Rakesh
VIJ Vs. Dr. Raminder Pal Singh Sethi & Ors [2005] Insc 522 (30 September 2005)
Cji
R.C. Lahoti, G.P. Mathur & P.K. Balasubramanyan
WITH Writ
Petition (Civil) No. 234 of 2003, Civil Appeal Nos. 7049/2001, 3551/2002,
7920-7921/2002 and S.L.P. (Civil) No. 20444/2001 G.P. Mathur, J.
Civil
Appeal No. 2894 of 2001
1.
This appeal, by special leave, has been filed against the judgment and order
dated 20.12.2000 of the High Court of Punjab and Haryana at Chandigarh by which
the revision preferred by the appellant against the order of eviction passed
against him by the Rent Controller as affirmed by the Appellate Authority was
dismissed.
2.
Before examining the legal issues raised by the learned counsel for the parties
it will be convenient to notice the facts of the case in brief.
The
respondent Dr. Raminder Pal Singh Sethi is a Dental Surgeon and he is co-owner
along with his wife of a premises described as Shop-cum-Flat (for short
"SCF") in Sector 37-A, Chandigarh, in which father of the appellant
late O.P. Vij was a tenant. The respondent filed a petition for eviction of
O.P. Vij on the grounds, inter alia, that he was having his clinic in House No.
5, Sector 16-A, Chandigarh, but the owner of the said premises, namely, Shri Wasan
Singh had filed an eviction petition against him on the ground that he was a
specified landlord within the meaning of Section 2(hh) of the East Punjab Urban
Rent Restriction Act, 1949 (for short '1949 Act') and the said petition was
pending adjudication before the Rent Controller. The respondent wanted to set
up a bigger dental clinic with modern gadgets, more number of dental chairs,
provision for x-ray examination, orthopentamorgrams and radio video graphs and
other facilities for which the space required was wholly inadequate in the
rented premises currently in his occupation. The tenant O.P. Vij contested the
eviction petition on various grounds and the principal ground urged was that
eviction of a tenant cannot be sought on the ground of personal requirement of
the landlord under the relevant provisions of East Punjab Urban Rent
Restriction (Extension to Chandigarh) Act, 1974 or the amendment made to the
said Act in the year 1982. The Rent Controller, after a thorough examination of
evidence on record, allowed the eviction petition by the judgment and order
dated 16.9.1999 and the said order was affirmed in appeal by the Appellate
Authority on 16.11.2000. During the pendency of the appeal the original tenant
O.P. Vij died and his legal heirs including the present appellant Rakesh Vij,
who is his son, were substituted in his place. Rakesh Vij then preferred a
revision under Section 15(5) of the 1949 Act in the High Court, but the same
was dismissed on 20.12.2000.
3. The
principal submission made by Shri Ashwani Chopra, learned senior counsel for
the appellant, is that eviction of a tenant on the ground of bona fide
requirement of the landlord is not provided for in the East Punjab Urban Rent
Restriction (Extension to Chandigarh) Act, 1974 and also after the amendment of
the said Act in 1982 and, therefore, the eviction petition filed by the
respondent landlord wherein he had sought eviction of the appellant's father,
who was the sitting tenant, was not maintainable and the view taken by the Rent
Control Authorities and also by the High Court is erroneous in law.
4. Shri
Sudhir Chandra, learned senior counsel for the respondent has, on the other
hand, submitted that on a correct interpretation of the provisions of the
enactment applicable to Chandigarh a landlord can seek eviction of a tenant on
the ground of his bona fide requirement and the contention to the contrary
raised by the learned counsel for the tenant is wholly erroneous in law.
5. In
order to appreciate the controversy raised it is necessary to set out the
relevant provisions of the concerned enactments. The main enactment wherein
restrictions were imposed on the increase of rent of certain premises situated
within the limit of urban areas and the eviction of tenants therefrom is the
East Punjab Urban Rent Restriction Act, 1949, which was published in the East
Punjab Gazette on 25.3.1949. Section 2 of this Act gives the definitions and
sub-sections (d), (f) and (g) thereof are being reproduced below: -
"2.
Definitions In this Act, unless there is anything repugnant in the subject or
context, - (d) "non-residential building" means a building being used
solely for the purpose of business or trade:
Provided
that residence in a building only for the purpose of guarding it shall not be
deemed to convert a "non- residential building" to a
"residential building";
(f)
"rented land" means any land let separately for the purpose of being
used principally for business or trade;
(g)
"residential building" means any building which is not a
non-residential building." Section 13 of this Act deals with eviction of
tenants. Section 13(1) and the relevant portion of Section 13(3)(a), which have
a bearing on the controversy in hand, are being reproduced below: -
"13.
Eviction of tenants, -
(1) A
tenant in possession of a building or rented land shall not be evicted therefrom
in execution of a decree passed before or after the commencement of this Act or
otherwise and whether before or after the termination of the tenancy, except in
accordance with the provisions of this section.
(2) ...........................................
