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CASE NO.:

Appeal (civil) 2227 of 2000

PETITIONER:

M/s Precision Steel & Engg. Works & Anr.

RESPONDENT:

Prem Deva Niranjan Deva Tayal

DATE OF JUDGMENT: 09/12/2002

BENCH:

R.C. LAHOTI & BRIJESH KUMAR.

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

Proceedings for eviction of the appellants-tenants, were

initiated by the respondent-landlord on the ground available under

clause (e) of sub-section (1) of Section 14 of the Delhi Rent Control

Act, 1958 (hereinafter 'the Act', for short). The High Court has, in

exercise of its revisional jurisdiction, passed an order for recovery of

possession of the tenancy premises. The tenants are in appeal by

special leave.

The tenancy premises are situated at B-44, Greater Kailash, Part

I, New Delhi. Out of the building standing over 1000 sq.yards plot

the appellants are in occupation of the front portion of the ground-

floor since 1971. Premises comprise of four bed-rooms, 3 bathrooms,

1 barsati, 1 garage and the servant quarters along with one bathroom

for servants. At this stage, it is no more in controversy that the

respondent is owner-cum-landlord of the premises and the appellants

are the tenants. The terms of tenancy are incorporated in a document

dated 13th September, 1971 called Licence Deed. The Rent Controller

and the High Court have both recorded findings of fact that the suit

premises are required bona fide by the respondent-landlord for

occupation as a residence for himself and the members of his family

and for satisfying such requirement the respondent does not possess

any other suitable accommodation. The controversy centers around

determination of the purpose for which the premises have been let,

and, depending on the answer, whether the applicability of Section

14(1)(e) of the Act is attracted. In the opinion of the Rent Controller

___ it is not; in the opinion of the High Court ___ it is.

Clauses 6,7,12 and 16 of the Licence Deed, which were referred

to by the learned counsel for the parties during the course of hearing,

are extracted and reproduced hereunder:-

"6. The Licensees shall use the said premises

for the residence of their Directors, partners

and officers. The Licensees will, however,

be free to use the said premises in part or in

full also for office purpose provided the

rules of the local authorities so permit and in

such an event the Licensees shall pay to the

owners any increase in local taxes, etc.

occasioned by such change of use of the said

premises from residential to office.

7. The Licensees shall not permit the said

premises or any part thereof being used by

any other person for any purpose whatsoever

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without the previous consent in writing of

the owners and in default thereof the

Licence shall be liable for cancellation. The

Licensees shall not transfer possession of the

premises or part thereof or otherwise carry

on the business in the premises with any

other person or assign, transfer, change or

otherwise alienate their interest in the

premises.

12. The Licensees shall comply at all times with

all the rules and regulations of the local

authorities whatsoever in relation to the said

premises.

16. The Licensees agree and understand that the

said premises shall not be used for any

illegal or immoral purpose, for gambling or

for sale of alcoholic beverages and the

owners shall have full right to cancel the

Licence by giving one month's notice in

case the said premises are used for any of

these purposes and to claim in full the

balance of the Licence-fees for the

unexpired part of the Licence period and in

addition to claim damages/for less of good

reputation of the premises and the owners

and also expenses sustained in the removal

of the Licensees' establishment from the

said premises."

A few other relevant undisputed facts may also be noticed. The

master plan and the zonal plan of the locality where the suit premises

are situated have earmarked the area as residential. No activity other

than residential is permissible thereat. This is so by virtue of the

provisions contained in Delhi Development Act, 1957 and Delhi

Municipal Corporation Act, 1957, the relevant provisions whereof

will be referred to where needed. It appears that on 18.3.1982, a

junior engineer of Delhi Development Authority ('DDA', for short)

inspected the premises occupied by the appellants and found that a

front room on the ground floor was being used for running an office

of the appellant-company. The company, which is the tenant, and its

director and constituted attorney, the appellant no.2 were prosecuted

for having committed an offence punishable under Section 14 read

with Section 29(2) of DDA Act for the residential building falling in

development zone F-II which can be used only for residential

purposes according to master plan, was being used for running an

office therein. The Metropolitan Magistrate found such misuser

having been proved. The defence taken by the appellants was that

only one room of the tenancy premises was used for his office by

appellant no.2 as he being a director of many companies the personnel

thereof were coming to him for consultancy work which was

transacted in the one room office. The appellants were convicted and

directed to pay a fine of Rs.3000/- each.

