Professional Documents
Culture Documents
IN
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REPORTABLE
Rajendra Diwan …... Appellant
versus
Pradeep Kumar Ranibala & Anr. ….Respondents
WITH
CA. NO. 10214 OF 2016
AND
C.A. NO. 3051 OF 2017
J U D G M E N T
Indira Banerjee, J.
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under Section 12 of the Rent Control Act has been allowed.
General for India and the Advocate General for the State of
Chhattisgarh.
Advocate General, inter alia, argued that the Rent Control Act
thereof was protected by Article 138(2) read with Article 200 of the
the State of Chhattisgarh, the Bench was of the view that the
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interpretation of the Constitution, and accordingly referred the
Bench.
is, whether Section 13(2) of the Rent Control Act is ultra vires the
…….
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(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:
(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.
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(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.
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134A: Certificate for appeal to the Supreme Court.-
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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.
(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.
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140: Ancillary powers of Supreme Court.-
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proviso to the Supreme Court for opinion and the Supreme
Court shall, after such hearing as it thinks fit, report to the
President its opinion thereon.
Provided further that the Governor shall not assent to, but shall
reserve for the consideration of the President, any Bill which in
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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 Constitution designed to fill.
Provided that, where the Bill is not a Money Bill, the President
may direct the Governor to return the Bill to the House 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 returned, the House
or Houses shall reconsider it accordingly within a period of six
months from the date of receipt of such message and, if it is
again passed by the House or Houses with or without
amendment, it shall be presented again to the President for his
consideration.
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“Union List”).
(2) Such power shall include the power of making any law
imposing a tax not mentioned in either of those Lists
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respect to the use, distribution or control of the waters of, or in,
any inter-State river or river valley.
submitted that the Rent Control Act has been enacted by the
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Chhattisgarh State Legislature, in exercise of legislative power
conferred by Entry 18 of List II, that is, the State List in the Seventh
9. Counsel argued that Entry 77 of List I, that is, the Union List,
Supreme Court.
Court, in any case, always had and still has under Article 136 of
the Constitution.
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12. Counsel emphatically asserted that Article 138(1) provides
that the Supreme Court shall have such further jurisdiction and
Supreme Court.
Supreme Court shall have such further jurisdiction and powers with
14. Learned Counsel next argued that Section 13(2) of the Rent
Control Act is in consonance with Article 138, read with Article 200
not to assent to the bill, but reserve the same for the consideration
of the President.
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16. Counsel submitted that a law which curtails powers of the
and Article 200 show that the State can make a law conferring
conditions:
of Article 138(2) and the Second proviso to Article 200 have both
enactment.
President cannot act independently, but can only act on the aid
Singh vs. the State of Punjab and Anr. reported in AIR 1974
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SC 2192: (1974) 2 SCC 831.
of Article 138 (1) and Article 138(2) and in particular the use of the
that regard.
Ors. vs. K.J. Naga Kumar and Ors. reported in AIR 2001 KER
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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...”
23. Counsel finally argued that it was settled law that in case of
designed to fill” in the last part of the second proviso to Article 200
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
India. Section 13(2) of the Rent Control Act only confers appellate
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25. Counsel emphatically reiterated his argument that the Rent
Court, which it did not earlier possess. Article 136 provides for
26. The learned Attorney General for India, on the other hand,
provides for direct appeal to the Supreme Court of India, from any
order passed by the Rent Control Tribunal, set up under the Rent
enact Section 13(2) of the Rent Control Act, is evident from a mere
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Court of India. Furthermore, Entry 65 of List II, as well as Entry 46
30. The learned Attorney General submitted that, the fact that
the Rent Control Act had been reserved for the assent of the
State Legislature. This is for the reason that, neither the Governor
Articles 246 and 248, along with the three Lists contained in the
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Seventh Schedule to the Constitution. Any question of legislative
thereof stated that “No such law as stated in Clause (2) made by
the Legislature of a State shall have effect unless such law, having
33. The learned Attorney General submitted, and rightly, that the
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34. The learned Attorney General submitted that it is worth
noting that the Governor of a State may reserve a Bill for the
Article 200, i.e. a Bill, which in the opinion of the Governor would
“so derogate from the powers of the High Court as to endanger the
This is consistent with the role and duty of the Governor of a State,
and the President of India, who, like the King of England will still
Devi Parakh) striking down Section 13(2) of the Rent Control Act
as ultra vires the Constitution and beyond the scope of the powers
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36. Parliament and the State Legislatures derive their power to
make laws from Article 245(1) of the Constitution of India and such
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 the State or any part thereof, subject to the restrictions in
specified in List I in the Seventh Schedule, that is, the Union List.
