1. Shri Rakesh Vij had filed this Civil Revision, under section 15 of the East Punjab Urban Rent Restriction Act, 1949 as applicable to the area of Chandigarh, against Dr. Raminder Pal Singh Sethi, respondent No.1 and others and it has been directed against the order dated 16.11.2000 passed by the appellate authority, Chandigarh, which dismissed the appeal under Section 15 of the said Act by affirming the finding of the learned Rent Controller dated 16.9.1999 and one month time was granted to the appellant for handing over the possession of the demised premises to the landlord in question.
2. Some facts can be noticed in the following manner. Respondent No. 1 Dr. Raminder Pal Singh Sethi is the co-owner and landlord of S.C.F. No.8, Sector 16-D, Chandigarh and the petitioner was tenant in the dismissed premises at a monthly rent of Rs. 800/-. It was pleaded in the rent petition that landlord is Dental Surgeon and is running "Sethi Dental Clinic" in a portion of house No.5, of Sector 16-A, Chandigarh and therefore, the premises in question is required by him for his personal use as owner of the building, where he is running his Dental Clinic, has filed the petition for his ejectment. It is also pleaded that separate space is required for dental X-rays etc. and another room is required for developing X-ray and fixing and separate space is required for reception and waiting room and one room is required for anesthesia and minor operations etc. As per the landlord, one room is required for office and therefore, the premises in question is required by him for his personal use and occupation. He requested the tenant to vacate to the premises but to no avail. Also there was another ground of ejectment that the tenant is in arrears of rent with effect from 1.11.1996. It was also averred by the landlord that he does not own or possess any other commercial property in the urban estate of Chandigarh nor he has vacated any other commercial property without any sufficient cause before filing of the rent petition.
3. Notice of the rent petition was given to the tenant who filed written reply and took the legal objections that the petition is not maintainable because the premises in question is a commercial building and therefore, the ground of personal necessity is not available under the Act. It is pleaded that the landlord is residing in the House No.461, Sector 37-A, Chandigarh in which a clinic can be opened for medical services. It is also averred that in the demised premises x-ray plant etc. and other laboratory equipments are not permissible and the operation theatre cannot be opened there. It was also alleged that the rent petition was had non-joinder of the necessary parties and it was also pleaded that the premises in question was not required by the landlord for his personal use and occupation. On merits, the rate of rent of Rs. 800/- was admitted but the sale deed in favour of the landlord was denied. All other material assertions contained in the petition were denied and finally it was prayed by the tenant that the rent petition be dismissed.
4. The landlord filed rejoinder to the written statement in which he reiterated the allegations of the rent petition by denying those of the written statement and from the above pleadings of the parties the learned Rent Controller framed the following issues :-
1. Whether the petitioner requires the disputed premises for his personal use and occupation ? OPP
2. Whether the tender made by the respondent is not valid ? OPR
3. Whether the petition is not maintainable ? OPR
4. Relief.
5. The parties were given the opportunities to lead the evidence and vide a detailed order dated 16.9.1999 the learned Rent Controller, Chandigarh allowed the ejectment petition and the tenant was given two months time to hand over the physical possession of the premises to the landlord.
6. Not satisfied with the order of the Rent Controller, the original tenant, Shri O.P. Vij, filed an appeal under section 15 of the East Punjab Urban Rent Restriction Act before the appellate authority, Chandigarh and the appeal was dismissed vide the impugned order dated 16.11.2000.
7. It may be mentioned that during the pendency of the appeal, original tenant Shri O.P. Vij has expired and his Legal Representatives were brought on record including the present petitioner Shri Rakesh Vij. In this manner the revision has been filed.
8. I have heard Shri M.L. Sarin, Sr. Advocate, on behalf of the petitioner and with his assistance have gone through the file of this case.
9. After hearing the learned Senior counsel at a considerable length, I am of the considered opinion that it is not a fit case where notice of motion should be issued to the respondent-landlord and this revision deserves to be dismissed in limine and I consider my duty to deal with the submissions raised by the counsel for the petitioner.
