IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Civil Revision No.224 of 2007 and Civil Revision No.225 of 2007 Reserved on: 9th May, 2008. Date of Decision: 30th May, 2008. Shri Kanshi ...Petitioner/tenant Versus M/s Ram Krishan & another. …Respondents/landlords Coram: The Hon’ble Mr.Justice Deepak Gupta. Whether approved for reporting?1 No For the Petitioners: Mr. Ramakant Sharma, Advocate. For the Respondent: Mr. Ajay Kumar, Advocate. Deepak Gupta, J. This judgment shall dispose of the aforesaid two Civil Revisions, as they arises out of the same orders passed by the Rent Controller as well as the Appellate Authority. Briefly stated the facts of the case are that the respondents (hereinafter referred to as ‘the landlords’), filed an eviction petition under Section 14 of the H.P. Urban Rent Control Act, 1987, (hereinafter referred to as ‘the Act’) against the petitioner,(hereinafter referred to as ‘the tenant’ ). The case set up by the landlords was that they had rented out one temporary CGI tin shed measuring 6.2 Metres x 3 Metres, situated in Bantony Estate, The Mall, Shimla to the tenant at rental of Rs.300/- per month. Whether reporters of Local Papers may be allowed to see the judgment? Yes. Eviction of the petitioner was sought on the following grounds, that the tenant was in arrears of rent with effect from November 1, 1997 that the tenant after the commencement of the Act had committed such additions and alterations which had materially impaired the value and utility of the demised premises by increasing the size thereof; and lastly it was contended that the landlords required the demised premises bonafide for the purpose of rebuilding which work cannot be done without vacation of the premises. This petition was contested by the tenant on various grounds. It would be pertinent to mention here that the relationship of landlord and the tenant and rate of rent was not denied. However, according to the tenant the landlords were intentionally refusing to accept the rent. The learned Rent Controller held that the tenant was in arrears of rent w.e.f. November 1, 1997 at the rate of Rs.300/- per month and ordered the tenant to pay this amount alongwith interest at the rate of 9% per annum. The learned Rent Controller also held that the tenant had made additions and alterations in the demised premises which have materially impaired the value and utility of the same. However, the Rent Controller decided the issue relating to the bonafide requirement for rebuilding and reconstruction against the landlord. Consequently, the eviction petition was allowed on the ground of arrears of rent and that the tenant had materially impaired the value and utility of the building. It is not disputed that the tenant deposited the amount of rent within 30 days and therefore this issue does not survive. Both the landlord and the tenant filed appeals before the Appellate Authority. The Appellate Authority accepted the appeal of the landlord and directed eviction of the tenant also on the ground that the building was bonafide required for rebuilding and reconstruction. The appeal of the tenant was dismissed and the learned Rent Controller upheld the order of the learned Tribunal on the ground that the tenant was liable to be evicted since the value and utility of the premises has been materially impaired. The tenant has filed the aforesaid two petitions, since both the appeals have been decided by the learned Appellate Authority, by one judgment. I have heard Shri Ramakant Sharma, learned counsel for the tenant and Shri Ajay Kumar, learned counsel for the landlord. First, I will take up the question as to whether the Courts below have properly decided the issue, as to whether the tenant has materially impaired the value and utility of the premises. The landlord appeared as PW-3. He stated that the premises originally let out to the tenant measured 20 feet x 10 feet and were 7 feet in height. According to the landlord, the tenant had increased the dimensions of the demised premises by increasing the length thereof from 20 feet to 30 feet and the height had been increased from 7 feet to 11 feet and therefore, the value and utility of the demised premises has been impaired. It is not disputed that the structure is basically a tin shed and the same had been constructed before the premises were rented-out to the tenant. The landlord denied the suggestions put by the tenant that the tenant had not changed the dimensions of the shed in question. He also denied this suggestion that the value and utility of the premises had increased due to the replacement of the wooden rafters and tin sheets. The landlord examined Shri Vivek Karol, PW-4. According to him, the tenant had changed the dimensions of the shed. The respondent examined Shri Bharat Ram, as RW-1. According to this witness, the dimensions of the demised premises are the same, as they were earlier. In cross-examination, he stated that it may be true that the tenant had increased the height of the shed. RW-2, Shri Amar Nath stated that the respondent himself used to repair the shed. In cross-examination, he admitted that the respondent had increased the height of the shed. He had shown ignorance as to whether the length of the shed has also been increased. The tenant also examined Shri H.S. Bishat, who is a Technical Expert. He stated that the value and utility of the shed had been increased by the repairs carried out by the tenant. RW-4 Shri Kewal had