Karnataka High Court
Syed Abdul Wadood And Etc. vs State Of Karnataka And Anr., Etc. on 10 November, 1987
Equivalent citations: AIR1988KANT194, ILR1987KAR3679, 1987(3)KARLJ549, AIR 1988 KARNATAKA 194, ILR 1987 KANT 3679, (1988) 19 REPORTS 232, (1987) 3 RENTLR 437
JUDGMENT Shivashankar Bhat, J.
1. In W.P. No. 23/1986, the prayer of the petitioner is to 'quash' the provisions of Karnataka Rent Control Act, 1961 ('the Act' for short) specially Ss. 29, 21(1) (a) and 31 of the Act. There is also a prayer to direct the State to enact a uniform legislation for the litigants in the State etc. There was also a prayer for striking down Act 31 of 1975 to the extent of it deleting the provisions for appeal under S. 48.
2. Petitioner states that he applied for allotment of a premises under the provisions of the Act, which was opposed by the then landlord. The writ petition proceeds on the assumption that he is the tenant against whom eviction proceedings are pending on the file of the Court of 19th Addl. Small Causes, Bangalore. The writ petition is sketchy about the facts. It straightway attacks the provisions of the Act as discriminatory because, litigants in Bangalore are subjected to a discriminatory treatment in the matter of forum. The eviction proceedings in Bangalore are filed in the Court of Small Causes and any order therein is to be challenged by filing revision petition under S. 50 before the High Court. In other parts of the State, eviction proceedings are to be filed either before the Court of Civil Judge. If empowered by notification, or before the Court of Munsiff having territorial jurisdiction over the area. In these cases, revisional jurisdiction is to be exercised by the District Judge and those litigants can further approach the High Court under S. 115 of the Civil P.C. against the decision of the District Judge if revision petition under S. 115. C.P.C. is barred, still the decision of District Judge can be challenged by invoking Arts 226 and 227 of the Constitution- Thus, the petitioner asserts that, the litigants of other areas in the State have more than two forum to agitate after the original proceedings, whereas, the number of such forum available to Bangalore litigants is only one. Petitioner further avers that the Act is silent as to how an order should be executed. Since important and complicated questions arise in the course of execution of an order, a specific proper machinery should have been specified. The applicability of the Code of Civil Procedure by virtue of R. 35 framed under the Rules is criticised as inadequate. Provisions of Ss. 29 and 21(1)(a) are attacked as vesting arbitrary powers which provide for eviction of a tenant for non-payment of rent, ignoring valid defences that may be available to him. Courts of Small Causes are established under the Karnataka Small Cause Courts Act. 1964. These courts, which are empowered to decide the disputes under the Act since 1975, have .inbuilt limitations in the exercise of their jurisdictions. An eviction proceeding may involve dispute as to several thousands of rupees or very valuable imm6veable property, both of which will be beyond the pecuniary, jurisdiction of Court of Small Causes. Therefore, vesting of Jurisdiction under the Act on these courts, is attacked without specifying the constitutional provisions which are contravened by this vesting of such a jurisdiction. The petitioner sought a reference to this Court under S. 113, CPC, from the Court of Small Causes on these questions. Having failed in -getting the reference, this writ petition is filed.
3. W.P.No. 17185/86 is by another tenant against whom proceeding for eviction is pending on the file of the 16th Addl. Judge of Small Cause Court, Bangalore City. He seeks a declaration that Courts of Small Causes, Bangalore City, have no jurisdiction, under the Karnataka Small Cause Courts Act, 1964,under the Act or under the Bangalore City Civil Courts Act, 1978 to try HRC cases under S. 21 of the Act. He further seeks a declaration that S. 29(4) of the Act to the, extent it reads "and make an order directing the tenant to put the landlord in possession of the premises or dismiss the appeal or revision petition as the case may be" as unconstitutional, violative of Art. 14, unreasonable, unjust and oppressive. The grounds urged in support of the prayer are substantially similar to the one urged in the first writ petition referred above.
4. M/s. AN. Albal and S.P. Shankar, learned counsel for the two petitioners advanced their respective contentions, on the basis of the following questions formulated by them:
(i) Court of Small Causes in Bangalore, constituted under the Karnataka Small Cause Courts Act, 1964, has no jurisdiction to entertain and try a proceeding under the provisions of the Act.
(ii) Provisions relating to appeals under S. 48(l) having been deleted providing for one revision under S. 50 is discriminatory since similar litigants in other parts of State ,(other than Bangalore) enjoy more number or remedies.
(iii) Sections 21 -and 29 conflict with each other - S. 21 is substantive law and S. 29 is procedural. Section 29 cannot override S.21.
