judgement:
it Petition No. 506 of 1986 etc.
(Under Article 32 of the Constitution of India).
J. Ramamurthi, V. Shanker, B. Parthasarthi, Raju Ramachandran, section Srinivasan, M.C. Verma, C.S. Vaidyanathan, K.R.R. Pillai, E.C. Aggarwala, V. Balachandran, N.K. Sharma, M.N. Krishnamani, Diwan Balakram, A.T.M. Sampath, Mukul Mudgal, V. Balachandran, V. Shekhar, K. Parasaran, Attorney General, Soli J. Sorabjee, Shanti Bhushan, A.K. Verma, D.N. Mishra, A.V. Rangam, P.N. Ramalingam and M. Raghuraman, for appearing parties.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
There is 'much ado about nothing ' about these cases.
These petitions seek to challenge the vires of section 14(1)(b) and section 16(2) as well as incidentally section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called 'the Tamil Nadu Rent Act ') on the ground of being arbitrary, discriminatory and unreasonable.
Different petitions deal with different facts.
It is not necessary to set these out exhaustively but it would be appropriate to deal with the facts of Writ Petition No. 506 of 1986 as a typical one in order to appreciate the points in issue.
In Writ Petition No. 506 of 1986, the respondent landlord on or about 21st of March, 1978 after purchasing the premises No.95, Thyagaraja Road, T. Nagar, Madras from the erstwhile owner, filed an eviction petition in the court of Small Causes, Madras for eviction of the petitioner herein from the premises where the petitioner had been carrying on a hotel business serving meals etc.
for four decades.
The grounds in the eviction petition were non payment of rent under sec 7 tion 10(2)(1) of the Tamil Nadu Rent Act, unlawful sub letting under section 10(2)(ii)(a), causing damages to the premises under section 10(2)(iii) and also for the purposes of demolition and reconstruction under section 14(1)(b).
The learned Judge of the trial court ordered eviction under section 14(1)(b) of the Tamil Nadu Rent Act only for demolition and reconstruction and dismissed the other grounds, and that is the only ground with which we are concerned in this appeal.
On 25th of February, 1981 the Appellate Court dismissed the petitioner 's appeal by saying that the landlords were rich people and capable of demolition and reconstruction in order to put the premises to a more profitable use by putting up their own showroom.
On September 30, 1982 the High Court dismissed the civil revision petition of the petitioner and granted time till 31st of January, 1983 for the petitioner to vacate the premises in question.
The petitioner thereafter filed a special leave petition against the judgment and order of the High Court in this Court.
This Court initially ordered show cause notice and also granted ad interim ex parte stay of dispossession.
On 29th January, 1983 the City Civil Court, Madras granted interim injunction restraining the respondents from demolishing the building till the disposal of the application in the suit filed by the petitioner against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner.
According to the petitioner the injunction was confirmed and was still continuing and the said suit for specific performance was also pending in the City Civil Court, Madras.
On 17th of February, 1986 this Court dismissed the special leave petition after notice but directed that the decree for eviction would not be executed till 17.11.86.
It was observed by this Court that the petitioner would be at liberty to file a writ petition under Article 32 of the Constitution, if so advised, challenging the validity of section 14(1)(b) of the Tamil Nadu Rent Act as mentioned on behalf of the petitioner.
The petitioner filed this writ petition challenging the validity of section 14(1)(b) and section 16(2) of the Tamil Nadu Rent Act on the ground that these were arbitrary, discriminatory, unreasonable and unconstitutional.
The petitioner contends in this writ petition that consequently the eviction order passed under section 14(1)(b) and confirmed in appeal is also illegal.
The aforesaid several of the writ petitions are on this issue.
The main ground of attack on this aspect seems to be that while 8 other Rent Acts in case of eviction for demolition permit and direct that after reconstruction the tenant should be inducted as tenant or given the opportunity to have the same space in the reconstructed building, in the instant Act no such option is given and no such obligation imposed upon the landlord and as such the impugned provision is illegal as being discriminatory against the tenant.
In order to examine the various aspects on this contention, it will be necessary to examine in detail the relevant provisions of the Act.
It should be borne in mind, however, that this was an Act passed to amend and consolidate the law relating to the regulation of the letting of residential and non residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants in the State of Tamil Nadu.
Section 14 of the Tamil Nadu Rent Act states as follows: " 14.
Recovery of possession by landlord for repairs or for reconstruction. (1) Notwithstanding anything contained in this Act, but subject to the provisions of sections 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied (a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or (b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
(2) No order directing the tenant to deliver possession of the building under this section shall be passed (a) on the ground specified in clause (a) of subsection (1), unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub section (1) for his re occupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow; or 9 (b) on the ground specified in clause (b) of subsection (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow.
(3) Nothing contained in this section shall entitle the landlord who has recovered possession of the building for repairs to convert a residential building into a non residential building or a non residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order under subsection (1).
(4) Notwithstanding an order passed by the Controller under clause (a) of sub section (1) directing the tenant to deliver possession of the building, such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession of the building by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking under clause (a) of subsection (2).
(5) Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section".
Section 15 empowers the tenant to re occupy after repairs.
There is no such provision in case of eviction on the ground of bona fide need for demolition and reconstruction.
This is one of the grounds of challenge.
Section 16 deals with the right of the tenant to occupy the building if it is not demolished.
Sub section (2) which was amended and introduced by Act 23 of 1973 dealing with the reconstructed building reads as follows: 10 "16(2) Where in pursuance of an order passed by the Controller under clause (b) of sub section (1) of section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned.
" In this connection section 30 which exempts certain buildings may be referred to and sub section (i) is important.
It reads as follows: "30.
Exemption in the case of certain buildings Nothing contained in this Act shall apply to (i) any building for a period of five years from the date on which the construction is completed and notified to local authority concerned; or (ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds (four hundred rupees).
" In this appeal we are not concerned with clause (ii) of section 30 the challenge to whose validity has been accepted by this Court in Rattan Arya and others vs State of Tamil Nadu and another; , Section 30(ii) of the Tamil Nadu Rent Act has been struck down as violative of Article 14.
Various submissions were urged in support of the several writ petitions.
Sree Raju Ramachandran contended that in most of the Indian statutes dealing with eviction of tenants, there are provisions of re induction of the tenant where the eviction is obtained on the ground of reconstruction after the premises in question is reconstructed.
It was submitted that in those statutes, there is obligation on the landlord to reconstruct within a certain period and the corresponding right on the tenant evicted to be re inducted at the market rate to be fixed by the Rent Controller or by such authority as the Court may direct.
Our attention was drawn to several statutes, namely, Maharashtra, Karnataka, Kerala, West Bengal and numerous others where there are provisions for re induction of other tenants in the premises after reconstruction.
Most of the provisions of other statutes provide for such induction while the Tamil Nadu Rent Act does not.
On this 11 ground it was submitted, that firstly, that this is violative of Article 14 of the Constitution.
It was further submitted that section 16(2) of the Tamil Nadu Rent Act says that where in pursuance of an order of eviction passed by the Rent Controller under section 14(1)(b) any building is totally demolished and a new building is erected in its place, all the provisions of the Act shall cease to apply to such new building for a period of five years.
It was submitted that neither the old tenant nor any new tenant was thus entitled to protection of the Rent Control Act after reconstruction.
The old tenant cannot also get into the new building as of right.
This discrimination against the tenants in Tamil Nadu is invidious and violates Article 14 of the Constitution.
Secondly, it was submitted that if in case of repairs which also dislodges the tenants for limited period, the tenants have a right to get into the premises after repairs under the Tamil Nadu Rent Act, it is unreasonable that tenants should not have the same right in case of reconstruction.
It was urged that once the building is ready for occupation it should make no difference whether the readiness is after repairs or after construction.
It was urged that in both cases the tenants go out during the period of building work, and they should equally come back into the building after repairs or reconstruction.
It was submitted on this ground also that not enjoining re induction of the evicted tenant after reconstruction is discriminatory and unconstitutional.
The classification of buildings reconstructed differently from the buildings repaired is not valid, as it has no relation to the object or purpose of the Act.
Furthermore, that all the tenants belong to one class and they could not be treated differently.
On this aspect it was further submitted that the provisions of re induction in most of the Rent Acts re presented the standard of reasonableness in the landlord and the tenant law and the philosophy of Rent Control Legislation.
It re presented the national consensus of reasonable standard.
Therefore, any provision which according to learned counsel appearing for the different parties in the writ petitions, was in variance with that standard was unreasonable and as such violative of Article 14 of the Constitution.
