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1952 DIGILAW 255 (RAJ)

Atma Ram v. Madanlal Rathi

1952-10-27

BAPNA, WANCHOO

body1952
Wanchoo, C.J.—This is an application by Atma Ram under Art. 226 of the Constitution of India for issue of a Writ of certiorari or mandamus against the Additional Commissioner, Udaipur, and the Rent Controller, Udaipur. 2 The case of the applicant is that he took a shop on lease from Shamlal who has also been made a party to this application. Shyamlal made an application under the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance No. XXII of 1948 before the Rent Controller, Udaipur, on 9th of December, 1950. That application was decided on the 28th September, 1951, by which date the Rajasthan Premises Control of Rent and Eviction Act (No. XVII of 1950 had come into force. The applicant filed an appeal before the Commissioner, as provided in the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. XXII) of 1948. He also took the precaution of filing an appeal before the District Magistrate under sec. 22 of Act XVII of 1950. The appeal before the Commissioner was heard by the Additional Commissioner who, however, held that he had no jurisdiction to hear the appeal and returned it for presentation to proper authority on the 10th December, 1951.. The appeal, which was pending before the District Magistrate, was not decided upto the 21st December, 1951, when the present application was made in this Court. It was decided later and the District Magistrate held that he had no jurisdiction to hear the appeal. The applicants contention is that the (former) United State, of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. XXII) of 1948. gave him the substantive right of appeal against the order of the Rent Controller. That right could not be, and has not been, taken away by the Rajasthan Act No. XVII of 1950, and therefore his appeal should be heard by some authority, and he should not be told, both by the Commissioner who was the authority under the (former) United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. XXII) of 1948, and by the District Magistrate who is now the Appellate Authority under the Rajasthan Premises Control of Rent and Eviction Act (No. XVII) of 1950, that neither of them can hear the appeal. 3. 3. Before we decide the question as to which is the proper forum for hearing the appeal in this case, we have to decide which law7 was in force on the 9th December, 1950, when Shyamlal made his application before the Rent Controller. It is contended that the law in force was Ordinance No. XXII of 1948, and not Act XVII of 1950. The Assistant Government Aadvocate however contends that Act XVII of 1950 had come into force on the 28th of November, 1950. Sec. 2 of that Act provides that certain sections shall come into force at once, while others shall come into force with effect from such date as may, from time to time, be notified by the Government in the Rajasthan Gazette. Sec. 30 is one of the sections which is provided as coming into force at once. The other provisions of the Act, which were to come into force on Notification by the Government, were in this particular case notified on the 16th February, 1951, to apply to the town of Nathdwara from which this case comes. Section 30 of Act XVII of 1950 reads as follows:— "The United State of Rajasthan Buildings (Lease and Rent Control) Ordinance 1948, the Matsya Premises (Rent Control) Ordinance, 1948, the Jaipur Rent Control Order. 1947, the Marwar House Rent Control Act, 1949, the Sirohi State Rent Restric-tion Act, 1944, and other corresponding laws of the Covenanting States dealing with the control of rents and evictions shall be repealed with effect from the date on which this section comes into force;" There is a proviso which makes the usual provision that anything done or action taken before such date under the repealed law shall, until varied or superseded under the new Act, continue and be deemed to have been done or taken in pursuance of the new Act as if it was then in force. 4. It is urged that sec. 30 is provided as coming into force at once under sec. 2, and as His Highness the Rajpramukh made Act No. XVII of 1950 on the 28th November, 1950, the repealing section came into force from the 28th November, 1950, and the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. XXII) of 1948 was not in existence on the 9th December, 1950, when Shyamlal made his application. Therefore, sec. Therefore, sec. 27 (2) or Act XVII of 1950, which applies to pending applications, would not apply to this case, and the Rent Controller, who purported to act under sec. 27(2) and treated it as a pending case, and followed the law under the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance (No. XXII) of 1948, had no jurisdiction to pass the order of eviction of the applicant which he did. 5. The reply to this argument is that Act XVII of 1950 was published, for the first time, in the Rajasthan Gazette on the 23rd December, 1950. On that very date, certain towns were notified to which the rest of the provisions of the Act were applied by the Government under sec. 2. Nathdwara, of course, was not in the list, and the Act was applied to Nathdwara on the 16th February, 1951. It is urged that as there was no legislature in Rajasthan when Act XVII of 1950 was passed, it should be deemed to have come into force on the 23rd December, 1950, when it was first published in the Rajasthan Gazette. If this view is correct, the former Act would be in force on the 9th December, 1950. 