Case: VINOD KUMAR Vs. ASHOK KUMAR GANDHI

wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist. 52. Now reverting to the judgment of this Court in Satyawati Sharma (supra), in the said judgment this Court did not read down the provision of Section 14(1)(e) of the Delhi Rent Control Act. This Court held that Section 14(1)(e) is not intra vires the doctrine of equality enshrined in Article 14 of the Constitution. In paragraph 31 following was laid down: 31………In our considered view, the discrimination which was latent in Section 14(1)(e)at the time of enactment of the 1958 Act has, with the passage of time (almost 50 years), become so pronounced that the impugned provision cannot be treated intra vires Article 14of the Constitution by applying any rational criteria. 53. After considering all aspects of the matter, this Court in Satyawati Sharma (AIR 2008 SC 3148 ) held that Section 14(1)(e) is violative of the doctrine of equality embodied in Article 14 of the Constitution. This Court, thus, struck down the discriminatory portion of Section 14(1)(e). In paragraphs 38 and 39 following was laid down: 38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only. 39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e)… 54. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative ofArticle 14 of the Constitution. Thus, three-Judge Bench judgment in Subramanian Swamy and others (supra) is clearly distinguishable and does not affect the ratio laid down by two-Judge Bench judgment in Satyawati Sharma case. 55. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non- residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Section 1(3) provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Central Government did not issue any notification in the Official Gazette for enforcement of the Act. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. From the above, it is clear that what was observed by Gian Devi Anand was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President. 56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51: 50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette. 51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made. 57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The Constitution Bench judgment in Gian Devi Anand(supra) was delivered by Amarendra Nath Sen, J. with which opinion Bhagwati, J. concurred28. The most important observations which are relevant in present case were made by the Constitution Bench in paragraph 39 of the judgment. The Constitution Bench observed the landlord who let out commercial premises under circumstances may need bona fide premises for his own use under changed conditions. The Constitution Bench suggested that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. Following was observed in paragraph 39:39.Before concluding, there is one aspect which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the ground specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. Inspite of various restrictions put on the landlords right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstances may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property inspite of his letting out the same to a tenant. The legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions in some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well29. Now, we revert back to Satyawati Sharmas case. Satyawati Sharma case has noticed Gian Devi Anand case in paragraphs 20 and 21. Satyawati Sharma extracted the entire paragraph 39 of Constitution Bench judgment in paragraph 20. Satyawati Sharma in paragraph 21 states following:21. What is significant to be noted is that in para 34 of the aforementioned judgment, the distinction between residential and non-residential tenancies was made in the context of the rights of the heirs of the tenant to continue to enjoy the protection envisaged under Section 14(1). The Court was of the view that the heirs of the tenants of the commercial premises cannot be deprived of the protection else the family of the tenant may be brought on road or deprived of the only source of livelihood. The Court also opined that if the heirs of the individual tenants of commercial tenancies are deprived of the protection, extremely anomalous consequences will ensue because the companies, corporations and juridical entities carrying on business or commercial activities in rented premises will continue to enjoy the protection even after the change of management, but the heirs of individual tenants will be denuded of similar protection. At the same time, the Court noted that the landlord of a premises let for residential purpose may bona fide require the same for his own use or the use of his dependent family members and observed that the legislature should remove apparent discrimination between residential and non-residential tenancies when the landlord bona fide requires the same. If the observations contained in para 34 are read in any other manner, the same would become totally incompatible with the observation contained in the penultimate paragraph of the judgment and we do not see any reason for adopting such course, more so, because the later part of the judgment has been relied in Harbilas Rai Bansal v. State of Punjab, (1996) 