Supreme Court of India
ACCOUNTANT AND SECRETARIAL SERVICES PVT. LTD. & ANR.versusUNION OF INDIA & ORS.
- Citation
- 1988 INSC 179
- Decided
- 20 July 1988
- Disposal
- Dismissed
- Bench
- SABYASACHI MUKHERJI
Holding
The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is intra vires Parliament, falls within the Concurrent List, and its provisions prevail over the State Acts.
Summary
The appellant, a private limited company, occupied part of premises owned by United Commercial Bank and challenged an eviction notice issued under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The company argued that the Act, as applied to premises of a public‑sector corporation, was ultra vires Parliament and that only state legislation could govern landlord‑tenant relations. The Supreme Court examined whether the 1971 Act could be legislated by Parliament under the Constitution’s entries and concluded that it falls within Entry 6 of List III (Concurrent List), making it intra vires. The Court then held that, under Article 254(1), the parliamentary law prevails over the earlier West Bengal statutes. The challenge to the appointment of an estate officer under the Act as violative of Article 14 was dismissed. Consequently, the appeal was dismissed.
Issues considered
- Whether the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as extended to premises of a corporation established under a Central Act is ultra vires Parliament.
- Whether the Act falls under Entry 6 of List III (Concurrent List) rather than Entry 18 of List II (State List).
- Whether the 1971 Act, if intra vires, overrides the West Bengal Premises Tenancy Act, 1956 and the West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962 under Article 254 of the Constitution.
- Whether the appointment of an estate officer under the 1971 Act violates Article 14 of the Constitution.
- Whether the premises occupied by the appellant qualify as ‘public premises’ within the meaning of the 1971 Act.
Legislation cited
- Constitution of Indias. Article 251, s. Article 252, s. Article 254(1), s. Article 254(2), s. Entry 18 List II, s. Entry 32 List I, s. Entry 6 List III
- Public Premises (Eviction of Unauthorised Occupants) Act, 1971s. 13(6), s. 15, s. 2(c), s. 2(e)
- West Bengal Premises Tenancy Act, 1956s. 1(3) proviso
- West Bengal Public Land (Eviction of Unauthorised Occupants) Act, 1962
Subjects
evictionpublic premiseslegislative competenceultra viresConcurrent ListUnion ListArticle 254landlord‑tenantpublic sector corporationconstitutional law
Judgment
ACCOUNTANT AND SECRETARIAL SERVICES PVT.
A
LTD. & ANR.
v.
UNION OF INDIA & ORS.
JULY 20, 1988
B
[SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.]
Public Premises (Eviction of unauthorised occupants) Act,
1971-Whether the Act to the extent it had been extended to premises
belonging to or taken on lease by a Corporation established by or under·
a Central Act and owned or controlled by Central Government was ultra
vires or beyond legislative power of Parliament to extend the appli- c
cability of the Act to such premises-Determination of question involved. ·
The first appellant in this appeal, a private limited company,
occupying a portion of the premises belonging to the United Commer-
cial Bank, claimed to be the tenant of the Bank, but this was not admit- D
ted by the respondent Bank. The Bank alleged,that the appellant com-
pany had been allowed to occupy a portion of the Bank's premises as
licensee in consideratiOn of certain accoiJntancy and secretarial services
rendered to the Bank. The Bank had issued a notice. of eviction to the
appellant company under the West Bengal Premises Tenancy Act, 1956
('the 1956 Act'). Subsequently, the Bank issued a notice to the appel- E
lants under the Public Premises (Eviction of unauthorised Occupants)
Act, 1971 ('the 1971 Act') which is an Act of the Parliament. The
appellants filed a writ petition in the High Court, agitating the question
whether the impugned Act which provides for eviction of unauthorised
occupants from public premises. belonging to or taken: on lease by a,
corporation established by or. under a Central Act mid owned or con- F
trolled by the Central Government was ultra vires as it was 'beyond the
"legislative power of the Parliament to.extend the applicability of the said
Act to such premises. The appellants were interested in denying the
legislative power of Parliament in so far as it purported to extend the
'!PPlicability of the 1971 Act to the premises belonging to or taken on
lease by public sector corporations. Their argument. went to the extent G
of urging that only the State legislatures and not Parliament were com-
petent to legislate on a topic of landlord-tenant relationship in respect of
land and buildings.
According to the appellants, the provisions of 1956 Act were
squarely applicable and should have been resorted to by the Bank for H
evicting them.
493
494 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.
The appellants contended that a legislation of the type of West
A
Bengal Land (Eviction of unauthorised occupants) Act, 1962 (1962Act),
which was on the pattern of the 1971 Act, would fall within the legisla-
tive field exclusively open to the State Legislatures and that the 1971 Act
was ultra vires the Parliament in so far as it purported to affect the
appellants' rights.
B
Dismissing the appeal, the Court,
HELD: Per Sabyasachi Mukharji. J.
His Lordship agreed with Ranganathan, J. that the appeal should
be dismissed. His Lordship preferred the view of the Madhya Pradesh
c High Court in L.S. Nair v. Hindustan Steel Ltd. Bhilai, A.I.R. 1980
M.P. 106 to the view of the Bombay High Court in Miscellaneous Peti-
tion No. 458/79-Elliot Waud Hill (P) Ltd. v. Life Insurance Corpn.
This Court had in this Case proceeded on the short question whether
the impugned Act which provides for eviction of unauthorised occup-
D ants from public premises to the extent it had been extended to premises
belonging or taken on lease hy a corporation established by or under a
Central Act and owned or controlled by the Central Government, was
ultra vires or beyond the legislative power of the Parliament to extend
the applicability of the Act to such premises. [498D-G I
E There was no dispute, as emphasised by Ranganathan, J., as to
whether the premises in question or of this type was a public premises.
For the purpose of this appeal, once it was held that the Public Premises
(Eviction of Unauthorised Occupants) Act was intra vires the Parlia-
ment, no further issue between the parties survived. It was not neces-
sary to consider whether the provisions of the 1971 Act even if intra
F vires would pervail upon the provisions of the State Legislation. For the
purpose of this appeal, it was unnecessary to express any view on the
amplitude and scope of Article 254 of the Constitution. [498H; 499A-B)
It had to be taken that the legislation in question must be under-
stood in its pith and substance, and so understood, the Act in question
G in this case is in respect of transfer of property other than agricultural
land and as such falls in Entry 6 of List III of the 7th Schedule to the
Constitution. It is clear from the decision of this Court in lndu Bhusan
Bose v. Rana Sundari Devi and Anr., 11970] I S.C.R. 443 and the
subsequent decision in V. Dhanapal Chettiar v. Yesodai Ammal, [1980]
1 S.C.R. 334 that the subject matter of housing accommodation and
H control thereof falls within the purview of concurrent list. In that view
ACCOUNTANT AND SECRETARIAL SERVICES v. U.0.1. 495
of the matter, it could not be convassed that the 1971 legislation in A
question was beyond the competence of the legislature. [499C-E)
Per S. Ranganathan, J.
The present agrument of the appellants might not have been open
to them if the premises of the Bank could be said to be premises belong- B
ing to the Union Government. In that case, the legislation to the extent
it governs such premises can be said to fall !lnder Entry 32 of List I as
one covering the "property of the Union". Though, the premises being
situated in Calcutta, any legislation under that entry in regard thereto
would be subject to State Legislation, the State Legislation can only
govern usave in so far as Parliament by law otherwise prcvides.'' Parli·
amen! having provided otherwise by the 1971 Act, that Act will prevail c
over the 1956 and 1962 Acts. Though the Bank was a corporation
wholly owned and controlled by the Government, it had a distinct
personality of its own and its property could not be said to be the
property of the Union. The position was beyond the pale of controversy
after the decision of this Court in Bacha F. Guzdar v. C.l. T., [1955) l D
S.C.R. 876; State Trading Cu1poratiol! of India Ltd. v. C. T.0., [1964)
4 S.C.R. 99, and many athcr cases. II was not possible for the respon-
dents to support. the legislation qu" the premises under Entry 32 of
List I. [SOSA-D]
Entry 32 of List I being out <Jf the way, the appellants contended E
that the legislation squarely regularly fell under Entry 18 of List II. A
question as to the interpretation of Entry 18 (or its predecessor, Entry 21
of the Provincial List under the Government of India Act, 1935) had
arisen before the Federal Court and Privy Council, and also was con-
sidered in some decisions of this Court, which, except in the case of
lndu Bhusan Bose v. Rama Sundari Devi, [1970) 1 S.C.R. 443, were F
not helpful in deciding the issue before the Court. In respect of Indu
Bhushan 's case, while the respondents contended that the ruling con-
cluded the issue in their favour, the appellants urged that it could not be
,.,,,._ taken as a decision that the house tenancy legislation could not come
under Entry 18 of List II. [5tJSE; 5068-C; 513C)
G
,,, It was true that the decision in Jndu Bhushan's case ultimately
turned on the wider interpretation of Entry 2 of List I favoured by this
Court, nevertheless, the judgment contains a specific discussion of the
terms of Entry 21. lndu Bhushan must be taken to have expressed a
view that premises tenancy legislation in so far as it pertains to houses
and buildings is referable not to Entry 18 of List II hut to entries 6. 7 H
496 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
and 13 of List III. The decision of the larger Bench of this Court in V.
A
Dhanpal Chettier v. Yesodai Ammal. [1980] 1 S.C.R. 334, also
reinforced the same line of thinking. The discussion and ratio of
Dhanpa/ Chettier fall into place only on the view that by that time it was
taken as settled law that State house control legislations were referable to
the legislative powers conferred by the Concurrent List. [513C; 5200-E]
B
Entry 18 should be given as wide a construction as possible consis-
tent with all the other entries in all the three legislative Lists. There is
no reason why the first topic dealt with by the entry, viz. land, should
be narrowly interpreted. It should be understood as including all types
of land, rural or urban, agricultural or non-agricultural, arid,
c cultivated, fallow or vacant, What is 'land' can be gathered from the
other words of the entry which attempt a paraphrase. It is not possible
to interpret this entry as encompassing within its terms legislation on
the relationship of landlord and tenant in regard to houses and build-
ings. All the legislation coming up for consideration in the present case
are referable to entries in the concurrent List and the topic of legisla-
D lion is not referable to Entry 18 of List II. The provisions of the 1971
Act, in so far as they were made applicable to the premises of the
respondent Bank, arc intra vi res and valid. [520F-H; 525E]
Once it was held that the 1971 Act is intra vires the Parliament, no
further issue between the parties survived. There was some discussion
E before this Court as to whether the provisions of the 1971 Act, even if
intra vires, would prevail against the provisions of tho State legislations.
