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1983 DIGILAW 124 (GAU)

Kamala Dutta & Ors. v. Ranendra Nath Das

1983-09-27

K.LAHIRI, T.C.DAS

body1983
Lahiri, J.- The precise question referred for our determination is : "whether the provisions of the Assam Urban Areas Rent Control Act, 1972, ceased to apply to the city of Gauhati from the date of the establishment of the Municipal Corporation of Gauhati ?" 2. To discern the question and grasp the import thereof, it is essantial to set out some fundamental facts. The Assam Urban Areas Rent Control Act, 1972, for short "the Rent Control Act", is the upshot of a number of temporary Acts, namely, the Assam Urban Areas Rent Control Acts of 1946, 1952, 1955, 1961 and 1966 on the subject. However, "the Rent Control Act" is a permanent Act and, like the preceding tempo­rary "Acts", is a piece of social legislation to uplift and upgrade the standing and status of the tenants. It provides speedy remedy for the determination of fair rent, affords safeguards to the tenants by innovating bar or prohibition against passing of order or decree for ejectment against them. ''The Act" burdens the landlords with new duties towards their tenants and provides quick relief to the tenants in the event of failure of the land­lords to perform their statutory duties. "The Act" came into force on May 2, 1972. the date of its publication in the official gazette. It extended to all Urban areas in Assam and other notified areas, however, certain premises and tenancies are excluded from the operation of the Act, though comprised within "urban Area". We extract the relevant provisions of Section I (1) (2)(a) and (b) of "the Act" : "1. Short title, extent and commencement-. (1) ***(2)(a) It extends to all Urban Areas in Assam. (b) The State Government may by notification in the Official Gazette extend it also to all such areas as are declared town lands under rule 64 (a) of the Settlement Rules under the Assam Land and Revenue Regulations, 1886 (Assam Regulation I of 1886) or the Assam Land Revenue Re-assessment Act, 1936 (Assam Act VIII of 1936). [Emphasis added] It is thus seen that "the Rent Control Act" extends "to all Urban Areas in Assam". The Legislature thought that the expressions 'urban areas' required an appropriate definition and should not be left to guess work or chances. [Emphasis added] It is thus seen that "the Rent Control Act" extends "to all Urban Areas in Assam". The Legislature thought that the expressions 'urban areas' required an appropriate definition and should not be left to guess work or chances. Accordingly, the expression 'Urban Area' was defined in Section 2 (g) of "the Act" which we extract herein-below : "(g) 'Urban Area' means any area declared to be, or included in, a municipality under the provisions of sub­section (2) of sec. 5 of the Assam Municipal Act, 1956 or declared to be notified area under he provisions of sub-section (4) of section 334 of the said Act. By the definition the limit or the boundary of Urban has been demarcated. The expression 'Urban areas' has been defined to mean (a) any area declared to be a Municipality under section 5 (2) of the Assam Municipal Act, 1956, for short "the Municipal Act"; or. (b) any area included in a Municipality under section 5 (2) of "the Municipal Act"; or, (c) any area declared to be "notified area" under Section 334 (4) of the said Act. As such, the Rent Control Act extended to the areas declared to be and included in "the Gauhati Municipality" or areas declared to be "notified area" within the town. It may be recalled that the Rent Control Acts of 1946, 1949, 1955, 1965 (all temporary Acts) were applicable to the Municipal Areas and the notified areas within the town of Gauhati. However, the previous Municipal Act i.e., the Assam Municipal Act, 1923, was repealed and re-enacted as the Assam Municipal Act, 1956. In due course town of Gauhati became a city and to manage its Municipal administration, the Gauhati Municipal Corporation Act, 1969 (Assam Act I of 1973), for brevity “the Corporation Act," was enacted. The first meeting of the elected Councillors was held on 15.2.74, after the completion of the first general election u/s. 45 of "the Corporation Act". It is the common case that "the city of Gauhati" included the entire area of the Gauhati Municipality and notified areas. Section 2 (1) of the Corporation Act, inter alia, provides that from the date of the establishment of "the Corporation" the Assam Muni­cipal Act of 1956 "shall cease to have effect within the city" of Gauhati. It also provides some saving clauses. Section 2 (1) of the Corporation Act, inter alia, provides that from the date of the establishment of "the Corporation" the Assam Muni­cipal Act of 1956 "shall cease to have effect within the city" of Gauhati. It also provides some saving clauses. We extract the relevant provisions of section 2 (1) & (2) of "the Corporatian Act" : "2(1) As from the date of establishment of the Corpo­ration, the Assam Municipal Act, 1956, the Panchayat Act, 1959 and the Assam Town and Country Planning Act, 1959 shall cease to have effect within the city. The Corporation shall be deemed to have been constituted with effect from the date of the first meeting of the elected Councillors held after the completion of the first general election under sec. 45. (2) Notwithstanding the provisions of sub-section (1) of this Section, (a) Any