TMI Blog1974 (11) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 19(5) and the compassionate animus of Article 39, Parts III and IV of the Constitution together constitute a complex of promises the nation has to keep and the legislation challenged before us is in partial fulfilment of this tryst with the people. These observations become necessary in limine since counsel for the respondents dismissed the concept of social justice as extraneous to an insightful understanding of the section invalidated by the High Court, while we think that judicial conscience 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 the Constitution. 2. The two appeals before us, raising substantially identical points, have been heard together and are being 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, AIR 1971 Calcutta 331. One of the decisions under 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 Nath v. S. E. Dull) since he was obviously bound by it. 3. A provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 overcrowded city choked by the largest human congregation in the country, enacted the basic Act whereby the plenary right of landlords to recover possession of their buildings was shackled in many ways. Industrial 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 ingenious transfers of ownership of buildings by indigenous but indigent 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 oil eviction. Presumably, the phenomenal increase of the menance of eviction by the new species of transferee-owners of building was countered by a legislative measure the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959) (hereinafter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion 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 presumption of constitutionality, hesitates to strike a 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 the citizen is manifest. 7. The perspective of the amending Act is sketched by the High Court in lurid 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 the needs of the gradually swelling 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. 8. The explosive import of neglecting such a distressing urban development reasonably obliges the State to impose drastic restrictions on landlords' right to property. And when circumventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the objects of the Bill, matters of common knowledge and state of facts, existing at the time of the legislation, it may be well conceived that underlying policy and objects of the amended provision is to give more protection to the tenants against eviction and the classification of landlords into owner-landlords and transferee landlords is based upon a rational and intelligible differentia and we hold accordingly. 9. Proceeding to examine the limited attack on Section 13(3A) of the basic Act read with Section 13 of the Amending Act, we have to remember die comity of constitutional instrumentalities and raise the presumption 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. Chamarbaguwala, 1957 S.C.R. 874 : AIR 1957 Supreme Court 699 and Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Others, 1959 SCR 279: AIR 1958 Supreme Court 538. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation, Sub-section (3A) newly introduced : 13.(3A) Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such-interest : Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of Sub-section (1) before the expiration of the said period of three years if the Controller, on the application of the landlord and after giving the tenant an opportunity of being beard, permits, by order, the institution of the suit on the ground that the building or rebuilding, or the additions or alteration, as the case may be, are necessary to make the premises safe for human habitation. 11. Once the substantive restriction super-added by Section 13(3A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided therein. However, for now buildings to be constructed special incentive provision was made by deeming the contract rent as fair rent, thus ensuring a high return on building investment. The social upshot of this scheme was that the old landlords found their ownership a poor return investment, saw a new class of wealthier investors 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 non-evictability provision of Section 3 of the basic Act. The transferees could thus get decrees for eviction under the basic Act. Naturally, transfers of buildings to this somewhat speculating class increased and the spectacle of eviction litigation or potential eviction proceedings was projected on the urban scene. The Legislature promptly reacted by the Amendment Act to rescue the lessees by clamping down new restrictions by way of Section 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is contended, is a horrendous invasion of property right; and unjust anteriority which hits innocent plaintiffs whose, purchases were beyond three years. Before us respondents' counsel have contended that Article 14 is violated by Section 3 read with Section 4 of the Amendment Act although the high Court has negatived this submission thus : We have carefully considered the arguments advanced by the learned counsel and we are of the Opinion that the retrospective operation of Sub-section (3A) on pending suits and appeals does not offend Article 14 of the Constitution. 