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PETITIONER: MOTOR GENERAL TRADERS & ANR. ETC. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS. ETC. ETC.

DATE OF JUDGMENT26/10/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, A.P. (J)

CITATION:  1984 AIR  121            1984 SCR  (1) 594  1984 SCC  (1) 222        1983 SCALE  (2)513  CITATOR INFO :  E          1986 SC 244  (7,13)  RF         1986 SC1444  (4)  F          1987 SC2117  (31)  D          1989 SC1624  (11)  RF         1990 SC1927  (74)

ACT:      Constitution of  India 1950  Article  14-Classification when constitutional-Andhra  Pradesh Buildings  (Lease,  Rent and Eviction)  Control  Act,  1960  Section  32  (b)-Whether violative of Article 14.      Andhra Pradesh  Buildings (Lease,  Rent  and  Eviction) Control Act,  1960, Section 32 (b)-Act not applicable to any building constructed  on or  after August 26, 1957-Provision Whether violative of Article 14 of the Constitution.      Interpretation of Statutes.      Constitutionality of  a statute-Whether  mere lapse  of time lends constitutionality to a provision.      Doctrine of  severability-Section  in  a  statute  held violative of  Article-Whether entire  statute can  be struck down.

HEADNOTE:      On October  1, 1953  the  State  of  Andhra  came  into existence. The  Madras Buildings  (Lease, Rent and Eviction) Control Act, 1949 continued to be in operation in the State. The area  known as  Telengana was merged with Andhra and the new State  of Andhra Pradesh came into existence on November 1,1956. The  Hyderabad  House  (Rent,  Eviction  and  Lease) Control Act,  1954 which  was in force in the Telengana area continued to  be in  force in  that area  even after the new State of Andhra Pradesh came into existence.      By a  notification dated  May 9,  1956  issued  by  the Government of  Andhra Pradesh,  all buildings  in the Andhra area the  construction of  which was  completed on  or after October 1,1953  were exempted,  from the  Madras Act  for  a period of  three years  from the date of such completion. On August  26,1957   the  State   Government   issued   another notification under the Hyderabad Act exempting all buildings in the  Telengana Area  for a period of five years. Both the Madras Act  and the Hyderabad Act were repealed and replaced by the  Andhra Pradesh  Buildings (Lease, Rent and Eviction)

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Control Act,  1960, which  was passed in 1960. Section 32 of the Act  provided that  the Act  would not  apply (a) to any building owned  by  the  Government,  (b)  to  any  building constructed on and after 26th August, 1957.      The constitutionality  of sec. 32 (b) was questioned in a writ  petition filed  in 1964,  in the  High Court  on the ground that  it violated  Art. 14  of the Constitution. That petition was dismissed by the High Court on January 5, 1965 595 (Chintapalli Achaiah  v. P. Gopalakrishna Reddy, A.I.R. 1966 A.P. 51)  upholding the  validity of  sec. 32  (b). The High Court held  that the  hardship caused  to the  tenant by the exemption given  in the  case of buildings constructed after August 26,  1957 under  sec. 32  (b) of  the Act  was ’short lived’ and  the concession  should be  tolerated for a short while.      In their  writ petitions  to this Court the petitioners assailed the  constitutional validity  of sec. 32 (b) of the Act contending  that the  buildings to  which  the  Act  was applicable were  aged more  than 26 years and those to which the Act  was not applicable were aged about 26 years or less and during  the 26  years from  August 26, 1957 thousands of buildings had been constructed enjoying immunity of the Act, that on  account of  the exemption,  there were  two sets of buildings  in   every  area  those  to  which  the  Act  was applicable and  those which  were exempted under sec. 32 (b) and there  had also  come  into  existence  two  classes  of landlords-one class  governed by  the Act  and the other not governed by  the Act  and two  classes of  tenants-one class having the  protection of the remedial provisions of the Act and another  class which  did not  have such protection, and that whatever  might have been the position in the first few years after  the Act  was passed  there was no justification for continuing this exemption for all time to come.      The  writ   petitions  were   resisted  by   the  State Government and  the landlords, on the ground that since sec. 32 (b)  was valid  at the commencement of the Act as held by the High  Court in the year 1965 it could not be struck down at any  time after  it had came into force. If clause (b) of sec. 32  was invalid  then the  entire Act  would have to be struck down, so that all the tenancies might be regulated by contracts entered  into by  the parties  in accordance  with their free  will. They  also urged  that s.  32 (b)  was not violative of  Article 14.  The State  Government also stated that two  attempts were made to get the Act amended but that they failed. In the first Bill it was proposed to substitute the date  ’26th August 1957’ in sec. 32 (b) by the date ’the 1st January,  1968’. In  the second  Bill it was proposed to confine the  exemption in  respect of  each  building  to  a period of ten years after its construction.      Allowing the writ petitions. ^      HELD: 1.  Clause (b)  of sec.  32 of  the Act should be declared as  violative of  Article 14  of  the  Constitution because the  continuance of  that provision  on the  statute book would  imply the  creation of  a  privileged  class  of landlords without  any rational  basis, as  the incentive to build which provided a nexus for a reasonable classification of such  class of  landlords no  longer existed  by lapse of time in  the case  of the  majority of such landlords. There was no reason why, after all these years, they should not be brought at  par with other landlords who were subject to the restrictions imposed by the Act in the matter of eviction of tenants and control of rents. [619 B-C]      2. The  burden of  proof regarding  the question that a

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piece of  legislation is violative of Art. 14 was, no doubt, on the  petitioners. That burden stood discharged by them in the instant  cases. The  impugned provisions had at any rate become per  se discriminatory because it was not possible to support 596 the exemption  given to  buildings which had also now become old as  many of   them  were now more than 10 years old. The State Government  itself had  made two  abortive attempts to get the section amended. [604 G-H]      3. Many  of the  exempted buildings  were more than ten years old.  While there was some justification for exempting new buildings  which were  say five,  seven or ten years old from the  date of  the Act, in order to provide an incentive to  builders   of  new   buildings,  there  was  hardly  any justification to allow buildings which were constructed more than ten  years ago  to remain outside the scope of the Act. The landlords  of such  buildings must have realised a large part of  the investment  made on  such buildings  by way  of rents during  all these  years. The  court could not fail to take  into  account  that  owing  to  continuous  influx  of population into  urban areas  in recent  years the rents had gone up  everywhere and that the landlords of such buildings had been  able to take advantage of the situation created by the shortage  of urban  housing accommodation  which  was  a universal phenomenon.  In the  case of these buildings there was no  longer any  need to  continue the  exemption.[605 G- 606A]      4. There  could not be any valid justification to apply the Act  to a  building which  was 27  years old  and not to apply it  to a  building which was 26 years old. The anomaly brought about  by sec.  32(b) would  be more pronounced when the State  Government by a notification brought the Act into force in  any part  of the State for the first time. On such extension of  the Act  only buildings  constructed prior  to August 26,  1957 in  that part  of the  State  would  become subject to  the Act  and buildings  constructed later  would still be  exempt from  its  operation.  This  was  a  wholly insupportable   classification.    The   classification   of buildings into  two classes  for purposes  of sec. 32 (b) of the Act, therefore, did not any longer bear any relationship to the  object, since  the buildings which were exempted had already come  into existence and their owners had realised a major part of their investment. [606 B-D]      In the  instant case, the legislature while passing the law had  given the  exemption apparently  as an incentive to encourage building  activity.  It  was  not  shown  how  the continuance of  the exemption in the case of persons who had built houses  more than  two decades  ago would  act  as  an incentive to  builders of  new houses  now. If  that was so, then there  was no  justification to  continue to  have  the restrictions imposed  by the Act on buildings built prior to August 26,  1957 also  and the  whole Act  should have to be repealed, for  if the  impugned exemption  could act  as  an incentive the  repeal of  the Act  should  also  act  as  an incentive. [613 G]      5. (i)  The long  period that  had  elapsed  after  the passing of  the Act  itself served  as a  crucial factor  in deciding the  question whether  the impugned  law had become discriminatory or  not  because  the  ground  on  which  the classification of buildings into two categories was made was not a  historical or  geographical one  but was  an economic one. Exemption  was  granted  by  way  of  an  incentive  to encourage building  activity and  in the  circumstances such exemption could not be allowed to last for ever. [613H-614]

