Himachal Pradesh High Court
Sain Ram Jhingta vs Surinder Singh on 9 October, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 54 of 2012 Reserved on 1.10.2015 .
Date of decision: 9th October,2015.
Sain Ram Jhingta ...Petitioner
Versus
Surinder Singh. ...Respondent
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes.
rt For the Petitioner: Mr.Ramesh Sharma, Advocate.
For the Respondent: Mr.Deepak Bhasin, Advocate.
Tarlok Singh Chauhan J.
This Revision Petition under Section 24(5) of the H.P. Urban Rent Control Act, 1987(for short the 'Act') is directed against the judgment dated 20.4.2012, passed by learned Appellate Authority, Shimla, Camp at Rohru whereby order passed by learned Rent Controller (I), Rohru has been reversed and consequently the eviction petition filed by the petitioner/landlord has been ordered to be dismissed.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 2Brief facts may be noticed.
2. The petitioner sought eviction of the respondent of .
the premises in dispute on the ground that he has changed the user of property thereby impairing the utility and value of the property in dispute and, as such, is liable to be ejected. It is averred that the petitioner had let out the shop i.e. premises in dispute to the respondent for running a typing institute, but of respondent has converted the said premises into a Dhaba/tea stall and had also affixed the wooden shelves on the walls which rt amounts to material alteration thereby impairing the value and utility of the premises in question and same renders the respondent/tenant liable for ejectment.
3. The respondent resisted and contested the petition by filing reply, admitting that he has taken the premises on rent for running a typing institute and has not denied that he has started running a Dhaba but would maintain that even the typing institute is being run from the shop. It is further averred that the petition is frivolous and therefore, deserves to be dismissed.
4. On 14.9.2010, the learned Rent Controller framed the following issues:-
::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 3"1. Whether the respondent has changed he user of premises as alleged?. OPA.
2. Whether the petition is not maintainable against .
the respondent? OPR
3. Relief."
5. That learned Rent Controller, after recording the evidence and evaluating the same, ordered the eviction of the respondent on the ground of change of user. On appeal having of been filed preferred before the appellate authority, the order passed by the learned Rent Controller was set aside resulting in rt dismissal of the eviction petition.
6. It is against the order passed by learned appellate authority that the present petition has been filed on the ground that the eviction petition ought to have been allowed as it was an admitted case of change of user, which in turn had caused injury or was detrimental to the building housing the tenanted premises.
I have heard the learned counsel for the parties and have gone through the records of the case.
7. The petitioner-landlord in his statement of oath has specifically stated that the demised premises were let out to the respondent in the year 2000 for three years for running a ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 4 type institute which fact is admitted by the respondent during his cross-examination while appearing as RW-1. The petitioner .
had sent notice Ext PW-1/A to the respondent specifically alleging therein that the shop had been let out to him for running a tying institute, but the same was now being run as tea stall. In reply Ext PW-1/B, respondent did not deny the said fact but stated that the shop was being used by him for running of typing institute also.
8. rtThe evidence brought on record by the parties, does clearly suggest and indicate that indeed the respondent had admitted the business of selling tea in the shop in question, thus admitting about the change of user of the shop from a typing institute to tea stall. Therefore, I proceed on the basis that the tenant has changed the user of the premises, as alleged, but then does the same automatically result as an eviction?.
9. Section 14 (2) of the H.P. Urban Rent Control Act, 1987 reads thus:
"14. Eviction of tenants (2) 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-::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 5
(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry .
of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that If the tenant on the first hearing of the of application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the rt cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid:
Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum:
Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order ; or
(ii) that the tenant has after the commencement of this Act without the written consent of the landlord
(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof; or ::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 6
(b) used the building or rented land for a purpose other than that for which it was leased ; or .
(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
(iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of buildings in the neighborhood; or of
(v) that the tenant has ceased to occupy the building or rented land for a continuous period of twelve months without reasonable cause;
rtthe Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application;
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate."
