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Masud Khan v State Of Uttar Pradesh |
Supreme Court of India |
26 September 1973 |
Writ Petition No. 117 of 1973 |
The Judgment was delivered by : A. Alagiriswami, J. |
1. Petitioner Masud Khan prays for his release on the ground that he, an Indian citizen has been illegally arrested and confined to, jail under Paragraph 5 of the Foreigners (Internment) Order, 1962. He had come to India from Pakistan on the basis of a Pakistani passport dated 137-1954and Indian visa dated 9-4-1956. I... |
2. If these statements were correct the petitioner would clearly be a Pakistani national. When this fact was brought out in the counter affidavit filled on behalf of the respondent, the petitioner filed a further affidavit stating that he was appointed as a Police Constable in Hasanganj Police Station, District Fatehp... |
3. Considering the frequent change of ground which the petitioner has resorted to, a mere statement from him cannot be accepted as true. Nor can we accept his contention that it is for the respondent to establish that lie did not go to Pakistan in 1951 but that he went on some other date. The petitioner has also alleg... |
4. We are not prepared to assume that the petitioner should be deemed to have been present in India on 26-1-1950, as was urged on behalf of the petitioner. There is no room for any such presumption. Under s-9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner the onus of proving... |
5. It appears, however, that in 1960 he had been prosecuted before the Sub-Divisional Magistrate, Fatehpur under s. 14 of the Foreigner--, Act and was acquitted on the ground that he was not a foreigner. It was therefore contended that the question whether the petitioner is -a foreigner or not is a matter of issue est... |
6. But that apart, this matter could bedecided on another point.. The question of issue-estoppels has been considered by this Court in Pritam Singh v. State, of Punjab (AIR1956 SC 415), 1955 Indlaw SC 111 Manipur Administration v. Thokchom, Bira Singh (1964 7 SCR 123) 1964 Indlaw SC 413 and Piara Singh S. State of Pun... |
7. It is nota criminal prosecution. The principle of issue estoppels is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favored an accused, such a finding would constitute an estoppels or res judicator against the prosecution not as a... |
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings bet... |
It should bekept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue-estoppels not the same as the, plea of double jeopardy or aura foist acquit. In The King v. Wilkes (77 C.L.R.511) |
Divon, J. |
8. Referring to the question of issue estoppel said. view that there is an issue estoppels, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same pris... |
"The emphasis here again would be seen to be on the determination of, criminal liability. In Marz v. The Queen (96 C.L.R. 62) the High Court of Australia said "The Crown is as much precluded by an estoppels by judgment in criminal proceedings as is a subject in civil proceedings The laws which gives effect to issue est... |
Here again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention. |
Prabhakaran Nair, Etc. v State Of Tamil Nadu And Ors. |
Supreme Court of India |
3 September 1987 |
Writ Petition No. 506 of 1986 |
The Judgment was delivered by: Sabyasachi Mukharji, J. |
1. There is 'much ado about nothing' about these cases. These petitions seek to challenge the vires of s. 14(1)(b) and s. 16(2) as well as incidentally s. 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter called 'the Tamil Nadu Rent Act') on the ground of being arbitrary, discriminator... |
2. The learned Judge of the trial court ordered eviction under s. 14(1)(b) of the Tamil Nadu Rent Act only for demolition and reconstruction and dismissed the other grounds, and that is the only ground with which we are concerned in this appeal. On 25th of February, 1981 the Appellate Court dismissed the petitioner's ... |
3. This Court initially ordered show cause notice and also granted ad interim ex-parte stay of dispossession. On 29th January, 1983 the City Civil Court, Madras granted interim injunction restraining the respondents from demolishing the building till the disposal of the application in the suit filed by the petitioner a... |
4. On 17th of February, 1986 this Court dismissed the special leave petition after notice but directed that the decree for eviction would not be executed till 17.11.86. It was observed by this Court that the petitioner would be at liberty to file a writ petition u/art. 32 of the Constitution, if so advised, challengin... |
5. The main ground of attack on this aspect seems to be that while other Rent Acts in case of eviction for demolition permit and direct that after reconstruction the tenant should be inducted as tenant or given the opportunity to have the same space in the reconstructed building, in the instant Act no such option is g... |
" 14. Recovery of possession by landlord for repairs or for reconstruction. |
(1) Notwithstanding anything contained in this Act, but subject to the provisions of ss. 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied- |
