Himachal Pradesh High Court
Smt. Sudarshana Devi Sood vs M/S Super Sanitation on 19 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Civil Revision No. 196 of 2007.
Reserved on: 18.8.2015.
Decided on: 19.8.2015.
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Smt. Sudarshana Devi Sood ......Petitioner.
Versus
M/S Super Sanitation, 52, The Mall Shimla & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1
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For the petitioner: Mr. Ajay Kumar, Sr. Advocate with Mr. Dheeraj K. Vashista, Advocate.
For the respondents: Mr. G.C.Gupta Sr. Advocate, with Ms. Meera Devi, Advocate.
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Justice Rajiv Sharma, J.
rt This revision petition is instituted against the judgment rendered by the learned Appellate Authority, Shimla in Civil Misc. Appeal No. 122-S/14 of 2005, dated 7.8.2007.
2. Key facts necessary for the adjudication of this revision petition are that the petitioner has instituted a petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the Act) before the learned Rent Controller to the effect that the respondents are tenants in the demised premises comprising one shop, bearing Municipal No. 52, The Mall, Shimla.
The rent was Rs. 484/- per month. The premises were let out in the year 1983.
The eviction of the respondents-tenants (hereinafter referred to as the tenants) has been sought on the ground that they have after the commencement of the Act, without the written consent, or, approval of the landlady committed such acts as were likely to impair materially the value and utility of the demised premises as the tenants have unauthorizedly and illegally constructed the room 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 2on the back side of the shop. They have closed the glazed windows with C.G.I. Sheets. The tenants have tampered with the wall and constructed huge .
brackets by digging holes in the walls for the purpose of storing heavy steel pipes and sanitation fittings etc., which has resulted into cracks in the upper floor of the building. The tenants are also in arrears of rent w.e.f. April 1, 1997 till the date of filing the petition at the rate of Rs. 484/- per month.
3. The tenants have contested the petition. It is denied that the of tenants have done any acts of additions and alterations in the demised premises. They were permitted to provide necessary fittings and fixtures in the rt demised premises at their own costs, such as, windows, drawers, cup-boards etc. They were also permitted to connect a water connection from the Municipal Corporation. It was denied that the tenants were storing building or sanitation material in the premises. They have neither constructed any room on the back side of the shop nor have they closed the glazed windows. They have not tampered with the walls and constructed huge brackets by digging holes in the walls. No cracks in the upper floor of the building have developed. A sum of Rs. 6,389/- was sent by the tenants through Banker Cheque No. 491727 dated March 31, 1997 payable at SBI Shimla on account of rent from April 1, 1997 to March 31, 1998. However, the same was not encashed by the landlady.
4. Rejoinder was filed by the petitioner. The Rent Controller framed the issues on 27.12.1999. The Rent Controller allowed the petition on 31.8.2005. The tenants were held to be in arrears of rent at the rate of Rs.
484/- per month w.e.f. April 1, 1997 to 31.7.1998 alongwith interest at the rate of Rs. 9% per annum. The tenants were also ordered to be evicted from the ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 3 premises in question on the ground that they have materially impaired the value and utility of the demised premises. The tenants preferred an appeal before the .
learned Appellate Authority. The learned Appellate Authority, allowed the appeal on 7.8.2007, hence this petition.
6. Mr. Ajay Kumar, Sr. Advocate, has supported the order dated 31.8.2005 of the Rent Controller. On the other hand, Mr. G.C.Gupta, Sr. Advocate, has supported the judgment dated 7.8.2007 of the learned Appellate of Authority.
7. I have heard the learned Advocates and gone through the pleadings rt and record very carefully.
8. The petitioner has appeared as PW-1. According to her, she is the owner of the building 52, The Mall, Shimla. The respondents were tenants for the last 18-19 years at the monthly rent of Rs. 484/-. The tenants were in arrears of rent. The windows in the back wall of the shop were closed in the year 1995-96. The tenants have constructed a room which was not in existence at the time of letting out the demised premises. The tenants were keeping heavy iron material in the shop. It has led to cracks in the building. The value and utility of the demised premises has been impaired materially by the construction of the room. She has feigned ignorance that she has received rent through draft or that the rent was deposited in the Court. She categorically admitted that the rent was Rs. 400/- per month. She has not entered the demised shop. She has also admitted that the tenants were keeping sanitary goods. She also admitted that the tenants used to keep sanitary items only for the purpose of sale. She denied the suggestion that the room was in existence ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 4 from the very beginning. She also denied that the windows were already closed.
According to her, last year the tenants have laid the marble floor and have also .
covered the verandah.
