# MURLIDHAR AGARWAL AND ANR v. STATE OF U.P. AND ORS

- **Citation:** [1975] 1 S.C.R. 575
- **Court:** Supreme Court of India
- **Decided:** 1975
- **Case number:** Civil Appeal Nos. 2370 -Of 1969
- **Bench:** A.N. Ray, K.K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/murlidhar-agarwal-and-anr-v-state-of-u-p-and-ors-6355
- **Pages:** 11

## Headnote

Constitution oj India, 1950-Article 226-Powers-of High Court to interfere with
reiisional orders passed by State Govetnment under s. 7F oj U.P. Ten1porary Control
of Rent and Eviction Acti 1947.
Public Policy-U.P. (Temporary) Control of Rent and Eviction Act, 1947 s. 3(1}-
Suit for eriction to be instituted with permission of District Magistrate-Whether
tenant can waive the requirement of·Section.
U. P. (Ten1porary) Control of Rent and Eviction Act. 1947 -Powers of the High
Court under writ jurisdiction to interfere with the revisional oFder passed by the State
Government under section 7F of the Act.
The Additional District Magistrate passed an order for evictiOn against tenant
on an application by the landlord under Section ?A of the Act. On revision, the
Additional Commissioner confirmed the order of eviction. The State Government
in exercise of its revisional powers under section ?F 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 ?A (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 Magistrate under section 3(1) of the Act. The land~
lord relied on one of the clauses in the lease deed which pro·vided 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 Section1
(3)(1) of the Act.
Dismissing the appeals,
HELD : The High Court was right in holding that section J 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. [5800-H]
Udho Dass v. Prem Prakash, (2) (1963) A. L. J. 406, apprnved.
(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 impoSied 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 headsof 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.
SUPREME COURT REPORTS
(1975] 1 S.C.R.
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; 58

## Text

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515
MURLIDHAR AGARWAL AND ANR.
v.
STATE OF U.P. AND ORS.
July, 29, 1974
[A.N. RAY, C.J. AND K.K. MATHEW J.]
Constitution oj India, 1950-Article 226-Powers-of High Court to interfere with
reiisional orders passed by State Govetnment under s. 7F oj U.P. Ten1porary Control
of Rent and Eviction Acti 1947.
Public Policy-U.P. (Temporary) Control of Rent and Eviction Act, 1947 s. 3(1}-
Suit for eriction to be instituted with permission of District Magistrate-Whether
tenant can waive the requirement of·Section.
U. P. (Ten1porary) Control of Rent and Eviction Act. 1947 -Powers of the High
Court under writ jurisdiction to interfere with the revisional oFder passed by the State
Government under section 7F of the Act.
The Additional District Magistrate passed an order for evictiOn against tenant
on an application by the landlord under Section ?A of the Act. On revision, the
Additional Commissioner confirmed the order of eviction. The State Government
in exercise of its revisional powers under section ?F 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 ?A (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 Magistrate under section 3(1) of the Act. The land~
lord relied on one of the clauses in the lease deed which pro·vided 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 Section1
(3)(1) of the Act.
Dismissing the appeals,
HELD : The High Court was right in holding that section J 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. [5800-H]
Udho Dass v. Prem Prakash, (2) (1963) A. L. J. 406, apprnved.
(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 impoSied 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 headsof 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.
SUPREME COURT REPORTS
(1975] 1 S.C.R.
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; 584B-
•GG--585C]
Lachoo Mal v.
Radhey Shyam
[1971] 3 S. C. R. 693, Ghera/al Parakh v.
Mahadeodas Maiya Das [1959] Supp. 2 S.C.R. 406, 440., referred to.
CIVIL
APPELLATE
JURISDICTION : Civil Appeal
Nos.
2370
-Of 1969
Appeal from the judgement and order dated the 22nd May, 1969
.of tho Allahabad High Court in Sp!. Appeal No. 343 of 1968.
Civil Appeal No 583 of 1971
App~al 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)
G. N. Dixit and 0. P. Rana, for the respondent Nos. 1,3 and 4.
Civil Appeal No. 2370 of 1969
The Judgment of the Court was delivered by
MATHEW J. The appellants filed a petition nuder 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 Exihibitoril and Distributors
Limited.
They used the premises for exhibiting cinema.
That lease
terminated by efllux of time on June 30, 1952.
