CR No.1510 of 2011 (O&M) ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.1510 of 2011 (O&M) Date of decision:20.04.2011. S. Narinder Singh and another …Petitioners. V. Manohar Singh and others …Respondents. CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. B.R.Mahajan, Advocate, for the petitioners. Mr. Sunil Chadha, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. The tenants are in revision against the orders of the learned Courts below by which they have been ordered to vacate the shop forming part of old building No.4642/37 (new No.9489/37), situated at Abadi Sarwarpura, Sultanwind Road, Amritsar which is in their possession @ Rs.500/- per month and is being used for paint business. The landlord sought eviction of the tenants, inter alia, on the grounds of non-payment of rent w.e.f. 01.01.2001 till date and use and occupation of his son Barinder Singh who intended to start business of grocery. While contesting the eviction petition, the tenants paid arrears of rent on the first date of hearing and as such, the ground of non-payment of rent was over and the personal need of the landlord was denied. On the pleadings of the parties issues were framed to which both the parties led their oral as well as documentary evidence. The learned Courts below 1 CR No.1510 of 2011 (O&M) ****** passed the eviction order while deciding the only issue of personal necessity. The tenants had argued that the necessity of the landlord is no more in existence as his son Barinder Singh had already shifted to United States of America where he has been married and settled. The learned Appellate Authority did not accept this contention as it was found to be beyond pleadings. Thus, the only question raised in this revision petition by learned counsel for the petitioners/tenants is that the demised premises (shop/shed) being part of the residential house, is a residential building which cannot be got vacated for the non-residential purposes. In this regard, learned counsel for the petitioners has relied upon the following judgments: - i) Harjit Singh V. M/s Daya Ram Sat Narain, 2003(1) P.L.R. 579; ii) Bachan Lal V. Yogeshwar Lal Mehta, 2006(3) P.L.R. 865; iii) Raj Kumar Gambir V. Kanwar Sain Jain, 2003(2)) P.L.R. 356; & iv) Pritpal Singh V. Devinder Kumar & another, 2008(3) P.L.R. 342; On the other hand, learned counsel for the respondent/landlord has relied upon the following judgments: - i) Lal Chand V. Bal Kishan, 1987(2) P.L.R. 222; ii) Dr. Jagjit Mehta V. Dev Brat Sharma, 1988(1) P.L.R. 154; iii) Gurbax Singh V. Kuldeep Singh, 1990(1) P.L.R. 704; iv) K.G. Industries and others V. Joginder Singh, 1992 (2) P.L.R. 256; v) Raghbir Seth and another V. Ram Swarup, 1993(2) P.L.R. 487; vi) Ram Gopal V. Sher Singh, 1995(2) P.L.R. 445; 2 CR No.1510 of 2011 (O&M) ****** vii) Sudarshan Kumar Bhatia V. Dharam Pal Sharma, 2009(1) P.L.R. 600; viii) Anima Biswas V. Gurbachan Singh, 2010(4) R.C.R. (Civil) 688; ix) C.R. No.6132 of 2009 titled as `Arun Kumar V. Shri Ashok Kumar Chhabra’ decided on 29.07.2010; x) C.R. No.3406 of 1996 titled as `Dev Raj V. Ram Parkash’ decided on 24.09.2010; and xi) C.R. No.7915 of 2010 titled as `Sh. Satpal Chadha V. Satish Kumar and another’ decided on 22.02.2011. In this case, there is no dispute about the relationship of landlord and tenants between the parties. It is an admitted fact that the demised premises is a shop which was let out on 13.07.1988 and is being got vacated for business (non-residential purpose) and the only objection raised by learned counsel for the petitioners is that since the demised premises though a shop is a part of the residential building, therefore, it is also a residential building which cannot be got vacated for non-residential purposes. In order to appreciate the controversy, which has been raised by the tenants, it is relevant to refer to the definition of `building’ which is defined in the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”]. Section 2(a) defines “building”, Section 2(d) defines “non- residential building”, Section 2(g) defines “residential building” and Section 2(h) and Schedule I define “Scheduled building”. According to Section 2(a) of the Act, “building” means any building or part of a building let out for any purpose whether being actually used for that purpose or not, including any land, godowns, out houses or furniture let therewith, but does not include a room in a hotel, hostel, or boarding house. As per Section 2(d) of the Act, “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 deemed to convert a “non-residential building” to a “residential building”. Section 2(g) of the Act relates to 3 CR No.1510 of 2011 (O&M) ****** “residential building” which means any building which is not a non- residential building and Section 2(h) of the Act describes “Scheduled building” which 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 which covers Lawyers, Architects, Dentists, Engineers, Veterinary Surgeons and Medical Practitioners including Practitioners of indigenous systems of medicine. First of all, I will deal with the judgments which have been relied upon by learned counsel for the petitioners/tenants. The case of Harjit Singh (supra) was of a specified landlord. A specified landlord can only seek eviction from a residential building. In this background, it was held that where a building has been put to use for both purposes i.e. residential and non-residential, it would be treated as residential building and cannot be considered as non-residential building alone and for that purpose, Section 11 of the Act was used to say that no- one can convert a residential building in a non-residential building without the prior consent of the Rent Controller and admittedly, no permission of Rent Controller was taken in terms of Section 11 of the Act before converting the residential building into non-residential building. In the said case, eviction was sought by the landlord from the demised premises (shop) for the residential purposes. In that context, this Court had held that if the demised premises is being used for both, residential and non-residential purposes, then it cannot be treated as