HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No.: 222 of 2003 Reserved on: 11.12.2008 Decided on: 31.12.2008 Satya Devi and others ………Petitioners. Versus M.R. Gautam ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioners: Mr.Neeraj Gupta, Advocate. For the respondent: Mr.Harash Khanna, Advocate. V.K. Ahuja, J: This is a civil revision under Section 24 of the H.P. Urban Rent Control Act, 1987 filed by the petitioner against the order passed by the learned Appellate Authority-II, Solan, dated 13.6.2003, vide which it has reversed the order, dated 30.8.2000, passed by the learned Rent Controller, Solan, and the appeal filed by the respondent against the eviction order was allowed. Briefly stated the facts of the case are that the original petitioner Shiv Dutt/Landlord filed a petition for eviction of the respondent under Section 14 ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - of the H.P. Urban Rent Control Act, 1987 (hereinafter to be referred as the Act). It was alleged that the respondent was a tenant of the premises in dispute on a monthly rent of Rs.50/- per month excluding taxes, water and electricity etc. The premises consisted of four rooms, WC kitchen, bath and two verandahs. The eviction of the respondent was sought firstly on the ground of arrears of rent, secondly that the respondent has unauthorizedly constructed a flush latrine in the tenanted premises without the consent of the petitioner, thirdly that the premises were required by the petitioner for the needs of his family, fourthly that the premises are bona fide required for renovation and reconstruction which is not possible without vacating the premises. In reply, the respondent denied the allegations. He pleaded that a dry latrine was already in existence being part of the demised premises which was converted into the flush latrine after getting the consent from the petitioner. The remaining allegations were also denied. The learned trial Court framed four issues in regard to these grounds of eviction and allowed the petition on issue No.1 in regard to arrears of rent and on issue No.2 on the ground of conversion of the dry latrine into flush latrine which had materially impaired the value and utility of the premises. On appeal by the tenant/respondent, it was observed that the rent, as ordered by the learned Rent Controller, has been paid to the landlord within the stipulated period and, therefore, the said ground was not available to the landlord. However, in regard to the findings under Issue No.2 that the tenant has impaired the value and utility of the building by converting the dry latrine into flush latrine, the learned Appellate Authority relied upon a decision of the - 3 - Apex Court and held that no evidence has been led by the appellant that there has been material impairment in value or utility of the building and therefore, reversed the findings of the learned Rent Controller on this Issue No.2. Being aggrieved, the landlord has come up in revision challenging the findings recorded by the learned Appellate Authority. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner/landlord were that the fact that the tenant had converted the dry latrine into flush latrine without the written permission of the landlord stood established from the evidence. It was also submitted that inspite of the objections from the landlord, the tenant had gone ahead and converted the dry latrine into flush latrine, which had impaired the value and utility of the building. In regard to the decision relied upon by the learned Appellate Authority, it was submitted that the said findings were not attracted to the present facts since the change made has to be looked into from the angle of the landlord and it can be presumed that by the change of the nature of user of part of the premises, the value and utility has decreased for which no specific evidence was required to be led. On the other hand, the learned counsel for the respondent had supported the judgment of the learned Appellate Authority. It was also submitted that the landlord has not stated even a word that the value has diminished materially and there is no expert evidence on record and, therefore, there is no merit in the revision petition, which deserves to be dismissed accordingly. - 4 - The main question, which arises for consideration is as to whether the act of the tenant in converting the dry latrine into flush latrine has materially impaired the value of the building or not and as to the effect of such change. Before I refer to the case law or the conclusions drawn by the learned Appellate Authority, I may briefly refer to some facts of the case, which stand established as per the findings recorded by both the courts below and those findings are rather in a way not in dispute since those are findings of the fact. The petitioner had taken the plea that the conversion of dry latrine into flush latrine had been made by the respondent without his consent and as such the tenant was liable to be evicted on the ground of having materially impaired the value and utility of the building. In reply, the respondent had not denied that he changed the construction of the dry latrine into flush latrine. He simply alleged that he had taken the permission from the landlord before converting the dry latrine into flush latrine. No such plea was taken by the respondent that any written permission was taken and the permission as alleged was orally only, when the respondent received notices from the Municipal Committee to convert the dry latrine into flush latrine. The said notices have been proved as Exts.R-14 to R-17. In reply, the respondent wrote to the Municipal Committee that he cannot make the changes since he is only a tenant and the premises belonged to the owner Shiv Dutt Sharma and he should be asked to convert the dry latrine in the premises into flush latrine. There is nothing on record to suggest that any responsibility was fastened by the Municipal Committee that it is the tenant who should convert the same failing which some penal action will be taken. The plea of the respondent in his reply and statement was that he had asked the - 5 - petitioner in this regard after the receipt of the notices Exts.R.14 to R.17 and the petitioner had told him that he can get the construction done on his own expenses and he spent the money and changed the nature of the construction. The petitioner Shiv Dutt as PW-1 has denied that he gave any permission to the respondent and he had also examined PW-2 Kishori Lal, his brother-in-law, in whose presence the respondent was asked to stop the work but the respondent did not stop. Thus, from the above discussion, it is clear that there is nothing on record to show that the tenant was under any obligation from the Municipal Committee to change the nature of