IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : 16.08.2010 C.R.No.6400 of 2007 Smt. Vinit Khera ...Petitioner Versus Sewa Singh ...Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA Present : Mr. Pankaj Katia, Advocate, for the petitioner. Mr. S.P.Sharma, Advocate, for the respondent. HEMANT GUPTA, J. The plaintiff is in revision aggrieved against the order passed by the learned first Appellate Court on 20.10.2007, whereby an application for ad interim injunction for restraining the defendant-respondent from interfering in any manner in the construction work to be raised on first and second floor of House No.1043, Sector 37-B, Chandigarh, was dismissed in appeal. The present petitioner filed a suit for permanent injunction alongwith an application for ad interim injunction claiming herself to be the owner and landlord of the suit property. The petitioner has alleged that the respondent is a tenant on the ground floor except ‘stair-case’ at a monthly rent of Rs.3500/- per month and that she wants to raise construction on the first and second floor of her house. It has been further pleaded that on 09.09.2007, she has kept some building material on the roof of ground floor and started construction work, but the defendant interfered in the same. The C.R.No.6400 of 2007 police was called and the work was stopped. Therefore, she sought the injunction. In the written statement, the defendant denied the fact that the plaintiff is owner and landlady of the house. In fact, it was asserted that Tejinder Singh son of Rattan Singh is the owner and that he is his tenant. The defendant, inter alia, pleaded to the following effect : “1. …..The house in dispute including roof is let out to the defendant by Tejinder Singh son of Rattan Singh. Shri Tejinder Singh is permanently settled in USA and comes to Chandigarh very rarely. Therefore, the roof of the house is in possession of the defendant since the inception of the tenancy from September, 1983. He has been using the roof of the house during the whole of the year. Under these circumstances, the plaintiff if he has purchase the house in dispute, cannot raise construction of house on the first and second floor.” The respondent further asserted that the entire house is on rent with him and, therefore, the plaintiff cannot restrain the defendant not to place any article in front of the stair-case. The petitioner filed a rejoinder giving the detail of purchase of property from Tejinder Singh vide sale deed dated 14.9.2005. It was denied that the house in dispute including roof was let out to the defendant by Tejinder Singh or that roof of the house is in the possession of the defendant since the inception of the tenancy in September, 1983. Reference was made to the written statement filed by the respondent in the eviction proceedings initiated by Tejinder Singh against the respondent, wherein the respondent has stated that he is a tenant only on the ground floor of the house. Learned trial Court granted ad interim injunction in favour of the present petitioner restraining the defendant from obstructing in raising of construction by the plaintiff over the terrace of the ground floor. 2 C.R.No.6400 of 2007 However, the learned first Appellate Court accepted the appeal of the respondent and dismissed the application for ad interim injunction. Learned counsel for the petitioner has vehemently argued that the property in dispute is a 10 marlas house, wherein three storeyes are permitted to be constructed i.e. ground floor, first floor and second floor. Since the previous owner has constructed only ground floor, therefore, the respondent was inducted as a tenant only in respect of ground floor. There was no agreement to not to construct first and second floor. Therefore, the respondent, tenant on the ground floor, does not have any right on the terrace of the ground floor, so as to prohibit the owner i.e. the petitioner from raising construction on the first floor and second floor. Learned counsel for the petitioner has referred to the written statement filed by the respondent in eviction proceedings attached with the present revision petition as Annexure P-6. It is pointed out that the respondent has pleaded that he was tenant of the entire first floor of the 10 marla house bearing House No.1196, Sector 37-B, Chandigarh prior to his shifting to the ground floor of the house in dispute. The respondent also referred to the fact that Dr. G.S.Chahal, Mohinder Batra and Rakesh Bhatia were all residing in adjoining house bearing House No.1042. It is, thus, sought to be contended that the respondent was aware that the ground floor of the tenanted premises is a separate and distinct premises as against the first and second floor. Since at the time of inception of tenancy, the first and second floors were not constructed and in the absence of any other use by the land-owner, if the respondent was using the terrace, it will not confer tenancy rights over the terrace as well. Reliance is placed upon the judgment of Delhi High Court reported as Shri Shashi Kapur and another Vs. Smt. Sulakhna Malhan