VINOD KUMAR versus ASHOK KUMAR GANDHI
[2019] 10 S.C.R. 1051, Supreme Court of India, 2019
Outcome: Directions issued
Segment: Ratio
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VINOD KUMAR
v.
ASHOK KUMAR GANDHI
(Civil Appeal No.3793 of 2016)
AUGUST 05, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Delhi Rent Control Act, 1958:
s.14(1)(e) – Provision under – Providing for eviction of
residential premises on the ground of bonafide requirement – Held
violative of Art.14 of the Constitution in *Satyawati Sharma case
making the provision applicable also to non-residential premises –
In the present case application u/s.14(1)(e) filed seeking eviction
of non-residential premises – Rent Controller followed summary
procedure – Procedure when challenged, was confirmed by High
Court – In appeal to Supreme Court, tenant  sought reference of
*Satyawati Sharma case for reconsideration to larger Bench – The
grounds for reference were that *Satyawati Sharma case was
contrary to Constitution Bench Judgment in **Gian Devi Anand
case; that it was per incuriam Three Judge Bench judgment in #Gauri
Shanker case; that without adverting to s.25-B, s.14(1)(e) could
not have been made applicable for non-residential premises and
that it was not open to the Court to read down the provisions of
s.14(1)(e) in *Satyawati Sharma case – Held: Judgment in
*Satyawati Sharma case cannot be said to be per incuriam or
contrary to the judgment of Constitution Bench in **Gian Devi
Anand case or three Judgment Bench judgment in #Gauri Shanker
case – Gauri Shanker case being on different provision and premise,
is distinguishable and cannot be said to be a binding precedent
–
In **Gian Devi Anand case it was suggested to legislature to
consider making ‘bonafide requirement’ a ground for eviction in
respect of commercial premises as well – Rather *Satyawati Sharma
case seeks support from **Gian Devi Anand case – In pursuance
to the suggestion in **Gian Devi Anand case Delhi Rent Act, 1995
was enacted – The judgment in *Satyawati Sharma case was not a
case of reading down of s.14(1)(e), but was a case where a portion
of the provision which was discriminatory and violative of Art.14
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was struck down – s.25-B being related to only procedure for
considering application u/s.14(1)(e), has no bearing on the issue
which was considered in *Satyawati Sharma case – Nothing in s.
25-B can be read which runs counter to what is laid down in
*Satyawati Sharma case – Therefore, non-consideration of s.25-B
in *Satyawati Sharma case cannot be a ground to refer the case to
larger Bench – Thus, there is no good ground to refer the judgment
in *Satyawati Sharma case for reconsideration by a larger Bench.
Legislation:
A legislation is complete, when the Act is passed by the
legislature and receives the assent of the President, even if it is not
enforced.
Judgments/Orders:
Principle of per incuriam – Meaning and applicability of.
Rejecting the plea to refer the judgment in  *Satyawati
Sharma case to larger   Bench and directing to list the matter for
consideration on merits, the Court
HELD: 1.1 The provision of Section 14(1)(e) of Delhi Rent
Control Act, 1958 confines to the premises let for residential
purposes which may be required bonafide by the landlord for
occupation as a residence for himself or for any member of his
family dependent on him. Part of Section 14(1)(e) was struck down
in *Satyawati Sharma case holding that Section 14(1)(e) is
violative of the doctrine  of equality embodied in Article 14 of the
Constitution in so far as it discriminates between the premises
let for residential and
non-residential purposes when the same
are required bonafide by the landlord for occupation for himself
or for any member of his family dependent on him and restricts
the landlord’s right to seek eviction of the tenant from the
premises let for residential purposes only. [Paras 10, 11] [1063-
B-D]
1.2 Prior to *Satyawati Sharma case, the provisions of
Section 14(1)(e) were resorted to, by the landlord for seeking
recovery of possession only with regard to residential premises.
After the said judgment landlords of non-residential premises
started filing application for eviction under Section 14(1)(e) which
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are dealt with by the Rent Controller as per procedure contained
in Chapter III-A of the Act, 1958. Chapter III-A contains
‘Summary Trial of Certain Applications’. [Paras 11 and 12]
[1063-C; 1064-A-B]
2.1 The principle of per incuriam has been developed by
the English Courts in relaxation of the rule of stare decisis. In
practice per incuriam is per ignoratium. The above principle has
been developed, accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution which embodies
the doctrine of precedent as a matter of law.  When a Court
delivers judgment ignoring the binding precedent of a larger
Bench, the judgment so delivered is held to be per incuriam and
has no precedential value. [Paras 22 and 24] [1069-D-E;
1071-C-D]
V. Kishan Rao v. Nikhil Super Specially Hospital and
Another (2010) 5 SCC 513 : [2010] 5 SCR 1 –
relied on.
Punjab Land Development and Reclamation
Corporation Ltd., Chandigarh v. Presiding Officer,
Labour Court, Chandigarh and  Another (1990) 3 SCC
682 : [1990] 3 SCR 111 – followed.
2.2 *Satyawati Sharma case judgment cannot be said as
per incuriam. The ratio in  **Gian Devi Anand case has neither
been ignored nor any contrary view has been taken by    *Satyawati
Sharma case. **Gian Devi Anand case  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 case 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  case justified
that there is ground to seek eviction on bona fide need.  The
observation in paragraph 39 of **Gian Devi Anand’s case suggests
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 case was clearly laid down in **Gian
VINOD KUMAR v. ASHOK KUMAR GANDHI
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Devi Anand case for striking down the unconstitutional part in
Section 14(1)(e). Thus, *Satyadevi Sharma case seeks support
of what has been done in **Gian Devi Anand’s case. [Para 30]
[1077-C-E]
2.3  #Gauri Shanker case was not a case in which provision
of Section 14(1)(e) came for consideration nor any observation
had been made with regard to ground of eviction available to
landlord with regard to commercial premises. #Gauri Shanker
case had dealt with entirely different provision, certain limitation
which was attached to residential premises itself to heritability.
The case of #Gauri Shanker case being on different provision
and premise, it cannot be said that #Gauri Shanker case was a
binding precedent to be followed by *Satyawati Sharma case.
Therefore, the judgment of *Satyawati Sharma case cannot be
held to be per incuriam. [Para 32] [1079-D-F]
**Gauri Shanker and Others v. Union of India and
Others (1994) 6 SCC 349 :  [1994] 3 Suppl. SCR 244
– distinguished.
2.4 The ratio in *Satyawati Sharma case 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 in ##Super Max
International Pvt. Ltd. case, a three Judge Bench judgment.  The
three-Judge Bench in ##Super Max International Pvt. Ltd. case
approved limited ratio in
*Satyawati Sharma case.
[Paras 39 and 40] [1083-D-E; 1084-A-B]
3.1 Non-reference of Section 25B in *Satyawati Sharma
case does not render the judgment per incuriam. Nothing in Section
25B can be read which runs counter to what has been laid down in
*Satyawati Sharma case. *Satyawati Sharma case was considering
the challenge to provisions of Section 14(1)(e) in so far as 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 case.  [Para 35] [1081-D-E]
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3.2 It was contended 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. This cannot be a
ground for referring the judgment in *Satyawati Sharma case to
larger Bench for reconsideration. *Satyawati Sharma case having
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. [Para 45] [1090-D-F]
3.3 In sofaras submission of the appellant that under Section
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. [Para 45]
[1091-F-G]
4. In *Satyawati Sharma case, this Court did not read down
the provision of Section 14(1)(e). This Court held that Section
14(1)(e) is not intra vires the doctrine of equality enshrined in
Article 14 of the Constitution. After considering all the aspects
of the matter, this Court in *Satyawati Sharma case had 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). The judgment of
*Satyawati Sharma case 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 of Article
14 of the Constitution. [Paras 52, 53 and 54] [1094-E, F-H;
1095-A, D-E]
5.1 In **Gian Devi Anand case in paragraph 39 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.  Therefore, it is 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. After more than a decade of the
VINOD KUMAR v. ASHOK KUMAR GANDHI
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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 Delhi. [Para 46] [1090-G-H; 1091-A-B]
Subramanian Swamy and Others v. Raju through
Member, Juvenile Justice Board and Another (2014) 8
SCC 390 : [2014] 9 SCR 283 – distinguished.
