IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.385 of 2001. Judgment Reserved on: 30.06.2008. Date of decision: 08.09.2008. Jodha Ram …Petitioner Versus Rahul Chauhan & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.G.D. Verma, Senior Advocate with Mr.Romesh Verma, Advocate. For the Respondents:Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. Dev Darshan Sud,J. This petition has been preferred by the tenant against the order of the learned Rent Controller as affirmed by the learned appellate Authority ordering the eviction of the petitioner-tenant herein from the suit premises. The landlord petitioned the Rent Controller under the provisions of Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987, (hereinafter referred to as the `Act’) on the allegations that the tenant-petitioner herein, had effected material 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 additions and alterations in the premises by raising permanent walls of brick and cement and constructed two rooms in the shop which are used by him for the residence of his servants. This construction had damaged the walls and floor of the building and amounted to acts committed by the tenant which have materially impaired the value and utility of the building. This construction has been alleged to have been carried out in the year 1991 without the permission of the landlord and to his prejudice. The other ground is for 10% statutory increase in the rent agreed to between the parties. The eviction was resisted primarily on the ground that the shop was taken on rent for the purposes of running an eatery serving tea and snacks etc. It was pleaded that temporary wooden partitions were constructed by the tenant for the purposes of making seating arrangement in the shop so that the customers could eat while being seated. The construction of the wall was admitted but the tenant pleaded that no damage was caused and the constructed portion could be removed without causing any damage to the building, the wooden partitions etc. were also temporary in nature and not such which can be said to have materially impaired the value and utility of the building. The landlord, Shri K.C. Chauhan, appeared as PW-1 and testified that a brick pillar had been raised inside the shop and the tenant had punctured the main 3 walls of the shop at-least 10 places in which “Ballies” (round wooden rafters) have been inserted for creating a ‘parchhati’ (loft). He proved on record photographs Ex.P-3 to Ex.P-16 showing the construction carried out and Ex.P-2 notice issued by the Municipal Corporation under Sections 208 and 207 of the Himachal Pradesh Municipal Act, 1968 calling upon the landlord to explain as to why unauthorized construction had been carried out by him. PW-2 Rahul Chaturvedi proved on record site plan Ex.PW-2/A showing the changes which have been made by the tenant. He stated that the construction carried out had endangered the stability of the building as the main walls had been punctured and the size of the shop has been reduced by 40%. The petitioner-tenant appeared as RW-1 and admitted the partition in the shop, creation of cabins, construction of brick wall of 4” width and also the placing of rafters for the purposes of creating a “Parchhati” (loft) above the partition. According to him these could be removed at any time. In his cross- examination he admitted having constructed a wooden wall as shown in Ex.P-6 and of making holes by puncturing the walls of the building. The learned Rent Controller held on the evidence that the wall is only 4” thick and in case a 3” hole(s) is made, the danger to the building would be self evident. 4 RW-2 Rajpal, retired SDO appeared as the expert of the respondent. He had prepared the site plan and report and stated in his evidence that the construction is not of such a nature which would endanger the building. The learned trial Court on consideration did not accept his evidence holding that his testimony was contrary to his report. On a conspectus of the entire evidence, the learned Rent Controller ordered the eviction of the petitioner herein from the demised premises. In the appeal preferred by the tenant to the appellate Authority, the entire evidence was re- appreciated. The Court held that construction of walls, pillars, cabins and “Parchhati” have been made by the tenant without the permission of the landlord and due to such acts / construction made there was material impairment in the value and utility of the building. The petition was accordingly dismissed. The tenant is now in revision before this Court. Learned counsel appearing for the petitioner- tenant has challenged the judgment on a number of grounds including the principle that the Courts below have misread the evidence and the deposition of the witnesses on record do not justify the conclusions arrived at. Learned counsel submits that this Court would re-appreciate the evidence exercising its powers under Section 24 of the Act as the findings are perverse. 5 PW-2 Shri Rahul Chaturvedi who appeared as an expert, has proved on record Ex.PW-2/A showing the changes made by the petitioner herein. He submits that in the demised premises changes have been made by placing partitions, some of which are of wood and the other are made of brick and cement. He says that the walls have been punctured by making holes in a number of places and round “Ballies” (rafters) have been inserted which has caused damage. The attic has been separated by rafters which have been placed after puncturing the wall which has damaged the stability of the building. The area of the shop has also been reduced by 40%. He says that the side walls of the shop are 4½ inches thick and the RCC beam rests upon this wall. He also says that these acts have materially damaged the stability of the structure. In cross-examination he admits that the rafters can be removed from the holes in which they have inserted in the wall and that the wooden partition can also be removed, but damage to the walls and building will still remain. On a suggestion that this structure was already in existence for the last 14-15 years, the witness has replied in negative. RW-2 has been produced as an expert by the respondent to prove that no damage has been caused to the walls. His testimony has not been believed by the learned Courts below and on a re-reading the entire evidence, I cannot take any different view. 6 Learned counsel appearing for the parties have placed reliance on various judgments of the Courts to show that what would