S.P. Goyal, J.
1. This petition under Section 15 of the East Punjab Urban Rent Restriction Act, 1949(hereinafter referred to as the Act), as applicable to the Union Territory of Chandigarh, has been placed before us on a reference by R. N. Mittal J., vide order dated May 9, 1980.
2. The vexatious question which has eluded authoritative pronouncement so long is as to whether the tenant of a residential building would become liable to ejectment under Section 13(2)(ii)(b) of the Act for using the said building for the purpose other than that for which it was leased, if after the commencement of the lease he adopts one of the professions mentioned in the Schedule to the Act his business. The admitted facts for his business. The admitted facts leading to this controversy are that the demised premises were let out to the respondent for residential purpose in the year 1971 when he was in the employment of the Government as an Engineer. Some time after retirement, he was enrolled as an advocate and then he started using part of the demised premises for the purpose of his profession. Thereupon the landlord filed this petition on January 6, 1978 for his ejectment on the ground that by setting up his office and using a part of the building for his profession, he has used the building for a purpose other than that for which it was leased out and has thus become liable to ejectment. The tenant admitted that he was using the demised premises for his profession and for his residence but disputed has liability to ejctment and pleaded that the said building was a scheduled building within the meaning of Section 2(h) of the Act and as such its dominate purpose continues to be residential. The Ret Controller negatived the plea of the landlord, holding that the dominant purpose of the said building continues to be residential and therefore, there was no perversion of the purpose of the lease. On appeal this finding was affirmed by the Appellate Authority which led to the fling of the present petition by the landlord.
3. When the case came up for hearing before the learned singly Judge, the landlord relied on a Division Bench decision of this Court reported as Telu Ram v. Om Prakash Garg, (1971) 73 Pun LR 1, for the proposition that even the use of a small portion of a residential building for his business by the residential building for his business by the tenant, which has the result to converting it into a scheduled building would render him liable for ejectment for the violation of the provision of Section 13(2)(ii)(b). The learned counsel for the respondent, on the other hand relied on two single bench decisions in Civil Revn. No. 910 of 1972(Tulsi Dass v. Shiv Datt) decided on March 8, 1973(punj) and Civil Revn. No. 44 of 1976(B. S. Kamthania v. Smt Hardial Kaur) decided on November 29, 1979* to controvert the proposition advanced by the landlord. As the decision in Telu Ram's case (supra) was not noticed in the later two decisions, the matter has been referred to a large Bench.
4. It was authoritatively settled by the Supreme Court in Dr. Sewa Singh v. Smt. Rabinder Kaur, 1970 Rent CR 423, that a residential building which is used by the tenant engaged in one or more than one of the professions specified in the schedule to the Act, partly for his business and partly for his residence would be a scheduled building within the meaning of Section 2(h) of the Act. It is also not disputed that the building was let out for a residential purpose but has been converted into a scheduled building since the tenant started using a part of it for his profession as an advocate. Though such was not the situation in Telu Tams's case (1971) 73 Pun LR 1(supra) but after noticing a large number of cases, Harbans Singh, J. (as then was) formulated five categories of cases where the provision of Section 13(2)(ii)(b) would be attracted and the tenant would be liable to ejctment. Under category '(b)' it was held 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 said clause would be attracted Similar views, have been expressed in are cent Full Bench case of this Court reported as Des Raj v. Sham Lal (1980) 82 Puin LR 647(AIR 1980 Punj & Har 229) wherein Tewaita, J., Who spoke for the Bench observed as under:--
'.......For instance, in a case where the demised building is described as 'residential building ' or ' house ' etc., the same had to be used for residential purpose alone, even when in a rent deed it is not further postulated that the demised building has to be used exclusively for residential purpose otherwise even if a small portion is put to use for business purposes by the lessee mentioned in the Schedule, such as lawyers, architects, dentists, engineers, veterinary surgeons and medical practitioner, including practitioners of indigenous systems of medicine, without the express permission in writing of the landlord, the said demised building might be taken out from the category of a 'residential building ' and turned into a 'scheduled building' the consequences of which are extremely grave of the landlord in that while the possession of the residential building can be secured back by the landlord if he establishes a bona fide need of personal occupation, he cannot succeed in getting back the possession of a 'scheduled building ' even on the ground of bona fide personal necessity and the building is lost to the and lord for all practical purpose.'
The matter thus had been authoritatively settled by the Full Bench in Des Raj's case (supra), but the learned counsel for the respondent has urged that the said observation are in the nature of obiter dicta and therefore, not binding on this Bench. That may be so, but in view of the decision of the Full Bench, that when a shop was used for godown it would amount to perversion of the use for which it was let, it is possible to subscribe to the view that even though by partial use of the building for the purpose of his business the residential building is converted into a scheduled building is converted into a scheduled building yet if would not attract the penalty of the said clause because the dominant use of the building continues to be residential.
5. In Tulsi Dass's case (Civil Revn. No. 910 of 1972, D/- 8-3-1973)(Punj)(supra), Mahajan, J. (as he then was) for taking a contrary view observed:--
'...............It is inherent in the profession of a lawyer that he main purpose of the building remains residential. His office does not in fact alter the nature of the building so as to make it a non-residential one. That is why the Legislature did not exclude it from the definition f residential building but termed it as a schedule building so that the landlord cannot evict the tenant on the basis that he requires it for his own use.................'
The fallacy in the above reasoning is obvious because to attract the provisions of the said clauses it is not required that the nature of the building should be changed from residential into non-residential and vice-versa. Again a scheduled building may be a species of the residential building but it is a separate category and the landlord has not right to seek ejectment of a tenant on the ground of his personal requirement from such a building. If according to the decision of the Full Bench in Des Raj's Case (AIR 1980 Punj & Har 229)(supra), a shop when used as a godown would amount to the perversion of its use even though the category of the building continues to be non-residential the conversion of a residential building into a scheduled building would certainly attract the provisions of Section 13(2)(ii)(b) of the Act and render a tenant liable for ejectment. The view expressed in Tulsi Dass's case (supra) therefore, cannot be sustained and has to be overruled.
6. So far as the decision in B. S. Kamthanaia's case (1980) 1 Rent LR 241(Punj & Har)(supra) is concerned, it need not detain us long because no view was expressed in this case on the precise question in hand and the decision proceeds on the ground that the building in dispute was already a scheduled building when the Act was enforced in the Union Territory of Chandigarh where it was situate as the tenant was then using his profession as an advocate.
7. above, this petition is allowed, the impugned judgment set aside and the order of ejectment is passed in favour of the petitioner and against the respondent. The tenant is, however, allowed three months time to vacate the premises I dispute. No costs.
S. S. Sandhawalia, C.J.
8. I agree.
9. Petition allowed.