# BRIJ SUNDER IeAPOOR ETC. ETC v. IST ADDITIONAL DISTRICT JUDGE & ORS

- **Citation:** [1988] Supp. 3 S.C.R. 558
- **Court:** Supreme Court of India
- **Decided:** 1988-10-27
- **Case number:** Writ No. 549/1979 C.M.W.P. No. 6942;81, C.M.W.P. No. 8383 of 1989
- **Bench:** Sabyasachi Mukharji Ands. Ranganathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brij-sunder-ieapoor-etc-etc-v-ist-additional-district-judge-ors-10166
- **Pages:** 37

## Headnote

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act (Act 10 of 1972)-Provisions of Act whether applicable to
cantonments situated in the State of Uttar Pradesh-Effect of Notification dated September 1, 1973 and February 17, 1982-Legislation by
incorporation-Wh(lt -is-Cantonments (Extension of Rent Control
Laws) Act 46 of 1957-Section 3-Effect of notification dated April 3,
1972 extending provisions of Uttar Pradesh Temporary Control of Rent
and Eviction Act 3 of 1957 to cantonment areas in Uttar Pradesh.
In this group of cases a common question of law that- falls for
determination by the Court is whether the provisions of the Uttar
Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, Act No. 13 of 1972 are applicable to cantonments situated in the
State of U .P. The High Court has answered this question in the affirmative. Hence these appeals by tenants. The main judgment under appeal
is in the case of Brij, Sunder Kapoor v. Additional District Judge &
Ors., [1980], All India Rent Cases 319. Brief facts of that case are
therefore stated below showing how the said question arose. It may be
mentioned that the Allahabad High Court reiterated the same view
later in the case of Lekh Raj v. 4th Addi. Distt. Judge, Meerut, AIR
1982 All 265.
F
Jhansi is a cantonment in Uttar Pradesh. Brij Sunder Kapoor, the
appellant is a tenant of Premises No. 103, Sadar Bazar, Jhansi of which
Respondent No. 3 Bhagwan Das Gupta is the landlord. In 1975, the
landlord filed an application before the prescribed authority under Section 21 of the Act praying that he required the premises for his personal
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occupation and that the same be released to him. The appellant-tenant
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contested the application. The application was dismissed by the prescribed authority but, on appeal by the landlord, it was allowed by the
Additional District Judge. The tenant thereupon filed a writ petition
which was dismissed by a Single Judge of the High Court of Allahabad.
The appellant-tenant has therefore filed this appeal.
Iii
In order to judge the legality of the point urged regarding
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B.S. KAPOOR v. ADDL. DISTT. JUDGE
559
applicability of the Act to cantonment area in U.P., the Couri first
referred to the history of tenancy legislation in the State of U.P. where
the Rent .;lnd Eviction Control Legislation was initiated by the United
Provinces (Temporary) Control of Rent and Eviction Ordinance promulgated on l.10.1946, followed by U.P. Act III of 1947 ·which was
made retrospective w.e.f. l.10.1946. Both the Act and the Ordinance
applied to cantonment area. By a later Act U.P. (Amendment) Act 44 of
1948, cantonment areas were excluded from the purview of Act III of
1947 perhaps in view of Cantonments (House Accommodation) Act,
1923. Consequent upon the receipt of various representations demanding the applicability of Act III of 1947 to cantonment area, the State
promulgated Ordinance 5 of 1949, which, however, was allowed to
lapse. In the meantime the Allahabad High Court in Smt. Ahmedi
Begum v. Distt. Magistrate, [1961] ALJ 669 ruled that the State Legislature was in·-competent to regulate accommodation lying in cantonments
since that was a subject in which Parliament alone was competent to
legislate. This view was later approved by this Court in Jnder Bhushan
Bose"· Rama Sundari Devi, [1970] l SCR 443. Thereupon, Parliament
enacted theU.P. Cantonments (Control of Rent and Eviction Act 1952)
(Act IO of 1952). In 1957 Parliament enacted the cantonments (Extension of Rent Control Laws) Act, 1957 Act 22 of 1972 gave it · retrospective operation from 26.1.1950 which provided for extension to •~nton
ments of State law relating to control of rent and regulation of house
accommodation. As a consequence of this, Act lll of 1947 became
applicable to the cantonment area, even though Act JO of 1952 was in
force. In order to avoid any complication U.P. Cantonments (Control of
Rent and Eviction) Repeal Act J971 was enacted. A notifica

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BRIJ SUNDER IeAPOOR ETC. ETC.
v.
IST ADDITIONAL DISTRICT JUDGE & ORS.
OCTOBER 27, 1988
[SABYASACHI MUKHARJI ANDS. RANGANATHAN, JJ.]
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and
Eviction) Act (Act 10 of 1972)-Provisions of Act whether applicable to
cantonments situated in the State of Uttar Pradesh-Effect of Notification dated September 1, 1973 and February 17, 1982-Legislation by
incorporation-Wh(lt -is-Cantonments (Extension of Rent Control
Laws) Act 46 of 1957-Section 3-Effect of notification dated April 3,
1972 extending provisions of Uttar Pradesh Temporary Control of Rent
and Eviction Act 3 of 1957 to cantonment areas in Uttar Pradesh.
