PETITIONER:
RATTAN ARYA ETC. ETC.
Vs.
RESPONDENT:
STATE OF TAMIL NADU & ANR.
DATE OF JUDGMENT16/04/1986
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
RAY, B.C. (J)
SINGH, K.N. (J)
CITATION:
1986 AIR 1444 1986 SCR (2) 596
1986 SCC (3) 385 1986 SCALE (1)993
CITATOR INFO :
RF 1987 SC2117 (8)
RF 1991 SC1094 (3,10)
ACT:
Tamil Nadu Buildings (Lease and Rent Control) Act,
1960, s. 30(ii) - Provisions excepting from the application
of the Act residential buildings fetching rent exceeding
four hundred rupees - Whether violative of Article 14 of the
Constitution.
HEADNOTE:
Section 30(ii) of the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 excepted from the application of the
Act residential buildings which fetched a rent of more than
rupees two hundred and fifty per month and non-residential
buildings which fetched a rent of more than rupees four
hundred per month. This provision was amended in 1961 to
make the exception applicable to either a building or part
thereof. In 1964, the provision relating to the exception
made in the case of non-residential buildings was deleted
with the result that tenants of these buildings were
entitled to the protection afforded by the Act irrespective
of the rent paid by them. The section was further amended by
Tamil Nadu Act 23 of 1973 by substituting the figure rupees
four hundred for the figure of rupees two hundred and fifty
in respect of residential buildings or part thereof.
The petitioners in their writ petitions challenged the
vires of this provisions, contending that though the Act was
designed to apply generally to all residential and non-
residential buildings, residential buildings or parts
thereof fetching a rent of more than rupees four hundred
were singled out and taken out of the purview of the Act by
s. 30(ii) arbitrarily and without any reason. The petitions
were contested by the State Government contending in their
counter-affidavit to the writ petitions that the
classification of the protected buildings and exempted
buildings on the basis of the rent was a reasonable one,
consistent with the object of the Act and was not
discriminatory.
Allowing the writ petitions, the Court,
597
^
HELD : 1. Section 30(ii) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 has to be sturck down as
violative of Art. 14 of the Constitution since the
distinction made by it between the tenant of a residential
building and the tenant of a non-residential building and
that based on rent paid by the respective tenants has no
reasonable nexus to the object of the Act which is aimed at
regulating the conditions of tenancy, controlling the rents
and preventing unreasonable eviction of tenants of all
residential and nonresidential buildings. [606 D; 602 G-H;
603 A]
To say that a non-residential building is different
from a residential building is merely to say what is self-
evident and means nothing. It has not been shown in the
instant case that the tenants of non-residential buildings
are in a disadvantageous position as compared with tenants
of residential buildings and, therefore, they need greater
protection. Tenants of both kinds of buildings equally need
the protection of the beneficient provision of the Act. [604
C-D]
2. By one stroke s. 30(ii) denies the benefits
conferred by the Act on all tenants to tenants of
residential buildings fetching a rent in excess of four
hundred rupees. While the tenant of a non-residential
building is protected, whether the rent is rupees fifty,
five hundred or five thousand per month, a tenant of a
residential building is protected if the rent is rupees
fifty, but not if it is five hundred or five thousand per
month. It cannot be said that the tenant of a residential
building paying a rent of rupees five hundred is able to
protect himself better than the tenant of a non-residential
building paying a rent of rupees five thousand per month, or
that the tenant of a residential building who pays a rent of
rupees five hundred per month is not in need of any
statutory protection. [602 E-G]
3. It cannot be pretended that the exclusion of
tenants, who pay higher rent, from the purview of the Act
will help to protect tenants belonging to the weaker
sections of the community. It is one thing to say that
tenants belonging to the weaker sections of the people need
protection, and an altogether different thing to say that
denial of protection to tenants paying higher rents will
protect the weaker sections of the society. Inconsistently
enough the tenants of
598
non-residential buildings, who are in a position to pay much
higher rents than those in occupation of residential
buildings can ever pay, are afforded protection by the
impugned provision while the latter paying rent in excess of
rupees four hundred are left high and dry. [604 F-H; 605 A]
Raval & Co. v. Ramachandran, [1974] 2 S.C.R. 629,
distinguished.
4. A provision which was perfectly valid at the
commencement of the Act could in course of time become
discriminatory and liable to challenge on the ground of
unconstitutionality and struck down on that basis. Whatever
jurisidiction there might have been in 1973 when s. 30(ii)
was amended by imposing a ceiling of rupees four hundred 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. There has been enormous
multifold increase of rents throughout the country,
particularly in urban areas. It is common knowledge that the
accommodation which one could have possibly for rupees four
hundred 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 s. 30(ii) can
only be considered to be totally artificial and irrelevant.
