Miss Chandra Kanta Khosla vs Rai Chand Jain

G.R. Majithia, J.—This revision petition has been filed by the landlady against the older of the Appellate Authority, Chandigarh dated December 24, 1988, reversing on appeal the order of the Rent Controller. Chandigarh ordering the ejectment of the respondent (hereinafter referred to as the tenant) from the demised premises.

The facts :--

The landlady lessed out the demised premises at a monthly rent of Rs. 1,100/- through rent cote dated May 19, 1978. The demised premises were to be used for residential purpose only. The tenant was not to sublet the premises or any part thereof. Eviction of the tenant was sought on the ground that the tenant had not paid or tendered rent with effect from December 1, 1984 onwards; that the tenant had changed the user of the demised premises and set up a printing press under the name and style of "M/s Navneet Parkashan" in the garage and two rooms of the demised premises The tenant used the demised premises for the purpose other than that for which it was let out. The landlady required the demised premises for her own use and occupation.

The tenant controverted the allegations made in the eviction petition. It was also pleaded that M/s Navneet Parkashan was a necessary party to the eviction petition. It was, however, emphasized that the disputed premises were rented out to him for running a printing press under the name and style of "M/s Navneet Parkashan of which he was the sole proprietor The execution of the rent note dated May 19, 1978 was admitted, but it was pleaded that it was got signed from him after he had entered on the demissed premises as a tenant. It was further pleaded that the rent note could not create any right is favour of the landlady since it was un-registered. The landlady had been accepting rent on behalf of M/s Navneet Parkashan and she could dispute that the latter was not a tenant on the demised premises from the very beginning. The major portion of the demised premises was being used for office and printing press.

The Rent Controller framed the following issues from the pleadings of the parties: --

Whether the respondent has changed the use of the premises in dispute for a purpose other than for the same it was let out ? OPP.

Whether the petitioner requires the premises in dispute for his personal use and occupation ? OPP.

Whether the premises in dispute was let out in the same of Navneet Parkashan as alleged, if so, its effect ? OPP.

Relief.

Issues No. 1 and 3 were disposed of together and decided in favour of the landlady. It was held that the demised premises were let out to the tenant and not to M/s Navneet Parkashan. The demised premises were used for purpose other than that for which it was let out. Under issue No. 2 it was held that the landlady had sufficient accommodation in her possession. She was residing in House No. 153, Sector 9-B, Chandigarh, in which she was co-owner.

On appeal, the learned Appellate Authority held that the demised premises were not let out for residential purpose and were let out for running the punting press under the name and style of M/s Navneet Parkashan and the tenant did not change the user of the demised premises and reversed the finding of the Rent Controller under issues No. 1 and 3. Be further found that the landlady did not require the demised premises bonafide for her own use and occupation.

The learned Appellate Authority is not correct in holding that the demised premises were not let out for the purpose of running a press under the name and style of M/s Navneet Parkashan. The demised premises were located in a residential part of the sector in the city. Letting out of such a residential building for the purpose of trade in violation of the Capital of Punjab (Development and Regulation) Act, 1951 would not bring it to the fold of non-residential building as defined in Clause (d) of Section 2 of the said Act.

In Kamal Arora v. Amar Singh 1980 (1) RLR. 530, this Court 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 East Punjab Urban Rent Restriction (Amendment) Act, 1985 as extended by the Government of India vide notification dated 15-12-1986 to the Union Territory, Chandigarh (for short, the Act) would continue to be a residential building and the landlord would be entitled to seek ejectment of the tenant of the ground of his bonafide requirement. This decision was approved by the apex Court in Kamal Arora v. Amar Singh and Anr. 1985 (1)RLR. 643.

Section 11 of the Act is intended to prevent residential accommodation being converted into a non-residential one without the permission of the Rent Controller. The landlord cannot convert a residential building into a non residential one without permission of the Kent Controller as Section 11 is mandatory. This Court in a Full Bench Judgment reported as Shri Hari Mittal v. Shri B. M. Sikka (1986 ) 89 P.L.R. 1 held as under :--

