Full Judgment Text
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PETITIONER:
MOTOR GENERAL TRADERS & ANR. ETC. ETC.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH & ORS. ETC. ETC.
DATE OF JUDGMENT26/10/1983
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
SEN, A.P. (J)
CITATION:
1984 AIR 121 1984 SCR (1) 594
1984 SCC (1) 222 1983 SCALE (2)513
CITATOR INFO :
E 1986 SC 244 (7,13)
RF 1986 SC1444 (4)
F 1987 SC2117 (31)
D 1989 SC1624 (11)
RF 1990 SC1927 (74)
ACT:
Constitution of India 1950 Article 14-Classification
when constitutional-Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960 Section 32 (b)-Whether
violative of Article 14.
Andhra Pradesh Buildings (Lease, Rent and Eviction)
Control Act, 1960, Section 32 (b)-Act not applicable to any
building constructed on or after August 26, 1957-Provision
Whether violative of Article 14 of the Constitution.
Interpretation of Statutes.
Constitutionality of a statute-Whether mere lapse of
time lends constitutionality to a provision.
Doctrine of severability-Section in a statute held
violative of Article-Whether entire statute can be struck
down.
HEADNOTE:
On October 1, 1953 the State of Andhra came into
existence. The Madras Buildings (Lease, Rent and Eviction)
Control Act, 1949 continued to be in operation in the State.
The area known as Telengana was merged with Andhra and the
new State of Andhra Pradesh came into existence on November
1,1956. The Hyderabad House (Rent, Eviction and Lease)
Control Act, 1954 which was in force in the Telengana area
continued to be in force in that area even after the new
State of Andhra Pradesh came into existence.
By a notification dated May 9, 1956 issued by the
Government of Andhra Pradesh, all buildings in the Andhra
area the construction of which was completed on or after
October 1,1953 were exempted, from the Madras Act for a
period of three years from the date of such completion. On
August 26,1957 the State Government issued another
notification under the Hyderabad Act exempting all buildings
in the Telengana Area for a period of five years. Both the
Madras Act and the Hyderabad Act were repealed and replaced
by the Andhra Pradesh Buildings (Lease, Rent and Eviction)
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Control Act, 1960, which was passed in 1960. Section 32 of
the Act provided that the Act would not apply (a) to any
building owned by the Government, (b) to any building
constructed on and after 26th August, 1957.
The constitutionality of sec. 32 (b) was questioned in
a writ petition filed in 1964, in the High Court on the
ground that it violated Art. 14 of the Constitution. That
petition was dismissed by the High Court on January 5, 1965
595
(Chintapalli Achaiah v. P. Gopalakrishna Reddy, A.I.R. 1966
A.P. 51) upholding the validity of sec. 32 (b). The High
Court held that the hardship caused to the tenant by the
exemption given in the case of buildings constructed after
August 26, 1957 under sec. 32 (b) of the Act was ’short
lived’ and the concession should be tolerated for a short
while.
In their writ petitions to this Court the petitioners
assailed the constitutional validity of sec. 32 (b) of the
Act contending that the buildings to which the Act was
applicable were aged more than 26 years and those to which
the Act was not applicable were aged about 26 years or less
and during the 26 years from August 26, 1957 thousands of
buildings had been constructed enjoying immunity of the Act,
that on account of the exemption, there were two sets of
buildings in every area those to which the Act was
applicable and those which were exempted under sec. 32 (b)
and there had also come into existence two classes of
landlords-one class governed by the Act and the other not
governed by the Act and two classes of tenants-one class
having the protection of the remedial provisions of the Act
and another class which did not have such protection, and
that whatever might have been the position in the first few
years after the Act was passed there was no justification
for continuing this exemption for all time to come.
The writ petitions were resisted by the State
Government and the landlords, on the ground that since sec.
32 (b) was valid at the commencement of the Act as held by
the High Court in the year 1965 it could not be struck down
at any time after it had came into force. If clause (b) of
sec. 32 was invalid then the entire Act would have to be
struck down, so that all the tenancies might be regulated by
contracts entered into by the parties in accordance with
their free will. They also urged that s. 32 (b) was not
violative of Article 14. The State Government also stated
that two attempts were made to get the Act amended but that
they failed. In the first Bill it was proposed to substitute
the date ’26th August 1957’ in sec. 32 (b) by the date ’the
1st January, 1968’. In the second Bill it was proposed to
confine the exemption in respect of each building to a
period of ten years after its construction.
Allowing the writ petitions.
^
HELD: 1. Clause (b) of sec. 32 of the Act should be
declared as violative of Article 14 of the Constitution
because the continuance of that provision on the statute
book would imply the creation of a privileged class of
landlords without any rational basis, as the incentive to
build which provided a nexus for a reasonable classification
of such class of landlords no longer existed by lapse of
time in the case of the majority of such landlords. There
was no reason why, after all these years, they should not be
brought at par with other landlords who were subject to the
restrictions imposed by the Act in the matter of eviction of
tenants and control of rents. [619 B-C]
2. The burden of proof regarding the question that a
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piece of legislation is violative of Art. 14 was, no doubt,
on the petitioners. That burden stood discharged by them in
the instant cases. The impugned provisions had at any rate
become per se discriminatory because it was not possible to
support
596
the exemption given to buildings which had also now become
old as many of them were now more than 10 years old. The
State Government itself had made two abortive attempts to
get the section amended. [604 G-H]
3. Many of the exempted buildings were more than ten
years old. While there was some justification for exempting
new buildings which were say five, seven or ten years old
from the date of the Act, in order to provide an incentive
to builders of new buildings, there was hardly any
justification to allow buildings which were constructed more
than ten years ago to remain outside the scope of the Act.
