Inderjit Singh vs Sham Lal Chopra and Another

V.S. Aggarwal, J.—Respondents are the landlords. They filed a petition for eviction against petitioner Inderjit Singh with respect to a portion forming part of Shop-cum-Flat No. 14, Sector 22-D, Chandigarh. The grounds of eviction taken by the respondents were that the petitioner who is a tenant has failed to pay the arrears of rent and further the respondents bona fide require the property in question for personal use and occupation. It was asserted that respondents intend to shift to the tenanted premises alongwith members of their family. The petition for eviction was contested. The plea offered was that property is commercial in nature and further that the ground of bona fide personal requirement was not available to the respondents. It was also alleged that the rent was being paid regularly. The learned Rent Controller had framed the issues. It was held that the ground of bona fide personal requirement was available to the respondents and they did require the property. The contention of the petitioner that property was commercial in nature and not residential premises was rejected. With these basic findings an order of eviction was passed against the petitioner. Aggrieved by the same, the petitioner preferred an appeal with the learned Appellate Authority, Chandigarh. The learned Appellate Authority upheld the findings of the Rent Controller and dismissed the appeal on 7.3.1995. Aggrieved by the same, the present revision petition has been filed.

A similar petition with respect to another portion on first floor has been filed against Shabir Ahmed. After recording of evidence vide separate order, an order of eviction was passed which was upheld by the Appellate Authority.

While the order of eviction had been confirmed by the Appellate Authority, Inderjit Singh preferred a civil revision in this Court. It came up for hearing on 15.3.1995 before a learned Single Judge of this Court. Therein the following order was passed :-

"Notice of motion or 4.5.1995.

Eviction of petitioner is stayed till further orders.

Dasti on payment."

Petitioner contended that a special request had been made to the Hon''ble Chief Justice for hearing on that very day because 16.3.1995 to 19.3.1995 were holidays. Petitioner Inderjit Singh was apprehending that he may not be dispossessed. The petition came up for hearing in the afternoon. Therefore, it was not possible for him to obtain the certified copy of the order. The petitioner requested his counsel to give him a letter certifying that stay of dispossession has been granted. Petitioner Inderjit Singh filed an application u/s 12 of the Contempt of Courts Act alleging that inspite of the stay order granted by this Court, the respondents-landlord alongwith their relations, supporters and musclemen who had been hired took possession of the premises forcibly and threw the video machines which have been installed.

He gave beatings and caused injuries to the respondents and their relatives. The Bailiff was kept away and later completed the formalities showing that possession has since been delivered. It was asserted, therefore, that this was so done in complete violation of the order passed by this Court.

Reply had been filed by the respondents. Needless to say that averments were controverted. It was denied that petitioner Inderjit Singh had wrongfully been dispossessed or beatings were given to him or to his relives. It was asserted that possession had been taken in the afternoon. The giving of information of stay of dispossession granted by this Court at 3.00 p.m. is of no consequence because possession has already been taken.

Keeping in view the controverting versions and contradictory stands, the matter was referred for the report of Civil Judge (Sr. Division), Chandigarh. The Civil Judge (Sr. Division) submitted his report and after recording of evidence held that respondents had no notice of the order passed by this Court dated 15.3.1995 when possession was being taken in pursuance to the order of ejectment that had been passed. The conduct of the Bailiff as such had not been appreciated.

By this common judgment both the Revision petition Nos.1085 of 1995 and 872 of 1996 which involve a common question as well as the Civil Original Contempt Petition No. 358 of 1995 can conveniently be dispose of together.

In both the revision petitions, the short question agitated was as to if the premises were residential or in other words the grounds of ejectment for personal requirement as contemplated under the East Punjab Urban Rent Restriction Act (for short ''the Act'') is available to the respondents or not? At the outset it deserves a mention that both the learned Rent Controller and the Appellate Authority have returned a concurrent findings of fact that respondents require the property for themselves and members of their family. The said finding of fact requires no interference being based on evidence. There is no illegality or impropriety in the same. Sub-section (5) of Section 15 of the Act would only permit this Court to interfere in the concurrent findings of fact so arrived at if they are not based on evidence or were absurd. It is not so in the present case. Therefore, the said findings require no interference.

