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DATE OF JUDGMENT: 10th December, 2019

Rajendra Diwan V. Pradeep Kumar Ranibala & Anr.

The respondent-landlord filed an application for eviction of the appellant tenant u/s 12 of the Rent Control Act which was accordingly allowed by the Rent Control Authority on 14.09.2015. An appeal to the Rent Control Tribunal at Raipur, confirmed the order on 1.12.2015. Section 13(2) allows the aggrieved party to prefer appeal to the Supreme Court. A bench of the SC expressed serious doubts about the maintainability of the appeal as the state legislature lacked legislative competence. On 19.4.2017 another bench of this court heard the Advocate General on behalf of the State of Chhattisgarh who argued that the Rent Control Act received the assent of the President of India and thus S.13(2) receives protection by A.138(2) & A.200 of the Constitution of India. After hearing this argument the bench referred the appeal to the CJI for assignment to a Constitutional Bench of this Court.

The issue before this court is, whether S.13(2) of the Rent Control Act is ultra vires of the Constitution of India by reason of lack of legislative competence of the Chhattisgarh state legislature competence.

The counsel on behalf of the appellant argued that the Rent Control Act was enacted in exercise of legislative powers under Entry 18 of List II. Entry 77 of List I confer exclusive powers to the Union Legislature to legislate on the constitution, organization, jurisdiction and powers of the SC whereas Entry 65 of the State List enables state to legislate on jurisdiction and powers of all courts except the SC. S.13(2) of the rent Control Act confers appellate jurisdiction to the SC which it already possess u/a 136 of the Constitution. The scope of Entry 77 cannot be widened to include the appellate jurisdiction of the Supreme Court. A.138(1) provides the SC with further jurisdiction and powers as the Parliament may confer. A.138(2) provides the SC by the Government of India and any state. Also S.13(2) of the Rent Control Act is in consonance with A.138 read with Art.200 of the Constitution of India. The law which curtails powers of the HC may be validated by President assent. A.138(2) read with A.200 says that the state can make laws conferring appellate jurisdiction on the SC. In this case the conditions to both the provisions have been complied with.

Samsher Singh V. State of Punjab According to A.74 of the Constitution, the President has to act according to the aid and advice of the Council of Ministers. This amounts to compliance with A.138(2) of the Constitution.

 Puthiyadath Jayamathy Avva and Ors. vs. K.J. Naga Kumar and Ors. “…if the President assents to a State law which has been 17 reserved for consideration under Article 200, it will prevail notwithstanding its repugnancy to an earlier law of the Union. Thus, even if there is repugnancy, the law made by the Legislature of the State, if it was reserved for consideration of the President and has received his assent, will prevail in the State. Thus, from the Act XXX of 1976, it can be seen that it was reserved for the consideration of the President and the President has given his assent on 10-8-1976. Therefore, the argument of the learned Counsel for the appellants that the State enactment cannot override the Central enactment cannot be accepted as correct…”

The counsel conclusively said that in case of consistency between the provisions of the Constitution and the provisions of statutory enactment, the two must be harmoniously constructed. The Rent Control Act does not talk about the power of the High Courts, of the judicial review under A.226 & 227 of the Constitution of India. S.13(2) confers appellate jurisdiction on the SC which is not prohibited under the Constitution. A.136 provides appeal to the SC against the order of any court or tribunal. S.13(2) is only in consonance with the powers of the SC u/a.136.

The Attorney General for India argued that S.13(2) provides direct appeal to the SC from order passed by the Rent Control Tribunal which is unconstitutional because it is beyond the legislative competence of the state legislature of Chhattisgarh. This is evident from reading Entry 77 List I, Entry 65 List II and Entry 46 List III of the Constitution. Entry 77 List I read with A.146(1) confers the Parliament with exclusive jurisdiction to legislate on the jurisdiction and powers of the SC. Entry 65 List II, Entry 46 List III prohibit a state legislature to legislate on the jurisdiction of the SC. Only the Parliament can legislate regards to the SC and the provisions are A.124(1), 125(1), 125(2), 133(3), 134(2), 135(1), 137, 138(1), 138(2), 139, 140, 145(1), 262 and 348(1). The fact that the Rent Control Act has been reserved for the assent of the President of India u/a 200 would not alter the legislative competence of the State Legislature.

