RAMA SUNDARI DEVI Vs. INDU BHUSAN BOSE

JUDGEMENT

(1.) This is a reference by the Munsif, third court, Sealdah under Section 113 of the Code of Civil Procedure and Article 228 of the Constitution. The facts in this case are shortly as follows: The plaintiff Rama Sundari Devi is the owner of premises No. 18 Riverside Road which is within the cantonment area of Barrackpore. The defendant was a tenant thereof at a monthly rent of Rs. 250/- There is a dispute as to who was to pay the rates and taxes. Oh 17th March, 1958 the defendant filed an application before the Rent Controller for fixation of the fair rent under Section 10 of the West Bengal Premises Tenancy Act, 1956. The Rent Controller fixed the fair rent at Rs. 170/- per month inclusive of all cantonment taxes. In an appeal therefrom, the learned Subordinate Judge, Tenth Court, Alipore fixed the fair rent at Rs. 188 per month inclusive of all cantonment taxes. On or about 7th December, 1960 the plaintiff served notice to quit upon the defendant and upon failing to get vacant possession, filed a suit before the Fourth Court of Munsif, Sealdah, being Title Suit No. 23 of 1961 (Sm. Rama Sundari Devi v. Shri Indu Bhusan Bose). In the said suit it was claimed that "control of rent "in a cantonment area is a Central subject falling under Entry No. 3 of List 1 Union List in the Seventh Schedule of the Constitution and that under Article 246 of the Constitution, the Parliament has exclusive right to legislate in respect thereof and that the extension of the provisions of the West Bengal Premises Tenancy Act, 1956 to the said cantonment area was ultra vires and void. The learned Munsif has made a reference under Section 113 of the Civil Procedure Code read with Article 228 of the Constitution, so that this problem might be answered. He has rightly pointed out that consideration of this question is very important, because if the West Bengal Premises Tenancy Act, 1956 does not apply to the Barrackpore Cantonment, the matter will be governed by the Transfer of Property Act and the entire complexion of the suit will be changed. Before proceeding with the consideration of the Constitutional point involved, certain preliminary facts may be stated. The West Bengal Premises Tenancy Act 1956, is a State enactment for which assent of the President had been obtained and the Act came into force on the 31st. March, 1956. It is an Act to provide for the regulation of certain incidents of tenancy of premises in Calcutta and some other areas in West Bengal. In the first instance, it extended to the whole of Calcutta and to all area constituted as municipalities under the provisions of the Bengal Municipal Act, 1932. But there is a proviso which enables the State Government by notification to extend the Act or any part thereof to any other area specified in the notification, or to exclude any area from the operation of this Act or any specified part thereof. By a notification No. 6350 L. R. dated 30th March, 1956 published in the Calcutta Gazette, Extraordinary dated 31st March, 1956. The West Bengal Premises Tenancy Act, 1956 has been extended inter alia to the Barrackpore cantonment area. It is this notification which is the subject-matter of challenge in this case, in so far as it extends the provisions of the West Bengal Premises Tenancy Act, 1956 to the Barrackpore cantonment area.

(2.) Next it is necessary to consider a few enactments dealing with cantonments. Cantonments in India were areas connected with military establishments and the first general Cantonment Act was a consolidating and amending measure passed as long ago as in 1899. It was followed by another Consolidating and Amending Act in 1910, but was later replaced by an elaborate Code which is also a Consolidating and Amending Act, namely the Cantonment Act, 1924 (Act II of 1924) which is still in operation. The word "cantonments" is defined by Section 3 of that Act. It provides that the Central Government may by notification declare any place or places in which any part of the Indian army or air force is quartered, or which being in the vicinity of any such place or places is or are required for service of such forces, to be a cantonment for the purposes of the said Act. The Barrackpore cantonment is one such cantonment declared by the 1924 Act. A perusal of the Cantonment Act 1924 will show that it is a Code by itself and the intendment is clearly that within the cantonment area quite a number of matters should be governed by the special provisions of the 1924 Act. It will be relevant to mention a few provisions: Section 138 relates to the removal of congested buildings. It provides that where it appears to a Board constituted under the Act, that any block of buildings in the cantonment is in an unhealthy condition by reason of the manner in which the buildings are crowded together etc. or for want of proper drainage or ventilation, the said buildings or part thereof may be removed in order to abate the unhealthy condition. Section 139 deals with overcrowding of dwelling houses. It provides that, where it appears to a Board that any building or part of a building used as dwelling house is so overcrowded as to endanger the health of the inmates thereof, steps may be taken to abate the overcrowding by regulating the number of inmates. Section 140 gives power to the Board to require the repair or alteration of any building within the Cantonment area which is so ill-constructed or dilapidated as to be in an insanitary state. I mention these sections to illustrate the proposition that the Cantonments Act, and the provisions thereof are meant not only to control houses which are in occupation of the military establishment, but also to private houses within the cantonment area. The next Statute to be considered is the Cantonments (House-accommodation) Act, 1923 being Act VI of 1923 which is an Act to amend and consolidate the law relating to the provisions of house-accommodation for military officers in cantonments. In contrast with the 1924 Act, this earlier Act deals only with house accommodation of military officers. It gives power to appropriate any house situated in a cantonment on a lease for the purpose of housing military officers. Thus, this particular Act does not deal with private houses which have not been so appropriated. The third Statute to be considered is a Central Statute called the Cantonments (Extension of Rent Control Laws) Act, 1957 being Act 46 of 1957. The Statement of the Objects & Reasons Of this Act states that under Article 228 of the Constitution read with Entry No. 3 of the Union List, power to make laws in respect of rent control in cantonment areas now belongs exclusively to the Parliament. Before the Constitution came into force, this power belonged to the Legislatures of the former provinces and States. It proceeds to state that a State Law namely the Madhya Bharat Accommodation Control Act passed in 1955 was extended to Mhow as on 6th February, 1980, but in view of the redistribution of the legislative power under the Constitution, a State Legislature could not exercise legislative power after the commencement of the Constitution, over a subject which is included in the Union List. Hence, a State Act could not be made applicable to Mhow cantonment. It is stated that a urge number of oases were filed by the landlords, taking advantage of the absence of any Rent Control Laws in the cantonment area, and it was to protect the tenants from improper eviction that central Act was necessary, to extend the State Act to the M'how cantonment. It proceeds to state as follows :

(3.) By Section 3 of the 1957 Act, the Central Government is empowered by notification in the Official Gazette to extend to any cantonment area, with such restriction and modification as it thinks lit, any enactment relating to the control of rent and regulation of house accommodation which is in force on the date of the notification in the State in which the cantonment is situated.