Full Judgment Text
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PETITIONER:
BISHAMBER DASS KOHLI (DEAD) BY LRS.
Vs.
RESPONDENT:
SMT. SATYA BHALLA
DATE OF JUDGMENT12/01/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
YOGESHWAR DAYAL (J)
VENKATACHALA N. (J)
CITATION:
1993 SCR (1) 171 1993 SCC (1) 566
JT 1993 (1) 123 1993 SCALE (1)105
ACT:
East Punjab Urban Rent Restriction Act, 1940--Section
13(2)(ii) (b)--Eviction on the ground of change of
user--Whether proper.
East Punjab Urban Rent Restriction Act, 1940--Sections 2(g),
2(h)--"Residential building", "Scheduled
building"--Construction.
HEADNOTE:
The suit premises was let out by the appellant landlord to
the respondent on a monthly rent of Rs. 550 solely for
residential purpose. In a part of the premises, the
respondent’s husband, a lawyer established his office and
started using the same for that purpose.
Teh appellant-landlord riled a petition before the Rent
Controller seeking eviction of the respondent-tenant.
The Rent Controller made an order of eviction of the
respondent tenant on the ground of change of user under
section 13(2) (II) (b), of the East Punjab Urban Rent
Restriction Act, 1940.
The tenant’s appeal was dismissed by the appellate
authority, against which a revision to the High Court was
preferred.
The Single Judge of the High Court allowed the revision and
set aside the eviction order, holding that the building let
out as a ’residential building became a ’scheduled building’
by use of a part thereof as lawyer’s office by the tenants
husband; and therefore, the ground of eviction was not
available.
Hence this appeal by the landlord by special leave,
contending that the ground of change of user contained in
section 13(2) (II) (b) was clearly made out from the facts
and the High Court erred In setting aside the order of
eviction.
172
The respondent-tenant submitted that the landlord waived the
ground of change of user by acquiescence to use of a part of
the premises as lawyer’s office; that the ground in section
13(2)(ii)(b) was not available unless the change of user was
of substantial, if not the entire building and, therefore,
mere use of a small part of the residential building as
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lawyer’s office does not constitute such change.
Allowing the appeal of the landlord, this court,
HELD : 1.01. Use of the building for a purpose other than
that for which it was leased, without the written consent of
the landlord is a ground of eviction. Ile object dearly is
that the parties must remain bound by the terms on which the
building is let out, including the condition relating to Its
use for the purpose for which it was leased. In other
words, breach of the covenant regarding the kind of user of
the building let out is the ground of eviction contained in
section 13(2) (ii) (b) of the East Punjab Urban Rent
Restriction Act. [177A-B]
1.02. If the change in user of the building is of the
kind that it makes the residential building let out for
residential purpose alone change its character and become a
’scheduled building’ as defined in section 2(h) of the Act
without the written consent of the landlord, the ground of
eviction under section 13(2) (ii) (b) is made out. [177C]
1.03. This test is fully satisfied In the present case
and the order of eviction was made by the Rent Controller
and affirmed by the appellate authority on this basis. The
High Court misconstrued the provisions to take the contrary
view. [177D]
Telu Ram v. Om Parkash Garg 1971 RCJ 1, approved.
Sant Ram v. Rajinder Lal and Ors., 1978 (2) RCR 601; Dr.
Sewa Singh v. Smt. Ravinder Kaur and another, [1971] 2 SCC
981, distinguished.
2.01. Even though a ’scheduled building continues to be
a residential building as defined in section 2(g), a
residential building of which even a part is used for a
scheduled purpose, becomes and is called a ’schedule
building when user of the building is significant or the
criterion. [176F]
2.02 Where user of a building is of significance, a
distinction is made In the Act between a residential
building which is not a scheduled building and
173
that which is a scheduled building. This is so in section 4
of the Act dealing with determination of fair rent wherein
fixation of rent is made on the basis of user and for that
purpose a ’scheduled building’ is treated differently from a
residential building which is not a scheduled building.
[176G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5434 of 1985.
From the Judgment and Order dated 11.8.1987 of the Punjab
and Haryana High Court in Civil Revision No. 1048 of 1986,
A.K Gupta for the Appellants.
Vikram Mahajan, Gopi Chand and K.K. Gupta for the
Respondent.
The Judgment of the Court was delivered by
VERMA, J. The suit premises in Chandigarh was let out by the
appellant to the respondent, Smt. Satya Bhalla on 1.11.1974
on a monthly rent of Rs. 550 solely for residential purpose.
