# B. BANERJEE v. ANITA PAN

- **Citation:** [1975] 2 S.C.R. 774
- **Court:** Supreme Court of India
- **Decided:** 1974-11-20
- **Bench:** M. H. Beg, V. R. Krishna Iyer, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-banerjee-v-anita-pan-6244
- **Pages:** 27

## Headnote

West Bengal Premises Tenancy Act 1956 as amended in 1969-S. 13(1) (/)
.and (IJ)-Constitutiona/ validity of-Whether offends Art. 19(1)(/) and (5).
Section 13(1)(f) of the West Bengal Premises Tenancy Act, 195~ (.Act Xll
<lf 1956). enacted that no order or decree for the recovel1'....of possession of any
premises sha!L be made by any court in favour of the. landlord against the ten~nts
~xcept among others, on the ground that th~ ~rem1ses are. rc;asonably reqm~ed
by the landlord either. for the purpose of building. or rebuilding . or ~or m.aking
thereto substantial additions. or alterattons or for his own occupatton 1f he 1s the
owner or for the occupation of any person for wh«;>se benefit the premises are
held.
• Section 13 (4) of the Act provides that where a landlord requires the premises
on any of the grounds mentioned in cl. (1 )( f) and the Court is of opinion that
such requirement may be substantially salkfied by ejecting the tenant from
a part only of the premises the Court shall J?1IS'S a decree accordingly. . In 1969
the Act was amended by West Bengal PreJ111Ses Tenancy (Second Amendm1mt)
.Act. Section 13 of the original Act was amended by introducing sub-section
(3A) in it. This sub-section prohibits institution of a suit for ejectment c•f a
tenant by a landlord who has purchased the premises for his own use within
three years of the purchase. The Amending Act also enacted that the said Act
shall apply to suits and appeals, which are pending at the date of the commence·
ment of the Act.
The respondent purchased the suit premises in which the appellant was a
tenant and instituted a suit for ejectment of the tenant under s.13(1)(f) of the
.original Act. The suit was decreed by the lower court and affirmed by the lower
appellaJe court. A single Judge of the High Court dismissed the appeal. When
the Letters Patent Appeal was pending before the High Court, the- Amending Act
·Of 1969 was passed, whereupon, the tenant-appellant invoked the provisions of
the new sub-sec. (3A) and contended that since the landlord had instituted a
suit the ejcctment within three years of the purchase, the suit should be dismissed.
The High Court held that s.3A was valid prospectively but that the
restriction imPOsed by the sub-section, giving it retrospective effect, was violative
of Art. 19 ( 1 )( f) of the Constitution.
Per Beg and Krishna Iyer, JJ:
Allowing the appeals and remitting the case to the High Court,
HELD:
(l)(a) There is no violation 9f Art. 19(1)(f) read with Art.
19(5) of the. Con~titution in .the Amending Act, and s.13 of the original .Act,
as amended 1s valid. The evil corrected by the Amendment Act is to stop 1he
infiu,x of a transferee class of. evictors of tenants and. institution of litiption
1o e1ect and rack-rent or re-budd to make large profits. Apparently the infll)w
of such suits mμst have been swelling slowly over the years and when the stream
became a flood the ~egislature rushed with an amending bill. Had it made 1he
!aw merely pro~pechve. t~ose who had, in numbers, already gone to Court and
mduced legis!ahve attentton would have escaped the inhibition.
This would
defeat the objeot and so the application of the additional ban to DCnding actions
could not be ca!led unreasonable. There is no foundation for the assumptions
made by the High Court that there may b., cases of ejcctment instituted prior
to 19~~ or that a num~r of suits ~nd decrees, perhaps decades old. will unjustly
be nullified b~ !he prcvions operation of the new ban. Recondite in~tances and
casual hardships cannot deflect constitutloruiL construction of social legislatio•n,
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
U.P. STATE V, PRADIP TANDON (Ray, C.J.)
775
if. the main thrust of the statute relates to a real social evil of .dimensions deserving to be antidoted by antedated legislative remedy.
Questions such as
whether those cases whi:h were filed several years ago should have been carved
<!lut of the category of transferees hit by the Act, and at what point o

## Text

_Characters 0–39,815 of 87,235. This is a partial read: ask again with offset=39815 for what follows._

774
B. BANERJEE
v.
ANITA PAN
November 20, 1974
[M. H. BEG, V. R. KRISHNA IYER AND P. K. GOSWAMI, JJ;]
West Bengal Premises Tenancy Act 1956 as amended in 1969-S. 13(1) (/)
.and (IJ)-Constitutiona/ validity of-Whether offends Art. 19(1)(/) and (5).
Section 13(1)(f) of the West Bengal Premises Tenancy Act, 195~ (.Act Xll
<lf 1956). enacted that no order or decree for the recovel1'....of possession of any
premises sha!L be made by any court in favour of the. landlord against the ten~nts
~xcept among others, on the ground that th~ ~rem1ses are. rc;asonably reqm~ed
by the landlord either. for the purpose of building. or rebuilding . or ~or m.aking
thereto substantial additions. or alterattons or for his own occupatton 1f he 1s the
owner or for the occupation of any person for wh«;>se benefit the premises are
held.
