IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.986 OF 1990
Ramesh Ganesh Kange, adult,
occupation landlord, residing at
Mangaldham, Vadavali Section, ...Petitioner
Ambernath, Dist.Thane. (Ori.Plaintiff)
Versus
Shriram Dattatraya Kulkarni,
since deceased by his heirs
and legal representatives:
1(a) Shashikala Shriram Kulkarni,
1(b) Santosh Shriram Kulkarni,
1(c) Prasanna Shriram Kulkarni,
All R/at 66, Yogayog Co-op.Hsg.Soc.,
Near Audumbar School, Vadavali,
Ambarnath - 421 501. ...Respondents
......
Mr.Ashutosh Gole i/b Mr.R.S.Apte for Petitioner.
Ms.Gauri Godse for Respondent No.1(a).
......
CORAM: A.M.KHANWILKAR, J.
JULY 11, 2008.
JUDGMENT :
1. This Writ Petition under Article 227 of
the Constitution of India takes exception to the
Judgment and Decree passed by the VIth Additional
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District Judge, Thane dated September 28, 1998 in
Civil Appeal No.259 of 1986 which in turn reverses
the Judgment and Decree passed by the IVth Joint
Civil Judge, Junior Division and Judicial
Magistrate, First Class, Ulhasnagar dated April 25,
1986 in Regular Civil Suit No.33 of 1984.
2. The premises in question is house property
known as ‘Mangaldham’ situated at Vadavli Section
at Ambernath within the limits of Kalyan Municipal
Corporation. It is common ground that the
Petitioner
is the owner and landlord of the suit
premises, consisting of one room and verandah, who
in turn had inducted Respondent as monthly tenant
on agreed rent of Rs.22/- (Rupees Twenty-two) per
month besides the permitted increases. It is
admitted position that the premises were let out
only for residential purpose. The
Petitioner/landlord instituted Suit for recovery of
possession of suit premises and mesne profits in
the Court of Civil Judge, Junior Division,
Ulhasnagar on the ground that the Respondent/tenant
has used the suit premises for purpose other than
that for which it was leased. It is the case of
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the Petitioner/landlord that in 1982, the
Respondent’s son started the business of electric
motor winding and repairing under the name and
style as ‘Advance Electronics’ from the suit
premises causing change of user of the premises
other than for which the same were let out. The
claim of the Petitioner/landlord not only stood the
trial before the Civil Judge, Junior Division at
Ulhasnagar but has also been upheld by the
Appellate Court in the impugned Judgment. In that,
even the Appellate Court has rejected the stand of
the
Respondent/tenant that the said business was
started with the consent of the landlord. The
Appellate Court in the impugned Judgment has upheld
the finding of fact recorded by the Trial Court
that business of electric and motor rewinding and
repairing under the name and style as Advance
Electronics was commenced from the suit premises on
9th November 1982 as is evident from the
registration of the business as Advance Electronics
under the Bombay Shops and Establishments Act, 1948
(hereinafter referred to as ‘Shops and
Establishments Act’). That business was started
after the Respondent’s son had taken education of
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Electrical Engineering in I.T.I. The Appellate
Court has also considered the Respondent’s defence
that his son started living separately since 1982.
Both the Courts have concurrently found that
nevertheless the business in the name and style as
‘Advance Electronics’ was continued as is
established from the licence fee paid in advance
till 1987 which is for period even after the Suit
for eviction was instituted in the year 1984. The
Appellate Court has also found that there was other
circumstances brought on record to indicate that
the work
of repairing of T.V., Radio, etc. was
being carried out in the suit premises, which fact
was corroborated from the evidence of Gajanan
Mulgaonkar, the Shop Inspector. Insofar as the
abovesaid findings recorded by the two Courts
below, the correctness thereof is not challenged
before this Court.
