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1992 Supreme(Bom) 292
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
H.W. Dhabe B.U. Wahane, JJ.
Mohammad Azizul Haq s/o. Mohammad Abdul Haq and others... Petitioners.
Versus
The State of Maharashtra, through Secretary, General Administration Department and others... Respondents.
Writ Petition No. 540 of 1991 with C.R.A.No. 774 of 1989 with S.A.Nos. 42 46 of 1992, decided on 23-6-1992.
Advocates appeared :
J.N. Chandurkar, for the petitioner, in W.P. No. 540 of 1991.
C.S.Kaptan, for respondent No. 1, in W.P. No. 540 of 1991.
V.C. Daga, for respondent No. 2, in W.P. No. 540 of 1991.
S.C. Mehadia, for the applicant, in C.R.A. No. 774 of 1989 for respondents S.A. No. 46 of 1992.
B.N. Mohta, for respondents 1, 4 6, in C.R.A. No. 774 of 1989.
Gilda, for the appellants, in S.A. No. 46 of 1992.
Headnote:Section 2.
See, C. P. and Berar Letting of Houses and Rent Control Order, 1949 Clauses 4 (A), 13 (A).
C.P. & BERAR LETTING OF HOUSES AND RENT CONTROL ORDER, 1949.
C1asuse 4 (A) (as inserted by First Amendment Order, 1949 and as amended by Second Amendment Order, 1949) Clause 13 (A) (as introduced by Second Amendment Order, 1949)-C. P. and Berar Regulation Letting of Accommodation Act. 1946, Section 2-Meaning of accommodation-Meaning and interpretation of.
It is from amongst the various meanings of the word "accommodation" that we have to ascribe appropriate meaning to the said word as used in section 2 of the Accommodation Act. However, it is well settled that in selecting one of the meanings of a word used in a statute, regard must be had to the context in which the word is used because it is fundamental rule that the meaning of words and expressions must take their colour from the context in which they appear.
It has then to be seen that when the question arises as to the meaning of a particular provision of a statute, it is not only proper to read that provision in its context but the context here means the statute as a whole, the previous state of the law, other statutes in pari materia, the general scope of the statute and the mischief that if was intended to remedy. The key to opening of every law is the reason and the spirit of the law is animus impotents, the intention of law maker, expressed in the law itself, taken as a whole which would mean that to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed detached from its context meaning thereby the title as well as the preamble as the enacting part of the statute.
In construing section 2 of the Accommodation Act and in particular in ascertaining the- meaning of the word "accommodation" understood in its proper context, it will be useful to drive assistance from the rule of construction known as "mischief rule" as propounded originally in Heydons case (1584) 3 Co. Rep 7 at p. 76. The said rule is also known as rule of purposive construction. The mischief rule requires four matters to be taken into consideration viz.
(i) What was the law before the making of the Act.
(ii) What was the mischief or defect for which the law did not provide.
(iii) What is the remedy that the Act has provided.
(iv) What is the reason of the remedy.
It is then the function of the Court to make such construction which will suppress the mischief and advance the remedy according to the true intent of the makers of the Act, probono publico.
The word "Accommodation" is used in Section 2 of the Accommodation Act, viz. the circumstances necessitating its enactment and the mischief it sought to cure, we turn to the intrinsic material provided by Section 2 of the said Act itself for ascribing appropriate meaning to the word "Accommodation" used in the said section. In expression accommodation or class of accommodation" used under Section 2 of the Accommodation Act is qualified by words "whether residential or non-residential, whether furnished or unfurnished, and whether with or without board." The above qualifying words in our view, contemplate some sort of structure constructed by the land owner without which there is no question of its use for residential or nonresidential purpose or of furnishing or not furnishing or of supply or non supply of food.
Considered thus in the light of the above legislative material including the intrinsic material provided by Section 2 of the Accommodation Act itself the contextual meaning which can be put upon the word "accommodation; out of several dictionary meanings referred to by us above can only be lodging or living premises. To put it in other words, it would moan a building or a part of building or any sort of structure constructed by the land-owner which can be let out for residential or non-residential purposes.
After thus ascertaining the meaning of the word "accommodation", it is clear that the said word denotes house accommodation i. e. building or part of the building or a sort of structure upon the land to which its extended sense may be appurtenant the amenities or conveniences such as garden, grounds, out house and any furniture supplied by the landlord for use in such house accommodation. It is material to see that the above meaning of the word "accommodation accords with the definition of the word "House" given in Clause 2 (3) of the Rent Control Order, 1949 prior to its deletion in 1989. The definition of the word House given in Clause 2 (3) of the Rent Control Order is reproduced below to show bow it accords with the ordinary connotation of the word "accommodation."
