Mohanabai Wd/O Ramratan Rathi And ... vs Khairatilal Khadakram Panjabi ...
2004 Latest Caselaw 1370 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. By this petition under Article 226 of the Constitution of India, the petitioners - Landlords challenge the Order dated 19-11-1991 passed by the Resident Deputy Collector, Akola, in appeal and also the original Order dated 9-5-1989 passed by the Sub-Divisional Officer, Akot, rejecting them permission to terminate the tenancy of present respondents. The petitioners filed application on 7-6-1983 for permission to terminate said tenancy on the ground that the respondent is habitually irregular in payment of rent, that he has sub-let the premises and that there is change of user. The suit premises are located at Kasbe Akot, To. Akot, District - Akola, a portion in the South-West Corner on the ground floor with a Hall and Varhanda which was let out to the present respondent No. 1 vide Rent Note dated 31-3-1950 in the name of Kundanlal. The premises were let out for running a Khanawal (Eating House) which was started in the name and style of Punjab Mutton Khanawal but thereafter the respondents started one Wine Bar by name Punjab Wine Bar. It is the case of the petitioners that the premises was let out for use as Khanawal and by starting Wine Bar, there is change of user. It is also stated that though the petitioners objected to the change of user as "Wine Bar". Respondent No. 1 as also the State Government authority permitted such user. Respondent No. 1 filed written statement and denied all these allegations. During the pendency of proceedings before the Rent Controller and vide Sale Deed dated 3-3-1988, the petitioner sold the premises to petitioner No. 2 and this was accordingly communicated to respondent No. 1 who started paying rent to petitioner No. 2 from March 1988. The said petitioner also joined as applicant No. 2 before the Rent Controller on 25-3-1988. Petitioner No. 2 examined himself before the Rent Controller and examined one witness as also Excise Inspector in support of his case. Respondent No. 1 examined himself. The Rent Controller thereafter delivered the Order on 9-5-1989 and rejected the application on all counts. Aggrieved by this order, the petitioners filed appeal before the appellate Court, but on 19-11-1991 the appellate authority also dismissed the appeal. Both these orders are challenged in the present petition.

2. Heard Shri Kaptan, Advocate for the petitioners and Shri Mehadia, Advocate for respondent No. 1.

3. Shri Kaptan contended that the Order shows total non application of mind and the Rent Note specifically mentions the purposes for which it was let out and as such, the user for the other purpose constitutes change of user. He further pointed out that Wine Bar is required to be started after necessary licence and permission from authorities in accordance with the provisions of Bombay Prohibition Act and by taking recourse to various provisions of said Act, he stated that a Wine Bar becomes a common drinking house and any violation of provisions of Bombay Prohibition Act is punishable Under Section 68 thereof. He, therefore, contends that it is proved on record that there is change of user. He states that the tenant had admitted in cross-examination that when he moved for permission Under Bombay Prohibition Act, the landlord had opposed that permission. Insofar as the ground of subletting and habitual default are concerned, as it has come on record that respondent No. 1 entered into a partnership for the purposes of Wine Bar, advocate for the petitioners has not seriously pressed this ground. Insofar as ground under Clause 13(3)(ii) of C.P. & Berar Letting of Houses and Rent Control Order, 1949, (hereinafter referred to as the Rent Control Order) about habitual default is concerned, the advocate for the petitioners stated that there is no schedule of payment of rent filed on record before the lower authorities and hence 'he is not in a position to substantiate said ground.

4. Shri Mehadia, Advocate for the respondent No. 1 stated that original landlord Mohanabai petitioner No. 1 never objected before the licensing authority and further stated that it is only an additional facility which has been provided Under suit premises by the tenant. By relying upon the judgment in the case of Joseph Parakal v. Union of India, reported at 1997 Kerala Law Times 417 and also a judgment of this Court in the case of Khubiram v. Resident Dy. Collector, Amravati, reported at 2004 (3) Mh. L. J. 953, he contends that grant of such additional facility does not constitute change of user and also there has to be some injury or destruction to the premises by such change of user in order to enable landlord to claim permission on that count. He also relies upon the admission given by Mahan Anantrao Asakra on 16-2-1989 though Wine Bar and Mutton Khanawal are located in same premises.

