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2004(5) Supreme 340
SUPREME COURT OF INDIA
(From Bombay High Court)
R.C. Lahoti, CJI & Ashok Bhan, J.
The Goa Urban Co-operative Bank Ltd. -Appellant
versus
Noor Mohd. Sheikh Mussa & Anr. -Respondents
Civil Appeal No. 4577 of 1999
Decided on 5-7-2004
Counsel for the Parties :
For the Appellant : Vijay Hansaria, Sr. Advocate, Dr. Rajeev B. Masodkar, K.L. Taneja, Jayesh K.U. Advocates.
For the Respondents : Kailash Vasdev, Sr. Advocate, Prateek Kumar and Ms. V.D. Khanna, Advocates.
Held : Section 22(2)(b)(ii) provides that the tenant shall be liable to be evicted if he uses the building for a purpose other than that for which it was leased. (Para 12)
Letting out the premises for commercial purpose can have different colors and hues depending upon the purpose for which it is let out. For example a non-residential premises can be let out for commercial purpose for running a shop, office, restaurant, hotel, cinema and godown for storing of the goods etc. If it is specified in the lease deed that the premises be used for a particular commercial purpose than the change of use of the premises falling in another category of purpose would amount to change of user of the building falling within the four corners of Section 22(2)(b)(ii) of the Act and the landlord would be entitled to seek eviction of the tenant for having changed the use of the suit premises for a purpose other than for which it was let out. When the use of the building is identified in the lease deed as an office , it would be taken that the parties had used the expression office in the sense in which the office is understood in common parlance or as indicated by its dictionary meaning. Appellants have admitted that they have started using the building as a godown and the High Court has concluded that the suit premises were used as a godown after the shifting of banking activities of the appellant of Narevekar Building in the year 1982 and continued to be so used till the date of filing the eviction petition in the year 1992. Considering that the suit premises were let out for office use, mere storage of the books of accounts would not amount to use of premises for office purposes especially when the appellant has admitted that it has shifted its business of banking to Narvekar Building. When the building is let out as an office then the same can be used only as an office and not as a godown where the goods are stored and that would tantamount to change of user. (Para 23)
A banking company cannot open a new place of business in India without obtaining the prior permission of the Reserve Bank of India. Similarly it cannot change its existing place of business situated in India otherwise then 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. 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 the 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 Narvekar Building. The suit premises ceased to be occupied as an office and were being used as a godown, which was a different purpose then the one identified in the lease deed. (Para 28)
JUDGMENT
Bhan, J.-Tenant being aggrieved by the order of eviction passed against him has come up in the present appeal.
2. Under an indenture of lease, Mussa Zaik Usman (predecessor-in-interest of the respondent-landlord) let out a portion admeasuring 47.04 sq. meters on the ground floor of Aaisha Theatre , Ponda-Margao Road, Ponda, to the Goa Urban Coop. Bank Ltd., the appellant herein, for a term of two years extendable by mutual consent at a rent of Rs. 200/- per month (hereinafter referred to as a demised premises ). Clause (6) of the lease specified :
"6. The Lessee shall utilise the premises for the functioning of its office."
3. The appellant shifted its office from the premises at Aaisha Theatre to the Navelkar building at the distance of about 100 meters and began to use the demised premises for keeping records. Mussa Zaik Usman on 15.5.1982 addressed a letter to the appellant that as it had shifted its Branch in the newly constructed Municipality building Ponda and the premises were lying closed and presumably were being used as a godown, he called upon the appellant to vacate the demised premises. On 29.10.1984 the landlord wrote another letter to the appellant to vacate the premises and also stated therein that they would offer alternate premises for use as a godown for which purpose the demised premises were being used by the tenant. In response to the above letter, the Bank wrote to the landlord that they were willing to vacate the premises occupied by them provided the landlords offered them alternate space to store the records and furnish a declaration that the premises which were being vacated would be used by them for their bona fide personal use. The appellant gave certain specifications as per which the building was to be made ready for keeping the records of the bank.
4. On 17.10.1986 the General Manager/Secretary of the appellant addressed a letter to the landlords that "we are thinking of leaving your premises in the Aaisha Theatre without insisting for the alternative premises suggested by you in the Godown on the back side of your house." The final decision was to be taken as soon as the premises which were being constructed by the appellant were complete and which were expected to be completed latest by 31.3.1987. It was further stated that in the past the Bank had been releasing the premises under its tenancy for self-occupation of the landlord after obtaining declaration on oath. On 9.7.1987 the appellant wrote another letter in which it was stated :
"We are pleased to inform you that we have considered your request for vacating the premises in Aaisha Theatre Building favourably as the same are required by you for self occupation. After considering your offer of alternative premises we have finally decided not to accept the same as they are not suitable for our purpose."
The landlords by their letter dated 17.3.1988 in response to the letter dated 9.7.1987 gave a declaration on a stamp paper duly authenticated by a Notary at Ponda. On 4.6.1988 the Bank informed the landlords that it was not willing to vacate the premises. On 17.4.1987 Mussa Zaik Usman expired.
5. On 26.2.1992 the respondent-landlords (hereinafter referred to as "the respondents") being the successors of Mussa Zaik Usman, put the Bank on notice determining the lease and called upon the Bank to vacate the premises. The Bank sent a reply to the notice stating that as the workload had increased, the Bank had taken additional premises for running of the Branch and in the suit premises records and other materials connected with the Ponda Branch were stored.
6. The respondents thereafter on 11.2.1993 filed an eviction petition seeking the eviction of the Bank under Section 22(2)(b)(ii) and Section 23(b) of the Goa, Daman & Diu Buildings (Lease, Rent & Eviction) Control Act, 1968 (for short "the Act") being Rent Case No. 2 of 1993 before the Additional Rent Controller, Ponda, seeking the eviction of the appellant. Eviction was sought on the follo
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