Punjab-Haryana High Court
Smt. Sarabjit Kaur vs Air Marshal(Retd.) K.D. Singh on 13 December, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
CR No.7276 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Civil Revision No.7276 of 2012(O&M)
Date of Decision:-13.12.2012
Smt. Sarabjit Kaur.
......Petitioner.
Versus
Air Marshal(Retd.) K.D. Singh.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Arun Jain, Senior Advocate with
Mr. Hemant Bassi, Advocate for the Petitioner(tenant).
Mr. A.K. Chopra, Senior Advocate with
Mr. J.S. Bagga, Advocate for caveator-respondent(landlord)
***
JASWANT SINGH, J.
Petitioner(tenant) is in revision under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949(hereinafter referred to as the Act), against order dated 14.09.2012 passed by the learned Rent Controller, Chandigarh, whereby the petition filed by the respondent(landlord) Air Marshal K.D. Singh under Section 13(A)of the Act, for evicting the petitioner(tenant) from complete first floor and second floor of alleged SCF No.10, Sector 9-D, Chandigarh was allowed.
In brief, facts of the case are that respondent(landlord) stated that he is an Air Marshal in the Indian Air Force and the demised premises is under his ownership. It was further mentioned that he is due to retire on 30.09.2009 and, therefore, he is entitled to eviction of the petitioner(tenant) CR No.7276 of 2012(O&M) #2# from the demised premises for his own use and occupation and hence, the petition under Section 13(A) of the Act be allowed.
Upon notice, petitioner(tenant) appeared and filed application for leave to contest, which was dismissed by the learned Rent Controller as well as by this Court. However, Hon'ble Supreme Court, on concession given by the counsel for the respondent(landlord), granted leave to contest vide order dated 06.08.2010. Thereafter, in reply to the ejectment application filed by the respondent(landlord), various objections were taken among which it was stated that the demised premises is not a shop cum flat. It was further stated that it is an office. It was further averred that respondent(landlord) is only a co-sharer and a co-sharer cannot maintain a petition under Section 13(A) of the Act. Finally, it was stated that shop cum flat is not defined under the Act and, therefore, the respondent(landlord) is not entitled to get eviction.
From the pleadings of the parties issues were framed. Both sides lead their evidence in support of their respective claims and after appreciating their evidence, ejectment application was allowed by the learned Rent Controller, Chandigarh vide order dated 14.09.2012. Hence the present revision.
I have heard learned Counsel for the parties and have gone through the case file carefully with their able assistance.
Learned Counsel for the petitioner(tenant) has argued that the learned Rent Controller erred in law as well as on facts to return a finding that the demised premises is a residential building, as it is proved on record that it is a shop cum office and not a shop cum flat. It was further argued that Section 13(A) of the Act is not applicable to the facts of the present CR No.7276 of 2012(O&M) #3# case, in as much as Section 13(A) of the Act envisages right to recover immediate possession of a residential or scheduled building. The demised premises is a non residential building and commercial in nature. Thus, as the building is neither a residential nor a scheduled building, the provision of Section 13(A) is not applicable to the facts of the case. To support his plea, learned Counsel for the petitioner(tenant) has relied upon judgment of Hon'ble Supreme Court in 2002(1) RCR(Rent) 306 Shabir Ahmad Vs. Sham Lal, wherein it has been held that residential and non residential shop cum flat in Chandigarh are non residential buildings and landlord is not entitled to evict the tenant for residential purpose. Thus, it was argued that even if the premises in question is considered to be a shop cum flat, still the first floor cannot be used for residence as the Hon'ble Supreme Court has held a shop cum flat in Chandigarh to be non residential in nature.
On the other hand, learned Counsel for the respondent (landlord)-caveator has argued that the learned Rent Controller has correctly appreciated the facts and circumstances of the case in hand and no interference is warranted by this Court. He has argued that a perusal of the record shows that the nature of the demised premises is that of residence, as is evident from the site plan placed on record, whereby there is a provision of kitchen on the first floor, living room with door of bedroom etc. Thus, the nature of the building in question is residential and provisions of Section 13(A) of the Act are applicable to the case in hand.
After hearing learned Counsel for the parties and perusing the paper book carefully with their able assistance, this Court is of the considered view that present petition is devoid of any merit and same deserves to be dismissed. In the opinion of this Court, the first question that CR No.7276 of 2012(O&M) #4# arises for consideration is that whether the demised premises has been allotted by the Chandigarh Administration as a shop cum flat or as a shop cum office. The second question that arises for consideration is as to whether the first and second floors of a shop cum flat are to be considered as residential or non residential building.