Learned counsel for the petitioner said all that was possible and at the first blush one is swayed by the arguments that were addressed. He argued that as per the lease agreement, the property was commercial in nature, so was the rent note. According to him the property was let out for commercial purpose. The nature of the property was also commercial and, therefore, it could not be stated or even be held that it was a residential building. On closure scrutiny the said plea, however, cannot be accepted. According to respondents'' learned counsel the first floor is a flat. It is residential in nature. u/s 11 of the Act, the change of the user could not be effected and it would remain a residential building keeping in view the Punjab Capital (Development and Regulation) Act, Chandigarh.

To appreciate the relevant contentions, reference can be made to the grounds of eviction taken up by the respondents. Sub-section (3)(a)(i) of Section 13 of the Act is relevant and reads :-

" (3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession -

(i) in case of a residential ( x x x ) building if -

(a) he requires it for his own occupation.

(b) he is not occupying any other residential (x x x) building (x x x) in the urban area concerned; and

(c) he has not vacated such a building without sufficient cause after the commencement of this Act, in the said urban area.

(d) it was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased whether before or after the commencement of this Act, to be in service or employment:

Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until, the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord."

It is abundantly clear from aforesaid that before the said ground can be pressed into service, the building must be residential. The expression "residential building" has been defined u/s 2(g) of the Act and it reads:-

"2(g) "residential building" means any building which is not a non-residential building."

Necessarily one has to shift to the expression as to what is a non-residential building. Section 2(d) of the Act was amended by Amending Act 42 of 1982 (The East Punjab Urban Rent Restriction Chandigarh Amendment Act, 1982). It means a building being used solely for purpose of business or trade. The expression "building" is defined u/s 2(a) of the Act and reads:-

"2(a) "building" means any building or part of a building left for any purpose whether being actually used for that purpose or not including any land, godowns, out-houses, or furniture let therewith but does not include a room in a hotel, hostel or boarding houses."

On reading of the relevant provisions it is obvious that a building which is being used for purposes of business or trade would be a non-residential building. It could be whole or part of the building because of the definition of the expression "building" in Section 2(a) of the Act. If it is a non-residential building, as a necessary corollary, it follows that it is not a residential building. The petitioner contends that he is doing the business continuously in the said property.

In order to determine the nature of the property in question, strong reliance was placed by both the parties on the pleadings as well as the documents on the record. Learned counsel for the petitioners read the eviction application filed by the respondents in which on the heading of the same, it had been alleged that eviction is being claimed from the first floor of the Shop-cum-Flat with respect to a room. In other words, it was contended that it was never alleged that it is a residential building, which is the tenanted building. But this is not wholly correct. The application for eviction necessarily has to be read as a whole. One paragraph has not to be read in isolation of the rest. Reading of paragraph 3 of the application reveals that it has specifically been pleaded that first, second and Barsati floors are required to be used as a residence. The defence of the petitioners on the contrary was to the effect that first floor is not a flat but it is a shop-cum-office. In other words, the first floor is an office. On basis of the pleadings, therefore, it cannot be termed that there is any admission that first floor was an office or a non-residential plot.

Confronted with this position reliance was strongly placed on the Deed of Conveyance pertaining to the said plot. The relevant portions of the same reads :-

"DEED OF CONVEYANCE of a site at Chandigarh sold by auction to be used as a site for Commercial purpose in the new Capital'' of Punjab at Chandigarh.

xx xx xx xx AND WHEREAS the Punjab Government has sanctioned the sale of the site to the transferee in consideration of the sum of Rs. 26,000/- (Rupees twenty-six thousand only) for the purpose of building shop-cum-flat and using the same exclusively for general trade (or restaurant i.e. shop portion only)".

On the strength of these stipulations it was urged that it has been mentioned that the site was commercial and that it could be used for general trade or for a restaurant. But the said contention indeed is devoid of any merit. The description of the plot as commercial will not make whole of the super-structure upon it also to be commercial. This becomes further clear from the nature of the construction that was to be set up. It is clearly stipulated that shop-cum-flat had to be built. Above all the trade restaurant could only be conducted in the shop portion namely the ground floor. This is obvious from the recitation already referred to above. The first floor and above is clearly a flat. The expression "flat" itself signifies that it is to be used as residence. To read otherwise would be doing violence to the clear language of the conveyance deed. It must, therefore, be held that the first floor is residential in nature.