9. Sh. Trilok Chand PW-2 is the husband of the petitioner. According to him, the demised premises were one room and one balcony. There were windows at the back of the shop. In the year 1995, the tenants have closed the of windows. The tenants have raised shelves in the balcony. One room had been constructed on the back side of the shop. The cracks had developed in the building. Trilok Chand PW-2 has admitted the execution of agreement Ext. R-1 rt with the tenants. He has denied the suggestion that the tenants have sent the rent through cheque(s) on March 31, 1998 and May 29, 1997. He has admitted signatures on the reverse of the map.
10. Sh. H.S.Bishat, PW-3 has proved technical report Ext. PW-3/A and map Ext. PW-3/B. According to him, the portion in occupation of the tenants has developed cracks. He admitted in his cross-examination that in order to put tin sheets on a building, tin sheets, wooden tranches and garders and are required to be inserted in the walls. He has not done the visual inspection of the racks because those were filled with sanitary items.
11. Sh. Rajeev Sood, PW-4 deposed that on the back side of the demised premises, windows have been closed and towards left side one room has been constructed. However, he has admitted in his cross-examination that he has not visited the demised premises after it was let out to the tenants.
According to him, the cabin was being used as office for sitting purpose.
::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 512. Sh. Varinder Kumar, PW-5 deposed that at the time of letting out the shop, there was only one room. There were windows towards the Middle .
Bazar. The tenants have closed the windows by putting tin sheets on the same.
The respondents have also constructed a Cabin with bricks in the demised premises which is about 30-32 feet long and 9-10 feet wide.
13. RW-1 Parmod Bamba deposed that earlier B.C.Kapoor was tenant in the demised premises. The agreement was executed between the parties vide of Ext. R-1. The room was constructed by the previous tenants for office use. He has undertaken the business of sanitation in the demised premises. They have rt kept only samples of sanitation items and not the heavy sanitary items. The shelves were constructed with the prior permission of landlady. They have neither made any hole nor any garder has been fixed. They have not done any acts which have impaired materially the value and utility of the demised premises. The rent was being deposited in the Court. The room was constructed with ply wood.
14. Sh. L.P. Gupta, RW-2 has deposed that no heavy items were kept in the shop. He has prepared reports Ext. RW-2/A and RW-2/B. He has prepared maps Ext. RW-2/C and RW-2/D. He has also taken photographs of the premises.
15. Sh. Ramesh Chand RW-3 has proved on record the map of building vide Ext. RW-3/A. ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 6
16. Smt. Promila Sharma, RW-4 has been examined by the tenants to prove that a sum of Rs. 18,586/- stood deposited by them with the learned Rent .
Controller (3), Shimla.
17. Sh. Jaswant Singh, RW-5 was examined by the tenants in order to prove that a sum of Rs. 6,389/- stood deposited at Sr. No. 9 on July, 11, 2000.
18. RW-6 Ram Lal has proved that sum of Rs. 6,389/- stood deposited by the tenants.
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19. RW-7 Parmjit Bamba, deposed that the shop was taken on rent in the year 1983. The cabin measuring 5 x 7 feet was already in existence. No rt additions or alterations have been done in the demised premises.
20. Sh. Kuldeep Bhardwaj, RW-8 had not seen any alterations in the shop. The tenants used to keep sample items in the shop and heavy sanitary items were being kept in the godown. He has not seen any changes in the shop.
The cabin was constructed by using ply wood.
21. According to the petitioner, the tenants were in arrears of rent at the rate of Rs. 484/- per month w.e.f. April 1, 1997 to July 31, 1998. It is evident from the rent note Ext. R-1 that the monthly rate of rent was Rs. 400/-
per month, including all taxes. It has come on record that the rent for the relevant periods stood deposited with the Court as per the statements of RW-4 Promila Sharma, RW-5 Jaswant Singh and RW-6 Ram Lal. The precise case of the petitioner is that the tenants have constructed a room which has impaired the value and utility of the demised premises. The petitioner has admitted that she has not visited the demised premises from inside. She was not aware that ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 7 the room was constructed in the year 1945 or 1947. PW-2 Trilok Chand has stated that the tenants have closed the windows on the back side by using the .
wooden planks and have also constructed a room on the back side of the demised premises. Parmod Kumar RW-1 has categorically deposed that the room was already in existence and no suggestion has been put to him in the cross-examination.
