Punjab-Haryana High Court
Smt. Savinder Kaur vs Pindi Paint Stores Agency on 10 September, 1996
Equivalent citations: (1997)115PLR212
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. By this order Civil Revision Nos. 2831 and 2830 of 1988 are being decided as both the rent petitions were consolidated and by a single order dated August 31, 1988, the same were dismissed by the Rent Controller.
2. The relevant facts of the case for the decision of these revisions are that Sardar Sarup Singh Bajwa, late husband of Savinder Kaur, filed petition under section 13-A of the East Punjab Rent Restriction Act, 1949, (in short, the Act) on July 22, 1986, alleging that he is a specified landlord under the provisions of this Act and he bonafide requires the ground floor of the property bearing No. F-195 Ali Mohalla, G.T. Road, Jalandhar City, a part of which was leased out to Messrs City Glass and Plywood Company and another part was leased out to Messrs Pindi Paint Stores Agency in June, July, 1971. During the pendency of the ejectment petition Sarup Singh Bajwa expired and his widow Savinder Kaur is impleaded as petitioner in his place on June 15, 1987.
3. In the rent petition it is alleged that after the death of her husband, the petitioner is a specified landlord under the provisions of the Act. Her husband retired as Inspector or Police, CID, Himachal Pradesh with effect from January 1, 1979, and before that he was in service of United East Punjab. Respondent Messrs City Glass & Plywood Company is tenant under the petitioner in the part of the building shown in red colour in the plan attached at the rate of Rs. 390/- per month with effect from July 21, 1971. The other part of the ground floor shown in red colour in the site plan attached with the other rent petition was demised to Messrs Pindi Paint Stores Agency at a monthly rent of Rs. 440/- with effect from June 20, 1971. This entire building, demised portions are part whereof, was transferred to Sarup Singh as residential house vide conveyance deed dated January 14, 1964, by the Rehabilitation Department and the transfer was effective from October 1, 1955. From 1955 the entire building was occupied by Sarup Singh and his family uptil 1962 for their residence. In 1962 as Sarup Singh was transferred out of Jalandhar, he shifted with his family to District Police Lines Ludhiana and at that time the entire premises was let out for residence to one Om Parkash. In the year 1968 Sarup Singh and his family reoccupied the entire premises for their residence after renovating the same to its present condition. When Sarup Singh opted for allocation of service to the State of Himachal Pradesh, his family members occupied the premises till 1971 for their residence.
4. As Sarup Singh and his wife were residing in Himachal Pradesh during service of Sarup Singh, the ground floor of the building, as renovated, was rented out on June 20, 1971, to Messrs Pindi Paint Stores Agency and the other portion was leased out to Messrs City Glass and plywood Company on July 21, 1971. Thus both these portions of the ground floor are part of the residential building.
5. The accommodation on the first floor of the building was not sufficient for the married sons and their families, therefore, second floor was constructed in the year 1985. At present, the accommodation on first and second floors is not sufficient for the residence of the family members of the petitioners. His eldest son has two sons and one daughter. Petitioners's one daughter is also serving as a teacher in Government Girls High Schools, Gandhi Nagar, Jalandhar, and she is also living with her children with the petitioner. The petitioner is aged 69 years and is suffering from heart trouble, blood pressure, diabetes, gastroenteritis and arthrities. She is extremely weak and it is very painful for her to climb the stairs. Therefore, also she requires the ground floor for her residence. On both these counts, she requires the ground floor for her and her family members' residence. No doubt, the respondent is using the disputed premises for commercial activities, yet the building having been a residential one, change to commercial activity in a part of the main residential building, without obtaining written permission of the Rent Controller, is not permissible under the law. Hence the building in question remains for all intents and purposes of this petition a residential building and, therefore, the petitioner is entitled to evict both the tenants from the ground floor under section 13-A of the Act.
6. Both the respondent-tenants contested the petitions and raised preliminary objections that the petition is not maintainable as the demised premises is not residential building; they are separate commercial units with independent shop's, built and let out as such. These portions' have no connection with the premises behind it or on the upper floors. The premises demised to these tenants are not part of any residential building. Ground floor was never used for residential purpose and cannot be used as such. Adjoining premises are also shops. The disputed shops are situated on G.T. road, which is exclusively commercial. The tenants also challenged the description of the property in the site plan attached with the ejectment petition. According to them, there are six rooms on the first floor and four rooms on the second floor. They denied the bonafide need of the petitioner on the ground that she is having normal health and as the petitioner is having six rooms on the first floor and four rooms on the second floor, besides bath-room, latrine, kitchen, verandha and store, the present accommodation in her occupation is sufficient to meet the residential need of her family members.
