JUDGMENT
M.M. Kumar, J.
1. This petition filed by the tenant-petitioner’s under Sub Section 6 of Section 15 of the Haryana Urban (Control) of Rent and Eviction) Act, 1973 (for brevity the Act) challenges the judgment dated 8.9.1993 passed by the Appellate Authority, Sonepat. The Appellate Authority has reversed the findings of fact recorded by the Rent Controller that the tenant-petitioner has made material alterations in the demised shops.
2. The facts which are necessary to decide the legal controversy raised in the present petition are that the landlord-respondent filed an application under Section 13 of the Act asserting that the tenant-petitioner was given two shops on rent on a monthly rent of Rs.265/- for the purpose of carrying on the business of Typing. It was further averred that Rent Note dated 15.2.195 was executed between the parties. The landlord-respondent pleaded the grounds of arrears of rent from 15.10.1987 to 14.8.1988, change of user by starting the cloth business instead of typing business without the permission of the landlord-respondent and the ground of material alteration impairing the value and utility of the property as he has removed the intervening wall of the two shops without the permission of the landlord-respondent which has deteriorated the value and utility of the property.
3. The tenant-petitioner contested the ejectment petition. The relationship of landlord- tenant as well as rate of rent was admitted. However, it was denied that there was any change of user because the shop was let out for the business purpose. It was also denied that two shops were let out claiming that it was only one shop which was let out to him and there was no intervening wall as alleged by the landlord-respondent. The tenant petitioner asserted that he had not removed any intervening wall of the two shops claiming that there was no such wall at the time when he took the possession of the demised premises as a tenant. He claimed that the value and utility of the building has not been deteriorated.
4. The only ground which survives for consideration is as to whether the tenant-petitioner has caused material alterations by removing the intervening wall within the meaning of Section 13(2)(iii) of the Act. The Rent Controller appears to have been influenced by the fact that only one electric meter was installed and had there been two shops then two meters would have been in operation. The Rent Controller further held that even if the wall is removed it would not necessarily follow that the value and utility of the premises has been impaired materially. The Rent Controller also held that onus to prove these substantive facts was on the landlord-respondent.
5. On appeal, the only ground pressed for ejectment was that of the material alteration by removal of intervening wall and converting both the shops into one shop. Relying on the Rent Note Ex.P.1, where specifically it is recorded that there are two shops which are being rented out to the tenant-petitioner and both the shops would be having electricity supply from one meter. The Appellate Authority also placed reliance on the receipts Ex.P.3 to P. 10 wherein invariably it is specified that the receipts concerning payment of rent were being issued in respect of shop nos. 14 and 15. Reliance was also placed on the oral statements of various witnesses. On the basis of the afore-mentioned overwhelming evidence, the Appellate Authority concluded that by removal of intervening wall which had given strength to the roof, the tenant-petitioner has materially impaired the life of the roof and therefore had amounted to major alteration causing damages to the original structure.
6. I have heard Sh. R.K. Sharma, learned for the tenant-petitioner who has argued that neither any building expert nor any Local Commissioner has been produced to conclude that the intervening wall has been removed and it has resulted in impairment of the value and utility of the demised premises. He has made reference to the statement of various witness especially of Bishan Sarup PW1 and Bhim Singh PW4 to argue that these witnesses have no where stated that the removal of the intervening wall has resulted in impairing the utility and value of the demised premises. According to the learned counsel, the finding recorded by the Rent Controller have been reversed without any reason. In support of his submission, the learned counsel has placed reliance on a Division Bench judgment of this Court in the case of Bhupinder Singh and Ors. v. J.L. Kapoor and Ors., (1992-2)102 P.L.R. 218 and Jai Bhagwan v. Niadar, 1990 H.R.R. 17 to argue that proof of impairment has to be furnished by the landlord.
