Dr. Jagjit Singh Mehta vs Dev Brat Sharma

D.V. Sehgal, J.—This revision petition by the tenant is directed against an order of his ejectment from the premises in dispute passed by the learned Rent Controller, Jalandhar, vide his judgment dated 21.2.87.

The landlord-Respondent invoking the jurisdiction of the Rent Controller u/s 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short the Act) sought ejectment of the Petitioner from the premises which he styled as a "room" forming part of bearing No. PN-37/2. Ladowali road, Jalandhar. He averred that he was working as a District Development and Panchayat Officer, at Jalandhar and wag due to retire on 31.7.1986 and is, therefore, a "specified landlord" within the meaning of Section 2(hh) of the Act. He was holding appointment in the public service under the State of Punjab. He required the demised premises for his personal use and occupation. He is a Law Graduate and after retirement from service he intended to start his practice as an advocate at Jalandhar and he required the premises in dispute for setting up his office. The application was duly supported by an affidavit and a certificate of the competent authority that the Respondent was due to retire from service on 31.7.1986. The Petitioner was allowed to contest the application. He filed his written statment. Though he denied therein the allegations of the Respondent that he is a "specified landlord" witnin the meaning of the Act during the course of evidence there was virtully no contset on this point and as such the learned Rent Controller rightly held that the Respondent is a specified landlord.

The Petitioner, however, denied that the premises in dispute is a room. He contended that it is a shop. The site plan produced by the Respondent himself showed that the shop in dispute is totally separate and cut off from the main residential building. On either sides of this shop there are other three shops owned by the Respondent which are also a part of the building owned by him. The premises in dispute thus being a shop is a ''non-residential building'' and the Respondent could not get the same vacated for his personal occupation u/s 13-A of the Act. It was further averred that the Petitioner who is a Medical Practitioner for about 12 years has been in occupation of this shop. So the contest was mainly confined to the question whether- the premises in dispute is a shop and thus a ''nonresidential building'' within the meaning of Section 2(d) of the Act or part of the ''residential building'' within the meaning of Section 2(g) thereof. The learned Rent Controller vide judgment under revision mainly relying on the plan of the building sanctioned by the Municipal Committee has held that the premises in dispute is a part of the residential building and is not a shop and has thus upheld the plea of Respondent and negatived the defence raised by the Petitioner. As a result it has been held that the premises in dispute being suitable for carrying on legal practice by the Respondent, is required by him and as such the order for recovery of possession of the same was passed in his favour.

I have heard the learned Counsel for the parties and have also examined the pleadings and evidence brought on the record before the learned Rent Controller. I am of the considered view that the learned Rent Controller has erred in the exercise of his jurisdiction while passing the order of ejectment through the judgment under revision. His jurisdiction u/s 13-A of the Act would be attracted only in case the premises in dispute is a "residential building or scheduled building". It was admittedly not a scheduled building because the Petitioner was using the premises in dispute exclusively for his medical practice while he is residing in a separate house owned by his wife. So what is required to be seen is whether the premises in dispute could be styled as a residential building.