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597      (ii) The  landlords of buildings constructed subsequent to August  26, 1957  were given  undue preference  over  the landlords of  buildings constructed  prior to  that date  in that the former were free from the shackles of the Act while the latter were subjected to the restrictions imposed by it. What should  have  been  just  an  incentive  had  become  a permanent  bonanza   in  favour  of  those  who  constructed buildings subsequent  to  August  26,1957.  There  being  no justification for  the continuance of the benefit to a class of persons  without any  rational basis whatsoever, the evil effects flowing  from the impugned exemption had caused more harm to  the society  than one  could anticipate.  What  was justifiable during  a short  period had  turned out  to be a case of  hostile discrimination by lapse of nearly a quarter of century. [614 D-E]      (iii) Mere lapse of time did not lend constitutionality to  a  provision  which  was  otherwise  bad.  The  garb  of constitutionality which  it may  have possessed  earlier had become worn  out and  its  constitutionality  had  been  now brought to a successful challenge. [614 G]      6. The  striking down  of clause  (b) of sec. 32 of the Act did  not in any way affect the rest of the provisions of the Act.  The clause  was not  so inextricably bound up with the rest  of the  Act  as  to  make  the  rest  of  the  Act unworkable after  it was  struck down.  Having regard to the history of  the legislation the Act had to be sustained even after striking  down clause  (b) of  sec. 32.  The effect of striking down  the impugned  provision  would  be  that  all buildings, except  those falling under clause (a) of sec. 32 or exempted  under sec. 26 in the areas where the Act was in force, would be governed by the Act irrespective of the date of their construction. [618E-619A]      Chintapalli Achaiah  v. P. Gopalakrishna Reddy, (A.I.R. 1966 Andhra Pradesh 51) overruled.      Shri Ram  Krishna Dalmia v. Shri Justice S.R. Tendolkar JUDGMENT: Madhya Pradesh  [1962] Supp.  2 S.C.R.  257; State of Madhya Pradesh v.  Bhopal Sugar  Industries Ltd.,  [1964] 6  S.C.R. 846; Vishwesha  Thirtha Swamiar  & ors. v. State of Mysore & Anr. [1972]  1 S.C.R.  137; H.H.  Shri Swamiji of Shri Admar Mutt etc.  v. The  Commissioner Hindu Religious & Charitable Endowments Department  & ors.  [1980] 1 S.C.R. 368; Narottam Kishore Dev  verma & ors. v. Union of India & Anr., [1964] 7 S.C.R. 55;  R.M.D. Chamarbaugwalla  v. The  Union  of  India [1957] S.C.R.  930; and D.S. Nakara & ors. v. Union of India [1983] 1 S.C.C. 305 referred to.      7. (1) The incentive to build provides a rational basis for classification  and it  is necessary,  in  the  national interest, that there should be freedom from restrictions for a limited  period of  time. It  is always  open to the State Legislature or  the  State  Government  to  take  action  by amending the  Act itself or under sec. 26 of the Act, as the case may  be, not  only to  provide incentive to persons who are desirous of building new houses, as it serves a definite social purpose but also to mitigate the rigour to such class of landlords  who may have recently built their houses for a limited period as it has been done in the Union Territory of Chandigarh. [619 E-F] 598      M/s. Punjab  Tin Supply  Co., Chandigarh  etc.  v.  The Central Government & ors.,[1984] 1 S.C.R. p. 7.      (ii) The  question whether  new legislation  should  be initiated  to  exempt  newly  constructed  buildings  for  a limited period of time on the pattern of similar legislation

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undertaken by  different States  or to  exempt such class of buildings for a given number of years from the provisions of the Act  by the issue of a notification under sec. 26 of the Act is for the State Government to decide. [619 G-H]

&      ORIGINAL JURISDICTION  : Writ  Petitions  Nos.  737  of 1979, 242 of 1980,5316, 3974 and 7902-03 of 1983.            (Under article 32 of the Constitution)      K. R.  Chodhary, K. Rajendra Chodhary, A. Subba Rao, C. S. Vaidyanathan,  C. S.  S. Rao,  Mrs. Baby  Krishnan, A. V. Rangam, T.  V. S.  N. Chari,  B. Kanta Rao and S. Markandeya for the appearing parties.      The judgment of the Court was delivered by      VENKATARAMIAH. J. The constitutional validity of clause (b) of  section 32  of the  Andhra pradesh Buildings (Lease, Rent and  Eviction) Control  Act, 1960   (Act  XV  of  1960) (hereinafter referred  to as  ’the Act’)  which exempts  all buildings constructed  on and  after August 26,1957 from the operation of  the Act is challenged in these petitions under Article 32 of the Constitution.      On October  1,1953,  the  State  of  Andhra  came  into existence under the provisions of the Andhra State Act, 1953 comprising the area specified in section 3 of that Act which formerly formed  a part  of the  then State  of  Madras.  By virtue of  the provisions  contained in Part VI of that Act, the Madras  Buildings (Lease  and Rent  Control)  Act,  1949 (Madras Act XXV of 1949) continued to be in operation in the State of  Andhra. On  November  1,  1956  under  the  States Reorganisation Act,  1956 with  the merger of the area known as the  Telangana area,  which formerly formed a part of the erstwhile State  of Hyderabad,  with the  territories of the State of  Andhra the  new State  of Andhra Pradesh came into existence.  By   virtue  of   section  119   of  the  States Reorganisation Act,  the Hyderabad House (Rent, Eviction and Lease)  Control   Act,  1954  (Hyderabad  Act  XX  of  1954) continued to  be in  force in  the Telangana area even after the new  State of Andhra Pradesh came into existence. In the Andhra area, the Madras 599 Buildings (Lease  and Rent Control) Act, 1949 also continued to be  in force.  By a notification dated May 9, 1956 issued by the  Government of  Andhra Pradesh  under the said Madras Act, all  buildings in  the Andhra area, the construction of which was completed on or after October 1,1953 were exempted from all  the provisions  of that  Act for a period of three years from  the date  of such completion. On August 26, 1957 the State  Government issued  another notification under the Hyderabad Act  exempting buildings in the Telangana Area for a period  of five years from the operation of that Act. Both the said  Madras Act and the Hyderabad Act were repealed and replaced by  the Act  which came  to be  passed in  1960. It appears that  at the  time when  the Bill which later became the Act  was being  considered by the Joint Select Committee of the  State Legislature,  the Chairman  of  the  Committee informed the  Committee that  the Government  of  India  had advised that  new buildings  should be exempted from the Act as it  would be  an incentive to the house building activity and he  also brought to its notice that the State Government had issued  the above said orders exempting the new building from the  provisions of  the respective  Acts for  a limited period. Thereupon Joint Select Committee recommended that in order to afford an incentive to the house building activity,