supported the case of the tenant. The tenant himself appeared as RW-5. According to him, he had neither increased the height nor the area of the premises and he has not made any addition or alteration to the same. He has admitted the photographs produced by the landlord. He admitted in cross-examination that originally the length of the shed was 6.2 Metres and after repairs its length had been increased to 9.5 Metres. From the above evidence, which has been considered by both the Courts below, it is clear that the tenant in his statement has clearly admitted that he had changed the dimensions of the shed. It is proved on record that the area of the shed has been increased by more than 50%. Both the Courts below have arrived at a finding of fact that the tenant had materially impaired the utility of the building by changing the size of the shed in question. This is a finding of fact which calls for no interference by this Court in exercise of its revisional jurisdiction. The main argument raised on behalf of the tenant is that even if it is assumed that the size of the shed has been changed, this in no way has impaired the value and utility of the building, and in fact the building has become more valuable. This argument is totally without merit. A tenant should remember that he is a tenant and not the owner of the premises. He cannot make such material and substantial changes which completely change the character of the building. What is the value and utility of a building, must be judged and determined from the point of view of the land lord and none else. Admittedly, in the present case what was rented out was a shed and not open land. By increasing the size of the shed, the tenant encroached upon the land of the landlord and therefore, the impairment has to be judged in this context. The Apex Court in Gurbachan Singh and another versus Shivalak Rubber Industries and others, (1996) 2 Supreme Court Cases 626, held as follows:- “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 changed 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 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 land lord and not the tenant or anyone else. 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. 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 premises from the point of view of the appellant-landlords within the meaning of Section 13(2) (iii) of the Act. It is clear that by the alterations the tenant had changed the length and height of the building. The tenant had changed the character of the building without the permission of the landlord and this would amount to impairing the value and utility of the building in the eyes of law and render the tenant liable for eviction. However, so far as the plea of the landlords that the building is bonafide required by them for reconstruction is concerned, in my opinion the landlords have failed to prove their case. The Rent Controller rightly decided the issue. The landlord had only stated that he requires the building for rebuilding and reconstruction. Even Shri Vivek Karol, who was examined by the landlord as PW-4 has not stated anything that the building is bonafide required for reconstruction or that the reconstruction necessitates the eviction of the tenant. The landlord has failed to place on record any material to show that he has even got a plan prepared for reconstruction of the building. There is no evidence to show that such plan has been submitted to the Municipal Authorities. Therefore, the question of sanctioned plan does not arise. Without doing this basic preparation of preparing a plan of reconstruction, the landlord cannot get the building vacated on the ground of reconstruction. In my opinion, the learned lower Court below has totally misconstrued the evidence and authorities cited before it while deciding this issue in favour of the landlord. No doubt, the law has undergone a sea change over the last ten years. A Constitutional Bench of the Apex Court in case titled Vijay Singh and others versus Vijayalakshmi Ammal (1996) 6 Supreme Court Cases 475, held that where the building is an old one and is situated in a very busy locality of the town where a number of buildings had already been built around the demised premises, the need of the landlord to demolish the old building in order to construct the new shopping complex for which necessary permission from the municipal authorities had already been obtained was bonafide and genuine. The facts of the said case were totally different and in the case before the Apex Court sanction of the Municipal Authorities to raise construction of new building in accordance with the sanctioned plans had been obtained. This is the factual position in all the other authorities cited by the learned counsel for the landlord. The landlord in all the cases had proved on the record the sanctioned plans to show that he bonafide required the building for reconstruction. In the present case this has not been done. Therefore, in view of the above discussion, the petitions are disposed of by setting aside the order of the learned Appellate Authority but the order of the learned Rent Controller is upheld. The tenant is held liable for eviction. Since the tenant is running a canteen in the premises and earning his livelihood therefrom, he is granted time upto 31.8.2008 to vacate the premises. Both the petitions are disposed of in the aforesaid terms. No order as to costs. (Deepak Gupta), J. 30th May, 2008 (MG)