7. Ms. Sonia Kinra, learned counsel for the landlord-respondent has referred to Rent Note Ex.P1 to show that the tenant-petitioner himself has signed the Rent Note which reveals right in the first para that two shops bearing Nos.14 and 15 were given to the tenant-petitioner for running typing business and there was only one electricity meter for supply of energy to both the shops. She has also referred to the counter foil of the receipts of rent Ex.P3 to P10 to show that always receipt was issued by describing shops as shop Nos.14 and 15. After making reference to the statements of witnesses, the learned counsel has argued that the findings recorded by the Appellate Authority are well based and cannot be interfered with by this Court. In support of her submission, the learned counsel has placed reliance on a judgment of this Court in the case of Dalip Kaur v. Harbhajan Kaur, (2001-1)127 P.L.R. 542 and also a judgment of the Supreme Court in the case of Vipin Kumar v. Roshan Lal Anand 1993(1) R.C.R. 675.
8. After hearing the counsel for the parties, I am of the considered view that this petition is devoid of merit and is thus liable to be dismissed. Learned Appellate Authority by referring to documentary evidence of Rent Note Ex.Pl and rent receipts Ex.P3 to P10 alongwith the oral statement of various witnesses has concluded that the intervening wall of the two shops has been removed by the tenant-petitioner without the permission of the landlord-respondent which has resulted in removal of the support of the roof. As such there is impairment of value and utility of the premises within the meaning of Section 13(2)(iii) of the Act. It would be appropriate to make a reference to the provisions of Section 13(2)(iii) of the Act which reads as under:
“13. Eviction of tenants;-
(2) A landlord who seeks to evict his tenant shall apply to the Controller, for direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied, (i) and (ii) xx xx xx xx xx
(iii) that the tenant has committed or caused to be committed such acts as are likely to impair materially the value or utility of the building or rented land:”
9. A similar provision from the East Punjab Urban Rent Restriction Act, 1949 which is pari-materia to the above extracted provision came up for consideration before the Supreme Court in Vipin Kumar’s case (supra). Their Lordships of the Supreme Court came to the conclusion that once the tenant is proved to have made additions and alterations then whether such an addition and alteration would impair the value and utility of the premises would be an inferential fact to be deduced from the proved facts. It has further been held that assessment regarding impairment of value and utility of the building is to be examined from the point of view of the landlord and not that of the tenant. The observations of their Lordships read as under:
“Clause 3 of Sub section (2) of Section 13 provides that if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, the Kent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and not of the
tenant. The first limb of Clause 3 of Sub Section 2 of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has been materially impaired. The acts of the tenants must be such that by creating the wall had materially impaired the value or utility of the demised premises. It is contended by Mr. Prem Malhotra that the landlord should prove as to how it is materially effected and that there is no evidence adduced by the landlord. We find no force in the contention. By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these tacts it was inferred that the value or utility of the building has been materially affected.”
10. The other judgment in the case of Dalip Kaur (supra) relied upon by the learned counsel for the landlord-respondent also fully supports the contentions raised by her. Therefore, I do not find any valid round to interfere with the findings recorded by the lower Appellate Authority and express my agreement with the same.
11. Reliance of the learned counsel for the tenant-petitioner on the Division Bench judgment in Bhupinder Singh’s case (supra) does not advance his case. As a matter of fact the observations made by the Division Bench supports the case of the landlord-respondent in as much as it has been observed that when a tenant removed the load bearing back wall and removed the grill in the common wall, it was a material structural alteration brought out by the tenant resulting in material impairment and the value and utility of the demised premises. Therefore, the ejectment of the tenant was ordered. The other judgment in Jai Bhagwan’s case (supra) relied upon by the tenant-petitioner also would not rescue him from the view I have taken because there a machine was installed by the tenant who was a Goldsmith for making gold wire. It was not shown whether small machine installed in the demised premises was being operated by motor or any other heavy equipment. It was in these circumstances that this court held that the landlord had failed to discharge the onus to prove material impairment to the demised premises. Obviously, this statement would have no application to the facts of the present case. Therefore, I have no hesitation in rejecting the contentions raised by the landlord counsel for the tenant-petitioner.
12. For the reasons mentioned above, this petition fails and the same is dismissed.
Records of this case may be sent back immediately. Tenant-petitioner shall hand over
vacant possession of the premises to the landlord-respondent within a period of thirty
days from today.