Full Judgment Text
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PETITIONER:
JYOTI PERSHAD
Vs.
RESPONDENT:
THE ADMINISTRATOR FOR THE UNIONTERRITORY OF DELHI(AND CONNEC
DATE OF JUDGMENT:
21/04/1961
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
SARKAR, A.K.
MUDHOLKAR, J.R.
CITATION:
1961 AIR 1602 1962 SCR (2) 125
CITATOR INFO :
RF 1961 SC1731 (13)
RF 1964 SC 600 (54)
R 1965 SC1107 (79,80,87)
D 1966 SC1003 (12)
RF 1968 SC 303 (28,35)
R 1968 SC 317 (13,18)
RF 1968 SC1232 (19)
F 1974 SC1232 (21)
R 1974 SC2009 (14,15)
F 1974 SC2044 (3)
D 1977 SC 265 (7)
RF 1977 SC 789 (7)
RF 1977 SC1825 (51)
F 1978 SC 771 (5,24)
RF 1979 SC 478 (72)
C 1980 SC 350 (9)
R 1980 SC1382 (81)
F 1986 SC1205 (20)
R 1990 SC 560 (13)
D 1991 SC 101 (22,148,226)
ACT:
Slum Areas-Improvement and clearance of Validity of
enactment-Constitutionality-Rent Control-Operation of Rent
Control Act in areas governed by Slum Areas Act-Delhi &
Ajmer Rent Control Act, 1952 (38 of 1952)-Slum Areas
(Improvement and Clearance) Act, 1956 (96 of 1956), s. 19-
Constitution of India, Arts. 14, 19(1)(f).
HEADNOTE:
The petitioner after a prolonged litigation and having ful-
filled all the conditions of the Delhi Rent Control Act,
obtained decrees of ejectment against the tenants.
126
In the meantime the Slum Areas (Improvement and Clearance)
Act, 956, came into force and the petitioner in accordance
with s. s.9 of the said Slum Areas Act applied to the
competent authority for permission to execute the decree,
which permission was refused inter alia on the grounds of
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hardship to the tenants and the human aspect of the case.
The appeals therefrom were also rejected. The petitioner
moved the Supreme Court for issue of a writ of certioraris
to quash the orders on the ground that (1) s. 19 of the Act
was invalid and unconstitutional as violative of the
petitioner’s rights guaranteed by Arts. 14 and 19(1)(f) of
the Constitution, in as much as s. 19 of the Slum Areas Act
was a super-imposition on the rights of the petitioner who
had satisfied the requirements of the Rent Control Act
before obtaining his decree, which amounted to unreasonable
restrictions on the right to hold property guaranteed by the
Constitution, and (2) that S. 19(3) of the Slum Areas Act
vested an unguided, unfettered, and uncontrolled power in an
executive officer to withhold permission to execute a decree
which the petitioner had obtained after satisfying the
reasonable requirements of the law as enacted in the Rent
Control Act, (3) The power conferred on the competent
authority by s. 19(3) of the Slum Areas Act was an excessive
delegation of legislative power and therefore unconstitu-
tional.
Held, that s. 19 of the Slum Areas (Improvement and Clea-
rance) Act, 1956, was not obnoxious to the equal protection
of laws guaranteed by Art. 14 of the Constitution. There
was enough guidance to the competent authority in the use of
his discretion under s. 19(1) of the Act. The restrictions
imposed by s. 19 of the Act could not be said to be
unreasonable.
The guidance could be derived from the enactment and that it
bears a reasonable and rational relationship to the object
to be attained by the Act and in fact would fulfil the
purpose which the law seeks to achieve, viz., the orderly
elimination of slums, with interim protection for the slum
dwellers until they were moved into better dwellings.
The order of the competent authority in the present case was
not open to challenge as it was in line with the policy and
purpose of the Act.
So long as the Legislature indicated in the operative provi-
sions of the statute with certainty, the policy and purpose
of the enactment, the mere fact that the legislation was
skeletal or that every detail of the application of law to a
particular case, was not laid down in the enactment itself
or the fact that a discretion was left to those entrusted
with administering the law, afforded no basis either for the
contention that there had been an excessive delegation of
legislative power as to amount to an abdication of its
functions, or that the discretion vested was uncanalised and
unguided so as to amount to a carte blanche to discriminate.
If the power or discretion has been conferred
127
in a manner which was legal and constitutional the fact that
the Parliament could possibly have made more detailed provi-
sion, could not be a ground for invalidating the law.
The freedom to ’hold property’ was not absolute but was
subject, under Art. 19(5), to "reasonable restrictions"
being A placed upon it "in the interests of the general
public". The criteria for determining the degree of
restriction on the right to hold property which would be
considered reasonable, were by no means fixed or static, but
must obviously vary from age to age and should be related to
the adjustments necessary to solve the problems which
communities faced from time to time. If law failed to take
account of unusual situations of pressing urgency arising in
the country and of the social urges generated by the
patterns of thought, evolution and of social consciousness,
it would have to be written down as having failed in the
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very purpose of its existence. Where the legislature
enacted laws, which in its wisdom, was considered necessary
for the solution of human problems, the tests of
"reasonableness", had to be viewed in the context of the
issues which faced the legislature. In the construction of
such laws and particularly in judging of their validity the
courts had to approach it from the point of view of
furthering the social interest which it was the purpose of
the legislation to promote, for the courts were not, in
these matters, functioning as it were in vacuo, but as parts
of a society which was trying, by enacted law, to solve its
problems and achieve social concord and peaceful adjustment
and thus furthering the moral and material progress of the
community as a whole.
That the provisions of the special enactment, the Slums
Areas (Improvement and Clearance) Act, 1956, will in respect
of the buildings in areas declared slum areas operate in
addition to the Delhi & Ajmer Rent Control Act, 1952.