(3) (a)
A landlord may apply to the Controller for an order directing tenant to put the
landlord in possession
(i) in
the case of a residential or a scheduled building if
(a) he
requires it for his own occupation;
(b) he
is not occupying another residential or a scheduled building as the case may be
in the urban area concerned; and
(c) he
has not vacated such a building without sufficient cause after the commencement
of this Act, in the said urban area;
(ii) in
the case of a non-residential building or rented land, if
(a) he
requires it for his own use;
(b) he
is not occupying in the urban area concerned for the purpose of his business
any other such building or rented land, as the case may be and
(c) he
has not vacated such a building or rented land without sufficient cause after
the commencement of this Act, in the urban area concerned."
The
aforesaid 1949 Act was amended by the East Punjab Urban Rent Restriction
(Amendment) Act, 1956 (for short "Amendment Act, 1956"), which was
published in Gazette on 24.9.1956 and the provisions thereof, which are
relevant for the decision of the present case, are being reproduced below:
"2.
Amendment of section 13 of East Punjab Act III of 1949. In clause (a) of sub
section (3) of section 13 of the East Punjab Urban Rent Restriction Act, 1949,
hereinafter referred to as the principal Act (i) (a) In sub clause (i), the
words "or a scheduled" shall be omitted.
(b) In
sub-paragraph (b), the words "or a scheduled" and the words "as
the case may be" shall be omitted.
(ii) (a)
In sub-clause (ii) the words "a non-residential building or" shall be
omitted.
(b) In
sub-paragraph (b), the words "building or" and the words "as the
case may be" shall be omitted.
(c) In
sub-paragraph (c), the words "a building or" shall be omitted."
As a
result of the amendment made by the Amendment Act, 1956 the relevant provisions
of the East Punjab Urban Rent Restriction Act, 1949 read as under: -
"13.
Eviction of tenants
(1) A
tenant in possession of a building or rented land shall not be evicted therefrom
in execution of a decree passed before or after the commencement of this Act or
otherwise and whether before or after the termination of the tenancy, except in
accordance with the provisions of this section, or in pursuance of an order
made under section 13 of the Punjab Urban Rent Restriction Act, 1949, as
subsequently amended.
(2)
............................................
(3) (a)
A landlord may apply to the Controller for an order directing the tenant to put
the landlord in possession
(i) in
the case of a residential building if ...........
................................ (Omitted as not relevant)
(ii)
In the case of rented land, if –
(a) he
requires it for his own use;
(b) he
is not occupying in the urban area concerned for the purpose of his business
any other such rented land, and
(c) he
has not vacated such rented land without sufficient cause after the
commencement of this Act, in the urban area concerned.
......................................................."
It will be seen that as a result of the amendment effected by the Amendment
Act, 1956 the landlord could only seek eviction of a tenant from a residential
or scheduled building or rented land, but was completely deprived of his right
to seek eviction of a tenant from a non- residential building even if he
required it for his own use.
6. As
a result of reorganization of the State of Punjab by Punjab Reorganization Act,
1966, Chandigarh was carved out as a Union Territory with effect from
1.11.1966. The Central Government issued a Notification on 13.10.1972 by which
East Punjab Urban Rent Restriction Act, 1949 was made applicable to the Union
Territory of Chandigarh with effect from 4.11.1972. The validity of this
Notification was challenged and a Full Bench of Punjab and Haryana High Court
in Dr. Harkishan Singh vs. Union of India and others AIR 1975 P&H 160,
declared the Notification to be invalid. The result of this decision was that
East Punjab Urban Rent Restriction Act, 1949 ceased to be applicable to the
Union Territory of Chandigarh. Thereafter, the Parliament enacted the East
Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 (for short
"Chandigarh Extension Act"), which was published in Gazette on
20.12.1974. It is a short Act consisting of only 4 Sections and a Schedule.
Sections
1, 2 and 3 of this Act read as follows: -
"1.
Short title. This Act may be called the East Punjab Urban Rent Restriction Act
(Extension to Chandigarh) Act, 1974.
2.
Definition. In this Act "the Act" means the East Punjab Urban Rent
Restriction Act, 1949 as it is extended to, and was in force in, certain areas
in the pre-reorganization State of Punjab (being areas which were administered
by municipal committees, cantonment boards, town committee or notified area
committee or areas notified as urban areas for the purposes of that Act)
immediately before the 1st day of November, 1966.
3.
Extension of East Punjab Act III of 1949 to Chandigarh. Notwithstanding
anything contained in any judgment, decree or order of any court, the Act
shall, subject to the modifications specified in the Schedule, be in force in,
and be deemed to have been in force with effect from the 4th day of November,
1972 in the Union Territory of Chandigarh, as if the provisions of the Act as
so modified had been included in and formed part of this section and as if this
section had been in force at all material times." Section 4 makes
provisions for validation and savings of any judgment, decree or order passed
by any court under the 1949 Act and the Schedule makes some minor modifications
whereunder it is provided that for "State Government" occurring in
the 1949 Act "Central Government" shall be substituted and definition
of "Urban Area" has been given, which means the area comprised in the
Union Territory of Chandigarh and makes further provision empowering the
Central Government to declare any area in the said territory having regard to
the density of the population and the nature and extent of the accommodation
available to be urban for the purposes of this Act.
