1. Heard Sri Atul Dayal, learned counsel for the petitioner and Sri Anoop Trivedi, learned counsel for the respondents.
2. This is a tenant's writ petition arising out of the ejectment proceedings initiated by respondent no. 1-landlord of the premises in dispute on the ground of default in payment of rent and structural alteration. It was pleaded that on the north side of shop in dispute there was an adjoining vacant land having no passage for egress and ingress being surrounded by other shops and constructions. The petitioner-tenant after opening a door in the northern wall, installed a window and western wall was removed to install a gate and thus making an entry to the said open land, constructed one room on the open land. He also laid a low rise roof below the original roof in the disputed shop and thereby disfigured and structurally altered a 45 years old construction, resulting in diminishing and altering its value.
3. The Trial Court vide judgment dated 30.07.2011 decreed the suit directing petitioner-tenant to vacate the premises in dispute. The suit was decreed on the ground of structural alternation, i.e., a ground under Section 20(2)(c) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"). On the question of default in payment of rent, the findings were recorded in favour of tenant.
4. The petitioner-tenant filed SCC Revision No. 16 of 2011 but the same was dismissed by Revisional Court vide judgment dated 03.09.2012.
5. Sri Atul Dayal, learned counsel for the petitioner contended that mere opening of a window or gate in the existing walls would not result in making any structural alteration of the shop in dispute and would also not result in diminishing value and utility of the shop in dispute so as to attract ground for ejectment under Section 20(2)(c) of Act, 1972. The judgments of courts below, therefore, are erroneous and liable to be set aside. In support of his submissions, he placed reliance on two decisions of this Court in Ram Chandra Vs. Musai and another, 1982 All.L.J. 1295 and Yashpal Gupta and others Vs. Third Addl. District Judge, Moradabad and others, 1986 ARC 476.
6. The short question up for consideration is, whether the decision of courts below with respect to the ground under Section 20(2)(c) of Act, 1972 can be said to be so manifestly erroneous so as to justify interference in writ jurisdiction under Article 226 of the Constitution.
7. Section 20(2)(c) of Act, 1972 would be attracted incurring liability for ejectment of tenant from the let out building only when landlord is successful in proving the following:
(1) There is no permission obtained by tenant in writing from landlord;
(2) The tenant has made or permitted to make some construction or structural alteration in the building; and (3) Construction/structural alteration, as above, is such as is likely to diminish the value of property or utility or to disfigure it.
8. So far as consent part is concerned, the concurrent finding is that there is no such consent available with tenant. It is also not in dispute that certain construction/structural alterations have been made by tenant in the shop in question. Therefore, first two aspects as above are satisfied and this Court has to find out whether the inference drawn by courts below about factor (3) above is just and valid or is so manifestly illegal or illogical or erroneous so as to justify this Court's intervention in writ jurisdiction.
9. This Court in Dr. Jai Gopal Gupta Vs. Bodh Mal, 1969 ALJ 477 held that in a suit filed for eviction on the ground of "material alteration", the Court has to first record a finding about the actual construction made by tenant and such finding will be a finding of fact. Having done so, the court thereafter would have to form an opinion whether such constructions have "materially" altered the accommodation or is likely to cause substantial damage to its value. That was the requirement under statute, as it was up for consideration in Dr. Jai Gopal Gupta (supra) but the language of Section 20(2)(c) has removed the word "material alteration" and it is now differently worded. Now the term is "construction" or "structural alteration". The two terms namely construction or structural alteration are much lighter requirement than the term material alteration. Now every construction or structural alteration, whether it can be said to be "material" or not would attract the mischief under Section 20(2)(c) of Act, 1972 provided it further satisfy the their requirement namely diminish the value of the property or utility or to disfigure it.
10. Be that as it may, the subsequent opinion, which is to be formed by a Court, i.e., the effect of construction/ structural alternation on accommodation about its value, utility etc. is a finding involving a mixed question of fact and law. This has to be determined on the application of correct principle of law. This has been said by Apex Court in Om Prakash Vs. Amar Singh, AIR 1987 SC 617.
11. The findings regarding alteration/ structural changes made by tenant in accommodation in question as recorded by Trial Court, therefore, would have to be taken final since it is finding of fact. The Revisional Court hereat has also not pointed out anywhere in the revisional judgment that the said finding of fact is based on no evidence or that it is perverse or there is otherwise any error or jurisdictional fact. To this extent no interference needs in this case.