7. The petitioner filed rejoinder and controverted the pleas taken by the tenants in their written replies.
8. The Rent Controller framed issues. Parties adduced their evidence.
9. While deciding issues 1, 2 and 3 together the Rent Controller came to the conclusion that the petitioner is a specified landlord under section 2(hh) of the Act, but about the nature of the premises, the Rent Controller held that it is a non-residential portion of the whole of the residential building. At the time of renovation ground floor was converted into shops and was let out to the tenants for non-residential purpose. On that ground that Rent Controller held that under section 13-A of the Act, the petitioner cannot evict the tenants from the non-residential building. The Rent Controller also held that the younger son of the petitioner is residing at Ludhiana with his wife and children and her daughter is living in Bombay with her husband and children. According to the Rent Controller, the upper two floors are in occupation of the petitioner where she is living along with her eldest son Balwinderjit Singh AW-8, his wife and three children, and this accommodation is sufficient for their residence. They do not need any additional accommodation for their residence. The Rent Controller also held that since the ground floor, after renovation, was converted into shops; therefore, it was not necessary for the landlord to obtain permission of the Rent Controller under section 11 of the Act for demising it for non-residential purpose. Thus, both the rent petitions were dismissed.
10. The petitioner's learned counsel, relying on Dr. Dina Nath v. Santosh Kaur, (1987-1)91 P.L.R. 171, contended that while deciding a petition filed under Section 13-A of the Act, the Rent Controller has to follow the procedure and practice of a Small Causes Court as provided under section 18A(7) of the Act, which was inserted by Amending Act No. 2 of 1985. He also contended that the provisions of Code of Civil Procedure would not apply to such proceedings. There is no dispute about this proposition of law. But the respondent's learned counsel contended that under section 18(8) of the Act while deciding such a revision the High Court cannot see adequacy of material on the basis of which the Rent Controller passed the impugned order. The High Court can interfere only if the order is without jurisdiction or perverse. Power of revision of High Court under section 18A(8) is not co-extensive with its power of revision under section 15(5) of the Act.
11. In Vinod Kumar Arora v. Smt. Surjit Kaur, AIR 1987 S.C. 2179 the Apex Court has held that the High Court is fully justified in rejecting the findings of the Rent Controller and the Appellate Authority, even though it is a finding of fact, when both the Authorities have based their findings on conjectures and surmises and they have lost sight of relevant pieces of evidence which have not been controverted. The rule that when the Rent Controller and the Appellate Authority have rendered concurrent findings of fact, the High Court is not entitled to disregard those findings and come to a different conclusion of its own would apply only where the findings have been rendered with reference to facts and not on the basis of non-existent material and baseless assumptions.
12. It is within this parameter that these revisions are required to be decided.
13. The petitioner's learned counsel contended that this residential building was transferred to Sarup Singh Bajwa vide conveyance deed dated January 14, 1964, by the Rehabilitation Department (the document is on record) and the transfer became effective in October 1955. Petitioner's son Balwinderjit Singh AW-8 has stated on oath that the ground floor of this building was all along being used for residence till 1971 when it was leased out to these tenants for commercial purpose. Relying on Hari Mittal v. B.M. Sikka, (1986-1)89 P.L.R. 1, he contended that since no written permission is obtained by the landlord from the Rent Controller under section 11 of the Act, it cannot held that the demised premises is of non-residential character and it was let out for that purpose and on that count the petitioner-landlord is not entitled to evict the tenants therefrom under Section 13-A of the Act. He also pointed out that respondent-tenants' counsel before the Rent Controller admitted that till 1968 the demised premises was part of the residential building. Therefore, now the respondent-tenants cannot say that this is not a part of the residential building and as no permission was obtained under section 11 of the Act for leasing it out for non-residential purpose, the Rent Controller ought to have concluded that the disputed demised premises is a part of the residential building. Thus, according to him, on this count the Rent Controller fell into an error in not following Hari Mittal's case (supra).
