Rajendra Diwan v. Pradeep Kumar Ranibala & Anr.
INDIRA BANERJEE, J.
1. This appeal, purportedly under Section 13(2) of the
Chhattisgarh Rent Control Act, 2011, hereinafter referre d to as the
“Rent Control Act”, is against an order dated 1.12.2015 of the Rent
Control Tribunal at Raipur, confirming an order dated 14.09.2015 passed
by the Rent Control Authority, whereby an application filed by the
respondent-landlord for eviction of the appellant tenant under Sec tion
12 of the Rent Control Act has been allowed.
2. Section 13(2) of the Rent Control Act provides:-
(1) Notwithstanding anything to the contrary contained in
this Act, a landlord and/or tenant aggrieved by any order
of the Rent Controller shall have the right to appeal in
the prescribed manner within the prescribed time to the
Rent Control Tribunal.
(2) Appeal against an order of the Rent Control Tribunal
shall lie with the Supreme Court.
3. By an order dated 18.4.2016, a Bench of this Court expressed
serious doubts about the maintainability of the appeal, obs erving that
the State of Chhattishgarh prima facie lacked legislative competence
to enact law providing for statutory appeals directly to the Supreme
Court, from the orders of a Tribunal. Notice was, accordingly, directed
to be issued to the Attorney General for India and the Advocate General
for the State of Chhattisgarh.
4. On 19.4.2017, another Bench of this Court heard amongst
others, the Advocate General for the State of Chhat tisgarh. The
Advocate General, inter alia, argued that the Rent Control Act having
received the assent of the President of India, Section 13(2) thereof was
protected by Article 138(2) read with Article 200 of the Constitution of
India and was valid and enforceable.
5. After hearing Counsel and the learned Advocate General for
the State of Chhattisgarh, the Bench was of the view that the appeal
involved a substantial question of law as to the interpretat ion of the
Constitution, and accordingly referred the appeal to the Chief Justice
of India, for assignment to a Constitution Bench of this Court, in terms
of Article 145(3) of the Constitution. The Chief Justice has referred
the appeal to this Bench.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
6. The question which requires to be determined by this Bench
is, whether Section 13(2) of the Rent Control Act is ult ra vires the
Constitution of India, by reason of lack of legislative compe tence of
the Chhattisgarh State legislature to enact the provision.
7. Before dealing with the arguments advanced befor e this
Bench, the relevant provisions of the Constitution of India are set out
hereinbelow for convenience:-
“124. Establishment and constitution of Supreme Court
(1)There shall be a Supreme Court of India consistin g of a
Chief Justice of India and, until Parliament by law prescr ibes
a larger number, of not more than seven other Judges
…….
xxx xxx xxx
130. Seat of Supreme Court. - The Supreme Court shall sit
in Delhi or in such other place or places, as the Chief J ustice
of India may, with the approval of the President, f rom time
to time, appoint.
131: Original jurisdiction of the Supreme Court
Subject to the provisions of this Constitution, the Supreme
Court shall, to the exclusion of any other court, h ave
original jurisdiction in any dispute –
(a) between the Government of India and one or more
States; or
(b) between the Government of India and any State or
States on one side and one or more other States on
the other; or
(c) between two or more States, if and in so far as the
dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right
depends:
Provided that the said jurisdiction shall not exten d to a
dispute arising out of any treaty, agreement, coven ant,
engagement, sanad or other similar instrument which, having
been entered into or executed before the commenceme nt of
1103
this Constitution, continues in operation after suc h
commencement, or which provides that the said jurisdi ction
shall not extend to such a dispute.
132: Appellate jurisdiction of Supreme Court in appeals f rom
High Courts in certain cases.-
(1) An appeal shall lie to the Supreme Court from an y
judgement, decree or final order of a High Court in
the territory of India, whether in a civil, criminal or
other proceeding, if the High Court certifies under
article 134A that the case involves a substantial
question of law as to the interpretation of this
Constitution.
(2) ……. omitted w.e.f. 1.8.1979
(3) Where such a certificate is given, any party in the
case may appeal to the Supreme Court on the ground
that any such question as aforesaid has been
wrongly decided. Explanation.- For the purpose of
this article, the expression “final order” includes an
order deciding an issue which, if decided in favour
of the appellant, would be sufficient for the final
disposal of the case.
133: Appellate jurisdiction of Supreme Court in appeals f rom
High Courts in regard to civil matters.-
(1) An appeal shall lie to the Supreme Court from a ny
judgment, decree or final order in a civil proceedi ng of a
High Court in the territory of India if the High Court certi fies
under under Article 134A
(a) that the case involves a substantial question of law
of general importance; and
(b) that in the opinion of the High Court the said
question needs to be decided by the Supreme Court.
(2) Notwithstanding anything in article 132, any pa rty
appealing to the Supreme Court under clause (1) may urge
as one of the grounds in such appeal that a substan tial
question of law as to the interpretation of this Co nstitution
has been wrongly decided.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
(3) Notwithstanding anything in this article, no appeal shall,
unless Parliament by law otherwise provides, lie to the
Supreme Court from the judgement, decree or final ord er of
one Judge of a High Court.
134: Appellate jurisdiction of Supreme Court in reg ard to
criminal matters.-
(1) An appeal shall lie to the Supreme Court from a ny
judgement, final order or sentence in a criminal proce eding
of a High Court in the territory of India if the High Court –
(a) has on appeal reversed an order of acquittal of an
accused person and sentenced him to death; or (b) h as
withdrawn for trial before itself any case from any court
subordinate to its authority and has in such trial c onvicted
the accused person and sentenced him to death; or ( c)
certifies under article 134A that the case is a fit one for
appeal to the Supreme Court:
Provided that an appeal under sub-clause (c) shall lie subject
to such provisions as may be made in that behalf un der
clause (1) of article 145 and to such conditions as the H igh
Court may establish or require.