5.2 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 case 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.  Even though the 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. The Parliament in
enacting Act, 1995 accepts the suggestion of Constitution Bench
in **Gian Devi Anand case and hence what has been held by
*Satyawati Sharma case was felt both by this Court and
Legislature. Thus, there is no good ground to refer the judgment
of this Court in *Satyawati Sharma case for reconsideration by a
larger Bench. [Paras 55 and 57] [1095-F; 1096-A; 1097-A-B]
Malpe Vishwanath Acharya and Others v. State of
Maharashtra and Another (1998) 2 SCC 1 : [1997] 6
Suppl. SCR 717; Anuj Garg and Others v. Hotel
Association of India and Others (2008) 3 SCC 1 :
[2007] 12 SCR 991; Saradamani Kandappan v.
S. Rajalakshmi & Ors. (2011) 12 SCC 18 : [2011] 8
SCR 874; Modern Dental College and Research Centre
and Others v. State of Madhya  Pradesh and Others
(2016) 7 SCC 353; Subramanian Swamy and Others v.
Raju through Member, Juvenile Justice Board and
Another (2014) 8 SCC 390 – relied on.
State of Kerala and Others v. Mar Appraem Kuri
Company Limited and Another (2012) 7 SCC 106 :
[2012] 4 SCR 448 – distinguished.
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H.C.Sharma v. LIC of India (1973) ILR 1 Del 90;
Satyawati Sharma  (Dead) by LRs. v. Union of India
and Another (2008) 5 SCC 287 : [2008] 6 SCR 566;
Gian Devi Anand v. Jeevan Kumar and Others (1985)
2 SCC 683 : [1985] 1 Suppl. SCR 1 ; Harbilas Rai
Bansal v. State of Punjab and Another (1996) 1 SCC
1 : [1995]  6   Suppl.  SCR 178 ;  Rakesh Vij v. Raminder
Pal Singh Seth and Others (2005) 8 SCC 504 : [2005]
3 Suppl. SCR 777; State of  Maharasthra and Anr. v.
Super Max International (P) Ltd. and Ors. (2009) 9
SCC 772 : [2009] 13  SCR 801 – referred to..
Case Law Reference
[2008] 6 SCR 566
referred to
Para 5
(1973) ILR 1 Del 90
referred to
Para 14
[1985] 1 Suppl. SCR 1
referred to
Para 14
[1994] 3 Suppl. SCR 244
distinguished
Para 14
[1995] 6 Suppl. SCR 178
referred to
Para 14
[2005] 3 Suppl. SCR 777
referred to
Para 14
[2009] 13 SCR 801
referred to
Para 16
[1990] 3 SCR  111
followed
Para 22
[2010] 5 SCR 1
relied on
Para 23
[1997] 6 Suppl. SCR 717
relied on
Para 43
[2007] 12 SCR 991
relied on
Para 44
[2011] 8 SCR 874
relied on
Para 44
(2016) 7 SCC 353
distinguished
Para 47
(2014) 8 SCC 390
followed
Para 56
CIVIL APPELLATE JURISDICTION: Civil Appeal No.3793 of
2016
From the Judgment and Order dated 14.03.2016 of the High Court
of Delhi at New Delhi in R.C. Revision No. 534/2015
With
C.A. No. 8972-8973/17, 6063/19, 6064/19, 6066-72/19, 6073/19,
16916/17 and 6075/19
VINOD KUMAR v. ASHOK KUMAR GANDHI
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 Uday Gupta, Ms. Shivani Lal, Hiren Dasan, M.K. Tripathi, Vikas
Bansal, Ram Bhakt Aggarwal, Mohan Pandey, Uday Gupta, Ms. Shivani
Lal, Hiren Dasan, M. K. Tripathi, Vikas Bansal, Ram Bhakt Aggarwal,
G. L. Soni, Chand Qureshi, Amit Mishra, Mrs. Sarla Chandra, Kanwal
Chaudhary, Bimlesh Kumar Singh, Rajinder Mathur, Ashok Kr. Rohatgi,
M. K. Ravi, Shikhil Suri, Shiv Kumar Suri, Ms. Shilpa Saini, Ms. Vinishma
Kaul, Prem Paul Ahuja, Nikunj Dayal, Pramod Dayal, Ms. Payal Dayal,
Nitin K. Gupta, Parth Upadhyay, Ms. Manju Jetley, Advs. for the
Appellant.
N.K. Kaul, Sr. Adv. Jai Sahai Endlaw, Shivansh Soni, Arun K.
Sinha, Sinha Shrey Nikhilesh, Mohit Chaudhary, Ms. Puja Sharma,
Balwinder Singh Suri, Kunal Sachdeva, Anup Kumar Mishra, Rajesh
Goyal, Siddharth Mittal, Parbhat Kumar, V. K. Monga, Parmanand Gaur,
Mrs. Rachna Gupta, Gagan Gupta, Ms. Anushree Kapadia, Ms. Kavita
Bhardwaj, Advs. for the Respondent.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. These appeals, except one where leave to defend was granted,
have been filed against the judgment of Delhi High Court dismissing the
Rent Control Revisions filed by the appellants in which the order passed
by the Rent Controller rejecting the application filed by the appellants-
tenants seeking leave to defend in a  petition under Section 14(1)(e) of
the Delhi Rent Control Act, 1958 have been challenged.
3. The appellants are tenants occupying
non-residential buildings
for whose eviction petitions have been filed by the landlord on the ground
of bonafide need of landlord. The appellants at the very outset challenge
the maintainability of eviction petitions filed by the landlord under 14(1)(e)
on the ground of bonafide need. The facts are being taken from
C.A.No.3793 of 2016 (Vinod Kumar vs. Ashok Kumar Gandhi) for
considering the issues which have been raised by the learned counsel
for the appellant at the very beginning of the submission.
C.A.No.3793 of 2016(Vinod Kumar vs. Ashok Kumar Gandhi)
4. The appellant is a tenant of a shop bearing No.J-3/188-B, Nehru
Market, Rajouri Garden, New Delhi-110027. The respondent-landlord
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of the premises filed an Eviction Petition on 03.01.2011 to obtain
possession of the shop on the ground that son of the landlord was without
any job and the premises in question are bonafide required by his son to
start business of sale of readymade garments and accessories. It was
further pleaded in the application that the landlord has planned to make
a passage of around six feet wide throughout the length of the property,
from the front side, to have access to the stairs case in the rear side of
the property. The Rent Controller after receipt of the said application
issued notice to the appellant-tenant. On 25.01.2011, the appellant filed
an application seeking leave to defend along with a detailed affidavit in
support thereof. The landlord filed a reply to the application alongwith
counter-affidavit. The Additional Rent Controller vide order dated
05.05.2015 rejected the application seeking leave to defend filed by the
appellant. Aggrieved by the order of the Additional Rent Controller dated
05.05.2015 revision petition was filed by the appellant under Section
25-B(8) of the Delhi Rent Control Act, 1958 challenging the order or
Additional Rent Controller. The High Court vide its judgment dated
14.03.2016 dismissed the revision petition filed by the appellant. Aggrieved
by the judgment of the High Court, this appeal has been filed by the
appellant.
5. In C.A.No.3793 of 2016 various grounds have been raised in
support of the appeal. Other appeals
included in this group also raise
several grounds on the merits questioning the refusal to grant leave to
defend by the Rent Controller. However, on the opening of the
submissions, learned counsel for the appellants have confined their
submissions on the judgment of this Court in Satyawati Sharma (Dead)
by LRs. Vs. Union of India and another, (2008) 5 SCC 287.
Questioning the correctness of judgment of Satyawati Sharma various
grounds have been canvassed before us. Learned counsel for the
appellant submits that the said judgment needs to be referred to a larger
Bench to examine its correctness. It is the submission of the appellant
that the Eviction Petitions have been filed under 14(1)(e) for eviction
from non-residential premises on the projected bonafide need of landlord
only on the basis of judgment of Satyawati Sharma, which had, in fact,
re-written the provision of 14(1)(e). It is submitted that as per provision
of 14(1)(e) as contained in Delhi Rent Control Act, 1958, the landlord
was precluded from filing application for eviction on the ground of bonafide
need regarding non-residential premises. It is submitted that application
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[ASHOK BHUSHAN, J.]
