{"id":176411,"date":"1961-04-21T00:00:00","date_gmt":"1961-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-j-irani-vs-the-state-of-madras-on-21-april-1961"},"modified":"2015-05-11T04:41:08","modified_gmt":"2015-05-10T23:11:08","slug":"p-j-irani-vs-the-state-of-madras-on-21-april-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-j-irani-vs-the-state-of-madras-on-21-april-1961","title":{"rendered":"P. J. Irani vs The State Of Madras on 21 April, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
P. J. Irani vs The State Of Madras on 21 April, 1961<\/div>\n
Equivalent citations: 1961 AIR 1731, \t\t 1962 SCR (2) 169<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Dayal, Raghubar, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nP. J. IRANI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MADRAS\n\nDATE OF JUDGMENT:\n21\/04\/1961\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nAYYANGAR, N. RAJAGOPALA\nSINHA, BHUVNESHWAR P.(CJ)\nDAS, S.K.\nSARKAR, A.K.\nDAYAL, RAGHUBAR\nMUDHOLKAR, J.R.\n\nCITATION:\n 1961 AIR 1731\t\t  1962 SCR  (2) 169\n CITATOR INFO :\n F\t    1966 SC  81\t (4)\n D\t    1974 SC 543\t (5)\n MV\t    1975 SC 818\t (32)\n R\t    1984 SC  87\t (10)\n R\t    1985 SC 257\t (4,5,6,8,9,14)\n R\t    1987 SC2117\t (19)\n RF\t    1989 SC1737\t (75)\n R\t    1990 SC1480\t (63)\n\n\nACT:\nRent  Control-Restrictions  on\teviction-Statute  empowering\nGovernment   to\t exempt\t any  premises\t from\trestrictions Constitutiona\nlity  exempting premises-Validity-When can  be\nchallenged-Practice,  whether respondent can raise  question\ndecided\t  against  him-Madras  Buildings  (Lease  and\tRent\nControl)  Act, 1949 (Mad.  XXV of 1949), s.  13-Constitution\nof India, Art.\t14.\n\n\n\nHEADNOTE:\nOne  C had obtained a lease of a cinema house which  was  to\nexpire\tin  May\t 1942.\tIn the\tmeantime  litigation  ensued\nbetween\t the owners of the cinema house, and the High  Court\nappointed receivers to administer the property.\t In 1940 one\nI offered to take a lease of the cinema house for 21  years.\nThe High Court offered C the option of taking the lease\t for\n21 years but C was willing to take it only for 7 years\tupto\nMay 1947.  Thereupon the High Court ordered that a lease  be\ngiven to C upto May 1947, and thereafter the lease be  given\nto  1  upto  May 1961.\tIn accordance with  this  order\t the\nreceivers  executed  two leases, one in favour of  C  and  a\nreversionary  lease  in\t favour of I. Before  the  lease  in\nfavour\tof C expired the Madras (Lease & Rent Control)\tAct,\n1946, came into force which protected tenants in 22\n170\npossession  from  eviction even after the  expiry  of  their\nleases.\t  This\tAct  was replaced by  the  Madras  Buildings\n(Lease\t& Rent Control) Act, 1949, which  contained  similar\nprovisions.  Section 13 of the 1949 Act empowered the  State\nGovernment  to\t\"exempt any building or class  of  buildings\nfrom  all  or  any of the provisions of this  Act.\"  On\t the\napplication  of I the Government passed an order on June  4,\n1952,  under s. 13 exempting the cinema house from  all\t the\nprovisions of the Act.\tSubsequently, the reasons for making\nthe  order  were given by the Government to be:\t (i)  C\t had\ndeliberately,  though  he had been offered a  lease  for  21\nyears  by the High Court, taken a lease for 7 years  and  he\nwas seeking to take advantage of the Act after the expiry of\nhis  lease,  (ii) C was an absentee lessee and\thad  several\nother  business and (iii) C had already been  in  possession\nfor 5 years more than he was legitimately entitled to be.  C\nfiled a writ petition before the High Court for quashing the\norder  on  the grounds that s. 13 of the Act vested  in\t the\nGovernment  an\tunguided  and  uncontrolled  discretion\t and\nviolated  Art.\t14 of the Constitution and  that  the  order\ndeprived  C  of\t the  equal  protection\t of  the  beneficial\nprovisions  of the Act.\t The High Court held that s. 13\t was\nnot  unconstitutional but that the order of  the  Government\nwas  ultra vires.  I appealed to the Supreme Court.  At\t the\nhearing C sought to challenge the validity of s. 13 also.\nHeld, that s. 13 of the Act did not violate Art. 14 and\t was\nnot  unconstitutional.\tEnough guidance was afforded by\t the\npreamble  and  the operative provisions of the Act  for\t the\nexercise of  the  discretionary\t power\tvested\t in   the\nGovernment.   The power tinder s. 13 was to be exercised  in\ncases  where  the protection given by the Act  caused  great\nhardship to the landlord or was the subject of abuse by\t the\ntenant.\nRam  Krishna Dalmia v. Sri justice Tendolkar, [1959]  S.C.R.\n279  and  Sarday Inder Singh v. State of  Rajasthan,  [1957]\nS.C.R. 605, followed.\nHeld,  (per Sinha, C.J., Ayyangar and Mudholkar, jj.),\tthat\nthe  order  passed by the Government under s. 13  was  ultra\nvires  and void.  An order made under s. 13 was\t subject  to\njudicial   review   on\t the  grounds  that   (a)   it\t was\ndiscriminatory,\t (b) it was made on grounds which  were\t not\ngermane\t or relevant to the policy and purpose of  the\tAct,\nand (c) it was made on grounds which were mala fide.  In the\npresent\t case the grounds given for granting  the  exemption\nwere not those countenanced by the policy or purpose of\t the\nAct.   The mere fact that C had taken the lease for 7  years\nand  continued in possession after its expiry was no  ground\nfor  eviction as the policy of the Act was to  protect\tsuch\npossession.   The  fact\t that  C  had  other  business\t was\nimmaterial;  the Government failed to consider the  question\nwhether\t if  C\twas  evicted  he  could\t secure\t alternative\naccommodation where he could carry on the business which  he\nwas carrying on in the cinema house.\n171\nPer S. K. Das and A. K. Sarkar, JJ.  The order passed by the\nGovernment under s. 13 was a competent and legal order.\t All\nthat  the  court had to see was whether the power  had\tbeen\nused for any extraneous purpose, i.e., not for achieving the\nobject for which the power was granted.\t The purpose of\t the\nAct  was  to prevent unreasonable eviction  and\t to  control\nrent.\tWhere, as in the present case, there was no risk  of\nthe  landlord being able to realise illegal rent or  premium\nthe  eviction  would  not  be  unreasonable.   Further,\t  if\nexemption  was refused in the present case it would  prevent\nthe  High  Court  from administering  the  property  in\t its\ncharge.\t  The  order  was not unfair to C for  he  had\tbeen\noffered a lease for 21 years which he declined.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 671 of 1957.
\nAppeal\tfrom the judgment and order dated February 5,  1954,
\nof the Madras High Court in Writ Appeal No. 28 of 1953.
\nSachin Chaudhuri, N. A. Palkhiwala, J. B. Dadachanji, S.  N.
\nAndley and P. L. Vohra, for the appellant.\n<\/p>\n
B.K.   Gopalakrishnamachar  and\t T.  M.\t Sen,\tfor   the
\nrespondent No. 1.\n<\/p>\n
A.   V. Viswanatha Sastri, R. Ganapathy Iyer and
\nG.   Gopalakrishnan, for respondent No. 2.\n<\/p>\n
1961.  April 21.  The Judgment of Sinha, C. J., Ayyangar and
\nMudholkar, JJ. was delivered by Ayyangar, J. The Judgment of
\nS. K. Das and Sarkar, JJ., was delivered by Sarkar, J.
