TMI Blog1983 (10) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... as. By virtue of the provisions contained in Part VI of that Act, the Madras Buildings (Lease and Rent Control) Act, 1949 (Madras Act XXV of 1949) continued to be in operation in the State of Andhra. On November 1, 1956 under the States Reorganisation Act, 1956 with the merger of the area known as the Telangana area, which formerly formed a part of the erstwhile State of Hyderabad, with the territories of the State of Andhra the new State of Andhra Pradesh came into existence. By virtue of section 119 of the States Reorganisation Act, the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 (Hyderabad Act XX of 1954) continued to be in force in the Telangana area even after the new State of Andhra Pradesh came into existence. In the Andhra area, the Madras Buildings (Lease and Rent Control) Act, 1949 also continued to be in force. By a notification dated May 9, 1956 issued by the Government of Andhra Pradesh under the said Madras Act, all buildings in the Andhra area, the construction of which was completed on or after October 1,1953 were exempted from all the provisions of that Act for a period of three years from the date of such completion. On August 26, 1957 the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the policy underlying the main Act and the policy underlying section 32. This purpose cannot be said to be in any manner derogatory to the main purpose of the Act; in fact it supplements it. It is true that the tenants of the new buildings would suffer from the same hardship in order to redress which the measure was enacted. The Legislature in its wisdom and perhaps with justification thought that this hardship to the tenant will be shortlived and compared to the necessity of bringing into existence more and more new houses, for which purpose the concession is shown has necessarily to be to erated for a short while in the interests of the entire body of tenants as the new buildings are bound to bring down not only the hardships from which the new tenants would thus suffer but solve the larger problem of residential accommodation thus giving relief in all respects to the entire body of the tenants. It is for this purpose that it is now well-settled that the Legislature can recognise degrees of evil without being arbitrary, unreasonable or in conflict with Art. 14 of the Constitution. (Underlining by us) It may be noticed that the High Court felt that the hardship caused to the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having the protection of the remedial provisions of the Act and another class who do not have such protection. It is argued by the petitioners that whatever may have been the position in the first few years after the Act was passed, there is no justification for continuing this exemption for all time to come. The State Government has stated that the object of granting the exemption was only to provide an incentive to the building activity. It is further pleaded in paragraph 6 of the counter affidavit filed on behalf of the State Government thus: 6. It was under active consideration of the Government subsequently regarding amending section 32 (b) of the Act so as to include later constructions. Twice bills were introduced in the Legislature of the State but, however, they could not be passed. The matter is again under active consideration of the Government. The proposal now under consideration by the Government is to extend the Act to all buildings after the completion of 10 years of their construction. Similar provisions are to be found in the relevant Acts of the States of Tamil Nadu and Karnataka. However, in the States of Tamil Nadu and Karnataka, the Act applies to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually and unequals ought not to be treated equally. While that Article forbids class legislation, it does not forbid classification for purposes of implementing the right of equality guaranteed by it. In order however to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. While the classification may be founded on different bases what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The principles governing a valid classification have been laid down by this Court in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors.(1) thus: (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embark upon construction of new houses, which is so necessary at present, is not scuttled but encouraged. Exclusion of buildings for a particular period, reckoned from the date of completion of their construction is in our opinion, a better course than providing that the proposed Act shall not apply to buildings constructed on or after a particular date, as the former would obviate the need for periodical amendment of the provision if the Act should continue to remain on the Statute Book for a considerable length of time. In the circumstances it is not possible to say that the petitioners have not placed any material in support of their case. On the other hand the contesting respondents have not placed any material in support of their case that the impugned provision in its present form does not violate Article 14 of the Constitution. Judged from the standards laid down in the case of Shri Ram Krishna-Dalmia (supra) we are of the view that the classification of buildings for purposes of section 32(b) of the Act does not satisfy the true tests of a valid classification. We are confronted in these cases with the position, say, in Hyderabad city, that there are a large number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minatory and hence violative of Article 14 of the Constitution if it is persisted in over a long period without any justification. The trend of decisions of this Court on the above question may be traced thus. In Bhaiyalal Shukla v. State of Madhya Pradesh one of the contentions urged was that the levy of sales tax in the area which was formally known as Vindhya Pradesh (a Part 'C' State) on building materials used in a works contract was discriminatory after the merger of that area in the new State of Madhya Pradesh which was formed on November 1,1956 under the States Reorganisation Act, 1956 as the sale of building materials in a works contract was not subject to any levy of sales tax in another part of the same new State namely the area which was formerly part of the area known as State of Madhya Pradesh (the Central Provinces and Berar area). That contention was rejected by this Court with the following observations at pages 274-275: The laws in different portions of the new State of Madhya Pradesh were enacted by different Legislatures, and under s. 119 of the States Reorganisation Act all laws force are to continue until repealed or altered by the appropriate Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry to do so. The laws of the regions merged in the new units had therefore to be continued on grounds of necessity and expediency. Section 119 of the States Reorganization Act was intended to serve this temporary purpose, viz., to enable the new units to consider the special circumstances of the diverse units, before launching upon a process of adaptation of laws so as to make them reasonably uniform, keeping in view the special needs of the component regions and administrative efficiency. Differential treatment arising out of the application of the laws so continued in different regions of the same reorganised State, did not therefore immediately attract the clause of the Constitution prohibiting discrimination. But by the passage of time, considerations of necessity and expediency would be obliterated, and the grounds which justified classification of geographical regions for historical reasons may cease to be valid. A purely temporary provision which