G.S.SINGHVI,J - (1.) THIS petition is directed against the judgment dated 7.6.1994 of the Appellate Authority, Ropar in rent appeal No. 17 of 1992 which was filed by the petitioner against the order dated 17.10.1992 passed by the Rent Controller, Kharar, dismissing an application filed by him under Section 13 of the East Punjab Rent Restriction Act, 1949 (hereinafter referred to as 'the Act').
(2.) BRIEF facts of the case are that the petitioner had rented out a shop situated at Kharar to the respondent on 3.8.1979 with monthly rent of Rs. 250/-. In his application filed under Section 13 of the Act, the petitioner raised two grounds of eviction. Firstly, he pleaded that the tenant had constructed a room on the vacant site and had, thus, materially impaired the utility of the shop. Secondly, it was pleaded that the tenant had not paid property tax amounting to Rs. 5,757/-. The tenant-respondent contested the application and pleaded that the alleged construction raised by him was nothing except a tin shed which he had put in order to protect the shop from rain showers and sun light and that its projection was on the road. He pleaded that no construction was raised on the rented premises so as to materially impair the utility of it. He also disputed the claim of the applicant that he was liable to pay the property tax. Learned Rent Controller framed three issues on the basis of the pleadings of the parties and after considering their respective cases, the Rent Controller held that the appellant has failed to make out a case for eviction. On the issue of material alteration of the premises as well as on the issue of alleged liability of the tenant to pay the property tax, the learned Rent Controller recorded findings adverse to the petitioner. Appeal filed by the petitioner before the Appellate Authority, Ropar also failed. The Appellate Authority agreed with the findings of fact recorded by the Rent Controller that the so called construction made by the tenant was in the form of tin shed supported by pipes in front of the room and in fact, no pucca construction had been raised by the tenant which could affect the utility of the premises. Relying on a decision of the Supreme Court in Om Pal v. Anand Swarup, 1988(2) Punjab Law Reporter 699, the learned Appellate Authority held that the so-called construction raised by the tenant did not materially impair the utility of the premises. On the issue of property tax also, the learned Appellate Authority held that in the absence of any agreement indicating the liability of the tenant to deposit the property tax, order of eviction cannot be passed merely because the tenant did not deposit the property tax.
(3.) FIRST argument of Shri Malhotra is that the Rent Controller as well as the Appellate Authority have exceeded their jurisdiction in holding that the construction of tin shed made by the petitioner was on the property of Public Works Department and therefore, the landlord had no right to seek eviction of the tenant from the rented premises. Learned counsel argued that this finding of the Courts below will seriously prejudice future rights of the petitioner. Second argument of Shri Malhotra is that finding recorded by the Courts below on the issue of material alteration is perverse. Shri Malhotra argued that the impairment in the value or utility of the property has to be looked from the point of view of the landlord and not from the point of tenant and therefore once the landlord has proved that the tenant had, in fact, made alteration in the disputed premises, it was the duty of the Rent Controller to have passed an order of eviction. Shri Malhotra submitted that the Appellate Authority has ignored the law laid down by this Court on the issue of material alteration and therefore the finding recorded by it is liable to be set aside by this Court. He also submitted that the finding recorded by the Rent Controller as well as the Appellate Authority on the issue of property tax suffers from material irregularity and therefore the impugned order passed by the Rent Controller as well as judgment of the Appellate Authority deserve to be set aside. Section 13(2)(iii) of the Act reads as under :- "A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant is satisfied :- (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, or ....." ;