IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 RCRev..No. 197 of 2008() ------------------------------------ RCA.9/2006 of D.C. & SESSIONS COURT,KOLLAM (RENT CONTROL APPELLATE AUTHORITY). RCP.28/2004 of ADDL.RENT CONTROLLER COURT, KOLLAM .................... REVISION PETITIONER (S): APPELLANT/RESPONDENT: ----------------------------------------- GEORGE.D.KAPPIL, I.O.C.DEALER, KALLUPALAM, KOLLAM 18, RESIDING AT KATTIL HOUSE, PALACE ROAD, THANGASSERY, KOLLAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): RESPONDENT/PETITIONER: ---------------------------- R.PRADEEP NAIK, AGED 52, S/O.LATE RAMANATHA BHATTER, GOVT.SERVANT, RESIDING AT VAYYAMUKKU HOUSE, BIG BAZAR, KOLLAM-18. ADV. SRI.V.V.RAJA FOR R1 SRI.M.T.SURESHKUMAR THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 21/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - R.C.R. No.197 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of November, 2008. O R D E R Ramachandran Nair, J. The respondent/landlord sought eviction of the petitioner/tenant under Section 11(4)(ii) of the Kerala Buildings (Lease & Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The same stands allowed by the Rent Control Court and the said order has been confirmed by the Appellate Authority. Accordingly, this revision petition has been filed by the tenant assailing the orders passed by the authorities below. 2. Under Section 11(4)(ii) of the Act, if the tenant uses the building in such a manner as to destroy or reduce its value and utility materially and permanently, the landlord can seek eviction. The schedule premises consists of two shop rooms and a godown attached to it on the rear side. The rooms face two public roads on the southern and eastern side. It is an old fashioned building, forming part of a line building with a row of shops in them. In July 1974 it was let out by the father of the landlord at a monthly rent of Rs.750/- to the tenant for conducting kerosene dealership business and after his death, the property devolved on him. The present RCR 197/2008 -2- tenancy arrangement started in the year 2000, i.e. on 1.7.2000. The fixed rent is Rs.2,000/- per month. The construction that is found objectionable, is of a latrine inside the shop room and a tube well. According to the landlord, this has resulted in material alteration of the building and the same has been done against his consent and in violation of the terms of the rent deed. It was also contended that the same has materially altered the very nature and user of the building and has caused reduction in its value and utility materially and permanently. 3. It was mainly contended by the tenant that to the schedule premises no structural alterations were made. There are women employees working under him and there was lack of facility for water and latrine which has resulted in lot of sufferings to himself and his staff. It was pointed out that actually the landlord permitted the construction of a latrine and tube well. The landlord is residing in the immediate adjoining compound of the schedule building and he had no complaint regarding the construction that was made and the long delay in filing the eviction petition itself shows that he had acquiesced about the same. It was contended that the construction will not damage the premises or reduce its value or utility and it has actually increased its utility and value. 4. The evidence consists of the oral testimony of P.W.1, Exts.A1 and RCR 197/2008 -3- C1 and C2 on the side of the landlord and the testimony of DW.1 on the side of the tenant. The Rent Control Court, after referring to Section 11(4) (ii) of the Act, concluded that the language used therein is wider and therefore the use of the building after constructing a tube well and a latrine would definitely reduce the value or utility of the building materially and permanently. It is stated that the construction is substantial in nature which has reduced the value or utility of the shop room and it is a permanent and material affair. The assertion made by P.W.1 in that regard was relied upon and it was also found that the tenant exceeded his authority in the use of the building against the terms and conditions of Ext.A1 lease deed by effecting the construction. 5. Before the Appellate Authority, the tenant, by relying upon various decisions of this court and Apex Court, contended that the view taken by the Rent Control Court cannot be supported in law, the interpretation placed on the provision is incorrect and that it cannot be said that by providing a latrine and supply of water to the room, there will be any reduction in the value and utility of the building. It is submitted that the legal requirements under the relevant provisions of the statute have not been properly considered by the Rent Control Court. After referring to the dictum laid down in various decisions, the Appellate Authority in para 22 was of the RCR 197/2008 -4- view that the test to be applied is whether the building after modification and construction, can be used in its original form by the landlord. The criterion is not to see whether the alteration and modification are essential for the business purpose or otherwise of the tenant. It was found that the two structures put up by the tenant are permanent in character and that prevents the landlord to use it in its original form. Accordingly, the order of eviction was sustained. 