This case is clearly governed by the primary rule in Article 254(1) of the
Constitution under which the law of Parliament on a subject in the
concurrent"List prevails over the State Law. Article 254(2) of the Con-
stitution is not attracted because no provision of the State Acts (enacted
F in 1956 and 1962) were repugnant to the provisions of an earlier law of
Parliament of existing law. Even if the provision of the main part of ii,;
Article 254(2) can be said to be somehow applicable, the proviso, read
with Article 254(1), reaffirms the supremacy of any subsequent legisla-
tion of Parliament on the same matter even though such subsequent
legislation does not in terms amend, vary or repeal any provision of the
(j State Legislation. The provisions of the 1971 Act will, therefore, prevail
against those of the State Acts and were rightly invoked in this case by
the respondent Bank. [525F; 529C-EI
There was no substance in the appellants' contention that the "'
provision in the 1971 Act appointing one of the officers of the respon- (I
I'{ dent Bank as the Estate Officer was violative of Article 14. [529F]
1
ACCOUNTANT AND SECRETARIAL SERVICES v. U.0.1. 497
The appeal failed.
A
L.S. Nair v. Hindustan Steel Ltd. Bhilai, A.J.R. 1980 M.P. 106;
Elliot Waud Hill (P) Ltd. v. Life Insurance Corporation Miscellaneous
Petiton No. 458/79 before Bombay High Court; Indu Bhusan Bose v.
Rama Sundari Devi and Anr .. [1970] 1 S.C.R. 443; A.C. Patel v.
Vishwanath Chadda, ILR 1954 Bombay 434; V. Dhanapal Chettiar v. B
Yasodai Ammal, 11980[ 1 S.C.R. 836; Bacha P. Guzdar v. C./. T.,
[1955] 1 S.C.R. 876; State Trading Corporation of India Ltd. v.
C. T. 0., [1964] 4 SCR 99; A.P. State Raod Transport Corporation v.
I. T.O., [1964] 7 SCR 17; Heavy Engineering Mazdoor Union v. State,
[1969] 3 S.C.R. 995; Vidarbha Housing Board v. J.T.O., [1973] 92
I.T.R. 430; Western Coalfields Ltd. v. Special Area Development
Authority,iJl982] 2 S.C.R. 1; Manohar v. C. G. Deasi, AIR 1951 Nag. C
33; Ram.ciii"Dass v. State, AIR 1954 All. 707; Darukhanawala v.
Khemchand, ILR 1954 Born, 546; M. Karuna v. State, AIR 1955 Nag
153, Kewalchand v. Dashrathlal, ILR 1956 Nag 618; Sukumar Dutta v.
Gaurishankar, [1964] 69 CWN 833; Raval & Co. v. Ramachandran,
AIR 1967 Mad. 51;Mangtulal v. Radhey Shyam, AIR 1953 Pat. 14; D
Mi/ap Chand v. Dwarakadas, AIR 1964 Raj 252; Rama Sundari v. Indu ·
Bhusan, AIR 1967 Cal. 355; Nawal Mal v. Nathu Mal, AIR 1962 Raj.
193; Bapalal & Co. v. Thakur Das, AIR 1982 Mad. 309-; United Pro-
vince v. Atiga Begum, [1940] F.C.R. 110; Megh Raj v. Allan Rakhia,
AIR 1947 PC 72; Atma Ram v. State of Punjab, [1959] Supp. 1 S.C.R.
748; Manaklal Chhotalal v. M.G. Makwana & Ors., [1967] 3 SCR 65; E
Babu Jagtanand Sri Satyanarayanji, ILR 40 Patna 625; Union of India
v. Valluri S. Choudhary, [1979] 3 SCR 802, State v. Peter, [1980] 3 SCR
290, 292; Jaisingh Jairam Tyagi v. Maman Chand, [1980] 3 S.C.R. 224;
Hoechst Pharmaceuticals v. State, [1983] 3 S.C.R. 130; Dhillon's case,
11972]· 2 S.C.R. 33; Jain Ink Manufacturing Co. v. LJC, [1981] 1
S.C.R. 498 and Zaverbhai Amaidas v. State, [1955] S.C.R. 79-9, refer- F
red to.
CIVIL APPELLATE JURISDICTION: Civil Appeal Ne 900
of 1987
From the Judgment and Order dated 12.2.1987 of the Calcutta G
High Court iu Matter No. 676 of 1978.
Dr. Y.S. Chitale, Anil Mitra, P.H. Parekh, D. Chandrachud,
• S.C. Ghosh and R.K. Dhillon for the Appellants.
K. Parasaran Attorney General for Union of India. H
498 SUPREME COURT REPORTS [19881 Supp. 1 S.C.R.
K.N. Bhat, A. Subba Rao and Miss Madhu Moolchandani for
the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. I had the advantage of reading
B in draft the judgment proposed to be delivered by my learned Brother
Ranganathan, J. It is, however, necessary to add a few sentences. I
was reluctant to take up this matter as it arises out of a decision of the
Division Bench of the High Court of Calcutta. That decision was
occasioned by a reference made by the Chief Justice of that High
Court on a reference made by me to the Chid Justice sitting singly in
that Court. In the High Court I had not expressed any view on the
c contentions urged. In those circumstances both the parties requested
me to take up the matter. It was in those circumstances that I became a
party to this judgment. I agree with my learned Brother that the
appeal should be dismissed and the order he proposes to make as to
costs.
D
It is not necessary in view of the facts and circumstances of the
case to refer in detail to the reasons. I would, however, make it clear
that I prefer the view of the Division Bench of the Madhya Pradesh
High Court in the case of LS. Nair v. Hindustan Steel Ltd. Bhilai,
AIR 1980 MP 106. I would prefer this view in preference to that of the
E learned Single Judge· of the Bombay High Court in Miscellaneous
Petition No. 458/79 Elliot Waud Hill (P) Ltd. v. Life Insurance Corpn.
Further, it is necessary to reiterate that in this case we have proceeded
on the short question canvassed before the Division Bench of the Hi,gh
Court out of which this appeal arises, i.e., whether the impugned Act
which provides for eviction of unauthorised occupants from public
F premises to the extent it has been extended to premises belonging or
taken on lease by a corporation established by or under a Central Act
and owned or controlled by the Central Govt. is ultra vires or beyond
the legislative power of the Parliament to extend the applicability of
the Act to such premises. It is only this question which was mooted
before the High Court and required consideration by us under Article
G 136 of the Constitution. It is, therefore, not necessary to express any
view on any other aspect of the matter.
Furthermore, as has been emphasised by my learned Brother
there was no dispute as to whether the premises in the present appeal
is a public premises. Therefore, the question whether the premises in
H question or of this type is a public premises is not an aspect into which
we were required to go.
.)
ACCOUNTANT ANDSECRETARIALSERVlCESv. U.0.1. IRANGANATHAN,J.] 499
For the purpose of this appeal once it is held that the Public
Premises (Evictio~. of Unauthorised Occupants) Act, 1971 is intra vires A
the Parliament, no further issue between the parties survive because
no other contention was raised before the Division Bench of the High
Court and also in this appeal under Article 136 of the Constitution, no
other issue can be canvassed. It is, therefore,,not necessary, in my
opinion, _to consid~r whether the provisions of 1971 Act even if intra B
vires would prevail upon the provisions of the State legislation. Hence,
for the purpose of this appeal it is unnecessary to express any view on
the amplitude and scope of Article 254 of the Constitution.
'
Indu Bhusan Bose v. Rama· Sundari Devi. & Anr., I1970 I 1 SCR
443 is a decision of five learned Judges of this Court affirming the
Calcutta view which held that the legislation in question in that case c
was to be found in Entries 6, 7 & 13 of List III of the 7th Schedule of
->. the Constitution and neither in Entry 18 of II Schedule nor in Entry 3
of II Schedule of the Constitution. It rejected the Bombay."View expre-
ssed in A.C. Patel v. Vishwanath Chadda; !LR 1954 Born. 434. Respect-
fully, it has to be taken that the legislation in question must be under- D
stood in its pith and substance and so understood the Act in question in
the instant case, is in respect of transfer of property other th'an
agricultural land and, as such, falls in Entry 6 of List III of the 7th
,· Schedule to the Constitution.· It is clear from the said decision and the
subsequent decision reaffirming the same view in V. Dhanapal Chett-
iar v. Yesodai Ammal, [1980] 1 SCR 334 that the subject-matter of E
housing accommodation and control thereof falls within the purview of
concurrent list. In that view of the matter, it cannot in my opinion, be
canvassed that the 1971 legislation in question was beyond the compe-
tence of the legislature.
With these observations I agree with respect with my learned F
Brother that the appeal should be dismissed without any order as to
costs.
.... S. RANGANATHAN, J. The first appellant is a private limited
company. The company is occupying a portion of premises No. 18,
Russel Street, Calcutta. The premises belong to the United Commer- G
cial Bank, a statutory corporation constituted under the Banking
Companies (Acquisition & Transfer of Undertakings) Act, 1970. The
appellant company claims to be the tenant of the Bank but this is not
admitted by the respondent Bank. The Bank alleges that the appellant
company, when somewhat differently constituted, had been allowed to
occupy a portion of the Bank's premises as licensee in consideration of H
500 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A certain accountancy and secretarial services which it was required to
render to the Bank. It appears that sometime in 1975 the respondent
Bank issued a notice of eviction to the appellant company under Sec-
tion 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter
referred to as 'the 1956 Act'). Subsequently, however, the Bank issued
a notice dated 4.2.1977 to the appellants under the Public Premises
B (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred
to as 'the ·1971 Act'}; which is an Act of Parliament. The appellants
thereupon filed a writ petition in the Calcutta High Court being Matter
No. 676 of 1978. Though several contentions appear to have been
raised in the writ petition, the judgment of the Division Bench of the
Calcutta High Court dated 12th February, 1987, (which is the one
C presently under appeal) records that "the only question which has
been mooted and agitated before us is whether the impugned Act
which provides for eviction of unauthorised occupants from public
premises to the extent it has been extended to premises belonging or
taken on lease by a corporation established by or under a Central Act
and owned or controlled by the Central Government is ultra vires as it
D was beyond the legislative power of the Parliament to extend the
applicability of the said Act to such premises." Though the appellants
are interested only in denying the legislative power of Parliament in so
far as it purports to extend the applicability of the 1971 Act to premises
belonging to or taken on lease by what may be described as public
sector corporations, the contention as urged is somewhat broader. The
E argument goes to the extent of urging that only the State legislatures,
and not Parliament, is competent to legislate on the topic of landlord-
tenant relationships in respect of land and buildings. This has been the
principal contention addressed to us by Dr. Chitale appearing on
behalf of the appellants.
