IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court's order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b)) Description of case Civil Misc. Suit No. 3194 of 2001, decided on 17/9/2003 Basant Kumar Sharma (since deceased)------ Petitioners Ravinder Kumar Sharma and others Vs. Rent Control & Eviction Officer, Dehradun----Respondents and another. A.F.R. (Approved for reporting) Not approved for reporting Date 17/9/03 Initials of Judge Note- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL AT NAINITAL Civil Misc. Writ Petition No. 3194 of 2001 (Old No. 15766/1987) Civil Side Basant Kumar Sharma (since deceased) 1. Ravinder Kumar Sharma 2. Yogendra Kumar Sharma 3. Smt. Vineeta Sharma 4. Ms. Savita Sharma …… Petitioners Versus 1. The Rent Control & Eviction Officer, Dehradun 2. Shri Dham Singh, Sub Inspector of Police C/o Kotwali, Dehradun ……… Respondents Sri V. K. Kohli, Advocate for the petitioners Sri Alok Singh, Advocate & Standing counsel for the respondents Hon'ble Rajesh Tandon J: By the present writ petition Sri Basant Kumar Sharma father of the petitioner No.1 to 3 and husband of petitioner no.4 has challenged the order dated 11.8.1987 passed by the Rent Control and Eviction Officer, Dehradun. During the pendency of writ petition, Sri Basant Kumar Sharma expired and now the petitioners have been substituted in his place. The brief facts giving rise to the present writ petition are that the property namely 11/171 Nari Shilp Mandir Marg, Dehradun is a double storey building. The ground floor consists of three shops. One shop is in occupation of the petitioners, another is in occupation of landlady and the third one is a Ayurvedic Shop. There are three rooms which are in occupation of the petitioners and they are interconnected. The building in dispute, therefore, alleged to be non-residential building. According to the petitioner late Sri Basant Kumar Sharma, the premises in dispute was occupied for business purpose and earlier it was used by their grand father for running an engineering workshop and later on the petitioner's grand mother continued the said business. The business was run by them in the name of Mahendra Engineering Co. and store part of rig in manufactured and supplied to the Oil and Natural Gas Commission. It was stated that during the lifetime of the mother of Sri Basant Kumar Sharma in 1964 the petitioner became a partner in 1964. In 1983 the mother of Basant Kumar Sharma died and as such the premises is in continuous occupation for business purposes. In paragraph 4 of the writ petition it was stated that earlier an application under section 21 (1) of U.P. Act No. XIII of 1972 was filed against the mother of late Sri Basant Kumar Sharma. The application was allowed on 30.3.1977 by the Prescribed Authority but in appeal on 1.11.1977 the order was set aside. Against that a Writ No.1497 of 1978 was filed but the same was dismissed on 11.12.1979. Aggrieved by the same S.L.P. No.4420 of 1980 was filed by the landlady Dr. Pritam Kaur before the Hon'ble Supreme Court and the same is pending. It was stated that since the predecessor of the petitioner was in occupation of the premises is in the nature of non- residential premises and as such vacancy proceedings are wholly illegal and has been declared without complying the provisions of Rule 8 of U.P. Act No. 13 of 1972. The Rent Control and Eviction Officer vide his order-dated 11.8.87 has declared the premises as vacant. The present writ petition has been filed against the order declaring vacancy. Heard the learned counsel for the petitioner as well as for the respondent at great length. A bare perusal of the application for allotment shows that the proceedings for vacancy were started on the application filed by Dharam Singh for allotment of premises on 7.7.1985. On the said application Rent Control Inspector was directed to report. The Inspector has inspected the premises subsequently 23.10.1986. The report of the Inspector is quoted below: fujh{k.k ds le; nqdku [kqyh ikbZ x;hA nqdku ds ihNs dh vksj lHkwry ij pkj dejs] fdpu tSlk dejk] ftlesa ikuh fo[kjk iMk Fkk dkbZ the Fkh ckFk:e ,oa dPPkh ySV`hu ,oa ,d dPpk dejk ftlesa ckoyj vkfn j[ks FksA iz'uxr dejksa esa fctyh ds lkeku j[kus dk LVksj cuk;k gqvk gSA fiNys cjkens esa odZlki [kqyk ik;k x;k ftlesa ia[ks vkfn ejEer gsrq [kqys ik;s x;sA igys bl Hkou esa izHkkorh ,oa Jh clUr yky dk dCtk Fkk rhu lky iwoZ Jherh izHkkorh dk fu/ku gks pqdk gS rc ls Jh clUr yky eS0 egsUnzk bUthfu;fjax d0 11 pdjkrk jksM ds uke ls bl nqdku esa O;kikj dj jgs gSa vkSj orZeku esa Hkou dk dCtk mUgh ds ikl gSA As will appear from the report that business of Mahendra Engineering Co. was being carried on in the premises in dispute. The vacancy was sought to be declared on the ground that Sri Basant Kumar Sharma (deceased) has constructed a house at 19/3 Rajpur Road, Dehradun. The occupant has filed objections and has stated that no notice as required under Rule 8 (2) of U.P. Act 13 of 1972 was given to the petitioner as required by the aforesaid rule. It was stated in his objections that since 1933, father of the petitioner (father of the deceased Basant Kumar Sharma) was doing business in the name of Mahendra Engineering Co. and for that purpose accommodation was taken on rent. The business of Engineering workshop