6. Learned counsel for the petitioner submitted that both the authorities below have not analysed the pleadings and evidence in the correct perspective and in accordance with the statutory requirements. It was submitted that the bathroom in question is having the measurement of 2m in width and 2m in length and a wash basin and European closet have been installed in it. The tube well was erected outside the western wall of the bathroom, in the eastern corner of the passage leading to the godown. These are easily removable and in the objections itself, the tenant has made it clear that the same can be removed if the landlord insists so. It is submitted that by no stretch of imagination it can be presumed that the above constructions will destroy or reduce the value or utility of the building materially and permanently. No structural alterations of the building have been effected and the constructions are only temporary in RCR 197/2008 -5- nature and for better convenience and use of the building, since his employees include women employees and there was no facility of any toilet before the construction was effected. It is also submitted that the same is 3 years old and the landlord has consented to the above constructions. He is residing closely and had never objected to the same when it was made. The rent was increased to Rs.2,000/- considering these factors. 7. Learned counsel for the respondent submitted that these arguments cannot be legally accepted, as the construction was never permitted by the landlord and is in violation of the specific terms of the rent deed. It is submitted that the constructions are of a permanent nature and will result in reduction of the value or utility of the building materially and permanently. The learned counsel supported the view taken by the authorities below. Both sides relied upon various authorities in support of their contentions. The following authorities were relied on in support of the arguments raised: “Dr. Jai Gopal Gupta and others v. Bodh Mal (1969 ALJ 477) Viswanathan v. Porichu (1985 KLT 551) Zubeda Khatoon v. Vth Addl. District Judge, Lucknow {(1999) 1 RCR 219) Om Prakash v. Amar Singh and another (AIR 1987 SC 617) G. Arunachalam (died) through L.Rs. And another v. Thondarperienambi and another (AIR 1992 SC 977) RCR 197/2008 -6- Aboobacker v. Nanu (2001 (3) KLT 815) Gurbachan Singh and another v. Shivalak Rubber Industries and others {(1996) 2 SCC 626) Francis v. Davis (2005 (3) KLT 815) Reghunathan v. Varghese (2005 (4) KLT 147 (SC) Seethalakshmi Ammal v. Nabeesath Beevi (2003 (1) KLT 391)” 8. We will now refer to the report of the Commissioner to appreciate the arguments raised by both sides. The entire structure let out to the tenant consists of a hall having 8.25m in length east-west and 6.50m in width which are divided into two rooms. The schedule building consists of two rooms and a godown with a passage leading to the godown. Location of the two are one on the north and the other on the south of it. These are divided by a partition made of glass in aluminium frames and plywood. The northern portion is having 5.30m in length and 3m in width. The measurement of the southern part is 6.5m in length and 2.65m in width. The northern one of the two rooms is used as store room. The bathroom has been constructed in that portion forming the store room, the walls of which are made of plywood. The measurement of the bathroom is 2m in length and 2m in width. The floor of the bathroom is covered by tiles. In it one wash basin and a European closet have been placed. The roof of the schedule rooms and the godown are common. The age of the rooms in RCR 197/2008 -7- question is reported to be about 75 years. Presently, the schedule rooms are used as the showroom of Airtel Cellular Company and there are two employees out of which, one is a woman. 9. We will just refer to the principles that emerge from the various decisions cited at the Bar. In Dr. Jai Gopal Gupta's case (supra) (1969 ALJ 477), actually the provision which was considered therein was different. Eviction could be sought if the construction made has materially altered the accommodation. It was held that the construction made by the tenant in that case, i.e. additional two rooms on a portion of the courtyard as kitchen and bathroom does not materially alter the accommodation. In Viswanathan's case (supra) (1985 KLT 551), it was held that “material alterations are important alterations such as those which materially or substantially change the front or the structure of the premises.” In Zubeda Khatoon's case (supra) {(1999) 1 RCR 219}, the tenant constructed a lavotary, bathroom and a kitchen inside the premises and converted the outer chabutra of the house into a room. The question was whether it impaired the value and utility of the building. After referring to various judgments of the Apex Court and other courts, it was held that “it cannot be said that the constructions were of such a nature that it altered the form, RCR 197/2008 -8- front and structure of the accommodation and hence it cannot be said that the petitioner has made or permitted to be made any such construction or structure in the building which has diminished its value or utility or disfigured it.” In Om Prakash's case (supra) (AIR 1987 SC 617), while considering the question whether the construction resulted in material alteration, it was held that “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.” In G. Arunachalam's case (supra) (AIR 1992 SC 977), on the finding that the constructions did not alter the value of the building, it was held that eviction could not be ordered. 