7.
Thereafter, the Parliament enacted the East Punjab Urban Rent Restriction (Chandigarh
Amendment) Act, 1982 (for short "1982 Act"), which also consists of
only 4 sections. Sections 2 and 3 of this Act are being reproduced below: -
"Amendment of Section 1. In the East Punjab Urban Rent Restriction Act,
1949 (East Punjab Act III of 1949), as in force in the Union Territory of Chandigarh
(hereinafter referred to as the Principal Act), in section 1, in sub-section
(1), for the words "East Punjab", the word "Punjab" shall
be substituted.
3.
Amendment of Section 2. - In section 2 of the principal Act, for clause (d),
the following clause shall be substituted, namely: - (d) "non-residential
building" means
(i) a
building being used solely for the purpose of business or trade;
(ii) a
building let under a single tenancy for use for the purpose of business or
trade and also for the purpose of residence.
Explanation. For the purposes of this clause,
residence in a building only for the purpose of guarding it, shall not be
deemed to convert a "non-residential building" to a "residential
building".
Section
4 makes provisions for pending cases, which is not relevant for the purpose of
the present case. The important amendment brought about by this Act is that a
"non-residential building" would also mean a building let under a
single tenancy for use for the purpose of business or trade and also for the
purpose of residence. It appears that there are many such buildings in Chandigarh
where the ground floor is used as a shop and the first floor is used for
residential purpose and they are known as Shop- cum-Flats (SCF). The premises
in dispute in the present case is a Shop- cum-Flat and, therefore, as a result
of the aforesaid amendment brought about by the East Punjab Urban Rent
Restriction (Chandigarh Amendment) Act, 1982 it became a non-residential
building.
8. To
complete the chain of events it is necessary to take note of another
development, which is of great significance. The constitutional vires of the
East Punjab Urban Rent Restriction (Amendment) Act, 1956 was challenged and the
same was held to be ultra vires and was struck down by this Court in Harbilas Rai
Bansal vs. State of Punjab and another (1996) 1 SCC 1. The judgment in this
case was delivered on 5.12.1995.
After
a thorough examination of the provisions of the aforesaid Act the Court
recorded its conclusion as under in paragraphs 13, 17 and 18 of the reports: -
"13. The provisions of the Act, prior to the amendment, were uniformly
applicable to the residential and non-residential buildings. The amendment, in
the year 1956, created the impugned classification. The objects and reasons of
the Act indicate that it was enacted with a view to restrict the increase of
rents and to safeguard against the mala fide eviction of tenants. The Act,
therefore, initially provided-- conforming to its objects and reasons--bona
fide requirement of the premises by the landlord, whether residential or non-
residential, as a ground of eviction of the tenant. The classification created
by the amendment has no nexus with the object sought to be achieved by the Act.
To vacate a premises for the bona fide requirement of the landlord would not cause
any hardships to the tenant. Statutory protection to a tenant cannot be
extended to such an extent that the landlord is precluded from evicting the
tenant for the rest of his life even when he bona fide requires the premises
for his personal use and occupation. It is not the tenants but the landlords
who are suffering great hardships because of the amendment. A landlord may
genuinely like to let out a shop till the time he bona fide needs the same. Visualise
a case of a shopkeeper (owner) dying young. There may not be a member in the
family to continue the business and the widow may not need the shop for quite
some time. She may like to let out the shop till the time her children grow-up
and need the premises for their personal use. It would be wholly arbitrary --
in a situation like this -- to deny her the right to evict the tenant. The
amendment has created a situation where a tenant can continue in possession of
a non- residential premises for life and even after the tenant's death his
heirs may continue the tenancy. We have no doubt in our mind that the objects,
reasons and the scheme of the Act could not have envisaged the type of
situation created by the amendment which is patently harsh and grossly unjust
for the landlord of a non-residential premises.
17. In
Gian Devi's case (1985 (2) SCC 683) the question for consideration before the
Constitution Bench was whether under the Delhi Rent Control Act, 1958, the
statutory tenancy in respect of commercial premises was heritable or not. The
Bench answered the question in the affirmative. The above quoted observations
were made by the Bench keeping in view that hardship being caused to the
landlords of commercial premises who cannot evict their tenants even on the
ground of bona fide requirement for personal use. The observations of the
Constitution Bench that "bona fide need of the landlord will stand very
much on the same footing in regard to either class of premises, residential or
commercial" fully support the view we have taken that the classification created
by the amendment has no reasonable nexus with the object sought to be achieved
by the Act. We, therefore, hold that the provisions of the amendment, quoted in
earlier part of the judgment, are violative of Article 14 of the Constitution
of India and are liable to be struck-down.
18. We
allow the appeal, set aside the impugned judgment of the High Court, declare
the above said provisions of the amendment as constitutionally invalid and as a
consequence restore the original provisions of the Act which were operating
before coming into force of the amendment. The net result is that a landlord -
under the Act - can seek eviction of a tenant from a non-residential building
on the ground that he requires it for his own use. The parties to bear their
own costs." In view of the above quoted conclusions of this Court the
position of law, which emerges, is that a landlord can seek eviction of a
tenant on the ground of his own use both from residential and also
non-residential building under the East Punjab Urban Rent Restriction Act,
1949.
