Premier Synthetics Processor Ltd. and another vs Roshan F. Chinoy and another

V.V. Vaze, J.—u/s 13A-2 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) a landlord who holds a scientific post in the department of Atomic Energy of the Central Government or in any of its aided institutions is entitled to recover possession of any premises if bona fide required by him for occupation by himself or any member of his family. The landlord has to produce a certificate signed by an officer of the department of Atomic Energy or of above the rank of Deputy Secretary to Government to the effect firstly, that he is presently holding a scientific post in that department or in any of its aided institutions and secondly that he does not possess any other suitable residence excluding any residential accommodation provided by Government in the local area where he or the members of his family can reside. Dr. (Mrs.) Roshan F. Chinoy ("landlady") on the strength of the certificate postulated by sub-section (1) of Section 13A-2 of the Rent Act to the effect that she was holding the post of scientist in the Tata Memorial Centre from June 1975 and that she does not possess any other suitable premises within the municipal limits of Greater Bombay or adjoining area where she or the members of her family can reside, sought eviction of Messrs Premier Synthetics Processor Limited ("tenant") and others who were occupying the premises as tenants. An attempt was made by the tenant to persuade the Small Causes Court to make a reference u/s 113 of the CPC to this Court for an opinion on the question of the constitutional validity of the provisions of section 13A-2 of the Rent Act but the learned Single Judge of the Small Causes Court as well as the Appellate Bench of that Court having refused to do so the tenant has filed the present petition.

Under the scheme of the Rent Act any landlord is entitled to recover possession of his leased premises if the tenant has committed breaches enumerated in section 13(1) of the Act such as, erecting on the premises any permanent structure, causing nuisance or annoyance etc. But even without any default on the part of the tenant the landlord is enabled to recover possession if the Court is satisfied under clause (g) of sub-section (I) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. From out of the general class of landlords two special classes have been carved out. The first consists of landlords who are serving or retired members of the armed forces of the Union and the second comprises of such of the landlords who hold a scientific post in the Atomic Energy Department. The necessities that were felt by the legislature in according special treatment to this second of the special classes, are explained in the Statements of Objects and Reasons accompanying the Amending Act -Maharashtra XI of 1977 thus :

Persons holding scientific post under the Atomic Energy Department of the Central Government and its aided institutions like the Tata Institute of Fundamental Research and the Tata Memorial Centre, are playing key roles in pure and applied research and development in the scientific field in general and in the nuclear field in particular. The activities of these Scientists are spread all over India and some of them have to visit foreign countries also. They are liable to transfer from one unit to another. Some of them are required to occupy quarters provided by the Department in the vicinity of a Project as a condition of their service. Such of them, as have residential premises of their own, have necessarily to let them temporarily when posted on Projects or when required to stay in quarters provided by the department. On their transfer to the place where they own their premises or when they are required to vacate the quarters provided by the Department, they are compelled to initiate lengthy legal proceedings in the appropriate Courts under the existing Rent Control Act to recover possession of their premises. This diverts their concentration and results in loss of their precious time, which in the larger interest of the public, they should be able to utilise on their scientific research or nuclear Projects. In view of the important role played by them and the nature of their duties and obligations, these Scientists form a class by themselves who like the Defence Services personnel, need different treatment from that accorded to other landlords for the recovery of their own houses.

Accordingly, it is considered necessary to make a special provision in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for these Scientists also, analogous to that made for the Defence Services personnel with appropriate modifications to enable these scientists to regain possession of their premises when required for bona fide occupation by themselves or members of their families, on the production of the necessary certificate from the Atomic Energy Department. A retired Scientist will be able to get the benefit of this special provision only if he institutes the suit for recovery of possession within one year of his retirement, and his widow will get such benefit if she institutes the suit within one year of his death, if he dies while in service or within one year of his retirement.

It is commonplace to say that a legislature, if it is to act at all, must impose special burdens upon or grant special benefits to special groups or classes of individuals. From the very necessities of society such burdens are necessary to confer general benefits and to promote with as little inconvenience as possible, the general good. The equality or equal protection of Article 14 of the Constitution, requires, firstly, that the classification made by the legislature should be reasonable and not an arbitrary one, and-secondly, that the classification must have a rational relation to the object and purpose to be accomplished by the statute.