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under 14(1)(e) was contemplated by the Act only with regard to premises
let for residential purposes.
6. Learned counsel appearing for the landlord has countered the
submission of the appellant and submits that the judgment of this Court
in Satyawati Sharma lays down the correct law and needs no reference
to a larger Bench.
7. Learned counsel for the parties have confined their submissions
only on the question as to whether judgment of this Court in Satyawati
Sharma needs reference to larger Bench or not. We, in these appeals,
thus, proceed to consider limited submission as to whether judgment of
this Court in Satyawati Sharma needs reference to larger bench or not.
The issues on merits of the order passed by the Rent Controller rejecting
leave to defend application are not being examined as of now.
8. Before we notice the respective submissions of the learned
counsel for the parties in detail, we may first notice the provisions of
Section 14 of Delhi Rent Control Act, 1958 as enacted. The Delhi Rent
Control Act, 1958 had 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
Delhi. The premises have been defined in Section 2(i) which is to the
following effect:
   “2(i) “premises” means any building or part of a building which
is, or is intended to be, let separately for use as a
residence or for
commercial use or for any other purpose, and includes—
    (i) the garden, grounds and outhouses, if any, appertaining to
such building or part of the building;
      (ii) any furniture supplied by the landlord for use in such building
or part of the building; but does not include a room in a hotel or
lodging house;”
9. Chapter III of Delhi Rent Control Act, 1958 deals with control
of eviction of tenants. Section 14(1) which has arisen for consideration
in these cases is as follows:
    “Section 14. Protection of tenant against eviction.- (1)
Notwithstanding anything to the contrary contained in any other
law or contract, no order or decree for the recovery of possession
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of any premises shall be made by any court or Controller in favour
of the landlord against a tenant:
       Provided that the Controller may, on an application made to
him in the prescribed manner, make an order for the recovery of
possession of the premises on one or more of the following grounds
only, namely:-
        (a) that the tenant has neither paid nor tendered the whole
of the arrears of the rent legally recoverable from him within two
months of the date on which a notice of demand for the arrears of
rent has been served on him by the landlord in the manner provided
in section 106 of the Transfer of Property Act, 1882 (4 of 1882).
        (b) that the tenant has, on or after the 9th day of June, 1952,
sub-let, assigned or otherwise parted with the possession of the
whole or any part of the premises without obtaining the consent in
writing of the landlord;
        (c) that the tenant has used the premises for a purpose other
than that for which they were let-
       (i) if the premises have been let on or after the 9th day of
June, 1952, without obtaining the consent in writing of the landlord;
or
          (ii) if the premises have been let before the said date without
obtaining his consent;
      (d) that the premises were let for use as a residence and
neither the tenant nor any member of his family has been residing
therein for a period of six months immediately before the date of
the filing of the application for the recovery of possession
thereof;
          (e) that the premises let for residential purposes are required
bona fide by the landlord for occupation as a residence for himself
or for any member of his family dependent on him, if he is the
owner thereof, or for any person for whose benefit the premises
are held and that the landlord or such person has no other
reasonably suitable residential accommodation;
       Explanation.-For the purposes of this clause, “premises let
for residential purposes” include any premises which having been
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[ASHOK BHUSHAN, J.]
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let for use as a residence are, without the consent of the landlord,
used incidentally for commercial or other purposes;
     (f) that the premises have become unsafe or unfit for human
habitation and are required bona fide by the landlord for carrying
out repairs which cannot be carried out without the premises being
vacated;
     (g) that the premises are required bona fide by the landlord for
the purpose of building or re-building or making thereto any
substantial additions or alterations and that such building or re-
building or addition or alteration cannot be carried out without the
premises being vacated;
   (h) that the tenant has, whether before or after the
commencement of this Act, built, acquired vacant possession of,
or been allotted, a residence:
     (i) that the premises were let to the tenant for use as a residence
by reason of his being in the service or employment of the landlord,
and that the tenant has ceased, whether before or after the
commencement of this Act, to be in such service or employment;
   (j) that the tenant has, whether before or after the
commencement of this Act, caused or permitted to be caused
substantial damage to the premises;
    (k) that the tenant has, notwithstanding previous notice, used
or dealt with the premises in a manner contrary to any condition
imposed on the landlord by the Government or the Delhi
Development Authority or the Municipal Corporation of Delhi
while
giving him a lease of the land on which the premises are situate;
     (l) that the landlord requires the premises in order to carry out
any building work at the instance of the Government or the Delhi
Development Authority or the Municipal Corporation of Delhi in
pursuance of any improvement scheme or development scheme
and that such building work cannot be carried out without the
premises being vacated.”
10. A perusal of the various grounds available to a landlord to
recover possession of any premises indicates that although several
grounds are available both for residential and non-residential premises
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but few grounds are available only for premises let for residential
purposes. The provision of Section 14(1)(e) which needs consideration
confine to the premises let for residential purposes which may be required
bonafide by the landlord for occupation as a residence for himself or for
any member of his family dependent on him. The explanation explains
that premises let for residential purposes which having been let for use
as a residence are, without the consent of the landlord, used incidentally
for commercial or other purposes are also included in residential premises.
11. The provisions of Section 14(1)(e) were resorted by the landlord
for seeking recovery of possession only with regard to residential premises
till part of Section 14(1)(e) has been struck down in Satyawati Sharma
case. This Court held that Section 14(1)(e) of Act, 1958 is violative of
the doctrine  of equality embodied in Article 14 of the Constitution in so
far as it discriminates between the premises let for residential and non-
residential purposes when the same are required bonafide by the landlord
for occupation for himself or for any member of his family dependent on
him and restricts the landlord’s right to seek eviction of the tenant from
the premises let for residential purposes only. This Court clarified that it
is not totally striking down of Section 14(1)(e) of the Act in its entirety
but it has struck down only the discriminatory portion of Section 14(1)(e).
In Satyawati
Sharma(AIR 2008 SC 3148) this Court held that striking
down the discriminatory portion of Section 14(1)(e) the remaining part
of the Section 14(1)(e) shall be read in the manner as extracted in
paragraph 39 of the judgment which is as follows:
“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) so that the
remaining part thereof may read as under:
“that the premises are required bona fide by the landlord for
himself or for any member of his family dependent on him, if
he is the owner thereof, or for any person for whose benefit
the premises are held and that the landlord or such person has
no other reasonably suitable accommodation.”
……………”
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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12. It is on the strength of the judgment of this Court in Satyawati
Sharma that after the said judgment landlords of non-residential premises
have also filed application for eviction under Section 14(1)(e) which are
dealt with by the Rent Controller as per procedure contained in Chapter
III-A of the Act, 1958. Chapter III-A contains ‘Summary Trial of Certain
Applications’. The Rent Controller treating the said procedure applicable
on applications filed by the landlords under Section 14(1)(e) has issued
summons to the tenants in the form prescribed in the Third Schedule and
have passed order either rejecting the leave to defend or granting leave
to defend  which orders, were challenged in the High Court giving rise to
these appeals.
13. After noticing the brief background of one of the issues which
has been pressed at the very outset, we now proceed to notice the
submissions of learned counsel for the parties in detail as canvassed
before us.