9.
Now, we turn to the main controversy involved in the present case where the
landlord has sought eviction of his tenant from a Shop-cum-Flat on the ground
of his own use. As shown earlier as a result of the East Punjab Urban Rent
Restriction (Chandigarh Amendment) Act, 1982 a Shop-cum-Flat let under a single
tenancy would be a 'non-residential building". The question, which arises
for consideration is, whether in the Union Territory of Chandigarh a landlord
can seek eviction of a tenant from a non-residential building on the ground of
his own use. Shri Ashwani Chopra, learned senior counsel for the tenant has
submitted that the Parliament enacted the Chandigarh Extension Act, 1974 and
this Act made the East Punjab Urban Rent Restriction Act, 1949 applicable to
the Union Territory of Chandigarh. At the time when the Parliament enacted this
Chandigarh Extension Act, 1974, which was published in Gazette on 20.12.1974,
factually the East Punjab Urban Rent Restriction Act, 1949 did not contain any
provision whereunder a landlord could have sought eviction of a tenant from a
non-residential building on the ground of his own use on account of the
amendment made to it by the Amendment Act, 1956 by which the words "a non
residential building or" occurring in Section 13(3)(a)(ii) of the 1949 Act
had been omitted. Consequently in the Union Territory of Chandigarh a landlord
has no right to seek eviction of a tenant from a non-residential building on
the ground of his own use as there exists no provision to that effect in the
law applicable thereto.
10. Shri
Sudhir Chandra, learned senior counsel for the landlord- respondent, has
submitted that in the case of Harbilas Rai Bansal (supra), this Court declared
the provisions of the Amendment Act, 1956, as constitutionally invalid being violative
of Article 14 of the Constitution and consequently void in view of clause (2)
of Article 13 of the Constitution. Since the provisions of the Amendment Act,
1956 have been found to be void, the result, which would follow, would be as if
the said Amendment Act, 1956, never came into existence and, therefore, by
virtue of Sections 2 and 3 of the Chandigarh Extension Act what the Parliament
made applicable to the Union Territory of Chandigarh was the East Punjab Urban
Rent Restriction Act, 1949, as it existed prior to its amendment by the
Amendment Act, 1956, which contained a provision whereunder a landlord could
seek eviction of a tenant from a non- residential building on the ground of his
own use.
11. We
find sufficient force in the contention raised by the learned counsel for the
respondent-landlord. In Harbilas Rai Bansal (supra), this Court held in very
clear terms that the classification created by the Amendment Act, 1956, by
which the words "a non residential building or" occurring in Section
13(3)(a)(ii) were deleted and certain other amendments had been made, had no
reasonable nexus with the object sought to be achieved by the Act and
consequently the provisions of the Amendment Act were violative of Article 14
of the Constitution. The amendments made were thus struck down. Clause (2) of
Article 13 of the Constitution says that the State shall not make any law which
takes away or abridges the rights conferred by Part III of the Constitution and
any law made in contravention of this clause shall, to the extent of the
contravention, be void. The real effect and import of this constitutional
prohibition contained in clause (2) of Article 13 of the Constitution has been
considered and examined in two Constitution Bench decisions of this Court. In
Deep Chand etc. vs. The State of Uttar Pradesh and others AIR 1959 SC 648, Subba
Rao, J. (as His Lordship then was) held as under in paragraph 13 of the
reports: - "13. .............................A Legislature, therefore, has
no power to make any law in derogation of the injunction contained in Article
13. Article 13(1) deals with laws in force in the territory of India before the
commencement of the Constitution and such laws in so far as they are
inconsistent with the provisions of Part III shall, to the extent of such
inconsistency, be void. The clause, therefore, recognizes the validity of the
pre-Constitution laws and only declares that the said laws would be void
thereafter to the extent of their inconsistency with Part III; whereas clause
(2) of that Article imposes a prohibition on the State making laws taking away
or abridging the rights conferred by Part III and declares that laws made in
contravention of this clause shall, to the extent of the contravention, be
void. There is a clear distinction between the two clauses. Under clause (1), a
pre-Constitution law subsists except to the extent of its inconsistency with
the provisions of Part III; whereas, no post-Constitution law can be made
contravening the provisions of Part III, and therefore the law, to that extent,
though made, is a nullity from its inception. If this clear distinction is
borne in mind, much of the cloud raised is dispelled. When clause (2) of
Article 13 says in clear and unambiguous terms that no State shall make any law
which takes away or abridges the rights conferred by Part III, it will not
avail the State to contend either that the clause does not embody a curtailment
of the power to legislate or that it imposes only a check but not a
prohibition. A constitutional prohibition against a State making certain laws
cannot be whittled down by analogy or by drawing inspiration from decisions on
the provisions of other Constitutions; nor can we appreciate the argument that
the words "any law" in the second line of Article 13(2) posits the
survival of the law made in the teeth of such prohibition. It is said that a
law can come into existence only when it is made and therefore any law made in
contravention of that clause presupposes that the law made is not a nullity.
