CR No.6900 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6900 of 2008 (O&M) Date of Decision: 24.09.2010 M/s Dolly Motors ....Petitioner Vs. Nirmal Rani Kochhar & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Jain, Sr.Advocate, with Mr.Amit Jain, Advocate, for the petitioner. Mr.Avnish Mittal, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This is tenant's revision against the order passed by the learned Appellate Authority allowing application moved by the respondents/ landlords under section 13 of the Haryana Urban (Control of Rent & Eviction) Act 1973 (for short the Act). The respondents/landlords filed a petition under section 13 of CR No.6900 of 2008 2 the Act for ejectment of the petitioner/tenant from the premises in dispute i.e. portion of Bunglow No.125, Savoy Estate, Staff Road, Ambala Cantt/Ambala Sadar. Pleaded case of the respondents/landlords was, that the petitioner is tenant in a portion of Bunglow No.125, Savoy Estate, Staff Road, Ambala Cantt/Ambala Sadar at a monthly rent of ` 650/- (Rupees six hundred and fifty only). The tenanted premises consists of one temporary shed measuring 11' x 39' and open land. Premises were let out to the petitioner for Auto Repairs Workshop. Ground of eviction was, that the petitioner/tenant materially impaired the value and utility of the tenanted premises by constructing a room in the open land adjacent to the shed which was shown in red colour in the site plan attached with the petition and also constructed a khoka in the open land which had blocked the ingress and outgress. Room constructed by the petitioner/tenant was said to be pucca which was constructed by raising the new walls from the foundation and thus, changing the nature of tenanted premises. Thus, it was claimed that the petitioner/tenant has impaired the value and utility of the tenanted premises. Addition and alterations were made by the tenant in the month of February, 2002 after the commencement of the Act without the written consent of the petitioner. The case of the landlords was, that a suit for permanent injunction was filed restraining the petitioner/tenant from making any construction, addition or alteration in the tenanted premises. Learned Additional Civil Judge (Senior Division), Ambala Cantt granted ad interim injunction and also appointed a Local CR No.6900 of 2008 3 Commissioner to inspect the tenancy premises. Local Commissioner submitted his report and as per the report, the tenant was shown to have constructed new walls and the cement was wet at the time of inspection. He had also installed a new shutter in the walls and a khoka was placed in the tenanted premises. The petitioner/tenant in violation of injunction order, raised construction in the tenanted premises as referred to above and thereafter fitted another shutter facing to open land on tenanted premises after the inspection of the Local Commissioner. Petition was contested by the tenant by pleading therein, that he was tenant at a monthly rent ` 50/- (Rupees fifty only). The petitioner denied that the tenanted premises consists of one temporary shed only. Stand of the petitioner/tenant was that all the construction which exist are from the very beginning. Case of the petitioner/tenant was that Auto Repairs Workshop cannot be carried in temporary shed. It was denied, that the petitioner had impaired the value and utility of the tenanted premises. He also denied having constructed room and a positive stand was taken that he did not raise any new construction but carried out necessary repairs and walls were plastered. This was done as the respondents/landlords had failed to make necessary repairs in spite of repeated requests by the petitioner. Case of the tenant was, that keeping in view the law and order situation a request was made to the respondents/landlords to allow him to install shutter in place of wooden doors but his request was not accepted. Petitioner/tenant admitted to have installed two iron shutters in place of wooden doors without causing any damage to the property. Raising of new CR No.6900 of 2008 4 walls was denied and it was pleaded that only walls were plastered but no addition or alteration was made. It was denied that the tenanted premises had become totally different from the one rented out. The case of the tenant was, that petition was filed with a mala fide intention to increase rent. Suit filed for injunction was said to be with mala fide intention and report of Local Commissioner was said to be wrong and against facts. It was also the case of the tenant that petition was not maintainable as it was not filed by the duly authorized person. In the replication averments made in the petition were reiterated and those made in the written statement were denied. On the pleadings of the parties the learned Rent Controller, framed the following issues:- 1. Whether the respondent is liable to be ejected from the tenancy premises on the grounds mentioned in the petition? OPP 2. Whether petition is false and frivolous? OPR 3. Whether petition is bad and has not been filed through a duly authorised person? OPR 4. Whether petition is not in a proper form as required under Haryana Urban (Control of Rent & Eviction) Act