RUKMINI MALBARI Vs. SHANKAR VITHAL SHINDE

JUDGEMENT

(1.) THE challenge in this petition is the judgement of the Administrative Tribunal, Goa, Daman and Diu, dated 10th September, 1990 in Eviction Appeal No. 49/85 which has unsettled the judgment of the Rent Controller, North Division, Panaji, dated 23rd April, 1985 in Case No. RENT/17/82. By the aforesaid judgment the Rent Controller has allowed an application for eviction moved by the original late petitioner Shri Anand Malbari now represented by his legal representatives, the petitioners for eviction of the respondent No. 1. (hereinafter called the respondent) on two grounds of change of user of the premises and causing nuisance to the neighbours as a result whereof the respondent was directed to hand over vacant and peaceful possession of the suit premises to the said late Anand within a period of sixty days from the date of the receipt of the order.

(2.) THE brief facts of the case are that the late Anand by deed dated 1st December, 1973 granted on lease to the respondent the shop no. 5 on the ground floor of his building Anand Niwas situated at Vivekanand Road, Panaji. Clause 4 of the lease deed provided that the shop was for the purpose of setting up a business dealing in mineral oils such as kerosene, lubricant oils, diesel petrol, etc. and should not be used for any other purpose. Clause 7 provides that the shop should be kept in good condition and any damage to it had to be made good by the lessee. There was also a provision that the lessee should not store or cause to be stored therein any foul smelling or explosive materials. The case of the petitioner is that the respondent, in accordance with the terms of the agreement, initially used the premises for office to carry on his aforesaid business. However, later on he began to store kerosene in barrels in the said shop. This fact apart from being in breach of the agreement was creating a nuisance to the occupants of the building and the neighbours. Besides there was also risk of fire in that kerosene is highly inflammable and, stocked in closed barrels, was also an explosive. The late petitioner therefore filed eviction proceedings against the respondent by his application dated 4-3-1982 on two grounds namely (1) change of user alleging that the respondent was carrying on actual business in the suit shop which has been leased only for the purpose of running or establishing an office in the premises; and (2) nuisance created to the occupants and neighbours of the building by storing kerosene and petrol in the shop and selling it to customers. By judgment dated 23-4-1985 the Rent Controller allowed the application and directed the eviction of the respondent. An appeal filed by the respondent to the Administrative Tribunal was allowed whereby the Tribunal dismissed the petitioner s application by judgment dated 10-9-1990 which is being impugned by the petitioner in this petition filed under Articles 226 and 227 of the Constitution.

(3.) UPON hearing Shri Kakodkar, learned counsel for the respondent, Shri B. D Costa, learned counsel for the petitioners, has fairly given up the ground of change of user and submitted that the question which arises for determination of this Court is whether there is or not nuisance caused by the respondent by storing and selling kerosene in the suit premises in violation of Clauses 4 and 7 of the lease agreement. In this respect the grievance of the learned counsel is that the impugned judgment of the Tribunal by setting aside the order of the Rent Controller which has allowed the late petitioners application for eviction of the respondent on both the grounds pleaded by him has negativated the plea of the petitioner and said that every person used to store kerosene at home and that if this would be an objectionable action, in that case everybody had to stop using or keeping kerosene in his house. However it was also said that kerosene could not be compared with cooking gas which one used to keep in the house for domestic consumption. It was contended by the learned counsel that nobody could deny that kerosene was a highly inflammable substance and although cooking gas might be slightly more inflammable substance than kerosene, the Tribunal went wrong in applying different standards while assessing the question of nuisance. It was urged by learned counsel that if cooking gas could be kept in the house, it that case there was no reason why such gas should not be stored in a shop. This was submitted by the learned counsel in respect of a judgment relied by the Tribunal in the case of (Ghansham Dass, Proprietor M/s. Janta Gas Depot v. Gurdwara Shri Guru Nanak Sat Sangh Sabha Regd. , Sonepat) 1983 (2) All India Rent Control Journal 295. This was a case under the Haryana Urban (Control or Rent and Eviction) Act, 1973 namely its section 13 (2) (ii) (b) and the Court was dealing with the question of scope and applicability of that section. The shop had been let out for cloth business and the tenant started selling oxygen gas cylinders later on without the permission of the landlord. The Punjab and Haryana High Court has observed that it is a matter of common knowledge that oxygen gas is highly inflammable and when cylinders full of this gas are kept in the shop, there are greater possibilities of their catching fire by accident. Even if the original use was not specified and the shop was let out for business, that would imply that the shop was being acquired by the tenant for carrying on a business in innocuous articles. When that user was changed in the sense that highly inflammable articles for sale were kept in the shop, it should have to be held that there was a change of user which would disqualify the tenant to use the shop. Thus the Court ruled that this fact would amount to a change of user and the tenant was bound to be ejected. The learned counsel then contended that it would make a lot of difference between storing small quantity of kerosene in the house and storing kerosene for selling in large quantities in the leased shop. Therefore a dividing line should be established bearing in mind that here was a case of a building wherein about 30 to 40 people were living in flats leased for residential purpose. Thus it was a question of gradation and assessment of the potentiality of the danger which would be caused to these occupants of the building in special circumstances of the case. The learned counsel has also made another grievance that the Tribunal has not answered in the impugned judgment the question raised by the ruling relied by the parties in the case of (Biswanath Chatterjee v. Ajit Kumar Sarkar) A. I. R. 1972 Calcutta 52. That was a case under the West Bengal Premises Tenancy Act, 1956, namely its section 13 (1) (e), and the question which was being discussed was regarding the nuisance or annoyance to the landlord caused by the tenant as a ground for eviction of the tenant from the premises under his tenancy. While dealing with the question of nuisance or annoyance the Court observed that annoyance or nuisance has not been defined in the Act and accordingly it has to be construed in the normal connotation according to plain and sober notions of living. According to judicial decisions, nuisance is anything which interferes with the normal comforts of human life or endangers the health and safety of the neighbour while annoyance is wider and covers anything which reasonably troubles or disturbs the mind or pleasure not of a fanciful or skilled person but of an ordinary sensible person. Thus it was not possible to lay down any rule of law applicable to every case as it would be at all times a question of fact with reference to the surrounding circumstances. In this regard the learned counsel contended that the Tribunal failed to consider the danger created to the occupants of the building and neighbours by the respondent in storing large quantities of kerosene in barrels in a residential building which was located in the heart of Panaji city. It was urged that the Tribunal had not applied its mind to the fact that the respondent was not dealing with small quantity of kerosene which was being stored in the suit shop not for domestic consumption but instead with large quantity of explosive substance for commercial and business purposes. Hence the Tribunal had not given any finding as to whether the storing of large quantities of explosive and inflammable substance was endangering or not the common safety of the neighbours of the building. It was further submitted by the learned counsel that the issue which was placed for consideration was regarding the interpretation the Court should give to Clauses 4 and 7 of the agreement which should be read with the fact that nobody was free or supposed to create nuisance to others.