Janak Kundra vs Central Board of Workers Education

J.V. Gupta, J.—The landlord-Petitioner has filed this petition against the order of the Appellate Authority, dated 27th October, 1978, whereby the order of the Rent Controller directing the ejectment of the Respondent was set aside and the landlord''s application was dismissed.

The landlord-Petitioner is the owner of House No. 1635, Sector 18-D, Chandigarh, a residential house, and had let out the same to the tenant-Respondent, i.e. Central Board of Workers'' Education, by means of a lease-deed, dated 1st January, 1969, which was further renewed for a period of three years with effect from 1st January, 1972. Later on, the lease was terminated by the landlord by means of a notice expiring on 22nd October, 1973, that she required the premises for her own use and occupation. Then she filed an application u/s 13(3)(a)(i) of the East Punjab Urban Rent Restriction Act, on the ground that she bona-fide requires the premises for her own use and occupation and she is not occupying any other building in her own right and that she has not vacated any such building after the commencement of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), in this urban area. The application was contested by the tenant-Respondent on the ground that the premises in dispute is not a residential house as the same is being used for a non-residential purpose, and thus, the same cannot be got vacated by the landlady for her own use and occupation. On the pleadings of the parties the Rent Controller framed the following issues:

(1) What is the nature of the building?

(2) If it is held that the building is a non-residential one, whether the ground of personal necessity is available to the Petitioner?

(3) If it is found that the building is a residential one whether the Petitioner requires the same for her own use and occupation?

(4) Whether the notice of ejectment served on the Respondent was bad and illegal?

(5) Whether the Respondent materially impaired the value and utility of the building?

(6) Whether the petition is not maintainable against Respondent as stated in para 3 of the preliminary objections of written statement?

Additional issue:

Whether the Petitioner does not hold any other residential building and had also not vacated any such premises after the enforcement of the East Punjab Urban Rent Restriction Act to the area of Chandigarh?

The Rent Controller, on issue No. 1, came to the conclusion that since the premises were let out for both office-cum-residence, the same, therefore, falls within the definition of ''residential building''. Secondly, it was held that the landlady was entitled to eject her tenant as she bona fide required it for her own use and occupation. Consequently, the ejectment of the tenant was ordered. In appeal, the Appellate Authority has reversed the findings of the Rent Controller on Issue No. 1 and came to the conclusion that the premises were a non-residential building. Though it has been observed that the premises were let out by the landlady to the tenant for maintaining an office and providing residence for officers, guests or trainees, but it could not be said to be a residential building in view of the admitted use of the same for the purpose of maintaining an office from the very beginning of the tenancy. As a result thereof the ground for ejectment for personal occupation was not available and, thus, the application for ejectment was dismissed. Feeling aggrieved against this, the landlady has come up in revision to this Court.

The learned Counsel for the Petitioner contended that once it is held that the premises were let out for the purpose of maintaining an office, and providing residence for officers, guests and trainees, then the subsequent use by the tenant as its office only, will not render the building a non-residential one, because, according to him, the tenant by his conduct cannot convert a residential building into a non-residential one, particularly in view of the provisions of Section 11 of the Act. In any case, it was contended that even if the building was being used for an office, the premsies will fall within the definition of ''residential building'' as the same was never let out or solely used for the purposes of business or trade. In support of his contention, he referred to Kamal Arora v. Amar Singh and Anr. 1980 (1) R.C.R. 530, Tara Chand v. Shri Sashi Bhushan Gupta 1980 (1) R.C.R. 718 and Smt. Raja Rani v. Amir Chand 1980 (2) R.C.R. 162.

On the other hand, the learned Counsel for the Board-Respondent submitted that the building is being used from the very beginning as an office, and, therefore, it will fall within the definition of ''non-residential building''. According to the learned Counsel, any purpose which is not resilential, will be deemed to be a purpose for business or trade, as contemplated in the definition of non-residential building in the Act. In support of his contention, he referred to Jagan Nath v. The Sangrur Central Co-operative Bank Ltd. Tappa 1980 (1) R.C.R. 600, Rattan Lal v. Mst. Laxmi Devi 1971 P.L.R. 86, Ram Micas v. Union of India through the Secretary Ministry of Post and Telegraph, New Delhi and Anr. 1973 R.R.C. 425, and Shri Arjan Singh Chopra v. Sewa Singh and Ors. 1967 C.L.J. 408.

