Punjab-Haryana High Court
Mrs. Raj Rani And Ors. vs Santosh Awasthi on 20 March, 1996
Equivalent citations: (1996)113PLR401, 1996 A I H C 3582, 1996 HRR 482, (1996) 1 RENTLR 650, (1997) 1 CURLJ(CCR) 655, (1996) 113 PUN LR 401, (1996) 1 RENCR 467
JUDGMENT R.S. Mongia, J.
1. On January 11, 1983, Smt. Santosh Awasthi, respondent-landlady filed a petition Under Section 13 of the East Punjab Urban Rent Restriction Act, for ejectment of Shri Sat Pal, tenant, from shop-cum-flat No. 15, Sector 22, Chandigarh (for short' SCF'). The grounds for eviction were:
(i) That the tenant had not paid the rent w.e.f. May 1,1979, onwards.
(ii) That the tenant had sublet the Ist floor of the S.C.F., without written consent of the landlady, to the New Bank of India and United Commercial Bank, Sector 22, Chandigarh, by pledging the goods in the said portion.
(iii) That the tenant had caused extensive damage to the building, which had materially impaired the value and utility thereof. The tenant had made structural changes by making additions and alterations in the building. One room had been added on the top floor i.e. Barasati, the back courtyard had been covered with RCC and bathroom and latrine had also been shifted from the main building.
(iv) That the premises in question were let out to the tenant to use the shop portion for commercial purpose i.e. Chemist shop and Ist and IInd floor portions, which are residential, were to be used for purposes of residence. The tenant had changed the user of the premises by using the Ist and IInd floors for commercial purposes after the commencement of the Act.
2. The tenant contested the grounds of eviction and denied the allegations made in the petition by the landlady. However, the arrears of rent at the rate of Rs. 750/- per mensem were tendered on the first date of hearing. The learned Rent Controller after holding that the rate of rent was Rs. 750/- per mensem came to the conclusion that the tender of the arrears of rent made on the first date of hearing was valid and, therefore, the first ground of ejectment did not subsist. However, the other grounds on which the ejectment was sought for were held to be proved and the ejectment of the tenant from the S.C.F. was ordered. The tenant filed an appeal before the Appellate Authority. The learned Appellate Authority upset the findings of the Rent Controller on grounds (ii) and (iii) i.e. subletting and material alterations impairing the value and utility of the property but upheld the ejectment on the ground (iv) i.e. change of user of the residential portion for commercial purposes. The tenant has come up in the present revision petition. The landlady has also filed a separate Civil Revision Petition No. 324 of 1989 challenging the order of the Appellate Authority regarding the findings on grounds No. (ii) and (iii) above. It may be observed here that during the pendency of the appeal before the Appellate Authority, tenant Sat Pal had died and his legal representatives were brought on record and the present revision petition has been filed by the legal representatives of deceased Sat Pal.
3. Learned counsel for the petitioner argued that the finding recorded by the authorities below regarding the change of user of the residential portion of the S.C.F. for commercial purposes is not supported by evidence. Alternatively, it was argued that in the lease deed, there was no bar to the tenant to use the residential portion for commercial purposes and in any case, if it is proved that there is a change of user, the same had taken place prior to the commencement of the Act (In Chandigarh, the Act had come into force w.e.f. November 4, 1972). The S.C.F. had been taken on rent in 1969 by the present tenant and according to Section 13(2)(ii)(b) of the Act, a tenant can only be ordered to be evicted if the Rent Controller finds that the tenant has after the commencement of the Act without the written consent of the landlady used the building or rented land for a purpose other than the one for which it was leased.
4. Learned counsel for the petitioner took me through the evidence to substantiate his submission that the findings of the authorities below regarding the change of user cannot be sustained. I am of the view that two authorities under the Act having already applied their mind to the finding of fact regarding the change of user by the tenant, there seems to be no occasion to reconsider the finding of fact recorded by the authorities below. In the revision petition, this Court Under Section 15 of the Act would not reappreciate the evidence. However, I find from the perusal of the evidence including the statement of the tenant himself that the finding of fact regarding the change of user is well based. The tenant had admitted in his statement that he has an office-cum-retiring room on the Ist floor and in the cross-examination he also admitted that some stock was lying on the first floor. He further stated that initially, he was staying in the residential portion of the S.C.F. but later on had shifted his residence to a house in Sector 21. A photograph Ex.A-7 was also produced by the landlady to show that in front of the shop portion of the S.C.F., the sign board 'Paul Medical Store' was there and another board on the top floor outside the Barasati portion in the name of Goel Pharma Distributors had been fixed and the tenant was running the business of Goel Pharma Distributors. The tenant further admitted in his cross-examination that the drug licence in the name of Goel Pharma Distributor is of Barsati floor. It was also admitted by Harbans Lal (RW3) witness of the tenant that the family of Sat Pal never resided in the premises in question. Gurdeep Singh (RW5), Drug Inspector, stated that the respondent-tenant was carrying on the business of Chemist on the ground floor of the S.C.F. and it was so mentioned in the application for obtaining licence. M/s Goyal Pharma Distributors are carrying on the business on the first floor and he had inspected the premises in question at least four-five times. The premises were inspected in 1978, 1980 and 1981. From all this evidence, the Rent Controller came to a conclusion that the residential portion on the Ist floor and the IInd floor was being used for commercial purposes i.e. for storing the stocks and running the business of M/s Goel Pharma Distributors. This finding has been upheld by the Appellate Authority. I am of the view that the finding that the residential portion of the premises was being used for commercial purposes is supported by evidence and is well based.
