Punjab-Haryana High Court
Kewal Ram And Ors. vs Krishan Kumar And Anr. on 5 October, 2007
Equivalent citations: (2008)149PLR88
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This revision petition has been filed by the owners of the building situated in Rajpura Township challenging the judgment dated 30.1.1988 passed by the Rent Controller, Rajpura permitting respondent No. 1, who is the neighbourer of the petitioners, to prosecute the petitioners under Section 19 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as 'the Rent Act') on the ground that the petitioners have converted the residential building into a non-residential building in violation of Section 11 of the Rent Act without obtaining written permission from the Rent Controller.
2. In this case, the dispute is not between the landlord and the tenant. Neither respondent No. 1 is a tenant of the petitioners nor the petitioners are landlords of respondent No. 1. They are simply neighbourers owing their own properties. The case of the respondents is that the petitioners have purchased a residential building built by Pepsu Township Development Board and converted that residential building into a shop and have also installed a flour mill in the residential premises; It is further the case of the respondents that the petitioners have converted the residential building into a non-residential building in the municipal area without taking written permission from the Rent Controller as required under Section 11 of the Rent Act, thereafter, an application was filed by respondent No. 1 before the Rent Controller, Rajpura for prosecuting the petitioners under Section 19 of the said Act for violating the provisions of Section 11 of the Rent Act.
3. The Rent Controller allowed the said application in view of the following observations made by the Full Bench of this Court in Shri Hari Mittal v. Shri B.M. Sikka (1986-1)89 P.L.R. 1:
It was then argued that if Section 11 of the Act was intended to subserve a public policy of the kind, then it would prohibit even a landlord from converting a self occupied residential building, but this Court in two Division Bench decisions referred to by the Division Bench in Bansal's case (1985-1) 87 P.L.R. 605 (supra) that is Chatter Sain's case 1965 Curr.L.J. (Pb.) 143 (supra) and Faqir Chand's case (supra) has taken the view that Section 11 is not attracted to a residential building, which is in the self occupation of the landlord, hence the landlord could convert it into a self occupied non residential building without the permission of the Controller in terms of Section 11 of the Act.
20. We are of the opinion, with respect that Chatter Sain's case (supra) and Faqir Chand v. Ram Kali's case (supra) do not lay down the correct law and we, therefore, overrule them.
21. The learned Judges, who decided these cases reached that conclusion by assuming that the provisions of the Act including Section 11 applied only to a building which is let out and is in the use of and occupation of the landlord himself.
Support for that assumption was sought from the definition of the expression building as deemed by Clause (a) of Section 2 of the Act.
22. While considering the import of the various definitions given in Section 2 of the Act, the court is not to overlook the guiding warning contained in the opening words thereof, namely "unless there is anything repugnant in the subject or context."
23. If the provision of Section 11 of the Act was merely intended to prohibit only the person other than the landlord from converting a residential building into a non-residential without the permission in writing of the Rent Controller, then the legislature would not have used the expression, 'No person...', which is one of the widest import and would leave no person out of the purview of the said provision who happens to be in control or possession or occupation of the residential premises. The injunction envisaged in Section 11 of the Act, in our opinion, is not limited to a tenant of the building, for the expression used is 'No person...'. That person may be a tenant of the building, a licensee, a mortgagee, a trespasser or the landlord himself. That the legislature must have intended the injunction contained in Section 11 of the Act to be applicable even to the landlords, becomes clear when a regard is had to be public policy that the said provision was intended to serve.
The said judgment has been affirmed by the Appellate Authority under the Rent Act.
4. Counsel for the petitioners submitted that the provisions of the Rent Act are applicable in case there is dispute between the landlord and tenant pertaining to a premises situated within the limit of an urban area. This Act is not applicable to other civil disputes between various owners residing in the urban area. By this Act, certain protection has been provided to the tenants against their forcible or malafide eviction by their landlords. Certain rights have also been given to the landlords to get their tenants evicted on certain grounds. But this Act is not applicable for the dispute arising between the owner of a building or a dispute between the two neighbourers about some property. He submitted that if a resident of the urban area is misusing his property or causing any nuisance to his neighbourer, the neighbourer or any affected person can initiate civil or criminal proceedings before the competent court in accordance with law. But such person has no right to approach the Rent Controller to prosecute the owner of the building because he has converted the residential building into a non-residential building. If in the residential area the business activities &e prohibited under the Municipal bye law or under any other law, then any person affected or any resident of the locality can approach the Civil Court or the Authority for preventing the said misuse. Learned Counsel further submitted that the petitioners have installed a flour mill in his premises after taking licence from the Municipal Committee, Rajpura. This fact has been proved from the statement of RW2, Clerk of the Municipal Committee. Learned Counsel further submitted that more than 85 shops are functioning in the locality where the property of the petitioners is situated. This fact has also been proved by RW3-Malu Ram, the Tax Clerk of the Municipal Committee, Rajpura. learned Counsel for the petitioners further submitted that respondent No. 1 and others had admittedly filed a suit for permanent injunction against the petitioners which was dismissed vide judgment and decree Ex.R-3. In spite of that, respondent No. 1 filed another application before the Rent Controller for prosecuting the petitioners which has been allowed. Counsel for the petitioners also submitted that no application is maintainable by the respondent for prosecuting the petitioners for violating the provisions of Section 11 of the Rent Act. He submitted that the permission by the landlord for converting the residential building into a non-residential building from the Rent Controller is required in case he wanted to rent out of the said premises under the provisions of the Rent Act. Counsel submits that all these facts have been proved before the Rent Controller and in spite of that the application filed by respondent No. 1 has been allowed on the ground that no written permission has been obtained from converting the residential building into a non-residential building under the Rent Act.
