Full Judgment Text
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PETITIONER:
MURLIDHAR AGARWAL AND ANR.
Vs.
RESPONDENT:
STATE OF U.P. AND ORS.
DATE OF JUDGMENT26/07/1974
BENCH:
MATHEW, KUTTYIL KURIEN
BENCH:
MATHEW, KUTTYIL KURIEN
RAY, A.N. (CJ)
CITATION:
1974 AIR 1924 1975 SCR (1) 575
1974 SCC (2) 472
CITATOR INFO :
MV 1975 SC 865 (60)
RF 1975 SC1525 (8)
R 1983 SC1239 (12)
RF 1984 SC 74 (21)
RF 1986 SC1194 (10,12)
D 1987 SC 925 (13)
R 1987 SC2117 (23)
ACT:
Constitution of India, 1950--Article 226--Powers of High
Court to interfere with revisional orders passed by State
Government under s. 7F of U.P. Temporary Control of Rent and
Eviction Act, 1947.
Public Policy--U.P. (Temporary) Control of Rent and Eviction
Act, 1947 s. 3(1)--Suit for eviction to be instituted with
permission of District Magistrate--Whether tenant can waive
the requirement of Section.
U. P. (Temporary) Control of Rent and Eviction Act. 1947--
Powers of the High Court under writ jurisdiction to
interfere with the revisional order passed by the State
Government under section 7F of the Act.
HEADNOTE:
The Additional District Magistrate passed an order for
eviction against tenant on an application by the landlord
under Section 7A of the Act. On revision, the Additional
Commissioner confirmed the order of eviction. The State
Government in exercise of its revisional powers under
section 7F set aside the orders passed by the two
authorities and held that the tenant was not liable to be
evicted from the Premises. The State Government passed the
order on the basis that the tenant was running a cinema in
the premises since the year 1952 and that the District.
Magistrate when he granted the licence was satisfied that
the tenant was in lawful occupation and that, therefore, the
tenant was entitled to the benefit of proviso to section 7A
(1) of the Act. On writ petition filed, the Learned Single
Judge of the High Court quashed the order of the State
Government. The Division Bench of the High Court reversed
the order of the Learned Single Judge.
The landlord instituted a suit against the tenant for
eviction without obtaining the permission of the District
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Magistrate under section 3(1) of the Act. The landlord
relied on one of the clauses in the lease deed which
provided that the parties agreed that they would not claim
the benefit of the Rent Control and Eviction Act and that
the provisions of the said Act were agreed not to be
applicable to the said lease. The High Court held that the
suit was not maintainable in view of Section (3)(1) of the
Act.
Dismissing the appeals,
HELD : The High Court was right in holding that section 3
was applicable and therefore, the suit was not maintainable.
[585C-D]
(1) Having regard to the definition of tenant in section
2(g) and the scheme of the Act a person is a ’tenant’ under
section 3 even though he is occupying the accommodation
without an allotment order. [580G-H]
Udho Dass v. Prem Prakash, (2) (1963) A. L. J. 406,
approved.
(2) The language of section 3(1) is imperative and it
prohibits the institution of the suit without the permission
of the District Magistrate. The policy of the Act-, seems
to be that a responsible authority like District Magistrate
should consider the claim of the landlord and needs of the
tenant before granting permission The. object of the Act was
to protect tenants from greedy and grasping landlords and.
from their resorting to court for eviction of tenants
without reasonable grounds. There can be no doubt that the
provision has been enacted for protecting one set of men
from another set of men. The one from their situation and
condition are: liable to be oppressed and imposed upon.
