1. Heard Km. Shaili Saxena, Advocate holding brief on behalf of Sri Vipin Sinha, learned counsel for the petitioner and Sri A.K. Goel, Advocate for respondent no. 2.
2. The dispute relates to a shop No. 251 situated at Mohalla Bazar Shahdana Road, Bareilly. The petitioner is the landlord of aforesaid shop and respondent no. 2 is tenant. The shop had two portions. On the back side, there was a covered room having a door and on the front side also it has a separate room with the door open on the road side.
3. The petitioner-landlord filed Suit No. 98 of 1991, seeking a decree of eviction of respondent-tenant from shop in question on the ground that he has made material alteration by demolishing the partition wall and door from back side room in the shop and has raised a new construction, making the two portions of shop as one and thereby not only has diminished its value but even the construction has been weakened and shop's utility and value has been reduced. The entire alteration has been made without any authority and consent of landlord and this alteration also caused the landlord to face a litigation with Bareilly Development Authority. On account of damage and material alteration to the accommodation in question the tenancy of respondent no. 2 was terminated vide notice dated 13.08.1991. which the tenant refused to receive and it was returned back with endorsement of refusal by postal department.
4. The Trial Court framed three issues and issue No. 2 relates to alleged material alteration, i.e., whether there is any substantial alteration causing disfiguring or reducing the utility or value of shop in question. The Trial Court recorded a finding in favour of landlord and also held that alteration has been made without consent of landlord and consequently, decreed the suit vide judgment dated 06.01.1995. The respondent no. 2, i.e., the tenant took up the matter in SCC Revision No. 3 of 1995. The Revisional Court, however, has reversed Trial Court's decision and dismissed the suit vide judgment dated 28.05.1996, hence this writ petition.
5. Learned counsel for the petitioner contended that the question, whether there is any material alteration causing disfiguring or reducing value or utility of building is a finding of fact and the Revisional Court has completely erred in law by interfering with such finding of fact, therefore, the impugned judgment is liable to be set aside.
6. In the alternative, it is contended that the findings recorded by Trial Court were neither perverse nor can be said to be based on no evidence and the mere fact that the alteration was of such nature that it resulted in a complete new construction, it cannot be said that since it is a new construction and has added beauty to the shop, there is no alteration or diminution. If an old building is completely erased and new building is raised, strength and show of new building would obviously be different but that would not protect the tenant from eviction on the ground of substantial alteration resulting in disfiguring the accommodation.
7. I propose to consider the second issue first and then will look into the question, whether Revisional Court was justified in interfering with findings of Trial Court or not.
8. The suit filed by petitioner-landlord was clearly on the ground for eviction provided in Section 20(2)(c) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"), which reads as under:
"20. (2) A suit for eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:
. . . . . . . .
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;"
(emphasis added)
9. The kind of alteration which was alleged to have been made in the shop in question by tenant has been pleaded in para 3 and 5 of the plaint, which read as under:
^^3- ;g fd oknh dh nqdku futk;h nks [kuh cuh FkhA nqdku ds fiNys fgLls esa tks fdokM+nkj dksBk Fkk og nks fgLlksa esa cuk Fkk vkSj mlds vkxs cM+k dksBk ftlesa lnj njoktk oktkfuc lM+d yxk Fkk dk;e FkkA izfroknh us lcdks rksM+ dj ,d u;h nqdku rkehj dj yh gS vkSj fiNys dksBs dk njoktk o pkS[kV ,oa nhxj veyk gVkdj [kqnZ cqnZ dj fn;kA 5- ;g fd izfroknh us fiNys fgLls nqdku ds chp esa njoktk o nhxj nks [kuh dksBs dh gVkdj mldh txg che Mky dj iwjh nqdku dh pkjks nhokjksa esa [kkWapk nsdj Q'kZ ls cuh 8 QqV dh ÅWapkbZ ij ,d u;k fyUVj iqjkuh Nr ds uhps c'kcy nwljh uFkh Nr cuk yh gS vkSj ,d u;k che lnj njokts ds Åij cukdj NTtk Hkh u;k cuk fy;k gS vkSj bl rjg oknh ds dCts dh nqdku vkSj izfroknh dh fdjk;snkjh okyh nqdku ds chp esa tks ikVhZ'ku nhokj [kMh gS mldh gkyr [kLrk vkSj [kjukd gks x;h gSA ;g lkjh rkehjkr izfroknh us fcuk btktr oknh ds f[kykQ dkuwu dh gS vkSj bl rkehjkr dh otg ls nqdku gktk dh ;wVhfyVh vkSj oSY;w ?kV x;h gS vkSj nqdku fMlfQxj gks x;h gSA ftlds djus dk izfroknh dks dksbZ vf/kdkj izkIr ugha Fkk vkSj bl dkj.k cjsyh fodkl izkf/kdj.k us izfroknh ds fo:) ,d eqdnek [email protected] dk;e dj fn;k gS vkSj izfroknh ds bl uktk;t rkehjkr dh otg ls cjsyh fodkl izkf/kdj.k oknh ds f[kykQ Hkh dkuwuh dk;Zokgh djus dks dne mBk jgk gSA** "3. That the shop of the plaintiff was two sided. The Attic (Kotha) with door which existed on the back-side of the shop was built up in two parts where front part of the Attic (Kotha) was big having a main gate towards the road. Respondent has constructed a new shop by demolishing and has dissarrayed the things by removing the door-frame & the door of the back-side Attic (Kotha) and other shop belongings.
