M/S. Atul
Castings Ltd. Vs. Bawa Gurvachan Singh [2001] Insc 238 (20 April 2001)
D.P.
Mohapatra & Shivaraj V. Patil Shivaraj V. Patil J.
Leave
granted.
L.I.T.J
The
issue that has come up for consideration and decision in this appeal is whether
use of one room to attend some office files at home in a building leased for
residential purpose, renders a tenant liable for his eviction from the building
under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949.
This
appeal is filed by the tenant who has suffered an order of eviction under
Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949 (for
short the `Act). The respondent herein, the landlord, filed a petition for eviction
of the appellant from the premises on the ground of non-payment of arrears of
rent and using the premises for the purpose other than residence stating that
the change of user had been effected without written consent of /the landlord.
However, during the pendency of the proceedings, the landlord did not press the
eviction petition on the ground of non-payment of arrears of rent.
The
Rent Controller ordered eviction of the appellant from the premises accepting
that he was using a part of the premises as office contrary to the purpose
stated in the lease-agreement. The appellant filed the appeal before the
appellate authority challenging the order of the Rent Controller. The appellate
authority dismissed the appeal agreeing with the Rent Controller. The appellant
approached the High Court by filing a revision petition questioning the
validity and correctness of the order of the appellate authority confirming the
order of eviction passed by the Rent Controller. The High Court by impugned
judgment and order upheld the order of eviction by dismissing the revision.
Hence the appellant has filed this appeal.
Dr.
A.M. Singhvi, learned Senior Counsel appearing for the appellant, urged that
the order of eviction passed against the appellant is patently unsustainable
both on facts as well as in law; merely because in a six bed room house, in one
of the rooms, certain office files brought home were disposed of; a table and a
chair was put in the room for that purpose where even the children and members
of the family used that room for study, did not change the classification or
character of the premises from residential to non-residential; the
interpretation placed on Section 13(2)(ii)(b) of the Act by the authorities and
the High Court was too narrow and restricted, running contrary to the very
object and purpose of the provision.
Shri Gopal
Subramanium, learned Senior Counsel appearing for the respondent, made
submissions supporting the order of eviction passed against the appellant. He
contended that the concurrent findings of facts recorded by all the courts
below do not call for any interference at the hands of this Court in exercise
of jurisdiction under Article 136 of the Constitution. He emphasized on the
terms of the agreement in particular inviting our attention to the words that
the premises was to be used for the purpose of residence only;
since
one room was used as office, Section 13(2)(ii)(b) was attracted for eviction of
the appellant.
We
have considered these submissions of the learned counsel for the parties. It
will be useful to notice a few provisions of the Act which will have bearing in
deciding the issue that has arisen for our consideration.
Section
2. Definition - In this Act, unless there is anything repugnant in the subject
or context :- a)....................
b)....................
c)....................
d)
Non-residential building means –
i. a
building being used solely for the purpose of business or trade;
ii. a
building let under a single tenancy for use for the purpose of business or trade
and also for the purpose of residence.
Explanation
- For the purpose of this clause, 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-in Chd.]
e)
.................
f)
.................
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 I to this
Act, partly for his business and partly for his residence.
Section
13. Eviction of tenants –
(1)
.....................
(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 application, is satisfied:
i)
.................
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
b) used
the building or rented land for a purpose other than that for which it was
leased, or
iii)
that the tenant has committed such acts as are likely to impair materially the
value or utility of the building or rented land, or Since finding is recorded
as to the change of user of the building on the so called admission of the
appellant in the written statements, it is necessary to notice the relevant
pleadings. Para 6 of the original eviction petition
reads :- That the premises has been let out for residential purposes only. That
the respondent has started using the premises recently for purposes other than
residence.
The
reply to the said paragraph in the written statement is that:
That
the contents of para 6 are admitted that the premises was let out for the
purposes of residence but a part of the premises is being used for office
purposes also as provided in the agreements. It is denied that the respondent has
started using the premises for purposes other than residence. It is submitted
that Sh. R. K. Aggarwal, the Managing Director of the company is living in the
demised premises with his family from the inception of the tenancy and is still
living there.
(emphasis
supplied) Para 6 of the plaint was amended and
after the amendment it reads:- That the premises has been let out for
residential purposes only. That the respondent has started using the premises
recently for purposes other than residence. It is further submitted that change
of user has been effected by the respondent without any written consent of the
petitioner and after the commencement of the Act.
Amended
written statement in relation to the same is to the following effect:- That the
contents of para no. 6 are wrong and hence denied. The respondent is not using
any part of the building for the purpose of the office and has never used it as
such. As a matter of fact, in one room, the respondent has kept office table
and office equipment where he brings office work for its disposal. It cannot be
termed as an office because no client comes there to the respondent.
