Dr. Amrik Singh Chatha and Others vs Bishamber Dass and Others

V.K. Bali, J.—Before the matter could be taken up on merits, the learned counsel representing the respondents has raised a preliminary objection. He contends that the present eviction petition filed by Amrik Singh and other landlords could not possibly be maintained inasmuch as S.C.O. Nos. 1026-27, Sector 22-D, Chandigarh stood resumed and that by virtue of resumption, the landlord has lost all rights, title or interest. For the aforesaid contention, the counsel relies on Babu Singh Bains v. Union of India and Ors. (1971)73 P.L.R. 250 wherein the Apex Court has held that once the original allotment stands cancelled and resumption by the Estate Officer becomes final, the allottee had no right or title to the allotment to site or building.

I have heard Mr. Dogra and Mr. Sarin, learned counsel representing the parties, but I find that there is absolutely no substance in the contention raised by Mr. Dogra.

The facts of the case as necessary to deal with the contention raised by Mr. Dogra would reveal that earlier in point of time petitioners filed an application u/s 13 for eviction of the tenant-respondent. On 2.9.1978 litigating parties i.e. present parties to the dispute compromised the matter. The respondents agreed to stop misuser by 31.12.1978. So far as the order of resumption is concerned, the same was passed on 27.7.1976. Constrained the petitioner filed an appeal which was dismissed on 26.7.1978. Still being dissatisfied, the revision was carried which came to be disposed on 17.8.1979. It is conceded position that an order not to resume was subject to two conditions namely that the forfeited amount shall be deposited by the petitioner and misuser shall be stopped by 31.8.1980. It is quite apparent from the records of that when misuser did not stop, petitioners were constrained to file a second petition for eviction which came to be filed on 27.1.1979. Meanwhile, it was not within the powers of the petitioner to stop the misuser by the tenant. Being not in a position and guilty of misuser, the order of resumption had to be revived. However, the last date as stipulated in the order, the petitioner made an application for extension of time and the same was granted vide order dated 16.12.1980 and for second time upto 31.3.1981. Further, the fact would reveal that it was second petition and eviction which came to be allowed in favour of the petitioners on 19.1.1981 i.e. before the time extended for the second time stood expired.

The facts as have been fully detailed above, would demonstrate that by the time the order of resumption came to be passed as finally ordered, not only the second eviction petition had been filed but the same had even been allowed. It is not, thus, a case, where eviction petition might have been filed later in point of time when the resumption order had attained finality. That being so, no other question arises for determination and the Court is of the clear view that the judgment cited by the learned counsel for the respondents shall not apply to the facts.

JUDGMENT

V.K. Bali, J.—This order may be read in continuation of my order dated 13.8.1999 vide which preliminary objection raised by the respondents with regard to maintainability of this petition was replied.

Before this matter is discussed on the anvil of law on which the learned counsel representing the parties have relied, it shall be useful to give a backdrop of the events leading to filing of this revision petition.

S.C.O. No. 1026-1027 located in Sector 22, Chandigarh was earlier owned by one Ram Piari who is said to have been allowed the same for running" general trade under the rules framed under the Capital of Punjab (Development and Regulation) Act, 1952. Ram Piari through registered sale deed dated 10.6.1974 Ex. P2 let out the premises to respondents Bishamber and others for a period of five years on monthly rent of Rs. 1,200/-. The case as set out in the petition is that the premises were let out for running general trade as would be also clear from clauses 12 and 13 of the lease deed Ex. P-3 which are reproduced below:-

"12. That the lessees shall strictly abide by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and the rules made thereunder.

That the lessees shall not use the said premises for the purposes other than the general trade."

