Punjab-Haryana High Court
State Bank Of Patiala vs S. Zulzuaoar Singh Virk And Ors. on 24 January, 2003
Equivalent citations: (2003)134PLR112
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. This order shall dispose of Civil Revision bearing Nos.20 of 1997 and 3045 of 1997 which arise out of the ejectment petition filed by the respondents herein under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as 'the Act') to seek ejectment of the tenant-petitioner, inter-alia, on the ground that the demised premises are required for their bona fide use and occupation.
2. One Hari Raj Saroop was owner of premises situated at Yamuna Nagar which was let out to the State Bank of Patiala in the year 1952 at the monthly rent of Rs.320/-. The landlord had purchased the property-in-dispute by virtue, of 12 separate registered sale deeds 18.11.1974 and 4.12.1974. It was pleaded by the landlord that prior to letting out of the premises to the Bank, the tenanted premises were residential in nature and were taken on rent by the Bank without obtaining the requisite permission of the Rent Controller as contemplated under Section 11 of the Act.
3. It is stated in the ejectment petition itself that after prolonged correspondence and parleys between the parties, the petitioner reconstructed almost entirely the premises in question by raising a big hall and four altogether new rooms besides raising the heights of rooms, etc. and constructing fresh lintels thereon. It will be advantageous to reproduce para 7 of the ejectment petition which is as under:-
"After prolonged correspondence and parleys between the parties, the petitioners, at the request of the Respondent Bank, reconstructed almost entirely, the premises in question by raising big hall (19.74 x 7.85 Mts.) and four altogether new rooms (4.27 x 4.27 Mts.) besides raising the heights of two rooms (3.50 x 4.57 Mts), one room (3.28 x 6.10 Mts) and still one more room (3.28 x 2.45 Mts) and constructing fresh lintels thereon etc. (A) During the period of this reconstruction/renovation of the main building which extended to almost six month, the Banking business was carried out by the Respondent Bank which had shifted to the adjoining cut-houses which were similarly renovated (prior to the main building) by raising the heights of the existing rooms and placing fresh lintels thereon. Strong rooms were, however, not vacated and fresh intels were constructed on both of them without removing the earlier roofing.
(b) After extensive renovation and reconstruction to the extent referred to above (which was so carried out as to retain the characteristics of a residential house) the respondent Bank has been paying rent qua these premises at the rate of Rs.1700/- per month but there is no agreed rate of rent between the parties and nor is there any legally subsisting agreement existing qua these premises.
(c) This tenancy is also continuing without the requisite sanction of the Rent Controller as required vide Section 11 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 and the tenanted premises are, therefore, liable to be vacated on this ground as the premises in question are residential but are being used for non-residential purpose.
(d) The premises in question are located in a prominently residential area. The commercial activity in this area is mainly confined to the Main Jagadhri Yamuna Nagar Road passing in immediate front of the premises in question."
4. It is mentioned in para 1 of the ejectment petition that the premises known as Dharam Villa are situated in the heart of Yamuna Nagar City on the main Jagadhri-Yamuna Nagar road (leading to railway station, Jagadhri). The landlord has, also provided details of accommodation which reads as under:-
DETAIL OF ACCOMMODATION
(a) Main building size: 3.60 x 2.46 Mts (Over the 3.05 Mt. wide entrance).
i) Porch (supported on two pillars)
ii) Big Hall Size: 19.74 x 7.85 Mts
iii) Four Rooms size 4.27 x 4.27 Mts
iv) One room size 5.03 x 3.20 Mts
v) Two strong rooms size 3.96 x 2.74 Mts
vi) Lavatories/baths: Four in number (one inside the main building & three at the back).
(B) out houses
i) Two rooms.
Size 3.50 x 4.57 Mts.
ii) One room size 3.28 x 6.10 Mts.
iii) One room size 3.28 x 2.45 Mts.
iv) Shed size 11.00 x 3.05 Mts.
(C) LAWN size 9.85 x 6.15 Mts.
(D) OPEN SPACE (In front, on sides & at rear of main building) : 2487.78 Mts.
(D) PARKING SHED (L-shaped) Size 5.90 x 2.45 Mts.
3.27 x 2.45 Mts.
(F) FRONTAGE Size 12.31 Mts. wide, with two gates of 3.08 Mts. each, on both sides.
(G) BOUNDARY WALLS (at the back) Size 42.90 x 1.84 Mts."
