Punjab-Haryana High Court
M/S Bharat Electricals Through Its ... vs Dr. Sukhdev Raj Goyal And Another on 14 February, 2012
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR-7649-2010 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CR-7649-2010 (O&M)
Date of decision:14.02.2012
M/s Bharat Electricals through its partner
Superinder Kumar and another ...Petitioners
Versus
Dr. Sukhdev Raj Goyal and another ...Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Arun Jain, Senior Advocate, with
Mr. Jaivir Chandail, Advocate, for the petitioners.
Mr. M.L.Sarin, Senior Advocate, with
Ms. Hemani Sarin, Advocate, for the respondents.
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RAKESH KUMAR JAIN, J.
The tenants are in revision against the order of eviction passed by the learned Rent Controller dated 06.09.2010 on an application filed by the landlord under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 [for short "the Act"] in respect of a shop and godown which forms part of a residential house bearing Municipal No.5095, situated in Tehsilwali Gali, Bathinda.
In brief, the landlord filed a petition under Section 13-A of the Act alleging therein that he is the owner of the demised premises which fell to his share in a family partition and was let out to the petitioners- tenants for commercial purposes and since he has retired from the service, therefore, he requires the demised premises for his personal use and occupation.
The tenants filed an application under Section 18-A of the Act which was allowed on 16.12.2008 and were granted permission to file written statement. In reply, the ownership of the landlord and tenancy were admitted. It was admitted that the demised premises forms part of the residential house, but it was contested that an application under Section 13-A of the Act is not maintainable in respect of a commercial CR-7649-2010 (O&M) [2] :::::::::
property as under the said provisions, the landlord could recover possession only of a residential building or a scheduled building for his own use and occupation. However, the learned Rent Controller allowed the eviction petition.
At the time of notice of motion on 29.11.2010, this Court had passed the following order:
"Mr. Arun Jain, Senior Advocate assisted by Mr. Sunil Sharma, Advocate, appearing on behalf of the petitioners, has referred to the headnote of the impugned judgment and has stated that one room in the front along with the store abutting it, in a residential building was let out for commercial purposes. Learned counsel has further stated that right from the inception of tenancy, the tenanted premises was used for commercial purposes, hence, Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as, 'the Act') cannot be invoked. In support of this contention, learned counsel has relied upon 'Anima Biswas v. Gurbachan Singh' 2010(2) RCR 417; `Group Captain (Retired) Satish Parshad Garg v. Chander Bhan and another' 2010(2) HLR 267; `Krishan Kumar v. Shiv Kumar Suri' 2010(2) HLR 270; `Nahar Singh v. Surjit Singh' 1989(2) RCR 20; `Gurbax Singh v. Kuldeep Singh' 1990 (1) RCR 700; and `Sudarshan Kumar Bhatia v.
Dharam Pal Sharma' 2009(1) RCR 279.
Learned senior counsel, very fairly has also brought to my notice two judgments of this Court, viz. `Bachan Lal v. Yogeshwar Lal Mehta' 2006 (2) RCR 395 and `Harjit Singh v. M/s Daya Ram Sat Narain' 2003(1) RCR 270, wherein a contrary opinion was expressed. It was held that if the shop is an integral part of the residential house, then section 13-A of the Act can be pressed into service.
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Learned counsel has further stated that a similar controversy, arising out of a case pertaining to the State of Haryana, has been referred to a Larger Bench. It is stated that in Civil Revision No.3690 of 2007 titled as `Vinod Kumar Jain v. M/s Harindra Scientific Works' a reference has been made to the Larger Bench by a Single Bench of this Court on 14th December, 2009. Learned counsel has stated at bar that still that reference is pending and has not been decided. Learned senior counsel has further stated at bar that section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and section 13-A of the East Punjab Urban Rent Restriction Act, 1949 are same. Learned counsel has further stated that while making reference, the Single Bench of this Court has relied heavily upon `Harbilas Rai Bansal v. The State of Punjab' 1996(1) PLR 227, to notice the contention that the distinction between residential and non-residential building, in case of personal necessity, no longer survives.
Issue notice of motion.
At this stage, Mr. Ashok Sehgal, Advocate, who is present in the Court, accepts notice on behalf of the respondents.
List along with Civil Revision No.3690 of 2007 ion the date fixed in that case.
Meanwhile, dispossession of the petitioners- tenant is stayed."
Thereafter, the following order was passed by the Division Bench of this Court on 18.05.2011:
"The present petition has been placed before us on a reference to the Larger Bench made by the learned Single Judge of this Court on 29.11.2010 in respect of the question, whether a tenant from a CR-7649-2010 (O&M) [4] :::::::::
non-residential building can be evicted in terms of Section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
In aforesaid Civil Revision No.3690 of 2007, it has been decided that in terms of Section 13-A of the Haryana Urban (Control of Rent and Eviction) Act, 1973, the tenant of the non-residential building can also be evicted on the grounds of personal requirement.