S.C.O. No. 1026-1027, the premises in dispute herein was sold by Ram Piari to the present petitioners vide registered sale deed dated 29.4.1976. Soon thereafter on 27.7.1976, Estate Officer resumed the premises as the same was being used for the purpose other than for which it was allotted. The premises were being used as Restaurant despite the fact that it was allotted for running general trade. Meanwhile, the petitioners filed eviction petition under the East Punjab Urban Rent Restriction Act, 1949 on the ground of change of use of premises from general trade to, for running a Restaurant. Aggrieved, the petitioner filed an appeal against the order of resumption which was dismissed on 18.7.1977. Still aggrieved, the petitioners filed a revision before the Chief Administrator which was dismissed on 26.7.1998. Still aggrieved, the petitioners filed revision before the Chief Commissioner, U.T. Chandigarh. When the same was pending, respondents filed C.W.P. No. 472 of 1977. However, so far as the eviction proceedings are concerned the matter was compromised between the parties on 2.9.1978. It appears that the Chief Commissioner allowed the revision preferred by the petitioners on the ground that the compromise has been arrived at between the parties. However, the order of resumption was set aside subject to the petitioners depositing forfeiture amount of Rs. 5,400/- and that the misuser shall come to an end before 31.8.1980. This order was passed by the Chief Commissioner on 17.8.1979 (Annexure P-3). When the misuser as promised by the respondent-tenant, as per compromise did not stop, eviction petition giving rise to the present petition come to be filed on 27.1.1979. This time besides pleading the original ground of change of user, it was further pleaded that the respondents had failed to abide by the compromise arrived at between the parties resulting into the dismissal of the earlier eviction petition filed by the petitioners. The matter was contested by the respondents giving rise to the following issues:-

Whether there exists relationship of landlord and tenant between the parties? OPA

Whether the respondent is liable to be evicted on the ground of change of user? OPA

Whether the compromise as alleged in para No. 6 of the reply filed was entered into by mis-representation? If so, to what effect? OPR

Whether the order of resumption by the Estate Officer has been withdrawn? If so, at what condition? OPA

Relief.

After the resultant trial, vide orders dated 19.1.1981, the Rent Controller ordered the eviction of the respondents. Aggrieved, the respondent-tenants filed an appeal before the Appellate Authority which was accepted vide order dated 14.1.1982, thus, reversing the order of eviction passed by the Rent Controller. It is against this order of the Appellate Authority that the present revision petition has been filed.

Before I may proceed with this case any further, it may be mentioned that the matter came up for hearing before this Court on 13.8.1999, when Mr. Dogra, the learned Senior Advocate, representing the respondent-tenants raised preliminary objection regarding maintainability of the revision petition. His contention that the building having since been resumed, there was no relationship of landlord and tenant between the parties and, in any case, the revision was not competent, was repelled by this Court vide its interim order of even date i.e. 13.8.1999.

I have heard learned counsel representing the parties and examined the records. Mr. Sarin, learned Senior Advocate representing the petitioners-landlord vehemently contends that the ground of change of user i.e. from general trade to running of Restaurant was proved to the hilt in this case as on the ground of change of user the site was resumed by the Estate Officer which itself was sufficient to hold a change of user and order eviction of the tenants on that ground. Mr. Dogra, learned Senior Advocate representing the respondents, however, joins issue raised by Mr. Sarin and pleads for dismissal of the petition.

After hearing the learned counsel for the parties, I am of the firm view that whereas Rent Controller proceeded rightly in ordering eviction of the respondent while accepting the petition for eviction filed by the petitioners herein, the Appellate Authority erred by reversing the said order. It requires to be mentioned at this stage that it was pleaded in the eviction petition on behalf of the petitioners-landlords that the demised premises was leased out to the respondents on 10.6.1974 by its erstwhile owner Ram Piari for a period of five years. The purpose for which the premises was leased out is also mentioned in paragraph 3 of the petition by the petitioner-landlords. So much so the original lease deed dated 6.1.1974 was attached with the petition itself. In the corresponding para of the written statement filed on behalf of the respondents all that has been pleaded is that the petitioner-applicants did purchase the building and the answering-respondent did pay the amount of rent till the answering-respondent did pay the amount of rent till the answering-respondents became aware that the Union Territory of Chandigarh had resumed the premises and had thus become the owners thereof. The premises were never let out for any particular or general trade. It is significant to mention here that neither in para 3 nor anywhere else in the entire written statement filed on behalf of the respondents, factum of the premises having been let out on the dint of lease deed Ex. P.2 has been denied. It is no doubt true that when respondent appeared as his own witness, and stated in his examination-in-chief that they were running a restaurant in the demised premises since 1971 and the same were taken on rent from Smt. Ram Piari in 1971 for running a restaurant. The statement made by him in examination-in-chief was, however, totally demolished when he admitted in his cross-examination that at the time of taking the demised premises on rent from Smt. Ram Piari, the previous owner, a lease deed was executed between them and Ram Piari, which is Ex. P.2. He further admitted that after the purchase of the demised premises by the petitioner, he continued to remain tenant therein on the same terms and conditions on which he had taken the premises on rent from Ram Piari vide Ex. P-2. He further admitted in his cross-examination that the demised premises were 1 eased out to the respondents vide Ex. P-2 for the purpose of general trade. It shall be useful to extract relevant part of his cross-examination which runs thus:-

"It is correct that at the time of taking the demised premises on rent from Smt. Ram Piari, the previous owner, a lease deed was executed between us and Ram Piyari which is Ex. P.2. It is correct that after the purchase of the demised premises by the petitioner, I continued tenant therein on the same terms and conditions on which I had taken the premises on rent from Ram Piyari vide Ex. P.2."