The landlords of such buildings must have realised a large
part of the investment made on such buildings by way of
rents during all these years. The court could not fail to
take into account that owing to continuous influx of
population into urban areas in recent years the rents had
gone up everywhere and that the landlords of such buildings
had been able to take advantage of the situation created by
the shortage of urban housing accommodation which was a
universal phenomenon. In the case of these buildings there
was no longer any need to continue the exemption.[605 G-
606A]
4. There could not be any valid justification to apply
the Act to a building which was 27 years old and not to
apply it to a building which was 26 years old. The anomaly
brought about by sec. 32(b) would be more pronounced when
the State Government by a notification brought the Act into
force in any part of the State for the first time. On such
extension of the Act only buildings constructed prior to
August 26, 1957 in that part of the State would become
subject to the Act and buildings constructed later would
still be exempt from its operation. This was a wholly
insupportable classification. The classification of
buildings into two classes for purposes of sec. 32 (b) of
the Act, therefore, did not any longer bear any relationship
to the object, since the buildings which were exempted had
already come into existence and their owners had realised a
major part of their investment. [606 B-D]
In the instant case, the legislature while passing the
law had given the exemption apparently as an incentive to
encourage building activity. It was not shown how the
continuance of the exemption in the case of persons who had
built houses more than two decades ago would act as an
incentive to builders of new houses now. If that was so,
then there was no justification to continue to have the
restrictions imposed by the Act on buildings built prior to
August 26, 1957 also and the whole Act should have to be
repealed, for if the impugned exemption could act as an
incentive the repeal of the Act should also act as an
incentive. [613 G]
5. (i) The long period that had elapsed after the
passing of the Act itself served as a crucial factor in
deciding the question whether the impugned law had become
discriminatory or not because the ground on which the
classification of buildings into two categories was made was
not a historical or geographical one but was an economic
one. Exemption was granted by way of an incentive to
encourage building activity and in the circumstances such
exemption could not be allowed to last for ever. [613H-614]
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597
(ii) The landlords of buildings constructed subsequent
to August 26, 1957 were given undue preference over the
landlords of buildings constructed prior to that date in
that the former were free from the shackles of the Act while
the latter were subjected to the restrictions imposed by it.
What should have been just an incentive had become a
permanent bonanza in favour of those who constructed
buildings subsequent to August 26,1957. There being no
justification for the continuance of the benefit to a class
of persons without any rational basis whatsoever, the evil
effects flowing from the impugned exemption had caused more
harm to the society than one could anticipate. What was
justifiable during a short period had turned out to be a
case of hostile discrimination by lapse of nearly a quarter
of century. [614 D-E]
(iii) Mere lapse of time did not lend constitutionality
to a provision which was otherwise bad. The garb of
constitutionality which it may have possessed earlier had
become worn out and its constitutionality had been now
brought to a successful challenge. [614 G]
6. The striking down of clause (b) of sec. 32 of the
Act did not in any way affect the rest of the provisions of
the Act. The clause was not so inextricably bound up with
the rest of the Act as to make the rest of the Act
unworkable after it was struck down. Having regard to the
history of the legislation the Act had to be sustained even
after striking down clause (b) of sec. 32. The effect of
striking down the impugned provision would be that all
buildings, except those falling under clause (a) of sec. 32
or exempted under sec. 26 in the areas where the Act was in
force, would be governed by the Act irrespective of the date
of their construction. [618E-619A]
Chintapalli Achaiah v. P. Gopalakrishna Reddy, (A.I.R.
1966 Andhra Pradesh 51) overruled.
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar
JUDGMENT:
Madhya Pradesh [1962] Supp. 2 S.C.R. 257; State of Madhya
Pradesh v. Bhopal Sugar Industries Ltd., [1964] 6 S.C.R.
846; Vishwesha Thirtha Swamiar & ors. v. State of Mysore &
Anr. [1972] 1 S.C.R. 137; H.H. Shri Swamiji of Shri Admar
Mutt etc. v. The Commissioner Hindu Religious & Charitable
Endowments Department & ors. [1980] 1 S.C.R. 368; Narottam
Kishore Dev verma & ors. v. Union of India & Anr., [1964] 7
S.C.R. 55; R.M.D. Chamarbaugwalla v. The Union of India
[1957] S.C.R. 930; and D.S. Nakara & ors. v. Union of India
[1983] 1 S.C.C. 305 referred to.
7. (1) The incentive to build provides a rational basis
for classification and it is necessary, in the national
interest, that there should be freedom from restrictions for
a limited period of time. It is always open to the State
Legislature or the State Government to take action by
amending the Act itself or under sec. 26 of the Act, as the
case may be, not only to provide incentive to persons who
are desirous of building new houses, as it serves a definite
social purpose but also to mitigate the rigour to such class
of landlords who may have recently built their houses for a
limited period as it has been done in the Union Territory of
Chandigarh. [619 E-F]
598
M/s. Punjab Tin Supply Co., Chandigarh etc. v. The
Central Government & ors.,[1984] 1 S.C.R. p. 7.
(ii) The question whether new legislation should be
initiated to exempt newly constructed buildings for a
limited period of time on the pattern of similar legislation
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undertaken by different States or to exempt such class of
buildings for a given number of years from the provisions of
the Act by the issue of a notification under sec. 26 of the
Act is for the State Government to decide. [619 G-H]
&
ORIGINAL JURISDICTION : Writ Petitions Nos. 737 of
1979, 242 of 1980,5316, 3974 and 7902-03 of 1983.
(Under article 32 of the Constitution)
K. R. Chodhary, K. Rajendra Chodhary, A. Subba Rao, C.
S. Vaidyanathan, C. S. S. Rao, Mrs. Baby Krishnan, A. V.
Rangam, T. V. S. N. Chari, B. Kanta Rao and S. Markandeya
for the appearing parties.
The judgment of the Court was delivered by
VENKATARAMIAH. J. The constitutional validity of clause
(b) of section 32 of the Andhra pradesh Buildings (Lease,
Rent and Eviction) Control Act, 1960 (Act XV of 1960)
(hereinafter referred to as ’the Act’) which exempts all
buildings constructed on and after August 26,1957 from the
operation of the Act is challenged in these petitions under
Article 32 of the Constitution.
