brought within the mischief of s. 13(2)(ii)(a) even though it continues to
subsist on or after the commencement of the Act. In Goppulal v. Thakurji Shriji
Shriji Dwarkadheeshji & Anr. on which learned counsel for the respondent
relies, the relevant provision did not include the words "after the
commencement of this Act". and, therefore, took within its scope a
sub-letting transacted before the coming into force of the relevant Act.
In our opinion, the respondent cannot avail
of s. 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act on the basis
that it was brought into operation in the Ambala Cantonment by the Notification
of 1969.
We find, however, that the Cantonment
(Extension of Rent Control Laws) Act, 1957 was amended by Act No. XXII of 1972.
Upon amendment, s. 1(2) of the principal Act declared that the principal Act
would be deemed to have come into force on 26th January, 1950. The words
"on the date of the Notification" were omitted in s. 3(1) of the
principal Act, and were deemed always to have been omitted, so that under s. 3
the Central Government must be deemed to have been empowered always to extend
to a cantonment any enactment relating to the control of rent and regulation of
house accommodation in force in the State even as it stood before the date of the
Notification. This amendment was made in order to accord with the further
amendment made by inserting sub-section (3) in s. 3 of the principal Act, which
provided that where an enactment in force in any State relating to the control
of rent and regulations of house accommodation was extended to a cantonment
from a date earlier than the date of such extension was made, such enactment,
as in force on such earlier date, would apply to such cantonment.
Section 3(2) was added in the principal Act,
and it provided:
496 "2. The extension of any enactment
under sub-s. (1) may be made from such earlier or future date as the Central
Government may think fit:
Provided that no such extension shall be made
from a date earlier than- (a) the commencement of such enactment, or (b) the
establishment of the cantonment, or (c) the commencement of this Act, whichever
is later." Subject to the proviso, the Central Government now enjoyed
power to extend an enactment from a date earlier than the date of the
notification or from a future date.
Subsequently, the Central Government issued
Notification No. SRO-55, dated 24th January, 1974 superseding the earlier
Notification No. SRO-7, dated 21st November, 1969 and extending the East Punjab
Urban Rent Restriction Act afresh to cantonments in the States of Haryana and
Punjab. Section 1(3) of that Act was modified to read that, except for s.
19, it would be deemed to have come into
force on 26th January. 1950. The result is that the East Punjab Urban Rent
Restriction Act will be deemed to have come into force in the Ambala Cantonment
on 26th January, 1950. And if that be so, the sub-letting effected in 1967 must
plainly be regarded as having been made after the commencement of that Act.
Two points are raised on behalf of the
appellants against that conclusion. The first is that the power under s. 3 of
the Cantonments, (Extension of Rent Control Laws) Act, 1957 having been
exercised once, that is to say, by the Notification dated 21st November, 1969,
the power of extension stood exhausted and could not be availed of again, and
therefore the Notification dated 24th January, 1974 was without statutory
sanction and invalid. We are referred to Lachmi Narain etc., etc. v. Union of
India & Ors. That was a case where this Court held that a Notification
under s. 2 Part States (Laws) Act, 1950 having been issued in 1951 by the
Central Government extending the Bengal Finance (Sales- Tax) Act, 1941 to the
State of Delhi, the power given by s.
2 exhausted itself on the extension of the
enactment and could not be exercised again to enable the issue of a fresh
Notification modifying the terms in which the Bengal Act was extended. The case
is clearly distinguishable. The power under which the Notification dated 24th
January, 1974 has been issued is a separate and distinct power from that under
which the Notification dated 21st November, 1969 was made.
The power now exercised passed into the Cantonments
(Extension of Rent Control Laws) Act, 497 1957 when it was amended in 1972. In
its nature and quality it is not identifiable with the power vested under the un-amended
Act. A power conferred by statute is distinguished by the character and content
of its essential components. If one or more material components characterising
the power cannot be identified with the material components of another, they
are two different and distinct powers.
Although broadly the power envisaged in s. 3
of the amended Cantonments (Extension of Rent Control Laws) Act, 1957 is a
power of extension even as it was under the un-amended Act, there is a vital
qualitative difference between the two. The power under the un-amended Act was
a limited power. It could operate prospectively only. There was no choice in
the matter. After amendment, the Act provided for a power which could be
exercised retrospectively. The power extended to giving retrospective effect to
an enactment in force in the State in the form in which that enactment was in
force on the date on which the extension was made. It was a power whose reach
and cover extended far beyond what the power under the un-amended Act could
achieve.
We are of the view that in issuing the
Notification dated 24th January, 1974 and thereby extending the East Punjab
Urban Rent Restriction Act to the Ambala Cantonment retrospectively with effect
from 26th January, 1950, the Central Government exercised a power not available
to it when it issued the Notification dated 21st November, 1969.
The contention that the issue of the
Notification of 24th January, 1974 amounted to a further exercise of power
conferred by s. 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957,
under which the earlier Notification was issued is without force and must be
rejected.
The second point raised is that in clause (c)
of the proviso to s. 3(2) of the Cantonments (Extension of Rent Control Laws)
Act, 1957, which speaks of "the commencement of this Act", the words "this
Act" refer to the Cantonments (Extension of Rent Control Laws) Amendment
Act, 1972, which commenced to operate from 2nd June, 1972. The argument is
founded in fallacy. The words "this Act" refer to the principal Act
in which sub-section 3(2) is inserted by virtue of the amendment, and that Act,
by virtue of s. 2(2) as amended, must be deemed to have come into force on 26th
January, 1950.
In the result, the appeal fails and is
dismissed with costs.
Appeal dismissed.
P. B. R.
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