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all buildings  constructed after  August 26,1957  should  be exempted from  the scope  of the Bill. Ultimately section 32 of the Act was enacted as follow:-           "32 Act not to apply to certain buildings:-           The provisions of this Act shall not apply:-                (a)  to any building owned by the Government;                (b)  to any building constructed on and after                     the 26th August 1957".      We are concerned with clause (b) of section 32 in these cases. It  may be  noted that  the exemption  granted  under clause (b)  is not  restricted to  any specific period as it was in the notifications issued under the repealed Acts. Now was it  made applicable to new buildings as suggested by the Government of  India by laying down a specific period during which they would be considered as new purposes of exemption. The  constitutionality  of  this  provision  was  questioned before the  High Court  of Andhra Pradesh on the ground that it 600 violated Article  14  of  the  Constitution  in  Chintapalli Achaiah v  P. Gopalakrishna  Reddy(1) in a petition filed in 1964. That  petition was  dismissed by  the  High  Court  on January 5,1965  upholding the  validity of section 32 (b) of the Act.  In the  course of  its  judgment  the  High  Court observed thus:           "The policy  of the  Act  can  be  found  out,  as      discussed above,  from all  permissible  intrinsic  and      extrinsic sources. Thus examined, the policy underlying      s. 32  is to provide an incentive to private efforts to      construct new  buildings.  The  Act  read  as  a  whole      therefore balances  the policy  underlying the main Act      and the  policy underlying  section  32.  This  purpose      cannot be  said to  be in  any manner derogatory to the      main purpose  of the Act; in fact it supplements it. It      is true  that the  tenants of  the new  buildings would      suffer from the same hardship in order to redress which      the measure  was enacted. The Legislature in its wisdom      and  perhaps   with  justification  thought  that  this      hardship to  the tenant will be shortlived and compared      to the  necessity of  bringing into  existence more and      more new  houses, for  which purpose  the concession is      shown has necessarily to be to erated for a short while      in the  interests of  the entire body of tenants as the      new buildings  are bound  to bring  down not  only  the      hardships from  which the new tenants would thus suffer      but   solve   the   larger   problem   of   residential      accommodation thus giving relief in all respects to the      entire body of the tenants. It is for this purpose that      it  is   now  well-settled  that  the  Legislature  can      recognise degrees  of  evil  without  being  arbitrary,      unreasonable  or  in  conflict  with  Art.  14  of  the      Constitution." (Underlining by us)      It may  be noticed  that the  High Court  felt that the hardship caused to the tenants by the exemption given in the case of  buildings constructed  after August  26,1957  under section 32  (b)  of  the  Act  was  ’short  lived’  and  the concession should  be tolerated  for a short while. But that was not  to be  so. The exemption has continued to remain in force till  now i.e. for more than a quarter of century. The problem of  shortage of housing accommodation in urban areas is becoming  more and  more acute.  The landlords who earned their exemption 601 under section  32(b) of  the have  continued to  enjoy for a long number  of years the freedom to indulge in malpractices

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which the  Act  was  intended  to  check  while  others  are governed by the Act. The petitioners have now questioned the validity of the said provision before this Court.      The Act  except sub-section  (2) of  section 3  thereof applies to  the cities  of Hyderabad and Secunderabad and to all municipalities  in the  State of  Andhra  Pradesh.  Sub- section (2) of section 3 of the Act applies to the cities of Hyderabad and  Secunderabad and  to any  municipality in the State of  Andhra Pradesh  if the  State Government  issues a notification  to   that  effect.  The  State  Government  is authorised to  apply all or any of the provisions of the Act except section 3(2) to any other area in the State of Andhra Pradesh. The Act was passed with a view to consolidating and amending the  law relating  to the  regulation of leasing of buildings, the  control of  rents thereof and the prevention of unreasonable  eviction of  tenants therefrom in the State of Andhra Pradesh.      In view of section 32 (b) of the Act there are two sets of buildings  in every  area in which the Act is applicable- those to  which the  Act is  applicable and  those which are exempted under section 32 (b), leaving aside buildings owned by the  Government and  those exempted  by any  notification issued under  section 26  of the Act. The buildings to which the Act  is applicable are aged more than 26 years and those to which  the Act  is not applicable are aged about 26 years or less. During these 26 years from August 26,1957 thousands of buildings  may have  been constructed and all of them are continuing to  enjoy the immunity from the provisions of the Act.  The  petitioners  contend  that  on  account  of  this exemption there have also come into existence two classes of landlords-one class  governed by  the Act  and the other not governed by  the Act  and two  classes of  tenants-one class having the  protection of the remedial provisions of the Act and another  class who  do not  have such  protection. It is argued by  the petitioners  that whatever  may have been the position in  the first  few years  after the Act was passed, there is  no justification for continuing this exemption for all time to come.      The State  Government has  stated that  the  object  of granting the  exemption was  only to provide an incentive to the building  activity. It is further pleaded in paragraph 6 of the  counter affidavit  filed  on  behalf  of  the  State Government thus: 602           "6. It  was  under  active  consideration  of  the      Government subsequently  regarding amending  section 32      (b) of  the Act  so as  to include later constructions.      Twice bills  were introduced  in the Legislature of the      State but,  however, they  could  not  be  passed.  The      matter is  again  under  active  consideration  of  the      Government. The proposal now under consideration by the      Government is  to extend the Act to all buildings after      the completion  of  10  years  of  their  construction.      Similar provisions are to be found in the relevant Acts      of the  States of Tamil Nadu and Karnataka. However, in      the States of Tamil Nadu and Karnataka, the Act applies      to buildings five years after construction."      Two attempts  were made to get the Act amended but they failed. In  Bill No.  33 of  1977 introduced  in the  Andhra Pradesh  Legislative   Assembly  on  July  27,1977,  it  was proposed to  substitute the  date ’the 26th August, 1957’ in section 32(b) of the Act by the date the Ist January, 1968’. The said  Bill lapsed  on  the  Legislative  Assembly  being prorogued on September 2,1977. In the Bill (L.A. Bill No. 12 of 1982) which was introduced on July 26, 1982 but which was