was being run in the premises under tenancy. It was further stated that there is no separate portion is being used as residential and there is single tenancy in their possession for non residential purposes. The back portion of the premises is being used for preparation of tea etc. as in the workshop he used to work up to 12 at night due to disturbance in electricity. The work of the petitioners is for fabrication of rig for Govt. supply. It has come on the record that earlier proceedings under section 21 (1)(a) of U.P. Act No. 13 of 1972 there has been clear stand of the previous landlady that the accommodation in question is non-residential. According to the applicant the premises at 19/1 Rajpur Road has been constructed for residential purposes.Along with the objections the affidavit was also also filed and it was stated that the premises was taken on rent for the purpose of business. Paragraph 8 of his petition is quoted below: ;g fd fookfnr lEifr la0 11 jkeiqj e.Mh jksM u;k uEcj 171 ukjh f'kYi efUnj ekxZ nsgjknwu dk ,d Hkkx gS ftldk fooj.k 'kiFkdrkZ us viuh vkifRr fnukad 3-7-86 esa fn;k gS fookfnr lEifr lu 1933 esa vkifRrdrkZ ds firk Jh Qrsg pUnz us O;olkf;d ,oa vkoklh; mnns'; ds fy;s fdjk;s ij fy;k Fkk ftlesa O;olkf;d mns'; eq[; MkfeusUn ijit fotful FkkA lu~ 1933 ls gh mDr lEifr esa 'kiFkdrkZ ds firk viuh bUthfu;fjax odZ'kki pykrs jgs o mlh esa jgrs jgsA Along with the affidavit the predecessor of the petitioner has also filed the copy of S.L.P. and there has been an admission on the part of the previous landlady that the building is a non- residential. Relevant paragraphs are quoted below: 68. "That the High Court erred in coming to the conclusion that clause (ii) to the third proviso of section 21 of the Act bar's the application of the petitioner landlord. The building in which the disputed premises are situated is occupied mainly for business purposes and 5/7th of it is being used for business purposes only. It may now be pertinent to mention here what said in clause (II) to the third proviso to section 21 of the Act. 69. In the present case there cannot be any conflict of petitioner requiring residential building for business purpose. Because the nature of the accommodation in occupation of the tenant cannot mean residential building as the building in which the premises situated is mainly occupied for business purposes so there does not appear to be any element of changing the nature of the accommodation as envisaged by the legislature in clause (ii) of the third Proviso to section 21 of the Act. 71. That the High Court also failed to appreciate that the shop which was in occupation of the tenant was the dominant purpose for which the tenant had been occupying the premises in dispute. The back portion of the shop even if it was used for living purpose cannot be termed as "residential building" and the shop be only termed as business premises. What the High Court failed to notice was that the whole of the premises in occupation of the tenant was for the purposes of business. Therefore, the present case is not covered by clause (ii) of the third proviso to section 21 of the Act." On behalf of the petitioners there was an affidavit of Sri Om Prakash Agrawal who has stated that the premises is being used for business of Mehendra Engineering Co. I have also perused the Income Tax assessment of Mehendra Engineer Company relating to 1966 to 1987 as well as other documents relating to Mahendra Engineering Co. photographs were also filed for running Engineering Workshop in the premises in dispute. There is a counter affidavit or Sri Manoj Poddar on the record, it has stated that the premises was let out for residential as well as non-residential purposes. No documentary evidence was annexed along with the counter affidavit in order to prove that the nature of the user is residential. The findings of the Rent Control and Eviction Officer, therefore is based on no material on record when he has come to the conclusion that the premises no. 11/171, Nari Shilp Road, is vacant. During the pendency of the writ petition an application was filed on behalf of Manoj Podar where he has stated that he has purchased property on 26.3.99 by way of sale deed executed by legal heirs of Dr. Preetam Kaur. The application was allowed vide order dated 29.3.2000. The aforesaid application was filed on 5th May 1999. In the mean time Basant Kumar Sharma had also expired on 9.1.2003 leaving behind his sons Ravinder Kumar Sharma, Yogendra Kumar Sharma, Smt. Vineeta Sharma and Savita Sharma. The sole question which has to be decided in the present writ petition is as to whether premises in question is being used by the petitioners for residential purpose or for non-residential purpose so as to attract sub section (3) of Section 12 of the Act. From the facts on record it is established that on inspection at the initial stage the premises was found locked by the Rent Control Inspector, therefore, it was not possible to ascertain the true nature of the premises. It was the duty of the Rent Control and Eviction Officer to have informed the occupant or sitting tenant as contemplated under Rule 8(2). Rule 8(2) is quoted below: "The inspection of the building, so far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such pasting, and if in the