JUDGMENT

G.H. Guttal, J.

1. The question for consideration in this petition under Article 227 of the Constitution of India, is whether the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) was applicable to the premises in Pune Cantonment on 27th November, 1973.

2. The Respondents Nos. 1 to 3 and a gentleman by name Framroze Mistry, since deceased, in their capacity as trustees of the estate of one Mr. D.P. Pocha, are the owners of a flat in House No. 2504 situated at Sir E.H. Jaffar Road Cantonment, Pune. The respondent No. 4 was the tenant and the petitioner was the sub-tenant of the suit premises. In Suit No. 3365 of 1973, instituted on 27th November, 1973 a decree of eviction under the Bombay Rent Act was made against the respondent No. 4 and the petitioner. The decree is dated 21st October, 1975. It was confirmed by the District Court, Pune on 7th March, 1977 in Appeal No. 75 of 1976 and received approval of this Court by dismissal of a petition under Article 227 of the Constitution of India filed by the petitioner.

Then the petitioner filed Regular Civil Suit No. 447 of 1980 in the Court of the Civil Judge, Junior Division, Pune, for a declaration that the aforementioned decree in Civil Suit No. 3365 of 1973 which, as already stated, was confirmed in Appeal, is void, as, according to the petitioner, on 27th November, 1973, when the suit was instituted, the Bombay Rent Act was not applicable to Pune Cantonment where the premises are situated and therefore, the Special Court constituted under the Act had no Jurisdiction to entertain and try the suit. The application Exh. 5 for interim injunction restraining the respondents No. 1 to 3 from executing the decree, was granted by the learned Civil Judge, Junior Division, Pune but it was dismissed by the learned IInd Additional District Judge, Pune, in Miscellaneous Appeal No. 18 of 1982. The petitioner impugns this Order passed by the learned IInd Additional District Judge, Pune.

3. The Bombay Rent Act came into force, on 19th January, 1948 by virtue of the Notification published by the Government of Maharashtra under section 3(1) of the Act. Section 3(2) of the Act limits the duration of the Act to the period specified therein which was extended from time to time. The Bombay Rent Act remained in fore initially upto 31st March, 1970 and thereafter has been extended from time to time, by the Maharashtra Legislature. On 29th April, 1969 the Supreme Court delivered the judgment in Indu Bhushan Pose v. Rama Sundari Debi and another, . The Supreme Court held that the power to

make laws on the subject of house accommodation in Cantonment areas belongs exclusively to the Parliament. The effect of the Supreme Court's pronouncement in its application, to the Pune Cantonment was that the Bombay Rent Act was passed by the State Legislature without possessing the legislative competence.

4. The Cantonment (Extension of Rent Control Laws) Act, 1977, hereinafter for brevity's sake referred as "the Cantoment Act, 1957" made by the Parliament was in operation at all relevant times. Section 3(1) of the said Act empowers the Central Government, by issuing a Notification in the Official Gazette, to extend to any Cantoment, 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 Cantoment is situated. (1 Section 3(1) of the Cantonments (Extension of Rent Control Laws) Act, 1957 in so far as is relevant reads---

(1) The Central Government may, by notification in the Official Gazette, extend to any cantoment with such restrictions and modifications as it thinks fit, 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 Cantoment is situated).

The extension of the Act may be made "with such restrictions or modifications' as the Central Government thinks fit. The Bombay Rent Act is an Act "relating to the control of rent and regulation of house accommodation" and was in force in Maharashtra where Pune Cantoment is situated. In exercise of its power under section 3(1), the Central Government by Notification No. SRO/8/ED dated 27th December, 1969, extended the Bombay Rent Act inter alia, to the Pune Cantoment. The Notification was published by the Central Government in the Maharashtra Government Gazette on 12th February, 1970. The Notification extended the Act "as in force on the date of this Notification" implying thereby that what was extended was the Bombay Rent Act as it stood on 29th November, 1969.

