Arijit Pasayat, J.— Leave granted.
2. Though controversy lies within a very narrow compass, elaborate arguments on various principles of law were highlighted, which shall be dealt with after noticing the factual scenario involved.
3. Factual background as highlighted by the appellant and accepted to be correct in material aspects by the respondents runs as follows: the appellant, a nationalized bank, on the basis of a deed of lease executed on 8-4-1964 is a tenant under the respondents presently. The original landlord was the respondents' predecessor-in-title. The respondents (hereinafter referred to as “the landlords”) filed a suit under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (in short “the Bombay Rents Act”) in 1983 seeking eviction on the ground of bona fide requirement. The trial court decreed the suit in favour of the landlord by an order dated 8-4-1994. It was held that the landlords had proved reasonable need and greater hardship would be caused to the landlords if prayer for eviction is not allowed. The said order was challenged in Appeal No. 208 of 1994 before the Small Cause Court, Mumbai by the present appellant, which was allowed. It was, inter alia, held that the hardship factor must be held against the landlords as the case was one where a purely business concern is pitted against the interest of the common man. It was noticed that the landlords had a flourishing business and had expanded their business and the present appellant being a nationalized bank existing for the general public, and in that view of the matter the prayer for eviction was turned down. The landlords challenged the aforesaid order by filing Writ Petition No. 5668 of 1995 before the Bombay High Court, which is pending. In the year 1999, the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Maharashtra Rent Act”) was enacted w.e.f 31-3-2000. The said Act, according to the appellant bank, took away protection of the Bombay Rents Act to institutions like banks and companies. However, provisions of Section 58 save pending proceedings under the said Act. On 10-4-2000 the landlords sent a notice to the appellant Bank claiming termination of tenancy with reference to Section 3(1)(b) of the Maharashtra Rent Act. The appellant Bank disputed the claim of the landlords. Subsequently, a suit was filed in the Small Cause Court, Mumbai under the Maharashtra Rent Act bearing No. TE and R Suit No. 91/120 of 2000. In the suit the landlords sought vacant possession of the suit premises and mesne profits at the rate of Rs 3,00,000 per month.
4. The appellant Bank filed the written statement refuting the stands taken that the tenancy had been lawfully terminated and the grounds indicated therefor. Reference was made also to the proceedings in the Bombay High Court under the Bombay Rents Act. It was contended that in view of Section 58 of the said Act, the suit was not maintainable. The Small Cause Court, Mumbai passed judgment and decree in favour of the landlord holding that the suit was maintainable, the tenancy had been validly terminated and directed the appellant Bank to hand over possession of the suit premises to the landlords. Aggrieved by the said order the appellant Bank filed Appeal No. 718 of 2001 before the appellate court which dismissed the same by the order dated 12-7-2002. The appellant Bank filed Writ Petition (Civil) No. 209 of 2003 in the Bombay High Court.
5. On 7-1-2003 an application for amendment of the writ petition was filed seeking to challenge the validity of provisions contained in Section 3(1)(b) of the Maharashtra Rent Act. The High Court by the impugned order while allowing the application for amendment held that the case was covered by Section 3(1)(b) of the said Act and the writ petition was dismissed.
6. Mr P. Chidambaram, learned Senior Counsel for the appellant submitted that after having allowed the amendment relating to validity of Section 3(1)(b) of the Maharashtra Rent Act, the High Court was not justified in dismissing the writ application without examining that question. It is submitted that though a Division Bench of the Bombay High Court has upheld the validity of the provisions in question, yet several matters have been admitted by this Court and validity of the section in question is being examined by this Court. Additionally, it is submitted that a writ petition has been filed by the appellant as a matter of abundant caution, questioning the validity of the aforesaid provisions, and by the order dated 10-4-2003 the same has been directed to be heard along with Civil Appeal No. 8017 of 2002.
7. In response Mr R.F Nariman, learned Senior Counsel for the respondents submitted that challenge to the constitutional validity of Section 3(1)(b) of the Maharashtra Rent Act was given up before the High Court as is evident from the impugned order and it is not open to the appellant to make a grievance that the question was not examined by the High Court. With reference to the question of non-adjudication in this issue, it is submitted that if the appellant takes the stand that the plea was not given up, the proper course is to approach the High Court for clarification, if any.
8. It is also pointed out that the validity of the provisions was never in issue before the courts below and for the first time by way of amendment of the writ petition, the challenge was sought to be introduced.