F The 1971 Act received the assent of the President on 23rd
August, 1971 but it is deemed to have come into force on the 16th day ..
of September, 1958 for certain 'historical' reasons which are not relev-
ant for our purposes. The Act provides for the eviction of 'un-
authorised occupants· from 'public premises' and for certain inciden- -
tal matters. S. 2(c) defines 'premises' to mean 'any land or any part of
G a building and to include garden, grounds and outhouses appurtenant
to the building or fittings affixed thereto'. The expression 'public pre-
mises' has been defined in Section 2( e) of the Act. This definition is in
three parts. Sub-clause (1) of clause (e) takes in premises belonging to,
or taken on lease or requisitioned by, or on behalf of, the Central
Government, as well as premises placed by that Government under
H the control of either House of Parliament for providing residential
ACCOUNTANT AND SECRETARIAL SERVICES v. U.0.1. [RANGANAIBAN, J.] 501
accommodation to the members of the staff of the Secretariat of either
A
House of Parliament. Sub-clause (3) of clause (e) takes in premises
belonging to certain local authorities in the Union Territory of Delhi.
Sub-clause (2) of clause (e) b_rings in premises belonging to or taken on
lease by, or on behalf of, various kinds of bodies, such as Universities,
Institutes of Technology, Board of Trustees of Major Port Trusts and
the Bhakra Management Board. It takes in any premises belonging to B
or taken on lease by, or on behalf of, a Government company or its
subsidiary. It also takes in-and this is what we are concerned with
here-premises of "any corporation (not being a company as defined
in section 3 of the Companies Act, 1956 or a local authority) estab-
lished by or under a Central Act and onwed or controlled by the
. Central Government". There is no dispute that the premises in ques-
tion in the present appeal is "public premises" within the meaning of c
the Act.
The Act contemplates the appointment of an Estate Officer who
is a high placed officer of the Government or of the relevant statutory
authority in respect of public premises controlled by that authority. D
The Act enables the Estate Officer to call upon "unauthorised occup-
ants" of public premises (meaning persons occupying such premises
without authority or continuing in occupation after the authority to do
so has expired or has been determined for any reason) to show cause
why they should not be evicted and to proceed to evict them, if need
be, after considering the cause, if any, shown by the persons con- E
cerned in response to a notice served on them. It also contains powers
to remove unauthorised constructions, demolish unauthorised cons-
tructions, dispose of property left on public premises by unauthorised
occupants, require payment of rent or damages in respect of public
premises and so on. An order passed by the estate officer, under the
provisions of the Act, is appealable, the appellate authority being the F
District Judge or such other judicial officer of not less than 10 year's
experience as a District Judge and subject to the above right of appeal,
the orders passed by the estate officer are final. Section 15 bars the
jurisdiction of Courts to entertain any suits or proceedings in respect
of, inter alia, the eviction of any person who is in unauthorised occupa-
tion of public premises. This, broadly, is the outline of the 1971 Act. G
Before proceeding to deal with the contentions urged before us, it is
necessary to refer to two more enactments, which have a bearing on
the topic of discussion before us.
It has been mentioned earlier that the Bank had served a notice
on the appellants under the 1956 Act. This Act, which received the H
502 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
assent of the President on 30th March, 1956, is on the pattern of the
A
lease and rent control legislation prevalent in various States. It regu-
lates, inter alia, the matter of eviction of tenants of buildings situated
in Calcutta and certain important cities and localities of the State
where there is scarcity of housing accommodation. It is not necessary
to set out the provisions of this Act except one. Under the second
B proviso to section 1(3) the Act is not to apply to (a) any premises
belonging to any local authority, (b) any premises belonging to or
requisitioned by Government and (c) any tenancy created by Govern-
ment in respect of any premises taken on lease by Government. The
premises in the present case does not fall within any of these categories
and, according to the appellants before us, the provisions of 1956 Act
were !lqUarely applicable and should have been resorted to by the
c Bank for evicting them. This is one.
The other relevant statute is the West Bengal Public Land (Evic-
tion of Unauthorised Occupants) Act, 1962, (hereinafter referred to as
'the 1962 Act'). This legislation is on the same pattern as the 1971 Act,
D a pattern which appears to have been in existence in various States,
conferring special powers on statutorily named officers to evict unau-
thorised occupants of public premises. The definitions of 'land',
'public land' and 'unauthorised occupation' contained in sections 2(2),
2(7) and 2(8) are so wide as to leave no doubt that the premises
belonging to the Bank would be within the scope of the said Act and
E that proceedings for eviction of the appellants could also be initiated
by the Collector under that Act. It thus appears that the procedure for
the eviction of the petitioners will be governed by the 1971 Act as well
as either or both of the State Acts and the question is, which of these
will prevail? The appellants urge that a legislation of this type will fall
within the legislative field exclusively open to the State legislatures
F and that the 1971 Act is ultra vires Parliament in so far as it purports to
affect the appellants' rights.
It will be convenient, at this stage, to set out all the relevant
entries in the Seventh Schedule of the Constitution that may have a
bearing on the discussion before us along with the corresponding
G entries under the 7th Schedule to the Government of India Act, 1935.
These are:
CONSTITUTION 1935 ACT
List I-Union List List I-Federal List
ENTRYJ ENTRY2
H · Delimitation of cantonment Naval, military and air force works;
ACCOUNTANTANDSECRETARIALSERVICESI'. U.0.1. [RANGANATHAN.J] 503
areas, local self-government local self-government in cantonment
in such areas, the consti- areas, the constitution and powers A
tution and powers within within such afeas of cantonment
such areas of cantonment authorities, the regulation of house
authorities and the regula- accommodation in such areas, and the
tion of house accommodation delimitation of such areas.
including the control of
B
rents in such areas. .
ENTRY32 ENTRY JO
Property of the Union and Works, lands and buildings vested
the revenue therefrom, but in, or in the possession of, His
as regards property situated Majesty for the purposes of the
in a State• • •subject to Dominion (not being naval, military
legislation by the State, save or air force works), but, as regards c
in so far as Parliament by law property situate in a Province,
otherwise provide. subject always to Provincial
legislation, save in so far as
Dominion law otherwise provides,
and, as regards property in an
D
Acceding State held by virtue of
any lease or agreement with that
State, subject to the terms of
that lease or agreement.
ENTRY43: ENTRY 33:
Incorporation, regulation Corporations, that is to say, the E
and winding up of trading incorporation, regulation and
corporations, including winding-up of trading corporations,
banking, insurance and including banking, insurance and
financial corporations but financial corporations, but not
not including co-operative including corporations owned or
societies. controlled by an Acceding State F
and carrying on business only
within that State or co-operative
societies, and of corporations,
whether trading or not, with
objects not confined to one unit,
but not including universities. G
ENTRY 44:
Incorporation, regulation
and winding up of corpora-
tions, whether trading or
not, with objects not
confined to one State, but H
not including universities.
504 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A LIST JI-STA TE LIST LIST II-PROVINCIAL LIST
ENTRY IS: ENTRY21:
Land, that is to say, rights Land. that is to say, rights
in or over land, land tenures in or over land, land tenures,
including the relation of including the relation of
landlord and tenant, and the landlord and tenant, and the
B
collection of rents; transfer collection of rents; transfer,
and alienation of agricultural alienation and devolution of
land; land improvement and agricultural land; land
agricultural loans; improvement and agricultural
colonization. loans; colonization; courts
of Wards; encumbered and
c attached estates; treasure trove.
List III-CONCURRENT LIST LIST III-CONCURRENT LIST
ENTRY5: ENTRY7:
D Marriage and divorce; infants Wills, intestacy, and succession,
and minors; adoption; wills, save as regards agricultural
intestacy and succession; land.
joint family and partition;
all matters in respect of
which parties in judicial
proceedings were immedia-
E
tely before the, commencement
of this Consti-
tution subject to their
personal law.
ENTRY6: ENTRYS:
F Transfer of property other Transfer of property other
than agricultural land; than agricultural land; regis-
registration of deeds and tration of deeds and
documents. documents.
ENTRY 7: ENTRY 10:
G Contracts, including partner- Contracts, including partnership,
ship, agency, contracts of agency, contracts of carriage,
carriage, and other special and other special forms of
forms of contracts, but not contracts, but not including
including contracts relating contracts relating to
H to agricultural land. agricultural land.
ACCOUNTANT AND SECRETARIAL SERVICES v. U.O.l. {RANGANAIBAN, J.) 505
One thing may be rtiade clear at the outset. The present ar;,u-
ment may not have been open to the appellants if the premises of the
A
bank could be said to be premises belonging to the Union Govern-
ment. In that case, the legislation to the extent it governs such pre-
mises can be said to fall under entry 32 of List I as one covering the
"property of the union". Though, the premises being situated in
Calcutta, any legislation under that entry in regard thereto would be B
subject to State legislation, the State legislation can only govern "save
in so far as Parliament by law otherwise provides". Parliament having
provided otherwise by the 1971 Act, that Act will, it can be said, prevail
r·
over the 1956 and 1962 Acts. It is, however, common ground before us
that though the Bank is a corporation wholly owned and controlled by
the Government, it has a distinct personality of its own and its prop-
erty cannot be said to be the property of the Union. The position, c
indeed, is beyond the pale of controversy after the decisions of this
Court in Bacha F. Guzdarv. C.I. T., [1955] 1 S.C.R. 876; State Trading
Corporation of India Ltd. v. C. T.O., [19641 4 S.C.R. 99; A.P. State
Road Transport Corporation v. /. T.O., [1964] 7 S.C.R. 17; Heavy
Engineering Mazdoor Union v. State, [1969] 3 S.C.R. 995; Vidarbha D
Housing Board v. I. T.0., [1973) 92 I.T.R. 430 and Western Coalfields
Ltd. v. Special Area Development Authority, [19821 2 S.C.R. 1. It is,
therefore, not possible for the respondents to support the legislation,
qua the premises in question, under Entry 32 of List I.
Entry 32 of List I being out of the way, Dr. Chitale, appearing on E
behalf of the appellants, contends that the legislation squarely falls
under Entry 18 of List II. He points out that judicial decisions have
given the word 'land' in Entry 18 a very wide interpretation so as to
comprehend· not only land of all types-rural or urban, agricultural or
non-agricultural, vacant or built up-but also 'buildings' put up the-
reon. Since the entry specifically includes the relationship of landlord F
and tenant, there can be no doubt that tenancy legislations pertaining
to land and buildings derive their authority from Entry 18. He referred
in this context inter alia, to Manoharv. C.G. Desai, AIR 1951Nag33;
A. C. Patel v. Vishwanath Chadda, ILR 1954 Born 434, Raman Dass v.
State, AIR 1954 ALL 707; Darukhanawala v. Khemchand, ILR 1954
Born. 546; M. Karuna v. State, AIR 1955 Nag. 153; Kevalchand v. G
Dashrathlal, I.LR. 1956 Nag. 618; Sukumar Dutta y. Gaurishanker,
[1964] 69 CWN 833; Raval & Co. v. Ramachandran, AIR 1967 Mad.