appointment, notification, order, Scheme, Rule, form, notice or bye-law made or issued, and any license or per­mission granted under any of the enactments referred to in sub­section (1) of this section and in force immediately before the establishment of the corporation, shall continue to be in force and be deemed to have been made, issued or granted under the provisions of this Act, unless and until it is superseded by any appointment, notification, order, scheme, rule, form, notice, or bye-law made or issued or any linense or permi­ssion granted under the provisions of this Act; (b) All debts, obligations and liabilities incurred, alt contracts entered into and all matters and things engaged to be done by, with or for the Municipal Board or Town Committees functioning in the city before such establish­ment shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Corporation or the Municipal authority concerned". [Emphasis added] The Corporation was established on and from 15.2.74 and from that date the Assam Municipal Act, 1956 ceased to have effect within the city of Gauhati. However, all notifications made or issued, including the notifications declaring the areas within the Municipality or including in the Municipality or notifications declaring notified areas under the Municipal Act, which were in force, were continued to be in force by virtue of Sec. 2(2) (a) of "the Corporation Act" until superseded by any notification to be made under "the Corporation" Act. However, it was declared that they should be deemed to have been made under the provisions of "the Corporation Act". 3. There is no wrangle at the bar (1) that the suit land is situated within the area declared to be and included in the Muni­cipality of Gauhati, (2) that the city of Gauhati comprises within it the Municipality of Gauhati and the notified area; (3) that the provisions of- "the Rent Control Act" had been duly extended to "the areas declared to be and included in the Municipality of Gauhati and the notified area within the town of Gauhati before "the Corporation Act" came into force. It may be stated here that by Notification dated November 26, 1982, the State Government in exercise of its power u/s. 1(2) (b) of the Rent Control Act extended the said Act to the areas included within the city of Gauhati constituted and notified from time to time u/s. 42 of "the Corporation Act", declaring the said areas as "town land" under Rule 64 (a) of the Settlement Rules. It was published in the Assam Gazette, Part-II-A dated 2.2.83. 4. It has been contended that the Corporation Act impliedly repealed the Rent Control Act insofar as its applicability within the city of Gauhati. Sec. 2 (g) of Rent Control Act incorporated by reference the provisions of Sections 5 and 334 of the Muni­cipal Act and as such, the repeal of the first Act. i.e., the Municipal Act, repealed the Rent Control Act, insofar as the latter Act had incorporated by reference the provisions of the former Act. As such, the area falling within the city at Gauhati ceased to be "urban area" as contemplated u/s. 2(g) of the Rent Control Act, consequently the latter Act ceased to in the city of Gauhati from 15.2.74. 5. Has the Corporation Act expressly repealed the Rent Control Act? It must be answered in the negative as the Cor­poration Act does not express so. It has been contended that the Rent Control Act was impliedly repealed. The theory under­lying "implied repeal" is that there is no necessity for the latter enactment to state in express terms that an earlier enactment has been repealed, by expressing any particular set of words, but the legislative intent to abrogate or supersede the earlier law must be manifested in the latter enactment that it has effected such supersession. The theory under­lying "implied repeal" is that there is no necessity for the latter enactment to state in express terms that an earlier enactment has been repealed, by expressing any particular set of words, but the legislative intent to abrogate or supersede the earlier law must be manifested in the latter enactment that it has effected such supersession. Implied repeal is not to be readily presumed. If the objects of the two statutes are different and the language of each statute is restricted to its own objects or subjects then they are generally intended to run parallel to each other and there would be no real conflict, though apparently it may appear to be so on the surface. The principle upon which the rule of implied repeal rests is that if the subject matter or object of the latter legislation is identical with that of the earlier, so that both cannot stand together, then the earlier Act can be said to have been repealed by the latter enactment. These findings have been drawn from Zaverbhai Amaidas vs. State of Bombay, AIR 1954 SC 752 ; Municipal, Corporation of Delhi vs. Shiv Shankar, AIR 1972 SC 815; Hari Shankar Bagla vs. State of M. P. AIR 1954 SC 465 . We have considered the objects and subjects dealt in "the Rent Control Act" as well as "the Municipal Act" and do not find that the objects and subjects dealt with by the Acts are either the same or similar. We have noticed that there is no repugnancy or conflict between the two. However in one point both the Acts deal with the same subject. It is Section 444 of "the Corporation Act", which deals with the appli­cability or the operation of the Rent Control Act within the city of Gauhati. The legislative