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PETITIONER:

BISHAMBER DASS KOHLI (DEAD) BY LRS.

Vs.

RESPONDENT:

SMT. SATYA BHALLA

DATE OF JUDGMENT12/01/1993

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

YOGESHWAR DAYAL (J)

VENKATACHALA N. (J)

CITATION:

1993 SCR (1) 171 1993 SCC (1) 566

JT 1993 (1) 123 1993 SCALE (1)105

ACT:

East Punjab Urban Rent Restriction Act, 1940--Section

13(2)(ii) (b)--Eviction on the ground of change of

user--Whether proper.

East Punjab Urban Rent Restriction Act, 1940--Sections 2(g),

2(h)--"Residential building", "Scheduled

building"--Construction.

HEADNOTE:

The suit premises was let out by the appellant landlord to

the respondent on a monthly rent of Rs. 550 solely for

residential purpose. In a part of the premises, the

respondent's husband, a lawyer established his office and

started using the same for that purpose.

Teh appellant-landlord riled a petition before the Rent

Controller seeking eviction of the respondent-tenant.

The Rent Controller made an order of eviction of the

respondent tenant on the ground of change of user under

section 13(2) (II) (b), of the East Punjab Urban Rent

Restriction Act, 1940.

The tenant's appeal was dismissed by the appellate

authority, against which a revision to the High Court was

preferred.

The Single Judge of the High Court allowed the revision and

set aside the eviction order, holding that the building let

out as a 'residential building became a 'scheduled building'

by use of a part thereof as lawyer's office by the tenants

husband; and therefore, the ground of eviction was not

available.

Hence this appeal by the landlord by special leave,

contending that the ground of change of user contained in

section 13(2) (II) (b) was clearly made out from the facts

and the High Court erred In setting aside the order of

eviction.

172

The respondent-tenant submitted that the landlord waived the

ground of change of user by acquiescence to use of a part of

the premises as lawyer's office; that the ground in section

13(2)(ii)(b) was not available unless the change of user was

of substantial, if not the entire building and, therefore,

mere use of a small part of the residential building as

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lawyer's office does not constitute such change.

Allowing the appeal of the landlord, this court,

HELD : 1.01. Use of the building for a purpose other than

that for which it was leased, without the written consent of

the landlord is a ground of eviction. Ile object dearly is

that the parties must remain bound by the terms on which the

building is let out, including the condition relating to Its

use for the purpose for which it was leased. In other

words, breach of the covenant regarding the kind of user of

the building let out is the ground of eviction contained in

section 13(2) (ii) (b) of the East Punjab Urban Rent

Restriction Act. [177A-B]

1.02. If the change in user of the building is of the

kind that it makes the residential building let out for

residential purpose alone change its character and become a

'scheduled building' as defined in section 2(h) of the Act

without the written consent of the landlord, the ground of

eviction under section 13(2) (ii) (b) is made out. [177C]

1.03. This test is fully satisfied In the present case

and the order of eviction was made by the Rent Controller

and affirmed by the appellate authority on this basis. The

High Court misconstrued the provisions to take the contrary

view. [177D]

Telu Ram v. Om Parkash Garg 1971 RCJ 1, approved.

Sant Ram v. Rajinder Lal and Ors., 1978 (2) RCR 601; Dr.

Sewa Singh v. Smt. Ravinder Kaur and another, [1971] 2 SCC

981, distinguished.

2.01. Even though a 'scheduled building continues to be

a residential building as defined in section 2(g), a

residential building of which even a part is used for a

scheduled purpose, becomes and is called a 'schedule

building when user of the building is significant or the

criterion. [176F]

2.02 Where user of a building is of significance, a

distinction is made In the Act between a residential

building which is not a scheduled building and

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that which is a scheduled building. This is so in section 4

of the Act dealing with determination of fair rent wherein

fixation of rent is made on the basis of user and for that

purpose a 'scheduled building' is treated differently from a

residential building which is not a scheduled building.

[176G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5434 of 1985.

From the Judgment and Order dated 11.8.1987 of the Punjab

and Haryana High Court in Civil Revision No. 1048 of 1986,

A.K Gupta for the Appellants.

Vikram Mahajan, Gopi Chand and K.K. Gupta for the

Respondent.

The Judgment of the Court was delivered by

VERMA, J. The suit premises in Chandigarh was let out by the

appellant to the respondent, Smt. Satya Bhalla on 1.11.1974

on a monthly rent of Rs. 550 solely for residential purpose.