22. What has to be seen by the Court is whether the room, even if of constructed by the tenants, has impaired the value and utility of the demised premises. PW-1 Sudarshana Sood has not deposed in what manner the room rt has impaired the value and utility of the demised premises. She has only made a bald assertion. There is no conclusive material placed on record to prove that the construction of the room has led to cracks. The room is of ply wood. The petitioner has not led any tangible evidence to prove that the room is a permanent structure. The petitioner has failed to prove that the room was constructed by the tenants on the basis of the maps placed on record. The terms and conditions contained in the rent agreement Ext. R-1 were comprehensive. The shop, as per Ext. R-1, was let out for the purpose of running business of their choice except business of Restaurant, Halwai or a wine shop. The tenants were entitled to provide necessary fittings and fixtures at their own expense such as shelves, show windows, drawers, cup-boards etc. in the premises without injury or impairing the structure of the building. The tenants were also entitled to provide at their own cost a wash basin in the demised premises. They were also permitted to provide necessary fixtures in ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 8 the shop including brick masonry work but without injuring the basic structure of the building.
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23. The expert produced by the petitioner has also admitted that he has not seen holes in the walls. It has also come on record that only samples are being displayed in the shop and heavy material was kept in the Godown. Thus, the petitioner has failed to prove conclusively that the tenants have, in any manner, impaired the value and utility of the demised premises.
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24. Their lordships of the Hon'ble Supreme Court in the case of Om Prakash vrs. Amar Singh and ors. reported in (1987) 1 SCC 458, have held rt that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity." It means that the nature and character of change or alteration of the building must be of essential and important nature. Their lordships have further held that the construction of the partition wall in the tenanted shop did not make any structural change of substantial character, either in the form or structure of the accommodation. Their lordships have held as follows:
"5. The Act does not define either the word 'materially' or the word 'altered'. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise Oxford Dictionary defines the word 'alter' as change in character, position' "Materially" as an adverb means 'important' essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word 'alter' is 'to make change, to modify, to change, change of a thing from one form and set to another. The expression "alteration" with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to these two words show that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity." It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 9 Manmohan Das Shah & Ors. v. Bishun Das, [1967] 1 SCR 836 this Court considering the expression 'material alterations' occurring in sec. 3(1)(c) of U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed:
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"Without attempting to lay down any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction carried out by the respondent had the effect of altering the front and structure of the premises."
6. In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make of changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenant's eviction, it took care to use the word 'materially altered the accommodation.' The material alterations rt contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter 'the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter, the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions which do not constitute material alterations, as the determination of this question depends on the facts of each case. In S.B. Mathur v. K.P. Gupta, [1961] Allahabad Law Journal 136 construction of temporary wail enclosing verandah and putting up an iron jungala and placing a partition wall, temporary in nature was held not to constitute material alteration of the accommodation. In Dr. J.G. Gupta v. Bodh Mal. [1969] Allahabad Law Journal 4- 77 a Division Bench of the High Court held that temporary construction made by a tenant in the shape of kitchen and bathroom did not constitute material alterations as the same were temporary and they could be removed without causing any damage to the accommodation. In Sita Ram Sharan and Anr. v. Johri Mal & Anr., [1972] Allahabad Law Journal 301 a Full Bench held that construction which converted the tenanted premises into double storey structure, materially altered the accommodation. Another Division Bench of the High Court in Baldev Dass v. Ram Khilawan, [1979] Allahabad Law Reports 44 held that a partition wall in a shop converting the same into two portions ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 10 for the convenient use of the same did not amount to material alteration. These decisions were rendered on the facts available on the record of those cases. In deciding this question the Court has to consider whether the constructions have been made with the consent of the land- lord and if so, .
whether those constructions are of such substantial nature which make material alterations in the accommodation. The findings of the court regarding constructions would be finding of fact, but the question whether the constructions materially alter the accommodation is a mixed question of fact and law, which should be determined on the application of the correct principles.
7. In the instant case the disputed constructions which the High Court has found to be 'material alteration' consists of a partition wall of 6 feet height in a hall converting the same into two rooms and a tin shed marked of by letters CDGH on the Eastern side on the open land adjacent to the accommodation. The trial Court held that the partition wall did not change the front or structure of the accommodation, it being temporary in nature, did not constitute material alterations in the accommodation. This finding of the trial court was not challenged by the landlord before the Civil Judge.
rt But the High Court has held that the partition wall constituted 'material alteration'. The findings recorded by the trial court and the relevant evidence placed before us by the parties clearly show that the partition wall did not actually partition the hall converting the same permanently into two rooms. The partition wall was made without digging any foundation of the floor of the room nor it touched the ceiling, instead; it was a temporary wall of 6 feet height converting the big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the building. The partition wail did not make any structural change of substantial character either in the form or structure of the accommodation."
