Full Judgment Text
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CASE NO.:
Appeal (civil) 14150 of 1996
PETITIONER:
M. ARUL JOTHI & ANR. .
Vs.
RESPONDENT:
LAJJA BAL (DECEASED) & ANR. ..
DATE OF JUDGMENT: 29/02/2000
BENCH:
N.S.Hegde, A.P.Misra
JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......T..J
MISRA, J.
The question raised in this appeal is the
interpretation of Section 10(2)(ii)(b) of the Tamil Nadu
Buildings (Lease and Rent Control) Act 1960. The question
is whether in terms of the rent agreement between the
appellant (tenant) and the respondent (landlord), if the
tenant uses the shop for a different purpose than the one
specified therein will he be liable for eviction?
The short facts are, a rent agreement was entered into
between respondent no.1 and one Mr. T.S. Arulrayar (the
grandfather of the appellant) under which the disputed shop
was rented out. The relevant portion of the rent agreement
which requires our consideration is reproduced below:-
shall be used by the tenant only for carrying on his
own business dealing in radios, cycles, fans, clocks and
steel furniture and for non-residential purposes and the
tenant shall not carry on any other business than the above
said business.
{Emphasis supplied}
On 12th April, 1979 a legal notice was sent by the
landlady to the said T.S. Arulrayar terminating his tenancy
on two grounds, the wilful default in payment of rent and
using the shop for a purpose other than that for which it
was let out. This was followed by filing of petition before
the rent controller in which it was stated that the tenant
is also doing the business of provisions such as chilies,
dals and other condiments etc., which is other than the one
for which he took the accommodation on rent. The tenant
denied it and asserted, if the rent-deed is read as a whole
it cannot be said that it was for any specified purpose but
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was given broadly for doing business but was not for
residential purpose. Thus, it cannot be termed as a
different user. The rent controller finally decreed the
suit by holding that tenant is also carrying on the business
of provisions, which is other than the one mentioned in the
rent deed which would be a different user, hence ordered for
his eviction. Thereafter the said T.S. Arulrayar filed an
appeal before the Appellate Authority which also confirmed
the aforesaid judgment. Next civil revision was filed
before the High Court. The High Court remanded the case to
the Appellate Authority, relying on M.K.P. Chettiar Vs.
A.P. Pillay, 1970 (2) SCC 290, for recording, whether the
tenant was using substantial portion of the disputed shop
for a different user. After remand the Appellate Authority
once again decreed the eviction suit recording substantial
portion being put to different user. The appellants
grievance is that the said Authority did not record any
finding as to the area actually used by him for a different
purpose. The inference of a different use of substantial
portion was only drawn since appellant could not produce the
accounts books relating to the grocery business. The
challenge was also that the said Authority wrongly placed
burden of proof on the tenant instead on the landlord, hence
filed the revision before the High Court. During pendency
of the same, Mr. T.S. Arulrayar died and the present
appellant and respondent no.2 were brought as his legal
representatives. The High Court also confirmed the findings
recorded by the Appellate Authority. Aggrieved by this the
present appeal is filed.
The thrust of submission by learned senior Counsel for
the appellant is that the shop was given on tenancy for
doing business and even if the appellant changes his
business or undertook another business from dealings in
radios, cycles, fans, clocks and steel furniture to the
grocery business; would still be a business and such a
change would not affect his right to use it as such.
Broadly, tenancies are either for residential or commercial
use. Since the change of business does not change its use
from commercial it would not constitute this to be a ground
for his eviction. To substantiate this, he made reliance on
Section 108 (o) of the Transfer of Property Act, which is
quoted hereunder:-
108 Rights and liabilities of lessor and lessee
.. (o) the lessee may use the
property and its products (if any) as a person of ordinary
prudence would use them if they were his own; but he must
not use, or permit another to use, the property for a
purpose other than that for which it was leased, or fell or
sell timber, pull down or damage buildings belonging to the
lessor, or work mines or quarries not open when the lease
was granted, or commit any other act which is destructive or
permanently injurious thereto;
{Emphasis supplied}
It is submitted that language of this section and that
of Section 10 (2)(ii) (b) are similar. Both expresses that
tenant must not use the property for a purpose other than
that for which it was leased. He also emphasised that the
accompanying words used in the aforesaid quoted portion of
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the rent-deed, namely, that shall be used by the tenant
only .and for non- residential purposes, confirms the
interpretation that the shop is to be used for
non-residential purposes in other words only for business
thus any change of business would have no consequence and
thus would not defeat the tenants right. For ready
reference Section 10(2)(ii)(b) of the Tamil Nadu Buildings
(Lease and Rent Control) Act 1960 is also quoted below:-
10. Eviction of tenants: (1) A tenant shall not
evicted whether in execution of a decree or otherwise except
in accordance with the provisions of this section or
sections 14 to 16:
(2) 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 application, is satisfied
(i)
(ii) that the tenant has after the 23rd October, 1945
without the written consent of the landlord
(a).