In aid of this submission various contentions were urged.
We are, however, unable to accept this submission.
Learned Attorney General appearing for the respondents submitted before us that the main provision of section 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he was satisfied that the building was bona fide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished might pass an order directing the tenant to deliver 12 possession of the building to the landlord before a specified date.
In the case of an application under section 14(1)(a) of the Tamil Nadu Rent Act namely bona fide requirement for carrying out repairs it cannot be carried out without the building being vacated and it has to be done within three months to enable the tenant to re occupy the building.
It has further to be borne in mind that in the case of demolition and re construction, the landlord has to undertake that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and the entire demolition work shall be completed before the expiry of three months from the date he recovers possession of the entire building.
See in this connection the provisions of section 16 of the said Act.
The demolition has therefore to be completed within three months.
In the case of massive buildings demolition can overtake six months or even a year and hence the provision that for reasons to be recorded in writing, the Controller may allow such further period.
It has further to be borne in mind that after such demolition the re construction of a new building on the same site is bound to take time and such time depends upon the nature of the building to be erected and it might take years it was argued.
During that period a tenant was bound to have found some other suitable alternative accommodation; on the other hand in the case of a building for repairs, a tenant may arrange for temporary accommodation for a few months and return back to the building.
Therefore provision for reinduction in the case of repairs and absence of such a provision in the case of demolition and reconstruction is quite understandable and rational.
It has to be borne in mind that it is not practicable and would be anamolous to expect a landlord to take back a tenant after a long lapse of time during which time the tenant must necessarily have found some suitable accommodation elsewhere.
This is the true purpose behind section 14(1)(b) read with section 14(2)(b).
In the aforesaid view of the matter, we are unable to accept the submission that in providing for re induction of the tenant in case of repairs and not providing for such re induction in case of reconstruction, there is any unreasonable and irrational classification without any basis.
The other submission as noted above was that in most of the Rent Acts, there was provision for re induction of the tenants but there was no such provision in case of reconstruction in the Tamil Nadu Rent Act.
In The State of Madhya Pradesh vs G.C. Mandawar, ; , a Constitution Bench of this Court observed that 13 Article 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory.
Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments.
The source of authority for the two statutes being different, Article 14 can have no application ' it was observed.
It is necessary now to deal with the submission that the section is unreasonable.
For this, one has to bear in mind the public purpose behind the legislation.
The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was passed in 1960.
A similar enactment which was in operation from 1949 to 1960 did not contain any provision like sections 14 to 16 providing for eviction of the tenant on the ground of demolition and reconstruction.
In 1949, however, the enactment contained a provision empowering the Government to exempt any building or class of buildings from all or any of the provisions of the Act.
When the landlords desired to evict tenants on the ground of demolition and re construction, they resorted to the remedy of moving the Government by an application for exemption under section 13 of the 1949 Act.
The Government by notification used to exempt any building or class of buildings from all or any of the provisions of the Act.
In this connection reference may be made to the decision in section Kannappa Pillai and another vs B. Venkatarathnam, (78 Law Weekly 363).
The Government in that case when passing the order of exemption used to impose condition that the landlord should complete the re construction within four months from the date on which the premises were vacated by the tenants and that he should take back the old tenants into the reconstructed building at the rate demanded by the landlord subject to the fixation of fair rent.
However, in view of the tenants ' conduct in resorting to writ proceedings challenging the order of exemption and in filing suits and having delayed the process of demolition and reconstruction, the Court in the exercise of discretion refused to extend the benefit of the condition as to re induction in favour of the tenants.
The further remedy was by writ proceedings before the High Court by the landlord or the tenant who felt aggrieved as the case may be.
It was submitted on behalf of the respondents by the learned Attorney General that the Legislature in view of the experience gained from 1949 to 1960 enacted sections 14 to 16 of the Act and which were introduced in the Act of 1960.
14 It was urged that the 1960 Act had improved the position.
It had provided as a ground of eviction of the tenant the requirement of the landlord for demolition and re construction of the building leaving it to a judicial authority viz. Rent Controller to decide the matter with one statutory right of appeal and a further right of revision to the District Court or the High Court as the case may be.
It was on this ground urged that leaving the matter to judicial adjudication as to the ground for eviction, it cannot be held to be arbitrary, unreasonable or unjust.
This point has to be judged keeping in view the main purpose of the Act in question and the relevant submissions on this aspect.
It may be borne in mind that historically the constitutionality of section 13 of the Act of 1949 was upheld on the touchstone of Article 14 both by the Madras High Court and on appeal by this Court in P.J. Irani vs The State of Madras, ; It was held that section 13 of the Act did not violate Article 14 and was not unconstitutional.
Enough guidance, according to the judgment of the majority of learned judges, was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the government.
It was observed that the power under section 13 of the Act was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenants.
It was held by Sinha, C.J., Ayyangar and Mudholkar, JJ.
that section 13 was ultra vires and void.
An order made under section 13 was subject to judicial review on the grounds that (a) it was discriminatory, (b) it was made on grounds which were not germane or relevant to the policy and purpose of the Act, and (c) it was made on grounds which were mala fide.
While S.K. Das and A.K. Sarkar, JJ. emphasised that the order passed by the government under section 13 was a competent and legal order.
All that the court had to see was whether the power had been used for any extraneous purpose, i.e. not for achieving the object for which the power was granted.
The Act of 1960 contains a corresponding provision for exemption in section 29 of the Act which corresponds to section 13 of the Act of 1949 was also upheld by this Court in section Kandaswamy Chettiar vs State of Tamil Nadu and another; , Dealing with section 29 of the Act this Court observed that the rationale behind the conferral of such power to grant exemptions or to make exceptions was that an inflexible application of the provisions of the Act might under some circumstances result in unnecessary hardship entirely disproportionate to the good which will result from a literal enforcement of the Act and also the practical impossibility of anticipating in advance 15 such hardship to such exceptional cases.
In the matter of beneficial legislations also there were bound to be cases in which an inflexible application of the provisions of the enactment might result in unnecessary and undue hardship not contemplated by the legislature.
The power to grant exemption under section 29 of the Act, therefore, has been conferred not for making any discrimination between tenants and tenants but to avoid undue hardship or abuse of the beneficial provisions that might result from uniform application of such provisions to cases which deserve different treatment.
The decision reiterated that the Tamil Nadu Rent Act was a piece of beneficial legislation intended to remedy the two evils of rackrenting (exaction of exorbitant rents) and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period creating acute shortage of accommodation in such areas and the enactment avowedly protects the rights of tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted therefrom.
In that view of the matter it had made a rational classification of buildings belonging to government and buildings belonging to religious, charitable, educational and other public institutions and the different treatment accorded to such buildings under section 10(3)(b) of the Act.
The scope of this Act was discussed by this Court in Raval and Co. vs K.C. Ramachandran & Ors., [1974] 2 S.C.R. 629, where the majority of the court at pages 635 to 636 observed: "All these show that the Madras Legislature had applied its mind to the problem of housing and control of rents and provided a scheme of its own.
It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenants.
It wanted it to be fair both to the landlord as well as the tenant.
Apparently it realised that the pegging of the rents at the 1940 rates had discouraged building construction activity which ultimately is likely to affect every body and therefore in order to encourage new constructions exempted them altogether from the provisions of the Act.
It did not proceed on the basis that all tenants belonged to the weaker section of the community and needed protection and that all landlords belonged to the better off classes.
It confined the protection of the Act to the weaker section paying rents below Rs.250.
It is clear, therefore, that the Madras Legislature deliberately proceeded on the basis that fair rent was to be fixed which was 16 to be fair both to the landlords as well as to the tenants and that only the poorer classes of tenants needed protection.
The facile assumption on the basis of which an argument was advanced before this Court that all Rent Acts are intended for the protection of tenants and, therefore, this Act also should be held to be intended only for the protection of tenants breaks down when the provisions of the Act are examined in detail.
The provision that both the tenant as well as the landlord can apply for fixation of a fair rent would become meaningless if fixation of fair rent can only be downwards from the contracted rent and the contract rent was not to be increased.
Of course, it has happened over the last few years that rents have increased enormously and that is why it is argued on behalf of the tenants that the contract rents should not be changed.
If we could contemplate a situation where rents and prices are coming down this argument will break down.
It is a realisation of the fact that prices and rents have enormously increased and therefore if the rents are pegged at 1940 rates there would be no new construction and the community as a whole would suffer that led the Madras Legislature to exempt new buildings from the scope of the Act.