(2) Parliament may by law confer on the Supreme Court any
further powers to entertain and hear appeals from a ny
judgment, final order or sentence in a criminal pro ceeding
of a High Court in the territory of India subject t o such
conditions and limitations as may be specified in su ch law.
134A: Certificate for appeal to the Supreme Court.-
Every High Court, passing or making a judgment, dec ree,
final order, or sentence, referred to in clause (1) of article
132 or clause (1) of article 133, or clause (1) of article
134. –
(a) may, if it deems fit so to do, on its own motio n; and
(b) shall, if an oral application is made, by or on behal f of
the party aggrieved, immediately after the passing or making
of such judgment, decree, final order or sentence,
determine, as soon as may be after such passing or makin g,
the question whether a certificate of the nature re ferred to
1105
in clause (1) of article 132, or clause (1) of arti cle 133 or,
as the case may be, sub-clause (c) of clause (1) of article
134, may be given in respect of that case.
135: Jurisdiction and powers of the Federal Court u nder
existing law to be exercisable by the Supreme Court.-
Until Parliament by law otherwise provides, the Sup reme
Court shall also have jurisdiction and powers with r espect
to any matter to which the provisions of article 133 or arti cle
134 do not apply if jurisdiction and powers in rela tion to
that matter were exercisable by the Federal Court immediat ely
before the commencement of this Constitution under any
existing law.
136: Special leave to appeal by the Supreme Court.-
(1) Notwithstanding anything in this Chapter, the
Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree,
determination, sentence or order in any cause or
matter passed or made by any court or tribunal in
the territory of India.
(2) Nothing in clause (1) shall apply to any judgmen t,
determination, sentence or order passed or made by
any court or tribunal constituted by or under any
law relating to the Armed Forces.
137: Review of judgments or orders by the Supreme
Court.-
Subject to the provisions of any law made by Parliamen t or
any rules made under article 145, the Supreme Court shall
have power to review any judgment pronounced or ord er
made by it.
138: Enlargement of the jurisdiction of the Supreme
Court.-
(1) The Supreme Court shall have such further
jurisdiction and powers with respect to any of the
matters in the Union List as Parliament may by law
confer.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
(2) The Supreme Court shall have such further
jurisdiction and powers with respect to any matter
as the Government of India and the Government of
any State may by special agreement confer, if
Parliament by law provides for the exercise of such
jurisdiction and powers by the Supreme Court.
139: Conferment on the Supreme Court of powers to iss ue
certain writs.-
Parliament may by law confer on the Supreme Court p ower
to issue directions, orders or writs, including wri ts in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for any pu rposes
other than those mentioned in clause (2) of article 32.
139A: Transfer of certain cases.-
(1) Where cases involving the same or substantially the same
questions of law are pending before the Supreme Court an d
one or more High Courts or before two or more High Courts
and the Supreme Court is satisfied on its own motion or on
an application made by the Attorney-General of India or b y
a party to any such case that such questions are substa ntial
questions of general importance, the Supreme Court may
withdraw the case or cases pending before the High C ourt
or the High Courts and dispose of all the cases itse lf:
Provided that the Supreme Court may after determining the
said questions of law return any case so withdrawn together
with a copy of its judgment on such questions to th e High
Court from which the case has been withdrawn, and the High
Court shall on receipt thereof, proceed to dispose of the case
in conformity with such judgment.
(2) The Supreme Court may, if it deems it expedient so to do
for the ends of justice, transfer any case, appeal or other
proceedings pending before any High Court to any ot her
High Court.
140: Ancillary powers of Supreme Court.-
Parliament may by law make provision for conferring upon
the Supreme Court such supplemental powers not
1107
inconsistent with any of the provisions of this Con stitution
as may appear to be necessary or desirable for the purpos e
of enabling the court more effectively to exercise the
jurisdiction conferred upon it by or under this Con stitution.
141: Law declared by Supreme Court to be binding on a ll
courts.-
The law declared by the Supreme Court shall be binding on
all courts within the territory of India.
142: Enforcement of decrees and orders of Supreme Court
and orders as to discovery, etc.-
(1) The Supreme Court in the exercise of its jurisdict ion
may pass such decree or make such order as is
necessary for doing complete justice in any cause
or matter pending before it, and any decree so
passed or order so made shall be enforceable
throughout the territory of India in such manner as
may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so
made, in such manner as the President may by order
prescribe.
(2) Subject to the provisions of any law made in thi s
behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all
and every power to make any order for the purpose
of securing the attendance of any person, the
discovery or production of any documents, or the
investigation or punishment of any contempt of itself.
143: Power of President to consult Supreme Court.-
(1) If at any time it appears to the President that a
question of law or fact has arisen, or is likely to
arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion
of the Supreme Court upon it, he may refer the
question to that Court for consideration and the
Court may, after such hearing as it thinks fit, report
to the President its opinion thereon.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
(2) The President may, notwithstanding anything in th e
proviso to article 131, refer a dispute of the kind
mentioned in the said proviso to the Supreme Court
for opinion and the Supreme Court shall, after such
hearing as it thinks fit, report to the President i ts
opinion thereon.
144: Civil and judicial authorities to act in aid o f the
Supreme Court.-
All authorities, civil and judicial, in the territory of India shall
act in aid of the Supreme Court.
145: Rules of Court, etc.-
(1) Subject to the provisions of any law made by Parliame nt,
the Supreme Court may from time to time, with the approva l
of the President, make rules for regulating general ly the
practice and procedure of the Court….”
xxx xxx xxx
200. Assent to Bills. When a Bill has been passed by the
Legislative Assembly of a State or, in the case of a State
having a Legislative Council, has been passed by both Houses
of the Legislature of the State, it shall be presen ted to the
Governor and the Governor shall declare either that he
assents to the Bill or that he withholds assent the refrom or
that he reserves the Bill for the consideration of the
President:
Provided that the Governor may, as soon as possible after
the presentation to him of the Bill for assent, return t he Bill
if it is not a Money Bill together with a message req uesting
that the House or Houses will reconsider the Bill o r any
specified provisions thereof and, in particular, wil l consider
the desirability of introducing any such amendments as he
may recommend in his message and, when a Bill is so returned,
the House or Houses shall reconsider the Bill accor dingly,
and if the Bill is passed again by the House or Houses wi th
or without amendment and presented to the Governor for
assent, the Governor shall not withhold assent ther efrom:
Provided further that the Governor shall not assent to, but
shall reserve for the consideration of the President, any Bill
1109
which in the opinion of the Governor would, if it became law ,
so derogate from the powers of the High Court as to
endanger the position which that Court is by this Constitut ion
designed to fill.