57' and a detailed and comprehensive judgment of Parekh J. in Elliot
Waud & Hill P. Ltd. v. L.I.C., [19801 Born. C.R. 590 which we are
informed is pending consideration on appeal, before a Full Bench of
the Bombay High Court. We do not, however, propose to discuss H
506 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A these cases at length firstly, because there is a contrary line of deci-
sions also vide Mangtulal v. Radheshyam, AIR 1953 Pat. 14; Milap
Chand v. Dwarakadas, AIR 1954 Raj. 252; Nawal Mal v. Nathu Mal,
AIR 1962 Raj 193, Rama Sundari v. lndu Bhushan, AIR 1967 Cal
355; L.S. Nair v. Hindustan Steel Ltd., AIR 1980 M.P. 106 and
Bapalal & Co. v. Thakur Das, AIR 1982 Mad. 309 and the judgment
B presently under appeal and secondly, because a question as tu the
interpretation of Entry 18 (or its predecess·Jr, Entry 21 of the Provin-
cial List under the Government of India Act, 1935, (hereinafter refer-
red to as 'the 1935 Act') had arisen before the Federal Court and the
Privy Council and some of the above judgments have also been consi-
dered in certain earlier decisions of this Court. It would, therefore, be
C appropriate to refer to these decisions:
( 1) The earliest of the decisions relevant in this context is the
decision of the Federal Court in United Provinces v. Atiga Begum,
I 1940] F.C.R. 110. That case was concerned with the interpretation of
Entry 21 of List II in the Seventh Schedule to the Government oflndia
D Act, 1935. It raised the issue of the validity of the United Provinces
Regularisation of Remissions Act (14 of 1938). In view of an unpre-
cedented fall in the prices of agricultural produce, the United Pro-
vinces Government directed a remission in the rents payable by ten-
ants to their landlords. But this remission was declared by the High
Court to be unauthorised and inoperative as being in contravention of
E the provisions of the Agra Tenancy Act, 1926. The Provincial Legisla-
ture, therefore, passed the impugned Act which precluded any ques-
tion as to the validity of the orders of remission being raised in courts.
This Act was held by a Full Bench of Allahabad High Court to be ultra
vires the Legislature. The Provincial Government appealed to the Fed-
eral Court. The Federal Court held that the legislation was clearly
F governed by Entry 21. The learned Chief Justice observed:
"The subjects dealt with in the three legislative lists are not
always set out with scientific definition. It would be practi-
cally impossible for example to define each item in the
Provincial List in such a way as to make it exclusive of
G every other item in that List, and Parliament seems to have
been content to take a number of comprehensive categories
and to describe each of them by a word of broad and gen-
eral import. In the case of some of these categories such as
"Local Government", "Education", "Water", "Agricul-
ture" and "Land", the general word is amplified and exp-
H lained by a number of example or illustrations, some of
ACCOUNTANT ANDSECRETAR.lALSERVICESv. U.0.L [RANGANATHAN,J.] 507
which would probably on any construction have been held
A
to fall under the more general word, while the inclusion
(of) others might not be so obvious. Thus "Courts of
Wards" and 'treasure-trove' might not ordinarily have
been regarded as included under the head "Land", if they
had not been specifically mentioned in item no. 21. I think,
however, that none of the items is to be read in a narrow or B
restricted sense and that each general word should be held
to extend to all ancilliary or subsidiary matters which can
fairly and reasonably be said to be comprehended in it. I
deprecate any attempt to enumerate in advance all the mat-
ters which are to be included under any of the more general
descriptions; it will be sufficient and much wiser to C
determine each case as and when it comes before this
Court."
The Court then proceeded to hold that, if .the Provincial Legislature
could legislate in respect of collection of rents, it must also have the
power to legislate with respect to any limitation on the power of a D
landlord to collect rents, that is to say, with respect to the remission of
rents as well as to their collection.
(2) The next decision, on certain observation in which Dr.
Chitale placed considerable reliance i.s that of the Privy Council in
Megh Raj v. Allah Rakhia, AIR 1947 PC 72. In that case the question E
was whether the Punjab Restitution of Mortgaged Lands Act, an Act
of the Punjab Legislature, was void as being ultra vires of the Punjab
Legislature. The Act applied to mortgagees in possession of certain
lands. The expression 'land' was defined as "land which is not
occupied as the site of any building in a town or village and is occupied
or let for agricultural purposes or for purposes subservient to agri- F
culture or for pasture" and included, inter alia, "the sites of buildings
and other structures on such lands." The object of the impugned Act
was the relief of mortgagors by giving them restitution of the mort-
gaged premises on conditions more favourable than those under the
mortgage deed and by providing for a procedure before the Collector
which was more summary than that before the ordinary Courts. The G
contention before the Privy·Council, on behalf of the Punjab Province,
was that the provisions of the impugned Act were traceable to item 21
supplemented, it need be, by item 2 of the Provincial Legislative List
of the 1935 Act. The appellants, on the other hand, contended that the
impugned Act went beyond the limits of the Legislative· powers of the
Province under list II and could .not be supported by invoking the . H
508 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R.
A powers ot the Province under List III (i.e. Entries 4, 7, 8 and 10
corresponding to Entries 13, 5, 6 and 7 of List III under the Constitu-
tion). It was pointed out that certain provisions of the impugned Act
were repugnant to the provisions of the Indian Contract Act and the
Code of Civil Procedure. The Judicial Committee came to the conclu-
sion that the legislation was clearly covered by Entry 21 in List III. In
B so holding, they observed:
"The key to item 21 is to be found in the opening word
"land". That word is sufficient in itself to include every
form of land, whether agricultural or not. Land indeed is
primarily a matter of provincial concern. The land in each
Province may have its special characteristics in view of
c which it is necessary to legislate, and there are local
customs and traditions in regard to land holding and
particular problems of provincial or local concern which
require provincial consideration. It would be strange if the
land in a province were to be broken up into separate por-
D tions some within and some outside the legislative powers
of the province. Such a conflict of jurisdiction is not to be
expected. Item 21 is part of a constitution and would on
ordinary principles receive the idest construction, unless
for some reason, it is cut down either by the terms of Item
21 itself or by other parts of the constitution which has to
E be read as a whole. As to Item 21 "land", the governing
word is followed by the rest of the item, which goes on to
say, "that is to say". These words introduce the most gen-
eral concept-"rights in or over land." "Rights in land"
must include general rights like full ownership or leasehold
or all such rights. "Rights over land" would include ease-
F ments or other collateral rights, whatever form they might
take. Then follow words which are not words of limitation
but of explanation or illustration, giving instances which
may furnish a clue for particular matters; thus there are the
words "relation of landlord and tenant and collection of
rents." These words are appropriate to lands which are not
G agricultural equally with agricultural lands. Rent is that
which issues from the land. Then the next two sentences
specifically refer to agricultural land, and are to be read
with item 7, 8 and 10 of List 3. These deal with methods of
transfer or alienation or devolution which may be subject
to federal legislation but do not concern the land itself, a
H sphere in which the provincial and federal powers are con-
ACCOUNTANT ANDSECRETARIALSERVICESv. U.O.l. [RANGANATHAN,J.] 509
current, subject to the express exception of the specific A
head of agricultural land which is expressly reserved to the
provinces. The remainder of Item 21 specifies important
matters of special consequence in India relating to land.
The particular and limited specification of agricultural land
proves that "land" is not used in Item 21 with restricted
reference to agricultural land but relates to land in general. B
Item 2 is sufficient to give express powers to the provinces
to create and determine the powers and jurisdiction of
Courts in respect of land, as a matter ancillary to the sub-
ject of item 21.
It is next necessary to consider the terms of the
impugned Act, which it is said is ultra'Vires of the Province, c
and compare them with the terms of the constitution just
quoted. But before that is done, it may be observed that
there is no express provision in the constitution -referring by
name to mortgages, though mortgages are of particular
importance in India as a subject of ordinary business life D
and of litigation and of legislation. But a constitution does
not generally deal with particular transactions or types of
transactions, and mortgages of land would, in their Lord-
ships' judgment, as a matter of construction, properly fall
under Item 21 in so far as they are mortgages of land,
though in certain aspects they include elements of transfer E
of property and of contract. But they form a type of trans-
action which may properly be regarded as sui generis, inci-
dental to land and included within Item 21 except in so far
as they fall within Items 8 and 10 of List 3 which again
contain an express exception in the case of agricultural
land. Their Lordships cannot accept the view that so F
important a subject as mortgages was left out of the Con-
stitution and merely left to the Governor General's powers
under s. 104, Constitution Act as a residual subject. So far
as land at least is concerned, Item 21 would include mort-
gages as an incidental and ancillary subject.
G
The impugned Act, as already explained, has the main
purpose of giving relief to mortgagors by enabling them to
obtain restitution of the mortgaged lands on terms less
onerous than the mortgage deeds require. It is limited to
existing mortgages of land as defined in s. 3, effected prior
to 8.6.1901. That definition restricts it to land "occupied or H
510 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A let for agricultural purposes or for purposes subservient to
agriculture or for pasture''. The addition of the word
"pasture" has been relied on as extending the· scope of the
Act beyond agriculture, but pasture is certainly "land"
within Item 21 or Item 3. It may have been mentioned ex
abundanti cautela but in any case it is sufficiently allied to
B agriculture generally to be treated as a species of agricul-
tural land or at least as land occupied or let for purposes
subservient to agriculture and as such within the general
scope of an Act dealing with agricultural land. Section 3 of
the Act goes on, it is true, to give a number of specific types
of land which are included, but they are all governed by the
c controlling words of sub.s.{l) which limits the whole Act to
agricultural land in the sense already stated. Thus head {b)
of subs (1) of s. 3, must be read as referring to an estate or
holding in the only class of land with which the Act deals.
The same is true of all the other heads in the sub-section,
dues, rent, water rights, occupancy, trees, all come within
D the category of rights in or over land within Item 21 List 3,
and all are governed by the same controlling reference to
agriculture or agricultural purposes. This reading of the
section is supported by the qualification of trees as trees
standing on such land, that is agricultural land. Section 7
and 8 of the impugned Act embody its main substantive
E provisions for the refief of mortgagors and need not be
repeated here. The rest of the Act deals with ancillary mat-
ters like procedure which fall within the powers given by
Item 2 and also by Item 21.