It realised apparently how dangerous was the feeling that only "fools build houses for wise men to live in".
At the time the 1960 Act was passed the Madras Legislature had before it the precedent of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956.
That Act provides for fixation of fair rent.
It also provides that the contract rent, if lower, will be payable during the contract period.
Even if the contract rent is higher only the fair rent will be payable.
After the contract period is over only the fair rent is payable.
The Madras Legislature having this Act in mind still made only the fair rent payable and not the contract rent if it happens to be lower.
It is clear, therefore, that the fair rent under the present Act is payable during the contract period as well as after the expiry of the contract period.
" The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power.
The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant.
17 In Murlidhar Agarwal and another vs State of U.P. and others; , this Court had occasion to deal with this matter.
In that case, powers of High Court to interfere with revisional orders passed by State Government under section 7F of U.P. Temporary Control of Rent and Eviction Act, 1947 were challenged.
The Court was of the view that if a provision was enacted for the benefit of a person or class of persons, there was nothing which precluded him or them from contracting to waive the benefit, provided that no question of public policy was involved.
In doing so, the question arose what was the 'public policy ' involved in the said Rent Act.
There can be no doubt about the policy of the law, namely, the protection of a weaker class in the community from harassment of frivolous suits.
But the question is, is there a public policy behind it which precludes a tenant from waiving it? Mathew, J. reiterated that public policy does not remain static in any given community.
It may vary from generation to generation and even in the same generation.
Public policy would be almost useless if it were to remain in fixed moulds for all time.
The Rent Act, however, balances both the sides, the landlord and the tenant.
The main provision of Section 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he is satisfied that the building is bonafide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished may pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
Section 16 provides for the tenant to occupy the building if it is not demolished in certain contingencies.
The scheme of the section was very carefully analysed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha; , In Metalware and Co. etc.
vs Bansilal Sharma and Ors.
; , this Court emphasised that the phrase used in section 14(1)(b) of the Act was "the building was bona fide required by the landlord" for the immediate purpose of demolition and reconstruction and the same clearly referred to the bona fide requirement of the landlord.
This Court emphasised that the requirement in terms was not that the building should need immediate demolition and reconstruction.
The state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in 18 future would not be a totally irrelevant factor while determining "the bona fide requirement of the landlord." This Court emphasised that if the Rent Controller had to be satisfied about the bona fide requirement of the landlord which meant genuineness of his claim in that behalf the Rent Controller would have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction.
All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under section 14(1)(b).
The fact that a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself might not be sufficient to establish his bona fide requirement if the building happened to be a very recent construction in a perfectly sound condition and its situation might prevent its being put to a more profitable use after reconstruction.
The Rent Controller has thus to take into account the totality of the circumstances and the factors referred to in the judgment by lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for re induction of the evicted tenant into the new construction.
Reference was made to the decision of this Court in Neta Ram vs Jiwan Lal, [1962] Suppl.
2 S.C.R. 623.
There must be bona fide need of the landlord on all the conditions required to be fulfilled.
That being the scheme of the section, it cannot be said, in our opinion, that the section was arbitrary and excessive powers were given to the landlords.
Absence of provision for re induction does not ipso facto make the provisions of the Act unfair or make the Act self defeating.
It has been borne in mind that the provisions of the Act imposed restrictions on the landlord 's right under the common law or the Transfer of Property Act to evict the tenant after termination of his tenancy.
The rationale of these restrictions on the landlord 's rights is the acute shortage of accommodation and the consequent need to give protection to the tenants against unrestricted eviction.
The nature, the form and the extent of the restrictions to be imposed on the landlord 's right and the consequent extent of protection to be given to the tenants is a matter of legislative policy and judgment.
It is inevitably bound to vary from one State to another depending on local and peculiar conditions prevailing in the State and the individual State 's appreciation of the needs and problems of its people.
When we are confronted with 19 the problem of a legislation being violative of Article 14, we are not concerned with the wisdom or lack of legislative enactment but we are concerned with the illegality of the legislation.
There may be more than one view about the appropriateness or effectiveness or extent of the restrictions.
There may be also more than one view about the relaxation of the restrictions on the landlord 's right of eviction.
This fact is reflected in the different provisions made in different Acts about the grounds for eviction.
For example, in case of Assam, Meghalaya, Andhra Pradesh, Delhi, Haryana, Orissa, Tripura, East Punjab, Madhya Pradesh, Tamil Nadu, Kerala, Mysore, Himachal Pradesh and Pondicherry, no particular duration for arrears of rent is prescribed, which would entitle a landlord to maintain an action for ejectment of his tenant.
However, in other cases a certain period is prescribed.
For instance, two months in Bihar, West Bengal and Jammu and Kashmir, three months in Goa and Tripura, four months in Uttar Pradesh, six months in Bombay and Rajasthan.
Again some Rent Acts require that before an action for ejectment on the ground of arrears is instituted, a notice demanding rent should be served on the tenant for example Bombay, Delhi, Kerala, Tripura, Jammu and Kashmir, Madhya Pradesh and U.P. Rent Acts.
In such cases the tenant is given one chance to pay up the arrears.
Again different Rent Acts provide different facts and circumstances on the basis of which premises could be recovered on the ground of bona fide personal requirement.
Generally the bona fide requirement extends both to residential as well as commercial premises.
However, the Delhi Rent Control Act restricts the right on account of the bona fide need of the landlord 's right to premises let for residential use only.
Further, Bihar, Bombay, Goa, Jammu and Kashmir, Karnataka, Tamil Nadu, U.P. and West Bengal Rent Acts provide for partial eviction.
But there is no such provision in the other Acts.
It is obvious from the above that there can be no fixed and inflexible criteria or grounds governing imposition of restrictions on the landlord 's right or for relaxation of those restrictions in certain cases.
Ultimately it is a matter of legislative policy and judgment.
Courts are not concerned with the unwisdom of legislation.
"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.".
See in this connection the observations of Krishna Iyer, J. in Murthy Match Works, etc.
vs The Asstt.
Collector of Central Excise, etc.
; , This Court approved the above passage from the American Jurisprudence and emphasised that in a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things.
It is 20 important to bear in mind the constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula.
Therefore, a large latitude is allowed to the States for classification upon any reasonable basis.
See also in this connection the observations of this Court in Re The Special Courts Bill, 1978, where Chandrachud, C.J.speaking for the Court at pages 534to537 of the report laid down the propositions guiding Article 14 and emphasised that the classification need not be constituted by an exact or scientific exclusion nor insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case.
Classification therefore, is justified if it is not palpably arbitrary.
We also in view of the different provisions we have discussed bear in mind the fact that there is no such consensus among the different States about the right of re induction of tenant in case of eviction required for demolition.
It will depend on the particular State and, appreciation of the need and problem at a particular point of time by that State concerned.
The purpose underlying section 14(1)(b) read with section 16(2) of the Tamil Nadu Rent Act is to remove or mitigate the disinclination on the part of landlords to expend moneys for demolition of dilapidated buildings and reconstruct new buildings in their places.
It is a matter of which judicial notice can be taken that the return from old and dilapidated buildings is very meagre and in several cases such buildings prove uneconomic for the landlords with the result that the condition of the building deteriorates and there are even collapses of such buildings.
It is for this purpose that the landlord is given by section 14(1)(b) read with section 16 an incentive in the form of exemption from the provisions of the Rent Act in respect of reconstructed building for the limited and short duration of five years.
The policy under section 14(1)(b) read with section 16 is not in essence different from the policy adopted by different States of giving exemption for a limited duration to newly constructed buildings.
These provisions, namely, exemption of new buildings from the provisions of the Rent Act for a period of five years or ten years has been upheld as constitutional.
See in this connection the observations of this Court in the case of Punjab Tin Supply Co., Chandigarh & Ors.
vs The Central Govt.
& Ors.
, ; at pages 216 and 217 and Mohinder Kumar vs State of Haryana and Anr, [1985] 4 S.C.C. 221 at pages 226 227.
There the Court emphasised that it is entirely for the Legislature to decide whether any measures, and if so, what measures are to be adopted for remedying the situation and for ameliorating the hardship of tenants.
The Legislature may very well come to a conclusion that it is the shortage of buildings which has resulted in scarcity of accommodation 21 and has created a situation where the demand for accommodation is far in excess of the requisite supply, and, it is because of such acute scarcity of accommodation the landlords are in a position to exploit the situation to the serious detriment of the tenants.