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not passed  owing to  the  dissolution  of  the  Legislative Assembly it was proposed to confine the exemption in respect of each  building  to  a  period  of  ten  years  after  its construction. The  statement of Objects and Reasons attached to that  Bill is  instructive. The relevant part of it reads thus:           "Statement of Objects and Reasons.           The  Andhra  Pradesh  Building  (Lease,  Rent  and      Eviction) Control Act, 1960 came into force on the 21st      April, 1960  and applies to buildings constructed prior      to  the  26th  August,  1957  in  the  twin  cities  of      Hyderabad and  Secunderabad and other municipalities in      the State.  The number  of buildings that existed as on      that date was adequate enough to serve the needs of the      population at  that time. Such of the buildings as were      in good  condition have  already been requisitioned and      have been under the control of the Government. The rest      of the  buildings  are  now  either  in  a  dilapidated      condition or  under the  occupation of  the  landlords.      Consequently, the  Government are facing acute shortage      of accommodation 603      and it  has become almost impossible to requisition any      old building constructed prior to the 26th August, 1957      to meet  the growing  needs of  the Government.  It is,      therefore, proposed  to extend  the scope of the Act to      all buildings  after the  expiration of  ten years from      the completion of their construction.      XXX            XXX             XXX                XXX                                              B. Venkatram                                              Chief Minister"      Although the  reason given  for the  amendment  in  the Statement of Objects and Reasons approaches the problem from the point  of view  of the Government, it is clear that even the State  Government,  is  not  quite  satisfied  with  the existing law.      The petitioners principally rely upon Article 14 of the Constitution in  support of  their case. The equality clause contained  in   that  Article   requires  that  all  persons subjected to  any legislation  should be treated alike under like circumstances and conditions. Equals have to be treated equally and  unequals ought not to be treated equally. While that Article  forbids class  legislation, it does not forbid classification for  purposes of  implementing the  right  of equality guaranteed by it. In order however to pass the test of  permissible   classification  two   conditions  must  be fulfilled, namely,  (i)  that  the  classification  must  be founded on  an intelligible  differentia which distinguishes persons or things that are grouped together from others left out of  the group  and (ii)  that   differentia must  have a rational relation to the object sought to be achieved by the statute in question. While the classification may be founded on different bases what is necessary is that there must be a nexus between  the basis of classification and the object of the Act  under consideration.  The  principles  governing  a valid classification  have been  laid down  by this Court in Shri Ram  Krishna Dalmia  v. Shri  Justice S.R.  Tendolkar & Ors.(1) thus:      "(a) that a  law may  be constitutional  even though it           relates to  a single  individual if, on account of           some special  circumstances or  reasons applicable           to him  and not  applicable to others, that single           individual may be treated as a class by himself; 604      (b)  that there  is always  a presumption  in favour of

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         the constitutionality  of  an  enactment  and  the           burden is  upon him  who attacks  it to  show that           there  has  been  a  clear  transgression  of  the           constitutional principles;      (c)  that is  must be  presumed  that  the  legislature           understands and  correctly appreciates the need of           its own  people, that  its laws  are  directed  to           problems made  manifest by experience and that its           discriminations are based on adequate grounds;      (d)  that the  legislature is free to recognize degrees           of harm  and may confine its restrictions to those           cases where the need is deemed to be the clearest;      (e)  that  in  order  to  sustain  the  presumption  of           constitutionality  the   court   may   take   into           consideration matters of common knowledge, matters           of common report, the history of the times and may           assume every state of facts which can be conceived           existing at the time of legislation; and      (f)  that  while   good  faith  and  knowledge  of  the           existing conditions  on the  part of a legislature           are to  be presumed,  if there  is nothing  on the           face of  the law  or the surrounding circumstances           brought to  the notice  of the  court on which the           classification  may   reasonably  be  regarded  as           based, the presumption of constitutionality cannot           be carried  to the  extent of  always holding that           there must be some undisclosed and unknown reasons           for subjecting certain individuals or corporations           to hostile or discriminating legislation."      The burden of proof regarding the question that a piece of  legislation   is  violative   of  Article   14  of   the Constitution is,  no doubt, on the pentitioners. That burden stands discharged  by them  in these  cases. It is seen that the  impugned   provision  has  at  any  rate  become  perse discriminatory because  it is  not possible  to support  the exemption given  to buildings which have also now become old as many  of them  are now more than ten years old. The State Government itself  has already made two abortive attempts to get the section amended. 605      The Law Commission of Andhra Pradesh in its 24th Report on the revision of the Act submitted in December, 1977 while expressing  its  opinion  on  the  clause  relating  to  the amendment of section 32 (b) of the Act observed thus:           "Sub-clause (v)  is intended to exclude buildings,      for a  period of  10 years from the date on which their      construction is  completed, from the purview of the Act      to  ensure   that  the   incentive   to   embark   upon      construction of  new houses,  which is  so necessary at      present, is  not scuttled  but encouraged. Exclusion of      buildings for  a particular  period, reckoned  from the      date of  completion of  their construction  is  in  our      opinion,  a  better  course  than  providing  that  the      proposed Act  shall not  apply to buildings constructed      on or  after a  particular date,  as the  former  would      obviate  the  need  for  periodical  amendment  of  the      provision if  the Act  should continue to remain on the      Statute Book for a considerable length of time."      In the circumstances it is not possible to say that the petitioners have not placed any material in support of their case. On  the other hand the contesting respondents have not placed any  material in  support  of  their  case  that  the impugned provision  in its  present form  does  not  violate Article 14 of the Constitution.      Judged from the standards laid down in the case of Shri

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Ram Krishna-Dalmia  (supra) we  are of  the  view  that  the classification of buildings for purposes of section 32(b) of the  Act  does  not  satisfy  the  true  tests  of  a  valid classification. We  are confronted  in these  cases with the position, say,  in Hyderabad  city, that  there are  a large number of  buildings which  are more than 26 years old which are governed  by  the  Act  and  quite  a  large  number  of buildings which are constructed subsequent to August 26,1957 which are  exempted from  it. Many of the exempted buildings are more  than 10  years old.  While it may be that there is some justification for exempting new buildings say which are five, seven  or ten  years old  from the  Act, in  order  to provide an  incentive to builders of new buildings, there is hardly any  justification  to  allow  buildings  which  were constructed more  than ten  years ago  to remain outside the scope of  the Act. The landlords of such buildings must have realised a  large part  of investment made on such buildings by way  of rents  during all  these years.  The Court cannot fail to take into account that owing to continuous influx of 606 population into  urban areas  in recent  years the  rates of rents have  gone up  every where  and that  the landlords of such buildings  have been  able to  take  advantage  of  the situation  created   by  the   shortage  of   urban  housing accommodation which  is now  a universal  phenomenon. In the case of  these buildings  there is  no longer  any  need  to continue  the   exemption.  There   cannot  be   any   valid justification to  apply the  Act to  a building  which is 27 years old  and not  to apply  it in  the case  of a building which is  26 years old. The anomaly that is brought about by section 32  (b) of the Act would be more pronounced when the State Government by a notification brings the Act into force now in  any part  of the  State for  the first time. On such extension of  the Act  only buildings  constructed prior  to August 26,1957  in that  part  of  the  State  would  become subject to the Act and later buildings would still be exempt from  its   operation.  This   is  a   wholly  insupportable classification. The  classification of  buildings  into  two classes  for   purposes  of  section  32  (b)  of  the  Act, therefore, does not any longer bear any relation-ship to the object, since  the buildings which are exempted have already come into  existence and  their owners have realised a major part of their investment.      But it  was argued that since section 32 (b) of the Act was valid at the commencement of the Act as held by the High Court in the year 1965, it cannot be struck down at any time after it has come into force.      What  may  be  unobjectionable  as  a  transitional  or temporary measure  at an  initial  stage  can  still  become discriminatory and  hence violative  of Article  14  of  the Constitution if  it is  persisted  in  over  a  long  period without any  justification. The  trend of  decisions of this Court on the above question may be traced thus. In Bhaiyalal Shukla v.  State of  Madhya Pradesh  one of  the contentions urged was  that the  levy of sales tax in the area which was formally known  as Vindhya  Pradesh (a  Part ’C’  State)  on building  materials   used   in   a   works   contract   was discriminatory after  the merger  of that  area in  the  new State of  Madhya Pradesh which was formed on November 1,1956 under the  States Reorganisation  Act, 1956  as the  sale of building materials  in a  works contract  was not subject to any levy  of sales tax in another part of the same new State namely the area which was formerly part of the area known as State of  Madhya Pradesh  (the Central  Provinces and  Berar area). That  contention was  rejected by this Court with the