Reliance further was placed on Ex. RX which refers to the site and conditions that were imposed. Paragraphs 18 and 20 are relevant and read :-

"18. The site is classed as ''commercial'' and the building to be erected on it shall not be used for residential purpose unless otherwise specified in the plans supplied by the Government.

The shop-cum-flats constructed on a site sold for general trade will be a shop where trades except those in which use of fire, cooking or manufacture of and repair of furniture, car or cycle repair or any other trades which are likely to be objectionable to the neighbourhood for which may cause an obstruction in the public passage, can be carried out".

Once again it reveals clearly that though the site was described as commercial but the structure to be set up was a Shop-cum-Flat. There is some controversy of not being clear stipulations. But the expression "Flat" as mentioned in paragraph 20 is a clincher. It shows that it was a residential building so far as the first floor and upper structures are concerned, because a flat has to be set up therein. Same conclusion has to be arrived at from Ex. RW 5/1, which is a permission for occupation. Therein also the building has been prescribed as Shop-cum-Flat, rather than a Shop-cum-Office or commercial in entirety.. From the above there is no hesitation in concluding that first floor was a building in nature being a residence. In that event reliance has been placed on the rent note, copy of which is Ex. P.2. Perusal of the same reveals that there is no specific purpose for which the property was to be used. Paragraphs 13 to 15 of the same read :-

"13. That the tenants shall strictly abide by the provisions of the capital of Punjab (Development and Regulations) Act, 1952, and the rules made thereunder. In case of failure they shall be liable for all the consequences thereof.

That the tenant shall not use the said premises for the purpose other than permitted by the Estate Officer, Chandigarh.

That the tenant shall not be permitted to carry on any abnoxious trade or any such work which entails the possibility of fire etc."

The relevant provisions show that though it is not mentioned specifically that building has to be used for residence but the petitioners were to abide by the provisions of the Capital of Punjab (Development and Regulations) Act, 1952 and the Rules made thereunder. It is on the strength of this rent note that it is alleged that purpose of letting was not purely residential. To this extent what is being alleged cannot be ignored. It has substance and basis.

Can under these circumstances, it be held that the property became nonresidential in nature? In the facts, the answer would be in the negative. Petitioners'' learned counsel strongly relied upon the decision of this Court in the case of Shiv Kumar Vs. Krishan Kumar, . This also pertained to a shop-cum-flat in Sector 22, Chandigarh. The petition for eviction had been filed u/s 13-A of the Act. But the tenant was in occupation of the first floor alongwith toilet, latrine, bathroom and backyard of the ground floor. Relying on Section 2(d) as amended for Chandigarh, the learned single Judge held that it could not be taken to be a residential building. It is clear that there is a distinction. On facts when the property in question did not involve any portion on the ground floor, the ratio of the said decision is not attracted.

In this connection reference can be made to Section 11 of the Act which reads :-

"11. Conversion of a residential building into a non-residential building- No person shall convert a residential building into non-residential building except with the permission in writing of the controller".

As already pointed out above, the nature of the building being a plot is a residential. It could only be used as such. Even purpose of letting will not wean the case of the petitioners from certain realities. A Full Bench of this Court in the case of Shri Hari Mittal v. Shri B.M. Sikka (1986) 89 PLR 1 considered this question. It was held that if residential building is let out without obtaining the permission of the controller, it would continue to be a residential building. The conclusions drawn by the Full Bench are :-

"The reference made by the learned Single Judge is answered in the affirmative and it is held that a residential building let out for non-residential purpose by the landlord without obtaining the written permission of the Rent Controller in terms of Section 11 of the Act would continue to be a residential building and the landlord would be entitled to seek ejectment of the tenant on the ground of his bona fide personal requirement".

