SHAH PRAVINCHAND HARAKHCHAND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question which is common in these three proceedings and which arises for determination relates to the vires of Explanation (a) to sec. 13(1)(g) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act). The questiOn arises in this way. Plaintiff landlords filed civil suits in competent Courts against their respective tenants for possession of the leased premises on the ground of their bona fide requirements. Admittedly the landlords had purchased the suit properties after January 1 1964 with sitting tenants. In the suits the landlords challenged the vires of Explanation (a) to sec. 13 of the Act on the ground that the said provisions violated Articles 14 and 19 of the Constitution. Special Civil Application relates to the suit in which a preliminary issue was raised as to the vires of the provisions and the learned trial Judge decided the issue against the landlords. In suit out of which Reference No. 5 of 1972 arises the learned trial Judge referred the issue of vires of the provisions to this Court under sec. 113 of the Civil Procedure Code. In Civil Revision Application No. 860 of 1967 the learned trial Judge finally decided the suit holding that the landlord failed to prove that he bona file required the suit premises for his personal use and dismissed his suit. It is obvious therefore that in the said Civil Revision Application the issue regarding vires of Explanation (a) to sec. 13(1)(g) of the Act loses all its importance. All these three proceedings came up for hearing before the Division Bench consisting of J. B. Mehta and S. H. Sheth JJ. who delivered their judgments on January 19 1974 J. B. Mehta J. came to the conclusion that the said provisions were intra vires while S. H. Sheth J. came to the conclusion that they were violative of Articles 14 and 19 of the Constitution. It is for this reason that the three proceedings are placed before me for final decision.

(2.) In order to appreciate the contention raised regarding the unconstitutionality of Explanation (a) to sec. 13(1)(g) of the Act it is necessary to refer to the material provisions of the Act. The Act has been enacted to control rents add repairs of certain premises and eviction of tenants therefrom. Under the ordinary law of landlord and tenant as soon as the landlord terminates the tenancy by any of the modes available to him under sec. 111 of the Transfer of Property Act except for by for-feiture he is entitled to recover possession and the tenant has no right to resist his claim for possession. In view however of shortage of accommodation and the apprehension that the landlords might take undue advantage of shortage of accommodation the legislature has passed the Act with object to offer protection to tenants against their evictions by landlords. Sec. 13 of the Act provides for the protection of tenants against eviction. It lays down that notwithstanding anything contained in the Act but subject to the provisions of sec. 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied of the grounds for eviction. The grounds on which the Court has to be satisfied are then set out in clause (a) to (1) of the said section. The effect of these provisions is that a landlord can recover possession of the premises leased by him only on grounds mentioned in clause (a) to (1). Clause (g) of sec. 13(1) provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlords are trustees of a public charitable trust that the premises are required for occupation for the purpose Or trust. Sub-sec (2) of sec. 13 further restricts the rights of the landlord to recover possession and it lays down that no decree for eviction shall be passed on the ground specified in clause (g) of subsec. (1) if the Court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it and where the Court is satisfied that no hardship; would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises the Court shall pass the decree in respect of such part only. The Act was enacted in the year 1947 and came into force on February 13 1948 At that time there was an Explanation to sec. 13(1)(g) and the Explanation was as under:-

(3.) Mr. Daru appearing for the landlords contends that the effect of the Explanation is that even heavily restricted right of reversion in a case of genuine and hard need is available only to those landlords (1) who acquired interest in the premises at a date prior to the beginning of the tenancy or the first day of January 1964 whichever is later and (2) on whom their interest has devolved by inheritance or succession. The provisions exclude all other landlords from the right of reversion on the ground of bona fide reasonable and harder need. The exclusion is totally unrelated to the object of the Act and results in gross discrimination in actual operation. Clause (g) even after the insertion of the Explanation recognises that the landlords of the class included in the Explanation may have rented the premises at the time when they did not personally need them but later on there may arise a personal need and therefore they should have a right to evict those tenants. This often happens contends Mr. Daru e.g. an owner in Government service subject to transfers may not need the premises while in Government service but may need after retirement or a person who has rented a part of the premises owned by him may need after the expansion of his family for residence or for business. Now there is no reason to believe contends Mr. Daru that such need will not arise in case of those landlords who are included in the Explanation i.e. those who acquired interest in the premises on the dates specified therein. It would be fantastic the argument continued to believe that those who purchased the premises after a certain date will not need the premises for personal use. Nothing had happened on January 1 1964 which made it improbable for the subsequent purchaser to need the premises for personal need. It was further contended that the landlords from these points of view can fall into the following five groups:-