• Section 13 (4) of the Act provides that where a landlord requires the premises
on any of the grounds mentioned in cl. (1 )( f) and the Court is of opinion that
such requirement may be substantially salkfied by ejecting the tenant from
a part only of the premises the Court shall J?1IS'S a decree accordingly. . In 1969
the Act was amended by West Bengal PreJ111Ses Tenancy (Second Amendm1mt)
.Act. Section 13 of the original Act was amended by introducing sub-section
(3A) in it. This sub-section prohibits institution of a suit for ejectment c•f a
tenant by a landlord who has purchased the premises for his own use within
three years of the purchase. The Amending Act also enacted that the said Act
shall apply to suits and appeals, which are pending at the date of the commence·
ment of the Act.
The respondent purchased the suit premises in which the appellant was a
tenant and instituted a suit for ejectment of the tenant under s.13(1)(f) of the
.original Act. The suit was decreed by the lower court and affirmed by the lower
appellaJe court. A single Judge of the High Court dismissed the appeal. When
the Letters Patent Appeal was pending before the High Court, the- Amending Act
·Of 1969 was passed, whereupon, the tenant-appellant invoked the provisions of
the new sub-sec. (3A) and contended that since the landlord had instituted a
suit the ejcctment within three years of the purchase, the suit should be dismissed.
The High Court held that s.3A was valid prospectively but that the
restriction imPOsed by the sub-section, giving it retrospective effect, was violative
of Art. 19 ( 1 )( f) of the Constitution.
Per Beg and Krishna Iyer, JJ:
Allowing the appeals and remitting the case to the High Court,
HELD:
(l)(a) There is no violation 9f Art. 19(1)(f) read with Art.
19(5) of the. Con~titution in .the Amending Act, and s.13 of the original .Act,
as amended 1s valid. The evil corrected by the Amendment Act is to stop 1he
infiu,x of a transferee class of. evictors of tenants and. institution of litiption
1o e1ect and rack-rent or re-budd to make large profits. Apparently the infll)w
of such suits mμst have been swelling slowly over the years and when the stream
became a flood the ~egislature rushed with an amending bill. Had it made 1he
!aw merely pro~pechve. t~ose who had, in numbers, already gone to Court and
mduced legis!ahve attentton would have escaped the inhibition.
This would
defeat the objeot and so the application of the additional ban to DCnding actions
could not be ca!led unreasonable. There is no foundation for the assumptions
made by the High Court that there may b., cases of ejcctment instituted prior
to 19~~ or that a num~r of suits ~nd decrees, perhaps decades old. will unjustly
be nullified b~ !he prcvions operation of the new ban. Recondite in~tances and
casual hardships cannot deflect constitutloruiL construction of social legislatio•n,
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
U.P. STATE V, PRADIP TANDON (Ray, C.J.)
775
if. the main thrust of the statute relates to a real social evil of .dimensions deserving to be antidoted by antedated legislative remedy.
Questions such as
whether those cases whi:h were filed several years ago should have been carved
<!lut of the category of transferees hit by the Act, and at what point of time the
evil assumed proportions were best left to legislative wisdom and not to courts
commonsense. [788C-D; 787F-G; 783F; 787H]
In the instant case the two land'ord-respondents had purchased the buildings
in the early sixties. l!ut while considenng the constitutionality the Court would
not be moved by such accidental instances. The substantial evil has been substan~ially met by a broad applkation of the new ban to pending' proceedings.
[788C]
Se'ction 13, fairly read, directs that the amendmen1 made by s. 4 shall have
effect in respect of suits, including appeals, pending at the commencement of
the Act. The Court is, therefore, bound to give effect to· s.4 in pending actions
regardless of isolated anomalies and individual hardships.
[788G]'
(b) Where two interpretations are possible that which validates the statute
and shortens litigation s)lould be preferred to the one which invalidates or
proliferates it. Although the old cl. ( f) is substantially similar to 'the (ll'e!ent
els. (f) and (If) the latter imposes more severe restrictions protecting the tenants.
Much more has to be proved by the landlord now before he can get eviction
than when he was called upon to under the earlier corresponding provision of
the basic Act.
Moreover, the three year prohibition against institution of the
suit is altogether new. It follows, therefore, that on the present nllegation and
evidence the landlord may not get a decree, his suit having been instituted at
a time when he could not have foreseen the subsequent enactment saddling him
with new conditions. [789C; 789B]
Though therefore, the suit, as originally brought in, would be defective since
it did not and could not contain the averments complying with the new cl!. (fl
!>ncl (ff) of s. 13(1) it is made effective by construing the term 'institute' in a
natural and grammatical way.
[7890} ·
( c) 'To institute' is 'to begin or commence'. The prohibition clamped down
by sub-section (3A), · carefully read, is on suits for recovery of _possession by
transferee-landlords on any of the grounds mentioned i11 cl. (f) Qr cl. (ff) of
sub-section (I). 1789Gl
In the instant case the ·suits were not for recovery on grounds contained in
clauses (f) and (ff).
