Punjab-Haryana High Court
Shivala Damodar Dass vs Shankar Dass And Ors. on 11 October, 2002
Equivalent citations: (2003)133PLR222
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. This is landlord's petition challenging the dismissal of petition under Section 13 of the East Punjab Rent Restriction Act (hereinafter referred as to the Act) seeking ejectment of the respondent inter alia on the grounds of arrears of rent, material impairment of the value and utility of the building, personal requirement and nuisance.
2. Leaned Rent Controller dismissed the ejectment petition holding that there is no relationship of landlord and tenant between the parties, although the Rent Controller found that the respondent has materially impaired the value and utility of the building. Since the ejectment petition was dismissed, the petitioner filed an appeal before the Appellate Authority. In appeal the Appellate Authority reversed the findings and held that the petitioner is a juristic person and since the property is being managed by the petitioner therefore, there is relationship of landlord and tenant between the parties. The Appellate Authority relied upon the judgments Ex.DA and DB to hold the relationship of landlord and tenant between the parties.
3. The landlord gave up the grounds of personal requirement during the course of arguments before the Appellate Authority as the ingredients for seeking eviction on the ground of bona fide, own use were not pleaded. The rent having tendered, the only ground which was pressed by the landlord for ejectment is that the tenant has materially impaired the value and utility of the rented land. The respondent is a tenant of the land bounded as mentioned in the ejectment petition at the monthly rent of Rs. 45/-. The ground of ejectment pleaded by the petitioner reads as under:-
"i). That the respondents are failing in arrears of rent from 1.2.1987 till today,
ii) That the respondents have violated the terms of their tenancy in as much as they have divided and bifurcated the plot and made constructions thereon without the written consent of the applicant. They have even bifurcated the passage of the rented land and have erected a wall, besides the respondents have constructed sheds and rooms of their own choice to which they are not entitled. They have practically changed the character of the land and have converted the same into residential and non-residential characteristic.
iii) That the land in question is required for the development cause of Shivala for the Public purpose and public utility being of a religious dharamarth character. The applicant requires the same for its own use and occupation.
iv) That the existence of the respondents avocation of life in the rented land by way of keeping cattle, to carry on Dairying etc., is a permanent nuisance to the occupiers and neighboured and the visitors to the Mandir and Public at large. Bad smell omitting therefrom is very much injurious being the adjacent neighbour to the applicant and the respondents have materially impaired the value and utility of the demised premises."
4. In reply thereto the primarily submission of the respondent-tenants was that they were inducted as tenants by Mandir Damodar Dass and Shilvala Damodar Managing Committee which was not in existence at the time of creation of tenancy and is not competent to institute the present petition, However, in respect of ground of ejectment it submitted the following reply:
"sub-para (i) is wrong because the arrears of rent cost and interest were paid by respondent on this first date of hearing which was accepted by the petitioner so this allegation is redundant. Moreover, the alleged committee is not and nor was the landlord.
(ii) sub-para (ii) is wrong,hence denied. The respondents have not violated the terms of tenancy at all, there is no question of any division and bifurcation as the respondents are occupying the property in dispute in their own right and have made their construction in their own tenanted premises which was taken on rent by them from the landlord, Mandir Damodar Dass through its Managing Mohtimim or the man deputed by him for this purpose. The property in dispute is a commercial premises taken on rent for commercial purpose by the respondent and the creation of tenancy with the landlord Mandir Damodar Dass, There is no question of bifurcated passage of the rented premises but the separate passage are in existence since the creation of the tenancy. And the respondents are using them separately since then for their commercial purposes, rest of the sub-para are wrong hence denied.
(ii) Sub-para (iii) is incorrect,hence denied. The petitioner is not the landlord of the respondent, the rest of the para is denied. There is no personal necessity of the landlord Mandir Damodar Dass.
(iv) Sub-para (iv) is wrong, hence denied. The disputed premises is not a rented land but is for commercial purpose which was taken on rent from the landlord for the keeping of the cattle and diary. The respondents are doing the business since then and there is no question of any nuisance to the neighbourers or to the visitors etc. Rest of the para is denied being wrong."
5. The landlord has examined A.W.1 Joginder Kumar who has deposed that the respondent has raised construction of 4 rooms over the demised premises after it was given on rent. He further stated that the construction has been raised without the consent of the petitioner and the premises has been divided into two and are being occupied independently after carving a path in between the two. On the other hand, respondent Dharam Pal appeared as R.W. 1 and admitted in the cross-examination that "the premises were taken on rent as rented land and there was no building constructed thereon when taken on rent. There are 4 rooms in the premises in dispute. The said rooms were constructed by us after taking on rent after 2 years, again said the rooms were constructed after about 15 days of the taking of the property in dispute on rent".
