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Judgments of Supreme Court of India and High Courts

Vinod Kumar vs Ashok Kumar Gandhi on 5 August, 2019

1

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3793 OF 2016

VINOD KUMAR … APPELLANT(S)

VERSUS

ASHOK KUMAR GANDHI … RESPONDENT(S)

With

C.A. No. 8972-8973/2017, C.A.No. 6063 of 2019(arising
out of SLP(C) No. 19965/2017), C.A.No. 6064 of 2019
(arising out of SLP(C) No. 20414/2017), C.A.Nos.
6066-6072 of 2019 (arising out of SLP(C) No. 20735-
20741/2017), C.A.No. 6073 of 2019 (arising out of
SLP(C) No. 22383/2017), C.A. No. 16916/2017 and
C.A.No. 6075 of 2019 (arising out of SLP(C) No.
28455/2017)

J U D G M E N T

ASHOK BHUSHAN, J.

Leave granted.

2. These appeals, except one where leave to defend

was granted, have been filed against the judgment of

Delhi
Signature Not Verified
High Court dismissing the Rent Control
Digitally signed by
SANJAY KUMAR
Date: 2019.08.05
17:05:49 IST
Reason:

Revisions filed by the appellants in which the order

passed by the Rent Controller rejecting the
2

application filed by the appellants-tenants seeking

leave to defend in a petition under Section 14(1)(e)

of the Delhi Rent Control Act, 1958 have been

challenged.

3. The appellants are tenants occupying non-

residential buildings for whose eviction petitions

have been filed by the landlord on the ground of

bonafide need of landlord. The appellants at the very

outset challenge the maintainability of eviction

petitions filed by the landlord under 14(1)(e) on the

ground of bonafide need. The facts are being taken

from C.A.No.3793 of 2016 (Vinod Kumar vs. Ashok Kumar

Gandhi) for considering the issues which have been

raised by the learned counsel for the appellant at

the very beginning of the submission.

C.A.No.3793 of 2016(Vinod Kumar vs. Ashok Kumar

Gandhi)

4. The appellant is a tenant of a shop bearing No.J-

3/188-B, Nehru Market, Rajouri Garden, New Delhi-

110027. The respondent-landlord of the premises filed

an Eviction Petition on 03.01.2011 to obtain
3

possession of the shop on the ground that son of the

landlord was without any job and the premises in

question are bonafide required by his son to start

business of sale of readymade garments and

accessories. It was further pleaded in the

application that the landlord has planned to make a

passage of around six feet wide throughout the length

of the property, from the front side, to have access

to the stairs case in the rear side of the property.

The Rent Controller after receipt of the said

application issued notice to the appellant-tenant. On

25.01.2011, the appellant filed an application

seeking leave to defend along with a detailed

affidavit in support thereof. The landlord filed a

reply to the application alongwith counter-affidavit.

The Additional Rent Controller vide order dated

05.05.2015 rejected the application seeking leave to

defend filed by the appellant. Aggrieved by the order

of the Additional Rent Controller dated 05.05.2015

revision petition was filed by the appellant under

Section 25-B(8) of the Delhi Rent Control Act, 1958

challenging the order or Additional Rent Controller.
4

The High Court vide its judgment dated 14.03.2016

dismissed the revision petition filed by the

appellant. Aggrieved by the judgment of the High

Court, this appeal has been filed by the appellant.

5. In C.A.No.3793 of 2016 various grounds have been

raised in support of the appeal. Other appeals

included in this group also raise several grounds on

the merits questioning the refusal to grant leave to

defend by the Rent Controller. However, on the

opening of the submissions, learned counsel for the

appellants have confined their submissions on the

judgment of this Court in Satyawati Sharma (Dead) by

LRs. Vs. Union of India and another, (2008) 5 SCC

287. Questioning the correctness of judgment of

Satyawati Sharma various grounds have been canvassed

before us. Learned counsel for the appellant submits

that the said judgment needs to be referred to a

larger Bench to examine its correctness. It is the

submission of the appellant that the Eviction

Petitions have been filed under 14(1)(e) for eviction

from non-residential premises on the projected

bonafide need of landlord only on the basis of
5

judgment of Satyawati Sharma, which had, in fact, re-

written the provision of 14(1)(e). It is submitted

that as per provision of 14(1)(e) as contained in

Delhi Rent Control Act, 1958, the landlord was

precluded from filing application for eviction on the

ground of bonafide need regarding non-residential

premises. It is submitted that application under

14(1)(e) was contemplated by the Act only with regard

to premises let for residential purposes.

6. Learned counsel appearing for the landlord has

countered the submission of the appellant and submits

that the judgment of this Court in Satyawati Sharma

lays down the correct law and needs no reference to a

larger Bench.

7. Learned counsel for the parties have confined

their submissions only on the question as to whether

judgment of this Court in Satyawati Sharma needs

reference to larger Bench or not. We, in these

appeals, thus, proceed to consider limited submission

as to whether judgment of this Court in Satyawati

Sharma needs reference to larger bench or not. The

issues on merits of the order passed by the Rent
6

Controller rejecting leave to defend application are

not being examined as of now.

8. Before we notice the respective submissions of

the learned counsel for the parties in detail, we may

first notice the provisions of Section 14 of Delhi

Rent Control Act, 1958 as enacted. The Delhi Rent

Control Act, 1958 had been enacted to provide for the

regulation of rents, repairs and maintenance and

evictions relating to premises and of rates of hotels

and lodging houses in the National Capital Territory

of Delhi. The premises have been defined in Section

2(i) which is to the following effect:

“2(i) “premises” means any building or
part of a building which is, or is intended
to be, let separately for use as a
residence or for commercial use or for any
other purpose, and includes—

(i) the garden, grounds and outhouses,
if any, appertaining to such building or
part of the building;

(ii) any furniture supplied by the
landlord for use in such building or part
of the building; but does not include a
room in a hotel or lodging house;”

9. Chapter III of Delhi Rent Control Act, 1958 deals

with control of eviction of tenants. Section 14(1)
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which has arisen for consideration in these cases is

as follows:

“Section 14. Protection of tenant
against eviction.- (1) Notwithstanding
anything to the contrary contained in any
other law or contract, no order or decree
for the recovery of possession of any
premises shall be made by any court or
Controller in favour of the landlord
against a tenant:

Provided that the Controller may, on an
application made to him in the prescribed
manner, make an order for the recovery of
possession of the premises on one or more
of the following grounds only, namely:-

(a) that the tenant has neither paid nor
tendered the whole of the arrears of the
rent legally recoverable from him within
two months of the date on which a notice of
demand for the arrears of rent has been
served on him by the landlord in the manner
provided in section 106 of the Transfer of
Property Act, 1882 (4 of 1882).

(b) that the tenant has, on or after the
9th day of June, 1952, sub-let, assigned or
otherwise parted with the possession of the
whole or any part of the premises without
obtaining the consent in writing of the
landlord;

(c) that the tenant has used the
premises for a purpose other than that for
which they were let-

(i) if the premises have been let on or
after the 9th day of June, 1952, without
obtaining the consent in writing of the
landlord; or
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(ii) if the premises have been let
before the said date without obtaining his
consent;

(d) that the premises were let for use
as a residence and neither the tenant nor
any member of his family has been residing
therein for a period of six months
immediately before the date of the filing
of the application for the recovery of
possession thereof;

(e) that the premises let for
residential purposes are required bona fide
by the landlord for occupation as a
residence for himself or for any member of
his family dependent on him, if he is the
owner thereof, or for any person for whose
benefit the premises are held and that the
landlord or such person has no other
reasonably suitable residential
accommodation;

Explanation.-For the purposes of this
clause, “premises let for residential
purposes” include any premises which having
been let for use as a residence are,
without the consent of the landlord, used
incidentally for commercial or other
purposes;

(f) that the premises have become unsafe
or unfit for human habitation and are
required bona fide by the landlord for
carrying out repairs which cannot be
carried out without the premises being
vacated;

(g) that the premises are required bona
fide by the landlord for the purpose of
building or re-building or making thereto
any substantial additions or alterations
and that such building or re-building or
addition or alteration cannot be carried
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out without the premises being vacated;

(h) that the tenant has, whether before
or after the commencement of this Act,
built, acquired vacant possession of, or
been allotted, a residence:

(i) that the premises were let to the
tenant for use as a residence by reason of
his being in the service or employment of
the landlord, and that the tenant has
ceased, whether before or after the
commencement of this Act, to be in such
service or employment;

(j) that the tenant has, whether before
or after the commencement of this Act,
caused or permitted to be caused
substantial damage to the premises;

(k) that the tenant has, notwithstanding
previous notice, used or dealt with the
premises in a manner contrary to any
condition imposed on the landlord by the
Government or the Delhi Development
Authority or the Municipal Corporation of
Delhi while giving him a lease of the land
on which the premises are situate;

(l) that the landlord requires the
premises in order to carry out any building
work at the instance of the Government or
the Delhi Development Authority or the
Municipal Corporation of Delhi in pursuance
of any improvement scheme or development
scheme and that such building work cannot
be carried out without the premises being
vacated.”

10. A perusal of the various grounds available to a

landlord to recover possession of any premises
10

indicates that although several grounds are available

both for residential and non-residential premises but

few grounds are available only for premises let for

residential purposes. The provision of Section 14(1)

(e) which needs consideration confine to the premises

let for residential purposes which may be required

bonafide by the landlord for occupation as a

residence for himself or for any member of his family

dependent on him. The explanation explains that

premises let for residential purposes which having

been let for use as a residence are, without the

consent of the landlord, used incidentally for

commercial or other purposes are also included in

residential premises.