However, the question in the present case is, whether the premises in possession of the petitioner is a part of residential building, from which he can be evicted in terms of Section 13-A of the East Punjab Urban Rent Restriction Act, 1949.
In view of the said fact, the matter be placed before the learned Single Judge on 02.06.2011for decision in accordance with law."
The only argument raised by learned counsel for the petitioners is that the application under Section 13-A of the Act is not maintainable for recovering possession of a non-residential building. It is submitted that the demised premises is a segregated portion of the main building, it was let out as a shop and till date it is being used as such. It is further submitted that the demised premises has no access to the rest of the building from its hind portion as is evident from the site plan Ex.P5 in which no door has been shown which could integrate the demised premises with the rest of the building and no material has been brought on record that there is any zoning plan in the area concerned or the main building was constructed after getting the site plan sanctioned from the municipal committee concerned. He also submitted that if this revision petition is allowed, even then, right of the landlord to recover possession would be lost as he still can file a petition under Section 13 of the Act, but he cannot be allowed to proceed with the petition under Section 13-A of the Act which clothes the landlord with a special benefit of summary procedure because in that circumstance, the tenant looses his right of appeal and could prefer only a revision before this Court.
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In support of his submissions, learned counsel for the petitioner has relied upon the following decisions:
1. Sudarshan Kumar Bhatia v. Dharam Pal Sharma, 2009(1) RCR 279;
2. Anima Biswas v. Gurbachan Singh, 2010(2) RCR 417;
3. Nahar Singh v. Surjit Singh, 1989(2) RCR 20;
4. Gurbax Singh v. Kuldeep Singh, 1990(1) RCR 700;
5. Smt. Savinder Kaur v. M/s Pindi Paint Stores Agency, 1996(2) RCR 611; and
6. S. Narinder Singh and another v. Manohar Singh and others, 2011(3) RCR (Civil) 396.
In reply, learned counsel for the respondent-landlord has submitted that the demised premises forms part of the residential house which fell to the share of the landlord in a family partition by way of a decree. The landlord had retired on 31.12.2008. The main residential building has been partitioned between the brothers in such a manner that the landlord has left with only 1-½ feet passage to enter his residential portion because of which the entire residential portion has become un-useable. He further submitted that it is admitted by the tenant that the demised premises is part of the residential house and as such, nothing is required to be proved. It is submitted that there was an entrance to the main building from the back portion of the demised premises when it was let out in the year 1985 but it was closed on 22.06.2008 and the eviction petition was filed on 08.08.2008. He has also referred to the statement of RW1 Rajesh Gupta who has stated in his affidavit Ex.RW1/A that he had visited the shop in dispute many times and had seen a door which was connected with the remaining hind portion of the building. He has also referred to the statement of Kanwaljit Singh RW2, who has averred in his affidavit Ex.RW2/A that there is no independent door or passage to enter the demised premises except through the door from the workshop of the tenant, after the construction of the intervening wall, which divided the main building No.5095 in the year 2001. He has also made a reference to the statement of Suprinder Kumar (RW5) who has stated in his affidavit Ex.RW5/A that the landlord had not only forcibly evicted the tenant from the hind portion of the demised building but had also closed it by raising a brick wall. In CR-7649-2010 (O&M) [6] :::::::::
support of his submissions, learned counsel for the respondent-landlord has relied upon the following decisions:
1. Bhagat Singh Sodhi v. Union of India, 2003(2) RLR 409;
2. Rajinder Kumar v. Niranjan Lal and another, 2007(1) PLR 443;
3. Tejinder Singh Jaggi v. Rajiv Chopra (died) through LRs and others, 2009(2) RCR 18;
4. Hem Raj v. Ramesh Kumar Khosla, 1994(2) CLJ (C, Cr. & Rev.) 495; and
5. Bal Krishan v. Krishan Kumar Gupta & Anr., 1997(2) CLJ (C, Cr. & Rev.) 4.
In reply, learned counsel for the petitioners-tenants has submitted that insofar as the question of access to the main residential building is concerned, the partition between the brothers took place in the year 2001, much prior to the filing of the eviction petition but at that time the landlord did not care for keeping sufficient passage for the purpose of entrance to his house. Secondly, it is not the case of the landlord in the eviction petition that there was an access to the main residential house from the demised premises as no door has been shown even in the site plan Ex.P3 which ultimately separates the demised premises from the main building and that the judgments relied upon by learned counsel for the landlord deciding the issues involved under the Haryana Urban (Control of Rent and Eviction) Act, 1973 [for short "Haryana Act"] are not applicable to the facts and circumstances of the present case. It was, thus, argued that the impugned order is patently illegal and liable to be set aside.