5. It may further be noticed that admittedly the building was reconstructed in the year 1977 and a lease deed Ex.R1 dated 1.9.1977 was executed in respect of 12267sq. feet approximate area on a monthly rent of Rs.1700/-.
6. In the written statement, the bank controverted the allegation regarding nature of the building and stated that while executing the lease deed dated 1.9.1977, the Bank has left some vacant land and open space in its possession since 1952 and was unused from the very beginning. Such area was part of the tenancy and the landlord constructed shops and sold the same to few persons and, hence, earned huge profits by this manner.
7. In evidence, the landlord has produced site plan Ex.A1which corresponds with the description of the property given in the ejectment petition i.e. one bathroom measuring 1.2 x 1.2 meter is only bathroom in the main building whereas 3 lavatories are in one corner of the building. There is no kitchen in the building. However, the learned Rent Controller passed an order of ejectment holding that the premises are the residential building in view of the fact that it was in occupation with the Paper Mill from 1945 to 1950 and was used as a residence of the Manager of the Paper Mill. Thus, it was concluded that though the premises have been let out for non-residential purpose but with out the permission of the Rent Controller under Section 11 of the Act, therefore, it will retain its character as residential bundling and consequently, the landlord is entitled to such ejectment on the ground that the landlord has bona fide requirement of the premises.
8. Although the Rent Controller also ordered ejectment on the ground of subletting, change of user and impairment of the building but the same was reversed by the appellate authority. The reasoning given by the appellate authority reversing the finding on the issue of subletting, change of user and impairment of the building is quite cogent. Even otherwise, at the time of hearing of the petition, no argument was raised challenging the finding of the appellate authority to seek ejectment of the tenant on the ground of subletting, change of user and impairment of the building. Thus, the landlord is now seeking ejectment only on the ground that the demised premises are required for bona fide use and occupation of the landlord.
9. I have heard the counsel for the parties and with their assistance have gone through the record of the case.
10. Sh. C.B. Goel, Advocate has submitted that the finding recorded by the Courts below that the building is residential building and, thus, the landlord is entitled to seek ejectment of the tenant on the ground that the premises are required for bona fide use and occupation of the landlord is wholly illegal. The basis of returning such finding is that the premises were used by Manager of the Paper Mill in the year 1945 for the purpose of residence and, thus, it will retain its character as that of residential building is wholly untenable as the entire building has been reconstructed in the year 1977 when new rooms were constructed. Apart from the construction, the rent was increased and also part of the tenanted premises were handed over to the landlord for construction of the shops. It is, thus, contended that with effect from 1.9.1977, the Bank is a tenant on fresh terms and conditions and on higher rent. The building now in occupation of the Bank is a commercial building constructed for the purposes of Bank. It has no known characteristic of a residential building inasmuch as neither there is kitchen or bathroom which are normally constructed in a residential building. There is only one bathroom in the main building whereas three lavoratories were constructed in one corner away from the main building. It was, thus, argued that the prohibition contained in Section 11 of the Act would not be applicable as the prohibition under the Act is not against reconstruction of the building by the landlord and when the landlord has after construction let out the building for commercial purposes. Thus, the landlord is not entitled to seek ejectment on the ground that he requires the demised premises for residential purposes. He also submitted that non-residential building can be got vacated only for a non-residential purposes and not for residential purposes. He has relied upon Attar Singh v. Inder Kumar, (1967)69 P.L.R. 83 (S.C.) in this respect.
11. Sh. M.L. Saggar, Advocate for the landlord has submitted that in view of Section 11 of the Act, there is a statutory prohibition to change the nature of building from residential building to non-residential building without the permission of the Rent Controller. It is contended that since the building was used in the year 1945 for the purpose of residence, therefore, none of the parties could change the nature of the building without the permission of the Rent Controller and, thus, the ground of bona fide personal requirement is available to the landlord. He has placed reliance on full Bench judgment of this Court in Shri Hari Mittal v. Shri B.M. Sikka, (1986-1)89 P.L.R. 1.
12. The question whether Section 11 of the Act would bar even reconstruction or renovation of a building in lieu of residential building is required to be examined in the present case. Few of the relevant statutory provisions read as under:-
"11. Conversion of a residential building into a non-residential building.
No person shall convert a residential building into a non-residential building except with the permission in writing of the Controller."
