1. This is a regular second appeal against the concurrent judgments of the Courts below decreeing the plaintiff's suit for possession of the shop in dispute. The salient facts are not in controversy and lie in a very narrow compass. Dalip Singh defendant-appellant, by means of a rent deed dated 3-8-1956, took the shop in dispute situated within the municipal limits of Luhdiana on rent from Rakha Ram plaintiff-respondent.
The tenancy was for 11 months beginning from 1-8-1956 to 30-6-1957. The rent originally was Rs. 22/- per month which was later increased to Rs. 25/- P. M. The defendant-appellant did not vacate the shop after the expiry of 11 months, the original period of tenancy, whereupon the plaintiff served him with a notice to vacate the same by midnight of 31-3-1958. This notice was received by the defendant on 27-2-1958.
As the defendant did not vacate the shop by the date stated in the notice, the plaintiff instituted the present suit for possession on 29-4-1958. Exemption from the East Punjab Urban Rent Restriction Act, 1949, was claimed by the plaintiff in view of a notification, issued in that behalf, by the Punjab Government in respect of the buildings constructed in the year 1955 which, according to the plaintiff, was the year when the shop in question was built.
This suit was resisted by the defendant who denied that the shop had been built in 1955 and pleaded that it was actually constructed in 1956. On this ground he contended that the suit was barred by the East Punjab Urban Rent Restriction Act. The validity of the notice of ejectment was also assailed by him. The following issues were settled on the pleadings of the parties:
1. Whether the present suit is barred under the provisions of Urban Rent Restriction Act ?
2. Whether the notice served on the defendant is valid
On issue No. 1, the trial Court after reproducing verbatim the notification dated 29-12-1955 observed that the building in suit was built in 1956 and therefore exempt from the provisions of the East Punjab Urban Rent Restriction Act. I appears that the relevant notification exempted all buildings constructed during the years 1956, 1957 and 1958. In view of this notification the Court gave an express finding that the East Punjab Urban Rent Restriction Act, 1949, did not apply to the shop in suit. Under issue No. 2 the Court upheld the validity of the notice.
(2) On appeal, the learned Senior Subordinate Judge observed that the finding upon the question of the validity of the notice of ejectment had not been assailed before him. What was contended before the lower Appellate Court was that sufficient opportunity had not been granted to the defendant-appellant to adduce evidence to show that the building in question had been completed in 1956.
For this contention reliance was placed on notification No. 10665-LB-53/957 dated 19-1-1957, by which the Governor of Punjab exempted for a period of 5 years, from the provisions of the East Punjab Rent Restriction Act, 1949, all buildings constructed in the years 1953, 1954 and 1955. The lower appellate Court, while dealing with this argument, also took notice of the notification No. 9186-LB (CH)-55/35123 dated 29-12-1955, published in the Punjab Gazette Extraordinary dated 31-12-1955, whereby the Governor of Punjab had exempted all buildings constructed during the years 1956, 1957 and 1958 from the provisions of the East Punjab Urban Rent Restriction Act, 1949, for a period of 5 years, with effect from the date of the completion of such building, and observed that the combined effect of the two notifications was that the building in dispute was exempt from the operation of the East Punjab Urban Rent Restriction Act whether it was constructed in 1955 as was the plaintiff's case, or in 1956, as was contended by the defendant. On this finding the appeal was dismissed.
(3) On second appeal, Mr. Gujral, the learned counsel for the defendant-appellant, has contended that the notification, issued after the commencement of the tenancy in his client's favour, could not prejudicially affect his statutory right. His argument is that such notifications cannot operate retrospectively so as to take away from the tenants, their vested rights not to be ejected except in accordance with the law relating to eviction of tenants.
