C.G. KHANNA Vs. RAJINDER KUMAR

JUDGEMENT

(1.) BY the present petition, the petitioner has assailed an order dated 27.2.2001 of learned Additional Rent Control Tribunal, whereby the learned ARCT reversed the judgment of Additional Rent Controller and set aside the eviction order passed in favour of the petitioner/landlord under Section 14(1)(c) of the Delhi Rent Control Act.

(2.) THE factual matrix is not in dispute. The respondent was tenant in respect of a shop (though situated in residential area) under the previous owner since 1971 and the premises was let out for commercial purpose. The respondent was initially running a bakery/general store in the shop then he started a printing press. The previous owner sold the entire premises to present petitioner who was another tenant in the premises. The present petitioner filed an eviction petition against respondent on the ground of change of user. He alleged that the premises was let out for residential purpose and was being used by respondent for running a printing press. The two Courts below had come to the conclusion that the premises was let out for commercial purpose where initially a bakery/general store was being run and later on the tenant started using the premises for printing press. While learned ARC came to the conclusion that the printing press being run by the respondent was not a collateral purpose. Running of printing press amounted to an industrial activity and thus it was a change of user and the petitioner had proved that the tenant/respondent had changed the user of premises to the purpose other than for which it was let out, the learned ARCT observed that this change of user was effected by the tenant during the ownership of the previous owner as the tenant had started printing press sometime in the year 1981 and the premises was purchased by the present owner almost after 10 years so this ground was not available to the petitioner. He also observed that since the previous landlady never raised any objection against the respondent regarding his having changed his business activity from a confectionary shop to a printing press, the present landlord had no right to seek eviction on this ground. He also observed that the work of printing press was a commerce under term "commercial activity" and even if the work of printing press was not a commercial activity and amounted to change of user, the present petitioner would not benefit from this change of user because when he purchased the premises the tenant had already switched over to the work of printing press during the tenure of earlier landlady. The learned ARCT further observed that even if it was assumed that the appellant/respondent did convert to a new business activity or say an industry without consent of the landlord in writing - then also provisions of Section 14(1)(5) of Delhi Rent Control Act were needed to be seen as to how there was a public nuisance caused by the running of the printing press and this was not elaborated and proved. The changed activity had also to be shown to have caused damage to the suit premises and the landlord did not examine a qualified architect to testify that the cracks observed in the walls of the premises of respondent or the damage caused to the floor was due to the running of a printing press and was not on account of normal wear and tear. He therefore, set aside the order of the learned Additional Rent Controller.

(3.) THE tenant in this case has relied on a lease deed, though unregistered, to show that the shop was let out to him for commercial purpose. It is undisputed that the shop was being used by the tenant initially for commercial purpose only i.e. for running a confectionary shop/general store. It is also undisputed that he later on changed his business from confectionary shop/general store to printing press. There is no dispute about the fact that no consent in writing was obtained as required under Section 14(1)(c) of DRC Act whereunder it is necessary that a consent in writing should be obtained. Law is well settled that consent by acquiescence does not serve the purpose. The Act itself makes a distinction between consent in writing and consent without writing. Section 14(1)(c)(i) provides that in those cases where premises was let out on or after 9th June, 1952, consent in writing was a must but in those case where premises had been let out before the said date, the consent may not be in writing. This legal position is well settled in cases of sub -letting and in cases of change of user that if the Act prescribes consent in writing that only means consent in writing and not consent by behavior or acquiescence. If the consent in writing is not obtained before change of user a right under Section 14(1)(c) accrues to the landlord and this right gets transferred on purchase of property to the subsequent purchaser. Thus, non -obtaining of consent from the landlord in writing is an important factor for considering change of user and the learned ARCT went wrong in observing that since the landlord/petitioner knew that the premises was being used for printing press, he had no right to file eviction petition.