However, the respondent's husband, a lawyer established his

office in a part of the suit premises and started using the

same for that purpose. The appellant-landlord filed a

petition before the Rent Controller in February, 1983

seeking eviction of the respondent-tenant on several grounds

including the ground contained in section 13(2) (ii) (b) of

the East Punjab Urban Rent Restriction Act, 1949 i.e. the

use of the building for a purpose other than that for which

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it was leased. The Rent Controller made an order of

eviction of the respondent-tenant on the ground of change of

user contained in section 13(2)(ii) (b). The tenant's

appeal was dismissed by the appellate authority which

affirmed the order of eviction made by the Rent Controller.

A further revision to the High Court has been allowed by the

learned single Judge and the order of eviction has been set

aside. The High Court has held that the building let out as

a 'residential building became a 'scheduled building by use

of a part thereof as lawyer's office by the tenant's

husband; and therefore, the ground of eviction was not

available. The order of eviction made in the landlord's

favour was, therefore, set aside. Hence this appeal by the

landlord by special leave.

The learned counsel for the appellant contended that the

ground of change of user contained in section 13(2) (ii) (b)

is clearly made out from the facts and the High Court has

erred in setting aside the order of eviction.

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In reply Shri V.C. Mahajan, learned counsel for the

respondent-tenant, advanced several arguments. He submitted

that the landlord had waived the ground of change of user by

acquiescence to use of a part of the premises as lawyer's

office. His next submission is that the ground in section

13(3) (ii) (b) is not available unless the change of user is

of substantial if not the entire building and, therefore,

mere use of a small part of the residential building as

lawyer's office does not constitute such change, learned

counsel also submitted that this is not a fit case for

interference with the High Court's order under Article 136

of the Constitution.

Having heard both sides, we are satisfied that this appeal

has to be allowed. The High Court's interference in

revision with the order of eviction made by the Rent

Controller and affirmed by the appellate authority, was

wholly unjustified.

There is no merit in Shri Mahajan's argument of waiver or

acquiescence by the landlord. Before the Rent Controller

the tenant had pleaded estoppel against the landlord, which

after due consideration was rightly rejected by the Rent

Controller. That finding of the Rent Controller was not

assailed by the tenant either before the appellate authority

or in the High Court. On merits also, this plea is

untenable since no such conduct of the landlord is shown.

The argument is, therefore, rejected. We also do not find

any substance in the contention that interference under

Article 136 is not warranted, in case it is found that the

High Court set aside the order of eviction on a

misconstruction of the law applicable in the present case.

The only question, therefore, is whether on the proved

facts, no longer in controversy, the ground in section 13(2)

(ii) (b) is made out.

The material provisions in the East Punjab Urban Rent

Restrictions Act, 1949 with reference to which the

contention of Shri Mahajan has to be considered, are the

following

"2. Definitions....................

(a) 'building' means any building or part of

a building let for any purpose whether being

actually used for that purpose or not,

including any land, godowns, outhouses, or

furniture let therewith but does not include a

room in a hotel, hostel or

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boarding house;

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xxx xxx xxx

(d) 'non-residential building" means a

building being used solely for the purpose of

business or trade:

Provided that residence in a building only for

the purpose of guarding it shall not be deemed

to convert a "non residential' building' to a

'residential building":

xxx xxx xxx

(g) 'residential building" means any

building which is not a non-residential

building;

(h) 'scheduled building" means a residential

building which is being used by a person

engaged in one or more of the professions

specified in the Schedule to this act, partly

for his business and partly for his residence;

xxx xxx xxx

13. Eviction of tenant (1) A tenant in

possession of a building or rented land shall

not be evicted therefrom in execution of a

decree passed before or after the commencemen

t

of this Act or otherwise and whether before or

after the termination of the tenancy, except

in accordance with the provisions of this sec-

tion.

(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 applicant, is

satisfied

(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

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(b) used the building or rented land for a

purpose other than that for which it was

leased, or

the Controller may make an order directing the

tenant to put the landlord in possession of

the building or rented land and if the

Controller is not so satisfied he shall make

an order rejecting the application:

Provided that the Controller may give 'the

tenant a reasonable time for putting the

landlord in possession of the building or

rented land and may extend such time so as not

to exceed three months in the aggregate."

