H. S. YADAV versus SHAKUNTALA DEVI PARAKH on 15 October 2019

[2019] 13 S.C.R. 733

H. S. YADAV

v.

SHAKUNTALA DEVI PARAKH

(Civil Appeal No. 5153 of 2019)

OCTOBER 15, 2019

[DEEPAK GUPTA AND SURYA KANT, JJ.]

Constitution of India– Arts.323B, 246, 227 and SeventhSchedule, List I (Entry 77), List II (Entry 65) & List III ( Entry 46)– State of Chhattisgarh enacted the 2011 Rent Control Act – Underthe Act, in the hierarchy of adjudicating authorities there is a RentController and above that, Rent Control Tribunal – Under s.13,from any order of the Rent Controller, an appeal lies to the RentControl Tribunal and in terms of s.13(2), an appeal lies as a matterof right to the Supreme Court – Issue as to whether the StateLegislature can enact law providing an appeal directly to theSupreme Court of India – Held: Tribunal has been constituted inexercise of the powers vested in the State Legislature u/Art.323Bwhich deals with tribunal for other matters – Sub-cl.(h) of Clause(2) thereof empowers the appropriate legislature to constitutetribunal to deal with the issues relating to rent and its regulations– Thus, it is not disputed that the State has the power to constitutethe Tribunal – Art.246 specifically provides that Parliament hasexclusive powers to make laws in respect of matters enumeratedin List I (Union List) – State has exclusive powers to make laws inrespect of matters falling in List II (State List)– In respect of mattersin the List III (Concurrent List), both the Union and the State havethe power to enact laws but, if the field is occupied by any lawenacted by the Parliament then the State cannot legislate on thesame issue – Entry 77 of List I gives power to the Union in respectof jurisdiction and the powers of the Supreme Court – This powercannot be exercised by the State Legislature – Further, Entry 65of List II indicates that the State Legislature has no power to enactany legislation relating to jurisdiction and power of the SupremeCourt – This power is specifically excluded – Even, Entry 46 ofList III makes it clear that as far as the jurisdictional powers ofthe Supreme Court are concerned, they cannot be exercised under

733

A

B

C

D

E

F

G

H

Athe Concurrent List – Therefore, the powers with regard tojurisdiction and power of the Supreme Court vest with the Unionand Parliament alone can enact legislation in this regard – s.13(2)of the 2011 Act, in so far as it provides an appeal directly to theSupreme Court, is ultra vires the Constitution and beyond the scopeof the powers of the State Legislature and is accordingly, struckBdown – No reason why the supervisory jurisdiction of the HighCourt should be excluded – Open to the appellant to approachthe High Court for redressal of his grievance u/Art.227, on whichthe High Court shall decide the matter strictly in accordance withlaw – Chhattisgarh Rent Control Act, 2011 – ss. 6, 7, 13.C

Chhattisgarh Rent Control Act, 2011 – s.13(2) – Held:s.13(2), in so far as it provides an appeal directly to the SupremeCourt, is ultra vires the Constitution and beyond the scope of thepowers of the State Legislature and is accordingly, struck down.

Dismissing the appeal, the CourtD

Conclusion

HELD: 1.1 The Tribunal has been constituted in exerciseof the powers vested in the State Legislature under Article 323Bof the Constitution of India which deals with tribunal for othermatters. Sub-clause (h) of Clause (2) of the said Articleempowers the appropriate legislature to constitute a tribunal toEdeal with the issues relating to rent and its regulations. It is notdisputed that the State has the power to constitute the Tribunal.Article 246 of the Constitution specifically provides thatParliament has exclusive powers to make laws in respect ofmatters enumerated in List I (Union List) of the SeventhFSchedule. Likewise, the State has exclusive powers to make lawsin respect of matters falling in List II (State List) of the SeventhSchedule. In the Concurrent List, i.e. List III , both the Unionand the State have the power to enact laws but if the field isoccupied by any law enacted by Parliament then the State cannotlegislate on the same issue. Entry 77 gives power to the UnionGin respect of jurisdiction and the powers of the Supreme Court.This power cannot be exercised by the State Legislature. [Paras7-10] [738-E-F; 739-A-D]

