Lal Chand v. Bal Kishan .

D.V Sehgal, J.:— This revision petition is directed against the order dated 13.6.1936 whereby the learned Rent Controller, Amritsar, has allowed an application under section 13-A of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) filed by the landlord-respondent and has held that he is entitled to recover possession of the demised premises from the tenant-petitioner.

2. The facts in brief are that the petitioner is a tenant under the respondent in two shops situate on the ground floor of house bearing No. 781/13 (old), 2348.XV-12 M.C.A. (new), Gali No. 5, Rani Bazar, Sharifpura, Amritsar. The respondent had already filed as many as three ejectment applications against the petitioner on different grounds but could not secure an order of ejectment against him, when he filed the instant application under section 13-A of the Act. He alleged that he retired as a Government servant from the Railway Mail Service, Amritsar, on 31.12.1981 He was, therefore, a specified landlord within the meaning of section 2(hh) of the Act and was entitled to recover possession of the demised premises, i.e the shops, from the petitioner. The provisions of section 13-A were inserted in the Act vide Punjab Act No. 2 of 1985 on 16.11.1985 He was entitled to present the application under section 13-A within one year from 16.11.1985 The instant application was filed on April 30, 1986.

3. On a notice of the application issued by the learned Rent Controller to the petitioner he sought leave to contest the same. He inter-alia, pleaded that the demised premises are shops and are not a residential building. Therefore, the provisions of section 13-A of the Act could not be taken resort to by the respondent. This plea of the petitioner has been rejected by the learned Rent Controller. It has been held that the demised shops are a part of the residential building. Therefore, the same could not be let out for non-residential purposes without obtaining the written permission of the Rent Controller under section 11 of the Act. Reliance hss been placed for this view on a Full Bench judgment of this Court in Shri Hari Mittal v. Shri B.M Sikka . 1986-1 89 PLR 1. and Gurbax Rai Sood v. Karnail Singh . 1986 1 Rent L.R 444.. Consequently, treating the premises in dispute as residential the impugned order entitling the respondent to recover possession of the same from the petitioner has been passed.

4. I have heard the learned counsel for the parties. I am of the view that the order under revision cannot be sustained. It is an admitted fact on the record that the premises in dispute are two shops on the ground floor of a larger building the major part of which is no doubt residential in character, but at the same time it cannot be disputed that the shops in dispute which have been let out to the petitioner are nonresidential in character. Clause (a) of section 2, inter-alia, defines ‘building’ to mean ‘any building or part of a building led out for any purpose whether being used for that purpose or not.’ Thus, these two shops are a building falling within the scope of the aforesaid definition. Merely because these two shops in the form of building are integral part of the larger building as known in the common parlance, the predominant part of which is residential in character, it is difficult to hold that these shops are a residential building and not a non-residential one. The shops hive admittedly been let out to the petitioner solely for running his business. Therefore, these shops are to be treated as non residential building within the meaning of clause (d) of section 2 of the Act. The ratio of Hari Mittal's and Gurbax Rai Sood's cases (supra) is not even remotely applicable to the facts of the case in hand. While letting out shops for solely the purposes of business it was not necessary to secure the written permission of the Rent Controller under section 11 of the Act Such a permission is required only where a residential building is sought to be converted into a non-residential building.

5. It bears mention here that a specified landlord within the meaning of section 2(hh) of the Act can claim possession from his tenant under section 13-A ibid of residential building or scheduled building. No right has been vested in the specified landlord to recover possession of a non-residential building from the tenant.

6. Consequently, this revision petition is allowed with costs, order dated 13.6.1986 passed by the learned Rent Controller, Amritsar, is set aside and the application under section 13-A of the Act filed by the respondent is dismissed.

R.M.S

Petition allowed.