On behalf of the appellants one Rajbir Pal, Lower Division

Clerk of Municipal Corporation of Delhi was examined as RW2, who

stated that Greater Kailash-I was a freehold area where it was

permissible, so far as MCD is concerned, to use the property for

residential as well as commercial purposes. He further deposed that

so far as the premises in occupation of the appellants are concerned,

misuser charges were levied and recovered from the appellants for the

period 1.4.1989 to 31.3.1991. Such misuser charges are recovered

when residential premises are subjected to commercial use. In the

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records relating to this property, made available by the witness in the

court, there was no letter from the landlord allowing commercial user

of the suit premises by the tenants though a letter dated 1.3.1990 from

the appellants requesting for permitting commercial user of the suit

premises was available in the records.

Mr. B. Dutta, the learned senior counsel for the appellants

placed forceful reliance on clause 6 of the Licence Deed and

submitted that the premises have been let out not only for the

residence of directors, partners and officers of the tenant-company but

the tenants have been permitted freely to use the tenancy premises in

part or in full also for office purposes which shows that so far as the

parties to the tenancy agreement are concerned the purpose of letting

is mixed, i.e., residential and non-residential both. The submission of

Mr. M.L. Verma, the learned senior counsel for the landlord-

respondent, has been that the principal purpose of letting is residential

only though incidentally user for office purposes has been allowed,

eclipsed by the condition that such user does not invite the wrath of

the rules of the local authorities. Inasmuch as the laws governing the

local authorities and as applicable to the suit premises do not permit

user of the premises for any purpose other than residential, the

purpose of letting, on a fair construction of clause 6 of the Licence

Deed would remain residential only and this inference stands

reinforced by a reading of Clauses 7,12 and 16 of the Licence Deed.

Having heard the learned counsel for the parties at length we are

satisfied that the predominant and main purpose, for which the suit

premises have been let is residential and therefore proceedings for

eviction under Section 14(1)(e) of the Act have been rightly held by

the High Court to be maintainable.

Section 14 of the Act protects tenants from eviction. An order

for the recovery of possession of the tenancy premises can be made by

the Rent Controller on one or more of the specified grounds. One of

the grounds provided by clause (e), relevant for our purpose, is

under:-

"(e) that the premises let for residential purposes

are required bona fide by the landlord for

occupation as a residence for himself or for

any member of his family dependent on him,

if he is the owner thereof, or for any person

for whose benefit the premises are held and

that the landlord or such person has no other

reasonably suitable residential

accommodation;

Explanation.- For the purpose of this

clause, "premises let for residential

purposes" include any premises which

having been let for use as a residence are,

without the consent of the landlord, used

incidentally for commercial or other

purposes;"

It is not permissible under the scheme of the Act to file an

application seeking an order for the recovery of the premises let for

non-residential purposes on the ground of bona fide requirement.

Letting out for composite or mixed purposes and whether the premises

let for such composite or mixed purposes can be got vacated on the

ground of bona fide requirement is not specifically provided by the

Act.

In our opinion the expression 'the premises let for residential

purposes' should be construed liberally and not technically or

narrowly; meaning thereby, where the premises are solely let for

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residential purposes they are undoubtedly covered by Section 14(1)(e)

but even when the premises are let out for composite or mixed

purposes if the predominant or main purpose of letting is for

residential purposes, the same would be included within the

expression 'the premises let for residential purposes'. An incidental, a

secondary or unauthorized user of the premises for purposes other

than residence would not take the premises out of the meaning of the

expression 'the premises let for residential purposes'.

