CR No.5745 of 2003 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.5745 of 2003
Date of Decision: 9 - 12 - 2008
Nand Lal ....Petitioner
v.
Gurdev Kaur ....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Sumeet Mahajan, Sr.Advocate with
Mr.Amandeep Singh, Advocate
for the petitioner.
Mr.S.S.Rangi, Advocate
for the respondent.
***
KANWALJIT SINGH AHLUWALIA, J.
Present revision petition has been filed by Nand Lal son of
Goverdhan Dass resident of Bassi Pathana. He is aggrieved against order
dated 13.10.2003 passed by the Appellate Authority, Fatehgarh Sahib by
which appeal filed by the respondent-landlady was accepted and judgment
dated 28.1.2002 delivered by Rent Controller, Fatehgarh Sahib was set
aside.
Gurdev Kaur landlady had instituted an eviction petition on
29.10.1996. She has stated in the eviction petition that she is owner and
landlady of the shop shown in red colour in the site plan situated in Grain
CR No.5745 of 2003 [2]
Market, Khamanon, District Fatehgarh Sahib. The said shop was on lease
with the tenant at the rate of Rs.600/- p.m.. It was further pleaded that
relationship of landlord and tenant has been admitted by the tenant in Suit
No.422 of 1994 titled as `Nand Lal v. Gurdev Kaur’, decided on 4.1.1995 by
the Court of Sh.D.K.Sarpal, Sub Judge Ist Class, Fatehgarh Sahib. It was
further stated that tenancy was on month to month basis. For seeking
eviction of the tenant, three grounds were pleaded which can be reproduced
as under:-
a) That the respondent has not paid the rent at the rate of
Rs.600/- per month since August, 1995.
b) That the shop in question was earmarked as grain shop
and the same had been leased to the respondent by the
petitioner for specific purpose of carrying on the business of
commission agent of agriculture produce/grains but the
respondent has started using the demised shop for the purpose
of selling corrosive fertilizer & dangerous insecticides without
the permission of the petitioner and as such is guilty of change
of user of the demised shop.
c) That on account of storage of fertilizer in the shop in
dispute, the walls and the floor of the shop have been badly
damaged which have impaired the value and utility of the
demised shop.
Notice of the eviction petition was issued. Written statement
was filed. Relationship of landlord and tenant was admitted. It was stated
that shop was taken on rent in the month of January, 1990. It was further
stated that entire rent has been paid. Regarding change of user, it was stated
CR No.5745 of 2003 [3]
that from the very inception of tenancy, tenant has been carrying on the
business of selling fertilizer. It was stated that shop was taken on rent in
January, 1990 and in February, 1990 license was obtained for selling
fertilizer. It was denied that storage of fertilizer has damaged the shop and
impaired the value and utility of the demised premises. Replication was
filed in which averments made in the eviction petition were reiterated and
that of the written statement were denied. The Court of Rent Controller had
drawn the following issues:-
1. Whether the respondent is in arrears of rent and if so to
what amount? OPA
2. Whether the respondent has changed the user of the
demised premises/shop without the consent of applicant?
OPA
3. Whether the respondent has impaired the value and utility
of the demised shop? OPA
4. Relief.
Gurdev Kaur landlady has herself appeared as AW-1. She
proved site plan of the shop Ex.P1. It was stated that shop was allotted for
Commission Agent of food grains. The tenant for 3 to 4 months did the
work of food grains and thereafter he started selling fertilizer, insecticides
and pesticides and the tenant had taken no oral or written consent for
change of user and storage of insecticides and pesticides has diminished the
value and utility of the shop. She admitted that no rent note was executed.
Balbir Singh was examined as AW-2. He stated that in the last week of
October, 1989, he along with his father had taken the trolley of paddy for
sale on the commission agent shop and again in January, 1990, he along
CR No.5745 of 2003 [4]
with his father had taken the trolley of wheat on the shop of tenant Nand Lal
son of Goverdhan Dass. He further stated that thereafter Nand Lal stopped
the business of sale purchase of food grains and commenced the business of
sale of fertilizer, insecticides and pesticides. In cross-examination he
admitted that he was not having any slip for the sale of paddy and wheat.
Chaman Lal, Junior Assistant from the office of Administrator, New Mandi
Township, Punjab government was examined as AW-3. He brought the
summoned record of shop No.77 situated at Khamanon Mandi which was
allotted to Gurdev Kaur landlady. He proved allotment letter issued in the
year 1972. He further stated that shop No.76 at Khamanon Mandi was
allotted to Sham Singh Sekhon husband of Gurdev Kaur landlady. He also
proved allotment letter of that shop. He stated that terms and conditions of
allotment are mentioned in the allotment letter. Allotment letter of the
landlady-respondent is Ex.P2. He also stated that on 19.1.2.2000 letters
were issued to Sham Singh Sekhon and Gurdev Kaur landlady. Letters have
been proved as Exs.P4 and P5. During cross-examination, he admitted that
notices were issued to Gurdev Kaur in the year 1984, 1987 and 1988 but no
proceedings were initiated for cancellation of allotment. He stated that
notice Ex.P5 was received personally by Gurdev Kaur in the office.