16. Since the argument, dressed, differently, has been urged before us again we will briefly deal with it, agreeing as we do with the High Court. Plaintiffs whose transfers are twenty years ago or two years before the Act, are lugged 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 elapsed after the transfers and before the Act was passed was unequal treatment or rather harshly equal subjection to restriction of plainly unequally situated transferees. There is seeming attractiveness in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lineated these limitations in United States v. Butter (297 U.S. 1 : 56 Sup. Ct. 312 80 : 80 L 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 consciousness. One is that courts ire concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive 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 unwisdom of a legislation is the narrow area of judicial review. 19. The High Court has assumed that even proceedings started prior to 1956 may be affected. This, admittedly, is wrong as pre-basic Act suits will be governed by the then law as provided in section 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 longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been a clear transgression of the constitutional principles ; and that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discrimination's are based on adequate grounds; If nothing is placed on record by the challengers the verdict ordinarily goes against them. 22. 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 rushed with an amending bill. Had it made the law merely prospective, those who bad, in numbers, already gone to Court and induced legislative attention would have escaped the inhibition. This would defeat the object and so the application of the additional ban to Pending 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; Section 4 introduced amendments in Section 13 of the basic Act which we have set out earlier. 25. 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) of Sub-section (3A). Section 13 of the Amending Act makes 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 Pillai v. Sankaran). Section 13, fairly read, directs that the amendment made by Section 4 shall have effect in respect of suits, including appeals, pending at the commencement of the Act. We are, therefore, bound to give effect to Section 4 in pending actions, regardless of isolated anomalies and individual hardships. As earlier noticed, Section 4 has two limbs. It amends Section 13 of the basic Act by substituting two new clauses (f) and (ff) in place of the old clause (f) of Sub-section (1) of Section 13 Secondly, it forbids, for a period of three years from the date of acquisition, suits by new acquirers of landlord's interest in premises, for recovery of possession in any of the grounds mentioned in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit can be said to begin on the date it was filed in 1961 or 1964 as the case may be. Here we have to notice a certain nice but real facet of Sub-section (3A). 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 in clause (f) or clause (ff) of sub-section (1)'. Obviously the suits with which we are concerned are not for recovery on grounds contained in Clause. (f) and (ff). They were based on the repealed clause (f) of Section 13 of the basic Act. Strictly speaking, Sub-section (3A) brought in by Section 4 of the Amending Act applies only if (a) the suit is by a transferee landlord; b) it is for recovery of possession of premises and (c) the ground for recovery is what is mentioned in clause (f) and clause (ff) of Sub-section (1). Undoubtedly the third condition is not fulfilled and, therefore Sub-section (3A) is not attracted. This does not mean that the suit can be proceeded with and decree for recovery passed, because Section 13 of the basic Act contains a broad ban, on eviction in the following words : 13(1) Notwithstanding anything to the contrary in any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that a return of the plaint and a representation thereof incorporating amendments is the sacred requirement of the law. On the other hand, social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three-year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus 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 given fin opportunity to file his written statement and the Court will dispose of it after giving both sides the right to lead 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-section (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. 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of those provisions. We, therefore, do not go into the impact of that Act on situations where eviction has been ordered by Courts. 34. We, therefore, allow the appeals with costs but direct the High Court to dispose of the cases in the light of the directions and observations we have made. It will be open to the Court seized of the matter to direct, in its discretion, award of costs to be incurred hereafter. Goswami, J. - (dissenting) Civil Appeal No. 1304 of 1973 is by certificate granted by the Calcutta Hi Court and Civil Appeal No. 2063 of 1973 is by Special Leave of this Court. 