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M.P. Bansal and anr. Vs. the District Employment Officer, Pathankot - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2262 of 1981
Judge
Reported inAIR1985P& H251
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 2, 11, 13(2) and 19; Indian Contract Act, 1872 - Sections 23; Code of Civil Procedure (CPC), 1908 - Sections 20
AppellantM.P. Bansal and anr.
RespondentThe District Employment Officer, Pathankot
Cases ReferredIn Arjan Singh Chopra v. Sewa Singh
Excerpt:
.....- & h) and may be in a few other cases as well. laxmi devi (1971)73 pun lr 86, wherein it was held that 'building' as defined in the act, includes part of a building as well and in order to determine whether the building is a residential or non-residential one the fact that the portion let out forms part of a residential building or that the main building is situate in a residential locality, will be irrelevant if there is evidence to show that the portion leased out is being used solely for the purposes of business or trade. various other provisions of the act like cutting or withholding of any amenities or failure to repair a building etc......the petitioners contended that the premises can be treated non-residential if used solely for the purpose of business or trade. the office of the district employment officer is neither business nor trade. the premises shall, therefore, be treated residential while being used as office of the district employment officer. another point argued was that the premises in dispute having been constructed for residential purposes, the same shall continue to be residential for purposes of the east punjab urban rent restriction act (hereinafter 'the act') in the absence of an order of the rent controller under s. 11 thereof. reliance was placed on janak kundara v. central board of works education, ilr (1981)2 punj and har 90. a contrary view has been taken on this point in jagan nath v. sangrur.....
Judgment:

J.M. Tandon, J.

1. The District Employment Officer (respondent) is in occupation of the premises in dispute in Pathankot since before its purchase by the petitioners in August, 1975. The petitioners filed ejectment application in January, 1978, seeking ejectment of the respondent on the ground of personal requirement. The Rent Controller upheld the plea of the petitioners and directed the ejectment of the respondent. The order of the Rent Controller was assailed in appeal which was allowed by the appellate Authority, Gurdaspur. The plea of personal requirement of the petitioners was negatived, order of the Rent Controller set aside and the ejectment application dismissed. The petitioners have challenged the order of the appellate Authority in the present revision.

2. The revision was listed for hearing before me for arguments. The learned counsel for the petitioners contended that the premises can be treated non-residential if used solely for the purpose of business or trade. The office of the District Employment Officer is neither business nor trade. The premises shall, therefore, be treated residential while being used as office of the District Employment Officer. Another point argued was that the premises in dispute having been constructed for residential purposes, the same shall continue to be residential for purposes of the East Punjab Urban Rent Restriction Act (hereinafter 'the Act') in the absence of an order of the Rent Controller under S. 11 thereof. Reliance was placed on Janak Kundara v. Central Board of Works Education, ILR (1981)2 Punj and Har 90. A contrary view has been taken on this point in Jagan Nath v. Sangrur Central Co-operative Bank Ltd. (1980)2 Ren C. J. 672, wherein it has been held that the expression 'building' as defined in S. 2(a) of the Act means any building or part of building let out for any purpose whether being actually used for that purpose or not. Consequently, unless the building is let out, it will not be governed by the provisions of the Act. The provisions of S. 11 of the Act do not debar the owner of a building to let out the building for non-residential purposes though it may initially have been constructed for residential purpose. Therefore, a building which, though residential, is let out for commercial purpose, namely, for running banking business, would be non-residential after it is let out.

3. Keeping in view the conflict in the two Single Bench judgments referred to above, the case was sought to be referred to a larger Bench. It is how this case has come up before us.

4. The points that have arisen for consideration in this case are:

(a) Whether a building which is constructed or used as residential on being rented either in whole or in part will remain residential or not if let out for non-residential purpose in the wake of S. 11 of the Act.

(b) Whether the running of the office of District Employment Officer is a business or trade in terms of S. 2(d) of the Act.

5. The terms 'non-residential building' and 'residential building' are defined under S. 2(d) and (g) of the Act which read:

'2(d). 'Non-residential building 'means a building 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 into a non-residential building.,.

6. Section 11 of the Act deals with the conversion of a residential building into a non-residential building and it reads:

'No person shall convert a residential building into a non-residential building except with the permission in writing of the Controller '.

