IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.R. No. 141 of 2010. Reserved on : 07.04.2011. Decided on: 05.05.2011. _____________________________________________________ Brij Lal and others. …Petitioners. -Versus- Rai Sahib Puran Mall Trust Dharamshala, Shimla and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioners. : Mr. B.B. Vaid, Advocate. For the respondents. : Mr. Ashok Sood, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): This revision petition is directed against the judgment dated 28.08.2010, passed by the learned Appellate Authority, Shimla in Civil Misc. Appeal No. 42-S/14 of 2009. 2. Material facts necessary for adjudication of this petition are that the respondents-landlords (hereinafter referred to as ‘the landlords’, i.e., Shri Rai Sahib Puran Mall Trust Dharamshala for convenience sake) has filed a rent petition under Section 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as ‘the Act’ for convenience sake) for the ejectment of the respondents-tenants from the residential rooms No. 18, 24 and 25 of R. S. Purnmal Dharamshala. The landlords have sought the eviction of the tenants on the ground that after the commencement of the Act, the tenants have used the rented residential rooms for the purposes, other than for 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - which the same were leased out. According to them, three rooms were leased out for residential purposes, but the respondents are running business of supplying huge wooden Takhatposh and beddings etc. to the marriage parties and for numerous public and privately held functions throughout Shimla without the written consent of the landlords. According to them, such acts and conducts also cause nuisance to the occupiers, yatries and visitors staying in the Dharamshala and in the neighbourhood. According to the landlords, the tenants had been stacking Takhtposh and wooden box containing Rajaies and Talies in the corridor of Dharamshala in the second floor. According to the landlords, the supplying of such articles, i.e., Takhatposh, wood etc. was also causing damage to the building, which has impaired its value and utility. The landlords had further claimed that the entire corridor measuring 64x5 ½ was illegally used for storing Takhtposh numbering to approximately 20 to 25. The tenants were also in arrears of rent of the premises w.e.f. 01.01.1998 till the filing of the petition and they were also liable to pay statutory increase at the rate of 10% after every five years. The rent from 01.01.1998 to 31.03.2001 at the rate of `253/- per annum comes to `3352.25/-.The total rent from 01.01.1998 till the filling of the petition with 10% increase comes to `4016.55/- and interest at the rate of `9% w.e.f. 01.01.1998 comes to `361.48/-. 3. The petition was resisted by the tenants, on the ground that the same was not maintainable. The President and Secretary cannot become the landlords of the premises in question. The provisions of the Rent Act were not applicable and - 3 - the petition was barred by principles of resjudicata. On merits, it was pleaded that the tenants have not used the accommodation in dispute or the rooms for the purpose, other than that for which they were leased. The rooms were leased out to late father of the tenants for all purposes unconditionally. It was denied that the tenants were running business of supplying wooden Takhtposh and beddings to the marriage parties or for numerous public and privately held functions throughout Shimla, as claimed in the petition. According to the tenants, late father of tenants was given rooms No. 20, 21, 22 along with vacant space in the 1st floor and corridors for running the business of supply of Charpies etc.. 4. Learned Rent Controller framed the issues on 07.07.2003. The petition was allowed on 12.06.2009 and the tenants were ordered to be evicted from the rooms No. 18, 24 and 25 in the second floor of R.S. Puranmal Dharamshala Trust, Cart Road, Shimla, H.P. on the ground of change of user and the tenants were found guilty of such acts and conducts, which caused the nuisance to the occupiers and visitors staying in the Dharamshala and the tenants were also using the said premises for commercial purposes which was causing damages to the building belonging to Dharamshala and has impaired the value and utility of the entire building. The tenants were also held to be in arrears of rent w.e.f. 01.01.1998 till the order dated 12.06.2009 at the rate of `252/- per annum of the demised premises with statutory interest at the rate of 9% per annum. The eviction of the tenants was also ordered for non-payment of arrears of rent. However, it was ordered that the tenants shall - 4 - not be evicted from the demised premises, if they paid the arrears of rent due within 30 days from the passing of the order. The tenants were also held liable to pay the statutory increase in the rent after every five years at the rate of 10% w.e.f. 01.01.1998 to the date of passing of order. The tenants preferred an appeal before the 1st Appellate Authority, Shimla against the order dated 12.06.2009. The same was dismissed on 28.08.2010. Hence, this petition. 