CR No.5745 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5745 of 2003 Date of Decision: 9 - 12 - 2008 Nand Lal ....Petitioner v. Gurdev Kaur ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Sumeet Mahajan, Sr.Advocate with Mr.Amandeep Singh, Advocate for the petitioner. Mr.S.S.Rangi, Advocate for the respondent. *** KANWALJIT SINGH AHLUWALIA, J. Present revision petition has been filed by Nand Lal son of Goverdhan Dass resident of Bassi Pathana. He is aggrieved against order dated 13.10.2003 passed by the Appellate Authority, Fatehgarh Sahib by which appeal filed by the respondent-landlady was accepted and judgment dated 28.1.2002 delivered by Rent Controller, Fatehgarh Sahib was set aside. Gurdev Kaur landlady had instituted an eviction petition on 29.10.1996. She has stated in the eviction petition that she is owner and landlady of the shop shown in red colour in the site plan situated in Grain CR No.5745 of 2003 [2] Market, Khamanon, District Fatehgarh Sahib. The said shop was on lease with the tenant at the rate of Rs.600/- p.m.. It was further pleaded that relationship of landlord and tenant has been admitted by the tenant in Suit No.422 of 1994 titled as `Nand Lal v. Gurdev Kaur', decided on 4.1.1995 by the Court of Sh.D.K.Sarpal, Sub Judge Ist Class, Fatehgarh Sahib. It was further stated that tenancy was on month to month basis. For seeking eviction of the tenant, three grounds were pleaded which can be reproduced as under:- a) That the respondent has not paid the rent at the rate of Rs.600/- per month since August, 1995. b) That the shop in question was earmarked as grain shop and the same had been leased to the respondent by the petitioner for specific purpose of carrying on the business of commission agent of agriculture produce/grains but the respondent has started using the demised shop for the purpose of selling corrosive fertilizer & dangerous insecticides without the permission of the petitioner and as such is guilty of change of user of the demised shop. c) That on account of storage of fertilizer in the shop in dispute, the walls and the floor of the shop have been badly damaged which have impaired the value and utility of the demised shop. Notice of the eviction petition was issued. Written statement was filed. Relationship of landlord and tenant was admitted. It was stated that shop was taken on rent in the month of January, 1990. It was further stated that entire rent has been paid. Regarding change of user, it was stated CR No.5745 of 2003 [3] that from the very inception of tenancy, tenant has been carrying on the business of selling fertilizer. It was stated that shop was taken on rent in January, 1990 and in February, 1990 license was obtained for selling fertilizer. It was denied that storage of fertilizer has damaged the shop and impaired the value and utility of the demised premises. Replication was filed in which averments made in the eviction petition were reiterated and that of the written statement were denied. The Court of Rent Controller had drawn the following issues:- 1. Whether the respondent is in arrears of rent and if so to what amount? OPA 2. Whether the respondent has changed the user of the demised premises/shop without the consent of applicant? OPA 3. Whether the respondent has impaired the value and utility of the demised shop? OPA 4. Relief. Gurdev Kaur landlady has herself appeared as AW-1. She proved site plan of the shop Ex.P1. It was stated that shop was allotted for Commission Agent of food grains. The tenant for 3 to 4 months did the work of food grains and thereafter he started selling fertilizer, insecticides and pesticides and the tenant had taken no oral or written consent for change of user and storage of insecticides and pesticides has diminished the value and utility of the shop. She admitted that no rent note was executed. Balbir Singh was examined as AW-2. He stated that in the last week of October, 1989, he along with his father had taken the trolley of paddy for sale on the commission agent shop and again in January, 1990, he along CR No.5745 of 2003 [4] with his father had taken the trolley of wheat on the shop of tenant Nand Lal son of Goverdhan Dass. He further stated that thereafter Nand Lal stopped the business of sale purchase of food grains and commenced the business of sale of fertilizer, insecticides and pesticides. In cross-examination he admitted that he was not having any slip for the sale of paddy and wheat. Chaman Lal, Junior Assistant from the office of Administrator, New Mandi Township, Punjab government was examined as AW-3. He brought the summoned record of shop No.77 situated at Khamanon Mandi which was allotted to Gurdev Kaur landlady. He proved allotment letter issued in the year 1972. He further stated that shop No.76 at Khamanon Mandi was allotted to Sham Singh Sekhon husband of Gurdev Kaur landlady. He also proved allotment letter of that shop. He stated that terms and conditions of allotment are mentioned in the allotment letter. Allotment letter of the landlady-respondent is Ex.P2. He also stated that on 19.1.2.2000 letters were issued to Sham Singh Sekhon and Gurdev Kaur