Leonard Stone, Kt., C.J.
1. The facts pertinent to this appeal lie within a comparatively narrow compass. The respondent is the landlord, and the appellant the tenant of certain premises whereon he conducts the business of a boarding and lodging hotel. The lease of the premises having expired on March 1, 1943, the appellant sought to hold over, but the respondent brought this action for possession. To that claim the appellant set up the Bombay Rent Restriction Order, 1942, which Order, as it then stood, only protected premises let for the purposes of residence. The action originally came before Mr. Justice Blagden on June 29, 1943, when he made an order for possession, on the ground that the premises were not let for the purposes of residence. Against that order the present appellant appealed, and that appeal came before the Chief Justice, Sir John Beaumont, and Mr. Justice Rajadhyaksha, on August 19, 1943. They reversed the judgment of the learned Judge in the Court below, holding that the premises were let for the purposes of residence. There has been no appeal from that judgment, and, therefore, we have to deal with the matter on the footing that the premises in question are residential; but I must not be taken as concurring in that judgment, as I am not at all certain that if the matter had been open to us I should have been of the same opinion.
2. The Court of Appeal having held the premises to be let for the purposes of residence, counsel for the respondent contended that the suit ought not to be dismissed, because he might be able to protect himself from! the operation of the Rent Restriction Order by getting a certificate from the Controller under the proviso to Clause 8 thereof. Accordingly, the Court of Appeal sent the matter back to the trial Court to answer the following issue:
Whether the plaintiff Is entitled to an order for possession having regard to the proviso to Clause 8 of the Rent Restriction Order, 1942?
When the issue so sent back came before Mr. Justice Blagden, the respondent produced a certificate dated September 25, 1943, which is in the following terms :-
For the purposes of the proviso to Clause 8 of the Bombay Rent Restriction Order, 1942, I hereby certify that the premises " (therein specified) " are reasonably and bona fide required by the landlord, His Highness the Maharaja of Morvi, for his own occupation.
In the face, of that certificate the appellant's counsel, Mr. Taraporewalla, argued, a he has done on this appeal, that whilst the main portion of Clause 8 of the Order is valid, the proviso to it, which provides for a certificate, is invalid. That point having been raised, the learned Judge, in his judgment delivered on December 3, 1943, gave his opinion upon it, which was in favour of the validity of the whole of Clause 8 including the proviso. But Mr. Taraporewalla took a further point, namely, that the Controller in granting the certificate had acted contrary to natural justice. The learned Judge answered that submission in the negative, and accordingly answered the issue referred to Him in the affirmative. From that decision the appellant now appeals to this full bench.
3. Mr. Taraporewalla is in this difficulty : that he dare not challenge the validity of Clause 8 as a whole : since, if he were to do so successfully, the whole substratum of his defence would be gone, and there would be no escape from an order for possession being made against his client under the law relative to landlords and tenants unaffected by; any emergency regulation. He has, therefore, to maintain that, whilst the main portion of Clause 8 is operative, the proviso to it is ultra vires.
4. Mr. Munshi for the landlord, on the other hand, was not content that this appeal should be dealt with merely on the question of the severability of the proviso to Clause S. He has assembled a second line of assault, with which he has attacked the validity, not only of that group of clauses, namely, Clauses 8, 9 and 12, of the Bombay Rent Restriction Order, which form a scheme aimed at " preventing the unreasonable eviction of tenants," but also the! Defence of India Act itself. Those contentions necessitated the adding of the Advocate General for India and the Advocate General for Bombay as defendants to the suit in which he is plaintiff.
5. The Bombay Rent Restriction Order, as stated in its own introductory words, was made in exercise of the powers conferred by Sub-clauses, (bb) and (f) of Clause (2) of Rule 81 of the Defence of India Rules, 1939 : those rules being made under Section 2 of the Defence of India Act. It follows that Clause 8 of the Order can be attacked, either by impeaching its own validity, or that of Rule 81, or that of Section 2 of the Act : since, if either the main or the subsidiary sources of its own authority fails, the Order must fail also.
6. It will be convenient to make some reference to the way in which this matter originated.
7. On September 3, 1939, the Governor General issued a proclamation under Section 102 of the Government of India Act, 1935, declaring that a grave emergency existed, and on the same day there was issued the Defence of India Ordinance, 1939, and with the Ordinance there were published rules. As a result of the proclamation, the Central Legislature had the power to legislate in respect of subject-matters contained in all the three Lists comprising the whole legislative field of the Seventh Schedule to the Constitution Act, provided that, with regard to List II, which is the Provincial List, the sanction of the Governor General is obtained. Within the prescribed domain the Indian Legislature has plenary powers as large as those of the Imperial Parliament itself: The Queen v. Burah (1878) 3 App. Cas. 889.
8. On September 29, 1939, the Act, with which we are concerned, was enacted by the Central Legislature, and by Section 21 of it the Ordinance was repealed, but the existing rules were maintained and are deemed to have been made " in exercise of the powers conferred by this Act if it had commenced oh the 3rd September 1939."
9. The Act is a devolution of legislative power by the Central Legislature to the Central Government, co-extensive with its own legislative domain, and. differing from it in respect of the method by which the legislative function is to be exercised, namely, by notification in the official Gazette, and limited to this extent, that the exercise of the legislative function is made conditional upon it appearing necessary or expedient to the Central Government so to act : " for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community." Such opinion of the Central Government cannot be called in question except for want of bona fides : (see Liversidge v. Sir John Anderson  A.C. 206) : with the result that to all intents and purposes the devolution of the legislative function is as wide and ample as the powers enjoyed by the Central Legislature after proclamation made. Nevertheless the Central Legislature has not effaced itself, or abdicated its function : since it has the power to recall or repeal at any time the power it has devolved upon the Central Government or the Provincial Government.
10. It is Sub-section 2(1) of the Act which devolves the legislative power ; and, although Sub-section 2(2) limits the scope of the legislative power, which it is permissible to pass on to : " any authority," to the thirty-five subject-matters in the sub-paragraph, the whole of Sub-section 2(2) is a particularization, and not a limitation, of the general powers conferred upon the Central Government itself by Sub-section 2(1).
11. A challenge to the validity of Sub-section 2(1) of the Act cannot, in my judgment, be maintained in this Court : since it has been held by the Federal Court in the case of King-Emperor v. Sibnath Banerjee  F. C. R. 1. that the whole rule-making power is contained in Sub-section 2(1) : At p. 27 Sir Zafrulla Khan said this :-
The rule-making power is conferred under the first Sub-section and all that the second Sub-section; does is to set out the conditions under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of powers conferred under the first Sub-section. Any other view would lead to the anomaly that on the subjects enumerated in the paragraphs of Sub-section (2) there might be two sets of rules, one conferring unconditional and unlimited powers by virtue of being framed under Sub-section (1) and the other being subject to restrictions and limitations in conformity with conditions and restrictions prescribed by Sub-section (2), a state of affairs the contemplation of which could not possibly be attributed to the Legislature.
There appears to be no reported case which is binding upon us, in which the validity of Sub-section 2(1) of the Act is expressly stated. Yet once the scheme of the Act is ' understood, any decision, which upholds the power to make rules under it, is a requital of the Act itself. In the case of Emperor v. Keshav Talpade (1943) 46 Bom. L.R. 22 F.C. the principal argument of the appellant was an attack upon the validity of Section 2 of the Defence of India Act But, as appears from p. 44, the learned Chief Justice of India rejected that argument. These decisions are binding upon us : and even if I was of the opinion that Sub-section 2 (1) of the Act was invalid, which is not my view, it would not be open to us in this Court to impeach its validity. It should be noted that a full bench of the Lahore High Court has expressly held in favour of the validity of Sub-section 2(1) of the Act in Harkishan Das v. Emperor  A.I.R. (F.B.)Lah. 33.
12. Rule 81 has not been seriously challenged in this Court; and, having regard to the view we take on the Bombay Rent Restriction Order itself, it is not necessary to go further into Rule 81 than to observe that the Bombay Rent Restriction Order is made under Sub-clauses (2) (bb) and (f) of it. Sub-clause (2) (bb) provides that the Central Government or the Provincial Government may by order provide for regulating the letting and sub-letting of the class of accommodation therein mentioned, and in particular for preventing the unreasonable eviction of tenants and sub-tenants from such accommodation. It is nowhere stated who is to be the judge of " unreasonableness " : since the rule does not provide for preventing the eviction of tenants as the Provincial Government may consider to be unreasonable. By analogy the observations of the learned Chief Justice of India at pp. 43 to 47 in the case of Emperor v. Keshav Talpade (supra), in which he considers the expression " reasonably suspected," -are pertinent. But it has been submitted that Sub-clause (2) (bb) (ii) is void for the uncertainty of the mandate which it confers, and I will not pursue this matter further.
13. The question we have to determine arises by virtue of Section 14 of the Defence of India Act, which lays upon the Central Government's power to legislate by rule, and upon the devolution of that power, the stipulation that : " save as otherwise expressly provided by or under this Act, the ordinary criminal and civil Courts shall continue to exercise jurisdiction." By that safeguard the Central Legislature, in deputing its legislative function to the Central Government, has made it plain that any interruption of the continuance of the exercise of the Court's jurisdiction, either in the Defence of India Act itself or in some legislative rule made under it, shall be expressly made, so that all may know when and to what degree the Court's jurisdiction is being interrupted. Under the ordinary statute law, an example of such an express provision is to be found in Section 4 of the Bombay Revenue Jurisdiction Act, 1876, where it is enacted : " No civil Court shall exercise jurisdiction as to any of the following matters :" and there then follows a list of the matters to be excluded.
14. The jurisdiction of the Court embraces, not only the conception of geographical limitations within which the authority of the Court runs : but also the power or dignity with which the Court is invested to do justice in cases within its cognizance. The jurisdiction of this High Court is contained in the Letters Patent of 1865 : see in .particular Clause 12, and of more recent date Section 9 of the Civil Procedure Code, 1908, gives to the Courts jurisdiction to try : " all suits of a civil nature excepting suits of which their cognizance has been expressly or impliedly barred." The jurisdiction of the Courts is also conferred by Section 223 of the Government of India Act, 1935,
15. What is the meaning then of the expression "by or under this Act" in Section 14 of the Defence of India Act ? So far as " by " the Act is concerned, it should be noticed that authority is given to the Provincial Government, in the group of Sections 8 to 13 both inclusive, which sets up Special Tribunals, to provide by general or special order for a limited invasion of the jurisdiction of the criminal courts : since by Section 9 the transfer from any criminal Court, except the High Court, to a Special Tribunal is authorized. Be it noted that the Act itself does not interrupt the continuance of the Courts' jurisdiction : but it authorizes the Provincial Government so to do for certain specified purposes.
16. A more difficult aspect of the matter arises from the words " under this Act" contained in Section 14. These words, in my judgment, import the necessity for an express provision being made, if the continuance of either the criminal or civil jurisdiction of the Courts is to be interfered with, by any rule or order made under the Defence of India Act. It has been submitted in this Court that, in all cases in which the legislative function is deputed below the Central Government, an express provision must be found not only in the order made by the deputed authority : but also in the mandate which confers the power to exercise the legislative function on that authority ; and in this respect the authority conferred by Section 9 of the Act, to which I have already referred, is significant: since when the Central Legislature directly, and without the Central Government being the intermediary, authorizes the Provincial Government to set up a criminal tribunal, the mandate does expressly provide for an invasion of the jurisdiction of the Courts.
