Sh. Tejinder Singh Jaggi vs Sh. Rajiv Chopra (Died) Through Lrs And ... on 20 April, 2009

[Cites 20, Cited by 2]

Punjab-Haryana High Court

Sh. Tejinder Singh Jaggi vs Sh. Rajiv Chopra (Died) Through Lrs And ... on 20 April, 2009

1. The landlord's petition for eviction was filed under Section 13 (3) (a) (i) of the East Punjab Urban Rent Restriction Act, 1949 seeking for eviction of the tenant on the ground that he required it for his own occupation and that he was not occupying any other residential building in the urban area concerned nor had he vacated any such building without sufficient cause. The contest was essentially on the ground that the property was let out as a shop and as such the landlord was not entitled to seek for eviction on the ground of his personal need for his residential accommodation. The Rent Controller and the Appellate Court took similar views upholding the landlord's contention that the property that had been let was residential building. The entire Civil Revision No. 5527 of 2001 -2- focus of argument before this Court by the tenant was the maintainability of the petition namely that a building let for non- residential purpose could not be sought for eviction for the personal need of the landlord for his own residential occupation. This revision raises the question and seeks a solution when the building in occupation of a tenant is perceived to be a part of a larger building and where there exists no zoning requirement in the 'urban area'. II. The tenant's contention: Purpose of letting the only consideration:

2. The respective senior counsel appearing on behalf of the tenant and the landlord have placed extensive reliance on the decisions that hold two divergent views. While the tenant would contend that it is the purpose of letting, the nature of user of the building, the locality where it is built etc. that would determine whether the building was residential or non-residential, the senior counsel for the landlord laid an emphasis on the structural integrity of a building that is let, which if it is a part of a larger construction which is used for a residential or non-

residential purpose, it is a nature of user of the larger building of which the demised premise is a part would determine the nature of building, regardless of the actual purpose for which it was let. To set of decisions cited on behalf of the tenant, there is a counter point and every decision that is cited by the senior counsel for the landlord has a forceful response in the attempt to distinguish it by the senior counsel for the tenant. The forensic skills of the respective senior counsel was never in doubt but in every judicial approach to ultimately arrive at a just conclusion, there are three aspects that stand out: (i) the strength of the precedent value of the authorities cited by the respective counsel; Civil Revision No. 5527 of 2001 -3-

(ii) the factual context under which the decisions were rendered to understand how the law evolved out of a given set of situations and

(iii) consistency in approach without committing violence to the legislative intent approached through express provisions of law. III. The landlord's contention: The entire structure is residential building:

3. The landlord has never been in a state of prevarication. The entire petition is grounded on a clear statement that whole of the house bearing No.B-1-171 (old) and B-1-1344 (new) situate at Mazahar Hussain Road, Ludhiana was purchased as a residential house in auction and the construction was also raised only as a residential house from the beginning. It had been previously rented out to one Varinder Kumar son of Sh. Radhakrishan for a residential purpose and only a few years prior to the institution of the petition that is 1990, a portion of the building was partitioned comprising of an extent of 16 ½'x10 ½ ' at Mazahar Hussain Road and rented out to two persons, one to Tejinder Singh, who is the tenant contesting the landlord's petition here and another to a tenant by name M.M. Sharma. The admitted case is that the tenant was putting it to a non residential use of selling meat.

The bona fides of the requirement of the landlord as set out in the petition are that the landlord is facing a threat of eviction in the house in which he is presently residing at Chandigarh and the son of the petition Ravi Chopra has also shifted to the residential portion of the building namely B-I-1344 at Ludhiana According to landlord, there were three rooms in occupation and it was hardly sufficient for the petitioner and his family. During the course of the proceedings, the landlord has died and his legal representatives namely his wife and Civil Revision No. 5527 of 2001 -4- children have been impleaded as parties. The two Courts below have considered the issue on the perspective of the landlord's requirement as set out in the petition and the evidence placed before it to come to the conclusion that the landlord's requirement was bona fide. The concurrent findings recorded by the Courts below on adequate materials require no interference and I propose to examine the case only with reference to the legal submissions made by the respective senior counsel about the maintainability of the petition for the use of the landlord for residential purpose when the letting of the property had been for establishing a shop, which is a non-residential purpose. IV. Statutory definition of 'building', 'non-residential building' and 'residential building:

4. The provision under which the landlord has sought eviction is under Section 13 (3) (a) (i), which reads as under:-

"A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession -

(i) in the case of a residential [***] building if -

(a) he requires it for his own occupation.

