http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: BISHAMBER DASS KOHLI (DEAD) BY LRS.

       Vs.

RESPONDENT: SMT.  SATYA BHALLA

DATE OF JUDGMENT12/01/1993

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) YOGESHWAR DAYAL (J) VENKATACHALA N. (J)

CITATION:  1993 SCR  (1) 171        1993 SCC  (1) 566  JT 1993 (1)   123        1993 SCALE  (1)105

ACT: East  Punjab  Urban  Rent  Restriction  Act,   1940--Section 13(2)(ii)   (b)--Eviction  on  the  ground  of   change   of user--Whether proper. East Punjab Urban Rent Restriction Act, 1940--Sections 2(g), 2(h)--"Residential           building",           "Scheduled building"--Construction.

HEADNOTE: The  suit premises was let out by the appellant landlord  to the  respondent  on  a monthly rent of Rs.  550  solely  for residential  purpose.   In  a  part  of  the  premises,  the respondent’s  husband, a lawyer established his  office  and started using the same for that purpose. Teh  appellant-landlord  riled a petition  before  the  Rent Controller seeking eviction of the respondent-tenant. The  Rent  Controller  made  an order  of  eviction  of  the respondent  tenant  on the ground of change  of  user  under section  13(2)  (II)  (b), of the  East  Punjab  Urban  Rent Restriction Act, 1940. The   tenant’s  appeal  was  dismissed  by   the   appellate authority,  against which a revision to the High  Court  was preferred. The Single Judge of the High Court allowed the revision  and set aside the eviction order, holding that the building  let out as a ’residential building became a ’scheduled building’ by  use of a part thereof as lawyer’s office by the  tenants husband;  and  therefore,  the ground of  eviction  was  not available. Hence  this  appeal  by  the  landlord  by  special   leave, contending  that the ground of change of user  contained  in section  13(2) (II) (b) was clearly made out from the  facts and  the  High  Court erred In setting aside  the  order  of eviction. 172 The respondent-tenant submitted that the landlord waived the ground of change of user by acquiescence to use of a part of the premises as lawyer’s office; that the ground in  section 13(2)(ii)(b) was not available unless the change of user was of  substantial, if not the entire building and,  therefore, mere  use  of a small part of the  residential  building  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

lawyer’s office does not constitute such change. Allowing the appeal of the landlord, this court, HELD  : 1.01. Use of the building for a purpose  other  than that for which it was leased, without the written consent of the landlord is a ground of eviction.  Ile object dearly  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  Urban  Rent Restriction Act. [177A-B] 1.02.     If  the change in user of the building is  of  the kind  that  it makes the residential building  let  out  for residential purpose alone change its character and become  a ’scheduled  building’ as defined in section 2(h) of the  Act without  the written consent of the landlord, the ground  of eviction under section 13(2) (ii) (b) is made out. [177C] 1.03.     This  test is fully satisfied In the present  case and  the order of eviction was made by the  Rent  Controller and affirmed by the appellate authority on this basis.   The High Court misconstrued the provisions to take the  contrary view. [177D] Telu Ram v. Om Parkash Garg 1971 RCJ 1, approved. Sant  Ram  v. Rajinder Lal and Ors., 1978 (2) RCR  601;  Dr. Sewa Singh v.  Smt.  Ravinder Kaur and another, [1971] 2 SCC 981, distinguished. 2.01.     Even though a ’scheduled building continues to  be a  residential  building  as  defined  in  section  2(g),  a residential  building  of which even a part is  used  for  a scheduled  purpose,  becomes  and  is  called  a   ’schedule building  when  user of the building is significant  or  the criterion. [176F] 2.02 Where  user  of  a  building  is  of  significance,   a distinction  is  made  In  the  Act  between  a  residential building which is not a scheduled building and 173 that which is a scheduled building.  This is so in section 4 of  the Act dealing with determination of fair rent  wherein fixation  of rent is made on the basis of user and for  that purpose a ’scheduled building’ is treated differently from a residential  building  which is not  a  scheduled  building. [176G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5434 of 1985. From  the Judgment and Order dated 11.8.1987 of  the  Punjab and Haryana High Court in Civil Revision No. 1048 of 1986, A.K Gupta for the Appellants. Vikram   Mahajan,  Gopi  Chand  and  K.K.  Gupta   for   the Respondent. The Judgment of the Court was delivered by VERMA, J. The suit premises in Chandigarh was let out by the appellant to the respondent, Smt.  Satya Bhalla on 1.11.1974 on a monthly rent of Rs. 550 solely for residential purpose. However, the respondent’s husband, a lawyer established  his office in a part of the suit premises and started using  the same  for  that  purpose.  The  appellant-landlord  filed  a petition  before  the  Rent  Controller  in  February,  1983 seeking eviction of the respondent-tenant on several grounds including the ground contained in section 13(2) (ii) (b)  of the  East Punjab Urban Rent Restriction Act, 1949  i.e.  the use of the building for a purpose other than that for  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