The Court observed at pages 226to227 of the report as under: "The Legislature in its wisdom may properly consider that in effecting an improvement of the situation and for mitigating the hardship of the tenanted class caused mainly due to shortage of buildings, it will be proper to encourage construction of new buildings, as construction of new buildings will provide more accommodation, easing the situation to a large extent, and will ultimately result in benefiting the tenants.
As in view of the rigours of Rent Control Legislation, persons with means may not be inclined to invest in construction of new houses, the Legislature to attract investment in construction of new houses may consider it reasonable to provide for adequate incentives so that new constructions may come up.
It is an elementary law of economics that anybody who wants to invest his money in any venture will expect a fair return on the investment made.
As acute scarcity of accommodation is to an extent responsible for the landlord and tenant problem, a measure adopted by the Legislature for seeking to meet the situation by encouraging the construction of new buildings for the purpose of mitigating the hardship of tenants must be considered to be a step in the right direction.
The provision for exemption from the operation of the Rent Control Legislation by way of incentive to persons with means to construct new houses has been made in Section 1(3) of the Act by the Legislature in the legitimate hope that construction of new buildings will ultimately result in mitigation of the hardship of the tenants.
Such incentive has a clear nexus with the object to be achieved and cannot be considered to be unreasonable or arbitrary.
Any such incentive offered for the purpose of construction of new buildings with the object of easing the situation of scarcity of accommodation for ameliorating the conditions of the tenants, cannot be said to be unreasonable, provided the nature and character of the incentive and the measure of exemption allowed are not otherwise unreasonable and arbitrary.
The exemption to be allowed must be for a reasonable and a definite period.
An exemption for an indefinite period or a 22 period which in the facts and circumstances of any particular case may be considered to be unduly long, may be held to be arbitrary.
The exemption must necessarily be effective from a particular date and must be with the object of promoting new constructions.
With the commencement of the Act, the provisions of the Rent Act with all the restrictions and rigours become effective.
Buildings which have been constructed before the commencement of the Act were already there and the question of any kind of impetus or incentive to such buildings does not arise.
The Legislature, therefore, very appropriately allowed the benefit of the exemption to the buildings, the construction of which commenced or was completed on or after the commencement of the Act.
This exemption in respect of buildings coming up or to come up on or after the date of commencement of the Act is likely to serve the purpose of encouraging new buildings to be constructed.
There is therefore nothing arbitrary or unreasonable in fixing the date of commencement of the Act from which the exemption is to be operative." Section 14(1)(b) has sufficient inbuilt guidelines.
The requirements to be satisfied before initiating action under this provision have been judicially laid down by the Madras High Court by Anantanarayanan, J. as he then was, in Mehsin Bhai vs Hale and company, G. T. Madras, Anantanarayanan, J. observed at page 147 as follows: " What the section really required is that the landlord must satisfy the Court that the building was bona fide required by him, for the immediate purpose of demolition.
I am totally unable to see how the present state of the building, and the extent to which it could stand without immediate demolition and reconstruction, in the future, are not relevant considerations in assessing the bona fides of the landlord.
On the one hand, landlords may bona fide require such buildings, particularly old buildings, in their own interest, for demolition and reconstruction.
On the other hand, it is equally possible that the mere fact that the building is old, is taken advantage of by the landlord to put forward such pretext his real object being ulterior, and not bona fide for the purpose of reconstruction.
The Courts have to apply several criteria, and to judge upon the totality 23 of the facts.
But the Courts cannot exclude the possibility that the ancient or relatively old character of the building which may nevertheless be in quite a good and sound condition, is being taken advantage of by a landlord in order to make such an application with an ulterior purpose, which purpose might be, for instance, to obtain far more advantageous terms of rent in the future.
What the section really contemplates is a bona fide requirement; that necessarily implied that it is in the interests of the landlord to demolish and reconstruct the building, and that the fact that the building is old is not merely a pretext for advancing the application, with the object of evicting the tenant, and of obtaining higher rentals.
" This Court also emphasised this aspect in the decision of Metalware & Co. etc.
vs Bansilal Sharma and others etc.
; , at pages 1117 1118.
We are therefore unable to accept the submission that absence of the right of induction of tenants in reconstructed premises is either arbitrary or unreasonable.
The submission that section 16(2) which provides that when a building is totally demolished and on which a new building is erected shall be exempt from all the provisions of the Act for a period of five years is bad is also unsustainable.
See in this connection the observations of this Court in M/s. Punjab Tin Supply Co., Chandigarh etc.
vs The Central Government and others; , and Motor General Traders and another etc.
vs State of Andhra Pradesh and others etc.
; , at page 605.
It was submitted that the fact that in these cases exemption was after the first construction of the building and not after demolition and re construction but that would not make any difference to the principle applicable.
The principle underlying such exemption for a period of five years is not discriminatory against tenants, nor is it against the policy of the Act.
It only serves as an incentive to the landlord for creation of additional housing accommodation to meet the growing needs of persons who have no accommodation to reside or to carry on business.
It does not create a class of landlords who will forever be kept outside the scope of the Act as the provision balances the interests of the landlords on the one hand and the tenants on the other in a reasonable way.
This Court in Atam Prakash vs State of Haryana and others; , also judged the rules of classification in dealing with the Punjab Pre emption Act, 1913.
24 This Court emphasised in Panchamal Narayan Shenoy vs Basthi Venkatesha Shenoy; , that in considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord.
It was also emphasised that it was not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.
Our attention was drawn to certain observations of Chatterjee, J. of the Calcutta High Court in Jiwanlal & Co. and others vs Manot and Co., Ltd., (64 Calcutta Weekly Notes 932 at page 937) that where the landlord had established a case of building and rebuilding the tenants undoubtedly would suffer on ejectment.
The learned Judge was of the view that though the landlords required the premises for the purpose of building and rebuilding, it was not desirable that the tenants should be ejected.
The learned Judge emphasised that the purpose of the Act was to protect the tenants as long as possible and to eject them only when it was not otherwise possible.
The landlords did not require it for their own use and occupation.
They wanted it for the advantage of increased accommodation.
The learned Judge was of the view that if the tenants were ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as for themselves.
We are, however, unable to accept this principle.
It is true that the Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act and one of the purposes of the Act is to solve the acute shortage of accommodation by making a rational basis for eviction and to encourage building and rebuilding which is at the root of all causes of shortage of accommodation.
It was held by a learned single Judge of the Madras High Court (one of us Natarajan J.) in M/s. Patel Roadways Private Limited, Madras vs State of Tamil Nadu and others, (A.I.R. 1985 Madras 119) that the provisions of the Tamil Nadu Act were not violative of Article 14 and Article 19(1)(f) of the Act.
But that was in a slightly different context.
Post war migration of human beings en bloc place to place, the partition of the country and uprooting of the people from their hearth and home, explosion of population, are the various vital factors leading to the present acute shortage of housing.
It has to be borne in mind 25 that the urge for land and yearning for hearth and home are as perennial emotions as hunger and sex are, as Poet Rabindranath would say meaning thereby, it is not wealth I seek, it is not fame that I want, I crave for a home expressing the eternal yearning of all living beings for habitat.
It is common knowledge that there is acute shortage of housing, various factors have led to this problem.
The laws relating to letting and of landlord and tenant in different States have from different States ' angles tried to grapple the problem.
Yet in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and the people suffer.
More houses must, therefore, be built, more accommodation and more spaces made available for the people to live in.
The laws of landlord and tenant must be made rational, humane, certain and capable of being quickly implemented.
Those landlords who are 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 rational 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.
26 For the reasons aforesaid the contentions urged in writ petitions fail and are accordingly dismissed.
In the facts and circumstances of the case there will be no order as to costs.
Interim orders if any are vacated.
S.L. Petition dismissed.

summary/full:
There was 'much ado about nothing ' about these Writ Petitions under Article 32 of the Constitution.
The petitions sought to challenge the Vires of sections 14(1)(b), 16(2) and, incidentally, sec.
30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of being arbitrary, discriminatory and unreasonable.
The different petitions had different facts, and it was considered appropriate to deal with the facts of the writ petition filed by Prabhakaran Nair (Writ Petition No. 506 of 1986) as a typical case to appreciate the points in issue.
In that case, the respondents landlords, after purchasing the premises in dispute from the erstwhile owner, filed an application for the eviction of the petitioner from the said premises on the grounds of non payment of rent under section 10(2)(1), unlawful sub letting under section 10(2)(ii)(a), causing damages to the premises under section 10(2)(iii) and demolition and reconstruction of the premises under section 14(1)(b) of the Tamil Nadu Rent Act.
