Judgment:
S.U. Khan, J.
1. This is landlords' writ petition. The only point involved in this writ petition is as to whether Sri S. C. Srivastava, Munsif Magistrate had Jurisdiction to act as prescribed authority under U. P. Rent Control Act (U. P. Act No. 13 of 1972) on 8.10.1977, when he allowed the release application No. 201 of 1974 filed by petitioner landlord against tenant respondent under Section 21 of the Act. Against the aforesaid order dated 8.10.1977 an appeal was filed by the tenant which was allowed by District Judge, Jhansi against which landlord earlier filed a writ petition being Writ Petition No. 10115 of 1978. The said writ petition was allowed on 27.2.1980 and matter was remanded to District Judge for hearing and deciding the appeal afresh. It was only after remand that the tenant raised the question of jurisdiction before the appellate court. The appellate court accepted the plea of want of Jurisdiction of Sri S. C. Srivastava raised by the tenant in appeal and by order dated 17.5.1982 again allowed the appeal (Rent Control Appeal No. 9 of 1979) and set aside the order dated 8.10.1977 passed by prescribed authority/Sri S. C. Srivastava, Munsif allowing the release application of landlord petitioner. The appeal was allowed only and only on the question of jurisdiction without touching the merits of the case.
2. U. P. Act No. 13 of 1972 became applicable in Uttar Pradesh, w.e.f. 15.7.1972. Section 3 (e) of the said Act defined prescribed authority as Magistrate of the first class authorised by the District Magistrate to act as prescribed authority under the Act. Thereafter w.e.f. 20.7.1974 the said definition was amended by U. P. Act No. 19 of 1974 and it was provided that prescribed authority means an officer having three years or more experience as a Munsif Magistrate or Executive Magistrate authorised by the State Government to act as prescribed authority. The definition was further amended by U. P. Act No. 28 of 1976, w.e.f. 5.7.1976. After the said amendment of 1976 (which is continuing till date) prescribed authority means a Civil, Judicial Officer or Judicial Magistrate authorised by the District Judge to act as prescribed authority under the Act. There is no dispute that by order dated 5.8.1976. passed by District Judge, Jhansi (copy of which is Annexure-8 to the writ petition) Sri S. C. Srivastava had been authorised to act as prescribed authority.
3. Building in dispute is situate in Jhansi cantonment. Central Government by S.R.O. 259, dated 1.9.1973, provided that:
'In exercise of the powers conferred by Section 3 of the Cantonment (Extension of Rent Control Laws) Act, 1957 and in supersession of the notification of the Government of India in the Ministry of Defence Number S.R.O. 8, dated 3.4.1972 Central Government hereby extends to all the cantonments in the State of U. P. the U. P. Act No. 13 of 1972 as in force on the date of this notification in the State of Uttar Pradesh with the following modification.'
(underlining supplied)
4. The tenant on the basis of the underlined portion of the above S.R.O. 259 successfully contended before the appellate court that Section 3(e) of the Act as in force on 1.9.1973 conferred powers of prescribed authority under the Act upon Executive Magistrate, authorised to act as such by District Magistrate, hence Sri S. C. Srivastava being Judicial Magistrate appointed by District Judge to act as prescribed authority had no jurisdiction to hear and decide the release application. According to the tenant the subsequent amendment in the definition of prescribed authority given under the Act in the years 1974 and 1976 did not apply to cantonment buildings as U. P. Act No. 13 of 1972 as stood on 1.9.1973 was made applicable by S.R.O. 259, dated 1.9.1973 to such buildings and subsequent amendment to the Act did not apply to the building situate in cantonment areas.
5. The Central Government being aware of this ambiguity passed another S.R.O. being S.R.O. 47, dated 17.2.1982 superseding the earlier notification S.R.O. 259 and extended to all the cantonments in the State of Uttar Pradesh. U. P. Act No. 13 of 1972 as in force in the State of Uttar Pradesh with some modification. The words 'on the date of this notification' which were there in S.R.O. 259. dated 1.9.1973 were deleted in the latter S.R.O. 47, dated 17.2.1982. Appellate Court allowed the appeal on the question of jurisdiction on 17.5.1982. Unfortunately S.R.O. 47, dated 17.2.1982 could not be placed before the appellate authority. Appellate court in its Judgment on page 30 of the paper book has observed, 'no change in S.R.O. 259, dated 1.9.1973 could be shown to me or found out by me'.
