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2002 DIGILAW 1344 (PNJ)

Baij Nath v. Shail Kumari

2002-12-04

M.M.KUMAR

body2002
Judgment M.M.Kumar, J. 1. This is a tenants revision petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) challenging order dated 8.5.1985 passed by the Appellate Authority, Ludhiana dismissing his appeal. In the appeal order dated 5.5.1975 passed by the Rent Controller, Ludhiana, was impugned who had recorded a finding of fact that the tenant-petitioner had carried material alteration of the demised premises and its value and utility has been reduced. Therefore, he was held liable to be ejected under Section 13(2)(iii) of the Act. 2. Brief facts of the case necessary to decide the legal controversy raised in the present petition are that the landlady-respondent filed an ejectment application against the tenant-petitioner on 27.1.1971 alleging that the tenant-petitioner has demolished the shop, chabutra, stair case and was preparing to reconstruct the same according to his own volition. It was alleged that no sanction was obtained from the Municipal Committee and even no consent was obtained from the landlady-respondent. Further allegation levelled in the petition is that inspite of an ad-interim injunction granted by the trial Court in the civil suit for permanent injunction restraining the tenant-petitioner from rebuilding/reconstructing the shop under his tenancy, the tenant-petitioner had rebuilt and reconstructed the shop and Chabutra in front of the stair case which has resulted in the impairment of the value of the property and has diminished its utility. On the basis of the pleadings of the parties, the Rent Controller, framed the following issues : "1. Whether the respondent is liable to be ejected on the grounds alleged in para 2 of the petition ? OPA. 2. Relief." 3. On issue No. 1 the Rent Controller recorded a firm finding of fact after himself inspecting the spot that there were some old steps which were in dilapidated condition but there is ceiling now. In short the entire stair case was closed so as to give the look of a shop depriving the landlady- respondent from going to the roof by removal of the steps and putting ceiling thereon. The finding of the Rent Controller reads as under : "Now coming to the construction and reconstructing and the material alterations are concerned, in order to properly appreciate the evidence on record, I visited the spot in the presence of the counsel for the parties also. The finding of the Rent Controller reads as under : "Now coming to the construction and reconstructing and the material alterations are concerned, in order to properly appreciate the evidence on record, I visited the spot in the presence of the counsel for the parties also. My inspection reveals that a complette change had taken place. According to Ex. R.2 some steps and `Thara in front of the stair case was given on rent to the respondent whereas now after removing some steps the respondent has given it a shape of a small room. These some old steps which are in dilapidated condition, but again after that there is ceiling now and in short the entire case have been closed so as to give the look of a shop and now no body can go up by the use of the stairs and the same stood closed after the removal of some steps and putting ceiling thereon. According to Ex. R.2 rent note the landlord was fully authorised to use the upper balakhana and stairs but at present he cannot do so, even though there is no Chaubara on the disputed shop, but still he is prevented from using the upper portion or the staircase and according to Shail Kumari (PW1) and (AW2) Jagdish Rai this has been done without their consent and for this additions, alterations or changes the Municipal Committe also took action as stated by Des Raj (AW 4) and (AW5) Jagtar Singh the two officials of the Municipal Committee. The statements of Des Raj (AW4) and Jagtar Singh (AW 5) do show that the respondent did effect some changes, may be by virtue of some repairs which necessitated the issuance of notice u/s 195-A and 220 of the Municipal Act. This also goes to show that those changes were effected in the year 1970 when those notices were issued. The statements of Des Raj (AW4) and Jagtar Singh (AW 5) do show that the respondent did effect some changes, may be by virtue of some repairs which necessitated the issuance of notice u/s 195-A and 220 of the Municipal Act. This also goes to show that those changes were effected in the year 1970 when those notices were issued. Case of the respondent is that an adjoining wall of Kulwant Rais shop fell on the property in dispute which damaged its roof and front portion as a result of which they had to make necessary repairs and in this connection (RW1) Baij Nath, respondent himself, (RW 2) Mulkh Raj and (RW 3) Kharak Singh have been examined and I have no reason to disbelieve them on this point that actually no new construction was made, rather due to the damage caused to the disputed shop by the fall of wall of Kulwant Rais shop, some damage was caused to the building and some repairs were effected but as discussed above, the respondent has effectted those repairs in such a way that he has changed the very basic construction of the property, as a result of which stair-case which was given to him on rent by virtue of rent note Ex. R.2 have been altered in such a way that thte shape of a shop has been given which is being opened and closed by a door and now those stair-case cannot be used as those are permanently closed by putting roof on it and this act of the respondent has almost completely blocked the passage of the petitioner to the upper portion of her building which the respondent had agreed not to hinder, by virtue of Ex. R.2. In short this act of the respondents has materially altered the value and utility of the property in disputed and as such respondent is liable to be ejected from the disputed premises on this account alone." 