In this group of cases a common question of law that- falls for
determination by the Court is whether the provisions of the Uttar
Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, Act No. 13 of 1972 are applicable to cantonments situated in the
State of U .P. The High Court has answered this question in the affirmative. Hence these appeals by tenants. The main judgment under appeal
is in the case of Brij, Sunder Kapoor v. Additional District Judge &
Ors., [1980], All India Rent Cases 319. Brief facts of that case are
therefore stated below showing how the said question arose. It may be
mentioned that the Allahabad High Court reiterated the same view
later in the case of Lekh Raj v. 4th Addi. Distt. Judge, Meerut, AIR
1982 All 265.
F
Jhansi is a cantonment in Uttar Pradesh. Brij Sunder Kapoor, the
appellant is a tenant of Premises No. 103, Sadar Bazar, Jhansi of which
Respondent No. 3 Bhagwan Das Gupta is the landlord. In 1975, the
landlord filed an application before the prescribed authority under Section 21 of the Act praying that he required the premises for his personal
i~
occupation and that the same be released to him. The appellant-tenant
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contested the application. The application was dismissed by the prescribed authority but, on appeal by the landlord, it was allowed by the
Additional District Judge. The tenant thereupon filed a writ petition
which was dismissed by a Single Judge of the High Court of Allahabad.
The appellant-tenant has therefore filed this appeal.
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In order to judge the legality of the point urged regarding
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B.S. KAPOOR v. ADDL. DISTT. JUDGE
559
applicability of the Act to cantonment area in U.P., the Couri first
referred to the history of tenancy legislation in the State of U.P. where
the Rent .;lnd Eviction Control Legislation was initiated by the United
Provinces (Temporary) Control of Rent and Eviction Ordinance promulgated on l.10.1946, followed by U.P. Act III of 1947 ·which was
made retrospective w.e.f. l.10.1946. Both the Act and the Ordinance
applied to cantonment area. By a later Act U.P. (Amendment) Act 44 of
1948, cantonment areas were excluded from the purview of Act III of
1947 perhaps in view of Cantonments (House Accommodation) Act,
1923. Consequent upon the receipt of various representations demanding the applicability of Act III of 1947 to cantonment area, the State
promulgated Ordinance 5 of 1949, which, however, was allowed to
lapse. In the meantime the Allahabad High Court in Smt. Ahmedi
Begum v. Distt. Magistrate, [1961] ALJ 669 ruled that the State Legislature was in·-competent to regulate accommodation lying in cantonments
since that was a subject in which Parliament alone was competent to
legislate. This view was later approved by this Court in Jnder Bhushan
Bose"· Rama Sundari Devi, [1970] l SCR 443. Thereupon, Parliament
enacted theU.P. Cantonments (Control of Rent and Eviction Act 1952)
(Act IO of 1952). In 1957 Parliament enacted the cantonments (Extension of Rent Control Laws) Act, 1957 Act 22 of 1972 gave it · retrospective operation from 26.1.1950 which provided for extension to •~nton
ments of State law relating to control of rent and regulation of house
accommodation. As a consequence of this, Act lll of 1947 became
applicable to the cantonment area, even though Act JO of 1952 was in
force. In order to avoid any complication U.P. Cantonments (Control of
Rent and Eviction) Repeal Act J971 was enacted. A notification under
Section 3 of Act 46 of 1957 extending Act III of 1947 to cantonments in
U.P. was issued in 3.4.1972; but soori thereafter Act lll of 1947 was
repealed by U .P. Act 13 of 1972 which came into operation on JS. 7 .1972
which necessitated the issuance of another notification under Section 3
of Act 46 of 1957 extending the provisions of Act 13 of J972. Accordingly, a notification dated J.9.1973 was issued. It was in view of this
notification that Respondent No. 3 filed his application under Section 21
of the Act, which has given rise to these proceedings.
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Counsel for the appellants raised three principal contentions viz:
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(l) Whether Act 46 of 1957 applied at all to the State of U.P. in
view of Act JO of 1952 which contained special provisions applicable to
cantonments in the State of U. P.
(ii) Did riot the power of the Central Government under Section 3 k
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SUPRllMll COURT R!lPORTS
[1988] Supp. 3 S.C.R.
of Act 46 of 1957 get exhausted when the notlncatlon dated.3rd April,
1972 wos Issued, by which provisions of Act Ill of .1947 were extended
to cantonments In U.P. If yes, was not the second notification dated
J.9.1973 Illegal and non-est on that account?
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(Ill) Does not Section 3 of Act 46 of 1957 suffer from the vice of
excessive delegation of legislative powers and Is It not consequently void.
end Inoperative'?
