State of Himachal Pradesh and Another v Ravinder Singh
Supreme Court of India

28 March 2008
C.A. No 2224 of 2008 (Arising Out of S.L.P. (C) No. 3347/2006)
The Judgment was delivered by : Arijit Pasayat, J.
Leave granted.
1.  Challenge in this appeal is to the judgment of a learned Single Judge of the Himachal Pradesh High Court by which two Writ Petitions filed by the respondent were disposed of. The controversy lies within a very narrow compass.
2.  The present dispute relates to Civil Writ Petition No.354 of 2000. Before dealing with the rival contentions the factual background needs to be noted.
3.  Respondent was appointed on 3.9.1980 as a daily-rated worker in the Horticulture Department of the State. In the Writ Petition the prayer was for regularization as a clerk on completion of ten years of service on daily wages basis. It is to be noted that the union of the employees had moved the Labour Court for regularization of all daily wagers. The same was adjudicated by the Industrial Disputes Tribunal. A reference was made to the Labour Court and the State filed its response questioning maintainability of the reference. Initially the Labour Court had decided in favour of the workers but on a Writ Petition being filed, the High Court held in favour of the State holding that the claim for regularization was not maintainable. It was noted that no appointment order was issued and the case of the respondent was not sponsored by the employment exchange. It was also noted that the claim for equal work for equal pay was not maintainable as daily-rated persons were not required to perform duties at par with those in regular service and they did not also fulfil the procedure at the time of recruitment. Two Writ Petitions were filed; in one the challenge was to the order of the Industrial Disputes Tribunal while the Writ Petition to which this Appeal relates to the Award by the Labour Court. It is to be noted that the Labour Court had observed that the employer had regularized the respondent as a Chowkidar with effect from 5.7.1997 which was refused by him. Thereafter the engagement as daily wager was terminated. This order was challenged before the Industrial Disputes Tribunal, u/s. 33 which was dismissed. However, as noted above the High Court has remanded the matter to the Tribunal.
4.  The High Court in the impugned order held that the approach of the Labour Court was wrong as it has introduced concepts which are unnecessary. It was noted by the High Court that there was no dispute that the respondent was employed as a clerk.
5.  Learned counsel for the respondents submitted that the question whether the appointment was as a clerk has been concluded by an earlier order of the High Court which has become final and, therefore, the present appeal is misconceived.
6.  The High Court had rightly observed that the Labour Court embarked upon an uncalled enquiry upon the status of daily-wage workers vis. a.vis regular workers, therefore, the direction was given that the respondent was entitled to be regularized as clerk under the scheme of the Government with effect from 11th July, 1995.
7.  It is to be noted that the High Court proceeded on erroneous premises. It has observed that there was no dispute that respondent was employed as daily wage worker as clerk with effect from 3rd September, 1980. The High Court itself has observed that the stand of the State was specific that the respondent was engaged as daily-paid labourer for carrying out horticulture operations such as spraying of plants, cleaning the floothers etc. and therefore, the question of discharging the duties of clerk/supervision does not arise. It was also to be noted that the Labour Court had rightly dismissed the claim of the respondent by holding that he and others, being daily wagers, cannot be treated at par with the regular employees. It also noted that the conditions for regularizations under the policy of the Government have not been noticed. The parameters of regularization have been examined by this Court in Secretary, State of Karnataka and Others. v. Uma Devi and Others. (2006(4) SCC 1 2006 Indlaw SC 125 ) as follows:
"With respect, it appears to us that the question whether the jettisoning of the Constitutional scheme of appointment can be approved, was not considered or decided. The distinction emphasized in R.N. Nanjundappa v. T. Thimmiah (1972 (1) SCC 409 1971 Indlaw SC 281) was also not kept in mind. The Court appears to have been dealing with a scheme for "equal pay for equal work" and in the process, without an actual discussion of the question, had approved a scheme put forward by the State, prepared obviously at the direction of the Court, to order permanent absorption of such daily-rated workers. With respect to the learned judges, the decision cannot be said to lay down any law, that all those engaged on daily wages, casually, temporarily, or when no sanctioned post or vacancy existed and without following the rules of selection, should be absorbed or made permanent though not at a stretch, but gradually. If that were the ratio, with respect, we have to disagree with it.
We shall now refer to the other decisions. In State of Punjab v. Surinder Kumar (AIR 1992 SC 1593 1991 Indlaw SC 952) a three-Judge Bench of this Court held that the High Courts had no power, like the power available to the Supreme Court u/art. 142 of the Constitution, and merely because the Supreme Court granted certain reliefs in exercise of its power u/art. 142 of the Constitution, similar orders could not be issued by the High Courts. The Bench pointed out that a decision is available as a precedent only if it decides a question of law. The temporary employees would not be entitled to rely in a writ petition they filed before the High Court upon an order of the Supreme Court which directs a temporary employee to be regularised in his service without assigning reasons and ask the High Court to pass an order of a similar nature. This Court noticed that the jurisdiction of the High Court while dealing with a writ petition was circumscribed by the limitations discussed and declared by judicial decis ions and the High Court cannot transgress the limits on the basis of the whims or subjective sense of justice varying from judge to judge. Though the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications coming before it, the discretion had to be confined in declining to entertain petitions and refusing to grant reliefs asked for by the petitioners on adequate considerations and it did not permit the High Court to grant relief on such a consideration alone. This Court set aside the directions given by the High Court for regularization of persons appointed temporarily to the post of lecturers. The Court also emphasized that specific terms on which appointments were made should be normally enforced. Of course, this decision is more on the absence of power in the High Court to pass orders against the Constitutional scheme of appointment.
This Court also quoted with approval  the observations of this Court in Teri Oat Estates (P) Limited v. U.T., Chandigarh (2004(2) SCC 130 2003 Indlaw SC 1504) to the effect:
"We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary Constitutional jurisdiction contained in Art. 142 of the Constitution, this Court ordinarily would not pass an order which would be in contravention of a statutory provision."
8.  This decision kept in mind the distinction between "regularization" and "permanency" and laid down that regularization is not and cannot be the mode of recruitment by any State. It also held that regularization cannot give permanence to an employee whose services are ad hoc in nature.
9.  There have been decisions which have taken the cue from Dharwad case1 and given directions for regularization, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in Workmen v. Bhurkunda Colliery of Central Coalfields Limited (1983 (4) SCC 582) though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent.
10.  While answering an objection to the locus standi of the writ petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Bhagwati, C.J., speaking on behalf of the Constitution Bench in D.C. Wadhwa (Dr.) v. State of Bihar (1987 (1) SCC 378 1986 Indlaw SC 247) stated:
"The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the Constitutional limitations and if any practice is adopted by the executive which is in flagrant and systematic violation of its Constitutional limitations, Petitioner 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the Constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice."