14. Shri Uday Gupta, learned counsel who led the submission on
behalf of the appellant has very ably and persuasively put forward his
submissions. Shri Gupta submits that validity of the provision of Section
14(1)(e) was challenged in Delhi High Court more than once which
challenge was repelled by the High Court. Shri Gupta submits that Delhi
High court in H.C.Sharma vs. LIC of India,(1973) ILR 1 Del 90, in
which restriction placed on the rights of landlord to evict the tenant
from
non-residential premises as discriminatory and violative of Section 19
and  14(1)(f) was considered and rejected. In Satyawati Sharma
appellant had filed an application for eviction of the tenant which
application was rejected by the Rent Controller on the ground that
application is not maintainable under Section 14(1)(e) for non-residential
purposes. Apart from a revision challenging the said order in the High
court a writ petition was also filed by Satyawati Sharma challenging
the constitutional validity of Section 14(1)(e) which challenge was repelled
by Delhi High Court in Satyawati Sharma vs. Union of India and others,
2002 (65) SRJ 615 (Full Bench), which judgment was subject matter of
the Civil Appeals before this Court giving rise to the judgment of this
Court in Satyawati Sharma (supra). Shri Gupta relying on the judgment
of Constitution Bench judgment in Gian Devi Anand vs. Jeevan Kumar
and others, (1985) 2 SCC 683, submits that Gian Devi Anand itself
has noticed the distinction in provision of Section 14(1)(e) which was
confined to residential premises and not available in case of commercial
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premises. It is submitted that Gian Devi Anand 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. The legislature having not yet enforced the Delhi Rent
Act, 1995 it was not open for this Court in Satyawati Sharma (supra)
to read down the provision of Section 14(1)(e). Shri Gupta submits that
the judgment of Satyawati Sharma is contrary to the Constitution Bench
judgment in Gian Devi Anand. A Bench of two Hon’ble Judges could
not have adopted the course which was not adopted by the Constitution
Bench itself in Gian Devi Anand. Shri Gupta further submits that
Satyawati Sharma failed to take notice of three-Judge Bench judgment
of this Court in Gauri Shanker and others vs. Union of India and
others, (1994) 6 SCC 349. It is submitted that view taken in paragraph
41 of Satyawati Sharma is per incuriam in view of the judgment already
rendered in Gauri Shanker case. Alternatively, Shri Gupta submits that
even judgment of Satyawati Sharma is not held to be per incuriam, the
said judgment necessarily needs to be revisited, in view of the fact that
the Satyawati Sharma did not consider several relevant provisions of
Act, 1958 including Section 25B and Section 19. It is submitted that
summary procedure which was brought in the statute by inserting Chapter
III-A by Act 18 of 1976 with effect from 01.12.1975 specially Section
25B which was
special procedure for the disposal of applications for
eviction on the ground of bonafide requirement under Section 14(1)(e)
was meant only for residential premises. Without adverting to Section
25B, this Court in Satyawati Sharma could not have held that Section
14(1)(e) should also be available for non-residential premises. The very
premise in Satyawati Sharma that Rent Control legislation did not make
any distinction in residential and non-residential purposes was erroneous,
which led  Satyawati Sharma to fall in error. The two-Judge Bench of
this Court in Satyawati Sharma has re-written Section 14(1)(e) which
could not have been done by the Court and matter ought  to have been
left for legislature as was said by the Constitution Bench in Gian Devi
Anand case. The Constitution Bench in Gian Devi Anand itself has
observed that there has been distinction between residential and
commercial premises in Delhi. Satyawati Sharma has relied on judgment
of this Court in Harbilas Rai Bansal vs. State of Punjab and another,
(1996) 1 SCC 1, and Rakesh Vij vs. Raminder Pal Singh Seth and
others, (2005) 8 SCC 504, which were the judgments on East Punjab
Urban Rent Restriction Act, 1949, and could not have been applied with
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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regard to interpretation of Delhi Rent Control Act, 1958. In East Punjab
Urban Rent Restriction Act the remedy for landlord for seeking
eviction on the bonafide requirement both for residential and non-
residential premises was very much available from the very beginning
and it was, for the first time, sought to be taken away by 1956 Amendment
which amendment was struck down by this Court. Those cases were
not relevant for Delhi Rent Control Act. The tenants occupying non-
residential premises are dependent on their livelihood. Applying summary
procedure as prescribed under Section 25B brings hardship in denying
them protection of law since they are not able to defend their cases on
merits. Referring to statement of Minister, Shri H.K.L. Bhagat on debate
in the House on 1976 Amendment, it is submitted that statement was
made that Section 25B was not to apply to non-residential premises
since under Section 14(1)(e) eviction can be sought only with regard to
residential premises. It is submitted that due to Explanation to Section
14(1)(e) having held to be redundant the benefit given under Section 19
is also denied to the tenant. Section 19(2) has been rendered otiose. The
principle of reading down was not attracted in the present case. It is
submitted that reading down cannot be used when the legislative intent
is clear.
15. Satyawati Sharma even does not refer to Sections 14A to
14D which were also inserted by Act
18 of 1976. There is reasonable
doubt of correctness of Satyawati Sharma, hence, it needs to be referred
to a larger Bench for final opinion. Legislature never intended to apply
Section 25B to commercial tenancy.  Since, the procedure of Section
25B was harsh which was made looking to bonafide need for residential
premises, Section 25B should not be ipso facto applied to commercial
tenancy. In other case, the tenant has right to file written statement
which is now denied by applying procedure under Section 25B. Section
25B having not referred to it is to be seen as to whether Section 25B
shall apply. In any view of the matter judgment of Satyawati Sharma
should be applied to the tenancy coming into the existence after the
judgment of this Court in Satyawati Sharma case.
16. Shri Neeraj Krishan Kaul, senior counsel, led arguments on
behalf of the landlord. Shri Kaul submits that this Court in Satyawati
Sharma found Section 14(1)(e) to be ultra vires to Article 14 of the
Constitution. However, instead of striking down the provisions altogether,
this Court removed the offending part of the legislation by obliterating
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the classification between residential and non-residential premises and
holding that Section 14(1)(e) would apply equally to residential and non-
residential premises. Satyawati Sharma took notice of Constitutional
Bench judgment in Gian Devi Anand(supra)which had suggested the
Legislature to remove the discrimination between residential and non-
residential premises in the Delhi Rent Control Act, 1958 with regard to
seeking eviction by landlord on the ground of bona fide need. When the
Legislation had not acted in removing aforesaid classification, this Court
applying the doctrine of temporal reasonableness held that a Legislation
which may have been reasonable and rational at the time of enactment
may over passage of time become arbitrary, unreasonable and violative
of Article 14. This Court in Satyawati Sharma took judicial notice of the
fact that the Delhi Rent Act, 1995 which was a subsequent Legislation,
but yet to be notified by the Central Government, did not distinguish
between the residential and non-residential premises in sofaras landlord’s
right to seek eviction on bona fide need is concerned. The observations
made in Gian Devi Anand were in the background of a discussion in
relation to heritability of tenancies vis-à-vis Section 2(l)of Delhi Rent
Control Act, 1958. The judgment of this Court in Satyawati Sharma has
also been affirmed by a three-Judge Bench in State of Maharasthra
and Anr. Vs. Super Max International (P) Ltd. and Ors.,
(2009) 9
SCC 772.
17. This Court in Harbilas Rai Bansal(supra) and Rakesh Vij
(supra)had held no distinction can be made with regard to residential
tenancy and non-residential tenancy in sofaras eviction is concerned at
the instance of the landlord on the ground of bona fide need. The judgment
of Satyawati Sharma cannot be held to be any kind of judicial Legislation.
What has been done in Satyawati Sharma is to only strike down the
unconstitutional portion of Section 14(1)(e). The part of Section 14(1)(e)
which is severable has been retained. The judgment of Satyawati Sharma
cannot be held to be per incuriam either Gian Devi Anand case or
Gauri Shanker case. The observations in Gauri Shanker were in the
background of Section 2(l)(iii) of Act, 1958 wherein heritability of tenancy
is provided.
18. There can be no distinction in sofaras bona fide need of the
landlord is concerned regarding residential and commercial premises.
The observations of three-Judge Bench in Super Max International
are not obiter but are the judicial dicta which has re-confirmed the
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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principles in Satyawati Sharma case. Replying the submission of the
appellant in sofaras Section 25B of the Act is concerned, Shri Kaul
submits that procedure for eviction cannot be different in sofaras
residential and commercial tenancies are concerned. Adopting different
procedures for eviction in the above two cases itself be treated as
discriminatory. There are various safeguards under Act, 1958 which
amply protect the tenant. There is nothing in the Satyawati Sharma
judgment which can be said to be per incuriam. The appellant is asking
this Court to violate certainty of law and comity of the Courts.  There is
no ground today to refer the judgment of Satyawati Sharma case for
consideration of a larger Bench. The judgment of this Court in Satyawati
Sharma case is just, reasonable and protects both landlord and tenant.
The provision of Section 14(1)(e) which was enacted at the time when
circumstances were different can no longer be said to be reasonable
and valid and has rightly done away with the unjust classification between
residential and commercial in sofaras eviction on the ground of bona
fide need of the landlord was concerned.