1 SCC 1  and Rakesh Vij v. Dr. Raminder Pal Singh Sethi, (2005) 8 SCC 504 30. The submission which has been pressed by Shri Uday Gupta is that the Constitution Bench in Gian Devi Anand did not declare provisions of Section 14(1)(e) unconstitutional rather left it to the Legislature to amend the law. When Gian Devi Anand has itself not struck down Section 14(1)(e) Satyawati Sharma doing the same is contrary to the judgment of Gian Devi Anand. The observation in paragraph 39 of Gian Devi Anands case itself suggest that the Constitution Bench was satisfied that a ground for eviction of tenant of commercial premises on bona fide requirement of landlord should also be provided for. The basis for what has been done in Satyawati Sharma was clearly laid down in Gian Devi Anand for striking down the unconstitutional part in Section 14(1)(e). We fail to see that how can Satyawati Sharma judgment be said as per incuriam. The ratio of Gian Devi Anand has neither been ignored nor any contrary view has been taken by Satyawati Sharma. We may observe that Gian Devi Anand in paragraphs 32 and 34 has noticed the provisions of Section 14(1) specifically Section 14(1)(e) as existed in the Act, 1958. There was no challenge for the classification in Section 14(1)(e) in the above case, hence neither Gian Devi Anand was required to pronounce on the classification in Section 14(1)(e) nor was required to consider striking down of the provisions. In any view of the matter, the observation in paragraph 39, Gian Devi Ananad justified that there is ground to seek eviction on bona fide need. Thus, Satyadevi Sharma seeks support of what has been done in Gian Devi Anands case31. Now, we come to three-Judge Bench judgment of Gauri Shanker which according to appellant is binding precedent and Satyawati Sharma having not noticed the said, the judgment of Satyawati Sharma is per incuriam. Gauri Shanker was a case where restriction on rights of heir of statutory tenant of residential premises placed by explanation to Section 2(l)(iii) of Delhi Rent Control Act as introduced Act 18 of 1976 while no restrictions were placed on tenants of commercial premises where challenge on the ground of violation of Article 14 and 21 of the Constitution of India. Gauri Shanker has noticed the Gian Devi Anand, especially paragraphs 32 and 3432. Gauri Shanker upheld Section 2(l)(iii) of the Act holding it not violating Article 14 and 21 of the Constitution. The observations in the judgment with respect to residential tenancy and commercial tenancy were made in reference to heritability. In the above context, this Court held that they belong to two different categories with distinct features and characteristics of their own. Gauri Shanker was not a case in which provision of Section 14(1)(e) came for consideration nor any observation has been made with regard to ground of eviction available to landlord with regard to commercial premises. Gauri Shanker had dealt with entirely different provision, certain limitation which was attached to residential premises itself to heritability. The case of Gauri Shanker being on different provision and premise, it cannot be said that Gauri Shanker was a binding precedent to be followed by Satyawati Sharma. The judgment of Gauri Shanker being on different provision cannot be said to be binding precedent in reference to what has been dealt in Satyawati Sharma. We, thus, conclude that the judgment of Satyawati Sharma cannot be held to be per incuriam34. There cannot be any dispute to the submission of the appellant that provision of Section 25B when it was inserted, the procedure was confined to residential premises as has been stated by the Honble Minister on the Floor of the House. There being no ground available to landlord for eviction of a tenant of commercial premises on bona fide need, there was no contemplation for applying the procedure under Section 25BSatyawati Sharma was considering the challenge to provisions of Section 14(1)(e) in sofaras the ground of bona fide need of landlord is also available for commercial premises. Section 25B being related to only procedure for considering the application under Section 14(1) (e)has no bearing on the issue which had propped up before this Court in Satyawati Sharma. Nothing inSection 25B can be read which runs counter to what has been laid down by Satyawati Sharma. Whether a procedure giving more flexibility to tenants of commercial premises should be provided for is another subject but non-reference of Section 25B by Satyawati Sharma does not render the judgment per incuriamSuper Max was a case where this Court had occasion to consider Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In the above case, the Government of Maharashtra was in occupation of sixth floor of a building which used for housing the Office of the Registrar, Cooperative Societies. The appellant suffered a decree of ejectment passed by the Court of Small Causes. The decree came to be challenged by civil revision application where the High Court stayed the execution of the decree subject to the condition that the shall deposit Rs. 5,40,000/- every month which amount was, however, not allowed to be withdrawn by the appellant38. Three-Judge Bench in the above case noticed both the