I cannot sustain this contention. The tenancy admittedly began from the 1-8-1956. The notification dated 29-12-1955 had obviously been enforced long before the appellant's tenancy began. Besides, this plea does not seem to have been urged in either of the two Courts below. Even in the memorandum of appeal filed in the lower appellate Court I do not find any such ground. The lower appellate Court was not invited, to give any finding on this contention with the result that the facts necessary to sustain this argument as wholly missing from the present record. This apart, the right claimed is not such an inviolable vested right which is protected against legislative interference:
The counsel has next contended that according to S. 2(a) of the East Punjab Urban Rent Restriction Act a building is defined to mean any building or part of a building let for any purpose etc. and under S. 3 of the Act the State Government is empowered to direct that the provisions of this Act may not apply to any particular building or any class of buildings etc. The argument of the learned Advocate is that unless and until the particular building or class of buildings actually exist no exemption under S. 3 can be declared by the State Government.
Applying this argument to the present case, the counsel submits that if, as found by the trial Court, the building in question was build only in 1956, there could be no valid notification with respect to this building in December, 1955. Here again I cannot persuade myself to sustain this contention. This plea was also not taken by the defendant in the Courts below and no issue was framed covering this point with the result that there was no decision by either of the two Courts below.
It is true that the trial Court has given a finding that the shop in question was constructed in 1956 but the lower appellate Court, in view of the two notifications mentioned by it, did not give any specific finding on the date of construction of the building in dispute. The plaintiff's case was that the shop had been constructed in 1955 and the defendant's contention, on the other hand, was that it was constructed in 1956. In order to decide the point now canvassed by Mr. Gujral certain facts have to be specifically found.
Having not raised this precise plea in the two Courts below, in my opinion, the counsel has not right to urge it now for the first time on second appeal. This contention also thus fails.
(4) It is next urged that there is no rational basis for discriminating between the buildings constructed during the years covered by the notifications in question and those which are not covered by these notifications. The counsel contends that the East Punjab Rent Restriction Act having been enforced in all urban areas in the Punjab except the cantonment areas it is unconstitutional for the State of Punjab to deprive from the benefits of this section the tenants who take on rent buildings constructed during the years covered by the two notifications mentioned above.
He has in this connection placed reliance on Suraj Mall Mohta and Co. v. A. V. Visvanatha Sastri, AIR 1954 SC 545, where sub-section (4) of Section 5 of the Taxation on Income (Investigation Commission) Act, 1947, was held to be a piece of discriminatory legislation in so far as it affected persons proceeded against under it. Reference has also been made by the counsel to State of Punjab v. S. Kehar Singh, 1958-60 PLR 461: (AIR 1959 Punj 8), a decision by a Full Bench of this Court where the test for determining the scope of Art. 14 of the Constitution has been laid down.
After hearing the counsel I think his contention cannot be sustained. To begin with, this point also was not raised by him either in his pleas or an arguments in either of the two Courts below. The question, however, being purely one of law and relating to the vires of the statutory provisions, I permitted the counsel to raise it. In M. E. Moola Sons, Ltd. v. Perin R. Burjorjee, AIR 1932 PC 118, Lord Tomlin quoted with approval the following observations of Lord Watson from Connecticut Fire Insurance Co. v. Kavanagh, 1892 AC 473 at p. 480:
'When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of cat in considering which the Court of ultimate review is placed in a much less advantageous position that the Courts below. But their Lordships have no hesitation in holding that the course ought not in any case to be followed unless the Court is satisfied that the evidence upon which they are asked to decide, establishes beyond doubts that the facts if fully investigated would have supported the new plea'.
Lord Simonds also observed in Chief Kwame Asante v. Chief Kwame Tawia, AIR 1949 PC 171, that if it appears to an appellate Court than an order against which an appeal is brought has been made without jurisdiction, it can ever be too late to admit and give effect to the plea that the order is a nullity. It is true that in Provincial Treasurer of Mnitoba v. Wm. Wrigley Jr. and Co. Ltd., 1950 Ac 1, the Judicial Committee though permitting a new ground to be raised (which had not been presented to the Courts below) added a reminder that the course they had taken on that occasion was not to be quoted as a precedent for allowing an appeal to succeed on another occasion in comparable circumstances. Our Supreme Court has, however, been allowing pure questions of law going to the root of the matter, to be raised on appeal before itself. (Dhirendra Kumar v. Supdt. and Remembrancer of Legal Affairs, West Bengal, AIR 1954 SC 424 at p. 428).