10. The frontal argument was that petition under Section 13 of the Rent Restriction Act filed by Dr. Raminder Pal Singh Sethi, respondent No. 1 for seeking ejectment of commercial premises in the urban area of Chandigarh is not legally maintainable as this ground of ejectment is not available to him. He also supplemented his argument by submitting that the provisions of East Punjab Urban Rent Restriction Act i.e. Act No.3 of 1949 as applicable to the State of Punjab though has been made applicable to the urban area of Chandigarh but the parent Act has been further amended by the Bill No. 100 of 1982 in which a different complexion had been given to the definition of non-residential building. This Act of 1982 has not been set aside or repelled (repealed?) or quashed by any court of competent jurisdiction. Therefore, by virtue of the definition of the non-residential building as given in the Bill No. 100 of 1982, the ground for personal necessity of non-residential building is not available to the landlord. It is obligatory on the part of the Court to give the notice to the Attorney General of India as per the provisions of Section 113 of the Code of Civil Procedure and till the amending provisions are set aside in the light of the judgment of the Hon'ble Supreme Court reported as 1995(2) RCR 672, Harbilas Rai Bansal and another v. State of Punjab, the petition under Section 13 of the Rent Restriction Act is not legally maintainable. Submission of the counsel for the petitioner may look alluring but on deeper scrutiny I am of the view that this argument must fail. We all know that Chandigarh was carved out after the independence of the country. Earlier in the joint Punjab the provisions of East Punjab Urban Rent Restriction Act, 1949 i.e. Act No.3 of 1949 were applicable. Section 2 sub-clause (a) of the said Act defines "building" means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godown, out-houses of furniture let therewith but does not include a room in a hotel, or boarding house.
11. Section 2(d) defines non-residential building which means a building being used solely for the purpose of business or trade and a building let under a single tenancy for use for the purpose of business or trade and also for the purpose of residence.
Explanation:- For the purposes of this clause, residence in a building only for the purpose of guarding it, shall not be deemed to convert a "non-residential building" to a "residential building".
The rest of the language of Section 2(d) is not necessary to be quoted.
12. Section 2(g) talks of residential building which means any building which is not a non-residential building. The scheme of the Act further shows that landlord has been given the right to seek the ejectment of the tenant. According to Section 13, a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of section 13, or in pursuance of an order made under Section 13 of the East Punjab Rent Restriction Act, 1949. According to Section 13 sub-clause (2) a landlord who seeks to evict his tenant shall apply to the Controller for a direction in this behalf and if the Rent Controller is satisfied that the tenant has not paid or tendered the rent due to him or he has after the commencement of the Act without the written consent of the landlord transferred his right under the lease or sublet the entire building or portion thereof or used the building or rented land for a purpose other than for which it was leased or impaired materially the value or utility of the building or he is guilty of such acts and conduct which have become a nuisance to the occupier of the building in the neighbourhood etc. In such situation, the Rent Controller can pass the order directing the tenant to put the landlord in possession of the building. Section 13 sub-section (3) gives a right to the landlord to apply to the Controller for seeking ejectment in case of a residential building if he requires it for his own occupation and also if landlord is not occupying any other residential building in the urban area concerned and he had not vacated such a building without sufficient cause after the commencement of the Act in the said urban area etc. Thus, it would be seen that the Rent Restriction Act of 1949 when passed or drafted by the Legis-lature did not entitle the landlord to seek eviction of a tenant with respect to non-residential or commercial property on the ground of personal requirement. Perhaps this was to protect the tenants.