On October 1,1953, the State of Andhra came into
existence under the provisions of the Andhra State Act, 1953
comprising the area specified in section 3 of that Act which
formerly formed a part of the then State of Madras. By
virtue of the provisions contained in Part VI of that Act,
the Madras Buildings (Lease and Rent Control) Act, 1949
(Madras Act XXV of 1949) continued to be in operation in the
State of Andhra. On November 1, 1956 under the States
Reorganisation Act, 1956 with the merger of the area known
as the Telangana area, which formerly formed a part of the
erstwhile State of Hyderabad, with the territories of the
State of Andhra the new State of Andhra Pradesh came into
existence. By virtue of section 119 of the States
Reorganisation Act, the Hyderabad House (Rent, Eviction and
Lease) Control Act, 1954 (Hyderabad Act XX of 1954)
continued to be in force in the Telangana area even after
the new State of Andhra Pradesh came into existence. In the
Andhra area, the Madras
599
Buildings (Lease and Rent Control) Act, 1949 also continued
to be in force. By a notification dated May 9, 1956 issued
by the Government of Andhra Pradesh under the said Madras
Act, all buildings in the Andhra area, the construction of
which was completed on or after October 1,1953 were exempted
from all the provisions of that Act for a period of three
years from the date of such completion. On August 26, 1957
the State Government issued another notification under the
Hyderabad Act exempting buildings in the Telangana Area for
a period of five years from the operation of that Act. Both
the said Madras Act and the Hyderabad Act were repealed and
replaced by the Act which came to be passed in 1960. It
appears that at the time when the Bill which later became
the Act was being considered by the Joint Select Committee
of the State Legislature, the Chairman of the Committee
informed the Committee that the Government of India had
advised that new buildings should be exempted from the Act
as it would be an incentive to the house building activity
and he also brought to its notice that the State Government
had issued the above said orders exempting the new building
from the provisions of the respective Acts for a limited
period. Thereupon Joint Select Committee recommended that in
order to afford an incentive to the house building activity,
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all buildings constructed after August 26,1957 should be
exempted from the scope of the Bill. Ultimately section 32
of the Act was enacted as follow:-
"32 Act not to apply to certain buildings:-
The provisions of this Act shall not apply:-
(a) to any building owned by the Government;
(b) to any building constructed on and after
the 26th August 1957".
We are concerned with clause (b) of section 32 in these
cases. It may be noted that the exemption granted under
clause (b) is not restricted to any specific period as it
was in the notifications issued under the repealed Acts. Now
was it made applicable to new buildings as suggested by the
Government of India by laying down a specific period during
which they would be considered as new purposes of exemption.
The constitutionality of this provision was questioned
before the High Court of Andhra Pradesh on the ground that
it
600
violated Article 14 of the Constitution in Chintapalli
Achaiah v P. Gopalakrishna Reddy(1) in a petition filed in
1964. That petition was dismissed by the High Court on
January 5,1965 upholding the validity of section 32 (b) of
the Act. In the course of its judgment the High Court
observed thus:
"The policy of the Act can be found out, as
discussed above, from all permissible intrinsic and
extrinsic sources. Thus examined, the policy underlying
s. 32 is to provide an incentive to private efforts to
construct new buildings. The Act read as a whole
therefore balances the policy underlying the main Act
and the policy underlying section 32. This purpose
cannot be said to be in any manner derogatory to the
main purpose of the Act; in fact it supplements it. It
is true that the tenants of the new buildings would
suffer from the same hardship in order to redress which
the measure was enacted. The Legislature in its wisdom
and perhaps with justification thought that this
hardship to the tenant will be shortlived and compared
to the necessity of bringing into existence more and
more new houses, for which purpose the concession is
shown has necessarily to be to erated for a short while
in the interests of the entire body of tenants as the
new buildings are bound to bring down not only the
hardships from which the new tenants would thus suffer
but solve the larger problem of residential
accommodation thus giving relief in all respects to the
entire body of the tenants. It is for this purpose that
it is now well-settled that the Legislature can
recognise degrees of evil without being arbitrary,
unreasonable or in conflict with Art. 14 of the
Constitution." (Underlining by us)
It may be noticed that the High Court felt that the
hardship caused to the tenants by the exemption given in the
case of buildings constructed after August 26,1957 under
section 32 (b) of the Act was ’short lived’ and the
concession should be tolerated for a short while. But that
was not to be so. The exemption has continued to remain in
force till now i.e. for more than a quarter of century. The
problem of shortage of housing accommodation in urban areas
is becoming more and more acute. The landlords who earned
their exemption
601
under section 32(b) of the have continued to enjoy for a
long number of years the freedom to indulge in malpractices
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which the Act was intended to check while others are
governed by the Act. The petitioners have now questioned the
validity of the said provision before this Court.
The Act except sub-section (2) of section 3 thereof
applies to the cities of Hyderabad and Secunderabad and to
all municipalities in the State of Andhra Pradesh. Sub-
section (2) of section 3 of the Act applies to the cities of
Hyderabad and Secunderabad and to any municipality in the
State of Andhra Pradesh if the State Government issues a
notification to that effect. The State Government is
authorised to apply all or any of the provisions of the Act
except section 3(2) to any other area in the State of Andhra
Pradesh. The Act was passed with a view to consolidating and
amending the law relating to the regulation of leasing of
buildings, the control of rents thereof and the prevention
of unreasonable eviction of tenants therefrom in the State
of Andhra Pradesh.
In view of section 32 (b) of the Act there are two sets
of buildings in every area in which the Act is applicable-
those to which the Act is applicable and those which are
exempted under section 32 (b), leaving aside buildings owned
by the Government and those exempted by any notification
issued under section 26 of the Act. The buildings to which
the Act is applicable are aged more than 26 years and those
to which the Act is not applicable are aged about 26 years
or less. During these 26 years from August 26,1957 thousands
of buildings may have been constructed and all of them are
continuing to enjoy the immunity from the provisions of the
Act. The petitioners contend that on account of this
exemption there have also come into existence two classes of
landlords-one class governed by the Act and the other not
governed by the Act and two classes of tenants-one class
having the protection of the remedial provisions of the Act
and another class who do not have such protection. It is
argued by the petitioners that whatever may have been the
position in the first few years after the Act was passed,
there is no justification for continuing this exemption for
all time to come.
The State Government has stated that the object of
granting the exemption was only to provide an incentive to
the building activity. It is further pleaded in paragraph 6
of the counter affidavit filed on behalf of the State
Government thus:
602
"6. It was under active consideration of the
Government subsequently regarding amending section 32
(b) of the Act so as to include later constructions.
Twice bills were introduced in the Legislature of the
State but, however, they could not be passed. The
matter is again under active consideration of the
Government. The proposal now under consideration by the
Government is to extend the Act to all buildings after
the completion of 10 years of their construction.
Similar provisions are to be found in the relevant Acts
of the States of Tamil Nadu and Karnataka. However, in
the States of Tamil Nadu and Karnataka, the Act applies
to buildings five years after construction."
Two attempts were made to get the Act amended but they
failed. In Bill No. 33 of 1977 introduced in the Andhra
Pradesh Legislative Assembly on July 27,1977, it was
proposed to substitute the date ’the 26th August, 1957’ in
section 32(b) of the Act by the date the Ist January, 1968’.