(b) used the building for a purpose other than that
for which it was leased, or . {Emphasis supplied}
He relied on, Gurdial Batra Vs. Raj Kumar Jain, 1989
[3] SCR 423. This was a case where the premises (shop) was
let out for repairing business. Later, along with the
repairing business, the sale of T.V. was temporarily
carried on. The Court held that this change of user would
not constitute to be a use for a purpose other than that for
which it was leased. This was a case under Section
13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act,
1949, the provision of which is similar to the present
provision to which we are called upon to interpret. For
this conclusion, the Court relied on an earlier decision of
this Court in Mohan Lal Vs. Jai Bhagwan ,1988 [2] SCC 474,
to which we shall refer hereunder and also observations of
Lord Diplock J. in Duport Steels Ltd. Vs. Sirs, 1980 [1]
ALL ER 529, which is reproduced below:-
While respectfully agreeing with the said
observations of Lord Diplock, that the Parliament Legislates
to remedy and the judiciary interprets them, it has to be
borne in mind that the meaning of the expression must be
found in the felt necessities of the time. In the
background of the purpose of rent legislation and inasmuch
as in the instant case the change of the user would not
cause any mischief or detriment or impairment of the shop in
question and in one sense could be called an allied business
in the expanding concept of departmental stores, in our
opinion, in this case there was no change of user which
attracted the mischief of section 13(2)(ii)(b).
It held:
Letting the premises can broadly be for residential
or commercial purpose. The restriction which is statutorily
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provided in Section 13(2)(ii)(b) of the Act is obviously one
to protect the interests of the landlord and is intended to
restrict the use of landlords premises taken by the tenant
under lease. It is akin to the provision contained in
Section 108(o) of the Transfer of Property Act dealing with
the obligations of a lessee. A house let for residential
purpose would not be available for being used as a shop even
without structural alteration. The concept of injury to the
premises which forms the foundation of clause (o) is the
main basis for providing clause (b) in Section 13(2)(ii) of
the Act as a ground for the tenants eviction.
We find in Gurdial Batras case (supra) there is
absence of any words in the rent deed which restricts or
limits of doing or not doing any business except the one
stated in the rent deed. Thus, on these facts the court
held that the letting could only be either for residential
or commercial purpose. This distinguished feature is
revealed by what the Court also records:
The landlord has accepted the position that in the
rent note it was not written that the respondent would not
do any business in the shop in dispute except the cycle or
rickshaw repairs. On these facts it has now to be decided
as to whether the premises has been used for a purpose other
than that for which it had been leased.
{Emphasis supplied}
The next reliance was placed on Mohan Lal Vs. Jai
Bhagwan, 1988 [3] SCR 345. As per clause 4 of the rent
note, the tenant was to run the business of English Liquor
Vend, and do sale of liquor in the shop. The landlord
filed the eviction suit on the change of user by the tenant
from liquor business to that of general merchandise. In
this case the Court held:
While respectfully agreeing with the said
observations of Lord Diplock, that the Parliament Legislates
to remedy and the judiciary interprets them, it has to be
borne in mind that the meaning of the expression must be
found in the felt necessities of the time. In the
background of the purpose of rent legislation and inasmuch
as in the instant case the change of the user would not
cause any mischief or detriment or impairment of the shop in
question and in one sense could be called an allied business
in the expanding concept of departmental stores, in our
opinion, in this case there was no change of user which
attracted the mischief of section 13(2)(ii)(b) of the Act.
The High Court, therefore, was in error.
This Court held, in expanding concept of departmental
stores the other business would only be allied business.
But again we find this case is again as in the Gurdial Batra
(supra), there were no restrictive words. However, this
case also significantly records the following:-
According to the appellant the purpose of the user
still remains commercial and that in the rent note there was
no clause prohibiting the appellant to change any other
business in the shop in dispute.
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{Emphasis supplied}
Next reliance is on State of Karnataka Vs.
Ayyanahalli Bakappa and Sons, 1988 [3] SCC 587. This is a
case where initially shop was given for running a grocery
shop but later it was changed to running a book shop. This
decision neither records facts nor any reason.
Next reliance is on Mehta General and Provisions
Stores and Ors. Vs. Prem Wati (Smt.) (Dead) Through LRs.,
1995 Supp [1] SCC 319. Here the change was from general
provision store to the textile. Again here also neither
reasons nor facts are recorded. In the aforesaid last two
cases it cannot be said whether there was any prohibition
clause in the rent deed of the use of the building.