(iv) S. 29(4) imposes an unreasonable restriction on the rights of the tenants to hold the demised premises Art. 14 is thus violated OR S. 29(4) has to be read down so as to make it valid
(v) Section 30 does not contemplate execution of any other kind of eviction order, except those under S. 21 and therefore order under S. 29 cannot be executed.
RE:(i) :
5. It is not disputed that the State legislature is, fully competent to make law on the subject of Rent Control and Evictions. If so, it follows that the legislature is also competent to create or demarcate the jurisdiction and powers of any Court with respect to that subject. If a subject matter of legislation falls under the Union List (List I of VII Schedule to the Constitution) such a power is found in Entry 95 thereof. In respect of a subject matter falling in List II, Entry 65 confers power on the State Legislature to provide for the jurisdiction and powers of the Courts with respect to such a subject. Entry 45 of List III is a similar provision regarding the subjects failing in the said list. When a legislature creates special rights and liabilities, it is competent for the said law making body, to create special forum to entertain to resolve the disputes arising under the special law. It is also open to the legislature to confer the jurisdiction and powers under the special law, on any existing courts. Legislature is also free to prescribe a special procedure to govern the proceedings under the special law. These are statutory matters. There is no inherent restriction on any court or Tribunal from being vested with special jurisdiction.
6. Powers and jurisdiction to entertain and decide disputes under Rent Control legislation are vested in Revenue Officers in some States; some States have thought it fit to confer such a power on the ordinary Courts. In some States, the proceedings are treated as a suit. In this State, eviction proceedings commence with an application under S. 21.
7. Contention of the petitioners is that, Small Cause Courts have an inherent limitation in the matter of exercising their powers. That is, because of the provisions of the Karnataka Small Cause Courts Act, 1964. Matters excluded from its cognizance as detailed in the schedule cannot be entertained by a Court of Small Causes. If the schedule permitted a Rent Control matter to be entertained by the Small Cause Court, such alis could have been entertained by the said Court. In fact, Mr. Albal, learned counsel, had no answer to the question, as to what barred the legislature from amending Small Cause. Courts Act to include matters arising under the Rent Control enactment being taken cognizance of. His grievance seems to be without amending the said Small Cause Courts Act, legislature cannot vest jurisdiction on the Sma11 Cause Courts by making a special legislation. It is impossible to accept this contention. It is based on no principle known to us. The contention has to be referred only to be rejected. Deletion of appeal provision was, however, not questioned at the time of the arguments.
8. The Act provides, a summary procedure, more akin to the procedure followed by Small Cause Courts. This is fully explained by his Lordship Murlidher Rao, J. (vide ILR (1987) Kant 1145). The need to have speedier trial and early disposal of cases under the Act, read with the limited nature of the disputes that arises under the Act, were obviously taken note of by the legislature, by prescribing a summary procedure. The prescription of such a summary procedure was not challenged before us. If so, it follows that, vesting of power and jurisdiction under the Act, with the Court of Small Causes, cannot be attacked as, arbitrary or as unreasonable.
9. 'Court' under the Act is defined-under S., 3(d). Said provision is not under challenge, It reads thus :-
" "Court" means,-
(i) in respect of the area comprised within the limits of the City of Bangalore, as defined in the Bangalore City Civil Court Act, 19179;
(ii) in such other areas as the State Government may, in consultation with the High Court, by notification specify, the court ,of the Civil Judge having territorial jurisdiction over such area; and
(iii) in respect of areas other than those referred to in sub-cls. (i) and (ii), the Court of Munsiff having territorial jurisdiction over such area."
10. In Bangalore city, powers of Court of Small Causes are exercised by Presiding Officers be longing to the Cadre of District Judges. Against an order of the Court under the Act, revision lies to the High Court directly as per S. -50. In other areas, such a revisional power is vested, in the District Judge. This is attacked as violative of Art 14. The contention was, that, Bangalore litigants have only two remedies - one original and next revisional. But, litigants in other parts of the State have a remedy of one revision before District Judge and thereafter, the forum of the High Court either by way of further revision or writ petition, will be available.
11. Bangalore is a major City in the State. The housing problem and the nature of litigation under the Act in Bangalore cannot be compared to that of other areas in the State. It is the capital City of the State. Apart from this, Bangalore has attracted several big industries. Its population is ever-growing, bringing with it, the problem of housing, the vast number. The constitution of subordinate courts for Bangalore City, is governed by Bangalore City Civil Courts Act. The Litigants of Bangalore are subject of special legislation with different kinds of Courts to entertain their civil disputes.