(a) that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated; or |
(b) that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlo... |
(2) No order directing the tenant to deliver possession of the building under this section shall be passed- |
(a) on the ground specified in cl. (a) of subsection (1), unless the landlord gives an undertaking that the building shall, on completion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-s. (1) for his re-occupation before the expiry of three months from the date of ... |
(b) on the ground specified in cl. (b) of subsection (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possess... |
(3) Nothing contained in this section shall entitle the landlord who has recovered possession of the building for repairs to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passi... |
(4) Notwithstanding an order passed by the Controller under cl. (a) of sub-s. (1) directing the tenant to deliver possession of the building, such tenant shall be deemed to continue to be the tenant, but the landlord shall not be entitled to any rent for the period commencing on the date of delivery of possession of th... |
(5) Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section". S. 15 empowers the tenant to re-occupy after repairs. There is no such provision in case of eviction on the ground of bona fide need for d... |
6. S. 16 deals with the right of the tenant to occupy the building if it is not demolished. Sub-s. (2) which was amended and introduced by Act 23 of 1973 dealing with the reconstructed building reads as follows: |
"16(2) Where in pursuance of an order passed by the Controller under cl. (b) of sub-s. (1) of section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construc... |
7. In this connection s. 30 which exempts certain buildings may be referred to and sub-section (i) is important. It reads as follows: |
"30. Exemption in the case of certain buildings- Nothing contained in this Act shall apply to- |
(i) any building for a period of five years from the date on which the construction is completed and notified to local authority concerned; or |
(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds (four hundred rupees)." |
8. In this appeal we are not concerned with cl. (ii) of s. 30 the challenge to whose validity has been accepted by this Court in Rattan Arya and others v. State of Tamil Nadu and another, [1986] 3 S.C.C. 3851986 Indlaw SC 417. S. 30(ii) of the Tamil Nadu Rent Act has been struck down as violative of Art. 14. |
9. Various submissions were urged in support of the several writ petitions. Sree Raju Ramachandran contended that in most of the Indian statutes dealing with eviction of tenants, there are provisions of re-induction of the tenant where the eviction is obtained on the ground of reconstruction after the premises in ques... |
10. Our attention was drawn to several statutes, namely, Maharashtra, Karnataka, Kerala, West Bengal and numerous others where there are provisions for re-induction of other tenants in the premises after reconstruction. Most of the provisions of other statutes provide for such induction while the Tamil Nadu Rent Act d... |
11. It was submitted that neither the old tenant nor any new tenant was thus entitled to protection of the Rent Control Act after reconstruction. The old tenant cannot also get into the new building as of right. This discrimination against the tenants in Tamil Nadu is invidious and violates Art. 14 of the Constitution.... |
12. The classification of buildings reconstructed differently from the buildings repaired is not valid, as it has no relation to the object or purpose of the Act. Furthermore, that all the tenants belong to one class and they could not be treated differently. On this aspect it was further submitted that the provisions ... |
13. Learned Attorney General appearing for the respondents submitted before us that the main provision of s. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he was satisfied that the building was bona fide required by the landlord for the immediate purpose of demol... |
14. See in this connection the provisions of s. 16 of the said Act. The demolition has therefore to be completed within three months. In the case of massive buildings demolition can overtake six months or even a year and hence the provision that for reasons to be recorded in writing, the Controller may allow such furth... |
15. It has to be borne in mind that it is not practicable and would be anamolous to expect a landlord to take back a tenant after a long lapse of time during which time the tenant must necessarily have found some suitable accommodation elsewhere. This is the true purpose behind s. 14(1)(b) read with s. 14(2)(b). In th... |
16. The other submission as noted above was that in most of the Rent Acts, there was provision for re-induction of the tenants but there was no such provision in case of reconstruction in the Tamil Nadu Rent Act. In The State of Madhya Pradesh v. G.C. Mandawar, [1955] 1 S.C.R. 599 1954 Indlaw SC 40, a Constitution Ben... |