Gupta, thereafter,
~eased 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 accommodiftion to him under S. 7(2) of the Act.
Respondent No. 2 also used the premises for exhibiting cinematograph 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 Magistrate 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 repre-
,sentation against this order filed by respondent No. 2 to the State
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'MURLIDHARV, u.r. STATE (Mathew,/,)
577
Government was rejected ori January 10, 1966 c-n the grcuLd that
there was no provision for any interference by Governmrnt . 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 direct<d
isrne of notice
under clause (2) of s. 7-A, why respondent No. 2 should not be
evicted.
Thereafter, the Additional District Magistrate pasmf
the order for eviction.
Respondent No. 2 went up in revisicn aEainst
the order to the Additional Commissioner.
He ccnfomcd the 01der
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 whicli 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 be granted
thi: 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(I) 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 petitic n
9efore the High Court.
A learned Single Judge of the Court quashed the order. Respondent No. 2 filed an appeal against the order.
The
divisicn.
Bench reversed the order of the learned Single 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 01der passed by the State Ocvernment under s. 7-F of the Act inasmuch as the order of the State Government did not suffer from any info mity either on the grcund that
it had no jurisdiction to pass the OJder 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 prcvides :
"S. 7-A. District Magistrates' power to take action against
unauthorised
occupation-(!)
Where
in
pursuance
of
the
order
of the District Magistrate
under
rnb-secticn
(2) of Section 7 the vacancy of any acccmmcdation 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 a_nd the District Magistr~te
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 therefr<'m;
578
SUPREME COURT REPORTS
[1975] l s.c.R.
Provided that no order under this section shall be passed
if the District Magistrate is sati~fied that there has been undue
delay or it is otherwise inexpedient tff do so"
The proviso to sub-section (I) of s. 7-A is couched in wide language.
The dictionary meaning of the word 'inexpedient' is:
"Not expedient;
circumstances;
disadvantageous in the
unadvisable, impolitic." (1)
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'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 ml!ntioned 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 orc\er
passed by the District Magistrate as several factors would enter the
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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: (!)that respondent No. 2
was in possession from 1953 onwards and was conducting a cinema
in the premise& after obtaining a licence frcm tlte District Magistrate
under the U. P. Cinema Regulation Act; (2) that the District Magistrate
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when granting the licence to conduct the cinema must have been satisfied that the( respondent was in lawful occupation of the premises.
1n other words, what in substance the State Government said was,
tnat respondent No. 2 has been ming the premises for conducting
<einema ftom 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 i.nto account are irrelevant for the
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-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
·tnat the appellants require the premises bona fide for their personal occupation, the State Government, in the exercise of its revisional
jurisdiction under s. 7-F against the order of eviction under s. 7-A
F
;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 hard-
·ship 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 net 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
(I) See Shorter Oxford English Dictionary, Illustrated, Vol. 1, 3rd ed., (1964),
IP· 997.
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MURLIDHAR v. u.P. STATE (Mathew, J.)
579
of release was passed was whether the appellants required the
premises bona fide
for their occupation.
Tue
controversy was
limited at that stage to that question.
The circumstances ~hich
would make the passing of an order of eviction inexpedient 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 premises
for their personal occupation could not be made frcm 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 Gcvernment in rejecting the application, namely, the hardship to respondent No. 2 who was conducting a cinema in the premises frcm 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 tke 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 cf possession of
the premises which is the subject matter of Civil Appeal ND. 2370 of
1969, on the basis that the tenancy created by Ram Swarccp Gupta
the predecessor-in-interest of the appellants, in favour cf Ram Agva~
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. (Tempcrary)
Control of Rent and Eviction Act, 1947 (hereinafter called the Act).
Tue trial court held that although the respondent was a tenant
against whom the suit cannot be filed without the previous permission
as visualised bys. 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.
On appeal by the respondent, the High Court revmed the decree
holding that the suit was not maintainable in view of s. 3, and dis:
missed lhe suit. It is from this decree that this appeal has been filed .
The two questions which arise in this appeal are: (l) whether the
High Court was right in holding thats. 3 was applicable and, therefore
the suit was not maintainable; and (2) whether clause 20 of the leas~
deed was a bar to the respondent from claiming that the provisions
of s. 3 were applicable.
580
SUPREME COURT ~EPORTS
(1975] 1 s.c.R.