Ramakyishna Dalmia v. justice Tendolkar, [1959] S.C.R. 279,
Harishankar Bagla v. State of Madhya Pyadesh, [1955] 1
S.C.R. 380, M/s. Dwarka Prasad Laxmi Narain v. The State of
Uttar Pradesh, [1954] S.C.R. 803, State of West Bengal v.
Anwar Ali Sarkar, [1952] S.C.R. 284, Kathi Ratting Rawat v.
State of Saurashtra, [1952] S.C.R. 435, Kedar Nath Bajoria
v. State of West Bengal, [1954] S.C.R. 30 and Pannalal
Binjraj v. Union of India, [1957] S.C.R. 233, discussed.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 67, 87 and 130 of
1959.
Petitions under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
R. S. Narula and S. S. Chadha, for the petitioners.
M. C. Setalvad, Attorney-General of India, B. Sen and T.
M. Sen, for Respondents Nos. 1, 2 and 5 (In
128
petition No. 83 of 1959) 1, 2 and 12 (In Petition No. 67 of
1959) and 1, 2 and 4 (In Petition No. 130 of 1959).
W. S. Barlingay and A. G. Ratnaparkhi, for respondent No.
3 (In Petn. No. 83 of 1959).
Sardari Lal Bhatia, for respondents Nos. 3a, 4, 5, 6 (a, b,
c,) and 7-10.
J. D. Jain and K. L. Mehta, for the Intervener in Petition
No. 67 of 1959 (Phool Chand).
1961. April 21. The Judgment of the Court was delivered by
AYYANGAR, J.-These three petitions have been filed invoking
the jurisdiction of this Court under Art. 32 of the
Constitution challenging the constitutionality of s. 19 and
particularly sub-s. 3, of the Slum Areas (Improvement and
Clearance) Act 1956 (Central Act 96 of 1956), on the ground
that it offends the fundamental right of the petitioners
guaranteed to them by Arts. 14 and 19(1)(f).
To appreciate the grounds on which this contention is sought
to be sustained it is necessary to set out briefly a few
facts. We might however mention that though the
constitutional objection, adverted to is common to all the
three petitions, it is sufficient to refer to the facts of
the case in Writ Petition No. 67 of 1959 which is typical of
the cases before us.
The petitioner-Jyoti Pershad-is the owner of a house in
Delhi in which respondents 3 to 11 were tenants. Each of
these nine individuals occupied a single room in this house.
As the petitioner considered the house to be old and
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required to be demolished and reconstructed, he submitted a
plan to the Council of the Delhi Municipal Committee and
applied for sanction for the reconstruction of the house.
The plan was sanctioned and thereafter the petitioner filed
suits against these nine tenants under s. 13(1)(g) of the
Delhi and Ajmer Rent Control Act 38 of 1952 (which will
hereafter be referred to as the Rent Control Act). The
suits were resisted by the tenants. Two matters had to be
proved under s. 13(1)(g) of the Rent Control Act by a
plaintiff before he could obtain an order of
129
eviction:(i) that there was a plan which had been sanctioned
by the municipal authorities which made, provision for the
tenants then in occupation of the house being accommodated
in the house as reconstructed, and (ii) that the plaintiff
had the necessary funds to carry out the reconstruction.
The plan which had been approved by the Delhi Municipal
Committee made provision for the construction of a double-
storeyed building with twelve rooms which was, therefore,
more than ample for the nine tenants for whom accommodation
had to be provided. The plaintiff also established that he
had deposited cash in the State Bank of India sufficient for
reconstructing the house as sanctioned in the plan. On
December 8, 1956 the Civil Court in Delhi passed decrees in
favour of the petitioner for the eviction of respondents 3
to 11. Section 15 of the Rent Control Act enacted:
"15. (1) The Court shall, when passing any
decree or order on the grounds specified in
clause (f) or clause (g) of the proviso to
sub-section (1) of section 13, ascertain from
the tenant whether he elects to be placed in
occupation of the promises or part thereof
from which he is to be evicted and if the
tenant so elects, shall record the fact of the
election in the decree or order and specify
therein the date on or before which he shall
deliver possession so as to enable the
landlord to commence the work of repairs or
building or re-building as the case may be.
(2)If the tenant delivers possession on or
before the date specified in the decree or
order, the landlord, shall, on the completion
of the work of repairs or building or re-
building place the tenant in occupation of the
premises or part thereof
(3)If, after the tenant has delivered
possession on or before the date specified in
the decree or order the landlord fails to
commence the work of repairs or building or
re-building, within one month of the specified
date or fails to complete the work in a
reasonable time or having completed the work,
fails to place the tenant in occupation of the
premises in
17
130
accordance with sub-section (2), the Court
may, on the application of the tenant made
within one year from the specified date, order
the landlord to place the tenant in occupation
of the premises or part thereof on the
original terms and conditions or to pay to
such tenant such compensation as may be fixed
by the Court."
The tenants, however, refused to give up possessession
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within the three months time granted to them by the decrees
to vacate the premises but went up in appeal against the
orders of eviction under s. 34 of the Rent Control Act to
the Senior Sub-Judge, Delhi. These appeals were finally
disposed of against the tenant-appellants, some on the
merits and some by reason of abatement, by the end of
October, 1957. Under the rules governing the construction
of houses on plans sanctioned by the Delhi Municipal Com-
mittee, the sanctioned building had to be completed within a
period of one year from the date of sanction. As a result
of this rule the sanction obtained by the petitioner lapsed
and he had, therefore, to obtain fresh sanction if in
consequence of his success in the appeals before the Senior
Sub-Judge he still desired to demolish and reconstruct the
building.