5. That the respondent has removed the door and the other two side Attic (Kotha) which was in the middle of the back-side of shop, and in place of it has constructed a beam and constructed a new similar roof just below the old roof at a height of 8 feet from the roof by placing hen-coops in all the four walls and constructing a lantel. He has also created a balcony by constructing a new beam above the main gate. This way the condition of the partition wall which is between the plaintiff's occupied shop and respondent's rental shop has weakened and become risky. All these constructions were carried out by the respondent against the law and without permission of the plaintiff and due to these constructions the utility and value of the aforesaid shop has decreased and shop has become disfigured which the respondent had no right to do and for the same reason the Bareilly Development Authority has instituted a case no. 794/91 against the respondent and is taking steps for legal action against the plaintiff due to illegal construction carried out by the respondent."
(English translation by the Court)
10. Copy of written statement filed by tenant is not on record, therefore, it is difficult to look into the exact defence taken by respondent no. 2 but it appears that there was already a dispute between parties and tenant has filed Suit No. 372 of 1988 seeking injunction restraining landlord from evicting him except in accordance with law, from the accommodation in question. In the said suit, the landlord, in his written statement, pleaded, that tenant has caused certain damage to the accommodation. On the basis of pleading the Trial Court framed issue No. 2 as under:
^^2- D;k oknh us uokctku ls feydj fookfnr Hkou ls izfroknh dks fudkyus ds vk'k; ls mls dksbZ {kfr igqWapk;h gS\** "2. Whether the plaintiff in collusion with Nawabjan has caused any damages to the respondent in order to evict him from the disputed building?"
(English translation by the Court)
11. While discussing issue No. 2 the Trial Court had observed that PW 1, i.e., the plaintiff-tenant stated that he has got a ceiling erected below the original roof of shop which is a cemented construction. The observations read as under:
^^ftjg esa ih0MCyw0 1 us bl ckr dk o.kZu fd;k gS fd Nr ds uhps mlus ,d lhfyax yxok;h gS tks lhesUV dh cuh gSA** "In cross-examination, PW1 has mentioned that he has got constructed a cemented ceiling below the roof."
(English translation by the Court)
12. The suit was decreed vide judgment dated 08.10.1991 directing the defendant-landlord therein not to evict the plaintiff-tenant except in accordance with procedure prescribed in law.