The said Bill lapsed on the Legislative Assembly being
prorogued on September 2,1977. In the Bill (L.A. Bill No. 12
of 1982) which was introduced on July 26, 1982 but which was
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not passed owing to the dissolution of the Legislative
Assembly it was proposed to confine the exemption in respect
of each building to a period of ten years after its
construction. The statement of Objects and Reasons attached
to that Bill is instructive. The relevant part of it reads
thus:
"Statement of Objects and Reasons.
The Andhra Pradesh Building (Lease, Rent and
Eviction) Control Act, 1960 came into force on the 21st
April, 1960 and applies to buildings constructed prior
to the 26th August, 1957 in the twin cities of
Hyderabad and Secunderabad and other municipalities in
the State. The number of buildings that existed as on
that date was adequate enough to serve the needs of the
population at that time. Such of the buildings as were
in good condition have already been requisitioned and
have been under the control of the Government. The rest
of the buildings are now either in a dilapidated
condition or under the occupation of the landlords.
Consequently, the Government are facing acute shortage
of accommodation
603
and it has become almost impossible to requisition any
old building constructed prior to the 26th August, 1957
to meet the growing needs of the Government. It is,
therefore, proposed to extend the scope of the Act to
all buildings after the expiration of ten years from
the completion of their construction.
XXX XXX XXX XXX
B. Venkatram
Chief Minister"
Although the reason given for the amendment in the
Statement of Objects and Reasons approaches the problem from
the point of view of the Government, it is clear that even
the State Government, is not quite satisfied with the
existing law.
The petitioners principally rely upon Article 14 of the
Constitution in support of their case. The equality clause
contained in that Article requires that all persons
subjected to any legislation should be treated alike under
like circumstances and conditions. Equals have to be treated
equally and unequals ought not to be treated equally. While
that Article forbids class legislation, it does not forbid
classification for purposes of implementing the right of
equality guaranteed by it. In order however to pass the test
of permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others left
out of the group and (ii) that differentia must have a
rational relation to the object sought to be achieved by the
statute in question. While the classification may be founded
on different bases what is necessary is that there must be a
nexus between the basis of classification and the object of
the Act under consideration. The principles governing a
valid classification have been laid down by this Court in
Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar &
Ors.(1) thus:
"(a) that a law may be constitutional even though it
relates to a single individual if, on account of
some special circumstances or reasons applicable
to him and not applicable to others, that single
individual may be treated as a class by himself;
604
(b) that there is always a presumption in favour of
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the constitutionality of an enactment and the
burden is upon him who attacks it to show that
there has been a clear transgression of the
constitutional principles;
(c) that is must be presumed that the legislature
understands and correctly appreciates the need of
its own people, that its laws are directed to
problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognize degrees
of harm and may confine its restrictions to those
cases where the need is deemed to be the clearest;
(e) 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; and
(f) that while good faith and knowledge of the
existing conditions on the part of a legislature
are to be presumed, if there is nothing on the
face of the law or the surrounding circumstances
brought to the notice of the court on which the
classification may reasonably be regarded as
based, the presumption of constitutionality cannot
be carried to the extent of always holding that
there must be some undisclosed and unknown reasons
for subjecting certain individuals or corporations
to hostile or discriminating legislation."
The burden of proof regarding the question that a piece
of legislation is violative of Article 14 of the
Constitution is, no doubt, on the pentitioners. That burden
stands discharged by them in these cases. It is seen that
the impugned provision has at any rate become perse
discriminatory because it is not possible to support the
exemption given to buildings which have also now become old
as many of them are now more than ten years old. The State
Government itself has already made two abortive attempts to
get the section amended.
605
The Law Commission of Andhra Pradesh in its 24th Report
on the revision of the Act submitted in December, 1977 while
expressing its opinion on the clause relating to the
amendment of section 32 (b) of the Act observed thus:
"Sub-clause (v) is intended to exclude buildings,
for a period of 10 years from the date on which their
construction is completed, from the purview of the Act
to ensure that the incentive to embark upon
construction of new houses, which is so necessary at
present, is not scuttled but encouraged. Exclusion of
buildings for a particular period, reckoned from the
date of completion of their construction is in our
opinion, a better course than providing that the
proposed Act shall not apply to buildings constructed
on or after a particular date, as the former would
obviate the need for periodical amendment of the
provision if the Act should continue to remain on the
Statute Book for a considerable length of time."
In the circumstances it is not possible to say that the
petitioners have not placed any material in support of their
case. On the other hand the contesting respondents have not
placed any material in support of their case that the
impugned provision in its present form does not violate
Article 14 of the Constitution.
Judged from the standards laid down in the case of Shri
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Ram Krishna-Dalmia (supra) we are of the view that the
classification of buildings for purposes of section 32(b) of
the Act does not satisfy the true tests of a valid
classification. We are confronted in these cases with the
position, say, in Hyderabad city, that there are a large
number of buildings which are more than 26 years old which
are governed by the Act and quite a large number of
buildings which are constructed subsequent to August 26,1957
which are exempted from it. Many of the exempted buildings
are more than 10 years old. While it may be that there is
some justification for exempting new buildings say which are
five, seven or ten years old from the Act, in order to
provide an incentive to builders of new buildings, there is
hardly any justification to allow buildings which were
constructed more than ten years ago to remain outside the
scope of the Act. The landlords of such buildings must have
realised a large part of investment made on such buildings
by way of rents during all these years. The Court cannot
fail to take into account that owing to continuous influx of
606
population into urban areas in recent years the rates of
rents have gone up every where and that the landlords of
such buildings have been able to take advantage of the
situation created by the shortage of urban housing
accommodation which is now a universal phenomenon. In the
case of these buildings there is no longer any need to
continue the exemption. There cannot be any valid
justification to apply the Act to a building which is 27
years old and not to apply it in the case of a building
which is 26 years old. The anomaly that is brought about by
section 32 (b) of the Act would be more pronounced when the
State Government by a notification brings the Act into force
now in any part of the State for the first time. On such
extension of the Act only buildings constructed prior to
August 26,1957 in that part of the State would become
subject to the Act and later buildings would still be exempt
from its operation. This is a wholly insupportable
classification. The classification of buildings into two
classes for purposes of section 32 (b) of the Act,
therefore, does not any longer bear any relation-ship to the
object, since the buildings which are exempted have already
come into existence and their owners have realised a major
part of their investment.
