Full Judgment Text
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CASE NO.:
Appeal (civil) 2227 of 2000
PETITIONER:
M/s Precision Steel & Engg. Works & Anr.
RESPONDENT:
Prem Deva Niranjan Deva Tayal
DATE OF JUDGMENT: 09/12/2002
BENCH:
R.C. LAHOTI & BRIJESH KUMAR.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Proceedings for eviction of the appellants-tenants, were
initiated by the respondent-landlord on the ground available under
clause (e) of sub-section (1) of Section 14 of the Delhi Rent Control
Act, 1958 (hereinafter ’the Act’, for short). The High Court has, in
exercise of its revisional jurisdiction, passed an order for recovery of
possession of the tenancy premises. The tenants are in appeal by
special leave.
The tenancy premises are situated at B-44, Greater Kailash, Part
I, New Delhi. Out of the building standing over 1000 sq.yards plot
the appellants are in occupation of the front portion of the ground-
floor since 1971. Premises comprise of four bed-rooms, 3 bathrooms,
1 barsati, 1 garage and the servant quarters along with one bathroom
for servants. At this stage, it is no more in controversy that the
respondent is owner-cum-landlord of the premises and the appellants
are the tenants. The terms of tenancy are incorporated in a document
dated 13th September, 1971 called Licence Deed. The Rent Controller
and the High Court have both recorded findings of fact that the suit
premises are required bona fide by the respondent-landlord for
occupation as a residence for himself and the members of his family
and for satisfying such requirement the respondent does not possess
any other suitable accommodation. The controversy centers around
determination of the purpose for which the premises have been let,
and, depending on the answer, whether the applicability of Section
14(1)(e) of the Act is attracted. In the opinion of the Rent Controller
___ it is not; in the opinion of the High Court ___ it is.
Clauses 6,7,12 and 16 of the Licence Deed, which were referred
to by the learned counsel for the parties during the course of hearing,
are extracted and reproduced hereunder:-
"6. The Licensees shall use the said premises
for the residence of their Directors, partners
and officers. The Licensees will, however,
be free to use the said premises in part or in
full also for office purpose provided the
rules of the local authorities so permit and in
such an event the Licensees shall pay to the
owners any increase in local taxes, etc.
occasioned by such change of use of the said
premises from residential to office.
7. The Licensees shall not permit the said
premises or any part thereof being used by
any other person for any purpose whatsoever
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without the previous consent in writing of
the owners and in default thereof the
Licence shall be liable for cancellation. The
Licensees shall not transfer possession of the
premises or part thereof or otherwise carry
on the business in the premises with any
other person or assign, transfer, change or
otherwise alienate their interest in the
premises.
12. The Licensees shall comply at all times with
all the rules and regulations of the local
authorities whatsoever in relation to the said
premises.
16. The Licensees agree and understand that the
said premises shall not be used for any
illegal or immoral purpose, for gambling or
for sale of alcoholic beverages and the
owners shall have full right to cancel the
Licence by giving one month’s notice in
case the said premises are used for any of
these purposes and to claim in full the
balance of the Licence-fees for the
unexpired part of the Licence period and in
addition to claim damages/for less of good
reputation of the premises and the owners
and also expenses sustained in the removal
of the Licensees’ establishment from the
said premises."
A few other relevant undisputed facts may also be noticed. The
master plan and the zonal plan of the locality where the suit premises
are situated have earmarked the area as residential. No activity other
than residential is permissible thereat. This is so by virtue of the
provisions contained in Delhi Development Act, 1957 and Delhi
Municipal Corporation Act, 1957, the relevant provisions whereof
will be referred to where needed. It appears that on 18.3.1982, a
junior engineer of Delhi Development Authority (’DDA’, for short)
inspected the premises occupied by the appellants and found that a
front room on the ground floor was being used for running an office
of the appellant-company. The company, which is the tenant, and its
director and constituted attorney, the appellant no.2 were prosecuted
for having committed an offence punishable under Section 14 read
with Section 29(2) of DDA Act for the residential building falling in
development zone F-II which can be used only for residential
purposes according to master plan, was being used for running an
office therein. The Metropolitan Magistrate found such misuser
having been proved. The defence taken by the appellants was that
only one room of the tenancy premises was used for his office by
appellant no.2 as he being a director of many companies the personnel
thereof were coming to him for consultancy work which was
transacted in the one room office. The appellants were convicted and
directed to pay a fine of Rs.3000/- each.
