CHARAN DASS Vs. NIRANJAN DASS SHARMA

JUDGEMENT

(1.) THIS revision petition by the tenant arises out of the order of the appellate authority allowing the respondent-landlord's appeal and reversing the order of the rent Controller whereby the ejectment petition filed by the landlord was dismissed.

(2.) PETITIONER took the shop in dispute on rent somewhere in the year 1947. Since the inception of the tenancy, the petitioner is carrying on the business of parching of grams and ground-nuts and selling the same. Respondent-landlord purchased the premises in the year 1965 from Fakir Chand who was its earlier Owner. The ejectment of the petitioner was sought on the ground that he has impaired the value and utility of the premises by making a hole of l 1/2 X 1 1/2. The Rent Controller dismissed the ejectment petition after finding that the I hathi was in the shop prior to the taking on rent by the petitioner from the landlord and the making of a hole in the roof has not impaired the value and utility of the building. The order of the Rent Controller was challenged by the landlord in appeal. The Appellate Authority though affirmed the finding of the Rent Controller that the Bhathi was already in existence and it is not an alteration made later on, yet passed the order of ejectment after finding that the digging of the hole has permanently impaired the value and utility of the shop. This order is being challenged by the tenant in this civil revision.

(3.) AFTER hearing the learned counsel for the parties at length, I am of the view that the order of the Appellate Authority cannot be sustained. In, order to attract the provisions of Section 13 (2) (iii) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act), the construction must not only be one affecting the value and utility of the building but such impairment must be of material nature. The Supreme Court in Om Parkash v. Amar Singh, 1987 (1) S. C. C. 458. held that those alterations which have not brought about substantial change in the construction of the building would not provide a ground for the tenant's eviction and minor alterations for the convenient use of the occupant, would not materially alter the building. Admittedly, shop in dispute was taken on rent by the petitioner for parching of grams and ground-nuts and for that matter, Bhathi was already in existence before he took the shop on rent. The nature of the business being carried on in the shop in dispute demands a hole for letting out the smoke. Therefore, in my view making of the hole to let out Smoke by the tenant who had taken the shop for parching of grams and ground-nuts, cannot be an act which would impair the value and utility of the building.