Murlidhar Agarwal & ANR Vs. State of
U.P. & Ors  INSC 128 (26 July 1974)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
RAY, A.N. (CJ)
CITATION: 1974 AIR 1924 1975 SCR (1) 575 1974
SCC (2) 472
CITATOR INFO :
MV 1975 SC 865 (60) RF 1975 SC1525 (8) R 1983
SC1239 (12) RF 1984 SC 74 (21) RF 1986 SC1194 (10,12) D 1987 SC 925 (13) R 1987
Constitution of India, 1950--Article
226--Powers of High Court to interfere with revisional orders passed by State
Government under s. 7F of U.P. Temporary Control of Rent and Eviction Act,
Public Policy--U.P. (Temporary) Control of
Rent and Eviction Act, 1947 s. 3(1)--Suit for eviction to be instituted with
permission of District Magistrate--Whether tenant can waive the requirement of
U. P. (Temporary) Control of Rent and
Eviction Act. 1947-Powers of the High Court under writ jurisdiction to
interfere with the revisional order passed by the State Government under
section 7F of the Act.
The Additional District Magistrate passed an
order for eviction against tenant on an application by the landlord under
Section 7A of the Act. On revision, the Additional Commissioner confirmed the
order of eviction. The State Government in exercise of its revisional powers
under section 7F set aside the orders passed by the two authorities and held
that the tenant was not liable to be evicted from the Premises. The State
Government passed the order on the basis that the tenant was running a cinema
in the premises since the year 1952 and that the District.
Magistrate when he granted the licence was
satisfied that the tenant was in lawful occupation and that, therefore, the
tenant was entitled to the benefit of proviso to section 7A (1) of the Act. On
writ petition filed, the Learned Single Judge of the High Court quashed the
order of the State Government. The Division Bench of the High Court reversed
the order of the Learned Single Judge.
The landlord instituted a suit against the
tenant for eviction without obtaining the permission of the District Magistrate
under section 3(1) of the Act. The landlord relied on one of the clauses in the
lease deed which provided that the parties agreed that they would not claim the
benefit of the Rent Control and Eviction Act and that the provisions of the
said Act were agreed not to be applicable to the said lease. The High Court
held that the suit was not maintainable in view of Section (3)(1) of the Act.
Dismissing the appeals,
HELD : The High Court was right in holding
that section 3 was applicable and therefore, the suit was not maintainable.
[585C-D] (1) Having regard to the definition
of tenant in section 2(g) and the scheme of the Act a person is a 'tenant'
under section 3 even though he is occupying the accommodation without an
allotment order. [580G-H] Udho Dass v. Prem Prakash, (2) (1963) A. L. J. 406,
(2) The language of section 3(1) is
imperative and it prohibits the institution of the suit without the permission
of the District Magistrate. The policy of the Act-, seems to be that a
responsible authority like District Magistrate should consider the claim of the
landlord and needs of the tenant before granting permission The. object of the
Act was to protect tenants from greedy and grasping landlords and.
from their resorting to court for eviction of
tenants without reasonable grounds. There can be no doubt that the provision
has been enacted for protecting one set of men from another set of men. The one
from their situation and condition are: liable to be oppressed and imposed
Though there is considerable support in
judicial dicta for the view that courts cannot create new heads of public
policy there is also no lack of judicial authority for the view that the
categories of heads of public policy are not closed. Public policy does not
remain static in any given community. Public policy would be almost useless if
it were to remain in fixed moulds for all times. Our law relies on the implied
insight of the judge on such matters. Section 3 is based on public policy. It
is intended to protect a 576 weaker section of the community with a view to
ultimately protecting the interests -of the community in general by creating
equality of bargaining power. The tenant could not have waived the benefit of
the provision. [581 E-F; 582 G;
584BGG-585C] Lachoo Mal v. Radhey Shyam
 3 S. C. R. 693, Gheralal Parakh v. Mahadeodas Maiya Das  Supp. 2
S.C.R. 406, 440., referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 2370 of 1969 Appeal from the judgement and order dated the 22nd May, 1969
of the Allahabad High Court in Spl. Appeal No. 343 of 1968.
Civil Appeal No 583 of 1971 Appeal from the
Judgement & order dated the 28th October, 1970 .of the Allahabad High Court
in First Appeal No. 82 of 1970.
S. V. Gupte, J. P. Goyal and S. M. Jain, for
the appellants (in both, the appeals) R. K. Garg, S. C. Aggarwal, S. S.