and others 1980(2) RCR (Rent) 226 and the judgment of this Court 3 C.R.No.6400 of 2007 reported as National Insurance Company Ltd. Vs. Shri R. Harcharan Singh Bhullar and others AIR 1992 Punjab and Haryana 86. On the other hand, learned counsel for the respondent has relied upon few judgments to contend that under the guise of ad interim injunction, the main relief claimed in the suit cannot be granted. Learned counsel for the respondent also relied upon a judgment of this Court reported as Bhal Singh Malik Vs. Dr. Nazar Singh and another 1976 PLR 158 to contend that in case of a single storey building let out to a tenant, the tenant has a right to use the terrace of the building. Reference was also made to another judgment of this Court reported as Bhupinder Singh Vs. Manpreet Singh 2003 (2) RCR 21, wherein it was held that the roof is included in tenancy, even if the rent note is silent about the tenancy of roof. I have heard learned counsel for the parties at some length, but find that the order passed by the learned first Appellate Court suffers from patent illegality and irregularity and cannot be sustained in law. Before the facts of the present case are noticed, it may be kept in mind that the construction on residential plots in Chandigarh is regulated by a Statute i.e. the Capital of Punjab (Development and Regulation) Act, 1952 and the Rules framed thereunder i.e. The Punjab Capital (Development and Regulation) Building Rules, 1952 and the Zoning Plans and Architectural Control under such Rules. In terms of the said Rules, the three storeyed building over 10 Marla plot is permissible i.e. ground floor, first floor and second floor. As per the stand of the respondent, he came to be inducted as a tenant in September, 1983. Prior to being an inducted tenant in the demised premises, he was in occupation of first floor of House No.1196, Sector 37- B, Chandigarh. As per the written statement filed in eviction petition filed 4 C.R.No.6400 of 2007 by the previous landlord, the respondent has admitted that in the adjoining house, there were three different tenants on three different floors. Such fact shows that the respondent was aware of the fact that each floor is a separate unit, and is let out separately. Mere fact that only ground floor was constructed at the time of letting out the premises to the respondent, will not be sufficient to infer that the landlord has granted right to use terrace as well. In Bhal Singh Malik’s case (supra), the Court granted injunction after observing that the roof is a part of the building essentially, when it is one storey and in the absence of any contract to the contrary, the initial presumption is that the roof is let out alongwith building. It may be noticed that the house in dispute in the aforesaid case was located in one of the prime sectors of Chandigarh i.e. Sector–2 let out in the year 1972. It is a matter of common knowledge for the people living in Chandigarh that in Sector–2, none of the house is less than 1000 sq. yards, as against the house in dispute, which is a plot of around 250 sq. yards. The houses in Chandigarh in the prime sectors were generally single storey, whereas Sector 37 was developed later on and the construction raised was generally of three storeyes. In view of the facts enumerated above, the initial presumption which was taken into consideration in Bhag Singh Malik’s case stands rebutted as the respondent was aware of the nature of the premises let out to him. In Shashi Kapur’s case (supra), the question posed that “Does an owner of a property have the right to build on and develop the property when what is already built has been let out and is occupied by a tenant”? It was held that the owner has a right to construct first floor “unless the owner 5 C.R.No.6400 of 2007 has contracted away such a right in a contract with the tenant”. The relevant extract read as under : “11. Before me the main contention urged by Shri Arun Mohan, learned counsel for the petitioner is that the lease deed the tenant had been given exclusive possession of the entire premises which must be deemed to include the land apartment to the main building as well as the roof of the building which is to be understood as usable terrace. He urged that the construction of a first-floor by the respondents was never contemplated and would lead to diminution of tenancy. 