\nAYYANGAR,  J.-This  is\tan appeal against a  judgment  of  a
\nDivision Bench of the High Court of Madras on a\t certificate
\nunder  Arts. 132 and 133(1) of the Constitution, and  raises
\nfor  consideration  the constitutionality of s.\t 13  of\t the
\nMadras\tBuildings (Lease & Rent Control) Act, 1949; and\t the
\nlegality  of  an  order\t of  the  State\t Government   passed
\nthereunder.\n<\/p>\n
The facts giving rise to the appeal are briefly as  follows:
\nThe dispute relates to promises No. 1, Blackers Road,  Mount
\nRoad,  Madras-a property which was originally owned  by\t one
\nSir  Haji  Ismail  Sait.   In or about\tthe  year  1914\t one
\nVenkayya  obtained  a lease of this property from  Sir\tHaji
\nIsmail Sait and constructed a cinema-theatre thereon
\n172<\/span>
\nwhich  he  ran\tunder  the name\t of  “the  Gaiety  Theatre”.
\nVenkayya  was  adjudicated  an insolvent  and  the  Official
\nAssignee  of  Madras  in  whom\this  estate,  including\t the
\nleasehold  interest  in\t the suit site\tvested,\t obtained  a
\nfurther\t lease of the property from the\t representatives  of
\nSir Haji Ismail Sait who had by then died, for a period of 9
\nyears  from  March 1926.  Thereafter the  Official  Assignee
\nsold the super-structure of the theatre to one Mrs. Madan to
\nwhom  he also assigned the unexpired portion of\t the  lease.
\nMrs.  Madan, subsequently, obtained a further lease  of\t the
\nproperty from the representatives of Sir Haji Ismail  Sait’s
\nestate for a further period of 7 years from June 1935.\tMrs.
\nMadan  was  thus  the owner of the  superstructure  and\t the
\nlessee\tof  the site, with a term which would expire  in  or
\nabout May 1942.\t While one T. S. PL.  P. Chidambaram  Chetty
\nwho is the second respondent before us obtained a conveyance
\nof  all the rights which Mrs. Madan possessed in the  super-
\nstructure  and in the lease for a sum of Rs. 36,000 under  a
\nregistered deed dated January 4, 1937, and he ran the cinema
\nhouse from then.\n<\/p>\n
There  was litigation between the heirs of Sir\tHaji  Ismail
\nSait, pending on the original side of High Court of  Madras,
\nand  by interim orders passed in two suits (C.\tS. Nos.\t 280
\nand 286 of 1939), the High Court appointed two advocates  as
\nJoint-Receivers to administer’ the property in suit.  In the
\nearly  months of 1940, one J. H. Irani, the father of P.  J.
\nIrani-the appellant before us-had negotiated with the Recei-
\nvers  for a lease of a property adjacent to No.\t 1  Blackers
\nRoad  with  a view to construct a  cinema  theatre  whereon.
\nThat  lease  was  for a period of 21 years  and\t would\thave
\nexpired\t in or about April-May 1961.  Irani offered  to\t the
\nReceivers  to  take  a lease also of  the  property  now  in
\ndispute\t and  on which the Gaiety-theatre stood,  also\ttill
\nApril-May  1961.   The Receivers then moved  the  Court\t for
\ndirections  regarding  the grant of the lease.\t The  second
\nrespondent, whose term of lease would have expired in  1942,
\nwas offered by the Court the option of taking a lease for 21
\nyears from the 1st of May 1940 but he expressed his
\n\t\t\t    173<\/span>
\nunwillingness to take a lease for such a long term.  He was,
\nhowever, willing to have the lease continued for a period of
\n7  years from the 1st of May 1940, i.e., for 5 years  beyond
\nthe  term of his then existing lease.  The  Court  thereupon
\npassed an order on May 2, 1940 reading:\n<\/p>\n
\t      “The lessee of the Gaiety Theatre (Chidambaram
\n\t      Chetty)  will be given a lease of seven  years
\n\t      from  this date.\tThey will not be  given\t any
\n\t      further option.  On the expiry of that period,
\n\t      i.e.,  from  2nd\tMay 1947  the  same  may  be
\n\t      included\tin the lease of J. H. Irani  at\t the
\n\t      same rate of rent at which it is being  leased
\n\t      to the lessee of the Gaiety Theatres.”\n<\/p><\/blockquote>\n
In accordance with this order the Receivers of the estate of
\nthe  late Sir Haji Ismail Sait executed two lease deeds\t (1)
\nin  favour of the second respondent for a period of 7  years
\nfrom  May 1, 1940 and (2) a reversionary lease in favour  of
\nJ.  H.\tIrani  for  a  period  of  13  years-11-1\/2   months
\ncommencing  from  May 1, 1947, i.e., on the  expiry  of\t the
\nlease  in favour of the second respondent, this\t term  being
\nfixed  so  as  to  be coterminous  with\t the  lease  of\t the
\nneighbouring property which Irani was being granted.
\nThe  term  of the lease in favour of the  second  respondent
\nwould, therefore, have ended on May 1, 1947 but before\tthat
\ndate  Madras  Buildings\t (Lease &  Rent\t Control)  Act\t1946
\n(Madras\t XV of 1946) came into force under which tenants  in
\npossession  who\t continued in occupation of  residential  or
\nnon-residential\t buildings  could not be  evicted  therefrom
\nexcept by proceedings taken under the Act before  designated
\nofficers  and  on stated grounds which did not\tinclude\t the
\nmere expiry of the term.  It is now common ground that\tthis
\nenactment covered the second respondent’s possession of\t the
\npremises  now  in  dispute  and\t that  notwithstanding\t the
\ntermination  of\t the  term he was  statutorily\tentitled  to
\ncontinue in possession even after the expiry of the lease on
\nMay 1, 1947.\n<\/p>\n
This  is  the  result  of  decisions  rendered\tin   certain
\nproceedings   between\tthe  parties  to  which\t  we   shall
\nimmediately  refer.  Irani, the, reversionary lessee  called
\nupon the second respondent to surrender possession in
\n174<\/span>
\naccordance with the conditions of his lease, but the  latter
\ndeclined  to do so relying upon the Act and  the  protection
\nwhich  it  conferred  upon  him.   Thereupon  the   ‘present
\nappellant-P.   J. Irani- as representing the estate  of\t his
\nfather\twho had by then died, filed a suit on  the  original
\nside  of  the  Madras High Court (C. S.\t 479  of  1947)\t for
\nevicting the second respondent from the property.  It may be
\nmentioned  that the suit was based upon the allegation\tthat
\nwhat  had  been leased to Venkayya originally was  a  vacant
\nsite without any buildings and that consequently Madras\t Act
\nXV  of\t1946 which did not apply to leases  of\tmere  vacant
\nsites  did  not\t apply to protect  the\tsecond\trespondent’s
\npossession.   The suit was, however, dismissed\tby  judgment
\nrendered  on April 22, 1948, on the finding that a  building
\nas  well as the site had been included in the  lease,  which
\nbrought it within the scope and protection of the Act.\t The
\nappellant  filed an appeal against this\t judgment  (Original
\nSide  Appeal  37 of 1948) which was also dismissed  on\tJuly
\n29,1951,  on  the same finding.\t Even while the\t appeal\t was
\nstill  pending before the High Court, Irani applied  to\t the
\nGovernment of Madras for exemption of the premises from\t the
\noperation  of  the  Act.  By the date  of  this\t application
\nMadras\tAct XV of 1946 had been repealed and its  provisions
\nsubstantially  re-enacted in the Madras Buildings  (Lease  &
\nRent  Control) Act, 1949, but as the provisions of  the\t two
\nenactments  on the points which arise for decision  in\tthis
\nappeal\tare identical it is sufficient if reference is\tmade
\nto those of the later Act.  A provision for exemption  being
\ngranted\t from the operation of the Act by the State  Govern-
\nment  was contained in s. 13 of the Act\t (Madras  Buildings)
\nLease  &  Rent\tControl\t Act.,\t1949),\tto  which  we  shall
\nhereafter refer as the Act, in the following terms:\n<\/p>\n
\t      “Notwithstanding\tanything contained  in\tthis
\n\t      Act the State Government may by a notification
\n\t      in  the  Fort St. George\tGazette\t exempt\t any
\n\t      building or class of buildings from all or any
\n\t      of the provisions of this Act.”\n<\/p><\/blockquote>\n
The Government, however, by their order dated June.\n<\/p>\n
\t\t\t    175<\/span><\/p>\n
4,  1951,  rejected this application for  exemption  on\t the
\nground\tthat  the  matter was then  sub-judice.\t  After\t the
\ndismissal of the appeal by the Division Bench the  appellant
\nIrani  moved  the Government afresh by\ta  further  petition
\nfiled  in  or  about December, 1951, praying  for  the\tsame
\nrelief.\t The Government, by their order dated June 4,  1952,
\ngranted\t the exemption sought and the relevant\tnotification
\nwhich appeared in the Fort St. George Gazette ran:\n<\/p>\n
\t      “In  exercise  of\t the  powers  conferred\t  by
\n\t      section  13 of the Madras Buildings  (Lease  &
\n\t      Rent  Control)  Act 1949 (Madras\tAct  XXV  of
\n\t      1949)  His Excellency the Governor  of  Madras
\n\t      hereby  exempts  the building No.\t 1  Blackers
\n\t      Road, Mount Road, Madras (Gaiety Theatre) from
\n\t      all the provisions of the said Act.”\n<\/p><\/blockquote>\n
And   it  was  authenticated  by  the  Chief  Secretary\t  to
\nGovernment.  The second respondent thereupon made a petition
\nto  the\t High  Court  under Art.  226  of  the\tConstitution
\nchallenging  the  legality and propriety of  this  order  of
\nexemption  on  the  principal  ground  that  the   provision
\ncontained  in  s. 13 of the Act enabling the  Government  to
\nexempt\tparticular buildings from the operation of the\tAct,
\nvested\tin them an unguided and arbitrary  discretion  which
\nwas unconstitutional as violative of the equal protection of
\nthe laws guaranteed by Art. 14 of the Constitution.  In\t the
\naffidavit in support of the petition, the second  respondent
\nfurther averred that in the order impugned “no justification
\nhas   been  shown  for\tdepriving  the\tpetitioner  of\t the
\nbeneficial  provisions of the Rent Control Act”.   Both\t the
\nState  of  Madras whose order was impugned as  well  as\t the
\nappellant Irani for whose benefit the order was passed\twere
\nmade  respondents to this writ petition.  The writ  petition
\nwas dismissed by a learned Single-Judge of the High Court by
\norder  dated  March  12,  1953,\t on  the  ground  that\t the
\nconstitutional validity of s. 13 of the Act had already been
\nupheld\tby  a Division Bench of the Court in  another  case.