The line plan of the entire building owned by the Respondent has been proved on the record as Exhibit A.2. The premises in dispute is shadowed under red colour. It is 21''x 10'' in size and opens on the West on 60'' wide Ladowali road. There are two other shops abutting the road on its southern side and one shop on its northern side again abutting the road which are also owned by the Respondent It is further not in dispute that on the back of these shops is the residential house of the Respondent. There is, however, no opening from any of these four shops including the one in occupation of the Petitioner leading towards the residential part of the house of the Respondent. The Respondent relied upon the certified copy of the plan Exhibit A.1 which was originally sanctioned by the Municipal Committee for construction of the entire building. It shows that there were two shops and two rooms and a verandah in front abutting Ladowali road at the time the house was constructed. While the shops are numbered as 2 and 4 in red, the rooms are indicated by numbers 1 and 3. Shops as also the rooms were of the same size i.e. 16''x10''. Both the rooms were connected with the residential portion of the building as on rear of both the rooms there was an opening towards the residential portion Late at some stage, however, either the Respondent or his mother who originally owned the building, had carried out radical changes in the portion of the building where now the present four shops abutting Ladowali road exist. 4 wide verandah in front of the two rooms and the two shops was included in the shops- and the steel rolling shutters were installed in front of them While the room indicated as No. 1 in the plan. Exhibit A.1 continued to remain a room, the verandah in front of it was converted into a shop The door of this room toawrds the verandah was closed. There is a wall now in place of the door. Thus the rear of this shop, which was originally a part of the verandah, has no connection with the residential part of the building. The shop indicated as No 2 in the plan Exhibit A 1 also underwent radical change The rear part of this shop was converted into a store 5''x 10''in size while verandah in front of it has been included into the shop. Thus compensating it in the area which is now again 16''X 10''. There is a steel rolling shutter in front of it. The room indicated as No 3 in the plan Exhibit A 1 also underwent a change in that the verandah in front of it was included in its area and a steel rolling shutter was installed in its front abutting Ladowali road. The opening on its rear was closed with bricks and cement mortar. It was thus closed by a Pardah wall. The width of this opening towards the residential portion of the building has been converted into an almirah. The shop indicated as No. 4 in the Exhibit A.1 underwent similar change as shop No. 2. Its rear was converted into a store of the size of 10'' x 5'' while its front verandah was included in the shop The shop has no connection with the store in the rear. There is a steel rolling shutter on the front of the shop abutting the road. The position is more clear from the photographs which were produced before me by the learned Counsel for the Petitioner at the time of arguments and which have been marked as Mark ''A'' and Mark ''B''. The correctness of these photographs has not been disputed by the learned Counsel for the Respondent. The photograph Mark ''A'' shows the front of the building belonging to the Respondent in yellow colour. All the four shops shows that these have steel rolling shutters On the right hand of these four shops there is a steel gate holding towards the residential portion of the building of which these four shops form part.

In fact in his own statement as AW 2 the Respondent has admitted that there is no door or ventilator between the premises in dispute and the residential portion of the house in the rear. He admitted that the original door was converted into an almirah. The almirah opens into his house having its back in the disputed premises. The back of the almirah is covered by bricks and cement plaster. The verandah on Ladowali road in front of room No. 1, shop No. 2, room No. 3 and shop No. 4 in Exhibit A.1 was merged into shop Nos. 2, 3 and 4 while that in front of room No. 1 was converted into a small shop. Entrance at point ''Z'' in front of room No. 1 was closed by 9" thick wall. He further admitted that these alterations were made in the year 1973. While room No. 1 in the plan Exhibit A.2 was let out about 4/5 years earlier, those indicated as Nos 2, 3 and 4 were let out 5/6 years earlier, in the year 1973 and about 25 years back respectively All this evidence leaves no scope for doubt that the premises in dispute is a shop completely disconnected from the rear part of the residential house of the Respondent and it was let out as a shop. The receipts Exhibit D 1 to D.4 executed by Shri Mool Raj Sharma father of the Respondent described the premises in dispute as shop No doubt the four shops mentioned above as also the residential part of the house bear one municipal number but since these shops have been let out separately and independently solely for the purpose of business or trade these will come within the definition of non-residentiat building being part of a building let out for the said purpose falling within the meaning of Section 2(d) read with Section 2(a) of the Act. I find support for this view from Roshan Lal v. Dharam Pal (1985) 87 P.L.R. 130 and Om Parkash Uppal v. Desh RaJ 1985 (1) R. L. R. 320. Similar view has been taken by me in Lal Chand v. Balkishan (1987) 92 P.L.R. 222.

Learned Counsel for the Respondent vehemently argued by placing reliance on the Full Bench judgment of this Court in Hari Mittal v. B. M. Sikka (1986) 89 P. L. R. 1 that even the Respondent had no right to convert the residential building into a non-residential one without the permission of the Rent Controller and could not let out the residential portion so converted for purposes of business or trade. In my view, however, the context in which Hari Mittal''s case was decided is altogether different. There the question was whether a residential building can be converted into a non-residential one by putting it to a non-residential use That is not the question here. In the present case by making structural changes the rooms were converted into shops. As the photograph Mark ''A'' shows, these shops from part of a long line of shops abutting Ladowali road and this appears to be a shopping centre. The ratio of Hari Mittal''s case, thereof, is not at all applicable to the case in hand.

Consequently, I hold that the premises in dispute being a nonresidential building could not be got vacated by the Respondent by invoking the provisions of Section 13-A of the Act and the learned Rent Controller wrongly assumed jurisdiction in directing eviction of the Petitioner therefrom.

As a result, I allow this revision petition, set aside the judgment of the learned Rent Controller and dismiss the application u/s 13 A of the Act filed by the Respondent. I, however, leave the parties to bear their own costs.