But it was argued that since section 32 (b) of the Act
was valid at the commencement of the Act as held by the High
Court in the year 1965, it cannot be struck down at any time
after it has come into force.
What may be unobjectionable as a transitional or
temporary measure at an initial stage can still become
discriminatory and hence violative of Article 14 of the
Constitution if it is persisted in over a long period
without any justification. The trend of decisions of this
Court on the above question may be traced thus. In Bhaiyalal
Shukla v. State of Madhya Pradesh one of the contentions
urged was that the levy of sales tax in the area which was
formally known as Vindhya Pradesh (a Part ’C’ State) on
building materials used in a works contract was
discriminatory after the merger of that area in the new
State of Madhya Pradesh which was formed on November 1,1956
under the States Reorganisation Act, 1956 as the sale of
building materials in a works contract was not subject to
any levy of sales tax in another part of the same new State
namely the area which was formerly part of the area known as
State of Madhya Pradesh (the Central Provinces and Berar
area). That contention was rejected by this Court with the
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following observations at pages 274-275:
607
"The laws in different portions of the new State
of Madhya Pradesh were enacted by different
Legislatures, and under s. 119 of the States
Reorganisation Act all laws force are to continue until
repealed or altered by the appropriate Legislature. We
have already held that the sales tax law in Vindhya
Pradesh was validly enacted, and it brought its
validity with it under s. 119 of the States
Reorganisation Act, when it became a part of the State
of Madhya Pradesh. Thereafter, the different laws in
different parts of Madhya Pradesh can be sustained on
the ground that the differentiation arises from
historical reasons, and a geographical classification
based on historical reasons has been upheld by this
Court in M.K. Prithi Rajji v. The State of Rajasthan
(Civil Appeal No. 327 of 1956 decided on November 2,
1960) and again in The State of Madhya Pradesh v. The
Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of
1957 decided on November 30, 1960), The latter case is
important, because the sugarcane cess levied in the
former Gwalior State but not in the rest of Madhya
Bharat of which it formed a part, was challenged on the
same ground as here, but was upheld as not affected by
Art. 14 We, therefore, reject this argument."
Then followed the decision of this Court in State of
Madhya Pradesh v. Bhopal Sugar Industries Ltd.(1) In this
case the continuance of the levy of agricultural income-tax
in the area comprised in the former State of Bhopal (a Part
’C’ State) under the Bhopal State Agricultural Income-tax
Act, 1953 (Act No. IX of 1953) even after its merger in the
new State of Madhya Pradesh formed on November 1,1956 under
the States Reorganisation Act, 1956 when there was no such
levy on agricultural income in some other parts of the new
State of Madhya Pradesh was questioned on the ground that
Article 14 of the Constitution had thereby been contravened.
The High Court of Madhya Pradesh upheld the plea of the
petitioner. On appeal this Court observed in the above case
at pages 852-854 thus:
"Continuance of the laws of the old region after
the reorganization by s. 119 of the States
Reorganization Act was by itself not discriminatory
even though it resulted in differential treatment of
persons, objects and transactions
608
in the new State, because it was intended to serve a
dual purpose-facilitating the early formation of
homogeneous units in the larger interest of the Union,
and maintaining even while merging its political
identity in the new unit, the distinctive character of
each region, till uniformity of laws was secured in
those branches in which it was expedient after full
enquiry to do so. The laws of the regions merged in the
new units had therefore to be continued on grounds of
necessity and expediency. Section 119 of the States
Reorganization Act was intended to serve this temporary
purpose, viz., to enable the new units to consider the
special circumstances of the diverse units, before
launching upon a process of adaptation of laws so as to
make them reasonably uniform, keeping in view the
special needs of the component regions and
administrative efficiency. Differential treatment
arising out of the application of the laws so continued
in different regions of the same reorganised State, did
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not therefore immediately attract the clause of the
Constitution prohibiting discrimination. But by the
passage of time, considerations of necessity and
expediency would be obliterated, and the grounds which
justified classification of geographical regions for
historical reasons may cease to be valid. A purely
temporary provision which because of compelling forces
justified differential treatment when the
Reorganization Act was enacted cannot obviously be
permitted to assume permanency, so as to perpetuate
that treatment without a rational basis to support it
after the initial expediency and necessity have
disappeared....It would be impossible to lay down any
definite time-limit within which the State had to make
necessary adjustments so as to effectuate the equality
clause of the Constitution. That initially there was a
valid geographical classification of regions in the
same State justifying unequal laws when the State was
formed must be accepted. But whether the continuance of
unequal laws by itself sustained the plea of unlawful
discrimination in view of changed circumstances could
only be ascertained after a full and thorough enquiry
into the continuance of the grounds on which the
inequality could rationally be founded, and the change
of circumstances, if any, which obliterated the
compulsion of expediency and necessity
609
existing at the time when the Reorganization Act was
enacted."
(Emphasis added)
The Court, however, found that the pleadings in the
case were inadequate to decide whether Article 14 of the
Constitution had been actually violated or not. It,
therefore, set aside the judgment of the High Court and
remanded the case to the High Court to decide the question
afresh after giving the parties the opportunity to amend
their pleadings. This view was followed in Vishwesha Thirtha
Swamiar & Ors. v. State of Mysore & Anr.(1) where this Court
observed at page 144:
"In view of the facts of this case, the temporary
nature of the Acts and the pendency of the resettlement
and survey proceeding we cannot say that the
Legislature has acted contrary to the provisions of
Art. 14". (Under lining by us)
Then came the decision of this Court in H.H. Shri
Swamiji of Shri Admar Mutt etc. v. The Commissioner, Hindu
Religious & Charitable Endowments Department & Ors.(2) In
this case the continue application of the provisions of the
Madras Hindu Religious and Charitable Endowments Act. 1951
(Act No. 19 of 1951) in the area which formerly formed a
part of the State of Madras prior to the States
Reorganization Act, 1956 and which later on became part of
the new State of Mysore (now Karnataka) when a similar law
was not in force in the other parts of the new State was
challenged. Here again the material placed before the Court
was not sufficient to decide the question. The Court,
therefore, dismissed the appeal. But Chandrachud, C.J.
speaking for the majority, however, observed at pages 387-
388 thus:
"An indefinite extension and application of
unequal laws for all time to come will militate against
their true character as temporary measures taken in
order to serve a temporary purpose. Thereby, the very
foundation of their constitutionality shall have been
destroyed, the foundation being that section 119 of the
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States Reorganization Act serves the significant
purpose of
610
giving reasonable time to the new units to consider the
special circumstances obtaining in respect of diverse
units. The decision to withdraw the application of
unequal laws to equals cannot be delayed unreasonably
because the relevance of historical reasons which
justify the application of unequal laws is bound to
wear out with the passage of time. In Broom’s Legal
Maxims (1939 Edition, Page 97) can be found a useful
principle, ’Cessante Ratione Legis Cessat Ipsa Lex;
that is to say, ’Reason is the soul of the law, and
when the reason of any particular law ceases, so does
the law itself’.
