Gauri Shanker
Vs. Union of India [1994] INSC 459 (8 September 1994)
Paripoornan,
K.S.(J) Paripoornan, K.S.(J) Venkatachalliah, M.N.(Cj) Verma, Jagdish Saran (J)
CITATION:
1995 AIR 55 1994 SCC (6) 349 JT 1994 (5) 634 1994 SCALE (4)29
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by PARIPOORNAN, J.- In this batch of cases
a common question arises for consideration. The petitioners in the different
petitions are the legal heirs of 16 statutory tenants" of residential
premises under the Delhi Rent Control Act, 1958, Act 59 of 1958 (hereinafter
called 'the Act'). They assail Section 2 sub-section (1) clause (iii) of the
Act, as introduced by Act 18 of 1976 with retrospective affect as ultra vires
and violative of Articles 14 and 21 of the Constitution of India. The
respondents are Union of India, the Delhi Administration and the landlords of
the respective premises.
2.
Writ Petition (Civil) No. 1089 of 1987 is the main case. We will state a few
facts of this case in order to understand the scope of the controversy raised
in this batch of petitions. There are 6 petitioners in the writ petition.
The
petitioners' father obtained the rental of the residential premises bearing
Municipal No. 1331, First Floor, Baidwara, Maliwara, Delhi-6, on a monthly rental
of Rs 40 sometime in the year 1940. The father died on 17-11- 1969. Thereafter,
the third respondent herein, the owner of the premises filed a suit for
possession of the premises against the petitioners and their mother, Suit No.
116 of 1970. It was alleged that the tenancy was terminated by notice dated 28-7-1969 which expired on 3-9-1969. He claimed that since the
statutory tenancy was not heritable, he was entitled to a decree for
possession. The suit was decreed by the trial court on 11-2-1974. It held that the statutory tenancy was not
heritable. The appeal filed by the petitioners before the Additional District
Judge was futile. The petitioners have filed Second Appeal No. 135 of 1975 in
the Delhi High Court and it is still pending. It is the plea of the petitioners
that they being the heirs of the statutory tenant are entitled to the
protection of the Act.
According
to the petitioners the provisions of the Act do not make any distinction
between a "contractual tenant" and a "statutory tenant" and
both are treated alike. The rule of heritability extends to statutory tenancy
also. The decisions of this Court in Damadilal v. Parashram1 and Gian Devi Anand
v. Jeevan Kumar2 have held that the rule of heritability extends to statutory
tenancy, whether it is residential or commercial, and the same rule will apply
in other States where there is no explicit provision to the contrary. This was
held to be the position in law under Section 2(1) of the Act, even before its
amendment of the said provision by the introduction of sub-clause (iii). The
new sub-clause (iii) of Section 2(1) is not inconsistent with the earlier
position and all that sub-clause (iii) to Section 2(1) has done is to restrict
the rights insofar as residential premises are concerned. Since the incidents
of a contractual 1 (1976) 4 SCC 855 2 (1985) 2 SCC 683 352 tenancy and a
statutory tenancy are the same regarding the heritability, the (new) provisions
of Section 2(1)(iii) of the Act which seek to limit or abridge the rights of
the heirs insofar as the residential premises are concerned, are discriminatory
and violative of Article 14 of the Constitution of India. It is contended that
Section 2(1)(iii) of the Act, insofar as it limits or restricts the rights of
the heirs of residential premises in the manner and to the extent provided in
the said section, is violative of Article 14 of the Constitution of India.
3. In
Writ Petition No. 575 of 1988, the petitioner claims to be the heir of one Shri
Chhunnu Lal, a statutory tenant under the Act, in respect of the Premises 42-B,
Connaught Place, New Delhi under Respondents 1 and 2 who have filed a suit for
possession. The suit is pending. The petitioner attacks Section 2(1)(iii) of
the Act as ultra vires and discriminatory.
4.In
SLP (Civil) No. 16911 of 1991 the petitioner claims to be the heir of one Shri
A.K. Roy, a statutory tenant in respect of Flat No. 3-A, Sujan Singh Park, New
Delhi along with Garage No. 1-K and Servant Quarter No. 25-C/IIIrd Floor.