(b) he is not occupying another residential [*****] in the urban area concerned, and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area;

(d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased, whether before or after the commencement of this Act, to Civil Revision No. 5527 of 2001 -5- be in such service or employment;

Provided that where the tenant is workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord."

5. The only requirement for the said section to apply is the fundamental requirement that it shall be a residential building. If the property is to be found as the residential building, it is indisputable that the landlord could obtain eviction for his own occupation. If building is a non-residential building, the provision that would apply would be 13 (3) (a) (ii), which sets out in a similar fashion that the landlord was not occupying for the purpose of his business any other non-residential building or he had not vacated any such building without sufficient cause.

6. That the term 'residential building' itself has to be understood from two definitions covered under Section 2 of the Act namely of the "building", which is defined under Section 2 (a) to mean "any building or part of a building let for any purpose whether being actually used for the purpose or not ................." The definition under Section 2 admits of situation that it is "unless there is anything re-beginning through the subject or content...............". Since the definition refers to a "building" that could be used for any purpose, the question whether it is actually Civil Revision No. 5527 of 2001 -6- used for such purpose or not undermines the value of how the tenant had used it. A residential building, which is authorized for a residential purpose but used by the tenant for a non-residential purpose may not change the character of the building itself although it may attract some other provision of law and give to a landlord an action for eviction for unauthorized change of user. It may still have other consequences such as what is interdicted under Section 11 of the East Punjab Urban Rent Restriction Act, 1949, where be he a landlord or tenant, no person shall convert a residential building into a non-residential building except with the permission in the writing of the Rent Controller. This section has a bearing to development regulation which may stipulate a particular mode of user in a particular zone and the ultimate arbiter when a conversion is sought shall only be the Controller to allow for such conversion.

7. From the definition of 'building', if one launches into an enquiry as to what constitutes the character of building, Section 2(d), while defining "non-residential building" states it to mean "a building being used solely for the purpose of business or trade, provided that residence in a building for the purpose of guarding, it shall not be deemed to convert a non-residential building to a residential building." Here it would mean that in order that building becomes a non- residential one, it shall be used solely (emphasis mine) for the purpose of business or trade. The term "residential building" is in the nature of a residuary definition in that. Section 2(g) states that "any building which is not a non-residential building." In its proper construction and inference, it would mean a building is residential if it is not solely for Civil Revision No. 5527 of 2001 -7- the purpose of business or trade.

V. In places zoning regulations exist, they constitute the only test:

8. In cases where there are zoning requirements of particularizing a building either for residential or non-residential purpose, the aid to statutory definition assumes less significance for whatever be the actual mode of user, it shall be location of the building that would determine whether it is residential or non-residential.

9. The example is best illustrated through a decision of this Court in Hari Mittal Vs. B.M.Sikka 1986(1) P.L.R. 1 where the Full Bench was considering the issue of a landlord's petition under Section 13A of the East Punjab Urban Rent Restriction Act and to a case building situate within the limits of Chandigarh. Evidently it was the case where the landlord was seeking for eviction for a residential purpose used by a tenant for a non-residential purpose. There the Full Bench was dealing with the case of a portion of the building used for non-residential building but which use was impermissible by the application of the restriction of user under the relevant development rules. Therefore, the Court had no difficulty in ordering eviction for the residential need of the landlord, notwithstanding the fact that the tenant had used it for a non-residential purpose.