17. In the case before us, it is Rule 81 of the Defence of India Rules, which is the mandate, whereby the Central Government have devolved the legislative function entrusted to them by the Central Legislature to the Provincial Governments, and an examination of it shows that it contains no express power or provision to interrupt the continuance of the ordinary criminal and civil jurisdiction of the Courts. It is to be observed that the function deputed by the Central Government by Rule 81 is not co-extensive with its own. A comparison, between Rule 81 and s.2 of the Defence of India Act, makes this abundantly clear. To mention only one example, there is omitted from Rule 81 "the public safety" and "the maintenance of public order": so that the Provincial Government could not make an order under Rule 81 even if it considered it necessary or expedient so to do for securing the public safety or the maintenance of public order. But having regard to the view which we take as to the Order itself, it is unnecessary to decide whether power to interrupt the continuance of the Courts' jurisdiction must be conferred by the mandate, and l express no opinion on this point.
18. I will now turn to the Bombay Rent Restriction Order. Clause 8 is in the following terms :
The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, rent to the full extent allowable by this Order and performs the other conditions of the tenancy.
Provided that nothing in this clause shall apply where the landlord has obtained a certificate from the Controller certifying that the tenant has committed any act contrary to the provisions! of co. (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to any adjoining or neighbouring occupiers, or that the premises are reasonably and bona fide required by the landlord either for his own occupation or for the occupation of any person for whose benefit the premises are held or for any other cause which may be deemed satisfactory by the Controller.
Clause 9 provides for the case in which a landlord, having obtained possession on the ground that the premises are reasonably and bona fide required as mentioned in; Clause 8, and the premises are not so occupied within fifteen days :
...the Controller may, on an application of the original tenant made within six months of such date direct the landlord to place him in occupation of the premises on the original terms and conditions, and if in the opinion of the Controller the premises are not reasonably and bona fide required by the landlord for the aforesaid purposes, direct the landlord to pay the tenant such compensation as the Controller may think fit.
Clause 12 is as follows :
(1) Any person aggrieted by an order passed by the Controller under the provisions of this Order (including an order granting a certificate under the proviso to Clause 8) may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector.
(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further enquiry as he thinks fit, either personally or through the Controller, shall decide the appeal,
(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall be final.
19. The framework of this Order closely follows that of the Bombay Rent Restriction Act, 1939, which in its turn appears to have been taken from the Rent Restriction Act, 1918. Indeed Clauses 8 and 9 of the Order differ little in language from Sections 11 and 12 of the 1939 Act, except that the latter leaves to the judicial determination of the Court all such questions as, whether the tenant has committed a breach of Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or has been guilty of a nuisance or an annoyance, or whether the premises are reasonably and bona fide required by the landlord for his own occupation ; whereas, in the case of the Order,. the same questions are left to the arbitrary determination of an executive officer, namely, the Controller, with an appeal to another executive officer, namely, the Collector, whose decision under Clause 12 is to be final. Further, if the landlord, having gained possession of the premises on the ground of his own requirement, fails to occupy them; then, in the case of the Act, it is for the Court to order his eviction, with or without payment of compensation, " as the Court may think fit": whilst, in the case of the Order it is for the Controller to determine these matters, and presumably to order the landlord to vacate the premises and pay such compensation "as the Controller may think it."
20. Two other differences should be noted between the rent Restriction Act and the Rent Restriction Order. The Act applies only to premises, the standard rent of which does not exceed Rs. 80 per month; whereas the Order applies to premises, the standard rent of which exceeds Rs. 80 per month : so that, if the Order be valid, the curious result follows : that in the determination of these matters the Courts' jurisdiction is limited to premises of a monthly rent of Rs. 80, whereas all premises of a higher rental value are left to the jurisdiction of the Controller and the Collector. The other matter of difference is the object sought to be attained by the Act and the Order respectively. The object of the Act, which became law before the outbreak of war, viz., in June 1939, appears from its preamble :
Whereas it is expedient ' to restrict the increase of rental of certain premises in consequence of the levy of the urban immovable property tax in the Province of Bombay.
21. The Order is expressed to be made " in exercise of the powers conferred by Clauses (bb) and (/) of Rule 81 (2) of the Defence of India Rules." The only governing motive contained in Rule 81, by virtue of which the Order could be made, is : " for maintaining supplies and services essential to the life of the community."
22. No doubt it is often convenient to borrow the language of one enactment for the drafting of another : but this case well illustrates the dormant dangers of slavish copying when the objects which the enactments seek to achieve are entirely different.
23. The acute shortage of housing accommodation in this city is but all too well known, and if the object of the Order was to relieve or control it, it has had in this case a very strange result indeed : since the certificate given by the Controller, and confirmed by the Collector, will, if it be valid, result in the ejectment of all the occupants of a boarding and lodging hotel in order that such premises may be made available for use by one man and his family.
24. The comparison I have made between the Rent Restriction Act and the Rent Restriction Order demonstrates that the duties imposed on the Court in the one case and on the Controller in the other, are judicial.
25. The learned Advocate General of Bombay has invited our attention to the English cases under the Defence (General) Regulations, Reg. 62, whereby the Minister of Agriculture and Fisheries has to give a consent, which may have the effect of depriving a tenant of his land : see Howell v. Addison  1 A. E. R. 29. and Irving v. Patterson  1 A. E. R. 652. But, in my opinion, these cases are distinguishable, since the giving or withholding of a consent by the Minister is an administrative, and not a judicial, act : because it is not incumbent upon the Minister to determine rights as between the tenant and the landlord.
26. In my judgment, the proviso to Clause 8 of the Rent Restriction Order sets up an official whose duty it is to determine private rights between His Majesty's subjects relating to the laws of property and of contract. All the matters under Clauses 8 and 9, which the Controller has to consider, are personal to the landlord or to the tenant, and the determination of each of the matters affects the rights or position of the other : no extraneous consideration such as national expediency enters the arena of the Controller's decision at all.
27. The learned Advocate General of Bombay has also relied upon the case of Hari v. Secretary of State for Indian (1903) I.L.R. 27 Bom. 424 : s.c. 5 Bom. L.R. 431 in which it was contended that the City of Bombay Improvement Act of 1898 was vitiated, in that it created a new Court, and thereby interfered with the function and jurisdiction of the High Court. In his judgment at p. 444 Sir Lawrence Jenkins says this :
The Act does not purport to constitute the Tribunal a Court, but provides that it shall perform the functions of the Court under the Land Acquisition Act, and shall be deemed to be the Court: the President is deemed to be the Judge, and the Tribunal's award (subject to the right of appeal I have mentioned) is final. Can it reasonably be said that a body so constituted is) a Court of Justice ? I think not; it appears to me that the manifest purpose of the Legislature was to create a Tribunal that should not be a Court, but a body free from the control and superintendence of this Court, except so far as intervention by way of appeal might be sanctioned by its President, and I am of opinion that the object has been attained.
28. The creation of a body to perform the functions of a Court, free from the control and! superintendence of the Court, would be, in my judgment, a violation of &'. 14 of the Defence of India Act. The argument to the contrary amounts to this : that Clauses 8, 9 and 12 do not interrupt the jurisdiction of the Court: because the Rent Restriction Order creates new laws, and, consequently, the law-making authority is entitled to graft on to such new laws new remedies ; and, it is submitted, that because all this is new, there! is no interference with the jurisdiction of the Court: because it never had any. In support of this proposition we have been referred to the case of Secretary of State v. Mask & Co. (1940) L.R. 67 I. A. 222 : s.c. 42 Bom. L.R. 767 which was a case under the Sea Customs Act of 1878. The passage particularly relied upon by the Advocate General is at p. 237, in which Lord Thankerton, delivering the judgment of the Board, said :
The main principles to be observed in the present case are to be found in the well known judgment of Willes J. in The Wolverhamptan New Waterworks Co. v. Hawkesford (1859) 6 C. B. (N. S.) 336 which was approved of in the House of Lords in Neville v. London "Express' Newspaper, Ld.  A.C, 368 The question is whether the present case falls under the third class stated by Willes J. 4 Where a liability not existing at common law is created by a statute which at the same time gives a special' and particular remedy for enforcing it.' With respect to that class it has always been held that the party must adopt the form of remedy given by the statute.
29. I cannot see how that case or the law, which it lays down, affects the question which we have to determine : because in the case before us the enactment, which gives the power to make within an appointed sphere new laws, i.e. the rules and orders, itself provides that the Courts, except when expressly excluded, shall continue to exercise jurisdiction. The words " shall continue " are, in my opinion, of the utmost importance. What is it over which the Courts are to continue to exercise their jurisdiction? In my judgment, it is the jurisdiction to interpret the law and do justice between His Majesty's subjects as the law stands from time to time altered and amended, unless " by or under this Act" the, continuance of its jurisdiction is expressly excluded in respect of any particular subject-matter. I can find no such express exclusion in the Bombay Rent Restriction Order. To say that certain matters shall be determined by the Controller, and that any person aggrieved may appeal to the Collector, whose decision " shall be final," does not of itself expressly provide for a discontinuance of the Courts' jurisdiction, though, no doubt, it is aimed at circumventing it. As is stated in the judgment delivered by Lord Thankerton in the case of Secretary of State v. Mask & Co. (supra) at p. 236 :
It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied." But in the case before us Section 14 provides that the exclusion must be express : it is not enough for the exclusion to be even clearly implied.
30. Clause 12, which provides that the decision of the Controller shall be final, is, therefore, in my judgment, a violation of Section 14 of the Defence of India Act, as are also Clauses 8 and 9, which seek to transfer the jurisdiction normally exercised, by the Courts to determine: private rights between landlords and tenants.
31. However, Mr. Taraporewalla for the appellant and the Advocate General of Bombay both invite us to sever the clauses :. so that the Order, so far as the eviction of tenants is concerned, can still possess some efficacy. These arguments, it seems to me, proceed upon mutually destructive lines : since Mr. Taraporewalla suggests that we delete the! whole of the proviso to Clause 8, with the consequential deletion of Clauses 9 and 12, leaving in being only that portion of Clause 8 which provides :
The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay rent to the full extent allowable by this Order and performs the other conditions of the tenancy.
32. On the other hand, the Advocate General submits that the clauses can be cured by using a blue pencil so as to delete all references to the Controller and the Collector : so that Clauses 8 and 9 of the Order would in effect be similar to Sections 11 and 12 of the Bombay Rent Restriction Act, 1939. No one has suggested as a third alternative that the clauses should remain, but that the jurisdiction of the Courts not being excluded because of Section 14 of the Act there would be an appeal to this Court from the decision of the Collector, or that the Court has the power in every case to stay all proceedings before the Controller and the Collector, and itself to give or with hold a certificate.