"In our opinion, the kind of purpose that Clause (k) of Section 14(1) of the Delhi Rent Act served, the same purpose appears to have been intended by the Punjab Legislature in the present case to be served by the provisions of Section 11 of the Act, so far as the use of the residential building for non-residential purpose is concerned. This injunction was intended to subserve a public policy of seeing that the residential accommodation does not fall short of the Community''s requirement, as the shortage of residential accommodation would tend to result in unhygienic condition of the residential area by accommodating more members than it could legitimately be intended or the extra population resorting to unhygienec use of the open spaces and pavements and creating social tension and health hazards to the community in view of the above, the provisions of Section 11 of the Act are mandatory in character. It was then argued that if Section 11 of the Act was intended to subserve a public policy of the kind, then it would prohibit even a landlord for converting a self occupied residential building but this court in two Division Bench decisions referred to by the Division Bench in Bansal''s case (supra), i.e. Chattar Sain''s case (supra) and Faqir Chand''s case (supra) has taken the view that Section 11 is not attracted to a residential building which is in the self occupation of the landlord, hence the landlord could not convert it into a self-occupied non residential building without the permission of the Controller in terms of Section 11 of the Act."

The statute forbids conversion of residential building into non-residential one Even if the landlady had been accepting rent from M/s Navneet Parkashan, it would not amount to creation of a lease in favour of the latter. The tenant is the sole proprietor of M/s Navneet Parkashan. Even if cheques had been issued from the account of M/s Navneet Parkashan and the landlady had been accepting the same, it will not am mat to acceptance of M/s Navneet Parkashan as a tenant. Acceptance of rent from M/s Navneet Parkashan under the circumstances of the instant case will not make it a tenant and the demised premises cannot be deemed to be non residential premises. The tenant having used the demised premises for purposes other than that for which it was let out is liable to be evicted on this short ground. Findings of the Appellate Authority under issues No. 1 and 3 are reversed.

The Rent Controller and the Appellate Authority are in error in holding that the demised premises are not required bona fide by the landlady for her own use and occupation. The landlady in support of the plea that the demised premises are bona fide required for her own use and occupation examined her brother Shri Nand Kumar Khosla, Advocate as AW-2. He deposed at the trial that he was brother of the landlady. House No. 153, Sector 9 B, Chandigarh was bequeathed by his father to his elder brother Wing Commander S.K. Khosla and he was the exclusive owner of that house. The landlady was living in one room in the first floor of the said house. The accommodation in possession of the landlady was not sufficient for her requirement. The landlady also deposed on the same lines at the trial as her brother. The Appellate Authority rejected this evidence on the ground that the original will was not produced, the record of the Estate Office was not examined and Wing Commander S.K. Khosla was not produced at the trial to prove that the father of the landlady had bequeathed the house situate in Sector 9, Chandigarh in favour of Wing Commander S.K. Khosla. The Appellate Authority did not appreciate that it was not deciding a question of title about House No. 153, Sector 9, Chandigarh. A W 2 Shri Nand Kumar Khosla an Advocate, had appeared at the trial as stated supra. His statement is against his own interest. This fact alone is a strong factor to conclude that there was a Will as stated by him and under that Will the father of the witness and of the landlady had bequeathed the property in favour of their elder brother Wing Commander S.K. Khosla. Non-production of the documentary evidence cannot discredit his sworn testimony. The tenant could have produced the record from the Estate Office, Chandigarh in rebuttal of the evidence examined by the landlady. On the evidence on record, there is no escape from the conclusion that House No. 153. Sector 9, Chandigarh was owned by the father of the landlady, who had bequeathed the same in favour of her elder brother Wing Commander S.K. Khosla. She is not residing in the same as a matter of right. She is a licencee. The brother to whom the house had been bequeathed has grown up children and the landlady might be desirous of living comfortably in her own house, which is under tenancy with the tenant She filed an affidavit with the permission of the Court standing that she had retired as a Senior Lecturer in Music from Government College for Women, Chandigarh on March 31, 1989 and that she was not in possession of any other suitable accommodation in the whole country except the building in question and that she was residing in one room in house belonging to her brother. The landlady is entitled to live peacefully in the evening of her life in her own house. Circumstances had changed after she retired from the Government service. Her desire to reside in her own house is bona fide and there is no rebuttal to the evidence that she is net occupying any other residential premises in the urban area, Chandigarh except House No. 153, Sector 9, Chandigarh, in which she is residing in a room as a licensee. The appellate Authority is in error in holding that the landlady does not require the demised premises bona fide for her own use and occupation.

For the reasons recorded above, the order of the Appellate Authority, Chandigarh is set aside. The revision petition is allowed. The parties are left to bear their own costs. The tenant is allowed one months'' time to vacate the demised premises provided he clears the arrears of rent upto date within a fortnight from the date of the order and gives an undertaking that he will hand over vacant possession of the demised premises to the landlady after the expiry of the period.