During
the time the M.D. of the respondent company is away to his factory or office,
the said office room is used as study room by his family members. The entire
demised premises has been used continuously for the purpose of residence only
and for no other purpose.
(emphasis
supplied) The respondent in para 6 of the plaint, both original as well as
amended, did not give particulars as to the change of use of the premises
including from what period there was change in the use of the premises. As is
evident from para 6 of the written statement both before and after the
amendment the appellant specifically denied that he had started using the premises
for the purposes other than the residence. It is explained that the Managing
Director of the company was living in the demised premises with his family
members; in one room an office table and office equipments were kept for
disposal of office work at home;
the
same room was being used as study room of his family members and that the
premises has been continuously used for the purpose of residence only and for
no other purpose. We fail to understand as to how it can be said or understood
that the appellant had admitted the case of the respondent in regard to the
change of user of the building for the purpose other than that was leased. To
get an order of eviction under Section 13(2)(ii)(b) of the Act a landlord has
to plead and establish by proper evidence that the tenant has been using the
building for a purpose other than that for which it was leased. It is yet a
different issue as to whether use of one room in big building by the appellant
for disposal of office files or for study of family members can be said to a
change in use of the building for a purpose other than the residential.
In
support of the eviction petition, the respondent has deposed that he let out
the premises on 1.5.1988 through Exbt. P/1 and he never allowed the change of
user of the premises from residential to non-residential and that the change of
user came to his knowledge in the year 1990; he had not mentioned in his
petition that any specific portion of the building was being used as office; he
did not see any person working in the office but while he was standing outside
the building, he saw some visitors; he admitted that the appellant used to have
a regular office in SCO NO.42, Sector 7-C, Chandigarh. The said office was closed somewhere in the year 1996. It may be
noticed that the building was taken on lease by the appellant-company for the
residence of its Managing Director; the address of the office of the appellant-
company was given as SCO No. 42, Second Floor, Sector 7-C, Madhya Marg, Chandigarh in the eviction petition itself
filed before the Rent Controller.
It
appears the appellant was served with the notice of the proceedings on the same
address. The statement of the respondent that the appellant was using one room
in the building as office since 1990 and that the office at SCO No.42, in
Sector 7-C, Chandigarh was closed in 1996 clearly
indicates that the office of the appellant company was not in the building in
question when the petition for eviction was filed. In para 27 of its judgment,
the appellate authority has referred to the statement of R.K.Aggarwal, (RW-1)
(the Managing Director of the appellant-company). In his deposition, he has
stated that he is residing in the house in question alongwith his wife, mother,
two sons and their wives and children and the house is being used purely for
residential purposes from the time it had been taken on rent; that he was
keeping some important files relating to affairs of the company where he does
some work relating to the files after office hours; no board or nameplate or hoarding
of the company is displayed in the house in question; the office of the company
was in House No. 2163, Sector 21-C Chandigarh from where it was shifted to SCO
No.84-85 Sector 17-C, Chandigarh. Thereafter, it was again shifted to SCO No.
42, Sector 7C, Madhya Marg, Chandigarh and
at present, the office is located in the factory premises of the company, Nalagarh.
The Rent Controller as well as the appellate authority expected the appellant
to lead negative evidence to prove that part of the building was not being used
as office. This approach is opposed to settled principle of law in regard to
discharge of burden of proof. The authorities have proceeded to accept the case
of the respondent mainly on the basis of so-called admission said to have been
made by the appellant in the written statement. A reading of statement made in
written statement in the context has to be integrated and not truncated. If para
6 of the written statement is read as a whole instead of picking up one
sentence or part of it, there would be no scope to say that the appellant
admitted the case of the respondent as to change of user of the building. There
is no other evidence to support that there has been a change of user of the
building. In our view, the Rent Controller as well as the appellate authority
committed a manifest error in proceeding to order eviction of the appellant in
the absence of evidence supporting the ground of change of user of the
building. The findings in the absence of necessary pleading and supporting evidence
cannot be sustained in law.
It is
not a case of concurrent findings based on the evidence; it is a case of
concurrent error. Unfortunately, the High Court has failed to see this basic
shortcoming in the case of the respondent. Hence, we have no hesitation in
holding that the change of user of the building as a fact was not established
to apply Section 13(2)(ii)(b) of the Act.
Now we
will focus our attention to the issue as to whether use of one room to do some
home work relating to office and use of the same room as study room by the
members of the family in the absence of Managing Director of the appellant
amounts to change in user of building having regard to the facts of the case on
hand. The map at Annexure R/3 shows that the building is a big one with bed
rooms, dining, drawing etc., unmistakably showing that it is a residential
building. One small room is shown as office.
