C.R.No. 2730 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No. 2730 of 2005 (O&M) Date of decision : 26.11.2008 Varinder Kumar ...Petitioner Versus Vinay Kashyap and others ......Respondents CORAM : HON'BLE MR. JUSTICE MAHESH GROVER Present : Mr.D.K.Bhatti, Advocate for the petitioner. Mr.S.K.Singla, Advocate for the respondents. MAHESH GROVER, J. This revision petition is directed against the order of the Appellate Authority dated 30.3.2005 by which the petitioner has been ordered to be evicted from the premises in question. The petitioner faced ejectment proceedings under the provisions of Section 13 of the East Punjab Urban Rent Restriction Act, 1949 when the petition was preferred by the respondent-landlord seeking his ejectment on the following grounds :- i) That the respondent has not paid or tendered the due rent in respect of shop from 1.7.90 upto this day according to the terms and conditions agreed by him, in the rent deed dated 11.7.90 executed by him in favour of the petitioner. ii) That the respondent has materially altered the premises by covering the varandah and Tharra (thresh C.R.No. 2730 of 2005 -2- hold) into the various shops by roofing at and fixing of almirah and shutter which is not only illegal but contrary to the terms and conditions of the rent deed dated 11.7.90 which has decreased the utility of the shop. iii) That the respondent has altogether changed the roof of the shop open thresh hold (Tharra) converted into room with shutter in front of it as manifests from the spot which impairs the value and utility of the building.” In the written statement preferred by the petitioner he has denied the factum of the construction in front of the shop as alleged by the respondent-landlord. The Rent Controller framed the following issues :- “i) Whether the tender made by the respondent is valid ? OPR ii) Whether respondent has made material alterations in the premises in dispute and decreased its value and utility ? OPA iii) Relief.” The petition was determined against the landlord and his application was dismissed. An appeal followed and the findings of the Rent Controller were reversed vide the impugned order which has resulted in the present revision petition. During the course of the proceedings, the rent stood paid as a result of which the ground for non-payment of rent was not available to the respondent and the parties thereafter locked horns C.R.No. 2730 of 2005 -3- only on the issue of material impairment of the value and utility of the shop. In his testimony the petitioner-tenant has not denied the factum of construction which has been raised in front of the shop and as alleged by the landlord, even though this was categorically denied by the petitioner in his written statement. The petitioner rather chose to take up the plea that the area on which the construction has been raised and shuttering has been done belongs to the Municipal Council and, therefore, the respondent-landlord could not say that there was any material impairment to the shop. That apart, it was also sought to be projected by the petitioner that there was no material impairment to the shop as alleged and he did not obstruct the main shop and did not impede the air, light and ventilation. Assailing the findings of the Appellate Authority, learned counsel for the petitioner contended that the encroachment certainly existed in the year 1989 which is apparent from the list of encroachment supplied by the Municipal Council. The rent note was renewed in the year 1990 and the rent itself was increased w.e.f. 11.7.1990. It was contended that from this it can be inferred that the respondent-landlord had condoned the act of the petitioner in raising the construction and now he cannot rake up the plea that there was material impairment of the shop in question. Learned counsel for the petitioner also drew the attention of this Court to the fact that the roof has been repaired with the consent of the landlord in the year 1990 and the encroachment existed at that point of time also and, therefore, no benefit could be derived by the respondent-landlord from this C.R.No. 2730 of 2005 -4- plea. On the other hand, learned counsel for the respondents contended that the construction was subsequent to the year 1990 and the fact that the construction has not been denied by the petitioner renders the petitioner liable to be evicted. Reference was also made to the testimony of the petitioner wherein he has admitted himself that the construction obstructed the passage of air and light. It was then contended that in view of the fact that there was a categoric admission by the petitioner regarding the construction, this petition does not deserve to be accepted. In so far as the plea of waiver is concerned, reliance was placed on Shiv Ram (Dead) through LRs. v. Sham Lal and another 2003(2)RCR 285 (P&H) to contend that the conduct of executing a rent note did not imply that the lapses of the petitioner have been condoned. It was next contended that the property of the respondents had been threatened by the encroachment raised on the Municipal land. I have heard the learned counsel for the parties at some length. There is no denial to the fact that the construction has been raised by the petitioner in front of the shop on the land which belongs to the Municipal Council. There is also no denial to the photographs which have been already exhibited on record. In nutshell, the construction is admitted as also the fact that there is obstruction to the air and light by such construction in front of the shop. It is also a settled proposition of law that whether a construction amounts to C.R.No. 2730 of 2005 -5- material impairment to the premises or not is to be viewed from the prospects of the landlord and not of the tenant. That apart, the petitioner has categorically admitted that the Tharra on which the construction has been raised in front of the shop belongs to the Municipal Council. This act itself renders the property of the respondents to peril as the Municipal Council can initiate action against the owner who permits such a construction to come up. Viewed from any angle, the action of the petitioner amounts to impairment of the value and utility of the shop and more so when he had categorically stated that the premises shall be retained in the same shape as they were let out. Even though such a condition does not exists in the rent note, yet it has to be inferred from each tenancy that the landlord expects the building to be retained in the same manner as it is let out to the tenant unless there is a tacit consent to change and alter its structure or to make any addition thereto. In this view of the matter, I do not find any infirmity in the impugned order and the petition being devoid of any merit is dismissed. At this stage, learned counsel for the petitioner prays for some time to be granted to him to make an alternative arrangement. In the event of the petitioner giving an undertaking before the Rent Controller within a period of four weeks from today to the effect that he shall hand over the physical vacant possession of the demised premises to the respondent-landlord on or before 31.5.2009, the execution of the impugned order vide which the eviction of the petitioner has been ordered shall remain in abeyance. The petitioner shall pay the arrears of rent, if any, along C.R.No. 2730 of 2005 -6- with the undertaking and shall also continue to make the payment of rent for the subsequent period till the time he is in possession of the shop on the strength of such an undertaking. Failure to abide by any terms of this order shall automatically result in the denial of the benefit of this order to the petitioner. 26.11.2008 (MAHESH GROVER) JUDGE dss