Judgment : Tenant in R.C.O.P.No.1260 of 1993 on the file of Rent Controller XI Judge, Court of Small Causes, Madras, is the revision petitioner. In this revision petition, court is concerned only about one ground of eviction i.e., under Sec.10(2)(iii) that the tenant has committed or caused to be committed such acts of waste as are likely to impair materially the value or utility of the building. 2. According to landlord, tenant has demolished the walls, changed the roof and has committed such acts of waste that have materially affected the value and utility of the building. 3. Exs.P-13, P-14 and P-15 are various photographs and its negatives. To substantiate the case that tenant has committed act of waste, landlord got himself examined and also the photographer who has taken the photographs. Against the evidence of landlord, tenant also led evidence as D.W.1. 4. After evaluating entire evidence, Rent Controller was of the view that mere production of photographs are not sufficient to prove that the value and utility of the building is materially affected and there must be some independent evidence to substantiate the same. On the ground that the case has not been substantiated, the same was found against landlord. 5. Against the order of Rent Controller, landlord filed R.C.A.No.691 of 1996 on the file of the Appellate Authority. Appellate Authority was of the view that landlord has substantiated his case and on the basis of evidence already adduced, ground has been made out for eviction. It is against the said finding, tenant has come to this Court with this revision petition. 6. Sincecaveat was entered by respondent, I heard the revision at the admission stage itself with consent of parties. 7. Learned counsel for petitioner relying on the decision reported in R.R.Dinakaran v. S.L.Chinna Kuppuswamy R.R.Dinakaran v. S.L.Chinna Kuppuswamy R.R.Dinakaran v. S.L.Chinna Kuppuswamy , 99 L.W. 678 contended that the acts alleged will not be a ground for eviction. I will come to the decision after considering the law on this point. 8. In a recent decision of the Honourable Supreme Court reported in Rafat Ali v. Sugni Bai , (1999)1 S.C.C. 133 a case coming under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, in paragraphs 19 and 20, their Lordships held thus: “19. The third ground for eviction is related to causing damage to the building. 8. In a recent decision of the Honourable Supreme Court reported in Rafat Ali v. Sugni Bai , (1999)1 S.C.C. 133 a case coming under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, in paragraphs 19 and 20, their Lordships held thus: “19. The third ground for eviction is related to causing damage to the building. For damage to the building to amount to a ground for eviction, its proportion must be as delineated in clause (iii) of Sec.10(2) of the Act; “That the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building.” All acts of waste do not amount to a ground for eviction. It is only those acts of waste which would very probably impair the value of the building or its utility. The word “likely” in the above clause must be understood as a condition which is reasonably probable that such acts would cause impairment to the value or utility of the building. However, it is not enough that some impairment has been caused to the building. However, it is not enough that some impairment has been caused to the building. The value of the building or utility thereof should have been lessened in a reasonably substantial degree. Then only can it be said that the acts of waste are likely to impair the value or utility of the building “materially”. In Om Pal v. Anand Swarup , (1988)4 S.C.C. 545 the court while considering a similarly worded clause in another rent Control enactment, has observed thus: (S.C.C. Headnote) “In order to attract Sec.13(2)(iii), the construction must not only be one affecting or dismissing the value or utility of the building but such impairment must be of a material nature, i.e., of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. The burden of proof of such material impairment is on the landlord.” [Italics supplied] 9. It is clear from the above case that the burden of proof of such material impairment is on the landlord. 10. The burden of proof of such material impairment is on the landlord.” [Italics supplied] 9. It is clear from the above case that the burden of proof of such material impairment is on the landlord. 10. In this case, tenant himself had admitted that he has changed the entire roof; some of the walls of the building also had to be replaced and that is clear from various photographs filed by landlord. It is the case of tenant that the building was in a damaged condition and what he has done is only improvement thereby enhancing the value of the building. 11. In Vipin Kumar v. Roshan Lal Anand , (1993)2 S.C.C. 614 a case coming under East Punjab Urban Rent Restriction Act, their Lordships of the Honourable Supreme Court considered this question. In that case, tenant had put up a wall and put up a door and flow of air and light was stopped and also removed certain fixtures. An argument was taken before the Honourable Supreme Court that landlord should prove that how his acts has materially affected and so long as no evidence is adduced by landlord, tenant is not liable to be evicted. Their Lordships held that when certain facts are proved, an inference could be drawn as to whether those acts will affect the value and utility of the building permanently. The argument put forward before the Honourable Supreme Court was that Rent Controller should not make inference and Rent Controller has to independently consider and exercise his discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Rent Controller to order eviction in his favour. The said contention was rejected by the Honourable Supreme Court. The relevant portion of the judgment reads thus: “The question, therefore, is whether the finding of courts below which concurrently found that the appellant had constructed a wall in the verandah which materially affected the value or utility of the shop is vitiated by law. The building consists of two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore it is a finding of fact which we cannot evaluate on the evidence and upset that finding. The building consists of two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore it is a finding of fact which we cannot evaluate on the evidence and upset that finding. It was also found that the wall was constructed without the permission of the landlord. Due to construction the value or utility of the building has been materially affected. Sec.13(1) provides thus: “A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenant, except in accordance with the provisions of this section, or in pursuance of an order made under Sec.13 of the Punjab Urban Rent Restriction Act, 1947 as subsequently amended”. Clause (iii) of Sub-sec.