JUDGMENT
Hemant Gupta, J.
1. The present revision petition by the landlord is directed against the orders passed by the Rent Controller and the Appellant Authority whereby her petition for ejecting the respondent from an area measuring 12′ x 9′ forming part of House No. 1708 situated in Street No. 12, Abohar was dimissed.
2. The petitioner filed the ejectment petition on the ground that one room has been let out to the respondent at the rate of Rs. 250/- per month on 24.7.1981. The petitioner sought ejectment on the ground that the respondent is in arrears of rent and he has changed the user of the premises, as it has started the business of ready-made garments although it was given on rent for wool business. The petitioner also sought ejectment on the ground of personal use and occupation alleging therein that the demised premises are a part of residential house and the parties never obtained the consent and permission of the Rent Controller to convert residential into non-residential building.
3. The respondent submitted that he has tendered the outstanding amount along with itnerest and costs and thus, the ground of ejectment on account of arrears of rent does not survive. However, in respect of allegation of change of user, it was submitted that the shop in question was not let out for setting up of a business of wool. In fact, it was rented out for Karobar (business) and thus there is no change of user. Regarding bona fide use and occupation, the tenant submitted that the demised premises i.e. the shop is not a part of the residential building and the petitioner does not need the shop in question for her personal use. The petitioner has sufficient accommodation for her personal use and thus, submitted that the ejectment application be dismissed.
4. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case.
5. The learned counsel for the petitioner has submitted that the petitioenr has sought ejectment of the respondent-tenant on the ground that the respondent has changed the user of the premises and that the petitioner requires the building for her bona fide personal use and occupation. As far as the change of user as the ground of ejectment is concerned, it was the stand of the respondent that he from the very beginning has been using the demised premises for the purpose of business of wool and ready-made garments. Even as per the allegations of the landlord, the business of ready-made garment is an allied or ancillary business to the business of wool. It has been held by the Hon’ble Supreme Court in AIR 1988 SC 1034 that if the tenant has started business which is allied or ancillary, then the ground of ejectment is not made out out. Even in Jagdish Lal v. Parma Nand (2000) 5 Supreme Court Cases 44 = AIR 2000 Supreme Court 1822. Hon’ble Supreme Court has reiterated that the tenant can be evicted on account of change of user only if the changed user is neither allied nor ancillary.
6. Even otherwise, the courts below have found that the shop in question was let out for Maniari business i.e. general merchandise. Therefore, the user of the premises for selling of ready-made garments is not a user prohibited by the terms of tenancy which is ancillary and that to the main purpose. Therefore, the tenant is not liable to be evicted on account of change of user of the premises.
7. However, as far as the ground of bona fide personal use and occupation is concerned, the counsel for the petitioner has made two-fold submissions. Firstly, it was argued that the room n question is a part of residential building and therefore, letting out of the same for business purpose would not change the nature of the property as it will retain its character of residential building. The petitioner placed reliance on 1986 (1) PLR 1 Hari Mittal v. B.M. SIkka and Sham Lal v. Kashmiri Lal 1989 (1) RLR 435 to contend that even if one room has been let out for business purpose still the nature of the building remains residential. The second part of the argument was that even it the said room is stated to be a non-residential building still the petitioner is entitled to seek ejectment of the respondent for her bona fide use and occupation as even non-residential building can be got vacated from the tenant on account of bona fide personal use and occupation after the judgment of Harbilas Rai Bansal v. The State of Punjab 1996 (1) SCC 1. The petitioner further placed reliance on Mrs. Meenal Eknath Kshirsagar v. M/s Traders & Agencies and Anr. JT 1996 (6) S.C. 468 and Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde and Anr. (1999) 4 Supreme Court Cases 1 to contend that the landlord is the best judge for his requirements and therefore the tenant is liable to be evicted.
8. On the other hand, the counsel for the respondent has submitted that both the courts below have returned a concurrent finding of fact that the room which has been let out to the tenant is, in fact, a part of the set of four shops which abuts on the main road and therefore, such shops are (sic) part of the residential building. In these circumstances, it was submitted that it is a non-residential building which cannot be got vacated by the petitioner for residential purpose. The counsel relied upon Ram Goptal v. Sher Singh (1995-2) PLR 445 and Prem Chand v. Siri Ram (died) 1994 (1) PLR 490 to contend that if the rooms are constructed districtly and are let out as such, it cannot be treated as a residential building. It was further contended that since the room was constructed as shop, let out as a shop and therefore, it is non-residential and cannot be got vacated for use as residence. The reliance was placed upon Supreme Court Judgment in Attar Singh v. Inder Kumar 1967 PLR 83.
9. A persual of the site plan Ex.A.2 shows that four rooms have been constructed in the front portion of the building abutting the road. Said rooms have been let out to different tenants who are also shop-keepers. All these rooms have been shown having opening towards the inner side of the property owned by the petitioner i.e. towards the residential portion but it has been admitted by A.W.2 Dharma Pal that the demised premises has only one door which opens towards the street. A.W.1 Kulwant Rai admits that there are shops in Street No. 12 where the demised property is situated. Thus, all these four rooms have been designed in such a amnner that the same can be used by different tenants as shps having its opening in Street No. 12. Mere fact that thre is only one Municipal number of the building will not be sufficient to hold that the rooms although constructed in such a manner so as to make out as a shop will retain its character as that of a residential building. House number is granted by the Local Authority to facilitate the assessment of house tax. Such number is not conclusive to determine the nature of the property under the Rent Act. It is a matter of common practice in the State of Punjab that the front portion of the premises are constructed in such a way to use the same for the business purpose whereas the residential portion are either situated on the rear of such business premises or on the first floor.
