BASHIR UDDIN Vs. DISTRICT JUDGE BULANDSHAHAR AND

JUDGEMENT

(1.) WHEN this petition came up for hearing before N.D. Ojha, J. he appears to have entertained doubts about the correctness of the decision in Ram Prasad v. Third Additional District and Sessions Judge and others (Writ Petition No. 8202 of 1974) decided on October 22, 1975, in as far as it construed clause (ii) of the Third Proviso to Section 21 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972-hereinafter referred to as the Act-and consequently referred it for decision by a larger Bench. This is how this petition has come up before us. The facts material for the decision of this writ petition are that the petitioner is the landlord of an accommodation situate in the town of Bulandshahr of which respondent No. 3 is a tenant. The petitioner made an application under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 seeking permission, to institute a suit for eviction of respondent No. 3. While the application was still pending, the Act came into force and by virtue of Section 43 (2) (a) of the Act, the application of the petitioner stood transferred to the 'Prescribed Authority' (respondent No. 2) to be dealt with as one under Section 21 of the Act. The petitioners case, in brief, was that he is a resident of Khuria and was registered by the U.P. Dental Council at Lucknow as a Medical Practitioner and had been practising as a Dental Surgeon since 1958. He had been carrying on his profession in a small rented accommodation in Mohalla Gandhi Road, Khuria, which was insufficient to meet the needs of his growing practice. It was further alleged that in the adjoining building Messrs. Ashok Industries had installed a heavy machinery for manufacture of bolts etc. and the resulting noise was a_constant source of irritation to the petitioner in the performance of his professional duties. He alleged that the accommodation in his possession was too small and he found great difficulty in attending to his patients and manufacturing dentures etc. therein. Hence, in order to meet his professional needs he had purchased the disputed premises which consists of one Kothri and a Tidri' adjoining it. It was stated that the petitioner proposed to get it reconstructed and rendered suitable for his professional requirements. Respondent No. 3 disputed the assertions made by the petitioner and alleged that he had been residing as a tenant in the disputed premises for the last eleven years and that the petitioner himself was carrying on his business as a Dental Surgeon in another shop situate on Gandhi Road, Khurja, without any difficulty. It was stated by respondent No. 3 that he is a poor washerman having a family of 10 members to maintain and that the premises in question were being used by him for residence as well as for washing clothes of his customers and he had no other accommodation, It may be stated there that the petitioner offered respondent No. 3 an alternative accommodation. While the application under Section 3 of U.P. Act No. III of 1947 was pending before the Rent Control and Eviction Officer, the officer made an inspection of the accommodation in the occupation of the petitioners as well as the premises from which respondent No. 3 was sought to be evicted. The Rent Control and Eviction Officer recorded in the Inspection Note that the petitioner occupied a rented house situate at Gandhi Road, Khurja in which he was running his dental clinic. As far as the disputed premises is concerned, according to the Inspection Note, it consisted of one room measuring 16ft.x 8 ft. and a verandah 16'x9'. In the verandah which adjoined the room, the Rent Control and Eviction Officer found one Bhatti. On the basis of the evidence led by the parties by means of affidavits, the Prescribed Authority held that, "It appears that the applicant is a Doctor carrying on his profession in a small rental accommodation. This accommodation is too small to adjust the growing practice of the applicant. Besides this, the adjoining building of the dental clinic has been taken by M|s. Ashoka Industries who have installed heavy machinery and manufacture bolts etc. The sound of which creates nuisance and is a great impediment of the application." While considering the needs of respondent No. 3, the Prescribed Authority found that, "It would be clear from his written statement and the affidavits of the witnesses that he is a poor washerman having a family of 10 members. He has no other accommodation to live in. As such his need for a house is genuine." In the view of the Prescribed Authority, the needs of the petitioner as well as that of respondent No. 3 were equally genuine. However, in view of the fact that the petitioner was willing to provide alternative accommodation to the tenant, the Prescribed Authority took the view that the need of respondent No. 3 could be met shifting to the accommodation offered and he consequently allowed the application of the petitioner and ordered the eviction of respondent No. 3 from the premises in dispute. Respondent No. 3 filed an appeal under Section 22 of the Act before the learned District Judge, Bulandshahr. After making a