(2) of Sec.13 provides that “if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land”, the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application, It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of clause (iii) of Sub-sec.(2) of Sec.13 is impairment of the building due to acts committed by the tenant an the second limb is of the utility of value of the building has (Sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises. It is contended by Mr.Prem Malhotra that the landlord should prove as to how it is materially affected and that there is no evidence adduced by the landlord. We find no force in the contention. By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that Sub-sec.(2) of Sec.13 gives discretion to the Rent Controller to order eviction while in the cases covered under Sub-sec.(3) of Sec.13 it is made mandatory to direct eviction of the tenant. Therefore, the Rent Controller has to independently consider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the controller to order eviction in his favour. The landlord had not proved such facts in his favour. Therefore, the court had committed illegality in granting the decree of ejectment. We find no force in the contention, Undoubtedly the statute, on proof of facts, gives discretion to the court, by Sec.13(2) and made mandatory in case covered by Sec.13(3), to order eviction, In a given set of facts the Rent Controller despite finding that the tenant committed such acts which may impair the value or utility of the building yet may refuse to grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may not warrant eviction and then the burden shifts on to the landlord to rebut these facts or circumstances. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellant. So no fault can be laid at the Rent Controllers failure to exercise the discretion… ” [Italics supplied] 12. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellant. So no fault can be laid at the Rent Controllers failure to exercise the discretion… ” [Italics supplied] 12. It is clear from the above decision that impairment of value or utility of building is to be considered from the point of landlord and not of the tenant. Tenant may contend that is an act of improvement. But that is not to be considered while we interpret the section. 13. In one of the earlier decision of Punjab and Haryana High Court reported in Banarsi Dass v. Sunder Das , 1969 R.C.J. 32 tenant was permitted to make necessary repairs. Under the guise of making repairs, 3/4th of the shops was constructed and after laying new foundation certain walls were also put up, roof were also removed and one or two walls were also removed. In eviction petition tenant contended that his act only increased the value and utility of the building. This point was rejected by the Punjab and Haryana High Court. In para.5 of the judgment, their Lordships held thus: “On the conclusion, above, the question that arises for consideration is whether the ground of eviction as in Sec.13(2)(iii) of East Punjab Act 3 of 1949 is attracted to this casee The requirement of the ground is that such acts of th tenant be proved as are likely to impair materially the value or utility of the building or rented land in this case the demised shops. If I understand this right, it has reference to the demised property as let. It there are acts of the tenant which are likely to impair materially the value or utility of the demised property as let, this ground would be attracted. Now, if a demised property is wholly or substantially reconstructed by a tenant, it is quite likely that instead of its value or utility being materially impaired the same may be enhanced by such reconstruction. By this device, however, the tenant cannot escape eviction on the ground as in Sec.13(2)(iii) of East Punjab Act 3 of 1949. Now, if a demised property is wholly or substantially reconstructed by a tenant, it is quite likely that instead of its value or utility being materially impaired the same may be enhanced by such reconstruction. By this device, however, the tenant cannot escape eviction on the ground as in Sec.13(2)(iii) of East Punjab Act 3 of 1949. If his acts are such that the original demised premises have practically ceased to exist and in their place almost a new building has come into being, then what was let by the landlord to him has been materially destroyed by his acts and the value or utility of the demised property as let has, in such a case, been materially affected. It is in this approach that I consider that the ground in Sec.13(2)(iii) of East Punjab Act 3 of 1949 has been proved in this case, and the authorities below were not right in denying relief to the applicant landlord. The tenants-respondents in the present case have so acted as to substantially reconstruct the demised shops, although perhaps in the same shape as the original shape of the demised shops, but this act of theirs goes beyond the contract between that parties for repairs of the demised shops. Since they have, in substance, destroyed the original entity of the shops, they have done acts which, to my mind, have impaired materially not only the utility but also the value of the demised shops as let at the time the contract of tenancy was entered into between the parties.” 