On behalf of the appellants one Rajbir Pal, Lower Division
Clerk of Municipal Corporation of Delhi was examined as RW2, who
stated that Greater Kailash-I was a freehold area where it was
permissible, so far as MCD is concerned, to use the property for
residential as well as commercial purposes. He further deposed that
so far as the premises in occupation of the appellants are concerned,
misuser charges were levied and recovered from the appellants for the
period 1.4.1989 to 31.3.1991. Such misuser charges are recovered
when residential premises are subjected to commercial use. In the
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records relating to this property, made available by the witness in the
court, there was no letter from the landlord allowing commercial user
of the suit premises by the tenants though a letter dated 1.3.1990 from
the appellants requesting for permitting commercial user of the suit
premises was available in the records.
Mr. B. Dutta, the learned senior counsel for the appellants
placed forceful reliance on clause 6 of the Licence Deed and
submitted that the premises have been let out not only for the
residence of directors, partners and officers of the tenant-company but
the tenants have been permitted freely to use the tenancy premises in
part or in full also for office purposes which shows that so far as the
parties to the tenancy agreement are concerned the purpose of letting
is mixed, i.e., residential and non-residential both. The submission of
Mr. M.L. Verma, the learned senior counsel for the landlord-
respondent, has been that the principal purpose of letting is residential
only though incidentally user for office purposes has been allowed,
eclipsed by the condition that such user does not invite the wrath of
the rules of the local authorities. Inasmuch as the laws governing the
local authorities and as applicable to the suit premises do not permit
user of the premises for any purpose other than residential, the
purpose of letting, on a fair construction of clause 6 of the Licence
Deed would remain residential only and this inference stands
reinforced by a reading of Clauses 7,12 and 16 of the Licence Deed.
Having heard the learned counsel for the parties at length we are
satisfied that the predominant and main purpose, for which the suit
premises have been let is residential and therefore proceedings for
eviction under Section 14(1)(e) of the Act have been rightly held by
the High Court to be maintainable.
Section 14 of the Act protects tenants from eviction. An order
for the recovery of possession of the tenancy premises can be made by
the Rent Controller on one or more of the specified grounds. One of
the grounds provided by clause (e), relevant for our purpose, is
under:-
"(e) that the premises let for residential purposes
are required bona fide by the landlord for
occupation as a residence for himself or for
any member of his family dependent on him,
if he is the owner thereof, or for any person
for whose benefit the premises are held and
that the landlord or such person has no other
reasonably suitable residential
accommodation;
Explanation.- For the purpose of this
clause, "premises let for residential
purposes" include any premises which
having been let for use as a residence are,
without the consent of the landlord, used
incidentally for commercial or other
purposes;"
It is not permissible under the scheme of the Act to file an
application seeking an order for the recovery of the premises let for
non-residential purposes on the ground of bona fide requirement.
Letting out for composite or mixed purposes and whether the premises
let for such composite or mixed purposes can be got vacated on the
ground of bona fide requirement is not specifically provided by the
Act.
In our opinion the expression ’the premises let for residential
purposes’ should be construed liberally and not technically or
narrowly; meaning thereby, where the premises are solely let for
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residential purposes they are undoubtedly covered by Section 14(1)(e)
but even when the premises are let out for composite or mixed
purposes if the predominant or main purpose of letting is for
residential purposes, the same would be included within the
expression ’the premises let for residential purposes’. An incidental, a
secondary or unauthorized user of the premises for purposes other
than residence would not take the premises out of the meaning of the
expression ’the premises let for residential purposes’.