10. The user of the building for a purpose other than for which was leased, has to be considered in the context of Section 12 of the Act which prohibits conversion of a residential building into a non residential building except with the permission in writing of the controller, any covenant in that behalf entered into by the tenant and the nature of the tenancy.
::: Downloaded on - 15/04/2017 19:10:53 :::HCHP 7In other words, when the lease is granted for the purpose of a trade, in absence of any covenant in the contract between the .
parties prohibiting a user different from the particular one mentioned in the deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of premises. In a case where the premises let out for a commercial purpose, is used by the tenant for a residential of purpose, it would be a user for a purpose other than that for which it was leased attracting Section 14 (2) (ii) (b) of the Act.
rt Similarly, if a building had been let out for the purpose of a trade, but a tenant uses the premises for the purpose of manufacture or production of materials after installing machinery, that would be a user other than the one for which the building was let. User of a building let out for a trade as a godown may attract the provision. Ultimately, the question would depend upon the facts of a particular case, in the context of the terms of the letting and the covenants governing the transaction and the general spirit of Section 108(o) of the Transfer of Property Act. This was so held by the by the Hon'ble Supreme Court in Hari Rao Vs. N.Govindachari & ors (2005) ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 8 7 SCC 643 and it is apt to reproduce para 6 of the judgment, which read thus:
.
"6. On the plain terms of the statute, uninfluenced by authorities, it appears to us that user of the building for a purpose other than that for which it was leased, has to be considered in the context of Section 21 of the Act which prohibits conversion of a residential building into a non- residential building except with the permission in writing of of the controller, any covenant in that behalf entered into by the tenant and the nature of the tenancy. In other words, when the lease is granted for the purpose of a trade, in the rt absence of any covenant in the contract between the parties prohibiting a user different from the particular one mentioned in the lease deed, the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises. In a case where the premises let out for a commercial purpose, is used by the tenant for a residential purpose, it would be a user for a purpose other than that for which it was leased attracting Section 10 (2) (ii) (b) of the Act. Similarly, if a building had been let out for the purpose of a trade, but a tenant uses the premises for the purpose of manufacture or production of materials after installing machinery, that would be a user other than the one for which the building was let. User of a building let out for a trade as a godown may attract the provision. Ultimately, the question would depend upon the facts of a particular case, in the context of the terms of the letting and the covenants governing the ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 9 transaction and the general spirit of Section 108(o) of the Transfer of Property Act. Merely because a shop let out for trade in shoes and other leather goods, is used by the .
tenant also for the purpose of trading in readymade garments, it could not be held to be a user by the tenant of the premises for a purpose other than that for which it was leased. It has to be noted that even now, the tenant is carrying on the business of trading in shoes, which according to the landlord was the purpose for which the of building was let. The trade in shoes has not been stopped by the tenant. All that has happened is, that he has also diversified into selling some readymade garments or T- rt shirts, the manufacture of which even some of the manufacturers of shoes have taken up."
11. Tested on the exposition of law, as enunciated by the Hon'ble Supreme Court in Hari Rao's case (supra), it would be noticed that though it was the specific stand of the petitioner that he had entered into a written agreement with the respondent at the time of handing over of the premises, wherein apart from other terms and conditions it had expressly been provided that respondent would only open a typing institute in the demises premises. But then the landlord has withheld the agreement wherein the alleged covenant was alleged to be contained. Needless to say that if the agreement had been proved on record, then the mere fact that the user was from one commercial activity to another the same would still entail eviction of the tenant as being in violation against the express covenant of the ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 10 agreement. In absence of any such agreement having been proved on record, this Court is left with no other option, but to draw an adverse inference against the petitioner.
.
12. Broadly speaking, a building or a part thereof can be let out for three purposes;
(i) Residential;
(ii) Business;
of
(iii) Manufacturing.
rt Normally, if the dominant purpose for which a building is let out is maintained, then a tenant may not be liable to be evicted in the absence of any covenant in the contract between the parties prohibiting a user different from particular one mentioned in the lease deed and the tenant would be entitled to carry on any trade in the premises, consistent with the location and the nature of the premises.
