Punjab-Haryana High Court
Om Parkash vs Surrinder Mohan Rai on 31 August, 1988
Equivalent citations: AIR1989P&H139, (1990)97PLR646, AIR 1989 PUNJAB AND HARYANA 139, (1989) 1 RENTLR 70, 1989 HRR 52, (1990) 1 PUN LR 646
ORDER
1. The petitioner-tenant has challenged the legality and validity of the order of the Appellate Authority dt/- 21-4-1980 by which he has been ordered to be evicted from the shop in dispute on the ground that he has impaired the value and utility of the demised premises within the meaning and ambit of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act 1949 (for short 'the Act'). The judgment of the learned Rent Controller went in favour of the petitioner-tenant which in appeal was reversed by the Appellate Authority, In the present case an interesting and important question of law on the basis of the admitted or proved facts does arise. Before embarking upon the question of law, it is necessary to have a look at the avernments made in para 2(b) of the application :
"The respondent has materially impaired the value and utility of the premises in dispute. He has converted a verandah as shown ABCD in the attached plan in red colour into a room by raising side and front walls and by affixing a door in the front wall. The value of the shop has decreased obviously by these alleged acts of the respondent."
In the written statement filed by the respondent, the averments made in the application have been stoutly denied. The following is the averment in sub-para 2(b) of the written statement:
"Sub-para(b) of the application is absolutely wrong and hence denied. The allegations are all false and baseless. No change at all has been made by the respondent which has materially impaired the value and utility of the premises in dispute as wrongly alleged. It is vehemently denied that verandah has been converted into room, the allegations are all false, no side and front walls have been raised as wrongly alleged. No door has been fixed as wrongly alleged. The allegations are all false and baseless. The applicant be put to strict proof regarding the false allegations as no change has at ail been made."
In spite of the face that the tenant crossed swords on the point of construction having been made by him, it has come in evidence of several witnesses produced by the landlord including the one Local Commissioner and another buildings expert that the constructions have been made.
2. Shri H.L Sarin, Sr. Advocate, learned counsel for the petitioner tenant white arguing the case vehemently on the question of law has not disputed about the constructions. In view thereof, it is necessary to have a look at the factual position regarding the constructions in order to appreciate the question of law, and which is given below.
3. The demised premises comprised of three rooms and a verandah before the effecting of alterations. The side and front walls of the verandah have been constructed. The walls constructed, however, do not touch the roof of the verandah. There is a portable door fitted to the front wall of the verandah. A cement concrete platform (Gaddi) has been constructed in it; a ceiling fan has been fitted to a hook, in the ceiling in the verandah; the verandah has been provided with electricity, telephone and a cash-box. There is a staircase for going to the chowbaras which are in existence on the first-floor. The Appellale Authority after considering the entire evidence brought on the record of the case has come to the conclusion that the petitioner-tenant has raised the side walls and front walls of the verandah and converted the same into an office room where he carries on his business. It has been further found by the Appellate Authority that the walls raised by the tenant-petitioner do not touch the ceiling and that there is some gap between the walls and the ceiling of the verandah. It has been further found that source of light and air to all the three rooms comprising the entire shop was through the varandah and as the verandah has been converted into an office room, the light and air into the remaining three rooms of the shop has been diminished. It is further the finding of the Appellate Authority that towards the East of the shop there was a common stair-case for going to the roof of the chowbaras and due to the construction of eastern and southern walls of the verandah, the stair-case has ceased to remain a part of the shop in dispute and the same cannot be used for going from the verandah to the chowbaras. The above mentioned findings recorded by the Appellate Authority are clearly borne out from the record of the case. I have gone through the entire evidence brought on the record of the case and the above mentioned findings are clearly borne out from the evidence. No exception can be taken to the findings recorded by the Appellate Authority. In fact, two additional facts which appear to have escaped the notice of the Appellate Authority are discernible from the report of the Local Commissioner and the other evidence brought on the record of the case. Firstly, it has come in the report of the Local Commissioner that there was a Gaddi in existence in the first room after one enters from the verandah and, secondly, it has been admitted by the respondent-tenant himself when he appeared as RW 1 that there was no fan in the three rooms. From the above mentioned factual position my conclusion is that by the acts of the tenant he has made himself available more accommodation than what was in existence prior thereto; diminished air and light to all the three rooms and put an obstruction to the access to the chowbaras from within the verandah. The question which arises from these proved facts is whether the tenant can be held guilty of impairing the value and utility of the demised premises and whether he can be evicted therefrom under Section 13(2)(iii) of the Act. In order to determine this question of law it would be necessary to notice the case law cited at the Bar by the counsel for the parties who have addressed this court at length.
