Can the court hold that rented property was used for composite purposes if the professional uses part of it for his professional work?

  In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients used to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. AIR, 1964 Bombay, 200, this Court while considering the advocate's profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities.{Para 4}

5. In Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Hirji Pandya (deceased by his legal heir), 1993 Bom.R.C. ig 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user.

Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is observed by this Court in Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only.

Bombay High Court

Sumatibai Anandrao Rajurkar vs Shri Punamchand P. Lohade on 2 December, 2008

Bench: Anoop V.Mohta

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