\nThe  second respondent thereafter took the matter in  appeal
\nunder cl. 15 of the Letters Patent.  At the time this appeal
\nwas  heard  the Bench had before it, two  other\t appeals  in
\nwhich also the question whether s. 13 of the
\n\t      176<\/span>
\n\t      Act  violated Art. 14 of the Constitution\t had
\n\t      been  raised.   The three appeals\t were  heard
\n\t      together\tand  this  common  point  was  first
\n\t      decided  by a judgment pronounced\t on  October
\n\t      23, 1953.\t The learned Judges held that s.  13
\n\t      of  the  Act  did not offend Art.\t 14  of\t the
\n\t      Constitution   but  that\t individual   orders
\n\t      granting\tthe exemption might be\texamined  to
\n\t      find  out whether such orders were within\t the
\n\t      policy and purpose of the Act or whether\tthey
\n\t      were  discriminatory  and\t therefore  offended
\n\t      Art. 14.\tIn this view the grounds upon  which
\n\t      exemption\t was  granted in each of  the  three
\n\t      cases  before them were separately  considered
\n\t      and in the appeal by the second respondent the
\n\t      learned  Judges, after examining\tthe  reasons
\n\t      disclosed\t by  the Government as to  why\tthey
\n\t      granted exemption in the particular case, held
\n\t      that  those  reasons were not germane  to\t the
\n\t      purpose  for which the,power of exemption\t had
\n\t      been  vested in them and quashed the order  of
\n\t      exemption.\n<\/p>\n
\t      Irani feeling aggrieved by the decision of the
\nHigh Court applied to and obtained a certificate under Arts.
\n132 and 133(1) of the Constitution and has filed the present
\nappeal before us.  The State of Madras has not appealed\t but
\nas a respondent has filed a statement which was repeated  by
\nCounsel\t on their behalf, that they were not  interested  in
\ndisputing the correctness of the judgment of the High  Court
\nbut  left  the\tmatter\tto  be\tdecided\t between  the  rival
\ncontestants, viz., Irani and the second respondent.\n<\/p>\n
\t      Mr. Sachin Chowdhary, learned Counsel for\t the
\n\t      appellant\t  Irani,  urged\t substantially\t two
\n\t      points before us: (1) that the impugned  order
\n\t      of  the  Government  exempting  the  buildings
\n\t      under  s.\t 13  of the  Act  was  executive  or
\n\t      administrative  in its nature and\t not  quasi-
\n\t      judicial\tas wrongly held by the\tHigh  Court,
\n\t      and was, therefore, not amenable to be quashed
\n\t      by  the  issue of a writ\tof  certiorari,\t (2)
\n\t      assuming\tthat the order\twas  quasi-judicial,
\n\t      still it could be quashed or set aside only if
\n\t      it  were mala fide or proceeded  upon  grounds
\n\t      wholly  extraneous  for  the  purpose  of\t the
\n\t      enactment and that in the instant case neither
\n\t      of these conditions was fulfilled and the High
\n\t      Court was
\n\t\t\t\t   177<\/span>
\n\t      therefore\t not justified in setting it  aside.
\n\t      He  further submitted that the High Court\t had
\n\t      erroneously converted itself, as it were, into
\n\t      a Court of appeal, put itself in the place  of
\n\t      the  Government  and decided the case  on\t the
\n\t      basis of what the Court itself would have done
\n\t      if  it were the exempting authority.   Learned
\n\t      Counsel  urged  that  this  went\tbeyond\t the
\n\t      supervisory jurisdiction of the High Court  in
\n\t      the exercise of its powers under Art. 226 even
\n\t      when dealing with a quasi-judicial order.
\n\t      Before   dealing\twith  these  points  it\t  is
\n\t      necessary\t to  mention  that  obviously  these
\n\t      arguments\t proceed  upon the  basis  that\t the
\n\t      power  conferred\tby s. 13 of the Act  on\t the
\n\t      State Government to exempt “buildings or class
\n\t      of buildings from the operation of the Act  is
\n\t      constitutionally\tvalid.\tWe are\tsaying\tthis
\n\t      because Mr. Viswanatha Sastri-learned  Counsel
\n\t      for  the second respondent disputed before  us
\n\t      the  correctness of the decision of  the\tHigh
\n\t      Court  dated October 23, 1953,  upholding\t the
\n\t      validity of s. 13 of the Act.  It is  manifest
\n\t      therefore\t  that\tthe  point  urged   by\t Mr.
\n\t      Viswanatha  Sastri  should  first\t be  decided
\n\t      before considering the points urged in support
\n\t      of the appeal.\n<\/p>\n
\t      Learned  Counsel for the\tappellant,  however,
\n\t      raised  an  objection,  to  Counsel  for\t the
\n\t      respondent  being\t permitted  to\tcontest\t the
\n\t      validity of s. 13 of the Act.  He pointed\t out
\n\t      that the question of the validity of s. 13 had
\n\t      been decided by a judgment rendered on October
\n\t      23,  1953, and that as the respondent did\t not
\n\t      prefer  an  appeal  to this  Court  from\tthat
\n\t      judgment, he was precluded from agitating this
\n\t      question\tin  the\t appeal now  before  us.  We
\n\t      consider this objection as without  substance.