I have heard both the learned counsel for the parties and perused the record with their able assistance.
The following are the facts of this case:
i) That the landlord is the owner of the demised premises;
ii) The landlord had let out two rooms for non-
residential/commercial purposes forming part of the residential house having an opening in the street and having no access from the hind portion to the main building;
CR-7649-2010 (O&M) [7]
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iii) There is no sanctioned plan either of the residential house or of the shop in question;
iv) There is no zoning plan of the area concerned; and
v) In the eviction petition, it is not the case set up by the landlord that there was an access to the main building through the hind portion of the demised premises nor the access has been shown in the site plan Ex.P3. The hind door was closed on 22.06.2008 and the eviction petition was filed on 08.08.2008.
Now, the question involved in this case is as to "whether the demised premises, which forms part and parcel of the main residential building having no access to the main building from its hind portion and is admittedly let out and being used for commercial purposes, is a commercial building and can be got vacated by the landlord by moving an application under Section 13-A of the Act".
Taking up the judgments cited by learned counsel for the petitioners at the first instance, in Sudarshan Kumar Bhatia's case (supra), which also pertains to a petition filed under Section 13-A of the Act, the following observations were made by this Court:
"6. From the above section, even as the title to the Section makes it clear, it deals with right to recover immediate possession of residential or scheduled building (underlining mine). It is an admitted case that it is not a scheduled building as defined under the Act. The only question is whether the property could be availed by a person who seeks to recover immediate possession of residential building. Since Hari Mittal's case (supra) referred to a portion of a residential building used for a non-residential purpose, which use was impermissible by the application of the restrictions of user under the relevant development rules, there was no difficulty for the Court to treat the property in possession of the tenant as a residential building to entitle a landlord to secure eviction. If on the other hand, CR-7649-2010 (O&M) [8] :::::::::
the use of a portion of the building is admitted to be for a non-residential purpose and there is no prohibition in the local laws or regulations to prohibit such a user, it is a moot point if the landlord would be entitled to secure eviction under Section 13-A. Both the parties have placed authorities to support their respective contentions."
Ultimately, the conclusion was drawn as under:
"10. The law laid down by this Court in Dr. Jagjit Singh Mehta v. Dev Brat Sharma, 1988(1) RCR (Rent) 308: 1987 HRR 680 as confirmed by the Hon'ble Supreme Court in 1990(2) AIRCJ 431 comprehensively answers the issue at hand and in view of the specific decision of Hon'ble Supreme Court on the subject, I uphold the contention of the revision petitioner and set aside the order of the Rent Controller. To postulate the correct proposition, I am to state that Section 13-A of the Act could be attracted only if any portion of the building or building in the hands of a tenant is for residential purpose. If the property is let for non-residential purpose and such user is not prohibited in terms of any zoning requirement, the application under Section 13-A cannot avail to the "specified landlord"."
In Anima Biswas's case (supra), the petition was filed under Section 13-A of the Act. The issue was of bona fide requirement of the landlord in respect of two rooms in residential building let out to tenant for running clinic which were never used for residential purposes. While dealing with Section 2(a) of the Act, this Court had observed as under:
"9. From the definition of building as provided under Section 2(a) of the Act, it can safely be said that building means, any building or part thereof let out for any purpose whether being actually used for that purpose or not in the opinion of this Court, from CR-7649-2010 (O&M) [9] :::::::::
the definition of building any part of the building let out shall be construed as separate building, hence these two shops (called as rooms by the landlord) let out separately fall within the definition of building under Section 2(a) of the Act. From the definition of non-residential building as defined under Section 2(d) of the Act, I find that the demised shops (rooms) are non-residential building in view of the fact that the same were let out and are being used from the very inception for medical practice (clinic) and because shops are having no opening towards the main building and have opening towards the market only. From the definition of Section 2(g) of the Act, I find that it is not a residential building since it falls within the definition of non-residential building as defined under Section 2(d), as observed hereinabove."
The conclusion was drawn in para no.14 of the judgment, which reads as under:
"14. Undisputedly, the area where building is situated could not be proved to be residential zone by placing any scheme, notification, house tax assessment register. Rent receipts issued by the father of the landlord and thereafter by the landlord, contain that rent is being received for two shops. The demised premises was let out initially for non-residential purpose i.e. to run clinic and part of which was never used for residential purposes, hence, in my view, demised premises shall fall within the definition of non-residential building and shall not be subject matter of Section 13-A of the Act."
