HIRJI LAXMIDAS Vs. FRANCIS FERNANDEZ

JUDGEMENT

(1.) THIS suit was commenced in the Small Cause Court at Bombay, and is brought by the plaintiffs, who are the landlords, against defendant No. 1, who is the tenant, to eject him from 31-D Matarpakhdi, Mazgaon, Bombay, held by him under a monthly tenancy at a rent of Rs. 125 per month. The tenancy is alleged to have been terminated by notice dated April 29, 1943. The defence of defendant No, 1 is to plead the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, which I will refer to as "the 1944 Act", and to rely on the fact that before this Act came into operation the plaintiffs had applied to the Controller for a certificate under the Bombay Rent Restriction Order, 1942, (which I will refer to as "the 1942 Order"), which was refused. Such refusal, it is said, is binding upon the plaintiffs under Section 15 of the 1944 Act.

(2.) IN reply the plaintiffs allege that Part II of the 1944 Act is ultra vires and void for the reasons to which I will presently refer.

(3.) THE Governor's competency to exercise the Provincial legislative function arises by virtue of the powers conferred on him by Section 93 of the Government of India Act, 1935, which I will refer to as "the Constitution Act", and a Proclamation made by him on November 4, 1939. Section 93, so far as material, is as follows: (1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation (a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion; (b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority ; and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority: Provided that nothing in this sub-section shall authorise the Governor Jo assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts. " Sub-section (2) deals with revocation, and Sub-section (3) contains certain consequential provisions. Sub-section (4) is as follows: If the Governor, by a Proclamation under this section, assumes to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and then come the following words which are important: and any reference in this Act to Provincial Acts, Provincial Laws, or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law. i. e. a law made by the Governor. THE Proclamation of November 4, 1939, commences with the following preamble: WHEREAS the Governor of the Province of Bombay is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Governments of India Act, 1935 (hereinafter referred to as 'the Act'): And the operative part of the Proclamation is this: Now, therefore, in the exercise of the powers conferred by Section 93 of the Act and with the concurrence of the Governor General, the Governor by this Proclamation (a) declares that all his functions under the Act shall be exercised by him in his discretion ; (b) assumes to himself all powers vested by or under the Act in the Provincial Legislature and all powers vested in either Chamber of the Legislature but not so as to affect any power exercisable by His Majesty with respect to Bills reserved for his consideration or the disallowance of Acts ; and he hereby makes the following incidental or consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely THEn there follow clauses suspending the operation of certain ministerial sections of the Constitution Act and certain sections referential to legislative machinery of the Provincial Legislature.