12. Having regard to its peculiar position and its problems, law has provided for an early culmination of the litigation by vesting the revisional jurisdiction in the High Court itself under the Act. In fact, the provision looks more beneficial, because the scope for examining the record of a case, in a revision under S. 50 is wider than the one provided by S. 115, C.P.C. or Arts. 226 and 227 of the Constitution. Availability of more number of revisional courts for litigants of other areas cannot be termed as an advantage. Bangalore is a class apart and a special provision governing the litigants therein cannot be held to be a discriminatory legislation at all.
RE (iiii) and (iv) :
13. Before going into the question of the validity of S. 29(4), it will be proper and essential to examine and understand the scope of S. 29. This provision has been in force in this State, along with other provisions of the Act since 31st Dec. 1961. The provision has been interpreted and acted upon, ever since, for about 25 years. This provision gets attracted whenever an eviction petition is filed by the landlord under any of the clauses of S. 21. In the trial court, tenant is barred. .from contesting an eviction petition filed against him under any of the provisions of, S. 21(l)(a) to (p), or if the tenant has an occasion to file any appeal or revision under the Act, again, he is barred from preferring or prosecuting them, if he is in arrears of rent. However, if the tenant is a respondent n the appellate or revisional court, this revision is inapplicable.
14. The Object of S. 29 is to ensure payment of rent to he landlord. The statutory protection given to the tenant by the Act, is made dependent on the tenant paying the rent promptly, unless, sufficient cause could be shown by him against the eviction order under this provision. The opening, non obstinate clause in S. 21(l) of the Act, makes it clew that, an immunity is conferred on ~he tenant against eviction. The landlord cannot resort to any terms of the contract to seek eviction of his tenant. Contractual terms or other provisions of law empowering the landlord to evict his tenant. are substituted by the several clauses of S. 2l(l). The landlord is enabled to seek possession only on proof of any of the grounds stated therein. Whenever the landlord seeks eviction, it can only by approaching the court as defined by the Act and on proof of the grounds enunciated under S. 2 1. It is the court that protects the tenant. The court will have to be satisfied about the existence of any one of the grounds stated in S. 2 l(l)(a) to (p) before ordering the eviction. The statute works through the court. The landlords right to enjoy the premises as he deems fit is taken away by the Act. Actually, the statute intervenes to prevent unreasonable' and arbitrary evictions by the landlord.
15. When the Act was enacted, Art. 19(l)(f) of the Constitution was in force. The Act could impose only reasonable restrictions on the landlord's right to enjoy his property. If the provisions , are unreasonable, the Act would have been struck down as offending his fundamental right to acquire, hold and dispose of his property. Even now, if the provisions are unreasonable and arbitrary, they are liable to be declared unconstitutional as offending Art. 14 of the Constitution. To avoid this situation, the Act has to be interpreted with reference to the provisions of the Constitution so that the Act will be a valid piece of legislation.
16. Rent is the consideration for the lease. It is the compensation payable to the landlord for the deprivation of his right to hold, dispose of or enjoy his rights as he deems fit. The basic concept of a lease requires, a consideration of some sort, to the less or by the lessee, as is evident from S. 105 of T.P. Act, relevant portion of which reads thus :-
" 105 : A lease of immoveable property is a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to he rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so-rendered is called the rent."
17. if rent is not paid by a tenant without a valid cause, he fails to discharge his basic obligation, in order to gain the benefit under the lease. His right to enjoy the demised property, depends upon this obligation to pay the rent. Having regard to the concept of lease and the need to compensate the landlord for the deprivation of his rights under the contractor the general law, there cannot be any unreasonableness it the statute insists that, the tenant should be prompt in the payment of rent in consideration for the protection given by the statute.
18. Scheme of S. 29 is to compel the tenant to discharge his basic obligation in the matter of paying the rent. Section 29 provides for the withdrawal of the statutory protection given to the tenant under S. 21, whenever, it is found that the tenant has acted inequitably, arbitrarily or capriciously, in the matter of discharging this basic obligation. Section 29 is a guarantee offered to the landlord, in this regard. The statute in question is not one sided; in it provision is made to compensate the landlord for the deprivation of his rights., 'The recalcitrant tenant is warned that, the statute cannot rescue him at all under the circumstances falling within S. 29.
19. Section 29 nowhere has vested an arbitrary power in the court. It has vested a discretionary power in the court under S. 29(4). If a defaulting tenant can show sufficient cause against stoppage of the main proceedings and an order of immediate eviction court would not stop further proceeding and would not order eviction. The proof of such sufficient cause, enables the tenant to fight out the main proceedings and statutory benefits will be available to him.
