B. BANERJEE v. ANITA PAN November 20, 1974 [M. H. BEG, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ;] West Bengal Premises Tenancy Act 1956 as amended in 1969-S. 13(1) (/) .and (IJ)-Constitutiona/ validity of-Whether offends Art. 19(1)(/) and (5). Section 13(1)(f) of the West Bengal Premises Tenancy Act, 195~ (.Act Xll <lf 1956). enacted that no order or decree for the recovel1'….of possession of any premises sha!L be made by any court in favour of the. landlord against the ten~nts ~xcept among others, on the ground that th~ ~rem1ses are. rc;asonably reqm~ed by the landlord either. for the purpose of building. or rebuilding . or ~or m.aking thereto substantial additions. or alterattons or for his own occupatton 1f he 1s the owner or for the occupation of any person for wh«;>se benefit the premises are held.
• Section 13 (4) of the Act provides that where a landlord requires the premises on any of the grounds mentioned in cl. (1 )( f) and the Court is of opinion that such requirement may be substantially salkfied by ejecting the tenant from a part only of the premises the Court shall J?1IS'S a decree accordingly. . In 1969 the Act was amended by West Bengal PreJ111Ses Tenancy (Second Amendm1mt) .Act. Section 13 of the original Act was amended by introducing sub-section (3A) in it. This sub-section prohibits institution of a suit for ejectment c•f a tenant by a landlord who has purchased the premises for his own use within three years of the purchase. The Amending Act also enacted that the said Act shall apply to suits and appeals, which are pending at the date of the commence· ment of the Act.
The respondent purchased the suit premises in which the appellant was a tenant and instituted a suit for ejectment of the tenant under s.13(1)(f) of the .original Act. The suit was decreed by the lower court and affirmed by the lower appellaJe court. A single Judge of the High Court dismissed the appeal. When the Letters Patent Appeal was pending before the High Court, the- Amending Act ·Of 1969 was passed, whereupon, the tenant-appellant invoked the provisions of the new sub-sec. (3A) and contended that since the landlord had instituted a suit the ejcctment within three years of the purchase, the suit should be dis- missed.
The High Court held that s.3A was valid prospectively but that the restriction imPOsed by the sub-section, giving it retrospective effect, was violative of Art. 19 ( 1 )( f) of the Constitution.
Per Beg and Krishna Iyer, JJ: Allowing the appeals and remitting the case to the High Court, HELD: (l)(a) There is no violation 9f Art. 19(1)(f) read with Art. 19(5) of the. Con~titution in .the Amending Act, and s.13 of the original .Act, as amended 1s valid. The evil corrected by the Amendment Act is to stop 1he infiu,x of a transferee class of. evictors of tenants and. institution of litiption 1o e1ect and rack-rent or re-budd to make large profits. Apparently the infll)w of such suits mµst have been swelling slowly over the years and when the stream became a flood the ~egislature rushed with an amending bill. Had it made 1he !aw merely pro~pechve. t~ose who had, in numbers, already gone to Court and mduced legis!ahve attentton would have escaped the inhibition. This would
defeat the objeot and so the application of the additional ban to DCnding actions could not be ca!led unreasonable. There is no foundation for the assumptions made by the High Court that there may b., cases of ejcctment instituted prior to 19~~ or that a num~r of suits ~nd decrees, perhaps decades old. will unjustly be nullified b~ !he prcvions operation of the new ban. Recondite in~tances and casual hardships cannot deflect constitutloruiL construction of social legislatio•n, c
c U.P. STATE V, PRADIP TANDON (Ray, C.J.) if. the main thrust of the statute relates to a real social evil of .dimensions de- serving to be antidoted by antedated legislative remedy.
Questions such as whether those cases whi:h were filed several years ago should have been carved <!lut of the category of transferees hit by the Act, and at what point of time the evil assumed proportions were best left to legislative wisdom and not to courts commonsense. [788C-D; 787F-G; 783F; 787H]
In the instant case the two land'ord-respondents had purchased the buildings in the early sixties. l!ut while considenng the constitutionality the Court would not be moved by such accidental instances. The substantial evil has been subs- tan~ially met by a broad applkation of the new ban to pending' proceedings. [788C]
Se'ction 13, fairly read, directs that the amendmen1 made by s. 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. The Court is, therefore, bound to give effect to· s.4 in pending actions regardless of isolated anomalies and individual hardships. [788G]'
(b) Where two interpretations are possible that which validates the statute and shortens litigation s)lould be preferred to the one which invalidates or proliferates it. Although the old cl. ( f) is substantially similar to 'the (ll'e!ent els. (f) and (If) the latter imposes more severe restrictions protecting the tenants. Much more has to be proved by the landlord now before he can get eviction than when he was called upon to under the earlier corresponding provision of the basic Act.
Moreover, the three year prohibition against institution of the suit is altogether new. It follows, therefore, that on the present nllegation and evidence the landlord may not get a decree, his suit having been instituted at a time when he could not have foreseen the subsequent enactment saddling him with new conditions. [789C; 789B]
Though therefore, the suit, as originally brought in, would be defective since it did not and could not contain the averments complying with the new cl!. (fl !>ncl (ff) of s. 13(1) it is made effective by construing the term 'institute' in a natural and grammatical way.
[7890} · ( c) 'To institute' is 'to begin or commence'. The prohibition clamped down by sub-section (3A), · carefully read, is on suits for recovery of _possession by transferee-landlords on any of the grounds mentioned i11 cl. (f) Qr cl. (ff) of sub-section (I). 1789Gl
In the instant case the ·suits were not for recovery on grounds contained in clauses (f) and (ff). They were based on the repealed cl.(f) of s.13 of the ba~ic Act. Strictly speaking sulHection (3A) brommt in by s.4 of the Amending Act applies only if (a) the suit is by a transferee-landlord; (b) it is for re:overy of possession of premises; and (c) the ground for recovery is what is mentioned in els. (f) and (ff) of sub-section (!). Undoubtedly the third condition is not fulfilled and therefore sub–s. (3A) is not attracted.
[789HJ (d) But since the new cls.(f) and (ff) were included by the Amendment Act in s.13 of the basic Act and since the suits did not seek eviction on those grounds they will have to be dismissed on account of the omnibus inhibition on recovery of possession contained in s. 13 itself.
[79oq Per Goswami, J: (l)(a) In trying to indude old actions that may be surviv- ing in courts because of laws' proverbial delay s. 13 of the Amended Act has gone far in excess of the actual needs of the time and problems a·nd the provisions therefore cannot be said to imoose a reasonable restriction on the right of the transferee landlords, albeit a well defined class amongst the landlords, to hold and en.ioy their property in the interest of the general public. Su:h transferee-land-
lords with pendin2 old actions in suits or in appeals are not likely to be of a large number. The imposition of si:ch restrictions on a few trnnsferee-fandlo··ds cannot be in the general interests of the larFe body of tenant<. If relief in the shape of postponment of the landlord's suit were the obje:t of sub-section ( 3A) in giving retrospcctivity to it,. the law did not take count of the inevit&ble long delay that takes place in pending litigation as a result of man-made laws of procedure in courts· such as have been clearly demonstrated by the cases at hand. The law that misses its object cannot justify its existence. Besides it will· be a sterile relief if tenants have to face a fresh summons next days. [798A-C] (b) Under the Constitution an individual's right will have to yield to the common weal of the general community. That general community may be in broad segments· but even then must form a class as a whole. A few individuals cannot take the place of a class and for the matter of that the general public. 1}98H] .
In. the present case the relief contemplated by the Amendment Act is in· favour of tenants in general and the restriction under sub-section (3A) must be viewed in that context. It cannot be said that the legislature in applying
sub-section (3A) retrospectively has achieved that avowed object at all. The applicability of the blanket ban to pending suits and appe•ls cannot be said to be a reasonable rest<iction in the intemt ot general public. [799A-Bl (c) Sub-se1:tion (3A) so far as it is retrospectiv~ and as such applicable to pending suitt. including appeals is ultra vi.-es Art. 19(1) (f) of the Consti'.ution. fhe proVision 'is valid only prospectively,
The retrospectivity so far as sub- section (3A) in concerned with regard to institution of suits made applicable to pending suits and appeals is dearly very wide o.f a rea.sonab e mark and is an imposition of an unreasonable restriction on the right of the transferee landlords in pending suits which had been instituted prior to the amendment Act and jR appeals arising thereform and it is not saved by the protective clause (5) of Art. 19 of the Constitution. 17990-E]
(2) On the terms of only s. 13 (3A) it is difficult to hold that it would bring old actiqns within the mischief of s. 13(3A) which imposes a ban 1:x- pressly on institution of suits within three years of the acquisition of own,er- ship of the premises subject to . the relaxation tontained in the proviso there- to. [796B-C}
_ (3) Section 13(i)(f) and (ff) are not ultra vim of Art. 19(1)(f) of the Constitution. Further relief& have been sought to be giv~n to the tenants as a class by these provisions in the .Amendment Act. These further reliefs are in the general interests of tenants and can be applied without any difficulty, to pending suits ipcluding appeals. There is nothing unreasonable about such a retrospcctivity m applying these provisions for the general welfare of tehar1ts !n seoorii:g fo~ )he'!! a safe and sure tenure ps far as practicable untramm~lled "Y mconvement hhgation. [799F-G}
Arguments jor the appellants In, C.A. 2063/73 by P. C. Chatterjee :- There is no vested right to eject on determination of the tenancy but it i~ conditioned by s. 13, Cl. (a) to (k) and therefore right to eject is not vest1:d in the landlord until a decree is ·passed, Upto that stage it is contingent depen- ding on the satisfaction of cL (a) to ( k) of s.13. If there is no vested property right, no questi<m of Art 19 (I) ( f) of the Constitution will arise, By denying
tb.e right to eject for three years from the date of purchase the right to property is not restricted or burden•,d, The approach of the High Court of separately treating prospectivity and retrospectivity is not correct The correct approa1:h adopted by this Court is that in considering the reasonableness of any provision retrospectivity of the law is a factor to be considered. Retrospective operation is not bad because it covers a period of 10 years or so.
