Ashok Kumar vs Ved Parkash & Ors

Ashok Kumar ....Appellant

VERSUS

Ved Prakash & Ors. ...Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. This appeal has been filed by the tenant/appellant from

the judgment and final order dated 5th of March, 2007

passed by the High Court of Punjab & Haryana at

Chandigarh in Civil Revision Case No.3943 of 2005

whereby the High Court had dismissed the civil revision

case and affirmed the order of the appellate authority as

well as of the Rent Controller thereby directing eviction of

the tenant/appellant from a shop constructed on the

ground floor at Plot No.12, bearing Municipal No.179 (a), 2

Ward No.3, New Anaj Mandi, Sohna, District Gurgaon

(Haryana) (hereinafter referred to as the `tenanted

premises').

3. The case made out by the original landlord Mr. Om

Prakash (since deceased) in his eviction petition can be

narrated as follows:

The tenanted premises was let out to the tenant/appellant

in the year 1982 in which the appellant was carrying on the

business of Commission Agent. The case of bonafide

requirement as pleaded by the original landlord was that the

original landlord and his two sons were carrying on the same

business as that of the appellant and as the original landlord

had decided to settle his elder son Ved Prakash in the

tenanted premises in the business of Commission Agent and

the younger son Arun Kumar in another shop occupied by

another tenant, he was constrained to file the eviction petition

on the ground of bonafide requirement and a separate eviction

proceeding was also filed against the other tenant by the

original landlord. In spite of repeated reminders to the

tenant/appellant to vacate the tenanted premises, the 3

tenant/appellant having failed to vacate the same, the original

landlord was constrained to file the eviction proceeding against

the tenant/appellant.

4. The tenant/appellant entered appearance and contested

the eviction proceeding denying the material allegations

made in the application for eviction. In his written

objection, the tenant/appellant had categorically denied

that the respondent had any bonafide requirement for

use and occupation of his son for starting a business of

Commission Agent in the tenanted premises. Accordingly,

the tenant/appellant sought for dismissal of the eviction

petition.

5. The Rent Controller, Gurgaon, by his order dated

31.05.2004, had allowed the application for eviction inter

alia holding that the original landlord had successfully

proved his bonafide requirement of the tenanted

premises. Feeling aggrieved by this order of the Rent

Controller, an appeal was taken by the tenant/appellant 4

before the Appellate authority which affirmed the findings

of the Rent Controller, Gurgaon and dismissed the appeal

of the tenant/appellant. Again feeling aggrieved by the

order of the appellate authority, a revision petition was

filed by the appellant before the High Court of Punjab

and Haryana which was dismissed by the impugned

order affirming the findings of the Appellate Authority as

well as of the Rent Controller, Gurgaon. Be it mentioned

herein that the original landlord, as noted hereinearlier,

died during the pendency of the Civil Revision case in the

High Court and the present respondents were

substituted in his place.

6. Before us, the pivotal issue that was seriously raised by

the learned counsel for the appellant was as follows: -

(i) Whether the landlord would be entitled to evict

his tenant from a non-residential premises on the

ground of bonafide requirement under the

Haryana Urban (Control of Rent and Eviction)

Act, 1973 (hereinafter referred to as the `Act') 5

when Section 13 of the Act provides for eviction of

the tenant only in case of residential building if

the landlord requires it for his own occupation,

and is not occupying another residential building

in the urban area concerned and has not vacated

such building without sufficient cause after the

commencement of East Punjab Urban Rent

Restriction Act, 1949 in the said urban area?

7. On the aforesaid issue, we have heard the learned

counsel appearing for the parties and examined the

materials on record. According to the learned counsel for

the appellant, since Section 13 of the Act does not permit

a landlord to evict a tenant who is in occupation of a

non-residential building on the ground of bonafide

requirement, the question of evicting the appellant from

the tenanted premises under Section 13 of the Act would

not arise at all. This submission of the learned counsel

for the tenant/appellant was seriously contested by the

learned counsel for the respondent. Before we take up 6

this issue for our consideration, it would be appropriate

to refer to Section 13 of the Act which runs as under :-

"Eviction of tenants-

(1) A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this section. (2) ................................(Omitted because it is not necessary for our purpose) (3) A landlord may apply to the controller for an order directing the tenant to put the landlord in possession-

(a) in case of residential building, if-

(i) he requires it for own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of 1949 Act in the said urban area."

