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PETITIONER: GURCHARAN SINGH & ORS.

       Vs.

RESPONDENT: V. K. KAUSHAL

DATE OF JUDGMENT21/08/1980

BENCH: PATHAK, R.S. BENCH: 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  tho  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

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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. Tho 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 tho 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  tho amendments made to tho 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  tho Central Government  exercised a  power not  available to  it when it  issued tho  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 tho  1957 Act  when it was amended in 1972. In  its nature and quality it is not identifiable with

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the power  vested under the unamended 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  unamended 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 unamended 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]

JUDGMENT:      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

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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 effected the transfer or sub- letting after the commencement of the Act. The Act commenced

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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 referable 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

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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 unamended Act. A power conferred by statute is distinguished

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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 unamended Act, there is a vital qualitative difference between the two. The power under  the unamended 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 unamended 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. 498