CIVIL REVISION NO.3628 OF 2005 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: FEBRUARY 27, 2008 Lala Ram .....Petitioner VERSUS Hazari Lal ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Amit Jain, Advocate, for the petitioner. Mr. B. R. Vohra, Advocate, for the respondent. **** RANJIT SINGH, J. It would be nothing but ingenuity on the part of the counsel to raise and re-agitate the issues which had been decided against the petitioner on more than one occasions. Still, the petitioner has been able to stall his eviction since 2005. How many times the Court will be required to decide the issue concerning eviction of a tenant from non-residential premises in the State of Haryana? The counsel for the petitioner would rather wants this Court to decide again the said issue, though decision of Single Judge of this Court would directly stair at him, whereby the CIVIL REVISION NO.3628 OF 2005 :{ 2 }: provisions, making distinction between residential and non-residential building was set-aside and termed as “unconstitutional being discriminatory”. The said view of Single Judge was approved by a Division Bench while dismissing the L.P.A. The matter had also reached the Apex Court, which declined to go into the same in view of the position which appeared settled. Yet the counsel would want this Court to re-consider the same. This time support is sought from a Full Bench decision of Delhi High Court, which ofcourse was also considered by this Court in another decision and held not relevant for deciding the controversy in view of law laid down by Division Bench of this Court on the same very point. Nevertheless, since the matter has been argued before me, I would proceed to consider the submissions made in this regard. This petition is dated 12.5.2005. Notice was issued on account of the reliance placed by counsel for the petitioner on a Full Bench decision of Delhi High Court in the case of Satyawati Sharma Vs. Union of India and another, 2003 (1) RCR 117 (Delhi) (Full Bench) to contend that ejectment of the tenant can not be sought in the case of a non-residential building. The execution of the impugned order was stayed on the statement made by counsel for the respondent. Then followed the chain of adjournments till the matter was finally heard on 27.2.2008. The star submission was the one on which the counsel for the petitioner has basically relied to contend that the non-residential premises can not be vacated under the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, “1973 Act”). The counsel was immediately confronted with the view taken by the Hon'ble Supreme Court in Harbilas Rai CIVIL REVISION NO.3628 OF 2005 :{ 3 }: Bansal Vs. State of Punjab, 1996 HRR 1 (SC) to draw his attention that the point stood adjudicated against him but he attempted to distinguish the judgment by referring to the contents of Section 13 of the 1973 Act to urge that the ratio of law may not apply to a case under the 1973 Act. It was then that the counsel representing the respondent placed before the Court the case of Ved Parkash Gupta Vs. State of Haryana, 1997 HRR 461 to say that same very point has been considered and the provision relied upon and pressed into service for consideration by the petitioner has already been held unconstitutional and struck down. Attention is also then invited to a Division Bench judgment of this Court in the case of State of Haryana Vs. Ved Parkash Gupta, 1999 HRR 96, whereby view taken by the Single Judge of this Court was up-held in the Letters Patent Appeal. My attention is also invited to judgment in the case of Mohinder Prasad Jain Vs. Manohar Lal Jain, 2006 (1) RCR (Rent) 250, where ratio of law laid down in the case of Ved Parkash Gupta (supra) was challenged before this Court on the basis of a Full Bench decision of Delhi High Court and the Full Bench decision of Satyawati Sharma (Supra ) was considered and held not tenable by this Court in the above-noted case. To make the matter further verse for the counsel for the petitioner, a judgment in the case of Civil Revision No.2531 of 2005 (Rattan Lal Vs. Deepak Sharma) decided on 27.11.2006 is placed before me, wherein the Single Judge of this Court, after considering all the submissions that are made before me, has come to a conclusion that the Hon'ble Supreme Court has affirmed the view taken by this Court in the case of Ved CIVIL REVISION NO.3628 OF 2005 :{ 4 }: Parkash Gupta (supra) by holding that the ground of bonafide personal necessity in respect of non-residential building is available to a landlord in respect of such a building situated in State of Haryana. Accordingly, the Single Judge of this Court did not find any merit in the contention raised on behalf of the petitioner-tenant in the said case. Still, it has been canvassed before me that the matter would require consideration and perhaps a reference to a Larger Bench for decision. I find this line of argument and suggestion advanced on behalf of the petitioner to be totally without merit and appears to have been advanced not with the aim to assist the Court. One can understand if there is some genuine point or submissions requiring consideration of the Court to re-decide or re-determine the matter but to insist on the same arguments which were considered and rejected by a Court on more than one occasion, may lead an inference that an attempt to mislead is made. It is noticed that the submissions that have been made by counsel for the petitioner were the one which were exactly raised during earlier occasions and which had been directly dealt with. The primary submission that has been made is on the basis of amended provisions on the basis of provisions of Section 13(3a) of 1973 Act. The submission is that a landlord who can get his non-residential building vacated are specifically mentioned in the