Raj Kumar and Ors. v. Shakuntla Devi and Ors. - (High Court of Himachal Pradesh) (13 Jan 2017)

Mere change of user from one commercial activity to another, no ground for claiming ejectment unless caused injury

MANU/HP/0027/2017

Tenancy

In instant case, Landlady filed a petition for ejectment on grounds that successors-in-interest of original tenant having sub-let premises to Respondent No. 2, and premises used for a purpose other than the one for which it was let out. Rent Controller, in terms of order passed allowed the petition, directing ejectment of tenant on both the counts. In the tenants' appeal, Appellate Authority, vide judgment reversed findings of fact on both counts, and dismissed petition, so filed by landlady. Short point, for consideration in present Revision Petition, is as to whether landlady has made out a case for ejectment, on ground of sub-letting or not. In effect, what is the true meaning and scope of the terms "sub-letting" requires to be interpreted.

Significantly, Rent Note did not restrict use of premises for a purpose other than one for which it is now being put to use. As such, change of any business activity, so carried out in shop, in absence of any stipulation to the contrary, does not, in any manner, entitle the landlady for ejectment of a tenant. A building or a part thereof can be let out for three purposes viz. (i) Residential; (ii) Business; and (iii) Manufacturing. Section 108 of Transfer of Property Act, 1882 prohibits the lessee to use the tenanted premises for a purpose other than the one for which it was leased. Normally, if the dominant purpose for which a building is let out is maintained, then a tenant may not be liable to be evicted in the absence of any covenant in the contract between the parties, prohibiting a user different from the one mentioned in the lease deed and the tenant would be entitled to carry on any trade in the premises, consistent with the location and nature of the premises. But if building is let out for residential or business purpose and the tenants starts manufacturing activity or vice a versa, then it would amount to change of user subject to provisions of the Act. Mere change of user from one commercial activity to another, in itself, is no ground for claiming ejectment unless and until injury to the property and interest of the landlord is proved.

Rent control legislation is enacted in the larger interest of the society as a whole and it is not intended to confer any disproportionately larger benefit on the tenant to a greater disadvantage of the landlord. But it is also a beneficial piece of legislation recognizing reasonable protection to the tenant as one of the objects. In case of sub-letting, onus lying on landlord would stand discharged by adducing prima facie proof of fact that, alleged sub-tenant was in exclusive possession of premises or, to borrow the language of Section 105 of the Transfer of Property Act, 1882 was holding right to enjoy such property. As presumption of sub-letting may then be raised and would amount to proof unless rebutted.

It is a matter of record that the original business of Radio and TV mechanic came to be changed to that of Halwai and thereafter that of a Gold Smith. Hence, ingredients necessary to constitute element of sub-letting not established on record. Apart from ocular evidence, there is nothing else to establish the plea of subletting. It cannot be said that, impugned judgment passed by lower Appellate Authority is perverse or illegal, warranting interference by this Court.

Relevant : Section 105, 108 of Transfer of Property Act, 1882

Tags : TENANCY EJECTMENT SUB-LETTING