For respondent On C.A. 1304 of 1973.) The. o~ject of. the new sub-section (3A) being to give protecion to tenants for a hmlled period of three years from the date of purchase of the premise,s ~Y ,the landlord, 1 by giying retrospective effect to the said sub-section the period bm1ted .by t~e sub-section ~annot be enlarged: Therefore, s.13 of the Amending Act wh.1ch 111ves retrospective effect to the sand sub-section (3A) should be con- strued m a manner so as to keep the effect of retrospectively within the period c
c B. BANERJEE V, ANITA PAN (Kri.Jhna/yer, J,) limited by tho said now sulHicction 3.1\. Sections 4 and 13 of the Amending Act have to be construed harmoniously keeping the object of tho M.t in yiew aJ!d in doing that if the court has to supply some words to m~ the lllCllllllg clear, it should prefer the construction which ls more in consona~ with reasons and justice.
(1958] S.C.R. 739 at 745. The language of sub-s. 3A and ~ object and reason for introduction of the said sub-section m~ it clear that only pros- pective effect could be given to the sub-section and in any case its olfect cannot ao beyond three years of purchase of the premises by ~e landlord. If, s.13
of the Amending Act means that s.4 of the Amending Act applies to all pending suits including appeals filed by a transferee landlord after the principal Act came into force, then it is clearly violative of art.19(1)(f) of the Constitution. The High Court, therefore, rightly struck down s. 13 ~ving retrospective effect to s. 4 of the A:t. Further no law can impose restrictions retrospectively on funda- mental rights.
Arguments for tlze respondelil in C.A. No. 2063 of 1973. The impugned section cannot be so interpreted as to give it retrospective effect so as to bring within its mischief all suits and proceedings jpcluding appeals which may be pending since the enforcement of the Act. This Court can depart from the general rule to apply the law as it is on the dat~ of institution of the suit and apply the law as on the date when the appeal comes up for disposal specially because no injustice is going to be caused between the parties and as such a course would avoid multiplicity Of proceedings. Section 13 of the Amen- ding Act is 'ultra vires of article 19, because, construed literally the section can- not give protection to such of the . tenants against whom proceediilgs are pen· ding for more than 10 years or so, a protection for a period more than what is envisaged by the Amending Act. This is clearly not what is intended or con- templated by the legislature.
Giving restrospective effect to the secijon would only benefit a few and is not in the public interest of the tenants of the trans- feree-landlords. The restriction is arbitrary and invades the right IP property and is not saved by cl. (5) of article 19. T):ie restriction is not re3S0!1able: CrvrL APPELLATE JURISDICTION : Civil Appeal No.
of 1973. Appeal by special leave from the judgment and decree dated the 25th Julv. 1973 of the Calcutta High Court in Appeal from Appel- late Decree No. 1193 of 1972. Civil Appeal No. 1304 of 1973.
From the judgment and order dated. the 3rd February, 1972 of the Calcutta High Court in LP.A. No. 14 of 1969. P. Chatterjee and Rathin Das, for the appellant (In C. A. 2063/ 73). Urmila Kapoor and Shobha Dikshit, for the respondent (In C.A. No. 2063/73).
P. K. Chatterjee, G. S. Chatterjee, and Sukumar Basu, for the Advocate General for the State of West Bengal. Sukumar Ghose, for the appellants. (In C.A. No. 1304/73). D. N. Mukherjee; for the respondents (in C.A. N.o. 1304/73). The judgment of M. H. Beg and V. R. Krishna Iyer, JJ was
delivered by Krishna Iyer, J. P. K. Goswami, J. gave a separate Opinion. KRISHNA IYER, J.-Calcutta or Cochin, for the urban people of India, the shocking scarcity of a roof to rest one's tired bones is an 3-L346SupCI/75
·11s SUPREME. COUlt'f REPOR~'S (1975] 2 S.C.R. unhappy problem of social justice that compels control <;>f rent a'1(1 eviction laws. In the case now before us, attacking the constitution~ ality of legi:ilation handcuffing the landlord-proprietariat's right of eviction, the law has to be tested not merely by the cold print of Art. 19(1) (f) but also by the public concern of Art 19(5) and the compassionate animus of Art. 39, Parts III and IV of the Constitu- tion to11Cther constitute a complex of promises the nation has to ke:ep and the legislation challenged before us is in partial fulfilment of {ills tryst with the people. These observations become necessary in Umi!ne since counsel for the respondents dismissed the concept of r.ocial .iustice as extraneous to an insighttul understanding of the section invalidated by the High Court, while we think that judicial co~ience is not a mere matter of citations of precedents but of activist appraisal of social tears to wipe out which the State is obligated under 1he Constitution.
The two appeals before us, raisillg substantially identical points, have been h1~ard t02ether and are bl-in2 disposed of by a common judgment. Both of them stem from a decision of the Calcutta High Court reported as Sailendra Nath v. S. E. Dutt(~). One of the decisions u_nder appeal (C.A. 2063 of 1973) was rendered by a Single Judge of the High Court following a Division Bench ruling of the same Court (i.e., the one reported as Sailendra Nat~ v. S. E. Dut1) since be was obviously bound by it.
A provision imparting some sort of retroactivity to a 1969 legis- lative amendipent implantin2 additional restrictions on eviction of premises und~r the earlier West Bengal rent control law has been voided by th~ High Court in the judgments under appeal. The aggrieved tenant in each case has appealed and the State, not being direct! y a pahy to the ligitation, has entered appearance to suppc>rt the legislatiort and to challenge the Calcutta decision to the exumt it has invalidl\ted the retrospective part of the statute. Welfare legislation calculated to benefit weaker
classes, when their vires is challenged in Court, casts an obligation on the State, particularly when notice is given to the Advocate General, to support the law, if nc:cessary by a Brandeis brief and supply of socio·econ:o- mic circumstances and statistics inspiring the enactment.
Courts cannot, on their own, adventure inter social research outside the record and if Government lets down 1he Legislature iu Court by not illumining the provisions from the angle of the social mischief or .:ronomic menace sought to be countered, the victims will be the class of beneficiaries the State professed to protect. In this case, we are unable to compliment the State or the Advocate General from this point of view. It may happen that when the Court decides against the validity of a measure or order because Government fails to brinl! the sociallv relevant totalitv of facts, it is used as an alibi by (I) A.IR. 1971 Cal. 331.
c c B. BANERJEE r. ANITA Pil.N (Krishna Iyer,!.) 77.9 tl!e latter for the misfortune. Cour_ts cannot help· cover up the ':Executive's drowsy default or half-hearted help in making the socio- economic conspectus available .
. The We~t Bengal Premises Tenancy Act, 1956 (Act XII of 1956) (for short, referred to as the basic Act) damped down several restrictions on cjectment of tenants by landlords from build- ings, the policy behind it being alleviation of the lot of the w~akcr segment of the urban community without their own homes in the context of the scarcity of accommodation and the colossal
:;ocio- economic upheaval which would follow if unbridled ~victions were allowed. The temptation· to evict or rack-rent under scarcity .:ondi- tions is an irresistible e'1il in our economic order and it is an all-
India phenomenon that the social conscience of the State Le1,>is- latures has responded to this large scale threat by effective control measures. Indeed, for decades now, every State in India has on the statute book rent control law and, what is more pertinent to the
present case, tactics of circumvention have compelled the enactment of additional safeguards from time to time by vigilant statutory measures. West Bengal, a populous State, with an
ovcr-crowclcd city choked by the largest human congregation in the country, en- acted the basic Act whereby the plenary right of landlords to recover possession of their buildings
was shackled in many ways. Jridustrial growth and other factors induced demographic congestion such as was witnessed in the urban areas of that State. Consequently. the legislature was faced with a fresh danger in the shape of inge- nious transfers of ownership of buildings by indigenous but indigcn i landlords and the transferees resorting to eviction on a large scale equipped as they were with better financial muscles and motivated as they were by hope of speculative returns from their investments on eviction.
