THE GOA URBAN CO-OPERATIVE BANK LTD.versusNOOR MOHD. SHEIKH MUSSA AND ANR.

A             THE GOA URBAN CO-OPERATIVE BANK LTD.
                                        v.
                 NOOR MOHD. SHEIKH MUSSA AND ANR.

                                  JULY 5, 2004

B                                                   ·~
                 [R.C. LAHOTI, CJ. AND ASHOK BHAN, J.)

         Rent Control and Eviction :

         Goa, Daman & Diu Buildings (Lease, Rent and Eviction) Control Act.
C 1968-Section 22(2}(b)(ii)-Premises let out to a bank for use as 'office'-
    Use of. as 'godown' for storage of records and setting up its office in
    another building-Eviction-Permissibilily of-Held: Shifting of the
    activities from office purpose to godown purpose is a change of~se of
    premises-It is not shifting of the business from one trade to another
D   trade-Also the bank did not obtain necessary permission from the Reserve
    Bank ofIndia to carry on its banking activities at the suit premises-Hence,
    tenant liable to be evicted-Banking Regulation Act, 1949-Section 23.

         Words and Phrases :
E
         'Office', 'Godown', Warehouse', 'Bank', 'Business', 'Building' and
    for any other purpose '-Meaning of

         The question which arose for consideration in this appeal was
    whether the use of the premises as a 'godown' for storage of records
F   alone when it is let out for use as 'office', amounts to putting the
    premises to a different use by tenant than the one for which the
    premises were let out and the tenant is liable to be evicted in terms of
    Section 22(2)(b)(ii) of the Goa, Daman & Diu Buildings (Lease, Rent
    and Eviction) Control Act, 1968.
G
         Dismissing the appeal, the Court

         HELD : I. I. When it is specified in the lease deed that the
    premises be used for a particular commercial purpose then the change
H   of use of the premises falling in another category of purpose would
                                       902
     GOA URBAN CO-OP. BANK LTD. v. NOOR SHEIKH MUSSA 903

amount to change of user of the building falling within the four corners A
of Section 22(2)(b)(ii) of the Goa, Daman & D'iu Buildings (Lease, Rent
and Eviction) Control Act, 1968 and the landlord would be entitled to
seek eviction of the tenant for having changed the use of the suit
premises for a purpose other than for which it was let out. [911-D-FI
                                                                        B
      1.2. When the use of the building is identified in the lease deed
as an 'office' it would be taken that the parties had used the expression
'office' in the sense in which the 'office' is understood in common
parlance or as indicated by its dictionary meaning. Considering that
the suit premises were let out for office use, mere storage of the books C
of accounts would not amount to use of premises for office purposes
especially when the appeliant-tenant has admitted that they have
started using the building as a godown and have shifted its business
of banking to another building in the year 1982 and the High Court
has concluded the same and also that it continued to be so used till the
date of filing the eviction petition in the year 1992. Therefore, when D
the building is let out as an 'office' then the same can be used only as
an office and not as a godown where the goods are stored and the
shifting of the activities from office purpose to godown purpose is a
change of use of premises. It is not shifting of the business from one
trade to another trade. 1911-F-H; 914-D-E]                                E

     Des Raj v. Sham Lal, AIR (1980) P & H. 229, approved.

     Black's Law Dictionary; Webster's Encyclopaedic Unabridged
Dictionary of the English Language 1996 Edition; Oxford Dictionary; F
Law Lexicon by Aiyer; Webster's New Twentieth Century Dictionmy, Vol.
I and II, Second Edition and Oxford Dictionary Fourth Edition; Law
Lexicon of British India 1940 Edition and Stroud's Judicial Dictionary
Third Edition, referred to.

      1.3. The Branch office has been defined to mean a place at which G
deposits are received, cheque cashed or monies lent and includes any
place of business where any other form of business referred to in sub-
section (I) of Section 6 of the Banking Regulation Act, 1949 is transacted.
A banking company cannot open a new place of business in India
without obtaining the prior permission of the Reserve Bank of India. H
    904                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A Similarly it cannot change its existing place of business situated in India
    otherwise than within the same city, town or village. In the instant case,
    the appellant had already shifted his branch office for the banking
    activities to another building and it has failed to show that it had the
    necessary permission from the Reserve Bank of India to carry on with
B   its banking activities at the suit premises as well. 1913-C-Fl

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4577 of
    1999

C        From the Judgment and Order dated 15.3.99 of the Bombay High
    Court at Panaji Bench in LP.A. No. 1 of 1999.

