Common
Cause Vs. Union of India & Ors [2003] Insc 513
(8 October 2003)
R.C.
Lahoti & Ashok Bhan.Bhan, J.
Keeping
in view the National Housing Policy and for rationalisation of rent laws to
give incentive to the growth of the housing in general and rental housing, in
particular, and the observation made by this Court in Prabhakaran Nair and
others vs.State of Tamil Nadu and others [1987 (4) SCC 238] to the following
effect:
"The
laws of landlord and tenant must be made rational, humane, certain and capable of
being quickly implemented. Those landlords who have having premises in their
control should be induced and encouraged to part with available accommodation
for limited periods on certain safeguards which will strictly ensure their
recovery when wanted. Men with money should be given proper and meaningful
incentives as in some European countries to build houses, tax holidays for new
houses can be encouraged.
The
tenants should also be given protection and security and certain amount of
reasonableness in the rent. Escalation of prices in the urban properties, land,
materials and houses must be rationally checked. This country very vitally and
very urgently requires a National Housing Policy if we want to prevent a major
breakdown of law and order and gradual disillusionment of people. After all
shelter is one of our fundamental rights. New national housing policy must
attract new buildings, encourage new buildings, make available new spaces, rationalise
the rent structure and rationalise the rent provisions and bring certain amount
of uniformity though leaving scope for sufficient flexibility among the States
to adjust such legislation according to its needs. This Court and the High
Court should also be relieved of the heavy burdens of this rent litigations. Tier
of appeals should be curtailed. Laws must be simple, rational and clear.
Tenants are in all cases not the weaker sections. There are those who are weak
both among the landlords as well as the tenants. Litigations must come to end
quickly. Such new Housing Policy must comprehend the present and anticipate the
future. The idea of a National Rent Tribunal on an All India basis with quicker
procedure should be examined. This has become an urgent imperative of today's
revolution. A fast changing society cannot operate with unchanging law and
preconceived judicial attitude." Delhi Rent Act, 1995 (for short 'the
Act') was enacted by the Parliament. It was meant to be the Model Rent Control
Legislation formulated by the Central Government and sent to the States to
enable them to carry out necessary amendments to the prevalent rent control
laws in the States.
The
Delhi Rent Bill, 1994 (for short 'the Bill') was introduced in the Rajya Sabha
on 26th August, 1994. It was passed unanimously in the Rajya
Sabha on 29th May, 1995. Thereafter it was tabled in the Lok
Sabha. Lok Sabha unanimously passed the same on 3rd June, 1995. Presidential assent was given to the Bill on 23rd August, 1995 and the same was accordingly
enacted as the Delhi Rent Act, 1995 (Act 33 of 1995) and notified on 23rd August, 1995, as enacted. The Parliament did not
fix the date w.e.f which the Act would come into operation. It was left to the
discretion of the Central Government to notify the date w.e.f. which the Act
would come into operation.
Section
1(3) of the Act reads:
"(3)
It shall come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint." As the Central Government
did not notify the date, appellant filed writ petition No.1495 of 1997 in the
High Court of Delhi in public interest seeking a writ or order in the nature of
mandamus directing the Union of India to forthwith and without delay issue a
notification in the Official Gazette, as contemplated under Section 1(3) of the
Act notifying the date on which the said Act shall come into force in its
present form.
In the
written statement filed by the Union of India, it was stated that a section of
people, particularly trader tenants, launched an agitation demanding changes in
some of the provisions of the Act. In the wake of this agitation, the then
Chief Minister, Government of NCT of Delhi appointed an All Party Committee to
examine the Act and make recommendations for changes which could address the
grievances of the agitating groups. These primarily related to provisions of
the Act concerning deemed rent, registration of tenancies, inheritability of
tenancies, eviction, etc. Following the receipt of numerous representations and
the All Party Committee Report, the entire issue was re-examined to decide
whether the Act should be notified as assented to by the President, or it
should be amended in the light of the representations that had been received.