\n\t      By  its  order  dated October  23,  1953\twrit
\n\t      appeal  28  of 1953 against  the\tdecision  in
\n\t      which  this  appeal has been brought  was\t not
\n\t      disposed of but was still kept pending  before
\n\t      the  High Court for further consideration\t and
\n\t      as  observed by the learned Chief\t Justice  in
\n\t      that judgment:\n<\/p>\n
\t      “In  this view we cannot strike down s. 13  of
\n\t      the Act as inconsistent with the\tConstitution
\n\t      and  void\t but we shall have to  examine\teach
\n\t      case on its merits”.\n<\/p>\n
23<\/span>
\n178<\/span><\/p>\n
Writ  Appeal  28 of 1953 was thereafter dealt  with  on\t its
\nmerits\tand  it was this examination which resulted  in\t its
\nbeing allowed.\tIn our opinion, therefore, the two judgments
\nhave  to  be  read  together  and  as  really  part  of\t one
\nproceeding, though for convenience and with a view to define
\nthe  scope of the arguments the Court expressed its  opinion
\non  the Constitutional point at an earlier stage.   We\talso
\nconsider  that it is doubtful if an appeal would  have\tlain
\nfrom the judgment of the High Court dated October 23,  1953,
\nand  even assuming that it did in view of the matters  which
\nwe have set out earlier, the respondent cannot be  precluded
\nfrom  contesting  the correctness of the conclusion  of\t the
\nHigh  Court,  by reason of his not having moved\t this  Court
\nunder  Art. 136 of the Constitution.  We therefore  consider
\nthat  the respondent is entitled to support the judgment  in
\nhis  favour  by attacking those portions  of  that  judgment
\nwhich are against him.\n<\/p>\n
The  submission of Mr. Viswanatha Sastri was that s.  13  of
\nthe  Act  conferred  an\t unguided  and\tarbitrary  power  on
\nGovernment to discriminate between one building and  another
\nand  choose at their will and pleasure particular  buildings
\nwhich  would  be subject to the provisions of  the  Act\t and
\nothers\twhich  would not be so subject, the tenants  in\t the
\nlatter\tbeing deprived of the protection conferred on  other
\ntenants\t similarly situated.  He further urged that  whether
\nor  not\t a power to exempt a class of buildings\t was  valid,
\nbecause in such a case there might possibly be an element of
\nclassification based on rational grounds grounds germane  to
\ncarry  out the policy or purpose of the Act-the\t same  could
\nnot  be\t predicated  of the power  to  grant  exemption\t for
\nindividual buildings because in the latter case it would  be
\nmerely an arbitrary exercise of power discriminating between
\none  building  and another, or one tenant  and\tanother\t and
\nwhich  would, therefore, render the very conferment  of\t the
\npower invalid as in violation of the equal protection of the
\nlaws guaranteed by Art. 14.\n<\/p>\n
The  arguments\taddressed to us were the same  as  bad\tbeen
\nurged before the learned Judges of the High
\n\t\t\t    179<\/span>
\nCourt and had been repelled by them.  They pointed out\tthat
\nit  was\t not  correct  to say that  the\t enactment  did\t not
\nsufficiently  disclose\tthe policy and purpose\tof  the\t Act
\nwhich  furnished  adequate  guidance for the  basis  of\t the
\nexercise of the power of exemption.  The preamble to the Act
\nran:\n<\/p>\n
\t      “Whereas\tit  is\texpedient  to  regulate\t the
\n\t      letting  of  residential\tand  non-residential
\n\t      buildings\t and  to control the rents  of\tsuch
\n\t      buildings and to prevent unreasonable eviction
\n\t      of tenants therefrom in the State”.\n<\/p><\/blockquote>\n
This  meant that the legislation was enacted  for  achieving
\nthree  purposes:  (1)  the regulation of  letting,  (2)\t the
\ncontrol\t of  rents, and (3) the prevention  of\tunreasonable
\neviction  of  tenants from residential\tand  non-residential
\nbuildings.   The  Act  was  the\t latest\t in  the  series  of
\nenactments  and\t orders\t dating back to the  period  of\t the
\nSecond\tWorld  War  when due, inter  alia,  to\tlarge  scale
\nmovement  of populations to urban areas, there was an  acute
\nshortage  of  accommodation  in the principal  towns,  as  a
\nresult\tof which tenants ousted from buildings\toccupied  by
\nthem  on the termination of their tenancies could  not\tfind
\nalternative  accommodation and were thrown on  the  streets,
\nand thus owners of house-property could, if left  unchecked,
\nunfairly  exploit  those  who  sought  accommodation.\t The
\nenactment  in  terms  protected the  rights  of\t tenants  in
\noccupation  of\tbuildings from\tbeing  charged\tunreasonable
\nrates of rent and from being unreasonably evicted therefrom.
\nTenants\t who required this protection included,\t of  course,
\nthose  whose duration of tenancy under the ordinary law\t had
\nexpired\t and  who would, therefore, have been liable  to  be
\nejected\t from the buildings occupied by them.\tAccordingly,
\nthe definition of a “tenant” included those who continued in
\npossession notwithstanding their term of tenancy had expired
\nand  even those against whom decrees for eviction  had\tbeen
\npassed\tby  Civil Courts but under which  eviction  had\t not
\ntaken place.\n<\/p>\n
Though the enactment thus conferred these rights on tenants,
\nit  was possible that the statutory protection could  either
\nhave caused great hardship to a
\n180<\/span>
\nlandlord or was the subject of abuse by the tenant  himself.
\nIt  was not possible for the statute itself  to\t contemplate
\nevery such contingency and make\t specific provision therefor
\nin  the enactment.  It was for this reason that a  power  of
\nexemption  in  general\tterms was  conferred  on  the  State
\nGovernment which, however, could be used not for the purpose
\nof discriminating between tenant and tenant, but in order to
\nfurther the policy and purpose of the Act which was, in\t the
\ncontext\t of  the  present  case,  to  prevent\tunreasonable
\neviction of tenants.  The learned Judges of the High  Court,
\ntherefore,   held   that  while\t s.  13\t of  the   Act\t was
\nconstitutionally  valid, any individual order  of  exemption
\npassed\tby the Government could be the subject\tof  judicial
\nreview\tby  the Courts for finding out whether\t(a)  it\t was
\ndiscriminatory so as to offend Art. 14 of the  Constitution,\n<\/p>\n
(b)  the  order was made on grounds which  were\t germane  or
\nrelevant  to the policy and purpose of the Act, and  (c)  it
\nwas not otherwise malafide.\n<\/p>\n
We  find ourselves in complete agreement with  the  approach
\nand  conclusion of the learned Judges of the High  Court  to
\nthe  consideration  of the question  of\t the  constitutional
\nvalidity of s. 13 of the Act.\n<\/p>\n
The  meaning  and scope of Art. 14 of the  Constitution\t has
\nbeen  the  subject  of several decisions of  this  Court,  a
\nnumber of which have been considered by us in some detail in
\nJyoti  Pershad\tv. Administrator of  Union  Territory  (Writ
\nPetition<\/a>  67  etc.  of 1959) in\t which\twe  have  pronounced
\njudgment  today.  In view of this we find it unnecessary  to
\ntraverse  the  same ground except to say that  in  the\tcase
\nbefore\tus enough guidance is afforded by the  preamble\t and
\noperative  provisions  of the Act, for the exercise  of\t the
\ndiscretionary power vested in Government so as to render the
\nimpugned section not open to attack as a denial of the equal
\nprotection of the laws.\t In our judgment, the provision\t now
\nimpugned  belongs to the class numbered (v) in the  analysis
\nof  the\t decision  on Art. 14 by Das C. J.  in\tRam  Krishna
\nDalmia v. Justice Tendolkar<\/a> (1).\n<\/p>\n
(1) [1959] S.C.R. 279, 300.\n<\/p>\n
\t\t\t    181<\/span><\/p>\n
\t      “A  statute may not make a classification\t of-
\n\t      the persons or things to whom their provisions
\n\t      are  intended  to apply and leave\t it  to\t the
\n\t      discretion  of  the Government  to  select  or
\n\t      classify\tthe persons or things  for  applying
\n\t      those  provisions according to the  policy  or
\n\t      the principle laid down by the statute  itself
\n\t      for guidance of the exercise of discretion  by
\n\t      the Government in the matter of such selection
\n\t      or  classification.   If\tthe  Government\t  in
\n\t      making  the selection or\tclassification\tdoes
\n\t      not  proceed  on\tor  follow  such  policy  or
\n\t      principle…………………. the  executive
\n\t      action but not the statute should be condemned
\n\t      as unconstitutional.”\n<\/p><\/blockquote>\n
Possibly  even\ta more apt precedent is\t that  furnished  by
\nSardar\tInder Singh v. State of Rajasthan (1)  where,  among
\nothers,\t the validity of s. 15 of the Rajasthan\t (Protection
\nof  Tenants)  Ordinance,  1949, was  upheld.   That  section
\nauthorised  the Government to exempt any person or class  of
\npersons\t from  the operation of the Act, and  it  was  urged
\nbefore this court that this offended Art. 14.  The  argument
\nwas repelled, observing:\n<\/p>\n
\t      “It  is argued that that section does not\t lay
\n\t      down  the principles on which exemption  could
\n\t      be  granted,  and\t that the  decision  of\t the
\n\t      matter   is   left  to  the   unfettered\t and
\n\t      uncanalised discretion of the Government,\t and
\n\t      is therefore repugnant to Art. 14.  It is true
\n\t      that that section does not itself indicate the
\n\t      grounds  on which exemption could be  granted,
\n\t      but  the\tpreamble to the Ordinance  sets\t out
\n\t      with  sufficient clearness the policy  of\t the
\n\t      Legislature; and as that governs s. 15 of\t the
\n\t      Ordinance,  the  decision\t of  the  Government
\n\t      thereunder  cannot  be said  to  be  unguided.
