Paripoornan, J. - (1.) In this batch of cases a common question arises for consideration. The petitioners in the different petitions are the legal heirs of "statutory tenants" of residential premises under the Delhi Rent Control Act, 1958, Act 59 of 1958 (hereinafter called 'the Act'). They assail Section 2 sub-section (1), Cl. (iii) of the Act, as introduced by Act 18 of 1976 with retrospective effect as ultra vires and violative of Arts. 14 and 21 of the Constitution of India. The respondents are ( Union of India, The Delhi Administration and the landlords of the respective premises.
(2.) Writ Petition (Civil) No. 1089 of 1987 is the main case. We will state a few facts of this case in order to understand the scope of the controversy raised in this batch of petitions. There are 6 petitioners in the writ petitions. The petitioners' father obtained the rental of the residential premises bearing Municipal No. 1331, First Floor, Baidwana Maliwara, Delhi 6, on a monthly rental of Rs. 40/- some time in the year 1940. The father died on 17-11-1969. Thereafter, the third respondent herein, the owner of the premises filed a suit for possession of the premises against the petitioners and their mother, Suit No. 116/1970. It was alleged that the tenancy was terminated by notice dated 28-7-1969. which expired on 3-9-1969. He claimed that since the statutory tenancy was not heritable, he was entitled to a decree for possession. The suit was decreed by the trial Court on 11-2-1974. It held that the statutory tenancy was not heritable. The appeal filed by the petitioners before the Additional District Judge was futile. The petitioners have filed Second Appeal No. 135 of 1975 in the Delhi High Court and it is still pending. It is the plea of the petitioners that they being the heirs of the statutory tenant are entitled to the protection of the Act. According to the petitioners the provisions of the Act do not make any distinction between the 'contractual tenant' and a 'statutory tenant' and both are treated alike. The rule of heritability extends to statutory tenancy also. The decisions of this Court in Damadilal v. Parashram, (1976) 4 SCC 855, and Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683 , have held that the rule of heritability extends to statutory tenancy, whether it is residential or commercial, and the same rule will apply in other States where there is no explicit provision to the contrary. This was held to be the position in law under Section 2(1) of the Act, even before its amendment of the said provision by the introduction of sub-clause(iii). The new sub-clause (iii) of Section 2(1) is not inconsistent with the earlier position and all that sub-clause (iii) to Section 2(1) has done is to restrict the rights in so far as residential premises are concerned. Since the incidents of a contractual tenancy and a statutory tenancy are the same regarding the heritability, the ( new) provisions of Section 2(1)(iii) of the Act which seeks to limit or abridge the rights of the heirs in so far as the residential premises are concerned are discriminatory and violative of Art. 14 of the Constitution of India. It is contended that Section 2(1)(iii) of the Act, in so far as it limits or restricts the right of the heirs of residential premises in the manner and to the extent provided in the said section is violative of Art. 14 of the Constitution of India. In Writ Petition No. 575 of 1988, the petitioner claims to be the heir of one Sri Chhunnu Lal, a statutory tenant under the Act, in respect of the premises 42-B, Connaught Place, New Delhi under respondent Nos. 1 and 2 who have filed a suit for possession. The suit is pending. The petitioner attacks Section 2(1)(iii) of the Act as ultra vires and discriminatory. In S.L.P. (Civil) No. 16911 of 1991 the petitioner claims to be the heir of one Shri A.K. Roy, a statutory tenant in respect of Flat 3A, Sujan Singh Park, New Delhi along with garage No. 1K and servant quarter No. 25-C/IIIrd Floor. Respondent No. 1 landlord filed Suit No. 603/84 for possession with mesne profits. The trial Court dismissed the suit holding that the tenancy was not validly terminated by a proper notice. The appeal, RCA No. 3/88, filed by landlord was allowed. A further appeal filed by the petitioner before High Court (RSA 42/90), was dismissed on 27-9-1991. Earlier , the petitioner filed a writ petition in the High Court (Civil Writ No. 1406/88) assailing S.2(1) (iii) of the Act as ultra vires which was dismissed on 30-10-1991. Thereafter the present special leave petition was filed by the petitioner objecting to the order passed by the High Court aforesaid.
(3.) We heard Mr. Jain, Senior Counsel who appeared on behalf of the petitioners in Writ Petition (Civil) No. 1089 /87, as also counsel for the respondents therein. The counsel appearing in the other cases also practically adopted the arguments advanced in this writ petition. Mr. Jain contended that the decisions of this Court in Damadilal v. Parashram, (1976) 4 SCC 855 and Gian Devi Anand v. Jeevan Kumar, (1985) 2 SCC 683 , have held that there is no distinction between a statutory tenant and a contractual tenant and both are heritable. This is so even under Section 2(1) of the Act, before its amendment. It has been further held in Gain Devi Anand's case (supra) that the statutory tenancy of a commercial premises (non-residential) is absolutely heritable. While so, the restriction or the limitation regarding the heritability of the 'residential premises' brought in by Section 2(1)(iii) of the Delhi Rent Control Act, 1958 has no rationale and is discriminatory. The statutory tenant of a residential (commercial) premises are similarly placed and the distinction in the heritability of statutory tenancy between residential premises is not based on any reasonable classification and that it has no rational to the object sought to be achieved by the Act and so discriminatory. On the other hand, counsel for the respondents-landlords contended that the legislature has treated commercial tenancy differently from the residential tenancy and they are not similarly placed. It is component to the legislature to lay down the manner and extent of the protection and the rights and obligations of the respective tenants and their heirs. Since the tenancy in respect of residential premises is distinct and different from tenancy in respect of the commercial premises, the limitation or restriction of the rights of the heirs in so far as the residential premises are concerned is a valid and permissible classification and is not open to attack on the ground that it violates Arts. 14 and 21 of the Constitution of India. Counsel for the respondents contended that the reasoning and conclusion of the Constitution Bench of this Court in Gain devil Anand's case (supra) themselves will go to show that the tenancy of the residential premises and commercial premises are distinct and different and there exists a valid reason for limiting or abridging the rights of the heirs regarding residential premises.;