17. It is necessary now to deal with the submission that the section is unreasonable. For this, one has to bear in mind the public purpose behind the legislation. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was passed in 1960. A similar enactment which was in operation from 1949 to 1960 did not contain... |
18. In 1949, however, the enactment contained a provision empowering the Government to exempt any building or class of buildings from all or any of the provisions of the Act. When the landlords desired to evict tenants on the ground of demolition and re-construction, they resorted to the remedy of moving the Governmen... |
19. The Government by notification used to exempt any building or class of buildings from all or any of the provisions of the Act. In this connection reference may be made to the decision in S. Kannappa Pillai and another v. B. Venkatarathnam, (78 Law Weekly 363). The Government in that case when passing the order of e... |
20. It was submitted on behalf of the respondents by the learned Attorney General that the Legislature in view of the experience gained from 1949 to 1960 enacted ss. 14 to 16 of the Act and which were introduced in the Act of 1960. |
21. It was urged that the 1960 Act had improved the position. It had provided as a ground of eviction of the tenant the requirement of the landlord for demolition and re-construction of the building leaving it to a judicial authority viz. Rent Controller to decide the matter with one statutory right of appeal and a fu... |
22. It may be borne in mind that historically the Constitutionality of s. 13 of the Act of 1949 was upheld on the touchstone of Art. 14 both by the Madras High Court and on appeal by this Court in P.J. Irani v. The State of Madras, [1962] 2 S.C.R. 169 1961 Indlaw SC 69. It was held that s. 13 of the Act did not violat... |
23. The Act of 1960 contains a corresponding provision for exemption in s. 29 of the Act which corresponds to s. 13 of the Act of 1949 was also upheld by this Court in S. Kandaswamy Chettiar v. State of Tamil Nadu and another, [1985] 2 SCR 398 1984 Indlaw SC 354. Dealing with s. 29 of the Act this Court observed that ... |
24. The decision reiterated that the Tamil Nadu Rent Act was a piece of beneficial legislation intended to remedy the two evils of rackrenting (exaction of exorbitant rents) and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period cre... |
25. The scope of this Act was discussed by this Court in Raval and Co. v. K.C. Ramachandran & Ors., [1974] 2 S.C.R. 629 1973 Indlaw SC 283, where the majority of the court at pages 635 to 636 observed:- |
"All these show that the Madras Legislature had applied its mind to the problem of housing and control of rents and provided a scheme of its own. It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenants. It wanted it to be fair both to the landlord as well as t... |
26. The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power. The Act balances the scales and regulates the rights of the parties fairly and cannot be construed only in favour of the tenant. |
27. In Murlidhar Agarwal and another v. State of U.P. and others, [1975] 1 S.C.R. 5751974 Indlaw SC 264 this Court had occasion to deal with this matter. In that case, powers of High Court to interfere with revisional orders passed by State Government under section 7F of U.P. Temporary Control of Rent and Eviction Act... |
28. The main provision of S. 14(1)(b) enables a landlord to make an application to the Rent Controller and the Rent Controller, if he is satisfied that the building is bonafide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building so... |
29. S. 16 provides for the tenant to occupy the building if it is not demolished in certain contingencies. The scheme of the section was very carefully analysed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, [1962] 2 S.C.R. 159 1961 Indlaw SC 472. |
30. In Metalware and Co. etc. v. Bansilal Sharma and Ors. etc., [1979] 3 S.C.R. 11071979 Indlaw SC 225 this Court emphasised that the phrase used in s. 14(1)(b) of the Act was "the building was bona fide required by the landlord" for the immediate purpose of demolition and reconstruction and the same clearly referred ... |
31. The fact that a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself might not be sufficient to establish his bona fide requirement if the building happened to be a very recent construction in a perfectly sound condition and its situation might prevent its... |
32. It has been borne in mind that the provisions of the Act imposed restrictions on the landlord's right under the common law or the Transfer of Property Act to evict the tenant after termination of his tenancy. The rationale of these restrictions on the landlord's rights is the acute shortage of accommodation and th... |
However, in other cases a certain period is prescribed. For instance, two months in Bihar, West Bengal and Jammu and Kashmir, three months in Goa and Tripura, four months in Uttar Pradesh, six months in Bombay and Rajasthan. Again some Rent Acts require that before an action for ejectment on the ground of arrears is in... |
Further, Bihar, Bombay, Goa, Jammu and Kashmir, Karnataka, Tamil Nadu, U.P. and West Bengal Rent Acts provide for partial eviction. But there is no such provision in the other Acts. It is obvious from the above that there can be no fixed and inflexible criteria or grounds governing imposition of restrictions on the lan... |
