Col. Umesh Kumar vs Mohinder Parkash

Vinod K. Sharma, J.

CM No. 19492-CII of 2008.

For the reasons stated in the application civil misc. is allowed and the Civil Revision is restored to its original number.

C.R. No. 3017 of 1999

The petitioner landlord has challenged the orders passed by the learned Rent Controller as well as learned Appellate Authority dismissing the application moved by the petitioner u/s 13 of the Fast Punjab Urban Rent Restriction Act, 1949 (for short ''the Act'').

Petitioner landlord filed a petition for eviction of the respondent who is tenant under him at a monthly rent of Rs. 40/- per month in terms of the Rent Note executed on 6.5.1969. The petitioner sought eviction of the tenant on the ground that he failed to pay the arrears of rent from 1.8.1986 onwards till the date of filing of the petition. The petitioner also claimed that the respondent has materially impaired the value and utility of the demised premises as changes and alterations have been made in the demised premises. It was alleged that the respondent amalgamated the demised verandah in front of the demised room into the room and had fitted iron shutter and closed the stairs which were on the northern side of the demised premises.

The plea that the building was unfit and unsafe for human habitation was also raised on the plea that the building was more than 100 years old and made of Nanakshahi bricks. It was claimed that there were cracks in the wall and roof of the demised room was staging. It was also the case of the petitioner that he was to retire from Army Service on 31.3.1989 and was a practicing Advocate before the joining the Army.

It was claimed that after retirement he wish to start practice in the disputed premises after demolition and reconstruction. It was pleaded that he has got no other suitable building in his possession in the municipal limits of Kapurthala nor he has vacated any such building without any sufficient cause.

The petition was contested. One of the issues framed was whether the petitioner bona fide required the premises for his own use and occupation.

Learned Rent Controller as well as the Appellate Authority decided this issue against the petitioner by holding that as the tenant was a practicing Advocate and was using the building for commercial purpose, thus the building was scheduled building and therefore, no eviction order could be passed. Other pleas were also rejected.

Mr. Munishwar Puri, learned Counsel appearing on behalf of the petitioner contended that this revision deserves to be allowed and the case remanded back to the learned Rent Controller for adjudicating the claim of the petitioner with regard to bona fide requirement. The contention of the learned Counsel for the petitioner was that previous view that scheduled/commercial building could not be got vacated for personal use and occupation is no longer good law.

The petitioner in support of this contention placed reliance on the judgment of Hon''ble Supreme Court in the case of Harbilas Rai Bansal Vs. State of Punjab and another, , wherein Hon''ble Supreme Court was pleased to lay down as under:

In Gian Devi''s case the question for consideration before the Constitution Bench was whether under the Delhi Rent Control Act, 1958, the statutory tenancy in respect of commercial premises was heritable or not. The Bench answered the question in the affirmative. The above quoted observations were made by die Bench keeping in view that hardship being caused to the landlords of commercial premises who cannot evict their tenants even on the ground of bona fide requirement for personal use. The observations of the Constitution Bench that "bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial" fully support the view we have taken that the classification created by the amendment has no reasonable nexus with the object sought to be achieved by the Act. We, therefore, hold that the provisions of die amendment, quoted in earlier part of the judgment, are violative of Article 14 of the Constitution of India and are liable to be struck down.

Learned Counsel for the petitioner also placed reliance on die judgment of this court in the case of Shiv Shankar House Pvt. Ltd. v. Anant Pal Singh Grewal (1998) 119 P.L.R. 211, wherein this Court has been pleased to lay down as under:

It was strenuously contended on behalf of the petitioner that the demised premises were non-residential and, therefore, the ground of personal necessity was not available to the landlord for the eviction of the tenant. Reference in this regard has been made to the site plan Exhibit R-3 wherein other buildings in the neighbourhood are shown as industrial plots over which factories are running. The premises as found by the courts below are residential in nature and this finding being a pure finding of fact and based as it is on the evidence led by the parties cannot be interfered with in the present proceedings. However, even if we assume that the premises in question were non-residential the landlord is entitled to seek eviction of the tenant on the ground of personal necessity as held by the Supreme Court in Harbilas Rai Bansal Vs. State of Punjab and another, followed by this Court in Ved Parkash Gupta Vs. State of Haryana and Another, . In Harbilas Rai''s case (supra), the learned Judges of the Supreme Court struck down the provision in the East Punjab Urban Rent Restriction Act where under the ground of personal necessity for the ejectment of a tenant was available only in regard to a residential premises. It was observed by the Hon''ble Supreme Court that he distinction between nonresidential and residential building with regard to the ejectment of a tenant on the ground of personal necessity had no nexus with the object sought to be achieved and that the classification caused serious hardship to the landlord and was, therefore, constitutionally invalid. Following this judgment, this Court in Ved Parkash Gupta''s case (supra) struck down Section 13(3-A) of the Act where under the ground of personal necessity was available to the landlord only in regard to residential premises, it was held'' that a landlord could seek ejectment of his tenant on the ground of personal necessity even from non-residential buildings. This being so, the landlord in the instant case is entitled to seek ejectment of the petitioner on the ground of personal necessity.

Reliance was also placed on the judgment of this Court in the case of Ved Parkash Gupta Vs. State of Haryana and Another, , wherein this Court has been pleased to lay down as under:

The stand of the petitioner in the present writ petition as also in Harbilas Rai Bansal''s case before the Supreme Court was that no distinction could be drawn with regard to the ground for ejectment between the residential or non-residential buildings on the ground of personal necessity. Merely because Section 13(3-A) of the Haryana Act does not give some relief to a certain category of landlord i.e. retired or discharged defence personnel and minor sons of the deceased landlord with regard to ejectment of the tenant on the ground of personal necessity does not mean that the judgment of the Supreme Court becomes inapplicable. I am, therefore, of the opinion that the word "residential" in Sub-clause (1) of Clause (3) of Section 13 of the Act is liable to be struck down and it has to be held that the ground for ejectment made out therein would be uniformally applicable to all categories of buildings." The contentions raised by the learned Counsel for the petitioner deserve to be accepted.

Consequently this revision is allowed. Order passed by the learned Rent Controller as well as that of the Appellate Authority are set aside and the case is remanded back to the learned Rent Controller to redecide the matter in view of the law laid down by the Hon''ble Supreme Court in the case of Harbilas Rai Bansal v. The State of Punjab.

Due to passage of time there is likelihood of change in building condition, therefore/ the findings on other issues with regard to the building being unfit and unsafe as also: that there has been material alterations be also gone into afresh. The parties through their counsel for directed to appear before the learned Rent Controller on 31.10.2008.