13. As I stated above that Chandigarh is a new creation on the map of India. The rights of the landlords and tenants could not be left in jeopardise (jeopardy ?). Resultantly, Parliament passed the Act i.e. The East Punjab Urban Rent Restriction Act (Extension to Chandigarh) Act, 1974 (Act No.54 of 1974) and this Act received the assent of the President of India on 20.12.1974. Section 2 of this Act is as follows:-
"Definition- In this Act, "the Act" means the East Punjab Urban Rent Restriction Act, 1949 as it extended to, and was in force in certain areas in the pre-organisation State of Punjab (being areas which were administered by municipal committees, cantonment boards, town committees or notified area committees or areas notified as Urban areas for the purposes of the Act) immediately before the 1st day of November, 1966".
14. Section 3 is the extension provisions vide which the provisions of East Punjab Urban Rent Restriction Act No.3 of 1949 were made applicable to Chandigarh. The language of Section 3 is as follows:-
"Notwithstanding anything contained in any judgment, decree or order of any Court, the Act shall, subject to the modifications specified in the Schedule, be in force in, and be deemed to have been in force with effect from the 4th day of November, 1972, in the Union territory of Chandigarh as if the provisions of the Act as so modified had been included in and formed part of this section had been in force at all material times"
.
15. If we read the Schedule under Section 3 of the Act No.54 of 1974 the definition of urban area has been given as follows:-
"Urban area" means the area comprised in Chandigarh as defined in clause (d) of section 2 of the Capital of Punjab (Development and Regulation) Act, 1952 (Punjab Act XXVII of 1952) and includes such other area comprised in "the Union Territory of Chandigarh as the Central Government may, having regard to the density of the population and the nature and extent of the accommodation available therein and other relevant factors, declare by notification to be urban for the purpose of this Act."
16. The effect of Act No.54 of 1974 would be that the urban area of Chandigarh for the purpose of rent proceedings will be governed by the provisions of Act No.III of 1949 i.e. parent Act and the provisions of the parent Act shall be deemed to have come in force with effect from 4.11.1972.
17. We all know that in Chandigarh there are different types or property such purely residential, purely commercial and shop-cum-residential flats which can be let out under a single tenancy. Thus, a building which is being used solely for the purpose of business or trade or a building which has been let out under a single tenancy for use for the purpose of business or trade and also for the purpose of residence will be considered as "non-residential building".
18. It was felt by the Legislature in 1982 that the parent Act of 1949 i.e. Act No.III of 1949 as in force in Chandigarh provides for restriction of increasing rent on certain premises situated within the limits of urban areas and eviction of tenants therefrom. It defines "non-residential building" which means a building being used solely for the purpose of business or trade. Residential building has been defined to mean a building which is not a non-residential building. Shop-cum-flats were constructed in certain Sectors. The design and plan of these buildings were such that the occupant may be able to carry on trade or business on the ground floor and reside on the first floor. The shop-cum-flats do not fall within the definition of the expression "non-residential building" because these are not being used solely for the purpose of business or trade. Due to this owners of shop-cum-flats have be enable to get the tenants evicted by invoking provisions applicable to residential buildings. Many eviction cases are also pending. So the Legislature thought to do away with the hardship which is being caused to the tenants of such buildings so that they may be able to bring at par with the tenants of non-residential buildings. To erase this difficulty, vide Bill No.100 of 1982 which became subsequently the Act known as the East Punjab Urban Rent Restriction (Chandigarh Amendment) Act, 1982, the definition of "non-residential building" was brought at par with the definition of non-residential building as defined in the parent act no.iii of 1949. Thus, a shop-cum-flat will be considered as non-residential building.