They were based on the repealed cl.(f) of s.13 of the
ba~ic Act. Strictly speaking sulHection (3A) brommt in by s.4 of the Amending
Act applies only if (a) the suit is by a transferee-landlord; (b) it is for re:overy
of possession of premises; and (c) the ground for recovery is what is mentioned
in els. (f) and (ff) of sub-section (!). Undoubtedly the third condition is not
fulfilled and therefore sub--s. (3A) is not attracted.
[789HJ
(d) But since the new cls.(f) and (ff) were included by the Amendment Act
in s.13 of the basic Act and since the suits did not seek eviction on those grounds
they will have to be dismissed on account of the omnibus inhibition on recovery
of possession contained in s. 13 itself.
[79oq
·
Per Goswami, J: (l)(a) In trying to indude old actions that may be surviving in courts because of laws' proverbial delay s. 13 of the Amended Act has gone
far in excess of the actual needs of the time and problems a·nd the provisions
therefore cannot be said to imoose a reasonable restriction on the right of the
transferee landlords, albeit a well defined class amongst the landlords, to hold and
en.ioy their property in the interest of the general public.
Su:h transferee-landlords with pendin2 old actions in suits or in appeals are not likely to be of a
large number. The imposition of si:ch restrictions on a few trnnsferee-fandlo··ds
cannot be in the general interests of the larFe body of tenant<. If relief in the
shape of postponment of the landlord's suit were the obje:t of sub-section ( 3A)
in giving retrospcctivity to it,. the law did not take count of the inevit&ble long
\
776
SUPREME COURT REPORTS
[1975] 2 s.c.R.
delay that takes place in pending litigation as a result of man-made laws of
procedure in courts· such as have been clearly demonstrated by the cases at hand.
The law that misses its object cannot justify its existence. Besides it will· be a
sterile relief if tenants have to face a fresh summons next days. [798A-C]
(b) Under the Constitution an individual's right will have to yield to the
common weal of the general community. That general community may be in
broad segments· but even then must form a class as a whole. A few individuals
cannot take the place of a class and for the matter of that the general public.
1}98H] .
'
In. the present case the relief contemplated by the Amendment Act is in·
favour of tenants in general and the restriction under sub-section (3A) must
be viewed in that context.
It cannot be said that the legislature in applying
sub-section (3A) retrospectively has achieved that avowed object at all.
The
applicability of the blanket ban to pending suits and appe•ls cannot be said to be
a reasonable rest<iction in the intemt ot general public. [799A-Bl
(c) Sub-se1:tion (3A) so far as it is retrospectiv~ and as such applicable
to pending suitt. including appeals is ultra vi.-es Art. 19(1) (f) of the Consti'.ution.
fhe proVision 'is valid only prospectively,
The retrospectivity so far as subsection (3A) in concerned with regard to institution of suits made applicable to
pending suits and appeals is dearly very wide o.f a rea.sonab e mark and is an
imposition of an unreasonable restriction on the right of the transferee landlords
in pending suits which had been instituted prior to the amendment Act and jR
appeals arising thereform and it is not saved by the protective clause (5) of
Art. 19 of the Constitution. 17990-E]
(2) On the terms of only s. 13 (3A) it is difficult to hold that it would
bring old actiqns within the mischief of s. 13(3A) which imposes a ban 1:xpressly on institution of suits within three years of the acquisition of own,ership of the premises subject to . the relaxation tontained in the proviso thereto. [796B-C}
·
_ (3) Section 13(i)(f) and (ff) are not ultra vim of Art. 19(1)(f) of the
Constitution. Further relief& have been sought to be giv~n to the tenants as a
class by these provisions in the .Amendment Act. These further reliefs are
in the general interests of tenants and can be applied without any difficulty, to
pending suits ipcluding appeals. There is nothing unreasonable about such a
retrospcctivity m applying these provisions for the general welfare of tehar1ts
!n seoorii:g fo~ )he'!! a safe and sure tenure ps far as practicable untramm~lled "Y
mconvement hhgation. [799F-G}
·
Arguments jor the appellants In, C.A. 2063/73 by P. C. Chatterjee :-
There is no vested right to eject on determination of the tenancy but it i~
conditioned by s. 13, Cl. (a) to (k) and therefore right to eject is not vest1:d
in the landlord until a decree is ·passed, Upto that stage it is contingent depending on the satisfaction of cL (a) to ( k) of s.13. If there is no vested property
right, no questi<m of Art 19 (I) ( f) of the Constitution will arise,
By denying
tb.e right to eject for three years from the date of purchase the right to property
is not restricted or burden•,d,
The approach of the High Court of separately
treating prospectivity and retrospectivity is not correct The correct approa1:h
adopted by this Court is that in considering the reasonableness of any provision
retrospectivity of the law is a factor to be considered. Retrospective operation
is not bad because it covers a period of 10 years or so.
For respondent On C.A. 1304 of 1973.)
