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Judgment
Jagdish Bhalla, J.—This writ petition is directed against the judgment dated 132001 passed by the IVth Additional District Judge in civil revision No. 12 of 1994 (Sardar Bhagat Singh v. Smt. Sudhamayee), whereby the judgment and decree dated 441994 passed by the Prescribed Authority was set aside and the petitioner/defendant was directed to vacate the premises within 30 days from the date of judgment.
Petitioner is a tenant of small accommodation from last 20 years. The landlord had filed an application for ejectment under Section 20 (2) (c) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) on the ground that the petitioner has covered the area of verandah by building 5 feet wall and putling windows on it and in the process has changed the verandah into a room and the said construction has been done without the permission of the landlord in contravention of the provisions of the Act. Before filing the said application landlord opposite party No. 3 has given a notice under Section 106 of the Transfer of Property Act on 10111983 to the petitioner for vacating the premises within a period of 30 days. However, after the expiry of 30 days a suit was filed by the landlord on 2641984. The Prescribed Authority dismissed the suit on the ground that notice under Section 106 of the T.P. Act was a defective one. However, the Prescribed Authority recorded its finding that without permission of the landlord the walls were raised and verandah was converted into a room and in the process the petitioner has changed the utility of the verandah and the beauty and utility has been changed and by doing so the residential accommodation has become just like a godown. The finding was not challenged by the petitioner.
According to the learned Counsel for the petitioner in light of the paragraph 18 of the impugned judgment the notice is bad in law as the petitioner has been called upon to vacate the premises within a period of 30 days.
In support the petitioner relies upon Paras 10, 15 and 18 of a judgment reported in AIR 1974 Allahabad 402, Abdul Jalil v. Haji Abdul Jalil. From the perusal of the said judgment it evident that para 10 is not exhaustive paragraph but it is illustrative.
From the perusal of paragraph 15 it is crystal clear that:
''a tenant is entitled to stay as tenant for thirty days after the receipt of a notice from the lessor to determine the lease under Section 106. When the lessor terminates that lease with effect from the date of notice, the grace allowed to the lessee to stay.''
The Revisional Court has come to the conclusion that the notice under Section 106 T.P. Act was issued in accordance with law and there is no illegality in the same, after holding notice to be in accordance with law it directed the petitioner * o vacate the premises in question, aggrieved by the said order the petitioner has preferred this petition.
Learned Counsel for the petitioner submitted that a Commissioner was appointed to inspect the site. Neither the petitioner nor his Counsel could be present at the site at the time of inspection. Not only this the petitioner had moved an application for adjournment of the execution of commission which was rejected by the Revisional Court.
Learned Counsel for the petitioner neither could indicate the date of rejection of the said application nor could bring on : 5cord the said order. It is admitted by the Counsel for the parties that the said order was never challenged thereafter.
Learned Counsel for the petitioner has argued that the construction in question was not raised by the petitioner. Further it has been submitted that this construction does not amount to structural alteration in the building nor does it diminish its value or utility or disfigures it. In support, the Counsel for the petitioner has relied on the meaning of word disfigure as contained in Webster''s Encyclopedic Unabridged Dictionary of the English Language in which the word ''disfigure'' has been defined as (i) To Mar the appearance or (ii) beauty of (iii) deform and (iv) deface.
Further in support of the word ''disfigure'' the learned Counsel for the petitioner relied upon para 5 of the case reported in LCD 1984 Vol. 2 page 151, Murlidhar and another v. IVth Additional District and Sessions Judge, Mathura and another, which is as under:
''Para 5 : ''Disfigure'' has been defined in Webster ''to mean to make less complete, perfect or beautiful or deface, deform or disguise by changing the figure or appearance''. Normally, the word is understood as spoiling the appearance sullying it. Although one of the meanings, as seen above, is to disguise the appearance by changing the figure, but the basic characteristic appears to be same, that is disguising it by spoiling, injuring etc. Apart from the dictionary meaning, a word should be understood in the context it has been used. The user of two earlier words, that is diminishing the value of the building or its utility, shows that disfiguring should also be understood in somewhat similar sense. That is, it must result in spoiling it. If the construction raised by tenant enhances the value and increases its utility, it is difficult to agree that it shall amount to disfiguring it. That does not appear to be Legislative intention. A tenant should not suffer eviction for the good he has done to building.''
Next argument of learned Counsel for the petitioner is that the Prescribed Authority has relied upon the Commissioner''s report which is an exparte report and, therefore, it is not substantial piece of evidence for the reason that the petitioner had moved an application for adjournment but the same was refused by the Revisional Court and the petitioner or his representative could not participate in the execution of commission, therefore, his exparte report is liable to be thrown out and cannot be considered as substantial piece of evidence in favour of the landlord.
No other point has been argued by the learned Counsel for the petitioner.
The Counsel for the respondent has contested the matter and submitted that the inspection was not an ex pane inspection because before the trial Court Sri K.K. Sinha the learned Counsel for the petitioner was present at the time of inspection, a certified copy of the inspection which bears the signature of Sri K.K. Sinha was placed before this Court. This Court being Court of record takes this certified copy on record.