19. As per Sector 13 sub-clause (3) of the Act, the landlord was entitled to seek the ejectment of his tenant for his personal use and occupation for residential building. It did not talk of non-residential building. Rather with respect to non-residential building, the landlord was not assigned the right to get it evicted for his personal necessity. This was the position till the passing of the judgment by the Hon'ble Supreme Court reported as 1995(2) RCR 672. Harbilas Rai Bansal and another v. State of Punjab. The law took a total change with the passing of the judgment. The landlord Shri Harbilas Rai Bansal filed an ejectment petition on the ground of bona fide requirement against a tenant with respect to non-residential premises alleging that he requires the same for his own use. In the parent Act, Section 13 clause 3 sub-clause (a) was amended by act no.29 of 1956 and this amendment deprived the landlords of their right to seek ejectment from non-residential premises on the ground of personal necessity. The Hon'ble Supreme Court considered the vires of Amending Act 29 of 1956 and struck down the same by holding that these provisions are violative of the provisions of Article 14 of the Constitution of India. As a result of that the original provisions of Section 13(3)(a) were restored, meaning thereby, that the landlord was made entitled to seek ejectment with regard to non-residential building premises on the ground of personal necessity which was scheme of the original Act. Section 13(3)(a) was introduced in the Act by virtue of Amendment Act No.29 of 1956. The Hon'ble Supreme Court was of the view that the statutory protection given to the tenant by virtue of Amending Act No.29 of 1956, cannot be extended to a tenant to such an extent that landlord is precluded from evicting the tenant for his life even when he bona fide requires the premises for his personal use and occupation. If by amending provisions of 1982 the definition of "non-residential building" are the same as that of the parent Act of 1949, then, in my opinion the Act of 1982 falls through automatically. Law is created or struck down by the Parliament. The Parliament has the power to repeal a particular Act. Hon'ble Supreme Court and the High Courts have also the powers to strike down the particular provisions of law if those provisions are violative of the Constitution of India. By the passing of the judgment in Harbilas Rai's case, all those provisions lying in the statute which are not in conformity or which are inconsistent with the ratio of Harbilas's case, stand struck down automatically and no special legislation is required in this regard. Learned Senior counsel submitted that before the Hon'ble Supreme Court in Harbilas's case (supra) the provisions of Amending Act, 1982 were not in challenge and, therefore, a landlord cannot seek ejectment of a non-residential building as defined in Section 3 of the Amending Act on the ground of personal necessity.
20. This argument is dangerous to be accepted. Act of 1982 cannot enjoy special status with the striking down of the Amending Act No.29 of 1956. If under the Punjab Act, as applicable to the State of Punjab, a landlord can seek the eviction in a valid manner of a non-residential building from a tenant on the ground of personal necessity, there is no bar to the landlord to apply in the same fashion with regard to non-residential building at Chandigarh. Every legislation which is against the law is not enforceable. Meaning thereby that now the non-residential buildings of Chandigarh as defined in Section 2(d) are subject to the provisions of the rent act and the ground of personal necessity is applicable vis-a-vis these types of premises.
21. Thus, I am of the considered opinion that Amending Act, 1982 is not required to be struck down separately. It has lost its importance with the passing of the judgment of the Hon'ble Supreme Court in which the same language has been interpreted. No notice is required to be given to the Government of India or to the Attorney General nor there is any necessity for striking down the Amending Act of 1982 i.e. Bill No. 100 of 1982 which falls through automatically.
22. Now, it is to be seen whether the case of the landlord on merits had been rightly appreciated by the Courts below.
23. It is the admitted case of the tenant before the Courts below that the ejectment of the landlord has not been ordered from the premises where he has been running his clinic and he was supposed to deliver the possession to his landlord up to 30.6.2000. It cannot be said that the landlord of the present petitioner and the landlord of respondent No. 1 were colluding with each other. The order for vacating the premises held by the present landlord was passed by the High Court in Civil Revision No. 3169 of 1999. It is proved on the record that Shri Sethi landlord-respondent No. 1, did not possess any other accommodation at the time of the filing of the petition nor he had vacated similar accommodation in the urban area of Chandigarh. Bona fide necessity is a question of fact. Both Rent Controller and the appellate authority have gone against the tenant, Revisional authority will not interfere with the finding of fact of personal necessity unless those findings are perverse or have been based on wrong appreciation of evidence. Doctor's clinic was held to be general trade as defined in Capital of Punjab (Development and Regulation) Act, 1952. Hon'ble High Court has also held in 2000(1) RCR 142, DR. J.S. Sodhi v. Mela Ram that a clinic of a doctor is a general trade.
