Judgment:
V.K. Jhanji, J.
1. This is landlord's revision directed against the orders of the authorities below dismissing his petition for the ejectment of his tenant on the ground of personal necessity.
2. The tenant (respondent herein) vide rent-note dated 15th September, 1971, took on rent two rooms including courtyard at the rate of Rs. 100/- per month, the front portion for the running of the shop and the back portion for the purpose of his residence. In 1974, a compromise took place between the landlord and the tenant vacated the back portion and retained front portion i.e. shop on rent of Rs. 55/- per month. He also executed a rent-note dated 20th November, 1974. Ejectment of the tenant was sought on the ground that the landlord required the premises for his own use and occupation and for the accommodation of his family.
3. The tenant contested the petition. In the written-statement he denied that the premises were required by the landlord for his personal use and occupation. It was also claimed that the premises cannot be got vacated for personal necessity as the premises in occupation of the respondent is not 'residential building' as defined under the East Punjab Urban Rent Restriction Act but is a shop. The Rent Controller dismissed the ejectment application after finding that the ground of personal necessity is not available to the landlord as the premises in occupation of the tenant is a shop.
4. The landlord preferred an appeal before the Appellate Authority vide order dated 9th October, 1981 called for the report from the Rent Controller by the order of Appellate Authority, Sangrur as the Rent Controller had not given any finding as to whether the premises in dispute were required by the landlord for his personal use and occupation The Rent Controller submitted report dated 24th November, 1981. In his report he found that the premises in dispute are bona fide required, by the landlord for his own use and occupation. However, the appeal of the landlord was dismissed by the Appellate Authority as it was of the view that the premises in dispute which are described as a shop and were let out for business purpose and are being used as such by the tenant, and thus the same cannot be got vacated on the ground of bona fide personal requirement of the landlord, This order is being challenged by the landlord in this revision petition.
5. Mr. R. K. Battas, learned counsel for the petitioner, contended that the shop in dispute in possession of the tenant is an integral part of the 'residential building', and, therefore, the same can be got Vacated on the ground of personal necessity. He has placed reliance on the Full Bench judgment of this court reported as Hari Mittal v. B. M. Sikka, (1986-1) 89 P. L. R. 1 (F. B.).
6. After hearing the learned counsel for the petitioner I am of the view that there is no merit in the revision petition In Hari Mittal's case (supra) the question was whether residential building can be converted into non-residential one by putting it for non-residential use. However, this is not the question here. In the present case, the shop in dispute is an independent unit of a residential building. The shop in dispute was let out for the purposes of carrying on business. Therefore, she ratio of Hari Mittjl's case (supra) is not applicable to the case in hand Moreover, Hari Millars case (supra) related to a building in the Union Territory of Chandigarh where the user of every building is specified by law and, therefore, in that context it was held that the residential building cannot be converted into non-residential without the consent of the Rent Controller. Hari Mittal's case was considered by the Supreme Court in Civil Appeal No. 4216 of 1988. The relevant portion of the order of the Supreme Court in Civil Appeal No. 4216 of 1988, is reproduced as under :-
'In course of submission advanced at the bar reliance was placed on the Full Bench decision of the Punjab and High Court in Hari Mittal's case (1986-1) 89 P. L. R 1. We find that this decision has followed the two judge Bench judgment of this Court in Kamal Arora v. Amar Singh's case The provisions of the Punjab Municipal Act, 1911, were also placed before us. Under Section 192 of the Municipal Act building Schemes are contemplated and in case a building scheme is in force restriction on the nature of use is imposable, and consequences of violation thereof are also provided for.
We gather that in respect of the Jullundur city some portions have schemes under Section 192 in force while for other portions there is no such scheme. Applicability of the ratio in Hari Mittal's case would depend upon whether the house in dispute is located within an area covered by a scheme. Since that information is not available on the record, it would be necessary to gather information and the requirement would be with reference to 1973 when the tenancy as created. This question arises determined with reference to Section 11 of the East Punjab Urban Rent Restriction Act, 1949.
We direct that the Rent Controller shall receive evidence for parties and collect such other evidence as he considers necessary to provide satisfactory factual data to this court after putting parties to notice of such material. The report should be received within two months hence. The matter shall be called immediately thereafter. Both the parties are directed to appear before the Rent Controller on 5.3 1990 to take his orders. Copy of this order be sent to the Controller immediately This appeal shall be shown as a part heard matter. Liberty to mention after the report is received'.
7. In pursuance of the directions of the Supreme Court, the Rent Controller after enquiry made a report to the effect that no such scheme exists. After considering the report of the Rent Controller, the Supreme Court dismissed the appeal of the landlord after finding that there has been no change of user in as much as tenancy was created for the purpose of locating the clinic and, therefore, the same cannot be got vacated on the ground of personal necessity. For this see Dev Brat Sharma v. Dr. Jagjit Mehta, 1990 (2) Rent C.J. 431.
8. Considering the facts of the present case, in the light of the judgment of the Supreme Court in Dev Brat Sharma's case, I find that the landlord is not entitled to seek order of ejectment as he has failed to prove on record any sanctioned scheme under the Punjab Municipal Law or the Punjab Town improvement Act in order to show that the building of which the premises in dispute form part, cannot be used for any other purpose except residential. This being the position the ground of personal necessity is not available to the landlord.
9. Consequently, the revision petition is dismissed. No order as to costs.