Presumably, the phenomenal increase of the nienance of eviction by the new. species of transferee-owners of buildings was cnuntered hv a legislative measilre-the West Benr,al Premises Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959)
(hereinafter referred to as the amendment Act). By this legislation the new class of transferee· landlords was subject to . a stringent trammel viz., that they should not sue for eviction within three years of the date of transfer (We arc not immediately concerned
here with certain other changes effected by the Amendment Act). The social objective and the practical effect of this fetter will be con- sidered briefly a little later. Suffice it to say at this stag·~, the Hi.ah C'ourt bas upheld this provision which is now containctl in s. 13(3A) of the basic Act. However, while holding the provision substantially intra 1·ires the. Court has invali~ated the giving effect to the provision to pending suits and appeals. Such limited retrospectivity had been incorporated by s. 13 of the amending Act and. if the law were only 1Jrosprctive the landlords in the two cases who had initiated their litigation several years prior to the enactment of the
Amendment Act would be free from the three year interdict and the other extra restrictions. Once the embargo is out of their way. the decrees for eviction they have_ secured must stand. On the contrary, if the res- triction on eviction by the transferee landlords were to operate on [1975] 2 S:.C.R.
pending litigation the appellants-tenants are immune to evictio:n in the current proceedings as they now stand. Thus the short constitu- tional iss·u,e is as to whether s. 13(3A) of the basic Act to the extent it applies to pending litigation OD the strength of S. 13 of the Amen~ing Act is violative of Arts. 14 and 19(1)(f) of the Coustitu· tion, weapons relied upon for the attack before the Hi~ Court, and here. We will proceed to consider the constitutional villnerability of this limb of the protective legislation. By way of anticipating our con- clusion we may also pose the problem whether ss.13 and 4 of the Amendment Act can be validly implemented vis-a-vis pending ai:tions in any other just manner which will preserve the additional protection, minimise multiplicity of litigation and make law and justice bed- fellows in 'the changed statutory circumstances.
Some background observations to appreciate the contest in court are necessary. No social realist will deny the frightful dimensions of the problem of homeless families and precarious tenancies; and if the Directive J>rinciples of State Policy are not to be dismissed by the masses as a 'teasing illusion and promise of unreality', curtailment, in public interest, of such extreme rights of the landlord as are 'red in tooth and claw' is a constitutional compulsion. The Court, informed by this sore economic situation and reinforced by the initial presump- tion of constitutionality, hesitates to strike ;i socially beneficial statute dead, leading to escalation of the mischief to suppress which the House legislated-unless, of course, a plain breach of the fundamental right of th(: citizen is manifest.
The perspective of 1he amending. Act is sketched by the High Court in littid language : "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 thi: needs of the gradually swell- ing population of West Bengal, new buildings have not been built owing to abnormal high price of land and materials.
A large majority of the people of West Bengal live in those premises at the mercy of the landlords." The explosive import of neglecting such a distressing urban deve- lopment reasonably obliges the State to impose drastic restrictioils on landlords' dght to property. And when circumvention of wholesome legal inhibitions are practised on a large scale the new challenge is met by clothing the law with more effective amount and that is the rationale of the Amendment Act. The learned Judges rightly refer to the !legis- lative proceedings, notorious common knowledge and other relevant factors prqperly brought to their ken. The 'sound-proof theory' of ignoring voices from parliamentary debates, once sanctified by British tradition, bas been reJDlaced by the more legally realistic and socially responsible canon of listening to the legislative authors when their artifact is being interpreted. We agree with the High Court when it observes :
"Proceedings of legislature can be referred to for the limited purpose of ascertaining tha conditions. pre.vailing at c c B. BANERJEE v. ANITA PAN (Krishna Iyer, 1.) or about the time of the enactment in question, which actu- ated the sponsor of the bill to introduce the same and the extent and urgency of the evil, sought to be remedied.
In the Statement of Objects and Reasons of the West Bengal Premises Tenancy (Second Amendment) Bill, 1969, it is stated that it has been considerea necessary that some more reliefs should be given to the tenants against evic-
tion. 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, 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 ejcetment suits against the tenants within three ~ears from their purchase. On the above two grounds and for that pur- pose, the said classification has been made."
The conclusion of the Court, crystellised in the following words, commends itself to us : "Taking an . overall view of the various considerations, the statement of the Minister, the objects of the Bill, mat- ters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that under- lying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classi- fication of landlords into owner-landlords and
transferee· landlords is based upon a rational and intelligible diffcrentia and we hold accordingly." Proceeding to examine the limited attack on s. 13(3A)' of the basic Act read with s. 13 of the Amending Act, we have to remem- ber the comity of constitutional instrumentalities and raise the pre- ~ sumption that the legislature understands and appreciates the needs .of the people and is largely aware of the frontiers of and limitations upon its power. (See : The State of Bombay v. R. M. D. Chamar- haguwala(I) and Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others(2). Some Courts have gone to the extent of holding that "there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and 'to doubt the constitutionality of a law is to resolve it in! favour of its validity."(3) Indeed, the Legis- (0 (1957] S.C.R. 874.
(2) [1959] S.C.R. 2i9. (3) ConsHtutionat Law of India by H, M, Seeryai-p 54 vol. J. 78 2 laturc owes it to the Court to make like respectful presumptions. We therefore view the provision impugned through a socially construc- tive, not legally captiow1, microscope to discover glaring unconsti-
tutional infirmity, if any, and not chase every chance possibility or speculative thought which may vitiate: the law. Stray misfortunes when laws alfoctiilg large chunks of the commu:iity are enacted are ill1evi- table and the respondents before us may perhaps beiong to · that category. Social legislation without tears, affecting vested rights, is impossible. Statutory construction has a benignant sensitivity and we arc satisfied the High Court, in substantially upholding the Amend- ment Act, has done right, but in striking down
the retrospective portion of the section has stumbled into a specious error. It is helpful to reproduce the relevant portion of s. 13 of the basic Act in its unamended state and the amendments dovetailed into it by the 1969 Act, The so-called 'rctrospectivity' of this
provision has been anathelhatised by the respondent-landlords an'd annulled by the High Court: "13(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of posses-
sion of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely :- w1a111ended cl. (f) · : where the premises are reasonably
required by the landlord either for purposes of building or rebuilding or for making thereto substantial additions or alterations or for his own occupation if he is the owner or for the occupation of any person for whose beneM the pre-
mises arc held; els. (f) and (ff) substituted therefor : (f) subject to the provisiotJs of sub-section (3A), and c section 18A, where the premises are reasonably required by the landlord for purposes of building or re-building or for making thereto substantial additions or alterations and such building or rc-buildi.Iig or additions or alterations cannot he carried o'ut without the premises being vacated;
(ff) subject to the provisions of sub-section (3A), where th~ premises arc reasonably required by the land- lord for his own occupation if he is the owner or for the occupation of any person for whose benefit the
premises arc held and the landlord or such person is not in possession of any reasonal!)Y suitable 'lccommodation; Sub-s. (3A) newl!Y introduced. 13(3A) Where a landlord has acquired his interest in
t?e premises by transfer, no suit for the recovery of posses- sion of the premises on any of the grounds mentioned in clause (f) .or clause (ff) of sub-section (1) shall be insti- c
B. BANERJEE v. ANITA P·AN (Krishna Iyer, /.) 78 :i tuted 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) Qf sub-section ( 1) before the expiration of the said period of three years if the Controller, on the appli- cation of the landlord aqd after giving the tenant an oppor- tunity of being heard, permits, by order, the institution of the suit on the ground that the building or rebuilding, or the additions or alterati~. as the case may be, are necessa1-y to make the premises safe for human habitation."
