UNITED ENGINEERS Vs. NIRMAL BHASIN

JUDGEMENT

(1.) THIS is tenants' petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (as applicable to Union Territory, Chandigarh) (for brevity 'the Act') challenging concurrent findings recorded by both the Courts below holding that the tenant-petitioners have carried material alterations in the demised premises resulting into impairment of its value and utility

(2.) THE landlady-respondent filed ejectment application under Section 13 of the Act being R.A. No. 3/8/93 on 14.4.1987 against the tenant-petitioners. She has averred in her application that the tenant-petitioners were inducted as tenant in 1976 in the demised premises at a monthly rent of Rs. 1,200/- P.M. in addition to water and electricity charges in pursuance to a duly executed lease deed. It was alleged that the tenant-petitioners have been paying rent less than the agreed rent since March, 1977. Further ground of material impairment of value and utility of the demised premises within the meaning of Section 13(2)(iii) of the Act has also been taken by alleging that the back- yard of the demised premises is sanctioned to be kept open for smooth passage of light and air to the building on the ground floor. It was alleged that the tenant-petitioners have made big holes of eight inches deep for fixing wooden batons to support the asbestos sheets and after fixing the wooden batons they have put additional weight on the walls. The open court- yard has been converted into a room where machinery and goods have been stored. On account of the construction raised by the tenant-petitioners in the rear court-yard a notice under Section 8-A of the Capital of Punjab (Development and Regulations) Act, 1952 (for brevity 'the 1952 Act') and the rules framed thereunder was issued to the landlady respondent for resumption of the building. It was further alleged that there is a laboratory situated on the ground floor which is also used for commercial purposes. With regard to first floor of the building, the allegations were that the tenant-petitioners have glazed the back side of verandah which was required to be kept open according to the bye-laws of the Chandigarh Administration. Further allegations were also levelled and it was pointed out that in order to restore the building to its proper state, for repair atleast Rs. 20,000/- to Rs. 25,000/- is required to be spent. The ground concerning change of user was also taken by asserting that the demised premises could only be used as a shop on the ground floor and residence on the first and second floors. It has been alleged that on the ground floor, the tenant-petitioners have installed machinery for manufacturing deep-freezer, refrigerator and has also set up a work shop for repair of these items. The use of the demised premises is alleged to be against the provisions of allotment and conditions of sale. The landlady respondent has pleaded yet another ground of ejectment that the tenant- petitioners are a source of nuisance to the occupier of the buildings in the neighbourhood inasmuch as the workshop and manufacturing unit set up by the tenant-petitioners is creating great hardship to the neighbours.

(3.) SHRI M.L. Sarin, learned counsel for the petitioners has argued that under Section 13(2)(iii) of the Act the landlady respondent is required to prove that the tenant-petitioners have raised construction which is of such a nature that it has materially impaired the value and utility of the demised premises. According to the learned counsel raising of any construction without the proof that it has materially impaired the value and utility of the demised premises would not attract ejectment of a tenant under Section 13(2)(iii) of the Act. The learned counsel has placed reliance on paras 5 and 6 of the judgment of the Supreme Court in the case of Om Parkash v. Amar Singh, 1987(1) RCR(Rent) 326 (SC) : AIR 1987 SC 617 and argued that in this case a partition wall was constructed without digging roof along with the shed. However, it was held not to be a permanent structure impairing the value and utility of the building. He has also referred to another judgment of the Supreme Court in the case of Om Pal v. Anand Swarup, 1988(2) RCR(Rent) 419 (SC) : 1988(2) PLR 699 and argued that any construction raised with a view to make better use of the space without causing any structural changes in character and form of the building would not be taken to mean impairment of the mean impairment of the value and utility of the building. For the same proposition, the learned counsel has placed reliance on another judgment of the Supreme Court in the case of Birjinder Nath Bhargava and another v. Harsh Wardhan and others, 1988(1) RCR(Rent) 86 (SC) : 1988 HRR 156. He has then referred to a Division Bench judgment of this Court in the case of Bhupinder Singh v. J.L. Kapur, 1992(2) PLR 218 and argued that after considering all the aforementioned judgments of the Supreme Court, the Division Bench has highlighted the basic features of Section 13(2)(iii) of the Act in para 17. The learned counsel has also referred to three other judgments of this Court in the cases of Lachhman Dass v. Charan Kaur, 1992(2) RCR(Rent) 696 (P&H) : 1993(1) PLR 47; Subhash Chander v. Valayati Ram, 1994(1) RCR(Rent) 630 (P&H) : 1994(1) PLR 701 and Jalandhar Cooperative Printing and Publishing Society Ltd. v. Vijay Sethi, 2004(1) RCR 461 and argued that in these cases despite the fact that roof was replaced or verandah was closed yet the Court has found that Section 13(2)(iii) of the Act would not be attracted. He has then referred to paras 8, 11 and 16 of the judgment of the Supreme Court in the case of Waryam Singh v. Baldev Singh, 2002(2) RCR(Rent) 594 (SC) : 2003(1) SCC 59 and emphasised that in addition to raising of construction it is incumbent upon the landlady respondent to adduce evidence for establishing the fact that there is material impairment in the value and utility of the demised premises. The learned counsel has maintained that by encroaching the verandah after construction of walls and placing rolling shutter in front thereof would not be sufficient to justify the inference that value or utility of the premises has been impaired. Referring to the earlier judgment of the Supreme Court in Vipin Kumar v. R.L. Anand, 1993(2) SCC 614, the learned counsel has argued that the aforementioned view was distinguished in Waryam Singh's case (supra) on the ground that in Vipin Kumar's case the evidence of expert was adduced to prove the impairment of the value and utility of the demised premises whereas in Waryam Singh's case (supra) the tenant succeeded as no proof of impairment of value and utility was adduced by the landlord. Relying on the judgment of the Supreme Court in Waryam Singh's case (supra), the learned counsel has submitted that there is no evidence in the instant case to prove that air or light has been obstructed which might have diminished the value or utility of the demised premises. A contrary view taken by the Division Bench of this Court in Narain Singh v. Bakson Laboratories, 1981 Curr.L.J. (Civil) 414 was over-ruled by the Supreme Court.