The. o~ject of. the new sub-section (3A) being to give protecion to tenants
for a hmlled period of three years from the date of purchase of the premise,s
~Y ,the landlord, 1 by giying retrospective effect to the said sub-section the period
bm1ted .by t~e sub-section ~annot be enlarged: Therefore, s.13 of the Amending
Act wh.1ch 111ves retrospective effect to the sand sub-section (3A) should be construed m a manner so as to keep the effect of retrospectively within the period
A
B
c
0
E
F
G
H
A
B
c
D
E
F
G
H
B. BANERJEE V, ANITA PAN (Kri.Jhna/yer, J,)
777
limited by tho said now sulHicction 3.1\. Sections 4 and 13 of the Amending Act
have to be construed harmoniously keeping the object of tho M.t in yiew aJ!d in
doing that if the court has to supply some words to m~ the lllCllllllg clear, it
should prefer the construction which ls more in consona~ with reasons and
justice.
(1958] S.C.R. 739 at 745. The language of sub-s. 3A and ~ object
and reason for introduction of the said sub-section m~ it clear that only prospective effect could be given to the sub-section and in any case its olfect cannot
ao beyond three years of purchase of the premises by ~e landlord.
If, s.13
of the Amending Act means that s.4 of the Amending Act applies to all pending
suits including appeals filed by a transferee landlord after the principal Act came
into force, then it is clearly violative of art.19(1)(f) of the Constitution. The
High Court, therefore, rightly struck down s. 13 ~ving retrospective effect to
s. 4 of the A:t. Further no law can impose restrictions retrospectively on fundamental rights.
Arguments for tlze respondelil in C.A. No. 2063 of 1973.
The impugned section cannot be so interpreted as to give it retrospective
effect so as to bring within its mischief all suits and proceedings jpcluding appeals
which may be pending since the enforcement of the Act. This Court can depart
from the general rule to apply the law as it is on the dat~ of institution of the
suit and apply the law as on the date when the appeal comes up for disposal
specially because no injustice is going to be caused between the parties and as
such a course would avoid multiplicity Of proceedings. Section 13 of the Amending Act is 'ultra vires of article 19, because, construed literally the section cannot give protection to such of the . tenants against whom proceediilgs are pen·
ding for more than 10 years or so, a protection for a period more than what is
envisaged by the Amending Act. This is clearly not what is intended or contemplated by the legislature.
Giving restrospective effect to the secijon would
only benefit a few and is not in the public interest of the tenants of the transferee-landlords.
The restriction is arbitrary and invades the right IP property
and is not saved by cl. (5) of article 19. T):ie restriction is not re3S0!1able:
CrvrL APPELLATE JURISDICTION : Civil Appeal No.
2063
of
1973.
.
·
Appeal by special leave from the judgment and decree dated the
25th Julv. 1973 of the Calcutta High Court in Appeal from Appellate Decree No. 1193 of 1972.
Civil Appeal No. 1304 of 1973.
From the judgment and order dated. the 3rd February, 1972 of
the Calcutta High Court in LP.A. No. 14 of 1969.
P. Chatterjee and Rathin Das, for the appellant (In C. A. 2063/
73).
Urmila Kapoor and Shobha Dikshit, for the respondent (In C.A.
No. 2063/73).
P. K. Chatterjee, G. S. Chatterjee, and Sukumar Basu, for
the
Advocate General for the State of West Bengal.
Sukumar Ghose, for the appellants. (In C.A. No. 1304/73).
D. N. Mukherjee; for the respondents (in C.A. N.o. 1304/73).
The judgment of M. H. Beg and V. R. Krishna Iyer, JJ was
delivered by Krishna Iyer, J. P. K. Goswami, J. gave a separate
Opinion.
·
'
KRISHNA IYER, J.-Calcutta or Cochin, for the urban people of
India, the shocking scarcity of a roof to rest one's tired bones is an
3-L346SupCI/75
·11s
SUPREME. COUlt'f REPOR~'S
(1975] 2 S.C.R.
unhappy problem of social justice that compels control <;>f rent a'1(1
eviction laws. In the case now before us, attacking the constitution~
ality of legi:ilation handcuffing the landlord-proprietariat's right of
eviction, the law has to be tested not merely by the cold print of
Art. 19(1) (f) but also by the public concern of Art 19(5) and the
compassionate animus of Art. 39, Parts III and IV of the Constitution to11Cther constitute a complex of promises the nation has to ke:ep
and the legislation challenged before us is in partial fulfilment of {ills
tryst with the people. These observations become necessary in Umi!ne
since counsel for the respondents dismissed the concept of r.ocial
.iustice as extraneous to an insighttul understanding of the section
invalidated by the High Court, while we think that judicial co~ience
is not a mere matter of citations of precedents but of activist appraisal
of social tears to wipe out which the State is obligated under 1he
Constitution.
.