After
detailed examination, it was finally decided to carry out the amendments to the
Act before notifying it. Accordingly the Delhi Rent (Amendment) Bill, 1997 was
drafted and introduced in the Rajya Sabha on 28th July, 1997. The Bill was referred to the Parliamentary Standing
Committee which examined the amendments suggested in depth. The Parliamentary
Standing Committee finalised its Report in December, 2000. The Government
considered the Report and accepted all the recommendations of the Committee on 3rd April, 2001 and notice for moving the official
amendments in respect of Delhi Rent (Amendment) Bill, 1997 was accordingly sent
to the Secretary General, Rajya Sabha in July, 2001. Because of the workload
the Bill could not be taken up for consideration in the Rajya Sabha and is
expected to be taken up shortly. Since the Government wanted to introduce the
Amendments Bill of 1997, the Original Act was not notified.
It was
further averred that the enforcement of the Act has been delayed for the above
stated reasons and not for any other reason. It was asserted that this Court
could not issue a writ in the nature of mandamus to the Central Government for
the enforcement of the Act.
That
it was normal and legally valid for the Parliament to delegate the authority to
the Executive government to notify the date from which the Act would come into
force.
The
writ petition came up for hearing before a Division Bench.
One of
the learned Judges was of the view that a mandamus could be issued to the Union
of India to bring the Act in force and accordingly issued the following
directions:
"In
view of the above discussion, the writ petition succeeds and the rule is made
absolute. The respondent-Union of India is directed to bring into force the Delhi Rent Act, 1995 (Act No.33 of
1995) by issuing an appropriate notification within six weeks from today."
The other learned Judge, however, did not agree with the above directions and
was of the view that such an absolute mandamus could not be issued. According
to him the only mandamus which could be issued to the Government was to
consider whether the time to bring into force the Act has arrived or not.
Accordingly the limited mandamus was issued in the following terms:
"…In
my opinion only a limited mandamus in accordance with the Aeltmesh Rein's case(supra),
can issue to the Central Government to consider within 6 weeks whether the time
to enforce the Act has arrived and in this view of the matter I respectfully
disagree with the ultimate directions while agreeing with the rest of the
reasoning and discussion in the aforesaid judgment of my esteemed Brother Anil
Dev Singh,J.
Ordered
accordingly." Because of the difference of opinion between the two learned
Judges the matter was referred to the third Judge. The third learned Judge did
not agree with the view taken by either of the Judges.
According
to him, keeping in view the position of law as understood by him it would not
be appropriate to issue a writ of mandamus directing the Central Government to
bring the Act into force in its present form. That a limited mandamus could be
issued, but, keeping in view the position explained by the Union of India that
it does not want to bring the Act into force in its present form and that it
would be brought in force with certain amendments which are pending
consideration by the Parliament, even a limited mandamus could not be issued.
Accordingly, he passed the following order:
"…Consequently.
I am of the view that even a writ of mandamus as postulated by Aeltemesh Rein
need not be issued, since the response of the Central Government is already
known. Moreover, it is well settled that the Courts do not issue infructuous
writs or writs which are of an academic nature.
However,
since this is not an issue before me, I leave it as that." The third Judge
directed that the case be listed before the Division Bench for appropriate
orders, subject to the orders of Hon'ble the Chief Justice. Thereafter the
matter was placed before the Division Bench.
Before
the Division Bench, in response to the limited mandamus which had been issued
in accordance with the view of the majority, the Central Government filed an
affidavit reporting compliance therewith. In view of the affidavit of
compliance the writ petition was ordered to be disposed of. On an oral prayer
made by the counsel for the petitioner the Division Bench granted Certificate
of Fitness under Article 134(A) of the Constitution of India for filing appeals
to this Court. Accordingly, the present appeals have been filed.
Counsel
for the appellant contended that legislative arena for Parliament is exited
once Article 111 of the Constitution is complied with. On the President
conveying his assent to the Bill, a Bill is lawfully enacted and converts
itself into an Act. According to him, Parliament has used different
prescriptions to give effect to its mandate. The same are:
a)
When the enactment itself stipulates the date for implementation;
b)
When the enactment delegates its power to the executive to appoint the date of
enforcement and different dates may be appointed for different provisions of
the Act;
As per
counsel submission when the enactment delegates its power to the executive to
appoint the date of enforcement but does not permit different dates being
appointed for different provisions of the Act, then the provisions of Section 5
of the General Clauses Act, 1897 govern such enactments and it comes into force
as soon as the President gives his assent to the Bill.
