Research › Browse › Judgment

Allahabad High Court · body

1983 DIGILAW 317 (ALL)

Dayawati v. Cantonment Board Executive officer Cantt.

1983-04-25

N.D.OJHA

body1983
JUDGMENT N.D. Ojha, J. - Common questions arise for consideration in these three writ petitions. They are, as such, being decided together. Cantonment Board, Meerut, filed three suits, one against each of the Petitioners in these three writ petitions, in the Court of Judge, Small Causes, Meerut. These suits were filed for ejectment of the Petitioners from the quarters occupied by them and for recovery of arrears of rent etc. on the ground that they were tenants of those quarters which belonged to the Cantonment Board, that they were in arrears of rent, that the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, were not applicable to the quarters occupied by the Petitioners in view of the exception contained in Section 2(1)(a) read with Section 3(o) of the Act and that the tenancy of the Petitioners had been duly terminated by serving upon them a notice u/s 106 of the Transfer of Property Act. 2. The Petitioner in each of the three writ petitions asserted to be a licensee and not a lessee. All the three suits have been decreed on the finding that the Petitioner in each of the three writ petitions was a lessee of the Cantonment Board and his tenancy had been duly terminated. It has also been held that the provisions of the Act were not applicable to the quarters in question in view of the provisions contained in Section 2(1)(a) read with Section 3(o) of the Act. It is these orders passed in the three suits which are sought to be quashed in the present writ petitions. 3. That the Act, but for the provisions contained in Section 2(1)(a) read with Section 3(o) thereof would have applied to the quarters in question subject to certain restrictions, exceptions and modifications admits of no doubt in view of the decision of a Division Bench of this Court in Lekh Raj Vs. 4th Additional District Judge, Meerut and Others, AIR 1982 All 265 . However, since each of the quarters in question belong to the Cantonment Board, Meerut, which is a local authority it would be "public building" within the meaning of the said term defined in Section 3(o) of the Act and the provisions of the Act would not be applicable to it in view of Section 2(1)(a) thereof. However, since each of the quarters in question belong to the Cantonment Board, Meerut, which is a local authority it would be "public building" within the meaning of the said term defined in Section 3(o) of the Act and the provisions of the Act would not be applicable to it in view of Section 2(1)(a) thereof. No exception can, therefore, be taken to the finding in the impugned orders in this behalf. 4. The findings that each of the Petitioners was a lessee and not licensee of the Cantonment Board, Meerut, and that his tenancy had been duly terminated do not suffer from any such error which may justify interference under Article 226 of the Constitution. 5. The only other point which has been urged by Counsel for the Petitioner in each of these three writ petitions is that the Judge, Small Causes, had no jurisdiction to entertain the suit inasmuch as the relevant provisions of U.P. Civil Laws (Amendment) Act, 1972 (hereinafter referred to as U.P. Act 37 of 1972) which had the effect of conferring jurisdiction upon a Judge, Small Causes, in respect of a suit by a lessor against his lessee even in regard to those buildings which were situate within the limits of a Cantonment Board were ultra vires inasmuch as in view of entries 3 and 95 of List I of the Seventh Schedule to the Constitution it was only the Parliament and not a State legislature which was competent to legislate in regard to jurisdiction and powers of a Court in respect of a building situate within Cantonment areas. 6. Having heard Counsel for the parties I find it difficult to agree with this submission in view of the decision of the Supreme Court in State of Bombay v. Narottam Das AIR 1933 SC 69. One of the two questions canvassed in the aforesaid case was that the Bombay City Civil Court Act (40 of 1948) in so far as it conferred jurisdiction on a city civil Court to take cognizance of suits based on promissory notes was ultra vires the Provincial Legislature by reason of its being in encroachment by the Provincial Legislature upon the field of legislation reserved for the Centre under entries 28 and 53 of List I of Schedule 7 to the Government of India Act, 1935. This argument was repelled and it was held that the Bombay Civil Court Act was not ultra vires on the ground referred to above. In the aforesaid case the entries relevant for purposes of this case which came up for consideration were entries 28 and 53 of List I, entries 1 and 2 of List II and entry 15 of List III of Schedule 7 to the Government of India Act, 1935. 7. Entry 28 of List I of Schedule 7 to the Government of India Act, 1935, read as follows: Cheques, bills of exchange, promissory notes and other like instruments. Entry 43 of List I of the Seventh Schedule to the Constitution reads as follows: Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of houses accommodation (including the control of rents), in such areas. 