IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No.3948 of 2006 (O&M) Date of Decision : December 14, 2009 S.K.Sachdeva .....Petitioner through Mr.Avnish Mittal, Advocate. versus Mohinder Pathak .....Respondent through Mr.Arvind Singh, Advocate Civil Revision No.3972 of 2006 (O&M) Dewan Chand .....Petitioner through Mr.O.P.Goyal, Senior Advocate with Ms.Anjana, Advocate. versus Mohinder Pathak .....Respondent through Mr.Arvind Singh, Advocate. CORAM : HON'BLE MR.JUSTICE SURYA KANT. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- ORDER Surya Kant, J. This order shall dispose of Civil Revision Nos.3948 and 3972 of 2006 as both the revision petitions have been preferred by the tenants against the eviction orders dated 2.2.2005 passed against them by the Rent C.R. No.3948 of 2006 (O&M) 2 Controller, Ambala Cantt, which have been further upheld by the Appellate Authority, Ambala Cantt, vide its judgments dated 26.5.2006. The afore-stated eviction orders have been passed at the instance of the respondent-landlord on common grounds of eviction. [2] For brevity, the facts are being taken from Civil Revision No.3948 of 2006. [3] The respondent-landlord filed an eviction petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (in short `the Act’) seeking the petitioners’ ejectment from the demised premises comprising a part of the property No.1218, Bengali Mohalla, Ambala Cantt, inter-alia, on the grounds of: (i) non payment of rent; (ii) that the premises is required by the landlord for his personal use and occupation and (iii) the building has become unfit and unsafe for human habitation. The respondent’s case was that in a family settlement, the demised premises, namely, a residential house, has fallen to his share and a part whereof is under the tenancy of the petitioner on a monthly rent of Rs.100/-. The rented premises is part of a big building bearing No.1214 to 1219 in Bengali Mohalla, Ambala Cantt, and some of the portion of the main building has already fallen down while the remaining portion under the occupancy of the tenants too has become unfit and unsafe for human habitation. The building was alleged to be 70 years old and of third class category; the roof raising wooden planks have been eaten away by white ants and the walls have developed cracks. [4] The respondent further averred that the demised premises is C.R. No.3948 of 2006 (O&M) 3 required by him for his own use and occupation as after the retirement, he is presently residing in New Delhi as a licensee alongwith his son Himanshu. Now, he has decided to settle down at Ambala Cantt at his native place, after reconstructing the building as all his nears and dears are residing at Ambala Cantt. The respondent further averred that he has already filed one more ejectment petition against another tenant of the adjoining portion bearing No.1217 as he requires both the premises i.e. bearing Nos.1217 and 1218 with a view to reconstruct the same for residence. The respondent explained that he has strained relations with his daughter-in-law, i.e., wife of his son, and does not want to stay with her in New Delhi. The respondent also disclosed that there was no other residential or non-residential building in the urban area of Ambala-Cantt, occupied or vacated by him. [5] The petitioner-tenant contested the eviction petition and denied that the building was unfit and unsafe for human habitation. It was denied that the building was 70 years old or its roof has fallen down or the walls have developed cracks. As regards the personal necessity of the landlord, the petitioner-tenants averred that the building was a non- residential premises and could not be got vacated for being used as a residential house. [6] Both the parties led their respective evidence and on consideration thereof, the Rent Controller, Ambala Cantt, vide the impugned order dated 2.2.2005 held that though the respondent-landlord has failed to prove that the building has become unfit and unsafe for C.R. No.3948 of 2006 (O&M) 4 human habitation, however, he requires the demised premises for his own bonafide use and occupation. The eviction orders were accordingly passed against the petitioners. [7] The petitioners went in appeal. It appears from the judgments dated 26.5.2006, rendered by the Appellate Authority, Ambala Cantt, that with a view to dislodge the claim of bonafide personal necessity, the petitioner-tenants’ case was that the demised premises is a shop situated on the ground floor abutting the main road without any amenity like kitchen and both room and it cannot be treated as a residential building. The Appellate Authority turned down the said contention after relying upon the documents on record to suggest that the demised premises is a big residential building which has been partitioned into four residential units and since the front portion of the house abutting the main road, a part of which has been converted into three shops, has fallen to the share of the respondent-landlord alongwith two rooms, residential set on the rear side of the property as per the site plan (Ex.PX), the respondent is entitled to seek eviction of his tenants to reconstruct the premises for residential purpose. The Appellate Authority further held that the respondent-landlord has averred that he requires the demised premises for his “occupation” and since there exists no distinction between a “residential” or “non- residential” building for the purpose of seeking eviction on the ground of personal necessity in view of the judgment of the Hon’ble Supreme Court in Harbilas Rai Bansal versus State of Punjab, 1996 HRR 1 (SC), followed by a Division Bench of this Court in the case of State of C.R. No.3948 of 2006 (O&M) 5 Haryana versus Ved Parkash, 1999 HRR 96, it is immaterial that the respondent-landlord, after occupying the building, would utilize it for residential or for