8. A plain reading of Section 13 of the Act would show that

it permits a landlord to evict a tenant only from a

residential premises and not from the non-residential

premises. It is an admitted position that the

landlord/respondent sought to evict the tenant from the

tenanted premises for his own use and occupation, which

was let out for non-residential purposes.

7

9. The Act was enacted by the Legislature in order to control

the increase of rent of certain buildings and rented lands

situated within the limits of urban areas and the eviction of

tenants therefrom. Section 2 (g) of the Act defines "residential

building" which means any building which is not a non-

residential building. Section 11 of the Act prohibits

conversion of a residential building into a non-residential

building. Section 13 of the Act deals with eviction of a tenant.

10. At this stage, we need to consider a different Act namely,

the East Punjab Urban Rent Restriction Act, 1949 (in short

"East Punjab Rent Act"), which was enacted long before the

Act of 1973, with which, we are concerned as we find that

somewhat similar provisions have been enacted in both the

Acts by the Legislature. Section 13 of the East Punjab Rent

Act, before its amendment, contained provisions for eviction of

a tenant from a residential as well as from a non-residential

premises. However, the Legislature, by introducing an

amendment to the East Punjab Rent Act, had deleted the word

"non-residential premises" from Section 13 of the Act, from 8

which it will be clear that the landlord cannot seek eviction of

a tenant after amendment from a non-residential premises for

his bonafide requirement which was available to the landlord

before the introduction of the Amendment Act in 1956.

This amendment was introduced by East Punjab Rent

Restriction (Amendment) Act 1956, which came into force on

24th of September, 1956.

11. The constitutionality of the Amendment Act of 1956 by

which deletion of the word "non-residential premises" for

eviction of a tenant on the ground of bonafide requirement

under Section 13 of the East Punjab Rent Act came under

challenge in this Court in the case of Harbilas Rai Bansal Vs.

State of Punjab 1996 (1) SCC 1, in which this Court held the

aforesaid amendment of the East Punjab Rent Act as

unconstitutional and directed as follows :-

"We allow the appeal, set aside the impugned judgment of the High Court, declare the above said provisions of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the amendment. The net result is that a landlord-

9 under the Act-can seek eviction of a tenant from a nonresidential building on the ground that he requires it for his own use. The parties to bear their own costs."

12. After the amendment of Section 13 of the East Punjab

Rent Act, by which the word "non-residential premises" was

deleted by judicial pronouncement, a landlord seeking eviction

of his tenant on the ground of bonafide requirement would be

entitled to file such eviction proceeding not only in respect of a

residential premises, but also from a non-residential premises.

13. While deciding the constitutionality of the aforesaid

amendment of the East Punjab Rent Act, this Court in the

aforesaid decision namely, Harbilas Rai (supra) had also

considered another decision of this Court in Gyan Devi Anand

Vs. Jeevan Kumar (1985) 2 SCC 683. In Gyan Devi Anand

(supra), this Court also felt the difficulty of the landlord to

evict his tenant in respect of a non-residential premises.

While considering this aspect, this Court in that decision

observed as under :-

"The legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate 1

ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed conditions in some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of permises, residential or commercial. We therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well."

14. From the aforesaid observation of this Court, it is

therefore clear that this Court in 1985 felt this difficulty and

suggested that suitable legislation or amendment to the

Statute should be made by the Legislature.

