Punjab-Haryana High Court
Harish Chand And Ors. vs Kirpa Ram on 19 December, 1985
Equivalent citations: AIR1986P&H277, AIR 1986 PUNJAB AND HARYANA 277, (1986) 1 RENCR 545, (1986) 89 PUN LR 164, (1986) 1 CURLJ(CCR) 120, (1986) 1 LANDLR 319, 1986 HRR 81, (1986) 1 RENCJ 162, (1986) 1 CURCC 582, 1986 SCFBRC 274
JUDGMENT D.V. Sehgal, J.
1. The precise question which calls for determination by this Full Bench is in the following terms:--
"Whether the rights of a statutory tenant in a non-residential building in the State of Haryana are not heritable under the Haryana Urban (Control of Rent and Eviction) Act, 1973?"
2. The few skeleton facts which deserve to be noticed to unravel the controversy raised in this petition under S. 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973, (hereinafter called 'the Haryana Act') are as under:
Kirpa Ram respondent is the landlord of the non-residential building in dispute occupied by Om Parkash (now deceased) as a "statutory tenant". The landlord respondent filed an application on 6-5-1980 for the ejectment of the tenant under S. 13 of the Act which was allowed by the Rent Controller vide its order dated 31-5-1982. The tenant filed an appeal against the order of the Rent Controller on 11-6-1982. However, during the pendency of the appeal Om Prakash, the tenant, died on 17-9-1982. The present petitioners claiming to be the heirs and legal representatives of Om Prakash deceased applied to the Appellate-Authority for their being impleaded as appellants in place of the deceased tenant. The Appellate Authority vide its order dated 22-9-1983 held that the tenancy of the non-residential building in dispute was not heritable and that the petitioners had no right to be impleaded as appellants in place of Om Parkash deceased. Their prayer for being impleaded as legal representatives of Om Parkash was declined and the appeal was also dismissed. Against this order, the present revision petition was filed which came up for hearing before J. M. Tandon, J., on 15-11-1984. It was contended by the petitioners that they had a right to be impleaded as legal representatives of the deceased tenant and reliance was placed on Hari Chand v. Banwari Lal, AIR 1981 Punj and Har 352. On the other hand, the learned counsel for the landlord respondent relying on Gordhan Dass v. Smt. Dhan Mala Devi Jain, AIR 1984 Pun and Har 247, contended that the tenancy of a non-residential building in the State of Haryana was not heritable under the Haryana Act. In view of the rival contentions, Tandon, J.,. considered it appropriate that the revision petition should be heard by a larger Bench. The case then came up before the Division Bench consisting of Hon'ble the Chief Justice and myself on 25-9-1985. In view of the recent Supreme Court judgment in Smt. Gian Devi Anand v. Jeevan Kumar, AIR 1985 SC 796, and a Division Bench judgment of this Court to the contrary reported as Mateshwar Dayal v. Om Parkash, (1984) 2 Rent LR 678, it was found that the judgment in the latter case required reconsideration. Accordingly, the case was directed to be placed before a Full Bench and that is how this case is before us.
2A. It may be stated right at the outset that in Mateshwar Dayal's case (supra), it was the learned counsel for the heirs of the statutory tenant who conceded that the tenancy of a non-residential building in the State of Haryana was not heritable. The Division Bench in the said case recorded its decision on this concession of the learned counsel. However, there are number of Single Bench judgments of this Court which reference will be made later which hold that the statutory tenancy with respect to a shop situated in the State of Haryana is not heritable in view of the definition of term "tenant" as given in S. 2(h) of the Haryana Act. It is thus necessary to examine the above question in some detail in view of the Supreme Court judgment in Smt. Gian Devi Anand's case (supra).
3. Before coming into force of the Haryana Act, the relationship of landlord and tenant qua buildings in urban areas in the State of Haryana was governed by the provisions of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called 'the Punjab Act'). Section 2(i) of the Punjab Act contains the definition of the term 'tenant', the relevant portion of which is as under:--
" 'Tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour...."
4. The definition of the term 'tenant' in the Haryana Act is contained in S 2(h). It is necessary to reproduce the relevant part thereof--
" 'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of his tenancy and in the event of such person's death, such of his heirs as are mentioned in the Schedule appended to this Act and who were ordinarily residing with him at the time of his death.............".