4. Mr. H.L. Sarin, Sr. Advocate, counsel for the petitioner-tenant has firmly relied upon Brijendra Nath Bhargava v. Harsh Wardhan, (1988) 1 SCC 454 : (AIR 1988 SC 293) wherein it is held that the act of the tenant in constructing wooden balcony or dochatti constructed in the show room did not amount to material alterations and, therefore, the tenant was not liable to be evicted under Section 13(1)(c) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Another ruling of the Supreme Court which has been equally relied upon by Mr. H.L Sarin is reported as Om Prakash v. Amar Singh, AIR 1987 SC
617. It is held therein that the construction of a partition wall in a hall without digging any foundation of the floor of the room which did not touch the ceiling does riot make any structural change of substantial character either in the form or structure of the accommodation. The argument of the learned counsel is that in view of the law laid down in the aforesaid two judicial pronouncements by the apex court and in view of the factual position of this case, the application of the landlord is liable to be dismissed. The argument on the face of it seems to be quite tempting. However, the same does not hold water when one goes deep into the matter. Before examining the raito of the law laid down by the apex court, it cannot be lost sight of the fact that there is some difference in the statutes with which the Hon'ble Supreme Court was dealing and with which I have to deal in the instant case. A bare look at the relevant Section 13(2)(iii) of the Act would make it clear that a tenant is liable to be evicted from the tenanted premises if he is guilty of the commission of such acts which are likely to impair materially either the value or, utility of the tenanted building. It is further the well settled law as will be seen in the subsequent paragraphs that the impairment has to. be seen from the view point of the landlord and not from the view point of the tenant. The words 'likely to impair materially the value or utility 'occurring in Section 13(2)(iii) of the Act are quite pertinent in the Act with which we have to deal with. The above mentioned wording occurring in the statute mean that the commission of such acts by the tenant are sufficient to throw him out which are likely to impair materially not only the value of the rented premises but the tenant can be thrown out where even if such acts are likely to impair the utility of the building. In Brijendra Nath's case (supra) the acts of the tenant complained of by the landlord were the construction of a wooden structure made in the show room i.e. a cabin and on the roof of the cabin a kind of balcony with a wooden stair-case from inside the cabin to go to balcony. In the peculiar facts of that case it was held by the Supreme Court that admittedly the construction was all of a wooden structure built on beams and planks inside the show room itself and in order to come to the conclusion whether such a wooden cabin made up inside the show room could be said to be material alterations or not, the Apex Court after relying on a plethora of authorities came to the conclusion and that too on the basis of the wording in the relevant statute that the alterations made by the tenant could not furnish a ground of ejectment to the landlord. Moreover, in that case the construction was of wood only whereas in the present case the construction is of pacca walls. In Om Prakash's case (supra) the Hon'ble Supreme Court was, of course, dealing with a case in which the construction was by a pacca partition wall which did not touch the roof of the hall but the first part of the relevant Section 14(e) of the U.P. Cantonments (Conrol of Rent and Eviction) Act 1952 was subjected to an interpretation and not the latter part of the section which deals with diminishing value of the tenanted premises. Section 14 of U.P. Cantonments (Control of Rent and Eviction) Act 1952 at this stage, may be reproduced with advantage.
"Section 14 : Restrictions on eviction --No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely;
(a) to (b)xxxxx
(c) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the Court has materially altered the accommodation or is likely substantially to diminish its value,"
In that case before the Hon'ble Supreme Court the question which arose for consideration was whether the construction of a partition wall would amount to any structual change of substantial character in the form or the structure of the accommodation and it was held that the construction of a partition wall in a hall did not amount to structural alterations. In view thereof, similarity of one fact or the other on factual side would not make the ratio of law laid down by the Apex Court applicable to the facts of the instant case particularly when the diminishing value of the tenanted premises was not the precise question before the apex court. On the other hand, perusal of the various observations of the apex court in the above mentioned two authorities makes it clear that it was held that it would depend upon the facts and circumstances of each case whether the alterations in a particular case are such alterations that would attract mischief of the relevant statute. In view of the abvomentioned discussion I am of the view that the ratio of law laid down by the apex court was upon the facts and circumstances of the case before their Lordships and that too by interpreting the relevant provisions of the statutes before their Lordships. After taking into consideration the entire factual position of this case. I am of the firm view that the acts committed by the tenant which have been enumerated above do come within the mischief of the present statute with which I am dealing with. May be the proof of one act or the other might not have been sufficient to attract the applicability of the relevant statute but all the acts when taken cumulatively do attract the application of Section 13(2)(iii) of the Act.