Section 3{l)insofar as it is material, provides,:
"3. Restrictiow on eviction-(!) 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(!) 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 rulingthe 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:
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"2(g) 'Tenant' means the person by whom rent is, or but
for a contract express or implied, would be payable for any
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accommodation".
Now, the landlord and the tenant cannot, by their. agreement
bind the District Magistrate. In spite of the lease, the District Magi'.
strate may treat the accommodation as vacant and ev;ct therefrom
the tenant who is in
accupation
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 distincfon 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 accommo~atio~ . without an allotment order will be
deprived of several matenal pnvileges conferred upon them by the Act.
Having regard to the defimt1on clause and the scheme of the Act we
are of opinion that the respondent is a tenant under s. 3 even t!to'ugh
he
is occupying the accommodation without an allotment order.
It follows that the respondent would get the protection under s. 3
3.1'\d th<\t the appellants' suit was, therefore, liable to be dismissed as
it was found that it was instituted without the permission of the District Magistrate.
(I) (1963) A.L.J. "406.
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MURLWl!AR v. U.P. STATE (Mathew, !.)
5 81
We now turn to the other question, riz., whether under clause
20 of the lease deed, .the respondent was precluded from contending
that the suit was not maintainable even though it was instituted without
the permission of the District Magistrak Clau;e 20 of the lease
deed provides:
"That this agreement of lease has been made
between
th' 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."
Tho qu~stiou for consideration is whether this clause is ilkgal.
Clause 20 contains two provisions. The first provision is that the
parties will never claim the benefit of the Act. 'Jhe second provision
is that tho provisions of the· Act will be inapplicable to the lease detd.
The High Court has taken the view that clause 20 is i!J':llal, and, there•
fore, the respondent was not precluded from contending thatilie suit
was not maintainable.
Th' Act was passed inter alia to prevent the eviction of tena11ts
frorn th~ir accommodations. The language of s. 3 (I) is imperative
and it prohibits the institution of the 6llit without the permission.
If any landlord institutes a suit for eviction of the tenant without the
permission of the Distri.ct Magistrate, he ccmmits an offence ar;d is
punishable under s. 15 of the Act. The object of s. 3 is to give protection to a tenant from eviction from an accommcdation. The policy
of th' 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 pennission. Tl1ere was alarming scarcity of accommodation. The object of legislature in enacting
tue law was to protect tenants from greedy and grasping landlords,
and from their resorting to court for evicticn cf tenants withcut reasonable · grounds.
Under s. 23 of the Indian Contract AcL 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 cefeat the
provisions of any law, or is fraudulent; or involves or implies injury
to the p'Tson or property of another; or the Court regards it
as immoral, or opposed to public policy.
In each of these cases, the consideration er 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 decisicn
of this Court in Lachoo ~Mal ''- Radhey Shyam(I) ~nd said that
(l) [1971] 3 S,C.R. 693.
5-MlSS Sup. Cl/75
582
SOPREME COURT REPORTS
[1975] 1 s.c.R.
it was open to the respondent to waive the benefit of the provision
of s. 3 as it was enacted for the benefit of tenants and that no qu·estion
of public policy is involved.
ftl 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 tbt if a provision is enacted for the benefit of a person or
class of persons, there was nothing whicl1 precludes him or them
from contracting to waive the benefit, provided that no quest10n
of public policy was involyed.
"Jf the object of a statute is not one of general policy, or if the thing
which is being done will benefit only a particular
perso1i
or class of persons, then the conditions prescribed by tlie statute are
not considered as being indispensable. This rule is expremd by the
maxim of law, quilibet potest renuntiare jurl pro se introducto. As
a general rule, the conditions imposed by statutes which authorise legal
proceedings are treated as being indispensable to giving the co1,1rt
jurisdiction. But if it appears that the statuto1y ccnditicns were mserted by the legislature simply foi 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)
Maxw~ll states th~ rule of law as follows:
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"Anothor maxim which sanctions the non-observance of
a statutory provision is that cu/ibet licet renuntiare j1rri pro
se introducto. Everyone has a right to waive and to agree to
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waive the advantage of a law or rule made solely for the benefit
and protection of the individual in his private capacity, which
nuy 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
F
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 /aissex faire capitalism
were accepted as part of the natural order of things and the doctrine
was re-inforced by the idea of the early utilitarians that to achieve
social Justice, it would suffice to produce formal equality before the
(!) See Craies on Statute Law, 7th ed,. pp. 269-270.