constitute to the material impairment to the building. The evidence on the record does not suggest the conclusion as urged by the learned counsel appearing for the petitioner. The evidence is clear and unequivocal that the walls have been punctured, separate column has been raised from the ground to separate the “Parchhati” (loft) and the weight of the entire loft rests on the rafters which have been inserted in the walls after puncturing them. The walls are 4” thick and 3” deep holes have been punctured to rest the rafters thereon. In these circumstances, it cannot be said that the construction is of a nature which has not adversely affected the building or the structural stability of the building as has been proved by PW-2. Learned counsel submits that the eviction of a tenant cannot be ordered at the whim of the landlord. That is the statutory position. But at the same time the tenant cannot be granted the license to make such additions and alterations in the building which impair the value and utility of the premises. Learned counsel appearing for the petitioner has placed reliance on judgment of the Supreme Court in Om Parkash vs. Amar Singh and Another, AIR 1987 SC 617 to urge that where the nature of construction is purely 7 temporary and is not as such which would cause permanent damage to the building no eviction can be ordered. This was a case under the U.P. Cantonments (Control of Rent and Eviction) Act (10 of 1952). The Supreme Court, interpreted the term “alteration” by holding that:- “6. 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 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 Legislature does not provide for their eviction instead the construction so made would furnish ground for eviction only when they bring about substantial change in the front and structure of the building. Construction of a Chabutra, Almirah, 8 opening a window or closing a verandah by temporary structure or replacing of a damaged roof which may be leaking or placing partition in a room or making similar minor alterations for the convenient use of the accommodation do not materially alter the building as in spite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the constructions are substantial in nature and they alter the form, front and structure of the accommodation. It is not possible to give exhaustive list of constructions- which do not constitute material alterations, as the determination of this question depends on the facts of each case. … … … … … … …” He also urges in Waryam Singh vs. Baldev Singh, (2003)1 SCC 59 this principle has been reiterated. This was also a case under the East Punjab Urban Rent Restriction Act, 1949 and the provisions of the present Act are in parimateria with the provisions of that Act. The Court on the question of impairment of the value held:- “16. However, the question still arises 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 9 value or utility the appellant has lead no evidence at all. The submission has been that no evidence was required to be lead as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. 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 this case there is no proof, like in Vipin Kumar's case (supra), that free flow of light and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. 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. We, therefore, see no reason to interfere with the judgment of the High Court”. He submits that while exercising powers of revision under the Rent Act, this Court has jurisdiction to re-appreciate evidence and places his reliance on the judgment of the Supreme Court in P.S. Pareed Kaka and others vs. Shafee Ahmed Saheb, AIR 2004 SC 2049, which is a case under the Karnataka Rent Control Act holding that the revisional powers of the High Court includes the powers to re-appreciate 10 evidence and that High Court can interfere with findings of fact also. There is no dispute on this proposition. There is also no dispute about the fact that construction which does not materially impair the value and utility of the building as contemplated in Section 14(2)(iii) of the Act which reads:- “14(2)(iii).- that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land” an order of eviction cannot be passed. The evidence of this case establishes that the tenant has raised a column of brick and masonry, brick walls and wooden partitions. He has also punctured the two walls of the shop at a number of places to insert round wooden logs “Ballies” for support the loft which he has constructed. The walls are about 4½“ thick and 3” deep holes have been made for inserting round rafters “Ballies”. This part remains unrebutted. Surely puncturing the two walls at a number of places cannot be said to be an act which improves the material value and utility of building. PW-2 is clear when he says that even if the construction is removed, which the tenant says is temporary, the damage would still remain. He has stated in his evidence that the construction has caused damage to the stability of the building. In the facts 11 and circumstances, it cannot be said that the acts committed by the tenant are of such a nature which do not fall within the prohibition of the legislative intent. The case law cited is distinguishable. Even the Supreme Court has held that there is no hard and fast rules to judge the instability etc. that is to say that each case has to be decided according to its own fact. Learned counsel appearing for the respondents has placed reliance on judgment of the Punjab and Haryana High Court in Ashok Kumar vs. Banarsi Dass, 1991(1) RLR 627, judgment of this Court in Shri Kali Dass Vasudeva vs Shri Swaran Singh, 1981(2) RLR 141, holding that removal of tin roofing and a pole by the petitioner without the landlord consent does amount to causing material impairment to the property. In Radha Krishan vs. Amar Singh, 1999(2) RLR 439, it has been held that a construction of the “Parchhati” on wooden beams, which is not of a temporary character, the tenant would be liable for eviction. Other judgments need not be noticed because, as the law provides, this Court has to determine as to whether the tenant by committing such acts has materially impaired the value and utility of the building or not. I do not find any perversity in the consideration of the evidence by the Courts below. In the facts and circumstances of the case, this revision 12 petition is accordingly dismissed. There shall be no order as to costs. September 8, 2008. (Dev Darshan Sud) (aks) Judge.