5. Learned counsel for the petitioner then argued that there was no bar in the lease deed that the petitioner could not use the residential portion for commercial purposes. It may be observed here that earlier to the petitioner taking the S.C.F. on rent from the respondent, one Bhagwan Dass was the lessee and a lease deed had been executed between the respondent and Bhagwan Dass tenant. In the lease deed dated January 26, 1969 (Exhibit A-4), which was a lease for a period of five years between the respondent-landlord and Bhagwan Dass, it was mentioned in clause (6) "that the lessee shall have the right to conduct any business in the shop premises on the ground floor but the first floor and Barsati will only be used for residential purposes." Thereafter an agreement was made on July 16, 1969, between the respondent and tenant Sat Pal, which is Exhibit A-6. Clause (10) of the said agreement provides "that the would be-lessee accepts all the conditions mentioned in the lease deed with Bhagwan Dass, the present lessee." Learned counsel for the petitioner argued that after the agreement dated July 16, 1969, Exhibit A-6, a lease deed Exhibit A-5 was executed between the parties on November 24, 1969, in which there was no clause like clause (6) in Exhibit A-4, to which reference has been made above. From this learned counsel for the petitioner argued that there was no bar to the petitioner using the Ist floor and the Barsati portion for commercial purposes.
6. Learned counsel for the respondent, however, argued that it was quite clear and well understood between the parties that the residential portion, i.e., Ist floor and the Barsati portion had only to be used for residential purposes. Moreoever, in the agreement to lease between the parties dated November 24, 1969, Exhibit A-5, in clause 7, it was provided as under:
" The annual repairs and white washing will be carried out by the Lessor. The Lessee will abide by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, and the Rules made thereunder."
Under the provisions of Capital of Punjab (Development and Regulations) Act, 1952, and the Rules made thereunder, the residential portion of the S.C.F. in Chandigarh has to be used only for residential purposes and not for commercial purposes and vice versa the shop portion of the S.C.F. has to be used only for purpose of shop and not residential purposes.
7. After hearing the learned counsel for the parties on the above point, I am of the view that it was well understood between the parties that the residential portion has to be used for residential purposes. Even the previous tenant was to abide by this term. Apart from that, I am of the view that under the Capital of Punjab (Development and Regulation) Act, 1952, and the Rules made thereunder, the residential portion of S.C.F. cannot be used for commercial purposes and vice versa. In the agreement to lease dated November 24, 1969, Exhibit A-5, there was a specific term, which has already been reproduced above, that the lessee will abide by the provisions of the aforesaid Act and the Rules made thereunder; meaning thereby that the residential portion of the S.C.F. would be used as per aforesaid Act and the Rules. In other words, the residential portion had to be used for residential purpose alone. Therefore, it cannot be said that there was no bar to the petitioner to put the residential portion to commercial use.
8. The next argument of the learned counsel for the petitioner was that according to Section 13(2)(ii)(b) of the East Punjab Rent Restriction Act (as applicable to Chandigarh), unless the tenant uses the building for a purpose other than that for which it was leased "after the commencement of the Act" without the written consent of the landlord, the ground of change of user is not available for ejectment. In Union Territory Chandigarh, the Rent Restriction Act was enforced w.e f. November 4, 1972. According to the petitioner, even if it is held that the petitioner had used the premises for a purpose other than that for which it was leased, that change of user had occurred in the year 1969 i.e. prior to the commen- cement of the Act in Union Territory Chandigarh, and, therefore, this ground was not available to the respondent and the ejectment could not be ordered. Learned counsel for the respondent, however, argued that apart from the fact that this plea was never raised by the learned counsel for the petitioner before the authorities below, there is no substance in the argument of the learned counsel for the petitioner as this point stands settled against the petitioner by catina of authorities. So far as the ground of change of user is concerned, in the petition for ejectment it was alleged on behalf of the landlady as under:
"(d) That the premises in question were let out to the respondent that shop portion to be used for commercial purposes i.e. Chemist shop and Ist and 2nd floor were to be used for residence. The respondent used the premises as such. The premises were let out by Shri Bhagat Ram Awasthi to Shri Bhagwan Dass vide registered lease deed dated 20.7.1964 and again second lease deed was executed on 21.1.1969. During the lease period with Bhagwan Dass, the respondent took the premises and the respondent agreed to use the premises according to the lease deed which was executed between Shri Bhagat Ram Awasthi and Bhagwaan Dass. The photostat copies of the two registered lease deeds and the agreement to lease are attached. The petitioner has now come to know that the respondent have changed the use of the premises and the respondent has started using Ist and IInd floor for commercial purposes, out of which the Ist Floor is being used as godown and the same has also been sublet as already stated above. This change of user has been effected by the respondent after the commencement of the Act without the written consent of the petitioner. The respondent is liable to be ejected on this ground also."
