JANAK RAJ Vs. MOHAN LAL

JUDGEMENT

(1.) THIS is tenants' petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, 'the Act') challenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioners had changed the user of the shop for which it was let out and had started using the same for generation of power by installing a 5 HP diesel engine in it. It was further been held by both the Courts below that on account of vibrations caused by the diesel engine, the demised shop as well as the building has developed cracks and material impairment has been caused. A further finding recorded by the Courts below is that the emission of smoke and noise has been created causing pollution in the locality.

(2.) BRIEF facts of the case are that the predecessor-in-interest of tenant- petitioner Nos. 1 to 3 was given the demised shop on rent by the landlord- respondent and an ejectment petition under Section 13 of the Act was filed on the ground that the tenant-petitioners were using the demised shop for a purpose other than the one for which it was let out. It was further alleged that manner in which the demised shop was being used had materially impaired the value and utility of the demised shop on account of operating of diesel engine in it. A related plea was also raised that the diesel engine of such a huge horse power in the demised shop had caused nuisance to the neighbour and the occupiers of the building of first floor. The Rent Controller on the basis of over-whelming evidence produced by the landlord-respondent, came to the conclusion that a diesel engine of 5 HP capacity has been installed by the tenant-petitioners in the demised shop and the shop was not being used any longer for the purposes of selling tea or any Karyana items or any other commercial purpose. The findings are based on the report of a building expert, Ex. A-1, the site plan Ex. A-2 and the photographs Ex. A-3 to Ex. A-17 which have been duly proved by the negatives Ex. A-18 to Ex. A-32. A detailed report Ex. A-33 further shows that the whole building has developed cracks due to the operation of the diesel engine installed by the tenant-petitioners in the demised shop, which has materially impaired the value not only of the demised shop but also of the whole of the building. A perusal of paras 13 and 14 of the judgment of the Rent Controller would show that evidence in support of the aforementioned finding has been adduced by the landlord-respondent. The findings have been recorded in para 15 and the defence taken by the tenant- petitioners was reflected which was to the effect that the cracks had been caused on account of the electric motor installed by the landlord-respondent for lifting the water on the first floor which was stated to be of 1 HP. The findings with regard to the effect of operation of the diesel engine have been recorded in para 10 by concluding that the quality of evidence produced by the landlord-respondent coupled with the documentary evidence on record go a long way to establish the fact that the operation of the diesel engine in the demised shop installed by the tenant-petitioners has created various cracks of various sizes as mentioned in Report Ex A-33 by the Expert witness AW-2 and the same has materially impaired the value of the demised shop. On issue No. 3 also, the Rent Controller concluded that the noise and smoke pollution is created by the operation of diesel engine and the aforementioned issue was also decided in favour of the landlord-respondent.

(3.) ON the question of impairment of value and utility of the building, the findings recorded by the Rent Controller were also accepted by the learned Appellate Authority. The view of the Appellate Authority in this regard read as under :-