25. Their lordships in the case of Brijendra Nath Bhargava and another vrs. Harsh Wardhan and others, reported in (1988) 1 SCC 454, have held that wooden balcony or "dochatti" constructed in the showroom did not constitute material alteration in the showroom. Their lordships have further held that what construction made is a question of fact but whether it amounts to material alteration or not is a question of law. It has been held as follows:
"7. Learned counsel for the respondents, on the other hand, referred to the plaint paragraph 5 quoted above and also the written statement para 5 after amendment and contended that on these allegations the courts below came to a finding of fact. However it was not disputed that what construction has been made is a finding of fact but whether it amounts to ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 11 material alteration or not is undoubtedly a question of law. It was further contended by the learned counsel that as all the three courts have concurrently came to the conclusion on question on fact, it is not open to this Court to reopen that question. It was also contended by learned .
counsel that the inspection note by the learned trial Judge, no doubt, has been relied upon but it is contended that as observed by the teamed Judge of the High Court it is relied upon only for purposes of appreciating evidence but unfortunately the learned counsel for the respondents himself could not refer to any other evidence except the statement of the tenant the appellant himself and apart from it even the allegations contained in para S of the plaint do not clearly make out that how this construction is such which was affixed on the wall and on the basis of which an attempt was made to contend that in fact it could not be removed unless the walls are demolished. This argument and the inferences drawn by the courts below of apparently are not based on any evidence at all. The learned counsel contended that the balcony is strongly annexed lo the walls with the beams and the structure is 10`x25' to the entire breadth of the showroom and also contended that it could not be removed without damaging the walls and thereby damaging the property itself but unfortunately learned counsel rt could not refer to any evidence in the case which could suggest these facts which were alleged by the learned counsel during the course of his arguments. Counsel in support of his contentions placed reliance on the decision of this Court in Om Prakash's case (supra) and also on Babu Manmohan Das Shah & Ors. v. Bishun Das, [1967] 1 SCR 836 and it was also contended that question of waiver does not arise, according to the learned counsel, as if the landlord wants not to raise any objection, he could grant a permission to the tenant but in absence of that the question of waiver could not be raised. Learned counsel attempted to contend that Bhonri Lal who filed this suit in 1974 filed the suit on that ground and therefore it could not be said that he waived the right to file a suit on this ground. Learned counsel did not refer to the statement of Bhonri Lal himself in cross-examination.
12. The next question which was debated at length by learned counel for parties is as to whether the said construction of the wooden Dochhatti or a balcony is a material alteration within the meaning of Sec. 13(1)(c) of the Act quoted above and in this regard it is undisputed that what has been constructed is a wooden structure which makes in the showroom a cabin and on the roof of the cabin a kind of balcony with a wooden staircase from inside the cabin to go to this balcony. Admittedly this all is a wooden structure built on beams and planks inside the showroom itself and in order to come to the conclusion whether such a wooden cabin made up inside the showroom could be said to be a material alteration or not, we can draw much from Om Prakash's case (supra) where it was observed:
"The Act does not define either the word 'materially' or the word 'altered'. In the absence of any legislative definition of the aforesaid words it would be useful to refer to the meaning given to these words in dictionaries. Concise oxford Dictionary defines the word 'alter' as ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 12 change in character, position' "materially" as an adverb means important essentially concerned with matter not with form. In Words and Phrases (Permanent Edition) one of the meanings of the word 'alter' is to make change, to modify, to change, change of a .
thing from one form and set to another.
The expression 'alteration' with reference to building means 'substantial' change, varying, change the form or the nature of the building without destroying its identity". The meaning given to those two words show that the expression 'materially altered' means "a substantial change in the character, form and the structure of the building without destroying its identity". It means that the nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Dos Shah v. Bishun Dos, [1967] 1 SC R 836, (AIR 1967 SC 643), this Court considering the expression 'material alterations' occuring in S. of 3(1)(c), U.P. (Temporary) Control of Rent and Eviction Act, 1947 observed;
"Without attempting to lay down any general definition as to what material alterations mean, as such, the question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations as the construction rt carried out by the respondent had the effect of altering the front and structure of the premises."
It is no doubt true that in the last part of this passage quoted above it has been clearly stated that no definition could be drawn of the material alteration but it will have to be decided on the basis of facts and circumstances appearing in each case but the material consideration would be whether the construction carried out by the tenant alters the front show or the structure of the premises and considering this aspect of the law it was further observed:
"In determining the question the Court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provided a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations contemplate change of substantial nature affecting the form and character of the building. Many a time tenants make minor constructions and alterations for the convenient use of the tenanted accommodation. The Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 13 accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they .
alter the form, front and structure of the accommodation."