3. Even after recording the abovenoted
findings, the Appellate Court, however, proceeded
to upset the decree of eviction passed by the Trial
Court on the reasoning that the Respondent was
doing that business in his leisure time after
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office hours for additional source of income. The
Appellate Court then went on to hold that
admittedly the Defendant continued to stay along
with his family members in the suit premises. It
has found that the work of repairing was carried
out in front portion of the suit premises (some
portion of verandah). The Appellate Court has then
found that the work of repairing in question was
not carried out as a full-fledge business for whole
day, but must have been carried on by the Defendant
in his leisure time after the office hours for
additional
source of income. On these findings,
the Appellate Court relying on the decision in the
case of C.Colaco vs. Urban D’Silva reported in AIR
1970 Mysore 297; Jugraj Jain v. T.R.Ambikapathi
Pillai reported in 1959 Vol.II Mad.L.J.Reports 240;
Harmohan Das Bagai vs. T.P.Gupta reported in 1984
RLR 625; and Sant Ram vs. Rajinder Lal & Ors.
reported in AIR 1978 SC 1601 proceeded to hold that
inspite of finding recorded against the
Respondent/tenant, it did not amount to change of
user of the premises as contemplated under Section
108(o) of the Transfer of Property Act (hereinafter
referred to as ‘the T.P. Act’) and actionable
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under Section 13(1)(a) of the Bombay Rents, Hotels
and Lodging House Rates Control Act (hereinafter
referred to as ‘the Bombay Rent Act’). In this
Petition, the correctness of the said view of the
Appellate Court is put in issue.
4. Before proceeding to examine the rival
submissions, it would be apposite to advert to
relevant provisions. Section 13(1)(a) of the Rent
Act invoked by the Petitioner/landlord for seeking
decree of eviction against Respondent/tenant reads
thus:
“13.(1) Notwithstanding anything contained
in this Act but subject to the provisions
of sections 15 and 15A, a landlord shall
be entitled to recover possession of anypremises if the Court is satisfied-
(a) that the tenant has committed any act
contrary to the provision of clause (O) of
section 108 of the Transfer of Property
Act, 1882″.
5. As Section 13(1)(a) refers to the
provisions of Section 108 of the T.P.Act, it will
be apposite to reproduce the said provision, which
reads thus:
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“108. Rights and liabilities of lessor
and lessee.- In the absence of a contract
or local usage to the contrary, the lessor
and the lessee of immoveable property, as
against one another, respectively, possess
the rights and are subject to the
liabilities mentioned in the rules next
following, or such of them as are
applicable to the property leased:-
(A) Rights and Liabilities of the Lessor
………………………………
(B) Rights and Liabilities of the Lessee
(d) If during the continuance of the lease
any accession is made to the property,
such accession (subject to the law
relating to alluvion for the time being in
force) shall be deemed to be comprised in
the lease:
(e) if by fire, tempest or flood, or
violence of any army or of a mob, or other
irresistible force, any material part of
the property be wholly destroyed or
rendered substantially and permanently
unfit for the purposes for which it was
let, the lease shall, at the option of the
lessee, be void:
Provided that, if the inquiry be
occasioned by the wrongful act or default
of the lessee, he shall be entitled to
avail himself of the benefit of this
provision:
(f) if the lessor neglects to make, within
a reasonable time after notice, any
repairs which he is bound to make to the
property, the lessee may make the same
himself, and deduct the expense of such
repairs with interest from the rent, or
otherwise recover it from the lessor:
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(g) if the lessor neglects to make any
payment which he is bound to make, and
which, if not made by him, is recoverable
from the lessee or against the property,
the lessee may make such payment himself,
and deduct it with interest from the rent,
or otherwise recover it from the lessor:
(h) the lessee may even after the
determination of the lease remove, at any
time whilst he is in possession of the
property leased but not afterwards all
things which he has attached to the earth;
provided he leaves the property in the
state in which he received it:
(i) when a lease of uncertain duration
determines by any means except the fault
of the lessee, he or his legal
representative is entitled to all the
crops planted or sown by the lessee and
growing upon the property when the lease
determines, and to free ingress and egress
to gather and carry them:
(j) the lessee may transfer absolutely or
by way of mortgage or sub-lease the whole
or any part of his interest in the
property, and any transferee of such
interest or part may again transfer it.