and the rules made thereunder? OPR 5. Relief. The respondent/landlord in support of its case examined Om Parkash Kochhar, General Attorney of the petitioner as PW 4 and also CR No.6900 of 2008 5 examined Rakesh Kumar, Clerk Municipal Corporation as PW 1, Bhupinder Singh Civil Ahlmad as PW 2, RKS Chandel Advocate as PW 3 and closed his evidence. The petitioner/tenant himself appeared as RW 1 and examined Bakshi Lal as RW 2 and Uttam Rishi as RW 3 and closed his evidence. The witnesses examined by the landlord deposed as pleaded in the petition. It was also deposed in the evidence that the construction raised was of far-reaching nature which was made by the tenant without the consent of the landlord. The case of the landlords in the evidence was, that the permission of Municipal Council, Ambala was also not taken to make construction and further that there were no wooden doors where the tenant/petitioner fixed iron and shutter in the newly constructed room. It was proved on record that notice was issued by the Municipal Council, Ambala Sadar on 12.2.2002 to the tenant for unauthorized construction. Filing of suit was also proved along with the order passed thereon. Evidence was also led to show that when the Local Commissioner inspected the tenanted premises it was found that cement was wet and only one shutter was fixed. It was also said in evidence that the petitioner/tenant had put a wooden khoka in the open land and sublet to M/s Bhatia Electric Wrks without the written consent of the petitioner. Notice issued by the Municipal Council was proved as Ex.P.1, whereas report of Local Commissioner was proved as Ex.P.2 and site plan as Ex.P.3. PW 3 RKS Chandel, Advocate, proved the findings of the suit and report of Local Commissioner. CR No.6900 of 2008 6 Evidence led by the tenant on the other hand, was as per the version set out in the written statement. The case set up in the evidence by the tenant/petitioner was that the petition was not filed through duly authorised person. It was also deposed in the evidence that the respondents/landlords had not come to court with clean hands and therefore, not entitled to any relief. It was deposed that no addition or alteration were made in the property in dispute. Evidence was led to prove that only repairs were carried out and walls were plastered. Report of the Local Commissioner was disputed in the evidence. The case of the petitioner/tenant was, that reply to notice Ex.P.1 was sent by the tenant, and thereafter no action was taken. Tenant also denied having sublet the premises to M/s Bhatia Electric Works. Evidence was also led to prove that the tenant was running business for the last 30 years and had not made any addition or alteration. It was also the case of the tenant that the khoka was in existence for the last more than 30 years, and that the entire construction was having tin roof which was there since the very beginning. Learned Rent Controller on appreciation of evidence, came o the conclusion that there was no evidence led on behalf of the respondents/ landlords, that a new room was constructed by digging foundation. Evidence of the respondents/landlords that the walls were new, was discarded for want of any evidence to prove that the construction had materially impaired the value and utility of the premises. The learned Rent Controller came to the conclusion, that the CR No.6900 of 2008 7 premises being used as repairs shop, could be better used by the construction raised and the additional shutters were for the purposes of protection and articles necessary for running a workshop. Learned Rent Controller, therefore, held that as per the provisions of the Act, the landlord is not only to prove that the tenant had raised construction, but he was also to further prove that the construction raised materially impaired the value and utility of the premises, as the construction ipso facto could not be a ground for eviction. Issue No.1 was accordingly decided in favour of the tenant/petitioner and against the landlords. Issues No.2 to 6 were decided against the respondent/landlord as not pressed. Resultantly the petition was dismissed. Appeal was filed against the judgment passed by the learned Rent Controller. The learned appellate authority reversed the findings of the learned rent Controller on issue No.1. Application moved by the respondents/landlords for addition was not accepted. Learned appellate authority reappraised the evidence and came to the conclusion that plea raised by the respondents/landlords was, that the tenant had raised unauthorised construction by making additions and alteration in the tenanted premises which had diminished the value and utility of the tenanted premises. The learned appellate authority relied upon the report of the Local Commissioner to hold, that new walls were CR No.6900 of 2008 8 constructed and shutters were fitted in the newly constructed wall. Learned appellate authority on consideration of report held, that from the report of the Local Commissioner, it is clear that certain new construction in the shape of room was raised by the respondent/tenant in the tenanted premises. Learned appellate authority also held, that raising of construction was even