11. The provisions of Section 14(1)(e) were resorted

by the landlord for seeking recovery of possession

only with regard to residential premises till part of

Section 14(1)(e) has been struck down in Satyawati

Sharma case. This Court held that Section 14(1)(e) of

Act, 1958 is violative of the doctrine of equality

embodied in Article 14 of the Constitution in so far

as it discriminates between the premises let for
11

residential and non-residential purposes when the

same are required bonafide by the landlord for

occupation for himself or for any member of his

family dependent on him and restricts the landlord’s

right to seek eviction of the tenant from the

premises let for residential purposes only. This

Court clarified that it is not totally striking down

of Section 14(1)(e) of the Act in its entirety but it

has struck down only the discriminatory portion of

Section 14(1)(e). In Satyawati Sharma(AIR 2008 SC

3148) this Court held that striking down the

discriminatory portion of Section 14(1)(e) the

remaining part of the Section 14(1)(e) shall be read

in the manner as extracted in paragraph 39 of the

judgment which is as follows:

“39. However, the aforesaid declaration
should not be misunderstood as total
striking down of Section 14(1)(e) of the
1958 Act because it is neither the pleaded
case of the parties nor the learned Counsel
argued that Section 14(1)(e) is
unconstitutional in its entirety and we
feel that ends of justice will be met by
striking down the discriminatory portion of
Section 14(1)(e) so that the remaining part
thereof may read as under:

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“that the premises are required bona
fide by the landlord for himself or for
any member of his family dependent on him,
if he is the owner thereof, or for any
person for whose benefit the premises are
held and that the landlord or such person
has no other reasonably suitable
accommodation.”
……………”

12. It is on the strength of the judgment of this

Court in Satyawati Sharma that after the said

judgment landlords of non-residential premises have

also filed application for eviction under Section

14(1)(e) which are dealt with by the Rent Controller

as per procedure contained in Chapter III-A of the

Act, 1958. Chapter III-A contains ‘Summary Trial of

Certain Applications’. The Rent Controller treating

the said procedure applicable on applications filed

by the landlords under Section 14(1)(e) has issued

summons to the tenants in the form prescribed in the

Third Schedule and have passed order either rejecting

the leave to defend or granting leave to defend

which orders, were challenged in the High Court

giving rise to these appeals.

13. After noticing the brief background of one of the
13

issues which has been pressed at the very outset, we

now proceed to notice the submissions of learned

counsel for the parties in detail as canvassed before

us.

14. Shri Uday Gupta, learned counsel who led the

submission on behalf of the appellant has very ably

and persuasively put forward his submissions. Shri

Gupta submits that validity of the provision of

Section 14(1)(e) was challenged in Delhi High Court

more than once which challenge was repelled by the

High Court. Shri Gupta submits that Delhi High court

in H.C.Sharma vs. LIC of India,(1973) ILR 1 Del 90,

in which

restriction placed on the rights of landlord to evict

the tenant from non-residential premises as

discriminatory and violative of Section 19 and 14(1)

(f) was considered and rejected. In Satyawati Sharma

appellant had filed an application for eviction of

the tenant which application was rejected by the Rent

Controller on the ground that application is not

maintainable under Section 14(1)(e) for non-

residential purposes. Apart from a revision
14

challenging the said order in the High court a writ

petition was also filed by Satyawati Sharma

challenging the constitutional validity of Section

14(1)(e) which challenge was repelled by Delhi High

Court in Satyawati Sharma vs. Union of India and

others, 2002 (65) SRJ 615 ( Full Bench), which

judgment was subject matter of the Civil Appeals

before this Court giving rise to the judgment of this

Court in Satyawati Sharma (supra). Shri Gupta relying

on the judgment of Constitution Bench judgment in

Gian Devi Anand vs. Jeevan Kumar and others, (1985) 2

SCC 683, submits that Gian Devi Anand itself has

noticed the distinction in provision of Section 14(1)

(e) which was confined to residential premises and

not available in case of commercial premises. It is

submitted that Gian Devi Anand suggested that

Legislature may consider the advisability of making

the bona fide requirement of the landlord a ground of

eviction in respect of commercial premises as well.

The legislature having not yet enforced the Delhi

Rent Act, 1995 it was not open for this Court in

Satyawati Sharma (supra) to read down the provision
15

of Section 14(1)(e). Shri Gupta submits that the

judgment of Satyawati Sharma is contrary to the

Constitution Bench judgment in Gian Devi Anand. A

Bench of two Hon’ble Judges could not have adopted

the course which was not adopted by the Constitution

Bench itself in Gian Devi Anand. Shri Gupta further

submits that Satyawati Sharma failed to take notice

of three-Judge Bench judgment of this Court in Gauri

Shanker and others vs. Union of India and others,

(1994) 6 SCC 349. It is submitted that view taken in

paragraph 41 of Satyawati Sharma is per incuriam in

view of the judgment already rendered in Gauri

Shanker case. Alternatively, Shri Gupta submits that

even judgment of Satyawati Sharma is not held to be

per incuriam, the said judgment necessarily needs to

be revisited, in view of the fact that the Satyawati

Sharma did not consider several relevant provisions

of Act, 1958 including Section 25B and Section 19. It

is submitted that summary procedure which was brought

in the statute by inserting Chapter III-A by Act 18

of 1976 with effect from 01.12.1975 specially Section

25B which was special procedure for the disposal of
16

applications for eviction on the ground of bonafide

requirement under Section 14(1)(e) was meant only for

residential premises. Without adverting to Section

25B, this Court in Satyawati Sharma could not have

held that Section 14(1)(e) should also be available

for non-residential premises. The very premise in

Satyawati Sharma that Rent Control legislation did

not make any distinction in residential and non-

residential purposes was erroneous, which led

Satyawati Sharma to fall in error. The two-Judge

Bench of this Court in Satyawati Sharma has re-

written Section 14(1)(e) which could not have been

done by the Court and matter ought to have been left

for legislature as was said by the Constitution Bench

in Gian Devi Anand case. The Constitution Bench in

Gian Devi Anand itself has observed that there has

been distinction between residential and commercial

premises in Delhi. Satyawati Sharma has relied on

judgment of this Court in Harbilas Rai Bansal vs.

State of Punjab and another, (1996) 1 SCC 1, and

Rakesh Vij vs. Raminder Pal Singh Seth and others,

(2005) 8 SCC 504, which were the judgments on East
17

Punjab Urban Rent Restriction Act, 1949, and could

not have been applied with regard to interpretation

of Delhi Rent Control Act, 1958. In East Punjab Urban

Rent Restriction Act the remedy for landlord for

seeking eviction on the bonafide requirement both for

residential and non-residential premises was very

much available from the very beginning and it was,

for the first time, sought to be taken away by 1956

Amendment which amendment was struck down by this

Court. Those cases were not relevant for Delhi Rent

Control Act. The tenants occupying non-residential

premises are dependent on their livelihood. Applying

summary procedure as prescribed under Section 25B

brings hardship in denying them protection of law

since they are not able to defend their cases on

merits. Referring to statement of Minister, Shri

H.K.L. Bhagat on debate in the House on 1976

Amendment, it is submitted that statement was made

that Section 25B was not to apply to non-residential

premises since under Section 14(1)(e) eviction can be

sought only with regard to residential premises. It

is submitted that due to Explanation to Section 14(1)
18

(e) having held to be redundant the benefit given

under Section 19 is also denied to the tenant.

Section 19(2) has been rendered otiose. The principle

of reading down was not attracted in the present

case. It is submitted that reading down cannot be

used when the legislative intent is clear.

15. Satyawati Sharma even does not refer to Sections

14A to 14D which were also inserted by Act 18 of

1976. There is reasonable doubt of correctness of

Satyawati Sharma, hence, it needs to be referred to a

larger Bench for final opinion. Legislature never

intended to apply Section 25B to commercial tenancy.

Since, the procedure of Section 25B was harsh which

was made looking to bonafide need for residential

premises, Section 25B should not be ipso facto

applied to commercial tenancy. In other case, the

tenant has right to file written statement which is

now denied by applying procedure under Section 25B.

Section 25B having not referred to it is to be seen

as to whether Section 25B shall apply. In any view of

the matter judgment of Satyawati Sharma should be

applied to the tenancy coming into the existence
19

after the judgment of this Court in Satyawati Sharma

case.

16. Shri Neeraj Krishan Kaul, senior counsel, led

arguments on behalf of the landlord. Shri Kaul

submits that this Court in Satyawati Sharma found

Section 14(1)(e) to be ultra vires to Article 14 of

the Constitution. However, instead of striking down

the provisions altogether, this Court removed the

offending part of the legislation by obliterating the

classification between residential and non-

residential premises and holding that Section 14(1)

(e) would apply equally to residential and non-

residential premises. Satyawati Sharma took notice of

Constitutional Bench judgment in Gian Devi Anand

(supra)which had suggested the Legislature to remove

the discrimination between residential and non-

residential premises in the Delhi Rent Control Act,

1958 with regard to seeking eviction by landlord on

the ground of bona fide need. When the Legislation

had not acted in removing aforesaid classification,

this Court applying the doctrine of temporal

reasonableness held that a Legislation which may have
20

been reasonable and rational at the time of enactment

may over passage of time become arbitrary,

unreasonable and violative of Article 14. This Court

in Satyawati Sharma took judicial notice of the fact

that the Delhi Rent Act, 1995 which was a subsequent

Legislation, but yet to be notified by the Central

Government, did not distinguish between the

residential and non-residential premises in sofaras

landlord’s right to seek eviction on bona fide need

is concerned. The observations made in Gian Devi

Anand were in the background of a discussion in

relation to heritability of tenancies vis-à-vis

Section 2(l)of Delhi Rent Control Act, 1958. The

judgment of this Court in Satyawati Sharma has also

been affirmed by a three-Judge Bench in State of

Maharasthra and Anr. Vs. Super Max International (P)

Ltd. and Ors., (2009) 9 SCC 772.