Bhatnagar and V. J.
Francis, for the respondent (in C. A. No.
583/71) N. Dixit and O. P. Rana, for the respondent Nos. 1,3 and 4.
Civil Appeal No. 2370 of 1969 The Judgment of
the Court was delivered by MATHEW J. The appellants filed a petition under
Article 226 of the Constitution before the High Court of Allahabad praying that
the order passed by the State Government on October 20, 1967, allowing a
revision filed by the respondent be quashed and possession of the premises in
question be given to them under s. 7-A of the U. P.
(Temporary) Control of Rent and Eviction Act,
1947 (hereinafter ,called the Act).
The original owner of the premises was one
Ram Swaroop Gupta. He leased the premises to M/s Pioneer Exhibitors and
Distributors Limited. They used the premises for exhibiting cinema. That lease
terminated by efflux of time on June 30, 1952. Gupta, thereafter, leased the
premises by a deed dated October 13, 1952 for a period of 10 years to Ram Agyan
Singh, respondent No. 2. But there was no order allotting the accommodation to
him under S. 7(2) of the Act.
Respondent No. 2 also used the premises for
exhibiting cinematography films. Disputes having arisen between the parties,
Gupta filed suits for recovery of rent as well as for ejectment against
respondent No. 2. The appellants purchased the premises in question from Ram
Swaroop Gupta by a sale deed dated March, 26, 1962. Thereafter they filed an
application under s. 7 of the Act read with rule 6 made under the Act for
release of the accommodation in their favour. On December 3, 1965, the
Additional District Magistrate allowed the application and permitted the
appellants to take possession of the premises. That was on the basis that the
premises were in illegal occupation of respondent No. 2. The representation
against this order filed by respondent No. 2 to the State 577 Government was
rejected on January 10, 1966 on the ground that there was no provision for any
interference by Government with the order. On December 4, 1965, the appellants
filed an application for eviction of respondent No. 2 under s. 7-A of the Act.
On June 18, 1966, the Additional )District Magistrate directed issue of notice
under clause (2) of s. 7-A, why respondent No. 2 should not be evicted.
Thereafter, the Additional District Magistrate passed the order for eviction.
Respondent No. 2 went up in revision against the order to the Additional
He confirmed the cider of the Additional
District Magistrate. Respondent No. 2, thereafter, filed an application for
revision under s. 7-F of the Act before the State Government against the order.
The State Government allowed that application on October 20, 1967 holding that
respondent No. 2 was not liable to be evicted from the premises. On January 20,
1968, the State Government communicated to the parties a summary of the reasons
on the basis of which the order had been passed. That in effect said that the
respondent was running a cinema under a licence in the premises from 1952, that
the District Magistrate, when he granted the licence, was satisfied that
respondent No. 2 was in lawful occupation and that, in these circumstances, he
was entitled to the benefit of the proviso to s. 7-A(1) of the Act and was not
liable to be evicted from the premises.
It was to quash this order that the
appellants filed the writ petition before the High Court.
A learned Single Judge of the Court quashed
the order. Respondent No. 2 filed an appeal against the order. The division
Bench reversed the order of the learned Single Judge. It is against this order
that this appeal has been filed on the basis of a certificate granted under
Article 133(1)(b) of the Constitution.
The division Bench was of the view that the
learned Single Judge was not justified in interfering with the order passed by
the State Government udder s. 7-F of the Act inasmuch as the order of the State
Government did not suffer from any infirmity either on the ground that it had
no jurisdiction to pass the order or for the reason that there was an error of
law apparent on the face of the record.
The material provision in s. 7-A of the Act
provides "S. 7-A. District Magistrates' power to take action against
unauthorised occupation-(1) Where in pursuance of the order of the District
Magistrate under sub-section (2) of Section 7 the vacancy of any accommodation
is required to be reported and is not reported, or where an order requiring any
accommodation to be let or not to be let has been duly passed under
sub-section(2) of Section 7 and the District Magistrate believes or has reason
to believe that any person has in contravention of the said order, occupied the
accommodation or any part thereof, he may call upon the, person in occupation
to show cause, within a time to be fixed by him, why he should not be evicted
578 Provided that no order under this section
shall be passed if the District Magistrate is satisfied that there has been
undue delay or it is otherwise inexpedient to-do so" The proviso to
sub-section (1) of s. 7-A is couched in wide language. The dictionary meaning
of the word 'inexpedient' is:
"Not expedient; disadvantageous in the
circumstances; unadvisable, impolitic." The circumstances that could be
taken into consideration to decide whether it is expedient or inexpedient to
order an eviction under the section are not mentioned in the proviso.
