Rughbir Singh vs Girdhari Lal Manhas

J.N. Bhat, J.—This is an application u/s 105 of the Constitution of Jammu and Kashmir by one Rughbir Singh who is a Defendant in a suit

for adjustment pending before the City Judge Jammu The ground taken by the Petitioner in this application is that he is being sought to be ejected

from a shop situate at Exchange Road Jammu. According to the Plaintiff-non-applicant the provisions of the Houses and Shops Rent Control Act

do not apply to this tenancy because the shop has been constructed in the year 1961, The contention of the Petitioner in this case is that the

provision in the Houses and Shops Rent Control Act which makes a discrimination as to the applicability of that Act in the case of constructions

completed before or after the 1st day of January 1951, violates Article 14 of the Constitution of India as applied to the State and hence it should

be struck down. According to the Petitioner he is entitled to the protection given to tenants' under the Houses and Shops Rent Control Act as if the

shop had been constructed before 1st January, 1954

On presentation of this petition, a notice was issued to the other side to show because why the case should not be transferred to this Court and

notice was also issued to the Advocate-General. We heard the learned Counsel for the parties but after hearing the arguments, we did not think if

necessary to hear the Advocate General.

The Jammu and Kashmir Houses and Shops Rent Control legislation has undergone various changes and amendments from time to time but on

the .relevant, date i.e., the date of the Institution of the suit, namely 6-2-1964. The Act that was in force was the J and K. Houses and Shops Rent

Control Act No. 14 of 52. Section 3(a)(ii) of that Act lays down that nothing in this Act shall apply to any house or shop which has been

constructed on or before the 1st January 1954 According to. The learned Counsel for the Petitioner this difference in constructions completed

before the 1st January 1964 and those constructed thereafter is discriminatory and violates the provisions of Article 14. Therefore, it should be

struck down and the Petitioner's case should be, held to be governed by the other provisions of this Act and the protections given to tenants of

property completed before this date should be made available to the present Petitioner

In our opinion this contention of the learned Counsel for' the Petitioner is not well founded. There is ample authority for this proposition but before

citing the law on the subject we would briefly like to give our reasons for holding it so. The Houses and Shops Rent Control legislation is a welfare

legislation and the object of this legislation was and is to give protection and some sort of stability of tenure to tenants, to prevent them from the

capricious attempts at adjustment by landlords, to prevent the landlords from increasing rents at their sweet will, and otherwise taking recourse to

illegal practices such as taking of Pagri etc. Some such legislation was brought into existence in the different Stales in India. A difficulty did crop up

which was felt to be a genuine one. The difficulty was that the cost of construction went on increasing from time to time and people who had

sufficient money to put up new constructions fought shy of investing their money in erecting buildings and shops because once such constructions

were put up and let out to tenants, the tenants would be immune from adjustment and would pay nominal rents for very valuable property. This

difficulty was experienced by different legislatures and various Governments. At the same lime demands for increased accommodation grew and is

growing from day to day. The legislature, therefore, taking everything into consideration and in order to encourage people with money to provide

more residential and other accommodation to tenants exempted certain constructions which were put up after a particular date from the rig ours of

the Rent Control Laws.

Such provisions are found in almost every Stale, and need not be reproduced here in any detail. As an illustration of a similar provision in other

States one or two instances may be cited. Section 1A of the U.P. Control of Rent and Eviction Act (Act III of 47) exempts buildings or part of

buildings which were under erection or were constructed on or after the 1st January, 1951. Similarly Section 32 of the Andhra Pradesh Buildings

(Lease, Rent and Aviation) Control Act, No. 15 of 1960 exempts any building constructed on or after the 26th August 1957 from the operation of

that Act. So on and so forth. Similarly in the Stale of, Jammu and Kashmir there was a growing demand for more accommodation by people who

did not own their houses and shops of the rent control orders and other legislation up to 1952 gave very great immunity' to tenants from ejectment.

The class of people who could construct houses and buildings and shops would not like to invest their money and purchase a headache by letting

out the property to tenants In order to meet both these demands proper in vestment of money by moneyed people to build houses and shops and

at the same time to provide residential and other accommodation to as many people as possible, the saving Clause 3(a)(ii) above referred to was

introduced in this Act.

The argument of the learned Counsel for the Petitioner that it discriminates between one class of tenants as against others is not well-founded.