6. We are, however, of opinion that the view urged by the Assistant Government Advocate is correct, and Act XVII of 1950 came into force on the 28th November, 1950, when it was made by His Highness the Raj Pramukh. We may in this connection refer to our decision, dated 1st May, 1952, in Surajmal vs. The Rajasthan State (1). In that case, the question arose whether Ordinance XVI of 1949 came into force on the 9th September, 1949, when it was promulgated by His Higness the Raj Pramukh, or on the 19th September, 1949, when it was, for the first time, published in the Rajasthan Gazette. We came to the conclusion that that Ordinance must be held to have come into force on the 9th September, 1949, when it was promulgated by His Highness the Raj Pramukh. That" Ordinance like Act XVII of 1950 provided that the provisions of the General Clauses Act, 1879, of the Central Legislature shall mutatis mutandis apply, so far as may be, to it. In that case we relied on sec. 5A of the General Clauses Act of 1897. We now find that sec. That" Ordinance like Act XVII of 1950 provided that the provisions of the General Clauses Act, 1879, of the Central Legislature shall mutatis mutandis apply, so far as may be, to it. In that case we relied on sec. 5A of the General Clauses Act of 1897. We now find that sec. 5A had been repealed by the India (Adaptation of Existing Indian Laws) Order, 1947. The mistake took place because the copy of the General Clauses Act 1897 then before us did not mention the repeal. However, we are of opinion that that makes no difference, because the material words of sec. 5A of the General Clauses Act are exactly the same as in sec 5 (1), which reads on follows:— "Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent— (a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and (b) in the case of an Act of Parliament, of the President." This section is applied mutatis mutandis to the interpretation of Act XVII of 1950 by sec. 4 of the Act. In Art. 385 of the Constitution, it is provided that until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified. There was no legislature in Rajasthan and before the Constitution came into force on the 26th January, 1950, laws used to be framed in the shape of Ordinances under Art. X (3) of the Covenant by which the United State of Rajasthan was brought into existence. There was no legislature in Rajasthan and before the Constitution came into force on the 26th January, 1950, laws used to be framed in the shape of Ordinances under Art. X (3) of the Covenant by which the United State of Rajasthan was brought into existence. That Article is as follows:— "Until a Constitution so framed comes into operation after receiving the assent of the Raj Pramukh, the legislative authority of the United State shall vest in the Raj Pramukh, who may make and promulgate Ordinances for the peace and good Government of the State or any part, thereof, and any Ordinance so made shall have the like force of law as an Act passed by the legislature of the United State." In view of this provision His Highness the Raj Pramukh was the legislature for Rajasthan when Act XVII of 1950 was passed. He was also the Raj Pramukh whose duty it was under the Constitution to give assent to laws passed by the legislature. Thus the functions of the legislature and the President who gives assent to laws passed by the legislature were vested in the same person in Rajasthan, namely, His Highness the Raj Pramukh. 7. Now we turn to sec. 5 (1) of the General Clauses Act. That section says that where a Central Act is not expressed to come into operation on a particular day, it shall come into operation on the day it receives the assent of the President. Act XVII of 1950 does not express any particular day on which it comes into operation. That would have been so if a date had been specified in sec. 2 for coming into operation of the Act. No such date has been specified, and all that is said is that certain sections shall come into force at once, and certain sections shall come into force when the Government so notifies with respect to a particular town. Therefore, Act XVII of 1950 was not expressed to come into operation on a particular day. If it was a Central Act, it would have come into operation on the day it received the assent of the President. The provisions of sec. 5 have to be applied mutatis mutandis to Act XVII of 1950. Therefore, Act XVII of 1950 was not expressed to come into operation on a particular day. If it was a Central Act, it would have come into operation on the day it received the assent of the President. The provisions of sec. 5 have to be applied mutatis mutandis to Act XVII of 