13. Besides, in the present suit, i.e., 98 of 1991 the Trial Court appears to have obtained a Commissioner's report, i.e., City Amin Civil Court, Bareilly. The report dated 29.07.1992 reads as under:
^^layXu uD'ks es nqdku dh ekisa vafdr dh x;h gSa fookfnr nqdku tks nks [kuh gS ds chp esa pkS[kV fdokM+ u gksdj fdokM+ tks nks iYys dh gS uhps feys yxs gSa o Åij 'kh'ks ds fy;s Qzse ds cus gSa 'kh'ks ugha yxs gS tc eq[; xsV ij nksgjk njoktk vFkkZr 'kVj ds ckn 'kh'ks yxk Qzsenkj njoktk gSA nqdku ds vkxs tgka nqdku ds uke dk cksMZ yxk gSA mlds Åij 40 lseh0 pkSMk LySc cuk gS ftlds uhps Vhu dk cksMZ Qsulh gsj M~slj yxk gSA Q'kZ lhesUVsM gS] Q'kZ ls 235 eh0 dh ÅWapkbZ ij elkys ¼lhesUV] jsr vkfn ½ dh nqdwrh ¼lhfyax½ cuh gS ftldh eksVkbZ 10 ls0eh0 ukih x;h uD'ks esa v{kj , Lfkku ij lhfyax dk dqN [kqyk gqvk gS tgka ls mldh eksVkbZ ukih x;h o blh LFkku ls nqdku dh dVhnkj Nr fn[kk;h gS bl Nr dh lhfyax ls yxHkx ,d ehVj Åij gSA oknxzLr nqdku dh fLFkfr vUnj ls cgqr vPNh gSA nhokjksa ij IykLVj o lQsnh Hkyh Hkkafr gSA vUnj ls nqdku ,dne u;h yxrh gS ysfdu ckgj ls ns[kus ij nqdku dkQh iqjkuh gS] dfM+;ka xyus yxh gSA nqdku ds vUnj ls ns[kus ij nqdku dk ewY; c<+k gS de ugha gqvk gSA** "Measurements of the shop are shown in the enclosed sitemap. There is no door-frame with door in the middle of the two sided disputed shop but a 2-pan door fixed in the lower part, and above the door there is a frame for glasses but glasses are not fixed therein. Main gate has dual doors i.e. there is a framed door with glasses fixed therein followed by a shutter.
In front of the door where shop name-board is fixed has a 40cm wide slab made above it, and below this slab there is a tin board with the name Fancy Hair Dresser written on it.
Floor is cemented, there is a cemented (with cement, sand etc.) ceiling (Dukuti) constructed at a height of 235 metres from the floor which was measured as 10cm thick. At point 'A' in the sitemap, small part of the ceiling is shown open from where its thickness was measured. From this very place, Katidaar roof of the shop is shown which is about 1 metre above the ceiling of this roof.
Internal condition of the disputed shop is very good. Walls are found in well plastered & whitewashed condition. Shop appears to be very new from inside but it appears to be very old if seen from outside, rafters have started rotten.
On seeing the shop from inside, its value has increased but decreased."
(English translation by the Court)
14. The Trial Court has referred to the defence taken by respondent no. 2 in his written statement mentioning that the shop was in his tenancy for the last 35 years. The landlord earlier made an attempt to evict tenant by filing an application before Prescribed Authority which was rejected on 05.02.1977 and Appeal No. 67 of 1977 was also dismissed by Additional District Judge, Bareilly on 19.08.1978. Thereafter the landlord himself caused damage to building and deliberately set the shop at fire which caused serious damage to tenanted building. For its repair, etc., the tenant filed Suit No. 437 of 1988 and pursuant to order passed therein, necessary repair work was carried out in the shop in question. Thereafter the value and utility of shop has been enhanced for almost 10 times. The repair has not resulted in any material alteration of accommodation. The shop is still in two parts. No wall has been removed and dividing beem is still existing. A cemented ceiling was erected with the understanding of landlord sometimes in 1975 which caused increase of rent from Rs. 12 to Rs. 30, and at the same time, a shutter was installed. The cost in raising of cemented ceiling and shutter was borne by tenant while doors and its frame were taken away by landlord himself. The Trial Court has also referred to the permission granted by Munsif Court by its order dated 15.05.1991 in Suit No. 437 of 1988 that leaving the ceiling/roof of disputed shop the repair of walls can be carried out by tenant and such repair shall not be obstructed by landlord. The statement of PW 1-landlord in the suit in question clarifying the kind of construction/alteration made by tenant has been noticed in the Trial Court's judgement which reads as under:
^^ih0MCyw0 1 ;wlqQ vyh us l'kiFk c;ku esa ;g dgk gS fd fiNys dejs dh pkS[kV o fdokM+ fudky yhA nksuksa dejksa ij ,d che Mky dj fyUVj Mky fy;k gSA nqdku ds dM+h dh Nr 10 fQV Åaph FkhA fyUVj Nr ds rhu fQV uhps Mkyk gSA fyUVj pkjks nhokjksa dks [kksndj Mkyk gSA fiNys okys dksBjh [kRe djds gky cuk fy;k gSA** "PW1 Yusuf Ali has stated on oath that the door-frame & the door of the back-side room were removed. A lantel has been constructed with support of a beam over both the rooms. The raftered roof was 10 feet in height. Lantel has been constructed 3 feet below the roof. Lantel has been constructed by digging all the four walls. A hall has been constructed by removing the back-side closet (Kothri)." (English translation by the Court) (emphasis added)
15. The statement of respondent no. 2-tenant has also been mentioned in the Trial Court's judgment, which reads as under:
^^izfroknh jQhd vgen us vius l'kiFk c;ku esa ;g dgk gS fd nqdku esa 'kVj o che ekfyd us yxok;s Fks rFkk mls lhfyax dh ijeh'ku nh Fkh vkSj dgk fd mls lhfyax dk iSlk [kpZ djuk gksxkA** "Respondent Shafiq Ahmad has stated on oath that the shop owner had got fixed the shutter & beam in the shop and has given permission to him for constructing a ceiling and was told that he would have to bear the cost of the ceiling construction."
(English translation by the Court)
16. The Trial Court has recorded two important findings which have not been touched or reversed by Revisional Court. First, no consent has been obtained from landlord in making structural change and second, the disputed construction has been raised sometimes after August, 1988. The pleadings and evidence has been assessed by Trial Court and it has recorded finding in respect to structural alteration as under:
^^miyC/k lk{; ls ;g Li"V gks tkrk gS fd izfroknh us fookfnr nqdku ds Hkhrj ,d nwljh fyUVj dh Nr iqjkuh Nr ds rhu fQV uhps u;h rkehj dh gS vkSj bl gsrq mlus fookfnr nqdku dh nhokj esa [kkaps cukdj fyUVj Mkyk gSA ftlls fookfnr nqdku dh nhokj detksj gks x;h gS vkSj lkFk gh lkFk fookfnr nqdku ls oknh ds v/;klu okyh o LokfeRo okyh nqdku dh tks la;qDr nhokj gS og Hkh detksj gks x;h gSA blds vfrfjDr izfroknh us nqdku dh 'kDy Hkh cny nh gS vkSj tks nks [kuh Fkh mlds chp dh nhokj gVk dj che Mkydj chp dh nhokj o njokts lekIr dj fn;s gSaA** "It is clear from the available evidence that the respondent has constructed a new lantel roof in the disputed shop 3 feet below the old roof and for this purpose he has constructed a lantel by placing hen-coops in the disputed shop wall. Due to this reason wall of the disputed shop has weakened alongwith this the joint wall has also weakened which is between the disputed shop and the shop occupied & owned by the plaintiff. Apart from this, respondent has also changed the appearance of the shop after removing the door & the wall from the middle of the two sided shop by constructing therein a beam."
(English translation by the Court)
17. Having said so it has proceeded to consider whether such structural changes have resulted any disfigurement or reduction of the value of shop in question and has recorded a finding in favour of landlord.
18. The Revisional Court has appreciated the evidence in respect of structural changes and has observed that shop was old and substantially damaged, needed repair work which was allowed by court but no permission was granted for repair of ceiling/roof. However, in respect of exact structural obstruction etc. made by tenant, the Revisional Court has not attempted to reverse findings of Trial Court but it has observed that the question, whether such structural obstruction has resulted in disfigurement or reducing utility and value of shop, being a mixed question of fact and law, can be looked into by Revisional Court. I, therefore, will consider the correctness of Revisional Court's judgement in the light of fact that it has not interfered with findings of facts recorded by Trial Court about the structural changes etc., made therein, but has interfered with the further inference drawn therefrom, whether it would result in disfigurement or diminution of utility or value of shop or not. In this regard the view taken by Revisional Court that the findings relating to structural alteration are findings of fact cannot be faulted.
19. It is true that, what construction has actually been made, is a finding of fact, which cannot be interfered in Revisional jurisdiction unless it is shown that the findings are not based on any evidence or are perverse or there is any error on jurisdictional fact or law.
