CR No. 2632 of 1997 1 In the High Court of Punjab and Haryana, Chandigarh. CR No. 2632 of 1997 (O&M) Date of Decision: 22.09.2010 Anima Biswas ....Petitioner Versus Gurbachan Singh ....Respondent. 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. S.N. Chopra, Advocate for the petitioner. Mr. M.L. Sarin, Sr. Advocate with Ms. Himani Sarin, Advocate for the respondent. ... Alok Singh, J. Tenant has invoked revisional jurisdiction of this Court under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), assailing the judgement dated 11.6.1999 passed by the Rent Controller, Rajpura, thereby allowing the eviction petition filed by the landlord - respondent herein, under Section 13-A of the Act. Brief facts of the present case are that landlord has filed petition under Section 13-A of the Act, contending therein that the landlord CR No. 2632 of 1997 2 stood retired on 30.11.1991 from the Municipal Committee, Rajpura, hence, is a specified landlord as defined under the Act; revisionist herein is a tenant in the two rooms shown as ABCD in the site plan, constructed in residential House No.B-X-324, Mohinder Ganj, Court Road, Rajpura, at the rate of Rs.150/- per month and has failed to pay arrears of rent from 1.6.1991 to 31.8.1991. Landlord needs the premises in dispute for residential purpose for his family and his personal residence. The accommodation presently available with him is insufficient for him and for his family. Tenant - revisionist herein filed written reply. He sought and was granted leave to defend eviction petition under Section 13-A of the Act. It is contended by the tenant that tenanted premises are two shops and not two rooms. In the shops tenant is running her clinic since very inception. Tenanted shops are not part of the residential building. Petition under Section 13-A of the Act is not maintainable for the eviction from the shops in question. The Rent Controller allowed the eviction petition filed by the landlord having observed that the landlord stood retired from service of the Municipal Committee, Rajpura, on 30.11.1991, hence is a specified landlord; shops in the tenancy of the tenant are part of big residential building, hence shall fall within the definition of the building, hence petition under Section 13-A of the Act is maintainable; landlord requires the demised tenanted portion for his residential purpose. I have heard learned counsel for the parties and perused the record. Mr. S.N. Chopra, learned advocate appearing for the revisionist vehemently argued that the tenanted premises are two shops. He further CR No. 2632 of 1997 3 contends that there is no opening towards the building and opening of the shops is towards the main road. According to him, shops are in the main market and there are so many other shops in front of the shops in question. Mr. Chopra further argued that the shops in question were let out to the tenant revisionist firstly by the father of the present landlord for non- residential activities i.e. running the clinic. Mr. Chopra also contends that father of the present landlord issued rent receipts to the tenant mentioning therein shops and after the death of Mr. Nirmal Singh, father of the present landlord, present landlord started issuing receipts mentioning therein “received rent of the shops”. He further contends that the landlord, who appeared as AW5, in his cross-examination, has admitted that he has issued receipts to the revisionist mentioning therein that he has received rent of two shops from the revisionist. He further contends that the landlord has not placed any scheme of the city of Rajpura, saying the locality where shops in question are situated, is a residential area. Mr. Chopra further contended that the landlord has not produced any other document i.e. house tax assessment register, copy of sanction map to show the shops in question are still assessed as a part of residential building. According to him, if no scheme is operating in the area declaring the area as residential area, two shops, although, part of the residential building having no opening towards the residential building, cannot be called as residential building and would- be non-residential building. Mr. M.L. Sarin, learned senior advocate assisted by Ms. Himani Sarin, advocate, appearing for the respondent argued that admittedly tenanted premises is a part of the residential building, hence for all practical purposes, it would be residential building. Mr. Sarin further stated that CR No. 2632 of 1997 4 since tenant has admitted that a clinic is being run in the demised property, hence as per Section 2(h) of the Act, demised property would fall within the definition of scheduled building since as per Schedule I of the Act, if a clinic is being run therein, it would be deemed as a residential purpose. To appreciate respective arguments advanced by the learned advocates, as observed hereinabove, I would like to reproduce Section 2(a), 2(d), 2(g), 2(h) and Schedule I of the Act, which read as under: - “(a) "building" means any building or part of a building let 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; (d) "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 be deemed to convert a "non-residential building" to a "residential building"; (g) "residential building" means any building which is not a nonresidential building; (h) "scheduled building" means a residential building which is being used by a person engaged in one or more of the professions specified in the Schedule I to this Act, partly for his business and partly for his residence; Schedule I 1. Lawyers. 2. Architects. 3. Dentists 4. Engineers 5. Veterinary Surgeons CR No. 2632 of 1997 5 6. Medical practioners, including practioners of indigenous system of medicine.” 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 these two shops (called as rooms by the landlord) 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 shops (rooms) are non-residential building in view of the fact that the same were let out and are being used from the very inception for medical practice (clinic) and because shops are having no opening towards the main building and have 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 definition of non-residential building as defined under Section 2(d), as observed hereinabove. From the definition of Section 2(h), it can safely be said that the building would be scheduled building, if the building is being used by one or more of the professions specified in Schedule I, partly for his business and partly for his residence. Admittedly, demised premises was never used partly for residential and from the very reception is being used for medical practice (clinic), hence, in the present case, building is covered by the definition of non-residential and is not a scheduled building under Section 2 (h) of the Act. I find support from the judgement rendered in Dr. Jagjit Singh CR No. 2632 of 1997 6 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 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 CR No. 2632 of 1997 7 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 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. CR No. 2632 of 1997 8 Such a permission is required only where a residential building is sought to be converted into a non-residential building.” Mr. Sarin, learned senior advocate appearing for the landlord – respondent argued that since demised premises is integral part of the residential building, hence it should be considered as residential building. He placed reliance on the judgement of this Court in the matter of Hem Raj Vs. Ramesh Kumar Khosla, 1994(2) RCR 462. In the matter of Hem Raj (supra), learned Single Judge of this Court has distinguished another judgement of the learned Single Judge of this Court in the matter of Dr. Jagjit Singh Mehta (supra) on the ground that facts of the case of Hem Raj (supra) are different from the facts of the case of Dr. Jagjit Singh Mehta (supra). Learned Single Judge of this Court in the matter of Hem Raj (supra) has held that the tenanted portion has opening into Deorhi as well as a court-yard at the back and these two doors of the tenanted portion, connect tenanted portion with the residential accommodation in question, hence would be a residential building. However, in the present case, tenanted building does not have any ventilator or opening towards the main building and have only openings on the main road where admittedly other shops are situated, hence, judgement of this Court in the case of Hem Raj (supra) is distinguishable. Undisputedly, the area where building is situated could not be proved to be residential zone by placing any scheme, notification, house tax assessment register. Rent receipts issued by the father of the landlord and thereafter by the landlord, contain that rent is being received for two shops. The demised premises was let out initially for non-residential purpose i.e. to run clinic and part of which was never used for residential purpose, hence, CR No. 2632 of 1997 9 in my view, demised premises shall fall within the definition of non- residential building and shall not be subject matter of Section 13-A of the Act. In the opinion of this Court, demised premises is not a residential or specified building and will fall within the definition of 'non- residential building'. No eviction petition is maintainable under Section 13- A of the Act for eviction of tenant from the non-residential building. In view of the observations made hereinabove, order impugned cannot stand in the scrutiny of law. Petition is allowed. Eviction petition filed by the landlord – respondent is dismissed. No costs. ( Alok Singh ) Judge 22.09.2010 sk.