Jagjiwan Kumar Gupta AW-4 a Chartered Engineer who retired as Head of
Civil Engineering Department, Department of Technical Education Punjab ,
Chandigarh was examined to prove technical report Ex.A6 which according
to him was prepared after he carried inspection of disputed building on
3.3.2001. He stated that due to storage of urea and pesticides in different
rooms of the property, the floor walls and the roof have been damaged due
to presence of Nitrogen and other harmful chemicals.
CR No.5745 of 2003 [5]
Thereafter tenant led his evidence, examined Narinder Kumar,
Clerk as RW-1 from the office of Chief Agriculture Officer, Fatehgarh
sahib. He proved license issued in favour of Indian Khad Depot, Khamanon
Mandi on 5.2.1990. He stated that license was for sale of Urea, DAP
fertilizer. In cross-examination, he stated that he has no personal
knowledge that tenant has started the business of fertilizer, pesticides and
insecticides in April, 1990. RW-2 Swaran Singh, Clerk, State Bank of
Patiala, Khamanon Mandi was examined regarding deposit of rent. Amrit
Lal Verma, Draftsman RW-3 proved site plan Ex.R8 and his report Ex.R7
along with photographs. Tenant Nand Lal appeared as RW4.
As stated, eviction petition was filed on 29.10.1996. Rent
Controller decided the case on 28.1.2002. Rent Controller held that ground
of non payment of rent is not made out as the rent had been regularly
deposited in the account of the landlady. Rent Controller further held that
no reliance can be placed upon the testimony of Balbir Singh AW-2. It was
further held that the tenant has been doing the same business of sale of
fertilizer as he had obtained the license in February, 1990 and no license
had been obtained by him for sale of grains as Commission Agent.
Therefore, the landlady had failed to prove the ground of change of user.
Rent Controller noticed the testimony of Jagjiwan Kumar Gupta, Expert as
he had opined that due to storage of urea, the demised premises had been
damaged and the same has reduced the life and value of the property. There
are pits in the floor, the cement plaster on the walls has been blistered at
many places and there are patches of dampness in the walls and roof. But at
the same time, Rent Controller also noticed the testimony of Amrit Lal
Verma, Draftsman examined by the tenant and held that since the shop has
CR No.5745 of 2003 [6]
been let out for sale of fertilizer, therefore, it cannot be said that value and
utility of the shop has been impaired. Therefore, the eviction petition was
dismissed.
Aggrieved against the same, the landlady had filed an appeal.
Appellate Authority held that landlady had failed to prove that there were
arrears of rent. Therefore, he found no infirmity in the findings of the
learned Rent Controller qua non payment of rent.
Appellate Authority examined the allotment letters Exs.P2 and
P3 issued in favour of the landlady and her husband Sham Singh Sekhon.
It noticed condition Nos.18 and 20 of the allotment letter. Same are
reproduced below:-
“18. The site and the building constructed thereon shall be
used as “Grain Shop” and for no other purpose.
20. Should any transferee fail to observe or comply with any
of the foregoing conditions or fail to construct the plot
within time specified, the plot will be resumed and his
deposit shall be forfeited to the State Government which
may have the property resold by public auction. Any
deficiency of price which may result on such resale shall
be made good and paid by the defaulters purchaser.”
Appellate Authority further noticed that notices dated
19.12.2000 Exs.P4 and P5 for violation of conditions of allotment have
been issued. Therefore, landlady faced peril of resumption and drew
support from the observations of Hon’ble Supreme Court in Surge Seed
Farm v. Raj Kumar Chadha, 1995(2) PLR 643 wherein due to un-authorised
construction, landlord was facing a threat of resumption and was ordered
CR No.5745 of 2003 [7]
the ejectment. After analysing and meticulously adjudging the evidence, the
Appellate Authority held as under:-
“…….Thus from the above referred evidence, it is established
that not only the respondent has changed the user of the shop in
question but his act of running fertilizer business from the shop
in question in contravention of the conditions of allotment has
rendered the shop liable for resumption. The case of appellant
is fully supported by 1995(2) PLR 643 (Supreme Court) Durga
Seed Farm Versus Raj Kumari Chadha, wherein in somewhat
identical circumstances where tenant has rendered the property
in question liable for resumption on account of un-authorised
construction, the Hon’ble apex Court upheld the judgment of
the Hon’ble High Court, vide which the tenant had been ordered
to be ejected from the demised premises.”
