Madras High Court
B.M.A. Najira Begum vs A.M.S. Kassim on 24 October, 2000
Equivalent citations: 2000(4)CTC474, (2001)1MLJ37
ORDER
l. Heard Mr.P.Valliappan, learned counsel appearing for the petitioner and Mr.R.Vasudhevan, learned counsel appearing for the respondent. The landlady of a premises situated in Kumbakonam is the revision petitioner in this Court. She filed R.C.O.P.No.11 of 1994 on the file of the Rent Controller, Kumbakonam seeking eviction of the respondent/tenant on two grounds, namely, demolition and reconstruction and change of user. The Rent Controller found against the landlady on the ground of demolition and reconstruction. However, an order of eviction on the ground of change of user was passed. The tenant challenged that order in an appeal in R.C.A.No.5 of 1996 before the Rent Control Appellate Authority, Kumbakonam. The appellate authority also concurred with the finding of the Rent Controller in non suiting the landlady on the ground of the demolition and reconstruction. On the other ground on which eviction was ordered, the appellate authority took a different view and allowed the appeal. Hence, the present revision by the landlady.
2. Mr.P.Valliappan, learned counsel for the revision petitioner would contend that on the facts found by the Rent Controller as well as by the appellate authority the only order that can be passed against the tenant is an order of eviction. The reasons given by the appellate authority that since the tenant is using only a negligible portion of the building demised to him for a different purpose other than that for which it was rented out to him, would not be a ground in the eye of law to refuse to pass an order of eviction. His further contention is that the new business, which he is shown to have started must be akin to or an allied or ancillary to the business, which the tenant was already carrying on. If the business is not coming within the phraseology referred to earlier, then the tenant has to be found guilty of using the building for a purpose other than that for which it was leased.
3. Opposing this argument, Mr.R.Vasudhevan, learned counsel for the tenant would contend that though at the inception of tenancy the building was rented out for the purpose of carrying on business in plastics, yet, later on he, having lost considerably in that business, started a business in a portion of the very same building in cut piece cloth and that too, with the consent of the landlady. It is his case that the tenant is not disputing that he carries on two types of businesses in the building, namely in plastic ware and in cut piece cloth. His argument is since, as found by the appellate authority, the new business was carried on in a negligible portion, the tenant cannot be evicted on the ground of different user.
4. The case of the landlady, both in the rent control petition as well as in her oral evidence, before the Rent Controller is that the tenancy at the commencement was for a specific purpose of carrying on business in plastic ware only. The tenant, nowhere denied the statement so positively made in the rent control petition. P.W.1, in her oral evidence in chief, had stated that at the inception the building was let out only for carrying on business in the name of "New Plastic Wares'. It is no doubt true that in the rent control petition the landlady asserted that a copy of the tenancy agreement is available with her. But however the said agreement was not exhibited before any of the authorities under the Act. She had stated in her evidence in cross that the earlier agreement of tenancy between the parties was renewed by another agreement dated 22.3.1991 and that agreement is also with her. Yet, none of the agreements, namely, either the original agreement or the renewal agreement was placed before the Court. However it is clear not only from the pleading but also from the oral evidence of P.W.1 that at the inception of the tenancy, it was for a specific purpose of the tenant carrying on business in plastic ware. It may not be out of place in this context to reiterate that the tenant had not denied such a statement made in the rent control petition. I have also discussed above the oral evidence of P.W.1, which go to show that from the inception the tenant was carrying on business only in plastic ware. The answers referred to earlier in the evidence of P.W.1 had come out in chief examination. No material, whatsoever, worth mentioning had been elicited in her evidence -in. cross to discredit her case that at the inception the tenancy was for the specific purpose of carrying on business in plastic ware. The tenant, when examined as R.W.1, would state in his evidence in chief that in the demised premises in the beginning he was carrying on business only in plastic ware. No doubt, he would add that during Deepavali season he was allowed to sell crackers in the demised premises with the consent of the landlady. It is seen from his evidence that as he suffered considerable loss in the plastic business, he informed the landlady that he intends to start a business in cut piece cloth as well and the landlady agreed. Therefore, even from the evidence of the tenant it is clear that he is carrying on business other than the business, which he was originally carrying on at the inception in the demised premises.
5. Inasmuch as that fact remains established, namely the tenant, in addition to the business in plastic ware, is also carrying on business in cut piece cloth, the question that falls for consideration is whether such carrying on business would amount to different user as falling under Section 10(2)(ii)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act. To appreciate the rival contention between the parties, it is better I extract the relevant provision as given in the Act itself.
(1) **** (2) ****
(ii) ****
(b) used the building for a purpose other than for which it was leased.
