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CASE NO.: Appeal (civil) 14150  of  1996

PETITIONER: M.  ARUL JOTHI & ANR.  .

       Vs.

RESPONDENT: LAJJA BAL (DECEASED) & ANR.  ..

DATE OF JUDGMENT:       29/02/2000

BENCH: N.S.Hegde, A.P.Misra

JUDGMENT:

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     MISRA, J.

     The   question   raised   in   this  appeal   is   the interpretation  of  Section 10(2)(ii)(b) of the  Tamil  Nadu Buildings  (Lease and Rent Control) Act 1960.  The  question is  whether  in  terms  of the rent  agreement  between  the appellant  (tenant)  and the respondent (landlord),  if  the tenant  uses  the shop for a different purpose than the  one specified therein will he be liable for eviction?

     The short facts are, a rent agreement was entered into between  respondent  no.1 and one Mr.  T.S.  Arulrayar  (the grandfather  of the appellant) under which the disputed shop was  rented out.  The relevant portion of the rent agreement which requires our consideration is reproduced below:-

     shall be used by the tenant only for carrying on his own  business  dealing in radios, cycles, fans,  clocks  and steel  furniture  and for non-residential purposes  and  the tenant  shall not carry on any other business than the above said business.

     {Emphasis supplied}

     On  12th  April, 1979 a legal notice was sent  by  the landlady to the said T.S.  Arulrayar terminating his tenancy on  two  grounds, the wilful default in payment of rent  and using  the  shop for a purpose other than that for which  it was let out.  This was followed by filing of petition before the  rent controller in which it was stated that the  tenant is  also  doing the business of provisions such as  chilies, dals  and other condiments etc., which is other than the one for  which  he took the accommodation on rent.   The  tenant denied  it and asserted, if the rent-deed is read as a whole it  cannot be said that it was for any specified purpose but

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was  given  broadly  for  doing business  but  was  not  for residential  purpose.   Thus,  it  cannot  be  termed  as  a different  user.   The rent controller finally  decreed  the suit by holding that tenant is also carrying on the business of  provisions, which is other than the one mentioned in the rent deed which would be a different user, hence ordered for his  eviction.  Thereafter the said T.S.  Arulrayar filed an appeal  before the Appellate Authority which also  confirmed the  aforesaid  judgment.   Next civil  revision  was  filed before  the High Court.  The High Court remanded the case to the  Appellate  Authority, relying on M.K.P.   Chettiar  Vs. A.P.   Pillay, 1970 (2) SCC 290, for recording, whether  the tenant  was  using substantial portion of the disputed  shop for  a different user.  After remand the Appellate Authority once  again decreed the eviction suit recording  substantial portion  being  put  to  different  user.   The  appellants grievance  is  that  the said Authority did not  record  any finding  as to the area actually used by him for a different purpose.   The  inference of a different use of  substantial portion was only drawn since appellant could not produce the accounts  books  relating  to  the  grocery  business.   The challenge  was  also that the said Authority wrongly  placed burden of proof on the tenant instead on the landlord, hence filed  the revision before the High Court.  During  pendency of  the  same,  Mr.  T.S.  Arulrayar died  and  the  present appellant  and  respondent  no.2 were brought as  his  legal representatives.  The High Court also confirmed the findings recorded  by the Appellate Authority.  Aggrieved by this the present appeal is filed.

     The thrust of submission by learned senior Counsel for the  appellant  is  that the shop was given on  tenancy  for doing  business  and  even  if  the  appellant  changes  his business  or  undertook  another business from  dealings  in radios,  cycles,  fans,  clocks and steel furniture  to  the grocery  business;   would  still be a business and  such  a change  would  not  affect  his right to  use  it  as  such. Broadly,  tenancies are either for residential or commercial use.   Since the change of business does not change its  use from  commercial it would not constitute this to be a ground for his eviction.  To substantiate this, he made reliance on Section  108  (o) of the Transfer of Property Act, which  is quoted hereunder:-

     108 Rights and liabilities of lessor and lessee

     ..   (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;

     {Emphasis supplied}

     It is submitted that language of this section and that of  Section 10 (2)(ii) (b) are similar.  Both expresses that tenant  must  not use the property for a purpose other  than that  for which it was leased.  He also emphasised that  the accompanying  words used in the aforesaid quoted portion  of

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the  rent-deed,  namely, that shall be used by  the  tenant only  .and  for non- residential purposes,  confirms  the interpretation   that   the  shop  is   to   be   used   for non-residential  purposes  in other words only for  business thus  any  change of business would have no consequence  and thus  would  not  defeat  the  tenants  right.   For  ready reference  Section 10(2)(ii)(b) of the Tamil Nadu  Buildings (Lease and Rent Control) Act 1960 is also quoted below:-

     10.   Eviction  of tenants:  (1) A tenant  shall  not evicted whether in execution of a decree or otherwise except in  accordance  with  the  provisions  of  this  section  or sections 14 to 16:

     (2) 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 application, is satisfied

     (i)

     (ii)  that the tenant has after the 23rd October, 1945 without the written consent of the landlord

     (a).