33. In my judgment, it becomes a matter of pure speculation as to the form in which the Provincial Government would have made an order for preventing the eviction of tenants from premises above the monthly rent of Rs. 80, had the implications of Section 14 of the Act been appreciated. I cannot see how it is possible to sever or dissect a composite scheme made under a rule, which seeks to provide for preventing " the unreasonable eviction of tenants" itself made under an Act of which the relevant motive is : " the maintenance of supplies and services essential to the life of the community." If it becomes a matter of speculation, what would have been enacted had the limits of the appointed legislative sphere been realised, then validity cannot be courted by the use of a blue pencil. Mr. Taraporewalla relied on the case of Strickland v. Hayes  1 Q. B. 290. in which a by law made by a county council with regard to-singing or reciting any. profane or obscene song or ballad in any street or public place, or on land adjacent thereto, was held invalid even if the words " or on any land adjacent thereto " could be struck out. Striking out those words would merely curtail the geographical operation of the by-law, which itself would have remained intact. In my opinion, that case illustrates how far is the case we have to consider from being cured by the operation of any doctrine of severance. In my opinion, the words of Lord Haldane delivering the judgment of the Privy Council in The Initiative and Referendum Act, In re  A.C. 935 apply in this case (p. 944) : "The offending provisions are in their Lordships' view so interwoven into the scheme that they are not severable."
34. In the Court below the only argument, which appears to have been addressed to the learned Judge, was that the proviso to Clause 8 was invalid, and no reliance appears to have been placed on Section 14 of the Defence of India Act: since no mention of that section is to be found in the judgment of the learned Judge.
35. In my judgment Clauses 8 and 9 and Clause 12, so far as it operates in regard to Clauses 8 and 9, are invalid as infringing Section 14 of the Defence of India Act. I express no opinion as to the validity of Clause 12 for any other purpose. That being so, the certificate obtained by Mr. Munshi's client, the plaintiff, is of no effect; and the parties are left to their remedies at law unimpeded by the Bombay Rent Restriction Order. As appears from the judgment of the learned Judge in the Court below : " the defendant's only defence is under the Rent Restriction' Order." That being so, and as we have held the relevant clauses invalid, there will be the usual decree in ejectment against Mr. Taraporewalla's client. If there are any further questions, which arise with regard to the arrears of rent or mesne profits, such questions will be referred back to the Court below.
36. By an agreement of lease dated April 2, 1941, respondent No. 1 let to the appellant the second and third floors of the Waterloo Mansions, foil a period of two years commencing from March 1, 1941, at a monthly rent of Rs. 650. The terms of the tenancy are contained in a document dated April 2, 1941. Under Clause 3 it is provided that the lessee shall use the said premises as a boarding and lodging house only, and for no other purposes whatsoever. On December 1, 1942, a notice was given to the appellant on behalf of respondent No. 1 informing him that the period of lease would not be extended and that at the end of the period possession should be given over. As possession was not given a suit for ejectment was filed. The appellant contended that he was entitled to the protection of the Rent Restriction Order, 1942, which then applied only to premises let for residence. It was contended on behalf of respondent No. 1 that as the premises were to be used for business, the Rent Restriction Order (hereafter referred to as the Order) did not apply. The matter came before Blagden J. who accepted the contention of respondent No. 1. The appellant appealed, and the Court of Appeal on August 19, 1943, held that the Order applied. As, however, no certificate of the Rent Controller, according to the terms of the proviso to Clause 8 of the Order, was obtained, time was given to respondent No. 1 to obtain one, and the matter was sent back for disposal by the trial Court. The judgment of the Appeal Court appears to have been based, on the fact that the lodger would be residing in the premises and therefore the Order applied. I do not find the following two points considered : (1) That the premises were let to the appellant and not to the lodger. By Clause 3 the appellant had to use the premises only as a boarding and lodging hotel, and therefore they were not let for residence but for business only. (2) That a lodger is not a tenant but a licensee only, because he is not in sole occupation of the premises. At this stage it is not necessary to decide whether those two aspects would lead to a different conclusion. I only want to record that by this judgment I should not be considered as agreeing with the conclusion of the Appeal Court judgment dated August 19, 1943.
On remand, when the matter was discussed, the appellant's counsel contended (1) that the proviso to Clause 8 of the Order was ultra vires, and (2) that the inquiry held by the Controller and the Collector was against the principles of natural justice. Blagden J. doubted if the first point was open for discussion, but came to the conclusion that the proviso was valid. In his judgment, once it was assumed that the Government of Bombay could interfere with landlords' rights, to possession of their premises to the full extent of passing the clause in question as it would appear without the proviso, how could it be ultra vires to interfere to the lesser extent, which is what the clause with the proviso did ? He stated that the effect of the proviso was to empower a particular person to release a fetter which the Government of Bombay had placed on the wrists of the landlord. The effect of Section 14 of the Defence of India Act does not appear to have been noticed or argued. In my opinion, having regard to the trend of this litigation the question whether the proviso was ultra vires or not was open for the trial Court's consideration.
37. I shall first deal with the second point urged by the appellant, that the proceedings were conducted against the rules of natural justice. The question whether in giving the certificate the Controller or the Collector had acted according to the rules of natural justice is a question of fact. If the certificate is challenged on that ground, the burden of proving,the necessary facts in that respect is on the appellant 'In the present case the appellant led no evidence before Blagden J. and therefore before the trial Court there was no evidence to support this contention. In the course of the hearing of the appeal before us the parties agreed that before the Controller the two attorneys appeared and stated their respective cases, and the Controller gave his decision on that alone. Apart from that, there; is no material on which this Court can proceed to decide this contention. It is not suggested that the appellant was prevented from leading any evidence or that he had made an application to cross-examine respondent No. 1 or his representative and such application was refused. If parties choose to leave disputed questions of fact to an authority for decision on certain materials only, and the authority decides them as best as he can under the circumstances. I do not think it is open to either party later on to challenge the decision on the ground that the authority had not acted according to the rules of natural justice. On the ground therefore that there is no evidence to support this contention it is rejected.
38. The appellant contends that the Rent Restriction Order, 1942, and the first part of Clause 8 are valid but the proviso is bad because it is ultra vires the Provincial Government. He further contends that the first part of the clause is severable from the proviso and therefore the proviso only should be rejected. On that footing he contends that he is not liable to be ejected. On behalf "of respondent No. 1 it was contended that the proviso was good. In the alternative, it was not severable from the rest of' the clause and the whole clause would, therefore, be ultra vires the Provincial Government. It was further urged that the whole Order was also open to the same objection. As the arguments advanced in support of the contention that Clause 8 of the Order or the whole Order was ultra vires involved the construction of the Government of India Act, 1935, it was considered proper to make the Province of Bombay "and the Central Government respondents and they were accordingly brought on record.
39. The appellant contends that Section 2(4) and (5) of the Defence of India Act permitted only the delegation of executive or administrative powers and not powers of legislation. In this connection it was pointed out that under Section 3 of the Defence of India Act the Rules and Orders passed under the Act had the effect of overriding the statute law of the country. It was therefore proper to construe Section 2(4) and (5) as giving the Provincial Government power to make administrative orders only. In support of the contention that the proviso is ultra vires it was pointed out that the Bombay Rent Restriction 'Act, 1939, was passed by the Legislature and continued to be operative in spite of the Order of 1942. That Act gave relief to tenants of premises of which the standard rent did not exceed eighty rupees per month. Section 11 of that Act corresponded (with the omission of words empowering the Controller to give a certificate) to Clause 8 of the Order of 1942. The material difference was that in the proviso in the Act the authority to be satisfied was the Court and not the Rent Controller. Section 12 of the Act corresponded to Clause 9 of the Order. There was no necessity to have any section corresponding to Clause 12 of the Order, because the existence of the Controller was not contemplated by the Act. In dealing with the terms of the, proviso it was pointed out that the Controller was given power to decide (a) whether there was a breach of the covenants between the landlord and the tenant contained in Clauses (o) and (p) of Section 108 of the Transfer of Property Act, (b) .to determine whether there was a nuisance or annoyance to the neighbouring tenants, and. (c) whether the landlord required the premises reasonably and bona fide for his own use, or there was other satisfactory cause why the landlord should obtain possession of the premises. It was contended that all those were functions of the Court. Clause 9 of the Order was further relied upon to show that even after an order was madia by the Court, following on a certificate of the Controller given under, Clause 8 of the Order, the Controller was empowered not merely to declare or determine the rights of the tenant to get back in to the premises but he was authorised to direct that the tenant be put back in the premises on the terras of the old tenancy. It empowered the Controller thus to revive a tenancy which had come to an end, i.e. to bring about a new contract between landlord and tenant after the contract had come to an end. It omitted to provide the machinery by which the authority could carry out his work. As regards Clause 12 of the Order it was urged that no procedure was laid down for hearing the appeal. The Collector was empowered to hear the parties or not, and was left with unfettered powers to make inquiries as he pleased.
40. Rex v. Housing Appeal Tribunal  3 K. B. 334 was relied upon. In that case under the disputed Act of 1919 the local authorities were empowered to prohibit building operations, the party prohibited being given a right of appeal subject to the rules of procedure to be made by the Minister of Health. By the rules of procedure made by the Minister, the aggrieved party was to send a notice of appeal to the appeal tribunal and the local authorities were to send a statement in reply, setting out the grounds of the order and stating where and to what extent they admitted the facts stated in the appellant's notice of appeal. Rule 7 of those rules was in these terms :
If, after considering the notice of appeal and the statement of the local authority in reply and any further particulars which may have been furnished by either party, the Appeal Tribunal are of opinion that the caste is of such a nature that it can properly be determined without a hearing, they may dispense with a hearing, and may determine the appeal summarily.
41. The appeal tribunal received a notice of appeal from an aggrieved party and the local authority's statement in reply. Upon consideration of these two documents alone, without giving the appellant any opportunity of controverting the statements in the local authority's reply, and without any notice to the parties, the appeal tribunal dismissed the appeal. It was held that the meaning of Rule 7 was that the tribunal of appeal might dispense with an oral hearing, but not a hearing altogether. The Court accepted the principles of law applicable to such cases as stated by Kelly C. B. in Wood v. Wood (1874) L.R. 9 Ex. 190, 196. which were approved by Lord Macnaghten in Lapointe v. L'Association etc. De Montreal  A.C. 535. The statement of law, in respect of a committee of mutual insurance society, ran as follows (p. 540) :-
They are bound in the exercise of their functions by the rule expressed in the maxim ' andi alteram partem' that no man shall be condemned to consequences resulting from alleged misconduct unheard and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons/ invested with authority to adjudicate upon matters involving civil consequences to individuals.
42. In my opinion this case is not u3seful as Clause 12 gives a right of appeal and there is nothing in the clause to take away, in effect, that right.
43. As against this it was contended on behalf of respondent No. 1 that the power of the Controller was to make an administrative order. Counsel relied on (Bishop of Gloucester v. Cunningham  1 A. E. R.
61. In that case in respect of an agricultural holding it was provided that if a notice to quit was given before a contract of sale was entered into after the date mentioned in the order, the notice was not valid, unless the Minister of Agriculture assented to the same. The assent of the Minister was held to be an administrative act. This case does not help respondent No. 1. The contention of the tenant was that the Minister of Agriculture had made the order without hearing him. It was pointed out that as it was an administrative act, the tenant had no right to be heard but if it was a judicial act he would have such a right. The judgment clearly shows that the question was treated as one arising between the vendor and the purchaser and not as between the landlord and his tenant. If the tenant was not considered to be a party at all, it is obvious that he could have no right of being heard at that stage.
44. Howell v. Addison  1 A.E.R. 29 was also relied upon in the same connection. That judgment was on an application for an interim injunction against the requisitioning of a property. The War Agricultural Executive Committee; held that the appellant was not cultivating his land according to good husbandry and the Minister of Agriculture consented to the termination of the) tenancy. The observations in that case, on the construction of the Regulation, .are clearly obiter, because it was expressly stated in the judgment that on the interim application the materials to grant the relief were quite insufficient. In any case I do not see how the act of assent by the Minister could be a judicial act. I do not think, therefore, that these cases help respondent No. 1.