This argument may be subtle but is not sound. The words "any law" in
that clause can only mean an Act passed or made factually, notwithstanding the
prohibition. The result of such contravention is stated in that clause. A plain
reading of the clause indicates, without any reasonable doubt, that the
prohibition goes to the root of the matter and limits the State's power to make
law; the law made in spite of the prohibition is a still-born law." (emphasis
supplied) The same question was considered by another Constitution Bench SC
1019, where Wanchoo, J. (as His Lordship then was) speaking for the Court said
as under in paragraph 22 of the Reports: -
"22.
.............................. Further, Art. 13(2) provides that the law shall be
void to the extent of the contravention. Now contravention in the context takes
place only once when the law is made, for the contravention is of the
prohibition to make any law which takes away or abridges the fundamental
rights. There is no question of the contravention of Art. 13(2) being a
continuing matter. Therefore, where there is a question of a post-Constitution
law, there is a prohibition against the State from taking away or abridging
fundamental rights and there is a further provision that if the prohibition is
contravened the law shall be void to the extent of the contravention. In view
of this clear provision, it must be held that unlike a law covered by Art.
13(1) which was valid when made, the law made in contravention of the
prohibition contained in Art. 13(2) is a still-born law either wholly or
partially depending upon the extent of the contravention.
Such a
law is dead from the beginning and there can be no question of its revival
under the doctrine of eclipse..............................." (emphasis
supplied) These two Constitution Bench decisions clearly lay down that having
regard to the prohibition contained in clause (2) of Article 13 of the
Constitution any law made in contravention of Part III of the Constitution
would be a stillborn law and such a law is dead from the very beginning. A law,
which is stillborn and is dead right from its inception, cannot at all be taken
notice of or read for any purpose whatsoever.
12.
Section 2 of the Chandigarh Extension Act defines the words "the Act"
as the East Punjab Urban Rent Restriction Act, 1949 as it is extended to, and
was in force in certain areas in the pre-reorganization State of Punjab
immediately before the first day of November, 1966. In view of Section 3 of the
Chandigarh Extension Act "the Act", which would mean the East Punjab
Urban Rent Restriction Act, 1949 as extended to and was in force will be deemed
to have been in force in the Union Territory of Chandigarh with effect from 4th
day of November, 1972. The words "as it extended to and was in force
in" are very significant. Though as a matter of fact certain amendments
had been made to East Punjab Urban Rent Restriction Act, 1949 by the Amendment
Act, 1956, whereby Section 13(3)(a)(ii) had been amended and the words
"non-residential building" occurring therein had been deleted, but
the said amendment having been found to be violative of Article 14 of the
Constitution and having been struck down cannot be taken notice of or read as
the amendment itself was stillborn and dead from the very inception. Therefore,
what the Parliament extended and applied to the Union Territory of Chandigarh
by means of Chandigarh Extension Act was the East Punjab Urban Rent Restriction
Act, 1949 as it existed prior to its amendment by the Amendment Act, 1956.
Something which was stillborn or dead from the very inception cannot be read in
"the Act", as Section 3 does not say anything except to make the 1949
Act applicable to the Union Territory of Chandigarh with effect from the 4th
day of November, 1972.
13. It
may be noticed that the Chandigarh Extension Act simplicitor, or if read in
isolation, would carry no meaning and would be wholly ineffective. In order to
make this Act effective and workable one has to necessarily read "the
Act", viz., the East Punjab Urban Rent Restriction Act, 1949. The
important words in Section 3 of the Chandigarh Extension Act are "the Act
shall be in force in and be deemed to have been in force with effect from 4th
day of November, 1972 in the Union Territory of Chandigarh" and as if this
Section had been in force at all material times, though the Chandigarh
Extension Act was published in the Gazette on 20.12.1974. This Section not only
made the 1949 Act applicable to the Union Territory of Chandigarh but gave it
retrospective effect from 4th November, 1972 by virtue of the deeming
provision. It is well known principle of interpretation of statute that full
effect must be given to a statutory fiction and it should be carried to its
logical conclusion. In view of the mandate contained in clause (2) of Article
13 of the Constitution Section 3 of the Chandigarh Extension Act cannot be
interpreted to mean that the Parliament while extending and applying the East
Punjab Urban Rent Restriction Act, 1949 to the Union of Territory of Chandigarh
also applied those provisions which were stillborn or were dead from the very
inception. The mandate of Article 13(2) of the Constitution will equally apply
to the Parliament when it is functioning as a Legislature for making an Act.
The Parliament cannot be deemed to have taken into consideration something
which was stillborn or dead.
14.
Learned counsel for the appellant-tenant has next submitted that at the time
when the Chandigarh Extension Act, 1974 was enacted, the judgment in the case
of Harbilas Rai Bansal (supra) had not been rendered and the Parliament had
before it the text of East Punjab Urban Rent Restriction Act, 1949 as it stood
after its amendment by the Amendment Act, 1956 by which in Section 13(3)(a)(ii)
the words "non residential building or" had been deleted. Naturally,
therefore, the Parliament applied its mind to the said enactment (1949 Act)
which did not contain any provision regarding eviction of a tenant from a
non-residential building and extended the same to the Union Territory of Chandigarh.
