Shri Roshan Lal Nirola vs Shrimati Santosh Mahendroo

Gokal Chand Mital, J.—Shri Roshan Lal Nirola took a residential house No. 45, Sector 19�A. Chandigarh for his residence vide rent note dated June 1, 1971 at a monthly rent of Rs. 275/-. Later on the tenant obtained Advocate''s License on 27th October, 1971 and started practising as an Advocate and used one of the rooms of the residential house as his office. On 4th November, 1972 the East Punjab Urban Rent Restriction Act, 1949 was made applicable to the Union Territory of Chandigarh Afterwards the rent was increased to Rs. 325/� per month. On 10th October, 1977 the landlord filed an ejectment petition on the following grounds:--

(i) That the landlord bonafide required the premises for the use and occupation of herself, her husband and three grown up college going sons.

(ii) That the tenant had changed the user of the demised premises as it was given for residence and whereas later on he set up his office in a part of the premises The tenant had also used another part of the premises for printing sarees and dry cleaning of the clothes which business was being run by the son and daughter�in�law of the tenant.

The ejectment petition was opposed. As regards the personal necessity it was alleged that the building was a ''scheduled building'' as he was using for his residence as also for office work. Therefore, on the ground of personal necessity no order of ejectment could be passed. As regards the change of user it was submitted that he was using the premises for the same purpose for which it was let out to him and the change of user was denied The Rent Controller as also the Appellate Authority found that in view or the Supreme Court decision in Dr. Sewa Singh v. Ravinder Kaur 1970 R.C.J. 614 eviction on the ground of personal necessity was not available with regard to a scheduled building since part of the premises in dispute admittedly was being used by the tenant for his office as an Advocate. Therefore, the building was a ''scheduled building'' and no order of ejectment could be passed. While the Rent Controller found that the landlord had proved the case of personal necessity, this matter was not challenged before the Appellate Authority and no order of eviction was granted as in law for personal necessity a "scheduled building" could not be got vacated

As regards change of user for purposes of dry cleaning and printing of sarees this matter was not pressed by the landlord before the Rent Controller or before the Appellate Authority. However, the Rent Controller as also the Appellate Authority found that the tenant had changed the user of demised premises and converted the same from residential building to a ''scheduled building'' and consequently ordered ejectment of the tenant on this ground alone This is tenant''s revision petition from the aforesaid order.

Shri Y.P. Gandhi appearing for the tenant has urged that since the tenant started using part of the premises in dispute by set up his office as an Advocate on 27th October, 1971, that is, before the East Punjab Urban Rent Restriction Act, 1979 became applicable to the Union Territory of Chandigarh, therefore, the ground of eviction contained in the provisions of section 13(2) (ii) (b) was not available to the landlord because the change of user had taken place before the commencement of this Act. This legal proposition is not res-integra. Apart from several decisions noticed by the Appellate Authority few binding decisions deserve to be noticed A Division Bench of this Court in Surjit Singh Vs. Rattan Lal Aggarwal and Others, considered this precise matter as follows:--

In Des Raj''s case (1978) RCR 330 P&H.) (Supra) Surindtr Singh, J. interpreted Ch (ii) (b) of sub-section (2) of S. 13 which has been reproduced above. In the case a contention was raised by the counsel for the tenant that the words used in the aforesaid provision were "after the commencement or this Act" and use of these words contemplates a fresh changed user after the enforcement of the Act. The contention was repelled by the learned Judge observing that the crucial words in the provision are "used the building" and these words clearly included a user even though the same may have commenced before the enforcement of the Act. In our view the ratio in the said case is not helpful to the petitioner as the language of Cl. (b) is different than that of cl. (a),. In cl. (b) the word "use" is significant. It means to make use of "The act in the case of user is a continuous one and does not come to an end on a particular date. The stress in the clause is on the user of the building and not the date of the commencement of the user. In Cl. (a) the word used is ''transferred''. The act of transfer is not a continuous one but is completed as soon as the transfer is made. Thus the act of transfer if had been done prior to the enforcement of the Act then the clause will not be applicable as it requires that the Act should have been done after the commencement of the Act. There is thus material difference between clause (b) and cl. (a). In our opinion the observations in the case are not helpful to interpret cl. (a) It will be relevant to point out at this stage that in Civil Revision No. 380 of 1965, the learned Judge also interpreted cl. (ii) (b) of sub-sec. (2) of S. 13. For similar reason the ratio in that case cannot be made applicable to the present case. The Learned Counsel for the petitioner has also made a reference to Kasavan v. State, AIR 1952 TC 290, wherein the learned Judge interpreted sub cl. (ii) (b) of Cl. (2) of S. 9 of the Travancore-Cochin Building (lease and Rent Control) Order, 19 (sic) 0. The clause which was interpreted by the learned Judge was pari materia with Cl. (ii) (b) of sub-sec (2) of S. 13. Therefore, the ratio in that case also is not applicable to the facts of the present case.