But if the building is let out for residential or business purpose and the tenants starts manufacturing activity or vice a versa, the it would amount to change of user subject to the provisions of the Act.
13. Closure to the facts of this case, a learned Single Judge of this Court (Hon'ble Mr. Justice V.K.Gupta, C.J, as His Lordship then was), in Rajinder Kumar Sharma Vs. Smt.Kanta Kumari, Latest HLJ 2007(HP) 73, while adjudicating upon a ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 11 case where the tenant had from a Kariyana (general merchandise) changed its user to a tea stall, held that mere .
change of user from one commercial activity to another in itself is no ground for claiming eviction under Section 14 of the Act, until and unless injury to the property and interest of the landlord is proved. It was held:
"8.The evidence brought on record by the parties does of clearly suggest that indeed the petitioner had admitted doing the business of making and selling tea in the rtshop in question, thus admitting about the change of user of the shop from "Kariyana" to tea. Since this fact of the petitioner having changed the user of the shop has been admitted by the petitioner both in the written statement filed by him as well as in the course of evidence adduced by him before the learned Rent Controller, the onus to prove and establish that this change of user was with the written consent of the landlady was upon the petitioner.
9. A bare look at Clause (ii) of sub-section(2) of Section
14 of 1987 Act clearly suggests, without an iota of doubt and without any ambiguity that even though the onus initially is upon the landlord to aver, plead as well as prove and establish the fact that the tenant has used the building for a purpose other than for which it was leased but once this fact is either admitted by the tenant or it gets established and proved, the onus shifts upon the tenant to prove and establish that the change ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 12 in user of the building was made by him with the written consent of the landlord. In the present case, at the risk of reiteration it is to be observed and seen that .
since the tenant did not dispute either in the pleadings or in the evidence about the change of user, it was up to him to establish and prove that it was done with the written consent of the landlady. He did not do so.
Therefore, it clearly means that the change of user from Kariyana business to making and selling of tea without of the written consent of the landlady is a fact which has to be treated as having been established in this case.
10. In the case of Gurdial Batra vs.Raj Kumar Jain rt reported in1989 (3) SCC 441in which also the eviction of a tenant was sought on the ground of change of user and wherein the allegation against the tenant was that he had changed the user of the shop from the business of repairing of Cycles and rickshaws to the business of selling Televisions, their Lordships of the Supreme Court held as under:-
"Letting of a premises can broadly be for residential or commercial purpose. The restriction which is statutorily provided in Section 13(2)(ii)(b) of the Act is obviously one to protect the interests of the landlord and is intended to restrict the use of the landlord's premises taken by the tenant under lease. It is akin to the provision contained in Section 108 of the Transfer of Property Act dealing with the obligations of a lessee. That clause provides:
The lessee may use the property and its products, if any, as a person of ordinary prudence would use then if they were of his own; but he must not use or permit another to use the property for a purpose other than that for which it was leased.....::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 13
A house let for residential purpose would not be available for being used as a shop even without structural alteration. The concept of injury to the .
premises which forms the foundation of clause (b) is the main basis for providing clause (b) in Section 13(2)(ii) of the Act as a ground for the tenant's eviction. The Privy Council in U Po Naingv. Burma Oil Co. [AIR 1929 PC 108] adopted the same consideration. The Kerala High Court has held that premises let out for conducting trade in of gold if also used for a wine store would not amount to an act destructive of or permanently injurious to the leased property (Raghavan Pillaiv. Sainaba rt Beevi, 1977 Ker LT 417]. Similarly, the Bombay High Court has held that when the lease deed provided for user of the premises for business of fret work and the lessee used the premises for business in plastic goods, change in the nature of business did not bring about change of user as contemplated in Section 108(c) of the Transfer of Property Act [ 1978 Mah LJ 545].
The landlord parts with possession of the premises by giving a lease of the property to the tenant for a consideration. Ordinarily, as long as the interest of the landlord is not prejudiced, a small change in the user would not be actionable."