Section
5 of the General Clauses Act prescribes:
"5.
Coming into operation of enactments –
(1)
Where any Central Act is not expressed to come into operation on particular
day, then it shall come into operation on the day on which it receives the
assent, --
(a) in
the case of a Central Act made before the commencement of the Constitution, of
the Governor- General, and
(b) in
the case of an Act of Parliament, of the President.
(2) omitted
(3)
Unless the contrary is expressed, a Central Act or Regulation shall be
construed as coming into operation immediately on the expiration of the day
preceding its commencement."
According
to the appellant, the Act was enacted as Act No.33 of 1995. It was placed on
the statute book by public notification in terms of Article 366(18) of the
Constitution on 23rd
August, 1995. By this,
the Act is now out of the legislative arena. As neither a particular date has
been stipulated by the Parliament in its enforcement nor the Parliament has
expressed any contrary intention by the prescription of permitting different
dates being stipulated for enforcement of different provisions of the Act, the
Act would be deemed to have been come into force in terms of provisions of
Section 5 of the General Clauses Act, 1897.
Point
in issue is not res-integra. This point was considered in depth by a
Constitution Bench of this Court in A.K.Roy vs. Union of India [1982 (1) SCC
271]. It was held that an Act cannot be said to commence or put in force unless
it is brought into operation by a legislative enactment or by exercise of
authority by the delegatee empowered to bring the Act into operation by issuing
the necessary notification. When enforcement of a statute or a provision therein
is left to the discretion of the government without laying down any objective
standards, no writ or mandamus can be issued to the government to enforce the
statute or any of the provisions of the statute.
In A.K.Roy's
case(supra), this Court was examining the Constitution (Amendment) Act, 1978
which was passed by both Houses of Parliament and assented to by the President
of India.
Section
1(2) of the Amending Act read as under:
"It
shall come into force on such date as the Central Government may by notification
in the official Gazette appoint and different dates may be appointed for
different provisions of the Act." This Court examined the point regarding
the interpretation to be put on Section 1(2) of the 44th Amendment Act; the
consequences of the failure of the Central Government to issue a notification
under Section 1(2) for bringing into force the provisions of 44th Amendment Act
within a reasonable time, and, the question, as to whether despite the
provisions contained in Section 1(2), the 44th Amendment must be deemed to have
come into force on the date on which the President gave his assent to it.
Another question examined was as to whether Section 1(2) of the 44th Amendment
Act was severable from the rest of the provisions or if that Section was bad
for any other reason.
The
point was examined in depth from various angles including the constitutional
validity of Section 1(2); the power of the constituent to delegate its power to
bring into force the Act to the executive; as to whether there was any internal
contradiction between the provisions of Article 368(2) and those of Section
1(2) of the Constitution 44th Amendment Act, and, as to whether, since the
Central Government had failed to exercise its power within a reasonable time
the Court could issue a mandamus calling upon the Central Government to
discharge its duties without any further delay.
After
due consideration, this Court by a majority of 3:2 upheld the constitutional
validity of Section 1(2) of the 44th Amendment Act and the power of the
Parliament to delegate its authority to an outside agency. It was held that no
mandamus could be issued to the Central Government to bring into force the Act.
Drawing a distinction between the Constitution standing amended (in our case
the enactment of the Act) in accordance with the terms of the Bill assented to
by the President and the date of coming into force of the amendment, thus,
introduced in the Constitution, it was observed that there was no internal
contradiction between the provisions of Article 368(2) and those of Section
1(2) of the 44th Amendment Act. That Article 368(2) lays down a general rule of
application to a date from which the Constitution would stand amended in
accordance with the Bill assented to by the President whereas Section 1(2) of
the amended Act specifies the manner in which the Act or any of its provisions
would be brought into force. The distinction was pointed out in the following
words:
"The
distinction is between the Constitution standing amended in accordance with the
terms of the Bill assented to by the President and the date of the coming into
force of the Amendment thus introduced into the Constitution. For determining
the date with effect from which the Constitution stands amended in accordance
with the terms of the Bill, one has to turn to the date on which the President
gave, or was obliged to give, his assent to the Amendment. For determining the
date with effect from which the Constitution, as amended, came or will come
into force, one has to turn to the notification, if any, issued by the Central
Government under Section 1(2) of the Amendment Act." It was held that the
44th Amendment Act itself prescribes by enacting Section 1(2) a pre-condition
which must be satisfied before any of its provisions could come into force. The
pre-condition was the issuance of a notification by the Central Government duly
published in the Official Gazette, appointing the date from which the Act or
any particular provision thereof will come into force. None of the provisions
of 44th Amendment Act could come into operation until the Central Government
issues a notification as contemplated by Section 1(2). It was held in para 47
as under:
"The
Amendment Act may provide that the amendment introduced by it shall come into
force immediately upon the President giving his assent to the Bill or it may
provide that the amendment shall come into force on a future date. Indeed, no
objection can be taken to the constituent body itself appointing a specific
future date with effect from which the Amendment Act will come into force; and
if that be so, different dates can be appointed by it for bringing into force
different provisions of the Amendment Act.