it  was  leased.   The  Rent Controller  made  an  order  of eviction of the respondent-tenant on the ground of change of user  contained  in  section 13(2)(ii)  (b).   The  tenant’s appeal  was  dismissed  by  the  appellate  authority  which affirmed the order of eviction made by the Rent  Controller. A further revision to the High Court has been allowed by the learned single Judge and the order of eviction has been  set aside.  The High Court has held that the building let out as a ’residential building became a ’scheduled building by  use of  a  part  thereof  as lawyer’s  office  by  the  tenant’s husband;  and  therefore,  the ground of  eviction  was  not available.   The  order of eviction made in  the  landlord’s favour was, therefore, set aside.  Hence this appeal by  the landlord by special leave. The  learned  counsel for the appellant contended  that  the ground of change of user contained in section 13(2) (ii) (b) is  clearly made out from the facts and the High  Court  has erred in setting aside the order of eviction. 174 In  reply  Shri  V.C.  Mahajan,  learned  counsel  for   the respondent-tenant, advanced several arguments.  He submitted that the landlord had waived the ground of change of user by acquiescence  to use of a part of the premises  as  lawyer’s office.   His next submission is that the ground in  section 13(3) (ii) (b) is not available unless the change of user is of  substantial if not the entire building  and,  therefore, mere  use  of a small part of the  residential  building  as lawyer’s  office  does not constitute such  change,  learned counsel  also  submitted  that this is not a  fit  case  for interference  with the High Court’s order under Article  136 of the Constitution. Having  heard both sides, we are satisfied that this  appeal has  to  be  allowed.   The  High  Court’s  interference  in revision  with  the  order  of eviction  made  by  the  Rent Controller  and  affirmed by the  appellate  authority,  was wholly unjustified. There  is no merit in Shri Mahajan’s argument of  waiver  or acquiescence  by the landlord.  Before the  Rent  Controller the tenant had pleaded estoppel against the landlord,  which after  due  consideration was rightly rejected by  the  Rent Controller.   That  finding of the Rent Controller  was  not assailed by the tenant either before the appellate authority or  in  the  High  Court.  On  merits  also,  this  plea  is untenable  since no such conduct of the landlord  is  shown. The  argument is, therefore, rejected.  We also do not  find any  substance  in the contention  that  interference  under Article  136 is not warranted, in case it is found that  the High   Court   set  aside  the  order  of  eviction   on   a misconstruction  of the law applicable in the present  case. The  only  question,  therefore, is whether  on  the  proved facts, no longer in controversy, the ground in section 13(2) (ii) (b) is made out. The  material  provisions  in the  East  Punjab  Urban  Rent Restrictions   Act,  1949  with  reference  to   which   the contention  of  Shri Mahajan has to be considered,  are  the following               "2. Definitions....................               (a)   ’building’ means any building or part of               a  building let for any purpose whether  being               actually   used  for  that  purpose  or   not,               including  any  land, godowns,  outhouses,  or               furniture let therewith but does not include a               room in a hotel, hostel or               175               boarding house;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             xxx       xxx                              xxx               (d)   ’non-residential   building"   means   a               building being used solely for the purpose  of               business or trade:               Provided that residence in a building only for               the purpose of guarding it shall not be deemed               to convert a "non residential’ building’ to  a               ’residential building":               xxx      xxx                             xxx               (g)   ’residential    building"   means    any               building   which  is  not  a   non-residential               building;               (h)   ’scheduled building" means a residential               building  which  is  being used  by  a  person               engaged  in  one or more  of  the  professions               specified in the Schedule to this act,  partly               for his business and partly for his residence;               xxx xxx                             xxx               13.   Eviction  of  tenant  (1)  A  tenant  in               possession of a building or rented land  shall               not  be  evicted therefrom in execution  of  a                             decree passed before or after the  commencemen t               of this Act or otherwise and whether before or               after  the termination of the tenancy,  except               in accordance with the provisions of this sec-               tion.               (2)   A landlord who seeks to evict his tenant               shall apply to the Controller for a  direction               in  that  behalf.  If  the  Controller,  after               giving the tenant a reasonable opportunity  of               showing   cause  against  the  applicant,   is               satisfied               (ii)  that   the   tenant   has   after    the               commencement  of this Act without the  written               consent of the landlord -               (a)   transferred his right under the lease or               sublet  the entire building or rented land  or               any portion thereof; or               176               (b)   used  the building or rented land for  a               purpose  other  than  that for  which  it  was               leased, or               the Controller may make an order directing the               tenant  to put the landlord in  possession  of               the  building  or  rented  land  and  if   the               Controller  is not so satisfied he shall  make               an order rejecting the application:               Provided  that  the Controller may  give  ’the               tenant  a  reasonable  time  for  putting  the               landlord  in  possession of  the  building  or               rented land and may extend such time so as not               to exceed three months in the aggregate." Shri  Mahajan contended that to constitute the ground  under section  13(2)  (ii) (b), the change in user  should  be  in respect  of at least a substantial part of the  building  if not  the entire building.  The comparison of sub-clause  (b) with  sub-clause  (a) shows that the omission  of  the  word ’entire’  before the word ’building’ in sub-clause (b)  when the  word ’entire’ has been used before the word  ’building’ in  sub-clause  (a)  is deliberate.  For  this  reason,  the change  in user of the building required to  constitute  the ground  under  sub-clause  (b) need not  be  of  the  entire building,  the word ’entire’ being deliberately  omitted  in sub-clause  (b).  Faced with this difficulty,  Shri  Mahajan