45. On behalf of respondent No. 3 (Province of Bombay) the Advocate General urged that normal type of delegated legislation, defines lines of action and lays down procedure. Negatively it has not to affect other Acts. The emergency type of delegated legislation is very wide and can leave a lot of discretion to the executive authority. By Rule 81 power was given to the Provincial Government to make an Order for regulating the letting of premises and the opening words of that rule governed Sub-rule (bb). Unless on the face of the Order it appeared to be for a purpose not mentioned in the opening words of Rule 81, the Court had no power to question the right of the authority to make the Order. The Court cannot investigate whether it was necessary or expedient or whether it was essential for the life of the community. He further contended that when power was given to an authority to make rules, e.g. for unreasonable eviction of tenants, the question whether the rules made in pursuance of it were reasonable or not was for the rule-making authority to decide. White v. Motley [1899J 2 K.B. 34 was relied upon in this connection. In that case a by-law made by the London County Council provided that no person should frequent and use any street or other public place for the purpose of betting, and provided a penalty for the breach of the by-law. The penalty came to be questioned. That by-law was made under Section 23 of the Metropolitan Streets Act which provided that any three or more persons assembled together in any part of a street within the Metropolis for the purpose of betting shall be deemed to be obstructing the street and each of them shall be liable to a penalty. The by-law was held valid and not repugnant to Section 23. Channell J. approved the following observations in Kruse v. Johnson  2 Q. B. 91 (p. 100) :-
A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies), such representatives may be trusted to understand their own requirements better than judges. Indeed, if the question of the validity of by-laws were to be determined by the opinion of judges as to what was reasonable in the narrow sense of that word, the cases in the books on this subject are no guide ; for they reveal, as indeed one would expect, a wide diversity of judicial opinion, and they lay down no principle or definite standard by which reasonableness or unreasonableness may be tested.
46. In my opinion these observations do not touch the main question before us. They may be helpful in determining whether the Order as a whole was within the power of the Provincial Government.
47. The first question to be considered is what is the effect of the proviso. Does it give judicial powers or entrust judicial functions to the Controller? The next question is the extent of the powers given to the Controller. Does it interfere with the jurisdiction of the Court? Lastly, is there an express provision in the Order permitting interferefence with the jurisdiction of the Court, and, if so, whether such provision is authorised by the Defence of India Act ? On! the first question counsel for respondent No. 3 relied on Cooper v. Wilson  2 K. B. 309 to point out what is judicial power or function. At p. 340 of the report it is stated as follows :-
In the Report of the Ministers' Powers Committee (Command Paper No. 4060 of 1932) p. 73 (Section III para. 3) an attempt was made to define the words 'judicial' and 'quasi-judicial ' ; A true judicial decision presupposes an existing dispute between two or more parties,, and then involves four requisites :-(1.) The presentation (not necessarily orally) of their case by the parties to the dispute : (2.) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence ; (3.) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4.) a decision which disposes of the whole matter by a finding upon facts in dispute and an application of the law of the land to the fact so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (4.) and (2.) but does not necessarily involve (3.) and never involves (4.). The place of (4.) is in fact taken by administrative action, the character of which is determined by the Minister's free choice.
48. Scott L.J. further observed as follows (p, 341) :-
Broadly speaking I think the above definitions there given are correct, but I would make an addition, and that is that on' such issued as were tried before the Watch Committee on Aug. 29 the quasi-judicial approaches in point of degree very near to the judicial. This does not of course mean that because the Watch Committee was then exercising nearly judicial functions, it was tied to ordinary judicial procedure.
49. In Shell Co. of Australia v. Federal Commissioner of Taxation  A.C. 275 their Lordships of the Privy Council had occasion to consider what was judicial power. They observed as follows (p. 295)i ;_
What is 'judicial power'? Their Lordships are of opinion that one of the best definitions is that given by Griffith C.J. in Huddart, Parker & Co. v. Moorehead 8 C.L. R. 330, 357 where he says :
I am of opinion that the words ' judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
50. It was pointed out that the authorities clearly showed that there were tribunals with many trappings of the Courts which nevertheless were not Courts, in the strict sense of exercising judicial powers. This last decision emphasizes that while a tribunal may be performing judicial functions it may not be a Court as ordinarily understood. Conversely although a tribunal may not be a Court its function may still be judicial.
51. Examining in detail Clause 8 of the Order it must be noticed that it puts a restriction on the landlord's right to obtain possession of his property which he had given on lease, after the tenancy had terminated either by a valid notice to quit or on breach of a condition giving the landlord the right to re-enter. The first part of the clause provides that if the tenant paid rent, which he was bound to pay under the Order, and performed the conditions of the tenancy, the landlord could not obtain possession. Therefore, the question whether the tenant had performed the conditions or covenants of his tenancy was a matter for the decision of the Court. The Court's jurisdiction is not limited to express covenants but to all the conditions. By the proviso the Controller is given power to determine whether the tenant had committed a breach of the covenants contained in Clauses (o) and (p) of Section 108 of the Transfer of Property Act. Those provisions are implied covenants in a lease. It was argued that whether the tenant had observed those covenants or not would be immaterial unless there was a proviso in the lease giving the landlord a right to re-enter on breach of any such covenants. Without such a covenant the question of the landlord obtaining possession would not arise, although he might have a right to an injunction or damages for breach of the covenant. In my opinion this argument is unsound. The first part of Clause 8 does not limit the inquiry to covenants coupled with such a proviso only. Therefore while under the first part of the clause it will be for the Court to decide whether a tenant was liable to be evicted for not observing the covenants, under the proviso the Controller was given such a right. The second item in the proviso deals with the power of the Controlle to give a certificate on the question whether the tenant had committed a nuisance or not. The question whether particular acts amount to a nuisance or not is clearly a mixed question of law and fact and the decision thereof is ordinarily of a Court. The third question left for the determination of the Controller is (whether the landlord required the premises reasonably or bona fide his own use, or for the use of any person for whose benefit he holds the properly, or whether there was other sufficient cause which entitled the landlord to possession of the property. This also involves determination of the civil rights between a landlord and tenant. Applying the tests laid down in Cooper v. Wilson it clearly involves the exercise of judicial functions by the Controller.
52. In the Bombay Rent Act of 1918 and in the Bombay Rent Restriction Act of 1939 the decision of those very questions, including the last one, was left expressly to the Court. It must be recognised that the Court performs judicial functions and exercises judicial powers. It would be strange under the circumstances, if it was permitted to be contended successfully that while certain functions and duties when performed by the Court under the Act are judicial functions and powers, but the same when performed by the Controller under the Order are not judicial powers and functions, but administrative or executive acts. The position becomes difficult to be sustained when on the same facts the Court may come to one conclusion while the Controller may come to a different conclusion. An illustration will make the position clear. Suppose in respect of a building, one flat was let to a tenant paying Rs. 75 per month as rent and the adjoining flat was let to a tenant paying Rs. 100 per' month. By common arrangement the two tenants maintained a dust bin in front of their flats in which they threw all kinds of garbage. If a neighbouring Jenant complained in respect of flat A that the act amounted to a nuisance, the same will have! to be determined by a Court; while a similar complaint, in respect of the same dust bin, if made against the tenant of flat B, it will have to be determined by the Controller. In my opinion under the circumstances it cannot be contended that the determination of these questions is the exercise of judicial functions and powers in one case, while it is the exercise of administrative powers in the other case. This argument is equally applicable to all three cases where the Controller has power to give a certificate. It is, therefore, clear that under the proviso to Clause 8 the Controller was performing judicial functions.
53. The next question is whether the orders passed by the Controller under the proviso would interfere with the jurisdiction of the Court. The Advocate General contended that they would not. He relied on the observations in United Provinces v. Attiqa Begum  A.I.R. F. C. 16 that powers of the Court were not affected merely because certain executive orders were not allowed to be questioned in any Court. I do not think those observations are helpful in the present case as the orders of the Controller were not executive but judicial. The Advocate General further contended that when by an Act new rights and obligations were created and a tribunal was set up to determine those rights and obligations, such determination did not interfere with the jurisdiction of the Court. He relied on Hari v. Secretary of State (1903) I.L.R. 27 Bom. 424 : s.c. 5 Bom. L.R. 431. In that case in respect of certain improvements projected in the City of Bombay, the City of Bombay Improvement Act, 1898, was passed. A board was constituted under the Act and it was given certain powers with a view to carry out those improvements. It was argued that the Bombay Legislature in passing the Act had assumed powers of legislation which it had no power to do. It created a person or corporation, called the Board of Trustees, and empowered that person or corporation to acquire land in a manner different from that in which, by the Land Acquisition Act, the Supreme Legislature had authorised land to be acquired. It also took away a right of appeal given under the Land Acquisition Act. Thus it legislated for a person and not for the province and altered or amended the Land Acquisition Act. The Act further created a new Court and interfered with the functions and jurisdiction of the High Court. It was not within the power of the Bombay Legislature to do that. Those arguments! were negatived. It was pointed out that the Tribunal of Appeal was not a Court within the meaning of the term as understood. The president and one assessor were appointed by the Government while the other was appointed by the corporation. The president alone had power to make rules for the conduct of the tribunal, subject to the sanction of the Government. The Act did not purport to constitute the tribunal a Court. In terms therefore no new Court was created, and it was held unnecessary to consider whether the creation of a Court was an unauthorised invasion of the Crown's prerogative. It was also pointed out that if the tribunal was not a Court, the right of appeal could not be considered as arising under the Civil Procedure Code. It was held that the City of Bombay Improvement Act could not confer upon the High Court jurisdiction to entertain appeals from such a tribunal but the whole Act was not vitiated merely by this defect in the prescribed machinery for ascertaining the compensation. It was expressly made clear that the1 question before the Court was as to the taking of the land only and not with regard to compensation. The only, decision was that the provisions for taking possession were not void.
54. Bhaishanker v. The Municipal Corporation of Bombay (1907) I.L.R. 31 Bom. 604 : s.c. 9 Bom. L.R. 417 was relied upon for the same purpose. Section 33(2) of the City of Bombay Municipal Act, 1898, in question was in these terms :
If the qualification of any person declared to be elected for being a councellor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the Municipal election roll may, at any time, within fifteen days from the date on which the list prescribed under Clause (k) of Section 28 was available for sale or inspection in the Commissioner's office apply to the Chief Judge of the Small Cause Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, have, according to the results declared by the Commissioner under Section 32, a greater number of votes than the said candidate, and proceed against them in the same manner a3 against the said candidate." Sub-section (2) of that section provided for the Chief Judge making inquiry on the matters expressly mentioned therein and giving a declaration about the result of the inquiry in favour of a candidate. Sub-section (3) stated that the decision of the Chief Judge should be final. Sub-section (5)1 was as follows :
Every election not called in question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election.
55. The suit was for a declaration and injunction. The Court held that where a special tribunal out of the ordinary course was appointed by an Act to determine questions as to rights which were the creation of that Act, then, except in so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions was conclusive (p. 609) :-
It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there was no ouster of the jurisdiction of the ordinary Courts, for they never had any ; there is no change of the old order of things ; a new order is brought into being.