9. By way of reply to the aforesaid stand of the learned counsel for the landlords, Mr Chidambaram pointed out that the application for amendment was filed on 7-1-2003 i.e the date on which the impugned order was passed. The High Court granted leave to amend and thereafter proceeded to examine the matter. It is inconceivable that the appellant having taken all pains to get the petition amended, would give up. The order observing that no other plea was pressed in the matter means that no other point other than the pleas relating to Section 3(1)(b) were pressed. Clearly, earlier decision by the Division Bench was looming in the background, though not specifically stated. The courts below could not have decided the question regarding the validity of the provisions, being creatures of the statutes.
10. According to him, Section 113 of the Code of Civil Procedure, 1908 (in short “CPC”), to which Mr Nariman has referred, to submit that the court could have made a reference to the High Court has no application, and in any event the High Court having accepted the prayer for amendment ought to have considered the issue which was of vital importance. If it felt bound by the decision of the Division Bench, rendered earlier, at least reference thereto should have been made.
11. The rival contentions need careful consideration. There can be quarrel with the proposition as submitted by Mr Nariman that if an order records something, a party cannot be permitted to plead to the contrary especially in the matters as to whether there was any concession regarding a point, or whether it was given up at the time of hearing.
12. The only course open to a party taking the stand that an order does not reflect actual position is to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. In recent decisions i.e Bhavnagar University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC 111, 2002 AIR SCW 4939 and Roop Kumar v. Mohan Thedani (2003) 3 Scale 611, (2003) 6 SCC 595 the view in the said case was reiterated. Statements of fact as to what transpired at the hearing recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by an affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call the attention of the very judges who have made the record. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in court.
13. Applying the logic of the aforesaid principles, the stand of Mr Nariman at first blush appeared to be on terra firma. But there are several factors which make the contentions of Mr Chidambaram acceptable. It is undisputed that the application for amendment was filed on 7-1-2003, and related to the constitutional validity of Section 3(1)(b) of the Maharashtra Rent Act. The High Court granted leave to amend. Though the High Court has not clearly stated so in the order, in the contextual backdrop the same has great relevance.
14. It is fairly settled position in law that a court or a tribunal constituted under a statute cannot adjudicate upon the constitutional validity of the statute concerned. This position has been highlighted by this Court in several decisions. [See K.S Venkataraman & Co. (P) Ltd. v. State of Madras AIR 1966 SC 1089, (1966) 2 SCR 229, SCR at p. 251, Dhulabhai v. State of M.P AIR 1969 SC 78, CIT v. Straw Products Ltd. AIR 1966 SC 1113, L. Chandra Kumar v. Union of India (1997) 3 SCC 261 and recently in W.B Electricity Regulatory Commission v. CESC Ltd. (2002) 8 SCC 715]
15. Great emphasis was laid on Section 113 CPC, by Mr Nariman to contend that had the stand been taken before the courts below, in case of necessity, the provision could have been resorted to.
16. The said provision reads as follows:
“113. Reference to High Court.—Subject to such conditions and limitations as may be prescribed, any court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:
Provided that where the court is satisfied that a case pending before it involves a question as to the validity of any Act, ordinance or regulation or of any provision contained in an Act, ordinance or regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, ordinance, regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
Explanation.—In this section, ‘regulation’ means any regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.”
17. The proviso is relevant for our purpose. It operates in the following circumstances:
(a) The court is satisfied that a case pending before it involves a question as to the validity of any Act, ordinance or regulation, or of any provision contained therein.
(b) Determination of the aforesaid question is necessary for disposal of the case.
(c) The court is of the opinion that such Act, ordinance or regulation or a provision contained in an Act, ordinance or regulation is inoperative.
(d) But the Act, ordinance or regulation or provision concerned has not been declared invalid or inoperative by the High Court to which the court where the case is pending is subordinate or by the Supreme Court.
18. Undisputedly, a Division Bench of the High Court has decided the question and, therefore, Section 113 has no application.
19. It is not, however, necessary to go into the question whether having not taken the plea before the courts below, the High Court should have permitted the question to be raised before it as admittedly, the High Court had permitted the challenge to be made by allowing the application for amendment. The case was disposed of on the date the amendment was allowed, and in fact by the consolidated order which dealt with the prayer for amendment, allowed it and went on to dispose of the writ petition, without dealing with the plea of invalidity.
20. In the aforesaid factual background, the High Court should have considered the challenge to the constitutional validity of Section 3(1)(b) of the Maharashtra Rent Act as raised by the appellant. It can certainly consider the effect of any earlier decision. We do not express any opinion on that aspect. The order of the High Court is set aside and the case is remitted back to the High Court for fresh adjudication on merits in accordance with law.
21. The appeal is allowed to the extent indicated. Costs made easy.