A great deal of discretion must, therefore,
be vested in the District Magistrate and in the State Government when disposing
a revision from an order passed by the District Magistrate as several factors
would enter the making of the verdict whether it is inexpedient to pass an
order of ,eviction under the section. In this case, the State Government has
taken into account two reasons for exercising its discretion under the proviso
in favour of respondent No.
2: (1) that respondent No. 2 was in
possession from 1953 onwards and was conducting a cinema in the premises after
obtaining a licence from the District Magistrate under the U. P. Cinema
Regulation Act; (2) that the District Magistrate when granting the licence to
conduct the cinema must have been satisfied that the respondent was in lawful
occupation of the premises. In other words, what in substance the State
Government said was, that respondent 'No. 2 has been using the premises for
conducting cinema from 1953 on the basis of his possession of the premises and
that it would be inexpedient to evict him at this stage. We cannot say that the
circumstances taken into account are irrelevant for the exercise of the discretion.
Mr. Gupte, appearing for the appellants, said
that when the Additional District Magistrate passed the order for release on
the basis that the appellants require the premises bona fide for their personal
occupation, the State Government, in the exercise of its revisional
jurisdiction under s. 7-F against the order of eviction under s. 7-A ,should
not have nullified the effect of the order of release by exercising its
discretion under the proviso to s. 7-A against the appellants. He also said
that the State Government did not even refer to the order for release which
would show that it made no assessment of the hardship to the landlords.
The fact that an order for release was passed
by the Additional District Magistrate on the basis that the premises were bona
fide required by the appellants for their personal occupation did not preclude
him, when he was moved by the appellants to evict respondent no. 2 from
exercising his discretion under the proviso to s. 7-A. For it is at that stage
that the respondent will have the opportunity to urge the circumstances which
make it inexpedient to evict him. In other words, the only relevant question at
the time when the order (1) See Shorter oxford English Dictionary, Illustrated,
VoI. 1, 3rd ed., (1964), p. 997.
579 of release was passed was whether the
appellants required the premises bona fide for their occupation. The
controversy was limited at that stage to that question. The circumstances which
would make the passing of an order of eviction in expedient under s.7-A could
not have been urged at that time by respondent No. 2. So, the inference that
the State Government was not aware of the order for release on the ground that
the appellants required the promises for their personal occupation could not be
made from the fact that the State Government found that it was inexpedient to
order the eviction of the second respondent in the exercise of its discretion
under the proviso to s. 7-A when disposing of a revision.
We are not satisfied that the order of the
State Government was vitiated by any error of law apparent on the face of the
record. As already stated, the considerations which weighed with the State
Government in rejecting the application, namely, the hardship to respondent No.
2 who was conducting a cinema in the premises from 1953 cannot be said to be
irrelevant. As the order of the State Government did not suffer from any error
of law apparent on the face of the record, the learned Single Judge was not
justified in quashing the order and the Division Bench rightly set aside the
order of the learned Single Judge and allowed the appeal.
We dismiss the appeal but, in the
circumstances, make no order as to costs.
Civil Appeal No. 583 of 1971 In this appeal,
by certificate, we are concerned with the question whether the suit filed by
the appellants for recovery of Possession of the premises which is the subject
matter of Civil Appeal NO. 2370 of 1969, on the basis that the tenancy created
by Ram Swaroop Gupta, the predecessor-in-interest of the appellants, in favour
of Ram Agyan Singh, the respondent, had expired and, therefore, the appellants
were entitled to recover possession of the same, was maintainable in law in
view of the fact that it was instituted without obtaining the permission of the
District Magistrate under s. 3(1) of the U. P. (Temporary) Control of Rent and
Eviction Act, 1947 (hereinafter called the Act).
The trial court held that although the
respondent was a tenant against whom the suit cannot be filed without the
previous permission as visualised by s. 3 of the Act, yet he cannot claim the
benefit of s. 3 on account of clause 20 of the lease deed and decreed the suit.
On appeal by the respondent, the High Court
reversed the decree, holding that the suit was not maintainable in view of s.
