AMIR CHAND Vs. SARDAR ARJAN SINGH

JUDGEMENT

(1.) THE tenant-petitioner is aggrieved against the judgment dated 8.8.1979 passed by the learned Appellate Authority, Gurgaon, under Section 15(4) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Act') whereby an appeal filed by the landlord-respondent has been allowed. The judgment of the learned Rent Controller dated 27.4.1979, which went in favour of the petitioner has been set aside and an order of ejectment has been passed against him.

(2.) THE premises in dispute is a shop which is let out by the respondent to the petitioner vide rent note dated 31.1.1962 Ex.PW-5/2. It measures 6'x10'. There was a chabutra in front of it measuring 2'x6' and is shown in pink shade in the said plan. In front of the chabutra, there is the road of the bazar. The petitioner has raised a tin shed on the said chabutra in front of the shop. He has removed wooden door of the shop fixed in the wall 'Kha Ga' and instead a steel shutter has been fixed in front of the tin shed in the line 'Cha' Chha. In this manner, he has extended the length of the shop by 2'. It is now 12' long instead of the original length of 10'. The petitioner has also changed the slope of the roof of the shop from the northern side to the southern wall of the shop and has started discharging the rainy water from the roof of the shop on the southern side. He has not only encroached upon the chabutra by constructing a tin shed and extending the length of the shop but in addition underneath the chabutra he has constructed a godown to which a shutter is fixed and he stores the stock of merchandise there. These additions and alterations can be seen and appreciated by perusal of the photographs Exs. PW-4/4 to PW-4/6, the negatives of which are Exs. PW-4/1 to PW-4/3. On two sides of the shop in dispute, i.e. towards the South and West, adjoin the other shops of the respondent, while on the West adjoins a shop in occupation of one Mam Chand. None of the above facts as found by the learned Appellate Authority was questioned before me. The learned counsel for the parties confined their arguments to the question 'whether the additions and alterations detailed above come within the mischief of Clause (iii) of Section 13(2) of he Act. The learned Rent Controller was of the view that these could not be termed as material changes affecting the value and utility of the shop in dispute. The learned Appellate Authority, however, took the contrary view and ordered ejectment of the petitioner.

(3.) IN fact, the question 'whether or not the acts committed by the tenant are likely to impair materially the value or utility of the buildings' is to be decided keeping in view the peculiar facts of the case in hand. No doubt the principles of law enunciated in a catena of authorities provide the guidelines for reaching at a finding but these do not supply any strait jacket formula which can be applied to the facts of a particular case and a finding recorded on its basis. However, to be fair to the learned counsel for both the sides, I shall notice briefly what has been held in the judgments relied on by them. In Mohinder Singh's case (supra), it was held that where the flooring of the shop, which was originally of bricks, has been cemented, the door in between the shop and the compound behind it has been removed making a permanent link between the shop and the compound and the compound has been roofed with wooden planks, the alterations thus done could not be deemed as material alterations so as to attract the aforesaid provisions of the Act. In M/s. Parkash Chand Harnam Singh's case (supra), a Division Bench of this Court ruled that the act of the tenant in just fixing up the door in the verandah after removing the same from the original place would not amount to impairment of value and utility of the building. In Om Parkash's case (supra), the final Court was dealing with the provisions of Section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act (10 of 1952). It provides, inter alia, that a tenant is liable for his eviction form an accommodation if without the permission of the landlord he has made or permitted to be made any such construction as in the opinion of the Court is likely to substantially diminish its value. It is to be noted that language of Section 14(c) ibid considered by the final Court is quite different from that of Clause (iii) of Section 13(2) of the Act. The latter provision lays down that the tenant attracts eviction if he has committed or caused to be committed such acts as are "likely to impair materially the value and utility of the building or rented land." Thus, the Court may form an opinion whether the tenant by making such a construction has materially altered or substantially diminished the value of the building. But it shall have to be seen from the point of view of the landlord whether its utility is likely to be materially impaired by such acts. It may, however, be noted that in Om Parkash's case (supra) construction of a partition wall in a hall and tin shed in the open courtyard adjacent to the building without digging any foundation of the floor of the room or touching its ceiling was held not to attract the eviction of the tenant under Section 14(c) of the said Act. In Narain Singh's case (supra), a Division Bench of this Court held that where the tenant converts the verandah of a residential building into room by brick walls he impairs the value and utility of the building. The contention that the structure could be easily removed and the building restored to its original condition was held to be not tenable. It was further observed that the words "value or utility" in Clause (iii) ibid have to be read disjunctively. It is not that the impugned act must impair both the value and utility of the building but it suffices if the material impairment is either of the financial value of the building or similarly of the utility of the building. It consequently suffices for the purpose of landlord if he is able to establish either of the two requirements. In M/s. Suman Light Hosiery, Madhopuri's case (supra), following the rule laid down in Narain Singh's case, it was held that where the tenant constructs parchhatis and a wall and these alteration materially impairing the value and utility of the building. In Manmohan Das Shah's case (supra), the Supreme Court was examining the expression "or is likely substantially to diminish its value" in Section 3(1)(c) of U.P. (Temporary) Control of Rent and Eviction Act, 1947. Without attempting to lay down any general definition as to what material alterations mean, as such a question would depend on the facts and circumstances of each case, the final Court observed that the alterations in the given case must mean material alterations as the construction carried out by the tenant had the effect of altering the form and structure of the accommodation. The expression "material alterations" in its ordinary meaning was held to mean important alterations, such as those which materially or substantially change the front or the structure of the premises. It was further observed that such alteration might not cause damage to the property or diminish its value or might not amount to an unreasonable use of the leased premises or constitute a change in the purpose of lease. In that case lowering the level of the ground floor by 1-1/2 feet by excavating the earth therefrom the putting up a new floor the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor were held to be structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the building thus falling within the mischief of Clause (c) which was being examined by the Supreme Court. In Lakhmi Chand's case (supra), the roof of the shop in dispute was raised by the tenant to an extent of 4/5 feet in comparison to the other shop without the consent of the landlord. The wooden door was replaced by a shutter and a slab was constructed in the middle of the shop. This was held to be a clear case of materially impairing the value and utility of the building. In Jagmander Dass's case (supra), the tenant constructed a structure on the open space in front of the shop. The said open space did not belong to the landlord. The structure was, however, held to impair the utility of the shop and the tenant was held to be liable to ejectment by taking resort to Clause (iii) of Section 13(2) of the Act. In the case of Smt. Nirmala, the tenant covered the front open space and converted the entire building into an open hall. It was held that the tenant was liable to ejectment. The contention that the changes so made had increased the utility of the building was turned down. It was held that the impairment of the utility has to be seen from the point of view of the landlord and not that of the tenant.