5. The tenant, late Shri Rewati Raman, has died during the pendency of this petition. On 17.03.2011, a statement was made by Mr. Hemant Vaid, learned vice counsel for the petitioner that since the estate of deceased petitioner No. 1 was already duly represented, there was no need to bring his legal representatives on record. 6. Mr. B.B. Vaid, learned counsel for the petitioners has strenuously argued that the eviction petition was not instituted as per the provisions of Section 48 of the Indian Trust Act. According to him, the same was required to be filed by all the trustees of Shri Rai Sahib Puran Mall Trust Dharamshala. He further argued that the tenants have not changed the user of the premises. According to him, the premises were being used for residential purposes. He then contended that the tenants have not impaired the value and utility of the building. He lastly contended that his clients have not caused any nuisance, as claimed by the landlords. Mr. B.B. Vaid, learned counsel for the appellants has also argued that there is no relationship of landlord and tenants as far as rooms No. 18, 24 and 25 are concerned. According to him, the tenants were in possession of - 5 - rooms No. 20, 21 and 22. According to him, the premises are being used for the purposes for which these were rented out, i.e., for residential purposes. According to him, neither the tenants were in arrears of rent nor were they liable to increase the rent after a period of five years. 7. Mr. Ashok Sood, learned counsel for the respondents has supported the judgments passed by the learned Rent Controller and the 1st Appellate Authority, Shimla. 8. I have heard the learned counsel for the parties and gone through the pleadings carefully. 9. Firstly, the Court will advert to the question of maintainability of the eviction petition filed on behalf of the landlords. 10. Shri Sanjay Kuthiala has appeared as PW-2. According to him, he was fully authorized by the Trust through resolution Ex. PW-2/A by all the trustees to institute the petition. Ex PW-2/A has been duly proved. He also proved in evidence certified copy of the trust deed Ex. PW-2/B.He has also testified that the petitioner No. 2 (in Rent Petition) was the President of the Trust. According to him, the premises were residential in nature, but the same were used by the tenants for commercial purposes. The tenants were indulging in the business of beddings and cots. According to him, they have converted room No. 18 into bathroom and toilet, which has caused seepage. Room No. 25 has been converted into a store. In the corridor of rooms No. 24 and 25, the tenants have kept Takhtposhes and cots, which has caused obstruction for the ingress and egress to the yatries staying in the Dharamshala. - 6 - The Takhtposhes, when rented out, were being lifted by the tenants through staircase and passage of Dharamshala, which causes damage to the property of Dharamshala, as a result of which, its value and utility had been impaired. The use of the tenanted premises has been changed from residential to commercial without the oral or written consent of the landlords. A suggestion was put to PW-2, whereby he has admitted that Latur Chand, father of the tenants was the tenant of Dharamshala. He has denied the suggestion that the tenants were using the tenanted premises for residential purposes. PW-3 Sushil Kumar Sood has deposed that he was supplying the beddings to the visitors staying in Dharamshala. The tenants were carrying on the business of supply of Takhtposhes, beddings and those were kept in the corridor, which has caused obstruction in the ingress and egress to the visitors and persons passing therefrom. 11. PW-1, Vivek Karol has deposed that the tenants had kept 15 Takhatposhes, two wooden boxes and beddings in the corridors. He has proved in evidence his report, Ex. PW-1/A. He also deposed that by keeping Takhatposhes, the value and utility of the passage has been impaired. He reported in Ex. PW- 1/A that room No. 18 was being used as Kitchen by the tenants and other rooms as residence and store for running business. He noticed 15 Takhatposhes and two big wooden boxes lying in the passage, which was leading to the residence of the tenants and other rooms of Dharamshala. The passage was 5 feet in width and 10 feet in height. The width of the wooden Takhatposhes was 3 feet and their length was 6 feet and, as - 7 - such, almost 60% of the passage had been blocked by the Takhatposhes and wooden boxes. The quilts were lying on two bed boxes. He further reported that due to blockade of passage, proper maintenance could not be carried out, as a result of which, the property was damaged and, thus, impairing its value. The regular use of such wooden Takhatposhes was damaging walls and floors of the corridor and putting danger to the building of the Dharamshala. He did not inspect rooms No. 20, 21 and 22. 