The two appeals before us, raisillg substantially identical points,
have been h1~ard t02ether and are bl-in2 disposed of by a common
judgment. Both of them stem from a decision of the Calcutta High
Court reported as Sailendra Nath v. S. E. Dutt(~). One of the
decisions u_nder appeal (C.A. 2063 of 1973) was rendered by a
Single Judge of the High Court following a Division Bench ruling
of the same Court (i.e., the one reported as Sailendra Nat~ v. S. E.
Dut1) since be was obviously bound by it.
A provision imparting some sort of retroactivity to a 1969 legislative amendipent implantin2 additional restrictions on eviction of
premises und~r the earlier West Bengal rent control law has been
voided by th~ High Court in the judgments under appeal. The
aggrieved tenant in each case has appealed and the State, not being
direct! y a pahy to the ligitation, has entered appearance to suppc>rt
the legislatiort and to challenge the Calcutta decision to the exumt
it has invalidl\ted the retrospective part of the statute.
Welfare legislation calculated to benefit weaker
classes,
when
their vires is challenged in Court, casts an obligation on the State,
particularly when notice is given to the Advocate General, to support
the law, if nc:cessary by a Brandeis brief and supply of socio·econ:omic circumstances and statistics inspiring the enactment.
Courts
cannot, on their own, adventure inter social research outside the
record and if Government lets down 1he Legislature iu Court by not
illumining the provisions from the angle of the social mischief or
.:ronomic menace sought to be countered, the victims will be the
class of beneficiaries the State professed to protect. In this case, we
are unable to compliment the State or the Advocate General from
this point of view. It may happen that when the Court decides
against the validity of a measure or order because Government fails to
brinl! the sociallv relevant totalitv of facts, it is used as an alibi by
(I) A.IR. 1971 Cal. 331.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
B. BANERJEE r. ANITA Pil.N (Krishna Iyer,!.)
77.9
tl!e latter for the misfortune. Cour_ts cannot help· cover
up
the
':Executive's drowsy default or half-hearted help in making the socioeconomic conspectus available .
. The We~t Bengal Premises Tenancy Act, 1956 (Act
XII
of
1956) (for short, referred to as the
basic Act)
damped down
several restrictions on cjectment of tenants by landlords from buildings, the policy behind it being alleviation of the lot of the w~akcr
segment of the urban community without their own homes in the
context of the scarcity of accommodation and the colossal
:;ocioeconomic upheaval which would follow if unbridled ~victions were
allowed. The temptation· to evict or rack-rent under scarcity .:onditions is an irresistible e'1il in our economic order and it is an
allIndia phenomenon that the social conscience of the
State
Le1,>islatures has responded to this large scale threat by effective control
measures. Indeed, for decades now, every State in India has on the
statute book rent control law and, what is more pertinent to
the
present case, tactics of circumvention have compelled the enactment
of additional safeguards from time to time
by
vigilant
statutory
measures. West Bengal, a populous State, with an
ovcr-crowclcd
city choked by the largest human congregation in the country, enacted the basic Act whereby the plenary right of landlords to recover
possession of
their buildings
was
shackled in many
ways.
Jridustrial growth and other factors induced demographic congestion
such as was witnessed in the urban areas of that State. Consequently.
the legislature was faced with a fresh danger in the shape of ingenious transfers of ownership of buildings by indigenous but indigcn i
landlords and the transferees resorting to eviction on a large scale
equipped as they were with better financial muscles and motivated
as they were by hope of speculative returns from their investments
on eviction.
Presumably, the phenomenal increase of the nienance of
eviction by the new. species of transferee-owners of buildings was
cnuntered hv a legislative measilre-the West Benr,al Premises
Tenancy (Second Amendment) Act, 1969 (Act XXXIV of 1959)
(hereinafter referred to as the amendment Act). By this legislation
the new class of transferee· landlords was subject to . a stringent
trammel viz., that they should not sue for eviction within three years
of the date of transfer (We arc not immediately concerned
here
with certain other changes effected by the Amendment Act).
The
social objective and the practical effect of this fetter will
be
considered briefly a little later. Suffice it to say at this stag·~, the Hi.ah
C'ourt bas upheld this provision which is now containctl in s. 13(3A)
of the basic Act. However, while holding the provision substantially
intra 1·ires the. Court has invali~ated the giving effect to the provision
to pending suits and appeals. Such limited retrospectivity had been
incorporated by s. 13 of the amending Act and. if the law were only
1Jrosprctive the landlords in the two cases who had initiated their
litigation several years prior to the enactment of the
Amendment
Act would be free from the three year interdict and the other extra
restrictions. Once the embargo is out of their way. the decrees for
eviction they have_ secured must stand. On the contrary, if the restriction on eviction by the transferee landlords were to operate on
780
SUPREME COURT REPORTS
[1975] 2 S:.C.R.
pending litigation the appellants-tenants are immune to evictio:n in
the current proceedings as they now stand. Thus the short constitutional iss·u,e is as to whether s. 13(3A) of the basic Act to the
extent it applies to pending litigation OD the strength of S. 13 of the
Amen~ing Act is violative of Arts. 14 and 19(1)(f) of the Coustitu·
tion, weapons relied upon for the attack before the Hi~ Court, and
here. We will proceed to consider the constitutional villnerability of
this limb of the protective legislation. By way of anticipating our conclusion we may also pose the problem whether ss.13 and 4 of the
Amendment Act can be validly implemented vis-a-vis pending ai:tions
in any other just manner which will preserve the additional protection,
minimise multiplicity of litigation and make law and justice bedfellows in 'the changed statutory circumstances.
