The aforementioned petitions are being heard together at the admission stage without calling for counter affidavit on the consent of the parties. The facts and law involved are common.
The facts of Civil Misc. Petition No. 7658 of 2015 (Anees Uddin vs. Waqf Alal Khair) is taken to be the leading petition.
The respondent/plaintiff a waqf, instituted a suit before the Small Causes Court at Meerut being SCC Suit No. 83 of 2012 against the applicant/tenant for eviction, damages and arrears of rent. The applicant contested by filing a written statement categorically stating that the provisions of Uttar Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction), Act 19721 would not be applicable upon waqf property, therefore, the suit was barred by Section 20(1) of Act 13 of 1972 read with Order 7 Rule 11 CPC. The trial Court by order dated 19 February 2015 dismissed the application (29-C) filed under Order 7 Rule 11 holding that the suit was maintainable and the provisions of Act No. 13 of 1972 would not apply as the disputed premises being waqf property would thus be barred in view of Section 2(1)(bbb). Aggrieved, applicant preferred a revision under Section 25 of the Provincial Small Causes Act, 1887, being SCC Revision No. 5 of 2015 which was dismissed on 9 November 2015 affirming the order of the trial court. The aforementioned orders are being assailed in a petition under Article 227 of the Constitution.
The submission of the learned Senior Counsel appearing for the applicant is that the Government of India in exercise of its powers conferred under Section 3 of Cantonment Extension of Rent Control Act, 19572 made applicable the provisions of Act 13 of 1972 vide notification dated 1 September 1973, followed by a subsequent notification issued on 17 February 1982, to cantonment areas by incorporation as it stood on the date of notification. It is, therefore, sought to be urged that the subsequent amendment brought about in Act 13 of 1972 by U.P. Act 5 of 1995 inserting Section 2(1)(bbb) excluding the waqf property from the application Act 13 of 1972 would not apply as the said amendment was not incorporated by the Government of India by any subsequent notifications after 1995.
In rebuttal, Sri Ateeq Ahmad Khan, learned counsel appearing for the respondents would submit that the Government of India vide notifications, mentioned herein above, have made applicable the provisions of U.P. Act 13 of 1972 by reference and not by incorporation, therefore, any subsequent amendments made in U.P. Act No. 13 of 1972 would be applicable upon the cantonment areas, therefore, would urge that there is no illegality or infirmity in the impugned order.
Rival submissions fall for consideration.
The only point pressed by the parties is, whether U.P. Act 13 of 1972 as made applicable to the cantonment areas is by way of reference or by incorporation; therefore, whether Section 2(1)(bbb) excluding the application of U.P. Act 13 of 1972 upon cantonment areas, inserted by U.P. Act No. 5 of 1995, would be applicable in excluding the Waqf property from the application of U.P. Act 13 of 1972.
In order to appreciate the limited controversy in the present petition, the distinction between legislation by incorporation or by reference is to be understood.
Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction of the provision of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the provisions so incorporated become part and parcel of the later Act as if they had been "bodily" transposed into it. The result is the later Act along with the incorporated provisions of the earlier Act, constitute an independent legislation which is not modified or repealed by a modification or repeal of the earlier Act. The rule of construction, therefore, is that repeal of the earlier statute which is incorporated does not affect operation of the subsequent statute in which it has been incorporated. So also any amendment in the statute which has been so incorporated, that is, made after the date of incorporation of such statute in which it is incorporated and the provisions of the statute have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendment are not to be read in the subsequent legislation.
If it is a referential legislation the provisions of the earlier legislation to which reference is made in the subsequent legislation would be applicable as it stands on the date of application of such earlier legislation to matters referred to in subsequent legislation. In other words, if any amendment made in the earlier legislation after the date of enactment of the subsequent legislation would also be applicable. (Vide - Nagpur Improvement Trust vs. Vasantrao3, State of Madhya Pradesh vs. M.V. Narasimhan4, U.P. Avas Vikas Parishad vs. Jainul Islam5.