3, and dismissed the suit. It is from this decree that this appeal has been
The two questions which arise in this appeal
are: (1) whether the High Court was right in holding that s. 3 was applicable
and, therefore, the suit was not maintainable;
and (2) whether clause 20 of the lease deed
was a bar to the respondent from claiming that' the provisions of s. 3 were
580 Section 3(1) insofar as it is material,
provides, "3. Restriction on eviction--(1) Subject to any order passed
under sub-section (3) no suit shall, without the permission of the District
Magistrate, be filed in any Civil Court against a tenant for his eviction from
any accommodation except on one or more of the following grounds:-" The
lease deed in question was executed after the commencement of the Act and the
respondent did not obtain an allotment under S. 7(2) of the Act in his favour
from the District Magistrate. It was, therefore, contended on behalf of the
appellants that the respondent was not a tenant within the meaning of that term
in s. 3 as the lease was created in violation of the provision of s. 7(2).
In Udho Dass v. Prem Prakash(1) a Full Bench
of the Allahabad High Court took the view that a lease made in violation of the
provisions of s. 7(2) would be valid between the parties and would create the
relationship of landlord and tenant between them although it might not bind the
authorities concerned. In the light of this ruling the correctness of which we
see no reason to doubt-we think that the respondent was a tenant. The respondent
had been paying the rent to Ram Swaroop Gupta and to the appellants after the
sale by him to the appellants. "Tenant" is defined under s. 2(g) of
the Act as follows:
"2(g) 'Tenant' means the person by whom
rent is, or but for a contract express or implied, would be payable for any
Now, the landlord and the tenant cannot, by
their agreement, bind the District Magistrate. In spite of the lease, the
District Magistrate may treat the accommodation as vacant and evict there from
the tenant who is in occupation of the accommodation without an allotment
order. This is his statutory obligation. But the appellants would be estopped
from denying that the respondent is a tenant. The Act makes a distinction
between a tenant by virtue of an allotment order and a tenant otherwise than by
virtue of an allotment order. In most of the sections of the Act the word
tenant' alone is used. If the word 'tenant' in s. 3 is construed as
"tenant under an allotment order", then the tenants who have been occupying
an accommodation without an allotment order will be deprived of several
material privileges conferred upon them by the Act. Having regard to the
definition clause and the scheme of the Act, we are of opinion that the
respondent is a tenant under s. 3 even though EC is occupying the accommodation
without an allotment order,. It follows that the respondent would get the
protection under S. 3 and that the appellants' suit was, therefore, liable to
be dismissed as it was found that it was instituted without the permission of
the District Magistrate.
(1) (1963) A.L.J. 406.
581 We now turn to the other question, viz.,
whether under clause 20 of the lease deed, the respondent was precluded from
contending, that the suit was not maintainable even though it was instituted
without the permission of the District Magistrate. Clause 20 of the deed
"That this agreement of lease has been
made between the parties with the knowledge of the existing Rent Control and
Eviction Act. The parties do hereby agree and declare that no party will ever
claim the benefit of the said Acts and that the provisions of the said Acts
have been agreed by mutual consent to be inapplicable to this deed." The
question for consideration is whether this clause is illegal. Clause 20 contains
two provisions. The first provision is that the parties will never claim the
benefit of the Act. The second provision is that the provisions of the Act will
be inapplicable to the lease deed. The High Court has taken the view that
clause 20 is illegal, and therefore, the respondent was not precluded from
contending that the suit was not maintainable.
The Act was passed interalia to prevent the
eviction of' tenants from their accommodations. The language of s. 3 (1) is
imperative and it prohibits the institution of the suit without the permission,
If any landlord institutes a suit for eviction of the tenant without the
permission of the District Magistrate, he commits an offence and is punishable
Linder s. 15 of the Act. The object of s. 3 is to give protection to a tenant
from eviction from an accommodation.
The policy of the Act seems to be that a
responsible authority like the District Magistrate should consider the claim of
the landlord and the needs of the tenant before granting permission. There was
alarming scarcity of accommodation. The object of legislature in enacting the
law was to protect tenants from greedy and grasping landlords, and from their
resorting to court for eviction of tenants without reasonable grounds.
Under s. 23 of the Indian Contract Act, 1872,
an agreement is void if it defeats any provision of law:
"S. 23. The consideration or object of
an agreement is lawful, unless-it is forbidden by law; or is of such a nature,
that, if permitted, it would defeat the provisions of any law, or is
fraudulent; or involves or implies injury to the person or property of another;
or the Court regards it Lis immoral, or opposed to public policy.