VI. Consideration of the nature of whole building-the origin of judicial approach:

10. Several decisions of this Court and the Hon'ble Supreme Court abound as regards instances, such as the landlord's complaint for change of user, which was unauthorized, are when a portion that is let out in the hands of a tenant was really a slice of a larger building and Civil Revision No. 5527 of 2001 -8- the landlord required it for eviction when one or the other portion of the remaining was unfit and unsafe for human habitation and when the landlord referred to the condition of the building as a whole as being relevant for consideration for obtaining eviction, regardless of whether the particular portion in which the tenant was in occupation was unfit or unsafe or not. The Courts have swung between two extremes of considering whether a portion which is a part of the whole being connected with the remaining or not. Certain legislation of other States, which provide for "additional accommodation" have always approached the issue of this requirement from the stand point whether the portion that is in the hands of a tenant is in some way connected with the remaining, in which the landlord was in occupation, to merit a consideration of additional accommodation. From the very nature of the requirement as being additional, Courts have approached the issue from the stand point that an addition must be in the nature of an appendage. An appendage must be proximate to the portion that is in the hands of the landlord. A building that is disjoined either structurally or by distance has been taken as relevant for consideration whether a provision for additional accommodation could be invoked or not.

VII. Divergent views: purpose of letting or nature of building

11. A judicial dent that has been made over a period of time is as regards consideration of what is to happen if a building is to be treated as a part of a larger integrated structure. Then, it is the predominent use of the rest of the structure that would determine even the character of its sub-set, regardless of the purpose to which the letting was made. Civil Revision No. 5527 of 2001 -9- There are decisions on both sides of equal value, which I shall set forth only to show that Courts have prevaricated between the two extremes but an ultimate decision is not left without adequate guidance. The guidance comes through the decision of the Hon'ble Supreme Court itself. Now the decisions of this Court that represent the two differing views:

(a) The paradigm case

12. The first line of decisions are of what are cited by learned counsel for the revision petitioner. The several decisions of this Court shall be understood in the context of the earliest ruling that set down the paradigm in Attar Singh Vs. Inder Kumar AIR 1967 SC 773 where the Hon'ble Supreme Court was dealing with the case of a non- residential building and admittedly so when the petition had been filed under Section 13 (3) (a) (ii), the question that arose before the Hon'ble Supreme Court was whether the expression of the words "for his own use" employed in the sub-section ought to be read as being qualified by sub clauses (b) and (c), which refer to the landlord as requiring the premises for trade or business. The Hon'ble Supreme Court said that it ought to be interpreted as being complementary provisions being not mutually exclusive and therefore, the words "for his own use" must be understood for the use which the sub-clauses (b) and (c) dictated that it shall be for trade or business. The corollary could also be inferred from this decision that if the landlord shall require the residential building, it could be only for residential purpose the manner in which Section 13 (3) (a) (i) refers to and which provision has been extracted above.

Civil Revision No. 5527 of 2001 -10-

(b) Purpose of letting as determinent

13. The area of difference that arises from the decisions of this Court in M/s K.G. Industries and another Vs. Joginder Singh of Ludhiana 1991 HRR 172 , Gurbax Singh of Chandigarh Vs. Kuldip Singh of Ludhiana 1990 HRR 249, Balwant Singh Vs. Gurdip Singh 1993 HRR 560. In the first these cases, Hon'ble Mr. Justice V.K. Jhanji referred to three instrances as determining: (i) whether a building was residential or non-residential namely of purpose of letting; (ii) location of the building, which is either predominently residential or non-residential and (iii) inter-connection of the portion let with the remaining portions retained by the landlord. The same approach was attributed by some of the latter decisions of Hon'ble Mr. Justice Hemant Gupta in Dinesh Kumar Vs. Ram Singh and others 2006 (1) RCR 182, and a decision of Hon'ble Mr. Justice D. V. Sehgal in Dr. Jagjit Singh Mehta Vs. Dev Brat Sharma 1988 (1) PLR 154, which was affirmed by the Hon'ble Supreme Court in Dev Brat Sharma Vs. Dr. Jagjit Mehta 1990 (2) RCJ 431. In the decision in Dev Brat Sharma, the issue which was really taken up in a complaint by a landlord was as regards a change in user of the building and not really in a case of personal necessity of the landlord. However, the High Court decision, which was affirmed by the Hon'ble Supreme Court was adverting to a factual situation of the portion in the occupation of a tenant being a part of larger structure but which portion had, however, been disconnected from the remaining portion by closing a door way and converting it into an almirah from the tenant's side. Another decision that again considered the issue of the actual Civil Revision No. 5527 of 2001 -11- letting and the location of the building surrounded by commercial and non-residential buildings as determinent of the nature of building was examined by Hon'ble Mr. Justice N.K. Kapoor in Jagdish Rai Gupta Vs. Om Parkash 1991 (2) RLR 323. In all these decisions, the Courts have examined the issue from the three parameters referred to above to determine whether a building is a residential or a non-residential one. In cases where the letting was for a non-residential purpose, it was taken to be a non-residential building and that the landlord would not be entitled to secure eviction for his own residential needs.