The lessee shall not, by reason only of
such transfer, cease to be subject to any
of the liabilities attaching to the lease:
Nothing in this clause shall be deemed to
authorise a tenant having an
untransferable right of occupancy, the
farmer of an estate in respect of which
default has been made in paying revenue,
or the lessee of an estate under the
management of a Court of Wards, to assign
his interest as such tenant, farmer or
lessee:
(k) the lessee is bound to disclose to the
lessor any fact as to the nature or extent
of the interest which the lessee is about
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to take of which the lessee is, and the
lessor is not, aware, and which materially
increases the value of such interest:
(l) the lessee is bound to pay or tender,
at the proper time and place, the premium
or rent to the lessor or his agent in this
behalf:
(m) the lessee is bound to keep, and on
the termination of the lease to restore,
the property in as good condition as it
was in at the time when he was put in
possession, subject only to the changes
caused by reasonable wear and tear or
irresistible force, and to allow the
lessor and his agents, at all reasonable
times during the term, to enter upon the
property and inspect the condition thereof
and give or leave notice of any defect in
such condition; and, when such defect has
been caused by any act or default on the
part of the lessee, his servants or
agents, he is bound to make it good within
three months after such notice has been
given or left:
(n) if the lessee becomes aware of any
proceeding to recover the property or any
part thereof, or of any encroachment made
upon, or any interference with, the
lessor’s rights concerning such property,
he is bound to give, with reasonable
diligence, notice thereof to the lessor:
(o) the lessee may use the property and
its products (if any) as a person of
ordinary prudence would use them if they
were his own; but he must not use, or
permit another to use, the property for a
purpose other than that for which it was
leased, or fell [or sell] timber, pull
down or damage buildings [belonging to the
lessor, or] work mines or quarries not
open when the lease was granted, or commit
any other act which is destructive or
permanently injurious thereto:
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(p) he must not, without the lessor’s
consent, erect on the property any
permanent structure, except for
agricultural purposes:
(q) on the determination of the lease, the
lessee is bound to put the lessor into
possession of the property”.
6. In addition to the above said provisions,
it would be useful to advert to section 25 of the
Bombay Rent Act, which reads thus:
“25. (1) A landlord shall not use or
permit to be used for a non-residential
purpose any premises which on the date ofthe coming into operation of this Act were
used for a residential purpose.
(2) Any landlord who contravenes the
provisions of sub-section (1) shall, on
conviction, be punishable with
imprisonment for a term which may extend
to three months or with fine or with
both”.
7. As Section 13(1)(a) of the Bombay Rent Act
refers to the provisions of Section 108(o) of the
T.P. Act, the latter stands incorporated in
Section 13(1)(a) of the Bombay Rent Act. The
question whether the landlord in the fact situation
of this case has succeeded in making out a case
that the suit premises have been used by the tenant
for the purpose other than that for which it was
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leased will have to be considered in the context of
the concurrent finding of fact recorded by the
courts below that the suit premises was leased out
for residence only. Thus, if it is found that suit
premises were used for any other non-residential
activity or for that matter part time business, be
it in small portion of the premises, would attract
the rigours of Section 13(1)(a) of the Bombay Rent
Act inviting decree of eviction against the tenant.
The Appellate Court relying on decisions referred
to above has however, answered the issue against
the
Petitioner/landlord. We shall straightway
first refer to the said decisions.
8. The first decision is of the High Court of
Mysore in the case of C.Colaco (supra). In that
case, the Respondent was carrying on tailoring
business in the suit premises let out to him for
residential purposes. The Mysore High Court posed
the question for consideration that if in a
premises leased out for residential purposes to a
professional man, the said person carries on some
professional work in his residence, whether he
would be violating Sub-clause (o) of Section 108?
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That question has been answered relying on the
dictum of the Madras High Court in the case of
Jugraj Jain (supra) and of the English Court in the
case of Vickery v. Martin reported in (1944) 2 All
ER 167, which in turn refers to the observations
made in the case of Hicks v. Snook reported in
(1928) 93 JP 55.
55 The Mysore High Court found as of
fact that the evidence indicated that the
Respondent was doing tailoring work in his house
since about seven months and his customers were
visiting his house, but no board was put up in the
house
about business of carrying on profession of
tailoring. The Court found as of fact that the
Respondent was doing tailoring work in his house in
his spare time after closure of his shop which was
elsewhere. The Court further found that the
Respondent did not put a board in his residential
house or made any structural alterations. Applying
the said test, the landlord’s claim for possession
of the premises was turned down.