1.2 Entry 65 of List II of the Seventh Schedule clearlyindicates that the State Legislature has no power to enact anyHlegislation relating to jurisdiction and power of the Supreme Court. This power is specifically excluded. Even Entry 46 of ListIII of the Seventh Schedule makes it clear that as far as thejurisdictional powers of the Supreme Court are concerned, theycannot be exercised under the Concurrent List. Therefore,the powers with regard to jurisdiction and power of the SupremeCourt vest with the Union and Parliament alone can enact alegislation in this regard. The power of the Supreme Courtunder Article 136 is always there. However, the State cannotenact a legislation providing an appeal directly to the SupremeCourt. That would amount to entrenching upon the jurisdictionof the Union, which the State Legislature does not have. Themen who drafted the Act did not even consider the hierarchy ofCourts. The Rent Control Tribunal is headed by a retired Judgeof the High Court or District Judge in the Super Time Scale orabove. What was the rationale of making such an orderappealable directly to the Supreme Court? No reason why thesupervisory jurisdiction of the High Court should be excluded.Section 13(2) of the Act, in so far as it provides an appeal directlyto the Supreme Court, is totally illegal, ultra vires theConstitution and beyond the scope of the powers of the StateLegislature. Section 13(2) of the Act is accordingly struck down.In L. Chandrakumar vs. Union of India, Supreme Court clearly heldthat tribunals constituted under Articles 323A and 323B of theConstitution are subject to the writ jurisdiction of the HighCourts. In view of the law laid down in L. Chandrakumar’s case,the High Court can exercise its supervisory jurisdiction underArticle 227 of the Constitution against the orders of the RentControl Tribunal. An appeal under Section 13 (2) of the Actdirectly to the Supreme Court is not maintainable. However, itis left open to the appellant to approach the High Court forredressal of his grievance under Article 227 of the Constitution.If the appellant does so, the High Court shall decide the matterstrictly in accordance with law. [Paras 11-14, 15-17] [739-F-H;740-A-G]

L. Chandrakumar vs. Union of India (1993) 4 SCC119 – followed.

Case Law Reference

(1993) 4 SCC 119

A

B

CD

E

F

G

H

ACIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5153of 2019.

From the Judgment and Order dated 18.02.2019 of the RentControl Tribunal, Raipur, Chhattisgarh in Appeal No. Nil of 2018.

Ravi Bharuka, Devashish Bharuka, Ms. Sarvshree Singh, JustineBGeorge, Advs. for the Appellant.

Bharat Bhushan, Sumeer Sodhi, Varun Tankha, Ashish Tiwari,Advs. for the Respondent.

The Judgment of the Court was delivered by CDEEPAK GUPTA, J.

1. “Whether the State Legislature can enact a law providing anappeal directly to the Supreme Court of India?” is the question arisingin this appeal.

D2. The State of Chhattisgarh enacted the Chhattisgarh RentControl Act, 2011 (hereinafter referred to as ‘the Act’). Under this Act,in the hierarchy of adjudicating authorities there is a Rent Controllerand above that, a Rent Control Tribunal. In terms of Section 7 of theAct the State can appoint one or more officers not below the rank ofDeputy Collector, as Rent Controller with territorial jurisdiction to beEspecified by the Collector. The Rent Control Tribunal (hereinafterreferred to as ‘the Tribunal’) is constituted under Section 6 of the Act.This Tribunal has appellate and supervisory jurisdiction. Section 6 ofthe Act reads as under:- D

“6. Constitution of the Rent Control Tribunal.–

F

(1) The State Government shall by notification constitute,within thirty days of this Act, a Tribunal in terms ofArticle 323-B of the Constitution, to be called asChhattisgarh Rent Control Tribunal, to give effect to theprovisions of this Act, and for the adjudication or trial ofany disputes, complaints, or offences with respect to rent,its regulation and control and tenancy issues including therights, title and obligations of landlords and tenants.

G

Explanation.- Matters relating to transfer of property and/ordisputes regarding title over any property shall continue to beconsidered under relevant laws by the courts of law.

H

(2) The State Government in consultation with the HighCourt shall appoint the Chairman of the Rent ControlTribunal, a retired Judge of the High Court or servingor retired District Judge not below the rank of SuperTime Scale.

(3) The Tribunal shall have such members with suchqualification, as the State Government may prescribe.

(4) The State Government shall appoint an officer as theRegistrar of the Tribunal, who shall not be below thecadre of Civil Judge Class-I or the rank of DeputySecretary to the State Government.

(5) From the date, the Tribunal becomes functional, whichdate shall be published in the State Gazette, thejurisdiction of all courts, except the jurisdiction of theSupreme Court under Article 136 and High Court underArticles 226 and 227 of the Constitution, shall standexcluded in respect of all matters falling within thejurisdiction of the Tribunal:

Provided, however, that all cases pending before any court orauthority immediately before the establishment of the Tribunal,shall continue to be processed under the old Act, as amendedfrom time to time.

(6) The Tribunal shall have its headquarters at Raipur andthe State Government may, by notification, fix such otherplaces for hearing of matters by the Tribunal, as it deemsfit.

(7) The terms and conditions of the service of the Chairmanand members of the Tribunal shall be such as may beprescribed by the State Government.”

3. Section 13 of the Act provides for an appeal against ordersof the Rent Controller and the Tribunal. It reads thus:- “13. Appeal.-(1) Notwithstanding anything to the contrarycontained in this Act, a landlord and/or tenant aggrieved by anyorder of the Rent Controller shall have the right to appeal in theprescribed manner within the prescribed time to the Rent ControlTribunal.

A

B

C

D

E

F

G

H

A(2) Appeal against an order of the Rent Control Tribunal shalllie with the Supreme Court.”

4. A bare perusal of Section 13 shows that from any order ofthe Rent Controller an appeal lies to the Rent Control Tribunal and interms of Section 13(2), an appeal lies as a matter of right to the SupremeBCourt.