Meanwhile, two changes came about in the law governing
matters relevant to the present case: The first was that the
Slum Areas (Improvement and Clearance) Act 96 of 1956, which
will be hereafter referred to as the Act, was enacted by
Parliament and came into force in the Delhi area. Section
19 of that Act which is impugned in these petitions runs:
"19. (1) Notwithstanding anything contained in
any other law for the time being in force, no
person who has obtained any decree or order
for the eviction of a tenant from any building
in a slum area shall be entitled to execute
such decree or order except with the previous
permission in writing of the competent
authority.
(2) Every person desiring to obtain the
permission referred to in sub-section (1)
shall make an application in writing to the
competent authority in such form and
containing such particulars as may be
prescribed.
131
(3) On receipt of such application the
competent authority, after giving an
opportunity to the tenant of being heard and
after making such summary inquiry into the
circumstances of the case as it thinks fit,
shall by order in writing either grant’ such
permission or refuse to grant such permission.
(4) Where the competent authority refuses to
grant the permission it shall record a brief
statement of the reasons for such refusal and
furnish a copy thereof to the applicant."
The other change in the law was that due to the enactment of
rules and regulations providing for a coordinated
development and planning of buildings in the Delhi Area the
type of constructions that could be sanctioned by the Delhi
Municipal Committee underwent a radical alteration as a
result of which in the area now in question double-storeyed
buildings were not permitted to be constructed and that if
the petitioner’s house had to be reconstructed it could only
have three living rooms making allowance for the size of the
rooms and the free space that had to be left on either side
of the building in accordance with the revised municipal
regulations.
It would have been noticed that the right of the tenants to
insist on the landlord providing accommodation for them in
the reconstructed building guaranteed to them by s. 15 of
the Rent Control Act, had ceased by reason of their failure
to quit and deliver vacant possession of the tenements
occupied by them within 3 months fixed by the order of the
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Civil Court (vide s. 15) and hence they had no statutory
right under the Rent Control Act to be provided with
accommodation by the landlord.
Thus freed from obligation to the tenants the petitioner
filed on the strength of these decrees for eviction nine
applications under s. 19 of the Act before the competent
authority for the eviction of the tenants from the nine
rooms in the building on the ground that the building had to
be reconstructed as it was in a dilapidated condition.
These petitions were dismissed by the competent authority by
his order dated January 13, 1958 on the ground that the
sanction to
132
reconstruct the building which the petitioner had obtained
from the municipality in 1956 had expired. The order
recited:
"since it may take some time for the
petitioner to obtain fresh sanction for
reconstruction and there is also the
possibility of sanction not being given at
all, it would be no use continuing with these
proceedings until it is definitely known that
the landlord has obtained sanction for
reconstruction. These nine applications are
accordingly filed with the option to the
petitioner to have them revived without
payment of extra fee in case he is able to
obtain sanction."
Thereafter the petitioner applied to the municipal
authorities for sanctioning a building plan. As stated
earlier, the building plan approved by the municipality
could permit only a building consisting of one floor in
which there were three living rooms and sanction for the
construction of a building with such accommodation was
granted. With this sanctioned plan, the petitioner renewed
his application under s. 19 for permission to execute the
decree of the Civil Court and evict the tenants. By order
dated July 30, 1958 all these applications were dismissed.
The reason assigned for the order was stated in these terms:
"If the decree is allowed to be executed they
will be thrown out and it will be impossible
for them to get accommodation in the
reconstructed building. They are old tenants
and as stated above also very poor. The
execution of the decree will involve very real
hardship to them. They are all occupying only
one Kothri each and paying rent at Rs. 3 per
mensem, and they have no complaint to make
about the condition of their Kothries. The
landlord has four or five other houses which
he has let out on rent. The case has a
human aspect and I disallow the execution of
the decree against the tenants."
The petitioner preferred appeals against this order to the
Administrator of the Union Territory, Delhi to whom appeals
lay under s. 20 of the Act. The appeals were dismissed, the
appellate authority saying :
133
"I would have allowed the appellant permission
to evict the tenants, if the property itself
was dilapidated and declared unfit for human
habitation by a competent authority. This is
not so. The land lord naturally desires to
get a better return from land in the congested
areas of the city by rebuilding on it to
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better specifications, so that he can get
higher rent from it. But if this tendency is
permitted to have an unrestricted play, then
the result will be the eviction of a large
number of poor people from slum areas.
In the circumstances, the appellant should
wait until either his property is declared
dangerous by the Municipal Corporation, or
under a Slum Clearance Scheme he is asked by
the competent authority itself to demolish it
or rebuild it in a particular manner."
In these circumstances the petitioner has moved this Court
for the issue of a writ of certiorari to quash these orders
on the ground already adverted to, viz., that s. 19 of the
Act is invalid and unconstitutional as violative of the
petitioner’s rights guaranteed by Arts. 14 and 19(1)(f) of
the Constitution. In passing we may observe that we are not
concerned with the validity of the particular orders passed
in the case but only with the general question as to the
constitutionality of the impugned s. 19 of the Act.
Before setting out the points urged by Mr. Narula learned
Counsel for the petitioners-in support of his submission
that s. 19 of the Act" was, in so far as it enabled the
competent authority to withhold permission to those who had
obtained decrees for eviction from executing their decrees,
unconstitutional, it would be necessary to read the material
provisions of the Rent Control Act, 1952, which imposes a
restriction on the right of landlords, inter alia to evict
tenants from the premises occupied by them. Chapter III of
that Act imposes a control over the eviction of tenants. A
tenant is defined (Vide s. 2(j)) as meaning "any person by
whom or on whose account rent is payable for any premises
including such sub-tenants or others who have derived title
under the tenant
134
under the provisions of any law before the commencement of
the Act." Section 13(1) enacts:
"Notwithstanding anything to the contrary con-
tained in any other law or any contract, no
decree or order for the recovery of possession
of any premises shall be passed by any Court
in favour of the landlord against any tenant
(including a tenant whose tenancy is
terminated):".