The Constitution Bench in Girnar Traders vs. State of Maharashtra and others6 explained the doctrine of legislation by reference; when there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference - In the case of legislation by reference, the amending law of the former Act would normally become applicable to the later Act. Whereas, doctrine of legislation by incorporation would mean that when the provisions of an Act are specifically referred and incorporated in the later statute then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation.
This Court in Jagannath Bhatia vs. IIIrd Additional District Judge, Bareilly7 had taken a view, that provisions of Act 13 of 1972, made applicable to the cantonment areas of the State in 1973 is an instance of legislation by reference. However, the subsequent notification issued by the Government of India in 1982 escaped the notice of the Court, therefore, it is sought to be urged that every subsequent amendment brought about in Act 13 of 1972 after 1982 would not be applicable to cantonment areas unless duly notified by the Government of India.
In order to appreciate the point urged by the learned counsels, it is necessary to set out briefly the history of tenancy legislation in the State of Uttar Pradesh. In the State, rent and eviction control legislation was initiated by the United Provinces (Temporary) Control of Rent and Eviction Ordinance promulgated on 1 October 1946. This Ordinance was followed by U.P. Act III of 1947 which was made retrospective with effect from the date of Ordinance. Both the Act and the Ordinance were applied to the 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 Accommodation) Act, 1923, and that the simultaneous application of Act III of 1947 to cantonment areas may create problems.
Parliament, thereafter, enacted the U.P. Cantonments (Control of Rent Eviction) Act, 1952 (Act 10 of 1952). Though this was an Act of Parliament, its operation was confined to cantonments in Uttar Pradesh.
Parliament thereafter, in 1957 enacted the Cantonments (Extension of Rent Control Laws) Act, 1957 (Act 46 of 1957). Act 22 of 1972 gave it retrospective effect from 26 January 1950. It provided for the extension, to cantonments in each State, of laws relating to the control of rent and regulation of house accommodation prevalent in the particular State in respect of areas other than cantonments. Section 3 of this Act 46 of 1957, originally read thus:
"The Central Government may by notification in the official gazette, extend to any cantonment 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 notification in the State in which the cantonment is situated."
The words "on the date of the notification" in the section were omitted by Section 3 of Central Act 22 of 1972 with full retrospective effect.
Parliament by enacting U.P. Cantonments (Control of Rent and Eviction) (Repeal) Act, 1971 (Act 68 of 1971), repealed U.P. Act 10 of 1952. The purpose of repeal was to remove an anomalous position created by the operation of two enactments that is Act 3 of 1947 and Act 10 of 1952 under the cantonments areas of the State.
It was only on 3 April 1972 that a notification was issued by the Central Government under Section 3 of Act 46 of 1957, extending the provisions of U.P. Act 3 of 1947, to the cantonments in the State of Uttar Pradesh. But soon after the above notification was issued U.P. Act 3 of 1947, itself was repealed and replaced by U.P. Act 13 of 1972, which came into force on 15 July 1972. This necessitated the issue of another notification under Section 3 of Act 46 of 1957, extending the provisions of Act 13 of 1972, to the Cantonments in Uttar Pradesh. This notification dated 1 September 1973, and gazetted on 29 September 1973, reads as follows:-
"In exercise of the powers conferred by section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957, (Act 46 of 1957), and in supersession of the notification of the Government of India in the Ministry of Defence, No. S.R.O. 8, dated 3rd April, 1972, the Central Government hereby extends to all the cantonments in the State of Uttar Pradesh the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972 as in force on the date of this notification, in the State of Uttar Pradesh with the following modifications, namely, It should be noted that the notification extended to the cantonment areas the provisions of Act 13 of 1972 as they stood on the date of notification. It was only on 17 February 1982 that a further notification was issued superseding the notification dated 1 September 1973 by which provisions of Act 13 of 1972 as in force in State of Uttar Pradesh were extended to the cantonment areas. The relevant portion of the notification is extracted:
"S.R.O. 47. In exercise of the powers conferred by section 3 of the Cantonments (Extension of Rent Control Laws) Act, 1957 (46 of 1957) and in supersession of the notification of the Government of India in the Ministry of Defence, No. S.R.O. 259, dated the 1st September 1973, the Central Government hereby extends to all the Cantonments in the State of Uttar Pradesh the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972), as in force in the State of Uttar Pradesh, with the following modifications,..........."
