Holding

Use of any part of a residential building for a purpose other than that for which it was let, without the landlord's written consent, makes the ground of eviction under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act applicable.

Summary

The landlord leased a premises in Chandigarh to the tenant for residential use, but the tenant's husband, a lawyer, set up a small office in part of the premises. The landlord sought eviction under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, alleging a change of user without written consent. The Rent Controller and the appellate authority ordered eviction, but the High Court set aside the order, holding that the building had become a "scheduled building" and the ground for eviction was unavailable. The Supreme Court held that any use of the building for a purpose other than that for which it was let, without the landlord's written consent, constitutes a breach of the covenant and a valid ground for eviction, even if only a part of the building is used and the character of the building changes to a scheduled building. Consequently, the Court allowed the landlord's appeal, restored the eviction order, and awarded costs to the landlord.

Issues considered

Whether the use of a part of a residential premises as a lawyer's office amounts to a 'change of user' under section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1940.
Whether the landlord's alleged waiver or acquiescence bars the landlord from invoking the ground of change of user.
Whether the change of user must be substantial or involve the entire building to attract eviction under the statute.
Interpretation of the term 'scheduled building' and its relevance to the eviction ground.

Legislation cited

East Punjab Urban Rent Restriction Act, 1940s. 13(2)(ii)(b), s. 2(b), s. 2(g), s. 2(h), s. 4

Subjects

evictionchange of userresidential buildingscheduled buildingrent controllandlord-tenant disputewaiveracquiescenceEast Punjab Urban Rent Restriction Act

Judgment

BISHAMBER DASS KOHLI (DEAD) BY LRS. A
v.
SMT. SATYA BHALI.A

JANUARY 12, 1993

[J.S. VERMA, YOGESHWAR DAYAL AND B
N. VENKATACHALA, JJ.]

East Punjab _Urban Rent Restriction Act, 1940-Section 13(2)(ii)
(b }-Eviction on the ground of change of user-JVhether proper.
c
East Punjab Urban Rent Restriction Act, 194()-Sections 2(g), 2(h}-
''Residential building", "Scheduled building"-Cons"!lction.

The suit premises was let out by the appellant landlord to the
respondent on a monthly rent of Rs. SSO solely for residential purpose. In D
a part of the premises, the respondent's husband, a lawyer established his
office and started using the same for that purpose.

The appellant-landlord filed a petition before the Rent Controller
seeking eviction of the respondent-tenant.
E
The Rent Controller made an order of eviction of the respondent-
tenant on the ground of change of user under section 13(2) (ii) (b), of the
East Punjab Urban Rent Restriction Act, 1940.

The tenant's appeal was dismissed by the appellate authority,
against which a revision to the High Court was preferred. F
The Single Judge of the High Court allowed the revision and set
aside the eviction order, holding that the building let out as a 're5idendal
.building' became a 'Scheduled building' by use of a part thereof as lawyer's
office by the tenant's husband; and therefore, the ground of eviction was G
not available.

Hence this appeal by the landlord by special leave, coutendin& that
the ground of change of user contained in section 13(2) (ii) (b) was dearly
made out from the ·facts and the High Court .erred in setting aside the
order or eviction. .H
171
172 SUPREME COURT REPORTS (19'J3] 1 S.C.R.

A 11ae respondent-tenant submitted that the landlord waived the
ground or change or user by acquiescence to use or a part or the ·premises
as lawyer's office; that the ground in section 13(2)(ii)(b) was not available -
unless the change or user was of substantia~ if not the entire building and,
therefore, mere use of a small part of the residential building as lawyer's
B omce does not constitute such change.