11.  Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Art. 14 or in ordering the overlooking of the need to comply with the requirements of Art. 14 read with Art. 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting u/art. 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the Constitutional and statutory mandates."
12.  In addition it has to be noted that the Labour Court had observed that the name of the respondent claimant was not sponsored by the employment exchange; there was no appointment order; the requirements relating to procedure to be followed at the time of recruitment were also not fulfilled. There was a mere back- door entry. It was further noted that they were not selected in the manner as applicable to regular employees who are liable to be transferred and are subject to disciplinary proceedings to which daily-rated workers are not subjected to.
13.  In the background of what has been stated above the directions given for regularization in the post of clerk being indefensible are set aside. However, undisputedly the appellants had regularized the services of the respondent as a Chowkidar in July, 1997 which the respondent had refused. If the respondent is so advised, he may accept the order in that regard by submitting the requisite documents within six weeks from today. If not so done, the respondent shall not be entitled to any relief in terms of the High Court's impugned order which as noted above we have set aside.
14.  The appeal is allowed to the aforesaid extent, but without any order as to costs.
Appeal allowed.


Bani Singh & Ors. v State Of U.P.
Supreme Court of India

9 July 1996
Cr.A. No. 82 of 1995 (From the Judgment and Order Dt. 28 November 1990 of the Allahabad High Court in Cr. A. No. 1894 of 1979)
The Judgment was delivered by : A. M. Ahmadi, J.
1. The short question that we are called upon to decide in this appeal is whether the High Court at Allahabad was Justified in dismissing the appeal filed by the accused- appellants against the order of conviction and sentence issued by the trial court, for non-prosecution.
2. The facts relevant for our consideration can be briefly stated. On 13.6.1979, the VII Addl. Sessions Judge, Bulandshahar, recorded an order convicting the appellants under Sections 366 and 368 of the Indian Penal Code and sentenced them to rigorous imprisonment for three years with a fine of Rs.100/- each. The appellants filed an appeal against this order in the High Court of Allahabad. On 18.6.1979, the appeal was admitted by the High Court and notice was issued. The High Court also issued an interim stay on the execution of the sentence and the realization of fine while granting bail to the appellants. On 28.11.1990, the matter came up for hearing before the High Court. While dismissing the appeal for non-prosecution, the Court recorded the following order :
"The List has been revised. No one present to argue the case on behalf of the appellant, Sri T.B. Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav & Ors. Vs. State of Bihar, reported in 1986 Indlaw SC 790, the appeal is dismissed for non- prosecution without going into the merits of the case"
3. The appellants preferred an appeal before this Court. On 19.1.1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav & Ors. Vs. State of Bihar 1986 Indlaw SC 790 and came to the conclusion that it was in conflict with the earlier ruling of this Court in Shyam Deo Pandey & Ors. Vs. State of Bihar 1971 Indlaw SC 811. It, therefore, directed that the matter be heard by a larger bench. Subsequently, the matter was posted before this Bench.
4. At this juncture, it would be pertinent to make a brief reference to the relevant provisions of law having a bearing on this case. Chapter XXIX of the Code of Criminal Procedure, 1973 (hereinafter called 'Code') comprising Sections 372-394 deals with 'Appeals'. For the purpose of our examination, the relevant provisions are Sections 384- 386. Section 384, which deals with summary dismissal of appeals, enables the Appellate Court to summarily dismiss an appeal "if upon examining the petition of appeal and copy of the judgment received", it "considers that there is no sufficient ground for interfering". Section 385 provides that "if the Appellate Court does not dismiss the appeal summarily", it "shall cause notice of the time and place at which such appeal will be heard to be given" to the parties involved. It further provides that thereafter, the Appellate Court shall "send for the record of the case if such record is not already in Court" and "hear the parties". The relevant part of Section 386 provides that "after perusing such record and hearing the appellants or his pleader, if he appears, and the Public Prosecutor, if he appears", the Appellate Court "may, if it considers that there is no sufficient ground for interference, dismiss the appeal".
5. From the facts of the present case, it is clear that when the matter came up before the High Court, it admitted the appeal and, following the procedure laid down in Section 385 of the Code, issued notice to the State. In the circumstances, it is clear that Section 384 of the Code, which enables the High Court to summarily dismiss an appeal, is not applicable to the present case. Since the High Court proceeded to dismiss the appeal when it was next listed for hearing, it is clear that the provision applicable to these facts is Section 386 of the Code, though the order of the High Court does not mention the provision. From the order of the High Court, it is clear that upon finding the appellants and their pleader absent, it dismissed the appeal for non- prosecution without going into the merits of the case.
6. The law relating to the central issue in this case has been authoritatively laid down by a Division Bench of this Court in Shyam Deo's case. Though the case was decided in the context of Section 423 of the Code of Criminal Procedure, 1898, (hereinafter called the Old Code) since that provision materially corresponds to the present Section 386, the interpretation laid down in that case continues to be sound. The facts of that case were similar, in that, while hearing an appeal against a conviction, the concerned High Court, finding the appellants' pleader absent, perused the judgment under appeal, and, finding no merit in the case, dismissed the appeal. This Court took the view that once the appeal was admitted, it was the duty of the Court to peruse the record of the case before dismissing it. The Court considered this to be a mandatory requirement and, since, in its view, the record of a case is not confined only to the judgment under appeal, it held that the order of the High Court was not in conformity with the requirement of the provision and ordered it to be set aside.
7. In Ram Naresh Yadav's case, a Division Bench of this Court was faced with a case where the High Court had confirmed an order for conviction and sentence without hearing the appellants. Against these facts, the Court took the view that, in criminal matters, convicts must be heard before their matters are decided on merits. It, therefore, set aside the order of the High Court and remanded the matter to it for "passing an appropriate order in accordance law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf".
8. The Division Bench of this Court which referred this matter to us was of the view that these decisions, rendered by separate two-judge benches of this Court, are in conflict with each other. Before we decide on this issue, we must closely examine the scheme envisaged by the Code in this regard. The relevant portions of Sections 385 and 386 of the Code are extracted as under:
"385. Procedure for hearing appeals not dismissed summarily -- (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given -
(i) to the appellant or his pleader;
(ii) .... .... ....
(iii) .... .... ....
(iv) .... .... ....
(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties:
Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record.
(3) .... .... ....
386. Powers of the Appellate Court -- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may --
xxxx xxxx xxxx "
9. Section 385(2) clearly states that if the Appellate Court does not dismiss the appeal summarily, it 'shall', after issuing notice as required by subsection (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the Court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the Appellate Court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the Appellate Court to peruse the record before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that 'after perusing such record' the court may dispose of the appeal. However, this Section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard.
10. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?
11. In Shyam Deo's case, this Court ruled that the Appellate Court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the Old Code (the corresponding provisions are Sections 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under:
"The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the Appeal; but that disposal must he after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether tne appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits."