Premises are capable of being classified into residential and
non-residential depending on the purpose of letting. This is the broad
classification. Question of construction and determining the purpose
of letting may pose difficulty when the premises are let for mixed,
composite or dual purposes, i.e., where the entire premises are
allowed to be used for an overlapping purpose or the premises
forming subject-matter of one tenancy are allowed to be used for
purposes more than one. In such a case it cannot be said that the
premises would cease to be of either category, i.e., they would be
neither residential nor non-residential. Rather it would be necessary
to find out what is the "main and dominant purpose" of letting as
distinguished from "subsidiary, ancillary or incidental purpose". The
theory of determining the purpose of letting by reference to finding
out the main and dominant purpose of letting has ample judicial
authority to derive support from. In Dr. Sewa Singh Vs. Smt.
Revinder Kaur and Anr. 1970 RCJ 615 SC it was held that
residential building will remain so even if it is used by a person
engaged in one or more of the professions partly for his business or
partly for his residence. The building in the occupation of the tenant
was undoubtedly residential and on the evidence it was found that part
of it was being used by the tenant, a medical practitioner for
examining patients and prescribing medicines. In Allenbury
Engineers Pvt. Ltd. Vs. Shri Ram Krishna Kalmia and Ors. (1973) 1
SCC 7, to determine whether the tenancy was for manufacturing
purpose within the meaning of Section 106 of the Transfer of Property
Act, 1882 the Constitution Bench applied the test of ’main and
dominant purpose’ as distinguished from ’incidental purpose’. The
dominant purpose of lease was for storage and resale of the vehicles.
Some spare parts were manufactured and used in the vehicles as
incidental to the main purpose of disposal of the vehicles as without
repairing or reconditioning the vehicles the disposal could hardly have
been possible. It was held that the dominant purpose of the lease as
manufacturing purpose was not established. In Sant Ram Vs.
Rajinder Lal and Ors. (1979) 2 SCC 274, a cobbler carried on
cobbler’s business in the shop. Incidentally he slept in the back
portion of the shop at night while he worked during the days. On the
off days he would go home at night. It was held that the purpose of
letting remained exclusively commercial as the user of back portion
for sleeping in the night was not incompatible with day’s user.
In Smt. Nai Bahu Vs. Lala Ramnarayan and Ors. (1978) 1
SCC 58, this Court has held that a non-residential accommodation can
be allowed to be vacated by an order for eviction if the same was
genuinely required not only for non-residential use but also a portion
of it bona fide for personal residence. It clearly follows that user of a
portion for personal residence would not alter the essential and basic
or dominant user for non-residential purposes. Hiralal Kapur Vs.
Prabha Choudhury (1988) 2 SCC 172, is a reverse case on facts but
deals with Section 14(1)(e) of Delhi Rent Control Act, 1958. The
premises were residential in nature and let out for residential
purposes. The landlord, a lawyer, applied for recovery of possession
of his residential premises pleading bona fide requirement for his
residential purposes. It was held that merely because the lawyer-
landlord intended to use a portion of the premises for purposes of his
office, library or study, the same would not detract from his
requirement being for residential purposes. It would be different
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when the entire premises sought to be got vacated are needed solely
for use as office and library in which case the requirement would
cease to be residential merely. This decision clearly spells out that
incidental, secondary or partial user of the premises for office
purposes along with use as residence of the premises does not alter the
main or predominant purpose of user of the premises and the same
continues to be residential.
In Lakshman Santu Sintre Vs. Balkrishna Keshav Shetye,
AIR 1925 Bombay 398, Chief Justice Macleod, speaking for the
Division Bench opined that the fact that a man carries on business or
works in the same premises, which he uses for dwelling in, cannot
thereby prevent those premises coming within the category of
premises used as a dwelling house.
In Waller & Son, Ltd. Vs. Thomas, 1921 (1) KB 541, the
question arose __ what is a dwelling house? The Bench applied the
test __ What is the dominant purpose and principal user of the
premises? The Bench opined that answer would determine the
purpose of tenancy and user of premises. The dominant purpose and
object may be to carry the business of a licensee and the provision of
accommodation for the occupants may be a mere adjunct of the
business. Then the premises do not cease to be ’business premises’
because dwelling accommodation necessary for the purpose of the
business is attached. On the other hand a dwelling house would not
cease to be so by reason only that part of the premises is used as a
shop or office or for business, trade or professional purposes.