There is a rational basis for this classification as indicated above, and the learned Counsel has not been able to persuade a to hold that Section 3(a)

(ii) of the Act is in any way discriminatory. It may further be added that the best judges for determining any reasonable classification are the

legislatures themselves. Courts of law should not ordinarily interfere in any classification that is deemed to be reasonable by competent legislatures.

Similarly the presumption is in flavor of the constitutionality of an enactment and the burden lies on the parley who challenges the constitutionality of

any provision of law to show that it is really against the Constitution. These are very well settled principles of law and no authorities need be cited

for these propositions.

In a latest authority AIR 1966 A P 61, a Division Bench of that Court held:

Though the question whether the classification is reasonable or necessary is reviewable by the Courts it is primarily a legislative question, subject to

judicial revision only so far as to see that it is founded on real distinction on the subjects classified and not artificial and irrelevant ones, used for the

purpose of evading . the constitutional prohibition. Unless a classification is manifestly arbitrary and not founded on a substantial distinction or

apparent natural reasons which suggest the necessity of different legislation a Court has no right to interfere with the exercise of legislative discretion

and it cannot set aside a provision of law merely because in its view it would have been unwise or unnecessary to enact in a particular manner or

the same result would have been achieved by a different type of legislation.

On the point whether such a classification is discriminatory or not, there is a whole host of authorities which will be mentioned immediately

However, before citing those authorities reliance was placed by the learned Counsel for the Petitioner on a Supreme Court authority, P.J. Irani Vs.

The State of Madras, . In that case II has been laid down

Where an individual order of Government exempting certain premises was passed for reasons which did not fall with the purpose for which the

power was conferred by Section 13 of the Act. the order itself would be one discriminatory of the tenant occupying the premises as violating his-

fundamental right lo equal protection of the laws. In such an event. Article 226 would be available lo set aside such an order Even if the order did

not violate Article 14 the High Court does not' lack power under Article 226 to set aside an ultra virus order vitally affecting a person's right to

statutory protection against eviction Immunity from interference by the Courts could not be sought, for orders which are plainly ultra vires, nearly

because they were passed bona fide in the sense of being without indirect motive.. Particularly so when the power of the High Court under Article

228 of the Constitution is not limited to the issue of writs fatting under particular groupings, such as the certiorari, mandamus, etc. as these writs

have been understood in England, but the power is general to issue any direction to the authorities, viz.. for enforcement of fundamental rights as

well as for other purposes.

Where the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specie need

building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality of the order it challenged, its intra

virus character could be sustained only by disclosing the reasons which led to the passing of the order. In such a case the High Court is not in error

in calling for the reasons which induced the Government to pass the order of exemption, when no reasons are disclosed by the order.

The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the

premises, because it is in the very policy of the Act to protect the rights of tenants to continue in possession of the premises after the termination of

their terms because of the great difficulty of their obtaining alternative accommodation.

This authority is clearly distinguishable, because in that case what was held was that discrimination in favour of a particular person would be

discriminatory but not in favour of a particular class. Their Lordships have clearly indicated that as would appear from the above quotation.

In a Full Bench authority of the Punjab High Court their Lordships reviewed the law on the subject and held:

The classification of premises as defined in the Rent Control Act 1947, into premises completed before and after 24-3-1947 cannot be held to

violate Article 14 of the Constitution. The legislature in its wisdom decided to classify premises in this way and this differentiation cannot be

considered to be unreasonable for the purposes of achieving the object sought by the enactment.

Similarly in another Full Bench authority of the Allahabad High Court, Raman Das Vs. The State of Uttar Pradesh and Others, , it was held that

the proviso to Section 7 of the Act in so far as it makes a discrimination between owners of houses built prior to and after 1-7-1946 does not

violate the equality clause under Article 14 of the Constitution and as such does not affect the validity of the Act. Looking to, the history behind the

passing of the Act in so far as it makes a discrimination made therein is not on a just basis.

As already stated, in an earlier portion of this judgment, the U.P. Control of Rent and Eviction Act of 1947 saved buildings which were under

erection or were constructed on or after the Its January 1951 from the operation of that Act.

Authorities need not be multiplied on a point which is so clear and which in our opinion is very well settled by now.

We, therefore, do not hold that Section 3 (a)(ii) of the Houses and Shops Rent Control Act (No. 14 of 59) is discriminatory. The petition is

rejected. The case will be sent to the trial Court for disposal according to law, keeping in view the finding of this Court on the question of the

constitutionality of Section 3 (a)(ii) of the Act.

There will be no order as to costs.

J.N. Wazir, C.J.

I agree.