1954 Supreme(Raj) 102

Rajasthan High Court, Jaipur Bench
Wanchoo C.J. & Ranawat, J.
Milapchand - Appellant
Versus
Dwarkadas - Respondents
Misc. Case No. 75 of 1953
Decided On : April 22, 1954

Headnote:(a) Constitution of India, Schdl. 7, list 2, item 18—Land—Term includes both agricultural and non-agricultural land but does not include buildings over land.(b) Constitution of India, Schdl. 7, List 2, item 18 and List 3, times 6, 7, 13 — Applicability—Rajasthan Premises (Control of Rent and Eviction) Act, 1950.(c) Rent Control—Rajasthan Premises (Control of Rent and Eviction) Act, 1950, secs. 6, 8 and 28—Validity—Constitution of India, Art. 254(1)—Transfer of Property Act, secs. 105 and 108(1)—Contract Act, sec. 37.(d) Rent Control—Rajasthan Premises (Control of Rent and Eviction) Act, 1950, sec. 22(2)—Validity—Civil P.C. sec. 100—Constitution of India, Art. 254(1) and Schdl. 7, List 2, item 3.(e) Rent Control—Rajasthan Premises (Control of Rent and Eviction) Act, 1950—Act not hit by Art. 14 of Constitution.(f) Constitution of India, Art. 14—Applicability—Basis of classification—Mere absence of basis in Act itself will not invalidate Act—Reasonability of Act may be taken judicial notice in exceptional circumstances—Rajasthan Premises (Control of Rent and Eviction) Act, 1950.(g) Constitution of India, Art. 245—Power of extension of modification of legislation—Delegation regarding extension valid where maximum period fixed—Power of modification purely legislative and cannot be delegated. Where power of extension and modification both delegated power of extension also invalidated.(h) Rent Control—Rajasthan Premises (Control of Rent & Eviction) Act, 1950, sec. 31—Extension of Act—Extension valid.

       There are no words in item 18 of list 2 to justify a legislation of the kind of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Such a legislation can only be justified under items 6, 7 and 13 of list 3. (Para 9)

       Secs. 6 and 8 of the impugned Act are merely supplementary to the Transfer of Property Act, and are not repugnant to secs. 105 or 108 (1), and therefore, it was not necessary to obtain the assent of the President for enacting these provisions, as they were not hit by Art. 254(1) on the ground of repugnancy, and the State Legislature could validly enact them.

       Sec. 108 (1) only applies to those cases where there is no contract or local usage to the contrary. It lays down the liability of lessee to pay at the proper time and place the rent to the lessor or his agent. The emphasis in clause(l) is on payment or tender at the proper time or place. Clause(1) has nothing to do with the fixation of rent, and therefore the provisions of the impugned Act. which give power to the courts to scale down the agreed rent, cannot be said to be repugnant to clause (1), but they are only supplementary to it. It is true that the rent, as defined in sec. 105, means the amount which is to be paid by the lessee to the lessor according to the agreement between the parties. But this agreement, in our opinion is not sacrosanct as is clear from sec. 37 of the Contract Act.

       Sec. 37 must be read as supplementary to the provisions of the Transfer of Property Act, and where a law is made dispensing with or excusing the performance of any agreement, the parties can take advantage of that law which also will be supplementary to the Transfer of Property Act. The Impugned Act is obviously a supplementary Act as shown by sec. 28. It provides that the agreement between the parties may be varied on certain grounds, and the procedure for this variation is provided in the Act. It cannot be said that secs. 6 and 8 of the impugned Act create a repugnancy with sec. 105 or 108(1) of the Transfer of Property Act, in view of the provisions of sec. 37 of the Contract Act, which clearly envisage interference with agreement by validly made law. (Paras 13, 11 and 12)

       Sec. 22(2) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is not repugnant to sec. 100 of the Code of Civil Procedure. Sec. l00 itself provides for second appeals "save as otherwise expressly provided in the body of this Code, or by any other law for the time being in force." It is open to the State Legislature under item 3 of List II of the Constitution to provide for the constitution and organisation of all courts except the Supreme Court and the High Court, and under this item the State Legislature can well provide for a machinery for fixation of standard rent and further provide that there will be no second appeals in such cases. There is thus no repugnancy between Sec. 22(2) of the impugned Act and sec. 100 of the Code of Civil Procedure, and therefore, Article 254(1) has no application. (Para 14)

       It is desirable, where legislation of this kind (involving selection and classification) is passed that the basis of selection should be put down in the Act itself or indicated in the preamble, so that the courts may easily test the Act on the anvil of Article 14, and may not have to search far and wide for a basis of classification. Such provision in the Act itself or in the preamble would do away with the necessity of the courts trying to conceive reasonably any state of facts which would sustain the legislation. It may happen that the courts may not be able reasonably to conceive of such state of acts as would justify the law, as that depends upon the knowledge which the courts may have of the general conditions prevailing in the country. There may also sometimes be special conditions prevailing in particular parts which may justify a piece of legislation ; but if these conditions are not put down in the Act or indicated in the preamble, as a basis of classification, it may not be possible for the courts to conceive of them reasonably. But the mere absence of such basis is not enough to invalidate a law, if the courts can reasonably conceive of a state of facts which would sustain it.

       The conditions existing in Rajasthan at the end of 1950, when Rajasthan Premises (Control of Rent & Eviction) Act came to be passed, were sufficient justification for passing the impugned Act in order to control rents. The same circumstances justify the selective application of the law to such towns as required, in the opinion of the Government, the enforcement of the impugned Act.

       The conditions, which the court can assume for holding that the Act is a reasonable restriction under Art. 19(5), are also the conditions which are the basis of classification. In these circumstances, we must hold that the Act, which applies to the whole of Rajasthan, is not a piece of arbitrary legislation, and that its selective application is controlled by circumstances which are too wellknown.

       Once the basis of classification is assumed to exist the court must further assume that the state of facts, which is necessary for the selective application of the law, is also in existence in the towns where it has been applied, and is not in existence where it has not been applied. The basis for classification, which the court can reasonably conceive of in this case, obviously is the housing difficulty in various towns of Rajasthan due to non-erection of buildings during the period of the last world war, the increase in population in most cities in the last ten years, conditions created by the partition of 1947, and the influx of persons from what is now Pakistan. These assumptions which are reasonable, provide a basis for classification of towns where these conditions prevail, and therefore, in the peculiar circumstances of the case, we must hold that the law is not discriminatory and is not hit by Art. 14 of the Constitution. (Paras 15, 18, 22 and 23)

       The power to extend the operation of the Act beyond the initial period mentioned in the Act prima facie is a legislative power. It is for the legislature to state how long the particular legislation will be in operation. That cannot be left to the discretion of some other body. The power to modify an Act of legislature without any limitation on the extent of power of modification is undoubtedly legislative power. Where the power to extend and the power to modify are given by the same provision, they are one power and not two separable powers. Where the legislature passes a temporay Act and specifies the period for which it will be initially in force, and then gives power to some other body to extend it without specifying the period up to which it can be extended, the power of extension is purely a legislative power and cannot be delegated. But where the legislature passed a temporary law and fixes a maximum period for its continuance, but in the first instance applies it for a period shorter than the maximum period, and also provides a machinery for its extension from time to time up to the aggregate period, the power of extension so given is not delegated or conditional legislation. It is merely a method for reaching the maximum period by instalments to be worked out in a particular manner. But where along with this power of extension, within the maximum fixed by the legislature, the power of modification is also given the two become one power, and as the power of modification is essentially a legislative power, the extension whole be in validated even though there may be no actual modification. (Para 29)