14. Relying on H.R. Bansal v. State of Punjab, (1996-1)112 P.L.R. 227 (S.C), he contended that by this judgment the Apex Court has struck down the Amending Act No. 29 of 1956 whereby landlord's right to evict tenant from non-residential premises for his bonafide requirement was taken away. Hence, according to him, even if for argument's sake it is to be held that the demised premises is a part of the non-residential building, even then the petitioner is entitled to evict the tenants therefrom as she bonafide requires the suit premises for her and for her family members' residence.
15. The respondent-tenants' learned counsel assiduously argued that the above argument is not at all tenable. In H.R. Bansal's case (supra) the Supreme Court has only considered the provisions of section 13 of the Act. It has not at all considered the provisions of Section 13-A of the Act. According to him, the scope of both these provisions is totally different. When a specified landlord files a petition under section 13-A of the Act, he can seek tenant's ejectment only from residential building because by filing such a petition the landlord has to prove that he does not own and possess any other suitable accommodation in the local area in which he intends to reside and he wants to recover possession of his residential building or scheduled building, as the case may be, for his own occupation.
16. So far as the above objection of the respondent's learned counsel is concerned, in my considered view the objection is forceful. In H.R. Bansal's case (supra) he Apex Court has struck down the amendments which were effected by Amending Act No. 29 of 1956 whereby landlord's right to evict tenant from non-residential building for his bonafide requirement under section 13(a)(ii)(a) of the Act was taken away. In this judgment the provisions of section 13-A of the Act were not at all considered. The provisions of section 13-A were beyond the scope of consideration because under section 13-A of the Act a specified landlord can seek ejectment of his tenant from residential building or scheduled building. This provision does not apply to non-residential building.
17. The respondent's learned counsel argued with all vehemence at his command that the Rent Controller has rightly dismissed both the rent petitions. He admitted that the petitioner-landlady is a specified landlord, but, accordingly to him, she is not entitled to evict these tenants from the demised premises because after renovation the ground floor was converted into non-residential premises and since then it is being continuously rented out to different tenants for that purpose. He referred to the evidence adduced by the tenants whereby they have proved that this ground floor was demised to Om Parkash, who was running a Soda-water shop; thereafter it was demised to Buta Singh who was running business of tyres repairs therein and now it is demised to the present tenants who are using it for non-residential purpose. It was demised to them for non-residential purpose as is evident from the rent notes executed by them in favour of Sarup Singh Bajwa. He also pointed out that the tenants have proved that these shops are abutting G.T. Road Jalandhar, which is a commercial area. Balwinder Singh AW-8 has admitted this fact partially, but petitioner's another witness Darshan Kaur AW-9 has admitted that her house adjoins the disputed premises; the doors of her house open on G.T. Road and she has four shops on the ground floor opening on G.T. Road. She has candidly admitted that there are shops in the entire portion of G.T. Road opposite the shops in question.
18. The respondent-tenants' learned counsel also referred to the statement of Balwinderjit Singh AW-8 where he has admitted that there is no bath room, kitchen or latrine adjacent to the demised premises. There were windows earlier at points 'A' and 'B' shown in the site plan, which have been renovated into a passage. There used to be a door at point 'C'. Now there is no window or ventilator in the shops opening towards outside. Both these shops are not connected with the portion situated on the first and second floors. There is no approach from inside of these shops to the construction on the first and second floors. He also admitted that Om Parkash was a tenant on the ground floor of this building in the year 1962. This witness has also admitted that earlier there was only one electricity connection in the whole of the building, but now these tenants have taken independent electricity connections in their own names.
19. Respondent-tenant's learned Counsel submitted that the Rent Controller has rightly relied on Lal Chand v. Bal Kishan, (1987-2)92 P.L.R. 222 and Dr. Jagjit Mehta v. Dev Brat Sharma, (1988-1)93 P.L.R. 154, in arriving at the conclusion that after renovation the demised premises were converted into non-residential premises and, therefore, it was not necessary for the landlord to obtain written permission of the Rent Controller under Section 11 of the Act and further on the count that since the demised premises is non-residential building the petitioner-landlady cannot evict the tenants under Section 13-A of the Act.