Once the substantiv(l restriction super-added by s. 13 (3A). is held valid, we have to fQCus attention only on the extension of the new ban to pending proceedings. That legislative competence to enact retroactively existS is trite law and we have only to test its validity on the touchstone of Arts. 14 and 19(1) (f}
pressed into service before us. Law is a social science and constitutionclity turns not on. abstract principles or rigid legal canons but concret.e realities and given condi- tions; for the rule of law stems ;from the rule of life. We emphasi7.e this facet of sociologiclil jurlsptudence oDiy. because the High Court has struck down s. 13 of the Amendment Act on surmises, possi- bilities and may be rather than on study of actualities and proof of the nature, number and age of pending litigations caught in the net of the retrospective clause. Judges act not by hlinch but on hard facts properly brought 011 record and sufficiently strong to rebuff the initial presumption of cottstitutionality of legislation. 'Nor iS the Court a third Chamber of· the House to weigh '\Vhe'ther it should 1ogiilate retrospectively or draft the cl~. dilterently. We find no foundation f~r the large assumpttons'tiiade by the High Court and duly repeated before us by counsel that thett i!lllJ be cases of ejectment instituted prior to 1956 or that a number of suitB and decrees perhaps decades old will unjustly be nullified by the previou\ operation of the new ban. · Recondite instances aDd · eaaual hardshirs cannot deflect consti- tutional constructien of social Iegisiatioo. if the main thrust of the statute relates to a real social evif of dimensions deserving to be anti- doted by antedated legislative remody. ··
In the present case; indubitably the Stat.e was faced with a new, insidious and cdnsjderable situation. of exploitation; undermining the security of tenancy conferred by the basic Act. A large number of origjnal landowners living in their own home could not, under the basiC Act, claim recovery of posse8Sion, being occupants of theif <>Wn houses. Likewise, they could not urge the ground of recovery for rebuilding, not being financially able to invest on· such a . costly venture. They ·had to look up to modest old-time rentals as the only source of return and lest the penuriolls t.ellant-y desperately inhabit-· ing little tenoments be forced· to pay extortionate rents the rent con- trol law of 1956 froze die rates at the 1940 level with ~entle increBSel! as ,pre>Vided ~In. However, for new buildings to be constructed SUl'REME COURT REPORTS
special incentive provision was made . by deeming the contract 1ent as fair rent, thus ensuring a high rehun on building investment The sociiil upshot of this ~cheme was that the old landlords found their ownership a poor return investment,, saw a new class of wealtllli:r itwestors streaming into cities and towns ready to buy the premises, evict old tenants, re-let on rack-rents or re-build and reap a rich
return. They had no buildings of their own and could prove plans to rebuild, thus disarming the nonevictability provision of s. 13 of the basic Act. The transferees could thus get decrees for eviction under the basic Act. Naturally, transfers of buildings· to this
somewhat speculating c:lass increased and the spectacle of eviction litigation or potential e_viction proceediJ!gs was projected on the urban scene. The Legislature promptly reacted by the Amendment Act to rescue the lessee8 by clamping down ·new restrictions by way of s. 13 (3A). A three-year moratorium was given to. the tenants from being hunted out of their homesteads by imposing a ban on institution of suits for eviction by transferee landlords. This would both disenchant specu- lative purchases and provide occupants time to seek alternative hous- c
ing. Presumably, these objects inspired the law-makers to extend the embargo backwards to pending eVIction proceedings. Quite cone1:iv- ably, the tendency to create a transferee class of real estate owners gradually gathered in volume and showed up in rashes .of pending actions. When Government was alerted amending legislation was pro- posed. Unfortunately, the. State's legal wing has failed to protect. in Court the clruis for whose benefit the amending law was made by placing luscent social or statistical materials on . these aspects. As earlier
stated by us, G()Vernment have a duty, where social legislation to protect the weak are challenged, to exhibit the same activism in the- Halls of Court as in the Houses of Legislature. Failure in the former duty can be :as bad as not promt!gating the law. Not an elucidatory affidavit by the State nor even the Minister's explanatory speech has been filed in this Court. 'We make these observations becauSe of the himdicaps we have faced and ·the little help on facts the State lnas given to sust/lln the legislatiOU;
The Calcutta High Court bas upheld the vires of sub-s. (3A) lbut invalidated its application to pending litigation. So the short issue is whether this proje.ction into the past of the otherwise reasonable res- riction on the right of eviction arbitrary, irrational, ultra vires? If yes, the lethal sting of Arts. 14 and 19(1) {f) will deaden s. 13 of the Amendment Act. And the High Court has held so on the la1ter Article.
The pros~tive validity of the restriction under Arts. 14 and 19 ( 1 )( f) , the High Court thinks, is vindicated by sound classification and sanctioned reasonably by the int~rest of the general public. Having regard to the policy of the legislation, the
classification of landlords into two classes of owner-fandlords and transferee-landlords and the im~ition of an embargo on the latter minacious class against bi; ;:;jng eviction suits within three years of purchase passes the diual tests of reasonable
classification and the differentia having a rational nexus with the statutory object. Therefore, the High Court had no hesiratio~-and we torally concur-that the provision is u. BANl!P.Jl!I! v. ANITA PAN (Krishna Iyer, /.)
711 s impregnable. The controversy rages round giVing effect . to these ' stringent restraints newly enacted on earlier legal actions. This, it is , contended, is a horrendQUs invasion of property right!\ a_nd unjust
anteriority which hits innocent plaintiffs whose purchases were beyond three years. Before us respondents' counsel have contended that Art. 14 is violated. by s. 3 read with s. 4 of the Amendment Act although the High Court has negatived this subI!lission thus ; "We have carefully considered the arguments iµlvanced
by the learned counsel and we. are of the· opinion ~bat the retrospective operation of sub-section (3A) on pending suits and appeals does not offend Article 14 of the Constitution." Since the argument, dressed differently, has been urged before us ·C
again we will briefly deal with it, agreeing as we do with the High Court. Plaintiffs whose transfers are twenty years ago ot two years before the Act, are Jugged together and subjected to the same ban if their suits were instituted within three years of the
transfer. This blanket ban regardless of the varying periods which have elapkd a~ter the transfers and before the Act was passed was unequal treat- ment or rather harshly equal subjection to restriction of plainly un- equally situated transferees. There is seeming attractiveness in this
presentation. But Courts are concerned not how best to hammer out equal justice but to oversee whether the classification is without rational basis unrelated to tlie object of the Act. That is why we are confined to check whether the reasoning on this aspect adopted by the High Court is not •tenable. We may or may not disagree with the wisdom of the Legislature in the groupin!1J adopted or hold Views E · about fairer ways of treatment. But our powers are judicial, not l~gis lative and arbitrariness and irrationality ,are not writ large in the method of differentiation th«> Legislature has
here chosen. Jn the words of A. K. Mukherji J : "In the instant case, suits of the affected transferee- land!Ords may be regarded as a sub-class, within a class and, if within the said sub-class, the suits are not different- ly treated, they will not be hit by Article 14. The persons affected are transferee-landlords who instituted their suits within three years of their purc~ase and they form a sepa- rate 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."
Some hardship is bound to occur peripheriµly in any mode of classi- fication and a few haril cases (we have not been shown whether many have been struck by this pattern of grouping) cannot guide the Court in -upsetting legislative compartmentalisation.
The next attack bv the respondents is that the deprivation of the right to sue is absurdly beypnd the gbiect of the Act when applied to pending cases where the transfers took place more than three years before the Act. Were we draftsmen of legislation, may be counsel's 1;Ubmission could have had more potency. But our limited power is to SUPREME COURT REPOR1S
examine the reasonableness of the restriction, not by substituting our petsonal notions but by interfering if the Legislature has. gone hay- \liire in unreasonably hiµnstringing transferee-landlords by dismissi1ng their suits brought long before the legislative bill was in the womb of time.
In an earlier case this Court obsef1fe~l(') : "Right at the threshold we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has deli-
neated these limitations in United States v. Butler (297 U.S. I 56 Sup. Ct. 312 80 Law. Ed. 477 thus: The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial c:onsciousness. One is that courts are con~rned only with the power to enact statutes, not with their wisdom. The other is that while unconstitu- tional cx~:rcise of power by the 1~xecutive and legislative branches of the government is subject to judicial restraint, the only check upon our exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but· to the ballot and to the processes of democratic government."
In short, unconstitutionality and not iinwisdom of a legislation is the narrow area of judi\:ial review." The High Court has assumed that even :t>roceedings started prioi: to 1956 may be affected. This, admittedly, is wrong as pre-basic Act suits will be governed by the then law as provided -in s. 40 and the: Amendment Act amends only the 1956 Act. It may also be conceded! that in both the appeals before us, thanks to Indian longevity of liti- gation, more than three years from the date of transfer in favour of the plaintiff has passed and thu~ the spirit a( the protection in that sense is fulfilled. Indeed1 co\Jnsel for the respondents urged that the validation of .the retrospective limb of the law would ·only ·drive the parties to fresh tuits, thus ·promoting 111ultii>licity ~ &uits ruinous
to both sides with no social gain! There is· force in this submission. Its relevance to decide the ~onsti&utional issue is doubtful but its influence on our ultimate · soluti,on. in thi11 ·case, as will he seen later, is undeniable.