intent evinced in Sec. 444 of the Corporation Act clearly shows that notwithstanding anything contai­ned in the Rent Control Act the provisions thereof shall not apply to the land, building or premises belonging to or vesting in the Corporation. But for the provisions of Section 444 of the Corporation Act the premises of the Corporation, which would also have attracted the provisions of the Rent Control Act, are exempted from operation. But for the provisions of Section 444 of the Corporation Act the premises of the Corporation, which would also have attracted the provisions of the Rent Control Act, are exempted from operation. When the Corporation Act itself clearly states that the provisions of the Rent Control Act shall not be applicable to the premises belonging to the Corporation it speaks in so many words that the Rent Control Act would continue to be in force in the city of Gauhati, subject to the limitation that provisions thereof shall not be applicable to the premises belonging to the Corporation. It is true that Sec. 444 of the Corporation Act refers to the Rent Control Act, 1951 and not of 1972. There existed no Rent Control Act of 1951 and the only Rent Control Act in force or in existence was the Rent Control Act of 1972 when the Corporation Act came into force in January, 1974. In the result, we have no hesitation in reach­ing the conclusion that the Rent Control Act was neither expres­sly nor impliedly repealed by the Corporation Act. On the other band we rind the legislative intent not to disturb or touch the operation of the Rent Control Act within the city of Gauhati, except putting an embargo that the provisions of the Act would not be applicable to the premises belonging to the Corporation. In our opinion, the Rent Control Act was never repealed by the Corporation Act and the legislative intent to allow the Rent Control Act to continue its operation within the city of Gauhati has been clearly expressed in the Act itself. 6. The next contention is that in accordance with the accep­ted legislative practice to incorporate by reference, Section 2(g) of "the Rent Control Act" incorporated by reference the provi­sions of Secs. 5 and 334 of the Municipal Act for the purpose and/or for furtherance of the scheme and object of the Rent Control Act. As such, when the Municipal Act ceased to apply in the city of Gauhati or repealed by the Corporation Act, the Rent Control Act was automatically repealed to the extent it incorporated by reference the provisions of the Municipal Act. As such, it has been contended that there was an automatic repeal of the Rent Control Act on and from 15.2.74, within the city of Gauhati. 7. As such, it has been contended that there was an automatic repeal of the Rent Control Act on and from 15.2.74, within the city of Gauhati. 7. It is the legislative practice to incorporate by reference a provision of an Act into a second Act. If we accept the contention that there has been incorporation of section 5 and 334 of the Municipal Act in section 2 (g) of the Rent Control Act, the repeal of the Municipal Act by the Corporation Act, in our opinion did not affect "the Rent Control Act" in any manner whatsoever. Where a provision of an Act is incorporated by reference into a second Act, it has been ruled by the Supreme Court in Ram Sarup vs. Munshi, AIR 1963 SC 553 , that the repeal of the first Act does not affect the second Act. Their Lordships relied on the Rule laid down by Brett L. J. in Clarke vs. Bradlugh (1881) 8 QBD 63, which we extract below : "Where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not repeal the second." In the circumstances, therefore, the repeal of the Assam Muni­cipal Act, 1956 by section 2 of "the Corporation Act" did not affect the Rent Control Act of 1972. The repeal of the Muni­cipal Act has had no effect on the continued operation of the Rent Control Act within the city of Gauhati. As such, the Rent Control Act continued to be in operation in the areas declared to be or included in the Municipality of Gauhati or in the notified areas although later they comprised within the city of Gauhati. In the result, we hold that the Rent Control Act never ceased to apply in the areas aforesaid falling within the city of Gauhati even after 15.2.1974. 8. Let us try to answer the question from another angle and turn to the Rent Control Act of 1972. It is a piece of permanent social legislation. In our opinion, the provisions of a permanent Act should be construed with the assumption that none of the provisions is inexact or loose, and those who assert that a provision is inexact or loose, the burden to esta­blish the proposition lies heavily on them. It is a piece of permanent social legislation. In our opinion, the provisions of a permanent Act should be construed with the assumption that none of the provisions is inexact or loose, and those who assert that a provision is inexact or loose, the burden to esta­blish the proposition lies heavily on them. It can be discharged only by pointing to something in the context to show that loose and inexact meaning should be preferred. To understand the meaning of the definition 'urban area' we must give it an inter­pretation consistent with the smooth working of the system which the benevolent Act purports to be regulating and that alterna­tive must be rejected which may introduce uncertainty, confusion or friction into the working of the system. It is not