This blanket protection is, however, subject to the
conditions enumerated in the proviso which reads:
"Provided that nothing in this sub-section
shall apply to any suit or other proceeding
for such recovery of possession if the Court
is satisfied-"
Then follow ten grounds the existence of one or other of
which enables a landlord to obtain a decree from a Civil
Court for the recovery of possession from tenants. Among
the grounds thus enumerated it is sufficient to refer to
grounds (f), (g) and (1), ground (g) being the ground upon
which the petitioner in the present case obtained the
decrees for eviction and these run:
" (f) that the premises have become unsafe or
unfit for human habitation and are bona fide
required by the landlord for carrying out
repairs which cannot be carried out without
the premises being vacated; or
(g) that the premises are bona fide required
by the landlord for the purpose of re-building
the premises or for the replacement of the
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promises by any building or for the erection
of other buildings, and that such building or
rebuilding cannot be carried out without the
premises being vacated; or
(1) that the landlord requires the premises
in order to carry out any building work at the
instance of the Government or the Delhi
Improvement Trust in pursuance of any
improvement scheme or development scheme."
The right of the landlord, however, who obtains an order for
eviction under either cl. (f) or (g) above set out is
subject to the provisions of s. 15 whose terms have already
been set out, The result, therefore,
135
would be that in the cases covered by these two clauses the
tenants would be entitled, if they conform to the terms of
these provisions, to be reinstated in the newly constructed
premises after the reconstruction. It might be pointed out
that under s. 38 of the Rent Control Act the provisions of
the Act and the Rules made thereunder are to have effect
notwithstanding anything inconsistent therewith contained in
any other law for the time being in force.
The argument of the learned Counsel was that the restriction
upon the rights of landlords to the enjoyment of the
property imposed by s. 13 of the Rent Control Act could not
be open to any objection, legal or constitutional because
the Legislature has set out with precision the grounds upon
which possession could be recovered, the defenses that might
be set up by the tenants and the conditions subject to which
the rights either of the landlord or of the tenant could be
exercised. It is the super-imposition of the provisions of
s. 19 of the Act on the rights of a landlord-decreeholder
who had satisfied the requirements of the Rent Control Act
before obtaining his decree that was stated as amounting to
an unreasonable restriction on the right to hold property
guaranteed by Art. 19(1)(f).
This will be a convenient stage at which we might set out in
brief outline the argument urged by learned Counsel for the
petitioner. They were mainly three: (1) Section 19(3) of
the Act vests an unguided, unfettered and uncontrolled power
in an executive officer to withhold permission to execute a
decree which a landlord has obtained after satisfying the
reasonable requirements of the law as enacted in the Rent
Control Act. Neither s. 19 of the Act nor any other
provision of the Act indicates the grounds on which the
competent authority might grant or withhold permission to
execute decrees and the power conferred is, therefore,
arbitrary and offends Art. 14 of the Constitution. (2) The
same point was urged in a slightly different form by saying
that the Power conferred on the "competent authority" by s.
19(3) of the Act was an excessive delegation of legislative
power and was, therefore, unconstitutional. (3) The
136
vesting of a power in an executive authority to override-at
his sweet will and pleasure-rights to property without any
guidance from the Legislature con stituted an unreasonable
restraint on the petitioner’s right to hold property, a
right which in the case of the property of the type now in
question would include a right to obtain possession from the
tenant in order either to improve it by reconstruction or
for the purpose of his own use. Apart from the objection
regarding the vesting of an unguided power in an executive
authority which is, the common ground of objection urged in
regard to points (1) and (2), learned Counsel submitted that
the right vested in an executive authority to prevent for an
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indefinite and indeterminate period of time the right to
enjoy his property was for this further reason excessive and
an unreasonable restraint which could not be justified under
Art. 19(5) of the Constitution.
We shall proceed to consider these points in that order.
The first ground alleged is that s. 19 of the Act is
constitutionally invalid as violative of the equal
protection of the laws conferred under Art. 14 of the
Constitution, in that an unguided and arbitrary discretion
is vested in the "competent authority".
The import, content and scope of Art. 14 of the Constitution
has been elaborately considered and explained in numerous
decisions of this Court and it is, therefore, unnecessary
for us to embark on any fresh investigation of the topic,
but it would be sufficient to summarise the principles, or
rather the rules of guidance for the interpretation of the
Article which have already been established, and then
consider the application of those rules to the provisions of
the enactment now impugned. It is only necessary to add
that the decisions of this Court laying down the proper
construction of Art. 14 rendered up to 1959 have been
summarised in the form of 5 propositions by Das C. J. in
Ramakrishna Dalmia v. Justice Tendolkar (1), but we are
making a summary on slightly different lines more relevant
to the enquiry regarding the provision with which we are
concerned in the present case.
(1) [1959] S.C.R. 279, 299, 301
137
(1) If the statute itself or the rule made under it applies
unequally to persons or things similarly situated, it would
be an instance of a direct violation of the Constitutional
guarantee and the provision of the statute or the rule in
question would have to be struck down.
(2) The enactment or the rule might not in terms enact a
discriminatory rule of law but might enable an unequal or
discriminatory treatment to be accorded to persons or things
similarly situated. This would happen when the legislature
vests a discretion in an authority, be it the Government or
an administrative official acting either as an executive
officer or even in a quasi-judicial capacity by a
legislation which does not lay down any policy or disclose
any tangible or intelligible purpose, thus clothing the
authority with unguided and arbitrary powers enabling it to
discriminate.
"The legislature must declare the policy of
the law and the legal principles which are to
control any given cases and must provide a
standard to guide the officials or the body in
power to execute the law. The essential
legislative function consists in the
determination or choice of the legislative
policy and of formally enacting that policy
into a binding rule of conduct."
[Harishankar Bagla v. The State of Madhya
Pradesh (1)].