A similar provision is found in Haryana Urban (Control of Rent and Eviction) Act, 1973, which is extracted hereunder:
13(1) ***** (2) A landlord who seeks to evict his tenant shall apply to the 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) ****
(ii) that the tenant has after the commencement of the 1949 Act, without the written consent of the landlord-
(a) ******
(b) used the building or rented land for a purpose other than that for which it was leased."
6. The eviction order passed under the Haryana Urban (Control of Rent and Eviction) Act had come up for consideration before the Honourable Supreme Court of India in Jagdishlal v. Parmanand, . After considering the earlier judgments of that Court as well as the other judgments of the Punjab and Haryana High Court, it was laid down in that case that an order of eviction has to be issued, if it is shown and established that the tenant is carrying on business other than that for which it was leased out. The argument advanced in that case is that the Act classifies only two types of tenancy, namely, residential and non residential and if it is shown that the tenancy is for non-residential purpose, then irrespective of the fact whether the tenant is carrying on the same business or changes his business would not attract the relevant provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 and the prayer of eviction on the ground of change of user was to be totally rejected. In that case the original tenancy was for the purpose of carrying on business in Maniyari (General Merchandise) and ready made and cloth merchant. Later on, the tenant used the shop for the purpose of a restaurant or for selling sweet meat. It was found on such user that the landlord had made out a case for eviction on the ground that the tenant had put the building for an use different than the one for which it was leased out. Ofcourse that case proceeded on the basis that it was established that at the inception, the tenancy was for a specific purpose of carrying on business in general merchandise and ready made and cloth and it was established that the tenant was carrying on restaurant business in the same building.
7. In this case also from the pleading; evidence and other materials on record, I am unable to take a different view than the one arrived at by the Courts below that at the inception of tenancy it was for the specific purpose for carrying on business in plastic ware. The fact remains established that the tenant is also carrying on business in the very same building in cut piece cloth in addition to the business, which he was carrying on. In such circumstances, the law is that inasmuch as the new business, which the tenant starts is neither akin to the original business nor ancillary to the original business, it would amount to change of user. The relevant paragraph in the judgment of the Supreme Court referred to supra is extracted hereunder:
On a consideration of these decisions, it comes out that where the new business started by the tenant in the premises let out to him was an allied business or a business which was ancillary to the main business, it would not amount to change of user. It is true that where a premises is let out for commercial purposes, carrying on of a new business activity therein would not change the nature of the building and it would still remain a commercial building. But that is not enough. Having regard to the provisions of the Act and the intendment of the legislature in providing that the tenant would not use the premises for a purpose other than that for which it was let out, the new business should either have some linkage with the original business, which under the agreement of lease the tenant was permitted to carry on, or it should be an allied business or ancillary to that business. Where local laws provide a specific prohibition in respect of the use of the premises under the rent legislation and that provision has been interpreted in a particular manner by the High Court consistently, it would not be proper . to disturb the course of decisions by interpreting that provision differently."
From the reading of the above it is clear that the tenant is definitely guilty of using the building for a different user than the one for which it was given to him. From the facts found, by the authorities under the Act, it is established that the tenant is carrying on business in the very same premises in cut piece cloth as well. The business in cut piece cloth cannot be treated as either akin or ancillary to the business in plastic ware. The new business which the tenant is shown to be carrying on has no linkage whatsoever to the business which he originally carried on in the demised premises. The tenant had not established that he is armed with a written consent from the landlord for putting the building to a different user. Therefore, he is definitely guilty of putting the building for a different user, from which he must suffer an order of eviction. While finding that the tenant is definitely using the building demised for a purpose other than that for which it was leased out to him, yet in deciding that such a conduct on the part of the tenant would not amount to different user, is definitely an error in law. Therefore, the order of the appellate Judge is set aside and the original order of eviction on the ground of different user is restored. Accordingly the revision is allowed. No costs.
8. The learned counsel for the tenant seeks six months' time to evict the premises. Taking into account the fact that he had been in the building for quite a long time, the tenant is given time till 30.4.2001 to vacate and deliver vacant possession of the premises to the landlady on condition that:
(a) The tenant shall file an affidavit of undertaking before this Court to abide by the time schedule referred to above, after serving a copy of the same on the counsel for the land-lord on or before 30.11.2000;
(b) The tenant shall pay the entire arrears of rent, if any, as on date directly to the landlady within six weeks from today;
(c) The tenant shall pay monthly rent due and payable commencing from October, 2000 on or before 15th of November, 2000 and continue to pay the future monthly rents as well.
It is made clear that any failure to comply with any one of the conditions referred to above would result in the order of eviction being put into execution forthwith without any further reference to this Court.