5. The argument of Mr. Paranjpe, learned Counsel for the petitioner is this :---

What was extended to the Pune Cantoment area was the application of the Bombay Rent Act, which was in force on 29th November, 1969. The Bombay Rent Act in force on 29th November, 1969 was, by virtue of section 3(1) of the Act to remain in force "upon and inclusive of 31st March, 1970." What was in force, on the date of the Notification under section 3(1) of the Cantonment Act, 1957 was the Act which was to expire on 31st March, 1970. Therefore the extension of the Act by the Central Government also expired on 31st March, 1970. Therefore, the argument proceeds, unless there was a fresh Notification by the Central Government extending the Act beyond 31st March, 1970 to cover the date of institution of the suit, the Bombay Rent Act in its application to the Pune Cantoment lapsed on 31st March, 1970. Consequently therefore, on the date on which the suit was filed, the Court of Small Causes, Pune, had no jurisdiction to entertain and try it.

6. The Maharashtra State did not possess the competence to make laws in respect of the subject of housing accommodation and rent control for Cantonments. This is the result of the decision in Indu Bhushan Bose v. Rama Sundari Debi and another, and decided on 29

March, 1969. Therefore, it became necessary to validate the Bombay Rent Act by resorting to the power conferred by section 3(1) of the Cantonment Act 1957. The argument of learned Counsel ignores the effect of a subsequent Act of Parliament known as The Cantonment (Extension of Rent Central Laws) Amendment Act, 1972---hereinafter for brevity's sake referred as the Cantonment Act, 1972. The Legislature, aware of the need to extend the Act to the Cantonments, realised the effect of the words "on the date of the Notification" in the Cantonment Act, 1957. Therefore, by the Cantonment Act, 1972 it omitted the words on 'the date of the Notification." The omission was made retrospectively for, the Cantonment Act 1972 declares that the words on which Mr. Paranjpe bases his arguments "shall be and shall be deemed always to have been omitted." ( Section 3 of the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972 in so far as is relevant, reads---

Amendment of section 3 :---Section 3 of the principal Act shall be re-numbered as sub-section (1) thereof, and (i) in sub-section (1) as so re-numbered, the words "on the date of the notification" shall be, and shall be deemed always to have been omitted).

7. The Cantonment Act, 1957 enabled the Central Government to extend the Bombay Rent Act "which was in force" on 31st March, 1970. Under the law, as it existed on 31 st March, 1970, the operation of the Bombay Rent Act came to an end unless a further notification under section 3(1) was issued. The expiration of the law on 31st March, 1970 would have created disabilities and impaired the rights created by decrees made thereunder prior to the extension of the Bombay Rent Act to the Cantoments by the Notification dated 27th December, 1969. An enactment which affects past transactions is said to be retrospective. (See Craies on Statute Law, Seventh Edition, page 387, for meaning of "retrospective."). If by reason of the absence of a subsequent notification extending the Bombay Rent Act to Pune Cantoment, the Special Courts constituted there under ceased to have jurisdiction to try the suits under the Bombay Rent Act, a grave injustice by deprivation of protection of the beneficent legislation was manifestly clear. If the Bombay Rent Act ceased to be operative unless extended beyond 31st March, 1970, the decrees made, jurisdictions exercised, right created or extinguished under the excised law, would be void. Aware of the fact that the words. "on the date of the Notification" in the Cantonment Act, 1957 were susceptible of the construction new propounded, the legislature stepped in, to eradicate the mischief. No doubt, the accepted rule of interpretation of statutes is that on statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the statute or arises by necessary and distinct implication. (Maxwell on the Interpretation of Statutes, Twelfth Edition, page 215). This rule against retrospective operation is a presumption only and as such it may be displaced not only by express words in the statute but also by circumstances sufficiently strong to displace it. (Maxwell on the Interpretation of Statutes, Twelfth Edition, page 225). As I will presently point out the omission of the words "on the date or the Notification" by the Cantonment Act, 1972 was expressly retrospective. The Legislature was aware that the words "on the date of the Notification" can be construed to mean that upon the expiry of the temporary duration of the Act, a fresh notification under section 3(1) of the Cantonment Act, 1957 alone could avert public inconvenience. There are occasions and circumstances affecting public interest, such as denial of the benefit of beneficient law, deprivation of jurisdiction of tribunals, extinction of rights justly acquired and countless situations which cannot be foreseen. The Parliament should be presumed to be aware of the mischief likely to result form the enactment which it seeks to amend or repeal. Therefore, the Legislature stepped in through its amending power and enacted the Cantonment Act, 1972 with a determination to eradicate the mischief likely to result from the possible construction of the words "on the date of the Notification" in the Cantonment Act, 1957. The legislature eliminated these words retrospectively. The intention to omit the words "on the date of the Notification" retrospectively, it expressed in absolute and unmistakable language. The Parliament asserted the retrospective effect of the amendment by the words "shall be and shall be deemed always to have been omitted." The omission of the words has only effect :---the qualifying words "on the date of the Notification" never existed in Cantonment Act, 1957. With the omission of the words "on the date of the Notification" from section 3(1) of the Cantoment Act, 1957 the Central Government's power to extend the Bombay Rent Act to Cantonments operated without any qualification implied by the words omitted by the Cantonment Act, 1972. Therefore, the Central Government's power to extend the Bombay Rent Act to Pune Cantonment was always unfettered and not limited by the date of the notification or any other date.