Though there is considerable support in judicial dicta for
the view that courts cannot create new heads of public
policy there is also no lack of judicial authority for the
view that the categories of heads of public policy are not
closed. Public policy does not remain static in any given
community. Public policy would be almost useless if it were
to remain in fixed moulds for all times. Our law relies on
the implied insight of the judge on such matters. Section 3
is based on public policy. It is intended to protect a
576
weaker section of the community with a view to ultimately
protecting the interests -of the community in general by
creating equality of bargaining power. The tenant could not
have waived the benefit of the provision. [581 E-F; 582 G;
584BGG-585C]
Lachoo Mal v. Radhey Shyam [1971] 3 S. C. R. 693, Gheralal
Parakh v. Mahadeodas Maiya Das [1959] Supp. 2 S.C.R. 406,
440., referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2370 of
1969
Appeal from the judgement and order dated the 22nd May, 1969
of the Allahabad High Court in Spl. Appeal No. 343 of 1968.
Civil Appeal No 583 of 1971
Appeal from the Judgement & order dated the 28th October,
1970 .of the Allahabad High Court in First Appeal No. 82 of
1970.
S. V. Gupte, J. P. Goyal and S. M. Jain, for the
appellants (in both, the appeals)
R. K. Garg, S. C. Aggarwal, S. S. Bhatnagar and V. J.
Francis, for the respondent (in C. A. No. 583/71)
N. Dixit and O. P. Rana, for the respondent Nos. 1,3 and
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4.
Civil Appeal No. 2370 of 1969
The Judgment of the Court was delivered by
MATHEW J. The appellants filed a petition under Article 226
of the Constitution before the High Court of Allahabad
praying that the order passed by the State Government on
October 20, 1967, allowing a revision filed by the
respondent be quashed and possession of the premises in
question be given to them under s. 7-A of the U. P.
(Temporary) Control of Rent and Eviction Act, 1947
(hereinafter ,called the Act).
The original owner of the premises was one Ram Swaroop
Gupta. He leased the premises to M/s Pioneer Exhibitors and
Distributors Limited. They used the premises for exhibiting
cinema. That lease terminated by efflux of time on June 30,
1952. Gupta, thereafter, leased the premises by a deed dated
October 13, 1952 for a period of 10 years to Ram Agyan
Singh, respondent No. 2. But there was no order allotting
the accommodation to him under S. 7(2) of the Act.
Respondent No. 2 also used the premises for exhibiting
cinematography films. Disputes having arisen between the
parties, Gupta filed suits for recovery of rent as well as
for ejectment against respondent No. 2. The appellants
purchased the premises in question from Ram Swaroop Gupta by
a sale deed dated March, 26, 1962. Thereafter they filed an
application under s. 7 of the Act read with rule 6 made
under the Act for release of the accommodation in their
favour. On December 3, 1965, the Additional District Magis-
trate allowed the application and permitted the appellants
to take possession of the premises. That was on the basis
that the premises were in illegal occupation of respondent
No. 2. The representation against this order filed by
respondent No. 2 to the State
577
Government was rejected on January 10, 1966 on the ground
that there was no provision for any interference by
Government with the order. On December 4, 1965, the
appellants filed an application for eviction of respondent
No. 2 under s. 7-A of the Act. On June 18, 1966, the
Additional )District Magistrate directed issue of notice
under clause (2) of s. 7-A, why respondent No. 2 should not
be evicted. Thereafter, the Additional District Magistrate
passed the order for eviction. Respondent No. 2 went up in
revision against the order to the Additional Commissioner.
He confirmed the cider of the Additional District
Magistrate. Respondent No. 2, thereafter, filed an
application for revision under s. 7-F of the Act before the
State Government against the order. The State Government
allowed that application on October 20, 1967 holding that
respondent No. 2 was not liable to be evicted from the
premises. On January 20, 1968, the State Government
communicated to the parties a summary of the reasons on the
basis of which the order had been passed. That in effect
said that the respondent was running a cinema under a
licence in the premises from 1952, that the District
Magistrate, when he granted the licence, was satisfied that
respondent No. 2 was in lawful occupation and that, in these
circumstances, he was entitled to the benefit of the proviso
to s. 7-A(1) of the Act and was not liable to be evicted
from the premises.