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following observations at pages 274-275: 607           "The laws  in different  portions of the new State      of   Madhya   Pradesh   were   enacted   by   different      Legislatures,  and   under  s.   119  of   the   States      Reorganisation Act all laws force are to continue until      repealed or  altered by the appropriate Legislature. We      have already  held that  the sales  tax law  in Vindhya      Pradesh  was   validly  enacted,  and  it  brought  its      validity  with   it  under   s.  119   of  the   States      Reorganisation Act,  when it became a part of the State      of Madhya  Pradesh. Thereafter,  the different  laws in      different parts  of Madhya  Pradesh can be sustained on      the  ground   that  the   differentiation  arises  from      historical reasons,  and a  geographical classification      based on  historical reasons  has been  upheld by  this      Court in  M.K. Prithi  Rajji v.  The State of Rajasthan      (Civil Appeal  No. 327  of 1956  decided on November 2,      1960) and  again in  The State of Madhya Pradesh v. The      Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of      1957 decided  on November 30, 1960), The latter case is      important, because  the sugarcane  cess levied  in  the      former Gwalior  State but  not in  the rest  of  Madhya      Bharat of which it formed a part, was challenged on the      same ground  as here, but was upheld as not affected by      Art. 14 We, therefore, reject this argument."      Then followed  the decision  of this  Court in State of Madhya Pradesh  v. Bhopal  Sugar Industries  Ltd.(1) In this case the  continuance of the levy of agricultural income-tax in the  area comprised in the former State of Bhopal (a Part ’C’ State)  under the  Bhopal State  Agricultural Income-tax Act, 1953  (Act No. IX of 1953) even after its merger in the new State  of Madhya Pradesh formed on November 1,1956 under the States  Reorganisation Act,  1956 when there was no such levy on  agricultural income  in some other parts of the new State of  Madhya Pradesh  was questioned  on the ground that Article 14 of the Constitution had thereby been contravened. The High  Court of  Madhya Pradesh  upheld the  plea of  the petitioner. On  appeal this Court observed in the above case at pages 852-854 thus:           "Continuance of  the laws  of the old region after      the  reorganization   by   s.   119   of   the   States      Reorganization Act  was by  itself  not  discriminatory      even though  it resulted  in differential  treatment of      persons, objects and transactions 608      in the  new State,  because it  was intended to serve a      dual  purpose-facilitating   the  early   formation  of      homogeneous units  in the larger interest of the Union,      and  maintaining   even  while  merging  its  political      identity in  the new unit, the distinctive character of      each region,  till uniformity  of laws  was secured  in      those branches  in which  it was  expedient after  full      enquiry to do so. The laws of the regions merged in the      new units  had therefore  to be continued on grounds of      necessity and  expediency. Section  119 of  the  States      Reorganization Act was intended to serve this temporary      purpose, viz.,  to enable the new units to consider the      special circumstances  of  the  diverse  units,  before      launching upon a process of adaptation of laws so as to      make them  reasonably  uniform,  keeping  in  view  the      special   needs    of   the   component   regions   and      administrative   efficiency.   Differential   treatment      arising out of the application of the laws so continued      in different regions of the same reorganised State, did

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    not therefore  immediately attract  the clause  of  the      Constitution prohibiting  discrimination.  But  by  the      passage  of   time,  considerations  of  necessity  and      expediency would  be obliterated, and the grounds which      justified classification  of geographical  regions  for      historical reasons  may cease  to be  valid.  A  purely      temporary provision  which because of compelling forces      justified    differential     treatment    when     the      Reorganization Act  was  enacted  cannot  obviously  be      permitted to  assume permanency,  so as  to  perpetuate      that treatment  without a  rational basis to support it      after  the   initial  expediency   and  necessity  have      disappeared....It would  be impossible  to lay down any      definite time-limit  within which the State had to make      necessary adjustments  so as to effectuate the equality      clause of  the Constitution. That initially there was a      valid geographical  classification of  regions  in  the      same State  justifying unequal  laws when the State was      formed must be accepted. But whether the continuance of      unequal laws  by itself  sustained the plea of unlawful      discrimination in  view of  changed circumstances could      only be  ascertained after  a full and thorough enquiry      into the  continuance  of  the  grounds  on  which  the      inequality could  rationally be founded, and the change      of  circumstances,   if  any,   which  obliterated  the      compulsion of expediency and necessity 609      existing at  the time  when the  Reorganization Act was      enacted."                                             (Emphasis added)      The Court,  however, found  that the  pleadings in  the case were  inadequate to  decide whether  Article 14  of the Constitution  had   been  actually   violated  or  not.  It, therefore, set  aside the  judgment of  the High  Court  and remanded the  case to  the High Court to decide the question afresh after  giving the  parties the  opportunity to  amend their pleadings. This view was followed in Vishwesha Thirtha Swamiar & Ors. v. State of Mysore & Anr.(1) where this Court observed at page 144:           "In view  of the facts of this case, the temporary      nature of the Acts and the pendency of the resettlement      and  survey   proceeding  we   cannot  say   that   the      Legislature has  acted contrary  to the  provisions  of      Art. 14". (Under lining by us)      Then came  the decision  of this  Court  in  H.H.  Shri Swamiji of  Shri Admar  Mutt etc. v. The Commissioner, Hindu Religious &  Charitable Endowments  Department &  Ors.(2) In this case  the continue application of the provisions of the Madras Hindu  Religious and  Charitable Endowments Act. 1951 (Act No.  19 of  1951) in  the area  which formerly formed a part  of   the  State   of  Madras   prior  to   the  States Reorganization Act,  1956 and  which later on became part of the new  State of  Mysore (now Karnataka) when a similar law was not  in force  in the  other parts  of the new State was challenged. Here  again the material placed before the Court was not  sufficient  to  decide  the  question.  The  Court, therefore,  dismissed  the  appeal.  But  Chandrachud,  C.J. speaking for  the majority,  however, observed at pages 387- 388 thus:           "An  indefinite   extension  and   application  of      unequal laws for all time to come will militate against      their true  character as  temporary measures  taken  in      order to  serve a  temporary purpose. Thereby, the very      foundation of  their constitutionality  shall have been      destroyed, the foundation being that section 119 of the