Dismissing the appeals, this Court,
HELD: Once It Is the avowed policy of Parliament that cantonment areas in a State should be subjected to the same tenancy legislation
as the other areas therein, It follows that the decision involves also that
future amendments in such State legislation should become effective in
cantonment area as well. In some rare cases where Parliament feels that
such subsequent amendments need not apply to cantonment areas or
should apply with more than the limited restrictions and modifications
permitted by s. 3, it is open to Parliament to legislate indep~ndently for
such cantonment areas. But the decision that In the main, such State
legislation should apply is unexceptionable and cannot be said to constitute
an abdication of Its legislative function by Parliament. [585G-H; 586A]
Amended section 3 of Act XL VI of 1957, on a proper construc·
E tiol1 1 validly empowers the Central Government, by notification, to
. extend the provisions of Act 13 of 1972 to the cantonments in the
State of Uttar Pradesh, not only in the form in which it stood on
the date of the said notification but also along with its subsequent
amendments. [589D·El
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Act 10 of 1952 was a detailed statute, which was applicable to
cantonments in the State ofU.P. [566C]
Parliamentary legislation Act 68 of 1971 terminates the applicability of Act 10of1952 in Uttar Pradesh cantonments.[567B]
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It enacts that Act 10 of 1952 shall stand repealed in its application
to the State of U .P. on and from the date on which Act III of 1947 was
extended to the cantonment areas in the State by a notification under
section 3 of Act XLVI of 1957. [567EJ
A notification was Issued on 3.4.1972 under section 3 of Act XLVI
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of 1957, extending the provisions of Act III of 1947, with certain moditi·
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!l.S, KAPOOR v. ADDL. DISif, JUDO!>
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cation set out therein, to cantonments In the State of Uttar Pradesh. On
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and from 3rd April, 1972, therefore, Act 10 of 1952 ceased to apply to
cantonments In the State of Uttar Pradesh. [S66E·Fl
In view of this, there was, at least on and after that date, no
obstacle In the way of Act III of 1947 being operative In the cantonments
of the State of U.P. as well. [566FI
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The provisions of Act 68 of 1971 have rendered Act 10 of 1952
Inoperative as and from 3.4.1972 leaving the provisions of Act lll of
1947 In the field only until It was replaced by Act 13 of 1972. {567C]
Notification dated 1.9.1973 extended to the cantonment areas only C
the provisions of Act XIII of 1972 as they stood In that date. It was only
17. 2.1982 that a further notification was Issued superseding the notlfi·
cation dated 1.9.1973 by which the provisions of Act XIII of 1972 as in
force In the State of Uttar Pradesh were also extended to the cantonment areas. The purpose of this notification obviously was that, since
there had been amendments to Act XIII of 1972 In 1974 and .again In
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1976, it was necessary and desirable that the amended provisions
shou(d also be extende.d to the cantonment areas. [573D·El
Gurcharan Singh & Ors. v. V.K. Kaushal, [1980] 4, SCC 244.
The delegation of a power to extend even future laws of another
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State will not be bad so long as they are laws which are already in
force in the said areas and so long as, In the process and under the
guise of alteration and modification, an alteration of the essential
character of the law or a change of it in essential particulars Is not
pe1·mitted. [582H; 583A]
Mahindra & Mahindra v. Union, [1979] 2 SCR 1038; Lachmi
Narain v. Union, [1976] 2 SCR 785; Delhi Laws Act case, [1951] SCR
747; Raj Narain Singh's case [1955] I SCR 74; B. Shama Rao v. Union
Territory of Pondicherry, [1967] 2 SCR 650; Gwalior Rayon's Case
[1974f 2 SCR 879; Sita Ram Bishambher Dayal v. State of U.P., [1972]
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2 SCR 141; Smt. Bajya v. Smt. Gopikabai & Another, [1978] 3, SCR G
561; Jai Singh Jairam Tyagi etc. v. Mamanchand Ratilal Aggarwal &
Ors., [1980] 3 SCR 224 and S.P. Jain v. Krishna Menon G1tpta & Ors:,
[!987] l sec 191, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
2606/80, 6944/83, 3779/88 and 3780(88.
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SUPREME COURT REPORTS
[1988] Supp. 3 S.C.R.
From the Judgments and Orders dated 23.1.80, 26.4.83, 22.11.82
and i.8. 1984 of the Allahabad High Court in C.M. Writ No. 549/1979
C.M.W.P. No. 6942;81, C.M.W.P. No. 8383 of 1989 and C.M.W.P.
No. 11203/ 1980 respectively.
S.N. Kacker, B.D. Aggarwal, R.K. Jain, Dalip Tandon, Rajiv
Dutta, K.K. Patel, K.K. Mohan, P.K. Jain, R.K. Khanna and Pankaj
Kalra for the Appellants.
Manoj Swamp, Ms. Lalita Kohli, Anil Kumar Gupta, S.K.
Mehta, S.M. Sarin, Dhruv Mehta, Aman Vachher and R. Jagannath
Goulay for the Respondents.