If, as their Lordships think, the impugned Act is limited to
F agricultural land, items, 7, 8 and 10 of List III do not affect
the position at all since agricultural land is excluded in
these entries. But, in any event, the Act docs not deal with
wills or transfer of property at all; it does certainly deal
with mortgages but, as their Lordships have already stated,
mortgage though not expressly mentioned in the Consti-
G tution, are properly to be classed not under the head of
contracts, but as special transactions ancillary to the entry
of "land".
(3) The next decision of this court to which our attention IS
drawn is the decision of this court in Atma Ram v. State of Punjab,
H [ 1959] (Suppl. 1) SCR 748. The point in controversy in this decision
ACCOUNTANT ANDSECRETARIALSERVICESv. U.O.l. (RANGANATHAN,J.] 511
was the constitutional validity of the Punjab Security of Land Tenures
A
. '~ Act ( 10 of 1953) as amended by Act 11 of 1955, which sought to
provide for the security of land tenure and other incidental matters.
The impugned Act admittedly dealt with holdings as defined in the
Punjab Revenue Act, 1887. It limited the area which might be held by
a land owner for the purpose of self cultivation and released surplus
area to be utilised for resettling ejected tenants. Section 18 conferred B
.....
,J;'
upon tenants the right to purchase from the land owners the lands held
by them and thus themselves to become the land owners at prices
which would be below the market value. The land owners affected by
the impugned Act contended that under Entry J8 of List II of the
Seventh Schedule to the Constitution the State Legislature was incom-
petent to enact a law limiting the extent of land to be held by a land
owner and that the provisions of the impugned Act contravened their c
fundamental rights. On the question of the legislative competence the
Court made the following observations:
"At the outset, it is necessary to deal with the question of
legislative competence, which was raiseo on behalf of some D
of the petitioners, though not on behalf of all of them. This
argument of want of legislative competence goes to the
root of the impugned Act, and if it is well-founded, no
. other question need be gone into. It has been argued tliat
Entry 18 of List II of the Seventh Schedule to the Constitu-
tion, should not be read as authorising the State Legisla- E
lure to enact a law limiting the extent of the land to be held
by a proprietor or a landowner. Entry 18 is in these words:"
"18. 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 F
... agricultural land; land improvement and agricultural
loans; colonization.''
"It will be noticed that the Entry read along with Art.
246(3) of the Constitution, has vested exclusive power in
the State to make laws with respect to "rights in or over G
land, land tenures including the relation of landlord and
tenant ..... ". The provisions of the Act set out above,
deal with the landlord's rights in land in relation to his
if'.f tenant, so as to modify the landlord's rights in the land, and
correspondingly, to expand the tenant's rights therein.
=! Each of the expressions "rights in or over land" and "land H
Hi
512 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.
A
tenures", is comprehensive enough to take in measures of
reforms of land tenures, limiting the extent of land in
cultivating possession of the land-owner, and thus, releas-
ing larger areas of land to be made available for cultivation
by tenants.
B Counsel for some of the petitioners who challenged the
legislative competence of the State Legislature, were hard
put to it. to enunciate any easily appreciable grounds of
attack against Entry 18 in List II of the Seventh Schedule.
It was baldly argued that Entry 18 aforesaid was not •
intended to authorise legislation which had the effect of
limiting the areas of land which could be directly held by a
c proprietor or a land-owner. It is difficult to see why the
amplitude of the words "rights in or over land" should be
cut down in the way suggested in this argument."
In support of its conclusion, the Court referred to the decisions
D United Provinces v. Mst. Atiqa Begum, 11940] FCR 110 and Megh Raj
v. Allah Rakhia, AIR 1947 PC 72.
4. We may next refer to the decision in Manaklal Chhotalal v.
M. G. Makwana & Ors., [1967]-3 SCR 65. The question here arose in
the context of the Bombay Town Planning Act. A scheme drafted by
E the Ahmedabad Municipal Corporation after following the procedure
prescribed under the Act was sanctioned br the State Government. As
a result of this the petitioners were allotted a much smaller extent of
· land than they originally owned within the city of Ahmedabad and
they were also directed to pay certain sums as their share of contribu-
tion. The petitioners challenged the competence of the State Legisla-
F ture to enact the legislation in question. The Court upheld the legisla- '1
tion by reference to Entry 18 of List II as well as Entry 20 of List III
("Economic and Social planning"). Reviewing the provisions of the
Act in question, the Court came to the conclusion that the legislation
.in question could be said to be a legislation in regard to land. Various
aspects dealt with in the Act, according to the Court, could be con-
G side red to deal with land and accordingly, competence of the State
Legislature to enact the measure in question could be found in Entry
18.
5. Indu Bhusan Bose v. Rama Sundari Devi, [1970] 1SCR443 is
a decision of five Judges of this Court and was rendered on an appeal
H from the Calcutta case cited earlier. The question for consideration
•
ACCOUNTANT ANDSECRETARIALSERVICESv. U.0.1. [RANGANA1HAN,J.] 513
was whether the act of a rent controller in fixing fair rent for certain
A
premises within the cantonment area of Barrackpore was valid. The
claim of the respondent-owner was that the appellant was not entitled
to the protection of 1956 Act since "regulation of house accommoda-
tion including the control of rents" in cantonment areas was the sub-
ject matter of Entry 3 of the federal list under the 1935 Act. The State
legislature, it was therefore argued, could not competently extend the B
1956 Act (applicable in other parts of the State) to th'e cantonment
areas. This plea was upheld. H\)wever, one of the contention raised on
behalf of the appellants was that the power of Parliament under Entry 3 of
List I does not extend to regulating the relationship between landlord
and tenant as that power vests in the State Legislature either under Entry
18 of List II or Entries Nos. 6, 7 and 13 of List III. In support of this
contention, reliance was placed on a decision of the Bombay High c
Court in A. C. Patel v. Vishwanath Chada, !LR 1954 Bombay 434,
referred to earlier. In that case, the Bombay High Court was con-
cerned with the applicability of the Bombay Rent Restriction Act (No.
57) of 1947 to contonment areas. The Court first expressed the opinion
that Act was referrable to Entry 21 of the List II of the 1935 Act. D
Relying upon the English Interpretation Act applicable to interpret
the 1935 Act, the Court held that the word 'land' in that entry would
include buildings also so as to confer jurisdiction on the Provincial
Legislature to legislate on relations between landords and tenants of
buildings. Then the Court expressed the view that the legislation could
not be said to be one dealing with house accommodation. The E
Supreme Court was, however, clear that the legislation was covered by
the language of Entry 2 of the Federal List. However, appropos the
first aspect of the High Court's decision, the Supreme Court observed:
"We have felt considerable doubt whether the power of
legislating on relationship between landlord and tenant in F
respect of honse accommodation or buildings would appro-
priately fall in Entry 21 of List II of the Seventh Schedule
to the Government of India Act, 1935, or in the corres-
ponding Entry·lSofList II of the Seventh Schedule to the
Constitution. These Entries permit legislation in respect Of
land and explain the scope by equating it with rights in or G
over land, land tenures including the relation of landlord
and tenant, and the collection of rents. It is to be noted that
the relation of landlord and tenant is mentioned as being
included in land tenures and the expression "land tenures"
would not, in our opinion, appropriately cover tenancy of
buildings or of house accommodation. That expression is H
514 SUPREME COURT REPORTS [19881 Supp. t-S.C.R.
only used with reference to relationship between landlord
A
and tenant in respect of vacant lands. In fact, leases in
respect of non agricultural property are dealt with in the
Transfer of Property Act and would much more appro-
priately fall within the scope of Entry 8 of List III in the
Seventh Schedule to the Government of India Act read
B with Entry 10 in the same List or within the scope. Entry 6
of List III in the Seventh Schedule to the Constitution read
with Entry 7 in the same list leases and all rights governed
by foases, including the termination of leases and eviction
from property leased, would be covered by the field of
transfer of property and contracts relating thereto. How- •
ever, it is not necessary for us to express any definite opinion
c in this case on this point because of our view that the rela-
tionship of landlord and rnnant in respect of house accom-
modation situated in cantonment areas is clearly covered
by the Entries in List I. In the Constitution, the effect of
Entry 3 of List I is that Parliament has exclusive powerto
D make laws in respect of the matters contained in that
Entry, notwithstanding the fact that a similar power may
also be found in any Entry in List II or List III. Article 24G
of the Constitution confers exclusive power on Parliament
to make laws with respect to any of the matters enumerated
in List I, notwithstanding the concurrent power of Parlia-
E ment, and the State Legislature, or tjte exclusive power of
the State Legislature in Lists III and II ~espectively. The
general power of legislating in respect of relationship bet-
ween landlord and tenant exercisable by the State Legisla-
ture either under Entry 18 of List I I or Entries 6 and 7..of List
F
Ill is subject to the overriding power of Parliament in re-
spect ot matters in List I, so that the effect of Entry 3 of List
.,.
<--
I is that, on the subject of relationship between landlord
and tenant insofar as it <1rises in respect of house accommo-
dation situated in cantonment areas, Parliament alone can
legislate and not the State Legislature ..... In ths view, we
are unable to affirm the view of the Bombay High Court in
G A.C Patel's case, which is based on the interpretation that
Entry 2 in List I of the Seventh Schedule to the Govern-
ment to India Act only permitted laws to be made for re-
quisitioning of property, acquiring of property and alloca-
tion of property only."
H The Court then proceeded to consider the decision in Darukhanawala
ACCOUNTANT ANDSECRETARIALSERVICESv. U.0.1. [RANGANATIIAN,J.i 515
v Khemchand, ILR 1954 Born 544; Kewalchand v. Dashrathlal, !LR A
1956 Nag. 618; Babu Jagtanand Sri Satyanarayanji !LR 40 Patna at 625
and expressed the view that all these cases had placed a narrow
interpretation on the expression "regulation of house accommoda-
tion" used in the relevant entry of the Union List. Having said this, the
Court concluded:
B
"On the other hand, the Rajasthan High Court in Nawal
Mal v. Nathu Lal, !LR II Rajasthan 421; held that The
power of the State Legislature to legislate in respect of land-
lord and tenant of buildings is to be found in Fntries, 6, 7
and 13 of List I II of the Se11Suth Schedule to the Constitution
and not in Entry 18 of List II, and that that power was cir- C
cumscribed by the exclusive power of Parliament to legis-
late on the same subject under Entry 3 of List I. That is also
the view which the Calcutta High Court has taken in the
judgment in appeal before us. We think that the decision
given by the Calcutta High Court is correct and must be
~~." D
(6) Dr. Chi tale also placed considerable reliance on Union of
India v. Valluri B. Chaudhary, (1979) 3 SCR 802 which dealt with the
validity of the Urban Land (Ceiling & Regulation) Act, 1976. Counsel
for the appellant relied, in particular, upon the procedure adopted by
Parliament in enacting this piece of legislation. The legislatures of E
eleven States considered it desirable to have a uniform legislation
enacted by Parliament for the imposition of a ceiling on urban prop-
< erty for ihe country as a whole. They passed resolutions under Art.
