S.S. Sudhalkar, J.
1. Both the Letters Patent Appeals No. 494 of 1997 and 544 of 1997 arise from the same judgment and have been filed by respondents No. 1 and 2, respectively in C.W.P. No. 4161 of 1996 reported as (1997-2)116 P.L.R. 775. These are being disposed of by this common judgment. Respondent Ved Parkash Gupta filed the aforesaid writ petition against the appellants in these two Letters Patent Appeals claiming that the classification between non-residential and residential buildings created by Section 13(3)(a) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as the 1973 Act) confining ejectment on the ground of personal necessity only to residential buildings is illegal and unconstitutional. Respondent Ved Parkash Gupta is the owner of a shop situated in the main bazar of Shahbad Markanda, Distt. Kurukshetra. He has averred in the writ petition that he bona fide requires the said shop for his personal use because after taking retirement from Military Engineering Service, which is a part of the defence force, as Assistant Engineer, he intends to carry on his vocation in the demised premises. The petitioner has further averred that he is a licensed surveyor for the purposes of all motor accidents and is also approved valuer of Haryana Financial Corporation. He had filed a petition under Section 13 of the 1973 Act for getting the shop in question vacated and one of the grounds taken therein was that he required the shop for his personal necessity and bona fide use. The ground of personal necessity was not taken into consideration by the Rent Controller on the ground that the said ground was not available qua commercial buildings. For other grounds also, the petition was ordered to be dismissed by the learned Rent Controller vide judgment dated 7.2.1995. Appeal against the said judgment was also dismissed by the appellate authority.
2. The petitioner filed the writ petition which was decided by the learned Single Judge of this Court vide judgment dated 1.5.1997. The learned Single Judge was pleased to allow the writ petition and strike down the word 'residential' appearing in sub-clause (a) of clause (3) of Section 13 of the 1973 Act. As stated earlier, these Letter Patent Appeals arise from the said judgment.
3. We have heard the learned Counsel for the parties. Section 13(3) of the 1973 Act reads as under:-
Section 13(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:-
(a) in the case of residential building, if-
(i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of 1949 Act in the said urban area.
(ii) he requires it for use as an office or consulting room by his son who intends to start practice as lawyer, qualified architect or chartered accountant or as a 'registered practitioner' within the meaning of that expression used in the Punjab Medical Registration Act, 1916 the Punjab Ayurvedic and Unani Practitioners Act, 1963, or the Punjab Homeopathic Practitioners Act,- 1965, or for the residence of his son who is married:
Provided that such son is not occupying in the Urban area concerned any other building for use as office, consulting room or residence as the case may be and has not vacated it without sufficient cause after the commencement of the 1949 Act.
(iii) it was let out to the tenant for use as a residence by reason of his being in the service or employment of the landlord and the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment.
Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord;
(iv) the tenant has already in his own possession a residential building or subsequently acquires possession of, or erects, such a building reasonably sufficient for his requirement in the urban area concerned.
(v) he is a member of the armed forces of the Union of India and requires it for the occupation of his family and produces a certificate from the prescribed authority referred to in Section 7 of the Indian Soldiers (Litigation) Act, 1925 that he is serving under special conditions within the meaning of Section 3 of that Act.
Explanation.- For the purposes of this sub-clause family means such relations of the landlord as ordinary live with him and are dependent upon him.
4. The grievance of respondent Ved Parkash (writ petitioner) was that by restricting the provisions for ejectment of a tenant to a residential building, there has been a classification which is unreasonable, illegal, unconstitutional, arbitrary and violative of Article 14 of the Constitution of India. He contended that he was born and brought up at Shahbad Markanda and wants to settle at this place but due to the fact that the shop was not in his possession, he had taken temporary residence in Ambala City on rent. He further contended that it was only with this purpose that the property was purchased but because of the arbitrary classification made in Section 13(3)(a) of the 1973 Act by restricting the ground of personal necessity for eviction to only residential buildings, the Rent Controller had dismissed his ejectment application. He contended that he has not been able to get the possession of the demised premises even though his requirement was bona fide.
5. Before the 1973 Act was enacted, there was in force in Haryana, The East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the 1949 Act). The said Act was repealed by the 1973 Act. The relevant provisions in the 1949 Act before its amendment by the amending Act of 1956 were as under:-
Section 13 - Eviction of tenant:
(3) (a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possession:-
(i) xx xx xx xx
(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.'
6. By the amending Act of 1956, some provisions were amended. The relevant provisions of the amending Act which were introduced on September 24, 1956 are quoted below:
1. Short title :- This Act may be called the East Punjab Urban Rent Restriction (Amendment) Act, 1956;
2. Amendment of Section 13 of the 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.
7. Relevant provisions of the 1949 Act after the amendment can be read as under-
'(3)(a) A landlord may apply to Controller for an order directing the tenant to put the landlord in possession-
(i) xx xx xx xx
(ii) in 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) has not vacated such ( ) rented land without sufficient cause after the commencement of this Act, in the urban area concerned.'