"House" means a building or part of a building whether residential or non-residential and includes-
(a) garden, grounds and out house (if any), appurtenant to such building and
(b) any furniture supplied by the landlord for use in such building or part of a building. This has been the meaning attributed to the word accommodation ever since the first Rent Control Order issued in 1942 under the then Defence of India Rule 81 (2) (bb).
Once it is held that the word "accommodation" used in section 2 of the Accommodation Act, means house accommodation as described above, which can in its extended sense mean house as defined in Clause 2 (3) of the Rent Control Order, 1949, section 2 of the Accommodation Act regulates by the general or special order issued by the State Government letting and sub-letting of such house accommodation and also the rents for such house accommodation.
When the content of the power of the State Government under section 2 of the Accommodation Act is thus restricted to the issuance of a general or special orders for regulating letting and sub-letting of house accommodation, or for controlling house rents or other matters relating to house accommodation referred to therein, the application of Rent Control Order, 1949 to the open sites not used for agricultural purposes by defining the expression Premises and inserting it in Clause 4(A) of the Rent Control Order by Clause 4 of the First Amendment Order, 1989 is clearly in excess of the powers conferred upon the State Government under the aforesaid section 2 of the Accommodation Act under which the State Government has exercised its power to issue the First Amendment Order 1989.
It is trite to say that a delegate must exercise his/its powers within the four corners of the delegation made to him/it and if he/it acts in excess of the powers delegated to him/it, his/its action is illegal, incompetent and unauthorised being ultra-vires of the powers delegated to him/it.
C.P. AND BERAR LETTING OF HOUSE AND RENT CONTROL (AMENDMENT) ORDER, 1989.
Clause 4-A, Sub-clause (a) and (b) and Clause 13-A.
See C. P. and Berar Regulation of Letting of Accommodation Act, 1946 Section 2.
C.P. AND BERAR REGULATION OF LETTING OF ACCOMMODATION ACT, 1946.
Section 2 C. P. and Berar Letting of House and Rent Control (Amendment) Order, 1989, Clause 4-A Sub-clauses (a) and (b) and clause 13-A-Interpretation of "accommodation" as contained in Section 2 of Act 1 946-By amendments clauses 4-A and 13-A added-Word "house" replaced by word "permises" further defined as including "any land not being used for agricultural purposes Validity of these amendments challenged.
Held, amendments making Rent Control Order, 1949 applicable to "open sites" and also introduction of Clause 13-A clearly m excess of powers conferred upon State Government under Section 2 of the Act, and hence Clauses 4-A (a) and 13-A are struck down.
2. It may be seen that the two learned Single Judges in previous cases i.e. in (Smt. Gangubai v. Nilkanth)1, 1991 Mh.L.J. 1178 by Desai, J., and in (Mohd. Rafik v. Tahera Begum)2, in Second Appeal No. 148 of 1977 with Second Appeal No. 149 of 1977 decided on 7-2-1991 by Chavan, J., have held that in view of Clause 13-A of the Second Amendment Order, 1989, the C.P. Berar Letting of Houses and Rent Control (Amendment) Order, 1989 (for short the First Amendment Order, 1989) issued by the State Government as per its notification dated 27-6-1989 (See M.G.G.-Part IV-B dated 13-7-1989 p. 787) which makes applicable the provisions of the Rent Control Order to an open plot are applicable to a pending suit or a proceeding for eviction of a tenant from the open plot and therefore, if such a pending suit or a proceeding for eviction is not preceded by a prior permission of the Rent Controller as envisaged by Clause 13(1) of the Rent Control Order, it has to be dismissed even at the appellate stage by setting aside the decree for eviction granted by the trial Court, although at the time of passing of such decree by the learned trial Court, the Rent Control Order was not applicable to open plots i.e. prior to the First Amendment Order, 1989. The learned Single Judge while making the reference to the Division Bench in Civil Revision No. 774 of 1989 is however, of the view that even as per Clause 13-A introduced by the Second Amendment Order, 1989, the suit should not be dismissed, but should be kept pending allowing the landlord to obtain permission of the Rent Controller under Clause 13(1) of the Rent Control Order and directing his to produce the same in the suit or the appeal as the case may be pending on the date when Clause 13-A was inserted in the Rent Control Order.
3. As regards Writ Petition No. 540 of 1991 which is placed before us, the petitioner/landlord has challenged the validity of the above amendments introduced by the State Government in the original Rent Control Order principally on the ground that the State Government has no power or authority to regulate letting or sub-letting of open sites. We propose to decide the writ petition first because if the writ petition succeeds and the impugned amendments seeking to apply the provisions of the Rent Control Order to the open sites are struck down, it would not be necessary to consider the reference made by the learned Single Judge in Civil Revision No. 774 of 1989 as it would then become infructuous.
4. The facts in Writ Petition No. 540 of 1991 are that the petitioner and the responden