The subsequent notification became necessary because subsequently the enactments had amended the provisions of Act 13 of 1972 in 1974 and in 1976 which had not been extended previously. The subsequent notification was, therefore, worded differently as compared to the earlier notification.
But here the difficulty arises not so much because of the language of Section 3 of Act 46 of 1957, but as on account of the language of the notification issued on 1 September 1973, which extended the Act 13 of 1972 to the cantonments of the State 'as on date of notification'. It must be pointed out in this connection that this notification was issued after Act 46 of 1957 had been amended by Act 22 by 1972 and a power had been conferred on the Central Government to issue notification without the restriction previously contained in Section 3(1) that the statute proposed to be extended should be "as in force on the date of notification". However, despite the enlarged power conferred by Amending Act 22 of 1972 the notification dated 1 September 1973 is couched in the restricted way and purports to extend to the cantonments only the provisions of Act 13 of 1972 as in force on the date of notification, therefore, makes applicable to the cantonments only the provisions of Act 13 of 1972 as they stood on 1 September 1973 and not its subsequent amendments. This restricted language was corrected by the subsequent notification dated 17 February 1982. The validity of the notification was upheld by the Apex Court in Brij Sunder Kapoor etc. vs. Ist Additional District Judge and Others8.
It is, therefore, evident from the various notifications issued by the Central Government in exercise of power conferred under Section 3 of Act 46 of 1957 since 1972; Act 13 of 1972 was made applicable to cantonments in Uttar Pradesh by a general reference to the Act, without making mention of any of the provisions of Act 13 of 1972. But the notification dated 1 September 1973 gave the Act a restrictive application 'as on date' of notification. Therefore, subsequent amendments made in Act 13 of 1972 after 1973 were not to be considered. This restrictive meaning was subsequently modified by the notification dated 17 February 1982 making the provisions of Act 13 of 1972 applicable "as in force in the State of Uttar Pradesh". From the plain reading of the notification it is clear that any amendment brought about in Act 13 of 1972 after 17 February 1982 would apply to the cantonments in the State without requiring a fresh notification. Act 13 of 1972 was amended by Act 58 of 1995, inserting Section 2(bbb), whereby, excluding property belonging to waqf from the purview of Act 13 of 1972. As seen earlier Act 13 of 1972 is not just a legislation by reference but it is a case where the entire provisions of Act 13 of 1972 have been extended and made applicable to the cantonments of the State, therefore, any amendment in the former legislation (Act 13 of 1972) brought about in 1995, inserting Section 2(1)(bbb), would normally become applicable to the later Act. In my opinion, the principle of law underlying legislation by incorporation or by reference has not much relevance in the present case. It is in fact an extension of an Act to a territory to which Act 13 of 1972 was previously not applicable. (Refer - Rakesh Vij vs. Dr. Raminder Pal Singh Sethi and others9). I am, therefore, not convinced to take a different view taken earlier in Jagannath Bhatia case (supra), that Act 13 of 1972 is an instance of legislation by reference and not by incorporation.
In this backdrop, the earlier notification issued under Section 3 of Act 46 of 1957 made applicable Act 13 of 1972 limiting its operation "as in force on the date of notification", whereas, the subsequent notification issued in 1982 clarified, "as in force in State of Uttar Pradesh". It is evident, therefore, that in the State all subsequent amendments made, thereafter, in Act 13 of 1972 would apply to cantonment areas. Therefore, in my view, the amendment brought about by Act No. 58 of 1995, inserting Section 2(1)(bbb) excluding the waqf property from the jurisdiction of Act 13 of 1972 would be applicable to cantonment areas. The Courts below were justified in rejecting the application and holding that the provisions of Act No. 13 of 1972 would not apply.
For the law and reasons stated herein above, the petition is dismissed.
No cost.
Order Date :- 16/03/2016 S.Prakash (Suneet Kumar,J.)