In Feyereisel Vs. Parry & Ors., 1952 (1) All E.R. 728, the
premises let by a landlord to a tenant were a camping site and a
bungalow thereon. The tenant occupied the bungalow and carried on
the business of a camping site proprietor. It was held that the camping
site was the main object of the letting and the bungalow was a mere
adjunct to the business carried on by the tenant and therefore it was
held that the dwelling house went along with the camping site. The
test of principal and dominant object of letting and user of the
premises was reiterated. The question formulated was __ "Is one thing
the adjunct of the other, or the other of the one?"
Incidentally, we may refer to a Full Bench decision of Madras
High Court in T. Dakshinamoorthy Vs. Thulja Bai & Anr. AIR 1952
Madras 413. The Full Bench held the English test being applicable in
India too, as sound and reasonable, and approved the test of dominant
purpose and principal user being applied for determining the purpose
of letting though the Bench observed that such test was not always of
easy application and the difficulty in the actual application of the test
was capable of being taken care of by a margin of judicial discretion
in the matter of the determination of the question of the character of
the building as a question of fact has necessarily to be allowed for. To
quote, the Full Bench held, "Instances of transactions inspired by
mixed motives and intents in which the question of the main, real and
dominant motive and intent has to be canvassed for validating or
invalidating them are not uncommon in other branches of law. There
can in our judgment be no reason or principle why a canvass of the
main, real and dominant purpose should be regarded as not legitimate
in this branch of law in cases where the letting is actuated by mixed
purposes."
In our opinion, for the purpose of Section 14(1)(e) of the Act,
so long as the principal and dominant purpose of letting is residential
merely because a mixed user of the premises or user of a part or
incidental or ancillary user of the premises is permitted for activities
other than residential, the purpose of letting the premises would not
cease to be residential and the premises would continue to be
governed by Section 14(1)(e) of the Act.
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It is not the case of the appellants that any business activity is
being carried out in the suit premises or was permitted to be carried on
or was included within the purposes of letting. Once the terms of
tenancy have been reduced into writing the purpose of tenancy has to
be determined by reading the relevant clauses of the deed and
extrinsic evidence making a departure from the terms of deed may
not be admissible. In case of doubt or vagueness resort can be had to
other factors such as constructional features of the premises, their
location, the amenities available, the conveniences provided, the
number of rooms and the actual user to which the premises have been
subjected. The opening and governing part of Clause 6 is couched in
a mandatory form ’the licensee shall use the premises for the
residence of the directors, partners and officers’. In the succeeding
sentence the use of word ’however’ is suggestive of the fact that
incidental user of the tenancy premises for the office purpose also was
permitted by the landlord. Such incidental user is permissive and not
purposive. And that too has been made dependent on the
permissibility determinable by reference to the laws governing the
local authority. It is not disputed that the provisions of Delhi
Development Act, 1957 and the Delhi Municipal Corporation Act,
1957 do apply to the locality where the tenancy premises are situated.
Section 14 of DDA Act provides that after the coming into
operation of any of the plans in a zone, no person shall use or permit
to be used any land or building in that zone otherwise than in
conformity of such plan. The inhibition contained in Section 14
applies in full force inasmuch as the master plan and the zonal plan
provide for Greater Kailash Part I being residential locality only. That
is why the user of one room as an office was held liable to be
penalized under Section 29 of the Act. Section 347 of the DMC Act
imposes restrictions on uses of buildings within Delhi Municipal
Corporation area. No person shall, without the written permission of
the Commissioner or otherwise than in conformity with the
conditions, if any, of such permission, change or allow the change of
use of any land or building. Section 430 provides for the manner in
which a written permission may be granted. It has to be in writing
and signed by the Commissioner or by the officer empowered in this
behalf. It should satisfy other requirements of Section 430. A perusal
of the statement of Rajbir Pal, RW2 does not spell out any written
permission by the Commissioner or an empowered officer having
been allowed in accordance with Section 347 read with Section 430 of
the DMC Act so far as the suit premises are concerned. Construing the
statement of Rajbir Pal as much in favour of the appellants as
possible, all that can be said is that the premises were found to have
been misused and the misuser was condoned for the period 1.4.1989
to 31.3.1991 by levying misuse charges. The appellants did send a
letter dated 1.3.1990 to the Corporation authorities requesting for
permitting commercial user of the suit premises. However the exact
nature of prayer is not known as the contents of the letter were not
brought on record. Certainly, Rajbir Pal does not depose to any such
permission having been granted by the Commissioner to the
appellants.
