Asha Rani And Ors. vs Satinder Kumar
2009 Latest Caselaw 1538 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CM(M) 471/2007


%                                    Date of Decision : 21st April, 2009


ASHA RANI AND ORS.                                ..... Petitioner
                                     Through:     Mr. Manish Kohli,
                                                  Advocate with
                                                  Mr. Manjit Pathak,
                                                  Advocate

                                     Versus

SATINDER KUMAR                                    ..... Respondent
                                     Through:     Mr. Ranvir Singh,
                                                  Advocate with
                                                  Mr. Amarjeet Rai,
                                                  Advocate


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes



                              JUDGMENT

MANMOHAN, J (Oral)

1. Present petition has been filed under Article 227 of

Constitution of India challenging the order dated 29th January,

2007 passed by Additional Rent Control Tribunal (hereinafter

referred to as „Tribunal‟) whereby petitioners‟ appeal against

order dated 26th February, 2005 allowing respondent-landlord‟s

eviction petition under Section 14(1)(c)&(j) of Delhi Rent Control

Act, 1958 (hereinafter referred to as „DRC Act‟), was dismissed.

2. Briefly stated the facts relating to the present petition are

that on 6th January, 1966 Mr. Jaktar Singh, the predecessor-in-

interest of petitioners took on rent, premises bearing Shop No.

12, Old Market, Ramesh Nagar, New Delhi (hereinafter referred

to as „tenanted premises‟). The respondent-landlord on 22nd

December, 1999 issued an eviction notice to petitioners-tenants

on the ground that they were misusing the tenanted premises. In

the said notice it was alleged that tenanted premises were to be

used for a specific purpose of „Halwai‟ but premises were actually

being used for running a business of crushing of sugarcane and

fruits of different kinds, which not only constituted a misuse but

was also detrimental to the interest of respondent-landlord. In

the written statement petitioners-tenants took a number of

defences.

3. However, both Additional Rent Controller (in short „ARC‟)

as well as Tribunal have allowed respondent-landlord‟s petition

under Section 14(1)(c) and (j) of DRC Act. The relevant

observations of ARC as well as the Tribunal are re-produced

hereinbelow for ready reference :-

ARC's order :-

"26......However, remaining part i.e. Chapper which is made of cement sheets and residing on iron angles and iron rods which are embedded into the walls of the property cannot be said to be temporary in nature and have definitely cause substantial damage to the property in question. Accordingly, the aforesaid judgment relied upon by the counsel for the respondent is distinguishable on these peculiar facts and circumstances of this case and there is no doubt that the said construction of permanent chapper has caused impairment in the value and utility of the premises seen from the point of view of the landlord as petitioner was only let out premises consisting of shop measuring 8‟,9x16‟ and the verandah in front measuring 9‟3" x 7‟8" as stated in judgment Ex. AW3/2 and the respondents cannot be allowed to thrust upon the landlord a totally new

structure from what he was let out initially and the shop in question has been let out for non residential purposes and accordingly, it would definitely reduced the commercial value and utility of the shop from the point of view of landlord as aforesaid illegal construction not only decreases the aesthetic value of the shop but also decreases the monetary value from the point of view of the landlord. Accordingly, I am of the considered view that the petitioner has been able to prove that respondents have caused substantial damage to the property in question. Accordingly, petitioner has been able to make out a case U/S 14(1)(j) of DRC Act.

xxxx xxxxx xxxxx

28. In view of the aforesaid settled law and the admission of the respondent that they are running the premises in question for selling the fruits juice and cold drinks and also deposition of AW4 who is the witness from Delhi Vidyut Board who has stated that two electricity connections, one is for industrial power with central load of 7.5 H.P. and other for industrial light of 1 K.W respectively and its user was converted on the application of the consumer dated 27.05.93. He has proved the copy of the agreement executed by Jagtar Singh, his affidavit etc. which are EX AW4/1 to EX AW4/3. In EX AW4/3 there is undertaking to DVB given by the predecessor in interest of respondents that he shall use the supply of connection purely for industrial purpose & shall not misuse the same for any other purpose. RW6 has also admitted in his cross- examination that aforesaid two connections were installed in the premises in the year 1993 and he has also admitted that it is correct that they continued depositing industrial light and power bills till about 2 years ago. However, AW2 in his cross-examination has stated that the respondents have started industry in the premises, where they have started crushing the sugar canes, fruits juice and vegetables of different kinds and they have also set up the mini plants for manufacturing ice cream. Nothing has come out in his cross-examination and AW5 has also deposed that the premises in question has been used for crushing sugar canes and nothing has come out in his cross- examination. In his cross-examination he has stated that there is sugarcane machine which is seven feet long attached with the crusher simultaneously cold drinks are also being sold from the shop in question and AW2 in his

cross-examination has stated that I am not aware whether the suit premises is used for Halwai but it is used for running the business of sugarcane juice and fruit juice.

