Topic: Gauri Shankar v. Union of India

Gauri Shankar v. Union of India
Equivalent citations: 1995 AIR 55, 1994 SCC (6) 349 - BENCH: PARIPOORNAN, K.S.(J), VENKATACHALLIAH, M.N.(CJ), VERMA, JAGDISH SARAN (J) - CITATION: 1995 AIR  55, 1994 SCC  (6) 349,  JT 1994 (5)   634, 1994 SCALE  (4)29 - DATE OF JUDGMENT: 08/09/1994

The Judgment of the Court was delivered by PARIPOORNAN, J.- In this batch of cases a common question arises for consideration. The petitioners in the different petitions are the legal heirs of 16 statutory tenants" of residential premises under the Delhi Rent Control    Act, 1958, Act 59 of 1958 (hereinafter called 'the Act').    They assail Section 2 sub-section (1) clause (iii) of the Act, as introduced by Act 18 of 1976 with retrospective affect as ultra vires and violative of Articles 14 and 21 of    the Constitution of India. The respondents are    Union    of India,    the Delhi Administration and the landlords of    the respective premises.

2. Writ Petition (Civil) No. 1089 of 1987 is the    main case.    We will state a few facts of this case in order to understand the scope of the controversy raised in this batch of petitions. There are 6 petitioners in the writ petition. The petitioners' father obtained the rental of    the residential premises bearing    Municipal No.    1331, First Floor,    Baidwara, Maliwara, Delhi-6, on a monthly rental of Rs 40 sometime in the year 1940. The father died on 17-11- 1969. Thereafter, the third respondent herein, the owner of the premises filed a suit for possession of the premises against the petitioners and their mother, Suit No. 116 of 1970.    It was alleged that the tenancy was terminated by notice    dated 28-7-1969 which    expired on 3-9-1969.    He claimed that since the statutory tenancy was not heritable, he was entitled to a decree for possession. The suit    was decreed by the trial court on 11-2-1974. It held that    the statutory tenancy was not heritable. The appeal filed by the petitioners before the Additional District Judge    was futile.    The petitioners have filed Second Appeal No. 135 of 1975 in the Delhi High Court and it is still pending. It is the plea of the petitioners that they being the heirs of the statutory tenant are entitled to the protection of the    Act. According to the petitioners the provisions of the Act do not make any distinction between a "contractual tenant"    and a "statutory tenant" and both are treated alike. The    rule of heritability extends to statutory    tenancy    also.    The decisions of this Court in Damadilal v. Parashram1 and    Gian Devi Anand v.    Jeevan Kumar2 have held that the rule of heritability extends to statutory tenancy, whether it is residential or commercial, and the same rule will apply in other States where there is no explicit provision to    the contrary. This was held to be the position in law under Section    2(1) of the Act, even before its amendment of    the said provision by the introduction of sub-clause (iii).    The new sub-clause    (iii) of Section 2(1) is not    inconsistent with the earlier position and all that sub-clause (iii) to Section    2(1) has done is to restrict the rights insofar as residential premises are concerned. Since the incidents of a contractual 1 (1976) 4 SCC 855 2 (1985) 2 SCC 683 tenancy    and a statutory tenancy are the same regarding    the heritability, the (new) provisions of Section 2(1)(iii) of the Act which seek to limit or abridge the rights of    the heirs insofar as the residential premises are concerned, are discriminatory    and violative of Article 14 of    the Constitution of India. It is contended that Section 2(1)(iii) of the Act, insofar as it limits or restricts    the rights    of the heirs of residential premises in    the manner and to the extent provided in the said section, is violative of Article 14 of the Constitution of India.

3. In Writ Petition No. 575 of 1988, the petitioner claims to be the heir of one Shri Chhunnu Lal, a statutory tenant under the Act, in respect of the Premises 42-B, Connaught Place, New Delhi under Respondents 1 and 2 who have filed a suit for possession. The suit is pending. The petitioner attacks    Section 2(1)(iii) of the Act as ultra vires    and discriminatory.