comparative estimate, the learned District Judge came to the conclusion that the hardship to which the landlord would be put by refusal of his request would be much greater than the hardship of the tenant and hence the discretion should be exercised in favour of the landlord. Inspite of this conclusion, the learned District Judge took the view that since the landlord desired to evict respondent No. 3 from a residential building for occupation for 'business purposes', clause (ii) of the Third Proviso to Section 21 of the Act presented an insurmountable legal difficulty and the landlord's prayer could not be granted. It was contended before the appellate authority on behalf of the landlord that the disputed premises was not a 'residential building' but was being used for business purposes. The learned District Judge repelled the contention holding that the disputed accommodation was being used by the tenant mainly for residential purposes of his family and only a part of his work as washerman was being done in a small portion of it. It was held that 'the use of a part of the accommodation for purposes of Bhatti or for pressing washed clothes will not turn the accommodation into business premises'. The appeal was consequently allowed. The order of the Prescribed Authority was set aside and the petitioner's application was dismissed. Aggrieved by the appellate order, the petitioner has filed this writ petition. It was urged before the learned single Judge, as it has been before us, that the petitioner sought the eviction of respondent No. 3 on the ground that he needed the premises in question for purposes of his profession as a Dental Surgeon and not for any commercial use, and consequently clause (ii) of the Third Proviso to Section 21 of the Act was not attracted. Learned counsel for the petitioner elaborated his contention by submitting that the word 'business' occurring in clause (ii) of the Third Proviso to Section 21 was used by the legislature in a restricted sense and was confined to commercial,, mercantile or industrial pursuits. It was urged that professions like those of a doctor or a lawyer were not included within the meaning of the expression 'business'. On the other hand, counsel for respondent No. 3 submitted that the intention of the legislature was to prevent eviction of tenants fom premises occupied for residential purposes by landlords intending to use the same for any purpose other than residence. On behalf of the petitioner, reliance was placed on the unreported decision of K.C. Agrawal, J. In Ram Prasad v. Third Additional District Judge, Kanpur and others (Writ Petition No. 8202 of 1974) decided on October 22, 1975, wherein the view was expressed that the word 'business' has not been used in a broader sense embracing everything in which a person can be employed. It has been used in a narrower sense. It applies only when a residential premises is required by a landlord for converting it into a place for commercial use'. We have heard learned counsel for the parties and in our judgment the view taken by the learned District Judge with regard to the scope of clause (ii) of the Third Proviso to Section 21 of the Act is correct. The word 'business' has not been defined in the Act and is not a word of art. It is capable of being construed in a comprehensive as well as a restricted sense, depending on the context in which it occurs. According to Webster's New Twentieth Century Dictionary, 'business' means 'employment; occupation; profession; calling, vocation; means of livelihood; that which occupies the time, attention, and labour of men, for the purpose of profit or improvement. 'According to the same Dictionary, the word may also mean' commerce or trade in general'. In Corpus Juris Secundum Volume 12 page 762, the word 'business' in its broader sense is denned as follows: - "In its broad, its broader, or in its broadest, sense, in its more general or common use, in its primary meaning, or when used colloquially, the word 'business' carries with it a very broad meaning; and it has been said that it denotes not only all gainful occupations, but all occupations or duties in which men engage ........has common and general application to all sorts of enterprises which engage people's attention and energies; and includes nearly all the affairs in which either an individual or a corporation can be actors; and is a word in common use to describe every occupation in which men engage........the word is commonly employed in connection with an occupation for livelihood or profit but it is not limited to such pursuits, for it has been said that the definition of 'business' by the lexicographers is sufficiently broad and comprehensive to embrace every employment or occupation........" According to Aiyar's Law Lexicon of British India (1940 Edition) page 164, the word 'business' in its larger sense has been stated to mean 'an affair requiring attention and care; that which business and occupies one's time, attention, and labour as his chief concern'. In the same passage the word 'business' is mentioned as conveying in, the narrower sense, 'mercantile pursuits; that which one does for a