20. Petitioner's learned Counsel relying on Surjan Singh v. Krishan Lal Garg, (1996-2)113 P.L.R. 432 and Mrs. Meenal Eknath Kshirsagar v. M/s Traders & Agencies and Anr., JT 1996(6) S.C. 468 further submitted that the Rent Controller had no jurisdiction to consider the bonafides of the petitioner's said requirement, because under section 13-A if the specified landlord seeks ejectment of the tenant and makes a statement to that effect the Rent Controller under the law is required to accept his statement and to pass an order of ejectment. According to him, the petitioner has proved by examining his witnesses that the petitioner is not keeping good health, she could not climb the stairs; her two sons and one daughter are residing with her on the first and second floors of the building with their spouses and children. Both these floors are not sufficient for residence of all these persons. Therefore, she requires the demised premises for her as well as for her family members' residence. According to him, the Rent Controller has fallen into an error in evaluating the bonafides of the said requirement of the specified landlord.
21. In my considered view, the above authorities are distinguishable on facts and the Rent Controller has not fallen into any error in rejecting both the rent petitions. Petitioner herself has pleaded that ground floor was renovated in 1968. She examined her son Balwindcrjit Singh AW-8, who admitted that at the time of renovation site plan was got approved from Municipal Corporation but no such site plan or sanctioned map was deliberately produced by the landlady, though, according to her son, that is still in their possession. Balwinderjit Singh has admitted that in 1962 the ground floor was demised to one Om Prakash. Tenants have examined five witnesses. Their statements are not at all considered by the Rent Controller as he has specifically mentioned so in the impugned order. RW-3 Avinash Kumar has stated that the ground floor is non-residential building; it is not at all connected with the upper floors; it cannot be used for residence; this ground floor is built as shops and is not meant for residence; the entire G.T. Road is a commercial area; prior to him (he is partner of M/s City Glass and Plywood Company) one Buta Singh was in possession of the demised shop and was running business of tyre repairs and earlier to Buta Singh there was another tenant who was using the premises for running shop of Soda Water. Malwinder Singh RW-4 is son of Buta Ram. He has deposed that his father Buta Ram was occupying the disputed shop as tenant and was running tyre-repair business the reform for two years. He has also testified that prior to his father, Om Parkash was running his Soda Water shop therein. Girdhari Lal RW-5 has also corroborated his statement. He is occupying adjoining shop of the disputed shops. He is categoric in his statement that the disputed shops are also being used since inception as shops. The petitioner or her husband never had their residence in the shops in dispute. The petitioner has not adduced any evidence in rebuttal. Thus, this evidence adduced by the tenants remains unrebutted.
22. The Rent Controller has rightly held that this building was renovated in 1968 and thereafter it was converted into non-residential building and was demised for non-residential purpose. The tenants have occupied the disputed portions in June/July 1971, but the renovation was done much earlier. Before renovation the petitioner or her deceased husband may be living on the ground floor but this is the petitioner's specific case that later on upper floors were constructed. According to her, second floor was constructed in 1985 and at the time of renovation first floor was constructed. From a bare look at the site plan, it becomes evident that the ground floor is meant for non-residential purpose and the upper two floors form a complete unit for residence of a family. The ground floor has no latrine, bath room, kitchen, windows, ventilators and no opening towards the rest of the building. After renovation it is converted into shops. This building is on G.T.Road which is commercial area, and in whole of that row the ground floors of the buildings are being used for commercial purpose. The first floor has bath-room and Kitchen and second floor has latrine. There is no kitchen and bathroom on the second floor and no latrine on the first floor. Thus, it is obvious that first and second floors are a compact part of a building to be used for residence of a family. The structural designing of ground floor and upper two floors is so distinctly different that the conclusion is inevitable that the ground floor is a part of residential building but after renovation it is converted into non-residential building while the upper floors are parts of residential building. In view of the above facts, the Rent Controller has rightly held that the landlord was not required to obtain written permission of the Rent Controller under section 11 of the Act for leasing it out for non-residential purpose.