5. The Schedule appended to the Haryana Act mentions the following heirs of a deceased tenant:--
"Son, daughter, widow, father, mother grandfather, grandmother, son of a predeceased son, unmarried daughter of a pre-deceased son, widow of a predeceased son and widow of a predeceased son of a pre-deceased son".
6. A tenant who continued in possession of the tenanted premises after the termination of his tenancy, by virtue of the definition of the term 'tenant' contained in the rent control legislations enacted by various States came to be described as a 'statutory tenant'. The Supreme Court considered the status of a statutory tenant in two decisions: Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi, AIR 1965 SC 414, and J. C. Chatterjee v. Sri Kishan Tandon, AIR 1972 SC 2526. The statute considered in Anand Nivas's case (supra) was Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, as amended in 1959. It was held therein that a statutory tenant has no interest in the premises occupied by him and he has no estate to assign or transfer. A statutory tenant, as held in Anand Nivas's case (supra), was a person who on determination of his contractual rights was permitted to remain in occupation so long as he observed and performed the conditions of the tenancy and paid the standard rent and permitted increases. His personal right of occupation was incapable of being transferred or assigned and, he having no interest in the property, there was no estate on which sub-letting could operate. J. C. Chatterjee's case (supra) dealt with the Rajasthan Premises (Control or Rent and Eviction) Act, 1950 and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the said Act. Relying on Anand Nivas's case (supra), it was held that after the termination of the contractual tenancy is statutory tenant enjoyed only a personal right to continue in possession and on his death his heirs did not inherit any estate or interest in the original tenancy.
7. The position of a statutory tenant, however, has radically changed after the judgment of the final Court in Damadilal v. Parashram, AIR 1976 SC 2229. It was held that a person continuing in possession after the termination of his tenancy under the ordinary law, but who is recognised as a 'tenant' by the rent control legislation, no doubt is described as a 'statutory tenant' as contradistinguished from contractual tenant. A statutory tenant by virtue of his inclusion in the definition of 'tenant' in the rent control legislation is placed on the same footing as contractual tenant so far as rent control legislation is concerned. The distinction between contractual tenancy and statutory tenancy is thus completely obliterated by the rent control legislation. If a contractual tenant has an estate or interest in the premises which is heritable by virtue of the contract, a statutory tenant also has such heritable estate or interest as a result of the statute. In Damadilal's case (supra) the definition of 'tenant' in S. 2(i) of the Madhya Pradesh Accommodation Control Act, 1961, which is in the following terms, came up for consideration:--
"a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act......."
8. After duly considering the earlier judgments in Anand Nivas's case and J. C. Chatterjee's case (AIR 1972 SC 2562) (supra), the Supreme Court came to the conclusion that the so-called statutory tenant had an interest in the premises occupied by him and the heirs of the statutory tenant had a heritable interest in the premises. Later on the provisions of S. 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Bombay Act') came up for consideration before the Supreme Court in Ganpat Ladha v. Shashikant Vishnu Shinde, AIR 1978 SC 955. Section 5(11) of the Bombay Act is inter alia in the following terms:--
"tenant' means any person by whom or on whose account rent is payable for any premises and includes--
..............................
(c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court."
9. The question that arose for decision in Ganpat Ladha's case (supra) was whether an heir of a statutory tenant could possibly claim to be a tenant in respect of the shop which admittedly constitutes business premises by reason of S. 5(11)(c) of the Bombay Act. The Bombay High Court took the view that S. 5(11)(c) of the said Act applies not only to residential premises but also to the business premises and therefore on the death of a tenant of business premises, any member of tenant's family residing with him at the time of his death would become a tenant. The Supreme Court reversed this view and held as under:--
"It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of S. 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessary only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of his death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant in respect of the business premises."