29. RW6 has also admitted that they had been selling the sugar cane juice by crushing long times ago and the said business was closed prior to the filing of the present suit. In these circumstances, it is clear that the respondent is using the premises for crushing the sugarcane juice in the premises in question. RW5 in his cross-examination has stated that there is big sugarcane machine 7 feet long attached with the crusher.

30. No rebuttal evidence has been led by the petitioner and it has also come on record that the respondents had obtained industrial connection in the premises in question somewhere in the year 1993 vide documents EX AW4/1 to EX AW4/3. Accordingly the contention of the counsel for respondent that the juice is being extracted manually is not tenable. In view of the overwhelming evidence on record, the respondent has failed to give any plausible explanation why industrial connection was obtained if they were extracting the juice manually and judicial notice can be taken of the fact that the charges of connection taken for industrial purpose is many times more than that for the commercial or for the residential purpose, no prudent man will take industrial connection when he is not using the same for running of factory and for similar other purpose and the affidavit of the predecessor in interest of the respondent is on record EX RW4/3 wherein he has stated that he will not use the connection in question for any other purpose other than for which it is issued. Accordingly petitioner has been able to prove by overwhelming evidence lead on the record that the respondents are misusing the premises in question for the purpose other than for which it was let out."

Tribunal's order :-

"15. The findings returned form the trial court are borne out from the record. I have gone through the written submissions filed by the appellant including the judgments cited at the bar. Keeping in view the detailed reasons

given by the trial court and the discussion of the evidence which came on record it has been mentioned in the judgment as discussed above, I find no reason to interfere in the judgment of the trial court in view of the provisions of section 38 of the DRC which only empowers this tribunal to interfere with the judgment of the trial court only if, any question of law is raised. Appreciation of evidence can also be gone into provided, the approach adopted by the trial court was erroneous, perverse or any ignorance of the material available on record which is not the case in hand. Hence, the appeal is dismissed with no order as to cost.........."

4. Mr. Manish Kohli, learned Counsel for petitioners-tenants

submitted that though the tenancy was commercial in nature but

the same had not been given for any particular trade. He stated

that petitioners-tenants were at liberty to do any business in the

tenanted premises. Mr. Kohli emphatically denied that the

tenanted premises were let out only for the alleged purpose of

Halwai or for any other specific purpose.

5. Mr. Kohli further submitted that allegations made in

eviction petition were unclear and vague. He stated that

respondent-landlord had failed to specifically allege in eviction

petition as to when, by whom and in what manner petitioners-

tenants or their predecessor-in-interest had violated provisions of

Section 14(1)(c) & (j) of DRC Act.

6. According to Mr. Kohli, sugarcane and fruit juice shop was

a part of or akin to or ancillary to a Halwai shop. He submitted

that changing the user from Halwai shop to a fruit juice or

sugarcane shop would not and could not result in a misuse within

the meaning of Section 14(1)(5) of DRC Act.

7. Mr. Kohli contended that a Halwai shop is a bigger

nuisance than a fruit juice shop. He submitted that change of

user as alleged by respondent-landlord was not a public nuisance.

8. Mr. Kohli relied upon following judgments which are

reproduced hereinbelow :-

A) Bharat Lal Baranwal Vs. Virendra Kumar Agarwal

reported in 2003(1) RCR 178 wherein it has been held as

under:-

"9. Aggrieved against the order of Revisional Court, the respondent filed a petition under Article 226/227 of the Constitution of India in the High Court challenging the order of the Revisional Court. The High Court relying upon the decisions of this Court in Mohan Lal v. Jai Bhagwan 1988(1) RCR (Rent) 444 (SC): 1988 (2) SCC 474 and Gurdial Batra v. Raj Kumar Jain, 1987 (2) RCR (Rent) 455 (P&H): 1989 (3) SCC 441 held that the tenant had not changed the use of the suit premises for a purpose other than the one for which it was let out to him. Mohan Lal v. Jai Bhagwan (supra) was a case arising under the Haryana Urban (Control of Rent and Eviction) Act, 1973 wherein it was held that any purpose which is part of or ancillary or allied to the original purpose will not amount to change of user. In Gurdial Batra's case (supra), it was held that where shop was let out for repairing of cycle and rickshaws and was also used for selling of television sets would not amount to the change of user. The finding recorded by the High Court in the present case is as under:-

"...Here the premises in dispute was already used for operating stitching machine, rolling machine for making copies, file covers, boxes of sweat meats; the printing is and allied purpose. It cannot be said that petitioner has changed the purpose for which it was let out to him. The revisional court wrongly allowed the revision."

