H. S. YADAV Vs SHAKUNTALA DEVI PARAKH
Bench: HON'BLE MR. JUSTICE DEEPAK GUPTA, HON'BLE MR. JUSTICE ANIRUDDHA BOSE
Judgment by: HON'BLE MR. JUSTICE DEEPAK GUPTA
Case number: C.A. No.-005153 / 2019
Diary number: 10738 / 2019
Advocates: DEVASHISH BHARUKA Vs
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 5153 OF 2019
H. S. YADAV …APPELLANT(S)
SHAKUNTALA DEVI PARAKH …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
“Whether the State Legislature can enact a law providing an
appeal directly to the Supreme Court of India?” is the question
arising in this appeal.
2. The State of Chhattisgarh enacted the Chhattisgarh Rent
Control Act, 2011 (hereinafter referred to as ‘the Act’). Under this
Act, in the hierarchy of adjudicating authorities there is a Rent
Controller and above that, a Rent Control Tribunal. In terms of
Section 7 of the Act the State can appoint one or more officers
not below the rank of Deputy Collector, as Rent Controller with
territorial jurisdiction to be specified by the Collector. The Rent
Control Tribunal (hereinafter referred to as ‘the Tribunal’) is
constituted under Section 6 of the Act. This Tribunal has
appellate and supervisory jurisdiction. Section 6 of the Act
reads as under:
“6. Constitution of the Rent Control Tribunal.– (1) The State Government shall by notification constitute, within thirty days of this Act, a Tribunal in terms of Article 323B of the Constitution, to be called as Chhattisgarh Rent Control Tribunal, to give effect to the provisions of this Act, and for the adjudication or trial of any disputes, complaints, or offences with respect to rent, its regulation and control and tenancy issues including the rights, title and obligations of landlords and tenants.
Explanation. Matters relating to transfer of property and/or disputes regarding title over any property shall continue to be considered under relevant laws by the courts of law.
(2) The State Government in consultation with the High Court shall appoint the Chairman of the Rent Control Tribunal, a retired Judge of the High Court or serving or retired District Judge not below the rank of Super Time Scale.
(3) The Tribunal shall have such members with such qualification, as the State Government may prescribe.
(4) The State Government shall appoint an officer as the Registrar of the Tribunal, who shall not be below the cadre of Civil Judge ClassI or the rank of Deputy Secretary to the State Government.
(5) From the date, the Tribunal becomes functional, which date shall be published in the State Gazette, the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136 and High Court under Articles 226 and 227 of the Constitution, shall stand excluded in respect of all matters falling within the jurisdiction of the Tribunal:
Provided, however, that all cases pending before any court or authority immediately before the establishment of the Tribunal, shall continue to be processed under the old Act, as amended from time to time.
(6) The Tribunal shall have its headquarters at Raipur and the State Government may, by notification, fix such other places for hearing of matters by the Tribunal, as it deems fit.
(7) The terms and conditions of the service of the Chairman and members of the Tribunal shall be such as may be prescribed by the State Government.”
3. Section 13 of the Act provides for an appeal against orders
of the Rent Controller and the Tribunal. It reads thus:
“13. Appeal.(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.”
4. A bare perusal of Section 13 shows that from any order of
the Rent Controller an appeal lies to the Rent Control Tribunal
and in terms of Section 13(2), an appeal lies as a matter of right
to the Supreme Court.
5. When the present appeal, filed under Section 13(2) of the
Act, came up for admission, while issuing notice we had also
ordered as follows:
“xxx xxx xxx
Notice be given to the learned Advocate General of the State of Chhattisgarh and the learned Attorney General
for India as to whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature.
xxx xxx xxx”
6. Pursuant to the notice, learned Attorney General has
appeared and assisted the Court.
7. At the outset, we would like to point out that the Tribunal
has been constituted in exercise of the powers vested in the State
Legislature under Article 323B of the Constitution of India which
deals with tribunal for other matters. Subclause (h) of Clause
(2) of the said Article which empowers the appropriate legislature
to constitute a tribunal to deal with the issues relating to rent
and its regulations read as follows:
“323B. Tribunals for other matters.
(1) xxx xxx xxx
(2) The matters referred to in clause (1) are the following, namely:
xxx xxx xxx
(h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;”
8. It is not disputed before us that the State has the power to
constitute the Tribunal. The only issue is whether in terms of
Section 13(2) of the Act, the State Legislature could provide an
appeal as a matter of right from the order of the Tribunal to the
9. Article 246 of the Constitution specifically provides that
Parliament has exclusive powers to make laws in respect of
matters enumerated in List I (Union List) of the Seventh
Schedule. Likewise, the State has exclusive powers to make laws
in respect of matters falling in List II (State List) of the Seventh
Schedule. As far as the Concurrent List, i.e. List III is concerned,
both the Union and the State have the power to enact laws but if
the field is occupied by any law enacted by Parliament 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 the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.”
Entry 77 gives power to the Union in respect of jurisdiction
and the powers of the Supreme Court. This power cannot be
exercised by the State Legislature.
11. It would also be apposite to refer to Entry 65 of List II of the
Seventh Schedule, which reads as follows:
“65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.”
A bare reading of Entry 65 clearly indicates that the State
Legislature has no power to enact any legislation relating to
jurisdiction and power of the Supreme Court. This power is
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 Supreme Court, with respect to any of the matters in this list.”
Even Entry 46 makes it clear that as far as the
jurisdictional powers of the Supreme Court are concerned, they
cannot be exercised under the Concurrent List. Therefore, the
powers with regard to jurisdiction and power of the Supreme
Court vest with the Union and Parliament alone can enact a
legislation in this regard. The power of the Supreme Court
under Article 136 is always there. However, the State cannot
enact a legislation providing an appeal directly to the Supreme
Court. That would amount to entrenching upon the jurisdiction
of the Union, which the State Legislature does not have.
13. We are constrained to observe that the men who drafted the
Act did not even consider the hierarchy of Courts. As pointed
above, the Rent Control Tribunal is headed by a retired Judge of
the High Court or District Judge in the Super Time Scale or
above. What was the rationale of making such an order
appealable directly to the Supreme Court? We see no reason
why the supervisory jurisdiction of the High Court should be
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
Supreme Court, is totally illegal, ultra vires the Constitution and
beyond the scope of the powers of the State Legislature. Section
13(2) of the Act is accordingly struck down.
15. While dealing with the issue, we may make reference to the
fact that the Rent Control Tribunal is a tribunal constituted
under Article 323B of the Constitution.
16. In L. Chandrakumar vs. Union of India1, this Court clearly
held that tribunals constituted under Articles 323A and 323B of
the Constitution are subject to the writ jurisdiction of the High
Courts. In view of the law laid down in L. Chandrakumar’s
1 (1993) 4 SCC 119
case (supra), the High Court can exercise its supervisory
jurisdiction under Article 227 of the Constitution against the
orders of the Rent Control Tribunal.
17. In view of the above, we hold that an appeal under Section
13 (2) of the Act directly to the Supreme Court is not
maintainable. We, therefore, dismiss this appeal. However, we
leave it open to the appellant to approach the High Court for
redressal of his grievance under Article 227 of the Constitution.
If the appellant does so, the High Court shall decide the matter
strictly in accordance with law. Pending application(s) if any,
stand(s) disposed of.
…….…....................J. [DEEPAK GUPTA]
..…..…....................J. [SURYA KANT]
NEW DELHI OCTOBER 15, 2019