4. The afore-mentioned finding recorded by the Rent Controller was affirmed by the Appellate Authority and the argument raised by the tenant-petitioner that the construction raised was of wooden planks and can be removed was negatived. The afore-mentioned finding recorded by the Rent Controller was affirmed by the Appellate Authority and the argument raised by the tenant-petitioner that the construction raised was of wooden planks and can be removed was negatived. The finding further recorded by both the Courts below is that the passage to go on the first floor through the stair-case was permentnly blocked by putting a roof on the stair-case and the same was in violation of the express stipulation in the Rent Note that the landlady-respondent would be free to use the passage and the roof. 5. Shri Adarsh Jain, learned counsel for the tenant-petitioner has argued that in order to succeed in the ejectment petition, three requirements as contemplated by section 13(2)(iii) of the Act are necessary to be fulfilled viz. : i) that there is permanent alteration made by the tenant; ii) that there is material alteration as such alteration alone could constitute the basis for ejectting the tenant; iii) that the material alteration has impaired the value of the building. 6. In support of his submission, the learned counsel has plaed reliance on a judgment of the Supreme Court in the case of Om Pal v. Anand Swarup, 1988(2) RCR(Rent) 419 (SC) : (1988) 4 SCC 545. Learned counsel has further argued that by applying the afore-mentioned test to the facts of the presentt case, it cannot be concluded that there is any permanent alteration because even if it is assumed that the passage has been blocked by the tenant-petitioner it is blocked with wooden planks which is of a temporary nature. Therefore, the same is removable from the spot and free access can be provided to the landlady-respondent. He has also submitted that it is hardly of any use for the landladyt-respondent to have access to the roof because there is no construction on the first floor and therefore, the claim of any access through the stair-case is merely a ruse to get the tenant-petitioner ejected. The learned counsel still further argued that in any case the temporary construction can be removed by the tenant-petitioner. 7. Ms. Alka Sarin has submitted that the concurrent findings of fact recorded by the Courts below would not call for any interference unless some legal flaws are pointed out in those findings. The learned counsel still further argued that in any case the temporary construction can be removed by the tenant-petitioner. 7. Ms. Alka Sarin has submitted that the concurrent findings of fact recorded by the Courts below would not call for any interference unless some legal flaws are pointed out in those findings. She has further argued that the fact of blocking the passage and the stair-case itself violates the terms of the Rent Note which expressly provided that the landlady-respondent would be entitled to have access from the stair-case to go upto the roof. She has also pointed out that there was balakhana on the first floor which is found to have been demolished by the tenant-petitioner. In this regard, he has drawn my attention to the findings recorded by the Appellate Authority in para 7 of its judgment wherein the Appellate Authority has categoricaly concluded that the tenant-petitioner had made material alterations in the premises in dispute by removing the balakhana belonging to the landlady-respondent and the finding of tthe Rent Controller in this regard was affirmed. The observattion of the Appellate Authority in para 7 reads as under : "In this case no consent has been proved. It is admitted by the P.W.S. that there is no Balakhana on the upper storey and also stated by the witnesses of the respondent. According to the case of the petitioner, Balakhana was dismantled by the appellant with the help of Darbari Lal etc. whereas according to thte case of the appellant, said Balakhana was never there, same is not in existence for the last so many years. This shows that the Balakhana had been removed by the appellant. From thte evidence on the record it is proved that the appellant had made material alterations in the premises in dispute and he is liable to be ejected. 8. I have thoughtfully considered the rival submissions made by the learned counsel for the parties. The findings of fact recorded by both the Courts below have not been challenged before me. From thte evidence on the record it is proved that the appellant had made material alterations in the premises in dispute and he is liable to be ejected. 8. I have thoughtfully considered the rival submissions made by the learned counsel for the parties. The findings of fact recorded by both the Courts below have not been challenged before me. Therefore, the findings have attained finality that the tenant-petitioner has changed the very basic construction of property as a result of which the rented premises have been altered in such a way that the same has been given the shape of a shop, which is being opened and closed by a door and the stair case has been permanently closed by putting roof on it. It has also been established as a fact that the tenant-petitioner had agreed in writing by virtue of a stipulation in the rent note Ex. R-2 that he would not ever hinder or block the passage of the landlady-respondent in order to have her access to the upper portion of the building. This act of the tenant-petitioner has materially altered the rented premises and has reduced its utility from the point of view of the landlady- respondent. Another finding of fact which has been affirmed by both the Courts below is that there was a balakhana on the first floor, which has been removed by the tenant-petitioner. In the light of these facts, it has to