Sections 2(a), (d) and (g) of the Act reads as under:-
"2(a) "building" means any building or a part of building let for any purpose whether being actually used for that purpose or not, including any land, godown, out-houses, gardens, lawns, wells or tanks appurtenant to such building or the furniture let there with or any fittings affixed to or machinery installed in such building, but does not include a room in a hotel, hostel or boarding house:"
2(d) "non-residential building" means a building being used-
(i) mainly for the purpose of business or trade: or
(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there:
Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building.
Explanation.- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non residential building even though a small portion thereof is used for the purpose of residence:
2(g) "residential building" means any building which is not a non-residential building:
13. Section 11 prohibits conversion of a residential building into a non-residential building. Such prohibition contained in Section 11 of the Act will not be applicable to renovate or reconstruct the physical structure of such residential building in accordance with local laws applicable. The Act does not prohibit the landlord to construct "a building" as per his wishes subject to such local laws as may be applicable regarding construction or reconstruction of the building.
14. A perusal of the pleadings of the case as set out by the landlord shows the detail of accommodation including the fact that only one lavatory/bathroom is in the main building and three at the back in one corner. It is also evident from the ejectment petition itself that the entire premises were reconstructed and let out at monthly rent of Rs.1700/-. The construction were extensive and carried out over a period of six months where the entire building has undergone change, except strong rooms. Even, the site plan Ex.A1 produced by the landlord shows that it is a building which is a purely commercial building constructed for the banking purposes. It is not disputed that the Bank is in possession of the premises since 1952 and fresh terms of tenancy in respect of less area than originally let out was executed in September 1977. Thus, keeping in view the nature of the building, I am unable to uphold the finding recorded by the authorities below that the tenanted premises is a residential building since in 1945 it was used for residential purposes.
15. Reliance of the respondents on the Full Bench judgment of this Court in Hari Mittal's case (supra) is not tenable. The said case arises out of Urban area of Chandigarh wherein the premises have been statutorily defined as residential, commercial and industrial. There is no document on record to hold that the demised premises are statutorily required to be used for residential purposes. There is no document from any of the local authorities to the effect that construction of the commercial building is violative of any of the provisions of law.
16. In Hari Mittal's case (supra), the Full Bench has, in fact, relied upon the Supreme Court's judgment in Kamal Arora v. Amar Singh, 1985(1) R.C.R. 530 and relied upon the following observation of the Hon'ble Supreme Court.
"The High Court after examining the provisions of the Capital of Punjab (Development and Regulation) Act, 1951, read with Section 11 of the Rent Act held that the statute prohibits conversion of residential building into non-residential by act inter vivos. It was said that the landlord and the tenant by their mutual consent cannot convert a residential building into a non-residential building because that would be violative of the provision of Section 11. And it is admitted that building is situated in a sector falling within the residential zone. In this factual situation coupled with the fact that the landlord has retired from service and genuinely needs the premises for his residence, as found by all Courts. We are not inclined to interfere with the judgment and order of the High Court."
17. The counsel for the landlord has relied upon Punjab National Bank v. Pritam Singh, (1997-3)117 P.L.R. 71 and Smt. Rano (deceased) v. Kewal Krishan and Anr. 1990(1) R.L.R. 36 and Vinod Kumar Arora v. Smt. Surjit Kaur, A.I.R. 1987 S.C. 2179 to contend that the residential building cannot be converted into a non-residential building. However, whether the landlord can reconstruct the building without violating any other law, was not the question raised and decided in those cases, therefore, the said judgments are clearly distinguishable.
18. In Dev Brat Sharma y. Dr. Jagjit Mehta, 1990 Haryana Rent Reporter 522 the Hon'ble Supreme Court has occasion to consider the applicability of Section 11 of the Act to City of Jalandhar in the State of Punjab. In the said case, Hon'ble Supreme Court sought the report of the Rent Controller to find out whether there is any sanctioned master plan in respect of residential nature of the building. In the present case, the landlord has not adduced any evidence regarding any master plan of the area or any other document to show that only residential building could be constructed at the site in dispute. Therefore, there was no statutory bar against the landlord to construct the commercial building. Counsel for the landlord referred to Byelaw 13 of the Haryana Municipal Building Bye-laws 1982 (hereinafter referred to Bye-laws) to contend that the type and character of building and the purpose for which these can be used shall not be other than that shown in the Area Plan or the approved layout plan. It is further contended that every building which is erected or re-erected shall comply with the restriction shown in the zoning plan. It is pointed out that the total covered area is 4000 sq. feet and the balance 8267 sq, feet is the open space. Relying upon Byelaw 14 of the bye-laws, it was contended that 25% is the maximum permissible coverage in case of residential site, whereas this limit is violated. The relevant provisions of Byelaws 13 and 14 of the bye-laws reads as under:-
13. Use of site, type and character of building. - (1) Type and character of building including ancillary buildings that may be erected or re-erected on a site and the purpose for which these may be used shall not be other than that shown in the Area Plan or the approved layout plan and where the site does not form a part of such an Area Plan or layout, the use shall be in conformity with the use of the surrounding area and the decision of the committee shall be final in this respect.