\n\t      Vide Harishanker Bagla v, The State of  Madhya
\n\t      Pradesh.”\n<\/p><\/blockquote>\n
The learned Judges of the High Court were therefore, correct
\nin   their   conclusion\t  that\ts.  13\tof   the   Act\t was
\nconstitutionally   valid  but  that  individual\t orders\t  of
\nGovernment passed under that section could be the subject of
\njudicial review in the manner already indicated.
\n(1) [1957] S.C.R. 605, 621.\n<\/p>\n
182<\/span><\/p>\n
We  shall  now\tproceed to consider  the  points.  urged  by
\nlearned Counsel for the appellant contesting the correctness
\nof the decision of the High Court setting aside the order of
\nGovernment exempting the premises in dispute for the  reason
\nthat it was passed on grounds not germane to the purpose for
\nwhich the power was conferred.\tAs already stated, the first
\npoint urged was that the order granting the exemption was an
\nexecutive or an administrative order which was not  amenable
\nto  being quashed by the issue of a writ of certiorari.\t  We
\nconsider  there is no substance in this objection.   If\t the
\nHigh  Court  were  right in their view\tthat  the  order  of
\nexemption  was passed for reasons which did not fall  within
\nthe  purpose for which the power was conferred by s.  13  of
\nthe Act the order itself would be one discriminatory of\t the
\nsecond\trespondent  as violating his  fundamental  right  to
\nequal  protection  of the laws.\t In such an event  Art.\t 226
\nwould  certainly  be available to set aside  such  an  order
\nwhich  affected\t the  fundamental right\t of  the  petitioner
\nbefore\tthe  Court.   Indeed,  it was  on  the\tground\tthat
\nindividual  orders  passed by Government by  virtue  of\t the
\npower conferred upon it by s. 13 of the Act were  examinable
\nby   the  Court\t for  their  violating\tArt.  14  that\t the
\nconstitutionality   of\t s.  13\t was  upheld  and   in\t the
\ncircumstances  no objection could, therefore, be taken to  a
\njudicial review of such individual orders.  Besides, even if
\nthe  order did not violate Art. 14, still if the High  Court
\nwere  right in the view that the same was beyond the  powers
\nconferred  on  Government  by s. 13 of the Act,\t we  see  no
\nsubstance in the contention that the Court lacks power under
\nArt. 226 to set aside an ultra vires order vitally affecting
\na  person’s right to statutory protection against  eviction.
\nWe  do not consider that immunity from interference  by\t the
\nCourts\tcould be sought for order,% which are plainly  ultra
\nvires merely because they were passed bona fide in the sense
\nof being without indirect motive.  Particularly so when\t the
\npower  of the High Court under Art. 226 of the\tConstitution
\nis  not\t limited  to  the  issue  of  writs  falling   under
\nparticular  groupings,\tsuch as\t the  certiorari,  mandamus,
\netc., as these writs
\n\t\t\t    183<\/span>
\nhave been understood in England, but the power is general to
\nissue\tany   direction\t to  the  authorities,\t viz.,\t for
\nenforcement  of\t fundamental  rights as well  as  for  other
\npurposes.\n<\/p>\n
The  second  point urged was, and this was  the\t main  point
\nargued by learned Counsel for the appellant,that the learned
\nJudges\tof the High Court were in error in holding (a)\tthat
\nthe reasons given by the Government were not germane to\t the
\npurpose\t or  policy of the Act and, therefore,\toutside\t the
\npower conferred on them by s. 13 of the Act, and (b) in con-
\nstituting themselves, as it were, as an appellate  authority
\nand  examining the reasons which induced the  Government  to
\ngrant the exemption, and pronouncing upon the correctness or
\notherwise of these reasons.\n<\/p>\n
Before\tconsidering this argument it is necessary to  advert
\nto  a  submission of the learned Counsel for  the  appellant
\nsuggesting that the High Court were in error in calling\t for
\nthe reasons which induced the Government to pass the  orders
\nof exemption, though when the reasons were before the  Court
\nit  was in a position to examine the legality of the  order.
\nWe do not consider this submission well-founded.  The entire
\nbasis for upholding the constitutional validity of s. 13  of
\nthe  Act  and considering that it did not offend  the  equal
\nprotection  of\tthe  law  guaranteed  by  Art.\t14  of\t the
\nConstitution was, that the discretion or the power conferred
\nupon Government was not unguided, uncanalised or  arbitrary,
\nbut  that  it  had to be exercised in  accordance  with\t the
\npolicy\tand  object  of the enactment  gatherable  from\t the
\npreamble  as  well as its operative provisions.\t  The  order
\nitself\tmight  on its face have shown that it  conformed  to
\nthis requirement, in which event it would have been for\t the
\nparty challenging the validity of the order to establish  to
\nthe  satisfaction of the Court that it was malafide  or\t had
\nbeen passed on grounds not contemplated by or extraneous to,
\nthe  object and purpose of the enactment or  the  principles
\nwhich  should have governed the exercise of the power.\t For
\ninstance,  if  the  exemption  had  been  in  favour  of   a
\nparticular class of
\n184<\/span>
\nbuildings,  say\t those belonging to  charities-religious  or
\nsecular-the  classification would have been apparent in\t the
\nvery  order  of exemption.  Where,  however,  the  exemption
\ngranted\t is  not of any class of buildings  which  would  ex
\nfacie  disclose a classification, but the exemption is of  a
\nspecified  building  owned by A or in which B is  a  tenant,
\nthen  prima  facie it would be discriminatory and  when\t the
\nlegality  of  the  order  is  challenged,  its\tintra  vires
\ncharacter could be sustained only by disclosing the  reasons
\nwhich led to the passing of the order.\n<\/p>\n
In  the\t present  case,\t when  the  matter  was\t before\t the
\nappellate  Court  the Advocate-General\tfiled  a  memorandum
\nsetting\t out  the reasons why exemption was granted  in\t the
\nthree  cases before the Court.\tIn regard to  the  exemption
\nwhich  was the subject of controversy in writ appeal  28  of
\n1953  with which we are concerned, the memorandum which\t the
\nGovernment filed ran:\n<\/p>\n
\t      “The\t Government\t  exempted\t the
\n\t      building……………..\t for  the  following
\n\t      reasons:-\n<\/p><\/blockquote>\n
\t      (1)When  the High Court offered in 1940  to
\n\t      lease  out  the  premises in  question  for  a
\n\t      period  of 21 years, Sri Chettiar\t elected  to
\n\t      take  it on lease only for a period  of  seven
\n\t      years, which expired in 1947.  As per the High
\n\t      Court’s  order  in C. S. Nos. 280\t to  286  of
\n\t      1939,  Sri  J. H. Irani, father of Sri  P.  J.
\n\t      Irani  took  a  lease of the  promises  for  a
\n\t      period of 13 years 11-1\/2 months from 1947 and
\n\t      he  deposited  Rs.  10,000  towards  the\tsaid
\n\t      lease.   He  is  therefore  entitled  for\t the
\n\t      benefits from 1948 onwards.\n<\/p><\/blockquote>\n
\t      (2)Had  not the Rent Control Act come  into
\n\t      force,   Sri  P.\tJ.  Irani  would  have\t got
\n\t      possession in the ordinary course as per\tHigh
\n\t      Court’s order and the terms of the lease deed.