19. The Judgement of this Court in Satyawati Sharma has stood
test of time and at this distance of time this Court cannot revive the
unjust classification between residential and non-residential premises in
sofaras landlord’s right of eviction is concerned on the ground of bona
fide
need. Shri Kaul submits that there is absolutely no reason for referring
the Satyawati Sharma case for consideration of a larger Bench. Shri
Kaul further has referred to the order dated 20.07.2015 passed in Special
Leave Petition (C) No.31687 of 2014, Jag Mohini Kaur vs. Tilak Raj
and ors., where this Court after noticing the judgment of this Court in
Satyawati Sharma dismissed the petition of tenant wherein submission
was sought to be raised that landlord cannot file an application under
Section 14(1)(e) with regard to non-residential premises. Satyawati
Sharma has time and again relied by this Court and the High Courts and
there is no occasion to have any re-look in these appeals. The mere fact
that the procedure under Section 25B is applicable with regard to non-
residential premises also has no bearing on the unconstitutionality of part
of the provision of Section 14(1)(e). No distinction can be made with
regard to procedure applicable regarding residential and non-residential
premises. Shri Kaul submits that the prayer of the appellant to refer the
judgment of Satyawati Sharma to a larger Bench be rejected and the
appeals be heard and dismissed.
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20. From the submissions of learned counsel for the parties as
noted above following two questions arise for consideration by us:
(1)  Whether the judgment of this Court in Satyawati Sharma
(supra) is per incuriam.
(2) Whether there are any other grounds to refer the judgment of
this Court in Satyawati Sharma for reconsideration by a larger
Bench.
Question No.1
21. The submission of the learned counsel for the appellant is that
Satyawati Sharma having not followed the binding Constitution Bench
judgment in Gian Devi Anand and three-Judge Bench judgment in Gauri
Shanker is a judgment rendered per incuriam. Further, submission is
that Satyawati Sharma ignores provisions of Section 25B of the Delhi
Rent Control Act. Hence, the judgment in Satyawati Sharma is per
incuriam.
22. The principle of per incuriam has been developed by the
English Courts in relaxation of the rule of stare decisis. In practice per
incuriam is per ignoratium. The above principle has been developed,
accepted, approved and adopted by this Court while interpreting Article
141 of the Constitution which embodies the doctrine of precedent as a
matter of law.  A Constitution Bench in Punjab Land Development
and Reclamation Corporation Ltd., Chandigarh vs. Presiding
Officer, Labour Court, Chandigarh and another, (1990) 3 SCC
682 dealing with question of per incuriam laid down following in
paragraph 40:
“40. We now deal with the question of per incuriam by reason
of allegedly not following the
Constitution Bench decisions. The
Latin expression per incuriam means through inadvertence. A
decision can be said generally to be given per incuriam when
this Court has acted in ignorance of a previous decision of its own
or when a High Court has acted in ignorance of a decision of this
Court. It cannot be doubted that Article 141 embodies, as a rule
of law, the doctrine of precedents on which our judicial system is
based. In Bengal Immunity Company Ltd. v. State of Bihar,
AIR 1955 SC 66, it was held that the words of Article 141, “binding
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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on all courts within the territory of India”, though wide enough to
include the Supreme Court, do not include the Supreme Court
itself, and it is not bound by its own judgments but is free to
reconsider them in appropriate cases. This is necessary for proper
development of law and justice. May be for the same reasons
before judgments were given in the House of Lords and Re
Dawson’s Settlement Lloyds Bank Ltd. v. Dawson, (1966) 3 All
ER 68, on July 26, 1966 Lord Gardiner, L.C. made the following
statement on behalf of himself and the Lords of Appeal in
Ordinary:
“Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the
conduct of their affairs, as well as a basis for orderly
development of legal rules. Their Lordships nevertheless
recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify
their present practice and, while treating former decisions of
this House as normally binding, to depart from a previous
decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have
been entered into and
also the especial need for certainty as to the criminal law.”
23. In V.Kishan Rao vs. Nikhil Super Specially Hospital and
another, 2010(5) SCC 513, this Court again explaining the concept of
per incuriam laid down following in paragraph 54:
“54. When a judgment is rendered by ignoring the provisions of
the governing statute and earlier larger Bench decision on the
point such decisions are rendered per incuriam. This concept of
per incuriam has been explained in many decisions of this Court.
Sabyasachi Mukharji, J. (as his Lordship then was) speaking for
the majority in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602,
explained the concept in the following words: (SCC p. 652, para
42)
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“42. … ‘Per incuriam’ are those decisions given in ignorance
or forgetfulness of some inconsistent statutory provision or of
some authority binding on the court concerned, so that in such
cases some part of the decision or some step in the reasoning
on which it is based, is found, on that account to be demonstrably
wrong.”
Subsequently also in the Constitution Bench judgment of this Court
in Punjab Land Development and Reclamation Corpn. Ltd. v.
Labour Court, (1990) 3 SCC 682, similar views were expressed
in para 40 at p. 705 of the report.”
24. When a Court delivers judgment ignoring the binding precedent
of a larger Bench, the judgment so delivered is held to be per incuriam
and has no precedential value. Whether the judgment of Satyawati
Sharma can be said to be per incuriam. The Constitution Bench judgment
of Gian Devi Anand is first to be examined. The Constitution Bench
judgment in Gian Devi Anand(supra) was delivered by Amarendra
Nath Sen, J. with which opinion Bhagwati, J. concurred. The question
which arose for consideration was noticed in paragraph 5 of the judgment.
“Amarendra Nath Sen, J.- The question for consideration in this
appeal by special leave is whether under the Delhi Rent Control
Act, 1958 (for the sake of brevity hereinafter referred to as ‘the
Act’), the statutory tenancy, to use the popular phraseology, in
respect of commercial premises is heritable or not. To state it
more precisely, the question is whether the heirs of a
deceased
tenant whose contractual tenancy in respect of commercial
premises has been determined, are entitled to the same protection
against eviction afforded by the Act to the tenant.”
25. In the above case landlord has determined tenancy of the
tenant and thereafter filed a petition under Section 14 for eviction of the
tenant on various grounds. Tenancy was of a shop situate in New Market,
West Patel Nagar, New Delhi. Rent Controller had allowed the petition
of the landlord on the ground of default in payment of rent rejecting
other grounds. Landlord preferred an appeal to which tenant had also
filed cross-objection. During pendency of the appeal tenant died on
05.09.1977 in whose place the appellant, the widow of deceased tenant
was impleaded. Cross-objection of tenant was allowed. Appellate Court
remanded the matter to decide the question of sub-letting. The widow of
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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deceased tenant filed an appeal before the High Court to which landlord
filed a cross-objection. The High Court held that on the death of the
statutory tenant, the heirs of the statutory tenant had no right to remain
in possession of the premises, as statutory tenancy was not heritable
and the protection afforded to a statutory tenant by the Act is not available
to the heirs and legal representatives of the statutory tenant. A decree
for eviction was passed by the High Court which judgment was challenged
by the widow of the deceased tenant before this Court. This Court held
that Act does not make any distinction between ‘so-called statutory
tenant’ and ‘contractual tenant’ but seeks to restrict the right of the heirs
of such tenant in respect of residential premises. One more submission
was raised before this Court that in view of the amendment of definition
of ‘tenant’ under Section 2(l)(iii) right of continuing in possession in
respect of residential premises only and not with regard to so-called
statutory tenant in respect of commercial premises, rejecting the said
submission the Court laid down following in paragraph 31:
 “31……..Section 2(1)(iii) of the Act does not create any
additional or special right in favour of the heirs of the `so called
statutory tenant’ on his death, but seeks to restrict the right of the
heirs of such tenant in respect of residential premises. As the
status and rights of a contractual
tenant even after determination
of his tenancy when the tenant is at times described as the statutory
tenant, are fully protected by the Act and the heirs of such tenants
become entitled by virtue of the provisions of the Act to inherit
the status and position of the statutory tenant on his death, the
Legislature which has created this right has thought it fit in the
case of residential premises to limit the rights of the heirs in the
manner and to the extent provided in Section 2(1)(iii). It appears
that the Legislature has not thought it fit to put any such restrictions
with regard to tenants in respect of commercial premises in this
Act.”