Allowing-the appeal of the landlord, this court,

HELD : 1.01. Use of the building for a purpose other than that for
which it was leased, without the written consent of the landlord is a
C ground or eviction. The object clearly is that the parties must remain
bound by the terms on which the building is let out, including the condi·
tion relating to its use for the purpose for which it was leased. In other
words, breach or the covenant regarding the kind of user of the building
· let out is the ground of eViction contained in section 13(2) (ii) (b) of the
East Punjab Urban Rent Restriction Act. [177A-BJ
D
1.02. If the change In user of the building is of the kind that it makes
the residential building let out for residential purpose alone change its
character and become a 'scheduled building' as defined in section 2(b) of
the Act without the written consent of the landlord, the ground of eviction
E under section 13(2) (ii) (b) is made out. [177C]

1.03. This test ls fully !!atisfied in the present case and the order of
eviction was made by the Rent Controller and affirmed by the appellate
authority on this basis. The High Court misconstrued the provisions to
take the contrary view. [1770)
F Telu Ram v. Om Par/cash Garg 1971 RCJ 1, approved.

Sant Ram 'v.Rajindef Lal and Ors., 1978 (2) RCR 601; Dr. Sewa Singh
v. Smt. Ravinder Kaur and another, [1971] l SCC 981, distinguished.

G 2.01. Even though a 'scheduled building; continues to be a ralden·
tial bulldin1 as defined in section 2(g), a residential building of which nu
a part is used for a scheduled pu~ose, becomes and ls called a 'scheduled
building' when user of the bulldi.,, is signiftcant or the criterion. [176F)
~ '
2.02 Where user ora bu~ding Is of slgnlftcance, a distinctloa Is made la
H the Act between a residential bUilding which is not a scheduled bulldlJll and
BISHAMllER KOHLI v. SMT. SATYA BHALLA [VERMA, J.] 173

that which Is a scheduled building. This is so In section 4 of the Act dealing ' A
with determination of fair rent wherein fixation of rent is made on the basis
of user and for that purpose a 'scheduled building' is treated dlfTerentlyfrom
a residential building which is not a scheduled building. [176G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5434 of
~ B
_____,. From the Judgment and Order dated 11.8.1987 of the Punjab and
Haryana High Court in Civil Revision No. 1048 of 1986,

A.K. Gupta for the Appellants.
c
Vikram Mahajan, Gopi Chand and K.K. Gupta for the Respondent.

The Judgment of the Court was delivered by

VERMA', J. The suit premises in Chandigarh was let out by the
appellant to the respondent, Smt. Satya Bhalla on 1.11.1974 on a monthly D
rent of Rs. 550 solely for residential purpose. However, the respondent's
husband, a lawyer established his office in a part of the suit premises. and
started using the same for that purpose. The appellant-land!Jrd filed a
petition before the Rent Controller in February, 1983 seeking eviction of
the respondent-tenant on several grounds including the ground contained E
in section 13(2) (ii) (b) of the East Punjab Urban Rent Restriction Act,

-
1949 i.e. the use of the building for a purpose other than that for which it
was leased. The Rent Controller made an order of eviction of the respon-
dent-tenant on the ground of change of user contained in section 13(2)(ii)
(b). The tenant's appeal was dismissed by the appellate authority which
affirmed the order of eviction made by the Rent Controller. A further F
revision to the High Court has been allowed by the learned single Judge
and the order of eviction has been set aside. The High Court has held that
the building let out as a 'residential building' became a 'scheduled building'
by use of a part thereof as lawyer's office by the tenant's husband; and
therefore, the ground of eviction was not available. The order of eviction G
made in the landlord's favour was, therefore, set aside. Hence this appeal
by the landlord by special leave.

The learned counsel for the appellant contended that the ground of
change of user contained in section 13(2) (ii) (b) is clearly made out from
the facts and the High Court has erred in setting aside the order of eviction. H
174 SUPREME COURT REPOR1S [199~1 1 s.c.R.

A In reply Shri V.C. Mahajan, learned counsel for the respondent-tenant,
advanced several arguments. He submitted that the landlord had waived .'>--
the ~ound of change of user by acquiescence to use of a part of the
preD11Ses as lawyer's office. His next submission is that the ground in
section 13(3) (ii) (b) is not available unless the change of user is of
B substantial, .if not the 'ootire building and, therefore, mere use of a small
part of the residential building as lawyer's office does not constitute such
change, learned counsel also submitted that this is not a fit case for
interference with the High Court's order under Article 136 of the Constitu- ~
tion.