Shri Mahajan contended that to constitute the ground under

section 13(2) (ii) (b), the change in user should be in

respect of at least a substantial part of the building if

not the entire building. The comparison of sub-clause (b)

with sub-clause (a) shows that the omission of the word

'entire' before the word 'building' in sub-clause (b) when

the word 'entire' has been used before the word 'building'

in sub-clause (a) is deliberate. For this reason, the

change in user of the building required to constitute the

ground under sub-clause (b) need not be of the entire

building, the word 'entire' being deliberately omitted in

sub-clause (b). Faced with this difficulty, Shri Mahajan

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submitted that the change of user should be of a substantial

part of the building let out even though not of the entire

building. This argument also cannot be accepted in this

context. The definitions in section 2 of the Act show that

even though a 'scheduled building' continues to be a

residential building as defined in section 2(g), a

residential building of which even a part is used for a

scheduled purpose, becomes and is called a 'scheduled

building' when user of the building is significant or the

criterion. Thus, where user of a building is of

significance, a distinction is made in the Act between

residential building which is not a scheduled building and

that which is a scheduled building. This is so in section 4

of the Act dealing with determination of fair rent wherein

fixation of rent is made on the basis of user and for that

purpose a 'scheduled building' is treated differently from a

residential building which is not a scheduled building.

Same is the position with regard to the ground of eviction

contained in section 13(2) (ii) (b) wherein change in user

of the building is alone significant for constituting the

ground.

177

Accordingly, use of the building for a purpose other than

that for which it was leased, without the written consent of

the landlord is a ground of eviction. The object clearly is

that the parties must remain bound by the terms on which the

building is let out, including the condition relating to its

use for the purpose for which it was leased.In other words,

breach of the covenant regarding the kind of user of the

building let out is the ground of eviction contained in

section 13(2) (ii) (b).

It is clear that if the change in user of the building is of

the kind that it makes the residential building let out for

residential purpose alone change its character and become a

'scheduled building' as defined in section 2(h) of the Act

without the written consent of the landlord, the ground of

eviction under section 13(2) (ii) (b) is made out.

This test is fully satisfied in the present case and the

order of eviction was made by the Rent Controller and

affirmed by the appellate authority on this basis. 'The

High Court misconstrued the provisions to take the contrary

view.

A Division Bench of the Punjab and Haryana High Court in

Telu Ram v. Om Parkash Garg 1971 RCJ 1 while dealing with

section 13(i) (ii) (b) at the Act mentioned one of its

conclusion in para 21 as under

'(b) that if the result of the use of even a

small portion of a building is such that the

category of the premises is changed from

residential, non-residential and scheduled,

and it becomes a category different from the

one for which the same had been let, the

clause would be attracted;"

This is how this provision appears to have been understood

at least eversince than and the people in the State have

arranged their affairs on that basis. Apart from the fact

that this view commends to us as the correct view, the

desirability of continuing the settled view is also a reason

in its favour.

Shri Mahajan referred to the decision of this Court in Sant

Ram v. Rajinder Lal and Ors., 1978(2) RCR 601. That case is

distinguishable. In that decision the purpose of the lease

was not spelt out precisely while letting out a small

premises to a cobbler for his business where he sometimes

stayed overnight after the day's work while he went to his

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home on

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holidays. It was on these facts that the tenant staying

overnight in the shop on some working days was not found to

constitute the ground of change of user under section 13(2)

(ii) (b) of the Act. That decision does not assist the

respondent tenant in this case. .

Reference was also made to Dr. Sewa Singh v. Smt. Ravinder

Kaur and another, [1971] '3 SCC 981. That judgment did not

consider this question as it was not raised. The ground

therein was that the High Court was not justified in taking

the view in revision for the first time that the user of a

part of the premises for a particular purpose was casual.

No doubt, the user of a part of the residential building for

the profession of a medical practitioner was involved and

the definition of 'scheduled building' in section 2(h) of

the Act was referred, but this point was neither raised nor

considered. The decision in Dr. Sewa Singh cannot be

treated as an authority for the view that change of user of

a part of a residential building let out for use solely as a

residence, for a scheduled purpose without the written

consent of the landlord does not constitute the ground for

eviction under section 13(2) (ii) (b) or that the ground of

eviction based on personal need of the landlord contained in

section 13(3) (i) (a) is not available to the landlord for

that reason. If the logical inference from Dr. Sewa Singh

appears to be that, then, with respect, we are unable to

agree with the same.

As a result of the above discussion, this appeal is allowed

and the impugned order passed by the High Court is set aside

resulting in restoration of the order of eviction made by

the Rent Controller and affirmed by the appellate authority.

The respondent will also pay cost to the appellant.

Counsel's fee Rs. 3,000.

V.P.R. Appeal allowed.

179