\n\t      The operation of the Act is therefore really a
\n\t      hardship to him.\n<\/p><\/blockquote>\n
\t      (3)Sri Chettiar is only an absentee  lessee
\n\t      and  he  is having several other\tbusiness  in
\n\t      South India.\n<\/p><\/blockquote>\n
\t      (4)The conduct of Sri Chidambaram\t Chettiar
\n\t      in refusing to surrender the possession of the
\n\t      building\tto Sri P. J. Irani who had  taken  a
\n\t      valid lease under
\n\t\t\t\t   185<\/span>
\n\t      the orders of the High Court is that of a hard
\n\t      litigant seeking to exploit the letter of\t the
\n\t      law without much regard to bona fides; and
\n\t      (5)Sri  Chettiar had already managed to  be
\n\t      in  possession of the building for  five\tmore
\n\t      years  than  he was legitimately\tentitled  to
\n\t      be.”\n<\/p><\/blockquote>\n
The  learned Judges of the High Court held that the  reasons
\nwhich  led  the Government to grant the exemption  were\t not
\nthose  which were countenanced by the policy or\t purpose  of
\nthe  Act  and that the order of\t exemption  was,  therefore,
\ninvalid.  In doing so the learned Judges said:\n<\/p>\n
\t      “Reasons 1, 2 and 4 go together and have refe-
\n\t      rence  to the order of the High Court in\t1940
\n\t      directing the Receivers to execute a lease for
\n\t      seven  years  to the appellant and  after\t the
\n\t      expiry  of  that period to grant a  lease\t for
\n\t      fourteen\tyears  to  the\tsecond\t respondents
\n\t      father.\tIt is undoubtedly true that but\t for
\n\t      the  application of the Act, the\tsecond\tres-\n<\/p><\/blockquote>\n
\t      pondent’s\t   father   would   have    obtained
\n\t      possession of the premises after the expiry of
\n\t      lease in favour of the appellant.\t That  could
\n\t      be  said\tof thousands of cases in  which\t the
\n\t      leases in favour of tenants have expired\tand,
\n\t      but  for the Act the owners would be  entitled
\n\t      to obtain possession of the demised  premises.
\n\t      If  this circumstance alone is  sufficient  to
\n\t      exempt any premises from the operation of\t the
\n\t      Act,   then   the\t  Act\titself\t should\t  be
\n\t      repealed……………… ……… There  is
\n\t      no  policy  or  principle\t involved  in\tthis
\n\t      circumstance.”\n<\/p><\/blockquote>\n
We agree with the learned Judges in the view here expressed.
\nThe mere fact that the tenant continued in possession  after
\nthe termination of the tenancy is by itself no ground why he
\nshould be evicted from the premises, because it is the\tvery
\npolicy\tof  the\t Act  to protect the  right  of\t tenants  to
\ncontinue in possession of the premises after the termination
\nof  their  term\t because of the great  difficulty  of  their
\nobtaining  alternative\taccommodation.\t The   circumstance,
\ntherefore,  of\tthe termination of the\tsecond\trespondent’s
\ntenancy cannot afford a justification for Government
\n24<\/span>
\n186<\/span>
\nto say that he deserved to be evicted.\tIf the term had\t not
\nexpired\t the tenant would have been entitled to continue  in
\npossession even if the exemption were granted.
\nLearned Counsel for the appellant urged that the High  Court
\nhad  failed  to notice that the present case was  one  where
\nthere  was a contest between two tenants and not  between  a
\nlandlord  and a tenant and that they erred in  approximating
\nthe  position of the appellant to that of the landlord.\t  We
\nBee  no\t force in this contention, because a lessee  of\t the
\nreversion  stands  in the same position as  a  landlord\t and
\ncannot have any higher rights, nor can the appellant  derive
\nany  assistance\t from the fact that  the  second  respondent
\ndeclined to be a lessee for any term longer than seven years
\nwhen  that  option was offered to him by the High  Court  in
\nApril-May,  1940.   The position of  the  second  respondent
\ncannot be worse than if he had taken a lease for a  definite
\nterm of seven years with a covenant to restore possession at
\nthe  end  of  the period.  The fact that in  May  1940,\t the
\nsecond respondent had an option to take a lease for a longer
\nterm,  but of which he did not avail himself, does not\tmake
\nany difference or render that a ground for withdrawing\tfrom
\nhim the protection of the statute.\n<\/p>\n
We also agree with the learned Judges of the High Court that
\nground\tNo. 3 is not germane for granting an exemption.\t  As
\nwas  pointed out, “the important point to be  considered  by
\nthe  Government\t was  whether the appellant  had  not  other
\ntheatres  at which he could carry on the business  which  he
\nwas  carrying  on  at the Gaiety  theatre”,  and  this\tthey
\nomitted\t to consider.  The reason why the possession of\t the
\ntenant whose term had expired was afforded statutory protec-
\ntion  was his inability to secure alternative  accommodation
\nin  which  either  to  reside in  the  case  of\t residential
\nbuildings or to carry on the business which he was  carrying
\non  in\tthe  case of non-residential  buildings.   This\t was
\ntherefore a relevant matter which the Government had  failed
\nto  take into account.\tThe High Court characterised  reason
\nNo.  5 as really not a reason at all and we agree with\tthis
\nobservation.  The
\n187<\/span>
\nstatute\t had admittedly conferred upon tenants, such as\t the
\nsecond respondent the right to continue in possession  after
\nthe  termination of the lease in their favour, and the\tfact
\nthat  such a tenant had exercised the rights conferred\tupon
\nhim  by\t statute  was  certainly  not  an  improper  conduct
\nmeriting  his  being deprived of  the  statutory  protection
\nafforded by s. 7.\n<\/p>\n
The  learned  Judges further pointed out that the  order  of
\nGovernment  was\t defective, in that it had  not\t taken\tinto
\naccount several relevant matters as for instance the  second
\nrespondent   expending\tconsiderable  sums  to\t carry\t out
\nimprovements to the theatre in 1949 etc. which bore upon the
\nexercise  of  their power, and which if taken  into  account
\nwould  have weighed against the grant of the exemption.\t  In
\nview  however  of the conclusion reached  that\tthe  reasons
\nassigned  by Government for their order were not germane  to
\nthe  policy and purpose of the fact, we do not\tconsider  it
\nnecessary to pursue the matter further.\n<\/p>\n
The further point urged regarding the learned Judges of\t the
\nHigh Court having erroneously constituted themselves into  a
\nCourt  of appeal need not detain us long.  The short  answer
\nto  it\tis  that the learned Judges had not  done  so.\t The
\nsubmission ignores the distinction between findings on facts
\nwhich the Court in proceedings under Art. 226 must, save  in
\nvery exceptional cases, accept as correct and the  relevance
\nof  those facts for considering whether their  establishment
\nsatisfied  the\tgrounds necessary for the  exercise  of\t the
\npower  vested  in Government under s. 13 of  the  Act.\t For
\ninstance  in  the  case\t on  hand,  no\tfact  found  by\t the
\nGovernment or stated by them as the reason or reasons  which
\ninduced\t them  to grant the exemption were  even  challenged
\nbefore\tthe  High Court, the only contention  urged  by\t the
\nsecond\trespondent  which was accepted by  the\tHigh  Court,
\nbeing  that these facts were irrelevant for  justifying\t the
\norder.\n<\/p>\n
The appeal accordingly fails and is dismissed with costs  to
\nthe contesting second respondent.\n<\/p>\n
SARKAR.,  J.-In this judgment we propose to deal  only\twith
\none of the two questions that arise in this appeal.\n<\/p>\n
188<\/span><\/p>\n
Of  these two questions, the first is whether s. 13 ‘of\t the
\nMadras\tBuildings  (Lease  and\tRent  Control)’\t Act,  1949,
\noffends\t Art.  14  of  the  Constitution.   That  Act  makes
\nprovision,   among  other  things,  for\t controlling   rents
\nchargeable  by\tlandlords and  for  preventing\tunreasonable
\neviction  of tenants.  Section 13, the validity of which  is
\nchallenged,  gives the State Government power to exempt\t any
\nbuilding from all or any of the provisions of this Act.\t The
\ncontention was that this section gave arbitrary power to the
\nGovernment to apply the law with unequal band as it did\t not
\nfurnish any guidance as to how the power to exempt was to be
\nexercised.   This question has been discussed fully  by\t our
\nbrother Ayyangar.  We agree with the view taken by him\tthat
\nthe  section does not offend the article.  We  have  nothing
\nfurther\t to  add to what he has said on this aspect  of\t the
\ncase.\tThe  other question is whether the  power  was\tduly
\nexercised  in  the present case.  On this question  we\thave
\narrived at a conclusion different from that which has  found
\nfavour with our brother Ayyangar.  This is the question that
\nwe propose to discuss in this judgment.\n<\/p>\n
The  power was exercised by an order made by the  Government
\non June 4, 1952.  It exempted from the operation of the\t Act
\ncertain\t premises  used\t as a cinema house  and\t called\t the
\nGaiety\tTheatre.  The second respondent who was a tenant  of
\nthe  premises, was thereby deprived of the  protection\tfrom
\neviction  which he would have otherwise had under  the\tAct.