The reply on behalf of the tenant-petitioner was as under
"(d) In reply to sub para (d), it is stated that the averments made are not admitted and hence denied. The premises were to be used for the purposes and in accordance with the provisions of the Capital of Punjab (Development and Regulation) Act, 1952. It is denied that the premises were let out as alleged. The premises were let to the respondent by an agreement dated 16.7.1969 by Shri Bhagat Ram Awasthi and subsequently an agreement made by Smt. Santosh Awasthi wife of Shri Madan Mohan Awasthi on 24.11.1969. The averment regarding execution of lease deeds dated 20.7.1964 and 21.1.1969 is not admitted, hence denied. It is denied that the respondent has changed the user of the premises as alleged and it is further denied that the Ist and IInd floors are being used for commercial purples. It is denied that the Ist floor is being used as a godown and that the same has been sublet as alleged. It is denied that any change of user has been made after the enforcement of the East Punjab Urban Rent Restriction Act, 1949, without the written consent of the petitioner. It is denied that the respondent is liable to ejectment on this ground."
It would be seen that there was no specific plea that even if it is proved that there was a change of user, the same had started much before the commencement of the Act. Learned counsel for the landlady, however, cited certain authorities to contend that it does not make any difference if the change of user had started before the commencement of the Act or after the commencement of the Act. Even if the change of user stars before the commencement of the Act and is continued after the commencement of the Act, the ground of ejectment would be still available. The ground of change of user for ejectment as provided Under Section 13(2)(ii)(b) of the Act may be noticed:
"13(2) A landlord who seeks to evict his tenant shall apply to 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) XXX XXX XXX
ii) that the tenant has after the commencement of this Act without the written consent of the landlord.
a) transferred his right under the lease or sublet the entire building or rented land or any portion thereof or,
b) used the building or rented land for a purpose other than that for which it was leased."
The first authority cited was Des Raj v. Shri P.N. Kaul 1978(1) Rent Control Reporter 330, in which while repelling the aforesaid contention of the learned counsel for the petitioner it was observed as under:
"The counsel submits that the words used in the aforesaid provision are "after the commencement of this Act" and the use of these words -contemplates a fresh changed user only after the enforcement of the Act. The argument may be ingenious but is certainly not a true interpretation of the statutory provision. If the contention of the learned counsel is tested by taking the same to its logical end, a tenant of commercial premises can merely shift bag and baggage into the shop a day earlier to the coming into force of the Act and start using it only for residential purposes with impunity. In spite of the laudable object of safeguarding the interest of the tenant, this is certainly not the intention of the Legislature that no remedy should be available to the landlord against a misuser or a change of user which had commenced just before the coming into force of Act. In this behalf, it is material to note that the crucial words in the provision aforesaid are "used the building" and these words clearly include a continued user even though the same may have commenced before the coming into force of the Act. I have no hesitation in rejecting the contention of the learned counsel."
The aforesaid authority related to premises in Chandigarh.
9. The second authority cited by the learned counsel for the respondentlandlady is Gora Lal Puri and Anr. v. Jugal Kishore of Bhatinda, 1989 Haryana Rent Reporter 281. The learned Judge observed as under:
"The fact that the tenant has used the building for a purpose other than the one for which it was leased out even after the commencement of the Act, renders the tenant liable to be ejected Under Section 13(2)(ii)(b) of the Act. In these circumstances, the learned Appellant Authority rightly found that the change of user though effected before the commencement of the Act continued even after the year 1974 and, therefore, the tenant had incurred liability for his ejectment."
The judgment of Des Raj's case (supra) was also approved by a Division Bench in Surjit Singh v. Rattan Lal Aggarwal and Ors., A.I.R. 1980 Punjab and Haryana 319.
10. The aforesaid authorities clearly make a distinction regarding the phraseology used for the purpose of ejectment on the ground of subletting and for change of user. If the ground is of subletting, it must take place after the commencement of the Act and if the sublease is created before the commencement of the Act, that cannot a ground for ejectment. The act of subleasing is a one time act and is complete in itself. If the sub-lease takes place before the commencement of the Act, the act of Sub-leasing is complete. However, that is not so in so far as the 'Change of user' is concerned. The words in Section 13(2)(ii)(b) of the Act clearly use the expression "used the building" which would include a continued user after the commencement of the Act even though it may have commenced before the coming into force of the Act. It is not necessary to refer to the authorities cited by the learned counsel for the petitioners as those all relate to sub-letting and not change of user.
11. In view of what has been observed above and relying on the authorities cited by the learned counsel for the respondent, I am of the view that there is no substance in the contention of the learned counsel for the petitioner.
12. No other point was urged.
13. Consequently I do not find any merit in this revision petition which is hereby dismissed.