Learned
counsel has also submitted that in order to interpret the provisions of the Act
the Court must look to the intention of the Parliament and having regard to the
factual scenario then existing, namely, that at the time of passing of the Chandigarh
Extension Act in the year 1974, the 1949 Act stood amended by the Amendment
Act, 1956, it is not possible to hold that the Parliament also intended to give
a right to a landlord to seek eviction of a tenant from a non-residential
building on the ground of his own use. In our opinion, it is not possible to
interpret Sections 2 and 3 of the Chandigarh Extension Act in the manner
suggested by the learned counsel for the tenant as it is based upon the
supposed intention of the Parliament. In Maxwell on The Interpretation of
Statutes (Twelfth edition 1969) on page 28 it is said that the primary rule is
to give literal construction and if there is nothing to modify, alter or
qualify the language which the statute contains, it must be construed in the
ordinary and natural meaning of the words and sentences. In Chapter 2, page 28,
the principle has been stated thus: - "The rule of construction is
"to intend the Legislature to have meant what they have actually
expressed". The object of all interpretation is to discover the intention
of Parliament, "but the intention of Parliament must be deduced from the
language used," for "it is well accepted that the beliefs and
assumptions of those who frame Acts of Parliament cannot make the
law"."
15. In
State of Haryana and others vs. Ch. Bhajan Lal and others AIR 1992 SC 604 in
paragraph 42, this Court quoted with approval the following passage from the
judgment of Lord Atkin in Pakala Narayanaswami vs. Emperor AIR 1939 PC 47: -
"When the meaning of the words is plain, it is not the duty of Courts to
busy themselves with supposed intentions ................. It, therefore,
appears inadmissible to consider the advantages or disadvantages of applying
the plain meaning whether in the interests of the prosecution or accused."
In Emperor vs. Benoari Lal Sarma and others AIR 1945 PC 48, Lord Chancellor
Viscount Simon said, "In construing enacted words the Court is not
concerned with the policy involved or with the results, injurious or otherwise,
which may follow from giving effect to the language used." Therefore, any
supposed intention of the Parliament cannot be taken into consideration for
interpretation of the Chandigarh Extension Act, 1974.
16.
Learned counsel for the appellant has laid emphasis on the Statement of Objects
and Reasons of the Amendment Act, 1956, which says that the provisions whereunder
tenants of commercial premises can be evicted on the ground of personal
requirements of the landlord entail a great hardship on such tenants and the provision
allowing eviction on the ground of personal use has been misused by certain
landlords and, therefore, it was considered necessary that the tenants of
non-residential property in Punjab should be placed at par with tenants of such
property in Delhi and other urban areas covered by the Delhi-Ajmer Act. It has
thus been submitted that the Parliament while enacting the Chandigarh Extension
Act, 1974 must have had this object in mind when it extended the East Punjab
Urban Rent Restriction Act, 1949 to the Union Territory of Chandigarh with
effect from 4.11.1972. In our opinion it will not be proper to interpret the
provisions of Chandigarh Extension Act by taking into consideration the Objects
and Reasons of another Act and the supposed intention or notions of the law
makers. It will be apt to quote here what S.R. Das, J. (as His Lordship then
was) said while speaking for a Constitution Bench in Rananjaya Singh vs. Baijnath
Singh and others AIR 1954 SC 749: - "The spirit of the law may well be an
elusive and unsafe guide and the supposed spirit can certainly not be given
effect to in opposition to the plain language of the sections of the Act and
the rules made thereunder. If all that can be said of these statutory
provisions is that construed according to the ordinary, grammatical and natural
meaning of their language they work injustice by placing the poorer candidates
at a disadvantage the appeal must be to Parliament and not to this Court."
This being the position of law, it will not be proper to take into
consideration the Statement of Objects and Reasons of the Amendment Act, 1956
for interpreting the provisions of Chandigarh Extension Act.
17.
Learned counsel for the appellant has lastly submitted that the provisions of
the 1949 Act have been incorporated into the Chandigarh Extension Act and,
therefore, the provisions of the said Act, as they textually stood on
20.12.1974, became part and parcel of the later Act (Chandigarh Extension Act)
and consequently the amendment made to the said Act by the Amendment Act, 1956
have to be taken into consideration and cannot be ignored while examining the
applicability of 1949 Act to the Union Territory of Chandigarh. The submission
is that it is a case of incorporation, which means that if a subsequent Act
brings into itself by reference some of the clauses of a former Act, the legal
effect of that is to write those Sections into the new Act as if they had been
actually written in it with pen and ink or printed in it. The result thereof is
to constitute the latter Act along with the incorporated provisions of the
earlier Act, an independent legislation, which is not modified or repealed by a
modification or repeal of the earlier Act.