4.In SLP (Civil) No. 16911 of 1991 the petitioner claims to be the    heir of one Shri A.K. Roy, a statutory tenant in respect    of Flat No. 3-A, Sujan Singh Park, New Delhi along with Garage No. 1-K and Servant Quarter No. 25-C/IIIrd Floor.    Respondent 1 landlord filed Suit No. 603 of 1984 for possession with mesne profits.    The trial court dismissed the suit holding that the tenancy was not validly terminated by a proper notice. The appeal, RCA No. 3 of 1988, filed by landlord was allowed.    A further appeal filed by    the petitioner before High Court (RSA No. 42 of 1990)    was dismissed on 27-9-1991. Earlier, the petitioner filed a writ petition    in the High Court (Civil Writ No. 1406 of 1988) assailing Section 2(1)(iii) of the Act as ultra vires which was dismissed on 30-10-1991. Thereafter the present special leave petition was filed by the petitioner objecting to the order passed by the High Court aforesaid.

5. We heard Mr Jain, Senior Counsel who appeared on behalf of the    petitioners in Writ Petition (Civil) No. 1089 of 1987, as also counsel for the    respondents therein.    The counsel    appearing in    the other cases also    practically adopted    the arguments advanced in this writ petition.    Mr Jain contended that the decisions of this Court in Damadilal v. Parashram1 and Gian Devi Anand v. Jeevan Kumar2 have held that there is no distinction between a statutory tenant    and a contractual    tenant and both are heritable.    This is so even under Section 2(1) of the Act, before its amendment. It has been further held in Gian Devi Anand case2 that    the statutory tenancy of a commercial premises (non-residential) is absolutely heritable. While so, the restriction or    the limitation regarding the heritability of the    "residential premises" brought in by Section 2(1)(iii) of the Delhi    Rent Control    Act, 1958 has no rationale and    is discriminatory. The statutory tenant of a residential premises, as well as non-residential    (commercial) premises are similarly placed and the distinction in the heritability of statutory tenancy between residential premises and non-residential premises is not based on any reasonable classification and that it    has no rational relation to the object sought to be achieved by the Act and so discriminatory.    On the other hand, counsel for the respondents/landlords contended that the legislature has treated commercial tenancy differently    from    the residential tenancy and they are not similarly placed. It is competent to the legislature to lay down the manner and extent of the protection and the rights and obligations of the respective tenants and their heirs. Since the tenancy in respect of residential premises is distinct and different from tenancy    in respect of    the commercial premises, the limitation or restriction of    the rights of the heirs insofar as the residential premises    are concerned, is a valid and permissible classification and is not open to attack on the ground that it violates Articles 14 and    21 of the Constitution of India. Counsel for    the respondents contended that the reasoning and conclusion of the Constitution Bench of this Court in Gian    Devi Anand case2 themselves will go to show that the tenancy of    the residential premises and commercial premises are distinct and different and there exists a valid reason for limiting or abridging the rights of the heirs regarding    residential premises.