26. The Constitution Bench of this Court also noticed Section
14(1)(e) which 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. The Constitution Bench
concluded that commercial tenancy is heritable under the scheme of the
Act. In paragraph 34 following has been observed:
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   “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. S. 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 a commercial
premises no such provision is made. Similarly, S. 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. A tenant
of any commercial premises has necessarily to use the premises
for business purposes. 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 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 stand-still. It is
common knowledge that it is much more difficult to find suitable
business premises than to find suitable premises for
residence………
   We are of the opinion that in case of commercial premises
governed by the Delhi Act, the Legislature has not thought it fit in
the light of the situation at Delhi to place any kind of restriction on
the ordinary law of inheritance with regard to succession. 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 business as a whole. It
might have been open to the Legislature to limit or restrict the
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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right of inheritance with regard to the tenancy as the Legislature
had done in the case of the tenancies with regard to the residential
houses but it would not have been open to the Legislature to alter
under the Rent Act, the Law of Succession regarding the business
which is a valuable heritable right and which must necessarily
devolve on all the heirs in accordance with law. The absence of
any provision restricting the heritability of the tenancy in respect
of the commercial premises only establishes that commercial
tenancies notwithstanding the determination of the contractual
tenancies will devolve on the heirs in accordance with law and
the heirs who step into the position of the deceased tenant will
continue to enjoy the protection afforded by the Act and they can
only be evicted in accordance with the provisions of the
Act……………”
27. After laying down above following was held in paragraph 38:
“38.We must, therefore, hold that Wasti Ram enjoyed the statute
of the premises in dispute even after determination of the
contractual tenancy and notwithstanding the termination of the
contractual tenancy, Wasti Ram had an estate or interest in the
demised premises; and tenancy rights of Wasti Ram did not come
to an end with his death but they devolved on the heirs and legal
representative of Wasti Ram. The heirs and legal representatives
of Wasti Ram step into his position and they are entitled to the
benefit and
protection of the Act. We must, accordingly, hold that
the High Court was not right in coming to the conclusion that the
heirs of Wasti Ram, the so called statutory tenant, did not have
any right to remain in possession of the tenanted premises and did
not enjoy any protection under the Act. It appears that the High
Court passed an order for eviction against the heirs of Wasti Ram
only on this ground without going into the merits of the appeal
filed by the appellant in the High Court against the order of remand
and also without considering the cross-objections filed in the High
Court by the landlord. We accordingly, set aside the judgment and
order of the High Court and we remand the case to the High
Court for decision of the appeal and the cross objection on merits.
The appeal is accordingly allowed to the extent indicated above
with no order as to costs.”
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28. 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
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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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 well.”
29. Now, we revert back to Satyawati Sharma’s 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
21states 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.”
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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 Anand’s 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 Anand’s case.
31. 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 34. The ground of distinction was repelled
and following was laid down in paragraph 12:
“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
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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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(l)(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
Orissa, AIR 1955 SC 166, 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)
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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(l)(iii) of the Act on the rights
of the heirs of the statutory tenants of residential premises are
reasonable, fair and just in all the circumstances of the case. There
is no violation of the guarantee enshrined in Article 14 or Article
21 of the Constitution of India.”
32. 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 incuriam.
33. The next limb of attack of the appellant on Satyawati Sharma
is on the basis of non-consideration of Section 25B of the Act, 1958.
Section 25A to Section 25C were inserted by Act 18 of 1976 w.e.f.
01.12.1975. Section 25 B provided for special procedure for the disposal
of applications for eviction on the ground of bona fide requirement.
Learned counsel for the appellant has also relied on Parliamentary debate
on Delhi Rent Control Amendment Bill, 1976. Learned counsel submits
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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that Hon’ble Minister of State in the Ministry of Works and Housing on
the Floor of the House stated the following:
“An apprehension was also expressed that commercial tenants
would be evicted through summary procedure. First of all, this
procedure is confined to residential premises and secondly, it is
applicable only to Government servants and bona fide necessities.
Nothing else. It does not apply to commercial premises and,
therefore, there is no question of tenants being evicted from
commercial premises.”
34. 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 Hon’ble 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 25B.
35.The question is as to whether non-consideration of Section
25B by Satyawati Sharma renders judgment of Satyawati Sharma per
incuriam. Satyawati 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 in Section 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 incuriam.
36. We may also at this stage notice one submission raised by the
counsel for the respondent that judgment of Satyawati Sharma has been
affirmed by three-Judge Bench judgment in Super Max International
Pvt. Ltd. (supra).  The submission is countered by the counsel for the
appellant who contends that Super Max was a case which was dealing
entirely different subject and it cannot be said that ratio of Satyawati
Sharma has been affirmed in Super Max.
37. We may now notice judgment of Super Max in some detail.
Super Max was a case where this Court had occasion to consider Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947. In the above
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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 appellant. In paragraph 8 this Court noticed:
“8. Of  late, orders are coming to this Court where, in cases
arising from ejectment proceedings, the High Courts, with a view
to strike a balance between the competing interests of the landlord
and the tenant, pass interim orders asking the tenant to pay to the
landlord or deposit in Court, as monthly rent, certain sum fixed by
it (that, according to the High Court, should be the reasonable
market rent for the tenanted premises), far in excess of the existing
monthly rent.”
38. Three-Judge Bench in the above case noticed both the
judgments in Gian Devi Anand and Satyawati Sharma. The judgment
of Satyawati Sharma specifically paragraphs 12, 29 and 32 have been
considered in paragraphs 67 to 70 of the judgment which are as follows:
“67. The way this Court has been looking at the relationship
between the landlord and the tenant in the past and the shift in the
Court’s approach in recent times have been examined in some
detail in the decision in Satyawati Sharma v. Union of India,
(2008) 5 SCC 287. In that decision one of us (Singhvi, J.) speaking
for the Court referred to a number of earlier decisions of the
Court and (in para 12 of the judgment) observed as follows: (SCC
pp. 304-05)
“12. Before proceeding further we consider it necessary to
observe that there has been a definite shift in the Court’s
approach while interpreting the rent control legislations. An
analysis of the judgments of 1950s to early 1990s would indicate
that in majority of cases the courts heavily leaned in favour of
an interpretation which would benefit the tenant—Mohinder
Kumar v. State of Haryana, (1985) 4 SCC 221,
Prabhakaran Nair v. State of T.N. (1987) 4 SCC 238, D.C.
Bhatia v. Union of India, (1995) 1 SCC 104 and C.N.
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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Rudramurthy v. K. Barkathulla Khan, (1998) 8 SCC 275.
In these and other cases, the Court consistently held that the
paramount object of every rent control legislation is to provide
safeguards for tenants against exploitation by landlords who
seek to take undue advantage of the pressing need for
accommodation of a large number of people looking for a house
on rent for residence or business in the background of acute
scarcity thereof. However, a different trend is clearly discernible
in the later judgments.”
68. The learned Judge then referred to some later decisions and
(in para 14 at SCC p. 306 of the judgment) quoted a passage from
the decision in Joginder Pal v. Naval Kishore Behal, (2002) 5
SCC 397 to the following effect: (Joginder Pal case, SCC p.
404, para 9)
“14. … ‘9. … The courts have to adopt a reasonable and
balanced approach while interpreting rent control
legislations starting with an assumption that an equal
treatment has been meted out to both the sections of the
society. In spite of the overall balance tilting in favour of
the tenants, while interpreting such of the provisions as to
take care of the interest of the landlord the court should
not hesitate in leaning in favour of the landlords. Such
provisions are engrafted in rent control legislations to take
care of those situations where the landlords too are weak
and feeble and feel humble.’ “
 (emphasis in original)
69. Commenting upon the Full
Bench decision of the Delhi High
Court that had upheld the constitutional validity of Section 14(1)(e)
of the Delhi Rent Control Act and that came under challenge in
Satyawati Sharma, Singhvi, J. (in para 29 of the judgment)
observed as follows: (SCC p. 318)
“29. … It is significant to note that the Full Bench did not, at
all, advert to the question whether the reason/cause which
supplied rationale to the classification continued to subsist even
after lapse of 44 years and whether the tenants of premises let
for non-residential purposes should continue to avail the benefit
of implicit exemption from eviction in the case of bona fide
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requirement of the landlord despite see-saw change in the
housing scenario in Delhi and substantial increase in the
availability of buildings and premises which could be let for
non-residential or commercial purposes.”
