Punjab-Haryana High Court
Milkhi Ram Yog Raj And Anr. vs Tarsem Lal And Ors. on 27 November, 2002
Equivalent citations: (2003)134PLR186
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 the judgment and order dated 25.2.1985 passed by the Appellate Authority, Jalandhar. The Appellate Authority has accepted the appeal of the landlord-respondents against the order dated 23.4,1984 passed by the Rent Controller and has allowed the ejectment application with a direction to the tenant-petitioners to vacate the premises within a period of two months.
2. The short question which falls for consideration in this petition is as to whether construction of Bhathies and water tank on the first floor of the demised premises without any permission from the landlord-respondents would impair the value and utility of the premises and, therefore, the tenant-petitioners would be liable to be ejected. In paragraph 13 of the order passed by the Appellate Authority some judicial precedents have been quoted to support the conclusion that the burning of 20 kilogram coal in the Bhathies every day on the first floor would have damaging effect on the roof and adjoining walls. It has further been held that there would be likelihood of expansion of iron rods if the roof is having lintel. If the roof is made of wooden ballas (logs) and iron girders, the effect of the heat would be even more damaging. The Appellate Authority has also relied upon a clause in the initial rent note executed in 1958 which provided that tenant-petitioners would not construct and burn Bhathies in the premises. No written permission was sought in this regard in the rent note dated 15.7.1971. The view of the Appellate Authority in this regard reads as under;-
"So far as the effect of construction of Bhathies is concerned, the learned counsel for the respondents has referred to Roshan Lal v. Dharam Lal, 1984(2) Rent Control Reporter 421, wherein it has been held that construction of Parchhati in a room for storing hosiery goods which were necessary for his business does not impair the value and utility of the premises. It has been held in Madan Lal Saggi and Anr. v. British Motor Car Company Pvt. Ltd and Anr., 1984(2) Rent Control Reporter 572, that there should be material structural alterations which changes the nature and character or building to bring the act of tenant within the mischief of statute. The learned counsel for the appellants has referred to Chatar Sain v. Bishan Lal and Ors., (1976)78 The Punjab Law Reporter 174, wherein it has been held that inclusion of verandah into the shop constitutes structural alteration and has impaired the utility of the premises. He has also referred to 1980 PLR. Short Notes of cases at page 7 wherein it has been held that where by the construction of wooden balcony (Parchhatti) additional weight has been put on supporting walls it is not minor alteration but a substantial structural change." Herein, the question is whether construction of Bhathis and water-tank on the first floor have impaired the value and utility of the premises. The report, Ext.AW5/l, goes in favour of the appellant/ landlords in this regard. It was stressed that merely burning of 20 kgs of coal in the Bhathi would not impair the value and utility of the premises. It is not the weight of the coal which will be the determining factor, but it is an extra heat generated by 20 kgs of coal in each Bhathi that would have damaging effect on the roof and the adjoining walls. In case of a roof being made of lintel there is likely-hood of expansion of iron rods which will certainly effect the walls supporting the lintel. Even in the case of roof consisting of Ballas and iron girders the effect of heat would be damaging. It was specific condition right at the inception of the tenancy in 1958 that the respondents would not burn Bhathis in the premises. No such written consent was sought in this regard in the rent note dated 15.7.1971.
In this rent note. Ext.A2, respondents were allowed to get water-connection from the Municipal Committee but it did not authorise them to make a water-tank on the first floor. The seepage of water would certainly affect the roof and the walls. Thus, the appellants have been able to prove that by making these additions and structural changes the respondents have impaired the value and utility of the premises."
3. Mr. Hemant Sarin, learned counsel for the tenant-petitioners has submitted that in Madan Lal Sagi's case (supra) this Court has laid down that additional construction itself may not impair the value of a building and it has to be seen in individual cases whether such construction would impair and decrease the value of the premises. The learned counsel has challenged the findings recorded by the Appellate Authority by arguing that there is neither any expert report nor any other material to support the findings that the iron rods used in the lintel or wooden log roof would diminish the value and utility of the premises. According to the learned counsel, the findings are conjectural in nature and are not based on any material. He further submitted that it is ipse dixit of the Appellate Authority and cannot form basis to conclude that the value and utility of the building has been impaired.
4. I have thoughtfully considered the submissions made by learned counsel for the tenant-petitioners and do not feel persuaded to take a view different than the one taken by the Appellate Authority. Section 13(2)(iii) of the Act reads as unde'r;-"13. Eviction of tenants.-
(1) XX XX XX (2) A landlord who seeks to evict his tenant 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 the applicant, is satisfied-
(i) and (ii) 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.
(iv) and (v) 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."
5. The aforementioned provision came up for consideration of the Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand and Ors., (1993)2 S.C.C. 614, while interpreting the provision, the Supreme Court observed that impairment of value of the premises caused by material alterations has to be examined from the point of view of the landlord and not that of the tenant. It was further held that the provisions of clause (iii) of Sub-section (2) of Section 13 of the Act confers a discretion on the Court. Therefore, in a given set of facts, the Court may refuse to order ejectment despite the findings that the tenant had committed such acts which have caused impairment in the value and utility of the premises. The observations of their Lordships read as under:-
"Clause (iii) of Sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land", the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially and value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. 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 tenant and the second limb is of the utility or value of the building has (sic having) been materially impaired..."
6. The aforementioned principle has been followed and applied in the case of Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors., (1996-2)113 P.L.R. 694 (S.C.) where again Clause (iii) of Sub-section (2) of Section 13 of the Act fell for consideration. The observations of their Lordships read as under:-
".... The nature of the construction is a relevant consideration in determining the question of material impairment 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 impairment 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. The High Court, therefore, fell in patent error in dismissing the revision in limine without going into the correct legal position involved in the case. Having regard to the facts and circumstances discussed above, we are of the firm view that this is a case which squarely falls within the mischief of the provisions contained in Section 13(2)(iii) of the Act which make the tenant-respondents liable for eviction from the demised premises."
7. The principles enunciated in the aforementioned judgments when applied to the facts of the present case, it becomes evident that the Appellate Authority in its order has reached a categorical conclusion on issue No.1 that the construction of Bhathies on the first floor and using the same by burning 20 kilograms of coal every day would result into impairment of value of the premises. It has further held that no permission was taken by the tenant-petitioners for construction of Bhathies. In view of the clear enunciation of law by the Supreme Court in the case of Vipin Kumar (supra) as well as Gurbachan Singh (supra), I do not find that the discretion exercised by the Appellate Authority suffers from any illegality. It can also not be concluded that there is no support to the inferences of damages and impairment of value of the premises drawn by the Appellate Authority Moreover, the impairment of value of the premises has to be viewed from the angle of the landlord. Therefore, I am of the considered view that this petition lacks merit and is thus liable to be dismissed.
8. For the reasons recorded above, this petition fails and the same is dismissed.