JUDGMENT
H.S. Bedi, J.
1. The petitioner is stated to be owner of Shop No. 59 Ward No. 7 situated in the main bazar of Shahabad Markanda of district Kurukshetra. As per the averment made in the petition he retired from the Military Engineering Services and thereafter filed a petition Under Section 13 of the Haryana urban (Control of Rent) and Eviction Act (hereinafter referred to as the ‘Act’) for getting the shop in question vacated and one of the grounds taken up was that after retirement from the Army he has been temporarily residing in Ambala. for the proper education of his sons but after they have passed out he required this building for his personal and bona fide necessity. This ground was however negatived by the Rent Controller on the plea that it was not available with regard to a non-residential building and accordingly dismissed the ejectment application vide order dated 7.2.1995. The appeal carried to the appellate authority was also dismissed. The petitioner has accordingly filed the present writ petition claiming that the classification between non-residential and residential building created by Section 13(3)(a) of the Act inasmuch as that ejectment on the ground of personal necessity was confined only to residential building, was violative of Article 14 of Constitution and hence was liable to be struck down.
2. Notice of motion was issued on this case and a reply has also been filed on behalf of the respondent i.e. the State of Haryana as also the tenant.
3. Mr. Anil Kheterpal the learned counsel appearing in support of the petition has urged that the matter was concluded in favour of the petitioner by a judgment of the Supreme Court in Harbilas Rai Bansal v. The Sate of Punjab, (1996-1)112 P.L.R. 227 wherein a similar provision existing in the East Punjab Urban Rent Restriction Act, 1949 had been struck down and the Hon’ble Supreme Court had observed that the distinction between non-residential and residential building, with regard to ejectment on the ground of personal necessity had no nexus with the object sought to be achieved by the Act and as this classification caused serious hardship to the landlord, it was constitutionally invalid.
4. As against this, Mr. Chetan Mittal the learned counsel appearing for the tenant has urged that a distinction had to be drawn between the Haryana Act and the Punjab Act and as the Haryana Act did provide for the ejectment of a tenant from a non-residential building on the ground of personal necessity of the landlord in certain situation, the judgment of the Supreme Court had no applicability. In this connection he had stated that in Section 13(3-A) of the Haryana Act it was provided that this benefit could be given to a landlord of a non-residential building provided he had retired or has been discharged from the armed forces of the Union of India or to a minor son at the time of death of the deceased landlord.
5. I have considered the arguments of the learned counsel for the parties and find that this petition deserves to succeed. The Punjab Act was promulgated in the year 1949 and Section 13 which dealt with eviction of the tenant was as under:-
Section 13 – Eviction of Tenants:
(3)(a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possession;
(ii) in case of a non-residential building or rented land, if
(a) He requires it for his own use;
(b) he is not occupying in the Urban Area concerned for the purpose of his business any other such building or rented land as the case may be; and
(c) has not vacated such a building or rented land without sufficient cause after the commencement of this Act, in the Urban Area concerned.’
This section was amended w.e.f. September 24, 1956 as under.
1. Short title – This Act may be called the East Punjab Urban Rent Restriction (Amendment) Act, 1956.
2. Amendment of Section 13 of East Punjab Act III of 1949. – In clause (a) of Sub-section (3) of Section 13 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter referred to as the Principal Act –
(i), (a)………………
(b)………………
ii) (a) In Sub-clause (ii) the words ‘ a non-residential building or shall be omitted.
(b) in sub-paragraph (b), the words “building or” and the words as the case may be” shall be omitted.
(c) In sub-paragraph (c) the words” a building or” shall be omitted.
(iii)……………..
(iv) In sub clause (iv) for the words “any building” where they first occur, the words (any residential building”) shall be substituted.
(v) In the second proviso, for the words “a residential, a scheduled or non-residential building or rented land”, the words (a residential building or rented land”) shall be substituted.” As a result of the amendment aforesaid, the material provision is as under:-
“(3)(a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possession. –
(ii) in case of the rented land, if
(a) he requires it for his own use;
(b) he is not occupying in the urban area concerned for the purpose of his business any other such ( ) rented land () and
(c) has not vacated such ( ) rented land without sufficient cause after the commencement of this Act, in the urban area concerned.”
6. It will thus be seen that by virtue of amendment made in the year 1956 the words “non-residential building” were omitted, meaning thereby that the grounds for personal necessity was to be confined to rented land only. The Hon’ble Supreme Court came to the conclusion that the amendment of 1956 could not be justified on the touch stone of article 14 of the Constitution and, as such, this amendment was constitutionally invalid and a further direction was issued that as a consequence, the original provision of the Punjab Act, i.e. prior to the amendment Act of 1956 was deemed to be restored.
7. As already mentioned above, Mr. Mittal’s arguments flow from the provisions of Section 13(3) of the Haryana Act which reads as under:
“In the case of a non-residential building, a landlord who stands retired or discharged from the armed forces of the Union of India or who was a minor son at the time of death of the deceased landlord, and requires it for his personal use, may within a period of three years from the date of retirement or discharge or attaining the age of eighteen years, as the case may be, apply to the controller for an order directing the tenant to put the landlord in possession;
Provided that where the landlord has obtained possession of a non-residential building under this Sub-section, he shall not be entitled to apply again for the possession of any other non-residential building of the same class.”
8. A bare look at this Sub-section shows that only a limited category of landlords have been given this benefit whereas the vast majority have been denied the same. Mr. Mittal argument stands repelled by the Supreme Court in Harbilas Rai Bansal’ case (supra) :
“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 the 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.”
9. The stand of the petitioner in the present writ petition as also in Harbilas Rai Bansal’ 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 uniformally applicable to all categories of buildings.
10. This petition is accordingly allowed in the terms mentioned above. No costs.