(2) Every building that may be erected or re-erected on a site shall, in addition to the foregoing restriction, comply with the restriction shown in the zoning plan. The Architectural or Frame Control Sheets, wherever applicable, shall have precedent over the zoning plan or the building rules.
14. Proportion of the site which may be covered with building.- (1) The proportion upto which a site may be covered with building including ancillary building shall be in accordance with the following slabs, the remaining portion being left open in the form of any open space around the building or court-yard.
(A) RESIDENTIAL Area of the plot.
Maximum permissible coverage
(i) (a) for the first 225 sq.metres of the total area of the site 55% of the areas of the site
(b) for the next 225 sq.metres i.e. portion of the area between 225 and 450 sq. metres 35% of the such portion of the site
(c) for the remaining portion of the site i.e. for the portion of the area exceeding 450 sq. metres 25% of such portion of the site.
19. The landlord has not produced any area plan or approved layout plan in respect of the area where the building is situated. As per bye-laws 13. type and character of the building and the purpose for which it can be used shall not be other than shown in the area plan or the approved layout plan. No area plan or approved lay out plan is on record. The second part of bye-laws 13 which contemplates that in the absence of such area plan or layout, the use shall be in conformity with the use of the surrounding area. 20. As per the ejectment petition itself, the premises are situated on the main Jagadhri Yamuna Nagar road leading to railway station. It is also admitted by the landlord that the commercial activity is confined to main Jagadhri Yamuna Nagar road passing in immediate front of premises in question. Thus, it is evident that the premises are situated at the main road where there is a commercial activity. Keeping in view the location of the building itself as well, it can be safely held that the premises are situated in a commercial area.
21. As a matter of fact, as per the landlord himself, the surrounding area is a commercial area. Therefore, the construction of any building for banking purpose at the site in dispute is not even violative of bye-laws 13. Still further the reliance of the landlord on bye-laws 14 is misconceived. The restriction therein are in respect of residential site. Since the site over which the building is constructed is found to be commercial, therefore, bye-laws 14 would not be applicable. Even if bye-laws 14 is considered still it is the landlord who has raised more construction than the maximum permissible coverage area. He is estopped to rely upon bye-laws 14.
22. Therefore, mere fact that in 1945 the building was used for residential purposes will not be determinative of the fact that whether the building is residential or non-residential. Rather the factum of construction of building in 1977 and its use since that day will determine the nature of building and whether the permission of the Rent Controller under Section 11 of the Act will be necessary. The bar contained under Section 11 of the Act will not be applicable to the demised premises as the entire building has been reconstructed and let out for commercial purpose. Another fact is that the landlord has taken possession of part of the tenanted premises while executing rent note in the year 1977. It is a case of fresh tenancy in respect of the premises on a higher rent in a building which is non-residential. Thus, I am unable to agree with the finding recorded by the Courts below that the tenanted premises is the residential building.
23. The alternative argument of the landlord that after the judgment of the Hon'ble Supreme Court in Harbilas Rai Bansal's case, the non-residential building can be got vacated for bona fide personal use and thus the tenant is liable to be evicted even from such non-residential building. Such argument of the petitioner is misconceived. In Harbilas Rai Bansal's case (supra) the Hon'ble Supreme Court has struck down the amendment introduced by Punjab Act No.29 of 1956 whereby the right of the landlord to seek eviction of the tenant from his non-residential premises for bona fide requirement were taken away. Prior to such amendment Section 13(3) (ii) reads as under:-"13(3)(ii) in the case of a non-residential building or rented land, if
(a) he requires if for his own use:
(b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land,: and
(c) he has not vacated such a building or rented land without sufficient cause after the commencement of this Act, in the urban area concerned.
