High Court of Delhi was dealing with petition filed under Article 227 impugns the order dated 4th October, 2021 passed by the Rent Control Tribunal (RCT), Delhi whereby the appeal filed on behalf of the petitioner (‘tenant’) against the order dated 7th October, 2013 passed by the Additional Rent Controller (ARC) has been dismissed.
Brief Facts:
In this case the subject property was let out by landlord, the predecessor-in-interest of the respondents, to the tenant in the year 1976. While no written agreement was executed between the parties at the time of the inception of tenancy, it was stated in the eviction petition that subject property was let out for commercial purposes, for running of a shop for selling biscuits and confectionary items. However, the tenant converted the user of the shop for manufacturing bakery items and installed a bhatti along with one chimney without the written consent of the landlord. The installed ovens were emitting excessive smoke and heat, and creating polluting and nuisance, leading to the subject property becoming inhabitable and badly damaged. The landlord sent the tenant a notice under Section 14(5) of the Delhi Rent Control Act, 1958 to stop the said misuse, however the misuse did not stop immediately or within one month of the said notice being served. The landlord filed the eviction petition under Section 14 (1)(c) of the DRC Act in 1996 in respect of the subject property on the grounds that the subject property was being used for a purpose other than for which the said property was let, and such misuse was creating a public nuisance, damage to the subject property and was detrimental to the interest of the landlord. The eviction petition was allowed vide order dated 7th October, 2013 passed by the ARC. The aforesaid judgment was challenged by the tenant by way of an appeal under Section 38 of the DRC Act, which was dismissed. The landlord died during the pendency of the eviction petition.
Rent Controller Tribunal’s Observations:
The Tribunal found that the non-filing of amended memo of parties was merely a procedural formality since the application under Order XXII Rule 3 of the Code of Civil Procedure, 1908 had been signed by all the legal representatives of the landlord. Court stated that even if certain legal heirs of the landlord had not filed the eviction proceedings, since, they had not objected to the eviction petition, the eviction petition would not stand abated. Court observed that as per the evidence of the landlord the tenants had misused the subject property as the subject property was let out for running the bakery shop and not for manufacturing of bakery products. Tenant’s witness in his cross-examination had admitted that he had installed one bhatti and one chimney and while working the bhatti smoke gets spread. Court found that there was no merit in the contention of the tenant that manufacturing of bakery items would not convert the commercial use into industrial use. The manufacturing of bakery products with the use of ovens and chimneys was an industrial process and not just commercial activity. The tenant did not stop the misuse of the property despite notice under Section 14(5) of the DRC Act.
Petitioner’s Contention:
The counsel for the petitioner submitted that running of a shop for selling bakery products would necessarily include having a manufacturing facility at the subject property for the manufacture of bakery products. Even if there was any misuse, it was only in one of the two shops that comprised the subject property. It was submitted that for eviction under Section 14(1)(c) of the DRC Act, the tenant has to misuse the entire premises, whether it is a building or a part of a building, let out to him. It was submitted that under Article 227 of the Constitution of India, the Courts can exercise their discretion when the order of a Tribunal is violative of fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice.
Respondent’s Contention:
Learned Counsel for the respondent supports the impugned order passed by the ARC as well as the order passed by the RCT. It was submitted that the failure of the tenant to comply with the notice issued by landlord for stoppage of the user has to be done within one month of the date of service of notice and not as on the date of passing of the eviction order.
HC’s Observations:
After hearing both the sides Court found that that the subject property was given for the commercial use for selling bakery products. The said subject property could not be used for the purposes of manufacturing bakery products without the consent of the landlord as that would amount to a user other than the purposes for which the property was let out.
HC relied upon the case of Ram Gopal Vs. Jai Narian & Ors where SC has clarified that even the extent of installing an atta chakki and oil kohlu, would amount to installation of machinery to manufacture. This Court in Ram Saroop has clearly stated that there is a distinction between commercial purpose and industrial purpose. The Court in this case held that “there is a distinction between “commercial purpose” and “industrial purpose”. The former involves an element of exchange or buying and selling, while the latter involves an element of manufacture. Whether a particular activity is commercial in nature or industrial in nature has to be decided by considering the nature of the particular activity in question in each case.”
Court found that what was envisaged in the tenancy at hand was that the shops would be used for selling bakery products. In the garb of selling bakery products, the tenant could not have installed a chimney and a bhatti for manufacturing of bakery products.
Court found that the ARC has returned succinct findings to the effect that smoke used to come out from the bhatti when it was functional and complaints had been launched by a number of residents of the locality, wherein the subject property was located, to stop the nuisance. The ARC also found that the subject property had developed cracks and the upper portion of the said property was inhabitable because of the heat and smoke generated by the bhatti. The Court stated that the misuse by the tenant was causing public nuisance, damage to the subject property, and was detrimental to the interest of the landlord are neither vague nor unclear so as to warrant interference either by the RCT or the Court.
HC Held:
After evaluating submissions made by both the parties the Court held that “the tenant converted a commercial tenancy into an industrial/manufacturing one. There is no merit in the submission of the counsel for the tenant that change of user from selling of bakery products to manufacture of bakery products would not amount to misuse of the subject property under Section 14(1)(c) of the DRC Act. The Court finds no merit in the submission of the counsel for the tenant that the misuse was only in part of the subject property, and therefore, the order of eviction under Section 14(1)(c) of the DRC Act could not be passed.”
Bench: Hon'ble Mr. Justice Amit Bansal
Case Title: Dev Raj v. Saroj Singhal (Deceased) Through Her Lrs. & Ors.
Case Details: CM(M) 1132/2021 & CM Nos.44410/2021 & 44413/2021
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