1. Petitioners have in this petition filed under Section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) (hereinafter referred to as the Act) sought the setting aside of an order passed on 29th October 1990, by the Appellate Authority, Hamirpur, dismissing their appeal and thereby confirming the order passed on 20th January, 1988 by the Rent Controller, Hamirpur.
2. Eviction of tenant-petitioner No. 1 from the premises in question was sought by the landlady-respondent on three grounds:
(1) he being in arrears of rent at the rate of Rs. 150/- per month (2) he having sub-let the premises without the written consent of the landlady in favour of his son, petitioner No. 2, and (3) the tenanted premises having been subjected to conversion of user from banana store to trunk manufacturing and sale thereof and that too without the prior permission or consent of the landlady. The Rent Controller found the rate of rent to be Rs. 55/- per month as against Rs. 150/- per month, as alleged by the landlady and found that the tenant was not in arrears of rent. The plea of the landlady that the premises have been sublet was also negatived. However, it was held that the tenant had changed the user of the premises without her consent. Accordingly, an order of eviction on this ground alone was passed.
3. Feeling aggrieved, two separate appeals were filed, one by the tenant joining along with him his son, the alleged sub-tenant and the other by the landlady. The Appellate Authority vide the impugned judgment dismissed both the appeals. The present revision petition, at the behest of the tenant, joining along with him his son, seeks to challenge the said judgment of the Appellate Authority. The landlady, however, has not filed any revision petition before this Court.
4. The only question which now survives and arises for determination is as to whether in the facts and circumstances of the case, on the finding recorded by the two authorities below with regard to the change of user of the premises, without the written consent of the landlady, order of eviction is sustainable in law.
5. It is urged by the learned counsel for the petitioners that there was no clear evidence on record, nor it was admitted by the tenant that the demised premises were let out only to run banana business and since there was no prohibition imposed as regards the user of the premises at the time of letting out the same, there was no question of change of user. Even if there is change of user, as found by the two authorities below, even then there being nothing on record to suggest that the interest of the landlady, by such change of user has in any manner caused any prejudice to the landlady and the change being of insignificant nature and incidental and allied to the business, would not be actionable. I have heard the learned counsel for the parties and gone through the record.
6. The first submission made by the learned counsel for the petitioners has no force, in view of the pleadings of the parties. In the eviction petition there is a clear and categorical averment made in para 5 by the landlady that the premises were rented out to the tenant to be used only as a banana store. To this para the tenant in para 5 of his reply has stated that “business of fruits of respondents failed and now they have started steel work and have stored steel material”. There is no denial in the reply that the premises were not rented out to be used only as a banana store. The plea, on the other hand, is that since the fruit business failed, therefore, the tenant switched on to the manufacturing of steel trunks etc. The tenant Shiv Ram appeared as RW 1. In his cross-examination he admitted that he had been carrying on the fruit business in the premises and later on he has switched on to the business of manufacturing of trunks and sales thereof in the same premises end the change was done by him without obtaining any oral or written consent of the landlady. The reason assigned for change was that his fruit business was not running in profit. In view of the clear admission on the part of tenant as also the pleadings, the finding recorded by the courts below, as rightly urged by the learned counsel for the respondent that the tenant had started using the premises for a purpose, other than the one for which the premises were let out, without the written consent of the landlady, requires no interference.
7. On the question whether such a change of user is incidental or allied to the business or that it was only a small change in the user and would not be actionable, reliance is placed upon two judgments of the Supreme Court in Mohan Lal v. Jai Bhagwan, AIR 1988 SC 1034 and Gurdial Batra v. Raj Kumar Jain (1989) 3 SCC 441 (sic).
8. Section 14(2)(ii)(b) of the Act enumerates the grounds on which eviction of petitioner No. 1 has been sought and ordered, namely, ‘use of the building or rented land for a purpose other than that for which it was leased’. An identical provision is contained in the Haryana Urban (Control of Rent and Eviction) Act, 1973. The said provision of the Haryana Act came up for consideration before the Supreme Court in Mohan Lal's case (supra), wherein a reference was also made to a Full Bench decision of the Punjab and Haryana High Court in Sikander Lal v. Amrit Lal, AIR 1984 Punj and Har 133. The said case was under the East Punjab Urban Rent Restriction Act, 1949, wherein also an identical provision existed and was the subject matter for consideration before the Full Bench. In the facts and circumstances of the case, the Full Bench in Sikander Lal's case (supra) held that the premises were originally leased for the business of Handlooms and afterwards the same were put to use for installing small carding machine meant for converting cloth into the thread. It was held that there was no change of user and:
“…Where the subsequent use of the premises is merely ancillary to the specific original purpose then it would imply no change of user within the meaning of the statutes. If by custom or convention or on the finding of the Court it could be held that the added use of the premises was ancillary to the main original purpose then in the eye of law it would be deemed to have been within the terms of the original lease…”
Quoting the aforementioned observations of the Full Bench of Punjab and Haryana High Court, the learned Judges of the Supreme Court in Mohan Lal's case (supra) while approving the part of the ratio, namely, that the allied business would not amount to change of user doubted the remaining part of the ratio that for a business which is not allied to the business for which it was let out would amount to change of user and come within the mischief of Cl. (b) of Section 13(2)(ii) of the Act, by saying that the same must be read with some reservation. Referring to the facts in Mohan Lal's case where the purpose of letting had been specified, namely, running of business of English Liquor vend in the shop and the user was changed to the starting of the business of general merchandise, it was held that:
“….The business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction of tenants therefrom. In the expanding concept of business now a days and the growing concept of departmental stores, we are of the opinion that it cannot be said that there was any change of user in the facts of this case which would attract the mischief of the provisions of S. 13(2)(ii)(b) of the Act. The building was rented for purpose of carrying on a business, using it 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. There was no nuisance created.”