The Trial Court ordered eviction only under section 14(1)(b) of the Act for demolition and reconstruction, rejecting the other grounds.
The appellate court dismissed the appeal of the petitioner.
The High Court also dismissed the civil revision petition of the petitioner.
The petitioner then filed a petition for Special Leave in this Court against the judgment and order of the High Court.
In the meanwhile, the City Civil Court, on January 29, 1983, granted interim injunction, restraining the respondents landlords from demolishing the building till the disposal of an application filed by the petitioner in the suit, against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner.
The injunction was stated to have been confirmed and was still continuing as the said application for specific performance was still pending in the City Civil Court.
2 This Court dismissed the petition for special leave, observing that the petitioner would be at liberty to file, if so advised, a writ petition under Article 32 of the Constitution, challenging the validity of section 14(1)(b) of the Act.
The petitioner filed this writ petition, challenging the validity of sections 14(1)(b) and 16(2) of the Tamil Nadu Rent Act as being arbitrary, discriminatory, unreasonable and unconstitutional, and contending consequently that the eviction order passed against him under section 14(1)(b) was illegal.
Several of the other writ petitions were on this issue.
Dismissing the Writ Petitions, the Court, ^ HELD: In this case, the Court was not concerned with clause (ii) of section 30 of the Tamil Nadu Act, a challenge to the validity of which had been accepted by the Court in Rattan Arya and others vs State of Tamil Nadu and another; , and the section 30(ii) had been struck down as violative of Article 14 of the Constitution.
[10E] Under section 14(1)(b) of the Act, a landlord could make an application to the Rent Controller for possession of a building, and the Rent Controller, if satisfied that the building was bona fide required by the landlord for the immediate purpose of demolition and such demolition was for the purpose of erecting a new building on the site of the building sought to be demolished, might pass an order, directing the tenant to deliver possession of the building to the landlord before a specified date.
Under the provisions of the Act, the landlord has to commence the work of demolition not later than one month and the entire demolition work shall be completed before the expiry of three months from the date he recovers possession of the entire building, and in the case of massive buildings, demolition can take six months or even a year, in which case, for reasons to be recorded in writing, the controller may allow further period.
During that period a tenant was bound to have found some other suitable alternative accommodation.
In the case of a building vacated for repairs under section 14(1)(a) of the Act, a tenant may arrange for a temporary accommodation for a few months and then return to the building.
It was not practicable and would be anomalous to expect a landlord to take back a tenant for a re constructed building after a long lapse of time during which the tenant must necessarily have found some other suitable accommodation.
This was the true purpose behind section 14(1)(b) read with section 14(2)(b).
In that view of the matter, the Court was unable to accept the submission that in providing for the re induction of the tenant in the case of repairs and not in the 3 case of re construction, there was any unreasonable and irrational classification without any basis.
The absence of the provision for reinduction does not ipso facto make the provisions of the Act unfair or make the Act self defeating.
[11G, 12A C,D G, 18E] As regards the submission that in most of the Rent Acts, there was a provision for re induction of the tenant after re construction, but in the case of the Tamil Nadu Act, there was no such provision and this was violative of Article 14 of the Constitution, Article 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subjects, its provisions are discriminatory, and nor does it contemplate a law of the centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments; the source of authority for the two statutes being different, Article 14 could have no application, as observed by a Constitution Bench of this Court in the State of Madhya Pradesh vs G.C. Mandawar; , [12G, 13A C] The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power.
The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant.
The main provision of section 14(1)(b) enables a landlord to make an application to the rent controller for possession of the building for demolition for re construction of a new building in its place.
If the Rent Controller is satisfied with the bona fide need of the landlord, he may pass an order, directing the tenant to deliver possession of the building to the landlord before a specified date.
There must be a bona fide need of the landlord.
It could not be said that section 14(1)(b) was arbitrary and that excessive powers had been given to the landlords.
[16G H, 17D E] The provisions of the Act imposed restrictions on the landlord 's right under the common law or the Transfer of Property Act to evict the tenant after the termination of his tenancy.
The nature, the form and the extent of the restrictions to be imposed on the landlord 's right and consequent extent of the protection to be given to the tenants is a matter of legislative policy and judgment.
It is inevitably bound to vary from one State to another according to the local, peculiar conditions prevailing in each State.
When the Courts are confronted with the problem of a legislation being violative of Article 14, the Courts are not concerned with the unwisdom of the legislation.
"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review" 4 observations of Krishna Iyer, J. in Murthy Match Works, etc., vs Asstt.
Collector of Central Excise, etc., [1974]3 S.C.R. 121, may be seen in this connection.
[18F H,19G] The purpose underlying section 14(1)(b) read with section 16(2) of the Act is to remove or mitigate the disinclination on the part of the landlords to expend moneys for demolition of the dilapidated buildings and reconstruct new buildings in their places.
It is a matter of which judicial notice can be taken that the return from the old and dilapidated buildings is very meagre, and in several cases, such buildings prove uneconomic for the landlords, resulting in the deterioration of the condition of the buildings, and there are even collapses of such buildings.
It is for this purpose that the landlord is given by section 14(1)(b), read with section 16, an incentive in the form of exemption from the provisions of the Act for five years in respect of the reconstructed building.
The principle underlying such exemption is not discriminatory against the tenants, nor is it against the policy of the Act.
It only serves as an incentive to the landlord for creation of additional accommodation to meet the growing housing needs.
These provisions providing for exemption of the new buildings from the provisions of the Rent Act for a period of five years or ten years were upheld vide the decision of this Court in Punjab Tin Supply Co., Chandigarh and Ors.
vs The Central Govt.
& Ors.
, ; at 216, 217.
[20C G] The Court was unable to accept the submission that the absence of the right of induction of the tenants in the reconstructed premises was either arbitrary or unreasonable.
The Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act, and one of the purposes of the Act is to solve the acute shortage of accommodation by making rational basis for eviction and encouraging building and re building which is at the root of all causes of shortage of accommodation.
[23D;24E F] OBITER: There is an acute shortage of housing.
The laws relating to letting and landlord and tenant in the different States have from different States ' angles tried to grapple with the problem.
Yet, in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and people suffer.
More houses, therefore, must be built and more accommodation must be made available for the people to live in.
The laws of the landlord and tenant must be made rational, humane, certain and capable of being quickly implemented.
The landlords having premises in their control should be induced and 5 encouraged to part with the available accommodation on certain safe guards 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 rationably checked.
The country very vitally and urgently requires a National Housing Policy if we want to prevent a major breakdown of law and gradual disillusionment of the people.
After all shelter is one of our fundamental rights.
The New National Housing Policy must attract new buildings, rationalise the rent structure and the rent provisions and bring certain amount of uniformity, leaving scope for sufficient flexibility amongst the States to adjust such legislation according to their needs.
This Court and the High Courts should also be relieved of the heavy burden of the rent litigations.
Tier of appeals should be curtailed.
Laws must be simple, rational and clear.
Litigation must come to an 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 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.
[25B H] Rattan Arya and others vs State of Tamil Nadu and another; , ; State of Madhya Pradesh vs G.C. Mandawar; , ; section Kannappa Pillai and another vs B. Venkatarathnam, 78 Law Weekly 363; P.J. Irani vs State of Madras, ; ; section Kandaswamy Chettiar vs State of Tamil Nadu and another; , ; Raval & Co. vs K.C. Ramachandran & Ors., ; ; Murlidhar Agarwal and another vs State of U.P. and others; , ; Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs Subbash Chandra Yograj Sinha, ; ; Metalware & Co., etc.
vs Bansilal Sharma and Ors., etc.
; , ; Meta Ram vs Jiwan Lal, [1962] Suppl.
2.S.C.R. 623; Murthy Match Works, etc.
vs Asstt.
Collector of Central Excise, etc.; , ; In re: The Special Courts Bill, 1978, ; Punjab Tin Supply Co. Chandigarh & Ors.
vs The Central Govt.
State of Haryana and Anr., ; at 226, 227; Mehsin Bhai vs Hale and Company G. T. Madras, ; Metalware Co. etc.
vs Bansilal Sharma and others, etc.
; , at 1117, 1118 Punjab Tin Supply Co., Chandigarh etc.
vs The Central Govt.
and Ors.
, ; ; Motor General Traders and Anr. etc.
vs 6 State of Andhra Pradesh and Ors. etc.