9. In the case of Jugraj Jain (supra), the
suit premises were let out for residence but the
tenant shifted his pawn-broker's business and
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started conducting the same from the suit premises.
The Madras High Court in the first place opined
that the suit premises were let out for residential
purposes and the tenant converted a portion of the
premises for non-residential purposes. The Madras
High Court referring to earlier decisions,
proceeded to hold that the tenant cannot convert
even a portion of his residential house into a
shop, or allow a whole army of people who want to
pawn their articles, costly and cheap, small and
big in his residential premises, converting the
residential
ig premises practically into a
pawnbroker’s shop. It is further held that such
business should not be operated in a residential
premises, causing nuisance to the landlord
occupying a portion of the house, but should be
carried on only in separate non-residential
premises.
10. Insofar as the case of Harmohan Das Bagai
(supra) is concerned, the Delhi High Court was
concerned with the premises let out for residential
purposes only, but used for non-residential
purposes by the tenant. The Court went on to
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restate the dictum in the case of Dr.Gopal Dass v.
Dr.S.K.Bhardwaj of the Apex Court that where
premises are let for residential purposes and it is
shown that they are used by the tenant incidentally
for commercial, professional or other purposes
“with the consent of the landlord”, the landlord is
not entitled to eject the tenant even if he proves
that he needs the premises bonafide for his
personal use because the premises have by their
user ceased to be premises let for residential
proposes alone. In the fact situation of that
case,
however, the Court in Paragraph 5 of its
decision, recorded a clear finding that there is no
credible evidence that the suit premises were in
fact used for non-residential purposes.
11. The Appellate Court has then adverted to
the decision of the Apex Court in the case of Sant
Ram (supra), which had occasion to deal with the
provisions of East Punjab Urban Rent Restriction
Act, 1949 (hereinafter referred to as ‘the East
Punjab Act’). While interpreting Section
13(2)(ii)(b) of the East Punjab Act, the Apex Court
went on to observe that it is impossible to hold
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that the tenant who takes out petty premises for
carrying on a small trade also stays in the rear
portion, cooks and eats, he so disastrously
perverts the purpose of the lease. It is further
held that a different purpose in the context is not
minor variations but majuscule in mode of
enjoyment. It should not be a case of a man
switching over to a canteen business. Commenting
on the facts of that case, the Apex Court then
observed that this is not a case of a man switching
over to a canteen business of closing down the
cobbler shop
igand converting the place into a
residential accommodation. It is further held that
the common case is that the cobbler continued to be
a cobbler and stayed in the shop at night, on days
when he was running his shop but left for his home
on shop holidays.
12. Referring to the aforesaid decisions, the
Appellate Court proceeded to hold that the tenant
in the present case was not carrying on a
full-fledged electronic business in the suit
premises but was carrying on some repair activities
during his leisure time after office hours in order
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to have some additional income in a small portion
of the suit premises while maintaining the dominant
user of the suit premises for residential purpose.
The view so taken, though attractive at the first
blush, cannot be countenanced having regard to the
scheme of the provisions of the Bombay Rent Act.
Insofar as the Bombay Rent Act provisions are
concerned, it matters not that the premises are
still being used also for the purpose for which it
was originally let, especially when the “lease is
for the purpose of residence only”. For, if it is
a
lease for residence created after the enactment
of the Bombay Rent Act, there is clear prohibition
of not using such premises for a non-residential
purpose. That bar is created on account of Section
25 of the Bombay Rent Act, which provision is to
effectuate public policy. Significantly, even if
the landlord were to consent for change of user of
the premises, let out only for residence to be used
also for non-residential purpose, that would be
impermissible in view of Section 25 of the Rent
Act. This aspect has been considered by our High
Court in the case of Bansilal Rampratap Rathi vs.
Suratsing Chandanmal & Ors. reported in 1982
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Mh.L.J. 628.
628 The only question considered in that
case was whether the tenant had brought about a
change in the user of the premises which were
originally taken only for the purpose of residence.