14. These decisions find the very ante-thesis through the citations referred to by the learned senior counsel appearing for the landlord-respondent. A Division Bench of this Court held in Sardarni Sampuran Kaur and another Vs. Sant Singh and another 1983 PLR 449 that a building partly occupied by a tenant and partly occupied by a landlady could be sought for eviction by the landlady if a portion occupied by the landlady had become unsafe for human habitation without reference to what the nature of the building in the hands of the tenant, on a consideration of the fact that if a substantial portion of the integrated larger building had become unsafe and unfit, the tenant could be ejected from his part despite the fact that the particular portion in his occupation may not have become unsafe or unfit. This decision could be seen to be not merely arisen from the landlord's requirement for personal need but while examining the issue of what should be understood as a part of the integrated whole. Sujan Singh Vs. Sohba Nath 1982 PLR 615 addressed this very position of a landlord's Civil Revision No. 5527 of 2001 -12- requirement for his residential need when a small portion of the residential building had been let for a business purpose. This Court had held that the word 'building' as used included the integrated larger building as a whole rather than a part of building demised to a particular tenant.

15. The learned senior counsel appearing for the tenant immediately wanted to contend that this was no longer good law in view of the decision of the Hon'ble Supreme Court in Dev Brat Sharma's case (supra). As already pointed out that Dev Brat Sharma's case dealt with an issue of eviction on the ground of portion of a building being rendered unfit and unsafe for human habitation and did not directly deal with the situation that we have at hand.

16. Yet another judgment rendered in Pritpal Singh Vs. Devinder Kumar and another 2008 (3) RCR (Civil) 323; 2008 (3) PLR 342 was where this Court found that the shop carved out of a residential building would constitute one unit and be considered residential building if the remaining portion of the whole was used for residential purpose. The landlord in such a case would be entitled to eviction from the shop, although the requirement of the landlord is for residential purpose. While so holding the learned Judge referred to the testimony of a draftsman that the shop was a part of the residential building and constituted one unit. The reference to this judgment is again stoutly opposed by the learned senior counsel appearing for the petitioner pointing out that the judgment had been rendered without reference to the weight of the authorities that he was relying upon in support of the tenant's case. Rajinder Kumar Vs. Niranjan Lal and Civil Revision No. 5527 of 2001 -13- another 2006 (4) RCR (Civil) 840 addressed a similar issue of a room in a residential building being let out as a shop could not become a commercial building and the landlord would be entitled to evict a tenant from the said room for bona fide requirement for residence. While so holding the learned Judge referred to the decisions in M/s K.G. Industries and State Bank of Patiala case referred to by the tenant but still held that the landlord was entitled to obtain eviction by a consideration of the fact that the shop was to be merely treated as a portion of the larger residential building and that it could not be treated as an independent unit.