5. On the other hand, learned Counsel for the respondents while referring to some portion of the Full Bench judgment of this Court in Shri Hari Mittal's case (supra) submitted that the injunction envisaged in Section 11 of the Rent Act is not limited to a tenant of the building, for the expression used is 'No person...'. That person may be a tenant of the building, a licencee, a mortgage, a trespasser or the landlord himself. The injunction contained in Section 11 of the Rent Act can be applicable even to the land owner. Therefore, even the land owner cannot convert the residential building into a non-residential building without written permission from the Rent Controller.
6. After hearing the counsel for the parties, I am of the opinion that the impugned judgments passed by the Rent Controller as well as the Appellate Authority permitting respondent No. 1, to prosecute the petitioners under Section 19 of the Rent Act on the ground that the petitioners have converted the residential building into a nonresidential building for violation of Section 11 of the Rent Act without obtaining written permission from the Rent Controller, are not sustainable in the eyes of law. Undisputedly, there is no relationship of landlord and tenant between the petitioners and respondent No. 1. They are simply neighbourers owning their own properties. It has come on record that, the petitioners have installed a flour mill after taking prior permission from the Municipal Committee in whose jurisdiction the premises of the petitioners is existing. This fact has been proved from the statement of RW2, Clerk of the Municipal Committee. It has also come on record that more than 85 shops are functioning in the locality where the property of the petitioners is situated. This fact has also been proved by RW3-Malu Ram, the Tax Clerk of the Municipal Committee, Rajpura. Moreover, respondent No. 1 and others had filed a suit for permanent injunction against the petitioners which was dismissed vide judgment and decree Ex.R-3. Inspite of that, respondent No. 1 filed another application before the Rent Controller for prosecuting the petitioners which has been allowed. In my opinion, the Rent Act, is applicable on a dispute arising between the landlord and tenant of a building situated in the urban area. As the Rent Act is applicable to all urban areas in Punjab, the construction of a building and use of the same are being governed by the Municipal Act as well as Municipal bye-laws, he is liable for the action under the Municipal bye-laws or the Municipal Act. Whether a particular area is a residential or a commercial area is also being defined by the municipal authorities or other local authorities. As far as the Rent Controller is concerned, he has no authority to take action for violation of the building bye-laws or the zoning plans or misuser of building by the land lowers in an urban area. The jurisdiction of the Rent Controller comes in case there is a dispute between the landlord and the tenant. The Rent Act is not applicable on the ordinary civil disputes between the parties regarding the properties situated in the urban area. If the owner of a residential building misuses his building and carries the business in the same contrary to the Municipal bye-laws, he is liable for an action under the Municipal bye-laws or under the general law of the land. If a person creates nuisance to his neighbourer, he has a legal right to file a suit for permanent injunction restraining such person from causing nuisance affecting his privacy or health.-In the instant case, an injunction suit was filed by respondent No. 1 for installing the flour mill on the residential premises and causing nuisance to him. The said suit has been dismissed. In my opinion, the Rent Controller has illegally assumed jurisdiction in this case while observing that the petitioners have not obtained written permission of the Rent Controller before converting the residential building into a non-residential building as required under Section 11 of the Rent Act. In my opinion, Section 11 of the Rent Act is applicable in case the landlord wants to convert the residential building into a non residential building. It has been held in a Full Bench decision of this Court in Shri Hari Mittal's (supra) that the injunction contained in Section 11 of the Rent Act is applicable even to the landlord. There is a difference between the landlord and the land owner to whom the Rent Act is not applicable. As far as the owner of the building is concerned, he is not required to take prior permission from the Rent Controller for conversion of this residential building into a non-residential building. Such permission can be obtained by him from the Municipal Committee or the Local Authorities. It is well settled as has been held by this Court in Jagan Nath v. The Sangrur Central Co-operative Bank Ltd., Tappa, District Barnala 1980 (1) R.C.R. (Rent) 600 that the provisions of Section 11 of the Act do not debar an owner of the building to let out the same for non-residential purposes even though it may have initially been constructed for that purpose. It has been held that the provisions of the Rent Act will come into play only when a building is let out to a tenant because the building as defined in Section 2(a) of the Rent Act means any building or part of a building let out for any purpose whether being actually used for that purpose or not. Consequently, unless the building is let out, it would not be governed by the provisions of the Rent Act which necessarily means that the landlord is free to use the building in any manner he likes. Therefore, in my opinion, the Rent Controller as well as the Appellate Authority have acted illegally and without jurisdiction while allowing the application filed by respondent No. 1, who is not the tenant and mere a neighbourer, to prosecute the petitioners under Section 19 of the Rent Act on the ground that the petitioners have converted the residential building into a non-residential building in violation of Section 11 of the Rent Act without obtaining written permission from the Rent Controller.
In view of the aforesaid, this petition is allowed and the impugned judgments passed by the Rent Controller as well as the Appellate Authority are set aside.