JUDGMENT
M.M. Kumar, J.
1. This is tenant’s petition filed under Section 15(6) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for brevity, ‘the Act’) challenging judgment dated 2.6.2004 passed by the Appellate Authority, Jind. The tenant-petitioner has been evicted on the ground of personal necessity as envisaged by Section 13(3)(a)(ii) of the Act and the Appellate Authority has reversed the judgment dated 3.8.2002 passed by the Rent Controller.
2. Brief facts of the case necessary for disposal of the instant petition are that the landlord-respondent filed ejectment petition against the tenant-petitioner seeking his ejectment from the demised shop under Section 13 of the Act. According to the averments made in the petition, the demised shop was let out to the tenant-petitioner w.e.f. 1.4.1996 at a monthly rent of Rs. 1250/- p.m. plus house tax. The grounds of non payment of rent, subletting, material impairment of the demised shop and personal necessity of the landlord-respondent for establishing his son for starting electronics business were pleaded.
3. On the stand of the tenant-petitioner, the grounds of non payment of rent, subletting, material impairment and personal necessity were not accepted and the ejectment petition was dismissed by the Rent Controller. However, on appeal filed by the landlord-respondent the ground of personal necessity set up by him was accepted and the ejectment order against the tenant-petitioner has been passed. The Appellate Authority recorded the findings that there are four shops in the building bearing Municipal No. 598/10. Two of the shops are in possession of Subhash Kumar and Anil Kumar sons of the landlord-respondent. The third shop is in possession of Krishan Kumar who is the brother of landlord-respondent. The fourth shop is required for Sushil Kumar another son of the landlord-respondent who is unemployed and wishes to open electronic business. He is married and have three children. The Appellate Authority has accepted the explanation of Sushil Kumar that in February, 1996 he was doing the business of electric goods but on account of illness of his son who used to suffer from epilepsy fits, he had to give up that business. His son has now been cured in January, 2000. The deposition of tenant-petitioner Zile Singh that Sushil Kumar is already running the shoe business has also been discarded by the Appellate Authority by observing as under; –
“…….Respondent No. 1 Zile Singh (RW-2) does not dispute that Anil, Subhash and Sushil Kumar are the sons of petitioner Om Parkash. His deposition is that Sushil Kumar is running a shoe business in the shop which is adjacent to the demised shop while the third shop is in possession of Subhash and Anil and the fourth is in possession of Krishan Kumar. It is, thus, not a disputed position that one of the four shops is in occupation of Krishan Kumar (brother of the petitioner) and one is the demised shop and in one of the shops business of shoes is being run while the fourth is also in occupation of the sons of the petitioner. 1 find force in the contention of learned counsel for the petitioner-appellant that income tax papers (Exs.A7 to A9) are part of government record and there is no reason to disbelieve them. According to these documents, the business in the name of M/s Bhola Sales Agencies is being run by Subhash (and not by Sushil Kumar). There is again no evidence to controvert the stand of the petitioner that his son Sushil Kumar is married having three children and is unemployed and wants to set up his independent business…..”
4. On the basis of documentary as well as oral evidence, the Appellate Authority found that the demised shop is bona fide required by the landlord-respondent for the business of his dependent son and the tenant-petitioner is liable to ejectment on that ground.
5. Mr. B.R. Gupta, learned counsel for the tenant-petitioner has raised three submissions before me: firstly that the petition filed by the landlord-respondent is mala fide as one shop was given to Krishan Kumar after getting it vacated from Sushil Kumar who was running electric business and for whose necessity the ejectment petition has been filed. The learned counsel has argued that once Sushil Kumar has vacated the demised premises in 1996, it is not open to the landlord-respondent to file another petition after four years setting up the plea of personal necessity of Sushil Kumar; secondly that already there are three shops in occupation of the sons of the landlord-respondent and since there is sufficient commercial building available, the landlord-respondent can establish his son in any of those premises: and thirdly that in accordance with the judgment in Ved Parkash Gupta v. State of Haryana and Anr., (1997-2)116 P.L.R. 775, the expression ‘residence’ used in Section 13(3)(a)(ii) of the Act continues to exist and a landlord could seek eviction of a tenant only if a building is required for the residence of his married son and not if he requires it for commercial purposes.