be examined as to whether the tenant-petitioner is liable to be evicted under section 13(2)(iii) of the Act, which read as under :- "13. Eviction of tenants - (2) A landlord who seeks to evict his tenantt shall apply to the Controller for a direction in that behalf. In the light of these facts, it has to be examined as to whether the tenant-petitioner is liable to be evicted under section 13(2)(iii) of the Act, which read as under :- "13. Eviction of tenants - (2) A landlord who seeks to evict his tenantt shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against thte applicant is satisfied - (i) XX xx xx xx (ii) XX xx xx xx (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or (iv) XX xx xx xx (v) xx xx xx xx the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application : Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate." 9. A persual of sub-clause (iii) of sub-section (2) of Section 13 of the Act shows that if the tenant-petitioner has committed such act that are likely to impair materially the value and utility of a rented building, then the Rent Controller would be well within his jurisdiction to direct the tenant to put the landlord in possession of the building. The judgment of the Supreme Court in Om Pals case (supra), on which reliance has been placed by the learned counsel for the tenant-petitioner has concluded that the landlord must fulfil certain conditions before it could be concluded that the case of ejectmentt of the tenant has been made out. The observations of their Lordships in Om Pals case (supra) read as under :- "It is not every construction or alteration that would result in material impairment to the value or the utility of the building. In order to attract S. 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. In order to attract S. 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord. In the present case the appellant-tenant examined an expert, a retired engineer, to prove that the parchhati was only a temporary wooden fixture which could be easily removed at any time without any damage being caused to the walls of the building. Having regard to the nature of the temporary construction put up by the appellant and the evidence of the expert witness examined by him which remains uncontroverted by any experts evidence on the respondents side, it must be held that there was no material impairment to attract S. 13(2)(iii). There was no basis for contrary findings rendered by the Rent Controller as well as the appellate authority and the High Court erred in accepting those findings without applying the correct principles of law underlying S. 13(2)(iii)." 10. The above quoted observations of the Supreme Court would not apply to the facts of the present case because even if it is assumed that the construction raised by the tenant-petitioner is temporary in nature, it cannot be said that it has not materially impaired the utilitty and value of the building because the landlady-respondent is left with no access to reach the roof through thte stair case. Moreover, the express stipulation in the rent note Ex. R-2 has been violated. It is further evident that a balakhana constructed on the first floor of the premises has been removed by the tenant-petitioner, which at the time of execution of rent note was in existence. The acts of ttenant- petitioner are such that the provisions of clause (iii) of sub-section (2) of Section 13 would squarely apply to tthe facts of the present case. The acts of ttenant- petitioner are such that the provisions of clause (iii) of sub-section (2) of Section 13 would squarely apply to tthe facts of the present case. In this regard, it has to be remembered that the impairment of the value or utility of the building has to be examined from the point of view of the landlord and not of the tenant. The observations of their Lordships in Vipin Kumar v. Roshan Lal Anand, (1993) 2 SCC 614 : 1993(1) RCR (Rent) 675 (SC) read as under :- "The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of clause (iii) of sub- section (2) of Section 13 is impairment of the building due to acts committed by the tenants and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially imparied the value or utility of the demised premises." 11. The provisions of Section 13(2)(iii) of the Act again fell for consideration of the Supreme Court in the case of Gurbachan Singh and another v. Shivalak Rubber Industries and others, 1996(1) RCR(Rent) 399 (SC) : (1996) 2 SCC 626. Holding that Section 13(2)(iii) of the Act squarely apply to the alterations made by the tenant in that case and, therefore, he was liable to be evicted, their Lordships observed as under : "that even if it is assumed that the tenant-respondents raised the construction of shed over the part of the open land of the demised premises with the written consent of the landlord as may be spelt out from the rent note Ext. A/1, then the rest of the construction, additions and alterations of the five shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. The nature of the construction is a relevant consideration in determining the question of material impariment in the value or utility of the building or the demised premises. The nature of the construction is a relevant consideration in determining the question of material impariment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops, partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impariment of the premises affecting its fitness for use for desirable practical purpose and intrinsic worth of the demised premises from the point of view of the appellant-landlords within the meaning of Section 13(2)(iii) of the Act." 12. For the reasons recorded above, this petition fails and the same is dismissed. The tenant-petitioner is directed to hand over the vacant possession of thte demised premises to the landlady-respondent within a period of three months from today.