36. The first one arises out of Letters Patent Appeal No. 14 of 1969 of the Calcutta High Court dismissed on February 3, 1972, relying upon its earlier decision in Kalyani Dutt v. Pramila Bala Dassi (supra). A preliminary question had arisen in connection with the aforesaid Letters Patent Appeal along with three other appeals at an earlier stage with regard to the constitutionality of Section 13(3A) of the West Bengal Premises Tenancy (Second Amendment) Act, 1969 (briefly the Amendment Act). A Division Bench repelled the contention of the appellants in the decision of Sailendra Nath Gho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73 is now before us. 39. The facts in Civil Appeal No. 2063 of 1973 are these. The property 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 Munsif thereafter, decreed the plaintiff's suit on December 23, 1968. On appeal by the defendant the Additional District Judge allowed the same and dismissed 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 April 29, 1972. The High Court on appeal by the defendant dismissed the second Appeal on July 25, 1973, relying upon Sailendra Nath Ghosal's case (supra) disposed of on January 28, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation . In addition, Section 4 of the Amendment Act introduced a new subsection (3A) which reads as follows :- Where a landlord has acquired his interest in the premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in clause (f) or clause (ff) of Sub-section (1) shall be instituted by the landlord before the expiration of a period of three years from the date of his acquisition of such interest; Provided that a suit for the recovery of the possession of the premises may be instituted on the ground mentioned in clause (f) of Sub-section (1) before the expiration of the said period of three years if the Controller on the application of landlord and after giving the tenant an opportunity of being heard, permits, by order, the institution of the suit on the ground that the building or re-building or the additions, or alterations, as the case may be, are necessary to make the premises safe for human habitation . 42. It should be noted that the grounds for ejectment in the earlier Sub-section (f) ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted within three years of his acquisition of the premises; (2) if eviction is sought on the ground under Section 13(1)(f) of the Amendment Act, an additional restriction is put, namely, that such building or rebuilding 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 accommodation . 45. Under proviso to Section 13(3A) a transferee-landlord can, however, institute a suit within three years' ban provided he obtains prior permission from me Controller who on an application by the landlord and after hearing the parties may decide whether permission should be given or not. 46. Prima 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-section, in terms, prohibits only institution of suits and does not provide for dismissal of suits already instituted. Similarly while there is a relaxation in favour of a transferee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Amendment Act. The Statement of Objects and Reasons as quoted in Kalyani Dutt's case (supra) is as follows : It has been considered necessary that some more relief should be given to the tenants against eviction, that the necessity 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 provisions of the West Bengal Premises Tenancy Act, 1956, should be made more stringent. In the earlier judgment of the High Court which is also the subject matter of Civil Appeal No. 1304 of 1973 the High Court referred to the statement of the Minister at the time of piloting of the Bill in the following words :- 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 solely depend upon the rents received from the tenants. It has been ascertained f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot possible to bold that the interest of the general body of tenants would be served by application of Sub-section (3A) to pending suits and appeals. 54. If the mischief was of recent origin, there is no reason to overshoot 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 surviving in courts, per chance, because of laws' proverbial delay, Section 13 of the Amendment Act has gone far in excess of the actual needs of the time and problems and the provisions thereof cannot be said to impose a reasonable restriction on the right of the transferee-landlords, albeit a well-defined class, amongst the landlords, to hold and enjoy their property in the interest of the general public. Such transferee-landlords with pending old sections in suits or in appeals are, as observed by the High Court, not likely to be of a large number and necessarily so the tenants of such a sub-class. It is not in the general interest of the large body of tenants to impose such restrictions on a few transfree-landlords of this sub-class subject to unbearable delay in litigation, understandably not on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 matter would have been different it, in view of any prevailing conditions, a reasonable date for giving retrospective effect were fixed under the law in the light of the known mischief. 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 litigation. The gain of the few as opposed to the general public cannot be the touchstone for justifying reasonableness of the restriction imposed on the rights of the transferee-landlords in applying Sub-section (3A) to pending suits and appeals. 58. 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 reckoned and hard cases of a few individuals cannot be assigned a higher place and status than they deserve to the detriment of the fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, without any force. 62. The position, therefore, is that in a pending suit or even in a pending appeal a landlord may be given an opportunity to adduce evidence to establish such of the new requirements in Section 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. If, however, the matter arises in appeal, it will 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 issues 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. 63. 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 dismissing the appeals are, however, set aside and the appeals are remanded to the High Court for disposal in the light, of the observations with reference to Section 13(1)(f) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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