201. Bill reserved for consideration.- When a Bill is reserved
by a Governor for the consideration of the Presiden t, the
President shall declare either that he assents to th e Bill or
that he withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the Pres ident
may direct the Governor to return the Bill to the Hou se or,
as the case may be, the Houses of the Legislature of the State
together with such a message as it mentioned in the first
proviso to Article 200 and, when a Bill is so retur ned, the
House or Houses shall reconsider it accordingly wit hin a
period of six months from the date of receipt of such mes sage
and, if it is again passed by the House or Houses w ith or
without amendment, it shall be presented again to t he
President for his consideration.
xxx xxx xxx
245. Extent of laws made by Parliament and by the
Legislatures of States.-
(1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part
of the territory of India, and the Legislature of a
State may make laws for the whole or any part of
the State
(2) No law made by Parliament shall be deemed to be
invalid on the ground that it would have extra
territorial operation.
246. Subject-matter of laws made by Parliament and by the
Legislatures of States.- (1) Notwithstanding anything in
clauses (2) and (3), Parliament has exclusive power to make
laws with respect to any of the matters enumerated in List I
in the Seventh Schedule (in this Constitution referr ed to as
the “Union List”).
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
(2) Notwithstanding anything in clause (3), Parliamen t and,
subject to clause (1), the Legislature of any State also, have
power to make laws with respect to any of the matte rs
enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State
has exclusive power to make laws for such State or any par t
thereof with respect to any of the matters enumerated in Li st
II in the Seventh Schedule (in this Constitution re ferred to
as the “State List”).
(4) Parliament has power to make laws with respect t o any
matter for any part of the territory of India not incl uded in
a State notwithstanding that such matter is a matte r
enumerated in the State List.
247. Power of Parliament to provide for the establish ment
of certain additional courts.-
Notwithstanding anything in this Chapter, Parliament may by
law provide for the establishment of any additional courts
for the better administration of laws made by Parli ament or
of any existing laws with respect to a matter enumer ated in
the Union List.
248. Residuary powers of legislation.-
(1) Parliament has exclusive power to make any law with
respect to any matter not enumerated in the
Concurrent List or State List
(2) Such power shall include the power of making any
law imposing a tax not mentioned in either of those
Lists
262. Adjudication of disputes relating to waters of in ter-State
rivers or river valleys.- (1) Parliament may by law provide
for the adjudication of any dispute or complaint with resp ect
to the use, distribution or control of the waters of, or in, any
inter-State river or river valley.
(2) Notwithstanding anything in this Constitution, P arliament
may by law provide that neither the Supreme Court nor any
1111
other court shall exercise jurisdiction in respect of any such
dispute or complaint as is referred to in clause (1).
348. Language to be used in the Supreme Court and in the
High Courts and for Acts, Bills, etc.- (1) Notwithstanding
anything in the foregoing provisions of this Part, until
Parliament by law otherwise provides-
(a) all proceedings in the Supreme Court and in ever y
High Court,
(b) the authoritative texts-
(i) of all Bills to be introduced or amendments
thereto to be moved in either House of
Parliament or in the House or either House of
the Legislature of a State,
(ii) of all Acts passed by Parliament or the
Legislature of a State and of all Ordinances
promulgated by the President or the Governor of
a State, and
(iii) of all orders, rules, regulations and bye-laws
issued under this Constitution or under any law
made by Parliament or the Legislature of a State,
shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clau se (1),
the Governor of a State may, with the previous cons ent of
the President, authorise the use of the Hindi langu age, or
any other language used for any official purposes o f the
State, in proceedings in the High Court having its pr incipal
seat in that State:
Provided that nothing in this clause shall apply to any
judgment, decree or order passed or made by such Hi gh
Court.”
8. Learned Counsel appearing on behalf of the appellant submitted
that the Rent Control Act has been enacted by the Chhattisgarh State
Legislature, in exercise of legislative power conferred by E ntry 18 of
List II, that is, the State List in the Seventh Schedule to the Constitution
of India.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
9. Counsel argued that Entry 77 of List I, that is, the Union List,
confers exclusive power to the Union Legislature, to legis late with
regard to the constitution, organisation, jurisdiction and powers of the
Supreme Court, including contempt of such Court, whereas Entry 65
of the State List enables the State Legislature to legislate in respect of
the jurisdiction and power of all Courts, except the Supreme Court.
10. Learned Counsel argued that Section 13(2) of the Rent
Control Act does not confer any additional jurisdiction to the Supreme
Court, which the Supreme Court did not otherwise possess. Sec tion
13(2) of the Rent Control Act confers appellate jurisd iction to the
Supreme Court of India, which the Supreme Court, in any case, always
had and still has under Article 136 of the Constitution.
11. Learned Counsel further argued that Entry 77 enables the
Union Parliament to legislate with regard to the constitution, organization,
jurisdiction and powers of the Supreme Court of India. Accor ding to
Counsel, the scope of this Entry cannot be widened to inc lude the
appellate jurisdiction of the Supreme Court.
12. Counsel emphatically asserted that Article 138(1) provide s
that the Supreme Court shall have such further jurisdiction and powers
with respect to any of the matters in the Union List, as Parliament may
by law confer. This provision, according to Counsel, c an only be
understood to include the original jurisdiction of the Supreme Court.