17. This Court in Harbilas Rai Bansal (supra) and

Rakesh Vij (supra)had held no distinction can be made

with regard to residential tenancy and non-

residential tenancy in sofaras eviction is concerned

at the instance of the landlord on the ground of bona
21

fide need. The judgment of Satyawati Sharma cannot be

held to be any kind of judicial Legislation. What has

been done in Satyawati Sharma is to only strike down

the unconstitutional portion of Section 14(1)(e). The

part of Section 14(1)(e) which is severable has been

retained. The judgment of Satyawati Sharma cannot be

held to be per incuriam either Gian Devi Anand case

or Gauri Shanker case. The observations in Gauri

Shanker were in the background of Section 2(l)(iii)

of Act, 1958 wherein heritability of tenancy is

provided.

18. There can be no distinction in sofaras bona fide

need of the landlord is concerned regarding

residential and commercial premises. The observations

of three-Judge Bench in Super Max International are

not obiter but are the judicial dicta which has re-

confirmed the principles in Satyawati Sharma case.

Replying the submission of the appellant in sofaras

Section 25B of the Act is concerned, Shri Kaul

submits that procedure for eviction cannot be

different in sofaras residential and commercial

tenancies are concerned. Adopting different
22

procedures for eviction in the above two cases itself

be treated as discriminatory. There are various

safeguards under Act, 1958 which amply protect the

tenant. There is nothing in the Satyawati Sharma

judgment which can be said to be per incuriam. The

appellant is asking this Court to violate certainty

of law and comity of the Courts. There is no ground

today to refer the judgment of Satyawati Sharma case

for consideration of a larger Bench. The judgment of

this Court in Satyawati Sharma case is just,

reasonable and protects both landlord and tenant. The

provision of Section 14(1)(e) which was enacted at

the time when circumstances were different can no

longer be said to be reasonable and valid and has

rightly done away with the unjust classification

between residential and commercial in sofaras

eviction on the ground of bona fide need of the

landlord was concerned.

19. The Judgement of this Court in Satyawati Sharma

has stood test of time and at this distance of time

this Court cannot revive the unjust classification

between residential and non-residential premises in
23

sofaras landlord’s right of eviction is concerned on

the ground of bona fide need. Shri Kaul submits that

there is absolutely no reason for referring the

Satyawati Sharma case for consideration of a larger

Bench. Shri Kaul further has referred to the order

dated 20.07.2015 passed in Special Leave Petition

(C)No.31687 of 2014, Jag Mohini Kaur vs. Tilak Raj

and ors., where this Court after noticing the

judgment of this Court in Satyawati Sharma dismissed

the petition of tenant wherein submission was sought

to be raised that landlord cannot file an application

under Section 14(1)(e) with regard to non-residential

premises. Satyawati Sharma has time and again relied

by this Court and the High Courts and there is no

occasion to have any re-look in these appeals. The

mere fact that the procedure under Section 25B is

applicable with regard to non-residential premises

also has no bearing on the unconstitutionality of

part of the provision of Section 14(1)(e). No

distinction can be made with regard to procedure

applicable regarding residential and non-residential

premises. Shri Kaul submits that the prayer of the
24

appellant to refer the judgment of Satyawati Sharma

to a larger Bench be rejected and the appeals be

heard and dismissed.

20. From the submissions of learned counsel for the

parties as noted above following two questions arise

for consideration by us:

(1) Whether the judgment of this Court in

Satyawati Sharma (supra) is per incuriam.

(2) Whether there are any other grounds to refer

the judgment of this Court in Satyawati

Sharma for reconsideration by a larger Bench.

Question No.1

21. The submission of the learned counsel for the

appellant is that Satyawati Sharma having not

followed the binding Constitution Bench judgment in

Gian Devi Anand and three-Judge Bench judgment in

Gauri Shanker is a judgment rendered per incuriam.

Further, submission is that Satyawati Sharma ignores

provisions of Section 25B of the Delhi Rent Control

Act. Hence, the judgment in Satyawati Sharma is per
25

incuriam.

22. The principle of per incuriam has been developed

by the English Courts in relaxation of the rule of

stare decisis. In practice per incuriam is per

ignoratium. The above principle has been developed,

accepted, approved and adopted by this Court while

interpreting Article 141 of the Constitution which

embodies the doctrine of precedent as a matter of

law. A Constitution Bench in Punjab Land Development

and Reclamation Corporation Ltd., Chandigarh vs.

Presiding Officer, Labour Court, Chandigarh and

another, (1990) 3 SCC 682 dealing with question of

per incuriam laid down following in paragraph 40:

“40. We now deal with the question of per
incuriam by reason of allegedly not
following the Constitution Bench
decisions. The Latin expression per
incuriam means through inadvertence. A
decision can be said generally to be
given per incuriam when this Court has
acted in ignorance of a previous decision
of its own or when a High Court has acted
in ignorance of a decision of this Court.

It cannot be doubted that Article 141
embodies, as a rule of law, the doctrine
of precedents on which our judicial
system is based. In Bengal Immunity
Company Ltd. v. State of Bihar, AIR 1955
SC 66, it was held that the words of
Article 141, “binding on all courts
26

within the territory of India”, though
wide enough to include the Supreme Court,
do not include the Supreme Court itself,
and it is not bound by its own judgments
but is free to reconsider them in
appropriate cases. This is necessary for
proper development of law and justice.
May be for the same reasons before
judgments were given in the House of
Lords and Re Dawson’s Settlement Lloyds
Bank Ltd. v. Dawson, (1966) 3 All ER 68,
on July 26, 1966 Lord Gardiner, L.C. made
the following statement on behalf of
himself and the Lords of Appeal in
Ordinary:

“Their Lordships regard the use
of precedent as an indispensable
foundation upon which to decide
what is the law and its application
to individual cases. It provides at
least some degree of certainty upon
which individuals can rely in the
conduct of their affairs, as well
as a basis for orderly development
of legal rules. Their Lordships
nevertheless recognise that too
rigid adherence to precedent may
lead to injustice in a particular
case and also unduly restrict the
proper development of the law. They
propose, therefore, to modify their
present practice and, while
treating former decisions of this
House as normally binding, to
depart from a previous decision
when it appears right to do so.

In this connection they will
bear in mind the danger of
disturbing retrospectively the
basis on which contracts,

settlements of property and fiscal
arrangements have been entered into
27

and also the especial need for
certainty as to the criminal law.”

23. In V.Kishan Rao vs. Nikhil Super Specially

Hospital and another, 2010(5) SCC 513, this Court

again explaining the concept of per incuriam laid

down following in paragraph 54:

“54. When a judgment is rendered by
ignoring the provisions of the governing
statute and earlier larger Bench decision
on the point such decisions are rendered
per incuriam. This concept of per
incuriam has been explained in many
decisions of this Court. Sabyasachi
Mukharji, J. (as his Lordship then was)
speaking for the majority in A.R. Antulay
v. R.S. Nayak, (1988) 2 SCC 602,
explained the concept in the following
words: (SCC p. 652, para 42)

“42. … ‘Per incuriam’ are those
decisions given in ignorance or
forgetfulness of some inconsistent
statutory provision or of some
authority binding on the court
concerned, so that in such cases
some part of the decision or some
step in the reasoning on which it
is based, is found, on that account
to be demonstrably wrong.”

Subsequently also in the Constitution
Bench judgment of this Court in Punjab
Land Development and Reclamation Corpn.
Ltd. v. Labour Court, (1990) 3 SCC 682,
similar views were expressed in para 40
at p. 705 of the report.”
28

24. When a Court delivers judgment ignoring the

binding precedent of a larger Bench, the judgment so

delivered is held to be per incuriam and has no

precedential value. Whether the judgment of Satyawati

Sharma can be said to be per incuriam. The

Constitution Bench judgment of Gian Devi Anand is

first to be examined. The Constitution Bench judgment

in Gian Devi Anand(supra) was delivered by Amarendra

Nath Sen, J. with which opinion Bhagwati, J.

concurred. The question which arose for consideration

was noticed in paragraph 5 of the judgment.

“Amarendra Nath Sen, J.- The question
for consideration in this appeal by special
leave is whether under the Delhi Rent
Control Act, 1958 (for the sake of brevity
hereinafter referred to as ‘the Act’), the
statutory tenancy, to use the popular
phraseology, in respect of commercial
premises is heritable or not. To state it
more precisely, the question is whether the
heirs of a deceased tenant whose
contractual tenancy in respect of
commercial premises has been determined,
are entitled to the same protection against
eviction afforded by the Act to the
tenant.”

25. In the above case landlord has determined tenancy

of the tenant and thereafter filed a petition under
29

Section 14 for eviction of the tenant on various

grounds. Tenancy was of a shop situate in New Market,

West Patel Nagar, New Delhi. Rent Controller had

allowed the petition of the landlord on the ground of

default in payment of rent rejecting other grounds.

Landlord preferred an appeal to which tenant had also

filed cross-objection. During pendency of the appeal

tenant died on 05.09.1977 in whose place the

appellant, the widow of deceased tenant was

impleaded. Cross-objection of tenant was allowed.