23. While deciding a case on identical facts a Single Bench of this Court in Lal Chand's case (supra) held that the premises in dispute are two shops on the ground floor of the larger building,- the major part of which is no doubt residential in character, but at the same time it cannot be disputed that the shops in dispute which have been let out to the petitioner are non-residential in character. These two shops are a building falling within the scope of clause (a) of section 2 of the Act. Merely because these two shops in the form of building are integral part of the larger building as known in the common parlance, predominant part of which is residential in character, it is difficult to hold that these shops are a residential building and not a non-residential one. The shops have admittedly been let out to the petitioners solely for running his business. Therefore, these shops are to be treated as non-residential building within the meaning of clause (d) of section 2 of the Act. It is also observed that the ratio of Hari Mittal's case (supra) and Gurbax Rai Sood v. Karnail Singh, (1986-2)89 P.L.R. 598 is not even remotely applicable to the facts of the case in hand. While letting out shops -- solely for the purposes of business it was not necessary to secure written permission of the Rent Controller under section 11 of the Act.
24. In Dr. Jagjit Mehta's case (supra) a Single Bench of this Court held that a portion of residential building was converted into shops and let out to tenants. Specified landlord under section 13-A of the Act wanted to start practice as Advocate after retirement in the let out portion. On these facts, it was held that it was a shop and the tenant could not be ejected because under section 13-A of the Act ejectment could be ordered from residential building or specified building. This matter went to the Apex Court. The Apex Court held that the main thrust of the appellant's counsel's contention was that the house is residential and the user could not be changed and the tenant could not have put up a clinic in a portion of the house. Their Lordships held "We find that there has been no change of user in this in as much as the tenancy was created for the purpose of locating the clinic and this distinctive feature takes the case out of the ratio emerging from some of the precedents of this Court on which reliance was placed."
25. The distinction between residential and non-residential building was also considered in Raghbir Seth v. Ram Sarup, (1993-2)104 P.L.R. 487. It was held therein that the ground floor was let out as godown and was used as such for 30/40 years, while its first and second floors were used as residential building. On these facts, it was held that the ground floor cannot be treated as residential building. Specified landlord is not entitled to eject tenant on ground of bonafide requirement for residence. This contention was also repelled that no permission under section 11 of the Act was taken by the landlord to convert residential building into non-residential.
26. In Ram Gopal v. Sher Singh, (1995-2)110 P.L.R. 445 also the facts were similar. In that case also ejectment of tenant was sought from a shop which was a part of the residential building. Building was constructed in commercial area. The Court held that shop being part of the residential building is irrelevant. The building is situated in commercial area and demised premises was let out for running a shop, which was a part of residential building. On these facts, ejectment petition was dismissed.
27. Thus, in my considered view, the Rent Controller has rightly held that the demised premises is non-residential building, though it is a part of residential building.
28. So far as the need of the petitioner is concerned, she has sought ejectment on two grounds; firstly, that the accommodation on the first and second floors in her occupation is insufficient for the residence of the members of her family, and, secondly, because of her ill health she cannot climb the stairs to reside on the upper floors. The Rent Controller has disbelieve both these grounds. Under Section 13-A of the Act, if the specified landlord files a petition that he does not own or possess any suitable accommodation in the local area in which he intends to reside and seeks ejectment of the tenant from his residential building or scheduled building for his own occupation, he is allowed to recover immediately the possession of such residential building or scheduled building. Both in this case the petitioner herself has pleaded two grounds; one about her ill-health and the other regarding insufficiency of accommodation. Thus, it is obvious that she wants additional accommodation for the residence of her family members. She is to prove her case to get an ejectment order. So far as her ill-health is concerned, she has not entered the witness box. Her son Balwinderjit Singh AW-8 has stated so. He has produced a medical certificate also, but no doctor has been examined to prove it. Conversely, Kundan Singh RW-1 and Avinash Kumar RW-3 have testified that petitioner is in good health and able to walk and climb the stairs normally. This evidence remains unrebutted. So far as insufficiency of accommodation for the residence of her family members is concerned, Balwinderjit Singh AW-8 had to admit in cross-examination that his sister, who was teacher in Jalandhar earlier, is now residing with her husband and children in Bombay and his younger brother and his wife are employed in Ludhiana. Obviously so, now they are residing there in Ludhiana. Thus, the conclusion is inevitable that the petitioner is residing on the first and second floors of the said house with her son Balwinderjit Singh who is living therein with his wife and three children. From the site plan produced on record, it is evident that these floors have many rooms. Thus, the Rent Controller has rightly held that the petitioner has failed to prove that the accommodation in her occupation is insufficient for the residence of her family members or she being indisposed needs ground floor for her residence.
29. Resultantly, the revisions, being meritless, are hereby dismissed.