5-6. At this stage, it will be worthwhile to have a look at the various judicial pronouncements of this court in which this very provision of law has been considered. In Jaswant Singh v. Dewan Chand Peshwaria, (1981) 1 Rent LR 218 (Punj & Har) the construction of chhappar by the tenant reduced the light, air and the area of the court-yard and it was held to be an act amounting to impairing the utility and value of the building. In Jagmander Dass v. M/s. Hari Kishan Sushil Kumar, (1981) 1 Ren CR 489 : (AIR 1981 Punj & Har 182), the tenant constructed a structure on open space in front of the shop thereby diminishing the light and air of the tenanted premises and this Court held that the act of the tenant amounted to commission of an act impairing the value and utility of the premises and the tenant was ordered to be ejected. The learned counsel for the respondent-landlord submitted at the Bar that even the Special Leave Petition against the abovementioned judgment of this court was declined by the Hon'ble Supreme Court. In Harbans Sharma v. Smt. Pritam Kaur, (1982) 1 Rent LR 247, it has been held by this Court that while dealing with the question of impairment of the value and utility, it is the view point of the landlord which has to be kept in view and not the view point of the tenant. Similar is the view taken by this Court in Raj Kumar v. Ram Kanwar, (1977) 2 Rent LR 689. In Amir Chand v. Sardar Arjan Singh, (1987) 2 Ren CR 518 the act of a tenant covering chabutra in front of shop extending covered length of shop by erecting tin shed after removing the original door and putting up a steel rolling shutter in front was held to be an act which changed the form and structure of the building and it was held that the tenant.was liable to be evicted
7. After going through the entire case law cited at the Bar, I am of the considered view that the construction of two side walls, a front wall affixed with a shutter, may be portable one, making more accommodation available would certainly amount to the commission of such act on the part of the tenant as to bring him within the mischief of Section 13(2)(iii) of the Act particularly when it diminishes light and air to the shop comprising of three rooms, even if the walls did not touch the roof level and there was no digging of the foundation. Non-availability of the stair case from within the verandah to the landlord is another added circumstance which goes against the tenant. It further appears that what the tenant was doing in the first room of the demised premises before converting the verandah into an office room, he is doing the same thing now in the added accommodation. The cumulative effect of proof of the above mentioned acts by the tenant thus warrants his eviction from the demised premises by attracting the provisions of Section 13(2)(iii) of the Act. The view taken by this Hon'ble Court in the earlier judicial pronouncements to the effect that it is for the authorities recording the finding on the question of impairment of the value and utility but while doing so the view point of the landlord and not of the tenant regarding the utility of the building has to be kept in view is also re-affirmed.
8. Before parting with the judgment, it is necessary to notice another contention of the learned counsel for the petitioner-tenant which has also been advanced with some amount of force. Mr. H.L. Sarin, learned counsel, has argued that since the landlord has accepted the rent after the commission of the above mentioned acts by the petitioner-tenant, he has waived his right of eviction by accepting the rent and by not filing eviction application immediately. In other words, there is a waiver and acquiescence on the part of the landlord. This argument cannot be gone into. No such argument was advanced before either of the authorities below, nor any such plea was taken in the written statement On the other hand, specific case of the petitioner-tenant in the written statement was that he did not make any alteration. Even the construction of the walls was denied. The allegations made in the application were described to be false and baseless. No alternative plea was taken. The question of waiver and acquiescence is, at best, mixed question of law and fact and, therefore, until and unless the question of fact is pleaded and evidence is led, the same cannot be gone into for the first time by this Court in revisional jurisdiction.
9. In view of the aforementioned observations, there is no force in the revision petition which is dismissed. The tenant is allowed three months' time to vacate the demised premises. The parties are left to bear their own costs.