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1983 Supreme(Bom) 65
IN THE HIGH COURT OF BOMBAY
P.S. Shah S.N. Khatri, JJ.
Vasantkumar Radhakisan Vora.... Petitioner.
Versus
Board of Trustees of the Port of Bombay.... Respondents.
AND
Chabildas Ratilal Shah.... Petitioner.
Versus
Kirit J. Sheth others.... Respondents.
AND
Bhau Soma Yeram, .... Petitioner.
Versus
Devji Shivram Sawant.... Respondent.
Writ Petition No. 3144 of 1981, with Writ Petition No. 2754 of 1982 Civil Application No. 2728 of 1982, in Writ Petition No. 2404 of 1982, decided on 17/18 25-2-1983.
Advocates appeared :
In W.P. No. 3144 of 1981.
H.C. Turana, for petitioner.
M.O. Chinoy with W.J. Makhija i/b. Mulla Mulla and C.B.C., for respondents.
In W.P. No. 2754 of 1983.
C.D. Shenoy with Mr. B.K. Raje, for petitioners.
D.P. Hegde, A.G.P. with S.H. Kapadia, for respondent Nos. 1 to 3.
In C.A. No. 2728 of 1982.
R.M. Agrawal, for petitioner.
The classification of occupants to claim protection of Rent Act and those who do not is a valid classification.
Headnote:
The Bombay Presidency Small Cause Courts Act, 1976 (Maharashtra Act No. XIX of 1976) - Sections 2, 3, 4, 42-A, 45, 46, 47 and 49 - Validity - Whether ultra vires as being violative of Article 14 of the Constitution of India? - Held, no.
Fact of the Case:
The petitioners challenged the validity of the provisions of sections 2, 3 and 4 of the Maharashtra Act No. LXI of 1963 whereby section 42-A was inserted in Chapter VII of the Act and sections 45, 46 and 47 of the Act were deleted and section 47 thereof was amended and also the provisions sub-section (2) of section 46 of the Act as amended by Maharashtra Act XIX of 1976 as being violative of Article 14 of the Constitution of India.
Finding of the Court:
The Court held that the provisions of sections 2, 3 and 4 of the Maharashtra Act No. LXI of 1963 whereby section 42-A was inserted in Chapter VII of the Act and sections 45, 46 and 47 of the Act were deleted and section 47 thereof was amended are not ultra vires as being violative of Article 14 of the Constitution of India. The Court further held that the provisions sub-section (2) of section 46 of the Act as amended by Maharashtra Act XIX of 1976 are not ultra vires as being violative of Article of Article 14 of the Constitution of India.
Issues: 1) Whether the provisions of sections 2, 3 and 4 of the Maharashtra Act No. LXI of 1963 whereby section 42-A was inserted in Chapter VII of the Act and sections 45, 46 and 47 of the Act were deleted and section 47 thereof was amended are ultra vires as being violative of Article 14 of the Constitution of India? 2) Whether the provisions sub-section (2) of section 46 of the Act as amended by Maharashtra Act XIX of 1976 are ultra vires as being violative of Article of Article 14 of the Constitution of India?
Ratio Decidendi: 1) The classification of occupants to claim protection of Rent Act and those who do not is a valid classification. 2) Occupants raising such a plea of protection of Rent Act had the right of appeal under section 42-A, for those who do not raise such a plea also could file a substantive suit and thus avail of the remedy of appeal procedure under the ordinary law. 3) After the amendment of 1976 the pending proceedings are saved under section 46(2) and they are governed by the per-amendment provisions. 4) The classification of the basis of the pending proceedings is legal, valid and permissible and is not discriminatory or violative of Article 14. 5) Further, in view of the provisions of old section 49 which governs the pending proceedings, the right to file a substantive suit is saved and though it may be that such a suit is required to be filed in the Small Causes Court under the new section 41, all the occupants are treated a like since each one of them gets the advantage of the appeal and other procedure under section 42 subject to the limitations mentioned therein.