8. Just as because of the use of the words "promissory notes" in entry 28 of List I of Schedule 7 to the Government of India Act, 1935, it was urged in case of State of Bombay v. Narottam Das (Supra) that in view of entry 53 of List I aforesaid it was the Federal Legislature alone and not the Provincial Legislature which was competent to legislate in regard to jurisdiction and powers of Court in respect of a suit based on a promissory note, it was urged by Counsel for the Petitioner in these writ petitions that because of entries 3 and 95 of List I of the Seventh Schedule to the Constitution of India, it was the Parliament alone and not the State Legislature of Uttar Pradesh which was competent to legislate in regard to jurisdiction and powers of a Court in respect of a building situate within cantonment areas. Entry 53 of List I, entry 1 of List II, entry 2 of List II, and entry 15 of List II Schedule 7 to the Government of India Act are with certain modifications in pari materia with entry 95 of List I, entry 3 of List II, entry 65 of List II, and entry 46 of List III of the Seventh Schedule to the Constitution of India. At this place it may also be pointed out that entry 3 of List II of the Seventh Schedule to the Constitution of India was amended by the Constitution (42nd Amendment) Act, 1976, and before its amendment it read as follows: Administration of justice; constitution and organisation of all Courts, except the Supreme Court and the High Courts, Officers and servants of the High Courts, procedure in rent and revenue Courts; fees taken in all Courts except the Supreme Court. Since U.P. Act 37 of 1972 was enacted in the year 1972 it is entry 31 of List II as it stood before its amendment by the Constitution (42nd Amendment) Act, 1976 which would be applicable for consideration of the submission made by Counsel for the Petitioners in the instant case and it is this unamended entry which was with certain modifications in pari materia with entry 1 of List II of Schedule 7 to the Government of India Act, 1935. In the case of State of Bombay v. Narottam Das (supra) notwithstanding the fact that the words "promissory notes" occurred in entry 28 of List I of Schedule 7 to the Government of India Act, 1935 and notwithstanding entry 53 in the aforesaid List it was held that the Bombay City Civil Court Act was not ultra vires. Hon'ble Fazal Ali, Hon'ble Mahajan and Hon'ble Mukherjee, JJ. took the view that the Act was intra vires the Bombay Legislature under entry 1 of List II of the aforesaid Schedule, which provided to it legislative competence inter alia in the matter of "the administration of justice; constitution and organisation of all Courts, except the Federal Court". Hon'ble Patanjali Sastri and Hon'ble Das, JJ. also concurred with the view that the aforesaid Act was intra vires the Bombay Legislature. They, however, gave a different reason. It was held by them that entry 2 read with entry 1 of List II aforesaid clearly authorized the Provincial Legislature to make a law conferring on or taking away from a Court general jurisdiction and powers relating to or touching or concerning or for administration of justice. 9. They, however, gave a different reason. It was held by them that entry 2 read with entry 1 of List II aforesaid clearly authorized the Provincial Legislature to make a law conferring on or taking away from a Court general jurisdiction and powers relating to or touching or concerning or for administration of justice. 9. In the instant case also, as already seen above, entry 3 of List II before its amendment by the Constitution (42nd Amendment) Act, 1976, used almost the same language as was used in entry 1 of List II referred to above namely "administration of justice; constitution and organisation of all Courts except the Supreme Court and the High Courts". It has further been already pointed out that even entry 2 of List II of Schedule 7 to the Government of India Act, 1935, is with certain modifications in pari material with entry 65 of List II of the Seventh Schedule to the Constitution of India. I am accordingly of the opinion that for the reasons as have been given by the Supreme Court in the case of State of Bombay v. Narottam Das (supra) notwithstanding the use of the words "cantonment areas" and reference of matters relating thereto in entry 3 of List I of the Seventh Schedule to the Constitution and entry 95 of the said List relevant provisions contained in U.P. Act 37 of 1972 which have been referred to above and which are said to be ultra vires by the Counsel for the Petitioners are not ultra vires but are intra vires the State Legislature of Uttar Pradesh. Consequently, the submission that the Judge, Small Causes, had no jurisdiction to entertain suits filed by the Cantonment Board has no substance. 10. In the result I find no merit in any of these three writ petitions and they are accordingly dismissed but in the circumstances of the case there shall be no order as to costs. The Petitioner in each of these three writ petitions is, however, granted one month's time from today to vacate the accommodation in question.