8. It is thus clear that the Central Government's power to extend the Bombay Rent Act was never limited by the "date of the Notification." This means that the Notification issued under section 3(1) of the Cantonment Act 1957 could extend the Bombay Rent Act to Pune Cantonment absolutely and not as it existed on the date of the Notification. But then learned Counsel argues that the Notification dated 27th December, 1969 whereby the Bombay Rent Act was extended to Pune Cantonment continued to qualify the extension by the words "on the date of this Notification" because the Notification was never amended by omitting these words. (Notification No. S.R.O./8 E.D. New Delhi, the 27th December, 1969:---"In exercise of the powers conferred by section 3 of he Cantonments (Extension of Rent Control Laws) Act 1957 (46 of 1957), the Central Government hereby extends to all the Cantonments in the state of Maharashtra except the Cantonment of Aurangabad and Kamptee, the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947) as in force on the date of this notification in the Sate of Maharashtra in which, the Cantonments are situated with the following modifications,

namely............................."). The submission is that notwithstanding the fact that section 3(1) of the Cantonment Act 1957 empowers extension of the Bombay Rent Act to Pune Cantonment without reference to the date of the Notification, the Notification itself operates to limit the extension of the Bombay Rent Act to the law as it stood on 29th December, 1969.

9. The effect of this submission, when analysed is this. The Parliament by section 3(1) of Cantonment Act, 1957 empowered the Central Government to extend, by notification, in the Official Gazette, the Bombay Rent Act to Cantonments in Maharahshtra. The Central Government as the delegate of the Parliament extended the Bombay Rent Act to Pune Cantonment. The Cantonment Act 1957 did not limit the Central Government's power to extend the Bombay Rent Act with such effect that the Bombay Rent Act should expire on 31st March, 1970. Nevertheless, the notification extends the Bombay Rent Act not absolutely but only in such manner that it expired on 31st March, 1970. Therefore, the submission means that the notification does what the law made by the Parliament does not empower it to do.

10. The law of any country includes not only the statute law but a great deal of what may be termed as subordinate or delegated legislation. It is common for statutes to come into operation on a date to be fixed by the executive. (Administrative Law, H.W.R. Wade, Sixth Edition, page 853). This is a typical example of delegated legislation. Delegated legislation comprises of different orders, regulations, schemes and notifications made or issued under legislative authority. The notification dated 29th December, 1969 is subordinate legislation. A fair evaluation of the argument summarise above, demands application of fundamental rules of construction of subordinate legislation.

It is an accepted rule that a power conferred by statute must be exercised strictly in accordance with the provisions of the statute. (Craies on Statute Law, Seventh Edition page 324). The subordinate or delegated legislation is not valid if it is not in pursuance of the legislative authority. ( Craies on Statute Law, Seventh Edition, page

324.). Its application is valid only if it does not conflict with the statute where under it is made. Ramchandra Kailsh Kumar and Co. and others v. State of U.P. and others, (1980) Suppl, S.C.C. 27. It follows that subordinate legislation must not go beyond, nor be repugnant to the enactment under which it is made. (Cruies on statute law, Seventh Edition, page 329). If it does, it is without authority Ajay Kumar Banerjee and others v. Union of India, A.I.R. 1984 S.C. 1130 para 26.