The
point of the matter is that the Constitution standing amended in accordance
with the terms of the Bill and the amendment thus introduced into the
Constitution coming into force are two distinct things. Just as a law duly
passed by the legislature can have no effect unless it comes or is brought into
force, similarly, an amendment of the Constitution can have no effect unless it
comes or is brought into force. The fact that the constituent body may itself
specify a future date or dates with effect from which the Amendment Act or any
of its provisions will come into force shows that there is no antithesis
between Article 368(2) of the Constitution and Section 1(2) of the 44th
Amendment Act.
The
expression of legislative or constituent will as regards the date of
enforcement of the law or Constitution is an integral part thereof. That is why
it is difficult to accept the submission that, contrary to the expression of
the constituent will, the amendments introduced by the 44th Amendment Act came
into force on April 30,
1979 when the
President gave his assent to that Act. The true position is that the amendments
introduced by the 44th Amendment Act did not become a part of the Constitution
on April 30, 1979. They will acquire that status only
when the Central Government brings them into force by issuing a notification
under Section 1(2) of the Amendment Act." The Bench also considered the
Constitutional validity of Section 1(2) of the 44th Amendment Act. Repelling
the argument that the constituent power must be exercised by the constituent
body itself and that it could not be delegated by it to the executive or any
other agency, it was observed in para 48 as follows:
"…For
determining this question, it is necessary to bear in mind that by 'constituent
power' is meant the power to frame or amend the Constitution. The power of
amendment is conferred upon the Parliament by Article 368(1), which provides
that the Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of the Constitution in accordance
with the procedure laid down in that article. The power thus conferred on the
Parliament is plenary subject to the limitation that it cannot be exercised so
as to alter the basic structure or framework of the Constitution.
It is
well settled that the power conferred upon the Parliament by Article 245 to
make laws is plenary within the field of legislation upon which that power can
operate. That power, by the terms of Article 245, is subject only to the
provisions of the Constitution. The constituent power, subject to the
limitation aforesaid, cannot be any the less plenary than the legislative
power, especially when the power to amend the Constitution and the power to
legislate are conferred on one and the same organ of the State, namely, the
Parliament. The Parliament may have to follow a different procedure while
exercising its constituent power under Article 368 than the procedure which it
has to follow while exercising its legislative power under Article 245. But the
obligation to follow different procedures while exercising the two different
kinds of power cannot make any difference to the width of the power. In either
event, it is plenary, subject in one case to the constraints of the basic
structure of the Constitution and in the other, to the provisions of the
Constitution." Contention that after amendment of the Constitution, by
virtue of Article 368(2) of the Constitution, the Constitution stood amended as
enacted, it was held:
"…It
is, therefore, permissible to the Parliament to vest in an outside agency the
power to bring a constitutional amendment into force. In the instant case, that
power is conferred by the Parliament on another organ of the State, namely, the
executive, which is responsible to the Parliament for all its actions. The
Parliament does not irretrievably lose its power to bring the Amendment into
force by reason of the empowerment in favour of the Central Government to bring
it into force. If the Central Government fails to do what, according to the
Parliament, it ought to have done, it would be open to the Parliament to delete
Section 1(2) of the 44th Amendment Act by following the due procedure and to
bring into force that Act or any of its provisions." Coming to the next
question as to whether legislature could delegate its power to bring a law into
force to the executive or an outside agency, it was held that it could do so.