     (b)  used  the building for a purpose other than  that for which it was leased, or . {Emphasis supplied}

     He  relied on, Gurdial Batra Vs.  Raj Kumar Jain, 1989 [3]  SCR 423.  This was a case where the premises (shop) was let  out  for  repairing business.  Later,  along  with  the repairing  business,  the  sale  of  T.V.   was  temporarily carried  on.  The Court held that this change of user  would not constitute to be a use for a purpose other than that for which  it  was  leased.   This  was  a  case  under  Section 13(2)(ii)(b)  of the East Punjab Urban Rent Restriction Act, 1949,  the  provision  of which is similar  to  the  present provision  to  which we are called upon to  interpret.   For this  conclusion, the Court relied on an earlier decision of this  Court in Mohan Lal Vs.  Jai Bhagwan ,1988 [2] SCC 474, to  which we shall refer hereunder and also observations  of Lord  Diplock J.  in Duport Steels Ltd.  Vs.  Sirs, 1980 [1] ALL ER 529, which is reproduced below:-

     While   respectfully   agreeing     with   the   said observations of Lord Diplock, that the Parliament Legislates to  remedy  and the judiciary interprets them, it has to  be borne  in  mind that the meaning of the expression  must  be found  in  the  felt  necessities  of  the  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 attracted the mischief of section 13(2)(ii)(b).

     It held:

     Letting  the premises can broadly be for  residential or commercial purpose.  The restriction which is statutorily

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provided in Section 13(2)(ii)(b) of the Act is obviously one to  protect the interests of the landlord and is intended to restrict  the use of landlords premises taken by the tenant under  lease.   It  is akin to the  provision  contained  in Section  108(o) of the Transfer of Property Act dealing with the  obligations  of a lessee.  A house let for  residential purpose would not be available for being used as a shop even without structural alteration.  The concept of injury to the premises  which  forms the foundation of clause (o)  is  the main  basis for providing clause (b) in Section 13(2)(ii) of the Act as a ground for the tenants eviction.

     We  find  in  Gurdial Batras case  (supra)  there  is absence  of  any words in the rent deed which  restricts  or limits  of  doing or not doing any business except  the  one stated  in  the rent deed.  Thus, on these facts  the  court held  that the letting could only be either for  residential or  commercial  purpose.   This   distinguished  feature  is revealed by what the Court also records:

     The  landlord  has accepted the position that in  the rent  note it was not written that the respondent would  not do  any business in the shop in dispute except the cycle  or rickshaw  repairs.  On these facts it has now to be  decided as to whether the premises has been used for a purpose other than that for which it had been leased.

     {Emphasis supplied}

     The  next  reliance was placed on Mohan Lal  Vs.   Jai Bhagwan,  1988  [3]  SCR 345.  As per clause 4 of  the  rent note,  the tenant was to run the business of English Liquor Vend,  and  do  sale of liquor in the shop.   The  landlord filed  the eviction suit on the change of user by the tenant from  liquor  business to that of general  merchandise.   In this case the Court held:

     While   respectfully   agreeing     with   the   said observations of Lord Diplock, that the Parliament Legislates to  remedy  and the judiciary interprets them, it has to  be borne  in  mind that the meaning of the expression  must  be found  in  the  felt  necessities  of  the  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 attracted  the mischief of section 13(2)(ii)(b) of the  Act. The High Court, therefore, was in error.

     This  Court held, in expanding concept of departmental stores  the  other business would only be  allied  business. But again we find this case is again as in the Gurdial Batra (supra),  there  were no restrictive words.   However,  this case also significantly records the following:-

     According  to  the appellant the purpose of the  user still remains commercial and that in the rent note there was no  clause  prohibiting  the appellant to change  any  other business in the shop in dispute.

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     {Emphasis supplied}

     Next   reliance   is  on   State  of   Karnataka   Vs. Ayyanahalli  Bakappa and Sons, 1988 [3] SCC 587.  This is  a case  where  initially shop was given for running a  grocery shop  but later it was changed to running a book shop.  This decision neither records facts nor any reason.

     Next  reliance  is  on Mehta  General  and  Provisions Stores  and Ors.  Vs.  Prem Wati (Smt.) (Dead) Through LRs., 1995  Supp  [1] SCC 319.  Here the change was  from  general provision  store  to the textile.  Again here  also  neither reasons  nor facts are recorded.  In the aforesaid last  two cases  it  cannot be said whether there was any  prohibition clause in the rent deed of the use of the building.

