Sinha, C.J.
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 :
'As a situation similar to that in Mhow cantonment, areas may arise in other cantonments also, it is proposed to confer powers on the Central Government to extend the relevant Rent Control Laws in the State to the cantonment situated in that State by notification in the Gazette of India.'
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.
4. It is in the back ground of this statutory provision that we should proceed to deal with the question of law that has been posed before us.
5. The first case to be considered is a Division Bench judgment of Bombay High Court, A.C. Patel v. Vishwanath Chada, : AIR1954Bom204 . The facts in that case are as follows: The landlord filed a suit for eviction of his tenant from a premises situated in the cantonment area of Kirkee. The trial Court held that the tenant was protected under the Rent Restriction Act (Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1947) and dismissed the landlord's suit. In appeal, the District Judge confirmed the decision of the trial Court and dismissed the appeal. There was a Revision before the Bombay High Court. It was argued that the case was governed by the provisions of the Government of India Act 1935. Entry 2 in List 1 of Schedule VII conferred upon the Central Legislature the competence to legislate with regard to the regulation of naval, military and air force works, local self-government in cantonment areas and the regulation of house accommodation in such areas. It was further argued that the Rent Restriction Act 57 of 1947 which was a State Act could not deal with the regulation of house accommodation in Kirkee cantonment, since it is only the Central Legislature that could legislate with regard to this subject. It was held that the pith and substance of the Bombay Act 57 of 1947 was to regulate the relation between landlord and tenant by controlling rents which the tenant has got to pay to the landlord and by controlling the right of the landlord to evict his tenant. It could not be said that when the provincial legislature was dealing with the relation between landlord and tenant it was regulating house accommodation in the cantonment area. It was held that the Act therefore did not fall under Entry No. 2 of List 1 of Schedule VII of the Government of India Act 1935, but under Entry No. 21 of List II of Schedule VII of the Act and the legislation was competent. It was further held that the regulation contemplated by Entry 2 in List 1 of Schedule VII was regulation by State or by Government meaning thereby matters like the requisition of property, acquiring of property or allocation of property for military establishments. It was held that the State Legislature merely dealt with the relation of landlord and tenant: It was not in any way legislating with regard to house accommodation. The house accommodation remains the same but the tenant is protected 'qua' his landlord, Entry 2 of List 1 of Schedule VII of the Government of India Act 1935 is in the following terms :
'Naval, military and air force works; local Self-Government in cantonment areas (not being cantonment areas of Indian State troops), the regulation of house accommodation in areas, and, within British India, the delimitation of such areas.'
6. Entry 3 in List 1 Union List of the Constitution is in the following terms :--
'Delimitation of Cantonment areas, local Self-Government in such areas, the constitution and powers within such areas of Cantonment authorities and the regulation of house accommodation (including the Control of rents) in such areas.'
7. Entry 21 of List II Schedule VII of the Government of India Act 1935 is in the following terms :--
'Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove.'
Entry 18 in List II of Schedule VII of the Constitution is in the following terms :--
'Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans, colonization.'
While therefore, Entry 21 in the provincial list in the Government of India Act, 1935 is almost the same as Entry 18 in the State list of the Constitution, there is substantial difference between Entry 2 in the Federal Legislative List of the Government of India Act, 1935 and Entry 3 of the Union List in the VIIth Schedule of the Constitution. In the said Entry, not only 'regulation of house accommodation' is mentioned but It includes the 'control of rents.' There is, therefore, a basic difference between the facts in the Bombay case mentioned above and the instant case. According to the Entries in the VIIth. Schedule of the Government of India Act, 1935 the control of rents was a provincial subject and therefore the Rent Control Act 57 of 1947 was held not to be impinging on the Federal List which only regulated house accommodation. As regards the second point decided in the Bombay case, I am, with respect, unable to agree with the decision of Chagla, C. J. that the regulation of house accommodation in cantonment areas only deals with matters of requisition of property, acquiring of property or allocation of property by the State Government. I have already set out above certain provisions in the Cantonments Act, 1924 which shows that even private houses in cantonment areas were intended to come within the scope of operation of the said Act. There is no reason why such regulation should be thought to be restricted to matters like requisition or acquisition by the State Government, for purposes of Entry 2 in the Federal Legislative List under the Government of India Act, 1935. I now come to a decision under the Constitution, which conies very near to the facts of the instant case.