13. Counsel argued that Article 138(2) provides that the Supreme
Court shall have such further jurisdiction and powers with r espect to
any matter, as Government of India and the Government of any St ate
may, by special agreement, confer, if Parliament by law pr ovides for
exercise of such jurisdiction and powers by the Supreme Court.
14. Learned Counsel next argued that Section 13(2) of the Rent
Control Act is in consonance with Article 138, read with Article 200 of
the Constitution of India, which enables the State Legislature to enact
law curtailing the jurisdiction of the High Court, subject to the assent
of the President of India.
15. Counsel further argued that if, in the opinion of the Governor,
any Bill, if it becomes law, would so derogate from the powers of the
High Court, as to endanger the position which the High Court is by the
Constitution, designed to fill, the Governor is not to assent to the bill,
but reserve the same for the consideration of the President.
1113
16. Counsel submitted that a law which curtails powers of the
High Court may be validated by Presidential assent. The State
Legislature can restrict the appellate power of the High Court by
providing for direct appeals to the Supreme Court.
17. Counsel argued that a comparative reading of Articles 138(2)
and Article 200 show that the State can make a law conferring appellate
jurisdiction on the Supreme Court in the following two conditions:
(i) When Government of India and Government of any
Stateagree to confer jurisdiction and power on the
Supreme Court [Article 138(2)];
(ii) When the President assents to the Bill forwarded by the
Governor of the State [second proviso to Article 200]
18. Learned Counsel submitted that in this case, the conditio ns
of Article 138(2) and the Second proviso to Article 200 have both been
complied with. The President has, on reference by t he Governor,
assented to the Bill, which has resulted in a new enactment .
19. Learned Counsel argued that, as per Article 74 o f the
Constitution, the President is to act as per the aid and advice of the
Council of Ministers. To strengthen his argument that the Presi dent
cannot act independently, but can only act on the aid and advice of his
Council of Ministers, Counsel cited Samsher Singh vs.the State of
Punjab and Anr. reported in AIR 1974 SC 2192: (1974) 2 SCC
831 .
20. According to Counsel, assent by the President, on the aid
and advice of the Council of Ministers, tantamounts to compliance with
the conditions in Article 138(2) of the Constitution, as Presidential assent
on the aid and advice of the Council of Ministers, means agr eement
between the State Government and the Government of India to confer
appellate jurisdiction and power to the Supreme Court in rel ation to
orders of the Rent Control Tribunal.
21. Counsel also emphasized on the difference in the language
of Article 138 (1) and Article 138(2) and in particular the us e of the
expression, ‘Government of India’ in Article 138(2) as against the
expression ‘Parliament’ in Article 138(1), to argue that the Government
of India and the Government of any State may by special agree ment
confer further jurisdiction and powers to the Supreme Court, for which
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
no statutory enactment of Parliament is necessary. The a dvice of the
Council of Ministers to the President of India, to asse nt to a State
enactment evinces an agreement between the Government of India and
the State Government in that regard.
22. Counsel has also cited Puthiyadath Jayamathy Avva and
Ors. vs. K.J. Naga Kumar and Ors. reported in AIR 2001 KER 38 .
The part of the judgment cited is extracted hereinbelow :-
“...if the President assents to a State law which ha s been
reserved for consideration under Article 200, it wil l prevail
notwithstanding its repugnancy to an earlier law of the
Union. Thus, even if there is repugnancy, the law m ade by
the Legislature of the State, if it was reserved fo r
consideration of the President and has received his assent,
will prevail in the State. Thus, from the Act XXX of 197 6, 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 Couns el for
the appellants that the State enactment cannot overri de the
Central enactment cannot be accepted as correct...”
23. Counsel finally argued that it was settled law that in case of
any inconsistency between the provisions of the Constitution and the
provisions of any statutory enactment, the various a rticles of the
Constitution and the various provisions of the statutory enact ments
should be harmoniously construed.
24. Elaborating on his argument, Counsel pointed out that t he
expression “derogate from the powers of the High Court as to endanger
the position which that Court by this Constitution, is designed to fill” in
the last part of the second proviso to Article 200 alludes to der ogation
of the inherent powers of the High Court under Articles 226 and Article
227 of the Constitution of India. The Rent Control Act does not touch
the power of the High Courts, of judicial review under Articles 226 and
227 of the Constitution of India. Section 13(2) of the Rent Control Act
only confers appellate jurisdiction on the Supreme Court of India, which
is not prohibited or barred under the Constitution.
25. Counsel emphatically reiterated his argument that the Re nt
Control Act has not conferred any jurisdiction on the Supreme Court,
which it did not earlier possess. Article 136 provides for appea l to the
1115
Supreme Court against any order of any Court or Tribunal. Section 13(2)
of the Rent Control Act is only in consonance with or may be an
extension of the powers of the Supreme Court under Article 136 .
26. The learned Attorney General for India, on the other hand,
submitted that Section 13(2) of the Rent Control Act which pr ovides
for direct appeal to the Supreme Court of India, from any order passed
by the Rent Control Tribunal, set up under the Rent Contro l Act, is
unconstitutional, the same being beyond the legislative competence of
the State Legislature of Chhattisgarh.
27. The learned Attorney General submitted that lac k of
legislative competence of the Chhattisgarh State Legislatur e, to enact
Section 13(2) of the Rent Control Act, is evident from a mere reading
of three entries in the Seventh Schedule of the Constitution of India,
that is,Entry 77 of List 1 (Union List), Entry 65 of List II (St ate List)
and Entry 46 of List III (Concurrent List).
28. The learned Attorney General submitted that it would be seen
that Entry 77 of List I, read with Article 146(1) of the Cons titution,
confers on Parliament the exclusive jurisdiction to legislate with regard
to the jurisdiction and powers of the Supreme Court of India.
Furthermore, Entry 65 of List II, as well as Entry 46 of List III, prohibit
a State Legislature from legislating in regard to the jurisdiction of the
Supreme Court of India.
