Kerala High Court
Seethalakshmi Ammal vs Nabeesath Beevi on 16 July, 2002
Equivalent citations: 2003(1)KLT391
Author: J.B. Koshy
Bench: J.B. Koshy, K.K. Denesan
ORDER J.B. Koshy, J.
1. The revision petitioners/landlords filed R.C.R No. 4 of 1992 under Section 11(4)(ii) of Act 2 of 1965 for eviction of the respondents/tenants. The Rent Control Court found that there was n6 landlord-tenant relationship and that the petitioners were not able to prove that there is alteration of the building so as to effect eviction under Section 11(4)(ii). The Appellate Authority found that earlier in R.C.P. No. 187 of 1983 with regard to the same building, eviction was ordered on the ground of arrears of rent and that finding was not challenged. The landlord-tenant relationship was found in that case. Therefore, the Appellate Authority held that finding of the Rent Control Court that there is no landlord-tenant relationship cannot be accepted. We agree with the above finding of the Appellate Authority. However, with regard to the finding on the ground of Section 11(2)(b), the Appellate Authority agreed with the Rent Control Court that alterations made by the tenants enhanced the value of the building and therefore, they cannot be evicted under Section 11(4)(ii).
2. Section 11 (4)(ii) reads as follows:
"11. Eviction of tenants.......................
(4) .................................
(ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or According to the petitioners, when the second petitioner visited the place he found that there were alterations in the building and, therefore, he filed a suit, O.S. No. 1060 of 1989, before the Munsiffs Court, Thiruvananthapuram and obtained an order of injunction, restraining the tenants from reconstructing the building and demolishing the walls of the building. A Commissioner was appointed. The certified copy of the Commission Report was marked as Ext. A-1. On the basis of the evidence as well as the Commission Report the Appellate Authority found as follows:
" ....After admitting the document in evidence and after marking it as an item of evidence it is not fair on the part of the Rent Control Court to observe that there is no proper proof of that item of evidence. A reading of Ext. A-1 report clearly shows that the shop room bearing T.C. 39/634 has been totally renovated recently. The old walls have been pulled down and replaced by new walls. The old flooring was also removed and replaced by new flooring. The original roof was also dismantled and substituted by a new roof. Thus there was satisfactory evidence to show that the tenants recently renovated T.C. 39/634 and gave it a new look. True that the above acts of the tenants were not to the liking of the landlords. But it cannot be said that demolition of old walls of a shop room and replacing it with new walls or replacing of the old flooring completely with new flooring or replacing the old tiled roof with new asbestos roof were acts of waste which are likely to reduce the value or utility of the shop rooms materially and permanently. In my view those acts ordinarily enhance the value and utility of the shop room. It may be that such acts of the tenants are against the wishes of the landlord. But those acts cannot legitimately be described as acts intended to destroy the shop room or to reduce its value or utility materially and permanently. In my view those acts only enhance the value of the building although the tenants will be accountable to the landlord for the old materials. Since the tenants have effected those improvements against the wishes of the landlord and even ignoring their opposition they may not be entitled to any amount by way of compensation for such improvements......"
The evidence would show that the original roof was dismantled and substituted by new roof. The old walls were replaced by new walls, old flooring was also removed and replaced by new flooring, old tiled roof was removed with new asbestos roof and shutters were put replacing the doors. All these would show that reconstruction was done and the old building as such was completely demolished. According to the landlords, they disliked the alterations which were done not only without their consent but also against stiff oppositions and, therefore, they are entitled to evict the tenants under Section 11(2). Under Section 11(5)(iv) of the Act if the building is in such a condition that it requires reconstruction, the landlord can demand for eviction for reconstruction of the building. The tenant can use the building only for tenanted use and he cannot change the entire structure ...... Here, the old tiled roof was changed into asbestos roof, walls as well as flooring were changed and there is nothing in the building which is not changed by the tenant.
2. In this connection we refer to the decision of the Supreme Court in Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors. (AIR 1996 SC 3057). In that case Court considered Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act (3 of 1949). As per Section 13(2)(iii) of the above Act if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, eviction can be ordered. The Supreme Court also held that the word "to impair materially" means to diminish in quality, strength or value substantially. The argument put forward by the tenant was that because of the improvements made by him the value was improved substantially and therefore, Section 13(2)(3) cannot be used. The Supreme Court reversed the view of the High Court and held that 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 not of the tenant or anyone else. In that decision, the Supreme Court held as follows:
"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 value or utility of the building or rented land. The meaning of the expression 'to impair materially' in common parlance 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 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 inequality, 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 not of the tenant or anyone else......."
3. In Vipin Kumar v. Roshan Lal Anand ((1993) 3 JT (SC) 171) also same view was taken by the Apex Court. Here, even against the injunction order from the court, the tenants had done everything without the consent of the landlords and the building has been completely altered. According to the landlord the value of the building has been decreased even though according to an outsider value might have been increased. The Court agreed with the landlords' contentions and therefore, allowed petition and eviction was ordered under Section 11(4)(ii). Unlike minor alterations which will not diminish the value of the building, a tenant is not entitled to change or alter the building and structure completely and act as if he is the owner. Here alterations made by the tenants are not disputed. But it is contended that the value has only increased and not decreased. But such alterations changing the flooring, walls, doors and roof tantamount to reconstruction of the building. In fact, a new structure has been built in the place of the old tenanted building and tenants have gone beyond their rights as tenants and acted as though they are the owners themselves. As held by the Apex Court, looked from the view point of the landlords, the value of the building has diminished, though in the opinion of others, value has only enhanced. According to us, having regard to the material alterations effected by the tenants herein, the landlord is fully justified in thinking that the tenants have transgressed the limits provided under Section 11(4)(ii) of the Act. In the above view, we are of the opinion that ingredients of Section 11(4)(ii) are satisfied and tenants are liable to be evicted from the building.
4. In view of the fact that the building was rented out for a long time, we are of the opinion that some time should be given to the tenants to handover vacant possession of the building. Therefore, if the tenants file an affidavit before the Rent Control Court within two months from today undertaking that they will vacate the premises before 31st March 2003 and that they will continue to pay the agreed rent till they vacate the room, the order of eviction shall not be executed before 31st March 2003.
The Civil Revision Petition is disposed of accordingly.