11. Similarly, in the case of Mohan Lal vs.Jai Bhagwan reported in 1988(2) SCC 474 in which also the eviction of the tenant was sought on the ground of change of user by alleging that the tenant had changed the ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 14 business of selling liquor to general merchandise, it was held as under:-
"While respectfully agreeing with the said observations of Lord Diplock, that the .
Parliament legislates to remedy and the judiciary interpret them, it has to be borne in mind that the meaning of the expression must be found in the felt necessities of the time. In the background of the purpose of rent legislation and inasmuch as in the instant case the change of the user would not cause any mischief or detriment or impairment of the shop in question and in one sense could be of called an allied business in the expanding concept of departmental stores, in our opinion, in this case there was no change of user which attract the mischief of Section 13(2)(ii)(b) rt of the Act. The High Court, therefore, was in error."
12.The juridical philosophy propounded in the aforesaid proposition of law in Gurdial Batravs. Raj Kumar Jain(supra) is this:-
A property let out for residential purpose cannot be used as a shop even without any structural alteration. But if a property is let for commercial purpose, despite the fact that the commercial purpose is specified, unless there is an element of injury to the premises, using of the property for a purpose other than for which it was let out would not be a ground for eviction of the tenant. In Gurdial Batravs. Raj Kumar Jain(supra), their Lordships, therefore, introduced a conceptual theory of injury to the property. Citing the judgment of Privy Council in U Po Naing vs.Burma Oil Co.(AIR 1929 PC
108) and relying upon the judgment of Kerala High Court (in Raghavan Pillaivs. Sainaba Beevi, 1977 Ker LT 417) and a judgment of Bombay High Court, their Lordships very clearly held that the change of user from one commercial activity to another commercial activity cannot be a ground for eviction unless ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 15 such a change of user would be destructive or permanently injurious to the leased property.
13.Similarly, in Mohan Lalvs. Jai Bhagwan(supra) .
citing the observations of Lord Diplock about the legislative intendment, their Lordships clearly held that unless any mischief or detriment or an impairment is caused to the shop in question, the change of user by itself from one commercial activity to another commercial activity cannot be a of ground for eviction of the tenant. Culling the aforesaid ratio in the aforesaid two judgments and applying the same to our case, I have no hesitation in holding that rt there is a clear nexus between the concept of change of user (provided the activity remains either commercial or business, as the case may be) and any injury or impairment caused to the property or any prejudice caused or likely to be caused to the landlord because such a nexus alone can be made the basis of the eviction of the tenant. Otherwise in ordinary prudence and in normal circumstances merely because a tenant changes his commercial activity from one business to another for any reason, this should not be by itself a ground for eviction. It is very commonly understood in the mercantile world that even though a tenant may have obtained a shop on lease for a particular and specified commercial activity, either because of the reason of his failure in that activity or changes in the economic scenario, he may have to put that commercial activity to an end and to earn his livelihood by starting another commercial activity in the same shop. After ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 16 all, a businessman cannot be compelled to carry on with a particular commercial activity even if he feels it to be non-viable, non-manageable or non-profitable.
.
Every businessman has a right to carry on a business of his choice. Merely because for the reasons best suited to him he undertakes a change in commercial activity, this by itself should not be a ground of his eviction from the shop. As noticed above, the change of user has to be of clearly linked, and inseparably coupled with, an element of injury or impairment of the shop or causing any prejudice or having the potential of prejudice, to the rt landlord.
14.In the light of the aforesaid ratio laid in the above mentioned two judgments of the Supreme Court, let us apply the facts of this case to find out whether the change of user of the shop by the petitioner from selling Kariyana items (general merchandise) to making and selling tea has the potential of causing any prejudice or detriment to the interests of the respondent or does it create any mischief in so far as the user of the shop as a tea stall is concerned or has any injury been caused to the respondent- landlady by the conduct of business of making and selling of tea in the shop?