20. Section 29(4) is not an innovation of the year 1961. The principle underlying S. 29(4), governed the eviction proceedings against the tenant, even before the advent of Rent Control legislations. It is based on high equity and was found in S. 114 of the T.P. Act, which reads thus: -
"Where a lease of immoveable property bas determined by forfeiture for, non-payment of rent, and the lesser sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lesser the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
21. Before the introduction of Rent Control legislations, a tenant in arrears of rent had no defence against eviction. But S. 114 of T.P. Act, vested an equitable power in the Courts to grant relief against forfeiture of tenancy in case, the tenant could show sufficient cause for the same. The discretion given to the courts were held to be quite wide and was never confined by any prefixed boundaries. The Supreme Court in Namdeo Lokman Lodhi v. Narmadabai, quoted a decision of the House of Lords, with approval about the width of their discretionary power as follows "I desire in the first instance to point out that the discretion given by the section is ,very wide. The court is to consider all the circumstances and the conduct of the parties. Now it seems to me that when the Act is so express to provide a wide discretion, meaning no doubt to prevent one man from forfeiting what in fair dealing belongs to some one else, by taking advantage of a breach from which' he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunicated by the Master of the Rolls in the present case are useful maxims in general and that in general they reflect the point of view from which Judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all. It is not safe, I think to say that the Court must and win always insist upon certain things when the Act does not require them and the facts of some unforseen case may make the court wish it had kept a free hand."
Earlier, the Supreme Court at para 29 observed that, in exercising the discretion, each case may be judged by itself, the delay, the conduct of the parties and the difficulties .to which the landlord has been put should be weighed against the tenant. The maxim of equity that a person who comes in equity must do equity and must come with clean hands was applied to the conduct of the tenant who invoked this equitable relief against forfeiture. The discretion of the Court was wide enough to grant relief to a tenant in deserving cues.
22. Section 29(4) was construed generously and in favour of a tenant, who conducted himself reasonably and equitably, as early as in 1965 in Thomas Veigas v. Leelavathi, (1965) 2 Mys LJ 371. The relevant passage reads thus : -
"The object of the provisions of S. 29, in my opinion, is to secure prompt payment of rent by the tenants to the landlords during the pendency of the proceedings for eviction under the Act, and to is countenance any attempt on the part of tenants from stopping payment. A tenant, who wants to avail the benefits of the Act, is placed under an obligation to perform his part of the duty namely, the prompt payment of rent within the time allowed by law. If the tenant commits default, the statute has provided, by way of penalty, for the forfeiture of the protection afforded by the Act to the tenant; but power is conferred on the Court to relieve against the forfeiture if the tenant shows 'sufficient cause', and that power has to be exercised by the court on taking into consideration all the facts and circumstances of the case. The clause unless the tenant shows sufficient cause to the contrary is not in regard to the failure to pay or deposit the rent, but has reference to the subsequent clause, viz., to stop all further proceedings and make an order directing the tenant to put the landlord in possession of the premises."
It is further observed that,-
"What circumstances would constitute 'sufficient cause' to afford row to the tenant" under sub-sec(4) not having been laid down by the Act, the Courts have to exercise the discretionary power taking all the facts and circumstances of the case. In the consideration of the facts and circumstances, one of the, relevant consideration of the facts and the circumstances under which the tenant failed to pay or make the deposit., got would not amount to saying that the ' sufficient cause' has to be shown for the default. The tenant has to show cause by submitting all the facts and circumstances of the case including the circumstances under which he made default. The court in exercising its jurisdiction under the said sub-sec must judge each case on its facts. The delay, the conduct of the parties and the difficulties to which the landlord has been put to should all' enter into the consideration. If the delay is not great and from the conduct of the tenant' no want of bona fides can be imputed to him and if he makes payments by paying, or depositing into court all the rent in arrears together with interest and costs, I do not see why the court will not be justified in granting relief to the tenant."
23. The above decision has been repeatedly followed by this Court. It is being acted upon all these years. Except a recalcitrant tenant, others have not found the above principle as harsh. S. 29(4) did not' harm a tenant, who could show a sufficient cause against the stoppage of proceedings and ordering of the eviction.
