Smt. Savitribai T. Parkar vs Shri Prabhakar D. Shirwaikar and Others

N.A. Britto, J.—This is a tenants'' writ petition and is directed against Order dated 11-9-2006 of the learned Administrative Tribunal, Panaji, upholding the Order dated 4-3-1996 of the Additional Rent Controller directing the eviction of the tenants on the ground of change of user of the suit premises from residential to part commercial u/s 22(2)(b)(ii) of the GDD Buildings(LRE) Control Act, 1968(Act, for short). There is hardly any dispute as to the facts. By virtue of a lease agreement dated 12-10-1954(Exh-0-1) between Ramchandra Sinai Kaissare and Tilu Shet Parkar(deceased husband and father of the present Petitioners), the suit house was let out for residential purposes. The said agreement was signed on behalf of the said Ramchandra Sinai Kaissare by his nephew Anand M. Kaissare and who also collected the rents on behalf of the said Ramchandra Sinai Kaissare till about July, 1972, the last receipt having been issued on 2-1-1973. After the death of the said Ramchandra Sinai Kaissare the suit house came to be allotted to his son and daughter, the latter having married Prabhakar D. Shirwaikar(Respondent No.1 herein).

After the death of the said Ramchandra and after the suit house was allotted to the wife of Prabhakar D. Shirwaikar, the latter sent a letter dated 25-1-1979(Exh.P-3) to the widow of the said Tilu Shet Parkar stating that the suit premises are now belonging to him and that he was holding power of attorney on behalf of other heirs of Ramchandra Sinai Kaissare and further informing that the rent was not paid since 1972 and further calling upon her to sign necessary lease agreement. The tenants did not respond to the said letter. Thereafter notice dated 16-2-1981 was sent to the tenants stating that they without their consent or permission had converted part of the suit premises to run a bakery and terminating the tenancy from 31-3-1981 and calling upon them to pay all the arrears of rent within thirty days failing which they would proceed in a Court of law. The tenants did not send any reply to this letter as well.

The proceedings then came to be filed on the ground of non payment of rent as well as change of user u/s 22(a) and u/s 22(2)(b)(ii) of the Act and the learned Rent Controller ordered the eviction of the tenants, as aforesaid.

The controversy between the parties centered around the letter dated 2-4-1969(Exh.R4) which according to the tenants is the written consent given by the landlord for change of user of the residential premises into commercial premises. Learned Counsel on behalf of the tenants submits that the said written consent dated 2-4-1969 was given by the said Anand Kaissare who for all purpose was the landlord of the tenants as contemplated by the relevant provisions of the Act. In other words, the change of part of the premises from residential into commercial by setting up of a bakery therein was done by the tenants with the consent of the said Anand Kaissare who was their landlord. Learned Senior Counsel on behalf of the tenants submits that at no stage the tenants had taken the plea that Anand Kaissare was their landlord. Learned Senior Counsel further submits that at no stage the tenants also denied that the house belonged to the said Ramchandra Sinai Kaissare.

Admittedly, at no stage the tenants had taken up the plea, either in answer to the letter dated 25-1-1979 or letter dated 16-2-1981 or in the pleadings specifically that the said Anand Kaissare was their landlord, nor such plea was taken in the cross-examination of the said Prabhakar D. Shirwaikar(Respondent No.1 herein) and therefore such a plea at this belated stage could not be accepted. Firstly, it must be stated that the letter dated 2-4-1969(Exh.R4) can by no stretch of imagination be considered as a written consent for change of user from residential into commercial premises. All that the said letter states is that the said Anand Kaissare had no objection to the said Tilu M. Parkar preparing domestic house-hold products such as papad, pickle, bread, etc. edible items) in the house occupied by him. In other words, it did not consent at all that any wall should be demolished and two of the rooms converted into a full-fledge bakery by erecting an oven with a chimney. Nevertheless both the Courts below after correct appreciation of evidence produced by both the parties have come to the conclusion that the said letter dated 2-4-1969(Exh.R-4) is a fabricated document. In fact, the said Anand Kaissare was examined twice, first as a witness of the landlord on 27-4-1982 and again as a witness of the tenants on 14-2-1995. There was complete silence on his part as regards the said letter dated 2-4-1969 when he was examined on behalf of the landlord. Both the Courts below have accepted the first statement of the said Anand Kaissare as recorded on 27-4-1982 regarding which he had also stated that it was the true statement. Both the Courts below have come to the conclusion that part of the premises have been converted into commercial premises by converting the same into a bakery. These are but concurrent findings of fact rendered by both the Courts below on proper appreciation of evidence produced on behalf of the parties and therefore no interference is called for in writ jurisdiction.

Learned Counsel on behalf of the tenants has submitted that setting up of a bakery would not amount to change of user of residential premises and in this context learned Counsel has placed reliance on Gangasingh v. Smt. Sardarbai (1988 (1) All India Rent Control Journal 227) and Veera Swamy v. Dr. D. N. Domale (2000 (2) RCJ 536). In the first case the tenant, a hawker prepared "chat" in the room of the tenanted premises and sold it on "thela" and it was held that mere preparation of the said food item in the suit premises did not convert the user from residential to non residential. In the second case, the tenant sold bakery articles in the residential premises which he manufactured at a separate place and it was held that there was no change of residential character of the premises. The facts of both the cases are quite distinguishable, from the facts of the case at hand. Here is a case where the tenants demolished a wall and converted two of the rooms of the residential premises to set up an oven (bhatti) with a chimney without the consent of the landlord. Considering the facts of the case, this is not a fit case for interference in writ jurisdiction. Petition therefore is hereby dismissed.