A close :up of the social milieu leading up to the enactment in 1969 of the Amendment Act is uSeful to identify the substantial •JU.et the la~ was in~nded to ~verpower. Did that eVI1 reasonably necessitate, for effectual 111lplementatlon of purpose, the extension of the new law to pending suits and appeals ? How many suits, appeals and second app:als by transferees within the three-year belt were pending? How long had they been so pending? Were there only stray eviction cases of long_ ago and was it feasible or necessary to (I) Murthy Match Works v. Am. Colltctor o/Ctlllfcl Exci11t, A.J.R. 1974 s.c. 497, 503.
c c . n. BANERJEE v. ANITA PAN (Krishna Iyer, /,) 78 7 draw a line somewhere to prevent injustice to non-speculative and old-time buyers of build_ings without impairing the limited immunity meant for tenants and intended against new ,realty investors ? On these facts the State has sat with folded hands and we have been thrown on our own to scan and sustai~ or strike down. 'But here arises the signi- ficance of initial presumption of constitutionality. The High Court has made short shrift of this plea thus :
"There is nothi11g on the record to show that the mis- chief, sought !O 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 mis- chief was of comparatively recent origin. In this context, the application of the restrictiQn on the omnibus scale to :ill pending suits and appeals would smack of unreasonable-
ness." Who has the onus to place .:ompelling facts, except in flagrant cases of gross unreasonableness, to establish excessiveness, or per- versity, in the restrlction imposed by the
statute ? Long rigo in Dalmia's Case( 1) this Court held that: "there is always a presumption in favour of the consti- tutionality of an enactment and the burden is upon him who attacks it to show that there has been l clear trans-
gression of-the _constitutional principles"; 11nd 'that it must be presumed that the legislature under- stands 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 on ade- quate grounds;" If nothing is placed on record by the challengers the verdict ordinarily goes against them. Moreover, what is the evil corrected by the Amendment Act? The influx of a transferee class of evictors of tenants and institution of litigation to eject and rack-rent or re-build to make larger profits. Apparently, the inflow of such suits must have been swelling slowly over the years and when the stream became a flood the Legislature ru~hed with an amending bill. Had' it made the law merely prospec~ tive, those Who had, in numbers, already gone to Court and induced · Jegislat1ve attention would have escapl'.d the inhibition. This would defeat the object and so the application of the additional ban to i»nd- ing actions could not be called unreasonable. To omit to do so would have been unreasonable folly .. The question is whether those cases which were filed several years ago should have been carved out of 'the category of transferees hit i?Y the Act ? Where do you draw the line ? 'When did the evil assume proportions ? These are best left to legis- lative wisdom and not court's commonsense although there may be g_:ievances for some in_nocent transferees.
{I) [19S9) S.C.R. 279, 297-propositions (b) and (c). [1975] 2 s.c.1~. If this be the paradigm of judicial review of constitutionality, we have to ignore exceptional cas.es which suffer misfortune unwittin~ly. The law is made for the bulk of th.e. community to produce social justice and isolated instances of unintended injury are inevitalble martyrs for t~e common good sinee God Himself has failed to maike perfect Jaws and perfect justice, Freaks have to be accepted by the victims rightly or wrongly as froensic fate ! Not that it should be so but human ii1fallibility bei~ unattainable, easily the next best in social justice is to promote the public weal sacrificing some unmerited private hurt as unfortunate: but unavoidable. It must be conceded that prima facie the two landlord-respondent's had purchased the buildings in the early sbtties and three time three years or more have now passed since t11at date. But while considering constitutionality can we be moved by such accidental instances ? No. The substantial evil has been substantially met by a broad application of the new ban to pend- ing proceedings. We see in tie Amendment Act no violation of Art. 19(1) (f) read with 19(5). The same High Court, in a later case K.fllyani Dutt v. Prami~ Bala Dassi( 1) came to the same condusion by what it called 'independently considering .the question'; We
discern nothing substantially different in the analysis or approach to merit review of our result. We hold s. 13 of the Amendment Act valid and repel the vice of unreasonableness discovered in both the reported rulings of the High Court.
And if reasonable interpretation can avoid invalidation, it is surely preferable. Here humanist considerationi, public policy and statutory purpose may provide guidelines of construction within
reasonable limits. Section 13 of the Amendment Act reads : "13. Retrosgg_ctive e[fect.-The amendments made to the said Act by section 4, 7, 8 and 9 of this Act shall have effect in respect ¢ suits including appeals which a:e pend- itli at the date of commencement of this Act"
The Court is! called upon 'to give effect tq s. 4 .. ' of this. new Ac:t.' 'Section 4 introduc.ed amendments in s. 13 of the basic Act which ·WC have set OUt earlier. There is no doubt that the purpose of the law is to interdict, for a spell of three years, institution of suits for eviction on grounds ( f) and (ff) g_f sub-s. (3A). Section 13 of the Amending Act maikes it .expressly applicable to pending actions, so much so the operation of the prohibition is not simply prospective as in the Kerala case cited before us (Nealakandhayya Fillai v. Sankaran(2). Section 13, fairly read, directs that the amendment made by s. 4 shall have effect in respect of suits, iii.eluding appeals, pending at lhe aommencement of the Act. We are therefore bound to give effect to s. 4 in pending actions, regardless of isolated anomalii::s and individual hardships. As earlier noticed, s. 4 has two limbs. It amends s. 13 of the basic Act by substituting two new clauses (f) and (ff) in P.lace of the ctld dause (f) of sub-s. (1) of s. 13 Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of (I) l.L.R. [197212Cat.660.
(2) (1961) R.L.T. 155. c c B. BANERJEE v. ANITA PAN (Krishna Iyer, /,) landlord's interest jµ premises, for recovery of possession on any of the grounds mentioned in cl. (f) or cl. (ff) of sµb-s. (1). The result of th~ two mandatory movisions has to be. clearly understood. For one thing, although the old cl. (f) is substantially similar to the present els. f) and (ff), the latter imposes more severe restrictions protecting the tenants. Much more h!iS to be proved by the landlord now· before he can get eviction than when he was called upon to. under the earlier corresponding provajon of the basic Act. Moreover, the thr~ year prohibition against institu.tion of the suit is altogether new. Lt follows, therefore, that on the present allegations and evidence the landlord may not get a decree, his suit having been instituted at a time when he cou!,ll not have foreseen the subsequent enactment sad- dling him with new. condifions.
We consider that where two interpretations are possible that which validates the statut~ and shortens litigation should be preferred to the one which invalidates or proliferates it. We are guided by that consi- deration in the interpretative process. We are satisfied further that originally brou,ght in, is defective since it did not contain-and ordi- narily could not-averments complying with the new els. · (f) and
(ii) of sub-s. (1) of s. 13 and we are making it effectively by constru- ing the word 'institute' in a .natural and grammatical way. The suit is really instituted in compliance with els. (f) and/or (ff) only when the new pleading is put in.
The bigger roadblock in the way of the plaintiff is in a pending . action lies in the prohibition of the institution of the suit within three years of the transfer from the landlord. Indeed, such prohibitions are common in rent control legislation as has been noticed by the Calcutta High Court and is found even in agrarian reforms laws (vide Malaber Tenancy Act.. as amended by Act VII of 1954, Madras). Section 13 of the Amendment Act compels· the postpon- ment of the institution of the ~t (including appeal) for a period of tl)ree years from the date of the transfer, In both the cases before us, the suits were instituted within the prohibited period of three years. The argument therefore is that the suit~ must be straightway dismissed, the institution being invalid. We do not think that this consequence is inevitable. 'To institute' is 'to begin or commence', in plain English. The question then is whether the suit can be said to begin on. the date it was filekl in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet oJ sub-s. ( 3A). The. prohibi- tion clamped down by sub-s. (3A), carefully read, is"on suits for recovery of posseiision by transferee landlords 'on any of the grounds mentioned in cl. (f) or cl. (ff) of sub-s.(1)', Obviously the suits with whic.b we are concerned are not for recovery on grounds contained in els. (f) and (ff). They were based on the repealed cl. (f) of s. 13 of t1ie basic Act. Strictly speaking, sub,.s. (3A) brought in by s. 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; (b) it is for reoovery of possession of premises and ( c) the ground for recovery is what is mentioned in cl. (f) and cl. (ff) .of sub-s. · ( 1 ) . Undoubtedly the third condition .is not fulfilled and there- fore sub-s. (3A) is not attracted. This does not mean that the suit SUPRE\1E COURT .I~EPORTS
[197 5] 2 s.C.R. .;an be proceeded with and decree for recovery passed, because s. 13 of the basic Act contains a broad ban on eviction in the following "13 (1) Notwithstanding anything to
t1,l.e ~ntrary in any oth<~r law, no order or decree for the rec1>very of pos- session of any premises shall be made by any Court in. favour of the I11ndlord against a tenant except on o'ne or more of the following grounds, namely :-(emphasis, ours)
Since the new els. (f). and (ff) are included by the Amendment Act in s. 13 of the ba,sic Act and since the suits 'we are concerned with, as they now stand, do not seek eviction on those grounds they will have to be dismissed on account of the: omnibus inhibition on recoviiry of possession contained in ~· 13 itself. ·
A just resolution of this complex situation was put by us to cou:n- sel on .both sides an!f the learned Advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we pro- posed were to be accepted. We are satisfied that as far as possible courts must aVQid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, with- out whittling down the effectiveness of the protection ior the parties soucltt to be helped by the legislation, should be preferred to aJ!lY · literal, pendantic, legalistic or technically correct alternative. On this footing we are prepared to interpret s. 13 of the Amendment Act and give effect to s. 4 of that1'\ct. How do we work it out ? We do it by directing tl!e.plaintiffs in the two cases to file. fresh pleadings setting out their grounds under els. (f) and/or (ff) of sub·s. (1) if they so wish. On such pleading being filed we may legitimately hold that the transferee-landlord· institutes his suit on grounds mentioned in els. (f) or (ff) of sub-s. (1) on that date. It is only when he puts in such a pleading setting 'Out the specific ground covered by sub-s. (3A) of s. 13 that we i;:an say he has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored since that was not l'tased on grounds covered by els. (f) and/or (ff) and is not attracted by sub-s. (3A). He begins pr~ic.eedings on these new grounds only when he puts in his pleading setting out these grounds. fa spirit and in letter he insti- tutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insist- ing that a return of the plaint and a :representation thereof incorpo- rating amend01ents is th~ sacred requirement of the law.