         Vijay Hansaria, Dr. Rajeev B. Masodkar, K.L. Taneja and Jayesh
    K.U. for the Appellant.

D       Kailash Vasdev, Prateek Kumar and Ms. Y.D. Khanna for the
    Respondents.

           The Judgment of the Court was delivered by

E        BHAN, J. : Tenant being aggrieved by the order of eviction passed
    against him has come up in the present appedl.

          Under an indenture of lease, Mussa Zaik Usman (Predecessor-in-
    interest of the respondent-landlord) let out a portion admeasuring 47.04 sq.
F   meters on the ground floor of 'Aisha Theatre', Ponda-Margao Road,
    Ponda, to the Goa Urban Coop. Bank Ltd., the appellant therein, for a term
    of two years extendable by mutual consent at a rent of Rs. 200 per month
    (hereinafter referred to as a 'demised premises') Clause (6) of the lease
    specified :

G             "6. The Lessee shall utilise the premises for the functioning of its
              office."

          The appellant shifted its office from the premises at Aaisha Theatre
    to the Navelkar building at the distance of about 100 meters and began to
H   use the demised premises for keeping records. Mussa Zaik Usman on
GOA URBAN CO-OP. BANK LTD:v. NOOR SHEIKH MUSSA [BHAN. J.]               905

15.5.1982 addressed a letter to the appellant that as it had shifted its Branch A
in the newly constructed Municipality building Ponda and the premises
were lying closed and presumably were being used as a godown, he called
upon the appellant to vacate the demised premises. On 29.10.1984 the
landlord wrote another letter to the appellant to vacate the premises and
also stated therein that they would offer alternate premises for use as a B
godown for which purpose the demised premises were being used by the
tenant. In response to the above letter, the Bank wrote to the landlord that
they were willing to vacate the premises occupied by them provided the
landlords offered them alternate space to store the records and furnish a
declaration that the premises which were being vacated would be used by C
them for their bona fide personal use. The appellant gave certain
specifications as per which the building was to be made ready for keeping
the records of the bank.

     On 17.10.1986 the General Manager/Secretary of the appellant
addressed a letter to the landlords that "we are thinking of leaving your D
premises in the Aaisha Theatre without insisting for the alternative
premises suggested by you in the Godown on the back side of your house."
The final decision was to be taken as soon as the premises which were
being .constructed by the appellant were complete and which were expected
to be completed latest by 31.3.1987. It was further stated that in the past E
the Bank had been releasing the premises under its tenancy for self-
occupation of the landlord after obtaining declaration on oath. On 9.7.1987
the appellant wrote another letter in which it was stated :

         "We are pleased to inform you that we have considered your F
         request for vacating 'the premises in Aaisha Theatre Building
         favourably as the same are required by you for self occupation.
         After considering your offer of alternative premises we have
         finally decided not to accept the same as they are not suitable for
         our purpose."
                                                                              G
     The landlords by their letter dated 17.3 .1988 in response to the letter
dated 9.7.1987 gave a declaration on a stamp paper duly authenticated by
a Notary at Ponda. On 4.6.1988 the Bank informed the landlords that it
was not willing to vacate the premises. On 17.4.1987 Mussa Zaik Usman
expired.                                                                      H
    906                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A        On 26.2.1992 the respondent-landlords (hereinafter referred to as '"the
    respondents'') being the successors of Mussa Zaik Usman, put the Bank
    on notice determining the lease and called upon the Bank to vacate the
    premises. The Bank sent a reply to the notice stating that as the workload
    had increased, the Bank had taken additional premises for running of the
B   Branch and in the suit premises records and other materials connected with
    the Ponda Branch were stored.