56. Dealing with the question of interference with the Court's jurisdiction it was observed as follows to- 610) :-
But then it is argued that this is a suit of a civil nature, and Section 11 of the Civil Procedure Code provides that the Courts shall have jurisdiction to try all suits of a civil nature. But from this rule are excepted ' suits of which their cognizance is barred by any enactment.' The jurisdiction of the Courts could be excluded not only by express words but also by implication, and there certainly is enough in Section 33 of the Municipal Act for that purpose; for there is no right which the plaintiff can at this stage assert as the subject of this Slit, which is not subject to the condition that its essential basis must depend on the decision of the tribunal created for that purpose.
57. The judgment thus shows that the argument of interference with the Court's jurisdiction was met by a provision in the Civil Procedure Code which permitted such an implied exclusion. That easel is not an authority for the proposition that a general interference is permitted under an Act of the local Legislature. The words "there was no change-of the old order of things" clearly showed that the observations were not-applicable when the old order was maintained. It will therefore not be right to stretch the words to cover cases where there was only an amendment of the old law. Sub-section (5) was emphasized in the judgment to show that, in the event of the procedure laid down by that section not being followed, the election was declared by the Legislature valid. I do not think under the circumstances that case helps respondent No. 3.
58. In Secretary of State v. Mask & Co. (1940) L.R. 67 I. A. 222 : s.c. 42 Bom. L.R. 767 the question of the decision of the Collector under the Sea Customs Act, which was stated to be final, came to be considered. It was there observed (p. 236) :-
It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acts is in conformity with the fundamental principles of judicial procedure.
59. The question for the Court's determination was whether the particular order made by the Collector excluded the jurisdiction of the civil Courts to entertain a challenge on the merits of that decision. It was. observed that the determination of the question must rest on the terms of the particular statute in consideration, and decisions on other statutory provisions were not of material assistance, except in so far as the general principles of construction were laid down. The main principles to be observed were to be found in the well-known judgment of Willes J. in The Wolverkampton New Water Works Co. v. Hawkesford (1859) 6 C. B. (N. S.) 336, 356 which were approved by" the House of Lords in Neville v. London " Express" Newspapers, Limited  A.C. 368. The observations were as follows (p. 391) :-
Where a statute creates! a liability not existing at common law and gives also a particular remedy for enforcing it. with respect to that class it has been held that the party must adopt the form of remedy given by the statute.
60. This statement of law is undisputed. The question is whether it applies to Clause 8 of this Order.
61. A good illustration of when, a new right is created is found in Barraclough v. Brown [18971 A.C. 615. In that case the undertakers of the navigation of the rivers Airs and Calder by its secretary were given statutory rights to sue; on their behalf. The navigation of the river Ouse, within certain limits, was vested in those undertakers for the purposes of conservation and improvement, by several special Acts. The Ouse Improvement Act, 1884, incorporated some of the powers and provisions of the Harbours, Docks, and Piers Clauses Act, 1847, including Section 56, which related to the removal of: wreck .or other obstructions to a harbour, dock or pier, or the approaches to the same. By Section 47 of the Airs and Calder Navigation Act, 1889, (which was a new Act), the following enactment was made with respect to the removal of sunken vessels/ (p. 615) :-
If any boat, barge, or vessel shall be sunk in any part of the navigation..., or in the River Ouse within the limits of improvement defined by the Act of 1884, and the owner or person in charge of such boat, barge, or vessel, shall not forthwith weigh, draw up, or remove the same, it shall be lawful for the undertakers, by their agents or servants, to weigh, traw up, or remove such boat, barge, or vessel, and to detain and keep the same with her trade and loading until payment be made of all the expenses relating thereto, or to sell such boat, barge, or vessel, and the tackle or loading thereof, or a sufficient part thereof, and thereout to pay such, expenses and the expenses of the dale, returning to the owner of such vessel the surplus, if any, on demand, or the undertaker may, if they think fit, recover such expenses from the owner of such boat, barge, or vessel in a Court of summary jurisdiction.
62. It was held that to recover the claim made for removal of a sunken barge a suit in. the High Court was not permissible. It is clear that without such Act the action of the undertakers would have been entirely voluntary. By the Act they were given express powers to remove such obstruction and it was expressly provided that the expenses incurred in connection with the same should be recovered by them by (1) retaining the boat, etc. as a lien, or (2) by selling a sufficient portion and reimbursing themselves, or (3) by proceeding in a Court of summary jurisdiction. It was particularly pointed out in the judgment that the liability created by the Act was not made a debt. This is very significant because if it were created a debt, the right of the High Court to determine its recovery would exist and a prevention of that determination by the High Court would amount to an interference with the jurisdiction of the High Court. This decision very clearly brings out the distinction between what is creating a new right and providing a remedy for it.
63. An illustration of the application of this rule is found in The Queen v. County Count Judge of Essex (1887) 18 Q. B. D. 704. In that case a question of realising interest on judgment in execution arose. It was noted that formerly the Sheriff was entitled to recover the amount mentioned in the writ and nothing more. Interest after date of judgment could not thus be recovered. 1 & 2 Vic. c. 110 was enacted to get over this difficulty. Thereafter the County Courts were established under 9 & 10 Vic. c. 95, and the question arose about recovery of interest on the orders passed by the County Courts. The Court held that the County Court judgments were not judgments in the ordinary sense. The Legislature being aware of the necessity of passing 1 & 2 Vic. c. 110 had omitted to include the question of interest when passing 9 & 10 Vic. c. 95, and therefore the Sheriff had no authority to recover any interest after judgment in those cases. In Berkeley v. Elderkin (1853) 1 E. & B. 805 an action was brought in the superior Court upon a County Court judgment and there was a demurer on the ground that the action would not lie. The demurer was upheld. Relying on that case it was observed (p. 706) :-
Now, had the judgment in the county court been a judgment in the ordinary sense, such a judgment as was then known to the law, the action clearly would have lain. But Lord Campbell says that it was quite clear that the Legislature intended to confine the remedy on the judgments of Courts constituted under that Act to the remedies specifically provided in it;...
64. The rule that where a Legislature had passed a new statute giving a new remedy, that remedy was the only one which could be pursued, was applied in that case.
65. On the other side of the line Stevens v. Chown  1 Ch. 895. may be noticed. In that case an. Act was passed by which a market was established and the Lord of the Manor was declared entitled to recover tolls. They included tolls which had previously been levied. Further tolls were authorised to be levied by that Act. It was contended that this was not a case in which an action at law could lie for disturbance of the market, because there was a new market created and a special statutory provision which excluded all others. The three classes of cases mentioned in the judgment of Willes J. in The Wolvethampton New Waterworks Co. v. Hawkesford (1859) 28 L.J. C. P. 242 : s.c. 6 C. B. N. Section 336, 356. were these (p. 246) :-
There is that class where there is a liability existing at common law, and which is only re-esacted by the statute with a special form of remedy ; there, unless the statute contains winds necessarily excluding the common-law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class), which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class! is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it.
66. It was held that it was within the first of these classes that the! particular case fell. It was observed (p. 903) :-
On the true construction of the Act, I think it has simply re-enacted the old common law right to the market, applying the right to the particular new building when substituted for the old building, as authorised by the Act. The new tolls include the old tolls, and "the remedies are, by enactment, extended to the whole of them. It is not a case where the statute creates a liability not existing at common law; because there was an old market with a right to some tolls-as is stated in the preamble,... It really regulates these ancient rights.
67. The observations in Attorney General v. Aspinall (1836) 1 Keen 513 showing the distinction between right and remedy, were approved. They were as follows (p. 905) :-
Supposing, however, that the new council had, under this clause, the power of bringing the case in question before a jury, it would indeed be a new remedy; but the right cannot be said to consist in the remedy, inasmuch as the creation of the trust of itself subjected the property to all other remedies applicable to trusts; and, if this 97th section had not been in the Act at all, the jurisdiction of the Court could not have been disputed; a circumstance which proves, that the right does not exist only in the remedy, but that the remedy, if applicable to the case;, is afforded merely as another and additional means of enforcing the right. The jurisdiction of this Court cannot be taken away by another jurisdiction having cognizance given to it of the same matter.
68. This last observation shows that giving power to the Controller to determine the same matter, which it is the province of the Courts to determine, takes away the jurisdiction of the Court.
69. In the present case I do not think that the proviso creates any new rights. The clause with the proviso deals with the rights of landlord and tenant and prevents the landlord from recovering possession after the termination of the tenancy, which is only an additional fetter put on his rights as recognised till then. It is not a new law. Similar provisions, as I have pointed out, exist in the Bombay Rent Act, 1939. By the Order the provisions are extended to premises of which the standard rent is higher. It maintains the jurisdiction of the Court to administer the law in respect of the landlord's right to recover possession of the property from the tenant. It is not, in my opinion, a new code which by itself creates new rights and obligations and prescribes its own remedy. The certificate of the Controller is not a remedy. To put at its highest it alters to a certain extent as an emergency measure the existing relations between landlord and tenant. The only alteration made is that in the name of emergency, the executive authority has retained with the Controller the judicial functions left to Courts under the Act of 1939.
70. I think the meaning of the expression " jurisdiction of the Court" is not properly appreciated also in advancing these arguments. The jurisdiction of the Court is (i) territorial and (2) in respect of certain matters. The extent of jurisdiction of the High Court is laid down in Clause 12 of the Letters 'Patent. All matters relating to land within the town and island of Bombay are covered by Clause 12 of the Letters Patent. In the present case the Order of 1942 has created an authority to perform judicial functions without laying down the policy or conditions with reference to which the power is to be exercised and without laying down the procedure by which they are to be discharged. No test is laid down to show what would be a " satisfactory cause " for which the landlord should be given possession. It has given a right of appeal to the Collector, but has prescribed no procedure for the same. I do not think such an authority could be called a Special Court or tribunal to which the observations of Willes J. apply. Rule 81 (f) does not help respondent No. 3's argument, because the office of the Controller cannot be considered an incidental or supplementary matter which the Provincial Government is authorised to provide- I also think that there is considerable force in the contention that under Section 2(5) of the Defence of India Act the authority to delegate should be limited to executive or administrative powers and not judicial, because a different construction would conflict with the express words of Section 14 of the Defence of India Act.
71. In Balwant Ramchandra v. Secretary of State (1905) I.L.R. 29 Bom. 480, 503 : s.c. 7 Bom. L.R. 497 in summarising the law from Maxwell's Interpretation of Statutes (chapters V and X) it is stated that the general presumption is against construing a statute as ousting or restricting the jurisdiction of superior Courts. The intention must be expressed in clear terms : ' not merely implied but necessarily implied'. The general rights of the Queen's subjects are not hastily to be assumed to be interfered with and taken away by Acts of Parliament. Such statutes are to be strictly construed where their language is doubtful. A construction which would impliedly create a new jurisdiction " is to be avoided especially when it would have the effect of depriving the subject of his freehold or his common law right ... or of creating an arbitrary procedure." These observations emphasize that a construction of a statute which interferes with or ousts the ordinary jurisdiction of the Courts should be avoided unless it was unambiguously done by the language of the Act.