1950. This means that in place of the words "Central Act" in that section, we have to read the "Rajasthan Act", and in place of the words "Act of Parliament" we have to read the words "Act made by the Raj Pramukh", and in place of the "President" we have to read the word "Raj Pramukh". Making these changes, it follows that a Rajasthan Act, made at a time when Art. 385 of the Constitution was applicable, as in this case, would come into force when it receives the assent of the Raj Pramukh, if it does not express any particular date on which it is to come into operation. The Act says that certain sections will come into force at once that is as soon as the Act is enforced. The Act comes into force as soon as it receives the assent of the Raj Pramukh. We know that the Act was made by the Raj Pramukh on the 28th of November, 1950. That must, therefore, be the date on which it received his assent. That therefore is the date on which Act XVII of 1950 must be held to have come into force. The view, therefore, that we have taken in Surajmals case mentioned above (1) (1953 R.L.W. 144.) is correct, even though we have mentioned sec. 5A of the General Clauses Act 1897 there, for we have arrived at the same conclusion using sec. 5 (1) instead. 8. Learned Counsel cited General Clauses Act of certain Part A States in this connection. It is enough to say that in those Acts, there is a specific provision that laws made would come into force on the date of publication. Those Acts therefore are not helpful in our case because we are governed by the General Clauses Act of 1.97. 9. It is enough to say that in those Acts, there is a specific provision that laws made would come into force on the date of publication. Those Acts therefore are not helpful in our case because we are governed by the General Clauses Act of 1.97. 9. Our attention is also drawn to certain observations in Harla vs. The State of Rajasthan (2) (A.I.R. 1951 Supreme Court, 467.) which are as follows:— "The thought that a decision reached in the secret recesses of a chamber to which the public have no access, and to which even their accredited representatives have no access and of which they can normally know noting, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." These observations, however, do not apply to the facts of the case before us, because we have sec. 5 of the General Clauses Act, which provides when an Act will come into force, and it is on the interpretation of that section that we have come to the conclusion that Act XVII of 1950 came into force on the 28th November, 1950. 10. We have now to see how this affects the position in this case. Act XVII of 1950 came into force on the 28th of November, 1950. Sec. 2 provides that sec. 30 shall come into force at once, and sec. 30 repeals the United State of Rajasthan Buildings (Lease and Rent Control) Ordinance, 1948, from the date it comes into force, Shyamlals application, which was filed on the 9th December, 1950, could not be under Ordinance XXII of 1948, because that Ordinance was repealed on the 28th of November, 1950. Therefore sec. 27(2) of Act XVII of 1950 can have no application to Shyamlals petition of the 9th December, 1950. As a matter of fact, till the Government notified on the 16th February 1951 that Act XVII of 1950 would apply to Nathdwara, there was no Act for control of rent and eviction in force in Nathdwara between the 28th of November, 1950 and the 16th of February, 1951. As a matter of fact, till the Government notified on the 16th February 1951 that Act XVII of 1950 would apply to Nathdwara, there was no Act for control of rent and eviction in force in Nathdwara between the 28th of November, 1950 and the 16th of February, 1951. Further, the Notification of the 16th February, 1951, gave jurisdiction to Extra Magistrate Nathdwara to deal with applications under Act XVII of 1950. The Rent Controller, Udai-pur, who had decided this application treating it as a pending application under Ordinance XXII of 1948, had thus no jurisdiction whatsoever to decide this application which was filed after Ordinance XXII of 1950 had been repealed, and it could not therefore be treated as a pending application under sec. 27(2) of Act XVII of 1950. 11. In this view of the matter it is not necessary to decide whether the(appeal would lie, for this is a clear case where the Rent Controller, who passed the order dated 28th September, 1951, had no jurisdiction whatsoever. As the case has come before us, and the Rent Controller, Udaipur, who passed the Order, is also a party, we have jurisdiction to make suitable orders in the case. It is not right that we should allow an order like the one passed by the Rent Controller on the 28th September, 1951, to exist when it is clearly without jurisdiction. 12. We, therefore, allow this application and quash the order of the Rent Controller, dated the 28th September, 1951. In view of the peculiar circumstances of the case, and considering that the point on which the applicant has succeeded was not taken by him in his application, we order parties to bear their own costs of these proceedings.