The Judgment of the Court was delivered by
RANGANATHAN, J. The civil appeals as well as the special
leave petitions raise a common question as to whether the provisions
of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, Act no. 13 of 1972, (hereinafter referred to as 'the
Act ) are applicable to cantonments situated in the State of Uttar
Pradesh. Since the two civil appeals are already pending on the issue,
we grant special leave in the special leave petitions as well and proceed
to dispose of all the four matters by this common judgment. The main
judgment of the High Court under consideration is that in the case of
Brij Sunder Kapoor v. Additional District Judge & Ors., (reported in
1980 All India Rent Cases 3 i9) which answered the question in the
affirmative. The Allahabad High Court has reiterated the same view in
its later decision in Lekh Raj v. 4th Addi. Dt. Judge, Meerut, AIR 1982
All. 265, which, we are told, is also under appeal to this Court.
· It is sufficient to set out certain brief facts in the matter of Brij
Suf)der Kapoor, (C.A. 2606 of 1980) in order to appreciate the question of law that arises for consideration. Jhansi is a cantonment in
Uttar Pradesh. Brij Sunder Kapoor is a tenant of premises No. 103,
Sadar Bazar, Jhansi of which respondent no. 3 Bhagwan Das Gupta is
the landlord. In 1975, the landlord Bhagwan Das Gupta filed an appliG
cation before the prescribed authority under section 21 of the Act
praying that he needed the above premises for his personal occupation
and that the same may be released to him. The tenant contested the
application. The application was dismissed by the prescribed authority
but allowed, on appeal, by the Additional District Judge. The tenant
prefehed a writ petition which has been dismissed by a learned single
H Jud!le of the Allahabad High Court aiitl hehce the present appeal. We
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B.S. KAPOOR v. ADDL. DISTI. JUDGE IRANGANATHAN, J.)
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are not concerned with the factual aspects of the controversy between
the parties. The short point urged by learned counsel before us, which
is common to all these appeals and which was also argued unsucessfull y before the High Court, was that the Act did not apply to cantonments in Uttar Pradesh and that, therefore, the order of release made
by the appellate authority under section 21 of the said Act was a
nullity.
In order to appreciate the point urged by the learned counsel for
the appellants, it is necessm-y to set out at some length the history of
tenancy legislation in the State of Uttar Pradesh. In this State, rent and
eviction control legislation was initiated by the United Provinces
(Temporary) Control of Rent&. Eviction Ordinance promulgated on
i. i0.1946. This Ordinance was followed by U.P. Act.III of 1947 which
was made retrospective with effectfrom 1. 10. 1946. Both the Act and
the Ordinance applied to cantonment areas as well as other parts of the
State. Subsequently, the above Act was amended by U.P. (Amendment) Act 44 of 1948. By this Act, cantonment areas were excluded
from the purview of Act III of 1947. This amendment was introduced
perhaps as it was felt that the cantonment areas were to·be governed
by the Cantonments (House Accdmmodation) Act, 1923 and that the
simultaneous application of Act III of 1947 to cantonment areas may
create.problems ...
It appears that, subsequently, a number of representations were
made by residents of cantonments for extending the provisions of Act
III of 1947 to cantonment areas as well. Perhaps because of such
representations, U .P. Ordinalll'e 5 of 1949 was promulgated on 26th
September, 1949. But this ordinance was allowed to lapse. In the
meantime the Allahabad High Court in Smt. Ahmedi Begam v. District
Magistrate, Agra, [1951] A.CJ. 669 took the view that the State Legislature was incompetent to regulate accommodation lying in cantonments since that was a subject on which Parliament alone was competent to legislate, a view which was subsequently been approved by
this court in Indu Bhushan Bose v. Rama Sundri Devi, [1978] 1 S.C.R.
443. Thereupon, Parliament enacted the U.P. Cantonments (Control
of Rent and Eviction) Act, 1952 (Act 10 of 1952). Though this was an
Act of Parliament, its operation was confined to cantonments in Uttar
Pradesh.
In 1957, Parliament enacted the Cantonments (Extension of.
Rent Control Laws) Act, 1957 (Act XLVI of 1957). Act 22 of 1972
gave it retrospective effect from 26.1.1950. It provided for the extenA
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SUPREME COURT REPORTS
[ 1988] Supp. 3 S.C.R.
sion, to cantonments in each State, of laws relating to the control of
rent and regulation of house ccommodation prevalent in the particular
State in respect of areas .other than cantonments. The Statement of
Objects and Reasons of this Act specifically states that the Act became
necessary because the power to make laws with respect to rent control
and house accommodation in cantonment areas is exclusively vested in
Parliament. Section 3 of this Act originally read thus:
.-"The Central Government may by notification in the offi·
cial. gazette, extend to any cantonment with such restric·
, lions and modifications as it thinks fit, any enactment relat·
ing to the control of rent and regulation of house accommodation which' is in force on the date of notification in the
State in which the cantonment is situated."
The words ··on the date of the notification'.' in the section were omit·
ted by section 3 of Central Act 22 of 197- with full retrospective effect.