Courts are not concerned with the unwisdom of legislation. |
"In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review.". |
33. See in this connection the observations of Krishna Iyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc., [1974] 3 S.C.R. 121 1974 Indlaw SC 509. This Court approved the above passage from the American Jurisprudence and emphasised that in a classification for governmental purpose... |
34. These provisions, namely, exemption of new buildings from the provisions of the Rent Act for a period of five years or ten years has been upheld as constitutional. See in this connection the observations of this Court in the case of Punjab Tin Supply Co., Chandigarh & Ors. v. The Central Govt. & Ors., [1984] 1 SCC ... |
The Court observed at pages 226to227 of the report as under: |
"The Legislature in its wisdom may properly consider that in effecting an improvement of the situation and for mitigating the hardship of the tenanted class caused mainly due to shortage of buildings, it will be proper to encourage construction of new buildings, as construction of new buildings will provide more accomm... |
35. S. 14(1)(b) has sufficient inbuilt guidelines. The requirements to be satisfied before initiating action under this provision have been judicially laid down by the Madras High Court by Anantanarayanan, J. as he then was, in Mehsin Bhai v. Hale and company, G. T. Madras, [1964] 2 Madras Law Journal 147. Anantanaray... |
" What the section really required is that the landlord must satisfy the Court that the building was bona fide required by him, for the immediate purpose of demolition. I am totally unable to see how the present state of the building, and the extent to which it could stand without immediate demolition and reconstructio... |
36. This Court also emphasised this aspect in the decision of Metalware & Co. etc. v. Bansilal Sharma and others etc., [1979] 3 S.C.R. 1107 at pages 1117-11181979 Indlaw SC 225. |
37. We are therefore unable to accept the submission that absence of the right of induction of tenants in reconstructed premises is either arbitrary or unreasonable. The submission that s. 16(2) which provides that when a building is totally demolished and on which a new building is erected shall be exempt from all th... |
38. The principle underlying such exemption for a period of five years is not discriminatory against tenants, nor is it against the policy of the Act. It only serves as an incentive to the landlord for creation of additional housing accommodation to meet the growing needs of persons who have no accommodation to reside ... |
39. This Court emphasised in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy, [1970] 3 S.C.R. 734 1970 Indlaw SC 346 that in considering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconst... |
40. Our attention was drawn to certain observations of Chatterjee, J. of the Calcutta High Court in Jiwanlal & Co. and others v. Manot and Co., Ltd., (64 Calcutta Weekly Notes 932 at page 937) that where the landlord had established a case of building and rebuilding the tenants undoubtedly would suffer on ejectment. T... |
41. They wanted it for the advantage of increased accommodation. The learned Judge was of the view that if the tenants were ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as for themselves. We are, however, unable to accept this principle. It is ... |
42. It was held by a learned single Judge of the Madras High Court (one of us-Natarajan J.) in M/s. Patel Roadways Private Limited, Madras v. State of Tamil Nadu and others, (A.I.R. 1985 Madras 119) 1984 Indlaw MAD 261 that the provisions of the Tamil Nadu Act were not violative of Art. 14 and Art. 19(1)(f) of the Act... |
43. Post war migration of human beings en bloc place to place, the partition of the country and uprooting of the people from their hearth and home, explosion of population, are the various vital factors leading to the present acute shortage of housing. It has to be borne in mind that the urge for land and yearning for... |
44. It is common knowledge that there is acute shortage of housing, various factors have led to this problem. The laws relating to letting and of landlord and tenant in different States have from different States' angles tried to grapple the problem. Yet in view of the magnitude of the problem, the problem has become ... |
45. Tenants are in all cases not the weaker sections. There are those who are weak both among the landlords as well as the tenants. Litigations must come to end quickly. Such new Housing Policy must comprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker... |
46. For the reasons aforesaid the contentions urged in writ petitions fail and are accordingly dismissed. In the facts and circumstances of the case there will be no order as to costs. Interim orders if any are vacated. |
Petition dismissed |
Hiten P. Dalal v Bratindranath Banerjee |
Supreme Court of India |
11 July 2001 |
Appeal (Cr.) 688 of 1995 |
The Judgment was delivered by : Ruma Pal, J |
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