24. Several infirmities are sought to be shown in the scheme of S. 29. It was attacked as going beyond the main scheme of the Act. The petitioner's counsel tried to establish that S. 29(4) vests an arbitrary and irrelevant power and as such, it invited an application .of Art. 14 of the Constitution against itself. The contention was, that, the Act was enacted to protect the tenants and to confine their evictions only if grounds stated in S. 21 are established. Section 29(4) bypasses this protection and directs eviction even if the grounds stated in S. 21 are absent. Since this is beyond the purpose of the Act, it is irrelevant in the scheme of the Act. Section 30, which provides for actual eviction, is stated to be inapplicable to an order of eviction under S. 29(4) : S. 30 reads thus :-
"Vacant possession to landlord Notwithstanding anything contained in any other law, where the interest of the tenant in any premises is determined for any reason whatsoever and any order is made by the "court under this Act for the recovery of possession of such premises the order shall subject to the provisions of S. 21, be binding on all persons who may be in occupation of the premises and vacant possession thereto shall be given to the landlord by evicting such persons therefrom :
Provided that nothing in this section shall apply to any person who has an independent title to such premises."
25. A perusal of S. 30 would show that, it governs every case of determination of a tenant's interest and any order for the recovery of possession of the premises. Purpose of S. 30 is to declare the consequences of an order of eviction. It declares that such an order binds all persons who may be in occupation of the remises, subject to the provisions of S. 21. In other words, if any other person is in possession of the premises, other than the person against whom an order is made, the person in possession also can be evicted, except in a case where such other person can independently seek the protection of S. 2 1. This provision in no way introduces an uncertainty in effectuating an order made under S. 29(4). The assumption of the counsel for the petitioners that, in spite of an order of eviction under S. 29(4), the tenant against whom such an order is made, cannot be evicted, in view of S. 30, is entirely misconceived.
26. It was also urged that in many of other States in this country, similar provision as found in S. 29(4), was not enacted. In all the decisions of the Supreme Court cited before us, legislation stopped in striking out the defence of the erring tenant, but did not proceed to evict the tenant. It was contended that S..29(4) goes far beyond this, it was pointed out that the main provision in S. 29(l) actually provides striking of the defence only, having regard to its language. In view of these circumstances, it was urged that. S. 29(4) should be struck down as arbitrary. It was argued that S. 29(4) provides for an order of eviction without trial on the merits of the case. If in other States, the erring tenant had to suffer only to the extent of striking out his defence, why not in this State. also legislation should not be confined to such a measure only. A few decisions cited before us may be considered at this stage.
27. In Ganesh Prasad Sah Kesari v. Lakshmi Narain Gupta, , the interpretation of S. 11A of the Bihar Buildings (Lease, Rent and Eviction ' ) Control Act came up before the Supreme Court. Section 11 A stated that, if the tenant fails to deposit the arrears of rent as directed by the Court, in the course of a suit for recovery of possession, the court shall order the defence against ejectment to be struck out. Landlord invoked this provision, but the trial court rejected the landlord's prayer. However, in the revision petition filed by the landlord, the High Court directed the defence of tenant to be struck off. This order of the High Court was questioned before the Supreme Court. Supreme Court observed at para 3, thus :
"Section 11 A to some extent, can be styled as a check on the tendency of the defendant to protract the litigation by frivolous more especially where the duty to pay the rent is unmistakably admitted. In a suit for eviction, S. I IA enables the court to give a direction to pay rent which is claimed to be. in arrears as also to compel the defendant who continues: to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly. It also enables the court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent .........."
Further, in para 4, it was stated that, " .....where power is conferred on the court to give such directions, a sanction had to be created to guard against the failure to comply with the court's directions. The sanction is to be found in the conferment of power on the court to strike off the defence of the tenant if the tenant fails to comply with the order of the court giving directions for deposit. Such a sanction would again advance justice. So far there is no dispute."
Thereafter Supreme Court considered the question whether S. I IA was a mandatory provision and whether court is bound to order the striking of the defence. The word 'shall' was construed as conferring a discretionary power, as otherwise, it will prevent the court from granting relief in appropriate cases. The reasoning is found in para 7, thus:
"Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in character. However, by a catena of decisions, it is well established that the court while considering whether the mere use of the word 'shall' would make the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word 'shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word 'shall' is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with, its order."
Again in the concluding sentence of para 8 the Supreme Court observed, -
"Such a construction would advance the purpose for which the Act was enacted namely the 'protection of tenants. It will also not render the court powerless in the! face of harsh facts where striking off the defence would be' nothing short of miscarriage of justice."
Then the Supreme Court held it was proper and necessary to construe the relevant provision as conferring a power in the court to direct striking out the defence, or not, depending upon the circumstances of the case, in spite of the 'word' shall in S. 11A.
28. AIR 1980 SC 597 (Shyamcharan Sharma v. Dharamdas) was cited to point out that under the Madhya Pradesh Accommodation Control Act, only a discretionary power is vested in the court to strike out the defence of a defaulting tenant, under similar circumstances.
