Jagmander Dass Jain And Another v. M/S. Hari Kishan Sushil Kumar, Moga Mandi .

The facts giving rise to the present revision petition filed by Shri Jagmander Dass Jain and another (hereinafter referred to as the landlord) may be briefly noticed.

2. The landlord filed an application under Section 13 of the East Punjab Urban Rent Restriction Act against M/s. Hari Kishan Sushil Kumar respondent (hereinafter referred to as the tenant) for eviction of the latter from the shop situated in Moga Mandi on various grounds some of which have become redundant or are not relevant for the purpose of the present revision petition. The ground of default is no longer in dispute, the arrears of rent having been duly deposited along with costs et cetera on the first date of hearing. The only ground which has been canvassed seriously and is in fact the bone of contention in the present revision petition is as to whether the tenant has committed such acts which have or are likely to impair materially the value and utility of the demised premises. So far as the Rent Controller is concerned, he found the above mentioned ground for eviction established against the tenant and therefore, the tenant was ordered to be evicted from the demised premises, though they were allowed three months time to do so.

The tenant took the matter in appeal to the Appellate Authority, which authority, however, took a different view of the matter and held that even though certain alterations and constructions unauthorisedly made by the tenant were proved, they did not result in material impairment in the value and utility of the shop in question. The decision of the Rent Controller was therefore, set aside and the eviction apr plication of the landlord was dismissed.

The present revision petition seeks to impugn this order of the Appellate Authority.

3. A brief factual sketch is necessary in order to understand the controversy in the present case. For this purpose, reference can be usefully made to the plan Exhibit A/1 of the demised premises in regard to which there is hardly any dispute. As the plan would indicate, after the Ahata on the Southern side, there is the shop portion consisting of three rooms in a row. In front of these rooms is a verandah and in front of the verandah there is an open space which is referred to as a Thara. As noticed even by the Appellate Authority, the tenant had constructed a pucca structure covering practically the entire length and breadth of the said Thara. The structure consisted of a cemented floor enclosed by brick walls on the Eastern and Western sides. The Northern side of the same had been kept open. The shed which was so constructed was roofed with corrugated sheets. Inside the shed a urinal had been constructed. The roof of the shed was about 4 feet higher in level than the level of the demised shoo with the result that the shop was not visible from the courtyard side of the Mandi.

The grievance of the landlord is that by making this construction without his consent or authority, the tenant had caused diminution of light and air to the demised shop and had thus impaired its value and utility. The last mentioned allegation was, however, controverted. On behalf of the tenant it has also come in evidence that during the pendency of this litigation, the Municipal Committee had demolished the unauthorised, construction raised by the tenant on the Thara in front of the shop. That fact, however, would not make any difference in so far as the ground for eviction is concerned. What has to be seen is whether the tenant had committed such acts which are likely to impair the value and utility of the demised premises and the mere fact that he may have rectified the position later on either himself or the same was achieved through the agency of the Municipal Committee, would make no difference in so far as the liability of the tenant is concerned.

4. During the course of the arguments in this revision petition, Mr. N.C Jain, learned counsel for the petitioner, brought, to the fore certain circumstances from which he contended that the eviction of the tenant had become inevitable. In the first place he made reference to the inspection note recorded by the Rent Controller himself in this case which finds place at page 147 of the record. What was noticed by the learned Rent Controller in the course of his inspection has already been reproduced above and need not be repeated. The learned counsel has also referred to the Report of the Local Commissioner who was appointed to inspect the spot in the case. The Rent Controller took into consideration this report of the Local Commissioner as also its own note of inspection but the Appellate Authority appears to have not touched the report of the Local Commissioner.

According to the said report which is at page 49 of the record, the exact nature of the construction raised by the tenant on the Thara including its dimensions et cetera and the material used therein has been enumerated. The Local Commissioner indeed took pains to make all measurements which were necessary for this purpose. From these documents and the other evidence on the record, there is no manner of doubt (and even the Appellate Authority did not hold to the contrary) that the construction of big size shed had indeed been made in front of the demised shop on the Thara without the consent or authority of the landlord. As regards the question as to whether the un-authorised construction had diminished the facility of light and air to the demised shop, the learned counsel for the petitioner, apart from the evidence produced on behalf of the landlord, took support from the admissions made by the tenant's own witnesses.

At the very outset the learned counsel took me through the evidence of Shri O.P Mehta, Secretary, Municipal Committee, Moga R.W 9, who even in his examination-in-Chief stated that the tenant-firm had made an encroachment upon the Thara in front of the shop in consequence of which a notice was issued to the firm under Section 220 of the Punjab Municipal Act. It is the undisputed case of the parties that as a follow-up of the said notice, the un-authorised construction was later on demolished. Though this witness in his examination-in-chief claimed that the Thara in front of the shops in the Mandi were owned by the Municipal Committee but in his cross-examination he was obliged to admit that all the Tharas had been built by the owners of the respective shops with the consent of the Municipal Committee. He also deposed that these Tharas are meant primarily for the shop in front of which the Thara is situated.