(Emphasis added)
12. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed.
13. In Ram Naresh Yadav's case, this Court, without making a specific reference to Section 386 or any other provision of the Code and without noticing the ratio of Shyam Deo's case concluded thus:
"It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if conunsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants."
14. What then is the area of conflict between the two decisions of this Court? In Shyam Deo's case, this Court ruled that once the Appellate Court has admitted the appeal to be heard on merits, it cannot dismiss the appeal for non- prosecution for non-appearance of the appellant or his counsel, but must dispose of the appeal on merits after examining the record of the case. It next held that if the appellant or his counsel is absent, the Appellate Court is not bound to adjourn the appeal but it can dispose it of on merits after perusing the record. In Ram Naresh Yadav's case, the Court did not analyze the relevant provisions of the Code nor did it notice the view taken in Shyam Deo's case but held that if the appellant's counsel is absent, the proper course would be to dismiss the appeal for nonprosecution but not on merits; it can be disposed of on merits only after hearing the appellant or his counsel or after appointing another counsel at State cost to argue the case on behalf of the accused.
15. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo's case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the Appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav's case that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.
16. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.
17. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation is there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.
18. In view of the position in law explained above, we are of the view that the High Court erred in dismissing the appeal for non-prosecution simplicitor without examining the merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal on merits in the light of this judgment. The appeal will stand allowed accordingly.
Appeal allowed


Rama and Others v State of Rajasthan
Supreme Court of India

5 April 2002
Appeal (crl.) 447 of 2002
The Judgment was delivered by : B. N. Agrawal, J.
Leave granted.
1. Judgment impugned in this appeal has been rendered by Jodhpur Bench of the Rajasthan High Court whereby criminal appeal preferred by the appellants has been dismissed confirming the convictions and sentences awarded against the appellants by the trial court under Sections 326 and 325 read with section 34 of the Indian Penal Code.
2. The said criminal appeal was filed in the year 1987 and duly admitted. The same was placed for hearing in the year 2001 and after hearing the parties, the High Court passed an order in four pages.
3. The impugned judgment, runs into seven paragraphs and after referring to the prosecution case and defence version , the Court has disposed of the appeal in two paragraphs which run thus:-
"After re-appreciation of the evidence and re-scrutiny of the record, I find that there is no error apparent in the finding recorded by the learned Judge, therefore, there is no reason to interfere in the order of conviction passed by the learned Judge.
In the result, therefore, the present appeal is dismissed."
4. The impugned judgment has been challenged on the sole ground that the High Court has not disposed of the appeal in the manner postulated under law inasmuch as it does not appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point.
5. The High Court has not even referred to any evidence much less considered the same.
6. In our view, it is a novel method of disposal of criminal appeal against conviction by simply saying that after re-appreciation of the evidence and re-scrutiny of the records, the Court did not find any error apparent in the finding of the trial court even without reappraising the evidence.
7. In our view, the procedure adopted by the High Court is unknown to law.
8. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing.
9. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court.
10. Accordingly, the appeal is allowed, impugned order passed by the High Court is set aside and the matter is remitted to that Court for disposal of the appeal in accordance with law after giving opportunity of hearing to the parties.
Appeal allowed


Shantistar Builders v Narayan Khimalal Gotame & Ors.
Supreme Court of India

31 January 1990
C.A. No.2599 of 1989
The Order of the Court was as follows :
1. This Court by its judgment in M/s. Shantistar Builders v. Narayan Khimalal Gotame & Ors., [(1990) 1 SCC 520 1990 Indlaw SC 683] while disposing of the matter directed in paragraphs 21 and 22 the State Government to constitute a committee for monitoring allotment of the houses to the weaker sections, as per the scheme sanctioned while exempting the urban land under s. 21 of the Urban Land (Ceiling & Regulation) Act, 1976 (for short "the Act"). One of the members of the committee suggested was Additional District Judge. The Bombay High Court was requested to ensure that an Additional District Judge be made available for enforcing the schemes in every agglomeration, so that the Committee constituted by the State Government would effectively implement the schemes. This Court also impressed upon every Committee to ensure fulfillment of the laudable purpose of providing a home to the poor homeless to effectuate its commitment to the constitutional goal and that every effort should be made by it to ensure that the builder does not succeed in frustrating the purpose.
The State Government should suitably modify its scheme in the light of the judgment rendered in Shantistar Builders' case and recirculate the same to all concerned within four weeks from the date of the judgment.
2. The State had filed an affidavit on March 30, 1990, seeking certain modifications or clarifications of the order.
One of the modifications sought was that under the Act, the Deputy Commissioner is competent authority and an appeal was provided under the Act, except for Bombay and Pune, the Additional Commissioner. For Pune and Bombay, Commissioner would deal with the same. If the Additional District Judge was to supervise the functioning of the allotment as per the scheme sanctioned under s. 21 of the Act, it would be inconvenient to the appellant authority to consider the scheme under the Act.
3. The entire thinking of the Government is wholly misconceived. The Committee had nothing to do with the provisions of the Urban Ceiling Act. After the exemption under s.20 or 21 is granted, the building is required to implement the scheme in terms of the sanction made by the Government for construction of buildings by the builders and allotment to weaker section people. This Court intended to ensure that the builders would abide by the guidelines laid down by this Court in the light of the judgment. The Committee would supervise the allotment of the houses to the homeless weaker section people in the light of the guidelines laid down therein.
The State Government was also directed to recirculate the revised schemes in the light of the above judgment. In the circumstances, the question of the Commissioner sitting in an appeal over the working of the Committee does not arise.
4. It is submitted that the taking away of the discretionary power of the Government in allotment of the houses is not justified.
We do not propose to modify our earlier direction.The Government is directed to comply with the constitution of the Committee within 30 days from the date of the receipt of this order, since the same has already been delayed for more than five years from the date of the judgment constituting the committee.
5. Rest of the matters are adjourned to next week.
Order accordingly


Prabhakaran Nair, Etc. v State Of Tamil Nadu And Ors.
Supreme Court of India

3 September 1987
Writ Petition No. 506 of 1986
The Judgment was delivered by: Sabyasachi Mukharji, J.
1.  There is 'much ado about nothing' about these cases. These petitions seek to challenge the vires of s. 14(1)(b) and s. 16(2) as well as incidentally s. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called 'the Tamil Nadu Rent Act') on the ground of being arbitrary, discriminatory and unreasonable. Different petitions deal with different facts. It is not necessary to set these out exhaustively but it would be appropriate to deal with the facts of Writ Petition No. 506 of 1986 as a typical one in order to appreciate the points in issue. In Writ Petition No. 506 of 1986, the respondent-landlord on or about 21st of March, 1978 after purchasing the premises No.95, Thyagaraja Road, T. Nagar, Madras from the erstwhile owner, filed an eviction petition in the court of Small Causes, Madras for eviction of the petitioner herein from the premises where the petitioner had been carrying on a hotel business serving meals etc. for four decades. The grounds in the eviction petition were non-payment of rent under sec- tion 10(2)(1) of the Tamil Nadu Rent Act, unlawful sub- letting u/s. 10(2)(ii)(a), causing damages to the premises u/s. 10(2)(iii) and also for the purposes of demolition and reconstruction under s. 14(1)(b).