The enactment whereunder the notification dated 29th December, 1969 was issued by the Subordinate law maker, did not empower the extension of the Bombay Rent Act as it was in force "on the date of the notification." The Central Government was, by reason of the retrospective omission of the mischiefridden words, empowered to extend to the Cantonments, the Bombay Rent Act, "as in force" and not "as in force on the date of the notification." To the extent to which the notification limited the extension of the Bombay Rent Act to the duration expiring on 31st March, 1970, it is not in pursuance of the authority granted by the enactment. The empowering statute has set the limits of the authority of the Central Government. Thus, the Central Government could extend the Bombay Rent Act as it was in force in the State of Maharashtra. The subordinate legislation which introduces and unauthorised limitation is clearly beyond the authority granted by the empowering statute. Thus the notification in so far as it introduced the words "on the date of the notification" is beyond the Central Government's power under section 3(1) of the Cantonment Act, 1957.

11. The next question is :---What is the effect of the transgression ?

Consider the case of repeal of a statute. When an Act is repealed, any delegated legislation made thereunder cease to have effect. (Administrative Law---H.W.R. Wade, Sixth Edition, page 862). On parity of reasoning, it is clear that when the empowering words are omitted from an Act, the notification issued thereunder ceases to have effect. Thus, any notification or delegated legislation made in pursuance of the power taken away by omission of the words "on the date of the notification" is invalid. But the subordinate legislation need not be invalid in its entirety. In such a situation, there is no reason for condemning what is good along with what is bad. The general rule is---Unless the invalid part is inextricably interconnected with the valid, a Court should set aside or disregard the invalid part, leaving the rest intact. (Halsbury's Laws of England, Fourth Edition, Vol. I, Paragraph 26).

12. Now in the present case, the notification extending the Bombay Rent Act is within the empowering section 3(1) of the Cantonment Act, 1957. What is outside the authority granted by section 3(1) is the limitation implied by the words "on the date of the notification." The notification dated 27th December, 1969 without the words quoted in the last sentence is within the statutory power and is severable from the words "on the date of the notification." Therefore, the notification dated 27th December, 1969 by which the Bombay Rent Act was extended to Pune Cantoment is valid, but the limitation introduced by the words "on the date of the notification" is invalid.

13. For the reasons which I have set out in the foregoing paragraphs, the Bombay Rent Act was applicable to the premises situated in Pune Cantonment on 27th November, 1973. It was always applicable. The Courts constituted under the Bombay Rent Act did possess the jurisdiction to entertain and try suits in respect of the premises situated in Cantonment. The decree in Suit No. 3365 of 1973 in valid.

14. Then the question is about the conduct of the petitioner. The history of this litigation shows that the petitioner set up N.Y. Patel to obstruct execution. After N.Y. Patel, who prolonged the agony of the decree-holders and finally failed to get interim relief in his second appeal, the petitioner started the third round of litigation. The petitioner's conduct also disentitles him to the injunction of the Court. The learned Additional District Judge, Pune was right in allowing the appeal.

15. For all these reasons, I dismiss this petition. Rule is discharged. All interim orders made in this petition, which have the effect of staying the execution of the decree, shall stand vacated forthwith. Writ shall be despatched today. Petitioner will pay the costs of the respondents Nos. 1, 2, and 3. The petitioner applies for stay of the operation of this order for some time. I consider that I should stay the operation of this order upon certain conditions. The petitioner shall file under taking in this Court by 4.45 p.m. today making therein a statement that no one else except the petitioner is in possession of the suit premises and that the petitioner undertakes to vacate the premises in the event the Supreme Court dismisses his appeal or rejects his application for interim relief. This order shall not be further extended on the score that the petitioner wants to move the Supreme Court. The interim injunction granted by this Court shall continue till 13th October, 1989.