10. As observed by the Supreme Court in Smt. Gian Devi Anand's case (AIR 1985 SC 796) (supra), to which elaborate reference will be made later, the decision in Ganpat Ladha's case (AIR 1978 SC 955) (supra) proceeds entirely on the construction of S. 5(11)(c) of the Bombay Act and it does not appear that the case of Damadilal (AIR 1976 SC 2229) (supra), which also was in respect of commercial premises, was cited before the Court or was considered by the Court while deciding Ganpat Ladha's case (supra). In Smt. Gian Devi Anand's case (supra), the Supreme Court considered S. 2(1) of the Delhi Rent Control Act, 1958 (hereinafter called 'the Delhi Act'). It is not necessary to reproduce in extenso S. 2(1) of the Delhi Act along with the Explanation thereto. Only the relevant parts of the said provision are reproduced hereunder--
"tenant' means any person by whom or on whose account or behalf the rent of any premises, or, but for a special contract would be, payable, and includes--
(i).............................
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order o succession and conditions specified respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's--
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents.
(d) daughter-in-law, being the widow of his predeceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death................."
11. After an elaborate discussion of the different provisions of the Delhi Act, their Lordships of the Supreme Court came to the conclusion that the termination of the contractual tenancy in view of the definition of 'tenant' in the Delhi Act does not bring about any change in the status and legal position of the tenant unless there are contrary provisions in the Delhi Act; and the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under the Delhi Act, despite termination of the contractual tenancy, continues to enjoy creates a heritable interest in the absence of any provisions to the contrary. their Lordships of the Supreme Court observed that the Legislature, which under the Rent Act offers protection against eviction to tenants whose tenancies have been terminated and who continued to remain in possession and, who are generally termed as 'statutory tenants', is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. The Supreme Court thus concluded that it appears that the Legislature in respect of the Delhi Act has not thought it fit to put any restrictions with regard to tenants in respect of commercial premises. Their Lordships specifically dissented from the view taken in Ganpat Ladha's case (AIR 1978 SC 955) (supra).
12. The learned counsel for the landlord-respondent, however, made vain attempt to distinguish Smt. Gian Devi Anand's case (AIR 1985 SC 796) (supra). He contended that the language of S. 2(l)(iii) of the Delhi Act, which was considered in Smt. Gian Devi Anand's case (supra), is different from the language of S. 2(h) of the Haryana Act. He proceeded to contend that in the Delhi Act the heir/heirs who has or have been specified to succeed a tenant in the event of his death are those ordinarily living in the premises with him as a member or members of his family up to the date of his death; the words "ordinarily living in the premises" necessarily refer to 'residential premises' only and exclude commercial or non-residential premises from the condition and the order of inheritance of the tenancy provided in S. 2(l)(iii) of the Delhi Act read with Explns. I and II thereto; since in S. 2(h) of the Haryana Act the words "ordinarily residing with him" are not conditioned by the words "in the premises" or "in the building", the residence of the heirs of the tenant, mentioned in the Schedule appended to the Haryana Act, in the building which is "the subject matter of the tenancy in question" is not necessary; such heirs, thus proceeds the argument, may be residing with the tenant at the time of his death at a place other than the "building" as defined in S. 2(a) of the Haryana Act. The learned counsel proceeding with his above logic thus asserted that the inheritance of the tenancy qua both residential and non-residential buildings in the State of Haryana shall be conditioned by S. 2(h) and limited to the heirs as are mentioned in the Schedule appended to the Haryana Act.
13. If, the interpretation of S. 2(h) of the Haryana Act as placed hereon by the learned counsel for the landlord is accepted, it will lead to absurd results. A son may be working with the tenant in the business in a 'non-residential building' but, for the sake of convenience of the family or due to paucity of residential accommodation with the tenant, may not be residing with him. For the purpose of looking after them properly, the tenant may be allowing his father, mother, grandfather or grandmother to reside with him. In such a case, in the event of the death of the tenant, it shall not be the son who has been working in business with the tenant in the 'non-residential building' who shall inherit the tenancy but instead the tenant would be succeeded by his father, mother, grandfather or grandmother who because old age or any other incapacity, may be wholly dependant on the tenant and, after his death, on his son who by carrying on the business in the 'non-residential building' might have been source of financial support and help to them but would stand ousted from the 'non-residential building' and, resultantly, from the deceased tenant's business also. Examples of such absurdities arising out of the interpretation of S. 2(h) of the Haryana Act, which the learned counsel for the landlord wants to place thereon, can be multiplied. It shall be proper to quote here the observations of the Supreme Court in Carew and Company Ltd. v. Union of India, (1975) 2 SCC 791: (AIR 1975 SC 2260):--
"...... surely definitions in the Act are a sort of statutory dictionary to be departed from when the test strongly suggests."