It was to quash this order that the appellants filed the
writ petition before the High Court.
A learned Single Judge of the Court quashed the order. Res-
pondent No. 2 filed an appeal against the order. The
division Bench reversed the order of the learned Single
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Judge. It is against this order that this appeal has been
filed on the basis of a certificate granted under Article
133(1)(b) of the Constitution.
The division Bench was of the view that the learned Single
Judge was not justified in interfering with the order passed
by the State Government udder s. 7-F of the Act inasmuch as
the order of the State Government did not suffer from any
infirmity either on the ground that it had no jurisdiction
to pass the order or for the reason that there was an error
of law apparent on the face of the record.
The material provision in s. 7-A of the Act provides
"S. 7-A. District Magistrates’ power to take
action against unauthorised occupation-(1)
Where in pursuance of the order of the
District Magistrate under sub-section (2) of
Section 7 the vacancy of any accommodation is
required to be reported and is not reported,
or where an order requiring any accommodation
to be let or not to be let has been duly
passed under sub-section(2) of Section 7 and
the District Magistrate believes or has reason
to believe that any person has in
contravention of the said order, occupied the
accommodation or any part thereof, he may call
upon the, person in occupation to show cause,
within a time to be fixed by him, why he
should not be evicted therefrom;
578
Provided that no order under this section
shall be passed if the District Magistrate is
satisfied that there has been undue delay or
it is otherwise inexpedient to-do so"
The proviso to sub-section (1) of s. 7-A is
couched in wide language. The dictionary
meaning of the word ’inexpedient’ is:
"Not expedient; disadvantageous in the
circumstances; unadvisable, impolitic."
The circumstances that could be taken into consideration to
decide whether it is expedient or inexpedient to order an
eviction under the section are not mentioned in the proviso.
A great deal of discretion must,therefore, be vested in the
District Magistrate and in the State Government when
disposing a revision from an order passed by the District
Magistrate as several factors would enter the making of the
verdict whether it is inexpedient to pass an order of
,eviction under the section. In this case, the State
Government has taken into account two reasons for exercising
its discretion under the proviso in favour of respondent No.
2: (1) that respondent No. 2 was in possession from 1953
onwards and was conducting a cinema in the premises after
obtaining a licence from the District Magistrate under the
U. P. Cinema Regulation Act; (2) that the District
Magistrate when granting the licence to conduct the cinema
must have been satisfied that the respondent was in lawful
occupation of the premises. In other words, what in
substance the State Government said was, that respondent
’No. 2 has been using the premises for conducting cinema
from 1953 on the basis of his possession of the premises and
that it would be inexpedient to evict him at this stage. We
cannot say that the circumstances taken into account are
irrelevant for the exercise of the discretion.
Mr. Gupte, appearing for the appellants, said that when the
Additional District Magistrate passed the order for release
on the basis that the appellants require the premises bona
fide for their personal occupation, the State Government, in
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the exercise of its revisional jurisdiction under s. 7-F
against the order of eviction under s. 7-A ,should not have
nullified the effect of the order of release by exercising
its discretion under the proviso to s. 7-A against the
appellants. He also said that the State Government did not
even refer to the order for release which would show that it
made no assessment of the hardship to the landlords.
The fact that an order for release was passed by the
Additional District Magistrate on the basis that the
premises were bona fide required by the appellants for their
personal occupation did not preclude him, when he was moved
by the appellants to evict respondent no. 2 from exercising
his discretion under the proviso to s. 7-A. For it is at
that stage that the respondent will have the opportunity to
urge the circumstances which make it inexpedient to evict
him. In other words, the only relevant question at the time
when the order
(1) See Shorter oxford English Dictionary, Illustrated,
VoI. 1, 3rd ed., (1964), p. 997.
