Full Judgment Text
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CASE NO.:
Appeal (civil) 4634 of 2003
PETITIONER:
CENTRAL BANK OF INDIA
RESPONDENT:
VRAJLAL KAPURCHAND GANDHI AND ANR.
DATE OF JUDGMENT: 16/07/2003
BENCH:
SHIVARAJ V. PATIL & ARIJIT PASAYAT
JUDGMENT:
JUDGMENT
2003 Supp(1) SCR 560
The Judgment of the Court was delivered by ARIJ1T PASAYAT, J. Leave
granted.
Though controversy lies within a very narrow compass, elaborate arguments
on various principles of law were highlighted, which shall be dealt with
after noticing the factual scenario involved.
Factual background as highlighted by the appellant and accepted to be
correct in material aspects by the respondents run as follows: Appellant, a
nationalized bank, on the basis of a deed of lease executed on 8.4.1964 is
a tenant under the respondents presently. The original landlord was restore
dents’ predecessor-in-title. The respondents (hereinafter referred to as
’landlords’) filed a suit under Section 13(l)(g) of the Bombay Rents, Hotel
& Lodging House Rates Control Act, 1947 (in short ’the Bombay Rents Act’)
ir 1983 seeking eviction on the ground of bona fide requirement. The trial
court decreed the suit in favour of the landlord by order dated 8.4.1994.
It we s held that landlords had proved reasonable need and greater hardship
would be caused to the landlords if prayer for eviction is not allowed. The
said order was challenged in Appeal No.208 of 1994 before the Small Causes
Court, Mumbai by the present appellant, which was allowed. It was, inter
alia, held that the hardship factor must be held against the landlords as
the cas: was one where a purely business concern is pitted against the
interest of the common man. It was noticed that the landlords had a
flourishing busine s and had expanded his business and the present
appellant being a nation alized bank existing for general public, and in
that view of the matter the prayer for eviction was turned down. The
landlords challenged the aforesaid order by filing a writ petition no. 5668
of 1995 before the Bombay High Court; which is pending. In the year 1999,
Maharashtra Rent Control Act, 1999chereinafter referred to as ’the
Maharashtra Rent Act’) was enacted w.e.f. 31.3 2000. The said Act,
according to the appellant-bank, took away protection of Bombay Rents Act
to the institutions like banks and companies. However provisions of Section
58 save pending proceedings under the said Act. On 10 4.2000 the landlords
sent notice to the appellant-bank claiming termination of tenancy with
reference to Section 3(1 )(b) of the Maharashtra Rent Act the appellant-
bank disputed the claim of the landlords. Subsequently a suit was filed in
the Small Causes Court, Mumbai under the Maharashtra Rent Act hearing No.
T.E.&R Suit No. 91/120 of 2000. In the suit the landlords sought vacant
possession of the suit premises and mesne profits at the rate of Rs
3,00,000 per month.
Appellant-bank filed written statement refuting the stands taken that the
tenancy had been lawfully terminated and the grounds indicated therefor.
Reference was made also to the proceedings in the Bombay High Court under
the Bombay Rents Act. It was contended that in view of Section 58 of the
said Act, suit was not maintainable. The Small Causes Court, Mumbai passed
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judgment and decree in favour of the landlord holding that the suit was
maintainable, the tenancy had been validly terminated and directed the
appellant-bank to hand over possession of the suit premises to the
landlord. Aggrieved by the said order the appellant-bank filed appeal no.
718 of 2001 before the Appellate Court which dismissed the same by order
dated 12.7.2002. Appellant-bank filed writ petition (civil) No. 209 of 2003
in the Bombay High Court.
On 7.1.2003 an application for amendment of the writ petition was filed
seeking to challenge validity of provisions contained in Section 3 (l)(b)
of the Maharashtra Rent Act. The High Court by the impugned order while
allowing the application for amendment held that the case was covered by
Section 3(1)(b) of the said Act and the writ petition was dismissed
Mr. P. Chidambaram, learned senior counsel for the appellant submitted that
after having allowed the amendment relating to validity of Section 3(1 )(b)
of the Maharashtra Rent Act, the High Court was not justified in dismissing
the writ application without examining that question. It is submitted that
though a Division Bench of the Bombay High Court has upheld the validity of
the provisions in question yet several matters have been admitted by this
Court and validity of the section in question is being examined by this
Court. Additionally, it is submitted that a writ petition has been filed by
the appellant as a matter of abundant caution, questioning validity of the
aforesaid provisions, and by order dated 10.4.2003 the same has been
directed to be heard along with Civil Appeal no. 8017 of 2002.
In response Mr. R.F. Nariman, learned senior counsel for the respondents
submitted that challenge to the constitutional validity of Section 3(1 )(b)
o ’the Maharashtra Rent Act was given up before the High Court as is
evident from the impugned order and it is not open to the appellant to make
a grievance that the question was not examined by the High Court. With
reference tc the question of non-adjudication in this issue, it is
submitted that if the appellant takes the stand that the plea was not given
up, the proper course is to approach the High Court for clarification, if
any.
It is also pointed out the validity of the provisions was never in i: sue
before the Courts below and for the first time by way of amendment of the
writ petition, the challenge was sought to be introduced.
By way of reply to the aforesaid stand of the learned counsel for the
landlords, Mr. Chidambaram pointed out that the application for amendment
was filed on 7.1.2003 i.e. the date on which the impugned order was passed.
The High Court granted leave to amend and thereafter proceeded to examine
the matter. It is inconceivable that the appellant having taken all pains
to get the petition amended, would give up. The order observing that no
other plea was pressed in the matter means that no other point other than
the pleas relating to Section 3(l)(b) were pressed. Clearly, earlier
decision by the Division Bench was looming in the background, though not
specifically stated, the courts below could not have decided the question
regarding validity of the provisions, being creatures of the statutes.