6. Similarly, R.W.2 Shankar Dass also admitted in his cross-examination that "the premises were taken on rent as rented land as there was no construction thereon at that time. There are four rooms in the premises in dispute. The rooms were constructed by us after fifteen days of creation of tenancy."
7. In view of the said pleadings and the evidence the counsel for the petitioner submitted that since the tenanted premises was rented land and admittedly construction has been raised by the tenant after the same were let out and therefore, the respondents are liable to be ejected as the construction on a vacant piece of land would amount to materially impairing the value and utility of the building. However, the stand of the respondents is that the landlord has not sought the ejectment on the ground of material impairment of the value and utility of the building as it was pleaded by the landlord that the respondent has raised construction without the consent of the applicant and bifurcated the passage. However, such averments do not disclose the ground of ejectment that the tenant has materially impaired the value and utility of the building.
8. After hearing the learned counsel for the parties at great length, I am of the opinion that the ejectment petition deserves to be allowed. The petitioner has sought the ejectment under Clause 13(2) (iii) of the Act which reads as under:
"(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
9. As mentioned above the landlord has categorically stated that the construction has been raised on the rented land bifurcating the plot without the written consent of the applicants. It has also been pleaded that the respondents have practically changed the character of the land. However, laying the ground of nuisance in para No. 3 (iv) the landlord has pleaded that the respondents have materially impaired the value and utility of the demised premises. The material impairment of the value and utility of the building is a question to be decided on the basis of facts pleaded. The material impairment of the value and utility is the conclusion to be drawn on the facts pleaded. The landlord has clearly and categorically pleaded that the construction has been raised on a vacant rented land which has changed the character of the land. Therefore, I am of the opinion, that the landlord has clearly laid down the foundation for ejectment of the respondents of the ground of material impairment of the value and utility of the land. Mere reproduction of words of the statute in the ejectment petition is not enough nor failing to use words would defeat that right Facts pleaded would disclose the cause of action for the ejectment. The landlord is to plead facts which may lead to one or the other ground of eviction. If such basic facts has been pleaded to make out a ground of ejectment, then the law would take its course.
10. The petitioner has relied upon Kharar Saw Mill Industry & furniture Production Industrial Co-op Society Ltd. Kharar and Anr. v. Smt. Prem Kaur and Ors., (1995-3) 111 P.L.R. 345, to contend that if the facts pleaded disclose an ground of ejectment, then it cannot be said that the landlord has not sought ejectment on a particular ground.
11. A perusal of the clause 13(2) (iii) would show that if the acts of the tenant have impaired materially the value or utility of the building or rented land, then tenant is liable to ejectment. Since the tenanted premises in the present case is a rented land, the construction thereon will impair materially the value and utility of the land. It is not the case of the tenant that they were permitted under the instrument of tenancy to raise construction. Since raising of construction was not permissible, therefore, the raising of construction of 4 rooms itself would prove material impairment of the value and utility of the vacant land. A vacant land can be put to use to many purposes whereas after construction is raised not only it restrict the user but also effect the surface of land apart from light and air. The landlord has not permitted the tenant to raise any construction, therefore, raising construction on a vacant land itself, in my opinion, will make tenants liable for ejectment under the above said clause. In Ram Singh v. Banarsi Dass,2 (1989-2)96 P.L.R. 119 raising of construction in respect of rented land has been found impairing the value and utility of the building. In Kharar Saw Mill Industry & furniture Production Industrial Co-op Society Ltd. Kharar v. Smt. Prem Kaur, (1995-3)111 P.L.R. 345 (supra) it was held as under:
"11. No doubt, these words are not pleaded by the landlord that by constructing these rooms these persons have done acts which are likely to impair materially the value or utility of the demised land, but nevertheless the fact remains that when the premises were leased out, there was only one room constructed thereon. Now they have constructed five big rooms thereon. Even in the absence of pleading to that effect that this construction is likely to impair materially the value or utility of the rented land, it can safely be concluded that this construction is likely to impair materially the value or utility of the rented land. Hence, on this ground also the Courts below have rightly held so."
12. Learned Appellate Authority has reversed the finding of the Rent Controller by simply stating in para No. 10 that "the ground of material alteration has not been properly proved. There is not an iota of evidence to establish the same". The learned Appellate Authority has failed to examine the pleadings and the evidence as discussed above and thus, committed material illegality and irregularity in upsetting the findings recorded by the learned Rent Controller.
13. Consequently, I allow the present petition holding that the respondent has materially impaired the value and utility of the rented land. However, I grant six months to the tenant to vacate the premises provided an undertaking is given within one month from today to vacate the premises and to hand over vacant possession after the expiry of period of 6 months and also undertaking that he shall pay the entire arrears of rent and shall continue to pay rent till vacation. Failure to furnish such undertaking within one month as mentioned above will entitle the landlord to seek execution of the order.