On a detailed consideration, it was held in para 50 as follows:
"….They
read the Privy Council decisions as laying down that conditional legislation is
permissible whereby the legislature entrusts to an outside agency the
discretionary power to select the time or place to enforce the law.
As
stated by Shri H.M.Seervai in his Constitutional Law of India (2nd ed., p.1203)
: "The making of laws is not an end in itself, but is a means to an end,
which the legislature desires to secure. That end may be secured directly by
the law itself. But there are many subjects of legislation in which the end is
better secured by extensive delegation of legislative power". There are
practical difficulties in the enforcement of law contemporaneously with their
enactment as also in their uniform extension to different areas. Those
difficulties cannot be foreseen at the time when the laws are made.
It,
therefore, becomes necessary to leave to the judgment of an outside agency the
question as to when the law should be brought into force and to which areas it
should be extended from time to time. What is permissible to the legislature by
way of conditional legislation cannot be considered impermissible to the
Parliament when, in the exercise of its constituent power, it takes the view
that the question as regards the time of enforcement of a constitutional
amendment should be left to the judgment of the executive. We are, therefore,
of the opinion that Section 1(2) of the 44th Amendment Act is not ultra vires
the power of amendment conferred upon the Parliament by Article 368(1) of the
Constitution." In Para 51, it was observed:
"…..The
executive is responsible to the Parliament and if the Parliament considers that
the executive has betrayed its trust by not bringing any provision of the
Amendment into force, it can censure the executive. It would be quite anomalous
that the inaction of the executive should have the approval of the Parliament
and yet we should show our disapproval of it by issuing a mandamus….."
Rejecting the argument that Section 1(2) of the 44th Amendment Act was bad
because it vested an uncontrolled power in the executive, it was observed that
in similar and even more extensive delegation of powers to the executive had been
upheld by this Court over the years. Reference was made to a number of
decisions such as Sardar Inder Singh vs. State of Rajasthan [1957 SCR 605], Sita
Ram Bishambhar Dayat vs. State of U.P. [1972 (4) SCC 485] and Gwalior Rayon
Silk Manufacturing Co. Ltd. vs. Asstt. C.S.T. [1974 (4) SCC 98].
Again
this point was considered by this Court in Aeltemesh Rein vs. Union of India
[1988 (4) SCC 54]. There the government had failed to issue a notification to
bring into force Section 30 of the Advocates Act, 1961 into operation for a
period of 30 years. A writ petition was filed seeking a writ of mandamus
directing the Central Government to issue a notification to bring into force
Section 30 of the Advocates Act with immediate effect. Following the judgment
in A.K. Roy's case (supra), it held that such a mandamus could not be issued.
It was observed:
"….Dealing
with a similar question a Constitution Bench of this Court in A.K.Roy vs. Union
of India has taken the view that a writ in the nature of mandamus directing the
Central Government to bring a statute or a provision in a statute into force in
exercise of powers conferred by Parliament in that statute cannot be issued. Chandrachud,
CJ., who spoke for the majority of the Constitution Bench has observed at pages
314 to 316 of the Report thus : [SCC pp.310-12 :SCC(Cri) pp.188-89, paras 51
and 52] But we find ourselves unable to intervene in a matter of this nature by
issuing a mandamus to the Central Government obligating it to bring the
provisions of Section 3 into force.