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    States  Reorganization   Act  serves   the  significant      purpose of 610      giving reasonable time to the new units to consider the      special circumstances  obtaining in  respect of diverse      units. The  decision to  withdraw  the  application  of      unequal laws  to equals  cannot be delayed unreasonably      because  the  relevance  of  historical  reasons  which      justify the  application of  unequal laws  is bound  to      wear out  with the  passage of  time. In  Broom’s Legal      Maxims (1939  Edition, Page  97) can  be found a useful      principle, ’Cessante  Ratione Legis  Cessat  Ipsa  Lex;      that is  to say,  ’Reason is  the soul  of the law, and      when the  reason of  any particular law ceases, so does      the law itself’.           We  do  not  however  see  any  justification  for      holding that  the continued  application of  the Madras      Act of  1951 to  South Kanara District became violative      of article 14 as immediately as during the period under      consideration, which  was just  five or six years after      the passing  of  the  States  Reorganization  Act.  Nor      indeed are  we disposed  to  hold  that  the  continued      application of  that Act until now is shown by adequate      data to be violative of Article 14.           But that  is how  the matter  stands today. Twenty      three   years   have   gone   by   since   the   States      Reorganization Act was passed but unhappily, no serious      effort has  been  made  by  the  State  Legislature  to      introduce  any  legislation  apart  from  two  abortive      attempts in  1963 and  1977-to  remove  the  inequality      between the  temples and  Mutts situated  in the  South      Kanara District  and those  situated in  other areas of      Karnataka. Inequality  is so  clearly writ large on the      face of  the impugned statute in its application to the      District of  South Kanara  only, that  it is perilously      near the  periphery  of  unconstitutionality.  We  have      restrained  ourselves   from  declaring   the  law   as      inapplicable to the District of South Kanara from today      but we  would  like  to  make  it  clear  that  if  the      Karnataka Legislature  does not act promptly and remove      the inequality  arising out  of the  application of the      Madras Act  of 1951  to the  District of  South  Kanara      only, the  Act  will  have  to  suffer  a  serious  and      successful challenge  in the  not distant future. We do      hope that the Government of Karnataka will act promptly      and move an appropriate legislation, say, within a year      or so. A comprehensive 611      legislation which  will apply  to all temples and Mutts      in Karnataka, which are equally situated in the context      of the  levy of  fee, may perhaps afford a satisfactory      solution to  the problem. This, however, is a tentative      view-point because we have not investigated whether the      Madras Act of 1951, particularly section 76(1) thereof,      is a  piece of  hostile legislation  of the  kind  that      would involve  the violation  of article  14. Facts  in      regard thereto  may have  to be  explored, if  and when      occasion arises."      The two  grounds which  persuaded  this  Court  not  to strike down  the impugned  legislation in  the above case as can be  gathered from  the above  passage were  (1) that the period under  consideration was just five or six years after the passing  of the  States Reorganization Act, 1956 and (2) that there  was no  adequate data  to  decide  the  question whether the  impugned  legislation  did  in  fact  make  any

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hostile discrimination.  Otherwise the  Court would  have in all probability  struck down  the impugned  provision of law even though  it had  been continued by virtue of section 119 of the States Reorganization Act, 1956.      The  above   three  cases   arose  under   the   States Reorganization Act.  In Narottam Kishore Dev Varma & Ors. v. Union of  India & Anr. the petitioners who wished to sue the Maharaja of  Tripura, the former Ruler of the Princely State of Tripura  contended that  section 87B of the Code of Civil Procedure which  applied the provisions of section 85 and of sub-sections (1)  and (3) of section 86 of the Code of Civil Procedure to  a Ruler  of any  former Indian  State  thereby making the  consent of the Central Government a prerequisite for the trial of a suit against such a Ruler, giving certain immunity to him as provided in sub-section (3) of section 86 and extending  the provisions  of section  85 to the case of such a  Ruler was  violative of Article 14 and Article 19(1) (f) of  the Constitution.  After upholding the provisions on the  ground   that  they  were  necessitated  by  historical reasons, Gajendragadkar, C.J. observed at page 60 thus:           "Before we  part with  this  matter,  however,  we      would like to invite the Central Government to consider      seriously whether  it is  necessary to  allow s. 87B to      operate prospectively  for all time. The agreement made      with the Rulers 612      of Indian States may, no doubt, have to be accepted and      the assurance  given to  them may  have to be observed.      But considered  broadly  in  the  light  of  the  basic      principle of  the equality  before law,  it seems  some      what odd that s. 87B should continue to operate for all      time. For  past dealings  and transactions,  protection      may justifiably  be given  to Rulers  of former  Indian      States; but  the Central  Government  may  examine  the      question as  to whether  for transactions subsequent to      the 26th  of January  1950,  this  protection  need  or      should be  continued. If  under  the  Constitution  all      citizens are  equal, it may be desirable to confine the      operation of  s. 87B  to past  transactions and  not to      perpetuate the  anomaly of  the distinction between the      rest of  the  citizens  and  Rulers  of  former  Indian      States. With  the passage  of  time,  the  validity  of      historical considerations  on which  s. 87B  is founded      will wear  out and  the continuance of the said section      in the  Code of  Civil Procedure  may later  be open to      serious challenge."                                             (Emphasis added)      In all  these cases  while it is true that no provision was actually struck down, there is a firm foundation laid in support of  the  proposition  that  what  was  once  a  non- discriminatory piece  of legislation  may in  course of time become  discriminatory   and  be  exposed  to  a  successful challenge on  the ground  that it violated Article 14 of the Constitution. This  is a sufficient answer to the contention that if  at the  time when the Act was enacted section 32(b) of the  Act was  not unconstitutional, it cannot at any time thereafter    be     challenged    on    the    ground    of unconstitutionality.      At this  stage we  shall deal  with a  very  persuasive argument addressed  by  learned  counsel  for  some  of  the respondents. Drawing support from the observations in Bhopal Sugar Industries  Ltd.’s  case  (supra)  and  in  H.H.  Shri Swamiji of  Shri Admar  Mutt’s case  (supra) they  contended thus. As  in the above two decisions this Court had declined to strike  down the  impugned legislation  as it  found that