non-residential building alone in order to deprive of the benefit of residence therein to the specified landlord who cannot otherwise get his house back from the tenant for the purpose of his own residence after his retirement. The distinction in the present case and the said case is that the landlord in this case is seeking eviction of the tenant under Section 13 of the Act from the shop for non-residential purposes and not for the residential purpose and there is no zoning plan or sanctioned scheme in respect of the said demised premises to which Section 11 would be attracted especially when there is an admission by the tenants that earlier the demised premises was on rent with one Gurdial Singh who had appeared 4 CR No.1510 of 2011 (O&M) ****** as RW2, meaning thereby the demised premises is being used as a shop from the very beginning. Thus, this judgment is not at all applicable to the facts and circumstances of the present case. In the case of Bachan Lal (supra), the petition was filed under Section 13A of the Act and the tenant was in revision which was dismissed by this Court by holding that the landlord is entitled to evict tenant from shop, which is being used for commercial purposes forming part of the residential house holding it to be a residential premises. In the case of Raj Kumar Gambir (supra), it was held that if a small portion of the building is used for residential purposes, the dominant purpose being business or trade, the building will continue to be “non- residential building”. That case was under the Haryana Urban (Control of Rent and Eviction) Act, 1973 in which Section 2(d) defines the “non- residential building” as a building being used mainly for the purpose of business or trade or partly for the purpose of business or trade and partly for the purpose of residence. This Court had held that as per the definition of expression “non-residential building”, the dominant purpose, for which the building is being used, has to be kept in view and in that background it was observed that if the building is dominantly being used for business and trade, then it will continue to be a “non-residential building” and if it is to be converted from residential to non-residential, permission of the Rent Controller is required under the provisions of the said Act. In that case, the landlord was residing on the first floor and a room on the right side on the ground floor was let out for a small shop. The landlord claimed that he is 70 years of age and on account of fractured leg he finds it difficult to stay on the first floor and his wife, who due to old age has also developed heart problem, was unable to climb stairs. This Court, thus, held that the small room, which was converted into a shop having an opening towards the road side, would not change the nature of the building into a “non-residential building” especially when the permission of the Rent Controller under Section 11 of the Act has not been taken. To my mind, this judgment is also not applicable to the facts and circumstances of the present case for which I 5 CR No.1510 of 2011 (O&M) ****** will give detailed reasons while discussing the judgments referred to by learned counsel for the respondent/landlord. In the case of Pritpal Singh (supra), it was held by this Court that the landlord can seek eviction of a tenant from a shop for residential purposes as the building would remain residential. On the contrary, judgment relied upon by learned counsel for the respondent/landlord in the case of Lal Chand (supra), it was held by this Court that even though two shops form integral part of a residential premises, but these cannot be got vacated on a petition filed under Section 13A of the Act on the basis that they were the part of the residential building, therefore, it is a residential building. In this case, leave to defend was granted and was also held that it is not necessary to secure the written permission of the Rent Controller for letting the shops for business purpose. In the case of Dr. Jagjit Mehta (supra), a petition under Section 13A of the Act was filed with regard to a portion of the residential building converted into a shop on the ground that the landlord intends to practise as an advocate after his retirement in the let out portion, but it was held that specified landlord cannot seek eviction from the shop except for a residential building or scheduled building, meaning thereby the shop was found to be a separate portion from the residential building. In the case of Gurbax Singh (supra), again a petition under Section 13A was filed. There was a separate unit constructed for non- residential purposes which was not allowed to be claimed by the landlord for residential purpose as it was not considered to be a residential building. In the case of K.G. Industries and others (supra), it was held that if a room in the residential building was let out which opens in street which is predominantly commercial, it would not come within the definition of residential building and the landlord would not be entitled to evict the tenant for residential purpose. In the case of Raghbir Seth and another (supra), the petition was filed by the specified landlord in respect of ground floor which was let out for godown and used as such for 30/40 years, whereas 1st and 2nd floors 6 CR No.1510 of 2011 (O&M) ****** were used for residential purposes. It was held that the ground floor cannot be treated as residential building and the landlord was not entitled to eject tenant on the ground of bona fide requirement for residence and the requirement of sanction of Rent Controller under Section 11 of the Act to convert residential building into non-residential building was not accepted while relying upon the Division Bench judgments of this Court in the cases of Nahar Singh V. Surjit Singh, 1990 HRR 217 and Ram Sarup V. Barkat Singh, 1990(2) RCR 393 wherein it was held that if the building is constructed in a manner that the portion abutting the road could be rented out as shops and the remaining portion could be used as residence then the premises rented out as shops could not be treated as residential premises. In