12. In Gurbachan Singh and another Vs. Shivalak Rubber Industries and others, 1996(2) SCC 626 the Court said that finding of Trial Court in respect of construction would be finding of fact but the question, whether alleged additions and alterations has materially impaired the value and/or utility of premises is a mixed question of law and fact which has to be determined on the application of correct principle.
13. In Vipin Kumar Vs. Roshan Lal Anand and others, 1993(2) SCC 614 the Court said that impairment of value or utility of building is to be seen from the point of view of landlord and not that of tenant.
14. 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. It can thus be said that to attract Section 20(2)(c) it has to be established that the tenant has committed such acts of construction or structural alteration as are likely to diminish the quality, strength or value of building or rented land to such an extent that intrinsic worth or fitness of the building or 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 landlord and not of tenant or any one else. This aspect has also been reiterated by Apex Court in Gurbachan Singh (supra) in para 12 of the judgement. In Gurbachan Singh (supra) also the tenant had removed full size door of one shop and merged the shop into open part of verandah. All these activities were held to be a constructional alteration impairing material value and utility of building. The Court observed:
"14. . . . . . then the rest of the construction, additions and alterations of the 5 shops and the verandah in front of the said shops of a permanent nature, will certainly amount to acts as have or likely to have impaired materially the value or utility of the building/premises let out to them. . . . . . . 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."
15. Now the only question left for consideration is whether structural alterations/constructions made by tenant in the shop in question have resulted in either disfiguring the shop or its value or utility is likely to diminish or actually has diminished.
16. While considering issue no. 2, relating to structural alteration resulting in diminishing the utility, value etc. of the accommodation in question, the Trial Court has recorded a finding in favour of landlord, which has also been confirmed and reiterated by Revisional Court. This is evident from para 14 of the judgment, and reads as under:
"14. So far as material alternation is concerned, it is admitted to both parties that firstly one shop was given in tenancy of late Rajendra Kumar on rent of Rs. 100/- pere month. Thereafter, one and half shop was given in tenancy of defendant and rate of rent was enhanced to 125/- and after that rate of rent was enhanced to Rs. 200/- per month for new construction. This fact is clear from receipts C-40 to C-52, which were filed by defendants. It is also admitted fact that one window and one gate were fixed in northern wall. It is also admitted fact that room and tin shed were also exited on spot over open land of plaintiff. Learned counsel for revisionist vehemently argued that when rate of rent was enhanced 200/- per month, a room and tin shed on vacant land were included in new construction and window and door were also existed and they were in tenancy of tenant. I perused the receipt C-40 and C-52 and found that one shop and half shop and lastly one and half shop is mentioned as new construction in these receipts, but room and tin shed not mentioned in these receipt. When new construction is mentioned in receipts, and if room and tin shed was in tenancy of defendant on consent of plaintiff or his father should necessarily be mentioned in the receipts regarding room and tin shed, but it is not mentioned in these receipts. Defendants have not filed any written document regarding written permission or consent of plaintiff or his father regarding room and tin shed. Learned counsel for revisionist has further submitted that tin shed and room are not visible from road and it cannot be said that such construction diminish the value and utility of disfigure the shop. I perused the evidence of parties and found that lintal of the room was fixed in the wall below lintal of the shop and tin shed is fixed in the wall of room. Shop of plaintiff is disfigured and its value utility is also diminished. In my view learned trial court has rightly decided the determining point of alteration and committed no illegality."
17. These findings have not been shown by learned counsel for the petitioner to be perverse or contrary to record. Therefore, this Court will have to proceed to consider these findings to be final and has to proceed only to the extent to find out, whether the kind of alteration, addition etc. made by petitioner-tenant would justify an inference of disfiguring or diminishing of the value and utility of shop in question. Both the courts below, on this aspect also, have taken a view in favour of landlord.
18. The petitioner-tenant after making permanent construction/alternation in the shop in question has extended it to the adjoining open land making it open for access to the side of open land. The shop is easily accessible to open land adjoining. The permanent constructed walls though partly removed, so as to open a window and a gate, but this cannot substitute the kind of security earlier available from two walls to shop in dispute. The construction is not temporary in nature but permanent. The question of diminishing the value has to be looked into from the angle of landlord and not the person responsible for doing so.
19. In Ram Chandra (supra) Hon'ble N.N. Sharma, J. considered the question, whether the nature of alteration was a "material alteration" or not but this Court has no hesitation in observing that in Section 20(2)(c) the landlord is not required to prove "material alteration" but he has to show a "structural alteration" made, having the effect of disfigurement or diminishing the value or utility of rented building. The word "material alteration" does not find place in Section 20(2)(c) and, therefore, various authorities relied in Ram Chandra (supra), in my view, also would have no application to the case in hand, governed by Section 20(2)(c) of Act, 1972.