(Note: S.13(3)(a)(i) pertains to residential buildings only).
8. It is, thus, apparent that by the 1956 amendment, the provision for eviction of non-residential buildings on the ground of personal necessity was deleted. This had resulted in confining of the ground of personal necessity for eviction to rented land and residential building only.
9. The Apex Court in its judgment in the case of Harbilas Rai Bansal v. The State of Punjab, (1996-1)112 P.L.R. 227 (S.C.) held that by amendment of 1956, the right of the landlord to evict the tenant from a non-residential building for bona fide need was taken away and, therefore, the provisions of the amended Act were violative of Article 14 of the Constitution and were liable to be struck down. It was observed by the Apex Court in that case as under:
'To be permissible under Article 14 of the Constitution a classification must satisfy two conditions namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the Statute in question. The classification may be founded on different basis, but what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.'
10. The Apex Court had taken into consideration the following observations in the judgment of the Constitution Bench in the case of Gian Devi Anand v. Jeevan Kumar and Ors., (1985-1)87 P.LR.D. 143 (S.C.) (Para 39):
'Before concluding there is one aspect on which we consider it desirable to make certain observations. The owner of any premises, whether residential or commercial, let out to any tenant, is permitted by the Rent Control Acts to seek eviction of the tenant only on the grounds specified in the Act, entitling the landlord to evict the tenant from the premises. The restrictions on the power of the landlords in the matter of recovery of possession of the premises let out by him to a tenant have been imposed for the benefit of the tenants. In spite or various restrictions put on the landlord's right to recover possession of the premises from a tenant, the right of the landlord to recover possession of the premises from the tenant for the bona fide need of the premises by the landlord is recognised by the Act, in case of residential premises. A landlord may let out the premises under various circumstances. Usually a landlord lets out the premises when he does not need it for own use. Circumstance may change and a situation may arise when the landlord may require the premises let out by him for his own use. It is just and proper that when the landlord requires the premises bona fide for his own use and occupation, the landlord should be entitled to recover the possession of the premises which continues to be his property in spite of his letting out the same to a tenant. The legislature in its wisdom did recognise this fact and the Legislature has provided that bona fide requirement of the landlord for his own use will be a legitimate ground under the Act for the eviction of his tenant from any residential premises. This ground is, however, confined to residential premises and is not made available in case of commercial premises. A landlord who lets out commercial premises to a tenant under certain circumstances may need bona fide the premises for his own use under changed condition's on some future date should not in fairness be deprived of his right to recover the commercial premises. Bona fide need of the landlord will stand very much on the same footing in regard to either class of premises, residential or commercial. We, therefore, suggest that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well.
After considering the various questions involved in that case, the Apex Court held that the above quoted observations were made by the Bench keeping in view the hardship caused to the landlords of commercial premises, who could not evict their tenants even on the ground of bona fide requirement for personal use. It was further observed by the Apex Court that 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 that the classification created by the amendment had no reasonable nexus with the object sought to be achieved by the Act. While striking down the amendment, the Apex Court observed as under:
'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.
We allow the appeal, set aside the impugned judgment of the High Court, declare the above said provisions of the amendment as constitutionally invalid and as a consequence restore the original provisions of the Act which were operating before coming into force of the amendment. The net result is that a landlord-under the Act-can seek eviction of a tenant from a non-residential building on the ground that he requires it for his own use. The parties to bear their own costs.'
11. The argument of the learned Counsel for the respondent-Ved Parkash Gupta is that the case in hand is squarely covered by the judgment of the apex Court in the case of Harbilas Rai Bansal (supra).
12. The learned Counsel for the appellants argued that when the Legislature has made amendment, the Court should not enter into arena of Legislation with a view to interpret the provision. He has relied on the case of Gian Devi Anand (supra) and argued that in that case the Apex Court instead of striking down the similar provisions, suggested that the Legislature should consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well. He, therefore, argued that the learned single Judge has gone beyond his jurisdiction in striking down the provisions in the 1973 Act and, hence, the judgment of the learned Single Judge be set aside. He has also cited a case of Narinder Chand Hem Raj and Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Ors., 1971 (2) Supreme Court Cases 747. It was held in that case as under:
'No Court can issue a mandate to a Legislature to enact a particular law. Similarly no Court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact.'
13. He has also cited before us the case of Asif Hameed and Ors. v. State of Jammu and Kashmir and Ors., A.I.R 1989 S.C. 1899. It has been held therein that Courts are not competent to direct either Legislature or Executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of Legislature or Executive.