[605 A-D]
Motor General Traders v. State of Andhra Pradesh,
[1984] 1 S.C.C. 222, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition (Civil) Nos.
13732/83, 5226/82, 754/83, 1117, 13999, 14101, 17189, 11226,
and 12783/85.
(Under Article 32 of the Constitution of India.)
M.C. Bhandare, K.K. Mani, Mohan Katarki, Prem Malhotra,
S.G. Sambandam, A. Subba Rao, S. Srinivasan, Mahabir Singh,
M.C. Verma, M.A. Krishnamurthy and K.L. Taneja for the
Petitioners.
B. Padmanabhan, A.T.M. Sampath, R.N. Keshwani, K.P.
Gopala Krishnan, N. Doraikannan, A.V. Rangam, C.S.
Vaidyanathan, Ms. Lily Thomas, Ms. Baby Krishnan, P.
599
Jayaraman, V. Balachandran, K. Swami and Mohan Parasaran for
the Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The question raised in all these
writ petitions is whether sec. 30(ii) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960 is
constitutionally valid. This provision excepts from the
application of the Act “any residential building or part
thereof occupied by any one tenant if the monthly rent paid
by him in respect of that building or part exceeds four
hundred rupees.” The argument is that though the Act is
designed to apply generally to all residential and non-
residential buildings, residential buildings or parts
thereof fetching a rent of more than rupees four hundred are
singled out and taken out of the purview of the act,
arbitrarily and without any reason. It is said that the
classification of tenants of residential buildings fetching
a rent of over rupees four hundred per month into a distinct
class for the purpose of depriving them of the benefit of
the Act by excepting such buildings from the operation of
the Act has no reasonable nexus to the three-fold object of
the Act, namely, the regulation of the letting of
residential as well as non-residential buildings, the
control of rents of such buildings and the prevention of
unreasonable eviction of tenants therefrom.
In the State of Tamil Nadu, it all started with two
wartime measures, the Madras House Rent Control Order, 1941
and the Madras Godown Rent Control Order, 1942, both issued
under the Defence of India Rules. These orders were re-
issued with slight modifications in 1945 as the Madras Rent
Control Order 1945 and the Madras Non-Residential Buildings
Rent Control Order 1945. They were repealed and replaced by
the Madras Buildings (Lease and Rent Control) Act, 1946.
This Act also was later repealed and replaced by the Madras
Buildings (Lease and Rent Control) Act, 1949. The present
Act, the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960 was enacted in 1960 repealing and replacing the 1949
Act. Upto the time of enactment of the Tamil Nadu Buildings
(Lease and Rent Control)
600
Act, 1960, no exception was made from the purview of the Act
in respect of any class of residential and non-residential
buildings based on the rent fetched by the buildings. By
sec. 30(ii) for the first time, the 1960 Act excepted from
the application of the Act residential buildings which
fetched a rent of more than rupees two hundred and fifty per
month and non-residential buildings which fetched a rent of
more than rupees four hundred per month as entered in the
property register or assessment book of the municipality. In
1961, this provision was amended by Act 20 of 1961 so as to
make the exception applicable to either a building or part
thereof and on the basis of the actual rent paid by the
tenant and not on the basis of the rental value as entered
in the property register or assessment book of the
municipality. In 1964, the provision relating to the
exception made in the case of non-residential buildings
fetching a rent of more than rupees four hundred per month
was deleted, with the result that tenants of non-residential
buildings were entitled to the protection afforded by the
Act irrespective of the rent paid by them. Thereafter
pursuant to the recommendation made by a Committee appointed
by the Government of Tamil Nadu in 1969, sec. 30(ii) was
further amended by Act 23 of 1973 by substituting the figure
rupees four hundred for the figure of rupees two hundred and
fifty in that provision. It is the vires of this provision
as it now stands, that is in question before us.