accepted by the learned civil court, as the appeal filed by the petitioner/tenant against the order of injunction was also dismissed. Learned appellate authority also took note of the fact that the petitioner/tenant in the civil suit has stated, that he had obtained the property on rent, when there was one tin shed in existence, and had admitted that there was room marked ABCDE now in existence at the spot. This fact was admitted by the witnesses examined by the petitioner/tenant. Learned appellate authority, therefore, came to the conclusion that factum of new construction stood proved. Learned appellate authority thereafter proceeded on the basis of settled law that construction has to be seen with the point of view of the landlord. Learned appellate authority held that a specific plea was raised that the tenant had blocked ingress and outgress by constructing a pucca room and changed the shape of tenanted premises completely. Learned appellate authority, thus, held that construction raised by the petitioner/tenant had impaired the value and utility, as it was raised without the permission of the landlords. On the findings recorded above, the CR No.6900 of 2008 9 findings recorded by the learned Rent Controller were reversed and the petitioner was ordered to be evicted. Mr.Arun Jain, learned senior counsel appearing on behalf of the petitioner challenged the order passed by the learned appellate authority by contending, that the learned appellate authority failed to notice that in the cross-examination Local Commissioner had admitted, that he was not an expert or engineer to opine about the nature of construction. The contention raised was, that the report could not be read to come to a conclusion that new construction was raised. It was also the contention of the learned senior counsel for the petitioner that the tenant had merely plastered walls which could not be said to be material alteration. The argument was also raised that the room raised was without foundation, therefore, could not be said to be of permanent nature. It was also the contention of the learned senior counsel for the petitioner, that there was no evidence to prove the construction and furthermore, that in pursuance to the reply submitted to the notice issued by Municipal Council no further action was taken. It was thus contended, that the findings of the learned appellate authority could not be sustained in law. Learned senior counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of G.Reghunathan Vs. K.V.Varghese 2005 (2) Rent Control Reporter 247, to contend that necessary changes made for use of the building for the purpose for which it was rented out, cannot be said to be materially affected the value and utility of the building. CR No.6900 of 2008 10 Hon'ble Supreme Court in the said case held that the alteration made for use of shop for business of diamond jewellery could not be said to be material alteration, as it was let out for the said purpose. The judgment has no application to the facts of the present case, as the tenant raised permanent construction by raising the pucca room and putting two shutters thereon. This was done by the petitioner/tenant in spite of injunction order passed by the civil court, restraining him from raising further construction. Learned senior counsel for the petitioner thereafter placed reliance on the judgment of Hon'ble Supreme Court in the case of Waryam Singh Vs. Baldev Singh 2002 (2) Rent Control Reporter 594, wherein Hon'ble Supreme Court held, that when verandah is let out to a tenant, then covering the said verandah by constructing two side walls and putting rolling shutter in front of them without removing any fixture or affecting air and light would not amount to material impairment. This judgment again has no application to the facts of the present case, as the petitioner was given on rent tin shed with open land where he raised a permanent construction, which certainly impaired the value and utility of the building. Report of the Local Commissioner was clear and specific, that construction was raised by the petitioner by raising a pucca wall and plastering it. Report was accepted by the civil court, inter se between the parties. It is not open to the petitioner/tenant to now challenge it on the ground that Local Commissioner was not expert or an Engineer. CR No.6900 of 2008 11 This judgment of the Hon'ble Supreme Court again has no application to the facts of the case. Learned senior counsel for the petitioner thereafter placed reliance on the judgment of this Court in the case of Smt.Harjit Kaur & Ors. Vs. Sant Ram (2003-2) PLR 189, wherein a temporary construction raised, for proper running the business of saw mill, was held to be not such which would impair the value and utility of the building, as the construction was not embodied in the earth. The wall for raising a room has to be on the foundation. Contention of the learned senior counsel for the petitioner that the walls were without foundation cannot be accepted, nor the judgment relied on can advance the case of the petitioner. Learned counsel for the petitioner thereafter placed reliance on the judgment of this court in the case of Narinder Kumar