We do not however see any justification for
holding that the continued application of the Madras
Act of 1951 to South Kanara District became violative
of article 14 as immediately as during the period under
consideration, which was just five or six years after
the passing of the States Reorganization Act. Nor
indeed are we disposed to hold that the continued
application of that Act until now is shown by adequate
data to be violative of Article 14.
But that is how the matter stands today. Twenty
three years have gone by since the States
Reorganization Act was passed but unhappily, no serious
effort has been made by the State Legislature to
introduce any legislation apart from two abortive
attempts in 1963 and 1977-to remove the inequality
between the temples and Mutts situated in the South
Kanara District and those situated in other areas of
Karnataka. Inequality is so clearly writ large on the
face of the impugned statute in its application to the
District of South Kanara only, that it is perilously
near the periphery of unconstitutionality. We have
restrained ourselves from declaring the law as
inapplicable to the District of South Kanara from today
but we would like to make it clear that if the
Karnataka Legislature does not act promptly and remove
the inequality arising out of the application of the
Madras Act of 1951 to the District of South Kanara
only, the Act will have to suffer a serious and
successful challenge in the not distant future. We do
hope that the Government of Karnataka will act promptly
and move an appropriate legislation, say, within a year
or so. A comprehensive
611
legislation which will apply to all temples and Mutts
in Karnataka, which are equally situated in the context
of the levy of fee, may perhaps afford a satisfactory
solution to the problem. This, however, is a tentative
view-point because we have not investigated whether the
Madras Act of 1951, particularly section 76(1) thereof,
is a piece of hostile legislation of the kind that
would involve the violation of article 14. Facts in
regard thereto may have to be explored, if and when
occasion arises."
The two grounds which persuaded this Court not to
strike down the impugned legislation in the above case as
can be gathered from the above passage were (1) that the
period under consideration was just five or six years after
the passing of the States Reorganization Act, 1956 and (2)
that there was no adequate data to decide the question
whether the impugned legislation did in fact make any
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hostile discrimination. Otherwise the Court would have in
all probability struck down the impugned provision of law
even though it had been continued by virtue of section 119
of the States Reorganization Act, 1956.
The above three cases arose under the States
Reorganization Act. In Narottam Kishore Dev Varma & Ors. v.
Union of India & Anr. the petitioners who wished to sue the
Maharaja of Tripura, the former Ruler of the Princely State
of Tripura contended that section 87B of the Code of Civil
Procedure which applied the provisions of section 85 and of
sub-sections (1) and (3) of section 86 of the Code of Civil
Procedure to a Ruler of any former Indian State thereby
making the consent of the Central Government a prerequisite
for the trial of a suit against such a Ruler, giving certain
immunity to him as provided in sub-section (3) of section 86
and extending the provisions of section 85 to the case of
such a Ruler was violative of Article 14 and Article 19(1)
(f) of the Constitution. After upholding the provisions on
the ground that they were necessitated by historical
reasons, Gajendragadkar, C.J. observed at page 60 thus:
"Before we part with this matter, however, we
would like to invite the Central Government to consider
seriously whether it is necessary to allow s. 87B to
operate prospectively for all time. The agreement made
with the Rulers
612
of Indian States may, no doubt, have to be accepted and
the assurance given to them may have to be observed.
But considered broadly in the light of the basic
principle of the equality before law, it seems some
what odd that s. 87B should continue to operate for all
time. For past dealings and transactions, protection
may justifiably be given to Rulers of former Indian
States; but the Central Government may examine the
question as to whether for transactions subsequent to
the 26th of January 1950, this protection need or
should be continued. If under the Constitution all
citizens are equal, it may be desirable to confine the
operation of s. 87B to past transactions and not to
perpetuate the anomaly of the distinction between the
rest of the citizens and Rulers of former Indian
States. With the passage of time, the validity of
historical considerations on which s. 87B is founded
will wear out and the continuance of the said section
in the Code of Civil Procedure may later be open to
serious challenge."
(Emphasis added)
In all these cases while it is true that no provision
was actually struck down, there is a firm foundation laid in
support of the proposition that what was once a non-
discriminatory piece of legislation may in course of time
become discriminatory and be exposed to a successful
challenge on the ground that it violated Article 14 of the
Constitution. This is a sufficient answer to the contention
that if at the time when the Act was enacted section 32(b)
of the Act was not unconstitutional, it cannot at any time
thereafter be challenged on the ground of
unconstitutionality.
At this stage we shall deal with a very persuasive
argument addressed by learned counsel for some of the
respondents. Drawing support from the observations in Bhopal
Sugar Industries Ltd.’s case (supra) and in H.H. Shri
Swamiji of Shri Admar Mutt’s case (supra) they contended
thus. As in the above two decisions this Court had declined
to strike down the impugned legislation as it found that
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there was no adequate material to do so, in the cases before
us also we should follow the same course of action. The
learned counsel argued that the State Legislature had
deliberately granted the exemption in order to encourage
construction of new houses in view of the acute shortage of
housing accommodation and since the
613
shortage has become more and more acute, the Court should
not interfere with the legislative judgment and allow the
owners of buildings covered by section 32(b) of the Act to
continue to enjoy the exemption until there is evidence to
show that there is no longer any such shortage. We find it
difficult to accept this argument because it overlooks one
essential distinction between the facts of those two cases
and the facts of the present cases. The two decisions
referred to above arose in the context of reorganisation of
States. The State of Madhya Pradesh was formed by
integrating areas which formed parts of the British India
and a number of Indian States. Similarly the State of
Karnataka was formed by merging five integrating units which
again formerly formed parts of the British India and Indian
States. There were on the same subject laws of different
patterns in force in the several integrating units on the
eve of reorganisation. Those laws were allowed to continue
in force as a matter of necessity in the different local
areas until the State Legislature concerned passed a common
legislation on each subject for the whole State. The
Legislature had to consider which of the different laws
should be selected for enforcement in the entire State
either with or without modifications. This certainly needed
enquiry and investigation because of the diversities
prevailing in each reorganised State. On enquiry probably
the Legislature might have preferred to apply the very
legislation impugned before the Court for the entire State.
