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1962 DIGILAW 68 (CAL)

Mannulal Shaw v. STATE OF WEST BENGAL

1962-03-12

BANERJEE

body1962
JUDGMENT 1. THE constitutional validity of subsection (5) of section 30 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) is the point which calls for my determination in this Rule. The respondents Nos. 4 to 8 are the owners landlords of premises No. 3, Convent Garden Road, in the town of Serampore. Since the time of their predecessor-in-interest, Akshoy Kumar Das, since deceased, one Ram Nazar Pandey was a tenant in the said premises. The said Ram Nazar Pandey inducted the two petitioners, as subtenants, in two different portions of the said premises and such sub-letting is said to have taken place long before March 31, 1956, when the West Bengal Premises Tenancy Act, 1956 came into operation. Section 16 of the Act provides for notification of creation and termination of sub-tenancies and sub-section (2) of section 16, which is material for the purposes of this Rule, reads as follows :- "(2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sub-let any premises either in whole or in part, the tenant and every sub-tenant to whom the premises have been sublet shall give notice to the landlord of such sub-letting in the prescribed manner within six months of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy, within one month of such termination." Sub-section (5) of section 30 of the Act provides for a penalty for failure to give notice under section 16 and is set out below:- "(5) Any tenant or subtenant who fails to give notice as required under sub-section (1) or sub-section (2) of section 16 or intentionally furnishes information in such notice which is false in any material particular, shall on the complaint of the landlord of the premises made to the Controller, be liable to a fine which may extend to one thousand rupees." Section 33 of the Act provides for a period of limitation for such complaints and is hereinbelow quoted:- "no complaint under section 30 or section 31 shall be brought against a person after the expiration of six months from the date of the commission of the act in respect of which the complaint is brought. " 2. ON January 10, 1957, the respondents Nos. " 2. ON January 10, 1957, the respondents Nos. 4 to 8 filed a petition of complaint before the Rent Controller, Serampore, against their tenant Ram Nazar Pandey and also against the two petitioners and several other subtenants in the premises alleging that Ram Nazar Pandey had inducted subtenants in the premises before the commencement of the Act but neither he nor the sub-tenants notified the sub-tenancy to the landlord under the provisions of section 16 (2) of the Act and as such rendered themselves liable to the penal provisions of section 30 (5) of the Act. The petitioners filed a petition of objection contending, inter alia, that the application was not maintainable in law and was also barred by limitation. The Rent Controller upheld the objection of the petitioners that the complaint was barred by limitation and dismissed the petition of complaint. The respondents Nos. 4 to 8 preferred an appeal against the order before the learned District Judge of Hooghly, who allowed the appeal and remanded the case to the Rent Controller for disposal according to law. The learned District Judge set aside the finding as to limitation with the following observations:- "section 33 lays down that no complaint under section 30, shall be brought against a person after the expiration of six months from the date of the commission of the act in respect of which the complaint is brought. The present Act came into force on the 31st March, and the complaint under section 30 was made on the 10th of January, 1957. Evidently, the complaint was not made within six months of the date of commencement of the Act. But section 33 which prescribes the period of limitation does not say that a complaint becomes barred after the expiration of six months from, the date of commencement of the Act. The limitation is six months from the date of the commission of the act in respect of which the complaint is brought. The tenant and subtenants have been given six months time to give notice to the landlord. It is obvious that no complaint against them can be made for the violation of the provisions of section 16 (2) within six months. It is only after the expiry of the period of six months that they can be said to be guilty of violation of the provisions of section 16 (2). It is obvious that no complaint against them can be made for the violation of the provisions of section 16 (2) within six months. It is only after the expiry of the period of six months that they can be said to be guilty of violation of the provisions of section 16 (2). The period of limitation provided in section 33 will begin to run from the date when the period of six months mentioned in section 16 (2) of the Act expires. " The petitioners moved this Court under Article 226 of the Constitution, praying for a Writ of Certiorari quashing the order passed by the learned District Judge. 