According to him Section 113 of the Code of Civil Procedure, 1908 (in short
’CPC’) to which Mr. Nariman has referred to submit, that the Court could
have made a reference to the High Court, have no application, and in any
event the High Court having accepted the prayer for amendment ought to have
considered the issue which was of vital importance. If it felt bound by the
decision of the Division Bench, rendered earlier, at least reference
thereto should have been made.
The rival contentions need careful consideration. There can be quarrel with
the proposition as submitted by Mr. Nariman that if an order reco ds
something, a party cannot be permitted to plead to the contrary specially
in the matters as to whether there was any concession regarding a point, or
whether it was given at the time of hearing.
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The only course open to a party taking the stand that order does not
reflect actual position is to move the High Court in line with what has
been said in Slate of Maharashtra v. Ramdas Shrinivas Nayak and Anr [1982]
2 SCC 463. In recent decisions i.e. Bhavnagar University v. patina Sugar
Mill Pvt. Ltd., (2002) AIR SCW 4939 and Roop Kumar v. Mohan Thedani, (2003)
3 SCALE 611 the view in the said case was reiterated Statements of fact as
to what transpired at the hearing recorded in the judgment of the court,
are conclusive of the facts so stated and no one can contradict such
statements by affidavit or other evidence. If a party thinks that the
happenings in Court have been wrongly recorded in a judgment, it is
incumbent upon the party, while the matter is still fresh in the minds of
the Judges, to cull the attention of the very Judges who have made the
record. That is the only way to have the record corrected. If no such step
is taken, the matter must necessarily end there. It is not open to a party
to contend before this Court to the contrary. This Court cannot launch into
an enquiry as to what transpired in the High Court. It is simply not done.
Public policy and judicial decorum do not permit it. Matters of judicial
record in that sense are unquestionable However, the Court can pass
appropriate orders if a party moves it contending that the order has not
correctly reflected happenings in Court.
Applying the logic of aforesaid principles, the stand of Mr Nariman at
first flush appeared to be on terra firma. But there are several factors
which make the contentions of Mr. Chidambaram acceptable. It is undisputed
that the application for amendment was filed on 7.1.2003, and related to
constitutional validity of Section 3(l)(b) of the Maharashtra Rent Act. The
High Court granted leave to amend. Though the High Court has not clearly
stated so in the order, in the contextual backdrop the same has great
relevance.
It is fairly settled position in law that Court or Tribunal constituted
under a statute cannot adjudicate upon the constitutional validity of the
concerned statute. This position has been highlighted by this Court in
several decisions. (See K.S. Venkataraman & Co. v. State of Madras [ 1966]
2 SCR 229, at page 251), Dhulabhai v. State of Madhya Pradesh and Anr., AIR
(1969) SC 78, C.I.T., Madhya Pradesh, Nagpur and Bhandara v M/s. Straw
Products Ltd., AIR (1966) SC 1113,. Chandra Kumar v. Union of India and
Ors., [1997] 3 SCC, 261 and recently in West Bengal Electricity Regulatory
Commission v. CESC Ltd., [2002] 8 SCC 715. Great emphasis was laid on Sec.
113 CPC, by Mr. Nariman to con end that had the stand been taken before
Courts below, in case of necessity, the provision could have been resorted
to.
The said provision reads as follows:
"113 Reference to High Court - Subject to such conditions and limitations
as may be prescribed, any Court may state a case and refer the same for the
opinion of the High Court, and the High Court nay make such order thereon
as it thinks fit.
[Provided that where the Court is satisfied that a case pencing before it
involves a question as to the validity of any Act, Ordinance or Regulation
or of any provision contained in an Act, Ordinance or Regulation, the
determination of which is necessary for the disposal of the case, and is of
opinion that such Act, Ordinance, Regulation or provision is invalid or
inoperative, but has not been so declared by the High Court to which that
Court is subordinate or by the Supreme Court, the Court shall state a case
setting out its opinion ; and the reasons therefor, and refer the same for
the opinion of the High Court.
Explanation - In this section, "Regulation" means any Regulat on of the
Bengal, Bombay or Madras Code or Regulation as defined in the General
Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.]"
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The proviso is relevant for our purpose. It operates in the following
circumstances.
(a) The Court is satisfied that in a case pending before it involve: a
question as to the validity of any Act, Ordinance or Regulation, or of any
provision contained therein;
(b) Determination of the aforesaid question is necessary for dispo al of
the case;
(c) The Court is of the opinion that such Act, Ordinance or Regulation or
a provision contained in an Act, Ordinance or Regulation are inoperative;
(d) But the concerned Act, Ordinance or Regulation or provision Ins not
been declared invalid or inoperative by the High Court to which the Court
where the case is pending is subordinate or by the Supreme Court
Undisputedly, a Division Bench of the High Court has decided the question
and, therefore, Section 113 has no application.
It is not, however, necessary to go into the question whether having not
taken the plea before the courts below, the High Court should have
permitted the question to be raised before it as admittedly, the High Court
had permitted the challenge to be made by allowing the application for
amendment. The case was disposed of on the date the amendment was allowed,
and in fact by the consolidated order which dealt with the prayer for
amendment, allowed it and went on to dispose of the writ petition, without
dealing with plea of invalidity.
In the aforesaid factual background High Court should have considered the
challenge to the constitutional validity of Section 3(l)(b) of the
Maharashtra Rent Act as raised by the appellant. It can certainly consider
the effect of any earlier decision. We do not express any opinion on that
aspect The order of the High Court is set aside and the case is remitted
back to the High Court for fresh adjudication on merits in accordance with
law.
The appeal is allowed to the extent indicated. Costs made easy.