Respondent 1 landlord filed Suit No. 603 of 1984 for possession with mesne
profits. The trial court dismissed the suit holding that the tenancy was not
validly terminated by a proper notice. The appeal, RCA No. 3 of 1988, filed by
landlord was allowed. A further appeal filed by the petitioner before High
Court (RSA No. 42 of 1990) was dismissed on 27-9-1991. Earlier, the petitioner filed a writ petition in the High
Court (Civil Writ No. 1406 of 1988) assailing Section 2(1)(iii) of the Act as
ultra vires which was dismissed on 30-10-1991. Thereafter the present special
leave petition was filed by the petitioner objecting to the order passed by the
High Court aforesaid.
5. We
heard Mr Jain, Senior Counsel who appeared on behalf of the petitioners in Writ
Petition (Civil) No. 1089 of 1987, as also counsel for the respondents therein.
The counsel appearing in the other cases also practically adopted the arguments
advanced in this writ petition. Mr Jain contended that the decisions of this
Court in Damadilal v. Parashram1 and Gian Devi Anand v. Jeevan Kumar2 have held
that there is no distinction between a statutory tenant and a contractual
tenant and both are heritable. This is so even under Section 2(1) of the Act,
before its amendment.
It has
been further held in Gian Devi Anand case2 that the statutory tenancy of a
commercial premises (non-residential) is absolutely heritable. While so, the
restriction or the limitation regarding the heritability of the
"residential premises" brought in by Section 2(1)(iii) of the Delhi
Rent Control Act, 1958 has no rationale and is discriminatory.
The
statutory tenant of a residential premises, as well as non-residential
(commercial) premises are similarly placed and the distinction in the
heritability of statutory tenancy between residential premises and non-residential
premises is not based on any reasonable classification and that it has no
rational relation to the object sought to be achieved by the Act and so
discriminatory. On the other hand, counsel for the respondents/landlords
contended that the legislature has treated commercial tenancy differently from
the residential tenancy and they are not 353 similarly placed. It is competent
to the legislature to lay down the manner and extent of the protection and the
rights and obligations of the respective tenants and their heirs.
Since
the tenancy in respect of residential premises is distinct and different from
tenancy in respect of the commercial premises, the limitation or restriction of
the rights of the heirs insofar as the residential premises are concerned, is a
valid and permissible classification and is not open to attack on the ground
that it violates Articles 14 and 21 of the Constitution of India. Counsel for
the respondents contended that the reasoning and conclusion of the Constitution
Bench of this Court in Gian Devi Anand case2 themselves will go to show that
the tenancy of the residential premises and commercial premises are distinct
and different and there exists a valid reason for limiting or abridging the
rights of the heirs regarding residential premises.
6. It
will be useful to extract Section 2(1) of the Act.
"2.
(1) 'tenant' means any person by whom or on whose account or behalf the rent of
any premises is, or, but for a special contract, would be, payable, and
includes (i) a sub-tenant;
(ii)
any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after
the termination of his tenancy, subject to the order of succession and
conditions specified, respectively, in Explanation 1 and Explanation II to this
clause, such of the aforesaid person's
(a) spouse,
(b) son
or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d)
daughter-in-law, being the widow of his pre-deceased son, as had been
ordinarily living in the premises with such person as a member or members of
his family up to the date of his death, but does not include,-
Explanation
1.- The order of
succession in the event of the death of the person continuing in possession
after the termination of his tenancy shall be as follows :
(a) firstly,
his surviving spouse;
(b)
secondly, his son or daughter, or both, if there is no surviving spouse, or if
the surviving spouse did not ordinarily live with the deceased person as a
member of his family up to the date of his death;
354
(c)
thirdly, his parents, if there is no surviving spouse, son or daughter of the
deceased person, or if such surviving spouse, son or daughter or any of them,
did not ordinarily live in the premises as member of the family of the deceased
person up to the date of his death; and
(d)
fourthly, his daughter-in-law, being the widow of his predeceased son, if there
is no surviving spouse, son, daughter or parents of the deceased person, or if
such surviving spouse, son, daughter or parents, or any of them, did not
ordinarily live in the premises as a member of the family of the deceased
person up to the date of his death.
Explanation
II.- If the person,
who acquires, by succession, the right to continue in possession after the
termination of the tenancy, was not financially dependent on the deceased
person on the date of his death, such successor shall acquire such right for a
limited period of one year; and, on the expiry of that period, or on his death,
whichever is earlier, the right of such successor to continue in possession
after the termination of the tenancy shall become extinguished.