Final Decision: The Court held that the provisions of sections 2, 3 and 4 of the Maharashtra Act No. LXI of 1963 whereby section 42-A was inserted in Chapter VII of the Act and sections 45, 46 and 47 of the Act were deleted and section 47 thereof was amended are not ultra vires as being violative of Article 14 of the Constitution of India. The Court further held that the provisions sub-section (2) of section 46 of the Act as amended by Maharashtra Act XIX of 1976 are not ultra vires as being violative of Article of Article 14 of the Constitution of India.
P.S. SHAH, J.:---These matters are before us on a reference made by Masodkar, J., sitting single by his order dated October 26, 1982. Masodkar, J., formulated the following two questions for the consideration of a Division Bench :
1) Whether, by interpreting the provisions of section 46(2) of the Act No. XIX of 1976, all the proceedings pending when Chapter VII was enacted by that Act and it came into force would be governed by the amended provisions of Chapter VII or otherwise whether the provisions of section 46(2) maintaining two different procedures would be violative of Article 14 of the Constitution of India?
2) Whether, in view of the substitution of Chapter VII by Maharashtra Act No. XIX of 1976, the provisions of section 41 read with section 45 are discriminatory being summary and onerous and as such violative of Article 14 of the Constitution of India?
2. A few relevant facts in so far as they are material for deciding the reference need to be stated. In Writ Petition No. 3144 of 1981 the respondents are the Board of Trustees of the Port of Bombay. They owned a property bearing old R.R. No. 941 situated at Jackeria Bunder Road, Bombay. On the said plot of land a building consisting of five rooms belonging to the Port Trust stands. The petitioner, Vasantkumar Radhakisan Vora, is in possession of one of the rooms bearing Room No. 2 in the said building. After giving a notice to quit dated January 22, 1975, on March 19, 1976, the respondents-Port Trust filed an ejectment application bearing No. 39/194/E of 1976 under section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter called 'the Act'). In respect of another tenant who is in possession of Room No. 1, the respondents gave a notice to quite dated January 22, 1975, and thereafter on April 5, 1976, filed an ejetment application bearing No. 28/166/E of 1976 under section 41 of the Act. Then is respect of the third tenant, Sohanlal Mathurmal Chavan, who is in possession of Room No. 3 the respondents served a notice to quit dated November 23, 1977, (which was the second notice since there was an earlier notice to quit dated July 18, 1975 was served on him) and after serving this notice, the respondents filed a suit bearing No. L.E. and C. Suit No. 228/313 of 1978 under section 41 of the newly-substituted Chapter VII of the Act. As a decree in favour of the Port Trust was passed by the Court of Small Causes the said tenant, Sohanlal, preferred an appeal under section 42 of the Act as amended and the said appeal is pending. In the case of the fourth tenant, Ramsevak Budhai Chaurasis, who is in possession of Room No. 5, the respondents served on him a notice to quit on January 22, 1975, and thereafter filed Suit No. L.E. and C. Suit No. 188/497 of 1976 on November 16, 1976. In this also a decree in favour of the respondents for possession having been passed, the said tenant has preferred an appeal under section 42 of the Act and is pending in the Court of Small Causes.
3. Writ Petition No. 2754 of 1982 relates to the proceedings intiated under section 41 of the which was filed on July 22, 1976, on the basis of a notice said to have been given by the respondent therein on February 16, 1961. It is sufficient to state at this stage that the premises in this petition are owned by a private individual while as mentioned earlier the premises in Writ Petition No. 3144 of 1981 belong to a public authority---the Port Trust. It is not necessary to state the facts of Review Application No. 2728 of 1982 as the point Involved is the same.
4. After hearing the Counsel on both the sides, the learned Judge was of the view that the two questions which arose in these matters were of general importance and affected a large number of cases, he directed that the matters be placed before a Division Bench. This is how these matters have come before us.
5. After hearing the Counsel appearing for the parties, we thought it fit to recast the two questions referred to for our consid