C Having heard both sides, we are satisfied that this appeal has to be
allowed. The High Court's interference in revision with the order of
eviction made by the Rent Controller and affirmed by the appellate
authority, was wholly unjustified.

There is no merit in Shri Mahajan's argument of waiver or acquies-
D cence by the landlord. Before the Rent Controller the tenant had pleaded
estoppel against the landlord, which after due consideration was rightly
rejected by the Rent Controller. That finding of the Rent Controller was
not assailed by the tenant either before the appellate authority or in the
High Court. On merits also, this plea is unte;.iable since no such conduct
E of the landlord is shown. The argument is, therefore, rejected. We also do
not find any substance in the contention that interference under Article

F
136 is not warranted, in case it is found that the High Courl set aside the
order of eviction on a misconstruction of the law applicable in the present
case. The only question, therefore, is whether on the proved facts, no
longer in controversy, the ground in section 13(2) (ii) (b) is made out.
-
The material provisions in the East Punjab Urban Rent Restrictions
Act, 1949 with reference to which the contention of Shri Mahajan has to
be considered, are the following :-

G 11
2. Definitions. ................... .

(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, outhouses, or furniture let
H therewith but does not include a room in a hotel, hostel or
BISHAMBER KOHLI v. SMT. SATYA BHALLA [VERMA, J..J 175

boarding house; A
xxx
(d) "non-residential building" means a building being used
. solely for the purpose of business or trade:
B
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":

xxx xxx
c
(g) "residential building" means any building which is not a
non-residential building;

(h) "scheduled building" means a residential building which is
being used by a person engaged in one or more of the profes-
sions specifi<:~. ~ the Schedule to this act, partly for his business D
and partly for ~ ' residence;

xxx xxx
13. Eviction of terumt - (1) A tenant in possession of a building
or rented land shall not be evicted therefrom in execution of a E
decree passed before or after the commencement of this Act
or otherwise and whether before or after the termination of the
tenancy, except in accordance with the provisions of this sec-
tion.

(2) A landlord who seeks to evict his tenant shall apply to the
F
Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause
against the applicant, is satisfied -

G
(ii) that the tenant has after the commencement of this Act
without the written consent of the landlord --

(a) transferred his right under the lease or sublet the entire
building or rented land or any portion thereof; or H
176 SUPREME COURT REPORTs [1993] 1 S.C.R.
A (b) used the building or rented land for a ,.,urposc other than
that for which it was leased, or

the Controller may make an order directing the tenant to put
the landlord in possession of the building or rented land and
if the Controller is not so satisfied he shall make an order
rejecting the application:

Provided that the Controller may give 'the_ tenant a
reasonable time for putting the landlord in possession of the
c building or rented land and may extend such time so as not to ·
exceed three months in the aggregate." i