Here it has been observed that the essential element which needs consideration as to whether the construction are substantial in nature and they alter the front elevation or the front and the structure of the building itself and it is in the light of this that ultimately in this decision what was constructed has been held not to be material alteration as it was observed:
"The partition wall was made without digging any foundation of the of floor of the room nor it touched the ceiling instead; it converting a big hall into two portions for its convenient use, it could be removed at any time without causing any damage to the building. The partition wall did not make any structural change of substantial character either in the form or structure of the accommodation."
rt The question as to whether the construction is of a permanent nature or a temporary nature also was considered by this Court in the decision quoted above and it was observed:
"The High Court observed that the fact that a construction is pennanent or temporary in nature does not affect the question as to whether the constructions materially alter the accommodation or not. We do not agree with this view. The nature of constructions, whether they are permanent or temporary, is a relevant consideration in determining the question of 'material alteration'. A permanent construction tends to make changes in the accommodation on a permanent basis, while a temporary construction is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building."
It is thus clear that what is alleged to have been constructed in the present case, in the light of the test laid down by this Court in the decision referred to above, could not be said to be material alteration in the premises in question. In Venkatlal G. Pittie & Anr. v. M/s Bright Bros. (Pvt.) Ltd., 4 JT 1987 (3) SC 139 the question was not about material alteration but the question was whether the construction carried out by the tenant were permanent in nature and were such which has diminished the value of the property and further that the construction have been made after encroaching on the land which was not the part of the lease and in that context the question as to whether the structures raised were permanent or temporary have been considered and the nature of the things as appeared in that case apparently is of no avail so far as the case in hand is concerned as it was observed in that case:
::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 14"Two questions arise for consideration in these appeals- (i) whether the structure constructed by the tenant in the premises in question amounted to permanent structure leading to the forfeiture of the tenancy of the tenant; (ii) what is the scope and extent of the .
jurisdiction of the High Court under Article 227 of the Constitution on questions of facts found by the appellate bench of Small Causes Court."
In Babu Manmohan Das Shah's case, (supra) the question which was be fore this Court was not as tn whether the construction made was such which could be said to be a material alteration but the real question which was raised before the Court was whether it is necessary further to hold that this construction diminishes the value of the accommodation although in the Section it was material alteration or such construction which of diminishes the value of the accommodation used but it was contended that it will amount to and considering this aspect of the matter in this judgment it was observed:
"As already stated, even if the alterations did not cause any damage rt to the premises or did not substantially diminish their value the alterations were material alterations and on that basis alone the appellants were entitled to evict the respondent."
It is thus clear that even this judgment is of no assistance so far as the present case is concerned. In the light of the discussions above and in the light of the test laid down by this Court in Om Prakash's case. supra it is clear that this construction of the balcony or Dochhatti which is a wooden structure does not amount to material alteration which could give a cause of action to the respondent landlord for filing a suit of eviction. No other question was pressed. In the light of the discussions above therefore the appeal has to be allowed. It is therefore allowed. The judgment and decree passed by the courts below are set aside and the suit filed by the respondent is dismissed. In the circumstances of the case parties are directed to bear their own costs so far as this Court is concerned."
26. Their lordships of the Hon'ble Supreme Court in the case of Om Pal vrs. Anand Swarup (dead) by LRs. reported in (1988) 4 SCC 545, have held that "Parchhati" put up by tenant in demised dry-cleaning shop for storing clothes by inserting wooden ballis in wall through holes and making the parchhati to rest thereon with support of nuts and bolts did not constitute material impairment. It has been held as follows:
::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 15"5. Arguing for the appellant, Mr. Sultan Singh, learned counsel stated that while the Rent Controller and the Appellate Authority have rendered their findings against the appellant without there being any basis for it, the High Court has failed to comprehend Section 13(2)(iii) in its proper .
perspective and this has led to miscarriage of justice. It was urged that while the appellant had examined an expert PW-3 Amrit Lal to prove that the Parchhati was only a temporary wooden fixture which could be easily removed at any time without any damage being caused to the walls of the building, the respondent had no adduced any contra evidence, although the burden of proof was on him to show that by fixing the parchhati the building has been materially impaired so as to affect the value or utility of the building in any manner and attracting Section 13(2)(iii) to the facts of the case. The learned counsel further contended that since the High Court has erred in treating the findings of the Rent Controller and the Appellate of Authority as pure findings of fact whereas they were findings on a mixed question of law and fact, the order of the High Court in Revision suffers from a serious flaw and it needs correction by this Court.
9. In the light of these decisions, if we examine the present case we find rt that the Rent Controller and the Appellate Authority as well as the High Court have obviously failed to construe Section 13(2)(iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant As has been repeatedly pointed out in several decisions it is not every construction or alteration that would result in material impai modation" and as such the construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. It would therefore follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and PG NO 397 monetary point of view or from the utilitarian aspect of the building.
