Surjit Singh vs Harbans Singh

G.R. Mjithia, J.—The tenant has come up in revision petition against the order of the Rent Controller, Chandigarh refusing him permission to contest the application filed by the Respondent-landlord u/s 13-A of the East Punjab 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).

The Respondent-landlord filed an application u/s 13-A of the Act against the Petitioner. Pursuant thereto the Rent Controller issued summons for service on the Petitioner tenant in the form specified in Schedule II as provided under Sub-section (2) of Section 18 A of the Act. The tenant on receipt of the summons filed an application supported by an affidavit seeking permission to contest the application for eviction. The tenant sought permission to contest the application on twin grounds, namely, (i) the demised premises is a commercial premises and eviction u/s 13 A of the Act, cannot be sought (ii) the accommodation in possession of the landlord is adequate for his use and occupation.

The Rent Controller negatived both the contentions. Mr. Chattar Bhuj Goel, learned Counsel for the Petitioner reiterated the same grounds before me. It is not disputed that the demised premises is located in a residential part of the Sector in the city. Letting out of such a residential building even for the purpose of trade in violation of the Capital of Punjab (Development and Regulation.) Act, 1951 (for short the Regulation Act) would not bring it within the fold of nonresidential building as defined in Clause (d) of Section 2 of the Regulation Act.

In Kamal Arora v. Amar Singh 1980 (1) R.C.R. 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 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 bonafide requirement.

This decision was affirmed by the Apex Court in Kamal Arora v. Amar Singh and Others 1985 (1) R.L. R. 643, and it was observed thus:

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 vivce. It was said that the landlord and tenant by their mutual consent cannot convert a residential building because that would be violative 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 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.

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 Rent Controller and Section 11 of the Act is mandatory. This Court in the Full Bench judgment reported as Shri Hari Mittal v. Shri B. M. Sikka (1986-1) 89 P.L.R. 1 held as under:

In our opinion, the kind of purpose that Clause (k) of S. 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 provision 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 areas by accommodating more members than it could legitimately be intended or the extra population resorting to unhygienic 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) that is, 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 convert it into a self occupied non-residential building without the permission of the Controller in terms of Section 11 of the Act.

The learned Counsel drew my attention to a case reported as Dr. Jagit Mehta v. Dev Brat Sharma 1987 H. R. R. 680, to substantiate the plea that the demised premises being a non-residential building cannot be got vacated by the Respondent by invoking the provisions of Section 13-A of the Act. This judgment is not applicable to the facts of the present case. The premises in dispute in that case were located in Jullundur and the provisions of the Regulation Act were not applicable to the town of Jullundur Moreover, the learned Judge, on the evidence produced on the record came to the conclusion that the location and nature of the building was such that it could only be used as shop and for no other purpose.

The next submission of the learned Counsel that the landlord does not require the premises bonafide is also without any basis. The landlord retired from service on December 31. 1979. The certificate as provided u/s 13-A of the Act was issued on January 23, 1987 and immediately thereafter he filed the instant petition The landlord gave substantial reasons that the accommodation at present in his occupation is not sufficient to meet his requirement. The landlord in the evening of his life is entitled to live comfortably in the company of his son and grandson who are residing with him and their presence will give him much needed solace and peace.

u/s 13-A of the Act, the tenant should disclose detailed facts in his affidavit which would disentitle the landlord from obtaining an order for recovery of possession. The endeavour of the tenant has to be to place on record facts which would show that the landlord filing the eviction application is either not the landlord or he is not the owner or the demised premises has not been let out for residential purpose alone and that they are not required bona fide for himself or his family members or that the landlord is in possession of a reasonably suitable residential accommodation. The tenant has to be clear and not vague, positive and not negative, specific and not in the dark. The tenant should, wherever possible, prove this through substantial evidence by annexing such documents to his affidavit as may be relevant to the issue. Merely disputing the claim made by the landlord would not be sufficient to enable the tenant to the grant of relief. Such averments would be regarded as vague and bald allegations and these could not be regarded as facts so as to disentitle the landlord from obtaining an order for recovery of possession.

9 In the present case the test as stated above has not been satisfied by the tenant. There is no material to refute the assertion made by the landlord that the accommodation in his possession is grossly inadequate to meet his family''s requirement.

In B. M. Mutto and Anr. v. Dr. T.K. Nandi 1979 (1) R.C.J. 316 their Lordships of the Supreme Court while interpreting the identical provisions of Section 25-B of the Delhi Rent Control Act, observed as under:

Under the provisions leave to appear and defend the suit to be given if the affidavit discloses such facts as would make incumbent on the holder to prove consideration or such other facts as the court may deem sufficient to support the application. The scope of Section 25B (5) is very restricted for leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Section 14-A.

In my opinion the jurisdiction of this Court under the proviso to Section 18-A (8) of the Act has to be interpreted, keeping in view the legislative intent. The revision u/s I -A cannot be regarded as a first appeal and nor can it be as restricted as the revisional jurisdiction u/s 115 of the Code of Civil Procedure. The High Court would have jurisdiction to interfere if it is of the opinion that there has been a gross illegality or material irregularity which has been a committed or the Rent Controller has acted in excess of his jurisdiction or has not exercised the jurisdiction vested in him. A finding of fact arrived at by the Rent Controller would not be interfered with by the High Court unless it can be shown that that finding has been arrived at by misreading or omitting relevant evidence and this has resulted in gross injustice being caused. If none of the aforesaid circumstances exist the High Court would not be entitled to interfere with the order of the Rent Controller in exercise of its jurisdiction under proviso to Section 18-A (8) of the Act.

As a result of the above discussion, I find no merit in this revision petition and the same is dismissed However, I leave the parties to bear their own costs.

G.R. Majithia, J.

This will be treated in continuation of my order of even date. After had pronounced the judgment, the learned Counsel for the tenant prayed that he may be allowed time to vacate the demised premises. He was not willing to give undertaking that he would vacate the premises after the expiry of the period allowed by me to vacate the premises. Consequently, the request for granting him time to vacate the demised premises is refused.