I
252( 1) of the Constitution authorising Parliament to legislate on this
topic. Parliament, accordingly, enacted the Urban Land (Ceiling and
Regulation) Act, 1976. In the first instance, the Act covered the ele- F
ven States which had passed the above resolutions. Subsequently, the
Act was adopted by resolution passed by the legislatures of six more
States. the primary object and purpose of the Act was the imposition
of a ceiling on vacant land in 'urban agglomerations', the acquisition
by the Government of such land in excess of the prescribed ceiling, the
regulation of construction of buildings on such land and matters con- G
nected therewith. All this was done with a view to prevent the concent-
ration of urban land in the hands of a few persons and speculation and
profiteering therein, and with a view to bring about an equitable dis-
tribution of land in urban agglomerations to subserve the common
good in furtherance of the Directive Principles enunciated in Art.
39(b) and (c) of the Constitution. The controversy before the Court H
516 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
turned mainly on the construction of Articles 251 and 252 of the Con-
A
stitution and certain allied questions. Dr. Chitale, however, laid em-
phasis on three important aspects of this legislation and decision. The
first was the language of the resolutions passed by the States in this ·
context, which appear to have been on the same lines and one of which
is set out in the judgment. They contained the following paragraphs:
B
"Whereas this Assembly considers that there should be a
ceiling on Urban Immovable Property
And whereas the imposition of such a ceiling and acquisi-
tion of urban immovable property in excess of that ceiling
are matters With respect to which Parliament has no power
c to make law for the State except as provided in Articles 249
and 250 of the Constitution of India"
(underlining added)
The second was the preamble to the legislation in question. After
D setting out the long title to the Act and the object and purpose of the
legislation in terms already described, the preamble to the Act con-
tains the following para:
"And whereas Parliament has no power to make laws for
the State with respect to the matters aforesaid except as
E provided in Articles 249 and 250 of the Constitution."
The third was the following passage from the judgment:
"We are afraid this contention cannot be accepted. It is not
disputed that the subject matter of Entry 18 List II of the
F Seventh Schedule i.e. land covers 'land and buildings' and
would, therefore, necessarily include vacant land. The
expression 'urban immovable property' may mean 'land
and buildings' or 'buildings or land'. It would take in lands
of every description i.e. agricultural land, urban land or
any other kind and it necessarily includes vacant lands."
G
(underlining added)
Stopping here for a brief review of the above decisions, it will be
seen that except for Jndu Bhushan's case which will be discussed later,
the other rulings are not helpful in deciding the issue before us. Atiqa
H Begum and Atma Ram concerned a legislation that clearly pertained to
.
ACCOUNTANT AND SECRETARIAL SERVICES v. IJ.0.I. [RANGANATHAN,J,] 517
land-in fact, land governed by systems of land tenure prevalent in the
A
States of Uttar Pradesh and Punjab. In Allah Rakhia, the impugned
Act was limited to agricultural land and, since the items in the concur-
rent list excluded such land, was covered by Entry 21. In Manekla/, the
legislation primarily concerned land, though not agricultural land, for,
as observed in State v. Peter, [1980] 3 SCR 290 at p. 292, "land is at the
base of all development". It is not quite certain that the provisions of B
the Act also affected buildings, but if indeed any buildings were
affected, that was only incidental. As pointed out by the Court, the
primary target of the legislation was only urban land, the ways and
means of developing it and proper utilisation of land situate within the -
municipal limits. These decisions no doubt establish two propositions:
( 1) The opening word 'land' in entry 18 is not restricted to agricultural
land as are the latter portions of it. It would cover all types of land- c
rural or urban, agricultural or non-agricultural, vacant fallows or
pastures. (2) The words which follow 'land' only make it clear that the
legislative entry takes in not merely the tangible immovable property
one normally describes as land but also all kinds of intangible rights or
interests, in or over, land in the broad sense explained above. The D
phrases which follow the words "rights in or over land" in the entry are
illustrative and are not restrictive. They only make it clear that the
legislative entry takes in not merely the tangible immovable property
one describes as land. but also all kinds of ilitangible rights or interests,
in or over, land in the broad sense explained above. But none of the
decisions contain any support for the further proposition that the E
legislative entry should be so interpreted· as to cover houses and build-
ings as well as the relationship of landlord and tenant in regard thereto
or the collection of rents therefrom. We are unable to agree with Dr.
Chitale that this further proposition emerges from the decision in
Union of India v. Valluri B. Chaudhary, [1979] 3 SCR 802. The Urban
Land Ceiling Act also was a legislation primarily intended to deal with F
vacant lands. If one. scans the provisions of the Act it is clear that the
theme of the Act was only to place a ceiling on vacant lands in cities or
what we call urban agglomerations and to ensure equitable distribu-
tion of such urban vacant lands. The pith and substance of the legisla-
tion was with regard· to urban land and its provisions in respect of
buildings were incidental to the main objective of the urban land ceil- G
ing. In th.is context, it is perhaps not without significance that as
against the proposal of the States for a ceiling on 'urban immovable.
property' Parliament restricted the legislation to vacant land. In the
light of these circumstances the declaration in the preamble to the Act
is basically correct. that the pith and substance of the legislation was
'land' and this is exclusively within the State's legislative domain by H
518 SUPREME COURT REPORTS [19881 Supp. 1 S.C.R.
v'irtue of Entry 18 of List II. We do not also agree with the courisel'lhat
A
the passage extracted from the judgment reflects a decision of the
Court that land includes 'lands and buildings'. It proceeds on a conces-
sion to that effect. That apart, the context of the above observation is
also interesting. The Court was dealing with a contention that the
resolution of the States had authorised Pariiament to impose a ceiling
B on urban immovable property and that the legislation imposing a ceil-
ing on urban land was on a different subject and thus contrary to the
resolution. The Court, rejecting this argument, pointed out that since
'urban immovable property' was a wider expression which also in-
cluded 'land', there was no contradiction between the resolution and
the legislation. It is in this context that a reference, on admission,
C regarding the scope of Entry 18 finds a place in the passage. Neither
was the scope of the entry in i'ssue in the case nor can the isolated
sentence, on admission, be treated as a decision by the court.
We now come to Indu Bhushan's case. While the counsel for the
respondents would have it that this ruling has concluded the present issue in
D their favour, Dr. Chitale contends that this is not so. He points out
that the court has been careful to say that "it is not expressing any final
opinion" regarding Entry 21. It has, at another place, referred io the
framing of house tenancy legislation ".either under Entry 18 of List II
or Entries 6, 7 and 13 of List III" which also indicates that the Court
had not made up its mind as to whether this t)'.pe of legislation will fall
E under List II or List III. It is submitted also that an analysis of the
Calcutta and Ra jasthan decisions approved by it would show that they
had not at all been considering any conflict between entries in Lists II
and III and were concerned only with the interpretation of Entry 2 in
List I and Entry 21 of List IL Dr. Chitale, therefore, urges that lndu
Bhushan cannot be taken as a decision that house tenancy legislation
F cannot come under Entry 18 of List II.
We are not, however, persuaded that Indu Bhushan's case is
capable of being brushed aside so easily. It is true that, ultimately, the
decision in that case turned on the wider interpretation of Entry 2 of·
List I favoured by the Supreme Court in preference to the narrower
G one preferred by Bombay. Nevertheless the judgment contains a
specific discussion of the terms of Entry 21. This is because the Bombay
High Court had first discussed the terms of this entry and expressed an
opinion thereon. The Supreme Court considered the High Court's
interpretation of the entry and disagreed therewith. The view of the "
Supreme Court on the entry has been set out in some detail and cannot
H be ignored. Not only this, in the last para of its judgment the Court has
ACCOUNTANT ANDSECRETARIALSERV!CESv. U.O.l. [RANGANATHAN,J.I 519
reaffirmed the earlier discussion and interpretation. We have
extracted earlier this concluding para of the judgment. In our view the
effect of this para cannot be explained away by trying to analyse the
Calcutta and Rajasthan decisions to see what they had actually
decided. The important thing is how the Supreme Court understood
what the two High Courts had decided. This is set out in the two
sentences of the last paragraph of the judgment, which have been B
underlined in the extract set out earlier. The Supreme Court then
specifically affirmed this to be the correct ratio. We are, therefore, of
the opinion that lndu Bhushan must be taken to have expressed a view
that premises tenancy legislation in so far as it pertains to houses and
buildings is referable not to entry 18 of List II but to entries 6, 7 and
13 of List III.
c
As pointed out by the learned Attorney General, lndu Bhushan
has been understood, as above, in the subsequent decision of the
Supreme Court in Jaisingh Jairam Tyagi v. Maman Chand, [1980] 3
S.C.R. 224. The decision of the larger Bench of the Supreme Court.in
V. Dhanpal Chettiar v. Yesodai Ammal, [1980] 1 S.C.R. 334, also D
re-inforces the same line of thinking. The question for consideration in
this case was whether, in respect of a tenancy governed by Tamil Nadu
Buildings (Lease and Rent Control) Act, it was necessary for the land-
lord to issue a notice under section 106 of the Transfer of Property Act
terminating the tenancy before he could obtain an order of eviction
against the tenant. This question was answered in the negative. In the E
course of its discussion the Supreme Court observed as follows:
"Under the Transfer of Property Act the subject of "leases
of Immovable Property" is dealt with in Chapter, V. Sec-
tion 105 defines the lease, the lessor, the lessee and the
rent. Purely as a matter of contract, a lease comes into F
existence under the Transfer of Property Act. But "in all
social legislations meant for the protection of the needy,
not necessarily the so-called weaker section of the society
as is commonly and popularly called, there is appreciable
inroad on the freedom of contract and a person becomes a
tenant of a landlord even against his wishes on the allot- G
ment of a particular premises to him by the authority con-
cerned. Under section 107 of the Transfer of Property Act
a lease of immovable property from year to year, or for any
term exceeding one year, or reserving a yearly rent, can be
made only by a registered instrument. None of the State
Rent Acts has abrogated or affected this provision. Section H
520 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R.
108 deals with the rights and liabilities of lessors and les-
A
sees. Many State Rent Acts have brought about consider-
able changes in the rights and liabilities of a lessor and
lessee, largely in favour of the latter, although not wholly.