"No rules have been framed and no directions
given on these matters to regulate or guide
the discretion of the licensing officer.
Practically the Order commits to the
unrestrained will of a single individual the
power to grant, withhold or cancel licences in
any way he chooses and there is nothing in the
Order which could ensure a proper execution of
the power or operate as a check upon injustice
that might result from improper execution of
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the same".
[Messrs. Dwarka Prasad Laxmi Narain v. The
State of Uttar Pradesh (2)].
(1) [1955] 1 S.C.R. 380, 388. (2) [1954]
S.C.R. 803. 813.
18
138
In such circumstances the very provision of the law which
enables or permits the authority to discriminate, offends
the guarantee of equal protection afforded, by Art. 14.
possibly the best instance of this type of case is afforded
by the legislation under consideration in The State of West
Bengal v. Anwar Ali Sarkar (1), the ratio underlying which
was thus explained in Kathi Raning Rawat v. The State of
Saurashtra (2):
"If it depends entirely upon the pleasure of
the State Government to make any
classification it likes, without any guiding
principle at all, it cannot certainly be a
proper classification, which requires that a
reasonable relation must exist between the
classification and the objective that the
legislation has in view. On the other hand,
if the legislature indicates a definite
objective and the discretion has been vested
in the State Government as a means of
achieving that object, the law itself cannot
be held to be discriminatory, though the
action of the State Government may be
condemned if it offends against the equal
protection clause, by making an arbitrary
selection."
(3) It is manifest that the above rule would not apply to
cases where the legislature lays down the policy and
indicates the rule or the line of action which should serve
as a guidance to the authority. Where such guidance is
expressed in the statutory provision conferring the power,
no question of violation of Art. 14 could arise, unless it
be that the rules themselves or the policy indicated lay
down different rules to be applied to persons or things
similarly situated. Even where such is not the case, there
might be a transgression by the authority of the limits laid
down or an abuse of power, but the actual order would be set
aside in appropriate proceedings not so much on the ground
of a violation of Art. 14, but as really being beyond its
power.
(4) It is not, however, essential for the legislation to
comply with the rule as to equal protection, that the rules
for the guidance of the designated authority,
(1) [1952] S.C.R. 284.
(2) [1952] S.C.R. 435, 461, 462.
139
which is to exercise the power or which is vested with the
discretion, should be laid down in express terms in the
statutory provision itself.
"The Saurashtra case would seem to lay down
the A principle that if the impugned
legislation indicates the policy which
inspired it and the object which it seeks to
attain, the mere fact that the legislation
does not itself make a complete and precise
classification of the persons or things to
which it is to be applied, but leaves tile
selective application of the law to be made by
the standard indicated or the underlying
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policy and object disclosed is not a suffi-
cient ground for condemning it as arbitrary
and, therefore, obnoxious to article 14."
[Kedar Nath Bajoria v. The State of West
Bengal (1) ].
"So long as the policy is laid down and a
standard established by a statute, no
unconstitutional delegation of legislative
power is involved in leaving to selected
instrumentalities the making of subordinate
rules within prescribed limits and the deter-
mination of facts to which the policy as
declared by the Legislature is to apply."
[Harishankar Bagla and another v. The State of
Madhya Pradesh (1) ].
Such guidance may thus be obtained from or
afforded by (a) the preamble read in the light
of the surrounding circumstances which
necessitated the legislation, taken in
conjunction with well-known facts of which the
Court might take judicial notice or of which
it is appraised by evidence before it in the
form of affidavits, Kathi Raning Rawat v. The
State of Saurashtra (3) being an instance
where the guidance was gathered in the manner
above indicated, (b) or even from the policy
and purpose of the enactment which may be
gathered from other operative provisions
applicable to analogous or comparable
situations or generally from the object sought
to be achieved by the enactment.
"The policy underlying the Order is to
regulate the
(1) [1934] S. C. R. 30, 46. (2) [1935] 1
S.C.R. 380, 388.
(3) [1052] S.C.R. 435, 461, 462.
140
transport of cotton textile in a manner that
will ensure an even distribution of the
commodity in the country and make it available
at a fair price to all. The grant or refusal
of a permit is thus to be govern ed by this
policy and the discretion given to the Textile
Commissioner is to be exercised in such a way
as to effectuate this policy. The conferment
of such a discretion cannot be called invalid
and if there is an abuse of the power there is
ample power in the Courts to undo the
mischief."
Harishankar Bagla v. The State of Madhya Pradesh (1).
In Pannalal Binjraj v. Union of India’s case (2) the purpose
of the provision which was administrative convenience for
enabling assessments to be made in the manner indicated by
the Income-tax Act was held to afford a sufficient guidance
so as to render the provision immune from attack on the
ground of violation of Art. 14.
In the circumstances indicated under the fourth head, just
as in the third, the law enacted would be valid being
neither a case of excessive delegation or abdication of
legislative authority viewed from one aspect, nor open to
objection on the ground of violation of Art. 14 as
authorising or permitting discriminatory treatment of
persons similarly situated. The particular executive or
quasi-judicial act would, however, be open to challenge as
already stated on the ground not so much that it is in
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violation of the equal protection of the laws guaranteed by
Art. 14, because ex concessis that was not permitted by the
statute but on the ground of the same being ultra vires as
not being sanctioned or authorized by the enactment itself.
The situation in such cases would be parallel to the tests
to be applied for determining the validity of rules made
under statutes which enable the rule-making authority to
enact subsidiary legislation "to carry out the purposes of
the Act". The criteria to be applied to determine the
validity of such rules could, in our opinion, be
appropriately applied to determine the validity of the
action under the provisions like the one dealt with under
the last two heads.
(1) [1955] 1 S.C.R. 380, 388.
(2) [1957] S.C.R. 233.
