SABYASACHI MUKHARJI - (1.) I had the advantage or reading 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 Chief Justice sitting singly in that Court. In the High Court I had not expressed any view on the 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.
(2.) 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 L. S. Nair v. Hindustan Steel Ltd. Bhilai, AIR 1980 Madh Pra 106. I would prefer this view to that of the learned single Judge of the Bombay High Court in Misc. Petn. 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 High Court out of which this appeal arises, i.e., 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 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 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 question or of this type is a public premises is not an aspect into which we were required to go. For the purpose of this appeal once it is held that the Public Premises (Eviction of Un-authorised Occupants) Act, 1971 is intra vires the Parliament, no further issue between the parties survives because no other contention was raised before the Division Bench of the High Court and in this appeal under Article 136 of the Constitution, no other issue can be canvassed. It is, therefor, not necessary, in my opinion, to consider whether the provisions of 1971 Act even if intra 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.
(3.) INDU Bhusan Bose v. Rama Sundari Devi, (1970) 1 SCR 443: (AIR 1970 SC 228) is a decision of five learned Judges of this Court affirming the Calcutta view which held that the legislation in question in that case was to be found in Entries 6, 7 and 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 expressed in A.C. Patel v. Vishwanath Chada, ILR (1954) Bom. 434 : AIR 1954 Bom 204). Respectfully, it has to be taken that the legislation in question must be understood in its pith and substance and so understood the Act in question in the instant 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 said decision and the subsequent decision reaffirming the same view in V. Dhanapal Chettiar v. Yesodai Ammal, (1980) 1 SCR 334 : (AIR 1979 SC 1745) that the subject-matter of housing accommodation and control 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 competence of the legislature. With these observations I agree with respect with my learned Brother that the appeal should be dismissed without any order as to costs. S.RANGANATHAN;