29. The learned Attorney General further submitted that the clear
scheme and architecture of these entries is buttres sed by other
provisions in the Constitution, which confer only on Parliame nt the
competence to legislate in regard to the Supreme Court of India. These
provisions include Articles 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).
30. The learned Attorney General submitted that, the fact that
the Rent Control Act had been reserved for the assent of the Pre sident
of India, under Article 200 of the Constitution, and had recei ved the
assent of the President in terms of Article 201, would not in any manner
alter the extent of legislative competence of the State Legislature. This
is for the reason that, neither the Governor of any S tate, nor the
President of India, may confer legislative competence on any legislative
body, whether Parliament or a State Legislature, co ntrary to the
provisions of the Constitution.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
31. The learned Attorney General argued that the distribution of
legislative powers between Parliament and the State Legislatures is
governed by Chapter I of Part XI of the Constitution, including Articles
246 and 248, along with the three Lists contained in the Seventh
Schedule to the Constitution. Any question of legislative competence
would have to be decided finally by this Court, in accordance with these
provisions of the Constitution.
32. The learned Attorney General referred to the decision of this
Court in K.K. Poonacha vs. State of Karnataka and Ors. reported
in (2010) 9 SCC 671, which interprets, inter alia, Article 31(3) of the
Constitution, as it stood prior to its repeal. Article 31 pert ained to the
compulsory acquisition of property, and Clause (3) thereof st ated that
“No such law as stated in Clause (2) made by the Legisl ature of a
State shall have effect unless such law, having been reser ved for the
consideration of the President, has received his as sent”. In K.K.
Poonacha (supra), this Court opined:-
“What was implicit in the language of Article 31(3) wa s that
the particular law was within the legislative compete nce of
the State and such law did not violate the provisio ns
contained in Part III or any other provision of the
Constitution. The assent given by the President in terms of
Article 31(3) of the Constitution to a law enacted by the
legislature of a State did not mean that the partic ular
enactment acquired immunity from challenge even though the
same was not within the legislative competence of the State
or was otherwise violative of any constitutional prov ision.”
33. The learned Attorney General submitted, and rightly, that the
observations of this Court in K.K. Poonacha (supra) squarely apply
to the grant of assent by the President of India under Arti cle 201 of
the Constitution.
34. The learned Attorney General submitted that it is worth noting
that the Governor of a State may reserve a Bill for the c onsideration
of the President of India for various reasons, including inconsis tency
with a parliamentary statute, impact of the statute on relations with other
states, etc. In certain situations, the Governor is bound to re serve a
Bill for the consideration of the President, including matters covered
by the second proviso to Article 200, i.e. a Bill, which in the opinion of
the Governor would “so derogate from the powers of the High Cour t
1117
as to endanger the position which that Court is by this Const itution
designed to fill”. This is consistent with the role and duty of the Governor
of a State, and the President of India, who, like the King of E ngland
will still have the right “to be consulted, to encourage and to warn”, as
explained in Shamsher Singh (supra). However, the grant of assent
by the Governor, or by the President, would not in any manner af fect
or control the issue of legislative competence of the leg islature of the
State.
35. The learned Attorney General also referred to a recent
judgment of a Division Bench of this Court rendered on 15.10.2019 in
Civil Appeal No.5153 of 2019 (H.S. Yadav vs. Shakuntala Devi
Parakh) striking down Section 13(2) of the Rent Control Act as ultra
vires the Constitution and beyond the scope of the powers of the State
Legislature.
36. Parliament and the State Legislatures derive their pow er to
make laws from Article 245(1) of the Constitution of India an d such
power is subject to and/or limited by the provisions of the Constitution.
While Parliament can make law for the whole or any part of the territory
of India, the State Legislature can only make laws for t he State or
any part thereof, subject to the restrictions in the Constitution of India.
37. Article 246, which distributes legislative powers between the
Union Legislature and the State Legislature, confers exclusiv e power
to Parliament to make laws in respect of the matters spe cified in List
I in the Seventh Schedule, that is, the Union List. The Union Parliament
also has, subject to Clause (3) of Article 246, the power to make laws
with respect to any of the matters enumerated in List III in the Seventh
Schedule, that is, the Concurrent List.
38. While Parliament has exclusive power under Article 246(1)
of the Constitution to make laws with respect to th e matters
enumerated in the Union List, the State Legislature has exclusive power
to make laws with respect to matters enumerated in the S tate List,
subject to Clauses (1) and (2) of Article 246. Along with the Union
Legislature, the State Legislature is also competent to e nact laws in
respect of the matters enumerated in the Concurrent List, s ubject to
the provisions of Article 246(1).
39. The entries in the three lists, relevant to the issues re ferred
to this Bench, that is, Entry 77 of the Union List, Entries 18 and 65 of
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
the State List and Entry 46 of the Concurrent List are set out
hereinbelow for convenience:-
“List I- Union List
“77. Constitution, organisation, jurisdiction and po wers of
the Supreme Court (including contempt of such Court ), and
the fees taken therein; persons entitled to practise before the
Supreme Court.”
List II – State List
“18. Land, that is to say, rights in or over land, land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agr icultural
land; land improvement and agricultural loans; colonization.
xxx xxx xxx
65. Jurisdiction and powers of all courts, except the Supr eme
Court, with respect to any of the matters in this Li st.”
List III - Concurrent List
46. Jurisdiction and powers of all courts, except the Supr eme
Court, with respect to any of the matters in this Li st.”
40. The Supreme Court has been established under Article 124
of the Constitution of India and derives its jurisdiction and powers from
Articles 131 to 145 thereof. There is no provision in the C onstitution
which provides for direct appeal to the Supreme Court, fro m an order
of a Tribunal constituted under any law enacted by a State Legislature.
41. Article 262(2) of the Indian Constitution which en ables
Parliament to enact law abrogating the power of the Supre me Court
to adjudicate the disputes referred to in Article 262(1), and Article 348
of the Constitution of India in respect of parliamentary en actments
relating to the language of the Supreme Court and the High C ourts,
referred to by the Learned Attorney General for India, are not really
of relevance to the issue referred to this Bench for d etermination,
except to demonstrate that all matters pertaining to the Supreme Court
are exclusively within the legislative domain of Union Parliament.