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

submitted that the change of user should be of a substantial part  of the building let out even though not of the  entire building.   This  argument also cannot be accepted  in  this context.  The definitions in section 2 of the Act show  that even  though  a  ’scheduled  building’  continues  to  be  a residential   building  as  defined  in  section   2(g),   a residential  building  of which even a part is  used  for  a scheduled  purpose,  becomes  and  is  called  a  ’scheduled building’  when user of the building is significant  or  the criterion.    Thus,   where  user  of  a  building   is   of significance,  a  distinction  is made in  the  Act  between residential  building which is not a scheduled building  and that which is a scheduled building.  This is so in section 4 of  the Act dealing with determination of fair rent  wherein fixation  of rent is made on the basis of user and for  that purpose a ’scheduled building’ is treated differently from a residential  building  which is not  a  scheduled  building. Same  is the position with regard to the ground of  eviction contained  in section 13(2) (ii) (b) wherein change in  user of  the building is alone significant for  constituting  the ground. 177 Accordingly,  use of the building for a purpose  other  than that for which it was leased, without the written consent of the landlord is a ground of eviction.  The object 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). It is clear that if the change in user of the building is of the kind that it makes the residential building let out  for residential purpose alone change its character and become  a ’scheduled  building’ as defined in section 2(h) of the  Act without  the written consent of the landlord, the ground  of eviction under section 13(2) (ii) (b) is made out. This  test  is fully satisfied in the present case  and  the order  of  eviction  was made by  the  Rent  Controller  and affirmed  by  the appellate authority on this  basis.   ’The High Court misconstrued the provisions to take the  contrary view. A  Division  Bench of the Punjab and Haryana High  Court  in Telu  Ram v. Om Parkash Garg 1971 RCJ 1 while  dealing  with section 13(i) (ii) (b)   at  the  Act mentioned one  of  its conclusion in para 21 as under               ’(b)  that if the result of the use of even  a               small  portion of a building is such that  the               category  of  the  premises  is  changed  from               residential,  non-residential  and  scheduled,               and  it becomes a category different from  the               one  for  which  the same had  been  let,  the               clause would be attracted;" This  is how this provision appears to have been  understood at  least  eversince than and the people in the  State  have arranged  their affairs on that basis.  Apart from the  fact that  this  view  commends to us as the  correct  view,  the desirability of continuing the settled view is also a reason in its favour. Shri Mahajan referred to the decision of this Court in  Sant Ram v. Rajinder Lal and Ors., 1978(2) RCR 601.  That case is distinguishable.  In that decision the purpose of the  lease was  not  spelt  out precisely while  letting  out  a  small premises  to a cobbler for his business where  he  sometimes stayed  overnight after the day’s work while he went to  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

home on 178 holidays.   It  was on these facts that the  tenant  staying overnight in the shop on some working days was not found  to constitute the ground of change of user under section  13(2) (ii)  (b)  of the Act.  That decision does  not  assist  the respondent tenant in this case. . Reference was also made to Dr. Sewa Singh v. Smt.   Ravinder Kaur and another, [1971] ’3 SCC 981.  That judgment did  not consider  this  question as it was not raised.   The  ground therein was that the High Court was not justified in  taking the  view in revision for the first time that the user of  a part  of the premises for a particular purpose  was  casual. No doubt, the user of a part of the residential building for the  profession of a medical practitioner was  involved  and the  definition of ’scheduled building’ in section  2(h)  of the Act was referred, but this point was neither raised  nor considered.   The  decision  in Dr.  Sewa  Singh  cannot  be treated as an authority for the view that change of user  of a part of a residential building let out for use solely as a residence,  for  a  scheduled purpose  without  the  written consent  of the landlord does not constitute the ground  for eviction under section 13(2) (ii) (b) or that the ground  of eviction based on personal need of the landlord contained in section  13(3) (i) (a) is not available to the landlord  for that  reason.  If the logical inference from Dr. Sewa  Singh appears  to  be that, then, with respect, we are  unable  to agree with the same. As a result of the above discussion, this appeal is  allowed and the impugned order passed by the High Court is set aside resulting  in restoration of the order of eviction  made  by the Rent Controller and affirmed by the appellate authority. The  respondent  will  also  pay  cost  to  the   appellant. Counsel’s fee Rs. 3,000. V.P.R.                            Appeal allowed. 179