24. In these circumstances, the respondent-landlord is not violating any provisions of Capital of Punjab (Development and Regulation) Act as sought to be protected by Mr. Sarin, Senior Advocate.
25. It was then submitted on behalf of the petitioner that subsequent events can be taken into notice. Now the landlord is running a business of dentistry in the premises situated in Sector 16. He is occupying the property as of right. The accommodation is sufficient. Now in these context the need of the landlord cannot be held to be genuine. The senior counsel also invited my attention to certain photographs which show that Shri Sethi respondent No. 1 is occupying a shop where he runs his clinic by the name of "Sethi Dental Clinic and Smile Design Centre".
26. The argument of the counsel for the petitioner cannot be accepted even for a moment. Necessity is the mother of invention. As I stated above that respondent No.1 was supposed to obey the orders of High Court and he had to vacate the rented premises in his possession by 30.6.2000. He had to survive and run his profession. For a limited period of six months he took the alternative premises with effect from 1.7.2000 to 31.1.2001 and this fact was brought to the notice of the Courts below by respondent No.1 by submitting an application dated 31.7.2000 supported by his affidavit that he had taken the premises on licence. Licence is not a lessee. If somebody has given a licence for a limited period to the landlord so that he may run his profession for a limited period and he has furnished the premises it does not mean that such a landlord is getting those premises as a matter of right in the capacity of a tenant. His licence can be revoked at any moment. Moreover, it is yet to be seen whether the alternative accommodation in possession of respondent No. 1 would be able to cater his needs as reflected in the averments of the rent petition. The argument of the learned senior counsel that the demised premises is not meant for professional activity and the same are hit by Rule 9 of the Capital of Punjab (Development and Regulation) Act. the argument is devoid of any merit. In Dr. J.S. Sodhi's case (supra) this point had already been settled. It is a general trade. Moreover, this is for the administration of Chandigarh to see whether the respondent can run his business in the demised premises, if he gets the possession. In para No.8 of the Judgment of Dr. J.S. Sodhi's case this Court held that when the premises are let out to a tenant for general trade and the tenant uses those premises for running x-ray clinic, it will come within the definition of general trade under Section 9 of the Capital of Punjab (Development and Regulation Act), 1952.
27. The learned counsel for the petitioner relies upon 1996(2) PLR 621, Dr. A.P. Sanwaria v. Union of India and submits that running of x-ray machine in a residential area will mean to the misuse of the premises. The judgment is not applicable to the facts in hand. Firstly, the nature of the rented premises is shop-cum-flat. It is situated in the market of Sector 16. The landlord-respondent is not running his business in a residential area.
28. In these circumstances, it cannot be held at this stage that the business of respondent No.1 on getting the possession, would be misuser of the premises. Moreover, this is the concern of the authorities of Chandigarh Administration.
29. Counsel for the petitioner also relied upon JT 1998(9) SC 40 and submitted that during the pendency of the proceedings the landlord got the possession of different premises and, therefore, the need cannot be held to be bona fide. The argument is not again acceptable to the Court. It is true that subsequent events can always be taken note of but every change is not fatal. Firstly, respondent No.1 has occupied an alternative arrangement just for his survival and that too in the capacity of a licensee for a period of six months. The premises now in occupation of the landlord cannot be held to be of the same dimension from any angle of vision. Moreover, it is not established nor it can be established at this juncture that the present accommodation may meet the needs of the landlord who wants to give more amenities to his patients by introducing gadgets. The counsel for the petitioner also relied upon 1998(8) Supreme Court Cases 589, Basant Lal v. State of U.P. and another and submitted that decision of the High Court holding Section 125(2) of the Code of Criminal Procedure ultra vires without notice to the Attorney General and without such contention being raised in the pleading, is not sustainable. The judgment is again not applicable to the facts in hand. I am not striking down the Amending Act of 1982. It is already stood struck down by the Supreme Court in Harbilas's case impliedly, because the language of 1982 Act, para materia is the same as in the Amending Act No.54 of 1974. How two interpretations can be given to the same wording: one for the benefit of the landlord and one for the benefit of the tenant. Also reliance was placed on 1975 PLR 163, Dr. Harikishan Singh v. Union of India and others, a Full Bench decision of this Court, I have gone through this citation carefully. By virtue of Section 3 of the Amending Act of 54 of 1974, the provisions of East Punjab Urban Rent Restriction Act of Act (Act No.3 of 1949) were made applicable to the Union Territory of Chandigarh with effect from 4.11.1972.