livelihood; occupation; employment; as, the business of a merchant; the business of agriculture'. It is a well established rule of interpretation that in order to and out the true import of enacted words one must look both at the words as well as the object of the legislation. Words and phrases occurring in a statute are to be taken not in an isolated and detached manner dissassociated from the context in which they occur. In the present case, the broader question as to whether the word 'business' within the meaning of clause (ii) of the Third Proviso to Section 21 is limited to profit-making activities alone or not does not really arise since it is obvious that the petitioner needs the premises in dispute for carrying on gainful employment as a Dental Surgeon. To our mind, there is intrinsic evidence in the Act itself to justify the conclusion that the word 'business' within the meaning of clause (ii) of the Third Proviso to Section 21 of the Act includes within its scope 'professions' as well as 'callings'. According to Section 3(i) 'building' means residential or non-residential roofed structure . . . .' It is not difficult to understand as to what a residential building is. These words can have no relation to the nature of the structure because human need is capable of converting and using any building for the purpose of residence. A residential building must consequently be a building which at the moment is being utilized primarily for the purpose of residence. Non-residential buildings would be buildings which are used for any purpose other than residence. We have to bear in mind that we are living in a welfare State and the basic and primary need of a citizen is shelter and this need must take precedence over the requirements of other activities, commercial or otherwise. This, in our opinion, is the objective that clause (ii) of the Third Proviso to Section 21 seeks to achieve. The object of the provision plainly seems to be to put a curb on the tendency of landlords to render tenants homeless and to divert premises under use for residential purposes to other purposes. Section 21 (1) (a) enables a landlord to apply for eviction of- a tenant from a building bona fide required either in its existing form or after demolition and reconstruction for occupation by himself or any member of his family, or any person for whose benefit it is held by him 'either for residential purposes or for purposes of any profession trade, or calling........' This provision divides the needs of a landlord into two distinct classes. The need may be for 'residential purposes' or for non-residential purposes like carrying on a 'profession, trade or calling'. The Third Proviso of the section lays down that 'no application under clause (a) shall be entertained in the case of any residential building for occupation for business purposes'. In our opinion, the proviso debars a landlord from applying for the eviction of a tenant from buildings under use as a residence for the other purposes mentioned in clause (a) of Section 21 (1) that is to say for the purposes of profession, trade or calling. The right of a landlord to apply for the eviction of a tenant from a residential building remains intact provided he needs it for the purposes of his own residence or residence of any other member of his family or any other person for whose benefit it is held by him but the clause under consideration acts as an impediment to the landlord converting a residential building into a non-residential building. That in our judgment, is the intention of the legislature. Instead of repeating the words 'for purpuses of any profession, trade, or calling' occurring in clause (a) of Section 21(1), the legislature has used the compendious expression 'business purposes'. We are firmly of the view that the words 'business purposes' within the meaning of clause (ii) of the Third Proviso to Section 21 covers within its range 'purposes of any profession trade or calling, 'occurring in Section 21 (i) clause (a). We are fortified in the view taken by us by the definition of the word 'business' in Rule 2(b) of the Rules framed under the Act, according to which it means 'any profession, trade or calling'. 'The Rules have been framed by the State Government in exercise of powers under Section 41 of the Act. Section 42 of the Act requires that 'all rules made under this Act shall, as soon as may be after they are issued or made, be laid before each House of the State Legislature, while it is in session, for a total period of fourteen days which may be comprised in its one session or in two or more successive sessions and shall, unlesis some later date is appointed, take effect from the date of their publication in the Gazette subject to such modification or annulment as the two Houses of the Legislature may during the said period agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done there under. 