It has been strenuously argued that there is nothing esoteric about a scientist working in the department of Atomic Energy of the Central Government or any of its aided institutions that they should be singled out for a favored treatment, as is sought to be done by Section 13A-2 of the Act. The statement of the objects and reasons speaks of the scientist "playing key roles in pure and applied research" and "in the nuclear field" in particular. The speedy remedy of obtaining possession of the tenanted premises is predicated upon the fact that the scientist should not be "compelled to initiate lengthy proceedings in the appropriate Courts under the existing Rent Control Act to recover possession of their premises." The statement points out that initiating lengthy proceedings in Rent Control Act "diverts their concentration and results in loss of precious time which in the larger interest of the public they should be able to utilise on their scientific research or nuclear projects." The statement justifies the grouping of scientists in a class by themselves for a different treatment than that accorded to other landlords for the purpose of recovery of their own houses, in view of the peculiar duties and obligations performed by and imposed upon the scientist.

Mr. Andhyarujina, the learned counsel for the petitioner argues: Do not other functionaries in Government such as IAS, IPS, income tax and Judicial Officers play "key roles" in the affairs of Government? If these functionaries are "compelled to initiate lengthy proceedings" to recover possession of their premises will it not "divert their concentration and result in loss of their precious time"" The transfer which is a well-known incident of service equally applies to other Government officers and picking up the scientist in Atomic Energy department from amongst other government servants, argues counsel, is arbitrary and thus discriminatory.

This in fact is an argument of under inclusion and can squarely be met by saying that there is no doctrinaire requirement that a law should be couched in all embracing terms covering all the cases and persons who suffer from an evil which is sought to be remedied by the statute and if a law is intended to remove an evil where it was most felt it would not be overthrown because there were other instances to which it might have been applied. Even assuming that the law is under inclusive it will not avail counsel in his attack that the law is discriminatory. (See State of Uttar Pradesh and Others Vs. Pradip Tandon and Others, ).

The argument that the section is under inclusive, that is, the classification does not include all who are similarly situated with respect to the purpose of the law, has been urged from early times. In Missouri, K & T Rv. v. May 194 U.S. 267 at 269, Holmes J. in urging tolerance of under inclusive classification said that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched.

The fair reason as to why the law left a vast majority of tenants untouched is obvious; namely, that by doing so a very large number of people living in tenanted premises in the cities where the Rent Act applies would have been dislocated. The legislature in its wisdom did not attempt so drastic an uprooting of people and touched an infinitesimally small section. In the first place, most of the scientist-landlords like other government servants must have acquired flats by raising loans from Government or other like financial institutions. The younger amongst them would be only too happy to retain a good non-defaulter tenant so that they can service the loan by diverting the rent to the monthly installment of repayment, while continuing to occupy their allotted government accommodation. It requires no statistics to conclude that scientist-landlords envisaged by Section 13A-2 who are really in need of their flat for occupation would be few and far between considering the total number of tenements in the Magapolis of Bombay.

Counsel next argues that the classification of landlords holding a scientific post in the Atomic Energy department would be unreasonable one because such classification does not have any nexus with the objects of the Act and the purpose which it seeks to subserve.

Similar favourable treatment has been accorded to members of Army Forces of Union and their widows vide Section 13A-1 of the Act which came for consideration before the Supreme Court in Mrs Winifred Ross and Another Vs. Mrs Ivy Fonseca and Others, . It was urged that section 13A-1 can be availed of by any ex-member of Armed Forces to recover from a tenant the possession of the building which the ex-member acquired after his retirement. Rejecting such argument, the Court observed :-

purpose of the Act and in particular section 13A-I it is difficult to hold that section 13A-1 can be availed of by an ex-member of armed forces to recover from a tenant possession of a building which he acquires after his retirement....

Since a liberal interpretation of Section 13A-1 of the Act is likely to expose it to a successful challenge on the basis of Article 14 of the Constitution, it has to be read down as conferring benefit only on those members of the armed forces who were landlords of the premises in question while they were in service even though they may avail of it after their retirement. Such a construction would save it from the criticism that it is discriminatory and also would advance the object of enacting it, namely that members of the armed forces should not while they are in service feel worried about the difficulties of a long drawn out litigation when they wish to get back the premises which they have leased out during their service.

To take steps to ensure that an efficient, cohesive team of scientists is comfortably placed so that they give their very best to the Nuclear programme in a compelling governmental interest and that provides the hyphen which joins the classification with the object and purpose of the Act.

