The construction of a Pakka Gumti, even outside the building, can constitute structural alteration under Section 20(2)(c) of U.P. Act No. 13 of 1972 if it diminishes the value and utility of the premises.

Devendra Kumar Upadhyaya, J. –

Heard learned counsel appearing for the respective parties.

2. This is a tenant's petition which has arisen out of ejectment proceedings initiated by the landlord of the premises in question on two grounds, namely, (1) on the ground of default and (2) on the ground of structural alteration.

3. A suit for ejectment and arrears of rent and damages was filed, which has partly been decreed by the Judge, Small Cause Court by means of judgment and order dated 23.03.2010, against which, petitioner preferred a SCC Revision, which too has been dismissed by means of judgment and order dated 01.03.2011, passed by the revisional court. These judgments dated 23.03.2010 and 01.03.2011 are under challenge in this petition.

4. The dispute relates to a shop in House No. 9A, Havelock Road, District Lucknow. The plaintiffs are joint owners and landlords. The shop is situated on the ground floor of the house which was rented on monthly rent of Rs. 300/- per month. The suit was filed with the assertion that the petitioner had defaulted in making the payment of rent from 01.07.2006 to 31.08.2007 and further that he has also failed to pay the water tax and sewer charges. The other ground taken in the suit before the learned trial court below was based on Section 20(2)(c) of the U.P. Act No. 13 of 1972 and it was averred that without permission of the landlord in writing, the tenant has constructed a Pakka Gumti in front of the shop on the land appurtenant to the house which amounts to structural alteration and is likely to diminish its value and utility and also that it has disfigured it.

5. Learned trial court below has framed the following issues for consideration: -

(1) As to whether the petitioner was liable to pay water tax and sewer tax in addition to the rent at the rate of Rs. 300/-?

(2) As to whether the petitioner has constructed Pakka Gumti in front of the shop which has diminished the value and utility of the shop and has also resulted in disfiguring the same?

(3) As to whether the petitioner has sublet the Pakka Gumti to one Sri Pintoo and shop No.2 to one Sri Ajeet Gupta?

(4) As to whether service of notice is sufficient and valid?

(5) As to whether the petitioner had defaulted in payment of rent?

(6) As to whether the petitioner is entitled to get the benefit of Section 20(4) of the U.P. Act No. 13 of 1972?

(7) To what relief the landlord is entitled to?

6. Learned trial court concluded that the evidence available on record proved that additional amount of water tax and sewer tax is not payable by the petitioner. Learned trial court also concluded that petitioner had constructed a Pakka Gumti in front of the shop which has resulted in diminishing the value of the shop and has also disfigured the same. Learned trial court further concluded that shop has been sublet to Sri Ajeet Gupta and Pakka Gumti has been sublet to Sri Pintoo. Regarding notice, it has been found by the learned trial court below that service is sufficient and legally valid. Learned trial court has also concluded that at the time of service of notice, the monthly rent for the period of one and half years was due and further, it has been concluded that the petitioner may be entitled to the benefit of sub-section (4) of Section 20 of the U.P. Act No. 13 of 1972, however, this itself will not save him from eviction for the reason that the landlord has been able to prove that the petitioner had made structural alteration and said alteration is diminishing the value and utility of the shop and is also disfiguring the same. Thus, the suit has been partially decreed and the petitioner has been directed to hand over the vacant possession of the shop to the landlord and also to make payment of certain amount after deducting the amount paid by him under sub-section (4) of Section 20 of the U.P. Act No. 13 of 1972.

7. The main thrust of the argument of learned counsel for the petitioner is that the construction of Pakka Gumti, as alleged by the landlord,