42. Entry 18 of the State List enables the State Legislature to
enact law with respect to land, including rights in and over land, land
tenures including relation of landlord and tenant and the collection of
1119
rent. The State Legislature being clothed with power to e nact law in
respect of land tenures, including the relation of landlord and tenant and
the collection of rent, it had legislative competence to enact the Rent
Control Act, in so far as the same regulates the relationship of landlord
and tenant and the collection of rent.
43. Article 323B inserted in the Constitution of India, with effect
from 3 rd January, 1977, by the Constitution (Forty Second Amendment)
Act 1976 empowers the appropriate legislature to enact law providing
for adjudication and/or trial by Tribunals, of any dispute s, offences or
complaints with respect to all or any of the matters in Cla use (2) of
the said Article.
44. Clause (2) of Article 323B was amended by the Constitution
(Seventy fifth Amendment) Act, with effect from 15 th May, 1994 to
inter alia insert clause (h), thereby enabling the appropriate legislature
to make law, providing for adjudication or trial by Tribunals of any
disputes, complaints or offences, in respect of issues relating to tenancy
and rent, including regulation and control of rent.
45. The Explanation appended to Section 323B of the Constitution
explains “appropriate legislature” in Article 323B to mean Parliament,
or as the case may be, a State Legislature, competent to make laws
with respect to the matter in accordance with the provisions of Part
XI of the Constitution of India, which includes Articles 245 and 246.
46. On a conjoint reading of Article 323B and Articles 245 and
246 of the Constitution of India with Entry 18 of the State List in the
Seventh Schedule, there can be no doubt that the State Legislature was
competent to enact law to provide for adjudication and trial of all
disputes, complaints and offences relating to tenancy and rent, by a
Tribunal.
47. The Chhattisgarh State Legislature was thus competent to
enact the Rent Control Act, to the extent that it p rovides for the
adjudication of original disputes relating to tenancy and rent by the Rent
Controller, and creates a Tribunal to decide appeals from orders of the
Rent Controller, but subject to the exception, as discussed here after.
48. When the question of vires of any enactment is considered,
it is to be seen, whether looking at the legislation as a whole, it can be
said to be a legislation, substantially with respect to any of the matters,
with regard to which the Legislature is competent to legis late, under
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
any specific Article of the Constitution, or any of the Ent ries in the
relevant List in the Seventh Schedule thereto. Once it is held that it
is so, the legislative power conferred by that Entry is to extend to all
ancillary matters, which may fairly and reasonably be said to be
comprehended in that arena, as held by the Federal Court in United
Provinces vs. Atika Begum reported in AIR 1941 FC 16 (25) and
reiterated by this Court in numerous judgments.
49. Section 13(2) of the Rent Control Act, providing for dire ct
appeal to the Supreme Court from orders passed by the Rent Control
Tribunal, is not ancillary or incidental to the power of the Chhattisgarh
State Legislature to enact a Rent Control Act, which p rovides for
appellate adjudication of appeals relating to tenancy a nd rent by a
Tribunal. In enacting Section 13(2) of the Rent Con trol Act, the
Chhattisgarh State Legislature has overtly transgressed the limits of its
legislative power, as reiterated and discussed hereinafter .
50. While the widest amplitude should be given to the language
used in one entry, every attempt has to be made to h armonize its
contents with those of other Entries, so that the l atter may not be
rendered nugatory.
51. As observed above, both the Union legislature and the State
Legislature derive their power to legislate from Artic le 245 of the
Constitution of India. It is axiomatic that the legislature of a State may
only make laws for the whole or any part of the State, while Parliament
may make laws for the whole or any part of the territo ry of India.
There is no provision in the Constitution which saves State laws with
extra-territorial operation, similar to Article 245(2) which expressly saves
Union laws with extra-territorial operation, enacted by Parliament. The
Chhattisgarh State Legislature, thus, patently lacks competence to enact
any law which affects the jurisdiction of the Supreme C ourt, outside
the State of Chhattisgarh.
52. Entry 18 of the State List only enables the State Legisl ature
to legislate with regard to landlord tenant relationship, collection of rents
etc. This Entry does not enable the State Legislature to cir cumvent
Entry 64 of the State List or Entry 46 of the Concurrent List wh ich
enable the State Legislature to enact laws with respect to the jurisdiction
and powers of Courts, except the Supreme Court, or to rend er otiose,
Entry 77 of the Union List, which expressly confers law making power
in respect of the jurisdiction of the Supreme Court, e xclusively to
Parliament.
1121
53. Entry 18 of the State List, which only enables the St ate
Legislature to legislate with regard to land, land tenures, landlord tenant
relationship, collection of rents etc. does not enable the State Legislature
to enact law conferring appellate jurisdiction to the Suprem e Court in
respect of orders passed by an Appellate Rent Contr ol Tribunal,
constituted under a state law.
54. In view of Entry 77 of the Union List, only Parliament h as
the legislative competence to legislate with respect to the constitution,
organization, jurisdiction or powers of the Supreme Court. Entry 64 of
the State List and Entry 46 of the Concurrent List enable th e State
Legislature to enact law with respect to the jurisdiction and p owers of
Courts except the Supreme Court. In other words, the sa id Entries
expressly debar the State Legislature from legislating with respect to
the jurisdiction of the Supreme Court.
55. Article 323B (3)(d) provides that a law made under Article
323B (1) may exclude the jurisdiction of all courts except the jurisdiction
of the Supreme Court under Article 136, with respect to all or any of
the matters falling within the jurisdiction of the said tribunals. Article
323B does not enable a State Legislature to expand the jurisdi ction of
the Supreme Court by enacting a provision for further statutory appeal
to the Supreme Court from an order of an Appellate Trib unal.