2.  The learned Judge of the trial court ordered eviction under s. 14(1)(b) of the Tamil Nadu Rent Act only for demolition and reconstruction and dismissed the other grounds, and that is the only ground with which we are concerned in this appeal. On 25th of February, 1981 the Appellate Court dismissed the petitioner's appeal by saying that the landlords were rich people and capable of demolition and reconstruction in order to put the premises to a more profitable use by putting up their own showroom. On September 30, 1982 the High Court dismissed the civil revision petition of the petitioner and granted time till 31st of January, 1983 for the petitioner to vacate the premises in question. The petitioner thereafter filed a special leave petition against the judgment and order of the High Court in this Court.
3. This Court initially ordered show cause notice and also granted ad interim ex-parte stay of dispossession. On 29th January, 1983 the City Civil Court, Madras granted interim injunction restraining the respondents from demolishing the building till the disposal of the application in the suit filed by the petitioner against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner. According to the petitioner the injunction was confirmed and was still continuing and the said suit for specific performance was also pending in the City Civil Court, Madras.
4.  On 17th of February, 1986 this Court dismissed the special leave petition after notice but directed that the decree for eviction would not be executed till 17.11.86. It was observed by this Court that the petitioner would be at liberty to file a writ petition u/art. 32 of the Constitution, if so advised, challenging the validity of s. 14(1)(b) of the Tamil Nadu Rent Act as mentioned on behalf of the petitioner. The petitioner filed this writ petition challenging the validity of s. 14(1)(b) and s. 16(2) of the Tamil Nadu Rent Act on the ground that these were arbitrary, discriminatory, unreasonable and unconstitutional. The petitioner contends in this writ petition that consequently the eviction order passed under s. 14(1)(b) and confirmed in appeal is also illegal. The aforesaid several of the writ petitions are on this issue.
5.  The main ground of attack on this aspect seems to be that while other Rent Acts in case of eviction for demolition permit and direct that after reconstruction the tenant should be inducted as tenant or given the opportunity to have the same space in the reconstructed building, in the instant Act no such option is given and no such obligation imposed upon the landlord and as such the impugned provision is illegal as being discriminatory against the tenant. In order to examine the various aspects on this contention, it will be necessary to examine in detail the relevant provisions of the Act. It should be borne in mind, however, that this was an Act passed to amend and consolidate the law relating to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants in the State of Tamil Nadu. S. 14 of the Tamil Nadu Rent Act states as follows:-
" 14. Recovery of possession by landlord for repairs or for reconstruction.
(1) Notwithstanding anything contained in this Act, but subject to the provisions of ss. 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied-
(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or
(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
(2) No order directing the tenant to deliver possession of the building under this section shall be passed-
(a) on the ground specified in cl. (a) of subsection (1), unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-s. (1) for his re-occupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow; or
(b) on the ground specified in cl. (b) of subsection (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow.
(3) Nothing contained in this section shall entitle the landlord who has recovered possession of the building for repairs to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order under subs. (1).
(4) Notwithstanding an order passed by the Controller under cl. (a) of sub-s. (1) directing the tenant to deliver possession of the building, such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession of the building by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking under cl. (a) of subs. (2).
(5) Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section". S. 15 empowers the tenant to re-occupy after repairs. There is no such provision in case of eviction on the ground of bona fide need for demolition and reconstruction. This is one of the grounds of challenge."
6.  S. 16 deals with the right of the tenant to occupy the building if it is not demolished. Sub-s. (2) which was amended and introduced by Act 23 of 1973 dealing with the reconstructed building reads as follows:
"16(2) Where in pursuance of an order passed by the Controller under cl. (b) of sub-s. (1) of section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned."
7.  In this connection s. 30 which exempts certain buildings may be referred to and sub-section (i) is important. It reads as follows:
"30. Exemption in the case of certain buildings- Nothing contained in this Act shall apply to-
(i) any building for a period of five years from the date on which the construction is completed and notified to local authority concerned; or
(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds (four hundred rupees)."
8.  In this appeal we are not concerned with cl. (ii) of s. 30 the challenge to whose validity has been accepted by this Court in Rattan Arya and others v. State of Tamil Nadu and another, [1986] 3 S.C.C. 3851986 Indlaw SC 417. S. 30(ii) of the Tamil Nadu Rent Act has been struck down as violative of Art. 14.
9.  Various submissions were urged in support of the several writ petitions. Sree Raju Ramachandran contended that in most of the Indian statutes dealing with eviction of tenants, there are provisions of re-induction of the tenant where the eviction is obtained on the ground of reconstruction after the premises in question is reconstructed. It was submitted that in those statutes, there is obligation on the landlord to reconstruct within a certain period and the corresponding right on the tenant evicted to be re-inducted at the market rate to be fixed by the Rent Controller or by such authority as the Court may direct.
10.  Our attention was drawn to several statutes, namely, Maharashtra, Karnataka, Kerala, West Bengal and numerous others where there are provisions for re-induction of other tenants in the premises after reconstruction. Most of the provisions of other statutes provide for such induction while the Tamil Nadu Rent Act does not. On this ground it was submitted, that firstly, that this is violative of Art. 14 of the Constitution. It was further submitted that s. 16(2) of the Tamil Nadu Rent Act says that where in pursuance of an order of eviction passed by the Rent Controller under s. 14(1)(b) any building is totally demolished and a new building is erected in its place, all the provisions of the Act shall cease to apply to such new building for a period of five years.
11. It was submitted that neither the old tenant nor any new tenant was thus entitled to protection of the Rent Control Act after reconstruction. The old tenant cannot also get into the new building as of right. This discrimination against the tenants in Tamil Nadu is invidious and violates Art. 14 of the Constitution. Secondly, it was submitted that if in case of repairs which also dislodges the tenants for limited period, the tenants have a right to get into the premises after repairs under the Tamil Nadu Rent Act, it is unreasonable that tenants should not have the same right in case of reconstruction. It was urged that once the building is ready for occupation it should make no difference whether the readiness is after repairs or after construction. It was urged that in both cases the tenants go out during the period of building work, and they should equally come back into the building after repairs or reconstruction. It was submitted on this ground also that not enjoining re- induction of the evicted tenant after reconstruction is discriminatory and unconstitutional.
