Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 668 (PNJ)

Anil Kumar v. Hazari Lal

2004-07-07

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This is landlords petition filed under Section 15(6) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for brevity, the Act) challenging judgment dated 5.10.1999 passed by the learned Appellate Authority, Narnaul. The Appellate Authority has held that installation of a tin shed in the facts and circumstances of the case, would not constitute a material impairment to the value and utility of the tenanted premises. 2. Facts in brief which are necessary for deciding the controversy raised in the instant petition are that the landlord-petitioner sought ejectment of the tenant-respondent I by pleading that he has broken the projection of the demised premises and has also removed the Chokhat (wooden frame for the doors) of the stair case along with the doors. It is further alleged that the tenant-respondent 1 has also installed a tin shed on the demised premises along with the water tap without the permission of the landlord-petitioner. The aforementioned acts are alleged to be sufficient for impairing the value and utility of the demised premises as alleged by the landlord-petitioner. 3. The allegations made by the landlord-petitioner have been denied. It has been specifically pleaded that projection has not been broken nor the Chokhat of the stair case along with the door has been removed. It has further been denied that any water tap or tin shed has been installed by the tenant-respondent 1 claiming that the tin shed was already in existence on the demised premises at the time when the demised premises were taken on rent. 4. The Rent Controller came to the conclusion that the landlord-petitioner has failed to prove that Chokhat or the doors were removed from the stair case of the demised premises by the tenant-respondent 1. He further found that any almirah or chimney have been constructed by him. The question with regard to erection of a tin shed was answered in favour of the landlord-petitioner because it was found that there is no reference of the tin shed in the rent note Ex.PW2/A which led to the conclusion that no tin shed was in existence on 16.12.1974 when the rent note was executed by the tenant-respondent 1 in favour of the landlord-petitioner. It was further found that the tin shed as a temporary shed erected by tenant-respondent 1 without the consent of the landlord-petitioner. It was further found that the tin shed as a temporary shed erected by tenant-respondent 1 without the consent of the landlord-petitioner. However, the Rent Controller ordered ejectment of the tenant-respondent I on the ground of erecting a tin shed which was found to have impaired the value and utility of the demised premises. 5. On appeal, the Appellate Authority came to the conclusion that although tin shed was erected without the consent of the land lord-petitioner but it did not impair the value and utility of the demised premises. The view of the Appellate Authority is reflected in paragraphs 10, 11 and 12 of the judgment which reads as under:- "10. It is settled proposition of law that where question for determination was whether alteration had impaired the value and utility of the building, the impairment and utility has to be examined from the point of view of the owner and not from the point of view of the tenant. In this case in hand, there is nothing to infer that by raising the alleged tin shed respondent/tenant has materially impaired the value and utility of the premises. No doubt tenant has continuously been claimed that this tin shed has been in existence at the site for the last 30/32 years but his that claim stood shattered by the stipulation made in the rent note Ex.PW2/A which was admittedly executed between the parties. A bare reading of this rent note would reveal that no such tin shed was existing at the site when this rent note was executed. That being so this tin shed can be taken to have been raised by the respondent/tenant Hazari Lal after taking this premises on rent. He has not shown any permission having been accorded to him by the landlord for raising this tin shed. That being so the tin shed can be taken to have been raised by the tenant as shown in the site-plan Ex.PW1/A without the consent of the landlord. 11. Be that as it may. A suggestion was put on behalf of this tenant to PW4 Mohan Lal that this tenant Hazari Lal had raised this temporary shed. This suggestion was no doubt denied by him. But the fact remains that this tenant himself had admitted to have raised this tin shed, by way of putting such a suggestion. 12. Be that as it may. A suggestion was put on behalf of this tenant to PW4 Mohan Lal that this tenant Hazari Lal had raised this temporary shed. This suggestion was no doubt denied by him. But the fact remains that this tenant himself had admitted to have raised this tin shed, by way of putting such a suggestion. 12. Once the raising of the tin shed by the tenant at the site is proved what has to be seen is whether this tantamount to materially impairing the value and utility of the demised premises. According to the landlord flow of light and air in the demised premises has been diminished on account of this shed and therefore the value and utility of these premises have been materially impaired. There seems to be hardly any substance in the above claim of the landlord. Site of the tin shed is such that it cannot be taken to have obstructed the flow of light and air in the demised premises. Moreso such a temporary structure cannot be termed as a permanent structural alteration in the demised premises. Our own Honble High Court in the authority reported as Bir Devinder Singh v. Mangat Ram, 1995(1) R.L.R. 232 held that putting up of temporary tin shed in front of room with object of preventing rain showers and sunlight cannot be equated with the construction of room. It was further held that such construction cannot cause impairment and therefore the ejectment of tenant could not be ordered on this ground. In that case also the tenant was proved to have raised construction of such a tin shed and in that eventuality Honble High Court held as above and set-aside the order of eviction passed against the tenant." 