KRISHNA CHANDRA MISRA Vs. SUSHILA MITRA
HIGH COURT OF ORISSA
KRISHNA CHANDRA MISRA
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Das, J. -
(1.) This appeal arises in execution of a decree for ejectment obtained by the respondent against the appellant, in respect of a house situated in the town of Cuttack. The respondent is admittedly the owner of the house. The appellant was occupying the house on a monthly tenancy under her. During the time when the House Rent Control Order of 1942 was in force, she obtained from the House Controller, an order dated 15-8 44 exempting her from the operation of B. 4 thereof. On 13-9-44, she gave the tenant a notice, requiring him to vacate the premises by 1-1044 and also calling upon him to pay up the arrear.3 of rent by then due. She filed a suit for ejectment O. S. No. 71/45 on 26-2-1945 and obtained a decree on 17-12-1945. She proceeded to execute the decree by execution case no. 230/46 filed on 30.4.1946 which was adjourned from time to time by arrangement between the parties and was ultimately dismissed for default on 7-5-1917. On 10-5-1917, the decree-holder respondent filed a fresh execution case, namely, E. C. No. 247/47.Tb.e judgment-debtor raised the objection that without a permission in writing by the Rent Controller cinder Schedule 3, House Rent Control Act of 1947, for the filing of the execution proceedings the game was incompetent. This objection wag overruled by both the lower Courts and hence this appeal by the appellant judgment-debtor.
(2.) As already mentioned, at the date when the respondent obtained the order of exemption, dated 15-3-1944, and took further steps based thereon, and obtained her decree for ejectment on 17-12-1945, it was the House Rent Control Order of 1942 that was in force. This was superseded by the House Rent Control Ordinance of 1946, which came into operation on 30-9-1946. This, in turn, was repealed by the House Rent Control Act of 1947, which came into operation on 21-3-1947. It is not disputed that these various statutory enactments relating to house rent control were successively in force in the town of Cuttack without a break. The Ordinance and the Act re-enacted all the provisions of the House Rent Control Order with certain additions and modifications. One of such additions is the present Schedule 3, House Rent Control Act which finds a place in the Hou3e Rent Control Ordinance of 1946 as well as in the Act of 1947. This new section was not in operation by the time the 1st E. C. No. 230/46 was filed on 30-4-1946, but came into operation by the time the second E C. no. 217/ 47, was filed on 10-5-1947. It is accordingly contended by learned counsel for the appellant that the present execution application is incompetent.
(3.) In the course of the arguments on this question, it has been brought to our notice that the original term of three years of the House Rent Control Act of 1947 had expired by 21-3-1950, and that the life of the Act purports to have been extended for one year with effect from that date by Government Noffn. no. 2080-Dev., dated 25-2-1950. This notification was issued in exercise of the power of the Provincial Government under Sub-section (4) of S.1, House Rent Control Act which provides that: "The Provincial Government may, from time to time, by notification extend the continuance of this Act for a further period or periods not exceeding in the aggregate two years, it in their opinion it is expedient so to do." The recent decision of the Federal Court reported in Jatindra Nath v. Province of Bihar,1949 F. L. J. 225 : (A, I. R. (36) 1949 F. C. 175 : 5O Cr. L. J. 897), has been brought to our notice in which it has been held that such a power of extension of the life of an Act by a notification by Government is ultra vires the Provincial Legislature. The question has accordingly been raised that the House Rent Control Act of 1947 is no longer validly in force to enable the appellant to rely on the same. As this raised a serious question relating to the valid continuance in operation of the House Rent Control Act of 1947, we issued notice to the Advocate-General to find out whether the life of the Act had been extended by any fresh Act, or whether it has been purported to be extended only by the notification above-mentioned and if so, how he would maintain the validity of the said notification. The Advocate-General has appeared on notice, and has informed us that the life of the Act has been sought to be extended only by this notification and not by any fresh legislation. He contended, however, that the notification was valid having regard to the terms of Subsection (4) of Schedule , House Rent Control Act of 1947, and that the decision of the Federal Court above cited in so far as it relates to the validity of such a clause giving power of extension to Government by notification is obiter and not binding on this Court. We have care. fully and anxiously considered the matter but it seems to us that in the face of the clear decision of the Federal Court on this question, it is not open to us to treat it as a mere obiter dictum.;
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