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The. promulgation of this Act created a somewhat anomalous
position so far as the State of U.P. was concerned. As we have already
mentioned, Act 10 of 1952 was already in force in the cantonment ·
areas of the State and the issue of a notification by the Central
Government purporting to apply Act III of 1947 also to the cantonments in U.P. would create complications. If Act III of 1947 had to be
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extended to cantonment areas in U.P. in place of Act 10 of 1952, it was
necessary that the provisions of Act 10 of 1952 should be repealed by a
parliamentar}' enactment. This was done by enacting the U.P. Canton·
m'ents (Control of Rent and Eviction) (Repeal) Act, 1971 (Act 68 of
1971). The object.of passing the Act, as given in its long title, was to
provide for the repeal of U.P. Act 10 of 1952. Section 2 of this Act
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reads as under:· ·
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"On and from the date on which the United Provinces
(Temporary) Control of Rent and Eviction Act, 1947 is
extended by notification under section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 to the
cantonments in the State of Uttar Pradesh, the Uttar
Pradesh Cantonments (Control of Rent and Eviction) Act,
1952, Act 10 of 1952 shall stand repealed."
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It was only' on April'3, 197l that a ;,otification was issued by the
Central Government under section. 3 of Act XL VI of 1957 extending
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!'{ the provisions of U.P. Act III of 1947 to the cantonments in the State
B.S. KAPOOR v, ADDL. DIS'IT. JtJDOll IRANClANATHAN, J,)
565
of Uttar Pradesh. But soon after the above notification was Issued,
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U ,p, Act Ill of 1947 itself was repealed and replaced by U.P. Act 13 of
11172, which came into force on 15th July, 1972. Thi~ neceHltated· tho
issue of another notificotlon under section 3 of Act XL VI of 1957
extending the provisions of Act 13 of 1972 to tho cantonments In Uttnr
Pradesh. This noliflcatlon dated 1.9. 1973, and gaietted on 29.9. 1973,
reads as follows:
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"In exercise of tho powers conferred by section 3 of the
Cantonments (Extension of Rent Control Law1) Act, 1957,
(Act 46 of 1957), and in suponcsslon of the notification of
the Government of India in the Ministry of Defence,
No. S.R.O. 8, dated 3rd April, 1972, the Central Govern·
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mcnt hereby extends to all the cantonments In the State of
Uttnr Pradesh the U.P. Urban BulldlnAS (Rcaulntion of
Letting, Ront and Eviction) Act, 1972 (U.P. Act XIII of
1972 as In force on the dato of this notification, in the State
of Uttar Pradesh with the following modifications, namely,
"
It was in view of the above notification that rcapondent No. 3
filed his application under section 21 of the said Act, which has given
rise to the present proceedings.
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Three questions were posed by Shri S.N. Kacker who opened
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arguments for the appellants (but unfortunately could not ~mplete
them due to his unexpected demise) and Shri Agarwal who :followed
him. These were:
(i) Does Act XLVI of 1957 apply to the State of U.P. at all in
view of the fact that Act 10 of 1952, which was a detailed and
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elaborate enactment, contained special provisions applicable to
cantonments in-this State?
(ii) Did not the power of the Central Government under section
3 of Act XLVI of 1957 get exhausted when the notification dated
3rd April, 1972 was issued, by which the provisions of Act III of G
1947 were extended to cantonments in U.P.? If yes, was not the
second notification dated 1.9.1973 purporting to extend the provisions of Act 13 of 1972 to cantonments in U .P. illegal and
non·est?
(iii) Does not section 3 of Act XL VI of 1957 suffer from the vice
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SUPREME COURT REPORTS
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of excessive delegation of legislative powers and is it not consequently vmd and inoperative?
Apart from these principal questions, it was pointed out by Shri
Tandon (appearing for the petitioner in SLP No. 6944 of 1983) that, in
his case, the landlord was trying to resort to provisions of Act 13 of
1972 as amended by Act 28 of 1976. It was submitted that, while Act 13
of 1972 as in force on I. 9. 73 was extended to U .P. cantonments by the
notification dated 1.9.1973, there was no further notification applying
the provisions of the Acts amending the same to the cantonments till
17.2.1982. It was therefore contended that in any event the amended
provisions would not be applicable to the cantonment areas of U .P.
So far as the first contention is concerned, we do not think there
is any substance in it. It is true that Act 10 of 1952 was a detailed
statute, which was applicable to cantonments in the State of U.P. It is
also true that this enactment which was a Central enactment could not
be rendered inoperative by the mere issue of a notification under
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section 3 of Act XL VI of 1957 and that i~ could be repealed or made
inoperative only by an Act of Parliament. But in this case there is a
parliamentary legislation which terminates the applicability of Act 10
of 1952 in Uttar Pradesh Cantonments. This is Act 68 of 1971. Section
2 of this Act has already been reproduced. It enacts that Act JO of 1952
shall stand repealed in its application to the State of U .P. on and from
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the date on which Act III of 1947 was extended to the cantonment areas
in the State by a notification under section 3 of Act XL VI of 1957. As
we have already mentioned, a notification was issued on 3.4.1972
under section 3 of Act XL VI of 1957, extending the provisions of Act
III of 1947, with certain modifications set out therein, to cantonments
in the State of Uttar Pradesh. On and from 3rd April, 1972, therefore,
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Act 10 of 1952 ceased to apply to cantonments in the State of Uttar
Pradesh. In view of this, there was, at least on and after that date, no
obstacle in the way of Act III of 1947 being operative in the cantoments of the State of U.P. as well. Perhaps realising this, a contention
was put forward that Act XL VI of 1957, promulgated at a time when
Act 10 of 1952 was in force in U.P., should be construed as an enactG
ment applicable to all States in India other than the State of Uttar
Pradesh. It is not possible to accept this contention for two reasons. ln
the first place the languag~ of the Act does not justify any such restric- '
tion. Secondly, since the Act has been given retrospective effect from
26.1.1950, it should be deemed to have been in force from that date.