6. It will be useful to extract Section 2(1) of the Act.

"2. (1) 'tenant' means any person by whom or on whose    account or behalf the rent of any premises    is, or, but for a special contract, would be, payable, and includes
(i) a sub-tenant;
(ii) any    person    continuing in    possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy,    subject to the order of succession and    conditions    specified, respectively, in Explanation 1 and Explanation II to this clause, such of the aforesaid person's
(a) spouse,
(b) son    or daughter, or, where there    are both son and daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of    his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but    does not include,-
Explanation 1.- The order of succession in the event of the death of the person continuing in possession after the termination of    his tenancy shall be as follows :
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there    is no surviving spouse, or if    the surviving spouse did not ordinarily live    with the deceased person as a member of his family up to the date of his death;
(c) thirdly, his parents, if there is no surviving    spouse, son or daughter of    the deceased person, or if such surviving spouse, son or daughter    or any    of them, did    not ordinarily live in the premises as member of the family of the deceased person up to    the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or    if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. Explanation II.- If the person, who acquires, by succession, the right to continue    in possession after the termination of    the tenancy, was not financially dependent on    the deceased person on the date of his death, such successor    shall acquire    such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier,    the right of    such successor    to continue    in possession after the    termination of the tenancy shall become extinguished. Explanation III.- For the removal of doubts, it is hereby declared that,-
(a) where, by reason of Explanation II,    the right of any successor to continue    in possession after the termination of    the tenancy    becomes extinguished,    such extinguishment shall not affect the right of any other successor of the same    category to continue    in possession after the    termination of the tenancy;    but if there is no other successor    of the same category, the right to continue    in possession after the termination of the    tenancy shall not,    on    such extinguishment,    pass on to    any other successor, specified in any lower category or categories, as the case may be;
(b) the    right of every successor, referred to in Explanation 1, to continue in possession after the termination of the tenant, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."
The main attack of the petitioners'    counsel    is against Explanation 11 aforesaid. It is stated that the heirs of a statutory tenant of the residential premises obtain or get a heritable right without limitation, only if the heirs    were financially dependent on the deceased.    It is    also argued that the rights of the heirs of a statutory tenant of    the residential premises are hedged in by    various limitations regarding the order of succession as stated in Explanation 1 and are also otherwise abridged by Explanations 11 and    III depending upon their financial dependency. Such fetters or limitations do    not exist in the case of the heirs of statutory tenants in    respect of the non-residential (commercial) premises.    The differential treatment so meted out to the heirs of a statutory tenant    in respect of the residential premises is not based on any rational distinction and so hit by Article 14 of    the Constitution of India.

7. The scope and content of Article 14 of the Constitution of India, familiarly known as the equality clause, have been laid down in innumerable decisions of this Court. It is unnecessary to refer to all of them.    Briefly    stated    the gravamen of the article is equality of treatment. Article 14 forbids discrimination. As stated by Shah, J. in Western U.P Electric Power & Supply Co. Ltd. v. State of U. P. 3 : (S.C.C p. 82 1, para 7) "Article    14 of    the Constitution ensures equality    among equals; its aim is to protect persons    similarly    placed    against discriminatory treatment.    It does not however operate against rational    classification. A person setting up a grievance of denial of equal treatment    by law must establish    that between persons similarly circumstanced,    some were treated to    their    prejudice and    the differential treatment    had no    reasonable relation    to the object sought to be achieved by the law."

It is    implicit from the above, that equals should not be treated    unlike    and unlikes should not    be treated alike. Likes should be treated alike.    It is settled law that in giving effect to the said salutary principle, a mathematical precision is not envisaged and there should be no fanatical or 'doctrinaire' or wooden approach    to the    matter. A practical or realistic approach should be adopted. It is open to the State to classify persons or things or objects, for legitimate purposes.

8. The scope of Article 14 has been summarised in the oft- quoted    decision, Ram    Krishna Dalmia v. Justice    S.R. Tendolkar4. At (AIR p. 547), the Constitution Bench of this Court relied on the following passage from the judgment of the seven-Judge Constitution Bench in Budhan Choudhry v. State of Bihar5 : (AIR p. 547) "It is now well established that while Article 14 forbids class legislation, it does    not forbid reasonable classification for    the purposes    of legislation.    In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely,    (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have    a rational relation    to the object sought to be achieved by the statute in    question.    The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary    is that there must    be a nexus between the basis of classification and    the object of the Act under consideration." The Court then laid down :

3 (1969) 1 SCC 817: AIR 1970 SC 21
4    AIR 1958 SC 538: 1959 SCR 279
5    (1955) 1 SCR 1045: AIR 1955 SC 191

"The principle enunciated above has    been consistently adopted and applied in subsequent cases. The decisions of this Court further establish-

(a) that a law may be    constitutional    even though it relates to a single individual    if, on account of some special circumstances or reasons applicable to him and not applicable to others, that    single individual may be treated as a class by himself;

(b) that there is always a presumption in favour of the    constitutionality of    an enactment    and the burden is upon him    who attacks it to show that there has been a clea r transgression    of the constitutional principles;

(c) that it must be    presumed that    the Legislature understands and    correctly appreciates the need of its own people,    that its laws are directed    to problems    made manifest    by experience and    that    its discriminations are based on adequate grounds;

(d) that the    Legislature is free    to recognise degrees of harm and may confine    its restrictions to those cases where the need is deemed to be the clearest;

(e) that in order to sustain the presumption of constitutionality the Court may take    into consideration matters of common knowledge, matters of common report, the history of    the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions    on the    part of a Legislature are to be presumed, if there is nothing on the    face of the law or    the surrounding circumstances brought to    the notice    of the court on    which    the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some    undisclosed and unknown reasons for    subjecting certain individuals or corporations to    hostile or discriminating legislation."