Shri Mahajan contended that to constitute the ground under sectit
13(2) (ii) (b), the change in. user should be in respect of at least 1•
D substantial part of the building if not the entire building. The compariso~
of sub-clause (b) with sub-clause (a) shows that the omission of the word
'entire' before the word 'building' in._sub-clause (b) when the word 'entire'
has been used before the word 'building' in sub-clause (a) is deliberate.
For this -reason, the· change in user of the building required to constitute
the ground under sub-clause (b) need not be of the entire building, the
E word 'entire' being deliberately omitted in sub-clause (b). Faced with this
difficulty, Shri Mahajan submitted that the change of user should be of a
substantial part of the building let out even though not of the entire
building. This argument also cannot be accepted in this context. The
definitions in section 2 of the Act show that even though a 'scheduled
F building' continues to be a residential building as defined in section 2(g),
a residential building of which even a part is used for a scheduled purpose,
becomes and is called a 'scheduled building' when user of the building is
significant or the criterion. Thus, where user of a building is of significance,
a distinction is made in the Act between residential building which is not
a scheduled building and that which is a scheduled building. This is so in
G section 4 of the Act dealing with determination of fair rent where,in fixation
of rent is made on the basis of user and for that purpose a 'scheduled
building' is treated differently from a residential building which is not a
scheduled building. Same is the position with regard tO the ground of
eviction contained in section 13(2) (ii) (b) wherein change in user of the
H building is alone significant for constituting the ground.
BISHAMBER KOHLI v. SMT. SATYA BHALlA [VERMA, J.] in
Accordingly, use of the building for a purpose other than that for A
----< which it was leased, without the written consent of the landlord is a ground
of eviction. The object clearly is that the parties must remain bound by the
terms on which the building is let out, including the condition relating to
its use for the purp0se for which it was leased. .In other words, breach of
the covenant regarding the kind of user of the building let out is the ground
B
of eviction contained in section 13(2) (ii) (b).
'"
It is clear that if the change in user of the building is of the kind that
_--'c
it makes the residential building let out for residential purpose alone
change its character and become a 'scheduled building' as defined in
section 2(h) of the Act without the written consent of the landlord, the c
- ground of eviction under section 13(2) (ii) (b) is made out.

This test is fully satisfied in the present case and the order of eviction
was made by the Rent Controller and affirmed by the appellate authority
A_ on this basis. 'The High Court misconstrued the provisions to take the
contrary view. D

A Division Bench of the Punjab and Haryana High Court in Te/u
Ram v. Om Parkash Garg, 1971 RCJ 1 while dealing with section 13(2) (ii)
(b) at the Act mentioned one of its conclusion in para 21 as under -
-I,_ E
"(b) that if the result of the use of even a small portion of a
building is such that the category of the premises is changed
from residential, non-residential and scheduled, and it becomes
~·
, - a category different from the one for which the same had been
let, the clause would be attracted;"
F
This is how this provision appears to have been understood at least
,. -~ eversince than and the people in the State have arranged their affairs on
'
that basis. Apart from the fact that this view commends to us as the correct
view, the desirability of continuing the settled view is also a reason in its
favour.
G
Shri Mahajan relerred to the decision of this Court in Sant Ram v.
.A. Rajinder Lal and Ors., 1978(2) RCR 601. That case is di'tinguishable. In
-
that decision the purpose of the lease was not spelt out precisely while
letting out a small premises to a cobbler for his business where he some-
times stayed overnight after the day's work while he went to his home on H
178 SUPREME COURT REPORTS (1993] l S.C.R.

A holidays. It was on these facts that the tenant staying overnight in the shop
on some working days was not found to constitute the ground of change )-----
of user under section 13(2) (ii)· (b) of the Act That decision does not assist _._
the respondent- tenant in ibis case.

Reference ~ also made to Dr. Sewa Singh v. Smt. Ravinder Kaur •
F

B and another, (1971) '3 sec 981. That judgment did not consider this
question as it was not raised. The ground therein was that the High Court
was not justified in taking the view in revision for the first· time that the
-
'1
user of a part of the premises for a particular purpose was casual. No ;......._.
doubt, the user of a part of the residential building for the profession of a
C medical practitioner was involved and the definition of 'scheduled building'
in section 2(h) of the Act was referred, but this point was neither raised
nor considered. The decision in Dr. Sewa Singh cannot be treated as an
authority for the view that change of user of a part of a residential building
let out for use solely as a residence, for a scheduled purpose without the
wntten consent of the landlord does not constitute the ground for eviction
D under section 13(2) (ii) (b) or that the ground of eviction based on personal
need of the landlord contained in section 13(3) (i) (a) is not available to
the landlord for that reason. If the logical inference from Dr. Sewa Singh
appears to be that, then, with respect, we are unable to agree with the
same.
E As a result of the above discussion, this appeal is allowed and the
impugned order passed by the High Court is set aside resulting in restora-
tion of the order of eviction made by the Rent Controller and affirmed by
the appellate authority. The respondent will also pay cost to the appellant.
Counsel's fee Rs. 3,000.

V.P.R. Appeal allowed.