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. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 11, 2008. JULY 11, 2008. JULY 11, 2008. JUDGMENT : JUDGMENT : 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 : 2 : 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 : 3 : 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 : 4 : 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 : 5 : 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 C.Colaco vs. Urban D’Silva reported in AIR C.Colaco vs. Urban D’Silva reported in AIR 1970 Mysore 297; Jugraj Jain v. T.R.Ambikapathi 1970 Mysore 297; Jugraj Jain v. T.R.Ambikapathi 1970 Mysore 297; Jugraj Jain v. T.R.Ambikapathi Pillai reported in 1959 Vol.II Mad.L.J.Reports 240; Pillai reported in 1959 Vol.II Mad.L.J.Reports 240; Pillai reported in 1959 Vol.II Mad.L.J.Reports 240; Harmohan Das Bagai vs. T.P.Gupta reported in 1984 Harmohan Das Bagai vs. T.P.Gupta reported in 1984 Harmohan Das Bagai vs. T.P.Gupta reported in 1984 RLR 625; and Sant Ram vs. Rajinder Lal & Ors. RLR 625; and Sant Ram vs. Rajinder Lal & Ors. RLR 625; and Sant Ram vs. Rajinder Lal & Ors. reported in AIR 1978 SC 1601 reported in AIR 1978 SC 1601 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 : 6 : 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 any premises 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: : 7 : "108. Rights and liabilities of lessor "108. Rights and liabilities of lessor "108. Rights and liabilities of lessor and lessee.- and lessee.- 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: : 8 : (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 : 9 : 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: : 10 : (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 of the 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 : 11 : 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? : 12 : 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 Vickery v. Martin reported in (1944) 2 All Vickery v. Martin reported in (1944) 2 All ER 167, ER 167, ER 167, which in turn refers to the observations made in the case of Hicks v. Snook reported in Hicks v. Snook reported in Hicks v. Snook reported in (1928) 93 JP 55 (1928) 93 JP 55 (1928) 93 JP 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 : 13 : 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 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 Harmohan Das Bagai Harmohan Das Bagai (supra) (supra) (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 : 14 : 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 : 15 : 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 and 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 : 16 : 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. Bansilal Rampratap Rathi vs. Bansilal Rampratap Rathi vs. Suratsing Chandanmal & Ors. reported in 1982 Suratsing Chandanmal & Ors. reported in 1982 Suratsing Chandanmal & Ors. reported in 1982 : 17 : Mh.L.J. 628 Mh.L.J. 628 Mh.L.J. 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 : 18 : 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 : 19 : 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 Kasturchand Panachand Doshi & Ors. vs.Yeshwant Kasturchand Panachand Doshi & Ors. vs.Yeshwant Vinayak Sainkar & Anr. reported in 1980 Bom.C.R. Vinayak Sainkar & Anr. reported in 1980 Bom.C.R. Vinayak Sainkar & Anr. reported in 1980 Bom.C.R. 424. 424.