12. The classification of buildings reconstructed differently from the buildings repaired is not valid, as it has no relation to the object or purpose of the Act. Furthermore, that all the tenants belong to one class and they could not be treated differently. On this aspect it was further submitted that the provisions of re-induction in most of the Rent Acts re- presented the standard of reasonableness in the landlord and the tenant law and the philosophy of Rent Control Legislation. It re-presented the national consensus of reasonable standard. Therefore, any provision which according to learned counsel appearing for the different parties in the writ petitions, was in variance with that standard was unreasonable and as such violative of Art. 14 of the Constitution. In aid of this submission various contentions were urged. We are, however, unable to accept this submission.
13.  Learned Attorney General appearing for the respondents submitted before us that the main provision of s. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he was satisfied that the building was bona fide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished might pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. In the case of an application under s. 14(1)(a) of the Tamil Nadu Rent Act namely bona fide requirement for carrying out repairs it cannot be carried out without the building being vacated and it has to be done within three months to enable the tenant to re-occupy the building. It has further to be borne in mind that in the case of demolition and re-construction, the landlord has to undertake that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and the entire demolition work shall be completed before the expiry of three months from the date he recovers possession of the entire building.
14. See in this connection the provisions of s. 16 of the said Act. The demolition has therefore to be completed within three months. In the case of massive buildings demolition can overtake six months or even a year and hence the provision that for reasons to be recorded in writing, the Controller may allow such further period. It has further to be borne in mind that after such demolition the re-construction of a new building on the same site is bound to take time and such time depends upon the nature of the building to be erected and it might take years it was argued. During that period a tenant was bound to have found some other suitable alternative accommodation; on the other hand in the case of a building for repairs, a tenant may arrange for temporary accommodation for a few months and return back to the building. Therefore provision for reinduction in the case of repairs and absence of such a provision in the case of demolition and reconstruction is quite understandable and rational.
15.  It has to be borne in mind that it is not practicable and would be anamolous to expect a landlord to take back a tenant after a long lapse of time during which time the tenant must necessarily have found some suitable accommodation elsewhere. This is the true purpose behind s. 14(1)(b) read with s. 14(2)(b). In the aforesaid view of the matter, we are unable to accept the submission that in providing for re-induction of the tenant in case of repairs and not providing for such re-induction in case of reconstruction, there is any unreasonable and irrational classification without any basis.
16.  The other submission as noted above was that in most of the Rent Acts, there was provision for re-induction of the tenants but there was no such provision in case of reconstruction in the Tamil Nadu Rent Act. In The State of Madhya Pradesh v. G.C. Mandawar, [1955] 1 S.C.R. 599 1954 Indlaw SC 40, a Constitution Bench of this Court observed that Art. 14 of the Constitution does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different, Art. 14 can have no application' it was observed.
17.  It is necessary now to deal with the submission that the section is unreasonable. For this, one has to bear in mind the public purpose behind the legislation. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was passed in 1960. A similar enactment which was in operation from 1949 to 1960 did not contain any provision like ss. 14 to 16 providing for eviction of the tenant on the ground of demolition and reconstruction.
18.  In 1949, however, the enactment contained a provision empowering the Government to exempt any building or class of buildings from all or any of the provisions of the Act. When the landlords desired to evict tenants on the ground of demolition and re-construction, they resorted to the remedy of moving the Government by an application for exemption u/s. 13 of the 1949 Act.
19. The Government by notification used to exempt any building or class of buildings from all or any of the provisions of the Act. In this connection reference may be made to the decision in S. Kannappa Pillai and another v. B. Venkatarathnam, (78 Law Weekly 363). The Government in that case when passing the order of exemption used to impose condition that the landlord should complete the re-construction within four months from the date on which the premises were vacated by the tenants and that he should take back the old tenants into the reconstructed building at the rate demanded by the landlord subject to the fixation of fair rent. However, in view of the tenants' conduct in resorting to writ proceedings challenging the order of exemption and in filing suits and having delayed the process of demolition and reconstruction, the Court in the exercise of discretion refused to extend the benefit of the condition as to re- induction in favour of the tenants. The further remedy was by writ proceedings before the High Court by the landlord or the tenant who felt aggrieved as the case may be.
20.  It was submitted on behalf of the respondents by the learned Attorney General that the Legislature in view of the experience gained from 1949 to 1960 enacted ss. 14 to 16 of the Act and which were introduced in the Act of 1960.
21.  It was urged that the 1960 Act had improved the position. It had provided as a ground of eviction of the tenant the requirement of the landlord for demolition and re-construction of the building leaving it to a judicial authority viz. Rent Controller to decide the matter with one statutory right of appeal and a further right of revision to the District Court or the High Court as the case may be. It was on this ground urged that leaving the matter to judicial adjudication as to the ground for eviction, it cannot be held to be arbitrary, unreasonable or unjust. This point has to be judged keeping in view the main purpose of the Act in question and the relevant submissions on this aspect.
22.  It may be borne in mind that historically the Constitutionality of s. 13 of the Act of 1949 was upheld on the touchstone of Art. 14 both by the Madras High Court and on appeal by this Court in P.J. Irani v. The State of Madras, [1962] 2 S.C.R. 169 1961 Indlaw SC 69. It was held that s. 13 of the Act did not violate Art. 14 and was not unconstitutional. Enough guidance, according to the judgment of the majority of learned judges, was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the government. It was observed that the power u/s. 13 of the Act was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenants. It was held by Sinha, C.J., Ayyangar and Mudholkar, JJ. that s. 13 was ultra vires and void. An order made u/s. 13 was subject to judicial review on the grounds that (a) it was discriminatory, (b) it was made on grounds which were not germane or relevant to the policy and purpose of the Act, and (c) it was made on grounds which were mala fide. While S.K. Das and A.K. Sarkar, JJ. emphasised that the order passed by the government u/s. 13 was a competent and legal order. All that the court had to see was whether the power had been used for any extraneous purpose, i.e. not for achieving the object for which the power was granted.
23.  The Act of 1960 contains a corresponding provision for exemption in s. 29 of the Act which corresponds to s. 13 of the Act of 1949 was also upheld by this Court in S. Kandaswamy Chettiar v. State of Tamil Nadu and another, [1985] 2 SCR 398 1984 Indlaw SC 354. Dealing with s. 29 of the Act this Court observed that the rationale behind the conferral of such power to grant exemptions or to make exceptions was that an inflexible application of the provisions of the Act might under some circumstances result in unnecessary hardship entirely disproportionate to the good which will result from a literal enforcement of the Act and also the practical impossibility of anticipating in advance such hardship to such exceptional cases. In the matter of beneficial legislations also there were bound to be cases in which an inflexible application of the provisions of the enactment might result in unnecessary and undue hardship not contemplated by the legislature. The power to grant exemption under s. 29 of the Act, therefore, has been conferred not for making any discrimination between tenants and tenants but to avoid undue hardship or abuse of the beneficial provisions that might result from uniform application of such provisions to cases which deserve different treatment.