579
of release was passed was whether the appellants required
the premises bona fide for their occupation.The controversy
was limited at that stage to that question. The
circumstances which would make the passing of an order of
evictioninexpedient under s.7-A could not have been urged
at that time by respondent No. 2. So, the inference that the
State Government was not aware of the order for release on
the ground that the appellants required the promises for
their personal occupation could not be made from the fact
that the State Government found that it was inexpedient to
order the eviction of the second respondent in the exercise
of its discretion under the proviso to s. 7-A when disposing
of a revision.
We are not satisfied that the order of the State Government
was vitiated by any error of law apparent on the face of the
record. As already stated, the considerations which weighed
with the State Government in rejecting the application,
namely, the hardship to respondent No. 2 who was conducting
a cinema in the premises from 1953 cannot be said to be
irrelevant. As the order of the State Government did not
suffer from any error of law apparent on the face of the
record, the learned Single Judge was not justified in
quashing the order and the Division Bench rightly set aside
the order of the learned Single Judge and allowed the
appeal.
We dismiss the appeal but, in the circumstances, make no
order as to costs.
Civil Appeal No. 583 of 1971
In this appeal, by certificate, we are concerned with the
question whether the suit filed by the appellants for
recovery of Possession of the premises which is the subject
matter of Civil Appeal NO. 2370 of 1969, on the basis that
the tenancy created by Ram Swaroop Gupta, the
predecessor-in-interest of the appellants, in favour of Ram
Agyan Singh, the respondent, had expired and, therefore, the
appellants were entitled to recover possession of the same,
was maintainable in law in view of the fact that it was
instituted without obtaining the permission of the District
Magistrate under s. 3(1) of the U. P. (Temporary) Control of
Rent and Eviction Act, 1947 (hereinafter called the Act).
The trial court held that although the respondent was a
tenant against whom the suit cannot be filed without the
previous permission as visualised by s. 3 of the Act, yet he
cannot claim the benefit of s. 3 on account of clause 20 of
the lease deed and decreed the suit.
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On appeal by the respondent, the High Court reversed the
decree, holding that the suit was not maintainable in view
of s. 3, and dismissed the suit. It is from this decree
that this appeal has been filed.
The two questions which arise in this appeal are: (1)
whether the High Court was right in holding that s. 3 was
applicable and, therefore, the suit was not maintainable;
and (2) whether clause 20 of the lease deed was a bar to the
respondent from claiming that’ the provisions of s. 3 were
applicable.
580
Section 3(1) insofar as it is material, provides,
"3. Restriction on eviction--(1) Subject to any order
passed under sub-section (3) no suit shall, without the
permission of the District Magistrate, be filed in any Civil
Court against a tenant for his eviction from any
accommodation except on one or more of the following
grounds:-"
The lease deed in question was executed after the
commencement of the Act and the respondent did not obtain an
allotment under S. 7(2) of the Act in his favour from the
District Magistrate. It was, therefore, contended on behalf
of the appellants that the respondent was not a tenant
within the meaning of that term in s. 3 as the lease was
created in violation of the provision of s. 7(2).
In Udho Dass v. Prem Prakash(1) a Full Bench of the
Allahabad High Court took the view that a lease made in
violation of the provisions of s. 7(2) would be valid
between the parties and would create the relationship of
landlord and tenant between them although it might not bind
the authorities concerned. In the light of this ruling the
correctness of which we see no reason to doubt-we think that
the respondent was a tenant. The respondent had been paying
the rent to Ram Swaroop Gupta and to the appellants after
the sale by him to the appellants. "Tenant" is defined
under s. 2(g) of the Act as follows:
"2(g) ’Tenant’ means the person by whom rent is, or but for
a contract express or implied, would be payable for any
accommodation".