\nHe, therefore, moved the High Court at Madras for a writ  to
\nquash  this  order.   The High\tCourt  while  upholding\t the
\nvalidity of s. 13 which also had been attacked by the second
\nrespondent,  took  the view that the order had\tbeen  passed
\nfor,reasons  not germane to the purpose for which the  power
\nof exemption under s. 13 had been vested in Government,\t and
\nquashed that order.  This appeal is against this decision of
\nthe High Court.\n<\/p>\n
The  circumstances in which the order came to be  made\twere
\nthese.\tOne Sir Hajee Ismail Sait had a certain plot of land
\nin the city of Madras.\tHe granted a
\n\t\t\t    189<\/span>
\nlease  of  that\t land sometime in 1914 to  one\tVenkiah\t for
\nconstructing a cinema house on it.  It is not clear  whether
\nVenkiah\t himself constructed any cinema house.\t It  appears
\nthat  he  became  insolvent and his  assets,  including\t the
\nleasehold  interest,  vested in the  Official  Assignee\t who
\nobtained  an  extension of the lease for a  period  of\tnine
\nyears from 1926 from the representatives of Sir Hajee Ismail
\nSait,  who  had\t died  in  the\tmeantime.   One\t Mrs.  Madan
\npurchased the lease-hold interest from the Official Assignee
\nand   she   later   obtained  a\t  fresh\t  lease\t  from\t the
\nrepresentatives\t of  Sir Hajee Ismail Sait for a  period  of
\nseven years from June 1935, expiring on May 30, 1942.\tThis
\nlease  gave Mrs. Madan the first option of refusal  in\tcase
\nthe  lessor desired to let out the land on lease  after\t its
\nexpiry.\t On January 4, 1937, the second respondent purchased
\nfrom   Mrs.  Madan  the\t lease-hold  right,  including\t the
\nsuperstructure of a cinema house which had by that time been
\nconstructed  on\t the land by one of  the  previous  lessees.
\nThis  is  the  cinema house which came to be  known  as\t the
\nGaiety Theatre.\t The term of the lease was due to expire  on
\nMay 30, 1942.\n<\/p>\n
In  or\tabout  1939,  certain  suits  appear  to  have\tbeen
\ninstituted  in\tthe  High Court at Madras  in  its  Original
\nJurisdiction  for  the administration of the estate  of\t Sir
\nHajee  Ismail Sait.  In those suits, orders had been  passed
\nappointing  Receivers  of  that estate and  the\t estate\t was
\nthereafter being administered by the High Court.
\nIt  appears that by the side of the Gaiety Theatre  premises
\nthere was another plot of vacant land belonging to the\tsame
\nestate which was not bringing in any income.  The High Court
\npassed\torders\tthat that land should also be let out  on  a
\nlong  term  lease.  The father of the appellant\t offered  to
\ntake a lease of that land at a rent of Rs. 450 per month for
\na  period of twenty-one years with an option of renewal\t for
\nanother\t ten years, for the purpose of constructing a  show-
\nhouse  on it.  This was sometime in 1940.  At that time\t the
\nlease  of  the adjoining Gaiety Theatre bad only  about\t two
\nmore  years to run.  The appellant’s father did not  like  a
\ncompeting showhouse in close
\n190<\/span>
\nproximity  to  his own, and therefore, he suggested  to\t the
\nReceivers  that he should be given the lease of\t the  Gaiety
\nTheatre\t premises  also\t after\tthe  expiry  of\t the  second
\nrespondent’s  lease on May 30, 1942, at the same rent  which
\nwas  being  paid  by the second respondent and\tfor  a\tterm
\nending\twith his proposed lease in respect of the  adjoining
\npremises.  The proposals were put up by the Receivers to the
\nHigh Court for its consideration.  The High Court  thereupon
\ncalled upon the second respondent to elect whether he  would
\ntake  a\t fresh lease of the Gaiety Theatre  premises  for  a
\nperiod\tof  twenty one years after the expiry of  his  lease
\nthen current.  This was done as he had the option under\t his
\nlease.\t The  second respondent was not prepared to  take  a
\nfresh  lease  for twenty-one years but he suggested  that  a
\nlease  for another seven years might be given to him on\t his
\nagreeing  to vacate the premises after the expiry  of  those
\nseven  years without claiming any extension or option.\t The
\nproposals  from\t the  appellant’s  father  and\tthe   second
\nrespondent  were  then considered by the High Court  and  by
\nconsent\t of  parties orders were passed by it on  March\t 21,
\n1940, and the 2nd and 3rd of May, 1940.\t By these orders the
\nReceivers  were\t directed  to  grant a\tlease  of  the\tland
\nadjoining  the\tGaiety Theatre premises to  the\t appellant’s
\nfather\tfor  twenty-one years commencing from May  1,  1940,
\nwith  option  for  ten more  years.   These  orders  further
\ndirected  the  Receivers  to grant a  lease  of\t the  Gaiety
\nTheatre\t premises to the second respondent for a  period  of
\nseven  years from the same date without any option,  and  to
\ngrant  a lease of these premises to the\t appellant’s  father
\nfor a period of thirteen years and eleven months and a\thalf
\ncommencing  from the expiry of the seven years for  which  a
\nlease  of  them\t was  going to\tbe  granted  to\t the  second
\nrespondent.   The orders required the appellant’s father  to
\ndeposit a security of Rs. 10,000 in respect of the leases to
\nbe  granted  to him and this he duly deposited.\t  All  these
\nleases\twere then granted by the Receivers under the  orders
\nof the Court.  Apparently, the second respondent surrendered
\nthe remaining term of his lease which
\n191<\/span>
\nwas  to\t have  expired\ton May 30,  1942.   Relying  on\t the
\naforesaid   orders  and\t leases\t and  also  on\tthe   second
\nrespondent’s agreement to vacate the Gaiety Theatre premises
\non   the  expiry  of  his  lease,  the\tappellant’s   father
\nconstructed  a\tshowhouse on the land adjoining\t the  Gaiety
\nTheatre\t premises  which  came to be  known  as\t the  Casino
\nTheatre.\n<\/p>\n
On  October 1, 1946, the Act came into force and in view  of
\nits  provisions, the second respondent could not be  evicted
\nfrom  the Gaiety Theatre premises even after the  expiry  of
\nhis  lease.   Taking  advantage\t of  the  Act,\tthe   second
\nrespondent  refused to vacate the premises after the  expiry
\nof  his\t lease\ton April 30, 1947, which  he  had  expressly
\nagreed\tto do.\tOn May 1, 1947, the appellant’s mother,\t his
\nfather\thaving\tdied  in the meantime,\tdeposited  with\t the
\nReceivers a further sum of Rs. 9,000 as rent in advance,  as
\nrequired  by  the  terms  of  the  lease.   Thereafter\t the
\nappellant  ,seems  to have succeeded to the  estate  of\t his father.   He
\ntook various proceedings to eject  the\tsecond
\nrespondent   from  the\tGaiety\tTheatre\t premises  but\t was
\nunsuccessful.\tThereupon  he moved the Government  and\t the
\nGovernment after giving the second respondent a hearing, and
\nfully  considering the matter, passed the order of  June  4,
\n1952.\n<\/p>\n
The  High Court had called upon the Government to state\t the
\nreasons.  why  it  had\texercised  its\tpower  under  a.  13
\nexempting the Gaiety Theatre premises from the operation  of
\nthe Act.  The Advocate General appearing for the Government,
\nthe  first  respondent in this appeal,\tfiled  a  memorandum
\nsetting out these reasons.  The reasons were as follows:-\n<\/p>\n
\t      “(1).  When the High Court offered in 1940  to
\n\t      lease  out  the  premises in  question  for  a
\n\t      period  of 21 years, Sri Chettiar\t elected  to
\n\t      take  it on lease only for a period  of  seven
\n\t      years, which expired in 1947.  As per the High
\n\t      Court’s  order in C. S. No. 280-286\/1939,\t Sri
\n\t      J. H. Irani took a lease of the premises for a
\n\t      period of 13 years and 11-1\/2 months from 1947
\n\t      and  he deposited Rs. 10,000 towards the\tsaid
\n\t      lease.   He  is  therefore  entitled  for\t the
\n\t      benefits from 1948 onwards.\n<\/p><\/blockquote>\n
\t      192<\/span><\/p>\n
\t      (2)Had  not the Rent Control Act come  into
\n\t      force,   Sri  P.\tJ.  Irani  would  have\t got
\n\t      possession in the ordinary course as per\tHigh
\n\t      Court’s order and\t   the\tterms of  the  lease
\n\t      deed.   The operation of the Act is  therefore
\n\t      really a hardship to him.<\/p><\/blockquote>\n
\t      (3)  Sri Chettiar is only an  absentee  lessee
\n\t      and  he is having several other businesses  in
\n\t      South   India.   (4)  The\t  conduct   of\t Sri
\n\t      Chidambaram Chettiar in
\n\t      (4) Sri Chettiar had already  managed to be in
\n\t\t\t    refusing  to  surrender the possession  of\tth
\ne
\n\t      building\tto Sri P. J. Irani who had  taken  a
\n\t      valid lease under the orders of the High Court
\n\t      is  that of hard litigant seeking\t to  exploit
\n\t      the  letter of the law without much regard  to
\n\t      bona fides; and
\n\t      (5)Sri  Chettiar had already managed to  be
\n\t      in  possession of the building for  five\tmore
\n\t      years  than  he was legitimately\tentitled  to
\n\t      be.”\n<\/p>\n
The  High  Court having considered the reasons came  to\t the
\nconclusion  that they did not serve the purpose of the\tAct.