the case of Ram Gopal (supra), this Court had held that if a part of the premises is let out as a shop, then the landlord cannot eject tenant on the ground of personal requirement on the ground that it is a part of residential building though it is now settled that non-residential building can also be got vacated for the personal need as well. In the case of Sudarshan Kumar Bhatia, which pertains to Amritsar, this Court had relied upon the law laid down by this Court in Dr. Jagjit Mehta’s case (supra) which has been confirmed by the Supreme Court in the case of Dev Brat Sharma V. Dr. Jagjit Mehta, 1990(2) AIRCJ 431. In the said case, the Court had called for a report about the prohibition of zoning or schedule for use for non-residential purpose in a residential area and found from the report that there are particularly no zoning requirements in Amritsar and then it was observed that it is not possible to state that in a residential area, a tenant could not have been inducted for a non-residential use of a tenanted premises or vice versa. The Court further held that if the shop is disconnected from the rear part of the residential house, then it would come within the definition of non- residential building and observed that Section 13A could be attracted only if the building in the hands of a tenant is being used for residential purpose. If the property is let for non-residential purpose and such user is not 7 CR No.1510 of 2011 (O&M) ****** prohibited in terms of any zoning requirement, the application under Section 13A cannot be availed of by the specified landlord. In the case of Anima Biswas (supra), it was found that if there is no opening towards the building and opening of the shops is towards the main road, then it would, though a part of the residential building, would remain non-residential building and can be got vacated by the landlord for non-residential purposes. In the case of Arun Kumar (supra), it was held that if the demised premises is being used as a shop, then the tenant cannot question the status of the said building to be residential so as to deny landlord the benefit of the same as a shop after eviction. Meaning thereby, it was held that the demised premises is a shop which can be got vacated for the purpose of running a shop even though it is a part of the residential building. In the case of Dev Raj (supra), it was observed that a non- residential building can be got vacated for non-residential purpose only and not for residential purposes. In the case of Satpal Chadha (supra), similar opinion was formed by this Court. From the resume of the aforesaid judgments, which have been cited by the learned counsel for both the sides, I have found that there were cases where the petitions under Section 13A of the Act were filed where the retiree landlord had let out his building which was being used for both residential and non-residential purposes. Admittedly, there is no dispute that a specified landlord can only seek ejectment from a residential building or specified building which does not include a non-residential building. In this background, it was held by this Court that where there is a specified landlord seeking eviction of the tenant from the residential portion for the purpose of his own residence, if he does not occupy any other accommodation in the same urban area or had not vacated it after the commencement of the Act, the tenant cannot deny him his right on the ground that his building which is used for both residential and commercial 8 CR No.1510 of 2011 (O&M) ****** building is a non-residential building because otherwise a specified landlord, who for the purpose of augmenting his income had let out some portion of his building for the non-residential purpose which obviously fetches more rent then the residential building, can never get his residential building vacated for the purpose of his own settlement after his retirement, but the question involved is whether in a petition filed under Section 13 of the Act where a landlord is seeking eviction of the tenant occupying a non- residential portion of the residential building, then how the Court should decide that the building in occupation of the tenant as a shop forming part of the residential building is a non-residential premises or residential premises. In this regard, it is held that if some portion of a residential building, which is converted into a shop and is let out for non-residential purposes, is having no access from its backside or any side to the main residential building and has only one opening towards the main market, then it would essentially be a building used for a non-residential purpose in the residential building and would be a separate unit/building for the purpose of the landlord to seek eviction of the tenant for non-residential purpose and not for residential purpose. Secondly, if there is a zoning or a scheme or there is a prohibition for using a building for non-residential purpose in a residential area, then a part of the said building even if it is not used for any residential purposes, would remain residential building. Thirdly, if the building is essentially constructed pursuant to a plan sanctioned by a Competent Authority as a residential building and the shop carved out is not constructed on the basis of a sanctioned plan, then the very nature of the building would remain residential. In view of the aforesaid discussion, I do not find any merit in the present revision petition because in this case, the demised premises is in the market where there is no zoning as held by this Court in the case of Sudarshan Kumar Bhatia (supra) and there is no evidence that it is connected with the main residential building from any side and has been found to be continuously let out for non-residential purposes, therefore, the 9 CR No.1510 of 2011 (O&M) ****** landlord can seek eviction of the tenant by treating it to be a non-residential building for non-residential purposes. Hence, the revision petition is dismissed. In the facts and circumstances of the case, the parties are directed to bear their own costs. April 20, 2011. ( Rakesh Kumar Jain ) vinod* Judge 10