18. Shri
Sudhir Chandra, learned senior counsel for the respondent- landlord has,
however, submitted that the principle embodied in legislation by incorporation
or legislation by reference can have no application here as the said principle
has relevance only in the case of amendment or repeal of an Act. According to
the learned counsel as the effect of an amendment or repeal of the Act does not
arise for consideration here, it will not be proper to apply the principle
governing the cases of legislation by incorporation for the purpose of finding
out the real import of Chandigarh Extension Act.
19.
Adopting or applying an earlier or existing Act by competent Legislature to a
later Act is an accepted device of Legislation. If the adopting Act refers to
certain provisions of an earlier existing Act, it is known as legislation by
reference. Whereas if the provisions of another Act are bodily lifted and
incorporated in the Act, then it is known as legislation by incorporation. The
determination whether a legislation was by way of incorporation or reference is
more a matter of construction by the courts keeping in view the language
employed by the Act, the purpose of referring or incorporating provisions of an
existing Act and the effect of it on the day-to-day working. Reason for it is
the courts' prime duty to assume that any law made by the Legislature is
enacted to serve public purpose.
20. In
State of Madhya Pradesh vs. M.V. Narasimhan AIR 1975 SC 1835, after review of
several earlier decisions, the following principle was enunciated: -
"Where a subsequent Act incorporates provisions of a previous Act then the
borrowed provisions become an integral and independent part of the subsequent
Act and are totally unaffected by any repeal or amendment in the previous Act.
This principle, however, will not apply in the following cases :
(a) where
the subsequent Act and the previous Act are supplemental to each other;
(b) where
the two Acts are in pari materia;
(c) where
the amendment in the previous Act, if not imported into the subsequent Act
also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) where
the amendment of the previous Act, either expressly or by necessary intendment,
applies the said provisions to the subsequent Act." 21. The same question
was examined in considerable detail in U.P.
Avas Evam
Vikas Parishad vs. Jainul Islam and another (1998) 2 SCC 467, where a three
Judge Bench of this Court considered the effect of Section 55 and Schedule of
U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, which makes a reference to the
provisions of the Land Acquisition Act and has laid down that any land or
interest therein required by the Parishad for any of the purposes of the Adhiniyam
may be acquired under the provisions of Land Acquisition Act, which for this
purpose has to be subject to the modifications specified in the Schedule of the
Adhiniyam.
This
Court, after referring to large number of earlier decisions, laid down the
following principle in paragraph 17 of the report : -
"17.
A subsequent legislation often makes a reference to the earlier legislation so
as to make the provisions of the earlier legislation applicable to matters
covered by the later legislation. Such a legislation may either be
(i) a
referential legislation which merely contains a reference to or the citation of
the provisions of the earlier statute; or
(ii) a
legislation by incorporation whereunder the provisions of the earlier
legislation to which reference is made are incorporated into the later
legislation by reference.
If it
is a referential legislation the provisions of the earlier legislation to which
reference is made in the subsequent legislation would be applicable as it
stands on the date of application of such earlier legislation to matters
referred to in the subsequent legislation. In other words, any amendment made
in the earlier legislation after the date of enactment of the subsequent
legislation would also be applicable. But if it is a legislation by
incorporation the rule of construction is that repeal of the earlier statute
which is incorporated does not affect operation of the subsequent statute in
which it has been incorporated. So also any amendment in the statue which has
been so incorporated that is made after the date of incorporation of such
statute does not affect the subsequent statute in which it is incorporated and the
provisions of the statue which have been incorporated would remain the same as
they were at the time of incorporation and the subsequent amendments are not to
be read in the subsequent legislation.
In the
words of Lord Esher, M.R., the legal effect of such incorporation by reference
"is to write those sections into the new Act just as if they had been
actually written in it with the pen or printed in it, and, the moment you have
those clauses in the later Act, you have no occasion to refer to the former Act
at all." [See: Wood's Estate, Re, (1886) 31 Ch D 607 at p. 615]. As to
whether a particular legislation falls in the category of referential
legislation or legislation by incorporation depends upon the language used in
the statute in which reference is made to the earlier legislation and other
relevant circumstances." In our opinion, the principle of law underlying
legislation by incorporation or legislation by reference has not much relevance
in the present case. We do not have to examine the effect of any amendment or
repeal of any enactment. Section 3 of the Chandigarh Extension Act makes the
East Punjab Urban Rent Restriction Act, 1949, subject to the modification
specified in the Schedule, applicable to the Union Territory of Chandigarh with
effect form 4.11.1972. It is not a case where any specific section or provision
of the 1949 Act may have been made applicable, but the provisions of the entire
1949 Act have been extended and made applicable to the Union Territory of Chandigarh.
It is in fact a case of extension of an Act to a territory to which it was
previously not applicable.
22.
This very question, namely, whether the 1949 Act was incorporated in the Chandigarh
Extension Act came up for consideration before this Court in M/s. Punjab Tin
Supply Co., Chandigarh vs. Central Government & others AIR 1984 SC 87, and Venkataramiah,
J. (as His Lordship then was) held as under: - "8. The Extension Act
merely brought into force with effect from November 4, 1972, the Act which was
an Act in force in the former State of Punjab with the modifications set out in
its Schedule in the Union Territory of Chandigarh and validated all actions
taken, notifications issued and orders made or purported to have been taken,
issued or made under the Act. Having done that it withdrew from the scene.