The tenant later on used the premises given for
residential purpose for starting a grocery shop
therein. This Court on considering the provisions
of Section 25 proceeded to hold that it is clear on
the reading of provisions of Section 25 that it is
prohibitory in character and operates as an
injunction against the landlord and prevents him
from
using or permitting to be used premises which
are used for a residential purpose on the date of
coming into force of the Bombay Rent Act to be used
for a non-residential purpose. Even in that case,
it was argued that out of house area of 30 khans,
only accommodation to the extent of 10 khans was
being utilised for non-residential purposes and,
therefore, the dominant use of the premises
continued to be for residential purposes not
attracting the rigours of Section 25(1) of the Rent
Act. That contention has been rejected by holding
that having regard to the sweep of Section 25(1)
and its object, the question of either dominant use
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or ancillary use of the premises becomes wholly
irrelevant. The Court then went on to observe that
even otherwise, mere extent of accommodation will
not be very relevant. The principle expounded in
this decision applies proprio vigore to the case on
hand. The fact that only a small portion of
verandah was used for non-residential activity for
carrying repairs of TV, Radio, etc. was of no
consequence. Significantly, in the present case,
it is admitted position, that license for
conducting such business was obtained under the
provisions
of the Shops and Establishments Act,
which was valid till 1987. The suit has been filed
in the year 1984 praying for possession of the suit
premises on the ground of breach of Section
13(1)(a) of the Bombay Rent Act. The fact that
such activity was carried on only during leisure
time by the Respondent/tenant or for additional
source of income can be no defence. The fact
remains that the suit premises which were let out
for residential use only were being used also for
non-residential purposes thereby attracting Section
13(1)(a) read with Section 25 of the Rent Act. To
overlook such mischief on the specious reasoning of
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dominant user of the premises continuing to be one
for residence, would be negating not only the
rigours of section 13(1)(a) of the Bombay Rent Act
r/w Section 108(o) of the T.P.Act, but more
importantly the prohibition under Section 25 of the
Bombay Rent Act. The decisions which have been
relied by the Appellate Court referred to above,
can be distinguished keeping in mind the
legislative scheme and intent of the Bombay Rent
Act.
13. It
will be useful to advert to another
decision of our High Court in the case of
Kasturchand Panachand Doshi & Ors. vs.Yeshwant
Vinayak Sainkar & Anr. reported in 1980 Bom.C.R.
424. In that case, the rent note specifically
mentioned that the tenant shall conduct the
business of milk in the suit premises. The tenant,
however, later on, started using the suit premises
for the purpose of workshop by installing heavy
machinery therein. While noticing the purport of
Section 13(1)(a) of the Bombay Rent Act, the Court
went on to hold in Para 5 that the landlord in such
a case would necessarily resort to Section 13(1)(a)
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of the Bombay Rent Act r/w Section 108(o) of the
T.P.Act. Because, in that case, using the suit
premises for a purpose other than the one for which
they were let out even for a short cause and even
with somewhat reasonable course may still invite a
decree for eviction. That view is founded on the
dictum of the Division Bench of our High Court in
the case of Bright Brothers (Pvt.) Ltd. & Co. vs.
Venkatlal G.Pittie & Ors. reported in 1979 Mh.L.J.
894,
894 wherein it is held that the mere act of change
of purpose of user even if it does not happen to be
destructive
or permanently injurious to the leased
property would amount to breach of Clause (o) of
Section 108 of the T.P. Act. The Court went on to
observe that Section 13(1)(a) of the Bombay Rent
Act does not permit change of the purpose of the
user or continued use for a changed purpose by
acquiescence or the waiver of the landlord. On
that basis, it went on to hold that the concepts
arising under the general law, including the
provisions under Section 111 of the T.P.Act, are
not relevant for working out the rights and
liabilities of the parties under the Bombay Rent
Act. The Court went on to hold in Paragraph 15
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that in a case where the premises are leased for
the purpose of “business”, if, instead of carrying
on milk business, the tenant carries on the
business of selling some other articles then there
would not be a change of the purpose of the user.
However, on the other hand, if the lease itself
mentions that the demised premises should be used
for the “selling of milk” and if the tenant uses
the premises for the selling of alcoholic drinks,
then it must necessarily mean that there is a
change of the purpose of the user though both the
purposes,
namely the purpose of selling milk and
the purpose of selling alcoholic drinks, may be
included in the larger genus of business.