24. The decision reiterated that the Tamil Nadu Rent Act was a piece of beneficial legislation intended to remedy the two evils of rackrenting (exaction of exorbitant rents) and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period creating acute shortage of accommodation in such areas and the enactment avowedly protects the rights of tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted therefrom. In that view of the matter it had made a rational classification of buildings belonging to government and buildings belonging to religious, charitable, educational and other public institutions and the different treatment accorded to such buildings u/s. 10(3)(b) of the Act.
25.  The scope of this Act was discussed by this Court in Raval and Co. v. K.C. Ramachandran & Ors., [1974] 2 S.C.R. 629 1973 Indlaw SC 283, where the majority of the court at pages 635 to 636 observed:-
"All these show that the Madras Legislature had applied its mind to the problem of housing and control of rents and provided a scheme of its own. It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenants. It wanted it to be fair both to the landlord as well as the tenant. Apparently it realised that the pegging of the rents at the 1940 rates had discouraged building construction activity which ultimately is likely to affect every body and therefore in order to encourage new constructions exempted them altogether from the provisions of the Act. It did not proceed on the basis that all tenants belonged to the weaker section of the community and needed protection and that all landlords belonged to the better off classes. It confined the protection of the Act to the weaker section paying rents below Rs.250. It is clear, therefore, that the Madras Legislature deliberately proceeded on the basis that fair rent was to be fixed which was to be fair both to the landlords as well as to the tenants and that only the poorer classes of tenants needed protection. The facile assumption on the basis of which an argument was advanced before this Court that all Rent Acts are intended for the protection of tenants and, therefore, this Act also should be held to be intended only for the protection of tenants breaks down when the provisions of the Act are examined in detail. The provision that both the tenant as well as the landlord can apply for fixation of a fair rent would become meaningless if fixation of fair rent can only be downwards from the contracted rent and the contract rent was not to be increased. Of course, it has happened over the last few years that rents have increased enormously and that is why it is argued on behalf of the tenants that the contract rents should not be changed. If we could contemplate a situation where rents and prices are coming down this argument will break down. It is a realisation of the fact that prices and rents have enormously increased and therefore if the rents are pegged at 1940 rates there would be no new construction and the community as a whole would suffer that led the Madras Legislature to exempt new buildings from the scope of the Act. It realised apparently how dangerous was the feeling that only "fools build houses for wise men to live in". At the time the 1960 Act was passed the Madras Legislature had before it the precedent of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956. That Act provides for fixation of fair rent. It also provides that the contract rent, if lower, will be payable during the contract period. Even if the contract rent is higher only the fair rent will be payable. After the contract period is over only the fair rent is payable. The Madras Legislature having this Act in mind still made only the fair rent payable and not the contract rent if it happens to be lower. It is clear, therefore, that the fair rent under the present Act is payable during the contract period as well as after the expiry of the contract period."
26.  The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power. The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant.
27.  In Murlidhar Agarwal and another v. State of U.P. and others, [1975] 1 S.C.R. 5751974 Indlaw SC 264 this Court had occasion to deal with this matter. In that case, powers of High Court to interfere with revisional orders passed by State Government under section 7F of U.P. Temporary Control of Rent and Eviction Act, 1947 were challenged. The Court was of the view that if a provision was enacted for the benefit of a person or class of persons, there was nothing which precluded him or them from contracting to waive the benefit, provided that no question of public policy was involved. In doing so, the question arose what was the 'public policy' involved in the said Rent Act. There can be no doubt about the policy of the law, namely, the protection of a weaker class in the community from harassment of frivolous suits. But the question is, is there a public policy behind it which precludes a tenant from waiving it? Mathew, J. reiterated that public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. The Rent Act, however, balances both the sides, the landlord and the tenant.
28.  The main provision of S. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he is satisfied that the building is bonafide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished may pass an order directing the tenant to deliver possession of the building to the landlord before a specified date.
29.  S. 16 provides for the tenant to occupy the building if it is not demolished in certain contingencies. The scheme of the section was very carefully analysed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, [1962] 2 S.C.R. 159 1961 Indlaw SC 472.
30.  In Metalware and Co. etc. v. Bansilal Sharma and Ors. etc., [1979] 3 S.C.R. 11071979 Indlaw SC 225 this Court emphasised that the phrase used in s. 14(1)(b) of the Act was "the building was bona fide required by the landlord" for the immediate purpose of demolition and reconstruction and the same clearly referred to the bona fide requirement of the landlord. This Court emphasised that the requirement in terms was not that the building should need immediate demolition and reconstruction. The state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would not be a totally irrelevant factor while determining "the bona fide requirement of the landlord." This Court emphasised that if the Rent Controller had to be satisfied about the bona fide requirement of the landlord which meant genuineness of his claim in that behalf the Rent Controller would have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under s. 14(1)(b).
31. The fact that a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself might not be sufficient to establish his bona fide requirement if the building happened to be a very recent construction in a perfectly sound condition and its situation might prevent its being put to a more profitable use after reconstruction. The Rent Controller has thus to take into account the totality of the circumstances and the factors referred to in the judgment by lesser or greater significance depending upon whether in the scheme of the concerned enactment there is or there is not a provision for re-induction of the evicted tenant into the new construction. Reference was made to the decision of this Court in Neta Ram v. Jiwan Lal, [1962] Suppl. 2 S.C.R. 623 1962 Indlaw SC 123. There must be bona fide need of the landlord on all the conditions required to be fulfilled. That being the scheme of the section, it cannot be said, in our opinion, that the section was arbitrary and excessive powers were given to the landlords. Absence of provision for re-induction does not ipso facto make the provisions of the Act unfair or make the Act self defeating.
32.  It has been borne in mind that the provisions of the Act imposed restrictions on the landlord's right under the common law or the Transfer of Property Act to evict the tenant after termination of his tenancy. The rationale of these restrictions on the landlord's rights is the acute shortage of accommodation and the consequent need to give protection to the tenants against unrestricted eviction. The nature, the form and the extent of the restrictions to be imposed on the landlord's right and the consequent extent of protection to be given to the tenants is a matter of legislative policy and judgment. It is inevitably bound to vary from one State to another depending on local and peculiar conditions prevailing in the State and the individual State's appreciation of the needs and problems of its people. When we are confronted with the problem of a legislation being violative of Article 14, we are not concerned with the wisdom or lack of legislative enactment but we are concerned with the illegality of the legislation. There may be more than one view about the appropriateness or effectiveness or extent of the restrictions. There may be also more than one view about the relaxation of the restrictions on the landlord's right of eviction. This fact is reflected in the different provisions made in different Acts about the grounds for eviction. For example, in case of Assam, Meghalaya, Andhra Pradesh, Delhi, Haryana, Orissa, Tripura, East Punjab, Madhya Pradesh, Tamil Nadu, Kerala, Mysore, Himachal Pradesh and Pondicherry, no particular duration for arrears of rent is prescribed, which would entitle a landlord to maintain an action for ejectment of his tenant.