Clause 7 of the Deed prohibits user of the premises for business
purposes. Clause 12 obliges the occupants to comply with the laws
governing the locality and as applicable to the local authorities.
Clause 16 restrains use for any illegal purpose, i.e., a purpose not
permitted by law. These clauses obviously attract applicability of
Sections 14 and 29 of the DDA Act as also Section 347 of the DMC
Act.
The upshot of the above discussion is that the primary and
dominant purpose of letting the suit premises is residential.
Commercial activity therein is not permitted. Incidental user for
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office purpose is permitted subject to the condition of such user being
permissible under the municipal laws which it is not. In any case such
user being incidental or ancillary, the same would not detract from the
primary or dominant purpose of letting. The suit premises have been
rightly held by the High Court to be ’the premises let for residential
purposes’ within the meaning of Section 14 (1)(e) of the Act.
The decision in Kamla Marwah Vs. M/s. Kapur Fabrics, 48
(1992) DLT 636, was forcefully relied on by learned senior counsel
for the appellants. It is a single Bench decision of the High Court of
Delhi. Having gone through the decision, we find it a case of a
peculiar nature proceeding on its own facts and clearly distinguishable
so far as the present case is concerned. Section 14(1)(e) of the Act did
not come up for the consideration of the Court. The eviction was
sought for under Section 14(1)(k) of the Act. The lessee was obliged
by clause (9) of the lease deed to use the premises for his residence
only. However, it was found that in brazen disregard of the relevant
clause of the lease deed the tenant indulged into misuser of the
premises deviating from the permitted user of the residence only and
in spite of the protest by the landlord. As the lease deed by clause (18)
incorporated permission from the landlord to the tenant to utilize the
premises, in case he so wanted, wholly or partially, for office purposes
but subject to getting permission from the Government, it was held
that so long as the tenant secured condonation of misuser from the
Land and Development Office on payment of charges or penalty, the
eviction order could be held in abeyance. However, still if the
misuser was not condoned by the L&DO office the tenant must stop
the misuser finally and suffer an eviction order in the event of
defiance. Clearly, the High Court was not determining whether the
purpose of letting was residential within the meaning of Section
14(1)(e) of the Act; all that the High Court considered was whether
the user or dealing with the premises by the tenant was contrary to any
condition imposed on the landlord by the Government or local
authority within the meaning of Section 14(1)(k) of the Act.
The learned senior counsel for the appellants referred to the
explanation appended to Section 14(1)(e) and submitted that the
Legislature in its wisdom thought fit to enact that premises let for
residential purposes if used incidentally for commercial or other
purposes by the tenant but without the consent of the landlord would
not alter the purpose and the enactment of the explanation is
suggestive of legislative intent that even incidental user for
commercial or other purposes if accompanied by the consent of the
landlord would take the premises out of the expression ’premises let
for residential purposes’. We cannot agree. The enactment of
explanation is ex abundanti cautela. All that the explanation say is
that the tenant cannot by his unilateral act of impermissible user, alter
the purpose of letting. This explanation has nothing to do with
determining the main, principal or dominant purpose of letting the
theory which in our opinion applies to interpreting the expression "the
premises let for residential purposes" in Section 14(1)(e) of the Act.
The appeal is dismissed with costs. The appellants are allowed
four months’ time from today for vacating the suit premises subject to
filing the usual undertaking within a period of three weeks from
today.