70. The decision in Satyawati Sharma then referred to the doctrine
of temporal reasonableness and in para 32 observed as follows:
(SCC p. 320)
“32. It is trite to say that legislation which may be quite
reasonable and rational at the time of its enactment may with
the lapse of time and/or due to change of circumstances become
arbitrary, unreasonable and violative of the doctrine of equality
and even if the validity of such legislation may have been upheld
at a given point of time, the Court may, in subsequent litigation,
strike down the same if it is found that the rationale of
classification has become non-existent.”
39. 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 Court’s 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 with Section 14(1)(e) of the Delhi
Rent Control Act. Thus, three-Judge Bench had the basis of Satyawati
VINOD KUMAR v. ASHOK KUMAR GANDHI
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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 footing.
Question No.2
41  We having rejected the submission of learned counsel for the
appellant that the judgment of Satyawati Sharma is per incuriam.
Whether there is any ground or basis on which the judgment of Satyawati
Sharma can be referred for re-consideration is the next question to be
answered.
42. Learned counsel for the appellant has not referred to any
judgment of this Court which has sounded different note or which has
taken a contrary view to what has held in Satyawati Sharma case.
What is emphasised by the learned counsel for the appellant is, that as
the Legislature has never intended to apply Section 14(1)(e)for
commercial premises which was clear from legislative intendment,
Satyawati Sharma could not have taken a view which is contrary to the
legislative intendment. By 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 its enactment may with the lapse
of time
and due to change of circumstances become arbitrary,
unreasonable and violative of the doctrine of equality. Various judgment
pertaining to Rent Control Legislations have been referred to and relied
in Satyawati Sharma itself. Satyawati Sharma also dealt with the
reasons which were given by the Delhi High court in upholding Section
14(1)(e) in paragraph 31 of the judgment.  Satyawati Sharma observed
following in paragraph 31:
  “31. In H.C. Sharma vs. Life Insurance Corporation of India
(supra), the Division Bench of the High Court, after taking
cognizance of the acute problem of housing created due to partition
of the country, upheld the classification by observing that the
Government could legitimately restrict the right of the landlord to
recover possession of only those premises which were let for
residential purposes. The Court felt that if such restriction was
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not imposed, those up-rooted from Pakistan may not get settled in
their life. As of now a period of almost 50 years has elapsed from
the enactment of the 1958 Act. During this long span of time
much water has flown down the Ganges. Those who came from
West Pakistan as refugees and even their next generations have
settled down in different parts of the country, more particularly in
Punjab, Haryana, Delhi and surrounding areas. They are occupying
prime positions in political and bureaucratic set up of the
Government and have earned huge wealth in different trades,
occupation, business and similar ventures. Not only this, the
availability of buildings and premises which can be let for non-
residential or commercial purposes has substantially increased.
Therefore, the reason/cause which prompted the Division Bench
of the High Court to sustain the differentiation/classification of
the premises with reference to the purpose of their user, is no
longer available for negating the challenge to Section 14(1)(e) on
the ground of violation of Article 14 of the Constitution, and we
cannot uphold such arbitrary classification ignoring the ratio of
Harbilas Rai Bansal vs. State of Punjab (supra), which was
reiterated in Joginder Pal vs. Naval Kishore Behal(supra) and
approved by three- Judges Bench in Rakesh Vij vs. Dr. Raminder
Pal Singh Sethi (supra). In our considered view, the discrimination
which was latent in Section 14(1)(e) at the time of enactment of
1958 Act
has, with the passage of time (almost 50 years) has
become so pronounced that the impugned provision cannot be
treated intra vires Article 14 of the Constitution by applying any
rational criteria.”
43. The judgment of this Court with regard to Rent Control
Legislation, namely, 1986 (3) SCC 385 and Malpe Vishwanath Acharya
and others vs. State of Maharashtra and another, (1998) 2 SCC 1,
has been referred to and relied by Satyawati Sharma. In Malpe
Vishwanath Acharya, a three-Judge Bench of this Court laid down
following in paragraphs 8 and 31:
“8. There is considerable judicial authority in support of the
submission of learned counsel for the appellants that with the
passage of time a legislation which was justified when enacted
may become arbitrary and unreasonable with the change in
circumstances. In the State of M.P. v. Bhopal Sugar Industries
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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Ltd., AIR 1964 SC 1179, dealing with a question whether
geographical classification due to historical reasons would be valid
this Court at SCR p. 853 observed as follows:
“Differential treatment arising out of the application of the laws
so continued in different regions of the same reorganised State,
did not therefore immediately attract the clause of the
Constitution prohibiting discrimination. But by the passage of
time, considerations of necessity and expediency would be
obliterated, and the grounds which justified classification of
geographical regions for historical reasons may cease to be
valid. A purely temporary provision which because of compelling
forces justified differential treatment when the Reorganisation
Act was enacted cannot obviously be permitted to assume
permanency, so as to perpetuate that treatment without a
rational basis to support it after the initial expediency and
necessity have disappeared.”
31. Taking all the facts and circumstances into consideration we
have no doubt that the existing provisions of the Bombay Rent
Act relating to the determination and fixation of the standard rent
can no longer be considered to be reasonable. The said provisions
would have been struck down as having now become
unreasonable and arbitrary but we think it is not necessary to
strike down the same in view of the fact that the present extended
period of the Bombay Rent Act comes to an end on 31-3-1998.
The
Government’s thinking reflected in various documents itself
shows that the existing provisions have now become unreasonable
and, therefore, require reconsideration. The new bill is under
consideration and we leave it to the legislature to frame a just and
fair law keeping in view the interests of all concerned and in
particular the resolution of the State Ministers for Housing of 1992
and the National Model Law which has been circulated by the
Central Government in 1992. We are not expressing any opinion
on the provisions of the said Model Law but as the same has been
drafted and circulated amongst all the States after due deliberation
and thought, there will, perhaps, have to be very good and compelling
reasons in departing from the said Model Law. Mr Nargolkar
assured us that this Model Law will be taken into consideration in
the framing of the proposed new Rent Control Act.”
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44. The above principles have been reiterated in following
judgments:
(i) Anuj Garg and Others Vs. Hotel Association of India and
Others, (2008) 3 SCC 1 reiterated the principle that a statute although
could have been held to be a valid piece of legislation keeping in view
the societal condition of those times, but with the changes occurring
therein, such a law can also be declared invalid.  In Paragraph Nos. 7, 8
and 9, following has been laid down:-
“7. The Act is a pre-constitutional legislation. Although it is saved
in terms of Article 372 of the Constitution, challenge to its validity
on the touchstone of Articles 14, 15 and 19 of the Constitution of
India, is permissible in law. While embarking on the questions
raised, it may be pertinent to know that a statute although could
have been held to be a valid piece of legislation keeping in view
the societal condition of those times, but with the changes occurring
therein both in the domestic as also in international arena, such a
law can also be declared invalid.
8. In John Vallamattom v. Union of India, (2003) 6 SCC 611,
this Court, while referring to an amendment made in UK in relation
to a provision which was in pari materia with Section 118 of the
Indian Succession Act, observed: (SCC p. 624, para 28)
“28. … The constitutionality of a provision, it is trite, will have
to be judged keeping in view the interpretative changes of the
statute affected by passage of time.”
   Referring to the changing
legal scenario and having regard to
the Declaration on the Right to Development adopted by the World
Conference on Human Rights as also Article 18 of the United
Nations Covenant on Civil and Political Rights, 1966, it was held:
(John Vallamattom case, SCC p. 625, para 33)
“33. It is trite that having regard to Article 13(1) of the
Constitution, the constitutionality of the impugned legislation is
required to be considered on the basis of laws existing on 26-
1-1950, but while doing so the court is not precluded from taking
into consideration the subsequent events which have taken place
thereafter. It is further trite that the law although may be
constitutional when enacted but with passage of time the same
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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may be held to be unconstitutional in view of the changed
situation.”
