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Sailendra Nath Ghosal and ors. Vs. S. Ena Dutt and ors. - Court Judgment

LegalCrystal Citation
Overruled ByB Banerjee v Anita Pan
SubjectConstitution;Service
CourtKolkata High Court
Decided On
Case NumberLetters Patent Nos. 6 and 14 of 1969 and A.F.A.D. Nos. 1711 of 1965 and 242 of 1968
Judge
Reported inAIR1971Cal331,75CWN331
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(3A); ;West Bengal Premises Tenancy (Second Amendment) Act, 1969 - Section 13; ;Constitution of India - Articles 14, 19, 19(1) and 19(5)
AppellantSailendra Nath Ghosal and ors.
RespondentS. Ena Dutt and ors.
Advocates:S.C. Das Gupta, ;H.S. Majumdar, ;Madhusudan Banerjee, ;Ranjit Banerjee, ;Asutosh Ganguly and ;Sakti Nath Mukherjee, Advs.;B. Das, Adv. General and ;B.C. Basak, Adv.
Cases ReferredIn Jain Brothers v. Union of India
Excerpt:
- .....would only postpone the filing of the ejectment suits for the period of three years. after three years, tenants' protection against eviction would disappear. on the other hand, when a classification is made into owner-landlords and transferee-landlords and an embargo is put on the latter class not to bring ejectment suits against tenants within three years of their purchases, the result would be that the said three years' restriction will be reckoned not from the date of the enforcement of the act, but from the date of the respective purchases of the transferee-landlords and, in that way, that three years' restriction will continue and last till the life of the enactment. in our opinion, without such classification, the object of the amended act could not be achieved. therefore, the.....
Judgment:
Amiya Kumar Mookerji, J.

1. The above cases have been heard by us on the preliminary point, involving consideration of the vires of Section 4, read with Section 13 of the West Bengal Premises Tenancy (Second Amendment) Act, 1969, whereby new Sub-section (3A) was inserted in Section 13 of the West Bengal Premises Tenancy Act, 1956, with retrospective effect so as to apply to pending proceedings.

2. The constitutional validity of the above Sub-section (3A) has been challenged before us on the ground that it offends Articles 14 and 19(1)(f) of the Constitution. It has been contended further that, even if the said provision be not ultra vires in itself, it will be ultra vires under the said Articles, when read with Section 13, as Section 13 of the Amending Act makes provisions of Sub-section (3A) (Section 4 of the Amending Act) retrospective and applicable to pending suits and appeals.

3. It is contended on behalf of the landlords that the impugned sub-section is ultra vires under Article 14 of the Constitution as classification of landlords into owner-landlords and transferee-landlords is arbitrary and not a rational classification and has no nexus to the object, sought to be achieved by the amendment in question.

4. To appreciate the contention, it would be convenient to advert to the amended provisions of Section 13 of the Act. In the original Section 13 of the Act. under Sub-section (1) (f), reasonable requirement for building and re-building was coupled with reasonable requirement of landlords' own occupation. By the present amendment the said sub-section has 'been split up into two parts:--

(f) subject to the provisions of Sub-section (3A) and Section 18-A, where the premises are reasonably required by the landlord for purposes of building or rebuilding or for making thereto substantial additions or alterations, and such building or re-building carried out without the premises being vacated:

(ff) Subject to the provisions of Sub-section (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.

Sub-section (3A) of the Act reads as follows:

(3A) 'Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in Clause (f) or Clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest:

Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned In Clause (f) of Sub-section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re-building, or the additions or alterations as the case may be, are necessary to make the premises safe for human habitation.'

5. The legislature is empowered to make laws on a wide range of subjects. Obviously, it has the power to make a particular law to attain a particular object and to achieve such purpose it can classify the persons to be brought under the provisions of such law, provided the basis of such classification has a just and reasonable relation to the object, which the legislature has in view. When a law is challenged as violative of Article 14 of the Constitution, it is necessary, in the first place, to ascertain the policy, underlying the Statute, and the object intended to be achieved by it. Having ascertained the policy and object of the Act, the Court has to apply a dual test in examining its validity:--

(1) Whether the classification Js rational and based upon intelligible differentia, which distinguishes persons and things, that are grouped together, from others, that are left out of the group; and

(2) Whether the basis of discrimination has any rational nexus or relation with its avowed policy.