In each of these cases, the consideration or
object of an agreement is said to be unlawful. Every agreement of which the
object or consideration is unlawful is void." Mr. Gupte, appearing for the
appellants, referred to the decision of this Court in Lachoo 'Mal v. Radhey
Shyam(1) and said that (1)  3 S.C.R.693.
M185 Sup. CI/75 582 it was open Lo the
respondent to waive the benefit of the provision of s. 3 as it was enacted for
the benefit of tenants and that no question of public policy is involved.
In that case this Court was considering the
question whether it was open to a landlord to waive the benefit of a provision
enacted for the benefit of landlords under the Rent Control Act. This Court
said that if a provision is enacted for the benefit of a person or class of
persons, there was nothing which precludes him or them from contracting to
waive the benefit, provided that no question of public policy was involved.
"If the object of a statute is not one
of general policy, or if the thing which is being done will benefit only a
particular person or class of persons, then the conditions prescribed by the
statute are not considered as being indispensable. This rule is expressed by
the maxim of law, quilibet potest renuntiare juri pro se introducto. As a
general rule, the conditions imposed by statutes which authorise legal
proceedings are treated as being indispensable to giving the court
jurisdiction. But if it appears that the statutory conditions were inserted by
the legislature simply for the security or benefit of the parties to the action
themselves, and that no public interests are involved, such conditions will not
be considered as indispensable, and either party may waive them without
affecting the jurisdiction of the court .... "(1) Maxwell states the rule
of law as follows:
"Another maxim which sanctions the nonobservance
of a statutory provision is that culibet licet renuntiare juri pro se introduce
to. Everyone has a right to waive and to agree to waive the advantage of a law
or rule made solely for the benefit and protection of the individual in his
private capacity, which may be dispensed with without infringing any public
right or public policy.
Where in an Act there is no express
prohibition against contracting out of it, it is necessary to consider whether
the Act is one which is intended to deal with private rights only or whether it
is an Act which is intended, as a matter of public policy, o have a more
extensive operation...... (2).
So, the question is, whether s. 3 was enacted
only for the benefit of tenants or whether there is a public policy underlying
It which precludes a tenant from waiving its benefit. There can be no doubt
that the provision has been enacted for protecting one set of men from another
set of men, the one from their situation and condition are liable to be
oppressed and imposed upon. Necessitous men are not free men.
In the Nineteenth-Century the doctrines of
laissex faire capitalism were accepted as part of the natural order of things
and the doctrine was reinforced by the idea of the early utilitarians that to
achieve social justice, it would suffice to produce formal equality before the
(1) See Craies on Statute Law, 7th ad,. pp. 269-270.
(2) See "Interpretation of
Statutes", 11th ed., (1962), pp.
583 law. These views were reflected in contemporary
legal thought by the idea that freedom of contract was the supreme article of
public policy, a notion which ignored utterly those cases where there was no
genuine equality of bargaining power as for example between master and servant
or between landlord and tenant.(1) There can be no doubt about the policy of
the law, namely, the protection of a weaker class in the community from
harassment of frivolous suits. But the question is there a public policy behind
it which precludes a tenant from waiving it? The expression 'public policy' has
air entirely different meaning from 'policy of the law' and one much more
extensiVe(2). Nevertheless, the term 'public policy is used by the House of
Lords itself apparently as synonymous with the policy of the law or the policy
of a statute [see Hollinishead v. Hazleton(3). Yet it is clearly so used
without intent to repudiate or disregard the distinction so clearly drawn in
Egerton v. Brownlow. It seems clear that the conception of public policy is not
only now quite distinct from that of the policy of law but has in fact always
been so except in some exceptional instances of confusion which have had no
Substantial effect on the general course of authority(4).
The Courts have often repeated Mr. Justice
Burrrough's metaphor about public policy being an unruly horse. Some judges
appear to have thought it more like a tiger and have refused to mount it at
all, perhaps because they feared the fate of the young lady of Riga. Others
have regarded it like Balaam's ass which would carry its rider nowhere. But
none, at any rate at the present day, has looked upon it as a Pegasus that
might soar beyond the momentary needs of the community. There is nothing
remarkable in this because the topic itself is so elusive(5).