29. , (Miss Santosh Mehta v. Om Prakash) is a case that arose under a similar statute of Delhi. Power to strike out the defence of a tenant in an eviction proceeding was held to be a penal provision, to be exercised sparingly and only in extreme cases. The Supreme Court observed that, -
"Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent.......First of all, there must be a failure to pay which, in the context, indicates willful failure, deliberate default or volitional non performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort, a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power.
There is no indication whatsoever in the Act to show that the exercise of the power of striking out of the defence under S. 15 (7) was imperative whenever the tenant failed to deposit or pay any amount as required by S. 15. The provisions contained in S. 15(7) of the Act are directory and not mandatory. It cannot be disputed that S. 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases the Controller may refuse to visit upon the tenant the penalty of non-payment -or non-deposit. The effect of striking out of the defence under S. 15M is that the tenant is deprived of the protection given by S. 15(7) of the Act must be exercised with due circumspection".
30. (B.P.Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick) is a case '.from West Bengal. The relevant provision quoted in para 13 of the decision of the Supreme Court stated that, the Court shall' order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit, in case of default in the payment of rent. Subsequent provision provided to grant relief to the tenant under ,certain circumstances. Having regard to these provisions, the Supreme Court held that, the word shall was not used in a mandatory sense, and consequently the provision for striking out the defence is to be read as directory, vesting a discretion in the court to order either striking out of the defence or not depending upon the circumstances of the case and interests of justice.
31. (Mranalini B. Shah V. Bapalal Mohanlal Shah) is a decision under the Bombay Rents, Hotel and Lodging House Rates Control Act. Sec. 12(3)(b) of the aforesaid Act requires the tenant to pay rent, regularly during the pendency of a suit for eviction. The question, that arose before the Court was stated in para 2 as thus:-
Whether in case of a monthly tenancy, the court has a discretion to treat the payment or tender of rent made at intervals ranging from two to four months during the pendency of the suit/appeal as a regular payment or tender within the contemplation of cl. (b) of S. 12(3) ?"
It was contended by the tenant that requirement to pay the rent 'regularly' was only a directory provision and a strict compliance with its provisions need not be insisted upon. This contention was negatived in view of an earlier ruling of the Supreme Court reported in Ganpat Ladha v. Sashikant Vishnu Shinde, . After quoting the relevant passage from Ganpat Ladha's case, Supreme Court held at para 12, that "the provisions of cl. (b) of S. 12(3) are mandatory. The relevant passage in Ganpat Ladha's case is, -
"It is clear to us that the Act interferes with the landlord's right to property and freedom :of contract only for the limited purpose of protecting tenants from misuse of the landlords power to evict them, in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of his rights in property which have also-to-be respected. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf........ But where the conditions 5f S. 12 (3) (a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction. He can comply with the conditions set out in S. 12 (3) (b) and defeat the landlords claim for eviction. If, however, he does, not fulfill those conditions, he cannot claim the protection of S. 12(3) (b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him. It is difficult, to see how by any judicial valour discretion exercisable in favour of the tenant can be found in S. 12(3)(b) even where the conditions laid down by it are satisfied, to be strictly confined within the limits prescri6ed for their operation. We think that Chigla, C.J., was doing nothing less than legislating in Kalidas Bhavan's case (1958) 60 Bom LR 1359, in converting the provisions of S. 12(3)(b) into a sort of discretionary jurisdiction of the Court to relieve tenants from hardship. The decisions of this Court referred to above, in any case, make the position quite clear that S. 12(3)(b) does not create any discretionary jurisdiction in the court. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section. If the statutory provisions do not go far enough to relieve the hardship of the tenant the remedy lies with the legislature. It is not in the hands of courts".
Having regard to the context of S. 12 of Bombay Act, Court took a stricter view of the obligation of the tenant to pay the rent regularly.
32. In Paradise Industrial Corpn. v. Kiln Plastics Products, , the Supreme Court explained the effect of striking out the defence of a tenant. At p. 312 it is stated, "Even when a defence is struck off the defendant is entitled to appear, cross-examine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him".