However, in other cases a certain period is prescribed. For instance, two months in Bihar, West Bengal and Jammu and Kashmir, three months in Goa and Tripura, four months in Uttar Pradesh, six months in Bombay and Rajasthan. Again some Rent Acts require that before an action for ejectment on the ground of arrears is instituted, a notice demanding rent should be served on the tenant-for example- Bombay, Delhi, Kerala, Tripura, Jammu and Kashmir, Madhya Pradesh and U.P. Rent Acts. In such cases the tenant is given one chance to pay up the arrears. Again different Rent Acts provide different facts and circumstances on the basis of which premises could be recovered on the ground of bona fide personal requirement. Generally the bona fide requirement extends both to residential as well as commercial premises. However, the Delhi Rent Control Act restricts the right on account of the bona fide need of the landlord's right to premises let for residential use only.
Further, Bihar, Bombay, Goa, Jammu and Kashmir, Karnataka, Tamil Nadu, U.P. and West Bengal Rent Acts provide for partial eviction. But there is no such provision in the other Acts. It is obvious from the above that there can be no fixed and inflexible criteria or grounds governing imposition of restrictions on the landlord's right or for relaxation of those restrictions in certain cases. Ultimately it is a matter of legislative policy and judgment.
Courts are not concerned with the unwisdom of legislation.
"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.".
33. See in this connection the observations of Krishna Iyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc., [1974] 3 S.C.R. 121 1974 Indlaw SC 509. This Court approved the above passage from the American Jurisprudence and emphasised that in a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. It is important to bear in mind the Constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. Therefore, a large latitude is allowed to the States for classification upon any reasonable basis. See also in this connection the observations of this Court in Re The Special Courts Bill, 1978, [1979] 2 S.C.R. 476 1978 Indlaw SC 352 where Chandrachud, C.J.speaking for the Court at pages 534to537 of the report laid down the propositions guiding Art. 14 and emphasised that the classification need not be constituted by an exact or scientific exclusion nor insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification therefore, is justified if it is not palpably arbitrary. We also in view of the different provisions we have discussed bear in mind the fact that there is no such consensus among the different States about the right of re-induction of tenant in case of eviction required for demolition. It will depend on the particular State and, appreciation of the need and problem at a particular point of time by that State concerned. The purpose underlying s. 14(1)(b) read with s. 16(2) of the Tamil Nadu Rent Act is to remove or mitigate the disinclination on the part of landlords to expend moneys for demolition of dilapidated buildings and reconstruct new buildings in their places. It is a matter of which judicial notice can be taken that the return from old and dilapidated buildings is very meagre and in several cases such buildings prove uneconomic for the landlords with the result that the condition of the building deteriorates and there are even collapses of such buildings. It is for this purpose that the landlord is given by s. 14(1)(b) read with s. 16 an incentive in the form of exemption from the provisions of the Rent Act in respect of reconstructed building for the limited and short duration of five years. The policy under s. 14(1)(b) read with s. 16 is not in essence different from the policy adopted by different States of giving exemption for a limited duration to newly constructed buildings.
34. These provisions, namely, exemption of new buildings from the provisions of the Rent Act for a period of five years or ten years has been upheld as constitutional. See in this connection the observations of this Court in the case of Punjab Tin Supply Co., Chandigarh & Ors. v. The Central Govt. & Ors., [1984] 1 SCC 206 1983 Indlaw SC 259 and Mohinder Kumar v. State of Haryana and Anr, [1985] 4 S.C.C. 221 at pages 226-2271985 Indlaw SC 262. There the Court emphasised that it is entirely for the Legislature to decide whether any measures, and if so, what measures are to be adopted for remedying the situation and for ameliorating the hardship of tenants. The Legislature may very well come to a conclusion that it is the shortage of buildings which has resulted in scarcity of accommodation and has created a situation where the demand for accommodation is far in excess of the requisite supply, and, it is because of such acute scarcity of accommodation the landlords are in a position to exploit the situation to the serious detriment of the tenants.
The Court observed at pages 226to227 of the report as under:
"The Legislature in its wisdom may properly consider that in effecting an improvement of the situation and for mitigating the hardship of the tenanted class caused mainly due to shortage of buildings, it will be proper to encourage construction of new buildings, as construction of new buildings will provide more accommodation, easing the situation to a large extent, and will ultimately result in benefiting the tenants. As in view of the rigours of Rent Control Legislation, persons with means may not be inclined to invest in construction of new houses, the Legislature to attract investment in construction of new houses may consider it reasonable to provide for adequate incentives so that new constructions may come up. It is an elementary law of economics that anybody who wants to invest his money in any venture will expect a fair return on the investment made. As acute scarcity of accommodation is to an extent responsible for the landlord and tenant problem, a measure adopted by the Legislature for seeking to meet the situation by encouraging the construction of new buildings for the purpose of mitigating the hardship of tenants must be considered to be a step in the right direction. The provision for exemption from the operation of the Rent Control Legislation by way of incentive to persons with means to construct new houses has been made in S. 1(3) of the Act by the Legislature in the legitimate hope that construction of new buildings will ultimately result in mitigation of the hardship of the tenants. Such incentive has a clear nexus with the object to be achieved and cannot be considered to be unreasonable or arbitrary. Any such incentive offered for the purpose of construction of new buildings with the object of easing the situation of scarcity of accommodation for ameliorating the conditions of the tenants, cannot be said to be unreasonable, provided the nature and character of the incentive and the measure of exemption allowed are not otherwise unreasonable and arbitrary. The exemption to be allowed must be for a reasonable and a definite period. An exemption for an indefinite period or a period which in the facts and circumstances of any particular case may be considered to be unduly long, may be held to be arbitrary. The exemption must necessarily be effective from a particular date and must be with the object of promoting new constructions. With the commencement of the Act, the provisions of the Rent Act with all the restrictions and rigours become effective. Buildings which have been constructed before the commencement of the Act were already there and the question of any kind of impetus or incentive to such buildings does not arise. The Legislature, therefore, very appropriately allowed the benefit of the exemption to the buildings, the construction of which commenced or was completed on or after the commencement of the Act. This exemption in respect of buildings coming up or to come up on or after the date of commencement of the Act is likely to serve the purpose of encouraging new buildings to be constructed. There is therefore nothing arbitrary or unreasonable in fixing the date of commencement of the Act from which the exemption is to be operative."