judgments in Gian Devi Anand and Satyawati Sharma39. The ratio which was quoted by three-Judge Bench from Satyawati Sharma was that which was laid down in paragraph 32 of the Satyawati Sharma case. The ratio in Satyawati Sharma that a Legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality has been affirmed which is clear from paragraph 71 of the judgment. Paragraph 71 of three- Judge Bench judgment is as follows:71. We reaffirm the views expressed in Satyawati Sharma and emphasise the need for a more balanced and objective approach to the relationship between the landlord and tenant. This is not to say that the Court should lean in favour of the landlord but merely that there is no longer any room for the assumption that all tenants, as a class, are in dire circumstances and in desperate need of the Courts protection under all circumstances. (The case of the present appellant who is in occupation of an area of 9000 sq ft in a building situate at Fort, Mumbai on a rental of Rs 5236.58, plus water charges at the rate of Rs 515.35 per month more than amply highlights the point.)40. It is true that in the above three-Judge Bench judgment, the Court was not directly concerned withSection 14(1)(e) of the Delhi Rent Control Act. Thus, three-Judge Bench had the basis of Satyawati Sharma and on which basis Section 14(1)(e) was struck down after working of the Act after more than 50 years. We, thus, are of the view that three-Judge Bench in Super Max approved limited ratio of Satyawati Sharma as extracted by three-Judge Bench which fully supports the submission that basis and reasoning on which Satyawati Sharma struck down Section 14(1)(e) partly stood on firm footing41. We having rejected the submission of learned counsel for the appellant that the judgment of Satyawati Sharma is per incuriamBy noticing the three-Judge Bench judgment in Super Max, we have already noticed that three-Bench has reaffirmed ratio of Satyawati Sharma that the Legislation which was quite reasonable and rational at the time of itsenactment may with the lapse of time and due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality45. Much emphasis has been given by the learned counsel for the appellant on the fact that various tenants are tenants of small shops which are their source of livelihood when application under 14(1)(e) filed by the landlord on bona fide need, they are not even entitled to contest the application by filing written statement. They are obliged to obtain leave to defend as per Section 25B which leave to defend is rejected in most of the cases which causes great hardship on the tenants. It is submitted that in so far as applicability of the procedure under Section 25B is concerned, the issue needs to be revisited to save the tenants from hardship. In our view this cannot be a ground for referring the judgment of Satyawati Sharma to larger Bench for reconsideration of judgment of Satyawati Sharma. Satyawatig not said about the procedure, there is nothing in the judgment which needs to be revisited on the above aspect. It is for the Legislature to take stock of situation and if it so decides it can make necessary changes in the procedure for considering the application under Section 14(1)(e) with regard to eviction of commercial tenants on the ground of bona fide need of the land lord. We need to add nothing more on the subject. In sofaras submission of the learned counsel for the appellant is that underSection 14(1)(e) in respect of commercial tenancy leave to defend is generally rejected, it is suffice to say that rejection of leave for a particular case is matter to be examined in each case and no general observation can be made in this regard. We have already extracted observation of Constitution Bench judgment in Gian Devi Anand in paragraph 39 where the Constitution Bench observed that bona fide need of the landlord stands very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. After more that a decade of the above observation, a comprehensive Legislation, namely, Delhi Rent Act, 1995 has been enacted to provide for the regulation of rents, repairs and maintenance and evictions relating to premises and of rates of hotels and lodging houses in the National Capital Territory of Delhi52. Now reverting to the judgment of this Court in Satyawati Sharma (supra), in the said judgment this Court did not read down the provision of Section 14(1)(e) of the Delhi Rent Control Act. This Court held that Section 14(1)(e) is not intra vires the doctrine of equality enshrined in Article 14 of the Constitution. In paragraph 31 following was laid down:31………In our considered view, the discrimination which was latent in Section 14(1)(e)at the time of enactment of the 1958 Act has, with the passage of time (almost 50 years), become so pronounced that the impugned provision cannot be treated intra vires Article 14of the Constitution by applying any rational criteria53. After considering all aspects of the matter, this Court in Satyawati Sharma (AIR 2008 SC 3148 ) held that Section 14(1)(e) is violative of the doctrine of equality embodied in Article 14 of the Constitution. This Court, thus, struck down the discriminatory portion of Section 14(1)(e). In paragraphs 38 and 39 following was laid