15. In Gian Devi (supra), the question that was raised before

the Constitutional Bench was whether under the Delhi Rent

Control Act, 1958, the statutory tenancy in respect of

commercial premises was heritable or not. While answering

this question in Gian Devi Anand (supra), this Court answered

the question in the affirmative. The observations that were 1

made by this Court in Gian Devi Anand (supra), as noted

hereinealier, were made, keeping in view the hardship being

caused to the landlords of non-residential premises, who

cannot evict their tenants even on the ground of bonafide

requirement for personal use. Accordingly, in view of our

discussions made hereinabove and in view of the observations

made by this Court in the aforesaid two decisions, the only

conclusion that can be drawn is that a landlord can seek

eviction of his tenant on the ground of bonafide requirement

not only from residential premises but also from a non-

residential premises under the East Punjab Rent Act.

16. This view was also approved by a Three-Judge Bench

decision of this Court in Rakesh Vij Vs. Dr. Raminder Pal

Singh Sethi and others 2005 (8) SCC 504 in which, it has

been held that eviction of a tenant who is occupying a non-

residential premises of a landlord, on the ground of bonafide

requirement under the East Punjab Rent Act, would be

available in which the decision in Harbilas' case (supra) was

followed.

1

17. Following the decision of the Harbilas' Case (supra) and

the other decisions referred to hereinabove, this Court in a

recent decision reported in Mohinder Prasad Jain Vs.

Manohar Lal Jain 2006 (2) SCC 724 held that a landlord is

entitled to seek eviction of a tenant under the Act from a non-

residential building on the ground that the landlord bonafide

required the tenanted premises for his own use and

occupation. In para 5 of the said decision in that case, this

Court observed as under :-

"We may notice that this Court in Harbilas Rai Bansal v. State of Punjab held such a provision to be unconstitutional, whereas in Gian Devi Anand v. Jeevan Kumar somewhat different note was struck. The question recently fell for consideration before a three-Judge Bench of this Court in Rakesh Vij v. Dr. Raminder Pal Singh Sethi wherein this Court upheld the ratio laid down in Harbilas Rai Bansal (supra) stating:

We allow the appeal, set aside the impugned judgment of the High Court, declare the abovesaid provisions of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the amendment. The net result is that a landlord "under the Act" can seek eviction of a tenant from a non- residential building on the 1

ground that he requires it for his own use.(Emphasis supplied)"

18. In view of the aforesaid decision of this Court, which

followed the earlier decisions although on different Rent Acts,

we need not delve on this question any further but our

Judgment will not be completed if we do not consider the

decisions cited by the learned counsel on behalf of the

appellant. As noted hereinearlier, the learned counsel for the

appellant submitted before us that since the Act only permits

a landlord to evict a tenant on the ground of bonafide

requirement from a residential building and nothing has been

stated in that provision or right has been created on the

landlord to evict a tenant from a non-residential building on

the ground of bonafide requirement, it is not open to the

landlord to apply for eviction of a tenant from a non-

residential premises on the ground of bonafide requirement

when such ground was not specifically conferred by the

Legislature under Section 13 of the Act or to the landlord to

apply for eviction of the tenant from the non-residential

premises. Therefore, according to the learned counsel for the 1

appellant, the decision in Mohinder Prasad Jain (supra), which

was delivered under the Act, is not a good law and, therefore,

the matter may be referred to a larger Bench for consideration

of this question. In support of this submission, the learned

counsel for the appellant had cited a number of decisions

namely, Common Cause Vs. Union of India and Ors. JT

2003 (Suppl.2) SC 270, Padmasundara Rao and Ors. Vs.

State of Tamil Nadu and Ors. (2002) 3 SCC 533, Union of

India Vs. Deoki Nandan Aggarwal AIR 1992 SC 96, Naveen

Kohli Vs. Neethu Kohli 2006 (4) SCC 558 and Vishnu Dutt

Sharma Vs. Manju Sharma 2009 (3) SCALE 425.