 K.K. Poonacha vs. State of Karnataka and Ors interprets A.31(3) which pertained to the compulsory acquisition of the property.

H.S. Yadav vs. Shakuntala Devi Parakh striking down S.13(2) of the act the court held that the act is beyond the constitution and the scope of the State Legislature.

Parliament and the State Legislature derive their power u/a 245(1) of the Constitution. Parliament can make laws for the whole or part of India whereas State can make laws only for the State. A.246 confers exclusive power to Parliament to legislate on matters in the Union List. It has power to make laws in matters in List III. State Legislature has power to make laws in matters in State List. The SC established u/a 124 of the Constitution, derives its power from A.131&145. There is no provision in the constitution to provide direct appeal to the SC from order of a Tribunal.

United Provinces vs. Atika Begum The legislative power conferred by an entry is extended to all ancillary matters. Here S.13(2) is not ancillary or incidental power.

  1. Natarajan vs. B. K. Subba Rao A.136 confers discretionary power on the SC to interfere in appropriate cases in spite of other provisions of appeal.

Dhakeshwari Cotton Mills Ltd. vs. Commissioner of Income Tax, West Bengal  Even when conclusive power is given to a court, the SC cannot be restricted from exercise of its jurisdiction under A.136 of the Constitution.

L Chandra Kumar vs. Union of India and others The State Legislature is competent to enact laws which affect the jurisdiction and powers of the HC

The court here observed that the appellate is right in arguing that the HC has power under A.226&227 of the Constitution. The Governor is obliged to reserve bills for the consideration of the President. There is no inherent right of appeal u/s 13(2) of the act. Under A. 246(1)&(2) the Parliament is competent to make laws enlarging the jurisdiction of the SC wrt any matters in List I&III. The Parliament u/a 248 have exclusive power to make laws wrt matters not enumerated in List II&III.

“The argument of Learned Counsel for the appellant that Article 138(1) and/or Entry 77 of the Union List only takes within its ambit, the Original jurisdiction of the Supreme Court, and not its appellate jurisdiction, is fallacious and without basis. There is no reason to restrict the scope of Article 138(1) or of Entry 77 of the Union List in the Schedule to the Constitution artificially”

It is unexceptionable that when a State Law gets assent from the president that prevails in the state. President’s assent cannot validate a statutory provision which the legislature was incompetent to enact.

“ A law made under Article 323B (1) of the Constitution may exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 with respect to the matters falling within the jurisdiction of the said Tribunals. A provision which mandates the Supreme Court to consider an appeal is clearly beyond the legislative competence of the State Legislature, as argued by the learned Attorney General. Article 200 as observed above does not and cannot validate an ultra vires enactment, which the concerned Legislature lacked competence to enact”

A.138(2) of the Constitution provides additional powers and jurisdiction to the SC relation to matters of Government of India and state by special agreements. Also the court fully agreed the judgment of H.S.Yadav which declared S.13(2) ultra vires the constitution and beyond the scope of the State legislature. The court also agreed the judgment of L.Chandra Kumar which constituted the Tribunals under A.323A & 323B of the Constitution.

“In L Chandrakumar (supra) the Supreme Court in effect held that the power of the High Court under Article 226/227 of the Constitution, being an inviolable basic feature of the Constitution such power cannot be abrogated by statutory enactment or for that matter even by constitutional amendment”The court conclusively decided that the State Legislature lacked legislative competence to enact the Rent Control Act. Therefore the court declared S.13(2) ultra vires the Constitution of India and it is null and void and has no effect.

Priyadharshini R

full judgment download here: rajendra diwan



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