down:38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latters right to seek eviction of the tenant from the premises let for residential purposes only39. However, the aforesaid declaration should not be misunderstood as total striking down of Section 14(1)(e) of the 1958 Act because it is neither the pleaded case of the parties nor the learned Counsel argued that Section 14(1)(e) is unconstitutional in its entirety and we feel that ends of justice will be met by striking down the discriminatory portion of Section 14(1)(e)…54. The judgment of Satyawati Sharma was, thus, not a case of reading down of Section 14(1)(e) rather it was a case where portion of Section 14(1)(e) was struck down as discriminatory and violative ofArticle 14 of the Constitution. Thus, three-Judge Bench judgment in Subramanian Swamy and others (supra) is clearly distinguishable and does not affect the ratio laid down by two-Judge Bench judgment in Satyawati Sharma case55. The Legislature itself notices the need for providing a ground for eviction to landlord on bona fide need with regard to residential as well as non- residential premises. Thus, what was said in Gian Devi Anand in paragraph 39 was duly accepted by Legislature. It is another matter that Delhi Rent Act, 1995 even though it received assent of the President could not be enforced. Section 1(3) provided that it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Central Government did not issue any notification in the Official Gazette for enforcement of the Act. Writ Petition was filed in Delhi High Court for issuance of mandamus to Central Government to enforce Act, 1995 which was dismissed. From the above, it is clear that what was observed by Gian Devi Anand was also accepted by the Legislature in providing for eviction from both the residential and non-residential premises on the ground of bona fide need in Act, 1995. Although, said Act could not be enforced, the Legislation is complete when the Act is passed by the Legislature and receives the assent of the President47. We may notice another three-Judge Bench judgment of this Court, i.e., Subramanian Swamy and others vs. Raju through Member, Juvenile Justice Board and another, (2014) 8 SCC 390. This Court in the above judgment laid down that reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear50. This Court in the background of the above submissions laid down following in paragraph 61:61. Reading down the provisions of a statute cannot be resorted to when the meaning thereof is plain and unambiguous and the legislative intent is clear. The fundamental principle of the reading down doctrine can be summarized as follows. Courts must read the legislation literally in the first instance. If on such reading and understanding the vice of unconstitutionality is attracted, the courts must explore whether there has been an unintended legislative omission. If such an intendment can be reasonably implied without undertaking what, unmistakably, would be a legislative exercise, the Act may be read down to save it from unconstitutionality. The above is a fairly well established and well accepted principle of interpretation which having been reiterated by this Court time and again would obviate the necessity of any recall of the huge number of precedents available except, perhaps, the view of Sawant, J. (majority view) in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors. 1991 Supp. (1) SCC 600 which succinctly sums up the position is, therefore, extracted below: (SCC pp.728-29, para 255)255. It is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations arepossibleone rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do so51. Rejecting the submission of the petitioner to read down the statute following was held in paragraph64:64.If the provisions of the Act clearly indicate the legislative intent in the light of the countrys international commitments and the same is in conformity with the constitutional requirements, it is not necessary for the Court to understand the legislation in any other manner. In fact, if the Act is plainly read and understood, which we must do, the resultant effect thereof is wholly consistent with Article 14. The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitutionality for such unconstitutionality does not exist56. A Constitution Bench in State of Kerala and others vs. Mar Appraem Kuri Company Limited and another, (2012) 7 SCC 106 , laid down following in paragraphs 50 and 51:50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. As far as Parliament is concerned, the legislative process is complete as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations as in such cases no part of the legislative function is left unexercised. In such legislations, merely because the legislature has postponed the enforcement of the Act, it does not mean that the law has not been made57. The above authority duly supports our view that law has been made by the Parliament in enacting Act, 1995 which accepts the suggestion of Constitution Bench in Gian Devi Anand and hence what has been held by Satyawati Sharma was felt both by this Court and Legislature. We, thus, do not find any good ground to refer the judgment of this Court in Satyawati Sharma for reconsideration by a larger Bench.