141
In the light of what we have stated above we have now to
consider the point urged by the learned Counsel for the
petitioner that the Act has vested in the competent
authority the power to withhold eviction in pursuance of
orders or decrees of Courts with- out affording any guidance
or laying down any principles for his guidance on the basis
of which he could exercise his discretion. In other words,
that the Act lays no fetters and has vested in him an
arbitrary and unguided power to pick and choose the decree-
holders to whom he would permit execution and those to whom
he would refuse such relief. On the other hand, the learned
Attorney-General submitted that the discretion vested in the
competent authority was not unguided and that though s. 19
of the Act did not in terms lay down any rules for his
guidance, the same could be gathered from the policy and
purpose of the Act as set out in the preamble and in the
operative provisions of the Act itself.
We consider that there is considerable force in this
submission of the learned Attorney-General. The preamble
describes the Act as one enacted for two purposes: (1) the
improvement and clearance of slum areas in certain Union
Territories, and (2) for the protection of tenants in such
areas from eviction. These twin objects are sought to be
carried out by Chapters II to VI of the enactment. Chapter
11 which consists of one sections. 3-provides a definition
of what are "slum areas" and their declaration as such. The
tests for determining whether the area could be declared a
"slum area" or not briefly are whether the buildings in the
area are (a) unfit for human habitation, or (b) are by
reason of dilapidation, overcrowding etc. detrimental to
safety, health or morals. It is in areas so declared as
"slum areas" that the rest of the enactment is to operate.
The provisions, however, make it clear that in order that an
area may be declared a " slum area" every building in
that area need not be unfit for human habitation or that
human habitation in every building in such area should be
detrimental to the safety, health or morals of the dwellers.
We are making this observation because of a suggestion
142
made, that the declared purpose of protecting the tenants
from eviction was inconsistent with the policy underlying
the declaration of an area as a "slum area" and that thus
the Act manifested two contrary or con flicting ideas or
principles which would negative each other and thus leave no
fixed policy to guide " the competent authority" when
exercising his powers to grant or refuse eviction when an
application was made to him in that behalf under s. 19 of
the Act.
Chapter III is headed ’Slum Improvement’ and makes provision
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for two types of orders: (1) to require the improvement of
buildings where repairs-major or minor-would make them
reasonably habitable for the slum dwellers (vide ss. 4-6),
and (2) cases where mere repairs or adjustments would not
suffice but what is required is the demolition of the entire
building. In the latter case certainly the occupants of the
building would have to be evicted and the building vacated
and power is conferred for effectuating this purpose vide s.
7 (1) and 7 (3). It might be that the whole area might
consist of dwellings of the type which require demolition
and it is Chapter IV that makes provision for this category
of cases which is headed "Slum Clearance and Re-
development". In such cases the buildings in the entire
area are to be ordered to be demolished, and in that event
the dwellers would, of course, have to vacate, but it is
presumed that alternative accommodation would necessarily
have to be provided before any such order is made. The
process would have to be carried out in an orderly fashion
if the purpose of the Act is to be fulfilled and the policy
behind it, viz., the establishment of slum dwellers in
healthier and more comfortable tenements so as to improve
the health and morals of the community, is to be achieved.
Chapter V makes provision for the acquisition of land in
order to compass the re-development of slum areas into
healthy parts of the city, by providing amenities and more
substantial and better accommodation for the previous
inhabitants. It is after this that we have Chapter VI whose
terms we have already set out. This Chapter is headed
"Protection of tenants in Slum Areas
143
from Eviction". Obviously, if the protection that is
afforded is read in the context of the rest of the Act, it
is clear that it is to enable the poor who have no other
place to go to, and who if they were compelled, to go out,
would necessarily create other slums in the a process and
live perhaps in less commodious and more unhealthy
surroundings than those from which they were evicted, to
remain in their dwellings until provision is made for a
better life for them elsewhere. Though therefore the Act
fixes no time limit during which alone the restraint on
eviction is to operate, it is clear from the policy and
purpose of the enactment and the object which it seeks to
achieve that this restriction would only be for a period
which would be determined by the speed with which the
authorities are able to make other provisions for affording
the slum dweller-tenants better living conditions. The Act,
no doubt, looks at the problem not from the point of view of
the landlord, his needs, the money he has sunk in the house
and the possible profit that he might make if the house were
either let to other tenants or was reconstructed and let
out, but rather from the point of view of the tenants who
have no alternative accommodation and who would be stranded
in the open if an order for eviction were passed. The Act
itself contemplates eviction in cases where on the ground of
the house being unfit for human habitation it has to be
demolished either singly under s. 7 or as one of a block of
buildings under Ch. IV. So long therefore as a building
can, without great detriment to health or safety, permit
accommodation, the policy of the enactment would seem to
suggest that the slum dweller should not be evicted unless
alternative accommodation could be obtained for him. In
this connection the learned Attorney-General brought to our
attention the provisions of the Delhi Development Act, 1957
(LXI of 1957) which makes provision for the design of a
Master Plan for the city which, if executed, is likely to
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greatly reduce, if not to eliminate, slums altogether. It
was suggested that taken in conjunction with this enactment
it would be seen that the power to restrain eviction under
s. 19 of the
144
Act is one which would not last for ever but to a limited
period, though this could not naturally be defined by
reference to fixed dates. We see force in this submission
as well. In view of the foregoing we consider that there
is enough guidance to the competent authority in the use of
his discretion under s. 19(1) of the Act and we, therefore,
reject the contention that s. 19 is obnoxious to the equal
protection of laws guaranteed by Art. 14 of the
Constitution. We need only add that it was not, and could
not be, disputed that the guidance which we have hold could
be derived from the enactment, and that it bears a
reasonable and rational relationship to the object to be
attained by the Act and, in fact, would fulfil the purpose
which the law seeks to achieve, viz., the orderly
elimination of slums, with interim protection for the slum
dwellers until they were moved into better dwellings. We
are further of the opinion that the order of the competent
authority in the present case is not open to challenge
either, because it would be seen that the grounds upon which
he has rejected the petitioner’s application for execution
is in line with what we have stated to be the policy and
purpose of the Act.