Some background observations to appreciate the contest in court
are necessary. No social realist will deny the frightful dimensions of
the problem of homeless families and precarious tenancies; and if the
Directive J>rinciples of State Policy are not to be dismissed by the
masses as a 'teasing illusion and promise of unreality', curtailment, in
public interest, of such extreme rights of the landlord as are 'red in
tooth and claw' is a constitutional compulsion. The Court, informed
by this sore economic situation and reinforced by the initial presumption of constitutionality, hesitates to strike ;i socially beneficial statute
dead, leading to escalation of the mischief to suppress which the
House legislated-unless, of course, a plain breach of the fundamental
right of th(: citizen is manifest.
·
The perspective of 1he amending. Act is sketched by the High
Court in littid language :
"The scarcity of accommodation is a burning problem,
not only of the State of West Bengal but of the other States
as well. Keeping pace with thi: needs of the gradually swelling population of West Bengal, new buildings have not been
built owing to abnormal high price of land and materials.
A large majority of the people of West Bengal live in those
premises at the mercy of the landlords."
The explosive import of neglecting such a distressing urban development reasonably obliges the State to impose drastic restrictioils on
landlords' dght to property. And when circumvention of wholesome
legal inhibitions are practised on a large scale the new challenge is met
by clothing the law with more effective amount and that is the rationale
of the Amendment Act. The learned Judges rightly refer to the !legislative proceedings, notorious common knowledge and other relevant
factors prqperly brought to their ken. The 'sound-proof theory' of
ignoring voices from parliamentary debates, once sanctified by British
tradition, bas been reJDlaced by the more legally realistic and socially
responsible canon of listening to the legislative authors when their
artifact is being interpreted. We agree with the High Court when it
observes :
"Proceedings of legislature can be referred to for the
limited purpose of ascertaining tha conditions. pre.vailing at
A
E
c
D
E
F
G
H
A
B
c
D
E
F
B. BANERJEE v. ANITA PAN (Krishna Iyer, 1.)
781
or about the time of the enactment in question, which actuated the sponsor of the bill to introduce the same and the
extent and urgency of the evil, sought to be remedied.
In the Statement of Objects and Reasons of the West
Bengal Premises Tenancy (Second Amendment) Bill, 1969,
it is stated that it has been considerea necessary that some
more reliefs should be given to the tenants against eviction. It is found from the speech of the Minister at the time
of introducing the Bill in the legislature, that the problems
of tenants are many : there
are landlords of different
kinds : there is one class-original owners who are the old
inhabitants of the city : these
owner-landlords
are
not
affluent : they solely depend upon the rents received from
the tenants. It has been ascertained from experience that
two of the grounds of eviction, namely, of the landlords
and for the purpose of building and rebuilding, have been
misused by the landlords. In the city of Calcutta and other
towns, there are millions of tenants who are left
at" the
mercy of the landlords. In this background and after taking
into account similar provisions in other States, it has been
decided that some restrictions ought to have been imposed
upon transferee-landlords prohibiting them from bringing
ejcetment suits against the tenants within three ~ears from
their purchase. On the above two grounds and for that purpose, the said classification has been made."
The conclusion of the Court, crystellised in the
following
words,
commends itself to us :
.
"Taking an . overall view of the various considerations,
the statement of the Minister, the objects of the Bill, matters of common knowledge and state of facts, existing at the
time of the legislation, it may be well conceived that underlying policy and objects of the amended provision is to give
more protection to the tenants against eviction and the classification of landlords into owner-landlords and
transferee·
landlords is based upon a rational and intelligible diffcrentia
and we hold accordingly."
Proceeding to examine the limited attack on s. 13(3A)' of
the
basic Act read with s. 13 of the Amending Act, we have to remember the comity of constitutional instrumentalities and raise the pre-
~ sumption that the legislature understands and appreciates the needs
.of the people and is largely aware of the frontiers of and limitations
upon its power. (See : The State of Bombay v. R. M. D. Chamarhaguwala(I) and Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar & Others(2). Some Courts have gone to the extent of
holding that "there is a presumption in favour of constitutionality,
and a law will not be declared unconstitutional unless the case is so
H
clear as to be free from doubt; and 'to doubt the constitutionality of
a law is to resolve it in! favour of its validity."(3) Indeed, the Legis-
(0 (1957] S.C.R. 874.
(2) [1959] S.C.R. 2i9.
(3) ConsHtutionat Law of India by H,
0
M, Seeryai-p 54 vol. J.