As far as the first question is concerned, this Court is of the definite opinion that the premises in dispute has been allotted by the Chandigarh Administration as a shop cum flat with the first & second floor being earmarked for residential purposes only. A perusal of the record reveals that as per allotment letter Ex.P-9, there is no condition that the building erected on the site shall not be used for residential purposes, although, the site has been classified as commercial. Further, condition no.6 of the allotment letter Ex.P-9, provides that the site cannot be used for any purpose other than shop cum flat which is to be constructed in accordance with the standard design to be supplied by the Government. A perusal of the site plan Ex.R-6 shows that in the inner floor, there is a provision of kitchen and on the first floor there is a living room with door and bedrooms. Further, Ex.P-3, which is letter issued by the Estate Officer, Chandigarh on 21.08.2009, also shows that first and second floor of the demised premises is meant exclusively for residential purposes and not for commercial purposes. In Ex.P-4(which is letter issued by UT Administration), it has been mentioned that first and second floor can be got converted to office only after getting permission of Estate Office as detailed in the notification/order dated 20.05.1998 (Ex.PW-4/J). However, it is admitted fact that no such permission has been taken by respondent(landlord) and resumption proceedings are also pending against him for misusing the first CR No.7276 of 2012(O&M) #5# and second floors by using it for commercial purposes. Thus, a cumulative reading of the site plan(Ex.R-6), allotment letter(Ex.P-9 especially condition no.6), documents and facts referred above, clearly prove that the demised premises i.e. first and second floor of the site in question is an shop cum flat (SCF) and not an SCO and thus, the same are to be used for residential purposes only.
Now the second question that arises for consideration is whether demised premises has to be held as a non residential building in view of the judgment passed by Hon'ble Supreme Court in Shabir Ahmed's case(Supra) or not. A perusal of the judgment reveals that in Shabir Ahmed's case also in allotment letter there was clause no.18, whereby it was stated as follows:-
" The site is classed as 'commercial' and the building to be erected on it shall not be used for the residential purpose unless otherwise specified in the plans supplied by the Government."(Emphasis supplied)."
However, in the next paragraph Hon'ble Supreme Court was also pleased to observe as under:-
" This clause places the position beyond any doubt. It puts an embargo on the use of the building for residential purpose unless the plan supplied by the Government specified it as a residential building. Clause 6 directs that the building shall have to be constructed in accordance with the design which will be supplied by the Government after the building plans have been sanctioned. We have also perused the plan of the first floor(Annexure P-5). The design of the plan does not provide for bed-rooms etc. We find no provision for bathroom and no provision for kitchen, on the contrary a room is shown as 'office'. There is nothing in the plan which indicates that a residential accommodation is specified therein."
Thus, as is evident from the above referred paragraphs, there was no provision of any bedroom etc., in the premises that was in dispute in the case which was being dealt with by Hon'ble Supreme Court. It is also CR No.7276 of 2012(O&M) #6# further evident from the said judgment that the site was commercial and it was clearly mentioned in the allotment letter that it shall not be used for residential purpose and even the designs supplied by the government in the plans sanctioned for the said premises, first floor did not have any provision for any bedroom, kitchen and rather, same showed an office and thus, in the light of these facts, Hon'ble Supreme Court arrived at the conclusion that the SCF in question and its first floor was non residential in nature. However, in the present case as discussed earlier, the allotment letter along with the documents referred earlier and also the site plan makes it abundantly clear that the first and second floor of the premises in question are residential in nature and thus, no reliance can be placed upon the judgment passed by the Hon'ble Supreme Court in Shabir Ahmed's case (supra), as the same is distinguishable on facts because in Shabir Ahmed's case (supra), Hon'ble Supreme Court had taken into consideration deed of conveyance, letter of allotment, site plan and other documents which were before it to come to a conclusion that the premises was non residential in nature. Thus, on facts, this Court of the definite opinion that the demised premises is not commercial in nature but residential and, therefore, the respondent(landlord) is entitled to maintain the petition under Section 13(A) of the Act.
No other point was urged before me during the course of arguments.
In view of the above, finding no merit in the present revision petition, same is hereby dismissed.
( JASWANT SINGH ) JUDGE CR No.7276 of 2012(O&M) #7# December 13, 2012 Vinay