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1981 Supreme(P&H) 105
PUNJAB & HARYANA HIGH COURT
G.C.Mittal, J.
Daljit Singh
Versus
Gurmukh Dass
Civil Revision No. 1535 of 1980,
Second Appeal No. 2116 of 1980,
Decided On : APRIL 21, 1981
The tenancy rights in a shop or business premises are not heritable under the Haryana Urban (Control of Rent and Eviction) Act, 1973.
Headnote:
HARYANA URBAN (CONTROL OF RENT AND EVICTION) ACT, 1973 - SECTION 2(H) - TENANCY RIGHTS - INTERPRETATION - HEIRS OF TENANT IN RESPECT OF SHOP - NOT CONSIDERED TENANTS - NO PROTECTION UNDER THE ACT.
Fact of the Case:
The main issue in these two cases was whether the heirs of a tenant in respect of a shop could be considered as tenants to claim protection under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (the Act).
Finding of the Court:
The court held that the tenancy rights in a shop or business premises would not be heritable according to the definition of tenant contained in the Act.
Issues: 1. Whether the heirs of a tenant in respect of a shop can be considered as tenants to claim protection under the Act? 2. Interpretation of the definition of tenant in Section 2(h) of the Act.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in Ganpat Ladha V/s. Sashikant Vishnu Shinde, AIR 1978 SC 955, which held that the protection under Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was intended to be given only in respect of residential premises. 2. The court distinguished the Supreme Court's decision in Damadilal V/s. Parashram, AIR 1976 SC 2229, on the grounds that the definition of tenant in that case was different from the definition in the Act.
Final Decision: Both the civil revision and the second appeal were dismissed, upholding the lower courts' decisions that the heirs of the tenants did not inherit the tenancy rights and were not entitled to protection under the Act.
1. Whether the heirs of a tenant in respect of a shop can be considered as tenants to claim protection under the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter called the Act), is the main point for decision of these two cases, (Civil Revision No. 1535 of 1980 and Regular Second Appeal No. 2116 of 1980).
2. The facts of this civil revision are that Gurmukh Singh was tenant in respect of a shop situated within the Municipal limits of Faridabad Town under Gurmukh Dass, Gurmukh Singh tenant died on 3rd June, 1978, and since his heirs occupied the shop thereafter Gurmukh Dass filed a civil suit on 6th of June, 1979, for ejectment of the heirs of Gurmukh Singh tenant and for recovery of arrears of rent up to the date of death of Gurmukh Singh, and thereafter for mesne profits. The plaintiff s case was that under the Act the tenancy in respect of a shop was not heritable and, therefore, the position of the defendants was that of a trespasser. In the written statement, the stand of the defendants was that the tenancy was heritable and as such the civil suit is not competent in view of the Act. On the contest of the parties, a preliminary issue was framed as to whether the civil Court has jurisdiction to try the suit. The trial Court by order dated 28th of April, 1980, came to the conclusion that the tenancy in respect of a shop was not heritable under the Act and, therefore, the defendants could not be treated as tenants and as such the suit was competent. Against the aforesaid order, the defendants have come up in revision to this Court.
3. The facts of R.S.A. No. 2116 of 1980 are that Chuni Lal was a tenant in respect of a shop situated within the Municipal limits of Jhajjar under Ashwani Kumar Kashyap. Chuni Lal died on 4th of June, 1978, and after his death, his son Om Parkash occupied the shop on 5th of February, 1979. Ashwani Kumar Kashyap filed a suit for possession of the shop against Om Parkash alleging that under the Act the tenancy was not heritable and as such the possession of Om Parkash was unauthorised. The plea of the defendant was that the tenancy was heritable and as such he was the tenant and, therefore, the civil suit was not competent. The trial court, by judgment and decree dated 30th January, 1980, came to the conclusion that the tenancy in respect of shop is not heritable and decreed the suit for possession. On defendant s appeal, the learned District Judge agreed with the trial Court and dismissed the appeal on 8th of May, 1980. The defendant has come to this Court in second appeal.
4. In order to appreciate the point, it would be useful to notice the provisions of the Act. The Act was published in the Haryana Government Gazette (Extraordinary) dated 27th April, 1973, and by the enforcement of the Act, the East Punjab Urban Rent Restriction Act, 1949, was repealed so far as the State of Haryana is concerned. The definition of tenant contained in Section 2 (h) of the Act is as follows:-
"2 (h) 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, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or person to whom the collection of rent or fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out, or leased by a Municipal, town or notified area committees."
Out of the aforesaid definition, the crucial words which will fall for determination are: "......... and in the event of such person s death, such of his heirs as are mentioned in the Schedule appended to this Act and were ordinarily residing with him at the time of his death........."
According