any other purpose. The later decision has been approved by the Apex Court in Mohinder Parsad Jain versus Manohar Lal Jain, 2006 (2) SCC 724. [8] Aggrieved, the tenants have approached this Court. [9] I have heard S/Sh.O.P.Goyal, Senior Advocate and Avinish Mittal, Advocate, counsel for the petitioner-tenants and Sh.Arvind Singh, counsel for the respondent-landlord at some length and have gone through the records. [10] The solitary contention pressed into aid by learned counsel for the petitioner-tenants is reiteration of their pleas before the Appellate Authority, namely, that the tenanted premises being a non-residential building, the respondent-landlord cannot seek eviction of the petitioners on the ground that he requires the same for residential purpose after reconstruction. In support of their contention, learned counsel have placed reliance upon the following decisions:- i) Attar Singh versus Inder Kumar (1967 PLR 83); ii) Dr.Jagjit Mehta vs. Dev Brat Sharma (1988 (1) RCR 308); iii) Brij Lal versus Dev Raj (1993 (2) RCR 35); iv) Dharam Pal Daulay vs. P.S.Bhandari (1993(2) RCR 456); v) Ashok Kumar Jain vs.Lachhman Dass (1996(2) RCR 180); vi) State Bank of Patiala vs.S.Zulzuaoar SinghVirk and others (PLR 2003 (2) 112; vii) Parmeshwari Devi vs.Krishan Chander (2003 HRR 197); viii) Dinesh Kumar versu Ram Singh and others (2006 (1) RCR 183.” C.R. No.3948 of 2006 (O&M) 6 In these decisions, it has been consistently ruled that a landlord is not entitled to seek eviction of his tenant from a non-residential building to satisfy his residential need. [11] After giving my thoughtful consideration, it appears to me that the contention, noticed above, is devoid of any merits and the revision petitions are liable to be dismissed. In order to appreciate the issues involved, it would be useful to refer the expressions “non-residential building” and “residential building” as defined under Section 2 (d) & (g) of the Act, which read as follows:- “2. (d) “non-residential building” means a building being used- (i) mainly for the purpose of business or trade; or (ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carries on business or trade in the building resides there. Provided that if a building is let out for residential and non-residential purposes separately to more than one person, the portion thereof let out for the purpose of residence shall not be treated as a non-residential building.” “2 (g) “residential building” means any building which is not a non-residential building.” [12] It is explicit that when a building is predominantly used for the purpose of business or a trade, it shall be deemed to be a non- residential building, even if a small portion thereof is used for residential purpose. Similarly, if the building is partly used for business or trade and partly for the residential purpose by the same person who is carrying on business or trade in the other part of the building, such a building shall also be treated as non-residential building. In other words, the crucial test C.R. No.3948 of 2006 (O&M) 7 to determine as to whether or not the building is a `non-residential building', rests upon the purpose for which the substantial part thereof is being used. It deserves to be noticed that any building which is not a non- residential building, shall be taken as `residential building'. [13] If the contention of the petitioners is tested on the touch stone of the above explained legislative intent, the building in dispute cannot be termed as a `non-residential building'. The site plan (Ex.P-5) has not been disputed by the petitioner-tenants. It clearly shows that House Nos.1214, 1215, 1216, 1217, 1218 & 1219 were constructed by raising a common/joint building by the predecessor-in-interest of the respondent- landlord and the later's brothers/family. It is an old house which is surrounded by the main roads on Southern and Eastern side and a street on the Northern side. If not more, atleast 70% of the constructed portion is meant to be utilized for residential purposes only as it contains rooms, court-yards, kitchen, toilet and passage etc. However, towards the Southern and Eastern sides, where the house is abutting the main roads, five shops also appears to have been constructed on the ground floor, out of which two are occupied by the petitioner-tenants. For the purpose of determining as to whether the building in question is non-residential building, the entire construction has to be seen as a single unit and the same leaves no room to doubt that only a small part of the building is meant to be utilized for non-residential purpose, whereas the predominantly part of the building is meant to be used for residential purposes and would, thus, fall within Clause 2 (g) of the Act, i.e., `a C.R. No.3948 of 2006 (O&M) 8 residential building'. [14] This Court in M/s Shamshar Housing Private Limited versus Amrit Pal Singh Grewal, 1998 (1) PLR 211, as well as in another judgment dated 25.8.2009 passed in Civil Revision No.3951 of 2006 (Ved Parkash versus Aman Pujara), has categorically held that if a portion of the residential building has been let out or is being used for non-residential purpose, the landlord can still seek eviction of the tenant from that portion for his bonafide residential purpose. [15] The respondent-landlord is an old retiree. In his deposition, he has categorically stated that he is not maintaining good relations with his daughter-in-law and wants to come back and settle down in Ambala Cantt where all his nears and dears are permanently settled. There is nothing unreasonable or suspicious about such a cherish desire of the landlord who wants to spend the evenings of his life with his close relatives/family members. [16] For the reasons aforestated, I do not find any merit in these revision petitions which are accordingly dismissed. 14-12-2009 (SURYA KANT) Mohinder JUDGE