14. Again, to quote from Carew and Company's case (supra)--
"........ To repeat for emphasis, when two interpretations are feasible, that which advances the remedy and suppresses the evil as the legislature envisioned, must find favour with the Court."
15. On being asked, the learned counsel for the landlord admitted that there is a striking similarity between S. 2(h) of the Haryana Act and S. 5(11)(c) of the Bombay Act in that, unlike S. 2(l)(iii) of the Delhi Act, in both the provisions the words "in the premises" or "in the building" do not succeed the words "residing with him". In spite of this, the Supreme Court in Smt. Gian Devi Anand's case (AIR 1985 SC 796) (supra) was of the view that provision of S. 5(11)(c) of the Bombay Act and S. 2(l)(iii) of the Delhi Act are almost similar. It would be apt to quote Bhagwati, J. (as the learned Chief Justice then was) from his concurring judgment in Smt. Gian Devi Anand's case (supra)--
"Now a word about Ganpat Ladha's case AIR 1978 SC 955 (supra). It is true that there are certain observations in that case which go counter to what we are holding in the present case and to that extent these observations must be held not to enunciate the correct law on the subject. This Court was not really concerned in that case with the question of heritability of statutory tenancy. The only question was in regard to the true interpretation of S. 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which is almost in same terms as S. 2(l)(iii) of the Delhi Rent Control Act, 1958 and while dealing with this question, the Court made certain observations regarding the nature of statutory tenancy and its heritability. The attention of the Court was not focussed on the question interest in the premises which is heritable and no argument was advanced that a statutory tenancy is heritable. It was assumed that a statutory tenancy is not heritable and on that footing the case was argued in regard to the true meaning and construction of section 5(11)(c). The observations made in that case to the extent to which they conflict with the judgment in the present case must therefore be regard as overruled."
16. It would also be pertinent to reproduce here some observations of the Supreme Court in Smt. Gian Devi Anand's case (AIR 1985 SC 796) (supra), which have an important bearing on the matter before us. Their Lordships observed--
"The death of the person who happens to be the tenant of the commercial premises and who was running the business out of the income of which the family used to be maintained is itself a great loss to the members of the family to whom the death, naturally, comes as a great blow. Usually on the death of the person who runs the business and maintains his family out of the income of the business, the other members of the family who suffer the bereavement have necessarily to carry on the business for the maintenance and support of the family. A running business is indeed a very valuable asset and often great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same...
The mere fact that in the Act no provision has been made with regard to the heirs of tenants in respect of commercial tenancies on the death of the tenant after termination of the tenancy, as has been done in the case of heirs of the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however, flourishing it may be, and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant only because the tenant dies after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried on by the tenant will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate as they are afforded no protection under the Act."
17. The imperative conclusion therefore is that the condition and order of inheritance of tenancy which find place in S. 2(h) of the Haryana Act read with the Schedule appended thereto are limited in their application to a residential building. The tenancy in respect of a "non-residential building", in the event of the death of the tenant devolves on the heirs of the deceased tenant in accordance with the general law of succession applicable to the tenant and the heirs who step into the shoes of the deceased tenant continues to enjoy the protection afforded by the Haryana Act.
18. Consequently, the Single Bench Judgments of this Court in Sarwan Kumar v. Piare Lal (1979) 1 Ren CJ 3, Om Parkash v. Smt. Kailash Wati, (1981) 1 Ren CJ 143, Daljit Singh v. Gurmukh Dass, AIR 1981 Punj & Har 394, and Rakesh Kumar v. Daulat Ram and others, (1984) 2 Ren CJ 27 which took a contrary view and were based on Ganpat Ladha's case (AIR 1978 SC 955) (supra) stand overruled. The concession of the learned counsel for the heirs of the tenant recorded in Mateshwar Dayal's case (1984-2 Rent LR 678) (supra) was not in accordance with law and the decision of the Division Bench on this concession is consequently not correct.
19. The answer to the legal question referred having been rendered in the terms above, the revision would now go back before a learned single Judge for decision on merits in accordance with law.
P.C. Jain, C.J.
20. I agree.
S.P. Goyal, J.
21. I agree.
22. Answered accordingly.