The long title of the Act is “An Act to amend and
consolidate the law relating to the regulation of the
letting of residential and non-residential buildings and the
control of rents of such buildings and the prevention of
unreasonable eviction of tenants therefrom in the State of
Tamil Nadu.” The Preamble to the Act similarly recites
“Whereas it is expedient to amend and consolidate the law
relating to the regulation of the letting of residential and
non-residential buildings and the control of rents of such
buildings and the preventions of unreasonable eviction of
tenants therefrom in the State of Tamil Nadu”. “Building” is
defined by sec. 2(2) as meaning “any building or hut or part
of building or hut, let or to be let separately for
residential or non-residential purposes and includes – (a)
the garden grounds and out-houses, if any, appurtenant to
such buildings, hut or part of such building or hut and let
or to be let along with such building or hut, but
601
does not include a room in a hotel or boarding house;
section 3 casts a duty on the landlord to give notice of
vacancy of a building. Sections 3 and 3(A) prescribe the
procedure to be followed after intimation of vacancy is
given, either by way of allotment to some other person or
release in favour of the landlord. Section 4 provides for
the fixation of fair rent both for residential and non-
residential buildings. Section 7 prohibits a landlord from
receiving rent in excess of the fair rent. Section 8
requires every landlord to issue a receipt duly signed by
him for the actual amount of rent or advance received by
him. Section 9 enables the tenant to deposit the rent
lawfully payable to the landlord in respect of the building
before the Controller in certain situations. Section 10
provides for and enumerates the grounds upon which a
landlord may seek eviction of his tenant before the
Controller. Section 14 provides for recovery of possession
of a building bona-fide required by a landlord for carrying
out repairs which cannot be otherwise carried out or for the
demolition of the building and construction of a new
building. Section 15 enables the tenant to re-occupy the
building vacated by him to enable the landlord to carry out
repairs after such repairs are carried out or after the
stipulated time if repairs are not carried out within the
time. Section 16 is a provision corresponding to sec. 15 in
respect of a building vacated for the purpose of demolition
and construction. Section 17 prohibits a landlord from
interferring with the amenities enjoyed by a tenant and
empowers the Controller to give appropriate relief where
such amenities are interferred with. Section 21 prohibits
the conversion of a residential building into a non-
residential building except with the permission in writing
of the Controller. Section 22 makes provisions for effecting
repairs to a building where the landlord fails to make the
necessary repairs. Thus we see so far, that the scheme and
structure, the policy and the plan of the Act, as
perceivable from these provisions, are unmistakably aimed at
regulating the conditions of tenancy, Controlling the rents
and preventing unreasonable eviction of tenants of all
residential and non-residential buildings. For the
advancement of these objects, tenants are invested with
certain rights and landlords are subjected to certain
obligations. These rights and obligations, for example, the
right of a tenant not to be evicted and the prohibition
against a landlord from seeking eviction except upon
specified grounds, the right of a tenant
602
not to pay rent in excess of the fair rent and the
obligation of a landlord not to demand such excess rent, the
right of a tenant to obtain a receipt for the actual amount
of rent and advance paid by him and the right of a tenant to
enjoy and the obligation of a landlord not to interfere with
the enjoyment of the amenities previously enjoyed by the
tenant, are rights and obligations which, in any modern
civilised society, attach themselves to tenants and
landlords of all buildings, residential or non-residential,
low-rent or high-rent. They are not rights which are
peculiarly capable of enjoyment by occupants of non-
residential buildings only as against occupants of
residential buildings or by occupants of low-rent buildings
only as against occupants of high-rent buildings. None of
the main provisions of the Act, to which we have referred,
make any serious distinction between residential and non-
residential buildings. We may now turn to s. 30(ii) which
reads as follows :
“Nothing contained in this Act shall apply to any
residential building or part thereof occupied by
anyone tenant if the monthly rent paid by him in
respect of that building or part exceeds four
hundred rupees.”
|By one stroke, this provision denies the benefits conferred
by the Act generally on all tenants to tenants of
residential buildings fetching a rent in excess of four
hundred rupees. As a result of this provision, while the
tenant of a non-residential building is protected, whether
the rent is Rs. 50, Rs. 500 or Rs. 5000 per month, a tenant
of a residential building is protected if the rent is Rs.
50, but not if it is Rs. 500 or Rs. 5000 per month. Does it
mean that the tenant of a residential building paying a rent
of Rs. 500 is better able to protect himself than the tenant
of a non-residential building paying a rent of Rs. 5000 per
month? Does it mean that the tenant of a residential
building who pays a rent of Rs. 500 per month is not in need
of any statutory protection? Is there any basis for the
distinction between the tenant of a residential building and
the tenant of a non-residential building and that based on
the rent paid by the respective tenants? Is there any
justification at all for picking out the class of tenants of
residential buildings paying a rent of more than four
hundred rupees per month to deny them the
603
|rights conferred generally on all tenants of buildings
residential or non-residential by the Act? Neither from the
Preamble of the Act nor from the provisions of the Act has
it been possible for us even to discern any basis for the
classification made by s. 30(ii) of the Act. In the counter
affidavit filed by Selvi A. Raju on behalf of the State of
Tamil Nadu, the classification is sought to be justified in
the following manner :
“I submit that the plea of hostile discrimination
and inequality of treatment is not involved in s.