5. When the present appeal, filed under Section 13(2) of the Act,came up for admission, while issuing notice we had also ordered asfollows:- “xxxxxxxxxC

Notice be given to the learned Advocate General of the State ofChhattisgarh and the learned Attorney General for India as towhether the provisions contained in Section 13(2) of theChhattisgarh Rent Control Act, 2011 providing for an appeal tothe Supreme Court of India against the order of the Rent ControlDTribunal, Chhattisgarh would be within the legislative competenceof the State Legislature.

xxxxxxxxx”

6. Pursuant to the notice, learned Attorney General has appearedEand assisted the Court.

7. At the outset, we would like to point out that the Tribunal hasbeen constituted in exercise of the powers vested in the StateLegislature under Article 323B of the Constitution of India which dealswith tribunal for other matters. Sub-clause (h) of Clause (2) of the saidFArticle which empowers the appropriate legislature to constitute atribunal to deal with the issues relating to rent and its regulations readas follows:- “323B. Tribunals for other matters.-

(1) xxxxxxxxxG

(2) The matters referred to in clause (1) are the following,namely:- xxxxxxxxx (h) rent, its regulation and control and tenancy issues includingHthe rights, title and interest of landlords and tenants;”

8. It is not disputed before us that the State has the power toconstitute the Tribunal. The only issue is whether in terms of Section13(2) of the Act, the State Legislature could provide an appeal as amatter of right from the order of the Tribunal to the Supreme Court.

9. Article 246 of the Constitution specifically provides thatParliament has exclusive powers to make laws in respect of mattersenumerated in List I (Union List) of the Seventh Schedule. Likewise,the State has exclusive powers to make laws in respect of matters fallingin List II (State List) of the Seventh Schedule. As far as the ConcurrentList, i.e. List III is concerned, both the Union and the State have thepower to enact laws but if the field is occupied by any law enacted byParliament then the State cannot legislate on the same issue.

10. Entry 77 of List I of the Seventh Schedule reads as under:- “77. Constitution, organisation, jurisdiction and powers of theSupreme Court (including contempt of such Court), and the feestaken therein; persons entitled to practise before the SupremeCourt.”

Entry 77 gives power to the Union in respect of jurisdiction andthe powers of the Supreme Court. This power cannot be exercised bythe State Legislature.

11. It would also be apposite to refer to Entry 65 of List II ofthe Seventh Schedule, which reads as follows:- “65. Jurisdiction and powers of all courts, except the SupremeCourt, with respect to any of the matters in this List.”

A bare reading of Entry 65 clearly indicates that the StateLegislature has no power to enact any legislation relating to jurisdictionand power of the Supreme Court. This power is specifically excluded.

12. Entry 46 of List III of the Seventh Schedule is also relevant.This reads as follows:- “46. Jurisdiction and powers of all courts, except the SupremeCourt, with respect to any of the matters in this list.”

Even Entry 46 makes it clear that as far as the jurisdictionalpowers of the Supreme Court are concerned, they cannot be exercisedunder the Concurrent List. Therefore, the powers with regard tojurisdiction and power of the Supreme Court vest with the Union and A

B

C

D

E

F

G

H

AParliament alone can enact a legislation in this regard. The power ofthe Supreme Court under Article 136 is always there. However, theState cannot enact a legislation providing an appeal directly to theSupreme Court. That would amount to entrenching upon the jurisdictionof the Union, which the State Legislature does not have.

B13. We are constrained to observe that the men who drafted theAct did not even consider the hierarchy of Courts. As pointed above,the Rent Control Tribunal is headed by a retired Judge of the High Courtor District Judge in the Super Time Scale or above. What was therationale of making such an order appealable directly to the SupremeCourt? We see no reason why the supervisory jurisdiction of the HighCCourt should be excluded.

14. We, therefore, have no doubt in our mind that Section 13(2)of the Act, in so far as it provides an appeal directly to the SupremeCourt, is totally illegal, ultra vires the Constitution and beyond the scopeof the powers of the State Legislature. Section 13(2) of the Act isDaccordingly struck down.

15. While dealing with the issue, we may make reference to thefact that the Rent Control Tribunal is a tribunal constituted under Article323B of the Constitution.

E16. In L. Chandrakumar vs. Union of India[1], this Court clearlyheld that tribunals constituted under Articles 323A and 323B of theConstitution are subject to the writ jurisdiction of the High Courts. Inview of the law laid down in L. Chandrakumar’s case (supra), theHigh Court can exercise its supervisory jurisdiction under Article 227of the Constitution against the orders of the Rent Control Tribunal.F

E

17. In view of the above, we hold that an appeal under Section13 (2) of the Act directly to the Supreme Court is not maintainable.We, therefore, dismiss this appeal. However, we leave it open to theappellant to approach the High Court for redressal of his grievanceunder Article 227 of the Constitution. If the appellant does so, the HighGCourt shall decide the matter strictly in accordance with law. Pendingapplication(s) if any, stand(s) disposed of.

Divya Pandey

H1 (1993) 4 SCC 119