20. The scope of judicial review while exercising revisional jurisdiction under Section 25 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887") has been considered time and again and it is said that the revisional jurisdiction of the court under Section 25 is wider than Section 115 of Code of Civil Procedure. If the findings recorded by Trial Court are not based on any evidence or there is any manifest error in respect to jurisdictional fact or is otherwise vitiated by error of law, the Revisional Court may interfere with such findings and record its own finding but it has got no jurisdiction to reappraise the evidence and reverse findings of fact recorded by Trial Court on questions of fact and substitute its own findings as if it is sitting in appeal. In case the Revisional Court is not satisfied with findings of fact recorded by Trial Court, in appropriate case, at the best, it could remand the matter to Trial Court but on questions of fact, cannot substitute its own findings. Reference may be made to the authorities of this Court in Smt. Ram Piyare Vs. Budhsen and others, AIR 1977 All 391; Smt. Vidyavati Vs. Tulsi Ram Saxena, 1979 ALJ 552; M/s Gur Narain Jagarat Narayan and Com. Vs. M/s Motor and General Stores Ltd. 1980 ALJ 509; and, Sardar Gurdeep Singh Vs. VIth Additional District Judge, Kanpur Nagar and others, 1997(2) AWC 756. It is the inference which can be discerned therefrom about the utility, value, disfigurement etc. which can be looked into by Revisional Court being mixed question of law and fact.
21. Having said so I proceed further. Section 20(2)(c) of Act, 1972, before it could be invoked to evict a tenant from a let out building, the landlord needs to prove 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 it is likely to diminish the value of property or utility or to disfigure it.
22. 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.
23. 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.
24. Be that as it may, the subsequent opinion found which is to be formed by a Court, i.e., the effect of construction on accommodation, 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. The finding 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.
25. 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.
26. 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.
27. 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 is 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 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 landlord and not of the 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 has removed the full size door of one shop and merged the shop into open part of verandah and 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."
28. 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.
29. The shop as was let out to tenant was a two parts shop having two rooms, i.e., an internal room with dividing wall, door and door frame affixed thereto and a outer room. The door frame and doors affixed with dividing wall have been removed. This removal could not have been possible without digging the cemented construction with which the door frame was affixed. A two part shop thus has turned into a single shop. Besides, a separate cemented ceiling has been raised, and as observed by Trial Court, it has been done by making grooves in the existing walls of shop to provide support to new cemented ceiling. The construction raised by tenant cannot be said to be in the nature of a temporary structural change. The construction having been made by using cement etc. is obviously in the nature of a permanent construction/alteration. Putting a temporary partition wall removable without any damage to existing structure may not result in diminishing the utility of two shops but where the construction has been made which is of permanent nature by taking out existing construction making substantial change in the existing shop etc., it is for the tenant to establish that it has not diminished or utility of building is disfigured.
30. 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."
31. 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."
32. 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"
33. Besides above, the tenant has also raised a separate ceiling below the original existing wall. It is not a temporary kind of false ceiling but it is a cemented ceiling erected after making grooves in the walls of shop so as to provide support. By making grooves the strength of walls obviously has been diminished. It is not the requirement that such diminution must result making the structure dilapidated or likely to fall immediately but the apparent requirement is that the structural change has diminished the value. Anything which has weakened the strength of walls will have to constitute as diminution of value of accommodation. Such construction of ceiling does not come within the purview of necessary repair work.
34. The relevant consideration to attract Section 20(2)(c) of Act, 1972 is whether the constructions are substantial in nature and they alter the form, front and structure of accommodation. The substantial alteration contemplates change of substantial nature affecting the form and character of building. A construction made by digging the walls or floor of accommodation making a permanent construction would 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 not resulted in diminishing the value of building, has relied on the opinion of City Amin Commission's report which is in respect to 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 disfigured or its value is likely to diminish or reduced. This is evidently erroneous. In my view, the Revisional Court has clearly erred in law by interfering with the judgement of Trial Court in the facts and circumstances of this case.
35. In the result, the writ petition is allowed. The impugned revisional order dated 28.05.1996 is hereby quashed and the judgement of Trial Court dated 06.01.1995 is hereby restored and affirmed.
36. No costs.
Order Date :-06.11.2012 AK