The topic of Transfer of Property other than agricultural •
land is covered by Entry 6 of List III in the Seventh
B Schedule to the Constitution. The subject being in the Con-
current List, many State.Rent Acts have by necessary imp-
lication and many of them by starting certain provisions
with non-obstante clause have done away with the law
engrafted in section 108 of the Transfer of Property Act
except in regard to any matter which is not provided for in
the State Act either expressly or by necessary implication."
c
The above passage clearly proceeds on the view that the subject
matter of housing accommodation falls within the purview of the Con~
current List. It would have strengthened the landlord's contention in
Dhanpa/ Chettiar's case to urge that the terms of the house control
D legislation being traceable to List II and not to List III, the provisions
of the Transfer of Property Act could not affect the same at all. If Indu
Bhushan had been understood as having left the question open, it is
difficult to imagine that, before the larger Bench of the Court, counsel
would not have raised the issue again. The discussion and ratio of
Dhanpal Chettiar fall into olace only on the view that by that time it
.
I
E was taken as settled law that State House control legislations were
referable to the legislative powers conferred by the Concurrent List,
So much in regard to precedents. But, leaving precedents aside,
let us proceed to consider the terms of the legislative entry itself,
treating the observations in Indu Bhushan as merely of persuasive
f value. We agree that entry 18 should be given as wide a construcllon as
possible consistent with all the other entries in all the three legislative
lists. The entry deals with four main topics: land, transfer and aliena-
tion of agricultural land, land improvement and agricultural loans and
colonisation. The second and third of these clearly pertain td agricul-
tural land. Perhaps the last also does, because, usually, by colonisation
G we mean conversion into buildings and industrial sites of what was
previously agricultural land but, may be, it is wider and includes colo-
nisation of vacant non-agricultural land as well. Any way, as the
decisions have unanimously held there is no reason why the firs.I topic
viz. land should be narrowly interpreted. It should be understood as
including all types of land rural or urban, agricultural or non-agricul-
H tural, arid, cultivated, fallow or vacant. But, what is 'land'? This can
i:
l
ACCOUNTANT AND SECRETARIAL SERVICES v. U.O.I. (RANGANAIHAN, J.l 521
be gathered from the other words of the entry which attempt a A
paraphrase. They say in effect that legislation in regard to 'land' will
comprise of legislation in regard to three things, that is to say,
(i) rights in orover land;
(ii) land tenures, including the relationship of landlord and ten- B
ant; and
(iii) collection of rents.
In our opinion, the true import of the word 'land' can be
gathered if we try to ascertain the proper interpretation and ambit of
these three phrases, particularly, the first two among them, in the.con- c
text of other entries in the Union List. Doing so, is it possible to
interpret this entry as encompassing within its terms legislation on the
relationshi{of landlord and tenant in regard to houses and buildings? ,
That is the· question. After carefill consideration, we have reached the
conclusion that the answer to this question has to be in the negative for D
a number of reasons:
I. As pointed out in Megh Raj, there was good reasonJor plac-
ing land' in the Provincial List. Land indeed is primarily a matter for
provincial concern. It is well known that land in each Province had its
special characteristics. There were local ·customs and traditions in E
regard to landholding and particular problems of local concern which
required provincial consideration. There are no such special features
that require placing buildings also in the State list. The l'toblem of
scarcity of house accommodation is a general feature all over the
country thanks to India's post-independent industrial development
involving large influxes of population into towns, big and small, from F
the villages. Urban housing problems are almost the same throughout
the country depsite minor differences here and there and uniform
nationwide legislation in regard thereto, atleast on some common
aspects, is also a necessary desideratum. In other words, the subject is
appropriate for an entry in the Concurrent List. Such a need for a
uniform legislation by the Centre was felt even in respect of vacant G
urban land, (where unlike agricultural land, there are no special fea-
tures which need varying provincial treatment) despite its being on the
State List. It is all the more imperative in respect of public premises,
i.e., buildings belonging to the Union or to public sector corporations
which have all-India operations. It is, therefore, only appropriate that
'buildings' should be an item in the Concurrent Legislative List. H
522 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
2. A scrutiny of the Legislative lists would show that the Con-
A stitution uses different expressions in different places, appropriate to
the context and these entries indicate an awareness on the part of the
Constitution of the distinction between various kinds of property.
Entries 32, 87 and 88 of List I and Entry 6 of List III use the word
'property', a word of the widest connotation, which takes in not
B merely land, buildings and other immovable properties but also all
kinds of rights and interests in tangible and intangible properties.
There are Entries 35 and 49 of List II which make specific reference to
'lands and buildings'. The expression 'land' is used, therefore, obvi-
ously where reference to land only is intended. Even the width of this
expression is cut down and reference is confined only to 'agricultural
land' as in Entries 47 and 48 of List II, 6 and 7 of List III and even JS of
C List' Il. In this scheme of the entries, it would be inappropriate to
interpret the word 'land' in Entry 18 as including buildings also.
3. The Bombay case, in interpreting Entry 21 of the 1935 Act,
was bound to take into account the terms of s. 3 of the (English}
D Interpretation Act, 1889 which specifically defined 'land' in the widest
sense as including all 'messages, tenements and hereditaments,
houses, and buildings of any tenure". The assistance of the Interpreta,
tion Act cannot be invoked to interpret the entries in the Constitution.
4. The entry in question specifically refers to the relationship of
E landlord and tenant but this is in the part of the entry which reads:
"land tenures including the relationship of landlord and tenant". The
words "land tenures", are not followed by a comma in some of the
editions though the 1935 Act and some of the other editions and text
books on the Constitution have a comma in between. But this makes
no difference. Thi:. w\1rds "tenant" and "tenure" have a common. deri-
F vation and the expression 'tenure' no doubt comprehends within it the
relationship of landlord and tenant. But this had to be specified and
clarified because in India, the expression "land tenures", as pointed
out in Jndu Bhushan, has acquired a special significance. It connotes
various types of holdings of )and, involving the King or the Govern-
ment, the zamindar, the inamdar and various other types of holders,
G lessors, sub-lessors, lessees and sub-lessees under or through them and
evolved at various stages of Indian history by various rulers, nawabs
and chieftains Hindu, Muslim and British-differently in different
parts of the country. Sir Baden Powell has written a vast treatise on
such law systems prevalent in India. The Constitution in S. 3 lA con-
tains a clue that expression like "estate" and "land tenures" have a
H special meaning in relation to land, connoting the relationship among
ACCOUNTANT AND SECRETARIAL SERVICES'· U.0.1. IRANGANATI!AN, J.] 523
its owner, holder and other intermediary for the time being, be it on
A
tenancy or otherwise and the collection of rents therefrom. Section
3 lA also describes some of these relationships. The system h~d de-
veloped so many complications and nuances that a determined liquida-
:tion of all these special types of relationships had to be achieved by
special provisions in the chapter on fundamental rights. Viewed in this ,
' background, the words "relationship of landlord and tenant and the 8
collection of rents" cannot impart a wider meaning to the words
"land" and "land tenure" used in the entry.
5. While, on the one h:·,,d, the words in Entry 18 have to be
given the widest meaning possible, it has to be borne in mind that the
entries in the various lists have to be read together and construed in
such a manner as to give a meaning and content to all of them. We .C
need hardly say that the Constitution should be so interpreted as to
reconcile all concerned and relevant entries (See: Hoechst Pharma-
ceuticals v. State, [1983) 3 S.C.R. 130 and the Dhillon case: 1972 2
S.C.R. 33. If we give the word "land" a meaning so as to include
buildings and also give the words "rights in or over land" a wide D
interpretation as we have to, in view of the discussion and ratio in
Megh Raj v. Allah Rakhia, AIR 1947 P.C. 72 this entry will be seen to
cover almost all kinds of not only transfer but also alienation and
devolution of, or even succc .cion to, lands and buildings. The
interpretation thus placed will affect not merely leases and, therefore,
a small part of the contents of the item regarding 'transfer of property'; E
it will apply equally to sales, mortgages, charges and all other forms of
transfer of all kinds of interests in land and buildings and thus make
such a substantial inroad into the scope of Entry 6 in the concurrent list
as to denude it of all application except to property other than land
and buildings. The word "property" used in Entry 6 will thus lose even
its normal meaning not to speak of its being given the widest meaning F
possible appropriate to a legislative entry. It will mean that though
transfer of property-other than agricultural land-is in the Concur-
rent List, the State will have exclusive power to legislate in respect of
transfer of all property in the nature of land and buildings; in other
words, for the words "transfer of property other than agricultural
land", we will be substituting "transfer of propety other than lands G
and buildings". It will mean that though wills, intestacy and succession
are in item 5 of. the Concurrent List, the State can legislate exclusively
in respect of devolution of land and buildings of all description. It will
render Entry 35 of List II a surplusage in so -far as it refers to "lands and
buildings". We do not think that such an interpretation should be
favoured. The more harmonious interpretation would be that any sub- H
524 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A ject matter that involves the element of transfer or alienation of any
property (other than agricultural land) or of devolution (on testa-
mentary or intestate succession) of any property or contract (other
than one in relation to agricultural land) will fall in the Concurrent List
and not in the State List even though it may relate to land or buildings,
B 6. Another feature of the entries in the Lists also lends support
to our view. Reference has been made to Entry 3 of List I by which,
inter alia, Parliament has been given exclusive power to enact lease
and rent control legislation in cantonment areas. Entry 5 of List II is
the corresponding entry regarding local self government in areas of
States excluding cantonment areas. Had it been the intention to confer
C legislative power on the State Legislature in regard to housing and rent
control accommodation in the States, one would have expected a
repetition in Entry 5 of List II or, at least, in entry 18 of List II of the
words of entry 3 of List I. We do not think that the omission of those
crucial words in Entry 5 or 18 can be attributed to more inadvertance.
D 7. We have earlier referred to Dr. Chitale's reference to the
Urban Land Ceiling Act, 1971 and pointed out how the preamble to
the Act does not support counsel's interpretation of Entry 18. We may
point out, on the other hand, that quite a few (though not all) State
Legislations on house and rent control (including the 1956 Act) have "
been enacted after obtaining the President's assent. This indicates a
E legislative recognition that such legislation stems from the Concurrent
List and not the State List.
8. The learned Attorney General sought to derive some support
for his contention also from the wording of Entry 32 of List I which
deals with the 'property of the Union', an expression wide enough to
F comprehend all kinds of property, essentially lands and buildings. It
does three things at the same time:
(a) it enables Parliament to legislate exclusively with respect to
all property belonging to the Union;
G (b) it, however, subjects such power, in so far as property
situated within the territory of any State is concerned, to any
legislation of the State in regard thereto;
(c) it nevertheless authorises Parliament to provide otherwise by
law.