On the other hand, social justice and the substance of the matter find fulfi:t- meut when thr, fresh pleadin~ are put in, subject of course to the three-year intervar between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act spe11.ks of suits including appeals. It th11s follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending, or in appeal or second appeal, if that is pending. Thereupon, the . opposite party. tenant, will be j!iven an opportunity to file his written statement and the Court Will dispose of it after giving both sides the right to lead c
c B BANERJEE v. ANITA PAN CKrishua Iyer, J.) additional evidence. It may certainly be open to the appellate .Court either to take. evidence directly or to call for a finding. Expeditious disposal of belated litigation will undoubtedly be a consideration with the court in exercising this discretion. The proviso to sub-s. (3A)
can also be complied with if the plaintiff gets the permission of the Rent Controller in the manner laid down therein before filing his fresh pleading. We are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression 'institution of the suit' as amounting to filing of fresh pleading. By this ..:011Struc- tion we do no violence ~o language but, on the other hand, promote public justi~ and social gain, without in the least imperilling the protection conferred by the Amendment Act.
Ruinous protraction of litigation, whoever may temporarily seem to benefit by delay, bankrupts both in the end and inflicits wounds on societv bv sterile misuse ofmoney. Tenant passengers who prolong their expensive flight on the litigation rocket, are buying tickets for financial crash', drugged though they be by the seeming blessings of law's delays. Courts, by interpreting the expression 'i!J.Stitution of suits' cannot author~ reincarnation, all 'over again, of litigation for eviction. We save the ~nant by applying it to pending cases and save him also from litigative waste.
This consideration is itself germane to the larger concept of justice which it is the duty of Courts to promote. Law finds its finest hour when it speaks to justice on fair terms. In the present case our inter- pretative endeavour ha8 been imbued with this spirit. In the process of interpretation where alternatives are possible, the man in the law infivences the law in the man may be and the c.oostruction on ss. 4 and 13 of the Amendment Act herein adopted, we admit, appeals to us as inore humane. The calculus of statlltony construction relating to complex problems of the community cannot be hide-bound by ortho- dox text-book canons.
An obiter, maybe. MQre buildings is the real solution for dwelling shortage; £reeling scarce accommodation relieves for a little while. Ti2er balm is tio serious cure for brain tumour ! We make no IJlore comments on the need for dynamic housing policies beyond statutory palliatives. These belong to legislative 'wisdom' and administrative 'activism' and not to judicial. 'constitutionalism'.
It was noticed in the course of arguments that a later Amending Act of 1970 purportitjg to give relief to t.enants against whom detrees for eviction had been passed b1,1t dispossession had not ensued, had been put on the statute book. It is surprising that counsel on either side did not choose to address 11s lU1Y arguments on the basis of those provisions. We therefore do not go into the impact of that Act on situations where eviction has been ordered by Courts.
We therefore allow the appeals with costs but direct the High Court tO dispose of the cases in the light of the directions and cibser- SUPREMI! COURT REPORTS (1975) 2 e.c.1t. vations we have made. I~ will be open to the Court seised of the matter to direct, 4n its discretion, award of costs to be incurred beire- after.
Go.swAMI1 J.-Civil Appeal No. 1304 of 1973 is. by certificate granted by the Calcutta Hi.jh Court and Civil Appeal. No. 2063 of 1973 is by Special Leave of this Court. Thi! first one arises oµt of Letters Patent Appeal No. 14 of 1969 of the Calcutta High Coi.lrt dismissed on February 3, 1972, relying upon its earlier decision in Kalyani Dutt vs. Prarnila Bala Dassi since rel'Orted in I.L,R. (1972) 2 Calcutta 600. A preliminary question had arisen in connection with the aforesaid Letters Patent Appeal along with tbree other appeals at an earlier stage with regard to the c constitutionality of section 13(3~) of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (briefiy the . Amendm~nt Act). A Division Bench r:~pelled the contention of the appellants in decision which has since been reported in ~.l.R. (1971) Calcutta 331 (Sai/erulra Nath Ghosal & Ors. vs Sm. Ena
D~tt & Others). The Division Bench had held that sub-seetion (3A) of. section 13 in so far as it was. !Ctrospective in operation was ultra vires Article 19 ( 1) .D (f) of the Constitution on the ground of unreasonableness. Since, hc1w• ever, the Letters Patent Appeal was not completely disposed of, 1the bar of sub-section ( 3 A) was this time pleaded asserting that Article 19 was not at all attracted to the present case on the ground !hat ~he right of reversion of the landlord, namely, the right to recover posses- sion of the proper:ty fro~ the te~nt, is not a right of property which is a e-0nclition precedent to the application of Article 19(1) (f) ~ind consequently1 .. the question as to the infringement of fundamental right did not at au rise and that there could not be any scope for holding that the provision of sub-section (3A) offended against Article 19(1) (f). This second contention which was allowed tp be railied by the Letters Patent Bench was also ~pelled following its earlier decision in Kalyani Dutfs case (supra) disposed of on September 7, 1971.
Civil Appeal No. 2063. of 1973 ariseS out of the decision of the High Court in Second Appeal No. 1193 of 1972 disposed of on 25th July, 1973 relying upon Sailendra Nath Ghosal's case (supra) which is the subject matter of appeal jn Civil Appeal No. 1304 of 1973. The history of tortuous litigation in both the•appeals may also be noticed. lo Civil Appeal No. 1304 of 1973 the plaintiff (respond1!nt herein) purchased the premises in suit on February 16, 1961. She instituted Title Suit No. 480 of 1961 in the C-Ourt of Munsif ef Sealdah, District 24-Pargana, for ejectment of the defendant, on July 24, 1961. The suit was decreed by the Munsif on July 21, 1964, but was dismissed by the lower appellate court on May 17, 1965. On second appeal at the instance of the plaintiff, the High Court framed an additional issue and remanded the suit to return a· finding ori 1he same. On rec'.eipt of the fillding of the oonrt below, the learned Mn.gle Judge of the High C'.llnrt dismissed the second appeal and granted c
B. BANERJl!.I! V, >JilttA l'AN (Goswami, /,) 7&3 leave to file a Letters Patent Appeal. That appeal was dismissed on February 3, 1972. The High Court granted certificate to appeal against that decision to this Court on May 24, 1973, referring to the earlier certificate granted by that
Court in Kalyani Dutt's case (supra). That is how Civil Appeal No. 1304 of 197.3 is now before us. The facts in Civil Appeal No. 2063 of 1973 are these. The pro- perty in suit was purchased by the plaintiff (respondent herein) on February 7, 1964 and the eviction suit No. 76 of 1966 was instituted in February 1965. The suit was dismissed by the Trial Court on October 11, 1966. On appeal by the plaintiff, the Additional District Judge allowed the appeal on June 8, 1967, and remanded the suit for disposal after taking additional
evidence. The Muitsif thereafter decreed the plai1.tiff's suit on December 23, 1968. On iappeal by the defendant the Additional District Judge allowed the same and dismis- sed the suit on April 8, 1969. On plaintiff's appeal to the High Court in Second Appeal No. 968 of 1969, the High Court allowed the same on April 3, 1971 and remanded the suit to the Munsif for retrial. The Munsif again dismissed the plaintiff's suit on September 13, 1971. On appeal by the plaintiff the Additional District Judge allowed the same and decreed the suit on Apr1t 29, 1972. The High Court on appeal by the defendant dismissed the second Appeal on July 25,
1973, relying upon Salindra Nath Ghosal's case (supra) .disposed of on January 28, 1971. The defendant then obtained isl>ecial leave. Thus the life of litigation in Civil Appeal No. t3'04 of 1973 is now in the fourteenth year after purchase of the premises b~ the plaintiff six
months earlier. The second . one is a decade old; the property having been purchased about a year earlier. Both the appeals were argued together and will be governed by this common judgment.