'This procedure evidently must have been followed before the publication of the Rules in the Gazette. It is thus not unreasonable to hold that the definition of the word 'business', as it is to be found in the Rules, found legislative approval. According to Craies on 'Statute Law' (Seventh Edition) page 157 where the language of an Act is ambiguous and difficult to construe the Court may for assistance in its construction refer to rules made under the provisions of the Act, especially where such rules are by the statute authorising them directed to be read as part of the Act'. In the instant case there is no provision in the Act to the effect that the Rules framed there under shall be read as part of the Act but as already stated the Act does provide for the rules being placed before the legislature which has the power to approve or disapprove them. In Bramwell v. Lacy (10 Chancery Division 691) the Court was called upon to construe a covenant by lessee with the lessor not to carry on upon the demised premises 'any trade, business, or dealing whatsoever, or anything of the nature thereof, or suffer any act or thing which may be or grow to the annoyance, damage, injury; prejudice; or inconvenience of the neighbouring premises, 'The contention that the word 'business' meant the same thing as the words 'trade' or 'dealing', that is an activity which is carried on for purposes of profit and that it could not include nor was meant to include an employment carried on for purely philanthropic purposes was repelled. A philanthropic hospital not carrying on a trade was held to be a 'business'. The question as to whether running of a philanthropic hospital was a 'business' or in the nature of a business, was answered by Justice Jessel, M. R. In the affirmative and he held that, 'I have no doubt it is. It is in reality an apothecary's business. The question whether it is a business carried on for the purpose of profit or not, is not, in my opinion, material'. Similarly, In re Williams Will Trusts, Chartered Bank of India, Australia and China v. Williams and others (1953 Ch. D. 138.) the Court was called upon to determine as to whether the word 'business' included the medical profession. It was held by Dancrwerts, J. that the meaning of the word 'business' seems to me to be plain; on the meanings attributed to it in the dictionaries and in the authorities, the word 'business' is capable of including the practice of a profession'. Coming to the decisions of our own Courts, the Madhya Pradesh High Court in Badrilal v. Digamber Jain Panchayctt, Sonkutch (1973 Rent Control Reporter 675.) held that 'running of a Pathshala or school for religious instructions' is a business within the meaning of Section 12(f) of the M.P. Accommodation Control Act. The material facts leading up to that decision were that a society called Digamber Jain Panchayat controlled and managed two Jain temples with nine houses attached to the temples for their maintenance. Most of the houses were on rent and the income was applied for the maintenance of the temples and some attached Dharamshalas and schools. One of the houses had been rented to the defendant-appellant before the Court. The Digamber Jain Panchayat instituted a suit for eviction of the tenant on the ground that it needed the house for running a Pathshala for imparting religious instructions to young members of the Jain community there. Section 12 (f) of the Madhya Pradesh Accommodation Control Act, 1961 and the corresponding section of the Act of 1955 which dealt with the same subject provided that the landlord could take non-residential accommodation only for 'the continuing or starting his business etc'. It was urged before the High Court that the running of a Pathshala was not a business and the Panchayat did not require the house for the continuing or starting a business. It was held by H.R. Krishna, J. that the argument was ingenious but altogether fallacious. The learned Judge observed that, "The sub-section begins and ends with 'non-residential purpose', but in between, 'the requirement for starting his business etc.,' is mentioned. In other words, by business is meant whatever activity can be done in any non-residential accommodation that is to say the word 'business' here is used in the broad and general sense of any activity whatsoever. For the purpose of that section, that activity should be different from the mere residence by the person concerned. Thus, it is a wrong reading of the section to urge that the non-residential accommodation can, be taken only for business in the narrow sense and not for business in the larger sense." A Full Bench of the Punjab and Haryana High Court in Model Town Welfare Council v. Bhupinder Pal Singh (A.I.R. 1973 Punj. and Har. 76) while construing the word 'business occurring in the East Punjab Urban Rent Restriction Act, gave the word an 'extended' meaning. The facts giving rise to the case in the Punjab and Haryana High Court were that the applicant Model Town Welfare Council, Ludhiana, was a society registered under the Societies Registration Act and the Government of Punjab transferred to it free of cost a plot of land for the specific purpose of constructing a library building thereon at its own cost within three years. The construction was not taken in hand immediately because of lack of funds and meanwhile the vacant portion of the plot was let out to Bhupinder Pal