6. It is contended by the learned Advocate-General in support of the vires of Sub-section (3A), as inserted into Section 13 of the West Bengal Premises Tenancy Act, 1956, by the Second Amendment Act, 1969, that classification into 'original landlords' and 'transferee-landlords' is based on an intelligibe differentia. The sole object of the amended provision of the Act, is to give some protection to the tenants against eviction. A copy of the statement of the Minister-in-charge at the time of piloting the bill in the Legislature, was placed before us. It is submitted, that, it is the intention of the legislature, as it appears from the statement of the Minister, to protect the tenants from a particular class of persons who have sufficient means to purchase properties and immediately thereafter institute ejectment suits to drive out the tenants from their living places. Old landlords cannot enhance rents with respect to old tenants beyond the limit of fair rent, fixed under the statute. At the present time, when the price of every commodity has gone up naturally 'owner-landlords' are dissatisfied with the low return they get out of the tenanted premises. As between these two classes of landlords, namely 'owner' and ''transferee', it is difficult for the owner-landlords to make put a case for eviction either on the grounds of their own use and occupation or building or rebuilding. The 'owner-landlords' are naturally reluctant to spend money for building and rebuilding on properties which do not yield a covetable income. So, 'owner-landlords' tend to sell the tenanted properties to get rid of the old tenants and the transferee landlords, just after the transfer, try to find out means to drive out the tenants, taking resort to those two grounds, viz., (f) and (ff) --landlords' reasonable requirement for own use and occupation and building and rebuilding. Having regard to the background and surrounding circumstances, the legislature has reasonably classified landlords into two classes, namely, owner and transferee, and put reasonable restriction upon the latter. The differentia has sufficient nexus with the object, sought to be achieved.

6A. Proceedings of legislature can be referred to for the limited purpose of ascertaining the conditions, prevailing at or about the time of the enactment in question; which actuated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied.

7. In the Statement of Objects and Reasons of the West Bengal Premises Tenancy (Second Amendment) Bill, 1969, it is stated that it has been considered necessary that some more reliefs should be given to the tenants against eviction. It is found from the speech of the Minister at the time of introducing the Bill in the legislature, that the problems of tenants are many; there are landlords of different kinds: there is one class--original owners, who are the old inhabitants of the city; these owner-landlords are not affluent, they solely depend upon the rents received from the tenants. It has been ascertained from experience that two of the grounds of eviction, namely, requirement of the premises for own use of the landlords and for the purpose of building and rebuilding, have been misused by the landlords. In the city of Calcutta and other towns, there are millions of tenants, who are left at the mercy of the landlords. In this background and after taking into account similar provisions in other States, it has been decided that some restrictions ought to have been imposed upon transferee-landlords prohibiting them from bringing ejectment suits against the tenants within three years from their purchase. On the above two grounds and for that purpose, the said classification has been made.

8. In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report and the history of the times and may assume every state of facts, which can be conceived existing at the time of the legislation -- this is one of the six major principles, laid down by the Supreme Court in Dalmia's case, : [1959]1SCR279 .

9. The scarcity of accommodation is a burning problem, not only of the State of West Bengal but of the other States as well. Keeping pace with the needs of the gradually swelling population of West Bengal, new biddings have not been built owing to abnormal high price of land and materials. A large majority of the people of West Bengal live in tenanted premises and they live in those premises at the mercy of the landlords.

10. Taking an overall view of the various considerations, the statement of the Minister, the objects of the Bill, matters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that Underlying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classification of landlords into owner-landlords and transferee-landlords is based upon a rational and intelligible differentia and we hold accordingly.

11. It is not contended before us that there cannot be any rational classification in the instant case but what is strenuously argued is, that the differentia has no rational nexus with the object sought to be achieved.

12. The object of enacting Sub-section (3A) is to give more protection to the tenants against eviction. Let us consider how this object can be achieved in making these two classifications. In Sub-section (3A), provisions have been made prohibiting the transferee-landlords from bringing suits for ejectment against tenants within three years from their purchases. It is argued that this object can be achieved without making such classification, if the entire class of landlords is brought under a common restriction by putting a ban on institution of ejectment suits within three years from the date of the enforcement of the amended provision. Let us examine the proposition.

13. Assuming that such a ban is imposed, what would be the result? It would only postpone the filing of the ejectment suits for the period of three years. After three years, tenants' protection against eviction would disappear. On the other hand, when a classification is made into owner-landlords and transferee-landlords and an embargo is put on the latter class not to bring ejectment suits against tenants within three years of their purchases, the result would be that the said three years' restriction will be reckoned not from the date of the enforcement of the Act, but from the date of the respective purchases of the transferee-landlords and, in that way, that three years' restriction will continue and last till the life of the enactment. In our opinion, without such classification, the object of the amended Act could not be achieved. Therefore, the differentia has a rational nexus with the policy and object of the enactment.