The
Parliament having left to the unfettered judgment of the Central Government the
question as regards the time for bringing the provisions of the Forty-fourth
Amendment into force, it is not for the court to compel the government to do
that which, according to the mandate of the Parliament, lies in its discretion
to do when it considers it opportune to do it. The executive is responsible to
the Parliament and if the Parliament considers that the executive has betrayed
its trust by not bringing any provision of the amendment into force, it can
censure the executive. It would be quite anomalous that the inaction of the
executive should have the approval of the Parliament and yet we should show our
disapproval of it by issuing a mandamus….. . But, the Parliament has left the
matter to the judgment of the Central Government without prescribing any
objective norms. That makes it difficult for us to substitute our own judgment
for that of the government on the question whether Section 3 of the Amendment
Act should be brought into force…….It is for these reasons that we are unable
to accept the submission that by issuing a mandamus, the Central Government
must be compelled to bring the provisions of Section 3 of the Forty- fourth
Amendment into force……" It was further observed:
"…..As
long as the majority view expressed in the above decision holds the field it is
not open to this Court to issue a writ in the nature of mandamus directing the
Central Government to bring Section 30 of the Act into force. But, we are of
the view that this decision does not come in the way of this Court issuing a
writ in the nature of mandamus to the Central Government to consider whether
the time for bringing Section 30 of the Act into force has arrived or
not….." This point was again considered by this Court in a recent case in
Union of India vs. Shree Gajanan Maharaj Sansthan [ 2002 (5) SCC 44]. It was
observed in para 7, as follows:
"….It,
therefore, became necessary to leave the judgment to the executive as to when
the law should be brought into force. When enforcement of a provision in a
statute is left to the discretion of the Government without laying down any
objective standards, no writ of mandamus could be issued directing the
government to consider the question whether the provision should be brought
into force and when it can do so. Delay in implementing the will of Parliament
may draw adverse criticism but on the data placed before us, we cannot say that
the Government is not alive to the problem or is desirous of ignoring the will
of Parliament." In the present case, the Government received several
representations from tenant organisations demanding changes in some of the
provisions and the Government on receipt of numeral representations constituted
an All Party Committee to re-examine as to whether the Act should be notified
or it should be amended in the light of the representations received. After
detailed examination, it was finally decided to carry out certain amendments to
the Act.
Accordingly,
Delhi Rent (amendment) Bill was drafted and introduced in the Rajya Sabha. The
Amendment Bill was referred to the Parliamentary Standing Committee which
examined the amendments suggested in depth. The Parliamentary Standing
Committee finalised its reports in December, 2000. The Government after
considering the Report accepted the recommendations of the Committee on 3rd
April, 2001 and thereafter the notice was sent to the Secretary-General, Rajya Sabha
to introduce the Amendment Bill.
From
the facts placed before us it cannot be said that Government is not alive to
the problem or is desirous of ignoring the will of the Parliament. When the
legislature itself had vested the power in the Central Government to notify the
date from which the Act would come into force, then, the Central Government is
entitled to take into consideration various facts including the facts set out
above while considering when the Act should be brought into force or not. No
mandamus can be issued to the Central Government to issue the notification
contemplated under Section 1(3) of the Act to bring the Act into force, keeping
in view the facts brought on record and the consistent view of this Court.
The
submission that by virtue of Section 5 of General Clauses Act, the Act has come
into force is misconceived. Section 5 of the General Clauses Act has no
application. Section 5 is applicable only when the Act does not express any
date with effect from which the Act would come into force. It will apply to
such cases where there is no provision like Section 1(3) of the Act or Section
1(2) of the 44th Constitutional Amendment. When the Legislature itself provides
that the date of coming into force of the Act would be a date to be notified by
the Central Government, Section 5 of the General Clauses Act will have no application.
It is plain and evident from the language of the provision. Section 5(1)
provides that 'where any Central Act is not expressed to come into operation on
particular day, then it shall come into operation on the day on which it
receives the assent'. Sub-clause (3) provides that 'unless the contrary is
expressed, a Central Act or Regulation shall be construed as coming into
operation immediately on the expiration of the day preceding its
commencement'.' In simple words it would mean that unless otherwise provided a
Central Act would come into operation on the date it receives Presidential
assent and is construed as coming into operation immediately on the date
preceding its commencement. Thus, if a Central Act is assented by the President
on 23.8.1995 then it would be construed to have come into operation on the
mid-night between 22nd and 23rd August, 1995.
Sub-section
(3) has to be read as a corollary to sub-section (1). Sub- section (1) provides
that the Act would come into operation on the date it receives the assent of
the President where a particular day w.e.f. which the Act would come into force
is not prescribed whereas sub-section (3) provides the exact time of the
day/night when the Act would come into force. It would not apply to cases where
the legislature has delegated the power to the executive to bring into force
the Act from a date to be notified by publication in the Official Gazette.
For
the reasons stated above, we do not find any merit in these appeals and the
same are dismissed with no order as to costs.
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