78 2
SUPREME COURT REPORTS
[1975] 2 s.C.R.
laturc owes it to the Court to make like respectful presumptions. We
therefore view the provision impugned through a socially constructive, not legally captiow1, microscope to discover glaring
unconstitutional infirmity, if any, and not chase every chance possibility or
speculative thought which may vitiate: the law. Stray misfortunes when
laws alfoctiilg large chunks of the commu:iity are enacted are ill1evitable and the respondents before us may perhaps beiong to · that
category. Social legislation without tears, affecting vested rights, is
impossible. Statutory construction has a benignant sensitivity and we
arc satisfied the High Court, in substantially upholding the Amendment Act, has done right, but in striking down
the retrospective
portion of the section has stumbled into a specious error.
It is helpful to reproduce the relevant portion of s. 13 of the basic
Act in its unamended state and the amendments dovetailed into it by
the 1969 Act, The so-called 'rctrospectivity' of this
provision has
been anathelhatised by the respondent-landlords an'd annulled by the
High Court:
"13(1) Notwithstanding anything to the contrary in any
other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour
of the landlord against a tenant except on one or more of
the following grounds, namely :-
w1a111ended cl. (f) · : where the premises are reasonably
required by the landlord either for purposes of building or
rebuilding or for making thereto substantial additions or
alterations or for his own occupation if he is the owner or
for the occupation of any person for whose beneM the premises arc held;
els. (f) and (ff) substituted therefor :
(f) subject to the provisiotJs of sub-section (3A), and
A
B
c
D
E
section 18A, where the premises are reasonably required by
F
the landlord for purposes of building or re-building or for
making thereto substantial additions or alterations and such
building or rc-buildi.Iig or additions or alterations cannot he
carried o'ut without the premises being vacated;
(ff) subject to the provisions of
sub-section
(3A),
where th~ premises arc reasonably required by the
landlord for his own occupation if he is the owner or for the
occupation of any person for whose benefit the
premises
arc held and the landlord or such person is not in possession
of any reasonal!)Y suitable 'lccommodation;
Sub-s. (3A) newl!Y introduced.
13(3A) Where a landlord has acquired his interest in
t?e premises by transfer, no suit for the recovery of possession of the premises on any of the grounds mentioned in
clause (f) .or clause (ff) of sub-section (1) shall be instiG
H
A
B
c
D
E
F
G
H
..
B. BANERJEE v. ANITA P·AN (Krishna Iyer, /.)
78 :i
tuted by the landlord before the expiration of a period of.
three years from the date of his acquisition of such interest :
Provided that a suit for the recovery of the possession
of the premises may be instituted on the ground mentioned
in clause (f) Qf sub-section ( 1) before the expiration of
the said period of three years if the Controller, on the application of the landlord aqd after giving the tenant an opportunity of being heard, permits, by order, the institution of
the suit on the ground that the building or rebuilding, or the
additions or alterati~. as the case may be, are necessa1-y to
make the premises safe for human habitation."
Once the substantiv(l restriction super-added by s.
13 (3A). is
held valid, we have to fQCus attention only on the extension of the
new ban to pending proceedings. That legislative competence to
enact retroactively existS is trite law and we have only to test its
validity on the touchstone of Arts. 14 and 19(1) (f}
pressed into
service before us.
·
Law is a social science and constitutionclity turns not on. abstract
principles or rigid legal canons but concret.e realities and given conditions; for the rule of law stems ;from the rule of life. We emphasi7.e
this facet of sociologiclil jurlsptudence oDiy. because the High Court
has struck down s. 13 of the Amendment Act on surmises, possibilities and may be rather than on study of actualities and proof of
the nature, number and age of pending litigations caught in the
net of the retrospective clause. Judges act not by hlinch but on hard
facts properly brought 011 record and sufficiently strong to rebuff the
initial presumption of cottstitutionality of legislation. 'Nor iS the Court
a third Chamber of· the House to weigh '\Vhe'ther it should 1ogiilate
retrospectively or draft the cl~. dilterently. We find no foundation
f~r the large assumpttons'tiiade by the High Court and duly repeated
before us by counsel that thett i!lllJ be cases of ejectment instituted
prior to 1956 or that a number of suitB and decrees perhaps decades
old will unjustly be nullified by the previou\ operation of the new
ban. · Recondite instances aDd · eaaual hardshirs cannot deflect constitutional constructien of social Iegisiatioo. if the main thrust of the
statute relates to a real social evif of dimensions deserving to be antidoted by antedated legislative remody. ··
.
In the present case; indubitably the Stat.e was faced with a new,
insidious and cdnsjderable situation. of exploitation; undermining the
security of tenancy conferred by the basic Act. A large number of
origjnal landowners living in their own home could not, under the
basiC Act, claim recovery of posse8Sion, being occupants of theif <>Wn
houses. Likewise, they could not urge the ground of recovery for
rebuilding, not being financially able to invest on· such a . costly
venture. They ·had to look up to modest old-time rentals as the only
source of return and lest the penuriolls t.ellant-y desperately inhabit-·
ing little tenoments be forced· to pay extortionate rents the rent control law of 1956 froze die rates at the 1940 level with ~entle increBSel!
as ,pre>Vided ~In. However, for new buildings to be constructed
784
SUl'REME COURT REPORTS
[1975] 2 s.C.R.