15. PW 3 Yashwant Kumar Gupta is the husband of respondent- landlady and in his capacity as her general power attorney holder appeared as a witness in the case. He stated that the trade of making and selling tea can give rise to a fire incident in the shop and the floor as well as walls of the shop also can be damaged. He ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 17 also stated that since the petitioner opens the shop at 3.30 a.m. or 4.00 a.m. and opens it by operating a rolling shutter it causes nuisance. As against this .
statement of the respondent, the petitioner who appeared as his own witness clearly deposed that he makes the tea in the shop by using a gas burner. Actually the stand of the petitioner in the written statement filed by him before the Rent Controller also was that tea is made by him in the shop by using a gas of burner. Not only this, another witness who appeared on behalf of the respondent, namely, PW 5 Sunder Lal Aggarwal deposed that the petitioner apart from making rt tea, sells some items of general merchandise (Kariyana) in the shop. He went on to depose that the petitioner sells toffees, biscuits and cigarettes etc. Whether or not, the business of making and selling tea is akin or ancillary to the business of selling Kariyana items, the fact remains that the making and selling of tea does not have the potential of causing any injury or prejudice or detriment to the respondent. Neither has the evidence adduced by the respondent conclusively brought on the record any fact of any damage suffered by the respondent on the floor or the walls of his shop nor can it be said that merely by making tea through the help of a gas burner is there any likelihood of the walls or the floor of the shop being damaged in any manner.
16.Even though therefore the petitioner has changed the user of the shop from selling Kariyana items to the making and selling tea, because of the aforesaid ratio in the above mentioned two judgments of the Supreme ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 18 Court since this change of user neither causes nor has the potential of causing any injury or prejudice or detriment to the respondent or her interests, the .
petitioner cannot be evicted on this ground from the shop in question."
On the basis of the aforesaid exposition of law, it
14. can safely be concluded that unless and unless any injury or of prejudice is caused to the landlord, then mere change of user from one commercial activity to another in absence of any covenant to the contrary would ordinarily be not a ground for claiming eviction. It rt shall further have to be proved that the change of user has caused or has the potential of causing any injury or prejudice or is detrimental to the interest of the landlord.
15. Now, coming to the issue regarding injury, if any, caused to the premises, it would be noticed from the perusal of the petition that there is no allegation whatsoever contained therein. Save and except, making a mention of the respondent having fixed wooden racks in the shop for displaying different items and thereby causing alteration, no other allegation has been set out in the petition. No doubt, while appearing in the witness box, petitioner has stated that the respondent had installed and fixed racks in the shop, with the help of nails etc. ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 19 without his consent, but then mere fixing of the racks in the shop per se would not amount to alterations which can be said .
to be leading to the impairment in the value and utility of the building.
16. Similar issue came up before the Hon'ble Supreme Court in Hari Rao's case (supra), wherein it was held that mere putting racks and signboard on the walls, does not amount of to material alteration leading to the impairment of the value and utility of the premises.
rt It is apt to reproduce para 9 of the judgment which reads thus:
"9. n 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 of the fuse in the building and causing damage ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 20 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 of 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. rt 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 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 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 ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 21 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 22 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 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 of 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 rt 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 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 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 ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 23 458], 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 of either from the commercial and monetary point of view or from the utilitarian aspect of the building." rt 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."
17. In absence of any evidence led by the petitioner, it cannot be said that by putting racks with the help of nails, the respondent has committed acts of waste as are likely to impair materially the value and utility of the building. There is no ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 24 evidence on the side of petitioner to show that there was material impairment either in the value or the utility of the .
building by the acts of the tenant.
18. Learned counsel for the petitioner would then argue that after the respondent has changed the user of the premises, a lot of drunken customers of the respondent frequent the demises premises and create nuisance and are a cause of of annoyanace to the petitioner and his family. These drunk customers urinate there which trickles down towards the rt petitioner's kitchen. Similar statements have been given by Shashi Bhushan PW-2 and Negi Ram PW-3. But then no such suggestion has been put to the respondent at the time of his cross examination. The only suggestion put to the respondent and his witness in this regard is that the respondent washes utensils etc. in the shop itself to which suggestion it has been stated that he throws the refuse water in the municipal drain.