Appellate Court remanded the matter to decide the

question of sub-letting. The widow of deceased tenant

filed an appeal before the High Court to which

landlord filed a cross-objection. The High Court held

that on the death of the statutory tenant, the heirs

of the statutory tenant had no right to remain in

possession of the premises, as statutory tenancy was

not heritable and the protection afforded to a

statutory tenant by the Act is not available to the

heirs and legal representatives of the statutory

tenant. A decree for eviction was passed by the High

Court which judgment was challenged by the widow of
30

the deceased tenant before this Court. This Court

held that Act does not make any distinction between

‘so-called statutory tenant’ and ‘contractual tenant’

but seeks to restrict the right of the heirs of such

tenant in respect of residential premises. One more

submission was raised before this Court that in view

of the amendment of definition of ‘tenant’ under

Section 2(l)(iii) right of continuing in possession

in respect of residential premises only and not with

regard to so-called statutory tenant in respect of

commercial premises, rejecting the said submission

the Court laid down following in paragraph 31:

“31……..Section 2(1)(iii) of the Act does
not create any additional or special right
in favour of the heirs of the `so called
statutory tenant’ on his death, but seeks
to restrict the right of the heirs of such
tenant in respect of residential premises.
As the status and rights of a contractual
tenant even after determination of his
tenancy when the tenant is at times
described as the statutory tenant, are
fully protected by the Act and the heirs of
such tenants become entitled by virtue of
the provisions of the Act to inherit the
status and position of the statutory tenant
on his death, the Legislature which has
created this right has thought it fit in
the case of residential premises to limit
the rights of the heirs in the manner and
to the extent provided in Section 2(1)

(iii). It appears that the Legislature has
31

not thought it fit to put any such
restrictions with regard to tenants in
respect of commercial premises in this
Act.”

26. The Constitution Bench of this Court also noticed

Section 14(1)(e) which makes bona fide requirement of

the landlord of the premises let out to the tenant

for residential purposes a good ground for eviction

of the tenant from such premises. The Constitution

Bench concluded that commercial tenancy is heritable

under the scheme of the Act. In paragraph 34

following has been observed:

“34…………It may be noticed that the
Legislature itself treats commercial
tenancy differently from residential
tenancy in the matter of eviction of the
tenant in the Delhi Rent Act and also in
various other Rent Acts. All the grounds
for eviction of a tenant of residential
premises are not made grounds for eviction
of a tenant in respect of commercial
premises. S. 14(1)(d) of the Delhi Rent
Act provides that non-user of the
residential premises by the tenant for a
period of six months immediately before the
filing of the application for the recovery
of possession of the premises will be a
good ground for eviction, though in case of
a commercial premises no such provision is
made. Similarly, S. 14(1)(e) which makes
bona fide requirement of the landlord of
the premises let out to the tenant for
residential purposes a ground for eviction
of the tenant, is not made applicable to
32

commercial premises. A tenant of any
commercial premises has necessarily to use
the premises for business purposes.

Business carried on by a tenant of any
commercial premises may be and often is,
his only occupation and the source of
livelihood of the tenant and his family.
Out of the income earned by the tenant from
his business in the commercial premises,
the tenant maintains himself and his
family; and the tenant, if he is residing
in a tenanted house, may also be paying his
rent out of the said income. Even if tenant
is evicted from his residential premises,
he may with the earnings out of the
business be in a position to arrange for
some other accommodation for his residence
with his family. When, however, a tenant is
thrown out of the commercial premises, his
business which enables him to maintain
himself and his family comes to a stand-
still. It is common knowledge that it is
much more difficult to find suitable
business premises than to find suitable
premises for residence………

We are of the opinion that in case of
commercial premises governed by the Delhi
Act, the Legislature has not thought it fit
in the light of the situation at Delhi to
place any kind of restriction on the
ordinary law of inheritance with regard to
succession. It may also be borne in mind
that in case of commercial premises the
heirs of the deceased tenant not only
succeed to the tenancy rights in the
premises but they succeed to the business
as a whole. It might have been open to the
Legislature to limit or restrict the right
of inheritance with regard to the tenancy
as the Legislature had done in the case of
the tenancies with regard to the
residential houses but it would not have
been open to the Legislature to alter under
33

the Rent Act, the Law of Succession
regarding the business which is a valuable
heritable right and which must necessarily
devolve on all the heirs in accordance with
law. The absence of any provision
restricting the heritability of the tenancy
in respect of the commercial premises only
establishes that commercial tenancies
notwithstanding the determination of the
contractual tenancies will devolve on the
heirs in accordance with law and the heirs
who step into the position of the deceased
tenant will continue to enjoy the
protection afforded by the Act and they can
only be evicted in accordance with the
provisions of the Act……………”

27. After laying down above following was held in

paragraph 38:

“38.We must, therefore, hold that Wasti
Ram enjoyed the statute of the premises in
dispute even after determination of the
contractual tenancy and notwithstanding the
termination of the contractual tenancy,
Wasti Ram had an estate or interest in the
demised premises; and tenancy rights of
Wasti Ram did not come to an end with his
death but they devolved on the heirs and
legal representative of Wasti Ram. The
heirs and legal representatives of Wasti
Ram step into his position and they are
entitled to the benefit and protection of
the Act. We must, accordingly, hold that
the High Court was not right in coming to
the conclusion that the heirs of Wasti Ram,
the so called statutory tenant, did not
have any right to remain in possession of
the tenanted premises and did not enjoy any
protection under the Act. It appears that
the High Court passed an order for eviction
against the heirs of Wasti Ram only on this
34

ground without going into the merits of the
appeal filed by the appellant in the High
Court against the order of remand and also
without considering the cross-objections
filed in the High Court by the landlord. We
accordingly, set aside the judgment and
order of the High Court and we remand the
case to the High Court for decision of the
appeal and the cross objection on merits.
The appeal is accordingly allowed to the
extent indicated above with no order as to
costs.”

28. The most important observations which are

relevant in present case were made by the

Constitution Bench in paragraph 39 of the judgment.

The Constitution Bench observed the landlord who let

out commercial premises under circumstances may need

bona fide premises for his own use under changed

conditions. The Constitution Bench suggested that

Legislature may consider the advisability of making

the bona fide requirement of the landlord a ground of

eviction in respect of commercial premises as well.

Following was observed in paragraph 39:

“39.Before concluding, there is one
aspect which we consider it desirable to
make certain observations. The owner of any
premises, whether residential or
commercial, let out to any tenant, is
permitted by the Rent Control Acts to seek
eviction of the tenant only on the ground
specified in the Act, entitling the
35

landlord to evict the tenant from the
premises. The restrictions on the power of
the landlords in the matter of recovery of
possession of the premises let out by him
to a tenant have been imposed for the
benefit of the tenants. Inspite of various
restrictions put on the landlords right to
recover possession of the premises from a
tenant, the right of the landlord to
recover possession of the premises from the
tenant for the bona fide need of the
premises by the landlord is recognised by
the Act, in case of residential premises. A
landlord may let out the premises under
various circumstances. Usually a landlord
lets out the premises when he does not need
it for own use. Circumstances may change
and a situation may arise when the landlord
may require the premises let out by him for
his own use. It is just and proper that
when the landlord requires the premises
bona fide for his own use and occupation,
the landlord should be entitled to recover
the possession of the premises which
continues to be his property inspite of his
letting out the same to a tenant. The
legislature in its wisdom did recognise
this fact and the Legislature has provided
that bona fide requirement of the landlord
for his own use will be a legitimate ground
under the Act for the eviction of his
tenant from any residential premises. This
ground is, however, confined to residential
premises and is not made available in case
of commercial premises. A landlord who lets
out commercial premises to a tenant under
certain circumstances may need bona fide
the premises for his own use under changed
conditions in some future date should not
in fairness be deprived of his right to
recover the commercial premises. Bona fide
need of the landlord will stand very much
on the same footing in regard to either
class of premises, residential or
36

commercial. We therefore, suggest that
Legislature may consider the advisability
of making the bona fide requirement of the
landlord a ground of eviction in respect of
commercial premises as well.”

29. Now, we revert back to Satyawati Sharma’s case.

Satyawati Sharma case has noticed Gian Devi Anand

case in paragraphs 20 and 21. Satyawati Sharma

extracted the entire paragraph 39 of Constitution

Bench judgment in paragraph 20. Satyawati Sharma in

paragraph 21 states following:

“21. What is significant to be noted is
that in para 34 of the aforementioned
judgment, the distinction between
residential and non-residential tenancies
was made in the context of the rights of
the heirs of the tenant to continue to
enjoy the protection envisaged under
Section 14(1). The Court was of the view
that the heirs of the tenants of the
commercial premises cannot be deprived of
the protection else the family of the
tenant may be brought on road or deprived
of the only source of livelihood. The
Court also opined that if the heirs of
the individual tenants of commercial
tenancies are deprived of the protection,
extremely anomalous consequences will
ensue because the companies, corporations
and juridical entities carrying on
business or commercial activities in
rented premises will continue to enjoy
the protection even after the change of
management, but the heirs of individual
tenants will be denuded of similar
37

protection. At the same time, the Court
noted that the landlord of a premises let
for residential purpose may bona fide
require the same for his own use or the
use of his dependent family members and
observed that the legislature should
remove apparent discrimination between
residential and non-residential tenancies
when the landlord bona fide requires the
same. If the observations contained in
para 34 are read in any other manner, the
same would become totally incompatible
with the observation contained in the
penultimate paragraph of the judgment and
we do not see any reason for adopting
such course, more so, because the later
part of the judgment has been relied in
Harbilas Rai Bansal v. State of Punjab,
(1996) 1 SCC 1 and Rakesh Vij v. Dr.
Raminder Pal Singh Sethi, (2005) 8 SCC

504.”

30. The submission which has been pressed by Shri

Uday Gupta is that the Constitution Bench in Gian

Devi Anand did not declare provisions of Section

14(1)(e) unconstitutional rather left it to the

Legislature to amend the law. When Gian Devi Anand

has itself not struck down Section 14(1)(e) Satyawati

Sharma doing the same is contrary to the judgment of

Gian Devi Anand. The observation in paragraph 39 of

Gian Devi Anand’s case itself suggest that the

Constitution Bench was satisfied that a ground for

eviction of tenant of commercial premises on bona
38

fide requirement of landlord should also be provided

for. The basis for what has been done in Satyawati

Sharma was clearly laid down in Gian Devi Anand for

striking down the unconstitutional part in Section

14(1)(e). We fail to see that how can Satyawati

Sharma judgment be said as per incuriam. The ratio of

Gian Devi Anand has neither been ignored nor any

contrary view has been taken by Satyawati Sharma. We

may observe that Gian Devi Anand in paragraphs 32 and

34 has noticed the provisions of Section 14(1)

specifically Section 14(1)(e) as existed in the Act,

1958. There was no challenge for the classification

in Section 14(1)(e) in the above case, hence neither

Gian Devi Anand was required to pronounce on the

classification in Section 14(1)(e) nor was required

to consider striking down of the provisions. In any

view of the matter, the observation in paragraph 39,

Gian Devi Ananad justified that there is ground to

seek eviction on bona fide need. Thus, Satyadevi

Sharma seeks support of what has been done in Gian

Devi Anand’s case.