6. If the argument of the tenant is accepted then it will lead to almost absurd result. It will mean that even though in between 5.7.1976 and 17.2.1982 landlord of a building situate In a cantonment was entitled to get the building released on the ground of bona fide need under Section 21 of the Act, however, there was no forum or authority before whom such an application could be filed as after amendment of 1976 it was District Judge who was required to appoint Judicial Officers as prescribed authority under the Act and the State Government and the District Magistrate had therefore, stopped the practice of appointing prescribed authorities after 5.7.1976 for which they were empowered prior to that date.
7. The Supreme Court in U. P. Avas Evam Vikas Parishad v. Zainul Islam, AIR 1998 SC 1028, has held that reference of an earlier Act in another Act may include a subsequent amendment in the earlier Act if contrary view is likely to result in discrimination and arbitrariness. Section 55 of Avas Evam Vikas Parishad Adhiniyam, 1965 provided that land might be acquired under the provisions of the Land Acquisition Act, 1894 as amended in its application to U. P. Land Acquisition Act, 1894 was drastically amended in the year 1984 and enhanced solatium and interest was provided through the said amendment. The question before the Supreme Court was whether provisions of Land Acquisition Act as amended in 1984 were applicable to the acquisition under the Adhiniyam of 1965 or not. Supreme Court placing reliance upon Nagpur Improvement Trust Authority, AIR 1973 SC 689, decided by Special Bench of seven-Judges, held that if amended provisions of Land Acquisition Act are not read into Adhiniyam by virtue of its Section 55 then it will lead to discrimination and violation of Article 14 of the Constitution. The Supreme Court also quoted the following observations of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. 'If certain provisions of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction'. (Paragraph 25). The Supreme Court in para 31 of the aforesaid 1998 authority held that in case It was held that amendments introduced in the Land Acquisition Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provision of the Land Acquisition Act as applicable under the Adhiniyam would suffer from the vice of arbitrary and hostile discrimination. Such a consequence would be avoided if the provisions of the Adhiniyam are construed to mean that the provisions of the Land Acquisition Act as amended by 1984 Act would apply to acquisition of land for the purposes of the Adhiniyam. There is nothing in the Adhiniyam which precludes adopting the latter construction. The said authority of 1998 has been followed in Nagpur Improvement Trust v. Basant Rao, AIR 2002 SC 3499.
8. In the instant case, if it is held that the amendments incorporated in U. P. Act No. 13 of 1972 in between 1.9.1993 and 17.2.1982 were not applicable to the building situate in cantonment then it will lead to discrimination, arbitrariness and absurdity. Landlord will be having right of ejectment on the ground off bona fide need but no forum for the same.
9. Legislation by reference Includes subsequent amendments in the earlier Act which is referred to in the said legislation. Position is different if it is a case of legislation by incorporation. In the instant case, it is a case of reference to U. P. Act No. 13 of 1972 and not incorporation of the same. Even though the notification S.R.O. 259, dated 1.9.1973 is not legislation, however, the same principle may be applicable in such cases to the notifications also. The point is squarely covered by an authority of this Court in J. Bhatia v. A.D.J., 1995 (1) ARC 75.
10. It is, therefore, dear that in spite of the words, 'as in force on the date of this notification' mentioned in S.R.O. 259, dated 1.9.1973, amendments in U. P. Act No. 13 of 1972 after 1.9.1973 were also applicable to the buildings situate within cantonment areas.
11. There is another aspect of the matter. By S.R.O. 47, dated 17.2.1982 U. P. Act No. 13 of 1972 as in force in the State of Uttar Pradesh has been made applicable to the cantonments. The said provision is declaratory and darificatory, hence it will have retrospective effect (declaratory and dariflcatory provisions have got retrospective effect vide para 38, CIT, Bhopal v. Shally Products, AIR 2003 SC 2532.
12. Unfortunately appellate court did not decide the appeal on merit, hence there is no option except to remand the matter to lower appellate court. Accordingly, writ petition is allowed, judgment and order passed by appellate court (IVth A.D.J. Jhansi), dated 17.5.1982 is set aside and the matter is sent back to learned Addl. District Judge to decide Rent Control Appeal No. 9 of 1979 on merit within six months from the date of production of certified copy of this Judgment.
13. During pendency of appeal tenant shall not be dispossessed provided that w.e.f. November, 2004 onword he pays rent to the landlord at rate of Rs. 800 per month.