12. PW-4, Dheeraj Kanwar was appointed as a Local Commissioner. He inspected the tenanted premises, consisting of rooms No. 18, 24 and 25. He visited the tenanted premises on 05.04.2001 at about 5:00 p.m. in the presence of Manager of Puran Mall Dharamshala and conducted the spot inspection. He has proved in evidence his report, Ex. PW-4/B (Mark-X). He has also recorded the statements vide Ex. PW-4/C-1 to Ex. PW-4/C- 4. He has also proved the photographs Ex. PW-4/D-1 to Ex. PW- 4/D-6. He has also stated that during inspection, he noticed that room No. 24 was occupied by the tenants and the same was being used as kitchen, bathroom and store by making partition in between. Room No. 25 was being used as store where beddings were stored. In the corridor of the said rooms wooden beddings (Takhatposhes) and big trunks had been kept and only space from which a single person could move had been left. 13. Rewati Raman has appeared as RW-1. According to him, his father has taken on rent rooms No. 20, 21 and 22 in the year, 1947 in order to carry out the business of supply of beddings and cots and the said rooms were also rented out for - 8 - residence to his father. According to him, the eviction petition had been instituted and maintained in respect of the tenanted premises comprising of rooms No. 18, 24 and 25. He has deposed that he has no concern with the tenanted premises, comprising of rooms No. 18, 24 and 25. According to him, the respondents were in possession of rooms No. 20, 21 and 22. However, the testimony of RW-1 cannot be believed on the basis of judgments Ex. PX-1 and Ex. P-X, whereby the landlords and tenants’ relationship stood established. In his cross- examination, he admitted that he had the knowledge of the judgments Ex. PX-1 and Ex. P-X. Tenants have also examined Rajesh Kumar as RW-2. He supported the version of RW-1. The tenancy pertained to rooms No. 20, 21 and 22 in fourth storey. According to him, the tenants carried out the business there without causing any nuisance, hindrance or obstruction to any body. However, he admitted that in the veranda/corridor, Takhatposhes were lying and those used to be kept there since the time of the father of the tenants. 14. What emerges from the evidence led by the parties, is that the tenanted premises were rented out for the purpose of residence, however, the same are being used for commercial purposes. 15. Their Lordships of the Hon’ble Supreme Court in Bishamber Dass Kohli (Dead) By L.Rs. Vs. Satya Bhalla (1993) 1 Supreme Court Cases, 566 have held that change in user must be a change in character of the user for which alone building had been let out. Change in user may be even in respect of a small portion and need not be in respect of the - 9 - entire building or a substantial part thereof. Their Lordships have held as under: “8. It is clear that if the change in user of the building is of the kind that it makes the residential building let out for residential purpose alone change its character and become a 'scheduled building' as defined in Section 2(h) of the Act without the written consent of the landlord, the ground of eviction under Section 13(2(ii)(b) is made out. 9. This test is fully satisfied in the present case and the order of eviction was made by the Rent Controller and affirmed by the appellate authority on this basis. The High court misconstrued the provisions to take the contrary view. 10. A division bench of the Punjab and Haryana High court in Telu Ram v. 0m Parkash Garg' while dealing with Section 13(2(ii)(b) of the Act mentioned one of its conclusion in para 21 as under "(FC) that if the result of the use of even a small portion of a build- 1 1971 RCJ I : 1971 Punj LR 1 ing is such that the category of the premises is changed from residential, non-residential and scheduled, and it becomes a category different from the one for which the same had been let, the clause would be at- tracted," 11. This is how this provision appears to have been understood at least ever since then and the people in the State have arranged their affairs on that basis. Apart from the fact that this view commends to us as the correct view, the desirability of continuing the settled view is also a reason in its favour.” 