9. Thus the main criteria which was adopted in Mohan Lal's case (supra) was that the change of the original purpose of carrying on a business of a particular kind to that of an another kind had not in any manner caused any mischief or detriment or impairment to the shop in question, since such new business can be conveniently carried on without impairing the utility or causing damage to the building and there being no nuisance being caused by change of business.
10. In Gurdial Batra's case (supra), the same provision of Punjab Act came up for consideration in which the premises were initially let out for running of a cycle and rickshaw repair shop and the tenant had thereafter put the premises to a different use, that is, side by side selling of television sets for a period of about seven months. After referring to the decision in Mohan Lal's case (supra) and to the observations of Lord Diplock J. in Duport Steels Ltd. v. Sirs (1980) 1 All ER 529, which had also been referred to and relied upon in Mohan Lal's case (supra), it was held that letting of a premises can broadly be for residential or commercial purpose and the restriction which is statutorily provided in Punjab Act about the change of user was obviously one to protect the interests of landlord and is intended to restrict the use of the landlord's premises taken by the tenant under lease which provision was akin to the provision contained in Section 108(o) of the Transfer of Property Act dealing with the obligation of a lessee. It was held that a house let for residential purposes would not be allowed for being used as a shop even without structural alteration but a small change in the user when premises are let out for one purpose, namely, for running a business by using it for another purpose of carrying on business of a different kind would not be actionable as long as the interest of landlord is not prejudiced. Sale of televisions temporarily in the premises along with the repair business of cycle and rickshaw for which purpose alone the premises had been let out, was held not to constitute a change of user, since by such additional business no prejudice was caused to the landlord. A reference was also made in the case to the judgment of the Privy Council in U. Po Naing v. Burma Oil Co., AIR 1929 PC 108 by observing that the concept of injury to the premises which forms the foundation of clause (b) is the main basic for providing clause (b) in Section 13(2)(ii) of the Punjab Act as a ground for the tenant's eviction. The judgment of Kerala High Court in Raghavan Pillai v. Sainaba Beevi, 1977 Ker LT 417 was also approved wherein, the premises let out for conducting trade in gold when used for a wine store was held not to amount to an act destructive of or permanently injurious to the leased property. A judgment of Bombay High Court reported in 1978 Mah LJ 545 was also referred to wherein change of business of fret work to carrying of business of plastic goods was also held not to be a change of such a nature as contemplated in Section 118(o) of the Transfer of Property Act.
11. The ratio of the aforementioned two judgments of the apex court in Mohan Lal's and Gurdial Batra's cases (supra) appears to be that carrying of a business other than the one for which the premises were let out when such a business is an allied business would not amount to change of user. However, a small change in the user in the business, which is not allied to the business for which it was let out, would also not amount to change of user unless there is impairment to the utility or likelihood of damage being caused to the building and business can conveniently be carried on without creating any nuisance.
12. The ground for eviction as contained in clause (b) of Section 14(2)(ii) in the Himachal Pradesh Urban Rent Control Act, 1987, which, as observed above, is pari materia to that contained in the Punjab Act and Haryana Act, which was the subject matter for consideration before the Supreme Court in Mohan Lal's case and Gurdial Batra's case (supra) and has to be interpreted in similar manner. In this view of the matter carrying on or running a business of a different kind of nature if it is allied to the business for which it was initially let out would not amount to change of user within the mischief of clause (b) of Section 14(2)(ii) of the Act. However, a business which is not allied to the business for which it was let out would amount to change of user within clause (b) of Section 14(2)(ii) of the Act, if the Act, if the same in any way impair the utility or cause damage to the building and the new business cannot conveniently be carried on in the building without creating nuisance. In other words, a small change in the user would not be actionable under the Act, as long as the interest of the landlord is not prejudiced.
13. In the facts of the instant case, it was found that the purpose of letting was storage of bananas and it is the common case of the parties that the user has been changed to that of manufacturing of steel trunks and sale thereof. Neither the business of manufacture of steel trunks and sale thereof is allied to the business for which the premises were let out, nor this change is of a small nature. It is also a matter of common knowledge that manufacturing of steel trunks involves lot of beating and denting of the steel while converting the same into trunks which ultimately is not only likely to impair the utility and result in damage to the premises but also is a cause of nuisance. As such, the change of user would definitely attract the mischief of Section 14(2)(ii)(b) of the Act. The submissions made by the learned counsel for the petitioners have thus no force.
14. No other point was urged.
15. In the result, there being no merit in the petition, the same is dismissed but with no order as to costs.
Petition dismissed.