5. After hearing both sides and also perusing the impugned orders, it is seen that the Rent Controller has not applied the mind at all to the dispute which was raised before him. The Rent Controller has in one line observed that the landlord has failed to prove his case and non-applicants have proved their claim. He has further observed that application as filed is not tenable as it is not signed by petitioner No. 2 i.e. subsequent purchaser. He has further held that according to him, there is no subletting or change of user of suit premises. The perusal of appellate Order reveals that the appellate authority has considered this aspect of change of user in para 5 of its order and it has recorded a finding that it is not the case of landlord that the tenant has totally closed his business of Khanaval and has started Wine Bar in the suit premises and the business of Wine Bar has been started as an additional business which does not amount to change of user. Thus, both the authorities have not considered the provisions of Clause 13(3)(iv) of the Rent Control Order which reads as Under:

"That the tenant has used the house premises or any part thereof for a purpose other than that for which it was leased."

The reliance upon the judgment of this Court in 2004(3) Mh. L. J. 953, by respondent - tenant is misconceived. There it appears that the tenant was already having a business of hotelling and to addition he started the Pan shop and exhibition of Video show. This Court has held that it is not change of user at all. In para 19, the relevant term of rent agreement between the parties is mentioned and that term stated that the tenant was at liberty to use the block for his business purposes only. In para 24, this Court has found that there was no clause prohibiting the use of tenanted premises for any other purposes than one for which it was let out. Thus, this ruling does not assist the respondent - tenant, at all.

6. Advocate for respondent No. 1 has placed reliance upon the ruling in the case of Mohan Lal v. Jai Bhagwan, reported at (1988) 2 SCC 474. In this case, the premises were let out for business of English liquor vend and subsequently the business of General merchandise was started in it and on the facts of the case, the Apex Court has held that it did not constitute change of user. The relevant clause of the Rent Note read that the tenant will run the business of English liquor vend in the shop - will do sale of liquor. The Apex Court, has found that the building was rented for purpose of carrying on the business and using of building for another business, it will not in any way impair the utility or damage the building and this business can be conveniently carried on in the said premises and there was no nuisance created. In para 9, the Apex Court has held that in one sense it can be called an allied business in the expanding concept of departmental stores. The advocate for petitioners states that facts accruing in the present case before this Court, are totally distinct and its converse will not hold good.

7. Here it is apparent, that it is not open to anybody to start a Wine Bar at any place. The provisions of Bombay Prohibition Act, prescribes a procedure thereof and the premises are required to be approved, by the excise authorities and for that purpose no objection of landlord is also required. Further, the business is required to be carried in accordance with terms of licence and in ordinary contract between, landlord and tenant, such a user is not possible. In the above ruling before the Apex Court, the premises were let out for carrying on the business of English liquor vend. Here, the premises were not let out for any such controlled business and the business has been subsequently started by the tenant. The business of Wine Bar, therefore, cannot be called as an allied business insofar as business of respondent No. 1 of running Khanawal is concerned.

8. The Advocate for the petitioners has also relied upon two more rulings in support of his contention where the premises are let out for particular purpose, its use for some other purpose is change of user. In the case of M. Arul Joshi v. Lajja Bal, reported at AIR 2000 SC 7722, the premises were let out for carrying on his business dealing in Radios, cycles, fans, clocks and steel furniture and for non-residential purposes with express rider that tenant shall not carry on any other business than the above said business. In para 10, the Apex Court has observed as under:

"10. Having heard learned counsel for the parties in our considered view the case cited on behalf of the appellants were all those where there was no specific clause restricting the use of the tenanted accommodation. On the other hand, in the case in hand, there is specific prohibition clause in the rent deed. In the present case there is specific clause which states "shall be used by the tenant only for carrying on his own business... and for the tenant, shall not carry on any other business than the abovesaid business." By the use of the words 'only' with reference to the tenant doing business coupled with the last three lines, namely, "the tenant shall not carry on any other business than the abovesaid business", clearly spells out the intend of the parties which restricts the user of the tenanted premises, only for the business which is stated therein and no other. In order to meet this, learned counsel for the appellant referred to section 108(o) of the Transfer of Property Act and language of section 10(2)(ii)(b) which are similar hence he submits interpretation has to be given in a broader perspective, that is the use of building by the tenant should not be such as to damage it or diminishes its value and restriction if any could be that if it was given for business it should not be used for residential purpose and vice versa. We have no hesitation to reject this. If such an interpretation is given, it would make any specific term of a valid agreement redundant. Once parties enter into a contract then every word stated therein has to be given its due meaning which reveals the rights and obligations between the parties. No part of the agreement or words used therein could be said to be redundant. Such restriction could only be if any statute or provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, specifies, which is none. Nor we find any restriction by Section 108 of the Transfer of Property Act. In fact, section 108 of the Transfer of Property Act starts with the words "in the absence of a contract or local usage to the contrary". In other words, it permits contract to the contrary mentioned Under that Section."