Section and as such, the ratio of law laid down on the basis of Harbilas Rai Bansal's case (supra) would have no applicability for deciding the issue under the 1973 Act. To further buttress the said line of reasoning, it is urged that there was a provision in the East Punjab Urban Rent Restriction Act, when promulgated in the year 1949 for eviction of a tenant from CIVIL REVISION NO.3628 OF 2005 :{ 5 }: a non-residential building as well. This provision, however, was omitted by the amending Act of 1956 and, thus, laying down a legislative intend in regard of eviction of the tenant from residential building alone. It is then urged that Hon'ble Supreme Court, in this background, found that the amendment of 1956 could not be justified on the touch stone of Article 14 of the Constitution of India and this amendment was so held Constitutionally invalid. It is urged that such a situation would not arise under the 1973 Act as here a specific provision has been made for eviction of a non-residential building by the specified named tenant in the Section itself and, thus, legislature has clearly given its intention to make this provision available to those limited categories of landlords who have been so mentioned. This was the precise submission which was made before Single Judge of this Court in the case of Ved Parkash Gupta (supra), where the vires of the provisions of Section 13 (3)(a) and 13(3A) of 1973 Act were challenged by way of a writ petition and it was held by this Court that word “residential” in sub-clause (a) of clause (3) of Section 13 of 1973 Act was liable to be struck down in view of the law laid down by the Hon'ble Supreme Court in Harbilas Rai Bansal's case (supra). In this regard, this Court held as under:- “7. 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 give some relief to a certain category of CIVIL REVISION NO.3628 OF 2005 :{ 6 }: landlords 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 (a) 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 uniformly applicable to all categories of buildings. This petition is accordingly allowed in the terms mentioned above. No costs.” This view of the learned Single Judge of this Court was taken in appeal and the L.P.A Bench up-held the same and the observation in this regard is as follows:- “21. The question then arises is that if by an amendment certain provisions cannot be brought about, which provision is violative of Article 14 of the Constitution of India, can the same provision be provided in an Act initially? According to us, the answer has to be in the negative. If by an amendment a particular provision cannot be brought about, the same principle would apply even to initial legislation. The provision of the 1973 Act which draws a distinction between a residential building and a non-residential building for the purpose of eviction on the ground of personal necessity would be violative of Article 14 of the Constitution of India on the same parity of reasonable as in Harbilas Rai Bansal's case (supra).” CIVIL REVISION NO.3628 OF 2005 :{ 7 }: It would be of importance to notice the arguments that were raised in the case before the L.P.A. Bench as is noticed in the judgment, relevant portion of which is as under:- “Learned counsel for the appellants argued that Harbilas Rai Bansal's case (supra) of the Apex Court would have no application in the present case on the ground that in the said case the Apex Court was considering the validity of the amending Act of 1956 in view of the original provisions, which were already there in 1949 Act. Since, according to the learned counsel, in the 1949 Act, there was no distinction drawn between a residential building and a non-residential building for the purpose of ejectment on the ground of bonafide necessity, a distinction having been brought about between a residential building and a non-residential building by the 1956 Act for the purpose of ejectment on the ground of bonafide necessity, it was held only under these circumstances by the Apex Court that the amendment was bad in law and unconstitutional.” The reason for which the petitioner would press to seek re-consideration of the view expressed in the cases of Ved Parkash Gupta (supra) is the Full Bench decision of Delhi High Court in the case of Satyawati Sharma (supra). In this case, the Full Bench of Delhi High Court has taken a view that landlord is entitled to evict a tenant from residential building on the ground of bonafide necessity but not entitled to evict the tenant from the non-residential building. It is further held that classification on the basis of class of premises can CIVIL REVISION NO.3628 OF 2005 :{ 8 }: not be said to be unconstitutional. This has been so held while interpreting the provisions of Section 14(1)(e) of Delhi Rent Control Act,, 1958. The vires of this provision was challenged on the basis of law laid down by Hon'ble Supreme Court in the case of Harbilas Rai Bansal (supra). In fact, similar arguments were canvassed before this Court in the case of Mohinder Prasad Jain (supra) but negatived by the Single Judge of this Court. This can be so noticed from the judgment of the Supreme Court in this case. While dealing with the said issue, the Hon'ble Supreme Court has noticed the opinion expressed by the learned Single Judge of this Court as follows:- “The High Court opined: “Still further the learned counsel further argued that eviction on the basis of personal requirement is not available in respect of non-residential building. He has placed reliance upon the Full Bench judgment of Delhi High Court reported as Satyawati Sharma V. Union of India and another, 2003 (1) RCR (Rent) 117. However, I am bound by the judgment of the D.B. Of this Court in State of Haryana V. Ved Parkash Gupta and others, 1999 (1) RLR 689, wherein the provision of