10. We will now refer to the decision of this court in Shanmugam v. Rao Saheb (1988 (1) KLT 86) wherein this court considered the scope of Section 11(4)(ii) of the Act. It was held that the landlord cannot get an order of eviction on the ground under Section 11(4)(ii) by mere proof of minor destruction or alteration, even if it results in marginal reduction of RCR 197/2008 -9- value or utility of the building. The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. The said decision was approved by this court in Aboobacker's case (supra) (2001 (3) KLT 815). It was held that the destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. In Seethalakshmi Ammal's case (supra) (2003 (1) KLT 391), the evidence showed that the tenant reconstructed the building by strengthening the walls and replacing the roof and floor by substituting new one in such a way as to increase its value and utility. Reconstruction was done and the old building as such was completely demolished. This court took the view that the ingredients of Section 11(4)(ii) are satisfied. The facts herein are totally different. In Francis's case (supra) (2005 (3) KLT 815), the tenants demolished a portion of the verandah on the front side of the rooms and constructed walls and put up asbestos sheets. They cut and removed a beam supporting the rafters and reapers which caused damage to the walls. Material alteration was caused to the front elevation and structure of the building due to the above acts of the tenant. The legal position was considered in the light of the above acts of the tenant. It was held that the stipulation in the rent deed prohibiting the tenant of making any RCR 197/2008 -10- construction, has relevance while considering what is the point of view of the landlord with respect to the utility of the building. The order of eviction was upheld by this court. In Gurbachan Singh's case (supra){(1996) 2 SCC 626) the Apex Court considered the meaning of the expressions “impair materially” and “value” which comes under Section 13(2)(iii) of the East Punjab Rent Restriction Act, 1949. It was held by the Apex Court in the following terms: “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 effected 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 RCR 197/2008 -11- 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.” In that case it was found that the constructions effected like 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 purposes and accordingly, the eviction ordered was upheld. It was further held that the “the nature of the construction is a relevant consideration in determining the question of material impairment in the value or utility of the building or the demised premises.” 11. In Reghunathan's case (supra) (2005 (4) KLT 147(SC)), the Apex Court considered the various aspects concerning the interpretation of Section 11(4)(ii) in detail. It was held that “the question depends on the facts of the case. The nature of the building, the purpose of the letting, the terms of the contract and the nature of the interference with the structure by the tenant, are all relevant. The destruction or damage has to be adjudged RCR 197/2008 -12- from the stand point of the landlord.” After referring to the nature of the constructions made by the tenant, viz. bricking up of the western wall and the door and windows on the northern, western and eastern walls, it was held that the bricked up portions can be removed and the doors and windows restored without weakening the structure. Referring to the construction, viz. fixing up a rolling shutter, it was held that the same provides more security to the premises. Ultimately, while referring to the meaning of the words “material and permanent”, it was held that “the words are not disjunctive, like in some other Acts. Here, the landlord has not proved the material and permanent impairment in value or utility. One suspects that the value and utility are enhanced. The landlord has failed to prove that the acts of the tenant constitute the user of the building in such a manner as to destroy or reduce the value or utility of the building materially and permanently.” The order of eviction was set aside by the Apex Court. 