Before leaving this topic it is necessary to consider a
submission of learned Counsel for the petitioner which is of
immediate relevance to point under examination. He said
that, no doubt, the decisions of this Court had pointed out
that it was not reasonable to expect the legislature to lay
down expressly precise criteria for the guidance of the
authorities who have to administer the law because of the
difficulty, if not impossibility, of contemplating every
single circumstance and prescribing rules so as to apply to
such varying situations, and that was the raison d’etre of
vesting a large discretion in the hands of the administering
authorities after indicating the general principles that
ought to guide them. He however urged that in the present
case there was no such insuperable difficulty, because the
restriction provided for by s. 19 of the Act was
superimposed on those which were
145
enacted by s. 13 of the Rent Control Act, and Parliament
when enacting the Act, could easily have indicated with
reference to the several grounds on which eviction could be
had under the Rent Control Act, the additional restrictions,
or further conditions which would be taken into account by
"the competent authority". If learned Counsel meant by this
submission that it was a possible mode of legislation, there
is nothing to be said against it, but if he desired us to
infer therefrom that because of the failure to adopt that
mode, the power conferred by s. 19 of the Slum Act
contravened the guarantee under Art. 14, we cannot agree.
In regard to this matter we desire to make two observations.
In the context of modern conditions and the variety and
complexity of the situations which present themselves for
solution, it is not possible for the Legislature to envisage
in detail every possibility and make provision for them.
The Legislature therefore is forced to leave the authorities
created by it an ample discretion limited, however, by the
guidance afforded by the Act. This is the ratio of
delegated legislation, and is a process which has come to
stay, and which one may be permitted to observe is not
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without its advantages. So long therefore as the
Legislature indicates, in the operative provisions of the
statute with certainty, the policy and purpose of the
enactment, the mere fact that the legislation is skeletal,
or the fact that a discretion is left to those entrusted
with administering the law, affords no basis either for the
contention that there has been an excessive delegation of
legislative power as to amount to an abdication of its
functions, or that the discretion vested is uncanalised and
unguided as to amount to a carte blanche to discriminate.
The second is that if the power or discretion has been
conferred in a manner which is legal and constitutional, the
fact that Parliament could possibly have made more detailed
provisions, could obviously not be a ground for invalidating
the law.
The next point argued by learned Counsel for the
19
146
petitioner was that the power conferred on the competent
authority by s. 19(3) of the Act was an excessive delegation
of legislative power. As we have pointed out earlier, this
submission is really another form, or rather another aspect
of the objection based on the grant of an unfettered
discretion or power which we have just now dealt with. It
is needless to repeat, that so long as the legislature
indicates its purpose and lays down the policy it is not
necessary that every detail of the application of the law to
particular cases should be laid down in the enactment
itself. The reasons assigned for repelling the attack based
on Art. 14 would suffice to reject this ground of
objection as well.
The last major objection urged by learned Counsel was that
the power vested in the competent authority "at its sweet-
will and pleasure" to refuse permission to execute a decree
for eviction violated the right to hold property under Art.
19(1)(f) of the Constitution and that the same was not saved
by Art. 19(5) of the Constitution for the reason that the
restriction imposed on the exercise of the right was not
reasonable. If Counsel were right in his submission that
the petitioner’s right to obtain possession of his building
rested on the "sweet-will and pleasure of the competent
authority" there could be some substance in the argument.
But as we had already had occasion to point out, it is not
at the "sweet-will and pleasure" of the competent authority
that permission to evict could be granted or refused, but on
principles gather- able from the enactment, as explained
earlier.
Learned Counsel further urged that the right to hold
property under Art. 19( 1)(f) included the right in the
owner of a building to evict a tenant and enter into actual
or physical occupation of the property. Counsel is, no
doubt, right in this submission but the ’freedom’ to ’hold
property’ is not absolute but that, as he himself admitted,
is subject, under Art. 19(5), to treasonable restrictions"
being placed upon it "in the interests of the general
public". It was not suggested that slum-dwellers would not
constitute "the general public" and that if a legislation
was designed to grant
147
them protection, it could not be justified as one in the
interests of the "general public", because obviously the
interests of such a vast number of the population in the
country, their health, well-being and morals, would, apart
even from themselves, necessarily impinge upon and
influence, for good or evil, the health, safety, well-being
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and morality of the rest of the community as well. The only
question that is capable of argument is whether the
restriction is reasonable. A considerable part of learned
Counsel’s argument on the reasonableness of the restriction
was devoted to showing that the vesting of an unfettered or
unguided power in the competent authority to permit or not
to permit eviction rendered the restriction unreasonable.
This, as would be seen, is really a different form of
presenting the case of the objection under Art. 14, and what
we have said in dealing with the first point of the learned
Counsel would answer this portion of the objection.