14. He has also relied the case of Supreme Court Employee's Welfare Association v. Union of India and Anr., (1989) 4 Supreme Court Cases 187 which held that the Court cannot issue a writ directing the Legislature or Subordinate legislating authority to enact a particular law or rule.
15. He has also referred to the case of State of Jammu and Kashmir v. A.R. Zakki and Ors., A.I.R. 1992 S.C. 1546 in which it has been held by the Apex Court that a writ of mandamus cannot be issued to the Legislature to enact a particular legislation. It was also held therein that although, normally, the recommendations made by the High Court for any amendment in the rules should be accepted by the State Government, but, if in any particular case the State Government, for good and weighty reasons, finds it difficult to accept the recommendations of the High Court and the State Government communicates its views to the High Court, the High Court must undoubtedly reconsider the matter. It was further held in that case that the High Court as well as the State Government must approach the question in a detached manner for achieving the true objective of framing rules which would secure appointment of proper persons to Judicial Service of the State for proper and efficient administration of justice. It was also observed therein that it needs hardly to be emphasised that while considering the recommendations of the High Court, the State Government would proceed on the basis that in such matters the opinion of the High Court is entitled to the highest regard.
16. After citing the above rulings, the learned counsel for the appellant argued that it does not fall within the sphere of the High Court to strike down a law made by the Legislature. It can, however, be seen that in the case of Asif Hameed (supra), it is not held that Court has no such power. It will be appropriate to reproduce the exact words of the judgment in that case.
'When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The Court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.'
17. Though, in the case of Gian Devi Anand (supra), the Apex Court has suggested that Legislature may consider the advisability of making the bona fide requirement of the landlord a ground of eviction in respect of commercial premises as well, the Apex Court in the judgment in the case of Harbilas Rai Bansal (supra) struck down the amendment of the 1949 Act made by the 1956 Act, as mentioned above.
18. In the 1949 Act, amendment was made by 1956 Act to restrict the eviction of a tenant on the ground of bona fide personal use to the residential premises only by deleting the provision of the Act applicable to non-residential premises, which was held to the unconstitutional and struck down by the Apex Court. Same provision is now made in 1973 Act which was sought to be struck down and is so struck down by the learned Single Judge. Amendment was struck down by the Apex Court by holding that when there is a classification, the same must satisfy two conditions quoted above. If, when the 1949 Act originally did not differentiate between the residential and non-residential premises and when after the differentiation was made by the amending Act of 1956, the amendment was struck down, there appears to be no reason for not striking down the provision, having same distinction, which has been initially made in the 1973 Act, which was challenged and struck down so far as the 1949 Act is concerned.
19. To look at it from different angle, 1949 Act was applicable to Haryana before its repeal by the 1973 Act. 1949 Act was amended by the 1956 amending Act and the amendment was struck down by the Apex Court. Therefore, the similar provision included in the 1973 Act, can be struck down on the same grounds.
20. Learned Counsel for the appellants argued that Harbilas Rai Bansal's case (supra) of the Apex Court would have no application in the present case on the ground that in the said case the Apex Court was considering the validity of the amending Act of 1956 in view of the original provisions which were already there in the 1949 Act. Since, according to the learned Counsel, in the 1949 Act there was no distinction drawn between a residential building and a non-residential building for the purpose of ejectment on the ground of bona fide necessity, a distinction having been brought about between a residential building and a non-residential building by the 1956 Act for the purpose of ejectment on the ground of bona fide necessity, it was held only under these circumstances by the Apex Court that the amendment was bad in law and unconstitutional. In the present case, according to the learned Counsel for the appellants in the very initial Act of 1973 made by the Haryana Legislature, a distinction has been carved out between a residential and a non-residential building so far as the ground of personal necessity for eviction is concerned. We are unable to agree with the learned Counsel for the appellants. Firstly, in Harbilas Rai Bansal's case (supra), the provisions in the amending Act of 1956 were not struck down on the ground that initially in the 1949 Act there was no distinction between a residential building and a non-residential building for the purpose of eviction on the ground of personal necessity. The amendment of the Act was struck down as violative of Article 14 of the Constitution of India as there was no reasonable classification between a residential and a non-residential building so far as the ground of personal necessity for eviction is concerned.
21. The question then arises is that if by an amendment certain provisions cannot be brought about, which provision is violative of Article 14 of the Constitution of India, can the same provision be provided in an Act initially? According to us, the answer has to be in the negative. If by an amendment a particular provision cannot be brought about, the same principle would apply even to initial legislation. The provision of the 1973 Act which draws a distinction between a residential building and a non-residential building for the purpose of eviction on the ground of personal necessity would be violative of Article 14 of the Constitution of India on the same parity of reasonable as in Harbilas Rai Bansal's case (supra).