(emphasis supplied) The above decision has been followed in    innumerable subsequent cases. See Mohd.    Hanif Quareshi v. State of Bihar6, Kerala Education Bill, 1957, Re7 and other cases.

9. In    Ram Krishna Dalmia case4, the different situations in which a statute may come up for consideration on    the question of validity under t Article 14 of the    Constitution have been catalogued in paragraph 12 of the judgment.    They are broadly dealt with as failing in five groups or clauses. For the purpose of this case, it is sufficient if we refer to paragraph 12 clause (1).

6 AIR 1958 SC 731: 1959 SCR 629 7 AIR 1958 SC 956: 1959 SCR 995 "(1) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on    the face of the statute or may be gathered from the surrounding    circumstances known to or brought to the    notice    of the    Court.    In determining the validity or otherwise of    such a statute the Court has to examine whether suc h classification is or can be    reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group    and whether such differentia has a reasonable relation    to the object sought to be achieved by the statute, no matter whether    the provisions of the statute are    intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law........

10. Bearing the above principles in mind, let us look    into the provisions of the Act. A bare perusal of the Delhi Rent Control    Act, 1958, will show    that the legislature    has treated    commercial tenancy differently from    residential tenancy. Indeed, in Gian Devi Anand case2, in paragraphs 32 and 34 of the judgment, the Constitution Bench of this Court has pointedly dealt with the matter thus : (SCC p. 709) "32. It    may be noted    that for certain purposes    the Legislature in the Delhi Act in question    and also in various other Rent    Acts has treated commercial premises    differently from residential premises. Section 14(1)(d) provides    that it will be a good    ground    for eviction of a tenant from residential premises if the premises let out for use as residence is not so used for a period of    six months immediately before the filing of    the application for the recovery of possession of the premises. Similarly Section 14(1)(e) makes bona fide requirement of the landlord of the premises let out to the    tenant    for residential purposes a    good    ground    for eviction of the tenant from such premises. These grounds, however, are not made available in respect of commercial premises.

34. It    may be noticed that the Legislature itself treats commercial tenancy differently from residential tenancy in the matter of eviction of the tenant in the Delhi Rent    Act and also in various other Rent Acts. All the    grounds    for eviction of a tenant of residential premises are not made grounds    for eviction of a tenant in respect of commercial premises. Section 14(1)(d) of the Delhi Rent Act provides that non-user of the residential premises by the tenant    for a period of six months immediately before the filing of    the application for the recovery of possession of the premises will be a good ground for eviction,    though    in case of commercial premises no such provision is made.    Similarly, Section    14(1)(e) which makes bona fide requirement of    the landlord of the premises let out to the    tenant    for residential purposes a ground for eviction of the tenant, is not made applicable to commercial premises."