Explanation 2 of Section 13A-2 of the Act provides that for the purposes of this section, any certificate granted thereunder shall be conclusive evidence of the facts stated therein. The certificate not only is conclusive regarding the fact that the tenant is holding scientific post in the department of Atomic Energy or any of its aided institutions but also regarding his not possessing any other suitable residence in the local area. Counsel says he has no quarrel as to the conclusive nature of the fact that a certain person is holding a certain post in a government department but he makes a grievance about the conclusive nature of the fact of non-possession of suitable accommodation by the tenant in the local area which the certificate seeks to prove. Counsel compares provisions of clause (g) of sub-section (1) of section 3 of the Act where any landlord is entitled to recover possession of the tenanted premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself and differentiates them from those of section 13A-2 on the ground that whereas in the procedure under the former he would be able to convince the Court that the premises are not required by the landlord reasonably and bona fide, in the case of the proceedings initiated by the scientist landlord, as the one in the present case, the conclusive nature of the certificate would foreclose any enquiry before the Court. It is this conclusive nature of the certificate that makes mockery of the law which being unreasonable should be struck down as being violative of Article 14 of the Constitution.

As observed earlier section 13A-1 providing for landlords who were members of armed forces also contained similar provisions regarding the issuance of certificate by the head of his service or his commanding officer. Explanation 2 to the Section provides that any such certificate shall be conclusive evidence of the facts stated therein. Interpreting this provision the Supreme Court in Shivram Anand Shiroor Vs. Radhabai Shantram Kowshik and Another, observed :-

Section I3A-1 was enacted relaxing the rigour of section 13 in favour of a landlord who is or was a member of the armed forces. It is now provided that if he produces a certificate in the manner prescribed it shall be taken as established, without further proof that he is presently a member of the armed forces of the Union or that he was such member and is now a retired ex-serviceman and that he does not possess any other suitable residence in the local area where he or any member of his family can reside. All that he has to further prove is that he bona fide requires the premises for occupation by himself or any member of his family. The certificate is conclusive proof that he does not possess any suitable residence in the local area but not that he bona fide requires the same for occupation by himself or any member of his family. There may be cases where he does not possess any other suitable residence in the local area and yet he does not bona fide require the premises for occupation by himself or any member of his family being comfortably settled elsewhere with a no need or pressure to move. But as soon as he establishes that he bona fide requires the premises for occupation for his family he is entitled to recover possession and does not have to further prove that greater hardship would be caused to him than to the tenant if a decree for possession is not granted.

A last ditch effect was made by counsel to say that the officer of the Atomic Energy may be hamstrung in making enquiries as to the number of suitable residences which the scientist possesses in the local area for want of investigating machinery and hence it is likely that the certificate may operate as conclusive evidence of a state of fact that does not exist. The mere possibility of abuse of powers by a government functionary charged with its exercise does not, alone and by itself, make such conferment of power arbitrary rendering the statute containing such conferment of power as unconstitutional. While commenting on such protective and preclusive clauses H. V. R. Wade in its Administrative Law Fifth Edition P. 598 comments :

If a statute says that the decision ''shall be final'' or ''shall be final and conclusive to all intents and purposes'' this is held to mean merely that there is no appeal : Judicial control of legality is unimpaired. Parliament only gives the impress of finality to the decisions of the tribunal on condition that they are reached in accordance with the law.

In R. v. Preston Supplementary Benefits Appeal Tribunal (1975) 1 WLR 624 at 628 ex p. Moore the Court of appeal held that the provisions for any determination supplementary benefit appeal tribunal "shall be conclusive for all purposes" does not exclude the review by certiorari.

All that the Section 13A-2 of the Rent Act has done is to incorporate speedy and effective procedure enabling the scientist-landlords (on the analogy of Army Officer - landlord of section 13A-1) to recover possession of their tenanted premises. In Lindley v. Normet AIR 1964 SC 967 a state statute required in eviction proceedings for non-payment of rent that the trial should beheld between 2 and 6 days after the service of the complaint of the non-payment. It was challenged as being violative of the equal protection clause of fourteenth amendment. The Court rejected the contention that the need for decent shelter and the right to retain peaceful possession of one''s home are fundamental interest which are particularly upon only after the state demonstrates some superior interest and observed :

We do not denigrate the importance of decent, safe and sanitary housing. But the constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease.... Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative not judicial functions.

Our Supreme Court in flaw Datt Sharma v. Ratan Lal Bhargava AIR 1964 SC 967 reiterated its earlier observations in Kewal Singh Vs. Smt. Lajwanti, that :

Tenants cannot complain of any discrimination because the Rent Act merely gave certain protection or a part of it afforded by the Rent Act was withdrawn and the common law right of the tenant under the Transfer of Property Act was still preserved.

As we hold that Section 13A-2 of the Rent Act is constitutionally valid the petition fails and is dismissed with costs. Rule discharged.

At this stage Mr. Andhyarujina for the petitioner makes oral application for leave to appeal to the Supreme Court.

Leave refused.