16. Now, the Court will advert to the question whether the tenants have committed such acts which were likely to - 10 - impair material value or utility of the building. The only evidence led by the landlords is statements of PW-1 Vivek Karol and PW-2 Sanjeev Kuthiala. They have only stated that the shifting of Takhatposhes etc. through stairs or corridors has damaged the building, as a result of which, its value and utility had been impaired. The Court is of the considered view that the evidence led by the landlords does not meet the requirement of law. The expression of “Materially altered” has come for consideration before their Lordships of the Hon’ble Supreme Court in Om Parkash Vs. Amar Singh and others (1987) 1 Supreme Court Cases, 458, while interpreting U.P. Cantonment Rent Control Act, 1952. Their Lordships have held 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 held as under: “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 Pharases (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 - 11 - 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 Manmohan Shah Vs. Bishun Das, this Court considering the expression ‘material alterations’ occurring in Section 3(1)( c) of 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 a 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 form and structure of the accommodation.” 9. Learned counsel for the respondent placed reliance on the Full Bench decision of the High Court in Sita Ram case where the question as to what constructions could materially alter the accommodation was considered. The Full Bench held that conversion of a single storey shop into a double storied structure by constructing a pucca superstructure on the roof of the shop materially altered the accommodation. On the facts of that case, there could be no doubt that the tenant had made substantial constructions which changed the form, front and structure of the tenanted shop. The High Court observed that the fact that a construction is permanent 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 - 12 - constructions, whether they are permanent or temporary, is a relevant construction in determining the question of ‘material alteration’. A permanent construction tends to make changes in 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. The Full Bench referred to the observation of this Court made in Babu Manmohan Das Shah case that the alteration in a given case might not cause damage to the premises or its value or might not amount to an unreasonable use of leased premises, yet construction may fall within the expression ‘material alterations’. In our opinion, the observations made in Babu Manmohan Das Shah case do not justify inference that the nature of the construction the whether permanent or temporary is not relevant for the purpose of determining the ‘material alterations’ made by a tenant”. 17. Their lordships of the Hon’ble Supreme Court in Brijendra Nath Bhargava and another Vs. Harsh Wardhan and others (1988) 1 Supreme Court Cases 454 have held that no definition can be drawn of the “material alteration.” 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 whether the constructions are substantial and permanent in nature and they alter the front elevation or the front and the structure of the building itself. Their Lordships have held as under: - 13 - “12. The next question which was debated at length by learned counsel for parties is as, to whether the said construction of the wooden Dochhatti or a balcony is a material alteration within the meaning of S. 13(l)(c) of the Act quoted above and in this regard it is undisputed that what has been constructed is a wooden structure which makes 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 (AIR 1987 SC 617 at p. 619) 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 change in character, positions "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 an other. 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 - 14 - nature and character of change or alteration of the building must be of essential and important nature. In Babu Manmohan Das Shah v. Bishun Das, ( 1967) 1 SCR 836: AIR 1967 SC 643, this Court considering the expression 'material alterations occurring in S. 3(l) (c), U. P. Temporary) Control of Rent and Eviction Act. 1947 observed: "Without attempting to lay dawn 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. 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 material alteration but it will have to be decided on the basis of facts and circumstances appearing in each cases; 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 (a( p. 619 of AIR) : "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 provide a ground for tenants' eviction, it took care to use the word "materially altered the accommodation". The material alterations - 15 - 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