In Nahar Singh's case (supra) and in Gurbax Singh's case (supra), a similar view was taken by this Court, whereas in Smt. Savinder Kaur's case (supra), it was held that a specified landlord CR-7649-2010 (O&M) [ 10 ] :::::::::
cannot evict a tenant from the non-residential premises. In S. Narinder Singh and another's case (supra), which was a case filed under Section 13-A of the Act, this Court had made the following observations:
"In this regard, it is held that if some portion of a residential building, which is converted into a shop and is let out for non-residential purposes, is having no access from its backside or any side to the main residential building and has only one opening towards the main market, then it would be essentially a building used for a non-residential purpose in the residential building and would be a separate unit/building for the purpose of the landlord to seek eviction of the tenant for non- residential purpose and not for residential purpose.
23. Secondly, if there is a zoning or a scheme or there is a prohibition for using a building for non- residential purpose in a residential, then a part of the said building even if it is not used for any residential purposes, would remain residential building.
24. Thirdly, if the building is essentially constructed pursuant to a plan sanctioned by a Competent Authority as a residential building and the shop carved out is not constructed on the basis of a sanctioned plan, then the very nature of the building would remain residential."
In Bhagat Singh Sodhi's case (supra), relied upon by learned counsel for the landlord, which was a case under Section 13(3)(a)(i) of the Haryana Act, the building was residential at the time when it was rented out by the landlord to the Union of India for running a post office and there was nothing on record to show that any permission was obtained for converting the residential building into a non-residential building. It was, thus, held that the building would continue to be a residential building and the landlord would be entitled to seek ejectment of the tenant on the ground of personal necessity.
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In Rajinder Kumar's case (supra), the petition was filed by the landlord under Section 13(3)(a)(i) of the Haryana Act against the tenant from a shop on the ground of personal necessity, this Court, while relying upon various judgments, has held that the personal necessity of the landlord could also be extended to the non-residential premises.
In Tejinder Singh Jaggi's case (supra), which pertains to an application filed under Section 13(3)(a)(i) of Haryana Act, it was held that if there are zoning regulations, building be understood as a residential building or non-residential building depending on how the zoning regulations exist, but if the zoning regulations do not exist, the building must be understood as how it was built in the first place and how it was used in area or the purpose of letting though of some value can never be decisive.
In Hem Raj's case (supra), the petition under Section 13-A of the Act was filed in respect of a room in the residential premises and it was held that if the room is an integral part of the main residential building, then it would remain the residential building and an application under Section 13-A of the Act would be maintainable.
In the case of Bal Krishan's case (supra), the petition under Section 13 of the Act was decided on the ground of admission on the part of the tenant that the demised premises is a part of the residential building. It was held that since it is a part of the residential building as admitted by the tenant, therefore, it was not open for him to allege that the landlord cannot got it vacated on the ground of personal necessity.
As per the case of the landlord, the tenant is in possession of the demised premises since 1985. The partition between the brothers took place in the year 2001, pursuant to which a partition wall was erected in between the main entrance leaving a passage of only 1- ½ feet for the landlord to his residential house, but he has averred in para No.10 of the eviction petition that "after the partition of the house, a wall was constructed in the center to demarcate the shares of two brothers. The entrance to the share of petitioner was from the front side, which is in possession of respondents at present". It is not understood as to how after 2001, the landlord was entering his house through the shop of the petitioners-tenants and how had he used the said entrance even during the night time when the shop was closed by putting shutter by the CR-7649-2010 (O&M) [ 12 ] :::::::::
tenants. It is evident that the landlord was never using the entrance to the main building through the shop of the petitioners-tenants which was rather closed by him on 22.06.2008 much prior to the filing of the eviction petition. The question is, thus, when the eviction petition was filed on 08.08.2008, there was no access to the main residential building through the demised premises (shop). The Court is to take into consideration the position of the demised premises at the time of the filing of the eviction petition. If there was no door in the hind portion of the demised premises when the petition was filed, then it has to be essentially accepted that it was segregated portion of the main building and was an independent unit falling within the definition of a building itself in terms of Section 2(a) of the Act being part of the building and was exclusively used for non-residential purposes.
In this view of the matter, the decision relied upon by learned counsel for the petitioners in S. Narinder Singh and another's case (supra) is fully applicable in the present case.
It is thus held that the demised premises is a separate building having no access to the main building and is not a residential building and since it was let out for non-commercial purpose, therefore, the application of the landlord under Section 13-A is not maintainable. Hence, the revision petition is allowed and the impugned order is set aside.
February 14, 2012 (RAKESH KUMAR JAIN) vinod* JUDGE