VIII. Solution to the vexed question-The Hon'ble Supreme Court judgement shows the way:

17. The key to the whole enigma seems to be available with the decision of the Hon'ble Supreme Court in Busching Schmitz Private Ltd. Vs. P.T. Menghani and another AIR 1977 SC 1569. There, the Hon'ble Supreme Court was dealing with the case under the Delhi Rent Control Act, which provided under Section 14-A a right to recover immediate possession of premises for a residential purpose where the resistence to eviction was made on the ground that premises were let out for residential-cum-commercial purpose. The Hon'ble Supreme Court refused leave to defend on the ground that the purpose of lease was not decisive of character of accommodation. This is precisely the issue before us. Could a building be termed as residential or non- residential by the only fact that the property is let for residential or non- residential purpose? As I have stated already where the development regulations constitute a particular zone where the building is situate to be either residential or non-residential, the purpose of actual letting Civil Revision No. 5527 of 2001 -14- loses significance, for building cannot assume a character to hold differently from how the zoning requirements stipulated for. The absurdity of the situation was pointed out by the Hon'ble Supreme Court by referring to situations where even public property like bridges and roads could be used by poor persons for residence and by such user a public property could never become a residential place. The Hon'ble Supreme Court said "residential premises are not only those which are let out for residential purposes. Nor do they cover all kinds of structures where humans may manage to dwell. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'.........." "A building which reasonably accommodates a residential user is a residential - accommodation and nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The 'purpose test' will enable officers who own houses to defeat the Government by pleading that they do not own residential premises because the lease is for commercial use, built though it was and suitable though it is, for residence. Similarly the 'possibility test' may make nonsense of the provision." The Hon'ble Supreme Court was actually referring to a particular provision of the Delhi Rent Control Act in its reference under Section 14 (1) (e) where the Act had employed the expression 'premises let for residential purposes', thus investing the purpose of lease with special significance. The deliberate omission of such words under Section 14-A that gave right to immediate possession of the premises, the Hon'ble Supreme Court found to be significant. Civil Revision No. 5527 of 2001 -15- IX. The logic of Hon'ble Supreme Court judgement applied to a common-sense approach:

18. By the same construction of logic, it could be seen that the legislature has not employed, while dealing with the case of right of a landlord applying for eviction under Section 13 (3) (a) (i) that it does not refer to the purpose of letting but on the other hand, it talks about merely a 'residential building'.

19. What then is the test? It ought to appeal to common sense that a building must be understood as a residential building or non- residential building depending on how the zoning regulations exist. If they do not, the building must be understood as how it was built in the first place and how it was used in the first place. The location of the building in a residential or non-residential area or the purpose of letting though of some value can never be decisive. To consider whether a particular portion let is a part of a larger whole used for a different purpose cannot again be considered only by the fact that whether an access to a smaller unit is possible from the remaining portion of the larger building. The learned senior counsel appearing for the petitioner would seek to urge that the shop contained no kitchen. It had no dining room. It had no drawing room and hence, it could not be a residential building. Each unit of a building wherever it falls for consideration whether it is residential or non-residential could not be vivisected from the rest and put through a test whether such portion of the building contains kitchen, dining room or drawing hall to assign to it an appellation that it is a residential building. On the other hand, the test is by an approach to common sense whether the property let is structurally integrated to the remaining and not by the fact that the door Civil Revision No. 5527 of 2001 -16- way is closed and an almirah is fitted. A structurally integrated building could never lose its predominent character by the fact that an access to the portion which is used as a shop could not be done from the rest of the building otherwise than through its entrance facing the road. It cannot simply, under such a circumstance, cease to be a part of the building. If physical proximity is the only relevant issue, how would one regard a garage constructed within the same compound but separated from the rest of the block of the residential portion? There the fact that the entire structure including the garage may fall within a single compound or how it could be seen as an appendage to the remaining would answer the test. This is merely to illustrate that even a lack of a conduit or passage from any other portion other than the portion facing the road or entrance to go to the remaining portion of the residential building cannot answer the test.

X. Disposition in the case:

20. In my view, the purpose of letting or the location does not always hold the answer to whether it is a residential or non-residential. In the absence of zoning regulations, the only ground is the way the Section itself has been defined in a residuary sense. Whenever the building is not solely used for non-residential purpose, it shall be taken as a residential building. It had been brought out in the petition itself that the property was conceived and built as a single residential house. It had been used and rented out in the whole as a residential building. Subsequently a partition had been made when two portions abutting the road had been let out as shops. By such letting, they had not ceased to be portions of the residential building. The requirement of the landlord Civil Revision No. 5527 of 2001 -17- for a residential purpose of the premises, although used for non- residential purpose by the tenant, perfectly conforms to law. I add an immediate caveat as a reminder: This proposition is applied when the building in the occupation of the tenant is contended to be a portion of a larger structure and there exists no zoning regulation. The decisions rendered by the Courts below, under the circumstances, are fully justified and the revision petition is without merit. The revision petition is accordingly dismissed but there shall be no order as to costs. Time for eviction four months.





                                                   (K. KANNAN)
April 20, 2009                                        JUDGE
Pankaj*

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Punjab-Haryana High Court