Singh for running a fuel end coal stall with a specific condition that the respondent will vacate the plot when required by the petitioner-society. A notice was served on the respondent by the petitioner before the High Court to vacate the land which was not complied with and consequently the society filed a suit against the respondent for his eviction on the ground that the plot was required by the Society for its own use 'for the construction of library building.' One of the pleas taken in defence was that since the necessity of the Society was not for commercial purpose, the tenant could not be evicted. Sub-clause (ii) of sub-section (3) (a) of Section 13 of the East Punjab Urban Rent Restriction Act ran follows: - "(3)(a) A landlord may apply to the Controller for an order directing the tenant to put the land-lord in possession- (i) . (ii) in the case of rented land, if- (a) he requires it for his own use; (b) he is not occupying in the urban area concerned for the purpose of his business any other such rented land; and (c) he has not vacated such rented and without sufficient case after the commencement of this Act, in the urban area concerned." 'Rented land' was denned in Section 2 of the Rent Restriction Act as 'any land let separately for the purpose of being used principally for business or trade.' Sub-clause (ii) (b) of Section 13 (3) (a) used the word 'business' only and this sub-clause ran thus: - "he is not occupying in the urban area concerned for the purpose of business any other such rented land." One of the questions consilered by the Full Bench was as to 'whether the word 'business has been used in the definition of 'rented land' in Section 2 (f) and in clause (b) of Section 13 (3) (a) (ii) of the Act in the restricted sense of commercial business carried on with the motive of earning profit or in the longer sense in which the expression includes everything which engages the time, talent and interest of a man, i.e., something in which a person proposes to engage himself either as a duty or in discharge of the responsibilities: of his office.' The Full Bench held that, "The word 'business' in Section 2 (f) and Section 13 (3) (a) (ii) of the Act need not necessarily be commercial business carried on with a profit motive. The word includes within its scone a chargeable business or a dealing in the interest of the public or a section of the public. The scope of the word 'business' in the aforesaid provision of the Act is not controlled or coloured by the word 'trade' occurring alongside it in Section 2(f) of the Act." Both these decisions were concerned with interpreting the word 'business' occurring in enactments pan materia with the Act with which we are concerned. With due deference to brother K.C. Agrawal, we are unable to agree with the view expressed by him in Ram Prasad v. Third Additional District Judqe (supra). In support of the view taken by him with regard to the scope of the word business' in clause (ii) of the Third Proviso to Section 21 of the Act, the learned Judge placed reliance on the decision of the Supreme Court in Hindustan Steel v. State of Orissa (A.I.R. 1970 S.C. 273). In our opinion that decision cannot be of any assistance in construing the word 'business' within the meaning of the Act with which we are concerned. The Supreme Court in the aforesaid decision was interpreting the word as used in a. taxing status. It is stated in Stroud's Judicial Dictionary (Words and Phrases) Volume I, Third Edition page 365 that, "But though the contemplation of making profit was stated by Jessel, M.R. in Smith v. Anderson (15 Chancery Division 258) to be an ingredients in determining whether a sequence of things done would form a business' and though that idea runs through the other cases just cited, yet that portion of the definition would seem to be confined to cases under the Companies Act, or those of a like kind. It is indeed clear law that there may be a 'business' offending against a prohibitory covenant, without pecuniary profit being at all contemplated. In such a connection, especially, 'business' is a very much larger word than 'trade', and the word 'business' is employed in order to include occupations which would not strictly come within the meaning of the word 'trade'-the larger word not being limited by association with the lesser........" Brother K.C. Agrawal also found support in the view taken, by the Madras High Court decision in Naickerr v. Siwasubramanian (A.I.R. 1937 Mad. 293) in which the Court had occasion to consider the expression 'carrying on business' used in Section 20 of the C.P.C. In the above-mentioned decision, the Madras High Court held that the expression 'carrying on business' was used in a restricted sense, viz., as relating to commercial business. The decision of the Madras High Court is no longer good law in view of the decision of the Supreme Court in Union of India v. Ladulal Jain (A.I.R. 1963 S.C. 1681). The question for consideration before the Supreme Court was whether the Government of India in running of railways carries on business within the meaning of Section 20(a) of the C.P.C Raghubar Dayal, J. delivering the judgment