Thereafter
the Act as modified by the Extension Act alone has to be looked into to
consider its effect on the Union Territory of Chandigarh. As observed by this
Court in Rajputana Mining Agencies Ltd. v. Union of India (1961) 1 SCR 453 at
p. 457 "there is neither precedent nor warrant for the assumption that
when one Act applies another Act to some territory, the latter Act must be
taken to be incorporated in the former Act. It may be otherwise, if there were
words to show that the earlier Act is to be deemed to be re-enacted by the new
Act". The Act in the instant case was only extended but not re-enacted. We
should, therefore, proceed on the assumption that the Act itself with the
amendments was in force with effect from November 4, 1972 in the Union
Territory of Chandigarh." (In this judgment East Punjab Urban Rent
Restriction Act, 1949 has been referred to as "the Act" and East
Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974 has been
referred to as the "Extension Act" see paras 1 and 3.) It is,
therefore, not possible to accept the submission of the learned counsel for the
appellant that the 1949 Act was incorporated in the Chandigarh Extension Act.
23.
The ultimate question is what is "the Act". For ascertaining the
meaning of the words "the Act" we have to refer back to Section 2,
viz., the East Punjab Urban Rent Restriction Act, 1949 and the provisions of
this 1949 Act have to be seen and examined as they stood on the date when the
eviction petition was filed or till the continuance of the litigation
culminating in the final judgment. On the date when the eviction petition was
filed or at any stage subsequent thereto including the date when the matter was
heard and is being decided by this Court, it is not possible to read the East
Punjab Urban Rent Restriction Act, 1949 in a manner in which it was amended by
the Amendment Act, 1956 but has to be read as it originally stood which
contained a provision giving right to a landlord to seek eviction of a tenant
from a non residential building on the ground of his own use. This is so
because in Harbilas Rai Bansal (supra) the provisions of the Amendment Act,
1956 were held to be violative of Article 14 of the Constitution and were
struck down. Therefore, read in any manner the inevitable consequence is that
the word "the Act" occurring in Section 2 of the Chandigarh Extension
Act has to be read as the East Punjab Urban Rent Restriction Act, 1949 as it
stood before the Amendment Act, 1956. The result that follows is that in the
Union Territory of Chandigarh it is open to a landlord to seek eviction of a
tenant from a non residential building on the ground of his own use.
24.
Apart from what has been said above, the Act has to be interpreted in a just
and equitable manner. To completely deprive a landlord of his right to seek
eviction of a tenant from a non residential building even on the ground of his
own use for all times to come would be highly unjust and inequitable to him.
25. In
the present case the Rent Controller and the Appellate Authority have recorded
concurrent finding of fact that the respondent landlord bona fide needs the
premises in question for his own use and this finding has been affirmed in
revision by the High Court. In this view of the matter we do not find any
illegality in the impugned orders. The appeal is accordingly dismissed with
costs. The appellant-tenant is granted six months time to vacate the premises
subject to his filing the usual undertaking within one month.
Writ
Petition (Civil) No. 234 of 2003 Raminder Pal Singh Sethi .. Petitioner Union
of India & Anr. .. Respondents In this writ petition filed under Article 32
of the Constitution following prayers have been made: -
"(i)
Issue a writ of certiorari striking down the provisions of Section 13(3)(a)(ii)
of the East Punjab Urban Rent Restriction (Extension to Chandigarh) Act, 1974
on the ground of the same being ultra vires Article 14 of the Constitution of
India; and
(ii)
declare that under the East Punjab Urban Rent Restriction Act, 1949 as extended
to Chandigarh vide East Punjab Urban Rent Restriction (Extension to Chandigarh)
Act, 1974, ejectment of tenant on bona fide ground can be made both in case of
residential building as well as non-residential building;
(iii) pass
such other order(s) as this Hon'ble Court
may deem fit and proper."
In
Civil Appeal No. 2894 of 2001, we have held that under East Punjab Urban Rent
Restriction Act, 1949, as extended to Chandigarh by East Punjab Urban Rent
Restriction (Extension to Chandigarh) Act, 1974, a landlord can seek eviction
of a tenant from a non-residential building on the ground of his own use. In
this view of the matter, we do not consider it necessary to adjudicate the
pleas raised in the writ petition as substantive relief has already been
granted to the writ petitioner. The writ petition and the I.As. moved therein
are disposed of.
Civil
Appeal Nos. 7049/2001, 3551/2002, 7920-7921/2002 and Special Leave Petition
(Civil) No. 20444/2001 In all these matters the Rent Controller and the
Appellate Authority have recorded concurrent finding of fact that the landlord
bona fide requires the premises for his own use and this finding has been
affirmed in revision by the High Court. For the reasons given in Civil Appeal
No. 2894 of 2001, there is no merit in the civil appeals and the special leave
petition, which are hereby dismissed with costs. The tenants are given six
months time to vacate the premises subject to their filing usual undertaking
within one month.
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