Premises are capable of being classified into residential and

non-residential depending on the purpose of letting. This is the broad

classification. Question of construction and determining the purpose

of letting may pose difficulty when the premises are let for mixed,

composite or dual purposes, i.e., where the entire premises are

allowed to be used for an overlapping purpose or the premises

forming subject-matter of one tenancy are allowed to be used for

purposes more than one. In such a case it cannot be said that the

premises would cease to be of either category, i.e., they would be

neither residential nor non-residential. Rather it would be necessary

to find out what is the "main and dominant purpose" of letting as

distinguished from "subsidiary, ancillary or incidental purpose". The

theory of determining the purpose of letting by reference to finding

out the main and dominant purpose of letting has ample judicial

authority to derive support from. In Dr. Sewa Singh Vs. Smt.

Revinder Kaur and Anr. 1970 RCJ 615 SC it was held that

residential building will remain so even if it is used by a person

engaged in one or more of the professions partly for his business or

partly for his residence. The building in the occupation of the tenant

was undoubtedly residential and on the evidence it was found that part

of it was being used by the tenant, a medical practitioner for

examining patients and prescribing medicines. In Allenbury

Engineers Pvt. Ltd. Vs. Shri Ram Krishna Kalmia and Ors. (1973) 1

SCC 7, to determine whether the tenancy was for manufacturing

purpose within the meaning of Section 106 of the Transfer of Property

Act, 1882 the Constitution Bench applied the test of 'main and

dominant purpose' as distinguished from 'incidental purpose'. The

dominant purpose of lease was for storage and resale of the vehicles.

Some spare parts were manufactured and used in the vehicles as

incidental to the main purpose of disposal of the vehicles as without

repairing or reconditioning the vehicles the disposal could hardly have

been possible. It was held that the dominant purpose of the lease as

manufacturing purpose was not established. In Sant Ram Vs.

Rajinder Lal and Ors. (1979) 2 SCC 274, a cobbler carried on

cobbler's business in the shop. Incidentally he slept in the back

portion of the shop at night while he worked during the days. On the

off days he would go home at night. It was held that the purpose of

letting remained exclusively commercial as the user of back portion

for sleeping in the night was not incompatible with day's user.

In Smt. Nai Bahu Vs. Lala Ramnarayan and Ors. (1978) 1

SCC 58, this Court has held that a non-residential accommodation can

be allowed to be vacated by an order for eviction if the same was

genuinely required not only for non-residential use but also a portion

of it bona fide for personal residence. It clearly follows that user of a

portion for personal residence would not alter the essential and basic

or dominant user for non-residential purposes. Hiralal Kapur Vs.

Prabha Choudhury (1988) 2 SCC 172, is a reverse case on facts but

deals with Section 14(1)(e) of Delhi Rent Control Act, 1958. The

premises were residential in nature and let out for residential

purposes. The landlord, a lawyer, applied for recovery of possession

of his residential premises pleading bona fide requirement for his

residential purposes. It was held that merely because the lawyer-

landlord intended to use a portion of the premises for purposes of his

office, library or study, the same would not detract from his

requirement being for residential purposes. It would be different

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when the entire premises sought to be got vacated are needed solely

for use as office and library in which case the requirement would

cease to be residential merely. This decision clearly spells out that

incidental, secondary or partial user of the premises for office

purposes along with use as residence of the premises does not alter the

main or predominant purpose of user of the premises and the same

continues to be residential.

In Lakshman Santu Sintre Vs. Balkrishna Keshav Shetye,

AIR 1925 Bombay 398, Chief Justice Macleod, speaking for the

Division Bench opined that the fact that a man carries on business or

works in the same premises, which he uses for dwelling in, cannot

thereby prevent those premises coming within the category of

premises used as a dwelling house.

In Waller & Son, Ltd. Vs. Thomas, 1921 (1) KB 541, the

question arose __ what is a dwelling house? The Bench applied the

test __ What is the dominant purpose and principal user of the

premises? The Bench opined that answer would determine the

purpose of tenancy and user of premises. The dominant purpose and

object may be to carry the business of a licensee and the provision of

accommodation for the occupants may be a mere adjunct of the

business. Then the premises do not cease to be 'business premises'

because dwelling accommodation necessary for the purpose of the

business is attached. On the other hand a dwelling house would not

cease to be so by reason only that part of the premises is used as a

shop or office or for business, trade or professional purposes.