; , at 605; Atam Prakash vs State of Haryana and Ors., ; Panchamal Narayan Shenoy vs Basthi Venkatesha Shenoy, ; ; Jiwanlal & Co. and Ors.
vs Manot and Co., Ltd., 64 Calcutta Weekly Notes, 932 at 937 and M/s. Patel Road ways Private Limited, Madras vs State of Tamil Nadu and Ors., , referred to.


judgement:
ION: Civil Appeal No. 779 of 1980 etc From the Judgment and Order dated 7.3.1980 of the Rajasthan High Court in D.B. Civil Spl.
Appln.
No. 131 of 1974.
S.T. Desai, T.S. Krishnamurthi Iyer, F.S. Nariman, Mr B.P. Beri, S.S. Hussain, M.N. Tandon, Mrs. M. Qamaruddin, B.D. Sharma, Qamaruddin R.S. Yadav, H. section Parihar, B. Kanta Rao, Ms. Sarda Devi, Shakeel Ahmed Syed, Ali Ahmad, Tanweer Ahmad, Mrs. Jayshree Ahmad and Mohan Pandey for the appearing parties.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
The appeal and two Special Leave Petitions concern the right to succeed to the office of Sajadanashin to "Durgah Khawaja Saheb Ajmer".
It is venerable Shrine of universal recognition.
It is also called the Durgah Moinuddin Chisti Saheb.
Moinuddin Chisti was a Persian born Saint who later migrated to India.
He settled down at Ajmer and died there at the age of 90 in the year 1233 A.D. Eversince then, his tomb has had been the centre of attraction for the people of all faiths.
For Muslims in particular, "It is admitted to be one of the most famous, if not the most famous, Mohammedan Shrine in India.
" There are two important offices in the Shrine: (i) Sajadanashin 56 the spiritual head and (ii) Mutwalli the secular head.
The hereditary descendants of the Saint often laid claim to these two offices.
The disputes as to the latter was taken even upto the Privy Council.
In Asrar Ahmed vs Durgah Committee, A.I.R. 1947 P.C. 1 the Privy Council said that the office of Mutwalli was not hereditary.
We are not concerned with the office of Mutwalli.
We are concerned with two questions relating to the spiritual head of the Shrine.
Who is entitled to succeed to the office of Sajadanashin? And what is the right of Durgah Committee in the matter? The dispute relating to the office of Sajadanashin started in 1947, when the last office holder Syed Ali Rasool Khan migrated to Pakistan.
Consequently, the need to appoint a new Sajadanashin arose.
On April 5, 1948, the Chief Commissioner of Ajmer appointed Hakim Inayat Hussain as Sajadanashin.
That appointment was challenged by a person called Syed Ilamuddin.
He claimed that the succession to the office of Sajadanashin is governed by the rule of primogeniture.
He was the rightful person entitled to hold the office.
Hakim Inayat Hussain had no such right or title.
With these and other allegations, Syed Ilamuddin instituted Civil Suit No. 211/1948 for declaration of his right to succeed to the said office.
The suit was instituted on May 18, 1948.
Civil Appeal No. 779 of 1980 by certificate, arises out of the above said suit.
The suit had a chequered carreer.
It was first instituted in the Court of Sub Judge First Class, Ajmer.
Since then, it went up and down from Court to Court.
In fact it is coming for the second time before this Court.
The trial court dismissed the Suit on the preliminary ground that it was not maintainable.
The bar of Section 119 of the Ajmer Land Revenue Regulations was the reason given.
The plaintiff appealed to the District Judge who by judgment dated August 20, 1952 held that the suit was maintainable.
The defendant challenged that decision in second appeal before the Judicial Commissioner, Ajmer.
The Judicial Commissioner took a different view.
By judgment dated November 17, 1953 he upheld the view taken by the trial court and dismissed the suit.
It was then the turn of plaintiff to appeal.
He appealed to the Supreme Court.
On March 7, 1961 the Supreme Court allowed the appeal and remitted the case to the trial court for disposal on the merits.
Meanwhile, the Court of Sub Judge had been abolished and the Munsiff, Ajmer City acquired the territorial jurisdiction to try the suit.
Interrupting the narration, we have to refer to some other 57 intervening facts.
There were allegations of mismanagement of the affairs of the Durgah and its endowments.
There was a clamour from devotees all over for appointment of a Committee to review the administration of the Durgah.
On January 14, 1949 the Government of India found the need to appoint a High Power Committee for the purpose.
The Committee was appointed with Justice Gulam Hussain, Judge of the Allahabad High Court as Chairman.
The Committee was authorised to inquire into and report about the administration of Durgah.
The Committee was also authorised to recommend such measures as may be necessary to protect the interests of devotees.
The Committee after a detailed enquiry submitted a report of the Government.
Accepting the report, the Government of India brought forward a legislation called the Durgah Khawaja Saheb Act, 1955 (Act No. 36 of 1955) which we may term it as the DKS Act.
As required under that Act the Durgah Committee was constituted for the administrative control and management of Durgah endowments.
The said Committee filed an application in the aforesaid suit to be impleaded as a party thereto.
On September 30, 1964, the trial court allowed that application.
The Durgah Committee was thus impleaded as party defendant in the suit.
The Durgah Committee resisted the suit, inter alia, contending that the suit had become infructuous and should be dismissed as such.
It would be the responsibility of the Durgah Committee to make interim or permanent arrangement for the office of Sajadanashin.
That power is derived under Section 13 and 21 of the DKS Act.
The Durgah Committee also said that after the death of Hakim Inayat Hussain, his son Syed Saulet Hussain was appointed as interim Sajadanashin.
The trial court, overruled the objections raised by the Durgah Committee.
Then followed the dispute as to valuation of the suit and the court fees paid thereon.
That dispute was taken upto the High Court where by consent of parties the valuation was agreed upon.
The plaintiff amended the plaint revising the valuation to Rs. 11,000.
Consequently, the suit was withdrawn from the Munsiff Court and brought before the Court of Civil Judge, Ajmer.
The suit was resisted by Hakim Inayat Hussain on the ground among others that the plaintiff has no legitimate right to succeed to the office of Sajadanashin.
He was not the nearest male heir to Syed Rasool Ali Khan.
The right to appoint Sajadanashin by established usage, custom and tradition vests exclusively in the local representa 58 tive of the Government of the day.
The Court of law has no power to interfere with such appointment in any way whatsoever.
On December 14, 1970 the trial court non suited the plaintiff on the merits of the matter.
The plaintiff took up the matter before the High Court.
The learned single judge of the High Court accepted the appeal and reversed the judgment of the trial court.
He gave a declaration to the plaintiff that he was the nearest male heir to the last office holder, and, therefore, entitled to succeed as Sajadanashin.
He, however, observed that the plaintiff has failed to prove that he was qualified to occupy the office of Sajadanashin.
He left the question of qualification for determination by the Governor of Rajasthan who is the competent authority under the DKS Act, to appoint Sajadanashin.
The judgment of learned single judge was rendered on August 9, 1974.
Challenging that judgment, the defendant preferred Special Appeal before a Division Bench of the High Court under Section 18 of the Rajasthan High Court Ordinance.
Pursuant to the observations in the judgment of learned single judge, the Governor of Rajasthan examined the qualifications of the plaintiff.
The Governor was apparently satisfied with his qualifications and approved his appointment as Sajadanashin.
The Government notification dated July 7, 1975 was issued recognising the plaintiff as such.
On October 23, 1975, the plaintiff died.
His son Syed Zainul Abedin Ali Khan was brought on record in the pending Special Appeal before the Division Bench of the High Court.
On March 7, 1980 Division Bench dismissed the Special Appeal affirming the judgment of learned single judge.
Following that judgment, the Government again issued a communication dated January 24, 1981 recognising Syed Zainul Abedin Khan as Sajadanashin.
The litigation has thus descended on the second generation.
The sons of the original parties to the suit continued the litigation.
Syed Saulat Hussain challenging the judgment of Division Bench of the High Court preferred Civil Appeal No. 779 of 1980 with which we are now concerned.
SLP 8794/80 and SLP 292/1980: These two petitions arise out of the order of the High Court in Civil Reference No. 2 of 1978.
It was a reference made by the Durgah 59 Committee under Sub Section (3) of Section 13 of the DKS Act.
The events leading to the reference are these: We have earlier noticed that the plaintiff, Syed Illamuddin died on October 23, 1975.
Thereafter his son, Syed Zainul Abedin Ali Khan appears to have approached the Durgah Committee for recongnition as Sajadanashin.
Durgah Committee did not accede to his request.
It decided to invite applications from persons who want to be appointed as Sajadanashin.
A public notice was accordingly issued under Sub Section (1) of Section 13 of the DKS Act.
