Judgment:
K. Kannan, J.
1. The petition for eviction was filed under East Punjab Urban Rent Restriction Act, 1949 on the grounds of change of user of the tenanted premises for a purpose other than to which it was let and that the respondent had committed such acts as likely to impair materially the value and utility of the building. There was another ground of non-payment of rent, which lost its significance on account of the fact that the tenant had at the first hearing paid the rent and there was no need for consideration of the same.
2. The landlord's contention as regards the change of user was that the property was shop-cum-flat building and the building portion which was to be used for a residential purpose by the landlord was also put to use after the tenant vacated the premises and went to his own property which he had subsequently purchased and started using the residential portion for storing hardware good6.
3. The Rent Controller had appointed a Local Commissioner to inspect the property who returned a report confirming the averments made in the petition and that he had found the back courtyard completely covered by the tin sheets and he also found the residential portion at the first floor being stored with the merchandise and some portions of the demised property at the ground floor and the stair case being kept in a bad state of disrepair and damage. The objection to the Local Commissioner's report by the tenant was that the Local Commissioner had visited the property without serving notice on him and that further the Local Commissioner and the petitioner-landlord had same clerk and he was biased in his report. He challenged the observation made in the report that the residential property was not being put to use as such and contended that he continued to reside there. The Rent Controller, however, accepted the report and came to the conclusion .that the tenant had used the property for a purpose other than to which it was let. On the other ground relating to the material impairment of the building by construction of a shed in the courtyard, the Rent Controller took notice of the fact that even the Chandigarh Administration had served notice for the unauthorized user of the property and referred to authorities on the aspect of a tenant putting up shed as constituting material impairment, upheld the contention on that ground also and ordered eviction. This decision was affirmed in the Appellate Court and the tenant is in revision assailing both the grounds which have been upheld in favour of the landlord.
4. Learned Counsel for the petitioner states in the forefront of his arguments that the authorities ought not have relied on the Local Commissioner's report which was prepared without notice and vitiated by a bias. This objection regarding the report, as was being found by the authorities below, even if it is to be accepted and the report is discarded, there was still an admission of the tenant himself that during the subsistence of tenancy, he had vacated the residential portion and shifted to his own house elsewhere in Chandigarh. Learned Counsel referred to the fact that after he had vacated the premises, his employee at the shop was in occupation of the residential portion. Learned Counsel for the respondent points out that there was no such pleading and on the other hand two other independent witnesses were examined to state that the residential portion of the premises had remained closed and only the hardware articles of the shop being stored at the premises. Both the authorities below have referred to the fact that the residential portion of the property has not been used as such and there is no reason to take a different view from how the two authorities have considered the issue.
5. Even as regards the unauthorized construction made at the courtyard, which according to the landlord had caused a material impairment, apart from the Local Commissioner's report, it was a matter of admission by the tenant himself that there was a shed at the courtyard. His objection was that the said shed had been put up even before the commencement of the tenancy by the landlord himself and that he had not constructed the same. The landlord, who was a Barrister had died and his son was examined, who spoke to the fact that his father had not put any construction of a shed at the courtyard and that it was only the tenant, who had raised such a shed. Even as regards the construction, there were two independent witnesses who had spoken on behalf of the landlord about the faqt that the tenant alone had put up such a shed. The entire body of evidence of the tenant does not contain any whisper about who put up the construction at the courtyard. It was not elicited even in his examination-in-chief that the landlord had put up the construction even before the commencement of the tenancy and that he had not done the same. It is brought out in evidence that the Chandigarh Administration had taken action for the unauthorized construction and served notices both on the landlord as well as on the tenant. The contention of learned Counsel for the petitioner is that the Chandigarh Administration did not precipitate the action pursuant to the notice, which only meant that on the date of filing of the petition, there was no construction. Finding that there was a reference to the shed even in the Local Commissioner's report and there was also evidence about the fact that the tin shed was there to be in existence by the evidence as deposed by witnesses on the side of the landlord, learned Counsel for the tenant sought to contend that it was only a temporary shed which was easily capable of being removed and if at all the shed was there, it was made to improve the value and did not cause any impairment in value of the building.
6. While mere construction by the tenant even without authority from the landlord might not be actionable, as for instance when a construction was made by a tenant which went to improve the value of the building, still the Courts have always approached the issue from the point of view of how the landlord perceives the construction to be. If, in his view, the construction made is without his authority and that he does not desire it, the landlord is entitled to insist that such construction which is unauthorized would materially impair the value. Learned Counsel for the respondent refers to a decision of the Hon'ble Supreme Court in Durga Seed Farm v. Raj Kumari Chadha : (1995-2) 110 P.L.R. 643 (S.C.) which took the view that if on account of the unauthorized construction raised by the landlord, the tenant is exposed to the peril of resumption of the building by the Chandigarh Administration then the tenant would be liable to be evicted. This decision was followed by this Hon'ble Court in M/s United Engineers through its sole Prop. Sarup Singh and Anr. v. Nirmal Bhasin : (2005-1) 139 P.L.R. 731 that also took the view that the very act of issuance of a notice by the Administration for raising an unauthorized construction would make liable the tenant for eviction. This Court held that it was irrelevant that the construction made was only temporary so long as it violated the provisions of law. This decision, in my view, squarely answers the issue that arises in this case that irrespective of the nature of construction as permanent or temporary, so long as such construction was unauthorized that exposed the landlord for resumption, it should be taken that such construction impaired the value and utility. Learned Counsel for the respondent also refers me to a decision in Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors. : (1996-2) 113 P.L.R. 694 (S.C.) which held that the finding of addition or alteration as constituting in material impairment is a mixed question of law and fact which the Court would consider by the application of the correct principles. In this case, the Hon'ble Supreme Court was dealing with the incident of a tenant constructing a lengthy roof over five shops by removing the original roof and the partition walls of the shops and converting them into stores and kotharies. It found the alterations to the shops and the conversion into sheds as factors proving material impairment. The consideration of all the relevant facts placed before the Rent Controller, I have no doubt in my mind that the act of the tenant in erecting a shed at the courtyard though may not have resulted in ultimate resumption by the Chandigarh Administration, it would still be actionable so long as it was unauthorized.
7. For all the reasons, respective orders of the Rent Controller and the Appellate Authority are sustained and the civil revision petition is dismissed with costs assessed at Rs. 5,000/-.