Now, the landlord and the tenant cannot, by their agreement,
bind the District Magistrate. In spite of the lease, the
District Magistrate may treat the accommodation as vacant
and evict therefrom the tenant who is in occupation of the
accommodation without an allotment order. This is his
statutory obligation. But the appellants would be estopped
from denying that the respondent is a tenant. The Act makes
a distinction between a tenant by virtue of an allotment
order and a tenant otherwise than by virtue of an allotment
order. In most of the sections of the Act the word tenant’
alone is used. If the word ’tenant’ in s. 3 is construed as
"tenant under an allotment order", then the tenants who have
been occupying an accommodation without an allotment order
will be deprived of several material privileges conferred
upon them by the Act. Having regard to the definition
clause and the scheme of the Act, we are of opinion that the
respondent is a tenant under s. 3 even though EC is
occupying the accommodation without an allotment order,. It
follows that the respondent would get the protection under
S. 3 and that the appellants’ suit was, therefore, liable to
be dismissed as it was found that it was instituted without
the permission of the District Magistrate.
(1) (1963) A.L.J. 406.
581
We now turn to the other question, viz., whether under
clause 20 of the lease deed, the respondent was precluded
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from contending, that the suit was not maintainable even
though it was instituted without the permission of the
District Magistrate. Clause 20 of the deed provides:
"That this agreement of lease has been made
between the parties with the knowledge of the
existing Rent Control and Eviction Act. The
parties do hereby agree and declare that no
party will ever claim the benefit of the said
Acts and that the provisions of the said Acts
have been agreed by mutual consent to be
inapplicable to this deed."
The question for consideration is whether this clause is
illegal. Clause 20 contains two provisions. The first
provision is that the parties will never claim the benefit
of the Act. The second provision is that the provisions of
the Act will be inapplicable to the lease deed. The High
Court has taken the view that clause 20 is illegal, and
therefore, the respondent was not precluded from contending
that- the suit was not maintainable.
The Act was passed inter- alia to prevent the eviction of’
tenants from their accommodations. The language of s. 3 (1)
is imperative and it prohibits the institution of the suit
without the permission, If any landlord institutes a suit
for eviction of the tenant without the permission of the
District Magistrate, he commits an offence and is punishable
Linder s. 15 of the Act. The object of s. 3 is to give
protection to a tenant from eviction from an accommodation.
The policy of the Act seems to be that a responsible
authority like the District Magistrate should consider the
claim of the landlord and the needs of the tenant before
granting permission. There was alarming scarcity of
accommodation. The object of legislature in enacting the
law was to protect tenants from greedy and grasping
landlords, and from their resorting to court for eviction of
tenants without reasonable grounds.
Under s. 23 of the Indian Contract Act, 1872, an agreement
is void if it defeats any provision of law:
"S. 23. The consideration or object of an agreement is
lawful, unless--
it is forbidden by law; or
is of such a nature, that, if permitted, it would defeat the
provisions of any law, or is fraudulent; or involves or
implies injury to the person or property of another; or the
Court regards it Lis immoral, or opposed to public policy.
In each of these cases, the consideration or object of an
agreement is said to be unlawful. Every agreement of which
the object or consideration is unlawful is void."
Mr. Gupte, appearing for the appellants, referred to the
decision of this Court in Lachoo ’Mal v. Radhey Shyam(1) and
said that
(1) [1971] 3 S.C.R.693.
M185 Sup. CI/75
582
it was open Lo the respondent to waive the benefit of the
provision of s. 3 as it was enacted for the benefit of
tenants and that no question of public policy is involved.
In that case this Court was considering the question whether
it was open to a landlord to waive the benefit of a
provision enacted for the benefit of landlords under the
Rent Control Act. This Court said that if a provision is
enacted for the benefit of a person or class of persons,
there was nothing which precludes him or them from
contracting to waive the benefit, provided that no question
of public policy was involved.
