Punjab-Haryana High Court
Kuldip Singh vs Shiv Saran Dass Rakesh Kumar And Ors. on 7 November, 1994
Equivalent citations: (1997)117PLR572
JUDGMENT M.S. Liberhan, J.
1. Questions which have arisen for consideration in the course of proceedings Under Section 13 of the East Punjab Rent Restriction Act for ejectment, referred by the Single Bench are (i) whether the premises viz shops let out for non-residential purposes can be converted into a godown and vice versa; and (ii) whether by acceptance of rent, the landlord is estopped from seeking ejectment on the ground of change of user.
2. Two shops were leased out to a partnership firm. On dissolution, lease-hold rights were partitioned amongst the partners. The shops were started being used as godowns.
3. It would be expedient to notice here the relevant provision relating to eviction of tenants, which runs as under:-
" 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).........
(b) used the building or rented land for a purpose other than that for which it was leased, or"
4. Concededly, there is no written consent for the change of purpose for which the building was rented out.
5. It was observed by a Full Bench of this Court in Des Raj v. Sham Lal, (1980) 82 P.L.R. 647, that in case demised building is rented out for residential purposes, it can not be converted into non-residential i.e. shops.
6. The facts and circumstances as well as the reference made by the learned Single Judge of this Court, are squarely covered by the judgment in Dharam Raj and Anr. v. Roshan Lal and Anr., (1993-1)103 P.L.R. 685, wherein a Division Bench of this Court, after making reference to Des Raj's case (supra) observed as follows:-
".... that when a demised building identified in the rent note merely as a shop, is put to use exclusively as a godown, it would tantamount to change of user."
7. It was further observed that mere knowledge of change of user without the written consent would not deprive the landlord of his right from seeking ejectment of the tenant.
8. The learned counsel for the petitioner relied on D.C. Oswal v. V.K. Subbiah and Ors., AIR 1992, SC 184, in order to contend that if the landlord accepts the rent after the change of user comes into force, it would amount of waiver and the landlord would be deemed to have accepted the change of user. He is estopped from seeking ejectment. There is no dispute with the proposition of law laid down in view of T.N. Buildings (Lease and Rent Control) Act (18 of 1960), wherein the ground of ejectment for change of user is provided. There is no statutory provision that any written consent is required for change of user. A plain reading of the statute as referred in the earlier para of this judgment would show that there can be no inference that the tenant can change the purpose of tenancy only through by written consent of landlord. Once the statute provides that a particular act can be done in a particular manner, other modes are impliedly barred. Thus, change of purpose of tenancy orally is not permissible, rather absence of written consent provides a ground of ejectment and principle of promisory estoppel can not be raised against a statute. Concededly, the change of user has been brought about without any written consent. Neither acceptance of rent would deprive the landlord from seeking the ejectment on the ground of change of user nor it be deemed to be written consent nor it can operate as estoppel. Mere acceptance of rent would not be itself bring about either new tenancy or waiver of the right accrued to the landlord nor deemed to have waived his right for ejectment for the default committed by the tenant. Rent at any rate would be due to the landlord inspite of the tenant having committed another default which is reasonably a statutory ground for ejectment. Reference can be made to 1969 RCJ 418.
9. We may hasten to add that when the statute required written consent for change of purpose of lease, no other mode of giving consent i.e. by act or conduct can be accepted. As already observed, but for written consent, all other forms of consent are impliedly barred. Reference for above observations can be made to Shamba Datt v. Balwant Lal, 1968 PLR 790 and 1977(2) RCJ 600.
10. In our considered view change of purpose of lease from shop to godown and vice-versa would be a change in purpose of the lease. It would be changing the nature of building, that is, residential to non-residential, and vice-versa. A building let out for godown is neither a scheduled building nor a non-residential building as defined by the East Punjab Urban Rent Restriction Act, 1949. The definition of "non-residential building" runs as under, as provided by Section 2(d) of the Act:-
"2(d)(i) "non-residential building" means 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."
10. Ejectment proceedings are summary in nature. Facts are not in dispute. Reading of the pleadings in verbatim as referred hereunder:-
"Para 5 (iv) That the respondent No. 1 was leased out the demised premises for running a shop but it has ceased to occupy the same for more than a continuous period of four months, without reasonable cause. The firm respondent No. 1 had shifted its shop in New Anaj Mandi about 5 years back.
(v) That in case the petitioner is unable to prove ground No. iv, then in the alternative the respondents are liable to be ejected as they are not using the shops for the purpose for which they were leased out."
makes us to conclude that the building was rented out for shops which were converted into godowns which is concedely a change of purpose of lease. It is no body's case that change in purpose was by written consent which is a question of fact required to be pleaded and proved.
11. In view of the observations made above, we are of the considered view that (1) changing the nature of building, that is, from residential to non-residential and non-residential to residential, or shop into godown and godown into shop, would be a change of purpose; (2) acceptance of rent after the change of user having been brought about without the written consent, would be of no consequence. The only way the change of purpose can be brought about by the tenant is under a written consent from the landlord.
12. This revision petition is, thus, allowed. The order of the appellate authority is set-aside.
13. The respondents are directed to be ejected. They are granted three months time to vacate the premises subject to payment of arrears of rent till date.