Sham Lal and another vs Harbans Lal Sabharwal

J.V. Gupta, J.—This is tenants'' revision petition against whom the eviction petition has been allowed by both the authorities below.

The landlord sought the ejectment of the tenants from the shop bearing house-tax No. 5577, situated in Saudagar Bazar, Ambala Cantt. It was alleged that the premises, in question, were let out on a monthly rent of Rs. 40/- besides Rs. 2/- as the water-tax payable to the Cantonment Board. His eviction therefrom was sought on the ground that the landlord required the same for carrying out the building work for the reason that it had been burnt down and had disappeared altogether as a result of the devastating fire on 4th June, 1972, and as such, the premises had become unsafe and unfit for human habitation, Here-quired the same for re-construction. It was also pleaded that the tenants had committed such acts during the period the premises remained in their possession as impaired materially the value and utility thereof. According to the landlord, the tenants, without his permission, in writing, made (sic) tructural alterations inasmuch as after the building was burnt down, they put up improvised structure with galvanised corrugated iron sheets'' roof. The building was originally double-storeyed one. The upper storey had fallen down completely; even the roof of the shop had also fallen. In the written statement, the tenants denied that the premises had become unfit and unsafe for human habitation It was asserted that they were carrying on the business after repairing it and that it was not completely burnt down, as alleged though it was damaged to some extent which had been repaired. They also denied that they had impaired materially the value and utility of the premises, in question. They admitted that a fire had broken out on 4th June, 1972, in Saudagar Bazar, Ambala Cantt. and that the shop, in dispute, was also damaged along with other shops in the vicinity. They had only fixed galvanised corrugated iron sheets on the roof which had been damaged; otherwise the said shop was not unfit or unsafe for human habitation. According to them, the malba of the upper storey was removed by the landlord himself and he consented to the placing of the tin-sheets on the roof of the shop, in dispute. The learned Rent Controller found that the shop, in dispute, was neither unfit or unsafe for human habitation. However, it was found that since the tenants had put up the tin-sheets on the roof instead of the original roof fit for a double storey building; the pillars had also been raised and the roof stood practically on one wall only instead of the three walls as before, these acts on the part of the tenants had changed the material structure of the building, in question, and had, thus, materially impaired its value and utility. On the basis of the said finding, the eviction order was passed against the tenants. In appeal, the learned Appellate Authority affirmed the said findings of the Rent Controller and, thus, maintained the eviction order passed against them. Dissatisfied with the same, the tenants have come up in revision to this Court.

The learned Counsel for the Petitioners contended that on the facts and circumstances of this case, the question of materially impairing the value and utility of the premises, in question, by the tenants, did not arise. The shop was damaged because of the devastating fire and the tenants in order to protect their articles lying therein had raised the roof by putting up galvanised corrugated iron sheets and, thus, it could not be said that it had materially impaired the value and utility of the premises so as to entail the eviction of the tenants. According to the learned Counsel, the breaking out of the fire was vis major and the landlord could not take benefit of the same for evicting the tenants by alleging that the shop had become unsafe or unfit for human habitation or that the tenants had impaired the value and utility of the demised premises.

I have heard the learned Counsel for the parties and have also gone through the relevant evidence on the record.

It is no more disputed that there was another storey on the shop, in dispute, which had fallen because of the said devastating fire. Not only that, even the roof of the shop, in dispute, had fallen on that account. It is the case of the tenants themselves that after the said roof had fallen down, they had themselves put up galvanised corrugated iron sheets though according to them they had done so with the consent of the landlord whereas this assertion was denied by the landlord. However, there is no cogent evidence on the record to hold that the said roof was put up by the tenants with the consent of the landlord. Thus, the main question to be decided in this revision is if the upper storey on the shop, in dispute, along with its roof, had fallen down because of the devastating fire, whether the building had become unfit and unsafe for human habitation as provided under the Haryana Urban (Control of Rent and Eviction) Act, 1973.

As observed earlier, it is the common case of the parties that the roof of the shop, in dispute, had fallen down and the tenants had put up the galvanised corrugated iron sheets instead. Once the roof had fallen down, it could not be successfully argued that the building was not unsafe and unfit for human habitation. The mere fact that the tenants are now using the shop by putting up the galvanised corrugated iron sheets, it did not mean that the building had not become unsafe and unfit for human habitation. The tenants, by their act and conduct, i.e., by repairing the shop which had become unsafe and unfit for human habitation, could not preclude the landlord to seek their eviction as provided under the afore-said Act. Of course, on the question, whether the building had become unfit and unsafe for human habitation or not, both the authorities have found the same in favour of the tenants, but to my mind, the said approach is wholly wrong, illegal and misconceived. On the facts admitted and proved on the record, the building had become unfit and unsafe for human habitation when the upper storey as well as the roof of the shop, in dispute, had fallen down. The falling down of the roof of the shop along with its upper storey entitled the landlord to seek the ejectment of the tenants on the ground that the building had become unfit and unsafe for human habitation. It is unfortunate that it so happened by act of God and neither party was responsible for the same. If the tenants are allowed to occupy the shop by putting up galvanised corrugated iron sheets roof, then the landlord would be debarred from raising the construction as it originally existed, for ever. For the said act of God, both the parties have suffered and, therefore, it could not be successfully argued that the landlord was taking undue advantage thereof.

The learned Rent Controller himself inspected the shop, in dispute, and made the inspection note dated 6th January, 1979. It has been stated therein that the roof is made of galvanised corrugated iron sheets resting on the northern wall which is common to M/s Pokhar Dass & Co. and the pillars made of burnt bricks and cement erected on southern side. It has been further found that the wall was the original old wall made of burnt bricks and mud mortar. In this Court as well, the local commissioner was appointed for inspecting the spot and to make the report as to the condition of the shop, in dispute. It has been stated in the said report dated 23rd June, 1980, that the roof is made of galvanised corrugated iron sheets resting on the southern sides on the pillars and on the northern side on the wall by placing wooden ballis. In these circumstances, when the roof of the shop, in dispute, has fallen down and the landlord wants to re-construct the whole building afresh, he is entitled to seek ejectment of his tenants on the ground that it had become unsafe and unfit for human habitation. The findings of the Courts below in this behalf were wrong, illegal and misconceived. The authorities below have ordered the eviction of the tenants on the ground that they had materially impaired the value and utility of the premises, in dispute, by raising the roof of galvanised corrugated iron sheets, but as a matter of fact, on that basis, the building should have been held to be unsafe and unfit for human habitation as the tenants could not make use of the premises by raising the said roof.

In these circumstances, this revision petition fails and is dismissed with costs. However, the tenants are allowed three months'' time to vacate the premises; provided all the arrears of rent, if any, and the advance rent for three months, are deposited with the Rent Controller within one month with a further undertaking, in writing, that after the expiry of the said period, the premises will be vacated and the vacant possession thereof would be handed over to the landlord.

During the course of the arguments in this revision petition on 28th April, 1986, the learned Counsel for the landlord filed an affidavit dated 27th April, 1986, wherein it was stated that Sham Lal, tenant, had taken on rent shop No. 5193/3, opposite to the shop, in dispute, and since then, he was carrying on flourishing business of readymade garments and wool in the name of Chopra Wool Store. Similarly, Joginder Lal, tenant, who is the real brother of Sham Lal, tenant, some time in the year 1984 took on rent shop No. 5541 situated in Saddar Bazar, Ambala Cantt. and since then, he is also carrying on flourishing business of readymade garments and wool in the name of Jolly Garments. The said affidavit has been placed on the record.