consistent with the well-known principles of construction that one is to interpret a provision with the assumption that the legislature were dealing with an uncertain state of law or fact and that the provisions of the Act to be construed in the light of that uncertainty. There is nothing in the context to show that the expression "urban area" was used in loose or inexact, ever-changing or uncertain manner. In our opinion, the definition was meant to be a permanent and fixed definition. If we look at Section 2(g) we notice that the Act is applicable mainly to areas". The substantial area is covered by the areas declared or included in the Municipalities, and notified areas declared under the Assam Municipal Act, 1956. Does it stand to scrutiny that the Rent Control Act was so structured as to depend solely on the existence of the Assam Municipal Act of 1956, so much so that if the latter Act is repealed, abrogated or suspended, the Rent Control Act would be completely ineffective, otiose or functionless? Can we assume that even by deletion or amendment or repeal of Sections 5 and 334 of the Municipal Act, the entire working system of the Rent Control Act could be nullified? Was it the object of the legislature in framing the definition of 'urban area' ? On perusal of the entire scheme of the Rent Control Act we come to the irresistible conclusion that the legislature never so intended. They made a fixed, exact and unalterable definition. Was it the object of the legislature in framing the definition of 'urban area' ? On perusal of the entire scheme of the Rent Control Act we come to the irresistible conclusion that the legislature never so intended. They made a fixed, exact and unalterable definition. On perusal of the Rent Control Act we reach the conclusion that the collocation of the words 'urban area' con­vey that once an area is declared to be or included in a Muni­cipality under Section 5(2) of the Municipal Act or declared to be a notified area under section 344(4) of the said Act, those areas shall take the colour of "urban area" for the purpose of the Rent Control Act and continue to remain so, until the definition contained in the Rent Control Act is changed or altered to exclude the said areas from the purview of the definition. Once a declaration is made under Section 5(2) and/or 334(4) of the Munici­pal Act, the area immediately falls within the defination of 'urban area' and continues to be so notwithstanding future obliteration or repeal of those sections. Once an area takes the pigment or indelible colour of 'urban area', it continues to remain so, for the purpose of the Rent Control Act. Admittedly, the city of Gauhati comprised within it the areas declared to be or inclu­ded in 'the Gauhati Municipality' under Section 5 of the Muni­cipal Act and also included areas declared to be notified area under section 334(4) of the said Act. The areas declared to be or included in the Municipality or declared to be 'notified area' became "urban area" and continued to remain 'urban area" as defined in Section 2(g) of the Rent Control Act, even after the establishment of the Corporation on 15.2.1974. There is no indication in the Rent Control Act in any form whatsoever that once an area becomes 'urban area' it could change its nature and character. The fact that the Municipal Act ceased to apply in the city of Gauhati could merely deter new areas to be included within 'urban area' other than by way of declaration by the State Government under Section 1(2) (b) of the Rent Control Act. In our opinion, the Rent Control Act being a firm and permanent Act must receive the construc­tion we have given. In our opinion, the Rent Control Act being a firm and permanent Act must receive the construc­tion we have given. We hold, therefore, that the areas declared to be or included in the Gauhati Municipality or the notified areas declared under the Municipal Act comprised within the city of Gauhati continued to remain an 'urban area' under the Rent Control Act even after the establishment of the Gauhati Municipal Corporation. The conclusion finds ample support from the language of section 444 of the Corporation Act. 9. Much emphasis has been laid on Section 2 of "the Corpora­tion Act" to show that the Rent Control Act was repealed or at least the operation of the Act ceased within the city of Gauhati. We have extracts the said provisions. If the legislative intent were to repeal the Rent Control Act or to terminate the operation of the Act within the city of Gauhati the legislature would have surely included "the Assam Rent Control Act" in the list of the Acts repealed namely the Assam Municipal Act, 1956, the Panchayat Act, 1959 and the Assam Town and Country Planning Act, 1959. The legislature would have added "the Rent Control Act" in the list and could have declared that the Rent Control Act would cease to have effect within the city of Gauhati. It follows, therefore, that the Rent Control Act was left untouched by the Corporation Act. In fact, its continuity within the city of Gauhati was formally accepted in Section 444 of the Corpora­tion Act. On perusal of Section 2(1) if the Corporation Act we have no hesitation in reaching the conclusion that the opera­tion of the Rent Control Act was never suspended nor the said Act was repealed or abrogated or effected its continued operation. 