\nWe  are unable to accept this view.  It may be that some  of
\nthe  reasons  given would not have justified the  order\t but
\nbroadly, we think, they referred to facts which showed\tthat
\nthe  power had been exercised legitimately.  Indeed, on\t the
\nfacts  of this case which we have set out earlier, we  think
\nthat  it  was  unnecessary for the High\t Court\tto  ask\t the
\nGovernment to state the reasons for its order.\tIn our view,
\nthese facts themselves sufficiently show that the order\t was
\nwithin\tthe objects of the Act and not extraneous to s.\t 13.
\nWe  wish  to  observe before we\t proceed  further,  that  in
\nconsidering whether the reasons given by the Government\t are
\nsufficient to bring the order within the objects of the Act,
\nthe High Court had no power to act as if it were sitting  in
\nappeal\tover the Government’s decision.\t A court cannot\t set
\naside  an order under s. 13 on the ground that it would\t not
\nitself\thave  made the order for the reasons for  which\t the
\nGovernment  had made it.  All that the Court has to  see  is
\nwhether the power was used for any extraneous purpose,\tthat
\nis to say, not for achieving the object for which the  power
\nhad  been  granted.  When it is alleged that the  power\t was
\nused for a purpose other than achieving the object for which
\nthe
\n\t\t\t    193<\/span>
\npower  is  granted, the initial onus must be  on  the  party
\nwhich  alleges abuse of power and there must be prima  facie
\nevidence in support of the allegation.\tIt is only then that
\nthe onus may shift.\n<\/p>\n
However all this may be, was the power in this case in\tfact
\nused  for  an extraneous purpose?  It is not said  that\t the
\npower had been exercised for any ulterior purpose.  Now, the
\npurpose\t  of   the  Act,  quite\t clearly,  is\tto   prevent
\nunreasonable  eviction and also to control rent.  These\t two
\npurposes are intertwined.  An eviction becomes\tunreasonable
\nwhere the object is to exploit the situation arising out  of
\nthe  dearth of accommodation by letting out the premises  at
\nan unreasonably high rent and on realisation of extortionate
\npremium.   Often these are realised  secretly,\tparticularly
\nso,  the  premium.  Therefore, when there is no risk  of  an
\nopportunity  arising  in  which a landlord may\tbe  able  to
\nrealise\t illegal  rent or premium, an eviction\tmay  not  be
\nunreasonable; indeed, there may be circumstances which would
\njustify\t the inference that the tenant is trying to take  an
\nundue  advantage  of the situation and in such a  case,\t the
\nGovernment would be justified and within its power to exempt
\nthe  premises  from the operation of the Act.  That  is\t the
\nposition  here.\t  The lease was granted at a point  of\ttime
\nwhen the situation was normal, that is, when a landlord\t was
\nnot  in\t a position to make an\tunconscionable\tbargain\t for
\nhimself\t by  exploiting\t the situation, for  the  lease\t was
\ngranted in 1940 when there was no scarcity of accommodation.
\nNext,  the lease was granted under orders of Court.  It\t was
\ngranted by the officers of the Court.  There is no  question
\nof either the Court or the officers using the situation\t for
\npurposes of exploitation.  Again, to refuse exemption  under
\ns.  13\tin the present case would amount to  preventing\t the
\nCourt  from  administering  the estate in its  charge  in  a
\nmanner\twhich it has the power to do and which of course  is
\nits  duty to do for the benefit of the parties\tentitled  to
\nthe  estate.   There  was  nothing  unfair  to\tthe   second
\nrespondent  in\tgranting  the  exemption,  for\tthe   second
\nrespondent had been given the
\n25<\/span>
\n194<\/span>
\noption to take up the lease.  He had refused it.  He is\t now
\nobjecting  to  the exemption only because he finds  it\tmore
\nprofitable  to continue in the premises than he\t thought  it
\nwould  be at the time the offer had been made to  him.\t The
\nappellant  and his father had been deprived for a long\ttime
\nof the use of a considerable sum of money which was paid  in
\nterms  of  the bargain to which the  second  respondent\t had
\nfreely entered.\t It may be that the appellant’s father would
\nnot  have  gone\t in  for the lease  of\tthe  Casino  Theatre
\npremises and spent enormous sums of money for constructing a
\nshowhouse  there if the second respondent had not given\t him
\nto  understand\tthat  he  would\t leave\tthe  Gaiety  Theatre
\npremises  on  April  30, 1947.\tThe  fact  that\t the  second
\nrespondent  spent  money, if any, in  improving\t the  Gaiety
\nTheatre\t premises  is  irrelevant.   He\t knew  that  he\t had
\nundertaken  to\tvacate the premises by April 30,  1947,\t and
\nthat the appellant was taking steps to recover possession of
\nthese premises.\n<\/p>\n
We  do\tnot  think  that the difficulties  of  a  tenant  on
\neviction  decide what is or is not “unreasonable  eviction”.
\nOne  of the objects of the Act as stated in the preamble  is
\n“to  prevent  unreasonable eviction of tenants”.   The\tword
\n“unreasonable”\tnecessarily connotes a consideration of\t all
\nthe circumstances including the conduct of parties in  order
\nto find out what is unreasonable.  It seems to us that under
\ns.  13\tit  is\tthe duty of  the  Government  to  take\tinto
\nconsideration all the relevant circumstances of a particular
\ncase  or  class of cases in order to determine if  the\tpro-
\ntection of the Act given to the tenant or tenants  concerned
\nshould\tbe withdrawn.  The section is applicable not  merely
\nto  institutions  like\thospitals or  schools,\tbut  may  be
\napplied\t to other cases also, where there is no question  of
\nany unreasonable eviction of the tenant, or where prevention
\nof  eviction  itself may be  unreasonable.   We,  therefore,
\nthink  that the Government’s action in exempting the  Gaiety
\nTheatre\t premises from the operation of the Act\t was  within
\nthe  scope of the Act, and the High Court does not  seem  to
\nhave considered the case from this point of view.
\nFor these reasons, in our view, the order of June 4,
\n195<\/span>
\n1952,  was a competent and legal order and no exception\t can
\nbe taken to it.\n<\/p>\n
We  would,  therefore, allow the appeal and  set  aside\t the
\norder  of the High Court.  The second respondent should\t pay
\nthe costs of the other parties throughout.
\nBy  COURT.   In accordance with the majority  Judgment,\t the
\nappeal\tis  dismissed with costs to  the  contesting  second
\nrespondent.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India P. J. Irani vs The State Of Madras on 21 April, 1961 Equivalent citations: 1961 AIR 1731, 1962 SCR (2) 169 Author: K Subbarao Bench: Sinha, Bhuvneshwar P.(Cj), Das, S.K., Sarkar, A.K., Dayal, Raghubar, Mudholkar, J.R. PETITIONER: P. J. IRANI Vs. RESPONDENT: THE STATE OF MADRAS DATE OF JUDGMENT: 21\/04\/1961 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-176411","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nP. J. 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