Counsel for the parties have been heard at length. Broadly speaking a building can be let out for three purposes:

1. Residential

2. Business

3. Manufacturing

10. If the dominant purpose for which a building is let out is maintained, a tenant may not become liable to be evicted. But if the building is let out for

residential or business purpose and the tenant starts manufacturing activity or vis-a-versa, then it would amount to change of user subject to the provisions of the act in reference."

B) Mohan Lal Vs. Jai Bhagwan reported in AIR 1988 SC

1034 wherein it has been held as under :-

"9. While respectfully agreeing with the said observations of Lord Diplock, that the Parliament legislates to remedy and the judiciary interpret them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attracts the mischief of S. 13(2)(ii)(b) of the Act. The High Court, therefore, was in error."

C) Gurdial Batra Vs. Raj Kumar Jain reported in AIR 1989

SC 1841 wherein it has been held as under :-

"7. The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consideration. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable.

8. In this case, the premises was let out for running of a repair shop. Along with the repair business, sale of televisions was temporarily carried on. We do not think this constituted a change of user within the meaning of S. 13(2)(ii)(b) of the Act so as to give a cause of action to the landlord to seek eviction of the tenant."

9. On the other hand Mr. Ranvir Singh, learned Counsel for

respondent-landlord, at the outset, submitted that jurisdiction of

this Court under Article 227 was extremely narrow and very

limited. Mr. Singh submitted that this Court cannot interfere

with concurrent finding of facts, unless and until this Court

comes to the conclusion that said findings are perverse.

10. Mr. Singh further submitted that purpose of letting out the

tenanted premises was specific, that is, for Halwai shop and for

no other purpose. He stated that conversion of a Halwai shop

into a sugarcane or fruit juice shop was a clear misuse.

11. In this connection, Mr. Singh relied upon a few judgments.

The summary of the said judgments furnished by Mr. Singh are as

follows:

A) Bharat Lal Baranwal Vs. Virendra Kumar Agarwal

reported in 2003(1) RCR Page 178 (Supreme Court)

* Shop given for selling stationery items, then installation of printing press to manufacture copies, registers, card board boxes is change of user.

B) Suresh Kumar v. Hira Nand & Anr. reported in 2003 (1) RCR 254 (Punjab & Haryana) * Shop tenanted for photo-framing, used for motor-

winding-Change of user.

C) Augur Nath v. Kishan Chand (now dead thru his LRs) reported in 2003 (1) RCR 648 (Punjab & Haryana) * Tenanted for cloth business, used as godown: Change of user.

12. Learned counsel for respondent further pointed out from

the record that petitioners-tenants had admittedly installed a

seven feet long sugarcane machine, which was being run from

8.00 - 9.00 AM to about 11.00 PM. He also referred to the

conclusion of ARC that petitioners-tenants had taken power

connection of 7.5 horse power and 1 kilo watt for industrial and

commercial purpose, which clearly showed that petitioners-

tenants were misusing the tenanted premises. In this connection,

he referred to definition of „public nuisance‟ as contained in

Section 268 of Indian Penal Code, which reads as under :-

"268. Public nuisance

A person is guilty of a public nuisance who does not act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage."

13. Having heard the parties at length and having perused the

record of subordinate court, I am of the view that tenanted

premises had been let out for a specific and particular trade i.e.

for Halwai shop. In fact, Clause 4 of Rent Deed dated 6th January,

1966 executed between the parties states as under :-

"4. That I the executants shall continue the job and trade of "HALWAI" in the aforesaid premises upon which the above-said owner shall have no objection neither he has got now."

14. In my opinion, ARC has rightly observed that in view of the

aforesaid clause as well as Sections 91 and 92 of Indian Evidence

Act, 1872 petitioners-tenants cannot today urge that tenanted

premises had not been let out for alleged purpose of only Halwai.