6. Having heard the learned counsel at some length, I am of the view that this petition does not merit admission because in the operative part of the judgment of the Appellate Authority, the explanation given by Sushil Kumar that he discontinued his business in 1996 on account of illness of his son who was suffering from epilepsy has been accepted and believed. He has further stated that his son now stands cured and, therefore, he wishes to establish electronic business. Moreover, out of the four shops, three are already in occupation of the two sons of the landlord-respondent, namely, Subhash Kumar and Anil Kumar and the third shop is in possession of Krishan Kumar brother of the landlord-respondent. These findings have been recorded by the Appellate Authority after due examination of the Income Tax returns Exs.A-7 to A-9 and the same are not open to challenge in the instant petition. No new evidence has been brought on record to show that the findings with regard to three shops in occupation of Subhash Kumar, Anil* Kumar and Krishan Kumar are incorrect. Therefore, 1 do not find any merit in the first two submissions raised by learned counsel for the tenant-petitioner.
7. The last submission made by the learned counsel is based on Section 13(3)(a)(iii) of the Act and a judgment of this Court in Ved Parkash Gupta’s case (supra). According to the learned counsel for married son only ‘residential building’ could be got vacated and not a non-residential one. This argument would also not require any detailed consideration because in Harbilas Rai Bansal v. State of Punjab, (1996-1)112 P.L.R. 227 (S.C.) the Supreme Court has taken the view that for the purposes of ejectment on the ground of personal necessity, no distinction between ‘residential’ and non-residential’ building could be drawn as it would violate Article 14 of the Constitution. Following the ratio of the judgment in Harbilas Rai Bansal’s case (supra), this Court in Ved Parkash Gupta’s case (supra) has held that no such distinction could be drawn and the provisions of Section 13(3)(a) of the Act has been made applicable uniformity to all the buildings. It would be appropriate to make a reference to Sections 13(3)(a) of the Act on the basis of which the argument has been raised by the learned counsel and the same reads as under: –
“13. Eviction of tenants.-
(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession –
(a) in the case of a residential building, if, –
(i) he requires it for his 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 the 1949 Act in the said urban area;
(ii) he requires it for use as an office or consulting room by his son who intends to start practice as a lawyer, qualified architect or chartered accountant or as a “registered practitioner” within the meaning of that expression used in the Punjab Medical Registration Act, 1916, the Punjab Ayurvedic and Unani Practitioners Act, 1963, or the Punjab Homeopathic Practitioners Act, 1965, or for the residence of his son who is married:
Provided that such son is not occupying in the urban area concerned any other building for use as office, consulting room or residence, as the case may be, and has not vacated it without sufficient cause after the commencement of the 1949 Act:
(iii) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment:”
Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until the competent authority under that act confirms the order of discharge or dismissal made against him by the landlord.
(iv) and (v) xx xx xx .”
A perusal of the aforementioned provision shows that a landlord is entitled to apply to a Rent Controller for an order directing the tenant to put him in possession in case of a residential building if he requires the same for his own use or if he requires for the use of his son as an office space or if it was let out to a tenant for being used as a residence for the reason that the tenant was in the service or employment of the landlord which was ceased. The learned counsel has laid emphasis on the expression used in Sub-clause (ii) of Clause (a) of Sub-section (3) of Section 13 of the Act, namely, for the residence of his son who is married to argue that the landlord-respondent could seek ejectment of a tenant only for the residence of his son who is married and not in respect of a property which is non-residential. The argument is misconceived once the ratio of the judgment in Harbilas Rai Bansal’s case (supra) is born in mind. Their Lordships of the Supreme Court while following a judgment of the Constitution Bench in Gian Devi Anand v. Jeevan Kumar, (1985)2 S.C.C. 683 and another judgment in the case of Rattan Arya etc. v. State of Tamil Nadu 1986(2) S.C.R. 596 has observed 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 the 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.