In these circumstances, this Court felt that it was not
possible to decide whether a particular law which was
challenged before them was discriminatory or not in the
absence of necessary pleadings and relevant material. In the
instant cases, the question is not one of selecting any
particular local law for extension to the other parts of a
State. This is a case where the Legislature while passing
the law had given the exemption apparently as an incentive
to encourage building activity. The learned counsel were not
able to show how the continuance of the exemption in the
case of persons who have built houses more than two decades
ago will set as an incentive to builders of new houses now.
If that is really so, then there is no justification to
continue to have the restrictions imposed by the Act on
buildings built prior to August 26, 1957 also and the whole
Act should have to be repealed for if the impugned exemption
can act as an incentive the repeal of the Act should also
act as an incentive. We are of the view that in the instant
cases no investigation as contemplated in the above two
decisions of this Court is necessary. The long period that
has elapsed after the passing of the Act itself serves as a
crucial factor in deciding the question whether the
614
impugned law has become discriminatory or not because the
ground on which the classification of buildings into two
categories is made is not a historical or geographical one
but is an economic one. Exemption was granted by way of an
incentive to encourage building activity and in the
circumstances such exemption cannot be allowed to last for
ever.
It is argued that since the impugned provision has been
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in existence for over twenty three years and its validity
has once been upheld by the High Court, this Court should
not pronounce upon its validity at this late stage. There
are two answers to this proposition. First, the very fact
that nearly twenty three years are over from the date of the
enactment of the impugned provision and the discrimination
is allowed to be continued unjustifiably for such a long
time is a ground of attack in these cases. As already
observed, the landlords of the buildings constructed
subsequent to August 26, 1957 are given undue preference
over the landlords of buildings constructed prior to that
date in that the former are free from the shackles of the
Act while the latter are subjected to the restrictions
imposed by it. What should have been just an incentive has
become a permanent bonanza in favour of those who
constructed buildings subsequent to August 26, 1957. There
being no justification for the continuance of the benefit to
a class of persons without any rational basis whatsoever,
the evil effects flowing from the impugned exemption have
caused more harm to the society than one could anticipate.
What was justifiable during a short period has turned out to
be a case of hostile discrimination by lapse of nearly a
quarter of century. The second answer to the above
contention is that mere lapse of time does not lend
constitutionality to a provision which is otherwise bad.
"Time does not run in favour of legislation. If it is ultra
vires, it cannot again legal strength from long failure on
the part of lawyers to perceive and set up its invalidity.
Albeit, lateness in an attack upon the constitutionality of
a statute is but a reason for exercising special caution in
examining the arguments by which the attack is supported."
(See W.A. Wynes: ’Legislative Executive and Judicial Powers
in Australia’ Fifth Edition p. 33). We are constrained to
pronounce upon the validity of the impugned provision at
this late stage because the garb of constitutionality which
it may have possessed earlier has become worn out and its
unconstitutionality is now brought to a successful
challenge.
It was, however, contended on behalf of some of the
respondents (landlords) that if clause (b) of section 32 of
the Act
615
was void then the entire Act may be struck down so that all
the tenancies may be regulated by contracts entered into by
the parties in accordance with their free will. In other
words it was submitted that even the limited operation of
the rent control legislation in Andhra Pradesh on buildings
constructed prior to August 26, 1957 may be lifted by
declaring the whole Act as invalid on the ground that
Legislature would not have passed the Act if it had known
that exemption could not be given for ever to buildings
constructed on and after August 26, 1957. On behalf of the
petitioners it was urged that the primary object of the
Legislature was to continue to give protection to the
tenants against their unreasonable evictions from and
recovery of unconscionable rents from them for the buildings
more or less on the same lines as it was under the Madras
Buildings (Lease and Rent Control) Act, 1949 and the
Hyderabad House (Rent, Eviction and Lease) Control Act, 1954
which were in force in the two areas of the State which were
merged into one State on November 1, 1956 and that in any
event clause (b) of section 32 i.e. the offending provision
alone can be struck down without doing any violence to the
rest of the statute. It was argued that the operation of the
Act would in any way not be affected thereby and the only
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result of striking down clause (b) of section 32 would be
that the rest of the Act would become applicable to all
buildings which are now exempted by clause (b) of section
32.
A statute bad in part is not necessarily void in its
entirety. Provisions which are within legislative power and
which are otherwise in conformity with the Constitution may
survive if they are capable of being separated from the bad.
But a provision inherently unobjectionable cannot be deemed
separable unless it appears both that, standing alone, legal
effect can be given to it and that the legislature intended
the provision to stand, in case others included in the
statute and held bad should fall. (See Dorchy v. Kansas 864
U.S. 286). The general rule is that when a provision which
is in the nature of an exception to a general statute is
invalid, the general provisions of the statute are not
invalidated thereby, unless it clearly appears that the
exception is so intimately and inherently related to and
connected with the general provisions to which it relates
that the legislature would not have enacted the latter
without the former. The principles underlying the doctrine
of severability are explained in Cooley’s Constitutional
Limitations (Eighth Edition) Vol. 1, at pages 360-362 thus:
616
"Where, therefore, a part of a statute is
unconstitutional, that fact does not authorise the
courts to declare the remainder void also, unless all
the provisions are connected in subject-matter,
depending on each other, operating together for the
same purpose, or otherwise so connected together in
meaning, that it cannot be presumed the legislature
would have passed the one without the other. The
constitutional and unconstitutional provisions may even
be contained in the same section and yet be perfectly
distinct and separable, so that the first may stand
though the last fall. The point is not whether they are
contained in the same section; for the distribution
into sections is purely artificial; but whether they
are essentially and inseparably connected in substance.
If, when the unconstitutional portion is stricken out
that which remains is complete in itself, and capable
of being executed in accordance with the apparent
legislative intent wholly independent of that which was
rejected, it must be sustained."