19. We have carefully considered the aforesaid decisions of

this Court, as noted hereinearlier. It is difficult to accept that

the decisions cited by the learned counsel for the appellant in

support of his aforesaid submission will lead us to hold that

the landlord shall not be entitled to evict a tenant from a non-

residential premises for bonafide requirement, when such

ground for eviction has been made available only in case of

residential premises. In our view, the view taken in Mohinder 1

Prasad Jain (Supra) cannot be said to be a bad law on the

ground that it was really an usurpation of legislative duties on

the part of the Court by any stretch of imagination.

20. Therefore, the decisions cited by the learned counsel for

the appellant cannot be relied upon for the purpose of holding

that the Court is not conferred with the power to entertain an

eviction petition against a tenant relating to non-residential

premises as, in our view, the correct interpretation of bonafide

requirement of a landlord of a residential building must include

a non-residential building as well in view of the decisions

referred to hereinabove. In this connection, we may also add

that it may be pertinent to note that in the case of Satyawati

Sharma (Dead) by LRs. Vs. Union of India and another 2008

(5) SCC 287, a similar provision in the Delhi Rent Act, 1958

was found to be unconstitutional. In this connection, reference

may be made to para 38 of the said decision, which reads as

under :-

"38. In view of the above discussion, we hold that Section 14(1)(e) of the 1958 Act is violative of the doctrine of equality embodied 1

in Article 14 of the Constitution of India insofar as it discriminates between the premises let for residential and non-

residential purposes when the same are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him and restricts the latter's right to seek eviction of the tenant from the premises let for residential purposes only.

21. Thus, in view of the overall discussions made

hereinabove, we are unable to accept the submission of the

learned counsel for the appellant that an eviction petition filed

by a landlord for eviction of a tenant cannot be filed under

Section 13 of the Act when such eviction proceeding relates to

a non-residential building.

22. Before parting with this Judgment, a short submission of

the learned counsel for the appellant needs to be dealt with.

According to the learned counsel for the appellant, the case of

Harbilas (supra) and Rakesh Vij (Supra) were rendered on

the amendments made to East Punjab Rent Act, whereas the

case of Mohinder Prasad Jain (supra) and the issue before 1

us concerned removing a classification which existed from the

inception of the legislation.

23. Therefore, according to the learned counsel for the

appellant, a decision and reasoning concerning East Punjab

Rent Act cannot apply to a question with respect to the

present Act because both the legislations are products of

different legislatures and the rationale behind one cannot be

compared at par with that of the other.

24. The learned counsel for the appellant, in support of this

contention, relied on a decision of this Court in the case of

State of Madhyapradesh v. G.C.Mandawar, AIR 1954 SC

493 and strong reliance on para 9 of this decision was pressed

by the learned counsel for the appellant, which may be quoted

:-

Paragraph 9: "It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be 1

read in conjunction are by different Governments and by different legislatures."

25. There is no quarrel in the aforesaid principle laid down

by this Court in the aforesaid decision. However, we do not

see why the decision concerning one legislation cannot hold

persuasive value for the Court, while considering the

constitutionality of a very similar provision, albeit in a

different legislation.

26. It is not in dispute that the original landlord died, as

noted herein, during the pendency of the Civil Revision case in

the High Court. There is a faint argument of the learned

counsel for the appellant that on such date, the requirement of

the landlord had perished. In our view, there is no merit in

this submission of the learned counsel for the appellant.

Looking at the averments made in the eviction petition, where

the original landlord has categorically pleaded that the

requirement was for his son who presently is the landlord

because of the death of the original plaintiff, the question of

abatement of the eviction proceeding cannot arise at all. That

apart, the submission so made before us by the learned 1

counsel for the appellant was not even raised by the appellant

before the High Court where the original landlord died and the

present respondents have been substituted in his place.

27. In this view of the matter, we do not find any substance

in the submission of the learned counsel for the appellant. No

other question was raised by the learned counsel for the

appellant in support of this appeal and accordingly, we do not

find any merit in this appeal. The appeal is thus dismissed.

There will be no order as to costs.

........................J. [Tarun Chatterjee]

New Delhi; .................. ........J. December 17, 2009. [V. S. Sirpurkar]