31. Now, we come to three-Judge Bench judgment of
39

Gauri Shanker which according to appellant is binding

precedent and Satyawati Sharma having not noticed the

said, the judgment of Satyawati Sharma is per

incuriam. Gauri Shanker was a case where restriction

on rights of heir of statutory tenant of residential

premises placed by explanation to Section 2(l)(iii)

of Delhi Rent Control Act as introduced Act 18 of

1976 while no restrictions were placed on tenants of

commercial premises where challenge on the ground of

violation of Article 14 and 21 of the Constitution of

India. Gauri Shanker has noticed the Gian Devi Anand,

especially paragraphs 32 and 34. The ground of

distinction was repelled and following was laid down

in paragraph 12:

“12. It is evident from the above
decision of the Constitution Bench of
this Court that a commercial tenancy is
invaluable and has got distinct features
and characteristics of its own different
from that of a residential tenancy. None
of the peculiar or unique features
present in the case of commercial
tenancies exist in the case of
residential tenancies. In the above
background, if the legislature thought it
fit to afford a greater and extended
right or benefit to the heirs of the
statutory tenants of commercial premises
and not to extend such rights to the
40

heirs of the statutory tenants of
residential premises, we should say that
it only stands to reason and reckons the
stark realities of the prevailing
situation. The protection afforded by the
Rent Act to a tenant after the
termination of the tenancy and to the
heirs of the tenant is only a creation of
the Act and it is open to the Legislature
to make appropriate provisions in that
behalf. It can make suitable and
appropriate provisions in the Act with
regard to the nature and extent of the
benefit and protection to be so enjoyed
and the manner in which the same is to be
enjoyed. In the above perspective, we are
of the view that the provisions in
Section 2(l)(iii) of the Act, which seeks
to restrict or limit the right of the
heirs, insofar as the statutory tenants
of residential premises are concerned and
to the extent provided therein, are not
in any way discriminatory and do not
offend the guarantee under Article 14 of
the Constitution. This is not a case
where the residential tenancy and the
commercial tenancy are similarly placed.

They belong to two different categories
with distinct features and
characteristics of their own. No question
of discrimination arises. In this
context, it is only proper to quote the
following observations in Sakhawat Ali v.
State of Orissa, AIR 1955 SC 166, which
is apposite:

“… legislation enacted for the
achievement of a particular object
or purpose need not be all
embracing. It is for the
Legislature to determine what
categories it would embrace within
the scope of legislation and merely
41

because certain categories which
would stand on the same footing as
those which are covered by the
legislation are left out would not
render legislation which has been
enacted in any manner
discriminatory and violative of the
fundamental right guaranteed by
Article 14 of the Constitution.”
(emphasis supplied)

Nor are we impressed by the plea that
the right to shelter is a guarantee under
Article 21 of the Constitution of India
and so the abridgement or limitation
placed on the rights of the legal heirs
in the case of a statutory tenancy of
residential premises makes an inroad into
the rights of the tenant under Article 21
of the Constitution of India. We hold
that the statutory tenancies regarding
residential premises are distinct and
different from statutory tenancies
regarding commercial premises and the
limitations or the restrictions placed by
Section 2(l)(iii) of the Act on the
rights of the heirs of the statutory
tenants of residential premises are
reasonable, fair and just in all the
circumstances of the case. There is no
violation of the guarantee enshrined in
Article 14 or Article 21 of the
Constitution of India.”

32. Gauri Shanker upheld Section 2(l)(iii) of the Act

holding it not violating Article 14 and 21 of the

Constitution. The observations in the judgment with

respect to residential tenancy and commercial tenancy
42

were made in reference to heritability. In the above

context, this Court held that they belong to two

different categories with distinct features and

characteristics of their own. Gauri Shanker was not a

case in which provision of Section 14(1)(e) came for

consideration nor any observation has been made with

regard to ground of eviction available to landlord

with regard to commercial premises. Gauri Shanker had

dealt with entirely different provision, certain

limitation which was attached to residential premises

itself to heritability. The case of Gauri Shanker

being on different provision and premise, it cannot

be said that Gauri Shanker was a binding precedent to

be followed by Satyawati Sharma. The judgment of

Gauri Shanker being on different provision cannot be

said to be binding precedent in reference to what has

been dealt in Satyawati Sharma. We, thus, conclude

that the judgment of Satyawati Sharma cannot be held

to be per incuriam.

33. The next limb of attack of the appellant on

Satyawati Sharma is on the basis of non-consideration

of Section 25B of the Act, 1958. Section 25A to
43

Section 25C were inserted by Act 18 of 1976 w.e.f.

01.12.1975. Section 25 B provided for special

procedure for the disposal of applications for

eviction on the ground of bona fide requirement.

Learned counsel for the appellant has also relied on

Parliamentary debate on Delhi Rent Control Amendment

Bill, 1976. Learned counsel submits that Hon’ble

Minister of State in the Ministry of Works and

Housing on the Floor of the House stated the

following:

“An apprehension was also expressed that
commercial tenants would be evicted through
summary procedure. First of all, this
procedure is confined to residential
premises and secondly, it is applicable
only to Government servants and bona fide
necessities. Nothing else. It does not
apply to commercial premises and,
therefore, there is no question of tenants
being evicted from commercial premises.”

34. There cannot be any dispute to the submission of

the appellant that provision of Section 25B when it

was inserted, the procedure was confined to

residential premises as has been stated by the

Hon’ble Minister on the Floor of the House. There

being no ground available to landlord for eviction of
44

a tenant of commercial premises on bona fide need,

there was no contemplation for applying the procedure

under Section 25B.

35. The question is as to whether non-consideration

of Section 25B by Satyawati Sharma renders judgment

of Satyawati Sharma per incuriam. Satyawati Sharma

was considering the challenge to provisions of

Section 14(1)(e) in sofaras the ground of bona fide

need of landlord is also available for commercial

premises. Section 25B being related to only procedure

for considering the application under Section 14(1)

(e)has no bearing on the issue which had propped up

before this Court in Satyawati Sharma. Nothing in

Section 25B can be read which runs counter to what

has been laid down by Satyawati Sharma. Whether a

procedure giving more flexibility to tenants of

commercial premises should be provided for is another

subject but non-reference of Section 25B by Satyawati

Sharma does not render the judgment per incuriam.

36. We may also at this stage notice one submission

raised by the counsel for the respondent that

judgment of Satyawati Sharma has been affirmed by
45

three-Judge Bench judgment in Super Max International

Pvt. Ltd. (supra). The submission is countered by

the counsel for the appellant who contends that Super

Max was a case which was dealing entirely different

subject and it cannot be said that ratio of Satyawati

Sharma has been affirmed in Super Max.

37. We may now notice judgment of Super Max in some

detail. Super Max was a case where this Court had

occasion to consider Bombay Rents, Hotel and Lodging

House Rates Control Act, 1947. In the above case, the

Government of Maharashtra was in occupation of sixth

floor of a building which used for housing the Office

of the Registrar, Cooperative Societies. The

appellant suffered a decree of ejectment passed by

the Court of Small Causes. The decree came to be

challenged by civil revision application where the

High Court stayed the execution of the decree subject

to the condition that the shall deposit Rs.

5,40,000/- every month which amount was, however, not

allowed to be withdrawn by the appellant. In

paragraph 8 this Court noticed:

“8. Of late, orders are coming to this
46

Court where, in cases arising from
ejectment proceedings, the High Courts,
with a view to strike a balance between
the competing interests of the landlord
and the tenant, pass interim orders
asking the tenant to pay to the landlord
or deposit in Court, as monthly rent,
certain sum fixed by it (that, according
to the High Court, should be the
reasonable market rent for the tenanted
premises), far in excess of the existing
monthly rent.”

38. Three-Judge Bench in the above case noticed both

the judgments in Gian Devi Anand and Satyawati

Sharma. The judgment of Satyawati Sharma specifically

paragraphs 12, 29 and 32 have been considered in

paragraphs 67 to 70 of the judgment which are as

follows:

“67. The way this Court has been
looking at the relationship between the
landlord and the tenant in the past and
the shift in the Court’s approach in
recent times have been examined in some
detail in the decision in Satyawati
Sharma v. Union of India, (2008) 5 SCC

287. In that decision one of us (Singhvi,
J.) speaking for the Court referred to a
number of earlier decisions of the Court
and (in para 12 of the judgment) observed
as follows: (SCC pp. 304-05)

“12. Before proceeding further we
consider it necessary to observe
that there has been a definite
shift in the Court’s approach while
47

interpreting the rent control
legislations. An analysis of the
judgments of 1950s to early 1990s
would indicate that in majority of
cases the courts heavily leaned in
favour of an interpretation which
would benefit the tenant—Mohinder
Kumar v. State of Haryana, (1985)
4 SCC 221, Prabhakaran Nair v.

State of T.N. (1987) 4 SCC 238,
D.C. Bhatia v. Union of India,
(1995) 1 SCC 104 and C.N.

Rudramurthy v. K. Barkathulla
Khan, (1998) 8 SCC 275. In these
and other cases, the Court
consistently held that the
paramount object of every rent

control legislation is to provide
safeguards for tenants against
exploitation by landlords who seek
to take undue advantage of the
pressing need for accommodation of
a large number of people looking
for a house on rent for residence
or business in the background of
acute scarcity thereof. However, a
different trend is clearly
discernible in the later
judgments.”