72. It was argued that even if the first two parts of the proviso may interfere with the jurisdiction of the Court, the last part was a new right created by the Order and it should be severed from the rest of the proviso. In my opinion this cannot be done because it leads one to conjecture whether the Provincial Government would have so framed Clause 8, if it was compelled to delete the first two rights given to the Controller in the matter of giving his certificate. The proviso as worded is one and indivisible. All the three conditions stand on the same footing. As stated in Street on Ultra Vires the test of severability is whether the statute with the invalid portions omitted would be substantially a different law as to the subject-matter dealt with, by what remains from what it would be with the omitted portions forming part of it. These authoritative words were used by Griffith C. J. in King v. Commonwealth (1890) 11 C. L.R. 1, 22 Court of Conciliation.2 In the words of Lord Haldane in The Initiative and Referendum Act, In re  A.C. 935, 944 the offending provisions are so interwoven with the scheme that they are not sevelable. Moreover what would be left to the Controller would be still the discharge of judicial functions by him.
73. The last point urged in this connection was that by the words " certificate shall be final" in cl, 12 of the Order, the Legislature had made express provision for interference with the jurisdiction of the Court, so as to comply with Section 14 of the Defence of India Act. In support of this contention the Advocate General relied on Payne, v. Hogg  2 Q. B. 43. In that case under Section 7 of the Selford Hundred Court of Records Act, 1868, it .was provided :-
No defendant shall be permitted to object to the jurisdiction of the Court otherwise than by special plea, and, if the want of jurisdiction be not so pleaded, the Court shall have jurisdiction for all purposes.
74. In an action the defendant had not pleaded that the Court had no jurisdiction. At a later stage the defendant applied for a writ of prohibition on the ground of want of jurisdiction. The Court held that he could not raise that plea because he had not done so by his defence. I do not think that case supports the contention urged by the Advocate General. It was a special rule of pleading enacted by a statute and a failure to comply with the same was held as a bar to raising that question at a later stage. In my opinion this is1 not a case of express exclusion at all. Lord Mansfield in The King v. Frances Abbot (1780) 2 Doug. 553, 555 observed that in order to take away jurisdiction expressly, " express negative words " should be used. This statement is still good law and is accepted as such in Maxwell on Interpretation of Statutes (see p. 117). In considering different decisions which state that the jurisdiction of the superior Courts may be taken away expressly or by necessary implication, it should be remembered that in the present case we are concerned only with the words of Section 14 of the Defence of India Act. We are not concerned with cases where the jurisdiction of the Court can be interfered with by implication. Section 14 of the Defence of India Act does not permit that to be done. An act of the Legislature, permitting implied interference with the jurisdiction of the Court, may be good if the Act was framed within the prescribed powers of legislation. The Order made by the Provincial Government is not a legislative enactment, and the extent of its authority must be found in Rule 81 and Section 2 of the Defence of India Act. It should be noticed that Rule 81 or Sub-clause (bb) does not in terms permit the Provincial Government to interfere in any way with the jurisdiction of Courts. Therefore, by Rule 81 no express authority is given to the Provincial Government to interfere in that way. The opening words of Section 14 are very significant. They are : " Save as otherwise expressly provided by or under this Act the ordinary criminal and civil Courts shall continue to exercise jurisdiction." Therefore, unless some express provision is pointed out in the Defence of India Act, the ordinary civil jurisdiction of the High Court must continue so far as the Act was concerned. When the Defence of India Act expressly permitted interference with the jurisdiction of the Court, it has so provided : see Chap. III. That deals with the creation of special tribunals, provides who can be members thereof, what is their jurisdiction and procedure and the powers and limitations of such tribunals. Section 14 follows immediately after that chapter. It is, therefore, clear what the Legislature meant by the words! of Section 14 of the Defence of India Act. In this connection it is useful to compare the words of Section 3 of the Defence of India Act. It runs in these terms :
Any rule made under Section 2 and any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other foan this Act.
75. It is significant that in Section 3 the Legislature has expressly referred to rules made under Section 2 and Orders made under such rules, both of which are considered capable of overriding the legislative enactments in force. In Section 14 the Legislature has deliberately not referred to a rule or Order made under such rule. Therefore, it seems arguable that what could be covered by the words " under this Act" in Section 14 are only the rules framed under the Act, but not Orders made under such rules, A different construction would permit a subordinate officer under Section 2(5) of the Defence of India Act to oust or interfere with the jurisdiction of the High Court. Under Section 14 that does not appear to 'be contemplated by the Central Legislature. I doubt, therefore, if the Provincial Government is empowered by Section 14 to make an Order so as to interfere with the continued exercise of jurisdiction of civil or criminal Courts. This does not of course limit the powers of the Provincial Government expressly given in Chapter III of the Act. In my opinion, the words " the certificate shall be final" in Clause 12 of the Order do not expressly oust the jurisdiction of the Court. At the most they may be construed to mean an implied interference with the jurisdiction of the Court. Under the circumstances the proviso is invalid.
76. The next contention of the appellant is that if the proviso is bad the rest of cl. 8 of the Order is good. This contention is also supported by the Advocate General. It was argued that as the Provincial Government was authorised to make an Order to prevent unrestricted eviction of tenants, the Courts should therefore: presume that the Provincial Government did consider the conditions contained in the main part of the clause only as sufficient. It was argued that if five conditions are prescribed by a section, and if three of them are held invalid, it is not proper to consider that the remaining two are also invalid. Strickland v, Hayes  1 Q. B. 290 was relied upon in this connection. In that case a by-law was made by the County Council under Section 16 of the Local Government Act, 1888, which ran as under :-
No person shall in any street or public place or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any profane or obscene language." It was held that the by-law was invalid. It was held also that if the words "or on land adjacent thereto" which were clearly too wide, were struck off, it was still unreasonable, because it did not contain any words importing that the act must be done so as to cause annoyance. In my opinion, that case does not help the appellant. The power to make a by-law was considered and the scope of the authority was discussed. It is true that the contention was that if the cest of the by-law could be read grammatically, it might be a good law. The Court had not necessarily to consider that aspect of the case. It was held that even so, the by-law was bad. On the other hand in Shyamkant v. Rambhajan  A.I.R. F. C. 74, 83 Sulaiman J. accepted without hesitation the statement of Griffith C. J. in King v. Commonwealth Court of Conciliation already quoted above. It is also' accepted in Street on Ultra Vires. Applying that test to the clause in question, it is clear that, if the proviso is omitted, it will be making a new law which the Court has no reason to believe the Provincial Government intended to make. ' In fact it will amount to a materially different law, because the only two conditions left in the clause would be that the tenant should pay the rent and observe the conditions of the tenancy. It would prevent the landlord absolutely from recovering the premises for any reason whatsoever, e.g. even if the building was liable to fall down. I think therefore that this construction is unsound. If Clause 8 is thus invalid, Clauses 9 and 12 which are based on the validity of Clause 8 are ineffective. The result, therefore, is that the appellant can get no relief in this litigation.
77. Respondent No. 1 contended that if the proviso was held severable from the clause, the clause itself and the whole Order were ultra vires. In view of our conclusion it is not necessary to decide this point. However, as the question was very, fully argued I shall set out the arguments and briefly record my views in respect of the same.
78. The contention that the Order was ultra vires started with an attack on the validity of the 'Defence of India Act. On behalf of respondent No. 1 it was contended that because the Defence of India Act altered the Transfer of Property Act and the Indian Contract Act and interfered with the jurisdiction of the High Court, the same was ultra vires. Further Section 2(1) of the Defence of India Act was ultra vires because it was vague, indefinite and outside the legislative ambit of the Central Legislature. It was contended that delegation of legislative powers was not permitted by the Government of India Act, 1935. It was pointed out that by Part V of the Constitution Act the legislative powers were distributed between the Federal Government and the Provincial Governments and Schedule VII divided the subjects into three lists. They prescribed separate legislative subjects for the Federal and the Central Governments, and the third list was in respect of the concurrent jurisdiction of those bodies to legislate. Under Section 102 of the Constitution Act, on the proclamation of an emergency by the Governor General, it became open to the Federal Legislature to legislate in respect of. the subjects which were according to the seventh schedule within the exclusive power of the Provincial Government. Apart from that method there was no other way by which a law could be passed under the Constitution Act. In respect of the subjects not covered by the seventh schedule the Governor General had power to pass laws under Section 104. It was, therefore, urged that Section 2(4) (b) and Section 2(5) of the Defence of India Act only permitted the delegation of executive powers, and inasmuch as the Order had the effect of an Act of legislation, the Provincial Government could not make such law. It was contended that Section 2(1) of the Defence of India Act conferred unlimited powers of legislation on the 'Central Government and therefore the Central Legislature had abdicated its functions and effaced itself. Turning to the words of Section 2(1) it was pointed out that the words " as appear to it to be necessary or expedient" are held in Rex v. Haltiday  A.C. 260 as giving to the authority an absolute discretion, and therefore the Central Legislature had effaced itself in favour of the Central Government for making laws. Out of the five objects mentioned in Section 2(1) of the Defence of India Act four objects are not mentioned in the same terms in the seventh schedule and therefore those four objects were outside the legislative powers of the Central Legislature itself. It was contended that if a rule was framed generally, without reference to one of the particular objects mentioned in the seventh schedule, it was not proper to consider that the rule was framed or one of the objects specially mentioned and hold the same valid. In King-Emperor v. Benoari Lall Sarma  F. C. R. 96 the validity of Ordinance II of 1942 issued by the Governor General came to be questioned before the Calcutta High Court. The observations of the majority of the Judges of the Federal Court in respect of the power of delegation were strongly relied upon by respondent No. 1. The whole discussion had portended on the statement of the Advocate General of India in the following terms (p. 126) :-
The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority, or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done ; to the latter no valid objection can be made.
79. The learned Judges further relied on the following observations of Hughes C. J. of the United States in Panama Refining Co. v. Ryan 293 U. Section 388, 421 (p. 130) :-
...the legislative provision which was then assailed as amounting to an improper delegation of powers to the President was defective in that it did not ' state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the State's permission. It establishes no criterion to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress thus declares no policy as to the transportation of the excess production. It gives to the President an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down, as he may see fit ?... The Congress left the matter to the President without standard or rule, to be dealt with as he pleased.
The Congress is not permitted to abdicate, or. to transfer to others, the essential legislative functions with which it is vested. Undoubtedly, legislation must often be adapted to complex conditions involving, a host of details with, which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicability, which will enable it to perform its function in laying dawn policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply." In the judgment the majority of Judges observed that two important results flowed from the character of the British Constitution : (1) That on account of the absolute sovereignty of the Parliament, no question of the constitutional invalidity of 'any parliamentary enactment can ever be raised in a Court of law; and (2) that account of the intimate contact and close co-operation between Parliament and Ministry and the doctrine of the responsibility of the Ministers to Parliament, the objection as to the propriety of delegating legislative functions to the executive government had never been strong in recent times. They further observed (p., 133) :-
It need scarcely be pointed out that in both these respects, the constitutional position in India approximates more closely to the American model than to the English model.
80. In support of the contention that the Defence of India Act is ultra vires counsel further relied on The Initiative and Referendum Act, In re  A.C. 935 and the statement in Halsbury's Laws of England (Hailsham Edition), Vol. XXVI, Article 573, viz. "Powers must be strictly pursued and not exceeded or exercised arbitrarily or delegated."