special incentive provision was made . by deeming the contract 1ent
A
as fair rent, thus ensuring a high rehun on building investment The
sociiil upshot of this ~cheme was that the old landlords found their
ownership a poor return investment,, saw a new class of wealtllli:r
itwestors streaming into cities and towns ready to buy the premises,
evict old tenants, re-let on rack-rents or re-build and reap a
rich
return. They had no buildings of their own and could prove plans to
rebuild, thus disarming the nonevictability provision of s. 13 of the
basic Act. The transferees could thus get decrees for eviction under
B
the basic Act. Naturally, transfers of buildings· to this
somewhat
speculating c:lass increased and the spectacle of eviction litigation or
potential e_viction proceediJ!gs was projected on the urban scene. The
Legislature promptly reacted by the Amendment Act to rescue the
lessee8 by clamping down ·new restrictions by way of s. 13 (3A). A
three-year moratorium was given to. the tenants from being hunted
out of their homesteads by imposing a ban on institution of suits for
eviction by transferee landlords. This would both disenchant speculative purchases and provide occupants time to seek alternative housc
ing. Presumably, these objects inspired the law-makers to extend the
embargo backwards to pending eVIction proceedings. Quite cone1:ivably, the tendency to create a transferee class of real estate owners
gradually gathered in volume and showed up in rashes .of pending
actions. When Government was alerted amending legislation was proposed. Unfortunately, the. State's legal wing has failed to protect. in
Court the clruis for whose benefit the amending law was made by placing
luscent social or statistical materials on . these aspects.
As earlier
stated by us, G()Vernment have a duty, where social legislation
to
protect the weak are challenged, to exhibit the same activism in theE
Halls of Court as in the Houses of Legislature. Failure in the former
duty can be :as bad as not promt!gating the law. Not an elucidatory
affidavit by the State nor even the Minister's explanatory speech has
been filed in this Court. 'We make these observations becauSe of the
himdicaps we have faced and ·the little help on facts the State lnas
given to sust/lln the legislatiOU;
D
The Calcutta High Court bas upheld the vires of sub-s. (3A) lbut
invalidated its application to pending litigation. So the short issue is
whether this proje.ction into the past of the otherwise reasonable resriction on the right of eviction arbitrary, irrational, ultra vires? If
yes, the lethal sting of Arts. 14 and 19(1) {f) will deaden s. 13 of
the Amendment Act. And the High Court has held so on the la1ter
Article.
The pros~tive validity of the restriction under Arts.
14 and
19 ( 1 )( f) , the High Court thinks, is vindicated by sound classification
and sanctioned reasonably by the int~rest of the general public.
Having regard to the policy of the legislation, the
classification of
landlords into two classes of owner-fandlords and transferee-landlords
and the im~ition of an embargo on the latter minacious class against
bi; ;:;jng eviction suits within three years of purchase passes the diual
tests of reasonable
classification
and
the differentia
having
a
rational nexus with the statutory object. Therefore, the High Court
had no hesiratio~-and we torally concur-that the
provision
is
F
G
H
A
B
u. BANl!P.Jl!I! v. ANITA PAN (Krishna Iyer, /.)
711 s
impregnable. The controversy rages round giVing effect . to these '
stringent restraints newly enacted on earlier legal actions. This, it is ,
contended, is a horrendQUs invasion of property right!\ a_nd
unjust
anteriority which hits innocent plaintiffs whose purchases were beyond
three years. Before us respondents' counsel have contended that
Art. 14 is violated. by s. 3 read with s. 4 of the Amendment Act
although the High Court has negatived this subI!lission thus ;
"We have carefully considered the arguments iμlvanced
by the learned counsel and we. are of the· opinion ~bat the
retrospective operation of sub-section (3A) on pending suits
and appeals does not offend Article 14 of the Constitution."
Since the argument, dressed differently, has been urged before us
·C
again we will briefly deal with it, agreeing as we do with the High
Court. Plaintiffs whose transfers are twenty years ago ot two years
before the Act, are Jugged together and subjected to the same ban if
their suits were instituted within three years of the
transfer.
This
blanket ban regardless of the varying periods which have elapkd
a~ter the transfers and before the Act was passed was unequal treatment or rather harshly equal subjection to restriction of plainly unD
equally situated transferees. There is seeming attractiveness in
this
presentation. But Courts are concerned not how best to hammer out
equal justice but to oversee whether the classification is without
rational basis unrelated to tlie object of the Act. That is why we are
confined to check whether the reasoning on this aspect adopted by
the High Court is not •tenable. We may or may not disagree with the
wisdom of the Legislature in the groupin!1J adopted or hold Views
E · about fairer ways of treatment. But our powers are judicial, not l~gis
lative and arbitrariness and irrationality ,are not writ large in the
method of differentiation th«> Legislature has
here chosen. Jn the
words of A. K. Mukherji J :
"In the instant case, suits of the affected transfereeland!Ords may be regarded as a sub-class, within a class
and, if within the said sub-class, the suits are not differently treated, they will not be hit by Article 14.