       The respondents thereafter on 11.2.1993 filed an eviction petition
  seeking the eviction of the Bank under Section 22(2)(b)(ii) and Section
  23(b) of the Goa, Daman & Diu Buildings (Lease, Rent & Eviction)
C Control Act, 1968 (for short "the Act") being Rent Case No. 2 of 1993
  before the Additional Rent Controller, Ponda, seeking the eviction of the
  appellant. Eviction was sought on the following grounds :

             "(i) The premises were not being used for the purposes for which
D                 they were let;

             (ii)   The premises were lying closed for over four months before
                    the institution of the proceedings;

E            (iii) The premises were required by the landlords for their bona
                   fide personal use."

          The appellant filed its written statement denying the contentions
    raised in the petition. The parties examined their respective witnesses and
F   led the evidence. Both the parties examined four witnesses each.

          Rent Controller held that the appellant had changed the use of the
    premises. The premises were being used as a 'godown' and not as an             •
    'office', the purpose for which the premises were let out. The premises
    were lying closed from i 982 to 1993 and therefore the landlord had ceased
G   to occupy them for more than 4 months before the institution of the eviction
    proceedings. The eviction was ordered on these two grounds. The third
    ground of bona fide need for personal use was rejected. The Administrative
    Tribunal set up under the Act set aside the judgment of the Rent Controller.
    The respondents thereafter filed a writ petition in the High Court. The
H   learned single Judge of the High Court reversed the judgment of the Rent
    GOA URBAN CO-OP. BANK LTD. v. NOOR SHEIKH MUSSA [BHAN, J.]             907

    Control Tribunal and restored the judgment of the Rent Controller. The A
    Division Bench of the High Cou11 dismissed the LPA filed by the appellant
    against the order of the learned Single Judge.

         Record ex facie discloses concurred findings on the aspect of the
    purpose for which the premises were let out, i.e. the suit premises were B
    let our for the purpose of 'office' establishment of the appellant and
    regarding shifting of such 'office' establishment of the appellant from the
    suit premises to Narvekar Building from the year 1982. There are also
    concurrent findings that the suit premises were being used by the appellant
    as a 'godown' during the period from 1982 to 1988. The Tribunal refused        C
    to order the .eviction of the appellant from the suit premises solely on the
    ground that since June, 1988 the suit premises were being used for banking
    activities and therefore there was no change in the use of the building of
    the suit premises as on the date of the filing of the eviction petition. High
    Court reversed the finding of the Tribunal and held that once the ground D
    for eviction on account of a change of use is proved then the right of the
    landlord to get it vacated cannot be taken away merely on account of
    subsequent act on the part of the tenant in restoring the use of the building
    for the purpose for which it was originally let out. On facts also the High
    Court set aside the findings of the Tribunal being perverse based on E
    misreading of the evidence that user of the building was restored for the
    original purpose for which it was let out after June, 1988. The High Court
    concluded that the use of the building as a god own had continued upto the
    date of filing of the eviction petition. The High Cou11 further noted that
    the· correspondence between the parties disclosed that the appellant had
    admitted that after the shifting of its office to Narvekar building the suit F
    premises were being required for storing its record and at one point of time
    the_ appellant had planned to shift such records to their own building which
    was under construction at Porvorim. High Com1 took judicial notice of the
    fact that Porvorim is situated in the Taluka of Bardez whereas the town

                 .
    of Ponda, where the suit premises are situated, is miles away from G
                                    .
    Porvorim. It/was held that ifthe appellant could operate its Ponda Branch
    in Narvekar: Building while keeping the records at Porvorim, certainly it
    could not be said that the records kept in the suit premises were of day
    to day use of the appellant bank. High Court concluded that the records
•
    kept in the suit premises did not constitute Banking activities of the H
    908                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.

A appellant.

         The sole question to be decided in this appeal is as to "whether the
    premises let out for use as 'office', as it is commonly understood, can be
    used as a ·godown' for storage of records alone and if it is so used, then
B   does that amount to putting the premises to a different use by tenant than
    the one for which the premises were let out and the tenant become liable
    to be evicted in terms of Section 22(2)(b)(ii) of the Act"?