68. The learned Judge then referred to
some later decisions and (in para 14 at
SCC p. 306 of the judgment) quoted a
passage from the decision in Joginder Pal
v. Naval Kishore Behal, (2002) 5 SCC 397
to the following effect: (Joginder Pal
case, SCC p. 404, para 9)
“14. … ‘9. … The courts have to
adopt a reasonable and balanced
approach while interpreting rent
control legislations starting with
an assumption that an equal
treatment has been meted out to
48

both the sections of the society.

In spite of the overall balance
tilting in favour of the tenants,
while interpreting such of the
provisions as to take care of the
interest of the landlord the court
should not hesitate in leaning in
favour of the landlords. Such
provisions are engrafted in rent
control legislations to take care
of those situations where the
landlords too are weak and feeble
and feel humble.’ ”
(emphasis in original)

69. Commenting upon the Full Bench
decision of the Delhi High Court that had
upheld the constitutional validity of
Section 14(1)(e) of the Delhi Rent
Control Act and that came under challenge
in Satyawati Sharma, Singhvi, J. (in para
29 of the judgment) observed as follows:
(SCC p. 318)

“29. … It is significant to note
that the Full Bench did not, at
all, advert to the question whether
the reason/cause which supplied
rationale to the classification
continued to subsist even after
lapse of 44 years and whether the
tenants of premises let for non-

residential purposes should
continue to avail the benefit of
implicit exemption from eviction in
the case of bona fide requirement
of the landlord despite see-saw
change in the housing scenario in
Delhi and substantial increase in
the availability of buildings and
premises which could be let for
non-residential or commercial
purposes.”
49

70. The decision in Satyawati Sharma then
referred to the doctrine of temporal
reasonableness and in para 32 observed as
follows: (SCC p. 320)

“32. It is trite to say that
legislation which may be quite
reasonable and rational at the time
of its enactment may with the lapse
of time and/or due to change of
circumstances become arbitrary,
unreasonable and violative of the
doctrine of equality and even if
the validity of such legislation
may have been upheld at a given
point of time, the Court may, in
subsequent litigation, strike down
the same if it is found that the
rationale of classification has
become non-existent.”

39. The ratio which was quoted by three-Judge Bench

from Satyawati Sharma was that which was laid down in

paragraph 32 of the Satyawati Sharma case. The ratio

in Satyawati Sharma that a Legislation which may be

quite reasonable and rational at the time of its

enactment may with the lapse of time and due to

change of circumstances become arbitrary,

unreasonable and violative of the doctrine of

equality has been affirmed which is clear from

paragraph 71 of the judgment. Paragraph 71 of three-
50

Judge Bench judgment is as follows:

“71. We reaffirm the views expressed
in Satyawati Sharma and emphasise the
need for a more balanced and objective
approach to the relationship between the
landlord and tenant. This is not to say
that the Court should lean in favour of
the landlord but merely that there is no
longer any room for the assumption that
all tenants, as a class, are in dire
circumstances and in desperate need of
the Court’s protection under all
circumstances. (The case of the present
appellant who is in occupation of an area
of 9000 sq ft in a building situate at
Fort, Mumbai on a rental of Rs 5236.58,
plus water charges at the rate of Rs
515.35 per month more than amply
highlights the point.)”

40. It is true that in the above three-Judge Bench

judgment, the Court was not directly concerned with

Section 14(1)(e) of the Delhi Rent Control Act. Thus,

three-Judge Bench had the basis of Satyawati Sharma

and on which basis Section 14(1)(e) was struck down

after working of the Act after more than 50 years.

We, thus, are of the view that three-Judge Bench in

Super Max approved limited ratio of Satyawati Sharma

as extracted by three-Judge Bench which fully

supports the submission that basis and reasoning on

which Satyawati Sharma struck down Section 14(1)(e)
51

partly stood on firm footing.

Question No.2

41. We having rejected the submission of learned

counsel for the appellant that the judgment of

Satyawati Sharma is per incuriam. Whether there is

any ground or basis on which the judgment of

Satyawati Sharma can be referred for re-consideration

is the next question to be answered.

42. Learned counsel for the appellant has not

referred to any judgment of this Court which has

sounded different note or which has taken a contrary

view to what has held in Satyawati Sharma case. What

is emphasised by the learned counsel for the

appellant is, that as the Legislature has never

intended to apply Section 14(1)(e)for commercial

premises which was clear from legislative intendment,

Satyawati Sharma could not have taken a view which is

contrary to the legislative intendment. By noticing

the three-Judge Bench judgment in Super Max, we have

already noticed that three-Bench has reaffirmed ratio

of Satyawati Sharma that the Legislation which was

quite reasonable and rational at the time of its
52

enactment may with the lapse of time and due to

change of circumstances become arbitrary,

unreasonable and violative of the doctrine of

equality. Various judgment pertaining to Rent Control

Legislations have been referred to and relied in

Satyawati Sharma itself. Satyawati Sharma also dealt

with the reasons which were given by the Delhi High

court in upholding Section 14(1)(e) in paragraph 31

of the judgment. Satyawati Sharma observed following

in paragraph 31:

“31. In H.C. Sharma vs. Life Insurance
Corporation of India (supra), the Division
Bench of the High Court, after taking
cognizance of the acute problem of housing
created due to partition of the country,
upheld the classification by observing that
the Government could legitimately restrict
the right of the landlord to recover
possession of only those premises which
were let for residential purposes. The
Court felt that if such restriction was not
imposed, those up-rooted from Pakistan may
not get settled in their life. As of now a
period of almost 50 years has elapsed from
the enactment of the 1958 Act. During this
long span of time much water has flown down
the Ganges. Those who came from West
Pakistan as refugees and even their next
generations have settled down in different
parts of the country, more particularly in
Punjab, Haryana, Delhi and surrounding
areas. They are occupying prime positions
in political and bureaucratic set up of the
Government and have earned huge wealth in
53

different trades, occupation, business and
similar ventures. Not only this, the
availability of buildings and premises
which can be let for non- residential or
commercial purposes has substantially
increased. Therefore, the reason/cause
which prompted the Division Bench of the
High Court to sustain the
differentiation/classification of the
premises with reference to the purpose of
their user, is no longer available for
negating the challenge to Section 14(1)

(e) on the ground of violation of Article
14 of the Constitution, and we cannot
uphold such arbitrary classification
ignoring the ratio of Harbilas Rai Bansal
vs. State of Punjab (supra), which was
reiterated in Joginder Pal vs. Naval
Kishore Behal(supra) and approved by three-
Judges Bench in Rakesh Vij vs. Dr. Raminder
Pal Singh Sethi (supra). In our considered
view, the discrimination which was latent
in Section 14(1)(e) at the time of
enactment of 1958 Act has, with the passage
of time (almost 50 years) has become so
pronounced that the impugned provision
cannot be treated intra vires Article 14 of
the Constitution by applying any rational
criteria.”

43. The judgment of this Court with regard to Rent

Control Legislation, namely, 1986 (3) SCC 385 and

Malpe Vishwanath Acharya and others vs. State of

Maharashtra and another, (1998) 2 SCC 1, has been

referred to and relied by Satyawati Sharma. In Malpe

Vishwanath Acharya, a three-Judge Bench of this Court

laid down following in paragraphs 8 and 31:
54

“8. There is considerable judicial
authority in support of the submission of
learned counsel for the appellants that
with the passage of time a legislation
which was justified when enacted may
become arbitrary and unreasonable with
the change in circumstances. In the State
of M.P. v. Bhopal Sugar Industries Ltd.,
AIR 1964 SC 1179, dealing with a question
whether geographical classification due
to historical reasons would be valid this
Court at SCR p. 853 observed as follows:

“Differential treatment arising out
of the application of the laws so
continued in different regions of
the same reorganised State, did not
therefore immediately attract the
clause of the Constitution
prohibiting discrimination. But by
the passage of time, considerations
of necessity and expediency would
be obliterated, and the grounds
which justified classification of
geographical regions for historical
reasons may cease to be valid. A
purely temporary provision which
because of compelling forces
justified differential treatment
when the Reorganisation Act was
enacted cannot obviously be
permitted to assume permanency, so
as to perpetuate that treatment
without a rational basis to support
it after the initial expediency and
necessity have disappeared.”

31. Taking all the facts and
circumstances into consideration we have
no doubt that the existing provisions of
the Bombay Rent Act relating to the
determination and fixation of the
standard rent can no longer be considered
55

to be reasonable. The said provisions
would have been struck down as having now
become unreasonable and arbitrary but we
think it is not necessary to strike down
the same in view of the fact that the
present extended period of the Bombay
Rent Act comes to an end on 31-3-1998.
The Government’s thinking reflected in
various documents itself shows that the
existing provisions have now become
unreasonable and, therefore, require
reconsideration. The new bill is under
consideration and we leave it to the
legislature to frame a just and fair law
keeping in view the interests of all
concerned and in particular the
resolution of the State Ministers for
Housing of 1992 and the National Model
Law which has been circulated by the
Central Government in 1992. We are not
expressing any opinion on the provisions
of the said Model Law but as the same has
been drafted and circulated amongst all
the States after due deliberation and
thought, there will, perhaps, have to be
very good and compelling reasons in
departing from the said Model Law. Mr
Nargolkar assured us that this Model Law
will be taken into consideration in the
framing of the proposed new Rent Control
Act.”