"If the object of a statute is not one of general policy, or
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if the thing which is being done will benefit only a
particular person or class of persons, then the conditions
prescribed by the statute are not considered as being
indispensable. This rule is expressed by the maxim of law,
quilibet potest renuntiare juri pro se introducto. As a
general rule, the conditions imposed by statutes which
authorise legal proceedings are treated as being
indispensable to giving the court jurisdiction. But if it
appears that the statutory conditions were inserted by the
legislature simply for the security or benefit of the
parties to the action themselves, and that no public
interests are involved, such conditions will not be
considered as indispensable, and either party may waive them
without affecting the jurisdiction of the court .... "(1)
Maxwell states the rule of law as follows:
"Another maxim which sanctions the non-
observance of a statutory provision is that
culibet licet renuntiare juri pro se
introducto. Everyone has a right to waive and
to agree to waive the advantage of a law or
rule made solely for the benefit and
protection of the individual in his private
capacity, which may be dispensed with without
infringing any public right or public policy.
Where in an Act there is no express
prohibition against contracting out of it, it
is necessary to consider whether the Act is
one which is intended to deal with private
rights only or whether it is an Act which is
intended, as a matter of public policy, o have
a more extensive operation...... (2).
So, the question is, whether s. 3 was enacted only for the
benefit of tenants or whether there is a public policy
underlying It which precludes a tenant from waiving its
benefit. There can be no doubt that the provision has been
enacted for protecting one set of men from another set of
men, the one from their situation and condition are liable
to be oppressed and imposed upon. Necessitous men are not
free men.
In the Nineteenth-Century the doctrines of laissex faire
capitalism were accepted as part of the natural order of
things and the doctrine was reinforced by the idea of the
early utilitarians that to achieve social justice, it would
suffice to produce formal equality before the
(1) See Craies on Statute Law, 7th ad,. pp. 269-270.
(2) See "Interpretation of Statutes", 11th ed., (1962), pp.
375-376.
583
law. These views were reflected in contemporary legal
thought by the idea that freedom of contract was the supreme
article of public policy, a notion which ignored utterly
those cases where there was no genuine equality of
bargaining power as for example between master and servant
or between landlord and tenant.(1)
There can be no doubt about the policy of the law, namely,
the protection of a weaker class in the community from
harassment of frivolous suits. But the question is there a
public policy behind it which precludes a tenant from
waiving it?
The expression ’public policy’ has air entirely different
meaning from ’policy of the law’ and one much more
extensiVe(2). Nevertheless, the term ’public policy is used
by the House of Lords itself apparently as synonymous with
the policy of the law or the policy of a statute [see
Hollinishead v. Hazleton(3). Yet it is clearly so used
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without intent to repudiate or disregard the distinction so
clearly drawn in Egerton v. Brownlow. It seems clear that
the conception of public policy is not only now quite
distinct from that of the policy of law but has in fact
always been so except in some exceptional instances of
confusion which have had no Substantial effect on the
general course of authority(4).
The Courts have often repeated Mr. Justice Burrrough’s
metaphor about public policy being an unruly horse. Some
judges appear to have thought it more like a tiger and have
refused to mount it at all, perhaps because they feared the
fate of the young lady of Riga. Others have regarded it
like Balaam’s ass which would carry its rider nowhere. But
none, at any rate at the present day, has looked upon it as
a Pegasus that might soar beyond the momentary needs of the
community. There is nothing remarkable in this because the
topic itself is so elusive(5).
"Public Policy" has been defined by Winfield as "a principle
of judicial legislation or interpretation founded on the
current needs of the community"(5). Now, this would show
that the interests of the whole public must be taken into
account; but it leads in practice to the paradox that in
many cases what seems to be in contemplation is the interest
of one section only of the public, and a small section at
that. The explanation of the paradex is that The courts
must certainly weigh the interests of the whole community as
well as the interests of a considerable section of it, such
as tenants, for instances as a class as in this case. If
the decision is in their favour, it means no more than that
there is nothing in their conduct which is prejudicial to
the nation as a whole.- Nor is the benefit of the whole
community always a mere tacit consideration. The courts may
have to strike. a
(1) See Dennts Lloyd, "Public Policy" (1953), pp. 136-137.