          ·'Building" has been defined in Section 2(e) of the Act. It means and
C includes any building, or part of a building, which is, or is intended to be,
    let separately for use as a residence or for commercial use or for any other
    purpose, and includes the garden, grounds and out-houses, if any,
    appertaining to such building or part of the building; any furniture supplied
    by the landlord for use in such building or part of the building, but does
    not include a room in a hotel or lodging house.
D
          Section 22(2)(b )(ii) provides that the tenant shall be liable to be




E
    evicted if he uses the building for a purpose other than that for which it
    was leased.

          Under the Act a building can be let out for use as a residence or for
    commercial use or for any other purpose. A building given for 'residence'
                                                                                    -
    can be identified in a lease deed as a house, kothi, villa, palace etc. All
    these terms indicate that the intended use of the building is fat the
    residential purpose. A building given for 'commercial use' can also be
F   variously identified as a shop, restaurant, cinema, hotel, godown etc. 'For
    any other purpose' would include a factory, industry, manufacturing unit
    or some other such use which is not for either residential or commercial
    use. In all such cases different descriptions are indicated of different
    purposes to which a given demised non-residential building can be put to
    use and not to one 'identical purpose' as would be the case with a building
G   given for residential purpose.

          In the present case the building was let out for use as an 'office' as
    is clear from clause (6) of the lease deed. The words 'office' and 'godown'
    have not been defined in the Act. If the demised premises were let out as
H   'office' in the lease deed, it would be presumed that the parties have used
GOA URBAN CO-OP. BANK LTD. v. NOOR SHEIKH MUSSA [BHAN, J.]            909

the word 'office' in the sense in which it is understood in common parlance A
or as given in the dictionary. Similar would be the situation for the
expression 'godown'. The meaning assigned to word 'godown' would be
the one as understood in common parlance or as indicated in the dictionary.

     The word 'office' has various meanings depending upon the context, B
such as holding of an office, office bearer, office of profit or a place in
a building used as a place of business/ or where office work is conducted
for non manual work.

      The term 'Office' when it is used as a place of business or to conduct
office work has been defined in Black's Law Dictionary as "a place for C
the regular transaction of business or performance of a particular service".
In Webster's Encyclopaedic Unabridged Dictionary of English Language,
1996 edition, 'office' is defined as "a room, set of rooms, or building where
the business of a commercial or industrial organization or of a professional
person is conducted; the main office of an insurance company; a doctor's D
office". The Oxford Dictionary defines the term 'Office' to be "a room or
building used as a place of business, especially for clerical or administrative
work".

     'Business' has been defined in Black's Law Dictionary as "activity       E
or enterprise for gain, benefit, advantage or livelihood".

     It also defines the term "Bank" as "institution, usually incorporated,
whose business, it is to receive money on deposit, cash, cheques or drafts,
discount commercial paper, make loans, and issue promissory notes             F
payable to bearer, known as bank notes."

      In Aiyer's Law Lexicon the word "godown" is defined as a 'store',
a warehouse, Webster's Twentieth Century Dictionary', Vol. I, Second
Edition, defines the word 'godown' to mean 'in India, China, Japan, etc.
a warehouse'. In the concise Oxford Dictionary, fourth Edition, the G
meaning of this word is given as 'warehouse in part of Asia, esp. India'.

      'Warehouse' has been defined in Law Lexicon of British India, 1940
Edition, as 'a warehouse is, properly speaking, a building used for the
purpose of storing goods imported at a reasonable rent." According to H
    910                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A   Stroud's Judicial Dictionary, third edition, a warehouse, in common
    parlance, ce1tainly means 'a place where a man stores or keeps his goods
    which are not immediateiy wanted for sale'. In Webster's New Twentieth
    Century Dictionary, Volume II, second edition, it means ··a building where
    wares or goods are stored. as before being distributed to retailers, a
B   storehouse".