6. Mr. Sanjay Mittal, learned counsel for the landlord-petitioner has argued that the erection of tin shed by itself cannot be considered as a temporary construction and the surrounding facts have to be taken into account. According to the learned counsel, the report of the expert Ex.PW1/B clearly suggests that while erecting the tin shed pucca bricks and mortar have been used which by no stretch of imagination could be considered to be temporary in nature. The learned counsel has referred to the statement made by RW2 who has supported the version of the landlord-petitioner. According to the learned counsel, the report of the expert Ex.PW1/B clearly suggests that while erecting the tin shed pucca bricks and mortar have been used which by no stretch of imagination could be considered to be temporary in nature. The learned counsel has referred to the statement made by RW2 who has supported the version of the landlord-petitioner. Referring to the judgment in the case of Om Parkash v. Amar Singh and Anr., A.I.R. 1987 Supreme Court 617, the learned counsel has argued that the facts of every case have to be examined and then findings are to be recorded as to whether there is material impairment caused to the tenanted premises. 7. Mr. Parmodh Mittal, learned counsel for the tenant-respondents has submitted that the tin shed is temporary in nature and by no stretch of imagination, it could be considered to be permanent. He has also pointed out that no damage could possibly be caused to the tenanted premises by the erection of tin shed. The learned counsel has also placed reliance on the judgment of the Supreme Court in the case of Om Parkash (supra) and argued that his case is squarely covered as in that case also a shed had been erected by constructing a partition wall. As the partition wall was constructed without digging any foundation, it was held to be a temporary wall along with the shed. 8. After hearing learned counsel for the parties and perusing the record, I am of the considered view that there is no evidence on record showing erection of any permanent structure altering the form or the front of the demised premises. In the absence of any evidence, it cannot be concluded that the tin shed erected by the tenant-respondent has caused material alterations because it is only a temporary shed which can be dismantled any time. The Appellate Authority has recorded the findings that once it is held that erection of the tin shed is temporary, then it cannot be further concluded that it has necessarily impaired the value and utility of the demised premises. In Om Parkashs case (supra) the tenant has raised a temporary wall of 6 height in the big hall of the demised premises and had converted the hall into two portions for convenient use without the consent of the parties. In Om Parkashs case (supra) the tenant has raised a temporary wall of 6 height in the big hall of the demised premises and had converted the hall into two portions for convenient use without the consent of the parties. The wall was erected without digging any foundation on the floor of the hall nor it went as high as the roof. The tenant also extended a pre-existing tin shed on the open land by constructing a wall made of bricks and mud; and enclosed it by bamboo tatters. The Rent Controller as well as the Appellate Authority found that none of the construction would fall within the domain of material alterations. The High Court reversed the findings by concluding that there was material alterations and the tenant was liable to be ejected. However, the Supreme Court restored the view taken by the Rent Controller as well as the Appellate Authority and concluded that expression materially altered means a substantial change in the character form and the structure of the building without destroying its identity. It was further found that the nature of construction was temporary. It has been further laid down that no rule of law of universal application could be laid down as to what construction would be covered by material alterations because it is a question of fact depending on the facts of each case. Similar principles have been applied by the Supreme Court in the case of Om Pal v. Anand Swarup, (1988-2)94 P.L.R. 699 (S.C.) where a Parchhati constructed by the tenant in Dry Cleaning Shop for storing clothes by inserting wooden planks through holes allowing the Parchhati to rest thereon was held to be not a material impairment. 9. In the present case, it has been found by the Appellate Authority that although there is a tin shed erected by tenant-respondent 1, yet there is no evidence to conclude that it is of such a nature as to have become part of the building permanently. It is generally seen that tin sheds are erected for the purposes of protecting the building from rain and sun and such sheds do not constitute permanent alteration or as such cause material impairment to the demised premises. Such like tin sheds can easily be dismantled without causing any material damage to the demised premises. It is generally seen that tin sheds are erected for the purposes of protecting the building from rain and sun and such sheds do not constitute permanent alteration or as such cause material impairment to the demised premises. Such like tin sheds can easily be dismantled without causing any material damage to the demised premises. The case of the landlord-petitioner would not be covered by Section 13(2)(iii) of the Act as interpreted by the Supreme Court in the cases of Vipin Kumar v. Roshan Lal Anand, (1993-2)104 P.L.R. 349 (S.C.), Gurbachan Singh v. Shivalak Rubber Industries, (1996)2 S.C.C. 626:.(1996-2)113 P.L.R. 694 (S.C.) and Waryam Singh v. Baldev Singh, (2003-1)133 P.L.R. 154 (S.C.). Therefore, no interference by this Court is warranted. 10. Even otherwise, the question of erection of a structure like tin shed is a question of fact and this Court would not be inclined to interfere with the findings of facts under Section 15(6) of the Act as has been held by the Supreme Court in Azra Abdulla v. Asiatic Oxygen and Acetylene Co. Ltd., 1995 Supp(4) S.C.C. 398. Fatmabibi Usmal Patel v. Manguben Pranbhai Thakkar, 1995 Supp(3) S.C.C. 193 and Om Parkash v. Mohinder Singh, 1987 Supp S.C.C. 604. Therefore, the instant petition is liable to be dismissed. 11. For the reasons recorded above, this petition fails and the same is dismissed. There shall, however, be no order as to costs.