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 – under the Act – can seek eviction of a tenant from a non-residential building on the ground that he requires if for his own use. The parties to bear their own costs.”
The aforementioned observations of their Lordships were followed by this Court in Ved Parkash Gupta’s case (supra) and the ratio of the judgment was applied to the provisions of the Act which is enforced in Haryana. The observations of this Court in Ved Parkash Gupta’s case (supra) read 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 (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.”
Therefore, on principle and precedents, the tenuous argument raised by Mr. Gupta is unsustainable.
8. The provisions of Section 13(3)(a)(ii) of the Act is to be liberally construed and the expression ‘for his own use’ has to be interpreted to include the requirement of wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew etc. etc. It is pertinent to mention that Section 13(3)(a)(ii) of the Act came up for consideration before the Supreme Court in the case of Joginder Pal v. Naval Kishore Behal, (2002-2)131 P.L.R. 625 (S.C.). After referring to a number of judgments of the Supreme Court as well as of other High Courts on the issue, their Lordships observed as under:- .
“We are of the opinion that the expression “for his own use” as occurring in Section 13(3)(a)(ii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove, we have found the part materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as “his” or “his own” requirement and user. Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be the obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord To discharge such obligation the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. If the requirement is of actual user of the premises by a person other than the landlord himself the Court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identity nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the above said tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord’s son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. The landlord is not going to let out the premises to his son and though the son would run his office in the premises the possession would continue with the landlord and in a sense the actual occupation by the son would be the occupation by the landlord himself. It is the landlord who requires the premises for his son and in substance the user would be by the landlord for his son’s office. The case squarely falls within the scope of Section 13(3)(a)(ii) of the Act.”
9. After the above discussion, their Lordships have laid down five propositions in paragraph 33 which reads as under:-
“33. Our conclusions are crystallised as under:
(i) The words “for his own use” as occurring in Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949 must receive a wide, liberal and useful meaning rather than a strict or narrow construction.
(ii) The expression – landlord requires for “his own use”, is not confined in its meaning to actual physical user by the landlord personally. The requirement not only of the landlord himself but also of the normal “emanations” of the landlord is included therein. All the cases and circumstances in which actual physical occupation or user by someone else, would amount to occupation or user by the landlord himself, cannot be exhaustively enumerated. It will depend on a variety of factors such as interrelationship and interdependence – economic or otherwise, between the landlord and person in the background of social, socio-religious and local customs and obligations of the society or region to which they belong.
(iii) The tests to be applied are: (i) whether the requirement pleaded and proved may properly be regarded as the landlord’s own requirement: and, (ii) whether on the facts and in the circumstances of a given case, actual occupation and user by a person other than the landlord would be deemed by the landlord as “his own” occupation or user. The answer would, in its turn, dependent on (i) the nature and degree of relationship and/or dependence between the landlord pleading the requirement as “his own” and the person who would actually use the premises; (ii) the circumstances in which the claim arises and is put forward: and (iii) the intrinsic tenability of the claim. The court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord’s claim.
(iv) While casting its judicial verdict, the court shall adopt a practical and meaningful approach guided by the realities of life.
(v) In the present case, the requirement of the landlord of the suit premises for user as office of his chartered accountant son is the requirement of landlord “for his own use” within the meaning of Section 13(3)(a)(ii).”
10. If the facts of the present case are examined in the light of the observations made by the Supreme Court, then no doubt is left that the need of the son is the need of the landlord. Therefore, there is no merit in this petition and the same is liable to be dismissed.
11. For the reasons stated above, this petition fails and the same is dismissed.