81. On September 3, 1939, a proclamation was issued by the Governor General declaring an emergency under Section 102 of the Constitution Act. On the same day the Defence of India Ordinance was issued under Section 72 of the previous Government of India Act, which has still continued in force. Under Section 2 of that Ordinance certain rules were also published at the same time. On September 29, 1939, the Defence of India Act was passed and by Section 21 of that Act the Defence of India Ordinance of 1939 was repealed. It was further inter alia provided that the rules made under the said Ordinance shall be deemed to have been made under the said Act as if the said Act had commenced on September 3, 1939.
82. In the present case we are concerned only with the validity of Section 2 of the Defence of India Act. The first material question is whether this point has been decided by the Federal Court. If so, that decision is binding on this Court.
83. In Emperor v. Keshav Talpade (1943) 46 Bom L.R 22, F.C. the Federal Court dealt with the contention that Rule 26 of the Defence of India Rules was ultra vires, the same being outside the rule-making powers conferred by Section 2.(2) (x) of thet Defence of India Act. Sir Maurice Gwyer C. J. considered the scope of Section 2. The "contention that legislation purporting to be with respect to defence of India as such was ultra vires the Central Legislature was negatived, because it was considered to be one of the objects mentioned in Section 2, and it was not necessary to point out to any particular item with the same words in the lists annexed to the seventh schedule. The learned Chief Justice observed as follows (p. 43) :-
The power conferred on the Central Government by Section 2(2) (x) of the Act [we leave and for the moment the more general powers in Sub-section (2)] is to make rules providing for the apprehension and detention in custody of any person reasonably suspected of being of hostile origin....
84. This shows that the Court did not directly pronounce on the validity of the Defence of India Act, Section 2(2), considered the validity of Sub-section (2) and the rule framed under Clause (x) of that Sub-rule. It must be noticed that the rule-making power is contained in Sub-section (I) and not in Sub-section (2) of Section 2. Sub-section (2) says "without prejudice to the ... powers." These words clearly show that Sub-section (2) particularised the subjects on which rules may be framed. The authority to; make rules is to be found in Sub-section (1) only. The opening words of Sub-section (3) also support this contention. The point has been set at rest by the judgment of the Federal Court in King-Emper v. Sibnath Banerjee  F. C. R. 1. "That was an appeal from a decision of the Calcutta High Court. Khundkar J. had read the judgment in Keshav Talpade's case mentioned above as stating that the rules were made by reason of the powers conferred by Section 2(2i)(x). At p. 26 it is observed as follows :-
We may observe in dealing with this part of the case that Khundkar J. says' in his judgment that Rule 26 is a rule under para, (x) of Sub-section (2) of Section 2 [of the1 Defence of India Act and the Federal Court has so held, and that it is not a rule under Sub-section (i) of Section 2.... These observations of the learned Judge are with due respect based upon a misreading of the judgment of this Court in Kesha v Talpade's case. It would not be correct to say that Section 2 of the Defence of India Act confers two kinds of rule-making powers, one under the first Sub-section and the other under the second Sub-section. The rule-making power is conferred under the first Sub-section and all that the second Sub-section does is to set out the conditions under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of powers conferred under the first Sub-section. Any other view would lead to the anomaly that on the subjects enumerated in the paragraphs of Sub-section (2) there might be two sets of rules, one conferring unconditional and unlimited powers by virtue of being framed under Sub-section (i) and the other being subject to restrictions and limitations in conformity with conditions and restrictions prescribed by Sub-section (2), a state of affairs the contemplation of which could not possibly be attributed to the Legislature.
85. It therefore appears to me that the Federal Court has decided that Section 2 of the Defence of India Act is not ultra vires the Central Legislature.
86. If the question were open for consideration, in my opinion, Section 2 is not ultra vires the Central Legislature. The fundamental basis of the whole argument is that the Central Legislature being a subordinate Legislature, unlike Parliament, has limited powers of legislation and therefore the same could not be delegated. This contention is not justified by the authorities. So far back as 1878 in The Queen v. Burah (1878) 3 App. Cas. 889 the power of the Indian Legislature came to be considered. In delivering judgment the Court stated as follows (p. 904) :
But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Acts of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers... But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited ... it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.
87. In a later passage it was observed as follows (p. 900):-
Where plenary powers of legislation exist as to particular subjects, whether in an imperial or a provincial Legislature, they may (in their Lordships' judgment) be well Characterized, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in who it it places confidence, is not an uncommon thing ; and, in many circumstances, it may be highly convenient. The British Statute Book abounds1 with examples of it : and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. It certainly used no words to exclude it.
88. Similar observations are also found in Hodge v. The Queen (1883) 9 App. Cas. 117, 132 Powell v. Apollo Canale Company (1885) 10 App. Cas. 282, 285 Croft v. Dunphy  A.C. 156, 163 and Shannon v. Lower Mainland Dairy Products Board  A.C. 708. The same view is taken by the Courts in Canada. See1 Re. George Edwin Grey 57 s.c. R. 150 and In the matter of a reference as to the validity of an Order of the Controller of Chemicals  1 S.C. R. 1.
89. In Hudson Bay Company v. Mackay (1920) 36 T. L.R. 469 the question of limitation on the powers of legislation came to be considered in respect of the regulation framed by the King-in-Council under the Defence of Realm Act, 1914. There it was observed as'follows (p. 475) :-
What are the boundaries or limits of this legislative territory thus assigned to the King-in-Council ? They must continue only during the continuance of the present war. (2) They must be exercised honestly with the intention of securing the public safety and defence of the realm.
90. It was also held that the Court can inquire into the validity if it could not in any reasonable way aid in securing public safety and the defence of the jfealm. Rex v. Halliday  A.C, 260, 272 Rex v. Comptroller General of Patents : Bayer Products Ld., Ex parte  2 K. B. 308, 317 and Liversidge v. Sir John Anderson  A C. 206, 216 affirm the same position. These authorities clearly show that the Central Legislature having plenary powers, within the limits prescribed by the Constitution Act, has authority to empower the Central Government to make rules, and such action is not considered invalid. They further show that the contention urged on behalf of respondent No. 1 that there can be no delegation or devolution of legislative powers is unsound. The only restriction on such powers is that the Legislature cannot entirely efface itself. In that connection a careful examination of Section 2 of the Defence of India Act shows that the Central Legislature has not done so. The Defence of India Act has prescribed five purposes in Section 2(2) and put further limitations on the powers of the Central Government by the words " as appear to it to be necessary or expedient for securing one of the said purposes." By the1 fact that all those rules are operative for the duration of the war and six months thereafter, a further limit is put on the powers of the Central Government. The question whether the rules framed by the Central Government are within the scope of the section is further' capable of being examined by the Courts, and if on the face of it any rule is found as not falling clearly within the purview of any of the five objects mentioned, it is liable to be held invalid. It has further been held that the five purposes mentioned in Section 2(1) have to be read with the seventh schedule, and so long as the rules fall under any of those heads, they were valid and not outside the powers of the Central Legislature. A similar view of Section 2 was taken by the Allahabad High Court in Emperor v. Meer Singh  All. 617 and by a full bench of the Lahore High Court very recently in Harkishan Das v. Emperor  A.I.R. F. B. Lah. 33.
91. The Initiative and Referendum Act, In re  A.C. 935, on which counsel for respondent No. 1 relied, does not support his contention. In that case the Legislative Assembly of Manitoba passed the Act which compelled the Lieut. Governor to submit a proposed law to a body of voters, totally distinct from the Legislature of which the Lieut. Governor was the constitutional head, and rendered him powerless to prevent it from being law, if approved by those voters. It was obvious that such an Act created a new legislative body which would completely override the existing legislative body and negative the power of assent conferred by the Constitution Act on the Lieut. Governor as representing the King. It is clear that the creation of such a Legislature would be outside4the Constitution Act .itself, and therefore the Act passed by such a body would be ultra vires. The observations in Benoari Loll Surma's case have to be read in the light of the facts of that case. It should be first noticed that the question before the Federal Court was the validity of certain sections of an Ordinance. The powers of the Governor General for issuing an Ordinance for six months in an emergency were contended to be different from those of the Central Legislature, although the effect of the Ordinance was the same as that of an Act. This point is clearly noticed by the Court at p. 93 of the report. It was considered that those factors my not make the observations about the plenary powers of legislation of the Central Government applicable to such Ordinance. The Court expressed its view only in respect of Sections 5, 10 and 16 which created Special Judges, Special Magistrates and Summary Courts. It was noticed that in respect of an individual, or a group, or classes of cases those sections permitted an executive officer to repeal the provisions of the Criminal Procedure Code, which the Ordinance did not' in terms empower anyone to do. The crux of the judgment of the Federal Court in that case is found in the following statement at p, 139 of the report :-
In the present case, it is impossible to deny that the Ordinance-making authority has wholly evaded the responsibility of laying down any rules or conditions or even enunciating the policy with reference to which cases are to be assigned to the ordinary criminal courts and to the Special Courts respectively and left the whole matter to the unguided and uncontrolled action of the executive authorities. This is not a criticism of the policy of the law-as counsel for the Crown would make it appear-but a .complaint that the law has laid down and policy or principle to guide and control the exercise of the undefined powers entrusted to the executive authorities! by Sections 5, 10 and 16 of the Ordinance.
92. It should be noticed that this was not a case under the Defence of India Act.
93. The whole basis of this judgment was the above-quoted admission made by the Advocate General of India. The statement that the American constitution is more akin to the Indian constitution does not appear to be free from doubt. According to the American constitution there are three distinct bodies whose functions are defined by the constitution. They are, first,, the Senate and the House of Representatives ; secondly, the President as representing the executive authority, and, lastly, the Courts. The functions of each of these are in water-tight compartments according to the constitution, and there is no scope for any of these entities asking the other to perform its functions or duties. In Webb v. Outrim  A.C. 81 the Privy Council in dealing with the constitution of Australia had occasion to consider the effect of cases decided by the States of American Union. Their Lordships observed as follows (p. 98) :-
But, as Griffith C. J. himself points out, 'we are not, bound by the decisions of the Supreme Court of the United States,' though, ...those decisions may be regarded as a most welcome aid and assistance' in any analogous case. But here the analogy fails in the very matter which is under debate. No State of the Australian Commonwealth has the power of independent legislation possessed by the States of the American Union. Every Act of the Victorian Council and Assembly requires the assent of the Crown, but when it is assented to, it becomes an Act of Parliament as much as any Imperia.1 Act, though the elements by which it is authorized are different. If, indeed, it were repugnant to: the provisions of any Act of Parliament extending to the Colony, it might be inoperative to the extent of its repugnancy,... but, with this exception, no authority exists by which its validity can be questioned or impeached. The American Union, on the other hand, has erected a tribunal which possesses jurisdiction to annul a statute upon the ground that it is unconstitutional. But in the British Constitution, though sometimes the phrase " unconstitutional " is used to describe a statute which, though within the legal power, of the Legislature to enact, is contrary to the tone and spirit of our institutions, and to condemn the statesmanship which has advised the enactment of such a law, still, notwithstanding such condemnation, the statute in question is the law and must be obeyed. It is obvious that there is no such analogy between the two systems of jurisprudence as the learned Chief Justice suggests.
94. In the footnote at p. 88 reference is made to the address of the late Mr. Justice Field of the Supreme Court of United States on the celebration of its centenary as follows (p. 88 f.b.):-
The power of the Court to pass upon the conformity with the Constitution of an Act of Congress, or of a State, and thus to declare its validity or invalidity, or limit its application, follows from the nature of the Constitution itself, as the supreme law of the laid,- the separation of the three departments of government into legislative, executive and judirfal each independent in its sphere, and the specific restraint upon the exercise of legislative power contained in that instrument....