9. Changed social psyche and expectations are important factors
to be considered in the upkeep of law. Decision on relevance will
be more often a function of time we are operating in. Primacy to
such transformation in constitutional rights analysis would not be
out of place……………………………….
xxxxxxxxxxxxxxxxxx”
(ii) In Saradamani Kandappan Vs. S. Rajalakshmi & Ors.,
(2011) 12 SCC 18, Justice R.V. Raveendran speaking for the Court
reiterated the same principles in paragraph Nos. 38 and 39 in the following
words:-
“38. It is now well settled that laws, which may be reasonable
and valid when made, can, with passage of time and consequential
change in circumstances, become arbitrary and unreasonable. In
Rattan Arya v. State of T.N.7 this Court held: (SCC pp. 389-90,
para 4)
“4. … We must also observe here that whatever justification
there may have been in 1973 when Section 30(ii) was amended
by imposing a ceiling of Rs 400 on rent payable by tenants of
residential buildings to entitle them to seek the protection of
the Act, the passage of time has made the ceiling utterly
unreal. We are entitled to take judicial notice of the enormous
multifold increase of rents throughout the country, particularly
in urban areas. It is common knowledge today that the
accommodation which one could have possibly got for Rs 400
per month in 1973 will today cost at least
five times more. In
these days of universal, day-to-day escalation of rentals any
ceiling such as that imposed by Section 30(ii) in 1973 can only
be considered to be totally artificial and irrelevant today. As
held by this Court in Motor General Traders v. State of A.P.8a
provision which was perfectly valid at the commencement
of the Act could be challenged later on the ground of
unconstitutionality and struck down on that basis. What
was once a perfectly valid legislation, may in course of
time, become discriminatory and liable to challenge on the
ground of its being violative of Article 14.”
   (emphasis supplied)
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39. In Malpe Vishwanath Acharya v. State of Maharashtra,
(1998) 2 SCC 1, a three-Judge Bench of this Court considered
the validity of determination of standard rent by freezing or pegging
down the rent as on 1-9-1940 or as on the date of first letting,
under Sections 5(10)(b), 7, 9(2)(b) and 12(3) of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947. This Court
held that the said process of determination under the Act, which
was reasonable when the law was made, became arbitrary and
unreasonable in view of constant escalation of prices due to
inflation and corresponding rise (sic fall) in money value with the
passage of time. This Court held: (SCC pp. 22-23, paras 29 & 31)
“29. Insofar as social legislation, like the Rent Control Act is
concerned, the law must strike a balance between rival interests
and it should try to be just to all. The law ought not to be unjust
to one and give a disproportionate benefit or protection to
another section of the society. When there is shortage of
accommodation it is desirable, nay, necessary that some
protection should be given to the tenants in order to ensure
that they are not exploited. At the same time such a law has to
be revised periodically so as to ensure that a disproportionately
larger benefit than the one which was intended is not given to
the tenants…….
*
*
*
31. Taking all the facts and circumstances into consideration
we have no doubt that the existing provisions of the Bombay
Rent Act
relating to the determination and fixation of the
standard rent can no longer be considered to be reasonable.”
It is relevant to note that Justice Raveendran has placed reliance
on earlier judgments of this Court in Rattan Arya Vs. State of Tamil
Nadu (supra) and Malpe Vishwanath Acharya (supra), which
judgments have already been referred to and relied by this Court in
Satyawati Sharma’s case.  Thus, the proposition, which was laid down
in Satyawati Sharma’s case relying on above two judgments have again
been reiterated by this Court in Sardarmani Kandappan (supra) in
Paragraph Nos. 38 and 39, as noted above.
(iii) The Constitution Bench of this Court in Modern Dental
College and Research Centre and Others Vs. State of Madhya
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]
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Pradesh and Others, (2016) 7 SCC 353, speaking through Dr. Justice
A.K. Sikri in paragraph Nos. 69 and 92, following has been observed:-
“69. ………………………………………It is rightly said that
the law is not an Eden of concepts but rather an everyday life of
needs, interests and the values that a given society seeks to realise
in a given time. The law is a tool which is intended to provide
solutions for the problems of human being in a society.
92. ………………………………Law is not static, it has to
change with changing times and changing social/societal
conditions.”
45. 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. Satyawati Sharma having 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 under
Section 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.
46. There is one more aspect of the matter which needs to be
noted. 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
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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 than
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
Delhi. In Act, 1995 the definition of premises as was contained in Act,
1958 remained same. With regard to protection of tenant against eviction
a new Section 22(r) which provides as follows:
    “Section 22(r) that the premises let for residential or non-
residential purposes are required, whether in the same form or
after re-construction or re-building, by the landlord for occupation
for residential or non-residential purpose for himself or for any
member of his family if he is the owner thereof, or for any person
for whose benefit the premises are held and that the landlord or
such person has no other reasonably suitable accommodation:
     Provided that where the landlord has acquired the premises
by transfer, no application for the recovery of possession of such
premises shall lie under this clause unless a period of three years
has elapsed from the date of the acquisition:
    Provided
further that where an order for the recovery of
possession of any premises is made on the ground specified in
this clause, the landlord shall be entitled to obtain possession thereof
on the expiration of a period of six months in the case of residential
premises and one year in the case of non-residential premises
from the date of passing of eviction order.”
47. 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 clear. We need to
notice the issues raised in the above case and the ratio of the judgment.
Above was a case where a lady of 23 years in age in moving bus was
brutally assaulted sexually and physically. The lady succumbed to her
VINOD KUMAR v. ASHOK KUMAR GANDHI
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injuries. Five persons were apprehended in connection with the crime.
The respondent, Raju was below 18 years of age on the date of
commission of the crime. His case was referred for inquiry to the Juvenile
Justice Board. The other accused were tried in a regular Sessions Court
and have been found guilty of the offences under Section 376(2)(g) and
Section 302 of the Penal Code. Other accused were sentenced to death,
appeal against which was dismissed by the High court. The petitioners
had filed applications for impleadment before the Juvenile Justice Board.
The case of the petitioners was that on a proper interpretation of the Act
(Juvenile Justice (Care and Protection of Children) Act, 2000), the
Juvenile(respondent) was not entitled to the benefits under the Act but
was liable to be tried under the penal law of the land in a regular criminal
court along with the other accused.
48. A writ petition was also filed in the High Court praying for an
authoritative interpretation of Sections 2(l) and 2(k) of the Act that the
criterion of 18 years set out therein does not comprehend cases of grave
offences in general and of heinous crimes against women in particular
that shakes the root of humanity in general. The writ petition was
dismissed by the High Court holding that against the order of the Juvenile
Justice Board the alternative remedies were available under the Act
which should be first exhausted. The prayer for
impleadment of the
petitioners was also rejected.
49. A Special Leave Petition against the above judgment of the
High Court as well as writ petition was filed in this Court. The submissions
of petitioners were noted by this Court. In paragraphs 59 and 60 this
Court noticed the submissions made on behalf of the petitioner as below:
“59. Dr. Swamy at the outset has urged that there is no attempt
on his part to challenge the constitutional validity of the Act,
particularly, the provisions contained in Sections 2(k) and 2(l) of
the Act and what he seeks is a mere reading down of the Act……
60. Dr. Swamy would urge that the relevant provisions of the Act
i.e. Sections 1(4), 2(k), 2(l) and 7 must be read to mean that
juveniles (children below the age of 18) who are intellectually,
emotionally and mentally mature enough to understand the
implications of their acts and who have committed serious crimes
do not come under the purview of the Act. Such juveniles are
liable to be dealt with under the penal law of the country and by
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the regular hierarchy of courts under the criminal justice system
administered in India……”
50. 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 are possible—one
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
VINOD KUMAR v. ASHOK KUMAR GANDHI
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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 court’s duty to undertake such
exercise, but it is beyond its jurisdiction to do so.””
51. Rejecting the submission of the petitioner to read down the
statute following was held in paragraph 64:
“64.If the provisions of the Act clearly indicate the legislative intent
in the light of the country’s 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 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 14 of 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
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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 latter’s 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 of
Article 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-
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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.”

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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.
We, thus, reject the submission of the learned counsel for the appellant
that Satyawati Sharma needs to be referred to a larger Bench for
reconsideration.
58. We having decided the above issue let the appeals be now
listed for consideration on merits.
Kalpana K. Tripathy
             Directions issued to list the matters on
              merits.
VINOD KUMAR v. ASHOK KUMAR GANDHI
[ASHOK BHUSHAN, J.]