Haryana Urban (Control of Rent and Eviction) Act, 1973 have been struck down and consequently, the landlord is entitled to seek eviction of the tenant from the non- residential building. In view of the above judgment the reliance of F.B.'s judgment of Delhi High Court is not tenable.” The Hon'ble Supreme Court thereafter referred to various CIVIL REVISION NO.3628 OF 2005 :{ 9 }: judgment and also noticed the different note which was struck in the case of Gian Devi Anand Vs. Jeevan Kumar & Ors., 1985 (1) RCR (Rent) 459. Reference is also made to the three Judges Bench decision of the Hon'ble Supreme Court in the case of Rakesh Vij Vs. Dr.Raminder Pal Singh Sethi & Ors., 2005 (2) RCR (Rent) 354 in this regard. Accordingly, the Hon'ble Supreme Court in the case of Mohinder Prasad Jain (supra) observed that they were not called upon to answer the said question. It can be so noticed from the following findings returned by the Hon'ble Supreme Court in this case:- “We may notice that this Court in Harbilas Rai Bansal v. State of Punjab & Anr., 1995 (2) RCR (Rent) 672 held such a provision to be unconstitutional, whereas in Gian Devi Anand v. Jeevan Kumar & Ors., 1985 (1) RCR (Rent) 459, 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 & Ors., 2005 (2) RCR (Rent) 354, 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 CIVIL REVISION NO.3628 OF 2005 :{ 10 }: building on the ground that he requires it for his own use.” In view of the afore-mentioned decision of this Court, we are not called upon to answer the said question. It would be of an interest to notice that the Full Bench decision of the Delhi High Court pressed into service by counsel for the petitioner is authored by the same Judge in the Delhi High Court as Chief Justice, who has rendered the judgment in the case of Mohinder Prasad Jain's case (supra) in the Supreme Court. In this view of the factual background and further that all these points were raised and adjudicated by this Court on more than one occasion and as late as on 27.11.2006 in Civil Revision No.2531 of 2005, referred to above, no occasion will arise for re-consideration of the issues as raised by counsel for the petitioner. It may also require a notice here that case of Rattan Lal (supra) decided by this Court was challenged by filing S.L.P before the Hon'ble Supreme Court. Initially, the operation of the impugned order was stayed while issuing notice in the said S.L.P. However, the said S.L.P. was dismissed on 16.11.2007. Accordingly, I am of the considered opinion that no occasion will arise to re-consider the consistent view of this Court in this regard and the submissions made before me by counsel for the petitioner have already been raised and dealt with. The said challenge is accordingly rejected. Even on merits of the case, I would not find any reason to interfere with the concurrent finding of fact recorded by the Courts below. The respondent had sought eviction of the petitioner from a tenanted shop, which is on rent with him @ Rs.500/- per month, excluding house tax. The eviction of the petitioner was sought on the CIVIL REVISION NO.3628 OF 2005 :{ 11 }: grounds of arrears of rent and for use and occupation of the same by the respondent and his son. It is pleaded that son of the respondent, Raj Kumar, intended to start business in the demised premises for selling electric goods. Necessary pleas in regard to the fact that the respondent had not vacated any property in the urban Area of Gurgaon is also made. There was no dispute in regard to the tenancy between the parties. The rent which was due was paid and accordingly this ground was not available to the respondent. As usual, the petitioner had denied the requirement of shop by the respondent for his son by pleading that he is a street hawker, who was selling articles by carrying basket on his head. It is further pleaded by the petitioner that initially the respondent had three shops in a row, out of which one was sold and another one is in occupation of Madan Lal, another tenant. The respondent, however, pleaded that it is no more possible for him to conduct his business by carrying on things in the street as a hawker and, thus, he had sought ejectment of the petitioner for settling his son who earlier was young but now was aged 27 years. The star argument that was raised on behalf of the petitioner to resist eviction that commercial building can not be got vacated, was negatived by both the Courts below. The same has now been dealt with and is found without any merit. Otherwise also, it has been consistently held that the need of a landlord as projected is to be presumed and it is no part for a tenant to suggest how the landlord is to conduct his business. Nothing much otherwise could be stated by counsel for the petitioner against the impugned order and the reasoning given therein. I am of the considered view that the CIVIL REVISION NO.3628 OF 2005 :{ 12 }: respondent-landlord has led sufficient evidence to establish on record his bonafide need for a shop to run his business or business for his son. I do not find any infirmity, which would call for interference in this findings of fact as recorded by the Courts below. Reference may also be made to the law laid down in the case of Naresh Kumar Vs. Lalit Mohan, 2005 (2) CCC 416, wherein it is held that the finding of fact could be reopened only if there is no evidence or such findings are so perverse that no reasonable man would record those findings as has been held by the Hon'ble Supreme Court in the cases of Rajinder Dhada Vs. Jagjit Singh, (2002) 10 SCC 665, Lekh Raj Vs. Muni Lal, (2001) 2 SCC 762 and Atma S. Berar Vs. Mukhtiar Singh, 2003 (1) Apex Court Judgments 39 (S.C.). I would therefore dismiss this revision petition being without any merit. February 27, 2008 ( RANJIT SINGH ) khurmi JUDGE