landlady. Letters have been proved as Exs.P4 and P5. During cross-examination, he admitted that notices were issued to Gurdev Kaur in the year 1984, 1987 and 1988 but no proceedings were initiated for cancellation of allotment. He stated that notice Ex.P5 was received personally by Gurdev Kaur in the office. Jagjiwan Kumar Gupta AW-4 a Chartered Engineer who retired as Head of Civil Engineering Department, Department of Technical Education Punjab , Chandigarh was examined to prove technical report Ex.A6 which according to him was prepared after he carried inspection of disputed building on 3.3.2001. He stated that due to storage of urea and pesticides in different rooms of the property, the floor walls and the roof have been damaged due to presence of Nitrogen and other harmful chemicals. CR No.5745 of 2003 [5] Thereafter tenant led his evidence, examined Narinder Kumar, Clerk as RW-1 from the office of Chief Agriculture Officer, Fatehgarh sahib. He proved license issued in favour of Indian Khad Depot, Khamanon Mandi on 5.2.1990. He stated that license was for sale of Urea, DAP fertilizer. In cross-examination, he stated that he has no personal knowledge that tenant has started the business of fertilizer, pesticides and insecticides in April, 1990. RW-2 Swaran Singh, Clerk, State Bank of Patiala, Khamanon Mandi was examined regarding deposit of rent. Amrit Lal Verma, Draftsman RW-3 proved site plan Ex.R8 and his report Ex.R7 along with photographs. Tenant Nand Lal appeared as RW4. As stated, eviction petition was filed on 29.10.1996. Rent Controller decided the case on 28.1.2002. Rent Controller held that ground of non payment of rent is not made out as the rent had been regularly deposited in the account of the landlady. Rent Controller further held that no reliance can be placed upon the testimony of Balbir Singh AW-2. It was further held that the tenant has been doing the same business of sale of fertilizer as he had obtained the license in February, 1990 and no license had been obtained by him for sale of grains as Commission Agent. Therefore, the landlady had failed to prove the ground of change of user. Rent Controller noticed the testimony of Jagjiwan Kumar Gupta, Expert as he had opined that due to storage of urea, the demised premises had been damaged and the same has reduced the life and value of the property. There are pits in the floor, the cement plaster on the walls has been blistered at many places and there are patches of dampness in the walls and roof. But at the same time, Rent Controller also noticed the testimony of Amrit Lal Verma, Draftsman examined by the tenant and held that since the shop has CR No.5745 of 2003 [6] been let out for sale of fertilizer, therefore, it cannot be said that value and utility of the shop has been impaired. Therefore, the eviction petition was dismissed. Aggrieved against the same, the landlady had filed an appeal. Appellate Authority held that landlady had failed to prove that there were arrears of rent. Therefore, he found no infirmity in the findings of the learned Rent Controller qua non payment of rent. Appellate Authority examined the allotment letters Exs.P2 and P3 issued in favour of the landlady and her husband Sham Singh Sekhon. It noticed condition Nos.18 and 20 of the allotment letter. Same are reproduced below:- “18. The site and the building constructed thereon shall be used as “Grain Shop” and for no other purpose. 20. Should any transferee fail to observe or comply with any of the foregoing conditions or fail to construct the plot within time specified, the plot will be resumed and his deposit shall be forfeited to the State Government which may have the property resold by public auction. Any deficiency of price which may result on such resale shall be made good and paid by the defaulters purchaser.” Appellate Authority further noticed that notices dated 19.12.2000 Exs.P4 and P5 for violation of conditions of allotment have been issued. Therefore, landlady faced peril of resumption and drew support from the observations of Hon'ble Supreme Court in Surge Seed Farm v. Raj Kumar Chadha, 1995(2) PLR 643 wherein due to un-authorised construction, landlord was facing a threat of resumption and was ordered CR No.5745 of 2003 [7] the ejectment. After analysing and meticulously adjudging the evidence, the Appellate Authority held as under:- “.......Thus from the above referred evidence, it is established that not only the respondent has changed the user of the shop in question but his act of running fertilizer business from the shop in question in contravention of the conditions of allotment has rendered the shop liable for resumption. The case of appellant is fully supported by 1995(2) PLR 643 (Supreme Court) Durga Seed Farm Versus Raj Kumari Chadha, wherein in somewhat identical circumstances where tenant has rendered the property in question liable for resumption on account of un-authorised construction, the Hon'ble apex Court upheld the judgment of the Hon'ble High Court, vide which the tenant had been ordered to be ejected from the demised premises.” Regarding impairment of value and utility of the shop, the