After a review of the law on the doctrine of
severability Venkatarama Ayyar, J. summarised the principles
governing the said doctrine in R.M.D. Chamarbaugwalla v. The
Union of India(1) at pages 950-952 thus:
"1. In determining whether the valid parts of a
statute are separable from the invalid parts
thereof it is the intention of the legislature
that is the determining factor. The test to be
applied is whether the legislature would have
enacted the valid part if it had known that the
rest of the statute was invalid. Vide Corpus Juris
Secundum, Vol. 82, P 156; Sutherland on Statutory
Construction Vol 2 PP. 176-177.
2. If the valid and invalid provisions are so
inextricably mixed up that they cannot be
separated from one another, then the invalidity of
a portion must result in the invalidity of the Act
in its entirety. On the other hand, if they are so
distinct and separate that
617
after striking out what is invalid, what remains
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is in itself a complete code independent of the
rest, then it will be upheld notwithstanding that
the rest has become unenforceable. Vide Cooley’s
constitutional Limitations, Vol. 1 at PP. 360-361;
Crawford on Statutory Construction, PP. 217-218.
3. Even when the provisions which are valid are
distinct and separate from those which are
invalid, if they all form part of a single scheme
which is intended to be operative as a whole, then
also the invalidity of a part will result in the
failure of the whole. Vide Crawford on Statutory
Construction, PP. 218-219.
4. Likewise, when the valid and invalid parts of a
statute are independent and do not form part of a
scheme but what is left after omitting the invalid
portion is so then and truncated as to be in
substance different from what it was when it
emerged out of the legislature, then also it will
be rejected in its entirety.
5. The separability of the valid and invalid
provisions of a statute does not depend on whether
the law is enacted in the same section or
different sections; (Vide Cooley’s Constitutional
Limitations, Vol. I, PP. 361-362); it is not the
form, but the substance of the matter that is
material, and that has to be ascertained on an
examination of the Act as a whole and of the
sating of the relevant provisions therein.
6. If after the invalid portion is expunged from the
statute what remains cannot be enforced without
making alterations and modifications therein, then
the whole of it must be struck down as void, as
otherwise it will amount to judicial legislation.
Vide Sutherland on Statutory Construction, Vol. 2,
p. 194.
7. In determining the legislative intent on the
question of separability, it will be legitimate to
take into account the history of the legislation,
its object, the title and the preamble to it. Vide
Sutherland on Statutory Construction, Vol. 2, PP.
177-178."
618
Rejecting the contention that if by striking down a
provision the class which is going to be affected is
enlarged, the Court cannot strike down the impugned
provision alone, Desai J. speaking on behalf of the
Constitution Bench of this Court in D. S. Nakara & Ors v.
Union of India(1) at page 340 has observed thus:
"Said the learned Attorney - General that
principle of severability cannot be applied to augment
the class and to adopt his words ’severance always cuts
down the scope, never enlarges it’. We are not sure
whether there is any principle which inhibits the court
from striking down an unconstitutional part of a
legislative action which may have the tendency to
enlarge the width and coverage of the measure. Whenever
classification is held to be impermissible and the
measure can be retained by removing the
unconstitutional portion of classification, by striking
down words of limitation, the resultant effect may be
of enlarging the class. In such a situation, the court
can strike down the words of limitation in an
enactment."
On a careful consideration of the above question in the
light of the above principles we are of the view that the
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striking down of clause (b) of section 32 of the Act does
not in any way affect the rest of the provisions of the Act.
The said clause is not so inextricably bound up with the
rest of the Act as to make the rest of the Act unworkable
after the said clause is struck down. We are also of the
view that the Legislature would have still enacted the Act
in the place of the Madras Buildings (Lease and Rent
Control) Act, 1949 and the Hyderabad House (Rent, Eviction
and Lease) Act, 1954 which were in force in the two areas
comprised in the State of Andhra Pradesh and it could not
have been its intention to deny the beneficial effect of
those laws to the people residing in Andhra Pradesh on its
formation. After the Second World War owing to acute
shortage of urban housing accommodation, rent control laws
which were brought into force in different parts of India as
places of temporary legislation gradually became almost
permanent statutes. Having regard to the history of the
legislation under review, we are of the view that the Act
has to be sustained even after striking down clause (b) of
section 32 of the Act. The
619
effect of striking down the impugned provision would be that
all buildings except those falling under clause (a) of
section 32 or exempted under section 26 of the Act in the
areas where the Act is in force will be governed by the Act
irrespective of the date of their construction.
After giving our anxious consideration to the learned
arguments addressed before us, we are of the view that
clause (b) of section 32 of the Act should be declared as
violative of Article 14 of the Constitution because the
continuance of that provision on the statute book will imply
the creation of a privileged class of landlords without any
rational basis as the incentive to build which provide a
nexus for a reasonable classification of such class of
landlords no longer exists by lapse of time in the case of
the majority of such landlords. There is no reason why after
all these years they should not be brought at par with other
landlords who are subject to the restrictions imposed by the
Act in the matter of eviction of tenants and control of
rents.
We do realize the adverse effect of this decision on
many who may have recently built houses by spending their
life savings or by orrowing large funds during these
inflationary days at high rates of interest, on the
expectation and belief that they would not be subjected to
the restrictions imposed by the Act. The incentive to build
provides a rational basis for classification and it is
necessary, in the national interest, that there should be
freedom from restrictions for a limited period of time. It
is always open to the State Legislature or the State
Government to take action by amending the Act itself or
under section 26 of the Act, as the case may be, not only to
provide incentive to persons who are desirous of building
new houses, as it serves a definite social purpose but also
to mitigate the rigour to such class of landlords who may
have recently built their houses for a limited period as it
has been done in the Union Territory of Chandigarh as
brought out in our recent judgment in M/s. Punjab Tin Supply
Co. Chandigarh etc. v. The Central Government & Ors. The
question whether new legislation should be initiated to
exempt newly constructed buildings for a limited period of
time on the pattern of similar legislation undertaken by
different States or to exempt such class of buildings for a
given number of years from the provisions of the Act by the
issue of a notification under section 26 of the Act is one
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for the State Government to decide.
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In the result these petitions succeed. Clause (b) of
section 32 of the Act is hereby declared as unconstitutional
and it is quashed. We, however, make it clear that this
declaration would not affect the validity of any proceedings
in which the decree for eviction passed by a civil court has
become final and the landlord has already taken possession
of the building in question pursuant thereto.
The petitions are accordingly allowed. No costs.
N.V.K. Petitions allowed.
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