7. The first point formulated above came up for consideration in Kamal Arora v. Amar Singh, (1980)1 Ren CR 530(P. & H). The learned Single Judge made the following observations:--

'Any agreement will be unlawful under S. 23 of the Indian Contract Act, 1872, if it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law. Admittedly, the use of residential premises for running a school etc. in the Union Territory of Chandigarh is forbidden by law and is of such a nature that, if permitted, it would defeat the provisions of the law. Moreover, no such permission as contemplated by S. 11 of the Act was even taken by the landlords from the Rent Controller as to covert a residential building into a non-residential building. In these circumstances, in law, the residential premises will remain the same, though the same are being used by the occupier for non-residential purposes. The provisions of the Rent Act are to be interpreted keeping in view the provisions of the other statutes dealing with the matter and an effort will always be made to give a harmonious construction without doing any violence to the language used therein. If the definition of the word 'building' and the word non-residential building' and the provisions of S. 13(2)(ii)(b) are read together it is quite clear that the nature of the building cannot be determined by its use at the time of the application of ejectment as contended by the learned counsel for the petitioner. Its user at that time will be relevant for a limited purpose. The tenant may not be liable to ejectment on the ground that he has used building for a purpose other than that for which it was leased if the land-lord has consented to the same in writing. Under any circumstances, it cannot change the nature of the building from residential to non-residential without the prior permission is required to convert a residential building into non-residential without the prior permission of the Rent Controller under S. 11 of the Act. Moreover, under S. 11 of the Act, permission is required to convert a residential building into non-residential use and not vice versa. From this the intention of the Legislature appears to be that if the premises are admittedly residential one, for all intents and purposes, the same cannot be converted into non-residential building without the prior permission of the Rent Controller and if this provision is violated, the penalty is provided under S. 19 of the Act which reads:....................................'

8. A similar view has again been expressed by the learned Single Judge in Tara Chand v. Sashi Bhushan Gupta, (1980) 1 Ren CR 718: (Air 1980 Punj & Har 302), Jagan Nath v. Sangrur Central Co-operative Bank Ltd. (1980)2 Ren CJ 672(P. & H) and may be in a few other cases as well.

9. A contrary view has been expressed on this very point in Rattan Lal v. Laxmi Devi (1971)73 Pun LR 86, wherein it was held that 'building' as defined in the Act, includes part of a building as well and in order to determine whether the building is a residential or non-residential one the fact that the portion let out forms part of a residential building or that the main building is situate in a residential locality, will be irrelevant if there is evidence to show that the portion leased out is being used solely for the purposes of business or trade. It has again been held in Jagan Nath's case (supra) that the expression 'building' as defined in S.2(a) of the East Punjab Urban Rent Restriction Act, 1949 means any building or part of building let out for any purpose whether being actually used for that purpose or not. Consequently, unless the building is let out it would not be governed by the provisions of the Act. The provisions of S. 11 of the Act do not debar the owner of a building to let out the same for non-residential purpose though it may initially have been constructed for residential purpose. Therefore, a building which, though residential, is let out for commercial purpose, namely, running a banking business, would be non-residential after it is let out. A similar view has been expressed in Chattar Sain v. Jamboo Parshad, 1965 Cur LJ 143 (Punjab), wherein it has been held that the expression 'building', non residential building 'or residential building', used in the Act, applies to a building which is let. The act does not concern itself which property residential or otherwise which is occupied by an owner himself, and which is not in possession of tenants. No provisions of the Act appear to apply to such a property. In the case of such property no question of fixation of rent or eviction can, obviously, arise. Various other provisions of the Act like cutting or withholding of any amenities or failure to repair a building etc. etc. cannot also possibly apply to property which is occupied by the landlord himself. If this is the correct reading of the Act, then it follows that S. 11 cannot apply to any property, which is not occupied by a tenant, and an owner of such property can convert it to any use that he likes without the permission of the Rent Controller. It has been further held that the language of S. 11 can only mean, that where the tenants are in possession of a 'residential building', it cannot be converted into a non-residential building without the permission in writing of the Controller. The ratio of Chattar Sain's case (supra) was followed in Faqir Chand v. Smt. Ram Kali (1982)2 Ren CR 404: (AIR 1983 Punj & Har 167) (DB).

10. In view of two Division Bench authorities in Chattar Sain's case and Faqir Chand's case (supra) referred to above, it is obvious that the view taken by the learned Single Judge in Janak Kundra's case (ILR (1981) 2 Punj & Har 90) (supra) and a few other cases detailed above, that a residential building shall continue to be so in the absence of an order of the Rent Controller under S. 11 of the Act irrespective (sic) that it has been let out for non-residential purpose, cannot prevail. The provisions of the Act apply to a building which has been let out. A building or part thereof which has been let out is to be treated as a unit for the purpose of the Act. If such a unit is let out and used solely for the purpose of business or trade, it will be non-residential building. A building or a part thereof initially constructed for residential purpose shall be non-residential building in terms of S. 2(d) of the Act if the same is let out and used solely for business or trade. With great respect for the learned Single Judge, the contrary view expressed in Janak Kundra's case (supra) and a few other cases is overruled.