33. In this connection, it will be useful to refer to the decision in Smt. Gian Devi Anand v. Jeevan Kumar, in which at para 2.3 the Supreme Court pointed out the objectives sought to be achieved by several Rent Control enactment in various States in India. At page 806, it is observed:
"On the determination of the contractual tenancy, the landlord becomes entitled under the law of the land to recover possession of the premises from the tenant in due process of law and the tenant under the general law of the land is hardly in a position to resist eviction, once the contractual tenancy has been duty determined. Because of scarcity of accommodation and gradual high rise in the rents due to various factors, the landlords were in a position to exploit the situation for unjustified personal gains to the serious detriment of the helpless tenants. Under the circumstances it became imperative for the legislature to intervene to protect the tenants against harassment and exploitation by avaricious landlords and appropriate legislation came to be passed in all the States and Union Territories where the situation required an interference by the legislature in this regard. It is no doubt true that the Rent Acts are essentially meant for the benefit of the tenants. It is, however, to be noticed that the Rent Acts at the same time also seek to safeguard legitimate interests of the landlords. The Rent Acts which are indeed in the nature of social welfare legislation are intended to protect tenants against harassment and exploitation by landlords, safeguarding at the same time the legitimate interests of the landlords. The Rent Act seeks to preserve social harmony and promote social justice by safeguarding the interests of the tenants mainly and at the same time protecting the legitimate interests of the landlords. Though the purpose of the various Rent Acts appear to be the same, namely, to promote social justice by affording protection to tenants against undue harassment and exploitation by landlords, providing at the same time for adequate safeguards of the legitimate interests of the landlords, the Rent Acts undoubtedly lean more in favour of the tenants for whose benefit the Rent Acts are essentia11y passed". (Underlining is ours)
34. The last clause was pressed into service to contend that the provisions of the Act should be construed to favour and protect the tenants as a class and therefore S. 29(4) is out of place in such a scheme of the Act. This contention overlooks the ratio of the decision of the Supreme Court. Though primarily the Act is meant to protect against harassment of tenants by the landlords, the law has also to safeguard the interest of the landlord against the exploits of a recalcitrant tenant. The leased premises may be the sole investment of a landlord; his life's saving may have been invested in it. It cannot always be said that the tenant alone requires the protection. There are well to do wise men amongst the tenants, so also landlords who are in stringent circumstances. It is not possible to hold that every landlord exploits his tenant and every tenant an innocent culprit. Landlord has to get a reasonable return for the premises which is let out. In these circumstances, the Supreme Court in the above case, pointed out that the law should harmonise the interest of both sets of persons and legitimate interest of both should be safeguarded. The purpose of Rent Control legislation is not conferment of an absolute benefit on the tenant without any corresponding obligation. Its provisions, are to be interpreted in the manner every beneficial legislation is interpreted. But that would not lead to the principle that, any provision which puts an irksome restriction or obligation on the tenant, should be held as unreasonable.
35. The words of caution stated in Yudhishter v. Ashok Kumar, may be recalled to the effect : -
"It is well settled that though the Rent Act is a beneficial legislation, it must be read reasonably and justly. If more limitations are imposed upon the right to hold the property then it would expose itself to the vice of unconstitutionality. Such an approach in interpretation of beneficial statutes is not warranted. It is true that one should iron out the creases and should take a creative approach as to what was intended by a particular provision but there is always, unless rebutted, a presumption as to constitutionality and the Act should be so read as to prevent it from being exposed to the vice of unconstitutionality. State is also presumed to act fairly".
36. It is not possible to accept the contention that S. 29(4) should be struck down, on the ground that it goes far beyond similar provisions in other States. Primarily, it is for the State legislature to consider as to hat provision is required to achieve its purposes. Circumstances prevailing in all the States in India will not be uniform. Each State in India, has its own problems, which its legislature is deemed to have considered while enacting a particular provision. The observations of Supreme Court in Mohd. Hanif Quareshi v. State of Bihar, , are very pertinent in this regard. At para 15, it is observed, -
"The courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation?.
Again at para 21, it is stated, -
"Clause (6) of Art. 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by sub-cl. (g) of cl. (1) of Art. 19. Quite obviously it is left to the court, in case of dispute, to determine the reasonableness of the restrictions imposed, by the law. In determining that question, the court, we conceive, cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-cl. (g) is expressed in general language and if there had been no qualifying provision like cl. (g) the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot be decided on that basis. What the court has to do is to consider whether the restrictions imposed are reasonable in the interests of the general public".
After extracting another oft-quoted passage from (State of Madras v. V. G. Row), it proceeds to refer to (State of Bihar v. Sir Kameshwar Singh) at p. 274 to quote, that, "the legislature is the best judge of what is good for the community, by whose suffrage it comes into existence......" (Underlining is ours.)
37. Inter alia, the object of the Act is to provide for the control of rents and evictions. The object is not to bar eviction; its stated object certainly is not to enable the tenant to enjoy the 'Protection of the Act, without payment of the Rent. Payment of rent is the primary duty of the tenant is clear from several provisions of the Act, such as Ss. 80), 19 and 29(l.) of the Act.