In response to the said notice, as many as eleven applications were received by the Durgah Committee.
Those applicants were not related to the plaintiff, or to the last office holder.
The Durgah Committee, however, forwarded those applications to the Governor for making a reference to the High Court for decision.
But the Governor did not make a reference to the High Court.
He took a firm decision that Syed Zainul Abedin Ali Khan, being the son of the last office holder (that is the plaintiff), was alone entitled to succeed to the office of Sajadanashin and other applicants had no right to the said office.
So stating, the Governor conveyed his decision to Durgah Committee.
The Durgah Committee, after much deliberations over the matter, preferred to disagree with the Governor.
It referred all the applications to the High Court for determination of rival claims of the candidates.
The High Court took up the reference for disposal after the dismissal of the aforesaid special appeal.
The task of the High Court then became easier since there was little choice in the matter.
Accepting the view taken in the Special Appeal, the High Court rejected the reference as not maintainable.
The High Court made that order on July 4, 1980.
The Durgah Committee and one of the applicants for the office have preferred the said two Special Leave Petitions for appeal to this Court.
We may first consider the contention urged by Mr. Krishnamurthy Iyer, learned counsel for Durgah Committee.
He urged that the decision of the High Court as to succession to the office of Sajadanashin was based on the concession made by parties and is therefore not binding on the Durgah Committee.
Counsel next contended that in view of Sections 13 and 21 of the DKS Act, the Durgah Committee has power to appoint a proper person as Sajadanashin.
It is not bound to follow the customary rules of succession to the office.
The selection of a suitable person need not be made only among the heirs of the last office holder.
The selection could be made from the public as well, to better serve the devotees.
60 We do not think that we could accept these contentions.
The Durgah Committee was a party to the suit.
There the plaintiff and defendant in the first place, admitted that the office of Sajadanashin is a hereditary office.
Secondly, they proceeded with a common contention that the succession to the office is governed by the rule of primogeniture.
The counsel for the Durgah Committee did not dispute this aspect either in the trial court or before the High Court.
Nor suggested any other mode of succession to the office.
This is what the learned Single Judge of the High Court observed: "The counsel for the legal representatives of Hakim Inayat Hussain admitted that the office of the Sajadanashin attached to the Durgah is a hereditary office.
The learned counsel for the Durgah Committee did not argue on this point.
Issue No. 1 was therefore decided in favour of the plaintiff.
Issue No. 3 was not pressed by the parties.
Dealing with issue Nos. 2 and 3, the learned Civil Judge observed that it was admitted that succession to the office of the Sajadanashin was governed by the Rule of primogeniture." xxx xxx xxx xxx xxx xxx I now turn to the merits of the case.
It may be mentioned at the outset that it is not disputed before me that the office of Sajadanashin or Dewan attached to the Durgah is a here ditary office and successor to that office is governed by the rule of primogeniture.
It is further not in dispute that the last Sajadanashin Syed Aley Rasool Ali Khan was in the line of Syed Abdul Fateh and the plaintiff is in the line of Syed Abdul Fateh 's brother Hisammuddin." Apart from that, it was never in dispute in the long history of the shrine about the nature of the office and the rule of succession.
Lord Simonds while tracing the history of the shrine in Asrar Ahmed, case (supra) said: "It is not disputed that for many years from 1567 onwards (that is from the Farman of Akbar the Great) with certain intervals the hereditary descendant of the Saint, variously called the Sajadanashin or later Dewan, combined in his own person the two leading offices of the Shrine, that of Sajadanashin or spiritual head and Mutwalli or secular 61 head and manager.
These alternative expressions are used to convey as nearly as possible the meaning of the original words.
Nor is it disputed that in the reign of the Emperor Shah Jehan (1627 1658) the post of Mutwalli was separated from that of Sajadanashin and had become a Government appointment whereas the Sajadanashin remained and continued to be a hereditary descendant of the Saint.
" These observations have been approved by the Supreme Court in The Durgah Committee, Ajmer & Anr.
vs Syed Hussain Ali & Ors., ; It is clear, therefore, that the nature of the office and the rule of succession to it always remained undisputed.
It was occupied by a hereditary descendant of the Saint.
That was perhaps the reason, for not asking the High Power Committee constituted by the Government of India in 1948 to inquire into it.
The said Committee was constituted only to enquire into the mal administration of the Durgah and suggest remedies in the interests of devotees.
The question of succession to the office of Sajadanashin was expressly kept outside its purview.
It would be evident if one peruses the terms of reference made to the High Power Committee.
The Government of India had also recognised that Sajadanashin has always been a descendant of the Saint and that position should not be disturbed.
This has been reflected from the speech of the Home Minister in the Parliament while piloting the Khawaja Saheb Bill which later became the DKS Act.
This is what the Home Minister stated: Lok Sabha Debate Pt.
II Vol.
V 25th July 13 Aug, 1985, p. 9391.
"So far as Sajadanashin is concerned he is a religious office.
He is the descendant of the Khawaja Sahib and therefore his position should be kept as it is and that position is not affected at all.
Because he deals with the rituals he deals with the spiritual side of management and so far as that is concerned, it is entirely left to him" Against this background, it was not illogical or improper for parties to the suit to proceed on the basis that the hereditary office of Sajadanashin is entitled to be claimed by descendants of the Saint by the rule of primogeniture.
They have stated the obvious which appears to have been recognised over the generations.
If there was no such rule 62 or principle, the Durgah Committee ought to have stated so.
Or it could have stated that it was not bound to follow the customary rule of succession.
It could have asserted its right to make a choice of its own.
It did not state anything of the kind in the Courts below.
It maintained a golden rule of silence.
It is, therefore, now not open to the Durgah Committee to contend before us that it is not bound by the decision of the Courts.
The Durgah Committee is as much a party to the suit as others.
It is as much bound by the decision as others.
It is immaterial for our purpose whether the decision has been reached by concession of parties or by determination of the dispute.
This takes us to the second contention urged by Shri Krishnamurthy Iyer.
He urged that Sections 13 and 21 of the DKS Act confer power on the Durgah Committee to appoint a suitable person as Sajadanashin.
We do not think that that there is anything in the said sections to support the contention urged by the learned counsel.
Section 13 provides: "Succession to the office of Sajadanashin 13(1) As soon as the office of the Sajadanashin falls vacant, the Committee shall, with the previous approval of the Chief Commissioner, make such interim arrangements for the performance of the functions of the Sajadanashin as it may think fit, and immediately thereafter publish a notice in such form and manner as may be determined by the Committee, inviting applications within one month of such publication from persons claiming to succeed to that office.
(2) Where only one person claims to succeed to the office of the Sajadanashin and the Committee is satisfied as to his right to succeed, it shall, with the previous approval of the Chief Commissioner, pass an order in writing according recognition as Sajadanashin to such person.
(3) Where more persons than one claim to succeed to the office of the Sajadanashin the Committee shall, after consultation with the Chief Commissioner, refer the dispute to the Judicial Commissioner of Ajmer for a decision regarding the claim to succeed to that office, and the Judicial Commissioner after taking such evidence as he considers necessary and after giving an opportunity to the claimants to be heard in respect of their claims, shall communicate his decision to the Committee.
63 (4) The Committee, on the receipt of the decision, shall, with the previous approval of the Chief Commissioner, pass an order in writing in accordance with such decision declaring the person found entitled to succeed to the office of the Sajadanashin and according recognition as Sajadanashin to such person.
(5) An order passed by the Committee under sub section (2) or Sub Section (4) shall be final and shall not be questioned in any Court.
" Section 21 reads: "Transitional provisions 21.
The person holding the office of Sajadanashin immediately before the commencement of his act shall, on and from such commencement, continue to hold that office subject to other provisions of this Act and to the final decision in the suit relating to that office which is pending on such commencement and to which the said person is a party.
" Section 21 was intended to provide transitional arrangement to hold the office of Sajadanashin.
It enables the Sajadanashin who was holding the office immediately before the commencement of the DKS Act to continue to hold that office.
His right, however, was made subject to other provisions of the Act and to the final decision of the suit relating to that office.
The suit referred to under Section 21 must be the suit out of which the present appeal arises.
It was pending on the date of coming into force of the DKS Act.
Hakim Inayat Hussain who was then acting as Sajadanashin was the defendant in the suit.
His continuance or otherwise was expressly made subject to the decision in the suit.
Durgah Committee being also a party is no less bound by the decision therein.
Section 13 of the DKS Act does not confer unlimited or absolute power to Durgah Committee.