           In Des Raj v. Sham Lal, AIR (1980) i> & H 229, the Full Bench of
    the Punjab and Haryana High Court held that where a premises is let out
    to the tenant as a shop and it is silent as regards the purpose for which it
    is let and it is used by the tenant exclusively as a godown then the tenant
C   can be said to have changed the use of the premises and liable to be evicted
    in terms of the provisions of East Punjab Urban Rent Restriction Act, 1949.
    It was observed :

             "This hypothetical discussion is meant to emphasise that where
D            a demised 'building' is identified merely as 'shop', then the same
             can be used only as a 'shop', although various kinds of trade could
             be carried on therein, but ifthe same demised 'building' came to



E
             be used later on exclusively as 'residential building', then that
             would tantamount to the change of user. Similarly, if such a
             demise 'building' was put to use exclusively as a 'godown' for
             the moment assuming that the expression 'godown' connotes a
                                                                                         -
             'building" that is used for the purposes of only stocking provisions
             therein), then that would tantamount to the change of user. The
             reason being that when the demised 'building' is used as a 'shop',
             it is being put to constant use by the lessee which, by implication,
F            ensures its proper upkeep like timely repair, timely white-washing
             etc., but when a building is used as a 'godown', which is merely
             used for dumping goods therein, such an upkeep may neither be
             possible nor, by implication, envisaged as such. A 'godown'
             remains mostly closed, while a "shop' remains mostly open. The
G            premises used as a 'godown' are bound to deteriorate and a
             landlord, if had been informed at the time of entering into the lease
             transaction that the lessee intended to use the demised premises
             described as 'shop', he might not have agreed to enter into the
             said lease transaction Hence, when the demised premises are used
                                                                                     f
H            for a purpose to which having regard to its description as 'shop',
    GOA URBAN CO-OP. BANK LTD. v. NOOR SHEIKH MUSSA [BHAN. J.]            911

            'house' etc. the landlord may not have intended, had the said A
            different purpose, which the lessee had in mind, been made known
            by the lessee to him, then the landlord may not have agreed to
            lease the said building for that purpose (see in this connection Telu
            Ram v. Om Parkash Garg, (1971-73 pun LR I). Hence putting
            to use the demised premises to a purpose, which the given B
            description or identification of the demised building in the rent-
            note did not warrant, would tantamount to the change of user."

         Learned counsel appearing for the parties after due verification
    have confirmed that this judgment holds the field. No decision taking a C
    contrary view was cited before us. We respectfully agree with the view
    taken by the learned judges of the Punjab and Haryana High Court in this
    judgment.

          Letting out the premises for commercial purpose can have different
    colours and hues depending upon the purpose for which it is let out. For D
    example a non-residential premises can be let out for commercial purpose
    for running a shop, office, restaurant, hotel, cinema and godown for storing
    of the goods etc. If it is specified in the lease deed that the premises be
)
    used for a particular commercial purpose than the change of use of the
    premises falling in another category of purpose would amount to change E
    of user of the building falling within the four corners of Section 22(2)(b)(ii)
    of the Act and the landlord would be entitled to seek eviction of the tenant
    for having changed the use of the suit premises for a purpose other than
    for which it was let out. When the use of the building is identified in the
    lease deed as an 'office', it would be taken that the parties had used the F
    expression 'office' in the sense in which the 'office' is understood in
    common parlance or as indicated by its dictionary meaning. Appellants
    have admitted that they have started using the building as a godown and
    the High Court has concluded that the suit premises were used as a godown
    after the shifting of banking activities of the appellant to Narevekar
    Building in the year 1982 and continued to be so used till the date of filing G
    the eviction petition in the year 1992. Considering that the suit premises
    were let out for office use, mere storage of the books of accounts would
    not amount to use of premises for office purpose especially when the
    appellant has admitted that it has shifted its business of banking to
    Narvekar Building. When the building is let out as an 'office' then the same H
    912                SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A can be used only as an office and not as a godown where the goods are
    stored and that would tantamount to change of user.

          It can be examined from another aspect and angle. Under the Banking
    Regulation Act. 1949, banking has been defined in Section 5(b) as
B   ''banking means the accepting, for the purpose of lending or investment,
    of deposits of money from the public, repayable on demand or otherwise,
    and withdrawal by cheque, draft, order or otherwise". A Banking company
    has been defined to mean in Section 5( c) ··as any company which transacts
    the business of banking in India''.

c         Branch or Branch office has been defined to mean in Section 5( cc)
    as follows :

             " 'branch' or 'branch office', in relation to a banking company,
             means any branch or branch office, whether called a pay office
D            or sub-pay office or by any other name, at which deposits are
             received, cheques cashed or moneys lent, and for the purposes of
             section 35 includes any place of business where any other form
             ofbusiness referred to in sub-section (I) of Section 6 is transacted;"

E        Section 6( I) provides that in addition to the business of banking, a
    banking company may engage in any one or more of the business as given
    in clauses (a) to (o) of Section 6(1). Sub-section (2) provides that no
    banking company shall engage itself in any form of business other than
    those referred to in sub-section (I).