meantime any objection is received, no before the disposal of such objection." However, subsequently the premises was inspected on 23.10.1986 and the Rent Control Inspector bound as under: igys bl Hkou esa izHkkorh ,oa Jh clUr yky dk dCtk Fkk rhu lky iwoZ Jherh izHkkorh dk fu/ku gks pqdk gS rc ls Jh clUr yky eS0 egsUnzk bUthfu;fjax d0 11 pdjkrk jksM ds uke ls bl nqdku esa O;kikj dj jgsa gS vkSj orZeku esa Hkou dk dCtk mUgh ds ikl gS Section 12 of U.P. Act No. XIII of 1972 provides the deeming clause in respect of the following conditions: (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. Sub Section (3) contains a proviso for acquiring a residential accommodation in the case of a residential building occupied by the tenant. The same is quoted below: In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy: Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Sub clause (4) deals with the deeming provisions as under: Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or Sub-section (2), Sub section (3), sub Section (3-A) or sub section (3-B) shall, for the purpose of this Chapter, be deemed to be vacant. Admittedly in the present case sub clause (3) of Section 12 will not apply, as according to the landlord it was a building where the petitioner is carrying on the business in the name of Mahendra Engineer Co. from the time of his father and as such section 12 (3) has no application in the present case and vacancy has been illegally declared. However, Rule 2 of U.P. Act 13 of 1972 defines the business as under: (b) "business" means any profession, trade or calling. In the counter affidavit filed before this High Court it was admitted as under: "That the contents of paragraph no.3 of the writ petition are misleading. Although the petitioner was residing in the house but he was using the same for non residential purposes also but it will not change the nature of case." The Rent Control and Eviction Officer has observed that the Rent receipts on the record right from 11.6.49 has been issued in the name of Mahendra Engineering Co. The assertions are quoted below: fdjk;s dh jlhnsa fnukad 11-6-49 ls fnukad 27-1-64 rd 16 jlhnsa nkf[ky dh gSa rFkk bl fcUnq dks mBk;k gS fd fdjk;snkjh dk mnns'; cuokyh gS fde fdjk;s dh jlhnsa esa egsUnzk bathfu;fjax d0 ds uke ls tkjh gSA The word business has also been defined in the Law Lexicon as under: The expression business was to be equated not with the commercial activity but with the production activity carried on and the production until situated there. The word business has been defined in the case of Dr. Bashir Uddin vs. District Judge, Bulandshahar and others, AIR 1978 SC 978 as under. "The word business has not been defined in the Act and is not a word of art. It is a capable of being construed in a comprehensive as weel as a restricted sense, depending on the context in which it occurs. According to the Webster's New Twentieth Century Dictionary, 'business' mean employment; occupation; profession; calling vocation; means of livelihood that which occupies the time, attention and labour of men, for the purpose of profit or improvement. According to the same Dictionary, the worked 'may also, mean commerce or trade in general'. In Coirpus Juris Secondum Volume 12 page 762, the word ';business' in its broader sense is defnined as follows: In its broad, its broader, or in its broadest, sense, in its more general or common use, in its primary meaning, or when used colloquially, the word 'business' carries with it a very broad meaning; and it has been said that it donotes not only all gainful occupations, but all occupation or duties in which men engage……. has common and general application to all sorts of enterprises which engage people's attention and energies; and includes nearly all the affairs in which either an individual or a corporation can be actors; and is a word in common use to describe every occupation in which men engage……….the word is commonly employed in connection with an occupation for livelihood or profit but it is no limited to such pursuits, for it has been said that the definition of 'business' by the lexicographers is sufficiently broad and comprehensive to embrace every employment or occupation……………." According to Aiyar's Law Lexican of Britisa India (1940 Edition) page 164, the word 'business' in its larger sense has been stated to mean 'an affair requiring attention and care; that which business and occupies one's time, attention, and labour as his chief concern'. In the same passage the word 'business' is mentioned as conveying in the narrower sense, 'mercantile pursuits; that which one does for a livelihood' occupation; employment; as, the business of a merchant; the business of agriculture'. It is a well established rule of interpretation that in order to find out the true import of enacted words one must look both at the words as well as the object of the legislation. Similarly, in re Williams Will Trusts Chartered Bank of India, Australia and China vs. Williams and others 1973 Rent Control Reporter 675, the Court was called upon to determine as to whether the word 'business' included the medical profession. It was held by Dancrwerts, J. that the meaning of the word 'business' seems to me to be plain; on the meaning attributed to it in the dictionaries and