Introductory
para 2 of the agreement to let (Exbt. P/3) dated 1.1.1992 shows that the
respondent agreed to let out the premises to the appellant for a period of 11
months from 1.1.1992 for the residence only on the terms and conditions
mentioned below under the said paragraph. There are as many as 16 terms and
conditions. Out of them, conditions 7 & 8 read thus :-
7.
That the second party will not sublet or part with the possession of premises
in favour of any body without the written consent of the party of the first
part.
8.
That the second party shall not make any addition or alteration in the premises
without the written consent of the first party.
There
is no specific clause in the agreement that the appellant shall not use even
one room as study room for the members of the family or he shall not use one
room to do any office work at home. The respondent having chosen to incorporate
conditions 6 & 7 in the agreement (Exh.P-3) relating to sub- letting and
addition or alteration in the premises has not chosen to add a specific clause
prohibiting use of any portion of the building in a particular manner although
it is stated in the introductory para of Exh.P-3, that the premises is leased
for the residence only. There is no evidence to show that in one room the
office of the appellant-company was functioning or that any transactions used
to take place in that room relating to the appellant-company or any regular
business of the company was carried out or that officials or other members of
the public used to visit the building as the office of the company. It is not
uncommon that the officials, executives, officers, businessmen, industrialists
and people engaged in the other vocations may have some home work to do. In
these days computers, internet and other like facilities are kept at home for
convenience and use. In residential buildings where persons live with family
members, a room may be used for the purpose of doing home work relating to
office files or study of children or allied or ancillary use in a building
leased for residential purposes. So long as in a residential building, there is
no regular commercial activity or carrying on of business and regular office
with interaction of the public and customers, etc. it is not possible to say
that use of one room for doing home work or study itself will change the user
of the building and that the classification and character of the building is
changed.
But it
continues to remain a residential building so also its purpose remains as
residential. Use of a room in a residential building for personal purpose
should be distinguished from use of such a room for business, industry or other
commercial activity or as a regular public or professional office. We must add
that each case has to be considered on its own facts on the basis of the
pleadings and evidence to find out as to whether there has been a change of
user in the building from residential to non-residential as it is not possible
to give exhaustive list of situations as to change of user of buildings.
Section
13(2)(iii) and (iv) take care of situations where tenant has committed such
acts as are likely to impair materially the value or utility of the building or
the rented land or where the tenant has been guilty of such acts as are a
nuisance to the occupiers of buildings in the neighbourhood.
The
interpretation of provision must be purposive and not unduly restrictive or
narrow. If we interpret Section 13(2)(ii)(b) in a restricted and narrow manner,
it will be difficult for any tenant occupying a residential building to protect
himself from arbitrary eviction and even to have freedom to use the building
even for residential purpose as he wants. Such interpretation will defeat the
intent and purpose of the Statute.
(3)
SCC 441) had an occasion to consider the very question of the change of user
within the meaning of Section 13(2)(ii)(b) of the Act. That was a case in which
the appellant had taken the premises on rent from the respondent for running a
repair shop of cycles and rickshaws. He carried on side by side selling
televisions in the premises for about seven months but had to stop the same as
it was not viable. The Rent Controller rejected the eviction petition. The
appellate authority at the instance of the landlord granted eviction. The High
Court declined to interfere when moved by the tenant. Dealing with the question
whether there has been a violation of the terms of tenancy by using the
premises for a purpose other than that for which it had been leased, this Court
in para 6 & 7 stated thus:-
6.
Letting of a premises can broadly be for residential or commercial purpose. The
restriction which is statutorily provided in Section 132)(ii)(b) of the Act is
obviously one to protect the interests of the landlord and is intended to
restrict the use of the 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........................................
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 (b) is the main basis for providing clause
(b) in Section 13(2)(ii) of the Act as a ground for the tenants eviction. The
Privy Council in U.Po. Naing vs. Burma Oil Co. (AIR 1929 PC 108) adopted the
same consideration. The Kerala High Court has held that premises let out for
conducting trade in gold if also used for a wine store would not amount to an
act destructive of or permanently injurious to the leased property. Similarly,
the Bombay High Court has held that when the lease deed provided for user of
the premises for business of fret work and the lessee used the premises for
business in plastic goods, change in the nature of business did not bring about
change of user as contemplated in Section 108(c) of the Transfer of Property
Act.
7. The
landlord part with the possession of the premises by giving a lease of the
property to the tenant for a consideration. Ordinarily, as long as the interest
of the landlord is not prejudiced, a small change in the user would not be
actionable.
In para
5 of the same judgment, referring to observations of Lord Diplock, J. in Dupport
Steels Ltd. vs. Sirs ((1080) 1 All ER 529, it is stated thus:- While
respectfully agreeing with the said observations of Lord Diplock, that the
Parliament legislates to remedy and the judiciary interpret 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 attract
the mischief of Section 13(2)(ii)(b).