10. I have considered the judgments cited at the bar and am of the opinion that the rooms having been constructed for the purpose of letting out as a shop having only one entrance from the main road. The question whether the premises are part of the residential building or have been constructed as a district and separate building to be let out as a shop i.e. a non-residential building is a question of fact to be decided on the basis of facts of each case. It is the nature of construction, the locality, the user and attended circumstances which determine whether the tenanted premises is a non-residential building. Therefore, the premises let out to the tenant is non-residential buuilding and not a part of the residnetial building as suggested by the petitioner.
11. Even otherwise, both the courts below have returned a finding that the four rooms are designed and constructed in such a manner so as to rent out the portion abutting the road as four shops and keeping the remaining portion for residence. Thus, I do not find any illegality or irregularity in the finding recorded by the authorities that the premises let out are distinct and separate non-residnetial building.
12. The alternative argument of the petitioner that after the judgment of the Hon’ble Supreme Court in Harbilas Rai Bansal’s case, the non-residential building can be got vacated for bona fide personal use and thus the tenant is liable to be evicted even from such non-residential building. Such arguent of the petitioner is misconceived. In Harbilas Rai Bansal’s case (supra) the Hon’ble Supreme Court has struck down the amendment introduced by Punjab Act No. 29 of 1956 whereby the right of the landlord to seek eviction of the tenant from his non-residential premises for bona fide requirement were taken away. Prior to such amendment Section 13 (3) (ii) reads as under:
“13 (3) (ii) in the case of a non-residential building or rented land, it
(a) he requires if for his own use;
(b) he is not occupying in the urban area concerned for the purpose of his business any other such building or rented land,; and
(c) he has not vacted such a building or rented land without sufficient cause after the commencement of this Act, in the urban area concerned;”
13. The provisions of Section 13 (3) (ii) of the Act came up for consideration before the Supreme Court in Attar Singh’s case (supra) wherein the Hon’ble Supreme Court was considering the ejectment petition for eviction of the tenant from the rented land. It has been held by the Supreme Court interpreting Sub-clause (a) of Clause (ii) that the intention of the Legislature must have been that if the landlord is in possession of other rented land whether his own or belonging to some body else for his business, he cannot be evicted from his own rented land. It clearly follows that from this the intention that the words for his own use and in Sub-clause (a) is that the landlord requires the rented land from which he is asking for eviction of the tenant for his own trade or business. The Hon’ble Supreme Court concluded thus:
“9. It should therefore be clear that “for his own use” in Sub-clause (a) means use for the purpose of business principally, for otherwise we cannot understand why, if the landlord had given up some rented land which he had taken for business principally, he should not be entitled to recover his own rented land if he required it (say) as in this case, for constructing a residential building for himself. The very fact that Sub-clauses (b) and (c) require that the landlord should not be in possession of any rented land for his own business and should not have given up possession of any other rented land, i.e., land which he was principally using for business show that he can only take advantage of Sub-clause (a) it he is able to show that he requires the rented land for business. Otherwise the restrictions contained in Sub-clause (b) and Sub-clause (c) would become meaningless, if it were held that Sub-clause (a) would be satisfied if the landlord requires the rented land for any purpose as (for example) constructing a residential house for himself. We are of the opinion therefore, that Sub-clauses (a), (b) and (c) in this provision must be read together, and reading them together there can be no doubt that when Sub-clause (a) provides that the landlord requires rented land for his own use, the meaning there is restricted to use principally for business or trade. We have already said that this legislation is meant for the protection of tenants, and we have no hesitation in coming to the conclusion that the words for his own use in Sub-clause (a) in the circumstances must be limited in the manner indicated above as that will give full protection to tenants of rented land and save them from eviction unless the landlord requires such land for the same pupose for which it had been let i.e. principally for trade or business. We are therefore of the opinion that the view taken in the case of Municipal Committee, Abohar is incorrect and as the respondent landlord required the land in this case not for business or trade principally but only for constructing a house for himself he is not entitled to eject the appellant under Section 13 (3) (a) (ii).
14. In view of the binding precedent in Attar Singh’s case (supra), the landlord cannot seek ejectment of a non-residneital building for the purpose of residence which is evident from a conjoint reading of Clause (a), (b) and (c) of Clause (ii) of Section 13 (3) of the Act.
15. Even otherwise the landlord has sufficient accommodation in her possession which is sufficient for her family. The petitioner has herself died and only one married son was living with her at Abohar who has got 3 children. Thus the accommodation of 3 rooms, stores, varandah along with kitchen and bath room are sufficient for the requirement of her married son and his children. Even in an application moved for impleading the legal representatives of deceased Parmeshwari Devi, only Dhirender Kumar Ahuja is stated to be residing at Abohar whereas 3 other sons who are impleaded as legal heirs and representatives are residing either at Delhi or Chandigarh. The requirement of the petitioner is only in respect of Dhirender Kumar Ahuja and his family members.
16. In view of above facts, I do not find that the petitioner requires the tenanted premises for their bona fide use and occupation for residence as well.
17. Consequently, I do not find any merit in the present revision petition and dismiss the same. No order as to costs.