35.  S. 14(1)(b) has sufficient inbuilt guidelines. The requirements to be satisfied before initiating action under this provision have been judicially laid down by the Madras High Court by Anantanarayanan, J. as he then was, in Mehsin Bhai v. Hale and company, G. T. Madras, [1964] 2 Madras Law Journal 147. Anantanarayanan, J. observed at page 147 as follows:
" What the section really required is that the landlord must satisfy the Court that the building was bona fide required by him, for the immediate purpose of demolition. I am totally unable to see how the present state of the building, and the extent to which it could stand without immediate demolition and reconstruction, in the future, are not relevant considerations in assessing the bona fides of the landlord. On the one hand, landlords may bona fide require such buildings, particularly old buildings, in their own interest, for demolition and reconstruction. On the other hand, it is equally possible that the mere fact that the building is old, is taken advantage of by the landlord to put forward such pretext his real object being ulterior, and not bona fide for the purpose of reconstruction. The Courts have to apply several criteria, and to judge upon the totality of the facts. But the Courts cannot exclude the possibility that the ancient or relatively old character of the building which may nevertheless be in quite a good and sound condition, is being taken advantage of by a landlord in order to make such an application with an ulterior purpose, which purpose might be, for instance, to obtain far more advantageous terms of rent in the future. What the section really contemplates is a bona fide requirement; that necessarily implied that it is in the interests of the landlord to demolish and reconstruct the building, and that the fact that the building is old is not merely a pretext for advancing the application, with the object of evicting the tenant, and of obtaining higher rentals."
36.  This Court also emphasised this aspect in the decision of Metalware & Co. etc. v. Bansilal Sharma and others etc., [1979] 3 S.C.R. 1107 at pages 1117-11181979 Indlaw SC 225.
37.  We are therefore unable to accept the submission that absence of the right of induction of tenants in reconstructed premises is either arbitrary or unreasonable. The submission that s. 16(2) which provides that when a building is totally demolished and on which a new building is erected shall be exempt from all the provisions of the Act for a period of five years is bad is also unsustainable. See in this connection the observations of this Court in M/s. Punjab Tin Supply Co., Chandigarh etc. etc. v. The Central Government and others, [1984] 1 S.C.R. 428 1983 Indlaw SC 259 and Motor General Traders and another etc. etc. v. State of Andhra Pradesh and others etc. etc., [1984] 1 S.C.R. 594 at page 605 1983 Indlaw SC 256. It was submitted that the fact that in these cases exemption was after the first construction of the building and not after demolition and re-construction but that would not make any difference to the principle applicable.
38. The principle underlying such exemption for a period of five years is not discriminatory against tenants, nor is it against the policy of the Act. It only serves as an incentive to the landlord for creation of additional housing accommodation to meet the growing needs of persons who have no accommodation to reside or to carry on business. It does not create a class of landlords who will forever be kept outside the scope of the Act as the provision balances the interests of the landlords on the one hand and the tenants on the other in a reasonable way. This Court in Atam Prakash v. State of Haryana and others, [1986] 2 S.C.C. 249 1986 Indlaw SC 276 also judged the rules of classification in dealing with the Punjab Pre-emption Act, 1913.
39.  This Court emphasised in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy, [1970] 3 S.C.R. 734 1970 Indlaw SC 346 that in considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It was also emphasised that it was not necessary that the landlord should go further and establish under this clause that the condition of the building is such that it requires immediate demolition.
40.  Our attention was drawn to certain observations of Chatterjee, J. of the Calcutta High Court in Jiwanlal & Co. and others v. Manot and Co., Ltd., (64 Calcutta Weekly Notes 932 at page 937) that where the landlord had established a case of building and rebuilding the tenants undoubtedly would suffer on ejectment. The learned Judge was of the view that though the landlords required the premises for the purpose of building and rebuilding, it was not desirable that the tenants should be ejected. The learned Judge emphasised that the purpose of the Act was to protect the tenants as long as possible and to eject them only when it was not otherwise possible. The landlords did not require it for their own use and occupation.
41. They wanted it for the advantage of increased accommodation. The learned Judge was of the view that if the tenants were ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as for themselves. We are, however, unable to accept this principle. It is true that the Act must be so construed that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act and one of the purposes of the Act is to solve the acute shortage of accommodation by making a rational basis for eviction and to encourage building and rebuilding which is at the root of all causes of shortage of accommodation.
42.  It was held by a learned single Judge of the Madras High Court (one of us-Natarajan J.) in M/s. Patel Roadways Private Limited, Madras v. State of Tamil Nadu and others, (A.I.R. 1985 Madras 119) 1984 Indlaw MAD 261 that the provisions of the Tamil Nadu Act were not violative of Art. 14 and Art. 19(1)(f) of the Act. But that was in a slightly different context.
43.  Post war migration of human beings en bloc place to place, the partition of the country and uprooting of the people from their hearth and home, explosion of population, are the various vital factors leading to the present acute shortage of housing. It has to be borne in mind that the urge for land and yearning for hearth and home are as perennial emotions as hunger and sex are, as Poet Rabindranath would say meaning thereby, it is not wealth-I seek, it is not fame that I want, I crave for a home expressing the eternal yearning of all living beings for habitat.
44.  It is common knowledge that there is acute shortage of housing, various factors have led to this problem. The laws relating to letting and of landlord and tenant in different States have from different States' angles tried to grapple the problem. Yet in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and the people suffer. More houses must, therefore, be built, more accommodation and more spaces made available for the people to live in. The laws of landlord and tenant must be made rational, humane, certain and capable of being quickly implemented. Those landlords who are having premises in their control should be induced and encouraged to part with available accommodation for limited periods on certain safeguards which will strictly ensure their recovery when wanted. Men with money should be given proper and meaningful incentives as in some European countries to build houses, tax holidays for new houses can be encouraged. The tenants should also be given protection and security and certain amount of reasonableness in the rent. Escalation of prices in the urban properties, land, materials and houses must be rationally checked. This country very vitally and very urgently requires a National Housing Policy if we want to prevent a major breakdown of law and order and gradual disillusionment of people. After all shelter is one of our fundamental rights. New rational housing policy must attract new buildings, encourage new buildings, make available new spaces, rationalise the rent structure and rationalise the rent provisions and bring certain amount of uniformity though leaving scope for sufficient flexibility among the States to adjust such legislation according to its needs. This Court and the High Court should also be relieved of the heavy burdens of this rent litigations. Tier of appeals should be curtailed. Laws must be simple, rational and clear.
45. Tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants. Litigations must come to end quickly. Such new Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker procedure should be examined. This has become an urgent imperative of today's revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude.
46.  For the reasons aforesaid the contentions urged in writ petitions fail and are accordingly dismissed. In the facts and circumstances of the case there will be no order as to costs. Interim orders if any are vacated.
Petition dismissed