TaxTMI 
TaxTMI 
2005 (9) TMI 643
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....d as Shop-cum-Flat (for short "SCF") in Sector 37-A, Chandigarh, in which father of the appellant late O.P. Vij was a tenant. The respondent filed a petition for eviction of O.P. Vij on the grounds, inter alia, that he was having his clinic in House No. 5, Sector 16-A, Chandigarh, but the owner of the said premises, namely, Shri Wasan Singh had filed an eviction petition against him on the ground that he was a specified landlord within the meaning of Section 2(hh) of the East Punjab Urban Rent Restriction Act, 1949 (for short '1949 Act') and the said petition was pending adjudication before the Rent Controller. The respondent wanted to set up a bigger dental clinic with modern gadgets, more number of dental chairs, provision for x-ray examination, orthopentamorgrams and radio video graphs and other facilities for which the space required was wholly inadequate in the rented premises currently in his occupation. The tenant O.P. Vij contested the eviction petition on various grounds and the principal ground urged was that eviction of a tenant cannot be sought on the ground of personal requirement of the landlord under the relevant provisions of East Punjab Urban Rent Restricti....
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.... Provided that 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"; (f) "rented land" means any land let separately for the purpose of being used principally for business or trade; (g) "residential building" means any building which is not a non-residential building." Section 13 of this Act deals with eviction of tenants. Section 13(1) and the relevant portion of Section 13(3)(a), which have a bearing on the controversy in hand, are being reproduced below: - "13. Eviction of tenants, - (1) A tenant in possession of a building or rented land shall not be evicted therefrom 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 this section. (2) ........................................... (3) (a) A landlord may apply to the Controller for an order directing tenant to put the landlord in possession (i) in the case of a residential or a scheduled building if (a) he requires it for his o....
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....pply to the Controller for an order directing the tenant to put the landlord in possession (i) in the case of a residential building if ........... ................................ (Omitted as not relevant) (ii) In the case of 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) he has not vacated such rented land without sufficient cause after the commencement of this Act, in the urban area concerned. ......................................................." It will be seen that as a result of the amendment effected by the Amendment Act, 1956 the landlord could only seek eviction of a tenant from a residential or scheduled building or rented land, but was completely deprived of his right to seek eviction of a tenant from a non- residential building even if he required it for his own use. 6. As a result of reorganization of the State of Punjab by Punjab Reorganization Act, 1966, Chandigarh was carved out as a Union Territory with effect from 1.11.1966. The Central Government issued a Notification on 13.10....
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....aid territory having regard to the density of the population and the nature and extent of the accommodation available to be urban for the purposes of this Act. 7. Thereafter, the Parliament enacted the East Punjab Urban Rent Restriction (Chandigarh Amendment) Act, 1982 (for short "1982 Act"), which also consists of only 4 sections. Sections 2 and 3 of this Act are being reproduced below: - "Amendment of Section 1. In the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act III of 1949), as in force in the Union Territory of Chandigarh (hereinafter referred to as the Principal Act), in section 1, in sub-section (1), for the words "East Punjab", the word "Punjab" shall be substituted. 3. Amendment of Section 2. - In section 2 of the principal Act, for clause (d), the following clause shall be substituted, namely: - (d) "non-residential building" means (i) a building being used solely for the purpose of business or trade; (ii) 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....
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....ded from evicting the tenant for the rest of his life even when he bona fide requires the premises for his personal use and occupation. It is not the tenants but the landlords who are suffering great hardships because of the amendment. A landlord may genuinely like to let out a shop till the time he bona fide needs the same. Visualise a case of a shopkeeper (owner) dying young. There may not be a member in the family to continue the business and the widow may not need the shop for quite some time. She may like to let out the shop till the time her children grow-up and need the premises for their personal use. It would be wholly arbitrary -- in a situation like this -- to deny her the right to evict the tenant. The amendment has created a situation where a tenant can continue in possession of a non- residential premises for life and even after the tenant's death his heirs may continue the tenancy. We have no doubt in our mind that the objects, reasons and the scheme of the Act could not have envisaged the type of situation created by the amendment which is patently harsh and grossly unjust for the landlord of a non-residential premises. 17. In Gian Devi's case (1985....
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....ounsel for the tenant has submitted that the Parliament enacted the Chandigarh Extension Act, 1974 and this Act made the East Punjab Urban Rent Restriction Act, 1949 applicable to the Union Territory of Chandigarh. At the time when the Parliament enacted this Chandigarh Extension Act, 1974, which was published in Gazette on 20.12.1974, factually the East Punjab Urban Rent Restriction Act, 1949 did not contain any provision whereunder a landlord could have sought eviction of a tenant from a non-residential building on the ground of his own use on account of the amendment made to it by the Amendment Act, 1956 by which the words "a non residential building or" occurring in Section 13(3)(a)(ii) of the 1949 Act had been omitted. Consequently in the Union Territory of Chandigarh a landlord has no right to seek eviction of a tenant from a non-residential building on the ground of his own use as there exists no provision to that effect in the law applicable thereto. 10. Shri Sudhir Chandra, learned senior counsel for the landlord- respondent, has submitted that in the case of Harbilas Rai Bansal (supra), this Court declared the provisions of the Amendment Act, 1956, as constitutionally ....