14. It is next submitted by the learned Advocate for the landlords that prohibition of three years is arbitrary and there is no reason why that particular time has been fixed by the legislature. It is true that the reason of the time limit of three years has not been given in the statement of the Minister. Our attention to similar provisions of enactments of other States were drawn; in Andhra Pradesh, the limitation is three months, in Delhi 5 years, in Kerala 1 year, in Madhya Pradesh one year, in Madras three months, in Bombay, the landlords who have acquired interest after the 1st January. 1964, are prohibited permanently from bringing ejectment suits against tenants.

15. The Supreme Court has said that the legislature understands and correctly appreciates the needs of its own people and the degree of harm, which has prompted the enactment of a particular law is a matter within the discretion of the law-makers. It is not the province of the court to canvass the legislative judgment in such matters.

16. The legislature is free to recognise degrees of harm and it may confine its restrictions to those cases, where the need is deemed to be clearest. So the restriction of three years must be regarded as the policy of the legislature. It is not the province of the court to find out the reasons behind legislative policy for ascertaining whether a statute is hit by Article 14. The Court can consider its policy only from the limited point of view of rational classification and nexus. Once the said two tests of reasonable classification and nexus with the object have been satisfied, the statute cannot be further attacked on the ground that the period of three years is not reasonable for purposes of Article 14. It has been observed by P. B. Mukharji, J. (as he then was) in Surajmull v. Income-tax Commr. AIR 1951 Cal 578 (SB) at p. 586 that on a broad comparison between Art. 14 and Article 19 of the Constitution and the specific language used in both these Articles, it is plain that no question of reasonableness arises on the language of Article 14 as distinguished from the specific words of reasonable restriction in the different sub-clauses of Article 19.

In considering however, if a statute is hit by Article 14 of the Constitution the Court considers its policy only in the limited sense of reasonable classification and nexus. Legislative policy in no other sense is under constitutional review by the Courts under Article 14. In considering if a statute is hit by Article 19, the Court will consider only the reasonableness of the restriction. Legislative policy only in the limited sense whether the restriction imposed by statute is reasonable in the public interest comes under constitutional review by the Courts under Article 19. The reasonableness in either Article has different frames of reference. For Article 14, reasonableness of classification and nexus is enough to save the statute whereas reasonableness of the actual restriction imposed on the fundamental right under Article 19 in the light of public interest is all that is required.

17. So, in dealing with Article 19(1)(f) of the Constitution, we would consider whether this restriction of three years is unreasonable, which cannot be cured under Clause (5) of the said Article.

18. The second ground, urged on behalf of the landlords, is, that the impugned provision offends Article 19(1)(f) of the Constitution. It is contended that the right to hold property includes right to enjoy and have possession of the property. Since the impugned Sub-section (3A) prevents the transferee-landlord from bringing ejectment suits within 3 years from their purchases, thereby it imposes unreasonable restriction upon the owner's right to hold the property. The right to hold property necessarily implies the right to be in possession of the property. The expression 'property' includes every interest in the property--including the right to freely possess, enjoy and dispose of the same.

19. The impugned Sub-section (3A) puts restriction, though for a limited period, upon the owners of the property to get possession of the same from the tenant. It is, at least a partial deprivation of one's right to hold property. Now, it is to be considered whether such restriction is reasonable and would come under Clause (5) of the Article 19. Reasonable restriction connotes that the limitation imposed on a person in the enjoyment of his right should not be arbitrary or of an excessive nature, beyond what is required in public interest. The test of reasonableness should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases (vide Chintaman Rao's case, : [1950]1SCR759 ). When considering the question, whether the restriction, imposed by the Statute, is reasonable or not, the important facts, that should be taken into account by the Court, are the nature, extent and duration of the restriction in relation to the interest of general public, that is sought to be secured by the legislature.

20. In view of the fact that the restriction, imposed by the impugned provision of the Act, on the right of the transferee-landlords to recover possession of their property for a limited period of three years from their purchase and of the further fact that the object of the legislature is to afford relief to the tenants who form a manor section of the public, we are inclined to take the view that, taken by itself, the restriction of three years imposed by Sub-section (3A) upon the transferee-landlords' right to recover possession of the property, is a reasonable restriction and in the interest of the general public so far as the same operates prospectively. Therefore, we hold that the impugned provision of Sub-section (3A), taken by itself and operating prospectively, does not offend Article 19(1)(f) of the Constitution and restriction of three years in the matter of bringing of ejectment suits against the tenants by the transferee-landlords would, in that context, be a reasonable restriction under Clause (5) of Article 19 of the Constitution.