That apart, no such allegation is in fact contained in the petition itself. Even in the notice PW-1/A it is not alleged that in what manner nuisance was being caused by the respondent by running a dhaba in the demises premises. Further, there is no evidence that the respondent was challaned by the municipal ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 25 authorities for causing nuisance or that the petitioner had filed any complaint with the police or the municipal authorities .
bringing to their notice all the aforesaid facts.
19. To be fair to the learned counsel for the petitioner, in support of his petition, has made a reference to the following judgments: Shiv Ram & anr Vs. Sheela Devi, 1993 (1) SLC of 266 (P-12,13); Bishamber Dass Kohli (Dead) By L.Rs Vs. Satya Bhalla (Smt), (1993) 1 SCC 566 (P-7,14); Mohan Lal rt Vs. Jai Bhagwan,(1988) 2 SCC 474 (P-7); Sunder Lal @a Sunder Dass Vs. Sita Devi@a Sheela Devi, 1994 (2) RCR 633 (P13); S.P. Sabapathi Pillai Vs. M.Durga, 1995 (1) RCR 252 (P9,10,11); Ashok Kumar Vs. Uttam Chand, 1996(1) RCR 277 (P-20); K. Panchavarnammal (Died) Vs. E.Saraswathiammal, 1997(2) RCR 43 (P-13,14); Canara Bank, Bombay Vs.Yusuf Abdulhussein Arsiwala (deceased by LRs), AIR 2000 Bom 71 (P-11, 15); M.Arul Jothi & anr Vs. Lajja Bal (deceased) and anr, (2000) 3 SCC 723 (P-14,15 and 16);
K.Natarajan Vs. C. Murugan, 2002(2) RCR 156 (P-10 to 12);
Bharat Lal Baranwal Vs. Virendra Kumar Agarwal, 2003(1) RCR 178 (P-14 to 16) ; Mahadev Mahantappa Patil ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 26 Vs.Ahmed Usman Sayyed, 2004 (1)RCR 399 (P-9); Chhotey Lal & ors Vs. Rajinder Kumar @ Rajinder Parshad, 2004(2) .
RCR 450 (P-11); Goa Urban Cooperative Bank Ltd Vs. Noor Mohd Sheikh Mussa & anr, AIR 2004 SC 3886 (P-23);
Shantilal Kesharmal Gandhi Vs. Prabhakar Balkrishna Mahanubhav, (2007) 2 SCC 619 (P 6-7): A. S. Parvathy Krishnan Vs. Joseph @ Jose, 2008 (2) RCR 59; Rajinder of Kumar Sharma Vs. Smt. Kanta Kumari, Latest HLJ 73 (P-8 to 10); Rakesh Kumar Vs. Darshan Singh, 2012 (1) RLR 67 rt (P-11).
20. As observed earlier, facts of the instant case are quite identical to those of Rajinder Kumar's case (supra) and that apart, it is not even the case of the petitioner here in that the said judgment has either been dissented, distinguished or even overruled. Moreover, ratio of the judgment in Rajinder Kumar's case (supra) is itself based upon the judgments of the Hon'ble Supreme Court in Mohan Lal Vs. Jai Bhagwan (1988) 2 SCC 474, which in turn was followed in Gurdial Batra Vs. Raj Kumar Jain (1989) 3 SCC 441 and these judgments in turn have subsequently been followed in Hari Rao's case (supra). In ::: Downloaded on - 15/04/2017 19:10:54 :::HCHP 27 such circumstances, referring to the judgments in detail would only been burdening the judgment unnecessarily as these .
judgments do not lay down a ratio different from what has been laid down in judgments discussed above because after all it is ultimately the ratio of the judgment rendered by the Hon'ble Supreme Court that is binding upon all.
of
21. Having said so, I find no merit in the petition and the same is accordingly dismissed, leaving the parties to bear the cost.
rt (Tarlok Singh Chauhan), Judge.
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