(2) See Eserton v. Brownlow, 4 H.L.C. p. 105.
(3) [1916] 1 A.C. 428.
(4) see W.S.M. Knight, "Public Policy in English Law", 38,
Law Quarterly Rev., 207, at pp. 217-218.
(5)see Percy H. Winfield, "Public Policy in English Common
Law". Harvard Law Rev. 76.
584
balance in express terms between community interests and
rectorial interests. So, here we are concerned with the
general freedom of contract which everyone possesses as
against the principle that this freedom shall not be used to
subject a class, to the harassment of suits without valid or
reasonable grounds. Though there is considerable support in
judicial dicta for the view that courts cannot create new
heads of public policy,(1) there is also no lack of judicial
authority for the view that the categories of heads of
public policy are not closed and that there remains a broad
field within which courts can apply a variable notion of
policy as a principle of judicial legislation or inter
predation founded on the current needs of the community (2).
Public policy does not remain static in any given community.
It may vary from generation to generation and even in the
same generation. Public policy would be almost useless if
it were to remain in fixed moulds for all time.
If it is variable, if it depends on the welfare of the
community at any given time, how are the courts to ascertain
it ? The judges are more to be trusted as interpreters of
the law than as expounders of public policy. However, there
is no alternative under our system but to vest this power
with judges. The difficulty of discovering what public
policy is at any given moment certainly does not absolve the
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judges from the duty of doing so. In conducting an enquiry,
as already stated, judges are not bide-bound by precedent.
The judges must look beyond the narrow field of past
precedents, though this stilleaves open the question, ’a
which direction. They must cast their gaze. The judges are
to base their decision on the opinions of men of the world,
as distinguished from opinions based on legal learning. In
other words, the judges will have to look beycnd the
jurisprudence and that in so doing, they must consult not
their own personal standards or predilections but those of
the dominant opinion at a given moment, or what has been
termed customary morality. The judgemust consider the
social consequences of the rules propounded, especially in
the light of the factual evidence available as to its
probable results. of course, it is not to be expected that
men of the world are to be subpoenaed as expert witnesses in
the trial of every action raising a question of public
policy. It is not open to the judges to make a sort of
referendum or hear evidence or conduct an inquiry as to the
prevailing moral concept. Such an extended extra, judicial
enquiry is wholly outside the tradition of courts where the
tendency is to ’trust the judge to be a typical
representative of his day and generation’. Our law relies,
on the implied insight of the judge on such matters. It is
the judges themselves, assisted by the bar, who here
representthe highest common factor of public sentiment and
intelligence(3). No doubt, there is no assurance that judges
(1)See Gherulal Parakh v. Mahadeodas Maiya & ors. [1959]
Supp. [2, SCR. 406,440.]
(2) See Dennis Lloyd, "Public Policy" (1953), pp. 112-113.
(3) see Percy H. Winfield, "Public Policy in English Common
Law", 42 Harward Law Rev. 76 and also, Dennis Lloyd,
"Public- Policy" (1953), pp. 124-125.
585
will interpret the mortes of their day more wisely and truly
than other men. But this is beside the point. The
point is rather that this powermust be lodged somewhere
and under our Constitution and laws, ’It has been lodged in
the judges and if they have to fulfil their function as
judges, it could hardly be lodged elsewhere(1).
We think that s. 3 is based on public policy. As we said,
it is intended to protect a weaker section of the community
with a view to ultimately protecting the interest of the
community in general by creating equality of bargaining
power. Although the ection is primarily intended for the
protection of tenants only, that protection is based on
public policy. The respondent could not have waived the
benefit of the provision.
The language of the section as already stated, is
prohibitive in character. It precludes a court from
entertaining the suit. We think the High Court was right in
its conclusion.
We dismiss the appeal with costs.
P. H. Appeal dismissed.
586