56. The contention of Counsel for the appellant that Section 13(2)
of the Rent Control Act does not confer on the Supr eme Court,
jurisdiction it did not already possess, but is only incidental t o and/or
extension of its power under Article 136, is not sustainable in l aw.
57. Under Article 136 of the Constitution, the Supreme Court
does not act as a regular court of appeal. The power of the S upreme
Court under Article 136 is not to be confused with the appellate power
ordinarily exercised by appellate courts and Tribunals under specific
statutes.
58. Article 136 does not confer a right of appeal on any party,
but confers a discretionary power on the Supreme Court to interfere
in appropriate cases. This power can be exercised in sp ite of other
provisions for appeal contained in the Constitution, or any other law, as
held in N. Natarajan vs. B. K. Subba Rao reported in (2003) 2 SCC
76 .
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
59. Conclusiveness or finality given by a statute to decision of a
Court or Tribunal, cannot deter the Supreme Court from exercising this
jurisdiction under Article 136 of the Constitution as held by a Constitution
Bench of this Court, inter alia, in Dhakeshwari Cotton Mills Ltd.
vs. Commissioner of Income Tax, West Bengal reported in AIR 1955
SC 65 and reiterated in numerous other decisions. appellate jurisdiction
is not exercised when a statute gives finality to a decision of the Court
or Tribunal.
60. Under Article 136 of the Constitution of India, the Supreme
Court entertains appeals by special leave, where substa ntial questions
of law or questions of public importance are involved. Where the re is
any uncertainty in the law, the Supreme Court, in its discretion, settles
the law. The Supreme Court does not ordinarily interfere with concurrent
findings of fact under Article 136. If the concurrent findings are based
on accepted oral or documentary evidence, there is no interfer ence
under Article 136 of the Constitution.
61.While exercising power under Article 136 of the Constitution,
the Supreme Court does not re-appreciate evidence which has been
appreciated by the Trial Court and the High Courts, unless extraordinary
circumstances exist. It is only where the High Court has comp letely
missed the real point requiring adjudication or has missed or ignored
the relevant material, would the Supreme Court be justi fied in getting
into evidence for the purpose of preventing grave injustice to a party.
62. An appeal, on the other hand, is a continuation of the original
proceedings. Where there is a statutory appeal from an appellate order
of the Tribunal, the appellate court is obliged to rehear t he case, re-
appreciate and re-analyze the evidence on record, a djudicate the
correctness of the order impugned and correct errors both o f fact and
of law, that the Tribunal may have made.
63. Article 200 of the Constitution relating to the passage of Bills
except money Bills, requires Bills passed by the Legislative Assembly
of a State, or in case of a State having a Legislative Council, a bill
passed by both the houses of the Legislature of the State, to be
presented to the Governor for assent. Such Bills become law on receipt
of assent of the Governor.
64. The second proviso to Article 200 of the Constit ution
mandates the Governor not to assent, but reserve for the consideration
1123
of the President, any Bill, which in the opinion of the Governor would,
if it became law, so derogate from the powers of the High Court, as
to endanger the position which that Court is, by the C onstitution,
designed to fill.
65. Presidential assent is imperative in the case of law enacted
by a State Legislature, which would derogate from the power s of the
High Court, as to endanger the position which that Court is, by t he
Constitution, designed to fill.
66. Entry 65 of the State List read with Entry 46 o f the
Concurrent List, as stated above, enables the State Legislature to enact
law with respect to the jurisdiction and powers of all Cour ts, except
the Supreme Court with respect to any of the matters in those lists.
The State Legislature may, therefore, be competent to enact law which
affects the jurisdiction and powers of the High Court, exc ept the
jurisdiction and powers of the High Court under Articles 226 and 227
of the Constitution, held by a Constitution Bench of this Court, to be
an inviolable basic feature of the Constitution in L Chandra Kumar
vs. Union of India and others reported in AIR 1997 SC 1125.
67. Counsel for the appellant is right in arguing that L Chandra
Kumar (supra) pertains to the power of the High Court under Article s
226 and 227 of the Constitution of India. The State Legislature has the
power to enact law which abridges the powers of the High Court, except
those powers, which constitute an inviolable basic f eature of the
Constitution, such as the powers of the High Court under Articles 226
and 227.
68. The second proviso to Article 200, of the Constit ution
prohibits the Governor from assenting to a Bill, which in the opinion of
the Governor would, if it became law, so derogate from the powers of
the High Court, as to endanger the position which the High Court is,
by the Constitution of India, design to fill. The Governor is obliged to
reserve such bill for the consideration of the President.
69. The second proviso to Article 200 is not attracted in the case
of Section 13(2) of the Rent Control Act, since it does not d erogate
from any power of the High Court. It is well settled that th ere is no
inherent right of appeal. Right of appeal is conferred by Statute. A
Statute is not invalid only because it has no provision of a ppeal to the
High Court.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
70. For the purpose of this reference, it is not necessary for us
to go into the question of which curtailments of the power of the High
Court would threaten the position which the High Court is required by
the Constitution to fill.
71. The amplitude of power conferred by Clauses 1 and 2 of
Article 246, makes the Parliament competent to make a law enlarging
the jurisdiction of the Supreme Court with respect to any of the matters
enumerated in List I and III, even though such enlargement ma y not
be contemplated by the various Articles of Chapter IV of Part V of
the Constitution.
72. By virtue of the power conferred by Article 248 o f the
Constitution of India, the Parliament has, subject to Articl e 246 A of
the Constitution, exclusive power to make any law with respect to any
matter not enumerated in the Concurrent List or Sta te List. The
residuary power of legislation thus rests with Parliame nt.
73. Suffice it to note that in view of Entry 65 of the Sta te List
and Entry 46 of the Concurrent List, the State Legislature c an enact
law which affects the jurisdiction of all Courts, excep t the Supreme
Court. In other words it can enact law which affects the ju risdiction
of the High Court, except under Articles 226 and 227, but it cannot
enact law which touches the jurisdiction of the Supreme C ourt. The
Rent Control Tribunal having been established under Article 323B of
the Constitution, as observed above, the diminution, if any, of the
jurisdiction of the High Court, except under Article 226 and 227, would
be saved by Article 323B(3)(d) of the Constitution, but not the provision
for statutory appeal to the Supreme Court.
