Mere change of purpose of user, even if not destructive or permanently injurious to the leased property, amounts to breach of Clause (o) of section 108 of the Transfer of Property Act and is actionable under section 13(1)(a) of the Rent Act.

Headnote:
RENT ACT - SECTION 13(1)(A) - TRANSFER OF PROPERTY ACT, SECTION 108(O) - CHANGE OF PURPOSE OF USER - INTERPRETATION - DESTRUCTIVE OR INJURIOUS - EVICTION.
Fact of the Case:

Tenant changed the purpose of user of the leased godown from manufacturing plastics to office and storing, raising permanent structures. Landlord claimed eviction under section 13(1)(a) of the Rent Act, alleging breach of Clause (o) of section 108 of the Transfer of Property Act.
Finding of the Court:

The trial court found no change of purpose of user, while the appellate court held that the premises were dominantly and mainly used for offices and storing, in contravention of the lease terms, and confirmed the eviction decree.
Issues: Whether mere change of purpose of user amounts to breach of Clause (o) of section 108 of the Transfer of Property Act, attracting liability for eviction under section 13(1)(a) of the Rent Act, or such change must be destructive or injurious to the property.
Ratio Decidendi: 1. Clause (o) of section 108 of the Transfer of Property Act consists of two parts: a positive injunction requiring the tenant to use the property with prudence, and negative injunctions against specific acts, including change of user, felling or selling timber, pulling down or damaging buildings, working mines or quarries not open when the lease was granted, and other destructive or permanently injurious acts. 2. The concluding words of Clause (o), "which is destructive or permanently injurious," govern and qualify only the fifth and final prohibited category of unspecified acts, and not the earlier four categories. 3. Mere change of purpose of user, without being destructive or permanently injurious to the leased property, constitutes a breach of Clause (o) and is actionable under section 13(1)(a) of the Rent Act.
Final Decision: The reference was answered accordingly, with costs to abide by the result. The case was remitted to the Single Judge for disposal in accordance with law.

JUDGMENT - V.S. DESHPANDE, J.:---These two Special Civil Applications by the tenants, are directed against the same judgment of the Appellate Bench dated 14-6-1975 in suit for eviction and arrears of rent etc., under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, thereinafter referred to as "the Rent Act").

2. A spacious godown was let out to the tenant for manufacturing plastics. The tenant had no remove the manufacturing plant to Bhandup with the increase in its volume of work in terms of the policy of the Municipal Corporation. The plastic manufacturing process through a sister concern, is still carried on by the tenant in a part of the premises and the remaining part is used for office and storing purposes. Some permanent structures are, also alleged to have been raised by the tenant for this purpose. Eviction is claimed, therefore, on grounds, amongst others, of the tenant having (1) changed the purpose of the users and (2) raised permanent structures on the premises, making themselves liable to eviction under section 13(1)(a) and (b) of the Rent Act. Both the courts concurrently found that the tenant had raised such permanent structure and as such was liable to eviction under section 13(1)(b) of the Rent Act. On the question of the change of the purpose of user, the two courts differed in their conclusions. According to the trial Court, using the premises incidentally for officers and storing, after transfer of its manufacturing plant to Bhandup did not involve any change of purpose of the lease. The Appellate Bench, on the other hand, held that the premises are dominently and mainly used for offices and storing in contravention of the terms of the lease and as such the tenant had committed a breach of Clause (o) of section 108 of the Transfer of Property Act by the change of the purpose of the user. Further the question of such change of user needs be destructive or injurious does not appear to have been raised. The Appellate Court thus held tenant liable to eviction both under Clauses (a) and (b) of section 13(1) of the Act and thus confirmed the decree for eviction. Landlords claim for rent and other monetary dues is upheld in part and rejected in part.

3. When the matter was taken up for hearing before one of us (Naik, J.), Mr. Advani the learned Advocate for the tenant contended that mere change of the purpose of user does not amount to breach of Clause (o) of section 108 of the Transfer of Property Act to attract liability for eviction under section 13(1)(a) of the Rent Act unless such change is found to be destructive or injurious to the property. In support of this, he relied on the judgment of Chandurkar, J. in the case of (Dattatray R. Sankpal v. Gulabrao P. Bhovale)1, dated 15th October, 1977 in Special Civil Application No. 89 of 1976. The learned Judge followed the judgment of V.S. Desai, J. dated 23-8-1968 in (Ishwaribai Jamnadas v. Narottamdas V. Mody)2, in Special Civil Application No. 431 of 1966. The landlord on the other hand relied on the judgment of Rege, J. in the case of (Chhagan Chhotu Dalwale v. Kanakmal Bhagwandas)3, dated 17th January, 1975 in Special Civil Application No. 1559 of 1971 and contended that prohibited change of user need not be destructive or injurious to the leased property to attract the said Clause (o) and section 13(1)(a) of the Rent Act. Hence this reference to the Division Bench to resolve this conflict.

4. Section 13(1)(a) may be conveniently quoted at this stage :

"13(1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15-A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied. (a) that the tenant has committed any act contrary to the provisions of Clause (o) of section 108 of the Transfer of Property Act, 1882."

The only question is whether the tenant commits a breach of Clause (o) by merely changing the purpose of the user of the leased premises, or no such breach can

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