On that date Act 10 of 1952 was not in force in the State of U .P. and so
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the terms of Act 46 of 1957 would be applicable to contonments in all
B.S. KAPOOR v. ADDL. DISTI. JUDGE {RANGANATHAN, l.]
567
States including U .P. This takes away the entire basis of the argument.
Again, there might have been some difficulty 1f, by a notification
under section 3 of this Act, the Central Government had sought to apply Act III of 1947 to cantonments in the State of Uttar Pradesh,
without there being a repeal of Act 10 of 1952. But this possible
repugnancy between two legislations operating in the State of Uttar
Pradesh (one by virtue of the notification under section 3 of Act 46 of
1957 and the other by virtue of the provisions of Act 10 of 1952) has
been obviated by the provisions of Act 68 of 1971. These provisions
have rendered Act 10 of 1Y52 inoperative as and from 3.4.1972 leaving
the provisions of Act III of 1947 in the field only until it was replaced
by Act 13 of 1972.
One more, somewhat different, argument which seems to have
been addressed before the High Court on the basis of Act 68 of 1971 is
that, on the issue of the notification dated 3.4.1972, the provisions of
Act III of 1947, subject to the modifications mentioned in the notification, stood bodily lifted and incorporated in Act 68 of 1971 and that
the repeal thereafter, of Act III of 1947 did not have any bearing in
respect of cantonments in the State of Uttar Pradesh. In other words,
the argument is that Act III of 1947 continues to be in operation in the
cantonment areas even now. The appellants obviously have in mind
the principles of referential legislation by incorporation outlined in
Mahindra & Mahindra v. Union, [1974) 2 SCR 1038.and other cases.
We agree, liowever, with the High Court thats. 2 of Act 68 of 1971 is
not an instance of legislation by incorporation. The only purpose of
that Act was to repeal Act 10 of 1952. The power to extend Act III of
1947 to cantonment areas was already there in Act XLVI of 1957. But
there was a hurdle in the issue of a notification under s. 3 of that Act in
that Act 10 of 1952 was already in force in such areas. Act 68 of 1971
merely removed this obstacle and enacted that Act 10 of 1952 would
stand repealed on the date of issue of the notification under s. 3. Once
such a notification was issued, Act 68 of 1971 had served its purpose
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out and had no further impact. It did not have the further effect of
incorporating within itself the provisions of the extended law. If that
had been the intention, s. 2 of Act 68 of 1971, as pointed out by the G
High Court, would have read something like this:
, "On and from the date of commencement of this Act, the
provisions of U.P. Act III of 1947 shall be applicable to be
cantonments in the State of Uttar Pradesh and Act 10 of
1952 shall stand repealed."
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lt will bo noticed that the above nrsumcnt also overlooks the
cffllct of later notifications under s. 3 which have superseded tho effect·
of tho one dated 3.4. 1972. To got over this difficulty, it is nrgued thnt
e. 3 empowers the Government to Issue n notifieethm thereunder only
once ond that, once the notification doted 3.4. 1972 was issued, the
power got exhausted. The further mititlcntions doted 1.9. 1973 and
B 17.2. 1982 nro, it is snld, null and void. The orgumcnt ls based on a
short pnssngc in Laahml Narain v, Union, I 1976) 2 SCR 785. This cnsc
hns 11 relevance oo the third contention nlso to which we shall advert
Inter. So far as tho aspect prosontly under discussion Is concerned, Its
relevance arises In this way. In that case, s. 2 of the Part C States
(Lnws) Act, 1950 empowered tho Central Oovornmont to extend, by
C notification in the official ga~ettc, to any Part C State or part of it, any
enactment In a Part A State. The Central Government, in exercise of
this power, issued a notification in 195 I, extending the provisions of
the Bcn11al Finance (Soles Tnx) Act, l94 I to the then Port C Stntc of
Del.hi with certain modificntlons set out Ins. 6.·In 1957, the Central
Government issued another notification, agnin in purported exercise
D or the powers conferred bys. 2, by which an additional modification of
s. 6 of the Bengal Act was introduced in the 1951 notification as a
result of which certairi exemptions avnilablc to the petitioner were
withdrnwn at shorter notice than was permissible under the modifica·
tions notified in 1951. The notification of 1957 was held to be invalid
and ineffective on serveral grounds, one of which was thus stated at
E page 801:
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"The power given by s. 2 exhausts itself on extension of the
enactment; it cannot be exercised repeatedly or sub·
sequently to such extension. It can be exercised only once
simultaneously with the extension of the enactment. This is
one dimension of the statutory limits which circumscribe
the power."