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there was no adequate material to do so, in the cases before us also  we should  follow the  same course  of action.  The learned  counsel  argued  that  the  State  Legislature  had deliberately granted  the exemption  in order  to  encourage construction of  new houses in view of the acute shortage of housing accommodation and since the 613 shortage has  become more  and more  acute, the Court should not interfere  with the  legislative judgment  and allow the owners of  buildings covered  by section 32(b) of the Act to continue to  enjoy the  exemption until there is evidence to show that  there is  no longer any such shortage. We find it difficult to  accept this  argument because it overlooks one essential distinction  between the  facts of those two cases and the  facts of  the  present  cases.  The  two  decisions referred to  above arose in the context of reorganisation of States.  The   State  of   Madhya  Pradesh   was  formed  by integrating areas  which formed  parts of  the British India and a  number of  Indian  States.  Similarly  the  State  of Karnataka was formed by merging five integrating units which again formerly  formed parts of the British India and Indian States. There  were on  the same  subject laws  of different patterns in  force in  the several  integrating units on the eve of  reorganisation. Those  laws were allowed to continue in force  as a  matter of  necessity in  the different local areas until  the State Legislature concerned passed a common legislation  on  each  subject  for  the  whole  State.  The Legislature had  to consider  which of  the  different  laws should be  selected for  enforcement  in  the  entire  State either with  or without modifications. This certainly needed enquiry  and   investigation  because   of  the  diversities prevailing in  each reorganised  State. On  enquiry probably the Legislature  might have  preferred  to  apply  the  very legislation impugned  before the Court for the entire State. In these  circumstances, this  Court felt  that it  was  not possible to  decide  whether  a  particular  law  which  was challenged before  them was  discriminatory or  not  in  the absence of necessary pleadings and relevant material. In the instant cases,  the question  is not  one of  selecting  any particular local  law for  extension to the other parts of a State. This  is a  case where  the Legislature while passing the law  had given  the exemption apparently as an incentive to encourage building activity. The learned counsel were not able to  show how  the continuance  of the  exemption in the case of  persons who have built houses more than two decades ago will  set as an incentive to builders of new houses now. If that  is really  so, then  there is  no justification  to continue to  have the  restrictions imposed  by the  Act  on buildings built  prior to August 26, 1957 also and the whole Act should have to be repealed for if the impugned exemption can act  as an  incentive the  repeal of the Act should also act as  an incentive. We are of the view that in the instant cases no  investigation as  contemplated in  the  above  two decisions of  this Court  is necessary. The long period that has elapsed  after the passing of the Act itself serves as a crucial factor in deciding the question whether the 614 impugned law  has become  discriminatory or  not because the ground on  which the  classification of  buildings into  two categories is  made is  not a historical or geographical one but is  an economic  one. Exemption was granted by way of an incentive  to   encourage  building   activity  and  in  the circumstances such  exemption cannot  be allowed to last for ever.      It is argued that since the impugned provision has been

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in existence  for over  twenty three  years and its validity has once  been upheld  by the  High Court, this Court should not pronounce  upon its  validity at  this late stage. There are two  answers to  this proposition.  First, the very fact that nearly twenty three years are over from the date of the enactment of  the impugned  provision and the discrimination is allowed  to be  continued unjustifiably  for such  a long time is  a ground  of attack  in  these  cases.  As  already observed,  the   landlords  of   the  buildings  constructed subsequent to  August 26,  1957 are  given undue  preference over the  landlords of  buildings constructed  prior to that date in  that the  former are  free from the shackles of the Act while  the latter  are  subjected  to  the  restrictions imposed by  it. What  should have been just an incentive has become  a   permanent  bonanza   in  favour   of  those  who constructed buildings  subsequent to  August 26, 1957. There being no justification for the continuance of the benefit to a class  of persons  without any  rational basis whatsoever, the evil  effects flowing  from the  impugned exemption have caused more  harm to  the society than one could anticipate. What was justifiable during a short period has turned out to be a  case of  hostile discrimination  by lapse  of nearly a quarter  of   century.  The   second  answer  to  the  above contention  is  that  mere  lapse  of  time  does  not  lend constitutionality to  a provision  which is  otherwise  bad. "Time does  not run in favour of legislation. If it is ultra vires, it  cannot again  legal strength from long failure on the part  of lawyers  to perceive and set up its invalidity. Albeit, lateness  in an attack upon the constitutionality of a statute  is but a reason for exercising special caution in examining the  arguments by  which the attack is supported." (See W.A.  Wynes: ’Legislative Executive and Judicial Powers in Australia’  Fifth Edition  p. 33).  We are constrained to pronounce upon  the validity  of the  impugned provision  at this late  stage because the garb of constitutionality which it may  have possessed  earlier has  become worn out and its unconstitutionality  is   now  brought   to   a   successful challenge.      It was,  however, contended  on behalf  of some  of the respondents (landlords)  that if clause (b) of section 32 of the Act 615 was void  then the entire Act may be struck down so that all the tenancies  may be regulated by contracts entered into by the parties  in accordance  with their  free will.  In other words it  was submitted  that even  the limited operation of the rent  control legislation in Andhra Pradesh on buildings constructed prior  to August  26,  1957  may  be  lifted  by declaring the  whole Act  as  invalid  on  the  ground  that Legislature would  not have  passed the  Act if it had known that exemption  could not  be given  for ever  to  buildings constructed on  and after  August 26, 1957. On behalf of the petitioners it  was urged  that the  primary object  of  the Legislature was  to  continue  to  give  protection  to  the tenants  against   their  unreasonable  evictions  from  and recovery of unconscionable rents from them for the buildings more or  less on  the same  lines as it was under the Madras Buildings  (Lease  and  Rent  Control)  Act,  1949  and  the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 which were in force in the two areas of the State which were merged into  one State  on November  1, 1956 and that in any event clause  (b) of section 32 i.e. the offending provision alone can  be struck  down without doing any violence to the rest of the statute. It was argued that the operation of the Act would  in any  way not  be affected thereby and the only

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result of  striking down  clause (b)  of section 32 would be that the  rest of  the Act  would become  applicable to  all buildings which  are now  exempted by  clause (b) of section 32.      A statute  bad in  part is  not necessarily void in its entirety. Provisions  which are within legislative power and which are  otherwise in conformity with the Constitution may survive if they are capable of being separated from the bad. But a  provision inherently unobjectionable cannot be deemed separable unless it appears both that, standing alone, legal effect can  be given to it and that the legislature intended the provision  to stand,  in case  others  included  in  the statute and  held bad should fall. (See Dorchy v. Kansas 864 U.S. 286).  The general  rule is that when a provision which is in  the nature  of an  exception to  a general statute is invalid, the  general provisions  of  the  statute  are  not invalidated thereby,  unless it  clearly  appears  that  the exception is  so intimately  and inherently  related to  and connected with  the general  provisions to  which it relates that the  legislature would  not  have  enacted  the  latter without the  former. The  principles underlying the doctrine of severability  are explained  in  Cooley’s  Constitutional Limitations (Eighth Edition) Vol. 1, at pages 360-362 thus: 616           "Where,  therefore,   a  part   of  a  statute  is      unconstitutional, that  fact  does  not  authorise  the      courts to  declare the  remainder void also, unless all      the  provisions   are  connected   in   subject-matter,      depending on  each other,  operating together  for  the      same purpose,  or otherwise  so connected  together  in      meaning, that  it cannot  be presumed  the  legislature      would have  passed  the  one  without  the  other.  The      constitutional and unconstitutional provisions may even      be contained  in the  same section and yet be perfectly      distinct and  separable, so  that the  first may  stand      though the last fall. The point is not whether they are      contained in  the same  section; for  the  distribution      into sections  is purely  artificial; but  whether they      are essentially and inseparably connected in substance.      If, when  the unconstitutional  portion is stricken out      that which  remains is  complete in itself, and capable      of being  executed  in  accordance  with  the  apparent      legislative intent wholly independent of that which was      rejected, it must be sustained."      After  a   review  of   the  law  on  the  doctrine  of severability Venkatarama Ayyar, J. summarised the principles governing the said doctrine in R.M.D. Chamarbaugwalla v. The Union of India(1) at pages 950-952 thus:      "1.  In  determining  whether  the  valid  parts  of  a           statute  are  separable  from  the  invalid  parts           thereof it  is the  intention of  the  legislature           that is  the determining  factor. The  test to  be           applied is  whether  the  legislature  would  have           enacted the  valid part  if it  had known that the           rest of the statute was invalid. Vide Corpus Juris           Secundum, Vol.  82, P 156; Sutherland on Statutory           Construction Vol 2 PP. 176-177.      2.   If  the   valid  and  invalid  provisions  are  so           inextricably  mixed   up  that   they  cannot   be           separated from one another, then the invalidity of           a portion must result in the invalidity of the Act           in its entirety. On the other hand, if they are so           distinct and separate that 617           after striking  out what  is invalid, what remains