H
ACCOUNrANT AND SECRETARIAL SERVICES v. U,O._J. (RANGANATHAN, J.l 525
This language is somewhat analogous to that of article 254(2) and is A
consistent with a special provision for an item, which, otherwise,
would primarily be covered by the Concurrent List on which· both
Parliament and State Legislature can legislate. It may be usefully con-
trasted with Entries like Nos. 23 and 24 of List 11 where the language of
the entry clearly grants primacy to Pariiamentary legislation in regard
to a part of the field occupied by an entry in the State List. There is B
some force in this contention wliich, effectively, is that if land and
buildings were so clearly covered by Entry 18 of List II, either the
wording of entry 32 would have been made subject to List II of Entry
18, in this regard, like nos. 23 and 24 would have been made subject to
List I.
9. It is also a relevant consideration that, while the interpreta-
c
tion suggested by appellants completely denies power to Parliament to
legislate on the subject matter under consideration, the interpretation
preferred by us does not exclude the States' power to legislate with
respect to the topic. It recognises a concurrent power in Parliament
and State Legislatures. D
For the reasons discussed above, we are of opinion that all the
legislations coming up for consideration in the present case are refer-
able to entries in the Concurrent List and the topic of legislation is not
referable to Entry 18 List II. The provisions of the 1971 Act, in so far
as they are made applicable to the premises of the respondent bank E
are, therefore, intra vires and valid.
Once it is held that the 1971 Act is intra vires Parliament, no
further issue between ihe parties would seem to survive for considera-
tion for, as we have already pointed out, no other contention was
raised before the Division Bench of the High Court.· However, there F
was some discussion before us as to whether the provisions of the 1971
Act, even if intra vires, would prevail against the provisions of the
State legislations. In this context, Dr. Chitale invited our attention to
Jain lri'k Manufacturing Co: v. LIC, [1981] 1SCR498 where this Court
held that the provisions of the 1971 Act will prevail against the provi-
sions of the Delhi Rent Control Act, 1956 and the Delhi Slum Areas G
(Improvement & Clearance) Act, 1956 on the grounds that it was both
a later Act and a special Act. He submitted that the decision in the
case is the subject matter of reference to a·larger Bench and that we
should, therefore, defer our decision in.the present case to await the
result' of the reference; We do not think this is called for. In our
opinion; that decision has no reference to the issues before us. Irt that H
526 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
case, all the three legislations were Parliamentary legislations (Delhi
A
being a Union Territory) and the question was regarding the inter-se
overlap among the three Acts touching upon the same subject matter
viz. eviction of a tenant by a landlord. Here the legislations which are
said to occupy th~ same field are one of Parliament of 1971 and two of
the State of West Bengal of 1956 and 1962, all passed in exercise of the
B powers conferred with respect to matters contained in the Concurrent
List. The resolution of a conflict, if any, between the two will have to be
in terms of Article ~54 of the Constitution. This article reads:
Inconsistency between laws made by Parliament and laws
made by the Legislatures of States-
c (1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by Parlia-
nient which Parliament is competent to enact, or to any
provision of an existing law with respect to one of the mat-
ters enumerated in the Concurrent List, then, subject to
D the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the Legisla-
ture of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the
State shall, to the extent of the repugnancy, be void.
E (2) Where a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent
List contains any provisions repugnant to the provisions of
an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legis-
lature of such State shall, if it has been reserved for the
F consideration of the President and has received his assent,
prevail in that State:
Provided that nothing in this clause shall prevent Parlia-
ment from enacting at any time any law with respect to the
same matter including a law adding to, amending, varying
G or repealing the law so made by the Legislature of the
State.
n
It will be convenient, before applying the provisions of the article !l
to the facts of the present case, to refer to the elucidation of the scope ;.
of its provisions by decisions of this Court. Iri Zaverbhai Amaidas v.
H State, [1955] SCR 799 the question whether a provision in Central.Act
ACCOUNTANT ANDSECRETARIALSERVICESv. U.0.1. IRANGANA1HAN,J.) 527
XXIV if 1946 as amended by the Act LU of 1950 wouldprevail against A
a provision in Bombay Act XXXVI of 1947. Both legislations were
referable to the Concurrent List and the State law had been passed
after obtaining the assent of the Governor General. Refering to Art.
254(2), the Court said:
"This is, in substance, a reproduction of section 107(2) of B
the Government of India Act, the concluding portion
thereof being incorporated in a proviso with further addi-
tions. Discussing the nature of the power of the Dominion
Legislature, Canada, in relation to that of the Provincial
Legislature, in a situation similar to that under section
107(2) of the Government of India Act, it was observed by
Lord Watson in Attorney General for Outario v. Attorney c
General for the Dominion, (1896) A.C. 348. that though a
law enacted by the Parliament of Canada and within com:
petence would over ride Provincial legislation covering the
same field, the Dominion Parliament had no authority con-
ferred upon it un.der the Constitution to enact a statute D
repealing directly any Provincial statute. That would ap-
pear to have been the position under section 107(2) of the
Government of India Act· with reference to the subjects
mentioned in the Concurrent List. Now, by the proviso to
Article '254 (2) the Constitution has enlarged the powers of
Parliament, and under that proviso, Parliament can do E
what the Central Legislature could not under section
107(2) of the Government of India Act and enact a law
adding to, amending, varying or repealing a law of the
State, when it relates to a matter mentioned in the Concur-
rent List. The position then is that under the Constitution
Parliament can, acting under the proviso to article 254(2), F
repeal a State law. But where it does not expressly do SO,
even then, the State law will be void under the provision if
it conflicts with a later "law with respect to the same matter"
that may be enacted by Parliament."
tater, the Court observed: G
"It is true, as already pointed out, that on a question under
article 254(1) whether an Act of Parliament prevails against
a law of the State, no question of repeal arises; but the
principle on which the rule of implied repeal rests, namely,
that if the subject-matter of the later legislation is identical H
528 SUPREME COURT REPORTS 119881 Supp. 1 s.c,.R.
A with that of the earlier, so that they cannot both stand
together, then the earlier· is repealed by the later enact-
ment, will be equally applicable to a question under Article
254(2) whether the further legislation by Parliament is in . ·~
respect of the same matter as ffiat of the State law. We
must accordingly hold that section 2 of Bombay Act No.
B XXXVI of 1947 cannot prevail as against Section 7 of the
Essential Supplies (Temporary Powers) Act No. XXIV of
1946 as amended by the Act no. Lii of 1950."
,•
It is sufficient to cite certain observations from one more judgment on
this aspect: Hoechst Pharmaceuticals v. State, [1983) 3 SCR 130 which
C had to consider an alleged conflict between a provision of a State sales
tax law and a provision of an order made under the Essential Com-
modities Act of Parliament. The case dealt with several points with
which we are not here concerned. Expatiating on the scope of Article
254, the Court observed:
D "Art. 254 of the Constitution makes provision first, as to
what would happen in the case of conflict between a Cent-
ral and State law with regard to the subjects enumerated in
the Concurrent List and secondly, for resolving such conf-
lict. Art. 254(1) enunciates the normal rule that in the
event of a conflict between a Union and a State law in the
E concurrent field, the former prevails over the latter. Cl. (1)
lays down that if a State law relating to a concurrent subject
is 'repugnant' to a Union law relating to that subject,
whether the Union law is prior or later in time, the Union
law will prevail and the State law shall, to the extent of such
repugnancy, be void. To the general rule laid down in cl.
F (1), cl. (2) engrafts an exception, viz. that if the President
assents to a State law which has been reserved for his con-
sideration, it will prevail notwithstanding its repugnancy to
an earlier law of the Union, both laws dealing with a con-
current subject. In such a case, the Central Act will give
way to the State Act only to the extent of inconsistency
G between the two, and no more. In short, the result of ob-
taining the assent of the President to a State Act which is
inconsistent with a previous Union law relating to a concur-
rent subject would be that the State Act will prevail in that
State and override the provisions of the Central Act in their
applicability to the State only. The predominance of the
H State law may however be taken away if Parliament legis-
ACCOUNTANT AND SECRETARIAL SERVICES v. U.0.1. [RANGANATHAN, J.] 529
!ates under the Proviso to cl. (2). The proviso to Art. A
254(2) empowers the Union.Parliament to repeal or amend
a repugnant State law, either directly, or by itself enacting
a law repugnantto the State law with respect to the 'same
matter'. Even though the subsequent law made by Parlia-
ment does not expressly repeal a State law, even then,'the
State law ill become void as soon as the subsequent law of B
Parliament creating repugnancy is made. A State law
would be repugnant to the Union law when there is direct
conflict between the two laws. Such repugnancy may also
arise where both laws operate in the same field and the two
cannot possibly stand together."
The present case is clearly governed by the primary rule in Article c
254(1) under which the law of Parliament on a subject in the Concur-
rent List prevails over the State law. Art. 254(2) is not attracted
because no provision of the State Acts (which were enacted in 1956
and 1962) were repugnant to the provisions of an earlier law of Parlia-
ment or existing law. The fact that the 1956 Act was enacted, after D
being reserved for the President's assent is, therefore, immaterial.
Even if the provisions of the main part of Article 254(2) can be said to
be somehow applicable, the proviso', read with Article 254(1) reaffirms
the supermacy of any subsequent legislation of Parliament on the same
matter even though such subsequent legislation does not in terms
amend, vary or repe~l any provision.-· of the State Legislation ... The . E
provisions of the 1971 Act will, therefore, prevail against those of the
State Acts and were· rightly invoked in the present case by the respon-
dent Bank. ·
Dr. Chi tale, while initially formulating his contenti9ns, outlined
a:n argument that the provision in the 1971 Act appointing one of the F.
officers of the respondent bank as the Estate Officers is violative of
Article 14. We do not see_ any substance in this contention. In the very
nature of things, only an officer or appointee of the Government,
statutory authority or Corporation can be thought of for implementing
the provisions of the Act. That apart, personal bias cannot necessarily
be attributed to such officer either in favour of the bank or against any G
occupant who is being proceeded against, merely because he happens
to be such officer. Moreover, as pointed out earlier, the Act provides
for an appeal to an independent judicial officer against orders passed
by the Estate Officer. These provisions do not, therefore, suffer from
any infirmity. In fact, Dr. Chitale did not pursue this objection
seriously. · H
530 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.
A No other contention was urged. The appeal, therefore, fails and
is dismissed. We would, however, make no order as to costs as it is the
existence of a multiplicity of statutory provisions that enabled the
appellant to come to Court.
B S.L. Appeal dismissed.
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