"It is correct that the demised premises were leased out to the respondent vide Ex. P-2 for the purpose of general trade."

The learned Appellate Authority on the basis of pleadings and contentions raised before it, reference whereof has been made above, came to the conclusion that the premises in dispute were let out to the respondents in the year 1971 and the lease deed Ex. P-2 came to be executed between Ram Piari and the respondent in 1974 simply on account of fear of eviction, as the building has since been resumed by the Estate Officer. In considered view of this Court the findings recorded by the Appellate Authority, as mentioned above, need to be set aside as the same are totally contrary of the record of the case. While arriving at the conclusion, as referred to above, it appears that the Appellate Authority only took into consideration the self serving statement of respondent who appeared as his own witness as RW-1 and did not take into consideration cross-examination adverted to him and other material that came on records of the case. The factual position being as it is, that the tenancy commenced in the year 1971 vide lease deed, Ex. P2 for running a general trade in the premises in dispute, the real controversy is on the issue as to whether the respondents are liable to be evicted under the provisions of East Punjab Rent Restriction Act on the ground of change of user despite the fact that the purpose of use, as mentioned in the rent note, Ex. P-2, is general trade and the same is being used as a Restaurant, if the change of use is from the very inception of tenancy, i.e., if the restaurant is being run ever since, 1971."

Whereas Mr. Sarin on the basis of statute and the judgments rendered by this Court and the Supreme Court contends that once the purpose of letting out is specified, the same can be changed only by a written consent of the landlord and, therefore, the fact that the building was put to a use for a purpose other than for which it was let out from the very inception or immediately thereafter is of no significance, Mr. Dogra, learned counsel representing the respondents also relies upon some judgments to contend otherwise. Before the contentions of learned counsel, as noted above, are discussed any further, it requires to be mentioned that the evidence on record does tilt in favour of the plea that the premises in dispute is being used, if not since inception, then immediately thereafter as restaurant.

Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949, which specifies the ground of eviction pressed in this case reads, thus:-

"(i) that the tenant has after commencement of this 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; or... ... ..."

One thing that transpires from the reading of the relevant section dealing with the ground of eviction would clearly demonstrate that the purpose for which the building has been rented out/leased out can be changed only with the written consent of the landlord and concededly, there is not written consent that might have been either pleaded or even sought to be proved.

The clause dealing with eviction, as pressed for in the present case and in a situation as is obtainable in the present case, i.e. when change of user was made from the very inception of tenancy and if so what would be its effect, came to be discussed by this Court in Dharam Raj and Another Vs. Roshan Lal and Another, wherein after referring to the case law in issue it was held, "that a review of the judicial precedents, in the context of plain meaning of the relevant statutory provisions, leaves no doubt, that mere knowledge of the landlord of change of user, may be even from the very inception of the tenancy,'' would not absolve the tenant from liability for ejectment on that ground, in the absence of any written consent of the landlord to such a change of user."

The fact of Dharam Raj''s case (supra) reveal that from the very inception of tenancy premises described as ''shops'' in the rent note, were used, to the knowledge, though without the written consent of the landlord, as a godown/workshop. The question that came to be framed and was ultimately answered by a Division Bench reads as follows:-

"Where from the very inception of the tenancy, premises described as ''shops'' in the rent note, are used, to the knowledge, though without the written consent of the landlord, as a godown or workshop, would thus render the tenant immune from ejectment on the ground of change of user?"

The question was answered in negative and while doing so the Division Bench relied upon the earlier case law on the issue.

