CR No. 6479 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 6479 of 2009 (O&M) Date of Decision: 22.09.2010 R.A. Mantri and another ....Petitioners Versus Smt. Krishna and others ....Respondents. Coram:- Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. I.K. Mehta, Sr. Advocate with Mr. M.S. Kohli, Advocate for the petitioners. Mr. B. Shekhar, Advocate for respondents No.2 to 4. Mr. RVS Chugh, Advocate for Mr. Manoj Makkar, Advocate for respondent No.6. ... Alok Singh, J. Tenants have invoked revisional jurisdiction of this Court under Section 15(6) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as the Act), challenging the judgement dated 4.9.2009 passed by the appellate authority, whereby the appellate authority has allowed the eviction petition filed by the landlord directing eviction of the tenants - revisionists herein. Brief facts of the present case are that landlord - respondent CR No. 6479 of 2009 2 herein filed an eviction petition under Section 13 of the Act saying that the portion of the demised premises was rented out to the tenants by the landlord vide registered lease deed dated 11.6.1985 initially for a period of five years for non-residential purposes without obtaining permission of the Rent Controller under Section 11 of the Act; landlord requires the demised promises for his personal use and occupation; landlord and his family members including married sons were to live in their own residential house comfortably. Tenants - revisionists have contested the eviction petition contending that since demised premises was let out for non-residential purposes, hence it cannot be got vacated for residential purposes. The alleged need of the landlord was also denied. The Rent Controller vide order dated 27.10.2008 dismissed the eviction petition having held that demised premises was admittedly let out for non-residential purposes with clear stipulation in the lease deed that it shall be used for commercial and business purposes, hence a non-residential building cannot be got vacated for residential purposes. In an appeal filed by the landlord, the Appellate Court did not agree with the view taken by the Rent Controller and has observed that since initially the property in dispute was residential building, hence without taking permission under Section 11 of the Act, if it was let out for non-residential purposes, it will not change the character of the building and it will remain residential building and need of the landlord to use the building in question for residential purposes for himself and his married sons, is genuine and bonafide. Ultimately, appeal was allowed vide impugned judgement dated 4.9.2009. Feeling aggrieved from the CR No. 6479 of 2009 3 judgement of the Appellate Court, petitioners have invoked revisional jurisdiction of this Court. I have heard learned counsel for the parties and perused the record. Paragraph 2 of the eviction petition reads as under: - “That the portion of the above said house was rented out to the respondents by the petitioners vide registered lease deed dated 11.6.1985 for a period of 5 years for non-residential purposes without obtaining permission of the Rent Controller under Section 11 of the Haryana Rent Act. The tenancy of the above said premises was from month to month starting on the 11th day of each calendar month and ending on the 10th day of the next month.” Paragraph 6 of the registered lease deed stipulates that second party has taken the property on rent for business purposes. Second party can do any business/commercial activity according to their own wish. From the contents of paragraph 2 of the eviction petition and paragraph 6 of the registered lease deed, I have no hesitation to hold that the demised premises was let out for non-residential purposes and the tenants were given free hand to do any business or work therein as per their own convenience. The following three questions arise for consideration before this Court : - 1. As to whether if any residential building is let out for non- residential purpose, would it still remain residential building or the nature of the building will change as non-residential CR No. 6479 of 2009 4 building ? 2. As to whether permission of the Rent Controller under Section 11 of the Act is required to convert the residential building into non-residential building even if zone in which the building situates, is never declared as residential zone ? 3. If this Court finds that the building in question is a non- residential building, can it be got vacated for residential purposes ? Questions No.1 and 2 are inter-linked and can be taken up together. Undisputedly, property in question is situated in the city of Faridabad. Undisputedly, the area where building is situated, has never been declared as residential zone. The Apex Court in the matter of Dev Brat Sharma Vs. Dr. Jagjit Mehta, 1990(2) All India Rent Control Journal, 431, in paragraphs 3 and 4 has observed as under:- “3. On 28.11.1988 while special leave was granted, the matter was ordered to be placed before a 3 Judge Bench. In view of the submissions advanced at the earlier hearing, this Court directed the Rent Controller to make a report after hearing parties as to whether any sanctioned scheme was operative within Jalandhar City as envisaged by law to make the ratio of several decisions with reference to Chandigarh applicable to the present case. The Controller has reported that no such scheme exists. 4. The main thrust of the appellant's counsel's contention has been that the house is residential and the user could not be CR No. 6479 of 2009 5 changed and the tenant could not have put up a clinic in a part of the house. We find that there has been no change of user in this case inasmuch as the tenancy was created for the purpose of locating the clinic and this distinctive feature takes the case out of the ratio emerging from some of the precedents of this Court on which reliance was placed.” In view of the dictum of the Apex Court in the matter of Dev Brat Sharma (supra), I find that if the residential building is let out for non- residential purpose, it would be a non-residential building as the permission under Section 11 of the Act shall be required only when the area in which the building is situated, falls within the residential zone. Now, the question comes as to whether non-residential building can be got vacated for the residential purposes ? This Court in the matter of_Dinesh Kumar Vs. Ram Singh and others, reported in 2006 (1) PLR 645, in paragraph 8 has held as under: - “8. Since it has been found that the building let out was not a residential building, therefore, the landlord is entitled to seek eviction on the ground of bona fide use and occupation. In the petition, the landlord has pleaded that the climate in Ludhiana is not suitable but in evidence he has deposed that he wants to shift on account of bad conditions in Punjab. The reference to bad conditions in Punjab is to the days of terrorism with which the State of Punjab was gripped at the time of filing of the petition when he appeared as a witness in the year 1984. Therefore, there is contradiction in the pleadings and evidence and, thus, the landlord has failed to prove his bona fide CR No. 6479 of 2009 6 requirements. Still further, it has been found that the building let out is a non-residential building. But the landlord intends to use it for residential purposes. It has been held by this Court in Parmeshwari Devi v. Krishan Chancier 3 2003 Haryana Rent Reporter 197, and Slate Bank of Paliala v. S. Zulzuauar Singh Virk and Ors. (2003-2)134 Punjab Law Reporter 112, that a non-residential building can be got vacated by the landlord only for non-residential purposes. The said judgments are based on Supreme Court judgment in Attar Singh v. Inder Kumar (1967)69 Punjab Law Reporter 83. The said judgment considered pari materia provisions of Section 13(3)(a)(ii) of the East Punjab Urban Rent Restriction Act, 1949. Therefore, the ground of bona fide requirement of a non-residential building for residential purposes is not available to the landlord.” From the dictum of this Court in the matter of Dinesh Kumar (supra), I find that non-residential building can be got vacated by the landlord only for non-residential purposes. However, a non-residential building cannot be got vacated for residential purposes. In view of the above, impugned judgement cannot be sustained. Petition is allowed. Impugned judgement is quashed and that of the Rent controller is restored. Eviction petition stands dismissed. ( Alok Singh ) Judge 22.09.2010 sk.