Explanation
III.- For the
removal of doubts, it is hereby declared that,-
(a)
where, by reason of Explanation II, the right of any successor to continue in
possession after the termination of the tenancy becomes extinguished, such
extinguishment shall not affect the right of any other successor of the same
category to continue in possession after the termination of the tenancy; but if
there is no other successor of the same category, the right to continue in
possession after the termination of the tenancy shall not, on such
extinguishment, pass on to any other successor, specified in any lower category
or categories, as the case may be;
(b)
the right of every successor, referred to in Explanation 1, to continue in
possession after the termination of the tenant, shall be personal to him and
shall not, on the death of such successor, devolve on any of his heirs."
The main attack of the petitioners' counsel is against Explanation 11 aforesaid.
It is stated that the heirs of a statutory tenant of the residential premises
obtain or get a heritable right without limitation, only if the heirs were
financially dependent on the deceased. It is also argued that the rights of the
heirs of a statutory tenant of the residential premises are hedged in by
various limitations regarding the order of succession as stated in Explanation
1 and are also otherwise abridged by Explanations 11 and III depending upon
their financial dependency. Such fetters or limitations do not exist in the
case of the heirs of statutory tenants in respect of the non-residential
(commercial) premises. The differential treatment so meted out to the heirs of a
statutory 355 tenant in respect of the residential premises is not based on any
rational distinction and so hit by Article 14 of the Constitution of India.
7. The
scope and content of Article 14 of the Constitution of India, familiarly known
as the equality clause, have been laid down in innumerable decisions of this
Court. It is unnecessary to refer to all of them. Briefly stated the gravamen
of the article is equality of treatment. Article 14 forbids discrimination. As
stated by Shah, J. in Western U.P Electric Power & Supply Co. Ltd. v. State of U. P. 3 :
(S.C.C
p. 82 1, para 7) "Article 14 of the Constitution ensures equality among
equals; its aim is to protect persons similarly placed against discriminatory
treatment. It does not however operate against rational classification. A
person setting up a grievance of denial of equal treatment by law must
establish that between persons similarly circumstanced, some were treated to
their prejudice and the differential treatment had no reasonable relation to the
object sought to be achieved by the law." It is implicit from the above,
that equals should not be treated unlike and unlikes should not be treated
alike.
Likes
should be treated alike. It is settled law that in giving effect to the said
salutary principle, a mathematical precision is not envisaged and there should
be no fanatical or 'doctrinaire' or wooden approach to the matter. A practical
or realistic approach should be adopted. It is open to the State to classify
persons or things or objects, for legitimate purposes.
8. The
scope of Article 14 has been summarised in the oft- quoted decision, Ram
Krishna Dalmia v. Justice S.R. Tendolkar4. At (AIR p. 547), the Constitution
Bench of this Court relied on the following passage from the judgment of the seven-Judge
Constitution Bench in Budhan Choudhry v. State of Bihar5 : (AIR p. 547)
"It is now well established that while Article 14 forbids class
legislation, it does not forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of permissible classification
two conditions must be fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and (ii) that that
differentia must have a rational relation to the object sought to be achieved
by the statute in question. The classification may be founded on different
bases, namely, geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration." The Court
then laid down :
3
(1969) 1 SCC 817: AIR 1970 SC 21 4 AIR 1958 SC 538: 1959 SCR 279 5 (1955) 1 SCR
1045: AIR 1955 SC 191 356 "The principle enunciated above has been
consistently adopted and applied in subsequent cases. The decisions of this
Court further establish-
(a)
that a law may be constitutional even though it relates to a single individual
if, on account of some special circumstances or reasons applicable to him and
not applicable to others, that single individual may be treated as a class by
himself;
(b) that
there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been
a clea r transgression of the constitutional principles;
(c)
that it must be presumed that the Legislature understands and correctly
appreciates the need of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations are based on adequate
grounds;
(d) that
the Legislature is free to recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the clearest;
(e)
that in order to sustain the presumption of constitutionality the Court may
take into consideration matters of common knowledge, matters of common report,
the history of the times and may assume every state of facts which can be
conceived existing at the time of legislation; and
(f)
that while good faith and knowledge of the existing conditions on the part of a
Legislature are to be presumed, if there is nothing on the face of the law or
the surrounding circumstances brought to the notice of the court on which the
classification may reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent of always holding that there
must be some undisclosed and unknown reasons for subjecting certain individuals
or corporations to hostile or discriminating legislation." (emphasis
supplied) The above decision has been followed in innumerable subsequent cases.
