How to prove that tenanted premises was residential or non residential in absence of zonal plan?

It has been repeatedly held by this Court that in the absence of any zoning plan, scheme or notification proving the residential or non- residential character of a building, the purpose for which the demised premises was let out would determine its character as residential or non- residential.

Punjab-Haryana High Court

Vijay Kumar vs Charanjit Singh & Ors on 12 October, 2018

      CR-1582-2018                                              

Coram:
HARINDER SINGH SIDHU, J.

Citation: 2019(1) RCR(Rent) 17

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Whether eviction decree will be passed against tenant if his family member acquires residential premises?

In our opinion, in order to attract the proviso, three facts need to be proved. First, the tenant or any member of his family, as specified Under Section 3(g), has either built or otherwise acquired any residential building; Second, such residential building is in a vacant state; and third, such vacant residential building is situated in the same city, municipality, notified area or town area where the suit tenanted premises is situated.

23. Once these three facts are proved, the proviso would apply against the tenant disentitling him to claim the benefit of Sub-section (4) of Section 20 to avoid decree for his eviction passed against him Under Section 20(2)(a) of the Act.

24. The main reason behind enacting such proviso is that the tenant, in such circumstances, would not suffer any hardship, if he is asked to vacate the tenanted premises pursuant to eviction decree passed against him on the ground of arrears of rent Under Section 20(2)(a) of the Act because he or any member of his family has built house or acquired it and got its vacant possession situated in the same city. Such tenant can, therefore, shift in the house of member of the family.

25. The submission of learned Counsel for the Defendant (tenant) was that in cases where the tenant's son is living separately from his father(tenant) in his own house then such tenant cannot be made to suffer the eviction decree once he complies with the requirements of Sub-section (4) of Section 20.

26. In other words, the submission was that it is only when any member of tenant's family is living with the tenant in the tenanted premises and if he owns any vacant residential building in the same city, the tenant can be deprived of the benefit of Sub-section (4) of Section 20 but not otherwise. We find no merit in this submission.

28. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the Courts below and accordingly hold that the tenant, having rightly suffered a decree for eviction on the ground contained Under Section 20(2)(a), is not entitled to take the benefit of Sub-section (4) of Section 20 because his case falls under the proviso to Sub-section (4) by virtue of the fact that his son, who is member of family being a male lineal descendants as specified Under Section 3(g)(ii) of the Act, has built his residential house in the same city and he is in its possession. The tenant can, therefore, shift in the said house once he is asked to vacate pursuant to eviction decree passed against him.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5903 of 2012

Decided On: 17.04.2018

 Sudama Devi Vs. Vijay Nath Gupta and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: (2018) 6 SCC 759

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Whether residential premises can be given to landlord for commercial use?

 The respondent sought possession of the premises let out to the appellants and three other tenants on the ground that it wanted one room for its office, two rooms for running a fair-price grain-shop, two rooms for conducting a provision stores, two rooms for preparing pickles, cleaning spices and for keeping the finished products for sale, two rooms for establishing a godown and some more space for conducting a tailoring and sewing class. The respondent succeeded in proving its requirement but its very success in establishing that it required the premises for a non-residential purpose is its failure to establish the ingredients of Section 13(1)(g) of the Act. Under that provision, it is not sufficient for a landlord to establish that the premises are required by him but it has to be shown further that the requirement is reasonable and bona fide. The requirement of the respondent in the instant case cannot ever be called reasonable, if the very statute under which it seeks relief contains an injunction that it shall not use residential premises for a non-residential purpose. Not only does the statute contain and injunction against the user of residential premises for a non-residential purpose, but it makes it penal for a landlord to use for a non-residential purpose any premises which were used for a residential purpose on the date when the Act came into force. In the light of Section 25(1), granting a decree to the respondent for possession of the residential premises on the ground that it requires those premises for a non-residential purpose is to pave the way for its prosecution and punishment under Section 25(2). In fact, such a decree would be self-defeating because, whereas the decree shall have been passed on the ground that the respondent requires the premises for a non-residential purpose, it will not be able to use those premises for the purpose for which the decree was granted, save on pain of prosecution.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 574 and 575 of 1974

Decided On: 26.08.1975

 Bapubhai Mohanbhai Vs. Mahila Sahakari Udyog Mandir

Citation: AIR 1975 SC 2128

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Whether landlord can seek eviction of tenant from residential premises for starting business in said premises?

Besides the abovesaid subsequent development, there is another vital matter which has been overlooked by the lower Court, inasmuch as, admittedly, the suit premises were let out to the original tenant (predecessor of the petitioner) for residential purpose and were/are being used as such, but the respondent No. 1 landlord has invoked the ground of bona fide requirement for starting business in the suit premises. Section 25 of the Act clearly prohibits conversion of residential into non-residential premises. In view of this prohibition it is not open for the respondent No. 1 to use the suit premises for any other use but residential purpose. Understood thus, the ground of bona fide pressed by the respondent No. 1 is therefore unavailable in law. Taking any view of the matter, the decree of possession passed against the petitioner-tenant in respect of the suit premises, therefore, cannot be sustained. Accordingly, the impugned Order passed by the Appellate Court directing the petitioner tenant to deliver possession of suit premises is set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4423 of 1989

Decided On: 05.07.2001

Avinash V. Mhapankar Vs. Prabhakar S. Kelkar and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001(4) MHLJ220,2001(4) Bom CR708

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Whether landlord can seek eviction of tenant from residential premises if he requires it for non-residential purpose?