14. Counsel for the Petitioner has then placed
reliance on an unreported decision of our High
Court in the case of Shankar Bapurao Gujare (dead),
through heirs, vs. Pandurang Vithal Kulkarni
(dead), through heirs and legal representatives in
Writ Petition No.3054 of 1988 decided on August 10,
2000. In that case, the suit premises consisted of
two rooms which were let out for residence only,
but part of the premises was being used for
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business. Similar contention of the tenant came to
be negated and the Court proceeded to hold that
provisions of Section 13(1)(a) of the Bombay Rent
Act r/w 108(o) of the T.P.Act were attracted. In
that case, the Court has relied on the exposition
of the Apex Court in the case of Bishamber Dass
Kohli (Dead by LRs. vs. Satya Bhalla (Smt.)
reported in (1993) 1 SCC 566,
566 which takes the view
that use of the building for a purpose other than
that for which it was leased without the written
consent of the landlord is a good ground for
eviction.
The said decision is in relation to
claim of the landlord founded on Section
13(2)(ii)(b) of the East Punjab Act. The Court
went on to observe that the object of the provision
clearly is that the parties must remain bound by
the terms on which the building is let out,
including the condition relating to its use for the
purpose for which it was leased. In other words,
breach of the covenant regarding the kind of user
of the building let out is the ground of eviction
contained in Section 13(2)(ii)(b) of the East
Punjab Act.
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15. Counsel for the Respondent/tenant,
however, distinguished this Judgment on the
argument that the Scheme of Section 13(2)(ii)(b) of
the East Punjab Act is materially different than
the provisions of Bombay Rent Act. It is not
necessary to enter into this debate as reference
has already been made to decisions of our High
Court which are directly on the point.
16. Counsel for the Respondent/tenant would
then rely on the decision of the Apex Court in the
case of
Atul Castings Ltd. vs. Bawa Gurvachan
Singh reported in (2001) 5 SCC 133. Once again,
this decision is in the context of Section
13(2)(ii)(b) of the East Punjab Act. Indeed, in
this decision, the observations of the Apex Court
in the case of Bishamber Dass Kohli (supra) have
been distinguished being in the fact situation of
that case, as can be discerned from Para 19 of this
decision. Learned Counsel for the Respondent was
at pains to persuade me to follow the dictum in the
case of Atul Castings Ltd. (supra) which takes the
view that it is not uncommon that officials,
executives, officers, businessmen, industrialists
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and people engaged in other vocations may have some
homework to do and that, in these days computers,
internet and other like facilities are kept at home
for convenience and use. It is further observed
that in residential buildings where persons live
with family members, a room may be used for the
purpose of doing homework relating to office files
or study of children or allied or ancillary use in
a building leased for residential purposes. That,
so long as in a residential building, there is no
regular commercial activity or carrying on of
business and regular office with interaction of the
public and customers, etc. it is not possible to
say that use of one room for doing homework or
study itself will change the user of the building
and that the classification and character of the
building is changed, but it continues to remain a
residential building so also its purpose remains as
residential.
17. The argument though attractive, clearly
overlooks the fact situation of the present case.
In the first place, the concurrent finding of fact
recorded by two Courts below is against the
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Respondent/tenant to the effect that he was
carrying on repairing work (business) of T.V.,
Radio, etc. from the suit premises and had
obtained license to conduct such business from the
competent Authority under the provisions of Shops
and Establishments Act, which was valid till 1987.
Issuance of said license presupposes that the
portion of the premises was being used as a shop
within the meaning of Shops and Establishments Act.
The shop was operated in the name and style as
"Advance Electronics". It is not relevant for us
to dwell
upon the fact as to whether the
Respondent/tenant had enough business or that large
number of customers were visiting the shop.
Suffice it to note that the user of portion of the
suit premises let out for residential use only has
been converted and changed to non-residential
proposes, thereby attracting the rigours of Section
13(1)(a) read with section 25 of the Bombay Rent
Act. It matters not whether the activity was
carried on by the Respondent/tenant only during his
leisure time after office hours or for additional
source of income. Section 13(1)(a) of the Bombay
Rent Act is inevitably attracted once it is
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established that the tenant not only intended but
also indulged in regular commercial activity to
carry on business or use the premises (even portion
thereof) as a regular shop with intention of
interacting with the public and customers, even
though the premises were let out for residential
use only. The conduct of the tenant in obtaining
license under the Shops and Establishments Act
itself is indicative of the intention of the tenant
of using the suit premises for regular business
activity or a commercial venture and to interact
with public
ig and customers. It is not a pastime
activity or an activity undertaken pro bono
publico. At any rate, having regard to the scheme
of Bombay Rent Act and the prohibition under
Section 25 of the Bombay Rent Act, the act of using
even portion of the premises let out for
residential purpose only for non-residential
activity during specific period or otherwise would
result in attracting the ground of change of user
within the meaning of Section 13(1)(a) of the Rent
Act.