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         is in  itself a  complete code  independent of the           rest, then  it will be upheld notwithstanding that           the rest  has become  unenforceable. Vide Cooley’s           constitutional Limitations, Vol. 1 at PP. 360-361;           Crawford on Statutory Construction, PP. 217-218.      3.   Even when  the  provisions  which  are  valid  are           distinct  and   separate  from   those  which  are           invalid, if  they all form part of a single scheme           which is intended to be operative as a whole, then           also the  invalidity of  a part will result in the           failure of  the whole.  Vide Crawford on Statutory           Construction, PP. 218-219.      4.   Likewise, when  the valid  and invalid  parts of a           statute are  independent and do not form part of a           scheme but what is left after omitting the invalid           portion is  so then  and truncated  as  to  be  in           substance different  from  what  it  was  when  it           emerged out  of the legislature, then also it will           be rejected in its entirety.      5.   The  separability   of  the   valid  and   invalid           provisions of a statute does not depend on whether           the  law   is  enacted  in  the  same  section  or           different sections;  (Vide Cooley’s Constitutional           Limitations, Vol.  I, PP.  361-362); it is not the           form, but  the substance  of the  matter  that  is           material, and  that has  to be  ascertained on  an           examination of  the Act  as a  whole  and  of  the           sating of the relevant provisions therein.      6.   If after  the invalid portion is expunged from the           statute what  remains cannot  be enforced  without           making alterations and modifications therein, then           the whole  of it  must be  struck down as void, as           otherwise it  will amount to judicial legislation.           Vide Sutherland on Statutory Construction, Vol. 2,           p. 194.      7.   In  determining  the  legislative  intent  on  the           question of separability, it will be legitimate to           take into  account the history of the legislation,           its object, the title and the preamble to it. Vide           Sutherland on  Statutory Construction, Vol. 2, PP.           177-178." 618      Rejecting the  contention that  if by  striking down  a provision the  class  which  is  going  to  be  affected  is enlarged,  the   Court  cannot   strike  down  the  impugned provision  alone,   Desai  J.  speaking  on  behalf  of  the Constitution Bench  of this  Court in  D. S. Nakara & Ors v. Union of India(1) at page 340 has observed thus:           "Said  the   learned  Attorney   -  General   that      principle of  severability cannot be applied to augment      the class and to adopt his words ’severance always cuts      down the  scope, never  enlarges it’.  We are  not sure      whether there is any principle which inhibits the court      from  striking  down  an  unconstitutional  part  of  a      legislative action  which  may  have  the  tendency  to      enlarge the width and coverage of the measure. Whenever      classification is  held to  be  impermissible  and  the      measure   can    be   retained    by    removing    the      unconstitutional portion of classification, by striking      down words  of limitation,  the resultant effect may be      of enlarging  the class. In such a situation, the court      can  strike   down  the   words  of  limitation  in  an      enactment."      On a careful consideration of the above question in the light of  the above  principles we  are of the view that the

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striking down  of clause  (b) of  section 32 of the Act does not in any way affect the rest of the provisions of the Act. The said  clause is  not so  inextricably bound  up with the rest of  the Act  as to  make the rest of the Act unworkable after the  said clause  is struck  down. We  are also of the view that  the Legislature  would have still enacted the Act in the  place  of  the  Madras  Buildings  (Lease  and  Rent Control) Act,  1949 and  the Hyderabad House (Rent, Eviction and Lease)  Act, 1954  which were  in force in the two areas comprised in  the State  of Andhra  Pradesh and it could not have been  its intention  to deny  the beneficial  effect of those laws  to the  people residing in Andhra Pradesh on its formation.  After  the  Second  World  War  owing  to  acute shortage of  urban housing  accommodation, rent control laws which were brought into force in different parts of India as places of  temporary  legislation  gradually  became  almost permanent statutes.  Having regard  to the  history  of  the legislation under  review, we  are of  the view that the Act has to  be sustained  even after striking down clause (b) of section 32 of the Act. The 619 effect of striking down the impugned provision would be that all buildings  except those  falling   under clause  (a)  of section 32  or exempted  under section  26 of the Act in the areas where  the Act is in force will be governed by the Act irrespective of the date of their construction.      After giving  our anxious  consideration to the learned arguments addressed  before us,  we are  of  the  view  that clause (b)  of section  32 of  the Act should be declared as violative of  Article 14  of the  Constitution  because  the continuance of that provision on the statute book will imply the creation  of a privileged class of landlords without any rational basis  as the  incentive to  build which  provide a nexus for  a reasonable  classification  of  such  class  of landlords no  longer exists  by lapse of time in the case of the majority of such landlords. There is no reason why after all these years they should not be brought at par with other landlords who are subject to the restrictions imposed by the Act in  the matter  of eviction  of tenants  and control  of rents.      We do  realize the  adverse effect  of this decision on many who  may have  recently built  houses by spending their life  savings  or  by  orrowing  large  funds  during  these inflationary  days   at  high  rates  of  interest,  on  the expectation and  belief that  they would not be subjected to the restrictions  imposed by the Act. The incentive to build provides a  rational basis  for  classification  and  it  is necessary, in  the national  interest, that  there should be freedom from  restrictions for  a limited period of time. It is always  open  to  the  State  Legislature  or  the  State Government to  take action  by amending  the Act  itself  or under section 26 of the Act, as the case may be, not only to provide incentive  to persons  who are  desirous of building new houses,  as it serves a definite social purpose but also to mitigate  the rigour  to such  class of landlords who may have recently  built their houses for a limited period as it has been  done in  the  Union  Territory  of  Chandigarh  as brought out in our recent judgment in M/s. Punjab Tin Supply Co. Chandigarh  etc. v.  The Central  Government &  Ors. The question whether  new legislation  should  be  initiated  to exempt newly  constructed buildings  for a limited period of time on  the pattern  of similar  legislation undertaken  by different States  or to exempt such class of buildings for a given number  of years from the provisions of the Act by the issue of  a notification  under section 26 of the Act is one

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for the State Government to decide. 620      In the  result these  petitions succeed.  Clause (b) of section 32 of the Act is hereby declared as unconstitutional and it  is quashed.  We, however,  make it  clear that  this declaration would not affect the validity of any proceedings in which the decree for eviction passed by a civil court has become final  and the  landlord has already taken possession of the building in question pursuant thereto.      The petitions are accordingly allowed. No costs. N.V.K.                                    Petitions allowed. 621