On the other hand, learned counsel for the respondent
relied on Ram Gopal Vs. Jai Narain and Ors., 1995 Supp [4]
SCC 648. This is a case where the shop was given for
business but later tenant installed an Atta Chakki and Oil
Kohlu. This case could not be of any help to the
respondents as here the change was, as held, from business
to manufacture. Having heard learned counsels for the
parties in our considered view the case cited on behalf of
the appellants were all those where there was no specific
clause restricting the use of the tenanted accommodation.
On the other hand, in the case in hand, there is specific
prohibition clause in the rent deed. In the present case
there is specific clause which states shall be used by the
tenant only for carrying on his own businessand the tenant
shall not carry on any other business than the above said
business. By the use of the words only with reference to
the tenant doing business coupled with the last three lines,
namely, the tenant shall not carry on any other business
than the above said business, clearly spells out the intend
of the parties which restricts the user of the tenanted
premises, only for the business which is stated therein and
no other. In order to meet this, learned counsel for the
appellant referred to section 108(o) of the Transfer of
Property Act and language of Section 10(2)(ii)(b) which are
similar hence he submits interpretation has to be given in a
broader perspective, that is the use of building by the
tenant should not be such as to damage it or diminishes its
value and restriction if any could be that if it was given
for business it should not be used for residential purpose
and vice versa. We have no hesitation to reject this. If
such an interpretation is given, it would make any specific
term of a valid agreement redundant. Once parties enter
into a contract then every word stated therein has to be
given its due meaning which reveals the rights and
obligations between the parties. No part of the agreement
or words used therein could be said to be redundant. Such
restriction could only be if any statute or provisions of
the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
specifies, which is none. Nor we find any restriction by
Section 108 of the Transfer of Property Act. In fact,
Section 108 of the Transfer of Property Act starts with the
words in the absence of a contract or local usage to the
contrary. In other words, it permits contract to the
contrary mentioned under that Section.
So, we come to the conclusion that use of the words in
the rent-deed not to use it for any other purpose, it has
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to be given effect to and hence Section 10(2)(ii)(b) has to
be interpreted to mean that use of building shall not be for
a purpose other than that for which the shop was given.
There is specific clause restricting its user thus it has to
be used for the purpose given and no other.
The last submission by learned counsel for the
appellant is unless there is specific finding that tenant
has used substantial portion of the building it could not be
said that there is change of user in view of M.K.P.
Chettiar Vs. A.P. Pillay 1970 (2) SCC 290 (Supra), and it
is for this the case was remanded, and the finding of
substantial portion having used is not sustainable as
details of that not recorded hence eviction decree is not
sustainable. On the other hand, learned counsel for the
respondents relied on the statement made by the appellants
father (Mr. T.S. Arulrayar) who was the original lessee,
which reveals that substantial portion of the shop was used
for the changed business. The said statement is quoted
hereunder:
I am running the radio shop in area measuring East to
West 9 feet and North to South 9 and ½ feet. The provision
store is being run in area measuring East to West 7 feet and
North to South 9 and ½ feet.
The submission is, this itself shows substantial
portion of the shop is being used for other business. In
view of this statement and the finding recorded by authority
below that substantial portion of the shop is being used by
the tenant for the changed business we do not feel it proper
to interfere with it.
However, we find in Bishamber Dass Kohli (Dead) By
Lrs. Vs. Satya Bhalla (Smt.), 1993 [1] SCC 566 where this
question was raised that change of business was not in the
substantial part of the building. The Court held:
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
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 schedule 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 the building is of
significance, a distinction is made in the Act between a
residential building which is not a scheduled building and
that which is a scheduled building. This is so in Section 4
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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. {Emphasis supplied}
This is a decision by three Honble Judges of this
Court. This completely dissolves the submission for the
appellant. Learned counsel for the appellant attempts to
distinguish this decision that this was a case under Section
2(h) of the East Punjab Urban Rent Restriction Act, 1949.
It defines scheduled building as one being used partly for
business and partly for residence. So even if part is used
for residence it continues to be scheduled building. This
distinction would not distract the law laid down therein
which is evid ent from the last line of the aforesaid quoted
lines which holds, Same is the position with regard to the
ground of eviction contained in Section 10(2)(ii)(b) wherein
change in user of the building is alone significant for
constituting the ground. In view of what we have concluded
and the said decision which squarely apply, we have no
hesitation to hold that courts below have rightly decreed
the suit for eviction as against the appellant and change of
user of the business by the appellants from radios, cycles,
fans, clocks and steel furniture to grocery business is in
contradiction to the specific term of the agreement. Thus
such tenant would be covered by Section 10(2)(ii)(b). Hence
the appellant is liable for eviction which the courts below
have rightly decreed. This appeal accordingly fails and is
dismissed. Costs on the parties.