(2)S ee "Interpretation of Statutes", 11th ed., (1%2), pp. 375-376.
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MURLIDHAR v. U.P. STATE (Mathew, /.)
583
Jaw.
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.(!)
There can be no doubt about the policy of the law, namely, the
protection of a weaker class in the community from haras~ment of
frivolous suits. But the question is, is there a public policy behind
it which precludes a tenant from waiving it?
The expression 'public policy' has an 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 Hollinshead v. Haz/eto11(l).] Yet it is clearly so used
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 Jaw
but has in fact always been so except in some exceptoinal instances of
confusion which have had no substantial effect on the general course
of authority(4).
The Courts have often repeated Mr. Justice Burrough'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 look<Ci upon it as a
Pegasus that might soar beyond the mcmentary needs of the ccrnrnunity. There is nothing remarkable in this because the topic itself is so
clusive(5).
"Public Policy" has been defined by Winfield as "a principle of
judicial legislation
or in.terpretaticn founded
on the current
needs of the community"('). 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 he in contemplation is the interest of one section only of the public, ard a 'mall
section at that. The explanation of the paradcx is that the ccurts
must certainly weigh the interests of the whole community as well as
the interests of a considerable section of it, such as trnants, fer imtance,
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 whi'h is prejudicia 1
to the nation as a whole. Nor is the benefit of the whole ccmmunity
always a mere tacit consideration. Tre courts may have to strike a
(!) See Dennts Lloyd, "Public Policy" (1953), pp. 136-137 .
(2) See Eserto11 v. Brownlmv, 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., '1.07, at pp. 217-218.
5) see Percy
H. Winfield, "Public Policy in English Common Law".
Harvard Law Rev. 76.
584
SUPREME COURT REPORTS
· [1975] 1 S.C.jl.
balance in express terms between community interests and sectional
. interests, So, here we arc 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
supportinjudicial 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 ofpublicpolicyarenotclosed
and that there remains a broad field within which courts can apply a
variable notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community. (2).
A
ll
Public policy does not remain static in any given conununity. It
may vary from generation to generation and even in the rnme gcr.eiation. Public policy would be almost useless if it were to remain in.
C
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 Jaw than as expounders of
public policy. However, there is no alternative under our system but
0
to vest this power with judges. The difficulty of discovering what
public policy is at any given moment certainly does not absolve the
judges from the duty of doing so. In conducting an enquiry, as
already stated, judges are not hide-bound by precedent. The judges
must look beyond the narrow field of past precedents, though this
still leaves open the question, in which directio11. They must cast their
gaze. The judges are to base their decision on the opinions of men
E
of the world, as distinguished from opinions based on legal learning.
In other words, the judges will have to look beyond 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 wliat has been termed customary morality.
The judge<
must consider the social consequences· of the rules propounded, especiaUy in the light of the factual evidence available as to its protable
F
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
G
generation'.
Our law .relics, on the implied insight of the judge
on such matters.
It is the judges themselves, assisted by the bar,
who here represent the highest cmrunon factor of ]'Ublic sentiment
a11d intelligencc(3).
No doubt, there is no assurance that judges
(1) See Gherulal Parakh v. Mahadeodas Maiya & Ors. f 1959J Supp. r 2 SCR.
406, 440.
' '
(2) See Dennis Lloyd, "Public Policy" (1953), pp. 112-l!J.
(3) see Percy H.
Winfield. "Public Policy in English Common Law"
42
Harvard Law Rev. 76 and also, Dennis Lloyd, "Public Policy" (1953), pp. 124-125.
H
'
+
•
A
~IURL!Dl!AR v. U.P. STATE (Mathew,-].)
585
will interpret the mores of their day more wisely and truly than other
men.
But this is beside the point.
The point is rather th.at this
power must 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(!).
•
We think that s. 3 is based on public policy.
As we said, it is
intended to protect a weaker section of the ccmmunity with a vitw
•
B
to ultimately protecting the interest of the community in i;cnernl by
creating equality of bargaining power.
Although the section is
primarily intended for the protection of tenants only, that protection
is based on public policy.
The respondent could not have wai\·ed
the benefit of the provision.
c
The language of the section as already stated, is prohibitive in
character.
It precl11des 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 diimissed .
(I) Sec Cardozo," The Nature of Judicial Process", pp. l 35-136.