12. Does an owner of a property have the right to build on and develop the property when what is already built has been let out and is occupied by a tenant? In my opinion the owners appear to be in the affirmative unless the owner has contracted away such a in a contract with tenant. What is, therefore, relevant to examine is whether the plaintiffs have contracted not to exercise such a right during the period of the tenancy as claimed by the petitioners.” Another Single Judge of this Court in the case of R. Harcharan Singh Bhullar’s case (supra), has considered the earlier judgment in Bhal Singh Malik’s case and held that in terms of the lease, the terrace was not part of the tenancy. It was held to the following effect : “12. The authority Bhal Singh Malik Vs. Dr. Nazar Singh, 1976 Cur LJ (Civ) 140, relied on by Mr. Puri, is of no assistance. That case related to a single stroied house and all that was held was that the initial presumption, in the absence of a contract to the contrary, was that the roof was comprised in the tenancy. This aspect of the case has already been dealt with the in sufficient detail above. There is no need to fall back on presumptions when what is let out is reduced to the form of a lease deed, as this case. It is unnecessary to mention the other rulings on the point cited by Mr. Puri. xxx xxx xxx 6 C.R.No.6400 of 2007 16. The next contention of Mr. Puri was that the petitioner is in possession of the open terrace and, in any case, open terrace was an amenity provided to the petitioner as a part of the lease and the same cannot be withdrawn or withheld. An ancillary contention is that the work of construction will necessarily involve some disturbance in the quiet and peaceful enjoyment of the property in contravention of Section 108 of the Transfer of Property Act in so far as the petitioner is concerned. From the discussion in the earlier part of this order, it has been seen the prima facie terrace is not comprised in the demised portion. There is, therefore, no reason to hold that the petitioner-tenant is in possession of the terrace. Nor can the open terrace be prima facie considered as an amenity going with the demised premises.” In the aforesaid case, another argument as has been raised in the present case that by virtue of ad interim injunction, the plaintiff cannot be permitted to raise construction. It was found that if three guiding principles are satisfied, then there is no reason that as to why injunction should not be refused only because granting the injunction will depart from the position of status quo. In Bhupinder Singh’s case (supra), the property was situated at Patiala in which ground floor was in possession of the landlord, whereas first and second floors were in possession of the tenant. It was also found that approach to the second floor is through the stair-case on the first floor. In view of the said fact, it was found that the area under occupation of the tenant include stair-case of ground floor, first floor and even the second floor. It was also found that the landlord will have no concern with the roof of the first floor. The said judgment is clearly distinguishable and does not help the respondent in the facts of the present case. 7 C.R.No.6400 of 2007 Though the ad interim injunction claimed by the plaintiff is substantially the same as is claimed by her in the suit, but the fact remains that the point of controversy does not require much evidence. Neither the tenancy of the respondent is disputed nor the fact that first and second floors were not constructed. It is only the consequence of letting out of the ground floor, which are required to be examined and in view of the discussion above, the tenant does not have any right over the terrace of the ground floor on a building which admits construction of three floors. When the present petition was admitted on 13.12.2007, an interim order was passed by this Court that the landlady makes alternative arrangements for the labour to go to the first floor for raising construction, the defendant-respondent shall not restrain her or her labour from doing so. Subsequently, the said order was modified with the consent of the parties on 21.12.2007 with the direction that the labour engaged by the landlady for raising construction of the first and second floors shall not use the stair-case already built in the house, but would take the assistance of the temporary structure which rests on the compound wall and that the tenant will not object to the landlady and/or her representative besides the Architect so as to go to the first floor of the house by using the stair-case in the house. Admittedly, in terms of the said consent order, the petitioner has raised construction of the first and second floors. In fact, the petitioner has filed a contempt petition against the tenant for not permitting her and her representatives to use the stair-case after construction of the building. The consent to use stair-case by the landlady and her representatives were include the tenants to be inducted by the landlady. It was only the construction related material and the labourers who were not permitted to use the stair-case, so as to avoid inconvenience to the tenant. The Special 8 C.R.No.6400 of 2007 Leave Petition filed by the tenant against the orders passed by this Court on 13.12.2007 & 21.12.2007, stands dismissed on 18.1.2008. In view of the above discussion, I am of the view that the order passed by the learned first Appellate Court suffers from patent illegality or irregularity and cannot be sustained in law. Consequently, the same is set aside. The respondent-tenant is restrained from interfering in the enjoyment of the first and second floors of the building with all amenities. Revision petition stands disposed of accordingly. 16.08.2010 (HEMANT GUPTA) Vimal JUDGE 9