38. Section 29 (4) in no way vests an arbitrary power to order eviction. The defaulting tenant can always show sufficient cause against the action. Concept of sufficient cause is well known and has been liberally construed. It is based on equity. Power is vested in the Court. Discretion to be exercised is judicial. An erroneous exercise of power under S. 29(4) can be rectified by superior courts. We have no doubt in our mind that eviction under S. 29(4) will be under extreme circumstances and will be resorted, very rarely. Having regard to the several decisions of Supreme Court, the 'shall' in S. 29(4) has to be read as a directory provision, vesting a judicial discretion in the court to exercise the power. Object of S. 29(4) is to withdraw the immunity against eviction, from the erring tenant. It does not confer an extra privilege on the landlord. Language of S. 4 of the Act makes it clear that, a landlord getting possession of the premises under S. 29(4) cannot occupy it. He has to report vacancy under S. 4 and await an allotment or release order under S. 8. These provisions make it clear that S. 29(4) does not supplement the provisions of S. 21(l)(a) to (p), which provide grounds of eviction in favour of the landlord. Purpose of S. 29(4) is to prevent the tenants from taking undue advantage of the protection against eviction, by resort to dilatory tactics or otherwise. A liberal interpretation of S. 29(4) as any other equitable provision, harmonises it with the objects of the Act and its scheme.
39. It was argued that, S. 29(4) goes far beyond the wordings of S. 29(l). Section 29(l) says that no tenant shall be entitled to contest the application or to prefer or prosecute a revision petition etc. Bar against contesting an application for eviction was equated to the striking out the defence. Therefore, it was contended that, even if defence is struck out, tenant may participate in the eviction proceedings in the manner stated by Supreme Court in .
40. The word 'contest' cannot be understood, in the limited sense pleaded by the learned counsel for the petitioners. It is wider; it comprises within it, any manner of challenging the case of the landlord. For example, when a witness is cross-examined, his statement and the case sought to be proved through him is being contested. Legislature which is familiar with the provisions regarding striking out a defence, has deliberately departed from such a provision and used the word 'contest'. If understood in this manner, S. 290) can be harmonised with S. 29(4). As already observed by us, no automatic eviction results under S. 290). The tenant is given pie opportunity of showing sufficient cause against stoppage of proceedings and passing of an order of eviction. If tenant is precluded from contesting, he is deprived of his protection. Landlord does not get any benefit except riddance of a recalcitrant tenant. Grounds urged in his main application under S. 2 1 (1) are not treated as established. Court withdraws itself from guarding the tenant against eviction. Landlord has to approach the authorities under Ss. 4 and 8 to occupy the premises. Thus, the landlord, is still prevented from resorting to arbitrary action to occupy the premises. Thus construed, it is clear that S. 29(4) supplements the- provision of S. 29(l) and is harmonised with it.
41. For the same reasons stated above, we hold that there is no conflict between Ss. 21 and 29. They occupy different fields and serve different purposes. Section 291 protects the legitimate interest of the landlord by guaranteeing him of the rent. At the same time, it has an inbuilt equitable machinery to safeguard the interest of tenant who conducts himself equitably and Who can show sufficient cause against an adverse order thereunder. It is for the State legislature to consider the propriety of such a provision in the context of the situation prevailing in the State and therefore, it is not possible to strike it down just because similar provision as in S. 29(4), is not found elsewhere. It is not established by the petitioners that S. 29(4) is an arbitrary provision; it cannot be termed unreasonable for any reason. Rigors of the provision has been tempered by interpretation to make it equitable. This provision is in force for nearly 25 years. It has been interpreted and acted upon. The people of this State have adjusted to this provision all these years. In such a situation, unless the petitioners establish by cogent reason, that the impugned provision, is patently arbitrary or unjust or that, the circumstances have changed so as to make the law unconstitutional in the present changed set up, court cannot strike down the said provision of law. The principle stated by the Supreme Court in Thamma Venkata Subbamma (dead) by LR v. Thamma Ratamma, will equally, apply to the present case. At page 1779 (para 18), it was observed :-
"When a particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances. It is for the Legislature to consider whether it should change such law or not."
Certainly and continuity in law should not be disturbed, by the courts, unless, situation, necessarily warrants interference.
Re. (v) :
42. Section 30 has already been quoted and interpreted by us above. In view of the meaning attributed to its language, this contention also does not survive.
43. In the view we have taken, as above, it is unnecessary to examine the objections raised by Sri Chandrasekharaiah, learned Govt. Advocate, as to the locus standi of the petitioners and the maintainability of these writ petitions.
44. In the result, for the reasons stated above, the writ petitions are dismissed without any order as to costs.
45. Petition dismissed.