This
judgment supports the case of the appellant.
Bhalla
(Smt.) (1993 (1) SCC 566), this Court held that change in use of a part of the
premises as lawyers office without seeking permission of the landlord amounted
to change in user from residential to scheduled building and it constituted a
valid ground of eviction under Section 13(2)(ii)(b) of the Act; change in user
may be even in respect of a small portion and need not be in respect of the
entire building or a substantial part thereof. Facts of the case were that the
suit premises was let out to the respondent solely for residential purpose; the
respondents husband, a lawyer, established his office in a part of the suit
premises and started using the same for that purpose.
The
Rent Controller ordered eviction under Section 13(2)(ii)(b) of Act. The
appellate authority affirmed it.
The
learned Single Judge of the High Court in revision set aside the order of
eviction holding that the building let out as a residential building had become
a `scheduled building by use of a part thereof as lawyers office by the tenants
husband. This Court stated that Section 4 of the Act deals with the fixation of
fair rent and for that purpose `scheduled building is treated differently from
a residential building and that the 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. The object is
that the parties must remain bound by the terms of the lease.
Para 8
of the said judgment is to the following effect:-
8. 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.
According
to us, this judgment is on the facts either admitted or established in that
case. The building was let solely for residential purpose; husband of the
tenant established his office as lawyers office in a part of the suit premises,
hence it became a `scheduled building within the meaning of Section 2(h). In
terms of para 8 of the judgment extracted above, a building let out for
residential purpose alone, changes its character and becomes a scheduled
building as defined under 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.
Section 2(d), 2(g) and 2(h) define `non-residential building, `residential
building and `scheduled building respectively and they are three different
categories. Scheduled building is one which is being used by a person engaged
in one or more of the professions specified in schedule I of the Act partly for
his business and partly for his residence. In the case on hand, the facts are
entirely different. The appellant even if it is taken as using one room as
office for his personal purpose to do homework, it does not convert the
building into a scheduled building in as much he did not use the building
partly for his business and partly for his residence. Hence the decision
aforementioned has no application to the facts in the present case.
The case
of M. Arul Jothi & Another vs. Lajja Bal (deceased) and Another (2000 (3)
SCC 723) also does not support the case of the respondent as it is on the facts
of that case dealing with a specific clause contained in the lease deed. In
that case, eviction petition was filed under Section 10(2)(ii)(b) of T.N.
Building (Lease and Rent Control) Act, 1960 on the ground that the appellant
was using building for a purpose other than that for which it was leased. There
was a specific prohibition clause in the rent deed which stated that the
premises shall be used by the tenant only for carrying on his own business......
and
the tenant shall not carry on any other business than the above-said business.
Looking to the use of the words only coupled with the other sentences that the
tenant shall not carry on any other business than the one specified, in para 10
of this judgment the Court has observed thus:- Having heard learned counsel for
the parties in our considered view of the cases 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 a specific prohibition clause in the rent deed. In the present case
there is a specific clause which states shall be used by the tenant only for
carrying on his business and the tenant shall not carry on any other business
than the above said business. By the use of the word 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 intent of the parties which restricts the user of the tenanted
premises, only for the business which is stated therein and no other.
..................................
The
learned Senior Counsel for the respondent emphasizing as to the use of the
words for residence only in the lease agreement submitted that the
aforementioned case fully supports the respondent. We do not think so, for the
reasons more than one. That was a case where the shop, a non-residential
building, was let out on condition to carry on only a specified business and no
other business;
although
in the lease deed in the case on hand it is stated that the premises was taken
for residence only; there is no other clause specifically prohibiting the use
of a room in the building even for either study or to carry on some home work
of the office. On facts also, as already noticed above, change of user of the
premises has been neither properly pleaded nor established. Paragraph 10
extracted above, was more on the point dealing with a specific prohibitory
clause in the lease deed. The Court looking to the word only coupled with other
specific prohibitive clause took that view.
In
this case, with which we are concerned, there is no specific clause in the
lease agreement prohibiting use of even a room in the building for disposal of
some files at home pertaining to his office and for the study of family
members. The fact is that the appellant is living with the members of his
family; the building did not cease to be a residential building and the purpose
and character of the use of the building also did not change. As a matter of
fact also, the respondent, as already noticed above, has failed to establish
the change of user of the building by necessary pleading and evidence.
Under
these circumstances, the issue is answered in the negative. In the result for
the reasons stated hereinabove, the impugned judgment and order of the High
Court are set aside. The appeal is allowed and the petition filed for eviction
by the respondent is dismissed with no order as to costs.
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