I have heard the learned Counsel for the parties at a great length. The main question to be decided in this petition is that even if the premises in dispute are being used from the very beginning as an office by the tenant will it convert the residential building into a non-residential building as contemplated under the Act. Section 2(d) defines ''non-residential building'' which means a building being used solely for the purpose of business or trade; whereas residential building has been defined as any building which is not a non-residential building. Thus, in order to hold that a building is not a residential building under the Act, one has to prove that it is a non-residential building, as defined in Section 2(d) of the Act, which further means that the building is being used solely for the purpose of business or trade. If it is not proved that the purpose for which the premises were let out and are being used, is neither business nor trade, then it automatically follows that it falls within the definition of ''residential building'' as defined u/s 2(g) of the Act. In the present case, the tenant is a registered Society as stated in para 2 of the written statement, which reads, thus:

The house in question is non-residential and it was leased to Director, Central Board for ''Workers Education through the Regional Director, Workers'' Education, Chandigarh. The Central Board for Workers'' Education is Registered Society and the house in question was taken on lease by the Director, Central Board for Workers'' Education, Nagpur. The last lease agreement was executed on 24th February, 1972 and the period of lease provided in the agreement is three years.

There is no other evidence on the record except this plea in the written statement as to the nature of work carried on by the tenant-Respondent in the premises in dispute. The Legislature has used the expression ''business or trade'' in Section 2(d) and at the same time, while defining ''Scheduled building'' in Section 2(h), the word ''profession'' has been used therein. This indicates that the Legislature used the expression ''business or trade'' in the Act as distinguished from ''Profession''. Thus, every activity other than residential activity cannot be said to be an activity of business or trade for the purposes of the Act. This is also made further clear by providing Section 11 therein, which reads thus:

No person shall convert a residential building into a nonresidential except with the permission in writing of the Controller.

It has been so provided because of the scarcity of accommodation for residential purposes in the urban area. In case a "residential building" is to be converted into a non-residential building as defined in the Act, then the permission of the Rent Controller in writing is required. Without the permission, a building which is a residential one for all intents and purposes and was constructed as such, will remain the same unless it is allowed to be converted into non-residential building by the Rent Controller in writing. In any case, under no circumstances the tenant by his conduct can convert the residential building into a non-residential one and thus defeat the provisions of the Act.

Moreover, the activities such as business or trade as contemplated in the definition of ''non-residential'' building given in the Act ordinarily means commercial activity. In the present case, it has been neither alleged nor proved that the tenant is carrying on any such commercial activity as to make it a business or trade as contemplated under the definition of ''non-residential'' building. The authorities relied upon by the learned Counsel for the tenant are not at all applicable to the facts of the present case. In none of those cases, this question, as such, was either agitated or decided.

In Kamal Arora''s case (supra), I have already held that in the Act, the definition of the residential building is a negative one because it means any building which is not a non-residential building.

Simply because the tenant is using the premises as office from the very beginning does not make it a non-residential building as it cannot be said that it is either a commercial activity or is being used solely for business or trade. Any activity other than business or trade which is not in the nature of a commercial activity if carried on in the premises will not render or convert the building into a non-residential one. For the purposes of the Act, it will fall under the category of ''residential building'' as defined therein.

If the premises in dispute are held to be a residential one, it is not disputed that the landlord bona fide requires the same for his own use and occupation, and all the other ingredients of Section 13(3)(a)(i) of the Act are also fulfilled.

For the reasons recorded above, this petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller directing the ejectment of the tenant is restored with costs. However, the tenant is allowed three months'' time to vacate the premises provided all the arrears, if any, and advance rent for three months is paid or deposited within one month from today.