44. The above principles have been reiterated in

following judgments:

(i) Anuj Garg and Others Vs. Hotel Association of

India and Others, (2008) 3 SCC 1 reiterated the

principle that a statute although could have been
56

held to be a valid piece of legislation keeping in

view the societal condition of those times, but with

the changes occurring therein, such a law can also be

declared invalid. In Paragraph Nos. 7, 8 and 9,

following has been laid down:-

“7. The Act is a pre-constitutional
legislation. Although it is saved in terms
of Article 372 of the Constitution,
challenge to its validity on the touchstone
of Articles 14, 15 and 19 of the
Constitution of India, is permissible in
law. While embarking on the questions
raised, it may be pertinent to know that a
statute although could have been held to be
a valid piece of legislation keeping in
view the societal condition of those times,
but with the changes occurring therein both
in the domestic as also in international
arena, such a law can also be declared
invalid.

8. In John Vallamattom v. Union of India,
(2003) 6 SCC 611, this Court, while
referring to an amendment made in UK in
relation to a provision which was in pari
materia with Section 118 of the Indian
Succession Act, observed: (SCC p. 624, para

28)

“28. … The constitutionality of a
provision, it is trite, will have to
be judged keeping in view the
interpretative changes of the statute
affected by passage of time.”

Referring to the changing legal scenario
and having regard to the Declaration on the
Right to Development adopted by the World
57

Conference on Human Rights as also Article
18 of the United Nations Covenant on Civil
and Political Rights, 1966, it was held:
(John Vallamattom case, SCC p. 625, para

33)

“33. It is trite that having regard
to Article 13(1) of the Constitution,
the constitutionality of the impugned
legislation is required to be
considered on the basis of laws
existing on 26-1-1950, but while
doing so the court is not precluded
from taking into consideration the
subsequent events which have taken
place thereafter. It is further trite
that the law although may be
constitutional when enacted but with
passage of time the same may be held
to be unconstitutional in view of the
changed situation.”

9. Changed social psyche and expectations
are important factors to be considered in
the upkeep of law. Decision on relevance
will be more often a function of time we
are operating in. Primacy to such
transformation in constitutional rights
analysis would not be out of
place……………………………….

xxxxxxxxxxxxxxxxxx”

(ii) In Saradamani Kandappan Vs. S. Rajalakshmi

Ors., (2011) 12 SCC 18, Justice R.V. Raveendran

speaking for the Court reiterated the same principles

in paragraph Nos. 38 and 39 in the following words:-

“38. It is now well settled that laws,
58

which may be reasonable and valid when
made, can, with passage of time and
consequential change in circumstances,
become arbitrary and unreasonable. In
Rattan Arya v. State of T.N.7 this Court
held: (SCC pp. 389-90, para 4)
“4. … We must also observe here that
whatever justification there may have
been in 1973 when Section 30(ii) was
amended by imposing a ceiling of Rs
400 on rent payable by tenants of
residential buildings to entitle them
to seek the protection of the Act,
the passage of time has made the
ceiling utterly unreal. We are
entitled to take judicial notice of
the enormous multifold increase of
rents throughout the country,
particularly in urban areas. It is
common knowledge today that the
accommodation which one could have
possibly got for Rs 400 per month in
1973 will today cost at least five
times more. In these days of
universal, day-to-day escalation of
rentals any ceiling such as that
imposed by Section 30(ii) in 1973 can
only be considered to be totally
artificial and irrelevant today. As
held by this Court in Motor General
Traders v. State of A.P.8 a
provision which was perfectly valid
at the commencement of the Act could
be challenged later on the ground of
unconstitutionality and struck down
on that basis. What was once a
perfectly valid legislation, may in
course of time, become
discriminatory and liable to
challenge on the ground of its being
violative of Article 14.”
(emphasis supplied)
59

39. In Malpe Vishwanath Acharya v. State of
Maharashtra, (1998) 2 SCC 1, a three-Judge
Bench of this Court considered the validity
of determination of standard rent by
freezing or pegging down the rent as on 1-
9-1940 or as on the date of first letting,
under Sections 5(10)(b), 7, 9(2)(b) and
12(3) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947. This
Court held that the said process of
determination under the Act, which was
reasonable when the law was made, became
arbitrary and unreasonable in view of
constant escalation of prices due to
inflation and corresponding rise (sic fall)
in money value with the passage of time.
This Court held: (SCC pp. 22-23, paras 29

31)

“29. Insofar as social legislation,
like the Rent Control Act is
concerned, the law must strike a
balance between rival interests and
it should try to be just to all. The
law ought not to be unjust to one
and give a disproportionate benefit
or protection to another section of
the society. When there is shortage
of accommodation it is desirable,
nay, necessary that some protection
should be given to the tenants in
order to ensure that they are not
exploited. At the same time such a
law has to be revised periodically
so as to ensure that a
disproportionately larger benefit
than the one which was intended is
not given to the tenants…….

* * *
31. Taking all the facts and

circumstances into consideration we
have no doubt that the existing
provisions of the Bombay Rent Act
60

relating to the determination and
fixation of the standard rent can no
longer be considered to be
reasonable.”

It is relevant to note that Justice Raveendran

has placed reliance on earlier judgments of this

Court in Rattan Arya Vs. State of Tamil Nadu (supra)

and Malpe Vishwanath Acharya (supra), which judgments

have already been referred to and relied by this

Court in Satyawati Sharma’s case. Thus, the

proposition, which was laid down in Satyawati

Sharma’s case relying on above two judgments have

again been reiterated by this Court in Sardarmani

Kandappan (supra) in Paragraph Nos. 38 and 39, as

noted above.

(iii) The Constitution Bench of this Court in

Modern Dental College and Research Centre and Others

Vs. State of Madhya Pradesh and Others, (2016) 7 SCC

353, speaking through Dr. Justice A.K. Sikri in

paragraph Nos. 69 and 92, following has been

observed:-

“69. ………………………………………It is rightly said that
the law is not an Eden of concepts but
rather an everyday life of needs, interests
61

and the values that a given society seeks
to realise in a given time. The law is a
tool which is intended to provide solutions
for the problems of human being in a
society.

92. ………………………………Law is not static, it has
to change with changing times and changing
social/societal conditions.”

45. Much emphasis has been given by the learned

counsel for the appellant on the fact that various

tenants are tenants of small shops which are their

source of livelihood when application under 14(1)(e)

filed by the landlord on bona fide need, they are not

even entitled to contest the application by filing

written statement. They are obliged to obtain leave

to defend as per Section 25B which leave to defend is

rejected in most of the cases which causes great

hardship on the tenants. It is submitted that in so

far as applicability of the procedure under Section

25B is concerned, the issue needs to be revisited to

save the tenants from hardship. In our view this

cannot be a ground for referring the judgment of

Satyawati Sharma to larger Bench for reconsideration

of judgment of Satyawati Sharma. Satyawati Sharma
62

having not said about the procedure, there is nothing

in the judgment which needs to be revisited on the

above aspect. It is for the Legislature to take stock

of situation and if it so decides it can make

necessary changes in the procedure for considering

the application under Section 14(1)(e) with regard to

eviction of commercial tenants on the ground of bona

fide need of the land lord. We need to add nothing

more on the subject. In sofaras submission of the

learned counsel for the appellant is that under

Section 14(1)(e) in respect of commercial tenancy

leave to defend is generally rejected, it is suffice

to say that rejection of leave for a particular case

is matter to be examined in each case and no general

observation can be made in this regard.

46. There is one more aspect of the matter which

needs to be noted. We have already extracted

observation of Constitution Bench judgment in Gian

Devi Anand in paragraph 39 where the Constitution

Bench observed that bona fide need of the landlord

stands very much on the same footing in regard to

either class of premises, residential or commercial.
63

We, therefore, suggest that Legislature may consider

the advisability of making the bona fide requirement

of the landlord a ground of eviction in respect of

commercial premises as well. After more that a decade

of the above observation, a comprehensive

Legislation, namely, Delhi Rent Act, 1995 has been

enacted to provide for the regulation of rents,

repairs and maintenance and evictions relating to

premises and of rates of hotels and lodging houses in

the National Capital Territory of Delhi. In Act, 1995

the definition of premises as was contained in Act,

1958 remained same. With regard to protection of

tenant against eviction a new Section 22(r) which

provides as follows:

“Section 22(r) that the premises let
for residential or non-residential purposes
are required, whether in the same form or
after re-construction or re-building, by
the landlord for occupation for residential
or non-residential purpose for himself or
for any member of his family if he is the
owner thereof, or for any person for whose
benefit the premises are held and that the
landlord or such person has no other
reasonably suitable accommodation:

Provided that where the landlord has
acquired the premises by transfer, no
application for the recovery of possession
of such premises shall lie under this
64

clause unless a period of three years has
elapsed from the date of the acquisition:

Provided further that where an order
for the recovery of possession of any
premises is made on the ground specified in
this clause, the landlord shall be entitled
to obtain possession thereof on the
expiration of a period of six months in the
case of residential premises and one year
in the case of non-residential premises
from the date of passing of eviction
order.”

47. We may notice another three-Judge Bench judgment

of this Court, i.e., Subramanian Swamy and others vs.

Raju through Member, Juvenile Justice Board and

another, (2014) 8 SCC 390. This Court in the above

judgment laid down that reading down the provisions

of a statute cannot be resorted to when the meaning

thereof is plain and unambiguous and the legislative

intent is clear. We need to notice the issues raised

in the above case and the ratio of the judgment.

Above was a case where a lady of 23 years in age in

moving bus was brutally assaulted sexually and

physically. The lady succumbed to her injuries. Five

persons were apprehended in connection with the

crime. The respondent, Raju was below 18 years of age

on the date of commission of the crime. His case was
65

referred for inquiry to the Juvenile Justice Board.

The other accused were tried in a regular Sessions

Court and have been found guilty of the offences

under Section 376(2)(g) and Section 302 of the Penal

Code. Other accused were sentenced to death, appeal

against which was dismissed by the High court. The

petitioners had filed applications for impleadment

before the Juvenile Justice Board. The case of the

petitioners was that on a proper interpretation of

the Act (Juvenile Justice (Care and Protection of

Children) Act, 2000), the Juvenile(respondent) was

not entitled to the benefits under the Act but was

liable to be tried under the penal law of the land in

a regular criminal court along with the other

accused.