3. MR. Apurbadhan Mukherjee, learned Advocate for the petitioners, contended that sub-section (2) of section 16 of the Act, which created an obligation upon tenants and sub-tenants to give notice of sub-letting and sub-section (5) of section 30 of the Act, which made the omission to give such notice an offence punishable with fine were beyond the legislative competence of State Legislature to enact, both the provisions being matters coming within List I of the Seventh Schedule of the Constitution and the Parliament alone could legislate in the matters. Elaborating his argument, he relied upon section 108 (j) of the Transfer of Property Act and contended that under that provision the lessee had an absolute right to sublet provided he did not himself, by reason only of such sub-letting, cease to be the subject to any of the liabilities attaching to the lease and that the State Legislature had no jurisdiction to delimit that right in the manner provided for in section 16 (2) of the West Bengal Premises Tenancy Act and further to make the non-compliance with the provision of section 16 (2) of the Act a penal offence as in section 30 (5) of the Act. 4. THE argument, in my opinion, is not very well-conceived. Items 18 and 64 of List II of Schedule VII of the Constitution, dealing with matters in which the State Legislature can legislate, are to the following effect:- " (18) Land is, that is to say, rights in or over land, land-tenures including the relation of landlord and tenant, and the Collection or rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. (64) Offences against laws with respect to any of the matters in this list. (64) Offences against laws with respect to any of the matters in this list. " Items 1, 2 and 6 of List III of Schedule VII of the Constitution dealing with the concurrent list read as follows :- "(1) Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of Civil power. (2) Criminal procedure including all matters included in the Code of Criminal Procedure: at the commencement of this Constitution. (6) Transfer of property other than agricultural land; registration of deeds and documents. " The West Bengal Premises Tenancy Act is an Act to provide for regulation of certain incidents of tenancy of premises in Calcutta and some other areas in West Bengal. The question whether the word "land" in entry 21 of List II of Schedule VII of the Government of India Act, 1935, (which is the nearest equivalent to item 18 of List II of Schedule VII of the Constitution) includes building and houses has given rise to a conflict of opinions amongst different High Courts. The High Courts of Nagpur (in Manohar v. Desai (1) A. I. R. 1951 Nag. 33), Bombay (in Patel v. Viswanath (2) A. I. R. 1954, Bom. 204) and Allahabad Raman v. State of U. P., (3) A. I. R. 1952, All. 703) are of the opinion that "land" includes houses and buildings and legislation concerning house letting comes under entry 21 of Schedule VII of the Government of India Act, 1935. On the other hand, the High Courts of Patna (in Mangtulal v. Radhashyam, (4) A. I. R. 1953, Pat. 14) and Rajasthan (in Milap v. Dwarka, (5) A. I. R. 1954, Raj. 252) are of the opinion that the word "land" cannot be so widely interpreted as to include houses and buildings within its scope. The High Court of Nagpur proceeded on the definition of "land" in section 3 of the Interpretation Act (52 and 53 Vic. c. 63) in interpreting entry 21 of List II of Schedule VII of the Government of India Act, 1935, and held that "land" included houses and buildings. The High Court of Nagpur proceeded on the definition of "land" in section 3 of the Interpretation Act (52 and 53 Vic. c. 63) in interpreting entry 21 of List II of Schedule VII of the Government of India Act, 1935, and held that "land" included houses and buildings. The High Court of Bombay emphasised on the word "including" appearing in entry 21 of Schedule VII of the Government of India Act, 1935, and interpreted the word as a term of extension which added to the subject matter already comprised in the word "land" and in that view of the matter gave an extended meaning to the word "land" as including houses as well. The Allahabad High Court adopted the line of least resistance and expressed the view that the word "land" would include house property, because that was not disputed before them and in any event the U. P. Temporary Control of Rent and Eviction Act, 1947, would be saved because it also fell within entry 8 of List III, Schedule VII of the Government of India Act, 1935 being the equivalent of item 6 of List III, Schedule VII of the Constitution. 5. I need not enter into the controversy whether the word "land" in item 18 of List II of Schedule VII of the Constitution would include house as well because in any event the provisions contained in section 16 (2) of the West Bengal Premises Tenancy Act would be saved under item 6, List III of Schedule VII of the Constitution, the Act having been reserved for the consideration of the President and having received his assent before it was enforced. Then again, sub-section (5) of section 30 comes both under item 64, List II and under item 1 of List III of Schedule VII of the Constitution, more properly under item 64 of List II. Therefore, no question of that provision being ultra vires the power of the West Bengal Legislature to enact does arise. I therefore, overrule the first branch of the contention of Mr. Mukherjee. 6. I have to dispose of one other argument advanced by Mr. Mukherjee before I close the judgment. He contended that the petition of complaint was barred by limitation under section 33 of the Act. I therefore, overrule the first branch of the contention of Mr. Mukherjee. 6. I have to dispose of one other argument advanced by Mr. Mukherjee before I close the judgment. He contended that the petition of complaint was barred by limitation under section 33 of the Act. Elaborating this branch of the argument he contended that the Act came into operation on March 31, 1956, and the complaint was filed on January 10, 1957, long after six months of the commencement of the Act. The commencement of the Act is of little consequence. What is material is the commission of the act, that is to say, commission of the offence. The offence is committed under section 16 (2) only after the expiration of six months from the date of the commencement of the Act. Counted from the date of the commission of the offence the complaint was filed in time. Both the arguments advanced by Mr. Mukherjee fail and I discharge this Rule but make no order as to cost.