     On  the other hand, learned counsel for the respondent relied  on Ram Gopal Vs.  Jai Narain and Ors., 1995 Supp [4] SCC  648.   This  is  a case where the shop  was  given  for business  but later tenant installed an Atta Chakki and  Oil Kohlu.   This  case  could  not  be   of  any  help  to  the respondents  as here the change was, as held, from  business to  manufacture.   Having  heard learned  counsels  for  the parties  in our considered view the case cited on behalf  of the  appellants  were all those where there was no  specific clause  restricting  the use of the tenanted  accommodation. On  the  other hand, in the case in hand, there is  specific prohibition  clause  in the rent deed.  In the present  case there  is specific clause which states shall be used by the tenant  only for carrying on his own businessand the tenant shall  not  carry on any other business than the above  said business.  By the use of the words only with reference to the tenant doing business coupled with the last three lines, namely,  the  tenant shall not carry on any other  business than the above said business, clearly spells out the intend of  the  parties  which restricts the user of  the  tenanted premises,  only for the business which is stated therein and no  other.   In order to meet this, learned counsel for  the appellant  referred  to  section 108(o) of the  Transfer  of Property  Act and language of Section 10(2)(ii)(b) which are similar hence he submits interpretation has to be given in a broader  perspective,  that  is the use of building  by  the tenant  should not be such as to damage it or diminishes its value  and restriction if any could be that if it was  given for  business it should not be used for residential  purpose and  vice versa.  We have no hesitation to reject this.   If such  an interpretation is given, it would make any specific term  of  a valid agreement redundant.  Once  parties  enter into  a  contract then every word stated therein has  to  be given  its  due  meaning  which   reveals  the  rights   and obligations  between the parties.  No part of the  agreement or  words used therein could be said to be redundant.   Such restriction  could  only be if any statute or provisions  of the  Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 specifies,  which  is none.  Nor we find any restriction  by Section  108  of  the Transfer of Property  Act.   In  fact, Section  108 of the Transfer of Property Act starts with the words  in  the absence of a contract or local usage to  the contrary.   In  other  words, it permits  contract  to  the contrary mentioned under that Section.

     So, we come to the conclusion that use of the words in the  rent-deed not to use it for any other purpose, it has

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to  be given effect to and hence Section 10(2)(ii)(b) has to be interpreted to mean that use of building shall not be for a  purpose  other  than that for which the shop  was  given. There is specific clause restricting its user thus it has to be used for the purpose given and no other.

     The  last  submission  by   learned  counsel  for  the appellant  is  unless there is specific finding that  tenant has used substantial portion of the building it could not be said  that  there  is  change  of user  in  view  of  M.K.P. Chettiar  Vs.  A.P.  Pillay 1970 (2) SCC 290 (Supra), and it is  for  this  the  case was remanded, and  the  finding  of substantial  portion  having  used  is  not  sustainable  as details  of  that not recorded hence eviction decree is  not sustainable.   On  the other hand, learned counsel  for  the respondents  relied on the statement made by the appellants father  (Mr.  T.S.  Arulrayar) who was the original  lessee, which  reveals that substantial portion of the shop was used for  the  changed  business.  The said statement  is  quoted hereunder:

     I am running the radio shop in area measuring East to West  9 feet and North to South 9 and ½ feet.  The provision store is being run in area measuring East to West 7 feet and North to South 9 and ½ feet.

     The  submission  is,  this  itself  shows  substantial portion  of  the shop is being used for other business.   In view of this statement and the finding recorded by authority below  that substantial portion of the shop is being used by the tenant for the changed business we do not feel it proper to interfere with it.

     However,  we  find in Bishamber Dass Kohli  (Dead)  By Lrs.   Vs.  Satya Bhalla (Smt.), 1993 [1] SCC 566 where this question  was raised that change of business was not in  the substantial part of the building.  The Court held:

     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 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  schedule  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   the  building  is   of significance,  a  distinction is made in the Act  between  a residential  building which is not a scheduled building  and that which is a scheduled building.  This is so in Section 4

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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. {Emphasis supplied}

     This  is  a decision by three Honble Judges  of  this Court.   This  completely dissolves the submission  for  the appellant.   Learned  counsel for the appellant attempts  to distinguish this decision that this was a case under Section 2(h)  of  the East Punjab Urban Rent Restriction Act,  1949. It defines scheduled building as one being used partly for business  and partly for residence.  So even if part is used for  residence it continues to be scheduled building.   This distinction  would  not distract the law laid  down  therein which is evid ent from the last line of the aforesaid quoted lines  which holds, Same is the position with regard to the ground of eviction contained in Section 10(2)(ii)(b) wherein change  in  user  of the building is alone  significant  for constituting the ground.  In view of what we have concluded and  the  said  decision which squarely apply,  we  have  no hesitation  to  hold that courts below have rightly  decreed the suit for eviction as against the appellant and change of user of the business by the appellants from radios, cycles, fans,  clocks and steel furniture to grocery business is  in contradiction  to the specific term of the agreement.   Thus such tenant would be covered by Section 10(2)(ii)(b).  Hence the  appellant is liable for eviction which the courts below have  rightly decreed.  This appeal accordingly fails and is dismissed.  Costs on the parties.