See Mohd. Hanif Quareshi v. State of Bihar6, Kerala Education Bill, 1957, Re7 and other cases.
9. In
Ram Krishna Dalmia case4, the different situations in which a statute may come
up for consideration on the question of validity under t Article 14 of the
Constitution have been catalogued in paragraph 12 of the judgment. They are
broadly dealt with as failing in five groups or clauses.
For
the purpose of this case, it is sufficient if we refer to paragraph 12 clause
(1).
6 AIR
1958 SC 731: 1959 SCR 629 7 AIR 1958 SC 956: 1959 SCR 995 357 "(1) A
statute may itself indicate the persons or things to whom its provisions are
intended to apply and the basis of the classification of such persons or things
may appear on the face of the statute or may be gathered from the surrounding
circumstances known to or brought to the notice of the Court. In determining
the validity or otherwise of such a statute the Court has to examine whether suc
h classification is or can be reasonably regarded as based upon some
differentia which distinguishes such persons or things grouped together from
those left out of the group and whether such differentia has a reasonable
relation to the object sought to be achieved by the statute, no matter whether
the provisions of the statute are intended to apply only to a particular person
or thing or only to a certain class of persons or things.
Where
the Court finds that the classification satisfies the tests, the Court will
uphold the validity of the law........
10.
Bearing the above principles in mind, let us look into the provisions of the
Act. A bare perusal of the Delhi Rent Control Act, 1958, will show that the
legislature has treated commercial tenancy differently from residential
tenancy. Indeed, in Gian Devi Anand case2, in paragraphs 32 and 34 of the
judgment, the Constitution Bench of this Court has pointedly dealt with the
matter thus : (SCC p. 709) "32. It may be noted that for certain purposes
the Legislature in the Delhi Act in question and also in various other Rent
Acts has treated commercial premises differently from residential premises.
Section 14(1)(d) provides that it will be a good ground for eviction of a
tenant from residential premises if the premises let out for use as residence
is not so used for a period of six months immediately before the filing of the
application for the recovery of possession of the premises. Similarly Section 14(1)(e)
makes bona fide requirement of the landlord of the premises let out to the
tenant for residential purposes a good ground for eviction of the tenant from
such premises.
These
grounds, however, are not made available in respect of commercial premises.
34. It
may be noticed that the Legislature itself treats commercial tenancy
differently from residential tenancy in the matter of eviction of the tenant in
the Delhi Rent Act and also in various other Rent Acts. All the grounds for
eviction of a tenant of residential premises are not made grounds for eviction
of a tenant in respect of commercial premises. Section 14(1)(d) of the Delhi
Rent Act provides that non-user of the residential premises by the tenant for a
period of six months immediately before the filing of the application for the
recovery of possession of the premises will be a good ground for eviction,
though in case of commercial premises no such provision is made. Similarly,
Section 14(1)(e) which makes bona fide requirement of the landlord of the
premises let out to the tenant for residential purposes a ground for eviction
of the tenant, is not made applicable to commercial premises." 358
11. It
is also appropriate to state that a commercial tenancy is much more valuable
and precious than a residential tenancy. In the above decision of the Supreme
Court, this aspect was highlighted to the following effect in paragraph 34 of
the judgment thus : (SCC pp. 709-1 1) "Business carried on by a tenant of
any commercial premises may be and often is, his only occupation and the source
of livelihood of the tenant and his family. Out of the income earned by the
tenant from his business in the commercial premises, the tenant maintains
himself and his family; and the tenant, if he is residing in a tenanted house,
may also be paying his rent out of the said income. Even if a tenant is evicted
from his residential premises, he may with the earnings out of the business be
in a position to arrange for some other accommodation for his residence with
his family. When, however, a tenant is thrown out of the commercial premises
his business which enables him to maintain himself and his family comes to a
standstill. It is common knowledge that it is much more difficult to find
suitable business premises than to find suitable premises for residence. It is
no secret that for securing commercial accommodation, large sums of money by
way of salami, even though not legally payable, may have to be paid and rents
of commercial premises are usually very high.
