CR No.3504 of 2010 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3504 of 2010 (O&M) Date of decision:03.05.2011. Kuldeep Kumar Sharma ...Petitioner Versus R.B.L. Banarsi Dass Trust Society Regd. ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Kanwaljit Singh, Senior Advocate, with Mr. Siddharth Gupta, Advocate, for the petitioner. Mr. Avnish Mittal, Advocate, for the respondent. ***** Rakesh Kumar Jain, J. The tenant is in revision against the order of the learned Appellate Authority by which order of the learned Rent Controller has been reversed and he has been directed to vacate the demised premises within one month. In brief, the landlord filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 [for short “the Act”] for seeking eviction of the tenant from House No.4291, Cross Road, Ambala Cantt. which is in his occupation @ `65/- per month, inter alia, on the grounds that the building has become unfit and unsafe for human habitation, the tenant has materially impaired the value and utility of the demised premises and he has ceased to occupy the demised premises for the last 7-8 years much-less for a continuous period of four months prior to the filing of the eviction petition after shifting to his own house No.4300 which is near to the demised premises. It was also alleged that the demised premises had fallen down in the month of August 2004 and when the tenant started raising construction without the consent of the landlord, he filed a suit for perpetual injunction in which the CR No.3504 of 2010 (O&M) -2- ***** Local Commissioner was appointed who inspected the site on 26.04.2005. That suit was decreed and the tenant was restrained from making any construction, but despite that he constructed at least 3 rooms. In reply, besides taking various preliminary objections, the averments made on merits were denied which was further denied by the landlord in replication and consequently the learned Rent Controller framed the following issues: - “1. Whether the respondent is liable to be ejected from the tenanted premises on the ground as alleged in the petition?OPP. 2. Whether the respondent has acquired possession of H. No.4300, as alleged, if so to what effect?OPP. 3. Whether petition has not been filed by a duly authorized person?OPR. 4. Whether present petition is not maintainable in the present form?OPR. 5. Relief.” Both the parties led their respective evidence. The landlord examined Rakesh Kumar Ahlmad as PW-1, Ashutosh Aggarwal, Advocate as PW2, Anil Kumar Malik as PW3 and Shri Shyam Behari as PW4. The landlord also produced copy of report of Local Commissioner dated 28.04.2005 as Ex.P1, copy of site plan dated 28.04.2005 prepared by the Local Commissioner as Ex.P2, copy of memo of presence of the parties prepared by the Local Commissioner as Ex.P3, inspection report dated 01.06.2007 of Er. A.K.Malik as Ex.P4, copy of General Power of Attorney executed by the trustees in favour of Shyam Behari as Ex.PW4/B, copy of resolution dated 15.04.2005 as Ex.PW4/C, copy of certificate of registration of Societies as Ex.PW4/D, copy of site plan as Ex.P5 and copy of judgment dated 06.06.2007 as Ex.P6, copy of decree sheet dated 06.06.2007 as Ex.P7, copy of judgment dated 17.01.2008 as Ex.P8, copy of decree sheet as Ex.P9 and copy of order dated 03.05.2005 for appointment of fresh Local Commissioner as Ex.PA. On the other hand, the tenant examined himself as RW1and Amit Mittal as RW2. He also brought on CR No.3504 of 2010 (O&M) -3- ***** record documents, namely, inspection report dated 21.10.2008 of building prepared by Amit Mittal Architect as Ex.R1 and site plan prepared by Amit Mittal as Ex.R2. The learned Rent Controller decided all the issues against the landlord but the learned Appellate Authority reversed them all. While assailing the order of the learned Appellate Authority, learned counsel for the petitioner has argued that the evidence available on record has been completely misread. He virtually read the findings recorded by the learned Rent Controller on all the issues and has submitted that in the report of the Local Commissioner Ex.P1 he has not stated that any construction was going on at the spot as he had only written that the building material was lying there. There was no conclusive proof of the age of the building which was stated to be 2 years old because PW3 had admitted that he had not conducted any laboratory test. It is also urged that the Building Expert has nowhere opined that the building has become unfit and unsafe for human habitation and there is no opinion as to how the tenant had impaired its value and utility. It is argued by learned counsel for the petitioner that in order to prove that there is alteration, the landlord has to prove the original plan which could be alleged to have been altered by the tenant. In respect of issue of ceased to occupy, it was submitted that except bald statement of the landlord, there is no evidence on record that the tenant had shifted to his own premises 7-8 years ago. In reply, learned counsel for the landlord has reiterated the findings recorded by the learned Appellate Authority and has submitted that the report of the Local Commissioner has been accepted by the Civil Court while granting injunction and the learned Appellate Authority has taken into consideration the extent of construction of each room separately. He also referred to letter dated 08.04.2005 which was written by the tenant himself to the landlord in which he had alleged that due to flash floods, the demised premises has been damaged which required major repairs. Since the landlord objected to the repair being carried out by the tenant himself, he had filed Civil Suit which was decreed and the appeal filed by the tenant was dismissed but despite that the tenant carried out construction which has been found to be new construction by the Building CR No.3504 of 2010 (O&M) -4- ***** Expert. I have heard both the learned counsel for the parties and perused the record with their able assistance. From the resolution Ex.PW4/C and the letter dated 08.04.2005, it is amply clear that the demised premises had fallen in the flash floods in August, 2004 and when the tenant wanted to start construction without permission of the landlord, he was restrained by the Civil Court by decreeing suit of the landlord and the appeal against that judgment and decree filed by the tenant was finally dismissed. The Local Commissioner appointed by the Civil Court in his report Ex.P1 has shown the heaps of construction material lying on the demised premises in the shape of Bazri, bricks, sand, wooden karis which has not been explained by the tenant. He also found that the webs were hanging almost in all the rooms and observed that the demised premises was in a semi constructed state as floors have not been laid and the walls had no plaster and it was not in a habitable condition. While dealing with the portion Nos.3291 and 4291/2, the learned Appellate Authority has dealt with every room separately and observed that every portion had been newly constructed which was though not permitted by the learned Civil Court and there was no permission as well by the landlord. In this view of the matter, I am satisfied with the findings recorded by the learned Appellate Authority in respect of the building having become unfit and unsafe for human habitation and material impairment to its value and utility by the tenant and as such, I do not find any reason to disturb its findings. In view of the above discussion, the present revision petition is found to be without any merit and as such, the same is hereby dismissed though without any order as to costs. May 03, 2011. (Rakesh Kumar Jain) vinod* Judge