The Supreme Court had also considered the same controversy in the case of Kamal Arora v. Amar Singh and Ors. 1985 (2) RCR 466. Herein the landlord had let out the building knowingly that it is being taken for running a school. It was held that keeping in view Section 11 of the Act and provisions of the Capital of Punjab (Development and Regulations) Act, 1952, it was a residential building and, therefore, conversion of the same for non-residential purpose without the consent of the landlord will not change the nature of the building. It would mean residential. The Supreme Court refused to interfere in the judgment of this court. It was held :-

"Undoubtedly, the landlord let out the premises knowingly that it is being taken for running a school and admittedly the building is used for running a school. Therefore, prima facie the leased premises would fall within the definition of a non residential building. The High Court after examining the provisions of the Capital of Punjab (Development and Regulation) Act, 1951 read with Section 11 of the Rent Act held that statute prohibits conversion of residential building into non-residential by act inter vivos. It was said that the landlord and the tenant by their mutual consent cannot convert a residential building into a non-residential building because that would be vioiative of the provisions of Section 11. And it is admitted that building is situated in a sector falling within the residential zone. In this factual situation, coupled with the fact that the landlord has retired from service and genuinely needs the premises for his residence as found by all courts, we are not inclined to interfere with the judgment and order of the High Court".

Certain questions however were left open which are not material for consideration. Therefore, it must be held that building remained residential and the respondents were entitled to claim the eviction. There is no ground to interfere in the orders of the learned Rent Controller and the Appellate Court.

Reverting back to the application filed under the Contempt of Courts Act, the short point urged was to the effect that despite the stay order having been granted and conveyed to the respondents, petitioners Inderjit Singh was dispossessed. In this connection, it has already been pointed that the learned Civil Judge (Sr. Division) Chandigarh had returned the findings that petitioner was dispossessed before the order of this court was conveyed. In this regard at the outset, reference may be made to paragraphs 21 to 23 of the Contempt petition. It reads :-

"21. That the counsel for the petitioner prepared the revision petition and made a special mention of the matter before the Hon''ble Chief Justice on 15th March, 1995 that it may be fixed for hearing on the same day. Consequently, the revision petition was ordered to be fixed for hearing on 15.3.1995 and it was shown in the supplementary list of Hon''ble Mr. Justice N.K. Kapoor and was taken up for hearing in the post-lunch session when the above noted stay order was passed.

That the petitioner was required by the counsel for the purpose of signing various documents as well as the affidavits and was in the High Court premises from morning till about 3.30 P.M. Immediately, upon the order being passed, the petitioner went to S.C.F. 14, Sector 22, Chandigarh, and informed about the stay having been granted.

That when he reached the premises he was shocked to see that locks and doors of the shop had been broken and video game machines had been thrown out on the road".

Reading of the same clearly shows that it was a race against time. The respondents were in a hurry to take the possession while the petitioner was keen to challenge the order of the Rent Controller and the Appellate Authority in a revision petition and an attempt was made that this Court may grant the stay of dispossession. The petitioner admits that special mention was made to Hon''ble Chief Justice and the case was listed in the afternoon. Around 3.00 P.M. the stay was granted. He admits that when he reached his premises, he found that the door of the shop had been broken and video machines has been thrown. It is clear that not only the learned Civil Judge reported against the petitioner but by the time the respondents were informed, the petitioner had been dispossessed. He had been beaten by the clock.

Learned counsel for the petitioner had read the statement of the Bailiff to bring home the fact that petitioner was not present and he was dispossessed after the stay order was granted. It is true that statement of the Bailiff leaves much to be desired. But certain other glaring facts precipitate that the daily diary entry was recorded at the police station much earlier. It shows the presence of the petitioner. It prompts one to hold that petitioner was present in the forenoon in the premises when dispossession was being effected.

To contend that so many video machines could not be removed in such a short time would not be appropriate. But the petitioner himself admits that respondents came with larger number of persons. With so many persons, if he was dispossessed the Court is not surprised that machines were removed. Taking note of the totality of facts and pleadings that petitioner was dispossessed before the order of this Court was conveyed. (In fact he was dispossessed before 3.00 P.M.) it cannot, therefore, be held that there was any disobedience of the order of this Court.

For these reasons, the revision petition and the contempt petition fail and are dismissed.