95. In Cooley's American Constitution, (8th Ed.), Vol. 1, ch. V, at pp. 173 to 176 and 224 to 229, this aspect is emphasized. In Piare Dusadh v. King-Emperor  F. C. R. 61 the Federal Court has noticed this difference in the two constitutions at several places. The Canadian and Australian constitutions are held by the Judicial Committee of the Privy Council to be more similar to the Central Legislature in India, and I think decisions relating to those constitutions may be more usefully followed.
96. It seems to me, therefore, that Section 2 of the Defence of India Act is not ultra vires. The Central Legislature has not effaced itself or abdicated its functions in favour of the Central Government. The power of the Central Legislature to recall and repeal any of the provisions still exists, and if it considers that the powers are abused in certain respects by the Central or Provincial Government, the remedy is still in the hands of the Central Legislature, but not of Courts. The argument that the jurisdiction of the High Court may be interfered with by the Central Legislature or by a rule framed by that Legislature has no substance because under several items in the seventh schedule the Central and the Provincial Legislature have power to interfere in that way.
97. Rule 81 was framed by the Central Government and by virtue of Section 2(5) the Provincial Government is empowered to make an Order under that rule. In matters dealing with the construction of such Act the following observation of the Judicial Committee of the Privy Council in Citizens Insurance Company of Canada v. Parsons (1881) 7 App. Cas, 96 may be usefully noted (p. 109):-
...In performing this difficult duty, [of determining such questions] it will be a wise course for those on whom it is thrown, to decide each case which arises as! best they1 can,, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.
98. It is sufficient to note that the opening words of r., 81 further limit the powers as the words " public safety and maintenance of public order " are omitted out of the purposes mentioned in Section 2 of the Defence of India Act. It may be contended that the words " unreasonable eviction of tenants and sub-tenants " are wide and do not lay down any principle on which the Provincial Government may frame rules. Against that it should be noted that theses words form part of a clause in a sub-rule which open with the words "for regulating and sub-letting...." The sub-rule, therefore, clearly indicates the subject on which the Order has to be made. Rule 81 (2) (bb), with which we are directly concerned in this case, thus appears to be within Section 2(1.) of the Defence of India Act and Items 8 and 10 of List III of Schedule VII of the Constitution Act. This point was not fully argued and therefore I do not propose to say anything more on it.
99. In my opinion the contention that the whole Order is ultra vires is unsound. The object of the Order is covered by one of the purposes mentioned in the first part of Section 81(2) and the express words of Clause (bb) of that sub-rule. It is also well within the wording of Sub-section 2(1) of the Defence of India Act and Schedule VII of the Constitution Act.
100. I concur. The respective cases of the parties appearing in this appeal can be briefly summarised thus : The appellant's case is that the proviso to Clause 8 of the Rent Restriction Order is ultra vires but its validity does not affect the rest of the clause as it is severable from it. Respondent No. 1's case is that the proviso is not invalid, but if it is so, it cannot be severed from the rest of the clause and therefore the whole clause is invalid. In case it is held that the proviso is invalid, it is contended in the alternative that the whole Rent Restriction Order, Rule 81(12) (bb) of the 35efence of India Rules under which it is made, and even Section 2 of the Defence of India Act under which the rule is made, are all ultra vires, with the result that the ordinary law of landlord and tenant would apply. Mr. Setalvad for the Government of India maintains that Section 2 of the Defence of India Act and Rule 81(2) (bb) are valid and he is not concerned with the validity or otherwise of the Rent Restriction Order issued by the Provincial Government. The Advocate General representing the Bombay Government maintains that all the enactments mentioned above are valid, and that if the proviso to Clause 8 is invalid, it does not affect the validity of the rest of the clause.
101. As we have come to the conclusion that the proviso to Clause 8 is ultra vires and that as it cannot be severed from the rest of the clause, the whole clause is ultra vires, independently of the validity or otherwise of Rule 81(2) (bb) and Section 2(1) of the Defence of India Act, 1939, it would not be necessary to decide whether the last mentioned two provisions are invalid, but in deference to the learned and elaborate arguments addressed to us, I may express my concurrence with the reasons given by the learned Chief Justice and Kania J. for holding the view that they are valid. I, therefore, propose to confine my judgment to the reasons for holding that Clause 8 and consequently Clauses 9 and 12 of the Rent Restriction Older to the extent that they are consequential on Clause 8 are ultra, vires.
102. It is common ground that Clause 8 alters the provisions of the Transfer of Property Act, 1882, relating to the rights and obligations of landlords and tenants as also the judicial procedure for enforcing them. The substantive part of the clause leaves it to the civil Court in which the suit is instituted to decide whether the landlord is entitled to recover possession of his premises on the ground that the tenant has not paid the full standard rent due from him or that he has failed to perform the other conditions of tenancy. The proviso, however, not only alters the law but invests the Controller appointed under the Rent Restriction Order with the authority to decide certain matters mentioned if it and to give a certificate if he decides any of them in the land- lord's favour. This certificate, subject to any decision by the Collector on appeal against it, is final in the sense that if it is produced in the Court where the suit is pending, it must accept it and pass a decree in the landlord's favour without any further evidence even though the tenant has not committed any breach of the conditions of tenancy. It is apparent that but for the investment of this power in the Controller, it was the civil Court's function and obligation to decide judiciary all those matters in the suit pending before it because they pertained to the jurisdiction off the Court to administer the law for the time being in force, viz. the Transfer of Property Act. The Controller is thus empowered under the proviso to decide finally legal matters in a non-judicial manner which would have been, but for the! proviso, decided judicially by the Court. The Controller is an officer appointed under Section 1(5) of the Defence of India Act and he discharges by delegation the power conferred on the Premncial Government by the. Central Government. These powers can, in my opinion, be only administrative or at the most quasi-judicial in their nature : Irving v. Patterson  1 A. E. R. 652. He is not a tribunal of the nature created under Chapter III of the Defence of India Act. It has under Section 12 all the powers of a Court of Session and its decisions are appealable to the High Court. It is a substitute for ordinary criminal Courts and it judicially administers the whole law gaverning the trial before it. Its creation as a substitute Court is made under the express provisions of Chapter III and because of it the jurisdiction of the ordinary Courts is ousted by the terms of Section 14 of the Act. The Controller, however, is not a judicial authority and the proceedings before him are not governed by the Civil Procedure Code. He is appointed by the Provincial Government under its power to provide by order for regulating the letting and sub-letting of any accommodation and in particular for preventing the unreasonable eviction of tenants and sub-tenants from such accommodation. It is not disputed that the Provincial Government can, under Section 3, make any provision in such an order which may be inconsistent with any enactment. In other words, it would be open to the Provincial Government to alter the provisions of an Act of Legislature for that particular purpose, but the alteration of law authorised by Section 3 is quite different from the taking away of the jurisdiction of a civil Court to administer the ordinary as well as the altered law. Such ouster of jurisdiction can take place only as provided in Section 14 of the Act, viz. by an express provision by or under the Act. The Act itself does not expressly exclude the jurisdiction of the civil Courts adjudicating upon all questions arising in a suit. I do not feel quite certain whether the Legislature intended that such an express provision could be made under the Defence of India Rules, or in any case, by the Provincial Government under an order promulgated under the said rules, but even if it could be made, in my opinion, no such express provision has been made in the Order, and so long as the jurisdiction is not thus expressly taken away by the appropriate authority, the appointment of a Controller to perform the Court's function would be ultra vires. Such appropriate authority would, in the first instance, be the Central Legislature and probably the Central Government under the powers given under the Act But the Provincial Government under the powers derived from the rules and not from the Act cannot, in my opinion, deprive the Courts of their jurisdiction to administer the law for the time being in force without the express sanction of the Legislature, I doubt very much whether the word " under " in Section 14 includes the Order promulgated not directly under the Act but by a Provincial Government under the rules framed under the Act. If the word " under " goes further than the rules under the Act, I do not see why an officer or authority who exercises the power conferred by a Provincial Government under Section 2(5) of the Act may not as well issue an order ousting the jurisdiction of the Courts. That could hardly have been the intention of the Legislature as such officer exercises only administrative functions.
103. The general principle that express words are necessary to empower a derivative authority to oust the jurisdiction of the Court is well established, and a recent decision of the House of Lords in R. & W. Paul Ld. v. The Wheat Commission  A.C. 139 affirms that principle on facts which have some resemblance to those in the present case. In that case the Wheat Commission (was empowered to make by-laws for giving effect to the provisions of the Wheat Act providing, among other things,, for the final determination of disputes arising as to such matters as may be specified in the by-laws. A bylaw provided, among other things, that a dispute as to whether any substance is flour should be referred to arbitration and the Arbitration Act shall not apply. It was held that the by-law was Ultra vires because in absence of a power to oust the jurisdiction of Court granted by express words, the authority making the by-law cannot take away the jurisdiction by enacting that the Arbitration Act shall not apply. Similarly in Chester v. Bateson  X K. B. 829 where the question was whether a regulation in the Defence of the Realm Regulations was ultra vires as it provided that no person shall take any proceedings for ejectment of certain tenants without the consent of the Minister of Munitions, it was held that it was ultra vires because the regulation as framed forbade the owner access to all legal tribunals in regard to that matter and that the regulation might have been good if it left the question to be decided by a Court of law. The learned Advocate General relied on a decision of their Lordships of the Privy Council in Secretary of State v. Mask & Co.  L.R. S7 I. A. 222 : s.c. 42 Bom. L.R. 757. But there the question was whether the subject's right to approach the civil Court to entertain a challenge on the merits of a decision under Sections 188 and 191 of the Sea Customs Act, 1878, was excluded by the declared finality of the decision of the Assistant Collector and appeals therefrom. In the present case, however, the challenge is against the Provincial Government's authority under the Defence of India Act to appoint a Controller for deciding matters within the civil Court's jurisdiction which cannot be taken away except by express provisions made by an appropriate authority.
104. I need not refer in detail to the other authorities relied on by the learned Advocate General, because the tribunals there created were either administrative in their functions or were created as a part of a new and complete Code under express legislation. In the present case, the Controller is not a tribunal of that nature.
105. If the proviso in Clause 8 is ultra vires, as I think it is, the rest of the clause is also ultra vires because they cannot be severed without frustrating the intention of the authority promulgating the Rent Restriction Order. They must stand or fall together. I need only cite for that purpose the decision of the Federal Court in Subramanyan v Muttuswami  A.I.R. F. C. 47 where the point is fully discussed. If Clause 8 is Ultra vires, Clauses 9 and 12 in so far as they relate to the Controller's functions under Clause 8 must also be regarded as ultra vires.
106. Per curiam. The appeal is dismissed. The appellant to vacate the premises on or before July 6, 19144, conditional on his paying compensation for use and occupation at Rs. 650 a month from March 1, 1943, up to March 31, 1944, within a fortnight. The appellant to pay compensation at the same rate at the end of each month till possession is given.
107. No order of the costs of this appeal. The order of costs made by the trial Court in respect of the costs of the suit is confirmed.
108. On the application of the appellant the Court has considered the question of granting a certificate under Section 205 of the Constitution Act. The application to grant such certificate is rejected.