Besides the abovesaid subsequent development, there is another vital matter which has been overlooked by the lower Court, inasmuch as, admittedly, the suit premises were let out to the original tenant (predecessor of the petitioner) for residential purpose and were/are being used as such, but the respondent No. 1 landlord has invoked the ground of bona fide requirement for starting business in the suit premises. Section 25 of the Act clearly prohibits conversion of residential into non-residential premises. In view of this prohibition it is not open for the respondent No. 1 to use the suit premises for any other use but residential purpose. Understood thus, the ground of bona fide pressed by the respondent No. 1 is therefore unavailable in law.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4423 of 1989

Decided On: 05.07.2001

Avinash V. Mhapankar  Vs.  Prabhakar S. Kelkar and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001(4) MHLJ 220,2001(4) BOM CR708

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How to determine reasonable compensation in eviction proceeding?

Though ordinarily interference by this Court would not be warranted, particularly at an interlocutory stage, in the discretionary powers of the Appellate Court to arrive at the 'reasonable' figure in respect of the suit as a condition to the grant of stay to the execution of the decree of eviction, however, looking at the amount of litigation which is being generated on this issue, it would be necessary for this Court to consider if any criteria can be adopted so as to lay down some guidelines for the lower Courts in determining the amount so that the parties do not rush to this Court in every such matter complaining of such grave injustice which would have the effect of facing eviction without availing of their statutory right of appeal because of the fixing of such an amount of compensation/rent which would be excessive to the point of being oppressive. There, of course, cannot be any straight jacket or uniform formula laid down to determine as what can be termed as 'reasonable' and it would entirely depend on the facts and circumstances of each case. Nevertheless, in view of the volume of cases between landlord and tenants, and consequently the number of cases being filed in this Court on this issue, it would be necessary to lay down some parameters on the basis of which this amount can be arrived at. It is to be noted that this 'reasonable' amount so fixed in most cases is an ad hoc amount in absence of any evidence being led in the matter and without any full fledged inquiry which the legislature has contemplated under Order XX, Rule 12 of the C.P.C. The courts therefore have to be circumspect in arriving at this figure as it could have the effect of the appellant- tenant being thrown out of the suit premises, inspite of having a fair chance of success in the appeal, which is but a continuation of the suit, as a result of his inability to pay the amount so fixed by the Court. It is to be noted that what the Hon'ble Apex Court has emphasized and reiterated is the "reasonableness" of the amount.

14. In my opinion this would be a fit case to exercise the supervisory jurisdiction of this Court under Article 227 of the Constitution of India so as to examine the issue of 'reasonableness' itself and lay down certain parameters or guidelines so as to avoid manifest injustice. A balance would have to be struck in weighing the equities so that there is no substantial loss to either party. The Court may, for example, consider examining (1) what percentage of the market value in terms of license fee, the premises in question can fetch could be termed as 'reasonable', (2) would this percentage be different in respect of residential premises vis-a-vis commercial premises, (3) which of the parties would be liable to pay the property taxes and other taxes/cess/charges, (this can go to more than 50% of the compensation for commercial premises in Mumbai), (4) whether the amount can be worked out on the basis of rateable value of the suit premises or number of times of the statutory rent or any other method of valuation, (5) how is the amount to be adjusted in case of inquiry under Order XX, Rule 12 of the CPC relating to mesne profits, (6) when can the amount awarded said to be unreasonable or oppressive or resulting in manifest injustice, (7) whether any report from an expert is necessary at that stage, (8) would this figure of 'reasonable' compensation be different in case of occupants who are trespassers or licensees who have lost protection of the rent control legislation or tenants holding over, etc.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3332 of 2008

Decided On: 16.06.2008

 Marjorie Passanah and Anr. Vs. Mumtaz Iqbal Shaikh

Hon'ble Judges/Coram:

A.A. Sayed, J.

Citation:2009(1) MHLJ 972

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Rateable value for payment of property tax is to be fixed on the basis of standard rent

In my opinion, the Small Causes Court has erred in allowing the appeal. The observation of the learned Judge that there can be no distinction in the rateable value payable in respect of commercial premises and residential premises is without any basis. As rightly submitted by Mr.Ketkar, the provisions of Section 129 of the Bombay Provincial Municipal Corporations Act indicate that there can be a distinction drawn between the rates of taxes paid for commercial and residential premises. The rateable value is to be fixed dependent upon the standard rent. It is obvious that the standard rent payable by a tenant in respect of commercial premises and residential premises would be different. The standard rent for commercial premises would obviously be higher and consequently the rateable value for those premises. The learned Judge has erred in accepting Rs.107 as the standard rent for the shop only because that was the standard rent payable in respect of a residential flat in the same building.

Bombay High Court

Pune Municipal Corporation ... vs Dnyaneshwar Nivrutti Narhare on 25 March, 2008

Equivalent citations: 2008 (3) MhLj 853:2008(4) ALLMR375

Bench: Nishita Mhatre, J.

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Whether right of a person to construct residential houses can be taken away?

The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of Legitimate Expectation in a case of this nature would have a role to play.

Rights of parties cannot be intermeddled so long as an appropriate amendment in legislation is not brought into force - Right of a person to construct residential houses in residential area is a valuable right and unless there exists a clear provision the same can not be taken away 

A statutory authority must exercise its jurisdiction within a reasonable time

Supreme Court of India

T. Vijayalakshmi & Ors vs Town Planning Member & Anr on 19 October, 2006

Bench: S.B. Sinha, Dalveer Bhandari

          
Citation;(2006)8 SCC502,AIR2007SC25,

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