The Union Parliament also has, subject to Clause (3) of Article 246,
Concurrent List.
State List, subject to Clauses (1) and (2) of Article 246. Along with
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39. The entries in the three lists, relevant to the issues referred
to this Bench, that is, Entry 77 of the Union List, Entries 18 and 65
of the State List and Entry 46 of the Concurrent List are set out
40. The Supreme Court has been established under Article 124
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41. Article 262(2) of the Indian Constitution which enables
are not really of relevance to the issue referred to this Bench for
of Union Parliament.
enact law with respect to land, including rights in and over land,
of rent.
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the matters in Clause (2) of the said Article.
control of rent.
enact the Rent Control Act, to the extent that it provides for the
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Rent Controller, and creates a Tribunal to decide appeals from
discussed hereafter.
numerous judgments.
49. Section 13(2) of the Rent Control Act, providing for direct
discussed hereinafter.
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50. While the widest amplitude should be given to the language
contents with those of other Entries, so that the latter may not be
rendered nugatory.
51. As observed above, both the Union legislature and the 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
State of Chhattisgarh.
52. Entry 18 of the State List only enables the State Legislature
rents etc. This Entry does not enable the State Legislature to
List which enable the State Legislature to enact laws with respect
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the Supreme Court, exclusively to Parliament.
53. Entry 18 of the State List, which only enables the State
54. In view of Entry 77 of the Union List, only Parliament has the
64 of the State List and Entry 46 of the Concurrent List enable the
55. Article 323B (3)(d) provides that a law made under Article
323B (1) may exclude the jurisdiction of all courts except the
all or any of the matters falling within the jurisdiction of the said
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56. The contention of Counsel for the appellant that Section
13(2) of the Rent Control Act does not confer on the Supreme
sustainable in law.
58. Article 136 does not confer a right of appeal on any party,
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statute gives finality to a decision of the Court or Tribunal.
its discretion, settles the law. The Supreme Court does not
of the Constitution.
been appreciated by the Trial Court and the High Courts, unless
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correct errors both of fact and of law, that the Tribunal may have
made.
the High Court, as to endanger the position which that Court is, by
enact law with respect to the jurisdiction and powers of all Courts,
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enact law which affects the jurisdiction and powers of the High
Court, except the jurisdiction and powers of the High Court under
Legislature has the power to enact law which abridges the powers
the High Court is, by the Constitution of India, design to fill. 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 derogate
from any power of the High Court. It is well settled that there is no
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inherent right of appeal. Right of appeal is conferred by Statute. A
Court would threaten the position which the High Court is required
enact law which affects the jurisdiction of all Courts, except the
Supreme Court. In other words it can enact law which affects the
jurisdiction of the High Court, except under Articles 226 and 227,
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but it cannot enact law which touches the jurisdiction of the
the Constitution, but not the provision for statutory appeal to the
Supreme Court.
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
of the Union List, going by its plain meaning, as also Article 138(1)
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 law
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State Legislature, nor validate a statutory provision, which would
Section 13(2) of the Rent Control Act with the provisions of the
78. A law made under Article 323B (1) of the Constitution may
observed above, Article 323B (2) (d) or any other provision of the
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Tribunal, where no serious question of law were involved, an
enact.
80. Article 138 (2) of the Constitution provides that the Supreme
Court shall have such further jurisdiction and powers with respect
Supreme Court.
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negotiations and not just an approval of legislation by the
not enacted any such law enabling the Supreme Court to exercise
not attracted.
Act ultra vires the Constitution and beyond the scope of the power
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keep subordinate courts and tribunals within the limits of their
and/or judicial review under Article 226 and 227 of the Constitution
would depend on the facts and circumstances of the case. The writ
held that the power of the High Court under Article 226/227 of the
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(supra) cannot be construed to enlarge the jurisdiction of the High
powers.
89. For the reasons discussed above, we hold that the State
the Rent Control Act. We, therefore, declare Section 13(2) of the
Rent Control Act ultra vires the Constitution of India, null and void
and of no effect.
……………………………..J
[ARUN MISHRA]
....…............................J.
[INDIRA BANERJEE]
…..………………………...J
[VINEET SARAN]
…………...………………..J.
[M.R. SHAH]
……..……………………...J.
[S. RAVINDRA BHAT]
NEW DELHI;
DECEMBER 10, 2019