18. Counsel for the Respondent/tenant would,
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however, rely on the dictum of our High Court in
the case of Babhutmal Raichand Oswal vs. Laxmibai
Raghunath Tarte reported in Vol.LXXIV 1971 B.L.R.
214.
214 In that case, however, the decree passed by
the Court below was under Section 13(1)(k) of the
Bombay Rent Act and not under Section 13(1)(a) as
such. The Division Bench of our High Court in the
case of Bright Brothers (Pvt.) Ltd. & Co. (supra)
has already spelt out the distinction between
Section 13(1)(a) and Section 13(1)(k) of the Bombay
Rent Act. In that case, the Court found that the
premises
were put to additional or different use
and they were still being used for the purpose for
which they were let. Therefore, the Court held
that it was a composite user. On that finding, the
Court proceeded to hold that whether the case falls
within the ambit of Section 13(1)(a) or 13(1)(k),
the Court will have to consider the provisions of
either of the two clauses. To my mind, therefore,
the plea of dominant user may be relevant to the
ground of eviction under section 13(1)(k) of the
Bombay Rent Act; but of no avail to examine the
ground under Section 13(1)(a), more particularly
relating to the premises let out for residential
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use only but later on used for non-residential
purpose also. Thus understood, this decision is of
no avail. For, the well established position is
that once the Court finds that the tenant has used
the demised premises for purpose other than that
for which it was specifically leased, then no other
aspect would be relevant. It will be useful to
advert to unreported decision of our High Court in
the case of Dasharath Baburao Sangale vs.
Kashinath Bhaskar Datar in Writ Petition No.1794 of
1984 decided on 19th February 1985. In that case,
the lease was for conducting a “shop for sugar-cane
juice” known in Marathi as “Gurhala”. The tenant,
however, started using the said premises for a
different purpose (for selling clothe and clothes)
though continued to use it as a shop. This Court
relying on the decision in the case of Kasturchand
Panachand (supra) answered the ground of change of
user against the tenant. The above-said unreported
decision was carried in appeal before the Apex
Court which, however, confirmed by the Apex Court
in the Judgement reported in AIR 1993 SC 2646 –
Dashrath Baburao Sangale & Ors. vs. Kashinath
Bhaskar Datar.
Datar The Apex Court referring to
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provisions of Section 13(1)(a) of the Bombay Rent
Act and Section 108(o) of the T.P.Act, coupled with
the finding of the two Courts below that the tenant
has been using the premises for the purpose other
than the one for which he had taken the said
premises on lease, answered the issue against the
tenant.
19. In the case of Motiram Dayaram (Dead) by
LRs. & Anr. vs. Chimanlal Atmaram (Dead) By LRs.
& Ors. reported in (1998) 8 SCC 425,
425 the premises
were
let out for residential purposes but were put
to use by tenant for running power looms, weaving
machines, etc. The Court opined that as it is
admitted case that the ground floor of the premises
in dispute is not being used for the purpose for
which it was let out to the tenant, the tenant had
violated the provisions of Section 13(1)(a) of the
Bombay Rent Act r/w 108(o) of the T.P.Act. The
Court went on to observe that converting of a
residential premises into a sort of mini textile
company is surely going to affect the residential
utility of the premises. Even in the present case,
although the Respondent/tenant must have succeeded
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in establishing that only portion of verandah is
used for non-residential activity, it was surely
going to affect the residential utility of the
premises.
20. That takes me to the decision relied by
the Counsel for the Respondent/tenant of our High
Court in the case of Sahebrao Shankarrao Mistry vs.
Azizabai Hussein Ahmad Mulla reported in 1994
Mh.L.J. 1121.