This was elaborated further by the learned Judge, Sarkaria, J. at
p. 802, contrasting a clause of the kind under consideration with a
"Removal of Difficulty Clause" which permits removal of difficulties
G felt in the operation of an Act from time to time. The learned Judge
observed:
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"Firstly, the power has not been exercised contemporan·
eously with the extension or for the purposes of the extension of the Bengal Act to Delhi. The power given bys. 2 of
the Laws Act had exhausted itself when the Bengal Act was
B.S. KAPOOR v. ADDL. DIS1T JUDGE (RANG ANA THAN, J .J
569
extended, with some alterations, to Delhi by Notificati6n
dated 28.4.1951. The impugned notification has been
issued on 7 .12.1957, more than six and a half years after the
extension.
There is nothing in the opinion of this Court rendered in
Re: Delhi Laws Act (supra) to support Mr. B. Sen's contention that the power given bys. 2 could be validly exercised
within one year after the extension. What appears in the
opinion of Fazal Ali J. at page 850, is merely a quotation
from the report of the Committee on Minister's Powers
which considered the propriety of the legislative practice of
inserting a "Removal of Difficulty Clause" in Acts of
British Parliament, empowering the executive to modify
the Act itself so far as necessary for origining it into operation. This device was adversely commented upon. While
some critics conceded that this device is "partly a draftsman's insurance policy, in case he has overlooked something" (e.g. Sir Thomas Carr, page 44 of his book "concerning English Administrative Law"), others frowned
upon it, and nicknamed it as "Henry VIII Clause" after the
British Monarch who was a notorious personification of
absolute despotism. It was in this perspective that the Committee on Minister's Powers examined this practice and
recommended:
" ..... first, that the adoption of such a clause ought
on each occasion when it is, on the initiative of the Minister
in charge of the Bill, proposed to Parliament to be justified
by him upto the essential. It can only be essential for the
limited purpose of bringing an Act into operation and it
should accordingly be in most precise language restricted to
those purely machinery arrangements vitally requisite for
that purpose; and the clause should always contain a
maximum time-limit of one year after which the power
should lapse."
It may be seen that the time-limit of one year within which
the power under a Henry VIII Clause should be exercisable, was only a recommendation, and is not an inherent
attribute of such power. In one sense, the power of
extension-cum-modification given under s. 2 of the Laws
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Act and the power of modification and adaptation conferH
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red under a usual 'Henry VIII Clause' are kindred powers
of fractional legislation, delegated by the legislature within
narrow circumscribed limits. But there is one significant
difference between the two. While the power under s. 2 can
be exercised only once when the Act is extended, that
under a 'Henry VIII Clause' can be invoked, if there is
nothing to the contrary in the clause-more than once, on
the arising of a difficulty when the Act is operative. That is
to say, the power under such a clause can be exercised
whenever a difficulty arises in the working of the Act after
its enforcement, subject of course to the time-limit, if any,
for its exercise specified in the statute.
Thus, anything said in Re: Delhi Laws Act, (supra), in
regard to the time-limit for the exercise of power under a
'Henry VIII Clause', does not.hold good in the case of the
power given by s. 2 of the Laws Act. Faz! Ali J., did not say
anything indicating that the power in question can be exercised within one year of the extension. On the contrary, the
learned Judge expressed in unequivocai terms, at page 849:
'Once the Act became operative any defect in its provision
cannot be removed until amending legislation is pas.sect'."
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Basing himself on this passage, learned counsel contended·that,
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once the notification dated 3rd April, 197i was issued, the power
under s. 3 had got exhausted, and the section could not have been
invoked by the Central Government once again to issue the notification of Isl September, 1973 extending Act 13 of 1972 to the cantonments of U .P.
It will be at once clear that there is a basic difference between the
situation in Lachmi Narain (supra) and that in the present case. In
both cases, the power conferred is to extend the provisions of another
Act with modifications considered necessary. Iq Lachmi Narain this
had been done by the 1951 notification. The Bengal Finance (Sales
G Tax) Act, had been extended to Delhi with certain modifications. The
object of the 1957 notification was not to extend a Part A legislation to
Delhi; it was to modify the_terms of an extension notified earlier. This
was held to be impermissive in as much as all that the section permitted
was an extension of the laws of a part A State to Delhi, which, ex facie,
h!!cl already been done in 1951. Here the nature of the legis\ation in
H q\!estim1 is to!i!!lY i!ifferent. As we §\!all exp]ain later, the whole
B.S. KAPOOR v. ADDL. DISTI. JUDGE [RANGANATHAN, J.]