11. It    is also appropriate to state    that a commercial tenancy    is much more valuable and    precious than a residential tenancy. In the above decision of the Supreme Court,    this aspect was highlighted to the following effect in paragraph 34 of the judgment thus : (SCC pp. 709-1 1) "Business    carried on by a tenant of    any commercial premises may be and often is,    his only occupation and the source of livelihood of the tenant and his family.    Out of    the income earned by the tenant from his business in the    commercial premises,    the tenant maintains    himself and his family; and    the tenant, if he is residing in a tenanted house, may also be paying his rent out of the said income. Even if a tenant is evicted from    his residential premises, he may with the earnings out of the business be    in a    position to arrange for some other accommodation for    his residence with his family. When, however, a tenant is thrown out    of the    commercial premises    his business which enables him to maintain    himself    and his family comes to a standstill. It is common knowledge that it is much more difficult to find suitable business premises    than to find suitable premises    for residence. It is no secret that for securing commercial accommodation, large sums of money by way of salami, even    though    not legally payable,    may have to be paid and rents of commercial premises are usually    very high. Besides, a business which has been carried on for years at a particular place has its    own goodwill    and other distinct advantages.    The death of    the person who happens    to be    the tenant of the commercial premises and who    was running the business out of the income of which the family used to be maintained, is itself a    great loss to the members of    the family to whom the death, naturally, comes as a    great blow. Usually, on the death of    the person who runs the business and maintains his family out of the income of the business, the other members of the family who    suffer    the bereavement have necessarily to carry on    the business    for the maintenance and    support of the family. A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. ... It could never have been the intention of the Legislature that    the entire family of a tenant depending upon    the business    carried    on by the tenant will be completely stranded and the business carried on for years in the premises which had    been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, .... It may also be    borne in mind    that in case    of commercial premises the heirs of the deceased tenant not only succeed to the tenancy rights in the premises but they succeed to the t business    as a whole. ... Commercial premises are let out not only to individuals but    also to Companies, Corporations and other statutory bodies having a    juristic personality.    In fact, tenancies    in respect of    commercial premises    are usually taken by Companies    and Corporations. When the tenant is a Company or a    Corporation or anybody with juristic personality, question of the death of    the tenant will not arise. Despite the terminatio n of the tenancy, the Company or the Corporation or such juristic    personalities, however, will go on enjoying the protection afforded to the tenant under the Act." (emphasis supplied)

12. It    is evident from the above    decision of    the Constitution Bench of this Court that a commercial tenancy is invaluable    and    has got distinct features    and characteristics    of its own different from that of a residential tenancy.    None of the peculiar    or unique features present in the case of commercial tenancies exist in the    case of residential    tenancies. In    the above background, if the legislature thought it fit to afford a greater    and extended right or benefit to the heirs of    the statutory tenants of commercial premises and not to extend such rights to the heirs of    the statutory    tenants of residential premises, we should say that it only stands to reason    and reckons the stark realities of the prevailing situation. The protection afforded by the Rent Act to a tenant after the termination of the tenancy and to the heirs of the tenant is only a creation of the Act and it is    open to the Legislature to make appropriate provisions in    that behalf.    It can make suitable and appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be so enjoyed and the manner in which    the same is to be enjoyed.    In the above perspective, we are of the view that the provisions in Section 2(1)(iii) of    the Act, which seeks to restrict or limit the right of    the heirs,    insofar    as the statutory tenants of    residential premises are concerned and to the extent provided therein, are not in any way discriminatory and do not offend    the guarantee under Article 14 of the Constitution.    This is not a case    where the residential tenancy    and the commercial tenancy are similarly placed. They belong to two different categories with distinct features and    characteristics of their own. No question of discrimination arises. In this context, it is only    proper    to quote the following observations in Sakhawat Ali v. State of Orissa8, which is apposite :

"... legislation enacted for the    achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine    what categories it would embrace within the scope of legislation    and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would    not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution."    (emphasis supplied) Nor are we impressed by the plea that the right to shelter is a guarantee under Article 21 of the Constitution of India and so the abridgement or limitation placed on the rights of the legal heirs in the case of a statutory    tenancy of residential premises makes an inroad into the rights of    the tenant under Article 21 of the Constitution of    India.    We hold that the statutory tenancies regarding    residential premises are distinct and different from statutory tenancies regarding commercial premises and the limitations or    the restrictions placed by Section 2(1)(iii) of the Act on    the rights    of the heirs    of    the statutory    tenants    of residential premises are reasonable, fair and just in all 8 (1955) 1 SCR 1004, 1010: AIR 1955 SC 166 the circumstances of the case.    There is no violation of the guarantee enshrined in Article 14 or Article    21 of    the Constitution of India.

13. We    hold that Section 2(1)(iii)    of the    Delhi    Rent Control    Act, 1958 is not open to attack on the ground    that it is violative of Articles 14 and 21 of the Constitution of India.    The said provision is not in    any manner either unfair or unjust or absurd. There is no merit in this batch of cases. The writ petitions are dismissed with costs.    The special leave petition is rejected.