However, the respondent’s husband, a lawyer established his
office in a part of the suit premises and started using the
same for that purpose. The appellant-landlord filed a
petition before the Rent Controller in February, 1983
seeking eviction of the respondent-tenant on several grounds
including the ground contained in section 13(2) (ii) (b) of
the East Punjab Urban Rent Restriction Act, 1949 i.e. the
use of the building for a purpose other than that for which
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it was leased. The Rent Controller made an order of
eviction of the respondent-tenant on the ground of change of
user contained in section 13(2)(ii) (b). The tenant’s
appeal was dismissed by the appellate authority which
affirmed the order of eviction made by the Rent Controller.
A further revision to the High Court has been allowed by the
learned single Judge and the order of eviction has been set
aside. The High Court has held that the building let out as
a ’residential building became a ’scheduled building by use
of a part thereof as lawyer’s office by the tenant’s
husband; and therefore, the ground of eviction was not
available. The order of eviction made in the landlord’s
favour was, therefore, set aside. Hence this appeal by the
landlord by special leave.
The learned counsel for the appellant contended that the
ground of change of user contained in section 13(2) (ii) (b)
is clearly made out from the facts and the High Court has
erred in setting aside the order of eviction.
174
In reply Shri V.C. Mahajan, learned counsel for the
respondent-tenant, advanced several arguments. He submitted
that the landlord had waived the ground of change of user by
acquiescence to use of a part of the premises as lawyer’s
office. His next submission is that the ground in section
13(3) (ii) (b) is not available unless the change of user is
of substantial if not the entire building and, therefore,
mere use of a small part of the residential building as
lawyer’s office does not constitute such change, learned
counsel also submitted that this is not a fit case for
interference with the High Court’s order under Article 136
of the Constitution.
Having heard both sides, we are satisfied that this appeal
has to be allowed. The High Court’s interference in
revision with the order of eviction made by the Rent
Controller and affirmed by the appellate authority, was
wholly unjustified.
There is no merit in Shri Mahajan’s argument of waiver or
acquiescence by the landlord. Before the Rent Controller
the tenant had pleaded estoppel against the landlord, which
after due consideration was rightly rejected by the Rent
Controller. That finding of the Rent Controller was not
assailed by the tenant either before the appellate authority
or in the High Court. On merits also, this plea is
untenable since no such conduct of the landlord is shown.
The argument is, therefore, rejected. We also do not find
any substance in the contention that interference under
Article 136 is not warranted, in case it is found that the
High Court set aside the order of eviction on a
misconstruction of the law applicable in the present case.
The only question, therefore, is whether on the proved
facts, no longer in controversy, the ground in section 13(2)
(ii) (b) is made out.
The material provisions in the East Punjab Urban Rent
Restrictions Act, 1949 with reference to which the
contention of Shri Mahajan has to be considered, are the
following
"2. Definitions....................
(a) ’building’ means any building or part of
a building let for any purpose whether being
actually used for that purpose or not,
including any land, godowns, outhouses, or
furniture let therewith but does not include a
room in a hotel, hostel or
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boarding house;
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xxx xxx xxx
(d) ’non-residential building" means a
building being used solely for the purpose of
business or trade:
Provided that residence in a building only for
the purpose of guarding it shall not be deemed
to convert a "non residential’ building’ to a
’residential building":
xxx xxx xxx
(g) ’residential building" means any
building which is not a non-residential
building;
(h) ’scheduled building" means a residential
building which is being used by a person
engaged in one or more of the professions
specified in the Schedule to this act, partly
for his business and partly for his residence;
xxx xxx xxx
13. Eviction of tenant (1) A tenant in
possession of a building or rented land shall
not be evicted therefrom in execution of a
decree passed before or after the commencemen
t
of this Act or otherwise and whether before or
after the termination of the tenancy, except
in accordance with the provisions of this sec-
tion.
(2) A landlord who seeks to evict his tenant
shall apply to the Controller for a direction
in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of
showing cause against the applicant, is
satisfied
(ii) that the tenant has after the
commencement of this Act without the written
consent of the landlord -
(a) transferred his right under the lease or
sublet the entire building or rented land or
any portion thereof; or
176
(b) used the building or rented land for a
purpose other than that for which it was
leased, or
the Controller may make an order directing the
tenant to put the landlord in possession of
the building or rented land and if the
Controller is not so satisfied he shall make
an order rejecting the application:
Provided that the Controller may give ’the
tenant a reasonable time for putting the
landlord in possession of the building or
rented land and may extend such time so as not
to exceed three months in the aggregate."