10. Having regard to the nature of the temporary construction put up by the appellant and the evidence of the expert witness examined by him which remains uncontroverted by any expert's evidence on the respondent's side, we find no difficulty in holding that the lower courts had rendered their findings without any basis for it and the High Court has erred in accepting those findings without applying the correct principles of law underlying Section 13(2)(iii)."
27. Their lordships of the Hon'ble Supreme Court in the case of Vipin Kumar vrs. Roshan Lal Anand and ors., reported in (1993) 2 SCC 614, have ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 16 held that the act of tenant materially impairing the value or utility of the building, the burden of proof is on tenant. The onus shifts on landlord to rebut.
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Their lordships further held that impairment should be from the point of view of the landlord. It has been held as follows:
"2. The question, therefore, is whether the finding of Courts below concurrently found that the appellant had constructed a wall in the varandah which materially effected the value or utility of the shop is vitiated by law. The building consists of two shops and the appellant was of inducted into one such shop. He constructed the-wall in the varandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate the evidence and upset that finding. It was also found that the wall was constructed without the permission of the landlord. Due to construction the value or utility of the building have been materially affected. Section rt 13(2)(iii) provides thus:-
"A tenant in possession of a building of rented land shall not be evicted therefrom in an execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Section (or) in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947 as subsequently amended)".
Clause 3 of sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land', the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the futures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of Clause 3 of sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has been materially impaired. The acts of the tenant must be such that by erecting the wall had materially impaired the value or utility of the demised premises. It is contended by Mr. Prem Malhotra that the landlord should prove as to how it is materially effected and that there is no evidence adduced by the landlord. We find no force in the contention. By constructing the wall, whether the value or utility of the ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 17 building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found of the Rent Controller, the flow of air and light has been stopped.
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He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially effected. It is then contended that sub-section (2) of Section 13 gives discretion to the Rent Controller to order eviction while the cases covered under Sub-section (3) of Section 13 it is made mandatory to direct eviction of the tenant. Therefore, the Rent Controller has to independently consider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Controller to order eviction in his favour. The landlord had not proved such faces in his favour. Therefore, the Court had committed illegality in of granting the decree of ejectment We find no force in the contention. Undoubtedly the statute, on proof of facts, gives discretion to the court, by Sec. 13(2) and made mandatory in case covered by Sec. 13(3), to order eviction. In a given set of facts the Rent Controller, despite finding that the tenant committed such acts which may impair the value or utility of the rt building yet may refuse grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may not warrant eviction and then the burden shifts on to the landlord to rebut those facts or circumstances. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellant. So no fault can be laid at the Rent Controller's failure to exercise the discretion. In Om Prakash's case the words "materially altered" under section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952, came up for consideration. This court held that the nature and character of change or alteration of the building must be of an essential and important nature. In determining the question the court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant.
In considering that language it was held that putting up a door to the varandah is not a material alteration. The ratio thus renders little assistance to the facts of the case."
28. In the case of Gurbachan Singh and another vrs. Shivalak Rubber Industries and others, reported in (1996) 2 SCC 626, their lordships of the Hon'ble Supreme Court have held that impairment or value and utility must be judged and determined from the point of view of the landlord and no one else. The nature of the construction is a relevant consideration. Their ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 18 lordships have explained the expressions - "impair", "impair materially" and "value" as under:-
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"12. Section 13(2) (iii) of the Act which provides a ground for eviction of tenant reads as under :-
"13(2) (iii).-The tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land".
A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the of value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlarce would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different rt meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and hot of the tenant or any one else. This Court while dealing with the provisions of Section 13(2) (iii) of the Act in the case of Vipin Kumar v. Roshan Lal Anand & On., [1993] 2 SCC 614 expressed the view as follows:
"The impairment of the value of utility of the building is from the point of the landlord and not of the tenant. The first limp of clause III of sub- section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has been materially impaired. The acts of the tenant must be such that erection of the wall had materially impaired the value or utility of the demised premises".
14. Thus, from the above mentioned facts it is clear that even if it is assumed that the tenant respondents raised the construction of shed over the part of the open land of the demised premises with the written consent ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 19 of the landlord as may be spelt out from the rent note Ext. A/1, then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or .
utility of the building/premises let out to them. The nature of the construction is relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises. In the present case the removal of the roof of the shops partition walls and the doors, laying of a roof, merging of the verandah with the shops, closing the doors and opening new doors and windows and converting the premises altogether, giving totally a new and a different shape and complexion by such alteration would certainly be regarded as one involving material impairment of the premises affecting its Fitness for use for desirable practical purpose and intrinsic worth of the demised of premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act. The High Court, therefore, fell in patent error in dismissing the revision in limine without going into the correct legal position involved in the case. Having regard to the facts and circumstances discussed above, we are of the firm view that this is a case rt which squarely falls within the mischief of the provisions contained in Section 13(2) (iii) of the Act which make the tenant-respondents liable for eviction from the demised premises.