24. The provisions of Section 13(3)(ii) of the Act came up for consideration before the Supreme Court in Attar Singh's case (supra) wherein the Hon'ble Supreme Court was considering the ejectment petition for eviction of the tenant from the rented land. It has been held by the Supreme Court interpreting Sub-clause (a) of Clause (ii) that the intention of the Legislature must have been that if the landlord is in possession of other rented land whether his own or belonging to some body else for his business, he cannot be evicted from his own rented land. It clearly follows that from this the intention that the words for his own use and in Sub-clause (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. The Hon'ble Supreme Court held thus:-
"9. It should therefore be clear that "for his own use" in Sub-clause (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that Sub-clause (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i.e., land which he was principally using for business show that he can only take advantage of Sub-clause (a) if he is able to show that he requires the rented land for business. Otherwise the restrictions contained in Sub-clause (b) and Sub clause (c) would become meaningless, if it were held that Sub clause (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of the opinion, therefore, that Sub clauses(a), (b) and (c) in this provision must be read together and reading them together there can be no doubt that when Sub-clause (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that this legislation is meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words for his own use is Sub-clause (a) in the circumstances must be limited in the manner indicated above as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same purpose for which it had been let i.e. principally for trade or business. We are, therefore, of the opinion that the view taken in the case of Municipal Committee. Abohar is incorrect and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to eject the appellant under Section 13(3)(a)(ii)."
25. The Haryana Urban (Control of Rent & Eviction) Act, 1973 has substituted East Punjab Urban Rent Restriction Act, 1949 in the state of Haryana. However, for the purpose of eviction of a tenant from residential building or in case of a rented land, it is incumbent upon the landlord to prove that he has not vacated such building without sufficient cause after commencement of the 1949 Act, in this urban area. The relevant provisions of the Haryana Urban (Control of Rent & Eviction) Act, 1973 reads as under:-
13. Eviction of tenants.-
1. A tenant in possession of a building or rented land shall not be evicted therefrom except in accordance with the provisions of this Section.
13(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-
(a) in the case of a residential building, if,-
(i) he requires it for his own occupation, is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area.
13(3)(b) in the case of rented land, if he requires it for his own use, is not occupying in the urban area concerned for the purpose of his business any other rented land and has not vacated such rented land without sufficient cause after the commencement of the 1949 Act."
26. Learned Single Judge of this Court has found that the classification restricting ejectment of the tenant from a residential building is unreasonable, illegal and unconstitutional. The said judgment was affirmed in appeal in a judgment reported as State of Haryana v. Ved Parkash Gupta and Anr, 1999(1) R.L.R. 689. It is contended that since the classification has been held to be discriminatory, therefore, the landlord would be entitled to seek ejectment of a building for the residential purposes as well. The Division Bench has found that the principle on the basis of which the amendment in the Act were struck down in Harbilas Rai's case (supra) would apply even to the Haryana Urban (Control of Rent Eviction) Act, 1973. Since in Harbilas Rai's case (supra), the provisions of amendment Act was struck down, therefore, it is just and reasonable to construe that the ground of ejectment on account of non-residential building would be available to the landlord alongwith rented land under Section 13(3)(b) i.e. for the purpose of his business.
27. Therefore, the principle of law laid down by Hon'ble the Supreme Court in Attar Sigh's case (supra) would very well be applicable in respect of eviction from a non-residential building. This Court has taken a view in Ashok Kumar Jain v. Lachahman Dass, (1996-2) 113 P.L.R. 783 that the land which has been let out for commercial purposes cannot be got vacated by an Advocate for constructing his office and Library as office by the lawyer cannot be termed as commercial activity. In Civil Revision No.2501 of 1992 decided on 30.10.2002, I have held that he landlord can not seek ejectment from a non-residential building for the purpose of residence which is evident from a conjoint reading of Clause (a), (b) and (c) of Clause (ii) of Section 13(3) of the East Punjab Rent Restriction Act. Since the Haryana Act is pari materia with the provisions of the East Punjab Rent Restriction Act, therefore, the said judgment will applicable in the facts of the present case as well.
28. The reliance of the landlord in Shiv Shankar House Pvt. Ltd v. Anant Pal Singh Grewal, (1998-1)118 P.L.R. 211 to contend that a non-residential building can be got vacated for residential purpose. However, the said judgment is clearly distinguishable inasmuch as it was found that it was a residential building. Even otherwise, the Supreme Court's judgment in Attar Singh's case (supra) was not brought to the notice of the Bench deciding the said case.
29. In view of the above, the order passed by the authorities below suffers from material irregularity or illegality. Consequently, I allow the present revision petition, set aside the impugned order of ejectment passed by the Courts blow. This Civil Revision No. 20 of 1997 is allowed and Civil Revision No.3045 of 1997 is dismissed.