2013 Supreme(Raj) 2206
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Ghisi Bai and another - Appellant
Versus
Appellate Rent Tribunal, Kota and others - Respondent
S.B. Civil Writ Petition No. 7254 of 2011.
Decided On : 3-12-2013
Advocates:
For the Petitioners:N.K. Maloo, Sr. Adv. and V.K. Tamoliya, Advocate.
For the Respondents:Saransh Saini, Advocate.
The interpretation of Section 9(d) of the Rent Control Act, 2001 and the principles governing bona fide necessity and change of user in eviction proceedings.
Headnote:
LANDLORD-TENANT - RENT CONTROL ACT, 2001 - SECTION 9(D) - BONA FIDE NECESSITY - CHANGE OF USER - EVICTION - INTERPRETATION OF SECTION 9(D) - REVERSAL OF FINDING BY APPELLATE RENT TRIBUNAL - RESTORATION OF FINDING BY RENT TRIBUNAL - DIRECTIONS FOR HANDING OVER POSSESSION, PAYMENT OF ARREARS, FURNISHING UNDERTAKING, PAYMENT OF MESNE PROFIT, AND COMPLIANCE WITH CONDITIONS.
Fact of the Case:
Landlord filed an eviction petition against the tenant on the grounds of bona fide necessity, change of user, damage to the shop, and nuisance. The Rent Tribunal allowed the petition on the ground of bona fide necessity but dismissed the other grounds. The Appellate Rent Tribunal reversed the finding on bona fide necessity but upheld the finding on change of user. Both parties filed writ petitions challenging the findings of the Appellate Rent Tribunal.
Finding of the Court:
The High Court held that the Appellate Rent Tribunal erred in reversing the finding of bona fide necessity recorded by the Rent Tribunal. The Court found that the landlord had a genuine need for the shop as he had to vacate his previous shop due to an eviction order. The Court also held that the Appellate Rent Tribunal erred in finding that there was a change of user. The Court found that the tenant had not changed the actual user of the shop, which was to run a business, but had merely changed the type of business from a photo studio to a readymade garments shop.
Issues: 1. Whether the Appellate Rent Tribunal erred in reversing the finding of bona fide necessity recorded by the Rent Tribunal? 2. Whether the Appellate Rent Tribunal erred in finding that there was a change of user?
Ratio Decidendi: 1. The High Court held that the Appellate Rent Tribunal erred in reversing the finding of bona fide necessity recorded by the Rent Tribunal because: a. The landlord had a genuine need for the shop as he had to vacate his previous shop due to an eviction order. b. The Appellate Rent Tribunal erred in holding that the landlord should have let out another shop to the tenant instead of evicting him, as the other shop was let out to the tenant much before the eviction petition was filed. 2. The High Court held that the Appellate Rent Tribunal erred in finding that there was a change of user because: a. The tenant had not changed the actual user of the shop, which was to run a business. b. The change from a photo studio to a readymade garments shop did not constitute a change of user as both businesses were commercial in nature.
Final Decision: The High Court allowed the landlord's writ petition and dismissed the tenant's writ petition. The Court directed the tenant to hand over vacant and peaceful possession of the suit premises to the landlord on or before 30/06/2015 and to pay the arrears of rent and mesne profit.
JUDGMENT
1. - These two writ petitions are filed by landlord and tenant against each other both assailing the judgment dated 26/03/2011 passed by the Appellate Rent Tribunal, Kota.
2. Brief facts giving rise to the petitions are : that Ghisi Bai and Kailash Chand (who shall 2 hereinafter be jointly referred as "landlord") filed a suit for eviction against Mohan Lal , Maheshwari (who shall hereinafter be referred as "tenant") on the ground of bona fide necessity, change of user without permission, 6 damage to suit shop by making material alteration, nuisance and availability of alternative accommodation in the year 2007. It was alleged that the shop was given on rent in the year 1976. The adjacent shop was given to one Jaffar Mohammad. That Dal Chand, son of landlord Ghisi Bai required the shop for his reasonable bona fide necessity as he wanted to start a readymade garments business in the disputed shop by joining the shop let out to the firm. It was alleged that the shop was let out to tenant Mohan Lal Maheshwari for running the photo studio. He has however without permission from the landlord started readymade garments business from the same shop. He has thus used the shop for the purpose other than the one for which it was let out thereby adversely affecting the interest of the landlord. The tenant for the purpose of setting up the shop of readymade garments has by use of drilling machine put the fixtures and furniture and also put false ceiling for which purpose he has put certain angles. He has thereby caused substantial damage to the let out shop. Tenant used the cut outs and display on the public footpath facing the shop, which tantamount to nuisance.
3. That the tenant-Mohan Lal Maheshwari opposed the eviction petition and denied that the shop was required for personal bona fide necessity of the landlord. The eviction petition filed by the landlord against Jaffar Mohammad Tailer, tenant in the adjoining shop has been dismissed. Kailash Chand, son of Ghisi Bai, the landlord, is already running the business of sarees and clothes from the shop in the name and style of M/s. Kailash Chand Poonam Saree. In fact, one more shop was available to the landlord, which they let out to Smt.Divya Panjwani by accepting some amount in goodwill. She is running the retail garments business from that shop. Necessity of the landlord therefore cannot be said to be bona fide and reasonable. In para 3 of the written statement, tenant stated that the photo studio was being run regularly in the suit shop since 1976 and even till now, photo studio existed there. The tenant only additionally started the business of garments from the same shop after obtaining oral permission from the landlord for last 4-5 years because from the business of photo studio, he did not have sufficient income. Therefore, with the consent of the landlord, he started business of readymade garments also. Allegations of nuisance, material alteration etc. were denied.
4. The learned Rent Tribunal vide order dated 18/07/2009 allowed the petition for eviction on the ground of bona fide necessity. However, the issue relating to change of user, material alteration and nuisance etc. was decided against landlord. Both tenant and landlord filed appeals before the Appellate Rent Tribunal. Learned Appellate Rent Tribunal reversed the finding on the issue of bona fide necessity recorded by the Rent Tribunal in favour of the landlord. It however directed eviction of the tenant on the ground of change of user. Therefore, the tenant as well as the landlord have filed these writ petitions assailing the finding recorded by the Appellate Rent Tribunal against them.
5. I have heard Shri N.K. Maloo, learned senior counsel appearing for tenant-Mohan Lal Maheshwari and Shri Saransh Saini, learned counsel appearing for landlord-Smt.Ghisi Bai and Kailash Chand.
6. Shri N.K. Maloo, learned counsel appearing for tenant has argued that the learned Appellate Rent Tribunal has erred in law in deciding the
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