In Feyereisel Vs. Parry & Ors., 1952 (1) All E.R. 728, the

premises let by a landlord to a tenant were a camping site and a

bungalow thereon. The tenant occupied the bungalow and carried on

the business of a camping site proprietor. It was held that the camping

site was the main object of the letting and the bungalow was a mere

adjunct to the business carried on by the tenant and therefore it was

held that the dwelling house went along with the camping site. The

test of principal and dominant object of letting and user of the

premises was reiterated. The question formulated was __ "Is one thing

the adjunct of the other, or the other of the one?"

Incidentally, we may refer to a Full Bench decision of Madras

High Court in T. Dakshinamoorthy Vs. Thulja Bai & Anr. AIR 1952

Madras 413. The Full Bench held the English test being applicable in

India too, as sound and reasonable, and approved the test of dominant

purpose and principal user being applied for determining the purpose

of letting though the Bench observed that such test was not always of

easy application and the difficulty in the actual application of the test

was capable of being taken care of by a margin of judicial discretion

in the matter of the determination of the question of the character of

the building as a question of fact has necessarily to be allowed for. To

quote, the Full Bench held, "Instances of transactions inspired by

mixed motives and intents in which the question of the main, real and

dominant motive and intent has to be canvassed for validating or

invalidating them are not uncommon in other branches of law. There

can in our judgment be no reason or principle why a canvass of the

main, real and dominant purpose should be regarded as not legitimate

in this branch of law in cases where the letting is actuated by mixed

purposes."

In our opinion, for the purpose of Section 14(1)(e) of the Act,

so long as the principal and dominant purpose of letting is residential

merely because a mixed user of the premises or user of a part or

incidental or ancillary user of the premises is permitted for activities

other than residential, the purpose of letting the premises would not

cease to be residential and the premises would continue to be

governed by Section 14(1)(e) of the Act.

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It is not the case of the appellants that any business activity is

being carried out in the suit premises or was permitted to be carried on

or was included within the purposes of letting. Once the terms of

tenancy have been reduced into writing the purpose of tenancy has to

be determined by reading the relevant clauses of the deed and

extrinsic evidence making a departure from the terms of deed may

not be admissible. In case of doubt or vagueness resort can be had to

other factors such as constructional features of the premises, their

location, the amenities available, the conveniences provided, the

number of rooms and the actual user to which the premises have been

subjected. The opening and governing part of Clause 6 is couched in

a mandatory form 'the licensee shall use the premises for the

residence of the directors, partners and officers'. In the succeeding

sentence the use of word 'however' is suggestive of the fact that

incidental user of the tenancy premises for the office purpose also was

permitted by the landlord. Such incidental user is permissive and not

purposive. And that too has been made dependent on the

permissibility determinable by reference to the laws governing the

local authority. It is not disputed that the provisions of Delhi

Development Act, 1957 and the Delhi Municipal Corporation Act,

1957 do apply to the locality where the tenancy premises are situated.