Shri Mahajan contended that to constitute the ground under
section 13(2) (ii) (b), the change in user should be in
respect of at least a substantial part of the building if
not the entire building. The comparison of sub-clause (b)
with sub-clause (a) shows that the omission of the word
’entire’ before the word ’building’ in sub-clause (b) when
the word ’entire’ has been used before the word ’building’
in sub-clause (a) is deliberate. For this reason, the
change in user of the building required to constitute the
ground under sub-clause (b) need not be of the entire
building, the word ’entire’ being deliberately omitted in
sub-clause (b). Faced with this difficulty, Shri Mahajan
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submitted that the change of user should be of a substantial
part of the building let out even though not of the entire
building. This argument also cannot be accepted in this
context. The definitions in section 2 of the Act show that
even though a ’scheduled building’ continues to be a
residential building as defined in section 2(g), a
residential building of which even a part is used for a
scheduled purpose, becomes and is called a ’scheduled
building’ when user of the building is significant or the
criterion. Thus, where user of a building is of
significance, a distinction is made in the Act between
residential building which is not a scheduled building and
that which is a scheduled building. This is so in section 4
of the Act dealing with determination of fair rent wherein
fixation of rent is made on the basis of user and for that
purpose a ’scheduled building’ is treated differently from a
residential building which is not a scheduled building.
Same is the position with regard to the ground of eviction
contained in section 13(2) (ii) (b) wherein change in user
of the building is alone significant for constituting the
ground.
177
Accordingly, use of the building for a purpose other than
that for which it was leased, without the written consent of
the landlord is a ground of eviction. The object clearly is
that the parties must remain bound by the terms on which the
building is let out, including the condition relating to its
use for the purpose for which it was leased.In other words,
breach of the covenant regarding the kind of user of the
building let out is the ground of eviction contained in
section 13(2) (ii) (b).
It is clear that if the change in user of the building is of
the kind that it makes the residential building let out for
residential purpose alone change its character and become a
’scheduled building’ as defined in section 2(h) of the Act
without the written consent of the landlord, the ground of
eviction under section 13(2) (ii) (b) is made out.
This test is fully satisfied in the present case and the
order of eviction was made by the Rent Controller and
affirmed by the appellate authority on this basis. ’The
High Court misconstrued the provisions to take the contrary
view.
A Division Bench of the Punjab and Haryana High Court in
Telu Ram v. Om Parkash Garg 1971 RCJ 1 while dealing with
section 13(i) (ii) (b) at the Act mentioned one of its
conclusion in para 21 as under
’(b) that if the result of the use of even a
small portion of a building is such that the
category of the premises is changed from
residential, non-residential and scheduled,
and it becomes a category different from the
one for which the same had been let, the
clause would be attracted;"
This is how this provision appears to have been understood
at least eversince than and the people in the State have
arranged their affairs on that basis. Apart from the fact
that this view commends to us as the correct view, the
desirability of continuing the settled view is also a reason
in its favour.
Shri Mahajan referred to the decision of this Court in Sant
Ram v. Rajinder Lal and Ors., 1978(2) RCR 601. That case is
distinguishable. In that decision the purpose of the lease
was not spelt out precisely while letting out a small
premises to a cobbler for his business where he sometimes
stayed overnight after the day’s work while he went to his
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home on
178
holidays. It was on these facts that the tenant staying
overnight in the shop on some working days was not found to
constitute the ground of change of user under section 13(2)
(ii) (b) of the Act. That decision does not assist the
respondent tenant in this case. .
Reference was also made to Dr. Sewa Singh v. Smt. Ravinder
Kaur and another, [1971] ’3 SCC 981. That judgment did not
consider this question as it was not raised. The ground
therein was that the High Court was not justified in taking
the view in revision for the first time that the user of a
part of the premises for a particular purpose was casual.
No doubt, the user of a part of the residential building for
the profession of a medical practitioner was involved and
the definition of ’scheduled building’ in section 2(h) of
the Act was referred, but this point was neither raised nor
considered. The decision in Dr. Sewa Singh cannot be
treated as an authority for the view that change of user of
a part of a residential building let out for use solely as a
residence, for a scheduled purpose without the written
consent of the landlord does not constitute the ground for
eviction under section 13(2) (ii) (b) or that the ground of
eviction based on personal need of the landlord contained in
section 13(3) (i) (a) is not available to the landlord for
that reason. If the logical inference from Dr. Sewa Singh
appears to be that, then, with respect, we are unable to
agree with the same.
As a result of the above discussion, this appeal is allowed
and the impugned order passed by the High Court is set aside
resulting in restoration of the order of eviction made by
the Rent Controller and affirmed by the appellate authority.
The respondent will also pay cost to the appellant.
Counsel’s fee Rs. 3,000.
V.P.R. Appeal allowed.
179