F
         Section 23 restricts the opening of new and transfer of existing, places
    of business without obtaining the prior permission of the Reserve Bank of
    India and it provides as follows :

             "(a) no banking company shall open a new place of business in
G                 India or change otherwise than within the same city, town
                  or village, the location of an existing place of business
                  situated in India; and

             (b)   no banking company incorporated in India shall open a new
H                  place of business outside India or change, otherwise than
    GOA URBAN CO-OP. BANK LTD. v. NOOR SHEIKH MUSSA [BHAN, J.]              913

                  within the same city, town or village in any country or area A
                  outside India, the location of an existing place of business
                  situated in that country or area :

             Provided that nothing in this sub-section shall apply to the
             opening for a. period not exceeding one month of a temporary B
             place of business within a city, town or village or the environs
             thereof within which the banking company already has a place of
             business, for the purpose of affording banking facilities to the
             public on the occasion of an exhibition, a conference or a mela
             or any other like occasion."
                                                                                  c
           The appellant had taken the demised premises on rent for the opening
    of its branch or branch office The Branch office has been defined to mean
    a place at which depo_sits are received, cheques cashed or monies lent and
    includes any place of business where any other form of business referred
    to in sub-section (I) of Section 6 is transacted. A banking company cannot D
    open a new place of business in India without obtaining the prior
    permission of the Reserve Bank of India. Similarly it cannot change its


-   existing place of business situated in India otherwise than within the same
    city, town or village. Presuming that the appellant had changed its existing
    place of business within the same city, the question arises "did they have E
    the permission to continue with the banking activities at the suit premises
    which were taken by it for the opening of its branch office"? The appellant
    has not produced any evidence on this apsect. Respondents in their counter
    affidavit in the special leave petition have categorically stated in para 7 that
    "the Bank does not even have the required permission from the Reserve F
    Bank of India to carry on any banking activity in the suit premises." This
    assertion has not been controverted by the appellant in its rejoinder. The
y   building was taken on rent for use as an 'office' in which the appellant
    started transacting its banking activities and continued to do so till it shifted
    its banking activities in the new building at Narvekar Building. The suit
    premises ceased to be occupied as an office and were being used as a G
    godown, which was a Jifferent purpose than the one identified in the lease
    deed.

          The story put forth by the Bank that it had restored its banking
    activities in the suit premises by carrying on pigmy bank accounts and H
    914                SUPREME COURT REPORTS (2004] SUPP. 2 S.C.R.
A taking of electrical bills since I 988 has rightly been discarded by the High
  Court. Even if it is so assumed for the sake of argument, even then the
  appellant has failed to show that it had a valid permission for carrying on
  its banking activities at the suit premises. Appellant had already shifted its
  branch office for the banking activities to Narvekar Building and it has
B failed to show that it had the necessary permission from the Reserve Bank
  of India to carry on with its banking activities at the suit premises as well.
  No other point was urged.

        Learned counsel for the appellant has cited certain judgments to show
  that change of business in a shop from one trade to another does not amount
c to change of user. These judgments are not relevant for determining the
  controversy on the point under consideration. In all these cases the
  premises were let out for use as a shop for a specified trade such as cloth
  or cycle repairs etc. The tenant changed his trade and started using the shop
  for a different trade like dry cleaning or some other such trade. This C.ourt
D held that change. of trade many not amount to change of use of premises
  as the shop continued to be used as a shop. In our opinion, the shifting
  of the activities from office purpose to godown purpose is a change-0fuse
  of premises. It is not shifting of the business from one trade to another
  trade.
E
         For the reasons stated above, we do not find any merit in this appeal
    and the same is dismissed with no order as to costs.

    NJ.                                                      Appeal dismissed.