571
purpose of Act XL VI of 1947 was to ensure that the cantonment areas
in a State have the same rent laws as the other areas thereof. Th'u~ A
when Act III of 1947 ceased to be in force in the rest of the State, no
purpose would be served by its continuing in force in the cantonment
areas alone. So also when the provisions of the law in force in the State
got amended, there should be a power to extend the amended law in
the cantonment. This was, obviously, the reason why Act 22 of 1972
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amended S. 3 of Act XL VI of 1957 to omit the words "on the date of
the uotifi.cation" retrospectively. The provisions of s. 3 of the Act
XLVI of 1957 should, in the circumstances be construed so as to
achieve this purpose and as enabling the Central Government to issue
!lOtifications from time to time and not as exhausted by a single invocation as in the case of the statute considered in the Delhi Laws Act case,
(supra). S. 3 could, therefore, be invoked from time to time as occasion arise and the notifications dated 1.9.1973 and 17.2.1982 are valid
and intra vires. In such a situation, we think, the limitation suggested
in the above decision will not operate. On the other hand, the provisions of s. 14 ands. 21 of the General Clauses Act will apply and it will
be open to the Government to extend another legislation or further
legislations to cantonments in place of the-one that had been repealed.
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The above conclusion can also be supported on the ratio of decision in Gurcharan Singh and Others v. V.K. Kaushal, [1980] 4 S.C.C.
244, also a case concerned with notifications under s. 3 of Act XLVI of
1957. In exercise of this power the Central Government issued on
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' 21.11. 1969 a notification extending the East Punjab Rent Restriction
Act, 1949, to cantonments in the State of Punjab & Haryana. Subsequently, after the amendment of s. 3 of Act XLVI of 1957 by Act 22 of
1972, another notification was issued, on 24. 1.1974, superseding the
earlier notification and extending the East Punjab .\ct afresh to
cantonments in the State of Punjab & Haryana with a modification of F
s. 1(3) of the said Act with retrospective effect from 26. 1. 1950.
Upholding the validity of this notification and ri;pelling an argument
similar to the one now advanced before us, (he Court observed:
"Two points are raised on behalf of the appellants agamst
that conclusion. The first is that the power under section 3 G
of the Cantonments (Extension of Rent Control Laws)
Act, 1957 having been exercised once, that is to say, by the
notification dated November 21, 1969, the power of extension stood exhausted and could not be availed of again, and
therefore the Notification dated Janμary 24, 1974 was with,
Ant «~tutory sanction and inyaljd. We ar~ f1lf~rr11\i to H
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Lachmi Narain v. Union of India, [1976] 2 SCR 785. That
was a case where this Court held that a notificat:on under
Section 2 Part C State> (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 section 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 January 24, 1974 has been issued is a separate and
distinct power from that under which the notification dated
November 21, 1969 was made. The power now exercised
passed into the Cantonments (Extension of Rent Control
Laws) Act, 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 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 section 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
January 24, 1974 and thereby extending the East Punjab
Urban Rent Restriction Act to the Ambala Cantonment
retrospectively with effect from January 26, 1950, the Central Government exercised a power not available to it when
it issued the notification dated November 21, 1969. The
contention that the issue of the notification of January 24,
B.S. KAPOOR v. ADDL. DJSIT. JUDGE (RANGANATHAN, J.}
573
1974 amounted to a further exercise of power conferred by
section 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.
(underlining ours)
This principle will also apply in the present case for, while the notification dated 3.4.1972 was issued in exercise of the power under the
unamended s. 3, the one dated 1.9.1973 was issued in exercise of the
new power available after the amendment of Act 22 of 1972 which
came into force on 2nd June, 1972, though there is a distinction between the two cases in that the latter notification, unlike the second
notification in the other case, did not purport to give any retrospective
effect to the extended legislation.
It should be mentioned here that notification dated 1.9.1973
extended to the cantonment areas only the provisions of Act XIII of
1972 as they stood on that date. It was only on 17 .2.1982 that a further
notification was issued superseding the notification dated 1.9.1973 by
which the provisions of Act XIII of 1972 as in force in the State of
Uttar Pradesh were also extended to .the cantonment areas. The
purpose of this notification obviously was that, since there had been
amendments to Act XIII of 1972 in 1974 and again in 1976, it was
necessary and desirable that the amended provisions should also be
extended to the cantonment areas. The question raised above on
behalf of the appellants regarding the validity of the notification dated
1.9.1973, has to be considered also in the context of this notification
dated 17.12.1982. For the reasons discussed above, we are of the
opinion that the Central Government acted within its powers in issuing
the subsequent notification dated 17.2.1982 as well. This also is not a
case like the one in Lachmi Narain v. Union, [1976] 2 SCR 785, where
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the purpose of the second notification was to modify without any provocation the contents of the first notification issued for the purposes of
extensidn. Here the subsequent notification became necessary because
subsequently the enactments had amended the _provisions of the Act,
which had been extended previously. Moreover, as the original Act 13
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of 1972 has already been extended, the real purpose of this notification
was to extend the provisions of Act lY of 1974 and Act 28 of 1976 also
to those areas. In our view, the provisions of sections 14 and 21 of the.
General Clauses Act, 1897.