21. It is then argued that the application of the above impugned provision of the Act retrospectively upon pending suits and appeals, creates a discrimination and inequality among the same class. Reference is made to two observations of the Supreme Court, stated hereinbelow, where pending proceedings are regarded as a class by themselves. It is submitted, accordingly, that, there is unequal treatment in the same class inasmuch as pending suits of the transferee-landlords, who instituted their suits within three years of their purchase of the tenanted properties will be hit by provisions of Sub-section (3A) but pending suits of other landlords will not be hit by the operation of said sub-section. So, there is discrimination among the same class. Therefore, the retrospective operation of Sub-section (3A) as regards pending proceedings violates Article 14 of the Constitution.

22. In Shiv Bahadur Singh v. State of Vindhya Pradesh, : 1954CriLJ1480 the Supreme Court observed

'There is no reason why pending proceedings cannot be treated as a class by themselves having regard to the exigencies of the situation which such pendency itself calls for. There can arise no question as to such a saving provision infringing Article 14, so long as no scope is left for any further discrimination inter se as between persons affected by such pending matters.'

23. In Jain Brothers v. Union of India, : [1970]77ITR107(SC) the Supreme Court observed-

'It is not disputed and no reason has been suggested why pending proceedings cannot be treated by the legislature as a class for the purpose of Article 14 of the Constitution.'

24. Any change in existing law creates discrimination. When a legislature enacts a law prospectively, it makes a distinction between transactions, which are covered by the Act, and those, not covered by the Act, because they were completed before the date, on which the Act was enacted. This differentiation, however, does not amount to discrimination, which is liable to be struck down under Article 14 of the Constitution. If a law appears to treat all that fall within a particular class, but, in effect, operates unevenly on persons or properties, similarly situated, it may be said that the law offends the equality clause. In the instant case, although pending suits and appeals may be regarded as a class by themselves as 'pending proceedings', all pending suits and appeals are not similarly situated. Pending suits form separate groups or sub-classes according to the circumstances. It is true that, collectively, all pending suits form one class as 'pending proceedings', but, within the same class, particular suits, according to circumstances, form a separate sub-class, and, within that sub-class, there is no discrimination. That sub-class, so far as the present matter is concerned, is represented by pending ejectment proceedings (suits and appeals) between tenants and transferee-landlords, who have instituted the suits in question within three years of their purchase. It may well be said and this is not disputed before us, that the above classification has the requisite nexus with the object of the amending Act. So, the only question will be whether it is a rational classification, not vitiated by any offending discrimination,

25. Mukherjea, J. (as he then was) observed in Charanjit Lal's case. : [1950]1SCR869

'As has been said by the Supreme Court of America, equal protection of law is a pledge of the protection of equal laws', and this means 'subjection of equal laws applying alike to all in the same situation.' In other words, there should be no discrimination between one person and another, if, as regards the subject-matter of the legislation, their position is the same'. The Supreme Court in Shiv Bahadur's case, : 1954CriLJ1480 as referred to hereinbefore, observed that Article 14 will not apply so long as no scope is left for any further discrimination inter se between persons, affected by such pending matters. In the instant case, suits of the affected transferee-landlords may be regarded as a sub-class within a class and, if within the said sub-class, the suits are not differently treated, they will not be hit by Article 14. The persons affected are transferee-landlords, who instituted their suits within three years of their purchase, and they form a separate class and, among the suits of that 'affected class', there is no discrimination. The law applied equally with respect to the pending suits with regard to this affected class.

26. We have carefully considered the arguments, advanced by the learned counsel, and we are of the opinion that the retrospective operation of Sub-section (3A) on pending suits and appeals does not offend Article 14 of the Constitution.

27. Lastly comes the question whether this retrospective operation makes the restriction, imposed by the new Sub-section (3A), unreasonable so as to be violative of Article 19 of the Constitution. On this part of the case, we are inclined to return an affirmative answer. We have already held that, in order to satisfy the test of reasonableness under Article 19, it should not be arbitrary or excessive that is, beyond what is required in public interest. The retrospective operation, given to Sub-section (3A) by Section 13 of the amending Act, would have the effect of applying the restriction, imposed by the said sub-section, to all pending suits and appeals, which would cover cases, filed since 1956 or even earlier. There is nothing on the record to show that the mischief, sought to be remedied by the amended legislation, was in existence since 1956. On the other hand, the ministerial speech, referred to above, rather indicates that the said mischief was of comparatively recent origin. In this context, the application of the restriction on the omnibus scale to all pending suits and appeals would smack of unreasonableness. We would, accordingly, hold that Sub-section (3A), so far as it operates retrospectively under the terms of Section 13, would be ultra vires and invalid and should be struck down to that extent.

28. We accordingly, answer the preliminary point in the following manner:

That Sub-section (3A) is intra vires except so far as it operates retrospectively under Section 13 of the Amending Act and, to that extent, it will be ultra vires and invalid.

29. In the light of our above decision, these cases will now be heard on the other points.

P.N. Mookerjee, J.

30. I agree.


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