Sub Section (1) of Section 13 comes into operation when the office of Sajadanashin falls vacant.
It enables the Durgah Committee to make interim arrangement for the performance of functions of Sajadanashin, pending recognising the legitimate successor to the office.
It must, therefore, invite applications from persons claiming to succeed to that office.
If there is only one person to succeed to the office, the Committee shall with the previous approval of the Governor recognise him as Sajadanashin.
That is the mandate of Sub Section (2) of Section 13.
If there are more persons than one claiming to succeed to the office, the Durgah Com 64 mittee shall follow the procedure provided under Sub Section (3) of Section 13.
The Committee after consultation with the Governor must refer the applications to the High Court for decision.
On receipt of the decision of the High Court and with the previous approval of the Governor, the Durgah Committee under Sub Section (4) shall accord recognition as Sajadanashin to the person found entitled to succeed to the office.
The scope of provisions of Section 13 appears to be limited.
The Durgah Committee is only entitled to accord recognition as Sajadanashin to the person legitimately entitled to succeed to the office.
The Durgah Committee cannot enlarge the scope of this power to invite applications from the public and select any person for appointment as Sajadanashin.
The power conferred under Section 13 is only to locate the legitimate heir to the office by the accepted rule of succession and recognise him as Sajadanashin and not beyond that.
This takes us to the contention urged by Shir S.T. Desai, learned counsel for the appellant in C.A. No. 779 of 1980.
He urged that plaintiff cannot be considered as the nearest male heir to the last holder of the office.
According to the counsel, there are two other persons Bashiruddin (P.W. 2) and Abdul Aziz (P.W. 3) who were nearer to the last holder of the office than the plaintiff.
Suffice it to state that it has not escaped the attention of the High Court.
The claim of these two persons were also examined.
The High Court has observed that Bashiruddin has himself stated that he did not consider himself nearest to the last office holder.
It was further stated that he died issueless during the pendency of the suit.
So far as Abdul Aziz is concerned, the position is no better.
He was illiterate and did not want to become Sajadanashin.
He appears to have relinquished his right in favour of the plaintiff.
It is said that he also died during the pendency of the suit leaving behind none to succeed.
In the circumstances, it cannot be said that the plaintiff is not the legitimate person to succeed as Sajadanashin.
In the result, the appeal and Special Leave Petitions fail and are dismissed with costs.
N.P.V. Appeal and Petitions dismissed.

dataset_name: IN-Abs

summary/full:
In the Durgah Khawaja Saheb, Ajmer, there were two important offices Sajadanashin and Mutwalli.
Consequent upon the migration of the last office holder of the office of Sajadanashin to Pakistan in 1947, the Chief Commissioner of Ajmer appointed the appellant 's father as Sajadanashin in April, 1948.
This was challenged by the respondent plaintiff, in a suit, claiming that succession to the office was governed by the rule of primogeniture, that he was the rightful person to hold it and that the appellant 's father had no such right or title.
The suit was dismissed by the trial court as not maintainable in view of the bar imposed by section 119 of the Ajmer Land Revenue Regulations.
On appeal, the District Judge held that the suit was maintainable.
In second appeal by the defendant, the Judicial Commissioner upheld the view taken by the trial court and dismissed the suit.
The Supreme Court allowed the appeal of the plaintiff respondent, and remitted the case to the trial court for disposal on merits.
Meanwhile, the Government of India brought forward a legislation called the Durgah Khawaja Saheb Act, 1955 and the Durgah Committee, as required under the Act, was constituted for the administrative control and management of Durgah endowment.
The aforesaid Committee, got itself impleaded as a party to the suit and resisted it, contending that the suit had become infructuous as, under sections 13 and 21 of the DKS Act, the Committee was responsible to make interim or permanent arrangement for the office of Sajadanashin and that the appellant had been appointed as interim Sajadanashin.
The trial court overruled the objection.
53 The suit was resisted by the appellant 's father on the ground that the plaintiff had no legitimate right to succeed to the office as he was not the nearest male heir to the last holder of the office, that the right to appoint Sajadanashin by established usage, custom and tradition vested exclusively in the local representative of the Government, and that the Court had no power to interfere with such appointment in any way whatsoever.
The trial court non suited the plaintiff on merits.
The High Court, in appeal, reversed the judgment and declared that the plaintiff was the nearest male heir to the last office holder and, therefore, entitled to succeed as Sajadanashin.
It, however, observed that the plaintiff had failed to prove that he was qualified to occupy the office and, therefore, left the question open for determination by the Governor, who was the competent Authority under the DKS Act to appoint the Sajadanashin.
The judgment of the Single Judge was challenged before the Division Bench under section 18 of the Rajasthan High Court Ordinance.
Meanwhile, the Governor on being satisfied with the qualifications of the plaintiff approved his appointment as Sajadanashin by a Government Notification dated July 7,1975.
On the death of the plaintiff on October 23, 1975 his son was brought on record, and following the dismissal of the Special Appeal by the Division Bench of the High Court on March 7,1980, he was recognised as Sajadanashin, by the Government by a communication dated January 24,1981.
Against the decision of the High Court an appeal was filed before this Court.
While the special appeal was pending before the High Court, and on plaintiff 's death on October 23, 1975, his son approached the Durgah Committee for recognition as Sajadanashin, but it did not accede to his request and decided to invite applications from persons who wanted to be appointed as Sajadanashin.
In response to the public notice under sub section (1) of section 13 of the DKS Act, 11 applications were received by the Committee and none of these were related to the plaintiff or the last office holder.
The Committee forwarded the applications to the Governor for making a reference to the High Court for decision, but the Governor did not make a reference and took a firm decision that plaintiff 's son was alone entitled to succeed to the office, being the son of the last office holder and that the other applicants had no right to the said office.
The Committee disagreed with the Governor 54 and referred all the applications to the High Court for determination of rival claims of the candidates.
After the disposal of the special appeal by the Division Bench, the High Court, accepting the view taken in the special appeal, rejected the reference as not maintainable.
The Committee and one of the applicants filed two Special Leave Petitions before this Court.
In the appeal before this Court, it was urged on behalf of the appellant that the plaintiff could not be considered as the nearest male heir to the last holder of the office and that there were two other persons, i.e. PW 2 and PW 3 who were nearer to the last holder of the office than the plaintiff.
In the Special Leave Petitions, on behalf of the Committee it was urged that the decision of the High Court as to the succession to the office of Sajadanashin was based on the concession made by the parties and was, therefore, not binding on the Committee, that in view of sections 13 and 21 of the DKS Act, it had the power to appoint a proper person as Sajadanashin, that it was not bound to follow the customary rules of succession to the office and that the selection of a suitable person need not be made only among the heirs of the last office holder and could be made from the public as well, to better serve the devotees.
Dismissing the appeal and Special Leave Petitions, this Court, ^ HELD: 1.1 The nature of the office of Sajadanashin and the rule of succession to it always remained undisputed.
It was occupied by a hereditary descendant of the Saint.
The Government of India had also recognised that Sajadanashin has always been a descendant of the Saint and that position should not be disturbed.
[61C,E] 1.2 Section 21 of the Durgah Khawaja Saheb Act, 1955 was intended to provide transitional arrangement to hold the office of Sajadanashin.
It enables the Sajadanashin who was holding the office immediately before the commencement of the DKS Act to continue to hold that office.
His right, however, was made subject to other provisions of the Act and to the final decision of the suit relating to that office.
The suit referred to under section 21 must be the suit which was pending on the date of coming into force of the DKS Act.
[63E F] 1.3 Section 13 of the Act does not confer unlimited or absolute power to the Durgah Committee.
The scope of section 13 is limited.
The Durgah Committee is only entitled to accord recognition as Sajadana 55 shin to the person legitimately entitled to succeed to the office.
The Durgah Committee cannot enlarge the scope of this power to invite applications from the public and select any person for appointment as Sajadanashin.
The power conferred under section 13 is only to locate the legitimate heir to the office by the accepted rule of succession and recognise him as Sajadanashin and not beyond that.
[64C] 1.4 It cannot be said that the plaintiff is not the legitimate person to succeed as Sajadanashin.
P.W. 2 did not consider himself nearest to the last office holder and P.W. 3 was illiterate and did not want to become Sajadanashin.
Moreover, both of them have died during the pendency of the suit leaving behind none to succeed.
[64E G] Asrar Ahmed vs Durgah Committee, Ajmer, AIR 1947 P.C. 1 and The Durgah Committee, Ajmer & Anr.
vs Syed Hussain Ali