the dry latrine into flush latrine and for that reason under the mandate of the law, he carried out the construction without taking written permission from the landlord. In case notices had been received by the tenant, it was for him to have applied to the Landlord in writing for permission, failing which, he could have obtained the permission from the Rent Controller under the provisions of the Rent Control Act, which was not done by the respondent. This fact, therefore, stands established that the tenant had converted the dry latrine into flush latrine without the written permission of the landlord to which he had no right. `The only question which arises for consideration is as to whether the action of the tenant had materially affected or impaired the value or utility of the building in question. The relevant provision of Section 14(2)(iii) of the H.P. Urban Rent Control Act reads thus: “(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” Coming to the decision relied upon by the learned Appellate Authority in reversing the findings of the learned Rent Controller, reliance was placed on the - 6 - decision in Waryam Singh versus Baldev Singh, (2003) 1 Supreme Court Cases 59, in which the Apex Court after referring to some provisions of Section 13(2)(iii) of the E.P. Urban Rent Restriction Act, 1949 had observed that an order for eviction can be passed only if the landlord proves: (a) that the tenant had carried the construction; (b) that the same was without the consent of the landlord; and (c) that the value or utility had been materially impaired. In regard to the facts of the said case, the observations made in paras 15 and 16 are relevant, which are being reproduced below: “In the present case the question that arises is whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility, the appellant has led no evidence at all. The submission that no evidence was required to be led as it has to be inferred that the value or utility had been diminished is not acceptable. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In the absence of any proof of material impairment in value or utility, the High Court was right in concluding that no decree for eviction could be passed.” Before drawing the above conclusions, the Apex Court had referred to another decision in Dewan Chand versus Babu Ram, (1980) 2 Rent CJ 615, in which case the tenant had removed the rafters of the shop from the wall and placed a lintel thereon. The tenant had also constructed two walls on two sides of the verandah and fixed a door on the outer wall of the two sides. It was found, as a matter of fact, that the changes had caused cracks on the walls of the first floor. Because of this the Court held that the changes had impaired materially the value and utility of the shop. However, in referring to the case, it was observed that it has not been shown that as a result of the changes by - 7 - covering the verandah and constructing walls on two sides etc., the shop was damaged in any manner. While passing judgment in Waryam Singh’s case (supra), the Apex Court has made reference to several cases in which the nature of the construction raised had been changed or the damage had been caused to the premises in question by making alterations. One of such case referred to is Om Pal versus Anand Swarup, (1988) 4 SCC 545, in which the tenant had put up a wooden balcony in the showroom. It was held that the answer to the question whether there was a material alteration or not, depended upon the facts and circumstances of each case. It was held that the construction must be substantial and permanent in nature. In the said case, it was held that the construction did not materially alter the premises. Coming to the findings of the Apex Court in Waryam Singh’s case (supra), it was observed that in case of a shop, particularly, in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case, there is no proof like in Vipin Kumar versus Roshan Lal Anand, (1993) 2 SCC 614, discussed by the Apex Court in its judgment, that free flow of light and air had been stopped and, therefore, it was held that the findings of the High Court were right that no decree for eviction could be passed. Another decision relied upon by the learned counsel for the respondent is Parkash Chand and others versus Thakur Dass and others, 2004 (1) RCR 147, in which four rooms had been added by the tenant, apart from flush latrine, kitchen and bath room. It was held that it was a major construction - 8 - activity and would impair the value and utility from the point of view of the landlord. No decision to the contrary was cited by the learned counsel for the petitioner to the above decisions. A perusal of the decision in Waryam Singh’s case (supra) shows that the mere fact that the construction can be demolished is not a ground to hold that it had not affected or impaired the value and utility of the building in question. It was for the landlord to have substantiated as to in what manner the value or utility of the building has been impaired by the act of the tenant for which neither there is any statement or reasoning given by the landlord, nor any expert evidence has been led to substantiate this point. In the opinion of the Apex Court, it is necessary to substantiate this plea by some evidence for which the landlord had failed. It is true that the construction activity has to be undertaken from the point of view of landlord and the only thing that goes against the tenant is that for future construction activity in the vacant space, if any, the landlord may have to demolish the latrine and go in for construction in a fresh manner but that does not lead to the inference that the value of the building in question has decreased. As in the above cited case, when the verandah had been enclosed which added to the area of the shop, in the present case the construction of a flush latrine in place of dry latrine and not over new place will only add to the value of the building since the prospective tenants will be attracted to take the premises on rent in case there is provision for flush latrine in place of a dry latrine. There would be increase in rent also as and when the tenant vacates the premises. Therefore, it was for the landlord to - 9 - have led expert evidence to show as to how far the value of the building has been decreased due to the act of the tenant, in which the landlord has failed. Therefore, I see no grounds to differ with the findings of the learned Appellate Authority since the decision of the Apex Court fully applies to the present facts. In view of the above discussion, I accordingly hold that there is no merit in the petition filed by the petitioner which is dismissed accordingly. However, the parties are left to bear their own costs. December 31, 2008. (V.K. Ahuja), (TILAK) Judge.