(5) In so far as the merits of the contention raised are concerned, I do not find it possible to sustain them. The vires of section 3 of the East Punjab Urban Rent Restriction Act, 1949, have not been assailed. Indeed, in Sadhu Singh v. District Board, Gurdaspur, Second Appeal No. 1135 of 1954; (AIR 1960 Punj 172), a learned Single Judge of this Court has upheld the constituionality of this provision. In support of his view the learned Judge relied on Ram Pratap v. Dominion of India, AIR 1953 Bom 170, Matajog Dobey v. H. C. Bhari, (S) AIR 1956 SC 44 and Pannalal Binjraj v. Union of India, AIR 1957 Sc 397.
The argument seriously advanced by Mr. Gujral is that by fixing a time limit his client and those similarly placed have been unlawfully discriminated against. In my view, there is no such discrimination as can be considered to have been hit by the Constitution. The classification contemplated by the notification is neither arbitrary nor without rational basis. The difference between the two sets of buildings within the contemplation of the notification bears a reasonable and just relation to the things in respect of which it has been proposed.
It must be remembered that the East Punjab Urban Rent Restriction Act was enacted for the purpose of restricting the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. It is well known that the necessity for imposing this restriction arose because of shortage of buildings and residential and other accommodation in the country. The Second Five Year Plan as published by the Government of India, Planning Commission, also clearly discloses the seriousness of the housing problem which is considered as an All India problem.
In fact similar measures have actually been brought on the statute book throughout the Union of India. In order, therefore, to encourage the construction of buildings, if it is considered necessary to exempt a particular class of buildings from the operation of the East Punjab Urban Rent Restriction Act, it would, in my opinion, be within the competence of the State Government to do so; and if with this object in view the State Government exempts buildings, constructed within a specified period, from the operation of the impugned Act, it cannot be said to contravene the guarantee of equality before the law.
The basis of classification in these circumstances is perfectly rational. In Raman Das v. State of Uttar Pradesh, AIR 1952 All 703, a Full Bench of the Allahabad High Court repelled a similar contention raised with respect tot he U. P. Temporary Control of Rent and Eviction Act of 1947. In coming to their decision, the learned Judges of the Allahabad High Court took into consideration the acute shortage of accommodation when that Act was passed and the desirability of giving an incentive to those who had land and were willing to spend money to build houses.
That the Act of the State Government in exempting buildings from the operation for the Rent Control Act does not call for an objective consideration is not being disputed; nor is it contended that the State Government is bound to give any reasons. The discretion of issuing direction under Section 3of the Act is left exclusively to the subjective consideration of the State Government and it cannot be denied that mere differentiation or inequality of treatment does not by itself amount to hostile discrimination; differentiation or selection in order to be unconstitutional must be established to be oppressive, unreasonable or arbitrary which does not rest on any rational basis, having regard to the object which the legislature has in view.
It is also common place in the interpretation of statutes, that there is always a presumption in favour of the constitutionality of a statute and the burden is always upon him who assails it to show that there has been a clear violation of the constitutional principles. As observed in Middleton v. Texas Power and Light Co., (1919) 249 US 152 at p. 157, and quoted by Fazl Ali J. in Chiranjit Lal v. Union of India, 1950 SCR 869 at p. 879: (AIR 1951 SC 41 at p. 45):
'It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds'.
A similar presumption is also permissible with respect to statutory notifications. Besides, in order to make a legislation effective it is desirable to place broader construction on its provision and while construting Article 14 of the Constitution the Courts, to borrow with gratitude the words of Fazl Ali J. in Chiranjit Lal Chowdhury's case, 1950 SCR 869: (AIR 1951 SC 41), 'should not adopt a doctrinaire approach which might choke all beneficial legislation'. After considering the contentions raised at the Bar, in my opinion, the notification in question is not hit by the rule of unconstitutional discrimination.
(6) For the reasons given below, this appeal fails and is dismissed with costs.
7. Appeal dismissed.