The witness who is a responsible Officer of the Municipal Committee further admitted that on account of the unauthorised construction made by the tenant the access to the main shops has been stopped and obstructed. He also frankly admitted that there was a reduction of light and air to the main shop to the extent of about 30 per cent. The evidence of this witness goes a long way to establish the liability of the tenant in this behalf. Apart from this witness, two other witnesses of the respondent namely Mangat Rai R.W 2 and Bal Kishan R.W 4 also admitted that the light and air to the demised shop have been reduced by the raisins of the construction in its front. In face of this material, it may be quite unnecessary to take further support from the evidence of the witnesses produced by the petitioner on the point.

5. Once having established the factual position as noticed above, the learned counsel for the petitioner straightway relied upon an unreported decision of this Court in Civil Revn. No. 1247 of 1970 (Raj Kumar v. Ram Kanwar) decided by Gurdev Singh J. on 17th of Dec. 1971,* a certified copy whereof has been placed on the record.

The learned single Judge in the said case was dealing with a situation on all fours with the one in hand and after considering the whole matter the foiling observations were made :—

“I am of the opinion that these findings are justified as it is clearly established that on the open platform, which was in front of the shop and a part of the “premises, two walls 12 feet high had been raised and covered by the tin sheets. This had not only spoiled the look of the shop but has also resulted in obstructing light and air to the main shop and thus affected its utility. This conduct of the present petitioner is clearly covered by Section 13 (2) (iii) of the Rent Restriction Act and, accordingly, his eviction is perfectly in order.”

6. The learned counsel for the petitioner also relied upon Phaggoo Mal v. Smt. Chandrawati, 1973 Ren CR 274 (All), wherein a learned single Judge of the Allahabad High Court laid down a good test in order to assess as to whether the alteration or construction would amount to material alteration, so as to affect the value and utility of the building and if this test is applied, there is no escape from the conclusion that the act of the tenant was clearly culpable and invited his eviction under the Rent Act.

7. In an attempt to support the decision of the Appellate Authority, the learned counsel for the respondent Mr. H.L Sarin submitted in the first instace that even though the fact of the unauthorised construction raised by the tenant stood proved, he could not be evicted because the said construction was not on any part of the property which was owned by the landlord. In this behalf he took benefit of the finding of the two Rent Control Authorities that the Thara in front of the shop was not owned by the landlord. I, however, fail to see the logic of the argument. It appears that the learned counsel seems to presume that the act and the conduct of the tenant which could invite his eviction must relate to the demised premises itself or part thereof.

The examination of the relevant provision i.e Section 13 (2) (iii) of the Rent Act reveals that this presumption is not well based as the wording of the clause is “that the tenant has committed such acts as are likely to impair materially the value or utility of the building.” These words do not mean that the act or the conduct referred to must be committed on the demised building itself. All what is required to be seen is as to whether the alleged act or conduct results in material impairment of the value or utility of the demised building. The raising of a pucca shed in front of the shop which was obviously unauthorised and was later demolished by the Municipal Committee, did cause obstruction to the light and air to the demised shop and as such it fell within the ambit of the aforementioned clause. It is no argument, as observed by the Appellate Authority, that all this construction could be ‘easily’ demolished. The authorities relied upon by the Appellate Authority are also quite distinguishable on facts and no support can be drawn from the same.

Apart from this, the argument of the learned counsel for the respondent that the Thara was not the property of the landlord and could thus be used in any manner as the tenant chose, is also not tenable. It is borne out from the evidence of the respondent's own witnesses including the Secretary of the Municipal Committee that the Thara in front of a particular shop is meant primarily for the use of the person occupying the 6hop and thus for all intents and purposes the Thara is to be considered as a part and parcel of the tenanted premises. The question as to whether the ownership of the Thara vests in the Municipal Committee or the landlord is of no significance.

8. It may be observed here that the learned counsel for the respondent has referred to Smt. Savitri Devi v. U.S Bajpai, AIR 1956 Nag 60, Charan Singh v. Smt. Ananti, (1966) 68 Punj LR 780 and Mohinder Singh v. Om Parkash, (1978) 1 Ren. C.J 406 (Punj & Har), but a perusal of these authorities indicates that they do not advance the case of the tenant any better as all these authorities are distinguishable on facts alone.

9. The result is that the revision petition succeeds, the order of the Appellate Authority is set aside and that of the Rent Controller is restored. The respondent-tenant is ordered to vacate the premises in dispute within one month from today. There is no order as to costs.

Petition allowed.