Appellate Authority has held that landlady has failed to prove this ground and upheld the findings of the Rent Controller. Therefore, the Appellate Authority taking contravention of allotment letter and threat of resumption held that change of user has made the tenant liable for eviction. Revision petition of the tenant was admitted. Records were requisitioned and same has been listed for regular hearing before this Court. I have heard Mr.Sumeet Mahajan, counsel for the petitioner- tenant and Mr.S.S.Rangi, counsel for the respondent-landlady. Mr.Sumeet Mahajan, learned counsel for the petitioner has contended that the respondent-landlady is not entitled to seek eviction of the premises on the ground of change of user. He has stated that in the present CR No.5745 of 2003 [8] case neither the change of user is established on the facts nor on law. It has been stated that the tenancy was created in January, 1990. In February, 1990, license was obtained by the tenant-petitioner from the Department of Chief Agriculture Officer, Fatehgarh Sahib. Therefore, from the very inception of tenancy, petitioner is engaged in sale of fertilizer, insecticides and pesticides. It has been further contended that even if it is assumed that from sale of grains, petitioner has started selling fertilizer, insecticides and pesticides, same would not amount to such a change of user which will necessitate eviction of the tenant. In support of his contention, learned counsel for the petitioner has relied upon Pitamber Lal v. Ram Lal and ors., 1984(2) R.C.R.(Rent) 504 to canvas that where the tenant was using the shop for sale of Paan and Birri and subsequently started Karyana trade, it does not amount to change of user. It has been held in Pitamber Lal's case (supra) that change of user could only be held if it is proved that premises were let out for specific purpose and subsequently tenant has put the same to different purpose. Counsel State that no rent note has been proved. Further reliance has been placed on Parkash Chander v. Bhim Sain through Legal Heirs, 1986(2) R.C.R. (Rent) 631 in support of above contention. Counsel has further relied upon Hari Rao v. N. Govindachari and others, AIR 2005 SC 3389 to state that use of premises for specific purpose other than it is leased, can only be taken into consideration if residential property is converted into non-residential property or vice versa. It has been submitted that the purport of the judgment relied upon is that change of user should be liberally construed and as in present case, in law no change of user can be attributed to petitioner-tenant. Counsel for the petitioner has relied upon Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1934 CR No.5745 of 2003 [9] (1) to urge that the alleged change of user from sale of grain as Commission Agent, to sale of fertilizer, insecticides and pesticides has caused no impairment or mischief or detrimental to the demised premises, therefore, Appellate Authority was wrong in holding that petitioner was liable for eviction due to change of user. Para 9 of judgment in Mohan Lal's case (supra) read as under:- “9. While respectfully agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy land the judiciary interpret them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of S. 13(2)(ii)(b) of the Act. The High Court, therefore, was in error.” (emphasis supplied) I am of the view that the judgment relied upon by the counsel has demolished the case of the petitioner-tenant. In the present case, apparently as per terms and conditions of letter of allotment Exs.P2 and P3, change of user has fastened the respondent-landlady with a notice of resumption, therefore, it is not only detrimental to the respondent-landlady but such a notice due to which shop could be resumed was sufficient to order eviction of the tenant. Therefore, judgment and order passed by the Appellate Authority holding the petitioner-tenant liable for eviction is CR No.5745 of 2003 [10] affirmed. Counsel for the petitioner has also advanced certain ancillary arguments. It was stated that it was no where pleaded that due to issuance of notice, shop is going to be resumed. Therefore, because of lack of pleadings, Appellate Authority could not take this fact into consideration. To support this contention, reliance has been placed on Union of India and others v. Jai Prakash Singh and another, (2007) 10 SCC 712. In the present case, eviction petition was instituted on 29.10.1996. Notice Ex.P5 regarding resumption was received on 19.12.2000. Therefore, this fact could not be pleaded in the eviction petition. Matter of fact is that due to sale of fertilizer, respondent-landlady faces a threat of resumption of the shop for violation of conditions of allotment letter. Therefore, the Appellate Authority has ordered eviction of the petitioner-tenant. This finding cannot be said to be perverse. For the reasons stated above, no interference is warranted and the present petition is dismissed. The petitioner-tenant is granted two months time to vacate and hand over vacant possession of the demised premises. ( KANWALJIT SINGH AHLUWALIA ) December 9, 2008 JUDGE RC