74. The argument of Learned Counsel for the appellant that
Article 138(1) and/or Entry 77 of the Union List only takes wi thin its
ambit, the Original jurisdiction of the Supreme Cour t, 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. Entry 77 of the Union
List, going by its plain meaning, as also Article 138(1) should include
both Original and appellate jurisdiction of the Supreme Court.
75. The proposition urged by Counsel for the appellant that when
a State Law gets the assent of the President of India, that la w prevails
in the States, notwithstanding repugnancy with an earlier Union law, is
unexceptionable.
1125
76. However, Presidential assent makes no difference in c ase
of legislative incompetence. Presidential assent cannot an d does not
validate an enactment in excess of the legislative power s of the State
Legislature, nor validate a statutory provision, which would render
express provisions of the Constitution otiose. Presidential assent cures
repugnancy with an earlier Central Statute, provide d the State
Legislature is otherwise competent to enact the Statute.
77. In view of our finding that Presidential assent would not
validate a statutory provision which the legislature was incompetent to
enact, we need not go into the question of whether the Preside nt had
occasion to consider the repugnancy of Section 13(2) of the Rent
Control Act with the provisions of the Constitution, including in particular,
Entry 65 of the State List and Entry 46 of the Concurrent List , which
expressly exclude from the State Legislature, the compet ence and/or
power to enact law affecting the jurisdiction of the Supre me Court.
78. A law made under Article 323B (1) of the Constitution may
exclude the jurisdiction of all Courts except the jurisd iction of the
Supreme Court under Article 136 with respect to the matters falling
within the jurisdiction of the said Tribunals. However, as observed above,
Article 323B (2) (d) or any other provision of the Constitution does not
enable the State Legislature to enact law which provides for statutory
appeals to the Supreme Court.
79. Section 13(2) of the Rent Control Act purports to confer a
right of statutory Second Appeal to the Supreme Court. Even i n case
of concurrent findings of the Rent Controller and Rent Control Tribunal,
where no serious question of law were involved, an appeal would have
to be entertained and decided. Such 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 v alidate
an ultra vires enactment, which the concerned Legis lature lacked
competence to enact.
80. Article 138 (2) of the Constitution provides that the Supreme
Court shall have such further jurisdiction and powers with r espect to
any matter as the Government of India and the Government of any
State may by special agreement confer, if Parliament b y law provides
for the exercise of such jurisdiction and powers by the Supreme Court.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]
81. It is difficult to accept the submission of Counsel appear ing
on behalf of the appellant, that reservation of a Bill for Pr esidential
assent and consequential grant of Presidential assent, tanta mounts to
special agreement between the Government of India and t he State
Government, because the President acts on the aid and advice of the
Council of Ministers.
82. A special agreement, in our considered view means , an
independent agreement arrived at between the Government of Ind ia
and the Government of a State through deliberations and negotiat ions
and not just an approval of legislation by the President on t he aid and
advice of the Council of Ministers.
83. In any case, the Supreme Court may exercise furt her
jurisdiction pursuant to a special agreement between the Gove rnment
of India and the State Government on any particular issue, pr ovided
Parliament by law provides for the exercise of such jurisd iction and
powers by the Supreme Court. Parliament has not enacted any such
law enabling the Supreme Court to exercise jurisdiction in respect of a
subject matter agreed upon between the Government of India and the
State Government. Article 138(2) is not attracted.
84. We are in full agreement with the judgment of this Court i n
H. S. Yadav (supra) declaring Section 13(2) of the Rent Control Act
ultra vires the Constitution and beyond the scope of the po wer of the
State legislature.
85. It is true, that in L. Chandra Kumar (supra) this Court held
that Tribunals constituted under Articles 323A and 323B of the
Constitution were subject to the writ jurisdiction of the Hi gh Courts,
within whose jurisdiction they were located, as noted by t his Court in
H.S Yadav (supra).
86. The power of superintendence conferred by Article 227 is,
however, supervisory and not appellate. It is settled law that this power
of judicial superintendence must be exercised spari ngly, to keep
subordinate courts and tribunals within the limits of their authority.
When a Tribunal has acted within its jurisdiction, the High Court does
not interfere in exercise of its extraordinary writ jurisdiction unless there
is grave miscarriage of justice or flagrant violation of law. Jurisdiction
under Article 227 cannot be exercised “in the cloak of an appe al in
disguise”.
1127
87. In exercise of its extraordinary power of superintendence and/
or judicial review under Article 226 and 227 of the Constitution of India,
the High Courts restrict interference to cases of patent error of law
which go to the root of the decision; perversity; arbitrarines s and/or
unreasonableness; violation of principles of natural justi ce, lack of
jurisdiction and usurpation of powers. The High Court does not re -
assess or re-analyze the evidence and/or materials on record. Whet her
the High Court would exercise its writ jurisdiction to test a decision of
the Rent Control Tribunal would depend on the facts and circumstances
of the case. The writ jurisdiction of the High Court cannot be converted
into an alternative appellate forum, just because the re is no other
provision of appeal in the eye of law.
88. 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 ma tter
even by constitutional amendment. L Chandrakumar (supra) cannot
be construed to enlarge the jurisdiction of the High Court under Article
226 and 227, to enable it to exercise appellate powers.
89. For the reasons discussed above, we hold that the S tate
Legislature lacked legislative competence to enact Section 13(2) of the
Rent Control Act. We, therefore, declare Section 13(2) of th e Rent
Control Act ultra vires the Constitution of India, null and void and of
no effect.
Ankit Gyan Referred question answered.
RAJENDRA DIWAN v. PRADEEP KUMAR RANIBALA & ANR.
[INDIRA BANERJEE, J.]