There are, however, a few more matters which have relevance
about the objection on the score of the restriction not
being reasonable within Art. 19(5) and the tests to be
applied to determining its reasonableness to which we should
refer. It has already been pointed out that the
restrictions imposed on the right of the landlord to evict
have a reasonable and rational connection with the object
sought to be achieved by the Act, viz., the ultimate
elimination of slums with protection to the slum-dwellers
from being meanwhile thrown out on the streets. The
question might still remain whether this restriction on the
rights of the landlords is excessive in the sense that it
invades and trenches on their rights in a manner or to an
extent not really or strictly necessary to afford protection
to the reasonable needs of the slum-dwellers which it is the
aim and object of the legislation to subserve. The criteria
for determining the degree of restriction on the right to
hold property which would be considered reasonable, are by
no means fixed or static, but must obviously vary from age
to age and be related to the adjustments necessary to solve
the problems which communities face from time to time. The
tests, therefore, evolved by communities living in sheltered
or
148
placid times, or laid down in decisions applicable to them
can hardly serve as a guide for the solution of the problems
of post-partition India with its stresses and strains
arising out of movements of populations which have had few
parallels in history. If law failed to take account of
unusual situations of pressing urgency arising in the
country, and of the social urges generated by the patterns
of thought-evolution and of social consciousness which we
witness in the second half of this century, it would have to
be written down as having failed in the very purpose of its
existence. Where the legislature fulfils its purpose and
enacts laws, which in its wisdom, is considered necessary
for the solution of what after all is a very human problem
the tests of "reasonableness" have to be viewed in the
context of the issues which faced the legislature. In the
construction of such laws and particularly in judging of
their validity the Courts have necessarily to approach it
from the point of view of furthering the social interest
which it is the purpose of the legislation to promote, for
the Courts are not, in these matters, functioning as it were
in vacuo, but as parts of a society which is trying, by,
enacted law, to solve its problems and achieve social
concord and peaceful adjustment and thus furthering the
moral and material progress of the community as a whole.
Judged in the light of the above, we consider that the
restrictions imposed cannot be said to be unreasonable. As
we have already pointed out, the ban imposed on evictions is
temporary, though learned Counsel is right in saying that
its duration is not definite. In the very nature of things
the period when slums would have ceased to exist or
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restrictions placed upon owners of property could be
completely lifted must, obviously, be indefinite and
therefore the indefiniteness cannot be a ground for
invalidity-a ground upon which the restriction could be held
to be unreasonable. Again, there is an appeal provided from
the orders of the competent authority to the Chief
Administrator. If learned Counsel is right in his
submission that the power of the "competent authority" is
unguided and that he had an unfettered
149
and arbitrary authority to exercise his discretion "at his
sweet-will and pleasure" the existence of a provision for
appeals might not impart validity to such legislation. The
reason for this is that the appellate power would be subject
to the same vice as the power of the original authority and
the imposition of one " sweet-will and pleasure" over
another of a lower authority, would not prevent
discrimination or render the restriction reasonable. But
if, as we have held earlier, the Act by its preamble and by
its provisions does afford a guidance to the "competent
authority" by pointing out the manner in which the
discretion vested in him should be exercised, the provision
as to an appeal assumes a different significance. In such
cases, if the "competent authority" oversteps the limits of
his powers or ignores the policy behind the Act and acts
contrary to its declared intention, the appellate authority
could be invoked to step in and correct the error. It
would, therefore, be a provision for doubly safeguarding
that the policy of the Act is carried out and not ignored in
each and every case that comes up before "the competent
authority". The procedure laid down by the Act for the
hearing by the "competent authority" and the provisions for
enquiry, renders the "competent authority" a quasi-judicial
functionary bound to follow fixed rules of procedure and its
orders passed after such an enquiry are to be subject to
appeals to the Administrator. We consider these safeguards
very relevant for_judging about the reasonableness of the
restriction. In considering these matters one has to take
into account the fact-a fact of which judicial notice has to
be taken-that there has been an unprecedented influx of
population into the capital, and in such a short interval,
that there has not been time for natural processes of
expansion of the city to adjust itself to the increased
needs. Remedies which in normal times might be considered
an unreasonable restriction on the right to hold property
would not bear that aspect or be so considered when viewed
in a situation of emergency brought about by exceptional and
unprecedented circumstances. Just as pulling down a
building to prevent the
150
spread of flames would be reasonable in the event of a fire,
the reasonableness of the restrictions imposed by the
impugned legislation has to be judged in the light of actual
facts and not on a priori reasoning based on the dicta in
decisions rendered in situations bearing not even the
remotest resemblance to that which presented itself to
Parliament when the legislation now impugned was enacted.
Before concluding it is necessary to advert to a few points
which were also urged by learned Counsel for the petitioner.
First it was said that the impugned s. 19 of the Act imposed
a double restriction, a restriction super-imposed on a
restriction already existing by virtue of the provisions of
the Rent Control Act, and that this rendered it
unreasonable. If by this submission learned Counsel meant
that different results as to constitutional validity flowed
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from whether the impugned section was part of the provisions
of the Rent Control Act, or was a section in an independent
enactment, the argument is clearly untenable. If, however,
that was not meant, but that in the context of the
restrictions already imposed by the Rent Control Act s. 19
of the Act was really unnecessary and therefore. an
unreasonable restraint on the freedom of the landlord, what
we have said earlier ought to suffice to repel the argument.
Learned Counsel next drew our attention to s. 38 of the Rent
Control Act which reads:
"The provisions of this Act and of the rules
made thereunder shall have effect
notwithstanding anything inconsistent
therewith contained in any other law for the
time being in force or in any instrument
having effect by virtue of any such law."
If this section stood alone, the argument of learned Counsel
that by reason of the width and sweep of its language, even
a special legislation, such as the Act was comprehended
within the non obstante provision would have required
serious consideration, but that has been rendered
unnecessary, because even apart from s. 19 of the Act which
opens with the words: "Notwithstanding anything contained in
any other law for tile time being in force", s. 39 of the
Act also
151
contains a non obstante clause on the same lines as s. 38 of
the Rent Control Act. The result therefore would be that
the provisions of the special enactment, as the Act is, will
in respect of the buildings in areas declared slum areas
operate in addition to the Rent Control Act. The argument
therefore that the Act is inapplicable to buildings covered
by the Rent Control Act is without substance, particularly
when it is seen that it is only when a decree for eviction
is obtained that s. 19 of the Act comes into play.
We therefore consider that none of the points urged in
support of the petition has any substance. The petitions
fail and are dismissed. In the circumstances of the case
there will be no order as to costs.
Petitions dismissed.