of the Court held that running of railways by the Government is such an activity which comes within the expression 'business'. It was held that 'the fact as to who runs the railways and with what motive cannot affect it.' (emphasis supplied). For the reasons given, we are unhesitating of the opinion that the need of the petitioner as set out in his application was one for a business purpose. On behalf of the respondent, it was contended that the accommodation in dispute was not a residential accommodation because respondent No. 3 on his own showing carried on the business of a washerman therein. This contention found encouragement from the, reply to the application of the petitioner in which respondent No. 3 Described the accommodation as a shop. That word has been loosely need and cannot justify the inference that the disputed premises were non-residential. The dominant purpose for which an accommodation is being used must be discovered for the purpose of determining as to whether a particular accommodation is being used for a residential purpose or otherwise. The Prescribed Authority as well as the learned District Judge have found that the family of the respondent No. 3 consisting of ten members resided in the disputed premises which consisted of only one room and a verandah described as a Tidri. The Inspection Note made by the Rent Control and Eviction Officer discloses that there was a Bhatti existing in a part of the verandah. We can take judicial notice of the fact that washing operations of clothes are usually performed by washermen either in rivers or ponds. The Bhatti apparently was used for part of the clay only for the purpose of pressing the clothes already washed, The contention that the building in question was not residential but was used for business purposes was, in our opinion, rightly repelled by the learned District Judge. It was held by M. Santosh, J. of the Mysore High Court in Mrs. C. Colaco v. Urban D'Silva (1970 Rent Control Reporter 733) that, "Even though a house is taken for residential purpose, it does not prevent the person from carrying on his profession in the said premises during his spare time as has been pointed out by Madras High Court. Simply because a lawyer meets his clients in his house, and transacts some legal work, or a doctor sees some patients in his house, a residential house is not converted into a non-residential one. It is also to be borne in mind that it is not disputed that the respondent and his family members were residing in the said premises. The fact that they were incidentally carrying on tailoring work in the house does not amount to conversion of a residential premises into a non-residential one." The Mysore High Court in this decision was called upon to decide as to whether the tenant two had taken on rent a house for residential purpose had violated Section 108, clause (O) of the Transfer of Property Act, by putting a sewing machine therein which was utilised for sewing the clothes of his customers. The Mysore High Court cited with approval the observations made in Jugran Jain v. Ambika pathi ((1959) 2 Madras Law Journal 240) which were to the following effect:- "Even though a house is taken for purely residential purposes, some occupational and profit-making activities by the resident therein, in a small portion unostentatiously and without running a shop or causing any nuisance, are inevitable and permissible in these days of complex civilization. In the same Madras decision, the Court observed as follows:- "The third contention of Mr. Inamdar was that even regarding the premises let out for purely residential purposes, a reasonable portion could be used for occupational and profit-making purposes provided there was no conversion of the residential premises to non-residential premises, and no nuisance was caused, and it is unobstrusive and quiet affair not involving the running of a shop or the gathering of crowds. As laid down by me in Krishna Nair v. Valliammal ((1949) 1 M.L.J. 74) approved by a Full Bench of this Court (A.I.R. 1952 Mad. 413) a premise must be deemed to be taken and used for 'residential purpose' though a portion of the premises may be used for making appallams when people are not sleeping there and used for sleeping purposes when appalams are not made there." In Krishna Nair v. Valliammal, the Madras High Court pointed out that, "A lawyer may advise his clients in a room of his house; a doctor may give consultation to his clients in a room of his house; an astrologer may give his predictions to his clients in a room of his house; a barber may have his select and urgent clients in a room of his house; a papadom-maker can make papadom in a room of his house; provided the portions so used form only a fraction of the entire premises and does not alter the nature of the premises from residential to non-resiidential purpose." The dominant use of the house, which consisted of a single room and, a verandah, in which ten persons resided was clearly residential. For the reasons given above, we are of the opinion that there is no merit in this petition, which is hereby dismissed. Parties shall bear their own costs.