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Delhi Development Authority Vs. Bawa Raghbir Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 5 of 1971
Judge
Reported in1978RLR201
ActsPunjab Shops and Establishments Act, 1958
AppellantDelhi Development Authority
RespondentBawa Raghbir Singh
Advocates: Keshav Dayal,; Ram Paul and ; Manmohan Singh Sawhney, A
Cases ReferredRam Chunder v. The State
Excerpt:
tenancy - shop - punjab shops and establishments act, 1958 - respondent-plaintiff granted lease of plot for construction of shop and residence - plaintiff let out 1st floor to bank - appellant objected and levied penalty - appellant also threatened to cancel lease - 'bank' place where public freely enters for purpose of doing 'shopping' for money or keeping money - people give or tae away money - 'bank' can be described as 'shop' - running of bank not infringement of covenant. - - this is an important and interesting point, because it is based on the meaning of the word 'shop'.as urged by the learned counsel for the appellant, a shop is normally understood as place where one sells goods and buys goods. of course, if the actual user is not at all shop-like, i......has referred to the definition of 'shop' in the delhi municipal corporation bye-laws where a shop is defined as a building or part of building where articles of food and personal domestic and house-hold use and consumption are sold. i think this definition is entirely artificial and is completely irrelevant for the purpose of this case. the interpretation of the lease in this case has to depend on what is understood by the word shop and not by the manner in which the delhi municipal corporation understands it when it frames its bye-laws. we have to consider what was understood by the general public when it bought lease-hold plots from the improvement trust in delhi. it must not be forgotten when these plots were sold to the public, there was no intimation that there was a.....
Judgment:

D.K. Kapur, J.

(1) Respondent plaintiff was granted lease of a plot in 1941 by Delhi Improvement Trust in Pahar Gunj for construction of shop and residence without specifying which portion would be used as shop. The plaintiff let out 1st floor to a 'Bank' and D.D.A. objected to it and besides levying penalty threatened cancellation of lease. Plaintiff Sued for Injunction which was dismissed by trial Court but was decreed in appeal. D.D.A. then filed R.S.A. High Court held that as the lease did not specify as to which portion or floor was to be used for shops and residence, the lessee could use any portion for any purpose. After giving above facts, judgment para 6 onwards is :-

(2) In the sense that the restriction in this case is only regarding the utilization of the property as shops and residential flat, it must be said that the building cannot be used for any other purpose and it is only a user contrary to this restriction which can lead to conclusion that the convenant has been infringed. The lease is not infringed if there is a residence on the ground floor, first floor, second floor etc. nor is the covenant infringed if there are shops on the ground floor, first floor, second floor etc., The reason for this is that the covenant does not indicate where the shops or residences are to be located. Thus, the lease in the present case is not infringed merely because there is a shop or something similar on the first floor.