The suits in both the appeals are by what has come to be. known as transferee-landlords. They have instituted suits in one case with- in six months of the purchase in 1961 and in the other within one year of the purchase in 1965. During the long_pendency of the litfo:a- tion the West Bengal Premises Tenancy (Second Amendment) Act wa1 passed which came into force on November 14, 1969. and section 4, inter-alia, was made applicable to pending suits including appeals. It amended the West Bengal Premises Tenancy Act,
(West Benl?al Act XII of 1956) (briefly the Original Act). Section 4 of the Amendment Act introduced the following changes in section 13 of the Orig!nal Act : Section 13(1) (f) of the Original Act stood as follows:-
"13'(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recoverv of pos- session of any premises shall be made by any Court in favour of the landlord a!!ainst a tenant except on one or
more of the following grounds, namely :- (f) Where the nremi~es are reasn,,'lbly reauired by the landlord either for purposes of building or rebuildin~ or 4-U4~up,Cl/7S [1975] 2 s.c.a.
foe malting thereto substantial additions or alterations or fer lus own occupauon if he is the owner or for lhe occup11·- t1on of any person ror whose benefit the premises are held". After the amendment of section 13 by section 4 of the Amendment Act. clause m was spht up into two clauses- (f) and (ff) which r1:ad a& under:-
"(f) Subject to the provisio~ of sub-section (3A) and eection 18A, where the premises are reasonably required by the lancrrord for purposes of l:>uilding or rebwlding or for making thereto substantial additions or alterations', and such building or re-building, or ai;ldilions or alterations. carinot bo carried out wi1hout the premises being vacated;
(ff) Subject to the provisions of sub-section (3A), where the premises are reasonab.ly required by the landlord for his c1wn occupation if he is the owner or tor the o.;cupa- tion of any person for whose benefit the premises are held and the landlorq or such person is not in possession of any reasonably suitable ai:commodation".
c In. addition, section 4 of the Amendment Act introduced a new · D sub-section (3A) which @ads as fo!Jows :- , "Where a landlord has acquired his interest in the pre- mises 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 !>~fore the expiration of a period of three years from thi: date of his acquisition of such interest;
Provided that a suit for the recovery of ~e possession of the premises may be instituted on the ground m~ntioned in clause (f) of sub-section (1) before the expiration of the 11aid pe1iod of three years if the , Controller on the applica- tion of landlord and after giving the tenant an opportunity of b~ing; heard, permits, by order, the institution of the suit on the ground that the building or re-building or the addi- tions, er alterations, as the case may be are necessary to make the premises safe for human habitation".
Tt should be noted that the grounds for ejectment in the earlier sub-section (f) are the same as the new grounds in clauses (f) :md (ff) except for some additional restrictions. The co.mmon grounds for eviction are, broadly speaking, reasonable requirement for the pur- pose of building or rebuilding, etc. (sub-clause (f)] and reasonablo requirement for occupation by the landlord, etc. [sub-clause (ff)). There is, t'imfore, no J:mticular si~:nificance to the mention of "grounds" in claUSe (f) or clause· (ff) of sub-section (1) in sub- section (3A).
Section 13 of the Amendment Act which is the bone of conten- tion grants retrospectivity to section 4 of t::c Amendment Act and,. therefore, necessarilv ta sub-section (3A) and section 13(1 )ff) (ff). The grievance centres round retr'.l~pectivity of sub-settidn (3A) nod B. BANERJEE v. ANITA PAN (Goswami, I.)
section 13(1) (f) and (ff) made applicable by force of section 13 of the Amendment Act to· suits. and appeals pending on the commence- ment of the Act. It may be in order first to deal with the question of retrospectivhy of sub-section (3A) which is the principal ground of at.tack in these appeals.
Section 13 of the Amendment Act provides that effect should be given to section 4 of the Amendment Act in pending suits including appeal on the date of. the commeDCement of the Act. The suits of the particular category by transferee-landlords, therefore, could be pend- ing on commencement of the Amendment Act and th~se may have been instituted several year& prior to the Amendment Act. There may also be appeals pending in different appellate courts against decrees in such suits. The appeals necessarily have to be understood as
. C app~als arising out <>f suits instituted within the three years' ban. The tenants are now permitted to take objection on the score of con'rave~ tion of section 13(3A), before the courts either in a pending suit or in a pending appeal against decrees· in such suits and the point for consideration- then wOU!d be Whether such a suit was instituted with- in three years' ban and the appeal was pending against such a banned suit. When section 13 of the Amendment Act provides that 8ection D · 4 therein has to be given effect in pending suits including appeals, effect has to be given ll.y the coUrts. Now hQw will effect ~. l!iven to section 13(3A) ? Retrospectivity to:be given under section 13 of the Amendmei:tt Act to section 4 orua.dly requires compliance as follows ( 1) that no suit for eviction by a transferee-laudlord shall be instituted within three years of his acquisition of
the premises; (2) if eviction is sought on the ground under section 13(1)(0 of the Amendment Act, an additional res- triction is put, namely, that "such building or re- building or additions or alterations cannot be carried
oUt without the premises being vacated"; ( 3) if eviction is sought on the ground under section 13 (1) (ff), a further restriction is put upon the right of the landlord to evict, viz., that "the landlord or
such person is not in possession of any reasonably suitable a~ommodation". Under proviSo to soCtion 13(3A) a transftrt»landlord can, how- ever, institute a suit within three years' ban provided he obtains prior permission trom me Controller who on an application by the landlord and after hearing the parties may decide whether permission should be given or not.
Primt·facie, .a suit which had already been instituted prior to the Amendment Act would not come within the mischief of section 13(3A) since this sub-~ection, in terms. prohibits onlv ir1stituti"ll of suits and does not provide for dismissal of suits already instituted. Siniilarlv while there is a relaxation in favour of a transferee-landlord under the proviso to obtain permission from the Colltroll~r thi~ bene- fit is out. of-the \Yl!Y even in a genuine case where the suit had already SUPRl!ME C()Utl'.r J.tl!POR TS
(1975] 2 s.C.J~. been instituted within three years . 0£ purchase and the same or :an appeal therefrom is now pendmg after the passin2 of the Amendment Acc. In this regard also it appears sub-section (3A) is not intended to be attracted to suits which were already instituted prior to the Amendment Act. But as will be seen hereafter the above position is altered by thi: express provision of section 13 of the Amendment Act whereby it is intended that the court -should give retrospectivity, inter alia, to sectio:n 4 ()f the Amendment Act.
On the term5 of only section 13(3A) it is difficult to hold that it would bring old sections within the mischief of section 13(3A) whi1=h imposes a ban expressly on institution of suits within three years of the acquisitio11 of ownership of the premises su~ject to the relaxation contained in the proviso thereto.
This being the correct interpretation ef sub-section (3A), taken by itself, what is the effect of section 13 of the Amendment Act upon this provision? Section 13 of the Amendment Act in seeking to give retropective effect to sub-section (3A) does exactly what sub-section (3A) by itself contra-indicates.
The first part of section 13 (3A) which provides for a ban against institution of suit& for eviction within three years of acquisition of ~1e premises must be given effect to under section 13 of the Amendment Act in pending suits and in pending appeals arising· out of the decrees passed in such suits prpvided the former had been instituted within · the period of the ban. If, therefore, after the Amendment Act it is found in a pending suit or in a pending appeal that the particular suit was instituted within the three years' ban the same will have to be dismissed and only in that way the court will be able to give effect :to sub-sr.ction (3A). With regard to the proviso of sub-secti11n (3A), when the ground of eviction is relateable to seotion 13 (1) (f) of the Amendment Act the· court will have to dismiss the suit in absence of the requisite premission.
That being the practical result of restrospectivity given to sub- section (JA), is that sub-section, in so far as it is retrospective, vic>- lative of Article 19(1 )(f) of t11e Constitution? That takes us to the object and purpose of the Amendment Act. The Statement of Objects and Reasons as quoted in Kalyani Dutt's case (supra) is as follows :– "It hi1S been considered necessary that some 111ore relief should l>e given to the tenants against eviction, that the neces- sity of tender of rent to the landlord every time the rent is deposited with the Controller during a continuous period should be dispensed with, that the interests of the residents of hotels and lodging houses should be safeguarded and that the penalties for contravention of some of the orovi~i""'" of the West Bengal Premises Tenancy Act, 1956, should be
made more stringent';. In the earlier jpdgment of the High Court which is also the subie<:t matter of Civil Aooeal No. 1304 of 1 Q73 the H<oh Co11rt rl'fPT'J'ed to the statement of the' Minister at the time of piloting of the em il1 the foiloWing words:-
c c B. BANERJEE V, ANITA P.\li (Goswami, J.) "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 is one class–original owners who are the old inhabitants of the city; these owner-landlords are not affluent; they sole1y depend UPon the rents received from the tenants.
It has been ascertained from experience that two ?f' the grounds of eviction, namely, requirement of the prem1~es. for own use. o~ the landlords and for the purpose of buJ!dmg and re-butldmg, have been misused by the land-
lords. In the city of Calcutta and other towns there are millions of te!1ants who are left at the mercy of the land- l?J'~S. In t.h~s ba~kground and after taking into account s1mdar prov1s1ons 1n other States, it has been decided that some restrictions ought to have been imposed upon trans-
feree-landlords prohibiting them from bringing ejectmcnt suits against the tenants within three years from their pur- chase". The High Court also observeo further that- "there is nothing on the record to show that the mis-
chief, sought to be remedied by the amended legislation, was in existence since 1956. On the other hand. the minis- terial speech, referred to above, rather indicates that the said mischief was of camparatively recent origin".