because of compelling forces justified differential treatment when the Reorganization Act was enacted cannot obviously be permitted to assume permanency, so as to perpetuate that treatment without a rational basis to support it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtension and application of unequal laws for all time to come will militate against their true character as temporary measures taken in order to serve a temporary purpose. Thereby, the very foundation of their constitutionality shall have been destroyed, the foundation being that section 119 of the States Reorganization Act serves the significant purpose of giving reasonable time to the new units to consider the special circumstances obtaining in respect of diverse units. The decision to withdraw the application of unequal laws to equals cannot be delayed unreasonably because the relevance of historical reasons which justify the application of unequal laws is bound to wear out with the passage of time. In Broom's Legal Maxims (1939 Edition, Page 97) can be found a useful principle, 'Cessante Ratione Legis Cessat Ipsa Lex; that is to say, 'Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself'. We do not however see any justification for holding that the continued application of the Madras Act of 1951 to South Kanara District became violative of article 14 as immediately as during the period under consideration, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law even though it had been continued by virtue of section 119 of the States Reorganization Act, 1956. The above three cases arose under the States Reorganization Act. In Narottam Kishore Dev Varma Ors. v. Union of India Anr. the petitioners who wished to sue the Maharaja of Tripura, the former Ruler of the Princely State of Tripura contended that section 87B of the Code of Civil Procedure which applied the provisions of section 85 and of sub-sections (1) and (3) of section 86 of the Code of Civil Procedure to a Ruler of any former Indian State thereby making the consent of the Central Government a prerequisite for the trial of a suit against such a Ruler, giving certain immunity to him as provided in sub-section (3) of section 86 and extending the provisions of section 85 to the case of such a Ruler was violative of Article 14 and Article 19(1) (f) of the Constitution. After upholding the provisions on the ground that they were necessitated by historical reasons, Gajendragadkar, C.J. observed at page 60 thus: Before we part with this matter, however, we would like to invite the Central Government to consider seriously whether it is necessary to allow s. 87B to operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d since the shortage has become more and more acute, the Court should not interfere with the legislative judgment and allow the owners of buildings covered by section 32(b) of the Act to continue to enjoy the exemption until there is evidence to show that there is no longer any such shortage. We find it difficult to accept this argument because it overlooks one essential distinction between the facts of those two cases and the facts of the present cases. The two decisions referred to above arose in the context of reorganisation of States. The State of Madhya Pradesh was formed by integrating areas which formed parts of the British India and a number of Indian States. Similarly the State of Karnataka was formed by merging five integrating units which again formerly formed parts of the British India and Indian States. There were on the same subject laws of different patterns in force in the several integrating units on the eve of reorganisation. Those laws were allowed to continue in force as a matter of necessity in the different local areas until the State Legislature concerned passed a common legislation on each subject for the whole State. The Legislature had to consider which of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed to be continued unjustifiably for such a long time is a ground of attack in these cases. As already observed, the landlords of the buildings constructed subsequent to August 26, 1957 are given undue preference over the landlords of buildings constructed prior to that date in that the former are free from the shackles of the Act while the latter are subjected to the restrictions imposed by it. What should have been just an incentive has become a permanent bonanza in favour of those who constructed buildings subsequent to August 26, 1957. There being no justification for the continuance of the benefit to a class of persons without any rational basis whatsoever, the evil effects flowing from the impugned exemption have caused more harm to the society than one could anticipate. What was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of century. The second answer to the above contention is that mere lapse of time does not lend constitutionality to a provision which is otherwise bad. Time does not run in favour of legislation. If it is ultra vires, it cannot again legal strength from long failure on the part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve if they are capable of being separated from the bad. But a provision inherently unobjectionable cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision to stand, in case others included in the statute and held bad should fall. (See Dorchy v. Kansas 864 U.S. 286). The general rule is that when a provision which is in the nature of an exception to a general statute is invalid, the general provisions of the statute are not invalidated thereby, unless it clearly appears that the exception is so intimately and inherently related to and connected with the general provisions to which it relates that the legislature would not have enacted the latter without the former. The principles underlying the doctrine of severability are explained in Cooley's Constitutional Limitations (Eighth Edition) Vol. 1, at pages 360-362 thus: Where, therefore, a part of a statute is unconstitutional, that fact does not authorise the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left after omitting the invalid portion is so then and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley's Constitutional Limitations, Vol. I, PP. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the sating of the relevant provisions therein. 6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194. 7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, PP. 177-178. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er clause (a) of section 32 or exempted under section 26 of the Act in the areas where the Act is in force will be governed by the Act irrespective of the date of their construction. After giving our anxious consideration to the learned arguments addressed before us, we are of the view that clause (b) of section 32 of the Act should be declared as violative of Article 14 of the Constitution because the continuance of that provision on the statute book will imply the creation of a privileged class of landlords without any rational basis as the incentive to build which provide a nexus for a reasonable classification of such class of landlords no longer exists by lapse of time in the case of the majority of such landlords. There is no reason why after all these years they should not be brought at par with other landlords who are subject to the restrictions imposed by the Act in the matter of eviction of tenants and control of rents. We do realize the adverse effect of this decision on many who may have recently built houses by spending their life savings or by borrowing large funds during these inflationary days at high rates of interest, on the expectation and belief that they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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