"Public Policy" has been defined by
Winfield as "a principle of judicial legislation or interpretation founded
on the current needs of the community"(5). Now, this would show that the
interests of the whole public must be taken into account; but it leads in
practice to the paradox that in many cases what seems to be in contemplation is
the interest of one section only of the public, and a small section at that.
The explanation of the paradex is that The courts must certainly weigh the
interests of the whole community as well as the interests of a considerable
section of it, such as tenants, for instances as a class as in this case. If
the decision is in their favour, it means no more than that there is nothing in
their conduct which is prejudicial to the nation as a whole.Nor is the benefit
of the whole community always a mere tacit consideration. The courts may have
to strike. a (1) See Dennts Lloyd, "Public Policy" (1953), pp.
(2) See Eserton v. Brownlow, 4 H.L.C. p. 105.
(3)  1 A.C. 428.
(4) see W.S.M. Knight, "Public Policy in
English Law", 38, Law Quarterly Rev., 207, at pp. 217-218.
(5)see Percy H. Winfield, "Public Policy
in English Common Law". Harvard Law Rev. 76.
584 balance in express terms between
community interests and rectorial interests. So, here we are concerned with the
general freedom of contract which everyone possesses as against the principle
that this freedom shall not be used to subject a class, to the harassment of
suits without valid or reasonable grounds. Though there is considerable support
in judicial dicta for the view that courts cannot create new heads of public
policy,(1) there is also no lack of judicial authority for the view that the
categories of heads of public policy are not closed and that there remains a
broad field within which courts can apply a variable notion of policy as a
principle of judicial legislation or inter predation founded on the current
needs of the community (2).
Public policy does not remain static in any
It may vary from generation to generation and
even in the same generation. Public policy would be almost useless if it were
to remain in fixed moulds for all time.
If it is variable, if it depends on the
welfare of the community at any given time, how are the courts to ascertain it
? The judges are more to be trusted as interpreters of the law than as
expounders of public policy. However, there is no alternative under our system
but to vest this power with judges. The difficulty of discovering what public
policy is at any given moment certainly does not absolve the judges from the
duty of doing so. In conducting an enquiry, as already stated, judges are not
bide-bound by precedent.
The judges must look beyond the narrow field
of past precedents, though this still eaves open the question, 'a which
direction. They must cast their gaze. The judges are to base their decision on
the opinions of men of the world, as distinguished from opinions based on legal
learning. In other words, the judges will have to look beyond the jurisprudence
and that in so doing, they must consult not their own personal standards or
predilections but those of the dominant opinion at a given moment, or what has
been termed customary morality. The judge must consider the social consequences
of the rules propounded, especially in the light of the factual evidence
available as to its probable results. of course, it is not to be expected that
men of the world are to be subpoenaed as expert witnesses in the trial of every
action raising a question of public policy. It is not open to the judges to
make a sort of referendum or hear evidence or conduct an inquiry as to the
prevailing moral concept. Such an extended extra, judicial enquiry is wholly
outside the tradition of courts where the tendency is to 'trust the judge to be
a typical representative of his day and generation'. Our law relies, on the
implied insight of the judge on such matters. It is the judges themselves,
assisted by the bar, who here re-present the highest common factor of public
sentiment and intelligence (3). No doubt, there is no assurance that judges
(1)See Gherulal Parakh v. Mahadeodas Maiya & ors.  Supp. [2, SCR.
406,440.] (2) See Dennis Lloyd, "Public Policy" (1953), pp. 112-113.
(3) see Percy H. Winfield, "Public
Policy in English Common Law", 42 Harward Law Rev. 76 and also, Dennis
Lloyd, "PublicPolicy" (1953), pp. 124-125.
585 will interpret the mortes of their day
more wisely and truly than other men. But this is beside the point. The point
is rather that this power must be lodged somewhere and under our Constitution
and laws, 'It has been lodged in the judges and if they have to fulfil their
function as judges, it could hardly be lodged elsewhere(1).
We think that s. 3 is based on public policy.
As we said, it is intended to protect a weaker section of the community with a
view to ultimately protecting the interest of the community in general by
creating equality of bargaining power. Although the ection is primarily
intended for the protection of tenants only, that protection is based on public
policy. The respondent could not have waived the benefit of the provision.
The language of the section as already
stated, is prohibitive in character. It precludes a court from entertaining the
suit. We think the High Court was right in its conclusion.
We dismiss the appeal with costs.
P. H. Appeal dismissed.