Regarding impairment of value and utility of the shop, the
Appellate Authority has held that landlady has failed to prove this ground
and upheld the findings of the Rent Controller. Therefore, the Appellate
Authority taking contravention of allotment letter and threat of resumption
held that change of user has made the tenant liable for eviction.
Revision petition of the tenant was admitted. Records were
requisitioned and same has been listed for regular hearing before this Court.
I have heard Mr.Sumeet Mahajan, counsel for the petitioner-
tenant and Mr.S.S.Rangi, counsel for the respondent-landlady.
Mr.Sumeet Mahajan, learned counsel for the petitioner has
contended that the respondent-landlady is not entitled to seek eviction of the
premises on the ground of change of user. He has stated that in the present
CR No.5745 of 2003 [8]
case neither the change of user is established on the facts nor on law. It has
been stated that the tenancy was created in January, 1990. In February,
1990, license was obtained by the tenant-petitioner from the Department of
Chief Agriculture Officer, Fatehgarh Sahib. Therefore, from the very
inception of tenancy, petitioner is engaged in sale of fertilizer, insecticides
and pesticides. It has been further contended that even if it is assumed that
from sale of grains, petitioner has started selling fertilizer, insecticides and
pesticides, same would not amount to such a change of user which will
necessitate eviction of the tenant. In support of his contention, learned
counsel for the petitioner has relied upon Pitamber Lal v. Ram Lal and
ors., 1984(2) R.C.R.(Rent) 504 to canvas that where the tenant was using
the shop for sale of Paan and Birri and subsequently started Karyana trade,
it does not amount to change of user. It has been held in Pitamber Lal’s
case (supra) that change of user could only be held if it is proved that
premises were let out for specific purpose and subsequently tenant has put
the same to different purpose. Counsel State that no rent note has been
proved. Further reliance has been placed on Parkash Chander v. Bhim
Sain through Legal Heirs, 1986(2) R.C.R. (Rent) 631 in support of above
contention. Counsel has further relied upon Hari Rao v. N. Govindachari
and others, AIR 2005 SC 3389 to state that use of premises for specific
purpose other than it is leased, can only be taken into consideration if
residential property is converted into non-residential property or vice versa.
It has been submitted that the purport of the judgment relied upon is that
change of user should be liberally construed and as in present case, in law
no change of user can be attributed to petitioner-tenant. Counsel for the
petitioner has relied upon Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1934
CR No.5745 of 2003 [9]
(1) to urge that the alleged change of user from sale of grain as Commission
Agent, to sale of fertilizer, insecticides and pesticides has caused no
impairment or mischief or detrimental to the demised premises, therefore,
Appellate Authority was wrong in holding that petitioner was liable for
eviction due to change of user. Para 9 of judgment in Mohan Lal’s case
(supra) read as under:-
“9. While respectfully agreeing with the said observations of
Lord Diplock, that the Parliament legislates to remedy land the
judiciary interpret them, it has to be borne in mind that the
meaning of the expression must be found in the felt necessities
of time. In the background of the purpose of rent legislation and
inasmuch as in the instant case the change of the user would not
cause any mischief or detriment or impairment of the shop in
question and in one sense could be called an allied business in
the expanding concept of departmental stores, in our opinion, in
this case there was no change of user which attracts the
mischief of S. 13(2)(ii)(b) of the Act. The High Court,
therefore, was in error.” (emphasis supplied)
I am of the view that the judgment relied upon by the counsel
has demolished the case of the petitioner-tenant. In the present case,
apparently as per terms and conditions of letter of allotment Exs.P2 and P3,
change of user has fastened the respondent-landlady with a notice of
resumption, therefore, it is not only detrimental to the respondent-landlady
but such a notice due to which shop could be resumed was sufficient to
order eviction of the tenant. Therefore, judgment and order passed by the
Appellate Authority holding the petitioner-tenant liable for eviction is
CR No.5745 of 2003 [10]affirmed.
Counsel for the petitioner has also advanced certain ancillary
arguments. It was stated that it was no where pleaded that due to issuance
of notice, shop is going to be resumed. Therefore, because of lack of
pleadings, Appellate Authority could not take this fact into consideration.
To support this contention, reliance has been placed on Union of India and
others v. Jai Prakash Singh and another, (2007) 10 SCC 712. In the
present case, eviction petition was instituted on 29.10.1996. Notice Ex.P5
regarding resumption was received on 19.12.2000. Therefore, this fact
could not be pleaded in the eviction petition. Matter of fact is that due to
sale of fertilizer, respondent-landlady faces a threat of resumption of the
shop for violation of conditions of allotment letter. Therefore, the Appellate
Authority has ordered eviction of the petitioner-tenant. This finding cannot
be said to be perverse.
For the reasons stated above, no interference is warranted and
the present petition is dismissed. The petitioner-tenant is granted two
months time to vacate and hand over vacant possession of the demised
premises.
( KANWALJIT SINGH AHLUWALIA )
December 9, 2008 JUDGE
RC