20. In Yashpal Gupta (supra) the Trial Court took the view that mere opening of a door in the wall may result in diminishing the value and utility of shop but the Revisional Court took a different view. This Court confirmed Revisional Court's view instead of Trial Court. The question, whether opening of door in a shop would diminish the value or utility of shop or not, has to be looked into from the facts and circumstances of each and individual case and it is for this reason, i.e., in para 6 of the judgment in Yashpal Gupta (supra), in the context of that particular case, the Court said, that, "possibly" it shall not diminish its value and utility and upheld the view taken by Revisional Court. The aforesaid decision cannot be said to lay down a rule of thumb that in no case it shall result in diminution of disfigurement of the value of shop. Moreover, the construction/structural alternation in the case in hand is not a mere opening of gate and window but both two things have been done in two different walls and, therefore, the shop has been substantially altered also. When a construction is demolished, may be partially, it is for tenant to prove that it is not resulted in disfigurement or diminishing the value and utility of building.
21. In Ashok Kumar and others Vs. Additional District Judge, Bareilly and others, 1993(1) ARC 181 this Court in para 11 has observed:
"11. These are the cases where the partition wall was raised. It was a construction and the question was whether such constructions amounted to diminishing its value or utility or it disfigured the building. They were not the cases where certain constructions were demolished. In a case where the constructions are demolished and there is no justificable reason to demolish any portion of the building, it is for the tenant to establish that it has not diminished or likely to diminish the value, utility of the building or disfigured it. The case where the building or any portion of it is in such a dilapidated condition that the tenant has to remove the same, the position may be different but to demolish any portion of the building for his own purposes shall reduce the utility and the value of property. The value of the shop to the extent of value of the wall removed by the tenant is diminished. Further in case there are two shops and intervening wall is removed, the existence of two shops is reduced into one shop and their utility as two shops are affected."
22. The Court relied on an earlier decision of Hon'ble N.D. Ojha, J. (as His Lordship then was) in Nanak Chand Vs. Om Prakash and others, 1983(2) ARC 135 where the partition wall intervening the two shops was removed and this Court held:
"When a partition wall was constructed between the two shops belonging to co-owners with the result that respondent No. 1 became the owner and landlord of the shop in dispute exclusively and ceased to have any connection with the adjoining shop there can be no manner of doubt that the removal of the petitioner wall which converted two independent shops into one single unit would come within the purview of structural alteration in the building. Likewise, if the partition wall between the two shops were removed there seems to be no doubt that the value of the shop at any rate, to the extent of the value of the wall removed by the tenant apparently diminished. Thus, it was clearly a case where provisions of Section 20(2)(c) of the Act were attracted."
23. Similar observations came to be made in a case arising out of Section 3(c) of U.P. Temporary Control of Rent and Eviction Act, 1947 in Kishan Lal Vs. Ram Babu, 1970 ALJ 1154 where the Court held:
". . . . . even though by pulling down the partition wall between two shops front of the structure might not have changed, still the structure involved in the case had gone an important change and by demolishing the partition wall the tenant altered two different accommodations and converted them into one accommodation and that amounted to material alteration and the tenant was liable for ejectment on that ground"
24. The relevant consideration to attract Section 20(2)(c) of Act, 1972 is whether the constructions are substantial in nature and alter the form, font and structure of accommodation. The alteration contemplates change of substantial nature affecting the form and character of building. A construction made by digging walls or floor of accommodation making a permanent construction would normally fall within the mischief which has been made a ground for eviction under Section 20(2)(c) of the Act, 1972. Whether the value or utility has diminished or not is not to be seen from the perception of an individual but it has to be seen from general point of view and, in particular, with that of the landlord. In the present case, the Revisional Court, in order to record its opinion that construction in question has resulted in diminishing the value of building, has relied on the opinion of City Amin Commission's report which is in respect to the new construction and the effect experienced by an individual therefrom and not from the point of view, whether existing old structure has been substantially altered or stood disfigure so as to likely or actually diminish or reduce its value etc. In my view, the Revisional Court has rightly confirmed the judgement of Trial Court in the facts and circumstances of this case.
25. Looking to the facts and circumstances of the case and also the concurrent findings recorded by courts below, I am not satisfied that it is a fit case where this Court would be justified in interfering in its writ jurisdiction by taking a view that courts below have committed such manifest error which may justify interference in writ jurisdiction.
26. The writ petition, therefore, lacks merit. Dismissed. No costs.
Dt. 05.12.2012 AK