in the authorities, the word 'business' is capable of including the practice of a profession." From the application filed earlier by the previous landlord under Section 21 (1)(a) of the Act, earlier there was clear admission from the inspection, from the admission, from the counter affidavit and from the rent receipts it is evident that the premises was given for non-residential purpose and the dominant purpose was also non-residential. As will appear from sub section (3) of Section 12 of the Act, that it applied to a building let out for residential purpose. Therefore, it is well established that the provisions of statute has to complied with the manner in which the legislature has intended. It is well settled that if a statute provides a thing done in a particular manner, the procedure has to be followed according to the statute. The Apex Court in the case of Chandra Kishor Jha vs. Mahabir Prasad and others (1999) 8 SCC 266, observed as under: "It is well settled salutary principle that if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner (See with advantage: Nazir Ahmad vs. King Emperor, AIR 1936 PC 253 (II) Rao Shiv Bahadur Singh vs. State of U.P. (AIR 1954 PV 322; 1954 SCR 1098; State of U.P. vs. Singhara Singh (AIR 1964 SC 358 (1964) 1 SCWR 57). In the State of Uttar Pradesh vs. Singhara Singh and others report in AIR 1964 SC 358 (V 51 C 45), the Apex Court has relied upon the English case Law of Taylor vs. Taylor and has observed as under: "The rule adopted in Taylor vs. Taylor (1878) 1 Ch.D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed." The Hon'ble Supreme Court in the case of Dhanjaya Reddy vs. State of Karnataka (2001) 4 S.C.C. 9 took the same view that where law requires a thing to be done in a certain manner, it has to be done in that manner or not at all. The Court further observed that the power must be exercised in the manner provided by the statute. Considering from the point of view of dominant user and purpose of the tenancy it is necessary to consider the scope of dominant purpose in the context of the present case. In AIR 1968 SC 438, Miss S. Snayal vs. Gian Chand, the Apex Court has considered the provisions of section 13 (a)(e) of the Delhi and Ajmer Rent Control Act. Section 13(1)(e) is similar to sub clause (3) of section 12. The Apex Court has observed as under: "If in respect of premises originally let for residential purposes a decree in ejectment cannot be passed on the grounds mentioned in Section 13(1) (e), if subsequent to the letting, with the consent of the landlord the premises are used both for residential and non-residential purposes, the bar against the jurisdiction of the court would be more effective when the original letting was for purposes-non-residential as well as residential. It may be recalled that the condition of the applicability of Section 13 (1) (e) of the Act is letting of the premises for residential purposes. In this case the letting not being solely for residential purposes, in our judgment, the Court had no jurisdiction to pass the order appealed from." The dominant purpose, therefore, being non-residential deeming clause, therefore, as contained under section 12 (3) as well as sub section (4) will not apply in the present case. Similar view has been taken in the case of Smt. Kanti Khare (supra) to the following effect: "Section 12 (3) could apply only to a case of residential and not non-residential." In the case of Smt. Kanti Khare vs. III Addl. District Judge, 1982 A.R.C. 594, the Division Bench of Allahabad High Court has held as under: "If the premises to which Section 12(3) is sought to be applied is dominantly used for non-residential purpose, it is unreasonable to hold that the tenant has ceased to occupy the same." In Nilesh Nandkumar Shah vs. Sikandar Aziz Patel AIR 2002 SC 3073, their Lordships of Hon'ble Supreme Court has held that it is not permissible for the Court to split up a contract of tenancy in an eviction proceedings. It was further held that the purpose of rent control legislation is to protect the tenants from unjust evictions at the hands of greedy or unscrupulous landlords. Their Lordships have also held that even one portion enjoys protection of the Act, the tenant cannot be evicted from other part of the premises if part of the premises protected by the Act as the contract of tenancy is one single indivisible. In the case Shabir Ahmad vs. Sham Lal and another, AIR 2002 SC 1036, the matter came up for consideration where shop cum flat was let out and the question was for consideration as to whether residential or non-residential building. The observations are quoted below: "The said expression is not defined in the Act. It is not a technical expression and not a term of art; so it has to be understood in its popular sense, that is, as commonly understood. In that sense it is capable of being understood both as a 'residential' as well as a 'non-residential building. Therefore, the expression shop-cum flat does not always mean that the ground floor of the building is meant for shops and the first and the higher floors are residential accommodation in the building. The correct approach would be to refer to the context in which the expression appears and then construe it.' The Apex Court further held as under: The controversy