1121 Even in this case, the decree was
on
the ground of violation of Section 13(1)(k) of
the Bombay Rent Act and not Section 13(1)(a). This
decision refers to other decisions which are
already adverted to in the earlier part of this
Judgment. Much emphasis was placed on the
observation that when the structure in question was
put to some additional use, that would not alter or
rescind the original user, the question of any
violation by the tenant cannot be countenanced. As
has been noted earlier, the established position is
that once the Court finds that the tenant has used
the demised premises for a purpose other than that
for which it was specifically leased, the rigours
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of Section 13(1)(a) of the Bombay Rent Act read
with Section 108(o) of the T.P.Act will be
attracted. In matters, governed by Section
13(1)(a) of the Bombay Rent Act, the test of
dominant user for residence or nominal user of the
suit premises for non-residential purpose would not
absolve the tenant of action of eviction.
21. Reliance was also placed on the decision
in the case of Dattatraya Ramchandra Sapkal vs.
Gulabrao Tukaram Bhosale reported in 1978 Mh.L.J.
545.
545 In
that case, the premises were let out
specifically for carrying out business of fret work
but later on used for plastic business. In that
case, the Court held that the change of user did
not fall within clause (o) of Section 108 of the
T.P.Act. The Court then went on to observe that
the premises continued to be used for the business
of selling articles and did not change the user for
which the premises were let out. This decision is
of no avail to the Respondent to contend that since
the business activity was carried on in portion of
the verandah after office hours for additional
source of income, the ground of change of user is
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not attracted, as has been found by the Appellate
Court in the impugned Judgment.
22. Reference was then made to the decision of
the Apex Court in the case of Gurdial Batra vs.
Raj Kumar Jain reported in (1989) 3 SCC 441. This
decision has referred to the opinion of the Bombay
High Court in the case of Dattatraya Ramchandra
Sapkal (supra). In the first place, this decision
pertains to provisions of Section 13(2)(ii)(b) of
the East Punjab Act. Besides, in Para 6, the Apex
Court has
found that the house let for the
residence purpose would not be available for being
used as a shop even without structural alterations.
The observations are in the context of using the
premises for running a business other than the one
which was commenced after the lease. In the
present case, the question is: whether even
portion of the premises let out for residential use
only can be allowed to be used by the tenant for
any non-residential activity? The answer is an
emphatic “NO”.
23. On analysis of the aforesaid decisions and
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the provisions of the Bombay Rent Act, the
inevitable conclusion is that the opinion of the
Appellate Court that no decree of eviction can be
passed in favour of the landlord under Section
13(1)(a) of the Bombay Rent Act in respect of
premises let out for residence only as the demised
premises were not used as a full-fledged business
for whole day, but only during leisure time after
office hours for generating additional source of
income, is anathema to the scheme of the Bombay
Rent Act.
24. Accordingly, this Petition ought to
succeed and the impugned Judgment and decree passed
by the Appellate Court deserves to be set-aside and
instead, the Judgment and Decree of eviction passed
by the Trial Court against the Respondent/tenant
restored for the reasons recorded hitherto.
25. As a result, rule is made absolute with
costs.
26. At this stage, Counsel for the
Respondent/tenant prayed that as the original
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tenant has expired and the Respondent No.1(a) who
is widow of the original tenant was alone residing
in the suit premises, she may be permitted to
occupy the suit premises during her life time.
Counsel for the Petitioner submitted that, that
indulgence can be shown, subject to instructions to
be taken from the Petitioner, provided the
Respondent No.1(a) should file personal usual
undertaking as also cause to file usual undertaking
of all her sons and daughters though they are
staying separately. Counsel for the Respondents,
however,
expressed inability to give such
undertaking.
27. In the circumstances, no order can be
passed in favour of the Respondents to protect
possession of Respondent No.1(a) during her life
time.
28. Counsel for the Respondents would then
pray that the operation of this Judgment be stayed
so that the Respondents can carry the matter in
appeal. That being a reasonable request, the same
is accepted on condition that the Respondents shall
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file usual undertaking in this Court within two
weeks from today. On compliance of that condition,
this order shall not be given effect to for a
period of twelve weeks from today.
. Ordered accordingly.
A.M.KHANWILKAR, J.
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