29. Their lordships of the Hon'ble Supreme Court in the case of Rafat Ali vrs. Sugni Bai and others, reported in (1999) 1 SCC 133, have held that the word "likely" must be understood as "reasonably probable". It has been held as follows:
"20. All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word "likely" in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only it can be said that the acts of waste are likely to impair the value or utility of the building "materially". In Om Pal vs. Anand Swarup 1988 (4) SCC 545 the Court, while considering a similarly worded clause in another Rent control enactment, has observed thus:
"In order to attract Section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 20 the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord."
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30. Their lordships of the Hon'ble Supreme Court in the case of Om Parkash Bansal vrs. Bal Kishan Gupta, reported in (2000) 9 SCC 518, have held that when the lease deed permitted tenant to make construction according to the need, the alteration would not amount to material alteration. It has been held as follows:
of "2. Admittedly, the landlord leased out the premises in favour of the respondent-tenant for running a factory. Subsequently, the landlord filed a suit for eviction of the respondent-tenant on the ground that the rt respondent-tenant has caused substantial damage to the accommodation and further without the permission of the landlord had made construction , which has materially altered the accommodation. The suit was decreed by the trial court. The appeal preferred by the tenant was allowed and the decree of the trial court was set aside. The second appeal filed by the landlord was dismissed.
4. We have gone through the judgment and find that the lease deed permitted the respondent-tenant to make construction in accordance with his need and that is sufficient to reject the argument of learned Counsel appearing for the landlord. We are in agreement with the view taken by the courts below."
31. In the case of Waryam Singh vrs. Baldev Singh, reported in (2003) 1 SCC 59, their lordships of the Hon'ble Supreme Court have held that enclosing verandah by constructing walls and placing a rolling shutter in front, in themselves is not sufficient to justify inference that value or utility has been impaired. It has been held as follows:
"15. Thus an Order for eviction can be passed only if the landlord proves
(a) that the tenant had carried out the construction, (b) that the same was without the consent of the landlord and (c) that the value or utility had been materially impaired. In the present case, the First Appellate Court, on facts, concluded that the Respondent had carried out alteration by enclosing the verandah. On facts it has been held that this has been done ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 21 without the consent of the Appellant. The Revisional Court has correctly not interfered with the findings of fact. We also see no reason to take a different view on a question of fact.
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16. However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility the Appellant has lead no evidence at all. The submission has been that no evidence was required to be lead as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case there is no proof, like in Vipin Kumar's case (supra), that free flow of light of and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. In the absence of any proof of material impairment in value or utility, the High, Court was right in concluding that no decree for eviction could be passed. We, therefore, see no reason to interfere with the Judgment of the High Court."
32. rt In the case of Hari Rao vrs. N. Govindachari and ors., reported in (2005) 7 SCC 643, their lordships of the Hon'ble Supreme Court have held that though impairment in question need not be permanent, it must really be a material impairment in value or utility of building. Broadly, a structural alteration, however slight, should be involved to attract the same. The acts of the tenant established were merely acts which were consistent with his needs in premises taken for the purpose of trade in leather goods and shoes. Their lordships have held as follows:
9. In support of his claim for eviction under Section 10(2)(iii) of the Act, what the landlord pleaded was that his tenant had put up new sign-boards and fixed two additional racks by drilling holes in the wall and in the beam and had taken an independent electric connection for which holes have been drilled in the floor and the wall, and all this amounted to commission of acts of waste as are likely to impair materially the value and utility of the building. He also pleaded that the tenant had damaged the building while converting the shop for selling readymade dresses. He had installed additional show-cases on the walls of the building by making holes therein.
