CR No. 3406 of 1996 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 3406 of 1996 (O&M) Date of Decision: 24.09.2010 Dev Raj ....Petitioner Versus Ram Parkash ....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. Vinod S. Bhardwaj, Advocate for the petitioner. Mr. Amit Jain, Advocate for the respondent. ... Alok Singh, J. Tenant has 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 order passed by the appellate authority, Ambala, thereby allowing the appeal and directing eviction of the tenant - revisionist herein from the demised premises. Brief facts of the present case are that landlord - respondent herein has filed eviction petition against the tenant - revisionist on the CR No. 3406 of 1996 2 grounds, inter-alia, that the tenant is in arrears of rent with effect from 1.8.1987 to 30.11.1987; Tenant has materially impaired value and utility of the demised premises by damaging the floor and wall and due to the same many cracks have developed in the building in question; tenant is carrying on his business of “kabari” and has always been throwing pieces of iron and girder, which dig the floor; landlord requires the demised premises for his own use and occupation as he has no sufficient accommodation for his own use and occupation. Tenant contested the eviction petition by way of filing written statement contending therein that the tenanted premises is a shop and it was taken on rent to run business and from the very inception of the tenancy, it is being used as a shop and tenant is carrying on business therein. It has further been stated that the tenant has neither impaired the value and utility of the premises in question nor he has damaged the same in any manner. Landlord does not require the demised premises for his own use and occupation. Tenant is not in arrears of rent. Since the demised premises is under tenancy for commercial purposes and has been let out to the tenant for commercial purposes for running the shop, hence it cannot be got vacated for personal necessity for residence. The Rent Controller vide order dated 15.10.1992 dismissed the eviction petition by holding that the demised premises is a non-residential building and a non-residential building cannot be got vacated for residential purpose. The Rent Controller also did not find favour with the landlord on the ground that tenant has materially impaired the value and utility of the premises in question. In appeal filed by the landlord, the Appellate Court has held that the demised premises is a part of the residential building, CR No. 3406 of 1996 3 hence, would be a residential building. It has been further observed by the Appellate Court that since no permission was obtained under Section 11 of the Act to let out residential building for non-residential purposes, hence the demised premises would be a residential building. I have heard learned counsel for the parties and perused the record. Both the Courts below have correctly recorded finding of fact that the demised premises was let out to the tenant for running a shop as it is proved from the Rent Note Ex.R-1. It is also the admitted fact that other shops are also near the disputed premises. From the material available on the record, it cannot be proved that the demised premises has any opening towards the main building, rather it is proved on record that the demised premises has opening towards the market only. From the definition of building as provided under Section 2(a) of the Act, it can safely be said that building means, any building or part thereof let out for any purpose whether being actually used for that purpose or not. In the opinion of this Court, from the definition of building any part of the building let out shall be construed as separate building, hence demised portion let out separately fall within the definition of building under Section 2(a) of the Act. From the definition of non-residential building as defined under Section 2(d) of the Act, I find that the demised portion is non-residential building in view of the fact that the same was let out and is being used from the very inception for commercial activity and demised portion is having no opening towards the main building and has opening towards the market only. From the definition of Section 2(g) of the Act, I find that it is not a residential building since it falls within the CR No. 3406 of 1996 4 definition of non-residential building as defined under Section 2(d), as observed hereinabove. I find support from the judgement rendered in Dr. Jagjit Singh Mehta Vs. Dev Brat, 1988(1) RCR 308, wherein learned Single Judge has held that where a portion of residential building is converted into a shop and let out to the tenant, then it will fall within the definition of non-residential building under the Act. This judgement was confirmed by the Apex Court in the matter of Dev Brat Sharma Vs. Dr. Jagjit Mehta, 1990(2) All India Rent Control Journal, 431. The Apex Court in the matter of Dev Brat Sharma (supra), 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 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 CR No. 3406 of 1996 5 out of the ratio emerging from some of the precedents of this Court on which reliance was placed.” I further find support from the judgement of Lal Chand Vs. Bal Kishan, 1987 (3) RLR 631, wherein learned Single Judge of this Court in paragraph 4 has held as under: - “I have heard learned counsel for the parties. I am of the view that the order under revision cannot be sustained. It is an admitted fact on record that the premises in dispute are two shops on the ground floor of a larger building the major part of which is no doubt residential in character, but at the same time it cannot be disputed that the shops in dispute which have been let out to the petitioners are non-residential in character. Clause (a) of Section 2 inter-alia, defines ‘building’ to mean ‘any building or part of the building let out for any purpose whether being used for that purpose or not. Thus, these two shops are a building falling within the scope of the aforesaid definitions. Merely because these two shops in the form of building are integral part of the larger building as known in the common parlance, the predominant part of which is residential character, it is difficult to hold that these shops are a residential building and not a non-residential one. The shops have admittedly been let out to the petitioner solely for running his business. Therefore, these shops are to be treated as non-residential building within the meaning of clause (d) of Section 2 of the Act. The ratio of Hari Mittal’s and Gurbax Rai Sood’s cases (supra) is not even remotely applicable to the CR No. 3406 of 1996 6 facts of the case in hand. While letting out shops for solely the purposes of business it was not necessary to secure the written permission of the Rent Controller under Section 11 of the Act. Such a permission is required only where a residential building is sought to be converted into a non-residential building.” This Court in the matter of Anima Biswas Vs. Gurbachan Singh (C.R. No.2632 of 1997, decided on 22.9.2010) has taken the view that if part of the residential building was let out solely for business purposes and has no opening towards the main building and has opening towards the market only, then the demised premises would be a separate building in view of the definition of ‘building” under Section 2(a) of the Act. In the opinion of this Court, a non-residential building can be got vacated for non-residential purpose only and non-residential building cannot be got vacated for residential purposes. I find support from the judgement of this Court in the matter of R.A. Mantri and another Vs. Smt. Krishna and others (C.R. No.6479 of 2009, decided on 22.9.2010) wherein it has been held that non-residential building can be got vacated only for non-residential purposes and cannot be got vacated for residential purposes. This Court further finds support from the judgement rendered by the learned Single Judge of this Court in the matter of Dinesh Kumar Vs. Ram Singh and others, reported in 2006 (1) PLR 645, wherein in paragraph 8 following observations were made: - “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 CR No. 3406 of 1996 7 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 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.” In view of the above, impugned order cannot be sustained in the eyes of law, hence, is liable to be quashed. Present petition is allowed. Order impugned is quashed and CR No. 3406 of 1996 8 that of the Rent Controller is restored. Eviction petition is dismissed. ( Alok Singh ) Judge 24.09.2010 sk.