It is a Division Bench judgment of the Rajasthan High Court--Nawal Mal v. Nathu Mal, . The facts in that case were as follows: The plaintiff Nawal Mal filed a suit against the defendant Nathu Mal, for recovery of arrears of rent and ejectment in the court of the Munsif, Aimer District, Ajmer, in the first instance and thence it was transferred to the court of the Munsif, Nasirabad, who made a Reference to the High Court. The plaintiff claimed ejectment of the defendant on the ground of default in payment of rent and further that he required the said premises reasonably and bona fide for the use and occupation of himself and his family, within the meaning of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. This Act was a State Act but was made applicable to the Nasirabad cantonment area in which the premises was situated, from the 27th November, 1957 by a notification issued by the State Government under Sub-section (2) of Section 2 of the Act of 1950 which gave power to the State Government to extend the area of the Act. The point that was raised is identically same as the point raised in the instant case. It was argued that the State Act of 1950 could not be extended to the cantonment area, inasmuch as the legislature of the State had no legislative competence to enact any law for the regulation of the house accommodation including the control of rent in the cantonment area of Nasirabad, as the legislation fell within the scope of Entry 3 of List 1 of the Vllth Schedule of the Constitution, which is a Union subject. It was, therefore, contended that Section 2 of the Act of 1950 in so far as it enabled the State Act to be extended to the Nasirabad cantonment area, was ultra vires of the legislative powers of the State legislature and so the notification extending the 1950 Act to the said Cantonment was void and had no legal effect. The argument put forward on behalf of the plaintiff was that Entry 3 of List 1 of the VIIth. Schedule of the Constitution did not pertain to the regulation of control of rents in the cantonment area between private landlords and their tenants and that the control of rents envisaged in this Entry was limited to the houses acquired, requisitioned or allocated by Government, and therefore, a law regulating rents between private landlords and their tenants, even in cantonment areas did not come within the Union Entry but was a State subject. This argument is similar to the one advanced in the Bombay case. It was further argued that the impugned State legislation fell within the concurrent List, namely Entries 6, 7 and 13, of List 3 i.e. the concurrent list, and therefore even if there was any repugnance to an earlier law made by Parliament, then the State Legislation would be saved as it had received the assent of the President. This last point arose in the Rajasthan case, as it was found that a Central Act, namely the Delhi and Ajmer Rent Control Act No. 38 of 1952 was in force in the Nasirabad cantonment area and a point arose as to whether in view of the Central Act the State Act was valid. In the present case before us, the learned Munsif has rightly held that there was no question of the matter falling within the concurrent list. This has not been disputed before us by either party. There is of course no question of any repugnance of the State Act against any Central Act. In the instant case, we are only concerned with the competition between Entry 3 in the Union List and Entry 18 in the State List. The Rajasthan decision rightly pointed out that the matter had been placed beyond doubt by the Central enactment referred to above, namely the Cantonments (Extension of Rent Control Laws) Act 1957 (46 of 1957). I have already mentioned above that in the Statement of Objects and Reasons of the said Act, which is permissible to be looked at to see, the background in which the Statute came to be enacted, it has been clearly pointed out that Rent Control Acts fell exclusively within the jurisdiction of the Parliament under Entry 3 of the Union List. That is why it was found necessary to pass a central enactment expressly in order to enable a State Rent Control Act to be extended to a cantonment area. The preamble of the Act of 1957 as well as Section 3, clearly establish that the only way in which such a thing could be done was by proceeding under the Act and extending a State Act to a cantonment area by the Central Government, by notification in the Official Gazette. If the contrary was true, there was no necessity at all of passing the Central enactment. In my opinion, the legal position is as follows :
(1) Whatever may have been the position under the Government of India Act, 1935, Entry 3 in List I of the Union List, which specifically includes the control of rent, makes it incompetent for the State legislature to make a law (or extending a law) relating to the regulation of house accommodation or control of rents in cantonment areas. The West Bengal Premises Tenancy Act, 1956 is such a law, and therefore can neither be made applicable to a cantonment area nor extended to it by legislation emanating from the State legislature. Such a law is within the exclusive jurisdiction of Parliament. A special law has been passed by Parliament, namely the Cantonments (Extension of Rent Control Laws) Act 1957 by which the Central Government may by notification extend such a State Law to a cantonment area, This is the only way in which this can be done.
(2) There is nothing to show that regulation of house accommodation within a cantonment area only means regulation of house accommodation in connection with the requisition or acquisition of properties or appropriation by the State Government. It includes regulation of house accommodation and control of rent relating to private properties within a cantonment area.
8. The result is that it must be declared that notification No. 6350 L. R. dated 30th March, 1958 whereby the State Government has extended the provisions of West Bengal Premises Tenancy Act, 1956, to the Barrackpore cantonment area is ultra vires, and must be held to be void. The Reference is answered accordingly.
9. The only other point that arises in this case is as to the provision of law under which we should answer this reference. As will appear from my introductory remark, the reference is made under the provisions of Section 113 of the Code of Civil Procedure and Article 228 of the Constitution. In the former case, it has been provided that any Court, subject to such conditions and limitations as may be prescribed, may state a case and refer the same for the opinion of the High Court. There is a proviso which specifically mentions the case where the validity of an Act is in dispute. So far as Article 228 is concerned, it provides that where the High Court is satisfied that case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may either dispose of the case itself or determine the question of law and return the case to the court from which it has been withdrawn. If we proceed under Article 228, it will mean withdrawal of the ease from the lower court. Mr. Sen Gupta who is appearing for the plaintiff in the case out of which this reference arises, says that he will be quite content to have the order made under Section 113 of the Code of Civil Procedure, which is wide enough to warrant our making an order in the form we propose to make, as stated above. The reference is disposed of accordingly.
10. Let the operation of this order remain in abeyance for three weeks from this date, as prayed for.
A.K. Mukherjea, J.
11. I agree.