He had increased the consumption of electricity by fixing up more lights and fans. He had increased the electric load, causing constant blowing out ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 22 of the fuse in the building and causing damage to the electric service connection to the whole building and the entire building may catch fire at any moment. He also put up a big name board outside, damaging the building and had also drawn heavy electrical lines and taken service .
connection to the name board, with a heavy load of electricity. The tenant admitted the putting up of sign-boards and the fixing up of racks but he denied that he had caused any damage. Whatever he had done was with the consent of the landlord and the claim put forward by the landlord was only an attempt to gain the sympathy of the Court. The Engineer, P.W. 2 noted that new racks were fixed by making holes in floor walls and also in the beams. Two new massive sign boards were fixed in the front and side. Holes were made in the parapet wall of the first floor and angle irons supporting the sign boards were fixed. The parapet wall was only 2" thick and it could not take the weight of the huge sign boards and the parapet wall may of collapse at any time. New electric connection has been given by making holes in the foundation and the wall in front and a new meter board had been fixed. This report of P.W.2 was not sought to be corroborated by any other material to show that there was any danger because of the taking of a new electric connection or by the increase in load. It is true that for the rt purpose of his trade, the tenant fixed new racks by making holes in the floor, the walls and in the beams. But, in the absence of any other material, it cannot be said to be the commission of acts of waste as are likely to impair materially the value and utility of the building. We must say that there is hardly any evidence on the side of the landlord to show that there was material impairment, either in the value or the utility of the building by the acts of the tenant. The mere fixing of sign-boards outside the shop by taking support from the parapet wall, cannot be considered to be an act of waste which is likely to impair materially the value or utility of the building. The report of the Engineer, P.W.2, merely asserts that the parapet wall will collapse at any time. There is no supporting evidence in respect of that assertion. Ex. B1-letter of the landlord giving permission to the tenant to fix boards, cannot also be ignored in this context. Moreover, when a trade is carried on in a premises, that too in an important locality in a city, it is obvious that the tenant would have to fix sign-boards outside, to attract customers. These are days of fierce competition and unless the premises is made attractive by lighting and other means, a trader would not be in a position to attract customers or survive in the trade. Therefore, the acts of the tenant established, are merely acts which are consistent with the needs of the tenant who has taken the premises on rent for the purpose of a trade in leather goods and shoes and in furtherance of the prospects of that trade. The fixing of racks inside the premises even by drilling holes in the walls or beams cannot be said to be acts which are themselves acts of waste as are likely to impair materially the value and utility of the building. Broadly, a structural alteration however slight, should be involved to attract Section 10 (2) (iii) of the Act. In fact, we see hardly any pleading or evidence in this case which would justify a conclusion that the acts of the tenant amount to such acts of waste as are likely to impair materially the value and utility of the building. In G. Arunachalam (died) through L.Rs. and anr. Vs. Thondarperienambi and anr. [AIR 1992 SC 977] dealing with the same ::: Downloaded on - 15/04/2017 18:46:41 :::HCHP 23 provision, this Court held that the fixing of rolling shutters by the tenant in place of the wooden plank of the front door by itself did not amount to a structural alteration that impaired the value of the building and no eviction could be ordered under Section 10 (2) (iii) of the Act. Of course, in that .
case, there was also a report by an Engineer that the structural alteration made for fixing the rolling shutter, did not impair the value of the building.
In the context of the Kerala statute which spoke of impairment in the value or utility of the building materially and permanently, this Court has recently held in G. Raghunathan Vs. K.V. Varghese [2005 (6) SCALE 675] that the fixing up of rolling shutter and doing of the allied acts referred to in that decision, would not amount to user that materially and permanently impairs the value or utility of the building. The Act here, only speaks of acts of waste as are likely to impair materially the value and utility of the building. The impairment need not be permanent. But even then, it appears of to us that it must really be a material impairment in the value or utility of the building. In British Motor Car Co. Vs. Madan Lal Saggi (Dead) and anr. [(2005) 1 SCC 8], this Court considered the aspect of material alteration or damage in the context of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949. In the lease deed in that case, there was a covenant rt that the lessee will not make any addition or alteration or change in the building during the period of the tenancy. This Court referred to Om Prakash Vs. Amar Singh [(1987) 1 SCC 458], Om Pal Vs. Anand Swarup [(1988) 4 SCC 545], Waryam Singh Vs. Baldev Singh [(2003) 1 SCC 59], Gurbachan Singh Vs. Shivalak Rubber Industries [(1996) 2 SCC 626], Vipin Kumar Vs. Roshan Lal Anand [(1993) 2 SCC 614] and held:
"When a construction is alleged to have materially impaired the value and utility of the premises, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building."
There is hardly any material in the present case on the basis of which the Court could come to the conclusion that the act of the tenant here has amounted to commission of such acts of waste as are likely to impair materially the value and utility of the building. The Rent Controller and the High Court have not properly applied their minds to the relevant aspects in the context of the statute and have acted without jurisdiction in passing an order of eviction under Section 10 (2) (iii) of the Act. The Appellate Authority was justified in denying an order of eviction to the landlord on this ground."
33. Accordingly, in view of the observations and discussion made hereinabove, there is no merit in this petition and the same is dismissed.
August 19, 2015 ( Rajiv Sharma ),
(karan) Judge.
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