12. Going by the above decisions, we will have to consider the entire issue in the light of the various factors like nature of the building and the nature of the interference with the structure by the tenant, etc. In para 8 of the petition, the allegation is that the tenant has put up a tube well/bore well inside the shop room and also constructed a separate latrine inside the shop. The further allegation is that the offending structures are of such a type that RCR 197/2008 -13- it materially altered the very nature and user of the premises for which it was originally constructed and intended by the landlord and these material alterations of the building impaired its value and utility, materially and permanently. Going by the report of the Commissioner, it is evident that the construction has not resulted in any alterations in the structure and the structure as such of the building, viz. the two rooms and the godowns are in tact. The store room wherein the bathroom is constructed, is having its walls made of plywood. The entry to the showroom is from a door from the shop room on the southern side. It is not the finding of the Commissioner that any tampering had been done to the walls while providing the bathroom. A European closet and wash basin have been fitted in the bathroom. Apart from that, the floor of the bathroom is covered by tiles. Except that, no tampering of the walls, roof or floor has been made. No destruction has been seen caused to the structure at all. The tube well is not inside the room as stated in the eviction petition. It is outside the western wall of the bathroom in the passage leading to the godown on its eastern corner. The report does not show that any destruction has been caused to the building or its value or utility has been reduced materially and permanently by the constructions made. Thus, the existing structure as such of the two rooms and the godown or the passage have not been RCR 197/2008 -14- destroyed or tampered by making the aforesaid constructions which evidently, are only temporary in nature. 13. The landlord has given evidence as P.W.1. In the proof affidavit he has a case that the constructions have altered the structure and character of the buildings and has permanently reduced its utility and value. No details have been stated as to how it has affected the structure and its character or has reduced its utility and value materially and permanently. In the cross examination, it is stated that the building retain its wall and roof as it was from the date of construction. It is admitted that he has not made any provision for a latrine for the tenants and that all persons using the premises used to go to nearby places for answering the calls of nature. A specific question was put in the cross examination as to why an opinion of expert was not taken to ascertain whether the constructions have impaired its utility and value and the answer was that since the constructions were made without his permission, the opinion of an expert was not sought. One thing that is important is that in the evidence, he has no case that the rooms will not fetch that much rent if it is let out with the new conveniences added by the tenant. How the value and utility has been reduced, is not explained by him. The tenant was examined as D.W.1, wherein he denied that any material alterations have been made by him. The works effected have not RCR 197/2008 -15- resulted in any reduction of value and utility of the building. According to him, it will only fetch more convenience and profit to the landlord. No damage has been caused to the floor or to the walls and that the constructions were made with the permission of the landlord who is residing close by. It is also stated that the landlord was aware about the temporary constructions made by him and there was oral permission also. He explained that since there was no facility of a latrine and as the employees included women also, the constructions were highly necessary and were thus effected. It is also stated that if the landlord insists that these should be removed, he is prepared to remove the same. 14. It is clear from the above evidence that the alternation has not caused any destruction even minor or substantial, to the building. Its utility cannot be said to have been affected by providing the bathroom with facility for water through the tube well. The place where the bathroom is fitted, is that portion which was used as a store room and not the showroom. In the remaining part of that room the store room is still there, going by the Report, Ext.C1. It was not the case of the landlord that the showrooms have been affected or its space has been reduced because of the existence of the bathroom. The roof or the walls of the building have not been touched at all and no additions or alterations have been made to them. Bathroom has RCR 197/2008 -16- come up in the store room which is having walls made of plywood. All these indicate that even if the landlord insists for removal of the same, that can be easily removed without causing any damage or destruction to the existing structure. Thus, either due to the construction or in case of removal of the same, no damage will be caused to the structure. There is no evidence of any expert to show that there is reduction in utility or value of the building by the constructions made or that it has caused any damage to the structure of the building itself. As held by this court in Shanmugam's case (supra), (1988 (1) KLT 86) to attract clause (ii) of sub- section (4) of Section 11 of the Act, proof of minor reduction or even marginal reduction of utility or value would not