48. A writ petition was also filed in the High Court

praying for an authoritative interpretation of

Sections 2(l) and 2(k) of the Act that the criterion

of 18 years set out therein does not comprehend cases

of grave offences in general and of heinous crimes

against women in particular that shakes the root of

humanity in general. The writ petition was dismissed
66

by the High Court holding that against the order of

the Juvenile Justice Board the alternative remedies

were available under the Act which should be first

exhausted. The prayer for impleadment of the

petitioners was also rejected.

49. A Special Leave Petition against the above

judgment of the High Court as well as writ petition

was filed in this Court. The submissions of

petitioners were noted by this Court. In paragraphs

59 and 60 this Court noticed the submissions made on

behalf of the petitioner as below:

“59. Dr. Swamy at the outset has urged
that there is no attempt on his part to
challenge the constitutional validity of
the Act, particularly, the provisions
contained in Sections 2(k) and 2(l) of the
Act and what he seeks is a mere reading
down of the Act……

60. Dr. Swamy would urge that the relevant
provisions of the Act i.e. Sections 1(4),
2(k), 2(l) and 7 must be read to mean that
juveniles (children below the age of 18)
who are intellectually, emotionally and
mentally mature enough to understand the
implications of their acts and who have
committed serious crimes do not come under
the purview of the Act. Such juveniles are
liable to be dealt with under the penal law
of the country and by the regular hierarchy
of courts under the criminal justice system
administered in India……”
67

50. This Court in the background of the above

submissions laid down following in paragraph 61:

“61. Reading down the provisions of a
statute cannot be resorted to when the
meaning thereof is plain and unambiguous
and the legislative intent is clear. The
fundamental principle of the “reading down”
doctrine can be summarized as follows.
Courts must read the legislation literally
in the first instance. If on such reading
and understanding the vice of
unconstitutionality is attracted, the
courts must explore whether there has been
an unintended legislative omission. If such
an intendment can be reasonably implied
without undertaking what, unmistakably,
would be a legislative exercise, the Act
may be read down to save it from
unconstitutionality. The above is a fairly
well established and well accepted
principle of interpretation which having
been reiterated by this Court time and
again would obviate the necessity of any
recall of the huge number of precedents
available except, perhaps, the view of
Sawant, J. (majority view) in Delhi
Transport Corporation v. D.T.C. Mazdoor
Congress and Ors. 1991 Supp. (1) SCC 600
which succinctly sums up the position is,
therefore, extracted below: (SCC pp.728-29,
para 255)

“255. It is thus clear that the
doctrine of reading down or of
recasting the statute can be applied
in limited situations. It is
essentially used, firstly, for saving
a statute from being struck down on
account of its unconstitutionality. It
is an extension of the principle that
when two interpretations are
68

possible–one rendering it
constitutional and the other making it
unconstitutional, the former should be
preferred. The unconstitutionality may
spring from either the incompetence of
the legislature to enact the statute
or from its violation of any of the
provisions of the Constitution. The
second situation which summons its aid
is where the provisions of the statute
are vague and ambiguous and it is
possible to gather the intentions of
the legislature from the object of the
statute, the context in which the
provision occurs and the purpose for
which it is made. However, when the
provision is cast in a definite and
unambiguous language and its intention
is clear, it is not permissible either
to mend or bend it even if such
recasting is in accord with good
reason and conscience. In such
circumstances, it is not possible for
the court to remake the statute. Its
only duty is to strike it down and
leave it to the legislature if it so
desires, to amend it. What is further,
if the remaking of the statute by the
courts is to lead to its distortion
that course is to be scrupulously
avoided. One of the situations further
where the doctrine can never be called
into play is where the statute
requires extensive additions and
deletions. Not only it is no part of
the court’s duty to undertake such
exercise, but it is beyond its
jurisdiction to do so.””

51. Rejecting the submission of the petitioner to

read down the statute following was held in paragraph
69

64:

“64.If the provisions of the Act clearly
indicate the legislative intent in the
light of the country’s international
commitments and the same is in conformity
with the constitutional requirements, it is
not necessary for the Court to understand
the legislation in any other manner. In
fact, if the Act is plainly read and
understood, which we must do, the resultant
effect thereof is wholly consistent with
Article 14. The Act, therefore, need not be
read down, as suggested, to save it from
the vice of unconstitutionality for such
unconstitutionality does not exist.”

52. Now reverting to the judgment of this Court in

Satyawati Sharma (supra), in the said judgment this

Court did not read down the provision of Section

14(1)(e) of the Delhi Rent Control Act. This Court

held that Section 14(1)(e) is not intra vires the

doctrine of equality enshrined in Article 14 of the

Constitution. In paragraph 31 following was laid

down:

“31………In our considered view, the
discrimination which was latent in Section
14(1)(e) at the time of enactment of the
1958 Act has, with the passage of time
(almost 50 years), become so pronounced
that the impugned provision cannot be
treated intra vires Article 14 of the
Constitution by applying any rational
criteria.”
70

53. After considering all aspects of the matter, this

Court in Satyawati Sharma (AIR 2008 SC 3148) held

that Section 14(1)(e) is violative of the doctrine of

equality embodied in Article 14 of the Constitution.

This Court, thus, struck down the discriminatory

portion of Section 14(1)(e). In paragraphs 38 and 39

following was laid down:

“38. In view of the above discussion, we
hold that Section 14(1)(e) of the 1958 Act
is violative of the doctrine of equality
embodied in Article 14 of the Constitution
of India insofar as it discriminates
between the premises let for residential
and non-residential purposes when the same
are required bona fide by the landlord for
occupation for himself or for any member of
his family dependent on him and restricts
the latter’s right to seek eviction of the
tenant from the premises let for
residential purposes only.”

39. However, the aforesaid declaration
should not be misunderstood as total
striking down of Section 14(1)(e) of the
1958 Act because it is neither the pleaded
case of the parties nor the learned Counsel
argued that Section 14(1)(e) is
unconstitutional in its entirety and we
feel that ends of justice will be met by
striking down the discriminatory portion of
Section 14(1)(e)…”

54. The judgment of Satyawati Sharma was, thus, not a
71

case of reading down of Section 14(1)(e) rather it

was a case where portion of Section 14(1)(e) was

struck down as discriminatory and violative of

Article 14 of the Constitution. Thus, three-Judge

Bench judgment in Subramanian Swamy and others

(supra) is clearly distinguishable and does not

affect the ratio laid down by two-Judge Bench

judgment in Satyawati Sharma case.

55. The Legislature itself notices the need for

providing a ground for eviction to landlord on bona

fide need with regard to residential as well as non-

residential premises. Thus, what was said in Gian

Devi Anand in paragraph 39 was duly accepted by

Legislature. It is another matter that Delhi Rent

Act, 1995 even though it received assent of the

President could not be enforced. Section 1(3)

provided that it shall come into force on such date

as the Central Government may, by notification in the

Official Gazette, appoint. Central Government did not

issue any notification in the Official Gazette for

enforcement of the Act. Writ Petition was filed in

Delhi High Court for issuance of mandamus to Central
72

Government to enforce Act, 1995 which was dismissed.

From the above, it is clear that what was observed by

Gian Devi Anand was also accepted by the Legislature

in providing for eviction from both the residential

and non-residential premises on the ground of bona

fide need in Act, 1995. Although, said Act could not

be enforced, the Legislation is complete when the Act

is passed by the Legislature and receives the assent

of the President.

56. A Constitution Bench in State of Kerala and

others vs. Mar Appraem Kuri Company Limited and

another, (2012) 7 SCC 106, laid down following in

paragraphs 50 and 51:

“50. Broadly speaking, law-making is
exclusively the function of the
legislatures (see Articles 79 and 168).
The President and the Governor are a part
of the Union or the legislatures of the
States. As far as Parliament is
concerned, the legislative process is
complete as soon as the procedure
prescribed by Article 107 of the
Constitution and connected provisions are
followed and the Bill passed by both the
Houses of Parliament has received the
assent of the President under Article

111. Similarly, a State legislation
becomes an Act as soon as a Bill has been
passed by the State Legislature and it
has received the assent of the Governor
73

in accordance with Article 200. It is
only in the situation contemplated by
Article 254(2) that a State legislation
is required to be reserved for
consideration and assent by the
President. Thus, irrespective of the date
of enforcement of a parliamentary or
State enactment, a Bill becomes an Act
and comes on the statute book immediately
on receiving the assent of the President
or the Governor, as the case may be,
which assent has got to be published in
the Official Gazette.

51. The legislature, in exercise of its
legislative power, may either enforce an
Act, which has been passed and which has
received the assent of the President or
the Governor, as the case may be, from a
specified date or leave it to some
designated authority to fix a date for
its enforcement. Such legislations are
conditional legislations as in such cases
no part of the legislative function is
left unexercised. In such legislations,
merely because the legislature has
postponed the enforcement of the Act, it
does not mean that the law has not been
made.”

57. The above authority duly supports our view that

law has been made by the Parliament in enacting Act,

1995 which accepts the suggestion of Constitution

Bench in Gian Devi Anand and hence what has been held

by Satyawati Sharma was felt both by this Court and

Legislature. We, thus, do not find any good ground to
74

refer the judgment of this Court in Satyawati Sharma

for reconsideration by a larger Bench. We, thus,

reject the submission of the learned counsel for the

appellant that Satyawati Sharma needs to be referred

to a larger Bench for reconsideration.

58. We having decided the above issue let the appeals

be now listed for consideration on merits.

………………….J.

( ASHOK BHUSHAN )

………………….J.

( K.M. JOSEPH )
New Delhi,
August 05, 2019

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