Section 14 of DDA Act provides that after the coming into

operation of any of the plans in a zone, no person shall use or permit

to be used any land or building in that zone otherwise than in

conformity of such plan. The inhibition contained in Section 14

applies in full force inasmuch as the master plan and the zonal plan

provide for Greater Kailash Part I being residential locality only. That

is why the user of one room as an office was held liable to be

penalized under Section 29 of the Act. Section 347 of the DMC Act

imposes restrictions on uses of buildings within Delhi Municipal

Corporation area. No person shall, without the written permission of

the Commissioner or otherwise than in conformity with the

conditions, if any, of such permission, change or allow the change of

use of any land or building. Section 430 provides for the manner in

which a written permission may be granted. It has to be in writing

and signed by the Commissioner or by the officer empowered in this

behalf. It should satisfy other requirements of Section 430. A perusal

of the statement of Rajbir Pal, RW2 does not spell out any written

permission by the Commissioner or an empowered officer having

been allowed in accordance with Section 347 read with Section 430 of

the DMC Act so far as the suit premises are concerned. Construing the

statement of Rajbir Pal as much in favour of the appellants as

possible, all that can be said is that the premises were found to have

been misused and the misuser was condoned for the period 1.4.1989

to 31.3.1991 by levying misuse charges. The appellants did send a

letter dated 1.3.1990 to the Corporation authorities requesting for

permitting commercial user of the suit premises. However the exact

nature of prayer is not known as the contents of the letter were not

brought on record. Certainly, Rajbir Pal does not depose to any such

permission having been granted by the Commissioner to the

appellants.

Clause 7 of the Deed prohibits user of the premises for business

purposes. Clause 12 obliges the occupants to comply with the laws

governing the locality and as applicable to the local authorities.

Clause 16 restrains use for any illegal purpose, i.e., a purpose not

permitted by law. These clauses obviously attract applicability of

Sections 14 and 29 of the DDA Act as also Section 347 of the DMC

Act.

The upshot of the above discussion is that the primary and

dominant purpose of letting the suit premises is residential.

Commercial activity therein is not permitted. Incidental user for

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office purpose is permitted subject to the condition of such user being

permissible under the municipal laws which it is not. In any case such

user being incidental or ancillary, the same would not detract from the

primary or dominant purpose of letting. The suit premises have been

rightly held by the High Court to be 'the premises let for residential

purposes' within the meaning of Section 14 (1)(e) of the Act.

The decision in Kamla Marwah Vs. M/s. Kapur Fabrics, 48

(1992) DLT 636, was forcefully relied on by learned senior counsel

for the appellants. It is a single Bench decision of the High Court of

Delhi. Having gone through the decision, we find it a case of a

peculiar nature proceeding on its own facts and clearly distinguishable

so far as the present case is concerned. Section 14(1)(e) of the Act did

not come up for the consideration of the Court. The eviction was

sought for under Section 14(1)(k) of the Act. The lessee was obliged

by clause (9) of the lease deed to use the premises for his residence

only. However, it was found that in brazen disregard of the relevant

clause of the lease deed the tenant indulged into misuser of the

premises deviating from the permitted user of the residence only and

in spite of the protest by the landlord. As the lease deed by clause (18)

incorporated permission from the landlord to the tenant to utilize the

premises, in case he so wanted, wholly or partially, for office purposes

but subject to getting permission from the Government, it was held

that so long as the tenant secured condonation of misuser from the

Land and Development Office on payment of charges or penalty, the

eviction order could be held in abeyance. However, still if the

misuser was not condoned by the L&DO office the tenant must stop

the misuser finally and suffer an eviction order in the event of

defiance. Clearly, the High Court was not determining whether the

purpose of letting was residential within the meaning of Section

14(1)(e) of the Act; all that the High Court considered was whether

the user or dealing with the premises by the tenant was contrary to any

condition imposed on the landlord by the Government or local

authority within the meaning of Section 14(1)(k) of the Act.

The learned senior counsel for the appellants referred to the

explanation appended to Section 14(1)(e) and submitted that the

Legislature in its wisdom thought fit to enact that premises let for

residential purposes if used incidentally for commercial or other

purposes by the tenant but without the consent of the landlord would

not alter the purpose and the enactment of the explanation is

suggestive of legislative intent that even incidental user for

commercial or other purposes if accompanied by the consent of the

landlord would take the premises out of the expression 'premises let

for residential purposes'. We cannot agree. The enactment of

explanation is ex abundanti cautela. All that the explanation say is

that the tenant cannot by his unilateral act of impermissible user, alter

the purpose of letting. This explanation has nothing to do with

determining the main, principal or dominant purpose of letting the

theory which in our opinion applies to interpreting the expression "the

premises let for residential purposes" in Section 14(1)(e) of the Act.

The appeal is dismissed with costs. The appellants are allowed

four months' time from today for vacating the suit premises subject to

filing the usual undertaking within a period of three weeks from

today.