Vs. Smt.Pushpa Gupta & Ors. 2008 (4) RCR (Civil) 228, wherein this court had laid down that making of temporary alteration, which were necessary for running of business, cannot be said to impair the value and utility of the rented premises. As already observed above, this judgment cannot advance the case of the petitioner, as the petitioner against the rules of Municipal Council and without the consent of the landlord has raised a permanent construction by raising a room, which changed the nature of the tenanted premises. Learned senior counsel for the petitioner thereafter placed CR No.6900 of 2008 12 reliance on the judgment of this court in the case of Chander Kanta & Ors. Vs. Ram Chander 2004 (1)HRR 188, wherein erection of four poles to cover chowk by placing a tin shed, was held not to impair the value and utility of the building as the structures were only temporary. This judgment again cannot advance the case of the petitioner, in view of the finding that a pucca room was constructed by the tenant in the tenanted premises. Finally, reliance was placed by the learned senior counsel for the petitioner on the judgment of this court in the case of Adhishwar Parshad Jain and Anr. Vs. Inder Parkash and Ors. 2009 (1)RCR 507, wherein the making of some wooden racks and almirahs, for storing the goods or ensuring better safety to a building by providing a rolling shutter was held to not materially impaired the value and utility of the building. This judgment has no application to the facts of the present case, as positive finding was recorded by the learned appellate authority is, that the petitioner raised a pucca room, by raising walls and plastered it. Construction raised could not be said to be temporary as claimed by the learned senior counsel for the petitioner. Mr.Avnish Mittal, learned counsel appearing on behalf of the respondents, on the other hand, supported the judgment by placing reliance on the judgment of this court in the case of M/s United Engineers through its Sole Prop. Sarup Singh and Anr. Vs. Nirmal Bhasin 2004 (2) RCR (Rent) 627, wherein this court held that on account of raising a structure which though temporary, but violated the provisions of the law, and a CR No.6900 of 2008 13 notice was issued to the landlord for resumption of building the tenant was liable to be evicted, irrespective of the fact whether it impaired the value and utility of the building or not. The contention of the learned counsel was, that in this case also notice was issued by the Municipal Council against the illegal construction by the tenant. This judgment has no application to the facts of the present case as positive finding was recorded that value and utility of the building was impaired by raising pucca room. Learned counsel for the respondent thereafter placed reliance on the judgment of this court in the case of M/s Goyal Steel Industries and Ors. Vs. Sanagram Singh Sandhawalia & Ors. 2005 (1) RCR 187, wherein this court held that the construction though temporary in nature, but was in violation of building laws, for which building could be resumed by authority, then the tenant is liable to eviction. Reliance was placed o by the learned counsel for the respondent on the judgment of this court in the case of Dr.Sohan Lal Chawla Vs. Janki Dass Chopra 2005 (1) RCR (Rent) 664, wherein this court held, that each and every act of construction cannot be taken as material impairment of the value and utility of the premises. Each case has to be weighed on its own facts. The value and utility of the premises has to be weighed from the point of view of the landlord. Hon'ble Supreme Court in the case of British Motor Car Co. &Vs. Madan Lal Saggi (D) and Anr. 2004 (2) RCR (Rent) 693, laid down that impairment of value and utility of the building is to be seen from CR No.6900 of 2008 14 the point of view of the landlord and not the tenant. Learned counsel for the respondents rightly contended, that when nature of the building itself stood changed, the learned appellate authority rightly came to the conclusion that the respondent/landlord was able to prove, that by raising construction, the petitioner had impaired the value and utility of the building. Learned counsel for the respondents also placed reliance on the judgment of Hon'ble Allahabad High Court in the case of Babu Ram Vs. Spl.Judge/Addl. Distt. Judge, Bijnor and Ors. 2005 (1) RCR (rent) 125, wherein Hon'ble Allahabad High Court had laid down that construction of concrete pillars and placing of shed thereon amounts to structural change and therefore tenant was liable to be evicted. In the present case also the petitioner, raised a permanent/pucca room, and put the shutters thereon, without the written consent of the landlords. The construction raised being of permanent nature, certainly amounted to impairing the value and utility of the building, as held by the learned appellate authority. The order of the learned appellate authority is, thus, based on appreciation of evidence, and by applying well settled principles of law. For the reasons stated above, finding no merit in this revision petition, it is ordered to be dismissed but with no order as to costs. 24.09.2010 (Vinod K.Sharma) rp Judge