11. The learned counsel for the petitioners has argued that the running of office of the District Employment Officer is neither business nor trade in terms of S. 2(d) of the Act with the result that the petitioners can get the premises in dispute vacated on the ground of their personal requirement. The learned counsel for the State has argued that the running of office of the District Employment Officer is covered by the term business as used in S. 2(d) of the Act with the result that the petitioners cannot invoke the plea of their personal requirement to get the premises in dispute vacated.

12. In Sarla Devi v. Union of India, (1967) 69 Pun LR 769, the building was in occupation of the Income-tax Department which was sought to be vacated by the landlady on the ground of personal requirement. The learned Single Judge holding that the building is non-residential, made the following observations:

'The only other argument urged by the learned counsel for the petitioner is that the activity of the Income-tax Department in maintaining an office in the demised premises is not 'business' as that word is used in S. 2(d) of East Punjab Act 3 of 1949. In this respect he refers to, as was done before the Appellate Authority also Badrinarayan v. Excise Commr. Hyderabad, AIR 1962 Andh Pra 382, in which the learned Judges held that the Government in obtaining the abadkari revenue or in collecting revenues from other sources cannot be said to be carrying on business within the meaning of S. 20(b) of the Code of Civil Procedure, but the language used in S. 2(d) of East Punjab Act 3 of 1949 is not exactly the same. What is to be seen under S. 2(d) of that Act is whether the demised premises are being used solely for the purposes of business. It depends then upon the meaning of the word 'business'. In the Shorter Oxford Dictionary the word business is given, among others, these meanings. 'The state of being busily engaged in anything that about which one is busy; function occupation. That with which one is concerned at the time. State occupation, profession or trade'. Now it cannot be said that the Income-tax Department maintaining its office in the demised premises is not using it as an occupation or for purposes of its occupation as Income Tax Department. A profit motive need not necessarily enter into every such occupation or for purposes of its occupation as Income Tax Department. A profit motive need not necessarily enter into every such occupation to make it a business as a Department and the same are being used solely by the Department for that purpose and thus are, as stated, a non-residential building within the meaning and scope of that expression in S. 2(d) of East Punjab Act 3 of 1949'.

13. The view on the second point, as detailed above was taken by Chief Justice (as his Lordship then was) Mehar Singh, in Sarla Devi's case (supra). His Lordship had, however, expressed different view on the same point in Civil Revn. No. 339 of 1963 (Punjab State v. Bhagat Singh) decided on 20th December, 1963. The premises in that case were occupied by Election Office of the State Government. The landlord sought the ejectment of the State on the ground of personal requirement. The learned Judge made the following observations:--

'Whatever may be the scope of the meaning of the word 'business' I do not think that Government Office can be described as a business particularly when this particular word 'business' is used in juxtaposition with the word 'trade' in S.2(d). So the conclusion of the Appellate Authority is correct that the premises is not being used solely for the purpose of business. On this finding, the premises is 'residential building' within the scope of S. 2(g)'.

In Arjan Singh Chopra v. Sewa Singh, 1967 Cur LJ 408, same point again came up for consideration and the learned Judge held that the activity which the tenant society carries on in running and maintaining the school, by engaging teachers, as also some of the ministerial staff, to carry on the school, and by carrying on teaching activity, it is doing a business, though it may not be making a profit. Its activity would also come within the scope of the word 'trade'. However, the word business is obviously of much wider connotation and so the activity definitely falls within the scope of that word as used in S. 2(d) of the Act.

14. The activity to be covered by the term 'business' as used in S. 2(d) of the Act, need not be profit oriented. The term 'business' as used in the Act does not admit of narrow interpretation. It has a wider connotation. The activity of the District Employment Officer is an occupation, though not with a motive to make profit. It shall, therefore, be reasonable to infer that the building in dispute is not residential in terms of s. 2(d) of the Act inasmuch as it had been let out and is being used solely for the purpose of running the office of the District Employment Officer.

15. In the result, the revision fails and is dismissed with no order as to costs.

Prem Chand Jain, A.C.J.

I agree.

16. Revision dismissed.


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