10. Now let us consider the effect of repeal and savings as contained in Section 2 of "the Corporation Act". The pro­visions of repeal and savings are in respect of "the Municipal Act" and has no bearing on the Rent Control Act. As alluded, the definition of the expressions "urban area" in the Rent Control Act, used Sections 5 and 334 of "the Municipal Act" by reference. It adopted the well known devise in legislative practice generally adopted for the sake of brevity. As alluded, the definition of the expressions "urban area" in the Rent Control Act, used Sections 5 and 334 of "the Municipal Act" by reference. It adopted the well known devise in legislative practice generally adopted for the sake of brevity. In Narottam Das vs. State of M. P., AIR 1964 SC 1667 the Supreme Court has ruled that the definitions remain effective even after the other Act, with reference to which the definition has been adopted, ceased to exit. Their Loardships have held that the definition would remain effective even after the other Act with reference to which the definition was given ceases to exist. This fact of defining expressions in an Act with reference to some other Act cannot, therefore, have the effect of making the second Act dependent on the first Act. In Ramsarup (supra) the same view was expressed by their Lordships. In Balani Ors vs. the State of Orissa. (1974) 2 SCC 777 their Lordships quoted with approval what Lord Esher, MR said, In re woods Estate (1886) 31 Ch. D. 607 dealing with legislation by incorporation, which we extract hrreinbelow : “If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have these clauses in the later Act, you have no occasion to refer to the former Act at all". Their Lordships also approved the view expressed by Brett L. J. in Clarks vs. Bradlugh [supra]. As such we are of the opinion that the definition contained in Section 2(g) of the Rent Control Act remain effective even after the Municipal Act, with reference to which the definition was given, ceased to be applicable within the city of Gauhati. We further hold that the fact of defining expressions in the rent Control Act with reference to "the Municipal Act" did not have the effect of making the Rent Control Act dependent on the Municipal Act. Therefore, notwithstanding repeal of the Municipal Act by the Corporation Act, the Rent Control Act, which was never dependent on the Municipal Act continued to be in force within the city of Gauhati. 11. Therefore, notwithstanding repeal of the Municipal Act by the Corporation Act, the Rent Control Act, which was never dependent on the Municipal Act continued to be in force within the city of Gauhati. 11. There is but one contention left to be considered. It has been contended that the notification issued by the State Govern­ment on November 25, 1982 in exercise of the power U/s. 1(2) (b) of the Assam Urban Areas Rent Control Act extending the provisions of the Act to the areas included within the limits of the city of Gauhati constituted and notified from time to time, shows that prior to the notification "the Rent Control Act" was not applicable to the city of Gauhati. We would say that the notification does not express legislative intent; as it was made by another authority and at a later time. It may be recalled that the city of Gauhati included within it, the Municipality of Gauhati as well as other areas. The Rent Control Act was not applicable insofar as the other areas were concerned. It extended only to "Urban areas", that is, the areas declared to be Gauhati Municipality or included within it, u/s. 5 of the Muni­cipal Act and other notified areas. However, apart from those areas a large chunk of area was included within the city of Gauhati and/or brought within it from time to time. In order to apply the provisions of the Rent Control Act to those areas the notifica­tion was made. Therefore, the object of the notification is to extend the provisions of the Rent Control Act to the areas o her than the Municipal areas or the notified areas. If the implica­tion of the notification is to include the areas which were declared to be the Gauhati Municipality or included in the Municipality or declared to be notified areas, it was so done as an abundant caution. The notification is not a pointer to show that the Rent Control Act ceased to apply to the city of Gauhati on the establi­shment of the Corporation. We have given reasons why the Rent Control Act continued to apply in the city of Gauhati, even after the commencement of the Corporation Act and/or the establish­ment of the Corporation. 12. The notification is not a pointer to show that the Rent Control Act ceased to apply to the city of Gauhati on the establi­shment of the Corporation. We have given reasons why the Rent Control Act continued to apply in the city of Gauhati, even after the commencement of the Corporation Act and/or the establish­ment of the Corporation. 12. For the foregoing reasons we answer the question that the Assam Urban Areas Rent Control Act, 1972 never ceased to operate in the areas which had been declared to be a Munici­pality u/s. 5(2) of the Assam Municipal Act, 1956, the areas which had been included in the Gauhati Municipality u/s. 5 of the said Act and the notified area declared u/s. 334 of the Munici­pal Act but falling within the city of Gauhati, after the enforce­ment of the Gauhati Municipal Corporation Act and/or the establi­shment of the Corporation. With these answers we remit the matter to the Hon'ble Single Judge.