Mr. Dogra, the learned counsel representing the respondents, however, pleads that if the premises, in dispute had been used as restaurant from the very inception of tenancy, it shall be presumed that it was let out for the purpose of running restaurant. For the aforesaid contention Mr. Dogra relies upon a Single Bench decision of this Court in Bawa Daswanda Singh Vs. Saswant Singh and Others, . The facts of the aforesaid case, however, reveal that even though when the tenancy started rent note was written between the parties but in so far as first tenancy is concerned, it could not be proved to be pertaining to the property in dispute as also that the purpose of letting out was not mentioned therein. With regard to the second tenancy, there was no rent note. While dealing with the facts of that case, the Hon''ble Single Judge held as follows:-

"This document firstly has not been connected with the demised premises and secondly, it is not established from this document that the property was let out for residential purpose. The rent note Exhibit A-6 only establishes that Mana Singh took on rent one room, kitchen and a kothi alongwith the court-yard at rental value of Rs. 200/- per month with effect from 1.5.1949. There is no rent note with regard to the second alleged tenancy through which three quarters besides some vacant land was leased out to Mana Singh at the rate of Rs. 100/- per month. In these circumstances, it cannot be said that Ex. A-6 determines the character of the tenancy."

The facts of the present case are in sharp contrast to the facts of the case in hand. As mentioned earlier, registered lease deed Ex. P-2 came to be executed between the previous owner of the premises in dispute, namely, Ram Piari and the respondents herein. The respondent who appeared as RW-1 candidly admitted that at time of taking the demised premises on rent from Smt. Ram Piari, the previous owner, a lease deed was executed between them and Ram Piari which is Ex. P-2. The relevant part of this statement has also been reproduced above. The contention of Mr. Dogra based on Bawa Daswandha Singh''s case (supra) that if premises are put to a particular use from the very beginning, purpose of letting out shall be presumed from the use itself may hold true where there is no rent note or lease deed that might have been executed between the parties. However, not only that a lease deed came to be executed but it specified the purpose for which the premises in dispute could be used and so admitted by the respondent himself. The Court is of the clear view that the judgment rendered by this Court in Bawa Daswandha Singh''s case (supra) cannot apply to the facts of this case.

Mr, Sarin also relies upon Anil Kumar Vs. Shri Avtar Singh, to contend that if the demises premises had been resumed on the charge that the same is being used for a purpose other than for which it is leased out would itself prove change of user of such a nature which shall entail eviction u/s 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. The Hon''ble Single Judge in Anil Kumar''s case (supra) in the very first paragraph while stating facts of the case mentioned as follows:-

"The challenge here is to the order of ejectment passed against the tenant on the ground of change of user. The demised premises being a booth in Sector 29, Chandigarh. According to the letter of allotment pertaining to the said booth issued by the Estate Officer, Chandigarh to the landlord, the permitted use of this booth was the running of a barber shop and this was also the specific purpose mentioned in the rent note Exhibit A 1 executed by the tenant in favour of the landlord. The tenant has been and is admittedly running instead of a pan and confectionery shop there. Change of use is, thus, writ charge."

It was further held that, "in the context of provisions of rule 9 of the Chandigarh (Sale of Sites and Buildings) Rules, 1966, such change of user clearly puts the landlord in jeopardy of resumption of the booth in terms of Section 8-A of the Capital of Punjab (Development and Regulation Act, 1952. The likelihood of damage and loss to the landlord is, thus, apparent and real." The contention of Mr. Sarin and his reliance upon the judgment aforesaid is with a view to prove that change of business from general trade to restaurant is a material and significant change, not an ordinary one which may ultimately affect the use of building for the purpose for which it was rented out. Mr. Dogra, on the other hand, contends that change of user from general trade to restaurant would not be a very material change falling with the vice of Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. For the proposition as advanced by him, he relies upon the judgments of Supreme Court in Mohan Lal Vs. Jai Bhagwan, and Gurdial Batra Vs. Raj Kumar Jain, Besides the fact that change of user in the first case was from liquor business to that of general merchandise and in the second case from cycles and rickshaw repairs to selling of televisions, both these cases did not pertain to Chandigarh where the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 are applicable.

For the reasons mentioned above, this revision is allowed. The order passed by the Appellate Authority is set aside and that of the Rent Controller is restored. The respondent-tenants are, however, allowed two months time to vacate the premises in dispute subject to an undertaking to be furnished before the Rent Controller that they will pay the entire arrears of rent, if any, and advance rent for two months as also that they will vacate the building on the expiry of the period given by this Court subject to the stay granted to them by the Supreme Court, if any appeal is filed by them. The undertaking be furnished before the Rent Controller within two weeks from the date of copy of this order is supplied to the respondents. Parties are left to bear their own costs.

Copy dasti to the learned counsel for the parties on usual payment.