The provisions of clauses (a) and (b) were considered and in view of the different phraseologies used, different meanings were given to them by the Division Bench. The present case relates to clause (b) which was interpreted to mean that if the tenant has used a premises and continues even after the commencement of the Act for a purpose other than for which it was leased, a ground of eviction was available to the landlord. In view of the above. Single Bench decision of Surinder Singh, J. in Des Raj v. Shri P.N. Kaul (1978) 1 R.C.R. 330, which is fully applicable to the case The matter again cane up for consideration before a Full Bench in Des Raj Vs. Sham Lal, . That case also related to the eviction on the ground of change of user form a shop to a godown but the relevant portion with which we are concerned are contained in para 21 at page 235 as follows:

For instance, in a case where the denised building is described as ''residential building'' or ''house'' etc. the same has to be used for residential purposes alone, even when in the rent deed it is not further postulated that the demised building has to be used exclusively for residential purposes otherwise even if a small portion is put to use for business purposes by the lessee mentioned in the Schedule, such as lawyers, architects, dentists, engineers, veterinary surgeons, an medical practitioners, including practitioners of indigenous system of medicine, without the express permission in writing of the landlord, the said demised building might be taken out from the category of residential building ''and turned into a'' scheduled building, the consequences of which are extremely grave for the landlord in that while the possession of the ''residential building'' can be secured back by the landlord if he establishes a bonafide need of personal occupation, he cannot succeed in getting back the possession of a ''scheduled building'' even on the ground of bona fide personal necessity and the building is lost to the landlord for all practical purposes.

While because of the act of the tenant he cannot convert a residential building into a ''scheduled building'' merely by using a part of the premises for any of the scheduled purposes and take away the ground of eviction from the landlord for personal necessity which was available to him till the Punjab Act (1 of 1956) came into force. In the Amendment Act of 1956 the words "or a scheduled" were omitted from the provisions of section 13(3)(a) (i) of the Act. Therefore, one of the grounds which still remains available to the landlord to claim eviction on the ground of change of user is the one which has been availed of by the landlord in this case.

The Learned Counsel for the tenant placed reliance on a decision of D.K. Mahajan, J. in J.N. Aggarwal v. Chaman Lal (1970) 72 P.L.R. 113. A reading of that judgment shows that a categorical finding was recorded that the premises were being used for the same purpose for which they were let and no change of user was proved. It is a very short judgment and contains no discussion regarding the relevant provisions with which we are concerned. Hence this judgment is of no assistance.

It was then urged by the counsel for the tenant that the mere use of one of the rooms for office as an Advocate does not substantially change the nature of the residential building and it still continues to be a residential building and therefore, it should be held that there was no change of user. This matter was also dealt with by a Division Bench of this Court in Rattan Singh Vs. D.R. Kapoor, . That is also a case relating to a residential premises in Chandigarh which was taken on lease by the tenant who later became an advocate and used one of the rooms for his office. On those facts it was held that use of a room in a residential building means change of user of the premises and order of eviction was passed by this Court Therefore, there is no merit in these arguments as well.

Moreover, the first argument cuts across the second argument because the tenant has benefitted by the change of user of the premises by his own act in changing it into a scheduled building and took away the ground of eviction for personal necessity of the landlord and by the other argument it is sought to be urged that since there is no change of user the building continues to be a residential building. If the building were to continue to be a residential building the landlord would have been entitled to an order of eviction on the ground of personal necessity as found by the Rent Controller which finding was not challenged before the Appellate Authority.

For the reasons recorded above this revision petition is devoid of any merit and is dismissed with no order as to costs. However, the tenant is granted two months'' time to vacate the premises.