30. I submit the provision for upper limit of rent
has been fixed to afford protection to weaker
sections of tenants who pay rent below Rs. 400
…………….These successive enactments have
embodied a prefectly rational principle of
classification, and the criteria and their
application have been evolved from time to time,
in accordance with the needs of this class of
citizens. There is also a clear and discernible
nexus between the object of the measure and the
differentia themselves………………I submit
that the classification based on the purpose
“residential” and “non-residential” is based on
well-recognised and rational principle of
differentia ……………It is incorrect to say
that s. 30(ii) of the Act defeats the purpose of
the Act. As submitted already, the classification
of the protected buildings and exempted buildings
on the basis of the rent is a reasonable one
consistent with the object of the Act and it is
not discriminatory. As submitted already, a
distinction based on rent in an intelligent one
and has also got rational relation to the objects
sought to be achieved………….It is equally
incorrect to say that the provisions of s. 30(ii)
are a total departure from the rent Act and takes
away the protection afforded to the tenant under
the Act, thus rendering the Act nugatory. As
submitted already, the provisions of s. 30(ii) do
not at all contain any hostile discrimination,
simply because it is based on quantum of
rent………I submit that taking into account the
general increase in rent and the cost of living
604
index, the upper limit had to be increased keeping
in mind the welfare of the weaker sections of
society. Hence I submit that the change of upper
limit cannot be said to be
discriminatory……….The grant and withdrawal
of exemption have been done only keeping in mind
the welfare of the weaker sections of the society
and it is only with that object, exemption had
been withdrawn with regard to residential
buildings.”
The counter affidavit does not explain why any
distinction should be made between residential and non-
residential buildings in the matter of affording the
protection of the provisions of the Act. To say that a non-
residential building is different from a residential
building is merely to say what is self-evident and means
nothing. Tenants of both kinds of buildings equally need the
protection of the beneficent provisions of the Act. No
attempt has been made to show that the tenants of non-
residential buildings are in a disadvantageous position as
compared with tenants of residential buildings and
therefore, they need greater protection. There is and there
can be no whisper to that effect. To illustrate by analogy,
it is not enough to say that man and woman are different and
therefore, they need not be paid equal wages even if they do
equal work. The counter affidavit has repeatedly referred to
the weaker sections of the people and stated that in order
to protect the weaker sections of the people, a distinction
has been made between them and those who are in a position
to pay higher rent. It is difficult to understand how the
exclusion of tenants who pay higher rent from the protection
afforded by the Act will help to protect tenants belonging
to the weaker sections of the community. It is one thing to
say that tenants belonging to the weaker sections of the
community need protection and an altogether different thing
to say that denial of protection to tenants paying higher
rents will protect the weaker sections of the community.
Further the distinction suggested in the counter appears to
be quite antipathic to the actual provision because as we
pointed out earlier, there is no such ceiling in the case of
tenants of non-residential buildings and therefore a tenant
of a non-residential building who is in a position to pay a
rent of Rs. 5000 per month is afforded full protection by
the Act, whereas, inconsistently enough, the
605
tenant of a residential building who pays a rent of Rs. 500
is left high and dry. It certainly cannot be pretended that
the provision is intended to benefit the weaker sections of
the people only. We must also observe here that whatever
justification there may have been in 1973 when s. 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 through
out 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
today escalation of rentals any ceiling such as that imposed
by s. 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 Andhra Pradesh, [1984] 1
S.C.C. 222 = A.I.R. 1984 S.C. 87 a 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 Art. 14. After referring to some of the earlier cases
Venkataramiah, J. observed :
“…….The garb of constitutionality which it may
have possessed earlier has become worn out and its
unconstitutionality is now brought out to a
successful challenge.”
|Shri A.V. Rangam, learned counsel for the State of Tamil
Nadu, invited our attention to some sentences from the
judgment of this Court in Raval & Co. v. Ramachandran,
[1974] 2 S.C.R. 629 where, referring to s. 30(ii) before it
was amended in 1973, it was observed :
“Clause (ii) exempts any residential building or
part thereof occupied by any tenant, if the
monthly rent paid by him exceeds Rs. 250. Here the
object of the legislature clearly was that the
protection of the beneficent provisions of the Act
should be available only to small tenants paying
rent not
606
exceeding Rs. 250 per month as they belong to the
weaker section of the community and really need
protection against exploitation by rapacious
landlords. Those who can afford to pay higher rent
would ordinarily be well to do people and they
would not be so much in need of protection and can
without much difficulty look after themselves.”
|These observations were made in 1974 soon after the
amendment of the Act in 1973. They were made in a different
context and not in the context of a challenge to the vires
of the provisions as violative of Art. 14. As we pointed out
earlier, the argument based on protection of the weaker
sections of the community is entirely inconsistent with the
protection given to tenants of non-residential buildings who
are in a position to pay much higher rents than the rents
which those who are in occupation of residential buildings
can ever pay. We are, therefore, satisfied that section
30(ii) of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 1960 has to be struck down as violative of Art. 14 of
the Constitution. A writ will issue declaring sec. 30(ii) as
unconstitutional.
P.S.S. Petitions allowed.
607