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....es the validity of the pre-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas clause (2) of that Article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, be void. There is a clear distinction between the two clauses. Under clause (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When clause (2) of Article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional pro....
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....titution Bench decisions clearly lay down that having regard to the prohibition contained in clause (2) of Article 13 of the Constitution any law made in contravention of Part III of the Constitution would be a stillborn law and such a law is dead from the very beginning. A law, which is stillborn and is dead right from its inception, cannot at all be taken notice of or read for any purpose whatsoever. 12. Section 2 of the Chandigarh Extension Act defines the words "the Act" as the East Punjab Urban Rent Restriction Act, 1949 as it is extended to, and was in force in certain areas in the pre-reorganization State of Punjab immediately before the first day of November, 1966. In view of Section 3 of the Chandigarh Extension Act "the Act", which would mean the East Punjab Urban Rent Restriction Act, 1949 as extended to and was in force will be deemed to have been in force in the Union Territory of Chandigarh with effect from 4th day of November, 1972. The words "as it extended to and was in force in" are very significant. Though as a matter of fact certain amendments had been made to East Punjab Urban Rent Restriction Act, 1949 by the Amendment Act, 1956, whereby Section 13(3)(a)(ii....
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....tion something which was stillborn or dead. 14. Learned counsel for the appellant-tenant has next submitted that at the time when the Chandigarh Extension Act, 1974 was enacted, the judgment in the case of Harbilas Rai Bansal (supra) had not been rendered and the Parliament had before it the text of East Punjab Urban Rent Restriction Act, 1949 as it stood after its amendment by the Amendment Act, 1956 by which in Section 13(3)(a)(ii) the words "non residential building or" had been deleted. Naturally, therefore, the Parliament applied its mind to the said enactment (1949 Act) which did not contain any provision regarding eviction of a tenant from a non-residential building and extended the same to the Union Territory of Chandigarh. Learned counsel has also submitted that in order to interpret the provisions of the Act the Court must look to the intention of the Parliament and having regard to the factual scenario then existing, namely, that at the time of passing of the Chandigarh Extension Act in the year 1974, the 1949 Act stood amended by the Amendment Act, 1956, it is not possible to hold that the Parliament also intended to give a right to a landlord to seek eviction of a t....
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....ersonal use has been misused by certain landlords and, therefore, it was considered necessary that the tenants of non-residential property in Punjab should be placed at par with tenants of such property in Delhi and other urban areas covered by the Delhi-Ajmer Act. It has thus been submitted that the Parliament while enacting the Chandigarh Extension Act, 1974 must have had this object in mind when it extended the East Punjab Urban Rent Restriction Act, 1949 to the Union Territory of Chandigarh with effect from 4.11.1972. In our opinion it will not be proper to interpret the provisions of Chandigarh Extension Act by taking into consideration the Objects and Reasons of another Act and the supposed intention or notions of the law makers. It will be apt to quote here what S.R. Das, J. (as His Lordship then was) said while speaking for a Constitution Bench in Rananjaya Singh vs. Baijnath Singh and others AIR 1954 SC 749: - "The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statuto....
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....re bodily lifted and incorporated in the Act, then it is known as legislation by incorporation. The determination whether a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping in view the language employed by the Act, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. Reason for it is the courts' prime duty to assume that any law made by the Legislature is enacted to serve public purpose. 20. In State of Madhya Pradesh vs. M.V. Narasimhan AIR 1975 SC 1835, after review of several earlier decisions, the following principle was enunciated: - "Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases : (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported in....
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....of the statue which have been incorporated would remain the same as they were at the time of incorporation and the subsequent amendments are not to be read in the subsequent legislation. In the words of Lord Esher, M.R., the legal effect of such incorporation by reference "is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." [See: Wood's Estate, Re, (1886) 31 Ch D 607 at p. 615]. As to whether a particular legislation falls in the category of referential legislation or legislation by incorporation depends upon the language used in the statute in which reference is made to the earlier legislation and other relevant circumstances." In our opinion, the principle of law underlying legislation by incorporation or legislation by reference has not much relevance in the present case. We do not have to examine the effect of any amendment or repeal of any enactment. Section 3 of the Chandigarh Extension Act makes the East Punjab Urban Rent Restriction Act, 1949, subject to the modification specified in t....
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....the meaning of the words "the Act" we have to refer back to Section 2, viz., the East Punjab Urban Rent Restriction Act, 1949 and the provisions of this 1949 Act have to be seen and examined as they stood on the date when the eviction petition was filed or till the continuance of the litigation culminating in the final judgment. On the date when the eviction petition was filed or at any stage subsequent thereto including the date when the matter was heard and is being decided by this Court, it is not possible to read the East Punjab Urban Rent Restriction Act, 1949 in a manner in which it was amended by the Amendment Act, 1956 but has to be read as it originally stood which contained a provision giving right to a landlord to seek eviction of a tenant from a non residential building on the ground of his own use. This is so because in Harbilas Rai Bansal (supra) the provisions of the Amendment Act, 1956 were held to be violative of Article 14 of the Constitution and were struck down. Therefore, read in any manner the inevitable consequence is that the word "the Act" occurring in Section 2 of the Chandigarh Extension Act has to be read as the East Punjab Urban Rent Restriction Act, 19....