22. In view of the above reasons, we do not find any force in the aforesaid arguments advanced by the learned Counsel for the appellants.
23. Alternatively, the learned Counsel for the appellants have argued that under Section 13(3-A) of the 1973 Act, respondent Ved Parkash Gupta could have proceeded to evict the private appellant within a period of one year from the date of his retirement. He chose not to do so and consequently he waived his right granted to him under the said Section. Section 13(3-A) of the 1973 Act, amended by the 1978 Act, reads as under:
'(3-A) 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.'
24. It has been argued that the petitioner did not take advantage of this Section within the time prescribed and hence he had waived his right and, therefore, principle of estoppel would be attracted. We do not agree with this submission; the reason being the petitioner has challenged the classification of treating of a landlord qua residential and non-residential building differently. Section 13(3-A) of the 1973 Act gives additional right to a retired/discharged/defence personnel and the petitioner being a retired defence personnel cannot be precluded from challenging the constitutionality of the differentiation which applied to him as an ordinary person. Learned Counsel for the appellants cited before us the case of Lachoo Mal v. Radhye Shyam, A.I.R. 1971 S.C. 2213. However, the facts of this case are different. In that case, the appellant was a tenant occupying a shop in Mathura. In 1962, the landlord wanted to construct rooms on the upper storey of the shop for his own residence and the construction could be possible only if the tenant in that case vacated the shop for some period. On June 4, 1962, the tenant and the landlord entered into an agreement vide which it was agreed that the shop could be vacated by the tenant on the condition that as soon as the required construction had been completed, he would resume possession of the shop. After the construction had been made and the tenant had resumed his possession of the shop, the tenant offered rent to the landlord but the latter did not accept the same. He deposited the rent in Court under Section 7-C of the UP. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as the UP. Act). The landlord served him a notice apparently under the provisions of the Transfer of Property Act purporting to terminate his tenancy. This was followed by a suit which the landlord filed for ejectment of the tenant and for arrears of rent, damages etc. The Munsif dismissed the suit holding that the tenant was entitled to the protection conferred by Section 3 of the UP. Act. The District Judge on appeal took the contrary view and decreed the suit. The High Court affirmed the judgment of the District Judge and held, inter alia, that the landlord was entitled to rely on Section 1-A of the UP. Act and the tenant could be given the benefit of Section 3 of the said Act. As per Section 1-A of the UP. Act, the provisions of the Act would not apply to any building or part of a building which was under erection or was constructed on or after January 1, 1951. It was held by the Apex Court in that case that if a particular owner did not wish to avail of the benefit of that Section, there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the Section. In the said case, in the agreement between the landlord and tenant, clause (3) was as under:-
'At present a sum of Rs. 18.60 per mensum, which includes house tax and water tax, is being paid by the second party to the first party as rent. After the construction of the shop, the first party shall be entitled to get the same amount as rent from the second party. All the sections of the U.P. Rent Control and Eviction Act shall be fully applicable to this house. The first party shall in no case be entitled to derive benefits from it as the property built after 1.1.1951.
25. The present case does not attract the doctrine of waiver and, therefore, the facts of this case are different from the case of Lachoo Mal (supra). The learned Counsel for the appellants have relied on the case of Krishal Lal v. State of J & K, (1994) 4 Supreme Court Cases 422. In that case the question involved was different. It was a case in which the conduct of the appellant' in that case while serving in the Home Guards at Poonch came to be enquired by Anti-Corruption Commission under the J & K (Government Servants) Prevention of Corruption Act, 1962 (hereinafter referred to as the Act). Section 17(5) of the Act was under consideration. The question was whether the violation of the mandatory provision under Section 17(5) of the Act regarding furnishing of copy of proceedings of the enquiry to the delinquent would render the order of dismissal a nullity would depend upon whether the requirement under Section 17(5) of the Act was one which was for the benefit of the individual concerned or served a public purpose. It was held that in the former case it could be served but in the latter it could not be. The facts of this case are also different.
26. As mentioned earlier by us, even if a landlord does not in his capacity as a retired/discharged defence personnel take steps under Section 13(3-A) of the 1973 Act, that would not debar him to challenge the discrimination under Section 13(3)(a) of the said Act as an ordinary citizen.
27. Coming to the main question, in view of the above discussion, we find that the impugned provision in Section 13(3)(a) of the 1973 Act is violative of Article 14 of the Constitution. No distinction can be drawn between the residential and non-residential building so far as the eviction on the ground of personal necessity is concerned. So far as the ground of personal necessity is concerned, we hold that this case is squarely covered by the judgment in the case of Harbilas Rai Bansal (supra). We find no reason, therefore, to interfere with the judgment of the learned Single Judge.
28. Resultantly, these appeals are dismissed. However, there will be no order as to costs,