15. I am also of the view that allegations made in the eviction

petition are neither vague nor unclear. The relevant passage in

the eviction petition is reproduced hereinbelow for ready

reference :-

"(iii) That the tenancy premises were let out vide rent deed dated 06.01.66 to Shri Jagtar Singh by the predecessor-in-interest of the petitioner i.e. Shri Om Prakash for a specific purpose of a Halwai shop; but the same are being misused in violation of the terms and conditions of the said rent deed for the purpose and running the trade and business of crushing sugar canes and fruits of different kinds and for this purpose crushers electricity power and a generator have also been installed which result in creating nuisance due to

vibration and noise of the crushing as well as the generator. The use of the tenancy premises for the above said purpose is also otherwise detrimental to the interest of the petitioner also and injurious for the health of the petitioner and other members of the family dependant upon him as the petitioner alongwith his other members of the family reside on the first floor premises of the said property No. 12, Old Market, Ramesh Nagar, New Delhi. It has also resulted in damages in the tenancy premises because it has changed the shape and value of the same besides being used for a purpose than for which the same were let out. Five servants also work for crushing the canes and different kinds of fruits and vegetables for the purpose of extracting the juice therefrom and its sale to the customers and thereafter washing the utensils till past mid night. Flies also came in flocks not only to the tenancy premises but also to the residence of the petitioner which is located on the first floor of the property. This effects the health of the petitioner and other members of the family residing therein. The respondents were served with a notice dated 22.12.99 to stop the said misuser of the tenancy premises but they have refused to do so. Reply dated 17.01.2000 was received."

16. In view of the aforesaid, I am of the view that allegations

are specific and fulfill the necessary requirement as stipulated in

Section 14(1)(c) of DRC Act.

17. As far as Mr. Kohli‟s submission that a change of user i.e.

from Halwai shop to a fruit juice or sugarcane shop does not

amount to misuse, I may only mention that the findings of ARC is

that in view of petitioners having taken electricity connections

comprising 7.5 horse power for industrial light and 1 kilo watt

for commercial light, petitioners-tenants had converted the user

from a purely commercial use to an industrial use. As highlighted

by ARC, petitioners-tenants had failed to give any explanation as

to why the industrial connection was obtained if they were

extracting juice manually as stated by them. It is pertinent to

mention that under industrial connection power is given to

consumers at a very high rate of tariff. Consequently, unless and

until the petitioner were using the same for an industrial purpose,

no one would take such a costly connection.

18. In view of the aforesaid finding, it is apparent that

petitioners have converted a commercial tenancy into an

industrial one. Consequently, the judgments relied upon by

petitioners are inapplicable to the facts of the present case.

19. As far as issue of nuisance is concerned, ARC has

specifically found that in view of petitioners-tenants having

installed large crushers, machinery and generator, there was lot

of vibrations in the building which disturbed sleep and affected

the health of respondent-landlord.

20. I may also mention that both ARC as well as Tribunal have

found that petitioners-tenants have caused substantial damage to

the tenanted premises. The said finding of fact also cannot be

regarded as perverse by this Court.

21. In any event, I agree with Mr. Singh that jurisdiction of this

Court under Article 227 is extremely narrow and limited. In this

connection I may refer to following judgments :-

A) S.P. Deshmukh Vs. Shah Nihal Chand Waghajibai

Gujarati reported in AIR 1977 SC 1985 wherein it has been

held as under :-

"........we are left in no doubt that the High Court, inspite of several decisions of this Court, has manifestly exceeded the limits of its narrow jurisdiction under Article 227 of the Constitution. We are unable to appreciate that the High Court should have persuaded itself to accept the contention of the landlord in the teeth of the concurrent finding of the Rent Controller and the Collector that the tenant was not a habitual defaulter........."

B) India Pipe Fitting Co. Vs. Fakruddin M.A. Baker and

Anr. reported in AIR 1978 SC 45 wherein it has been held as

under :-

"5.The limitation of the High Court while exercising power under Article 227 of the Constitution is well-settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be. It is well-settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh and Anr. v. Amarnath and Anr. 1954 S.C.R.

565......

........The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts......."

C) Babutmal Raichand Oswal Vs. Laxmibai R. Tarta &

Anr. reported in AIR 1975 SC 1297 wherein it has been held as

under:-

"7. ........This Statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora v. The Commr. Of Hills Division 1958 SCR 1240 = (AIR 1958 SC 398) and it was pointed out by Sinha, J. as the then was, speaking on behalf of the Court in that case :

"It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

22. Consequently, in my opinion, present petition being devoid

of merits is dismissed but with no order as to costs. However,

considering the fact that petitioners-tenants have been in

occupation of tenanted premises for last more than 43 years, I

grant one year‟s time from today to petitioners-tenants to vacate

the tenanted premises.

MANMOHAN, J st 21 April, 2009 rn