30. Lastly, reliance was placed on 1980(1) RCR 592, Karnail Singh v. Vidya Devi and it was submitted that the landlord is occupying the premises in his own right and those premises are sufficient for his need, therefore, he is not entitled to seek ejectment of the tenant unless it is established that the house occupied by the landlord is utterly unsuitable. I have already stated above that the present landlord was at the mercy of his landlord. He is supposed to vacate the premises presently in his occupation as a make-shift arrangement by 31.7.2000 (31.1.2001 ?) and the landlord did not conceal this fact before the Courts below when he himself made an application to show his bona fide that he is in dire need of the demised premises.
31. The learned counsel Shri Sarin, yet submitted another argument and stated that even if his frontal argument fails, still, the landlords is faced with the difficulty by virtue of the existing provisions of the parent Act i.e. Act No.3 of 1949 as contained in Section 13 Sub-clause 3 because it only talks of residential building and nowhere makes a mention of non-residential building. There is a big a gap with regard to non-residential building which can be got vacated by the landlord for his personal use and occupation. He elaborated that Section 13 Sub-Clause 3(a) gives the right to a landlord to apply to the Rent Controller for an order of eviction in a case of a residential buildings, if he requires it for his own occupation and also if he is not occupying any other residential building in the urban area concerned and has not vacated such a building without sufficient cause after the commencement of the Act in the said urban area.
32. This argument of the learned Senior Counsel is quite intelligent. He wants to nullify the effect of the rejection of his main contention under the garb of the present argument. When, the Hon'ble Supreme Court in Harbilas case has struck down the distinction of residential and non-residential premises for the purpose of eviction of a tenant on the ground of personal necessity, it would mean that now the landlord can achieve the success with regard to non-residential building also by proving the same interpretation which are required to be proved for residential building. If the argument of the counsel for the petitioner is accepted then it will require another legislation in the parent Act by way of amending provisions clarifying that landlord can now also seek eviction for personal necessity with respect to non-residential building. The submission of Mr. Sarin stands repelled.
33. Lastly, it was submitted by the learned counsel for the petitioner that if none of his contentions prevails upon the mind of the Court, some reasonable time may be given to the tenant-petitioner so that he may be able to vacate the demised premises. Two months is time is granted to the petitioner who shall deliver the actual and physical possession to the landlord putting him in possession of the demised premises failing which it will be open to the land-lord-respondent No.1 to seek the ejectment through process of law.
34. In nutshell, I have tried to show through this order that Amending Act of 1982 does not require any separate repealing by the Legislature or by the High Court or by the Supreme Court. It has already lost its value and importance after passing of the judgment in Harbilas case (supra) from which there is no escape for us.
35. I have also held that the need of respondent No.1 is bona fide. His profession is of a general trade and not violative of any of the laws of the Union Territory. Moreover, this is not within the domain, of the Rent Controller or the appellate authority or the High Court. Since the petitioner who is in actual physical possession of the premises and he is also one of the successors of the original tenant, therefore, directions are given to him to hand over the possession within two months as stated above. This revision is hereby dismissed in limine with no order as to costs.