It has further found in para 11 as Under :

"So, we come to the conclusion that use of the words in the rent-deed 'not to use it for any other purpose', it has to be given effect to and hence Section 10(2)(ii)(b) has to be interpreted to mean that use of building shall not be for a purpose other than that for which the shop was given. There is specific clause restricting its user thus it has to be used for the purpose given and no other."

Thus, when there is a specific clause restricting the tenanted premises, the tenanted premises are to be used for the purposes for which they are let out and for no other purpose.

9. In the case of Goa Urban Co-op. Bank Ltd. v. Noor Mohd. Sheikh Mussa, reported at 2004(4) Mh. L. J. (SC) 689 = (2004) 6 SCC 166, the premises terms were let out to a Bank for functioning of its office. The Bank started using those premises for godown. In para 28, the Apex Court has observed thus:

"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 deposits are received, cheques cashed or monies lent and includes any place of business where any other form of business referred to in Sub-section (1) of Section 6 is transacted. A banking company cannot open a new place of business in India without obtaining the prior permission of 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 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 aspect. The 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 Reserve 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 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 Navelkar Building. The suit premises ceased to be occupied as an office and were being used as a godown, which was a different purpose than the one identified in the lease deed."

The Apex Court has found that there is change of user which entitles the landlord to claim eviction of tenant on that ground.

10. In view of this background, it is clear that the Rent Note in the present case specifically mentions that the premises were let out for running Khanawal i.e. eating house. In his cross-examination, respondent No. 1 has admitted the Rent Note dated 31-3-1950 and it contains a stipulation that it shall not be used for any other purpose. He has stated that the premises were taken on rent for starting Khanawal i.e. eating house. He has further admitted in cross examination that when he applied for permission to start Wine Bar, he did not obtain written permission from the then landlady i.e. Mohanabai and Mohanabai has forwarded notice to Excise office and police authorities for not giving licence to him. He has further admitted that he also received notice from Mohanabai mentioning that he should not obtain the licence for Wine Bar. In view of this material available on record, it is clear that the issue is squarely covered by the later two judgments i.e. AIR 2000 SC 1122 and (2004) 6 SCC 166, in which similar conditions are construed. Insofar reported judgment of this Court is concerned, there was no specific condition 'prohibiting user for any other purpose.

11. The perusal of Clause No. 13(3)(iv) of Rent Control Order permits the landlord to claim eviction of tenant if he shows that the tenant has used house premises or part thereof for the purposes other than for which it was leased. Thus, it is clear that as the premises are being used for running a Wine Bar, the tenant has used the premises for a purpose other than that it was leased and therefore, the petitioners are entitled to grant of premises as contemplated by section 13(3)(iv) of the Rent Control Order. It is also apparent, that the Rent Controller as also the appellate authority have not considered this aspect of the matter and the impugned orders, therefore, show non-application of mind resulting in failure of exercise of jurisdiction available to them.

12. Hence, the order dated 9-5-1989 passed by the Rent Controller, Akot in R. C. No. BRA-13(3)/AKOT-20-82-83 and the Appellate Order dated 19-11-1991 passed by the Resident Deputy Collector, Akola, in Revenue Appeal No. BRA-13(3)/Akot/402/88-89 are hereby quashed and set aside. It is held that the petitioners are entitled to grant of permission to terminate tenancy of respondents on the ground of change of user as per Clause 13(3)(iv) of the Rent Control Order. Accordingly, said permission is granted to the petitioners. Rule is made absolute in above terms .There shall be no Order as to costs.