Besides,
a business which has been carried on for years at a particular place has its
own goodwill and other distinct advantages. The death of the person who happens
to be the tenant of the commercial premises and who was running the business
out of the income of which the family used to be maintained, is itself a great
loss to the members of the family to whom the death, naturally, comes as a
great blow. Usually, on the death of the person who runs the business and
maintains his family out of the income of the business, the other members of
the family who suffer the bereavement have necessarily to carry on the business
for the maintenance and support of the family. A running business is indeed a
very valuable asset and often a great source of comfort to the family as the business
keeps the family going. ... It could never have been the intention of the
Legislature that the entire family of a tenant depending upon the business
carried on by the tenant will be completely stranded and the business carried
on for years in the premises which had been let out to the tenant must stop
functioning at the premises which the heirs of the deceased tenant must
necessarily vacate, .... It may also be borne in mind that in case of
commercial premises the heirs of the deceased tenant not only succeed to the
tenancy rights in the premises but they succeed to the t business as a whole.
... Commercial premises are let out not only to individuals but also to
Companies, Corporations and other statutory bodies having a juristic
personality. In fact, tenancies in respect of commercial premises are usually
taken by Companies and Corporations. When the tenant is a Company or a
Corporation or anybody with juristic personality, question of the death of the
tenant will not arise. Despite the terminatio n of the tenancy, the Company or
the Corporation or such 359 juristic personalities, however, will go on
enjoying the protection afforded to the tenant under the Act." (emphasis
supplied)
12. It
is evident from the above decision of the Constitution Bench of this Court that
a commercial tenancy is invaluable and has got distinct features and
characteristics of its own different from that of a residential tenancy. None
of the peculiar or unique features present in the case of commercial tenancies
exist in the case of residential tenancies. In the above background, if the
legislature thought it fit to afford a greater and extended right or benefit to
the heirs of the statutory tenants of commercial premises and not to extend
such rights to the heirs of the statutory tenants of residential premises, we
should say that it only stands to reason and reckons the stark realities of the
prevailing situation. The protection afforded by the Rent Act to a tenant after
the termination of the tenancy and to the heirs of the tenant is only a
creation of the Act and it is open to the Legislature to make appropriate
provisions in that behalf. It can make suitable and appropriate provisions in
the Act with regard to the nature and extent of the benefit and protection to
be so enjoyed and the manner in which the same is to be enjoyed. In the above
perspective, we are of the view that the provisions in Section 2(1)(iii) of the
Act, which seeks to restrict or limit the right of the heirs, insofar as the
statutory tenants of residential premises are concerned and to the extent
provided therein, are not in any way discriminatory and do not offend the
guarantee under Article 14 of the Constitution. This is not a case where the
residential tenancy and the commercial tenancy are similarly placed. They
belong to two different categories with distinct features and characteristics
of their own. No question of discrimination arises. In this context, it is only
proper to quote the following observations in Sakhawat Ali v. State of Orissa8, which is apposite :
"...
legislation enacted for the achievement of a particular object or purpose need
not be all embracing. It is for the Legislature to determine what categories it
would embrace within the scope of legislation and merely because certain categories
which would stand on the same footing as those which are covered by the
legislation are left out would not render legislation which has been enacted in
any manner discriminatory and violative of the fundamental right guaranteed by
Article 14 of the Constitution." (emphasis supplied) Nor are we impressed
by the plea that the right to shelter is a guarantee under Article 21 of the
Constitution of India and so the abridgement or limitation placed on the rights
of the legal heirs in the case of a statutory tenancy of residential premises
makes an inroad into the rights of the tenant under Article 21 of the
Constitution of India. We hold that the statutory tenancies regarding
residential premises are distinct and different from statutory tenancies regarding
commercial premises and the limitations or the restrictions placed by Section
2(1)(iii) of the Act on the rights of the heirs of the statutory tenants of
residential premises are reasonable, fair and just in all 8 (1955) 1 SCR 1004,
1010: AIR 1955 SC 166 360 the circumstances of the case. There is no violation
of the guarantee enshrined in Article 14 or Article 21 of the Constitution of
India.
13. We
hold that Section 2(1)(iii) of the Delhi Rent Control Act, 1958 is not open to
attack on the ground that it is violative of Articles 14 and 21 of the
Constitution of India. The said provision is not in any manner either unfair or
unjust or absurd. There is no merit in this batch of cases. The writ petitions
are dismissed with costs. The special leave petition is rejected.
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