I find that the date of execution of commission was in the knowledge of the petitioner who had of course moved an application for adjournment of the same, therefore, it cannot be said, even if the petitioner had chosen not to participate, to be an exparte execution of the commission. The point of exparte commission also fails on the perusal of the certified copy filed before this Court which bears the signature of Sri K.K. Sinha made by him at the time of inspection, therefore, it cannot be said that the report of the commissioner is an exparte report. Since Mr. K.K. Sinha had participated in the execution of the commission the report of the commissioner has also become a substantive piece of evidence.
Sri I.D. Shukla, Advocate appearing for the respondents has relied upon a case reported in 1982 (1) ARC \\V$,Ratan LalArora v. Sheo Raj Singh, wherein it has been held that the notice required the tenant to vacate thepremiseswithin30days. The said judgment relies upon a Full Bench case reported in AIR 1964 Alld. 260. The other judgment relied upon on the same proposition in 1990 (2) ARC 295, Ichcha Kamv.Smt. Parsandi (since dead) byherlegat representatives and another, 1991 (1) ARC 464; Vedpal Singh v. Harbansh Singh, 1989 (1) ARC 267; Shyam Lal v. Vth Additional District Judge, Agra and others.
With respect to the violation of Section 20 (2)(c) of the Act the petitioner has relied upon paras 7 and Sofa judgment reported in 1993 ARC 493, Smt. Swaran Devi and others v. Smt. Meenakshi Gautam alias Chandrawati Devi and others, which are quoted below :
''Para 7It was submitted that Section 20 (2)(c) of the Act contemplates that tenant may raise certain construction or make structural alteration in the building even without the permission in writing of the landlord and only restriction is that construction or structural alteration in the building should not be such as it is likely to diminish its value or utility or disfigures it, the tenant is liable for eviction. It is not necessary that all these conditions should coexist. If either of the two conditions coexist, the tenant is liable for eviction.
Para 8 In Smt. Ram Janki v. 1st Additional District Judge, Banda and others, 1984 (1) ARC 465 , it was held that in regard to clause (c) to subsection (2) of Section 20 of the Act the use of the word ''or'' towards the end of this clause on two places namely, before the word ''utility'' and the words ''disfigure'' makes it clear that the requirement of Section 20 (2)(c) of the Act will be fulfilled even if the case is brought under any of the three categories mentioned therein namely (1) diminishing the value of the accommodation ; (2) diminishing its utility ; and (3) disfiguring it. Similar view was expressed in Udai Bhan Gupta v. Har Shanker Bonsai and
The utility and disfiguring has also been considered in the above judgment in. the light of various other judgments and it has been held that this case is covered under Section 20 (2) (c) of the Act.
The Counsel for the respondent has also submitted that the objections were filed to the inspection report but the samewas made absolute by the trial Court. No other point has been argued.
Section 21 (2)(c) of the Act provides that no tenant has right to make any construction or structural alteration in the building which may diminish its value or utilityordisfigure thesame. Therefore, if any construction, alteration or change for utilization is to be made by the tenant the condition precedent is permission from the landlord which is missing in this case.
I find that the Verandah, Balconies and Courtyards are lungs of the house and if any alteration is made by raising walls and putting windows on it the utility of the verandah would be jeopardized and it amounts to alteration. Counsel for the petitioner has failed to substantiate that the walls and windows do not amount to structural alteration of the building and do not change the utility of the verandah. The definition of ''disfigure'' which has been relied upon by the learned Counsel for the petitioner is in fact in favour of the respondent landlord. The utility of verandah is changed by such constructions and there are concurrent findings to this effect by the Courts below. The findings of the Courts below are based on evidence including the evidence of commission. In AIR 2000 SC 931, Mohan Amba Prasad Agniholri and others v. Bhasker Balwant Aher (dead) through LRs, it has been held that it will suffice to observe that it is well settled law that jurisdiction of the High Court under Article 227 is not appellate but supervisory. It cannot interfere with a finding of fact recorded by lower Court/tribunal unless there is no evidence to support the finding or the finding is perverse.
In view of the facts indicated hereinabove and the concurrent findings of the Courts below, no interference is warranted under Article 226 of the Constitution of India in the judgment passed by the Revisional Court below dated 132001.
In the light of the above the writ petition is dismissed.
Learned Counsel for the petitioner undertakes to file an affidavit within a period of 10 days from today to the effect that the petitioner will vacate the premises in question within 6 months. The petitioner will handover the peaceful possession of the premises in question to landlord, opposite party No. 3 by 1 112001. In case the affidavit is not filed within the aforesaid period it would be open for the respondentlandlord to take possession of the premises in question in accordance with law. However, it is provided that arrears of rent, if any, should be cleared of by the petitioner within a period of 3 months from today failing which it would be open for the respondentlandlord to take possession of the premises in question in accordance with law.