Civil Revision No. 6533 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Revision No. 6533 of 2008 Date of Decision: 10.12.2008 Raghbir Singh and Others …Petitioners Versus Trust, Sainiyan Mohalla Sainipura, Rohtak and Others ... Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. C.B.Goel, Advocate for the petitioners. Kanwaljit Singh Ahluwalia, J. (Oral) This petition was taken up for hearing on 27.11.2008 when learned counsel for the petitioners sought time to place on record eviction petition, written statement and the replication. This was necessary to be placed on record as argument has been raised that in case a tenant who is in occupation of the shops tenanted out to him unauthorizedly take possession of the land belonging to landlord and raise construction thereupon and carve out a door in the partitioned wall of premises rented out to him for having access to the shops, cannot be evicted from the land belonging to the landlord where he has raised unauthorized construction. It is not disputed that from tenanted premises i.e. two shops, petitioners can be evicted but it is stated that portion in the back of the shops, where the tenant has raised Civil Revision No. 6533 of 2008 2 construction, he cannot be evicted. At this stage, Mr. Goel states that the area over which the construction has been unauthorizedly raised is vacant space and even though access has been made through the shops by opening a door, the construction over the vacant space, belonging to landlord, will not form part of the tenancy. To examine this argument, it will be necessary to notice the facts of the case. Trust Sainiyan Mohalla Sainipura, Roahtak (hereinafter referred to as “the Trust”) through Baljit Singh and Puran Singh instituted an eviction petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as “the Act”). It was stated therein that the Trust is registered and is owner of the demised premises and Baljit Singh and Puran Singh have been authorized by the Trust to file the eviction petition. It was further averred therein that two shops were rented out at a monthly rent of Rs.75/- per month. The shops have been shown in the site plan by marking letters ABCD and EFGH. Eight grounds of eviction were pleaded. Since the controversy revolve around ground (i), it is necessary to reproduce the same:- “(i) That the respondent No.1 has demolished the back wall marked BC and annexed portion shown by letters BIJC in the shop shown by the letters ABCD and constructed a shop over the portion BIJC and open a door in the said portion towards gher of the Trust and materially Civil Revision No. 6533 of 2008 3 impaired value of the shop”. Besides the above said ground, ground of nuisance, subletting the property, construction of a new shop behind the shops ABCD by removing the back wall mark BC and subletting were also pleaded. It was further stated that by making encroachment over the property of the Trust and giving same on the rent huge rent is being received by the tenant and, therefore, he has caused hindrance in use of the Trust property. It was further pleaded that tenant is in arrears of rent since May 1994. Another ground taken was that he has ceased to occupy the premises and has sublet the shops without the written consent of the landlord. A written statement was filed and a plea was raised by the tenant that not only two shops but the whole premises shown in the site plan is on rent with tenant. Learned Rent Controller after conclusion of the pleadings, formulated the following issues:- 1. Whether the respondents are liable to be evicted from the demised premises on the ground of non-payment of rent since May, 1994, as alleged? OPA 2. Whether the respondents are liable to be evicted from the demised premises on the ground of sub-letting by respondent No.1 in favour of respondents No.2 to 6 as alleged? OPA 3. Whether the respondents are liable to be Civil Revision No. 6533 of 2008 4 evicted from the demised premises on the ground of making alteration and making construction in the property in dispute without consent of the petitioners? OPA 4. Whether the respondents are liable to be evicted from the demised premises on the ground of change of user? OPA 5. Whether the respondents are liable to be evicted from the demised premises n the ground of nuisance? OPA 6. Whether the petition is bad for non-joinder of necessary parties? OPR 7. Whether the petitioners are estopped from filing of the petition b y their own act and conduct? OPR 8. Whether the petition has not been filed by the duly authorized persons? OPR 9. Whether the respondents are entitled to special costs? OPR 10. Relief. Landlord examined three witnesses, whereas tenant examined five witnesses. Both relied upon documents. Learned Rent Controller held that the tenant had sublet the premises to respondents No.2 to 6 and as per report of the Local Commissioner Ex.P3, not only renovations have been made, but a door has been fitted in the partitioned wall and a passage has been made for Civil Revision No. 6533 of 2008 5 gong to the room BIJC and by opening the door in the wall BC tenant has impaired the value and utility of the premises. The findings of learned Rent Controller were concurred by learned Appellate Authority. It further held that the tenant had raised construction over the property of the Trust after encroaching the same. It further held that the tenant had constructed the rooms without the written consent of the landlord, therefore, the petitioners had impaired the value and utility of the tenanted premises. It further held that the Local Commissioner is an independent person, therefore, the report given by the local Commissioner is reliable and trustworthy. Thereafter, learned Appellate Authority had upheld the findings given by learned Rent Controller on various issues. I have noticed the contentions and arguments advanced by Mr. Goel. Besides this, it has been submitted by Mr. Goel that even subletting has not been proved as the same has been done on the area where allegedly encroachment has been done. In the present case, I have reproduced the averments made in para 4(i) of the ejectment petition. In response thereto in the written statement, stand of the tenant had been that the entire area of site plan is in his possession on rent, therefore, there is no encroachment. Local Commissioner vide his report Ex.P3 has stated the construction has been raised in the tenanted premises and in the partitioned wall a door has been made and passage has been also created. Learned Appellate Authority held the Local Commissioner to be an independent person. Therefore, the findings of learned Appellate Authority that the construction has been made on the encroached area is to be taken into Civil Revision No. 6533 of 2008 6 account along with the pleadings of the tenant in the written statement. They cannot be read in isolation. The argument can be examined from another perspective also. Section 2(a) of the Act define building and the same read as under:- “2(a) “building” means any building or a part of building let for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses, gardens, lawns, wells or tanks appurtenant to such building or the furniture let therewith or any fittings affixed to or machinery installed in such building, but does not include a room in a hotel, hostel or boarding house”. Even if the arguments advanced by Mr. Goel is taken on the face value then also it is because of tenancy of two shops, he could get access to the land which has been encroached and the land vest in the landlord. Relationship of landlord and tenant is of a trust. Encroachment by the tenant whether amount to trespass or not, may fasten the tenant with a criminal action or a civil liability but as a tenant if he include the encroached area with the tenant premises, it certainly impair the value and utility of the property. Therefore, the findings of two Courts below are to be affirmed. Since the evidence has come that the petitioner has inducted sub tenants without written consent of the landlord on that ground, he is also liable to be evicted on this score also. Therefore, there is no merit in the present revision petition and hence, the same is Civil Revision No. 6533 of 2008 7 dismissed. At this stage, Mr. Goel states that since he has to remove the construction from the encroached area, a sufficient time may be granted to the tenant to vacate the demised premises. I find merit in this contention of Mr. Goel. Two months time is granted to the tenant to handover the peaceful vacant possession to the landlord. (Kanwaljit Singh Ahluwalia) Judge December 10, 2008 “DK”