Again in Kalyani Dutt's case (supra) the High Court iii para 27 observed that "such suits are not many and at the same time most of them are pending for more than ten years". The materials relied
upon by the High Court stand uncontradicted by any affidavit before us. On the above materials it is safe to hold that the main object of the Amendment Act is to counteract the "recent'' mischief of circum- veration of the provisions of the original Act in order to evict tenants on even bona fide requirements specified under the law of device of transfer of premises held under the occupation of tenants. Although the Amendment Act has not completely barred institutions of suits by transferee-landlords postponement of litigation for a period of three years from acquisition of the premises was provided for undllr suh- section (3A) .. This had a two-fold purpose, namely, to enable tenants a reasonable respite to arrange their a.flairs and also to discourage speculative acquisitions with an ulterior motive.
This salutary pro- vision for the general bodv of tenants cannot be called unrea~onable, But the question ·is whetlier-bv apolvinl? the orovision to pertdinl? suit's and appeals has that object been achieved in the interest of the general bodv of tenants which would certainlv cons•itute the general public within the rneanina of cl~u•e 5 of Article 19? From the fact~ &'Id circum•tances extracted above from the two judgments of the High Court. it is not possible to ho'cl that the interest of the general bodv of tenants would be served by application of sub-section (3A) to pending suits and appeals.
. If the mischief was of "recent" origin, there is no reason to over• shoot the ·mark and outstretch the long rope of the law beyond the> requirements of the situation. It is clear that in trying to include old actions that may be survivmg in courts, per chance, because of Jaws' proverbial delay, seadon l} of the Amendment Act has gone far. iin excess of the actual needs 6f the time and prub1ems anCl m.: prov~1u11s thereof cannot be said to impose a reasonable restriction on the ngfllt of the transferee·landlords, albeit a well-defined class, amongst LJ1e landlords, to hold and enjoy their prop1erty in the interest of the gene- ral public.
Such transfen:e-landlords with pending old sections in suits or in appeals are, as observed by the High Court, not likely 1to be of a large number and necessarily so the tenants of such a sub-sec- class. Jt is not in the general interest of the large body of tenants to impose such restrictions on a few transferee-lam1JorCls of 1.hi.; s111>- class subject to unbearable delay in litigation, understandably not on their own account. If relief in the shape of postponement of a land- lord's suit were the object of sub-section (3A) in giving retrospectivit:y to it, the law did not take count of the inevitable long delay that tak1es place in pending litigation of this type as a result of man-made laws of procedure in courts such as as has even been clearly demonstrated by the cases at hand.
The law that misses its object cannot .iustifv its existence. Besides, it will be a sterile relief if tenants have to fa<:e a fresh summons next day. Hard caseB will be on both sides of the line. Law contemplatt:s in terms of generality and is not intended to hit a few individuals by making invidious distinction.
Article 19 of the Constitution confe.rs protection of rights specifi<:d. therein belonging to all citizens. Any individual citizen may complain of encroachment of his ri'!hts arid freedom guaranteed under the Article. Law's encroachment upon such rights and freedom of citizens can survive challenge if it passes the tests laid down in the six saving clauses of Article 19.
Coming now to article 19(1 )(f), with which we are concerned in these appeals, the said provision confers upon each individual citizen the right to acquire, hold and dispose of prop~rty. This right is subject to clause ( 5) which we may read so far as material for our purpose:
"Nothing in sub-clauses (d), (e) and (f) of the said clause shall …. prevent. the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses …. in the inter- ests of the general public ….. ".
Even a single citizen may complain against violation of his funda- mental rights under Article 19(1 )(f) and his vindication of his tight may be defeated only if tht: impugned infringement brought upon by the law can be considered as a reasonable restrictiQn and the •aid restriction is also in the interests of the general public. It is manifesl~ therefore, under the Constitution, that an individual's right will have to yield to the common weal of the general community. That 11eneral community mav be in broad sel!lilents, but even then must form :11 class as a whole.
A few individuals cannot ta~e the place of a class and for the matter of that the l!cneral public Tn the pre•ent c~S<~ the particular relief contemplated by the Amendment Act is in favou:r c
c B. BANl!llJEI! v, ANl~ PAN (GoswanU, /.) 1f).9 of tenants in general aµd the restriction und~r :Jub-section (3A) must be viewed· in that cOntext. It canriot be . said that the leg1Slature in applyt11g sub-section (3A) restrospectively has achieved tnat avowed ooj1::ct at all. The mattef would have been different if, in view of any prevailing- conditions, a rea8onable date for giving retrospective effect were fixed under tne law in the light of the known m1scn.1:r. In its absence, applicability of the blanket ban to pending suits and appeals cannot be said to be a reasonable restriction in the interests of. the general public. It may help a few tenants in litigation but will prejudice the right of transferee-landlords locked up in old and costly litig.;tion. The gain of the few as opposed to the general public can~ not be the touchstone for justifying reasonableness of the resmction imposed on the rights · of the transf~ree-landlords in applying sub- section (3A) to pending suits and appeals.
In the social combat between the interests of a few and the general welfare of the community the latter is the clinching factor to be rec- koned and hard cases of a few individuals cannot be assigned a higher pla_ce and status than they deserve to the detriment of the fundamental rights of even a single individual.
Therefore, the retrospectivity so far as sub-section (3A) is con- cerned with regard to institution of suits made applicable to pending suits and appeals is clearly very wide of a ·reasonable mark and is, thus, an imposition of an unreasonable restriction. on the rights of the transferee-landlords in ¢nding suits which had been instituted prior to· the Amendment Act and in appeals arising therefrom and. it IS not saved by the .protective clause ( 5) of Article 19 of the .Con- . stitution. Sub-section (3A) so far as it is retrospective and as such applicable to pending suits including appeal is ultra vires Article 19 (I) (f) Of the Constitution. The provision is valid only prospec- tively.
So far as the retrospectivity Of section 13(1)(f) ·and (ff), the position is entirely different Clearly further reliefs have been ·sou1?bt to be given to the tenants as a class by these provisions in theAmend- ment Act.
The5e further reliefs are in the· general interests of ·tenants and can be applied without any· difficulty to pending suits including appeals. There is nothing unreasonable .aoout-such a retros~tivity in applvini? these provisions for the eeneral welfare o~ tenants tn se- curinl? for them a ·safe and sure tenure as far as practicable untram- melled by inconvenient litigation. It is well-established that the legis- lature in enacting laws can legislate prospectively as well as restrospec- tivety. Section 13(1 )(f) ·and (ff) are, fuerefore,
not ultra vire8 Article 19(1) (f) of the Constitution. With regard to another contention of the appellants that the rialtt of tlie landlords that is affected by su~section (3A) is only a mere right to sue and at best a right of reversion and hence it is not a right to property under Article 19(1) (f) of the Constitution, it is suffi- cient to state that the ouestion is covered by two decisions of this Court in The -Commi.fsioner, Hindu Religious :h:ndowments, Madrtu v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt( 1) and Swami (!) [19S4] S.C.R. !OOS
80-0 SUPREME COURT REPORT& [1975] 2 s.c.1 .. Motor Transport (P) Limited and Another v. Sri Sankaraswamigal Butt and Another(1). The right to own and hold property in order to make an effective rignt under the ConsLiLuuon mu.t mc1ude me right to possession of the property including the right to evict tenants in accordance with law.
The submission is, therefore, without any force. The position, therefore, is that in a pending suit or even in a pending appeaf a landlord may be given an opportunity to adduce evidence to establish such of the new requirements in 13(1) (f) or (ff) as are relevant to the proceedings.
In that case the tenant will have also an opportunity to produce evidence in rebuttal. If the matter arises in a pending suit, it will be disposed of by the trial court. however, the matter arises in appeal, it wil! be open to the' appellate court, in order to shorten the life of litigation, to remand the matter to the appropriate court to return a finding on such additional issu1~s as may be framed to meet the requirements of (f) and/or (ff), as the case may be, under order 41, rule 25, Civil Procedure Code. In the result these appeals are partly allowed.
The judgment of the High Court with regard to invalidity of sub-section (3A) so far as it is retrospective and applicable to pending suits and appeals is upheld. The orders dis!llissing the appeals are, however, set aside and the appeals are remanded to the High Court for disposal in the light of the observations with referenpe to section 13(1)(f) and/or (ff), whichever is applicable.
The. landslords may now be given by the High Court an oportunity, if they so wish, to adduce evidence with regard to such further requirements under (f) and/or (ff) a1s may be applicable and the High Court will call for a finding from the appropriate court in that behalf and thereafter dispose of the appealls on merits. Since success is shared, there will be no orders as to costs in these appeals.
ORDER In accordance with the majoritv judgment, ·the appeals are allow- ed with costs; the cases are remanded to the High Court, and the High Court is directed to dispose of the: case in the light of the direc:- tions and obs(:rvations made in the maj'lritv judgment.
It will be open to the Court seised of the matter to direct, in its discretion, amount of costs to be incurred hereafter. P.B.R. (l) [1963] Supp, I S.C.R. 282. c