(3) I now take up the alternative line of argument on behalf of the appellant, which is that the only permissible user of the building is for shop or residential flat and the use of the property for a bank is not a user either as a shop or as a residence. This is an important and interesting point, because it is based on the meaning of the word 'shop'. As urged by the learned counsel for the appellant, a shop is normally understood as place where one sells goods and buys goods. It is a kind of place where normally consumer goods are sold and, thereforee, it cannot include premises which are used for running a bank, or place where sophisticated commercial activity is carried on, as opposed to dealing in normal day-to-day goods of house-hold utility or personal utility. There may be shops dealing with other things also, but the common feature of shop is that some commodities or goods, may be even valuable commodities of goods are bought or sold. This is a meaning which is quite commonly given to the word 'shop'. The learned counsel has also referred to the Full Bench decision in Ram Chunder v. The State, 1963 P.L.R. 1 wherein Full Bench interpreted the Punjab Shops and Establishments Act, 1958 for the purpose of finding out whether a godown was a shop or a commercial establishment. It was there observed that a shop was a place where goods are ordinarily bought and sold and a commercial establishment was a place wherein organized trade or business was carried on for profit. Although, the Court accepted the meaning of 'shop' in the narrow sense in which it is commonly used, I must not over-look the fact that the judgment was given in the context of the Shops and Commercial Establishments Act, because therein some special statutory definitions are used. In order to interpret contract made in 1941, as is the case here, one must understand the meaning of the word 'shop' and 'residential flat' as understood not by the parties or by the legislature when passing some other law, but by the usage of these words. To my mind a shop is a place where business is carried on. It may be a place where goods are ordinarily sold or even bought, but is does not exclude other places where business is carried on. For example, it is common to refer to a work place as a workshop or indeed there are many other type of shops where goods need not be sold. These may be used for booking agencies, pawn brokers, money-lenders and so on. Such shops are not necessarily selling goods. The word 'shop' is often used to describe places where ordinary goods are sold but also places other business is carried on. Definition in Chamber's Twentieth Century Dictionary. 'is a building or room in which goods are sold a place where mechanics work, or where any kind of industry is pursued a place of employment or activity, esp. a theatre...'. . It is also indicated in this definition that the word is derived from Old English and the etymon is a word meaning 'treasury'. The etymological root is useful when one has to determine the true meaning of a word. A more elaborate definition is given in the Oxford English Dictionary as :-

'Ahouse or building where goods are made or prepared for sale and sold.'

An example is given as a banker's shop which is a bank. The original of this was the portion of a shop of a goldsmith or other tradesmen used for practisting banking. Then, it is also described as a building or room set apart for the sale of merchandise or a building or room set apart and fitted up for the carrying on of some particular kind of handiwork or mechanical industry; e.g. a workshop. It is said the word is now often referred to as a portion of a building or a room in a factory, appropriated to some particular department or stage of the work carried on there. There are some other definitions which need not be referred to. In the Webster's third new International Dictionary, there is also an elaborate series of definitions which show that the word 'shop' may be used to describe a place where goods are ordinarily bought and sold and also for many other purposes including a place where business is carried on. It, thereforee, appears that the word 'shop' can be understood either giving it a narrow meaning or with a larger meaning.

(4) As the present is a case of a restrictive covenant I hold that it must be strictly construed and there appears to be no reason why a narrow meaning should be given. I cannot understand why the word 'shop' should be used in a narrow sense when a long-term lease was granted, if it was intended that it should be used for only a very limited type of purposes. Generally, there are similar leases all over the country, and it would bring about chaotic conditions if the user of those building was unusually restricted merely because the word 'shop' was used in the lease. For instance, in many modern cities there are shopping centres in which buildings which are described as shops are auctioned at substantial prices to the public in general, and it would be really harsh if those shops could only be used for the limited purpose for selling consumer goods and not for other business purposes. Of course, if the actual user is not at all shop-like, i.e. not as a place where activity is carried on with the public it cannot be a shop. The case I am dealing with is the case of a bank. I have to find out whether the running of a bank is the running of a shop or is not the running of shop.

(5) In my view, a bank is a place where the public freely enters for the purpose of doing what may be described as 'shopping' for money or keeping money. People give money or taken away money, if a bank is considered as a dealer in money in this sense, I think a bank can easily be described as a shop. thereforee, the running of a bank does not appear to be an infringement of the covenant.

(6) The learned counsel for the Authority has referred to the definition of 'shop' in the Delhi Municipal Corporation bye-laws where a shop is defined as a building or part of building where articles of food and personal domestic and house-hold use and consumption are sold. I think this definition is entirely artificial and is completely irrelevant for the purpose of this case. The interpretation of the lease in this case has to depend on what is understood by the word shop and not by the manner in which the Delhi Municipal Corporation understands it when it frames its bye-laws. We have to consider what was understood by the general public when it bought lease-hold plots from the Improvement Trust in Delhi. It must not be forgotten when these plots were sold to the public, there was no intimation that there was a restration regarding the kind of shop that could be run. I am, thereforee, of the view that the contentions that a bank cannot be run in a shop without changing the user is misplaced and must be rejected outright.


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