14. In Damodaram v. Loganatha Damodaram v. Loganatha Damodaram v. Loganatha , A.I.R. 1956 Mad. 54 their Lordships considered this question under Madras Buildings (Lease and Rent Control) Act (Act 15 of 1946), In that case also tenant without previous consent of landlord constructed a masonry overhead tank with a heavy dead-weight on the open terraced roof without providing proper support and has also illegally constructed a shelter close to the said tank on the open terraced roof. The question was whether it is an act of improvement or act of waste making liable to be evicted. Rent Controller as well as appellate authority held that construction of overhead tank is act of waste and the same has impaired the value of the building materially. Considering the same, their Lordships considered what is meant by waste as known to law. Rent Controller as well as appellate authority held that construction of overhead tank is act of waste and the same has impaired the value of the building materially. Considering the same, their Lordships considered what is meant by waste as known to law. Their Lordships exhaustively considered this question, which, reads thus: “3. In Woodfalls Law of Landlord and Tenant (24th Edn.) (Sweet and Maxwell Ltd.), p.733, what constituted waste has been clearly set out as follows: “Waste (Vastum) is defined to be a spoil or destruction to houses, gardens, trees, or other corporal herditaments, to the injury of the reversion of inheritance, and it has two divisions of great practical importance, voluntary waste and permissive waste. Voluntary waste is actual or commissive, as by pulling down houses, or altering their structure - the kind of damage which is sometimes provided against by express stipulation not to convert a house into a shop, etc. permissive waste is a matter of negligence and omission only, as by suffering buildings to fall or not for want of necessary reparations; the kind of damages which, where the contract of tenancy is in writing, is almost invariably provided against by express agreement to repair. It is not waste to omit to perform a convenant to put the demised premises into such repair as A, B had previously put them into. The action for water can only lie for that which would be waste, if there was no stipulation respecting its; ‘ Jones v. Hill , (1817)7 Taunt 392 at , 396(A) In addition to these two great divisions of waste, it is desirable to distinguish ‘meliorating waste’ and ‘equitable waste. Meliorating or ameliorating waste is such voluntary waste as improves the demised premises, as where a tenant puts a new front to his house; “In respect of such waste, it seems that unless substantial damages be proved the tenant will not be interfered with by injunction. Where a lease was for 999 years, of which about 900 were unexpired, an injunction to restrain meliorating waste was refused, but if there had been a negative convenant the court would have had apparently no discretion to withhold an injunction: Mc Eacharn v. Cotton , 1902 A.C. 104(B). Where a lease was for 999 years, of which about 900 were unexpired, an injunction to restrain meliorating waste was refused, but if there had been a negative convenant the court would have had apparently no discretion to withhold an injunction: Mc Eacharn v. Cotton , 1902 A.C. 104(B). It appears too that if the landlord sue, and the jury give nominal damages only, the tenant is entitled to have judgment entered for himself, as was held in a case where the tenant converted three closes into garden ground and built upon them, and the jury assessed the damages at a farthing for each close: Harrow School v. Alderton Equitable waste consists in acts of gross damage, usually the cuting down ornamental timber by a tenant ‘without impeachment of waste’, and is so termed because before the Judicature Act only a court of equity took cognizance of it. It is now within the cognizance of any branch of the Supreme Court, and bySec.135, Law of Property Act, 1925, an equitable interest for life does not confer upon the tenant for life any right to commit equitable waste unless an intention to confer such right expressly appears by the instrument creating the equitable interest. As it can generally be committed by tenants for life only, contracts of tenancy between a landlord and a tenant being never made without impeachment of waste, it is only necessary to mention it here for the purposes of pointing the distinction.” 4. What acts are waste in regard to buildings can be summarized as follows: In buildings: (1) Voluntary - Pulling down a house, even though it be rebuild afterwards, ‘ Smith v. Carter , (1888)18 Bear 78 (D- or altering its internal construction to the injury of the lessors reversion, - ‘ Young v. Spencer , (1829)10 B & C 145 (E) as by turning two rooms into one, or a hall into one, or a hall into a stable, is waste, so also is building a new house where there was none before, provided it be injurious to the inheritance; for the mere erection of buildings which improve the value of the land is not waste, and ‘a fortiori’ if the lease itself shows that the erection of buildings was contemplated by the parties: ‘ Jones v. Chappal Jones v. Chappal Jones v. Chappal , (1875)20 Eq. 539 (F). 539 (F). In the same way it is waste to pull down or remove any part of a house, as the windows, doors, wainscot, benches, furnaces, or other such fixtures annexed to the house either by the landlord or tenant” ‘ Buckland v. Butterfield , (1820) 2 B & B 54 (G). But structural alterations which do not injure the reversion and which do not change the nature of the thing demised, regard being had to the user of the premises permissible under the lease, do not constitute waste, which (it has been said) is always a question of degree: ‘ Hyman v. Rose Hyman v. Rose Hyman v. Rose ’, (1912)A.C. 623 (H). Waste too which ensures from the act of God (e.g. caused by tempest) is excusable; and accidental damage or destruction in building caused by using them in a reasonable and proper manner having regard to their character and the purpose for which it was intended they should be used, does not constitute waste. Manchester Bondel Warehouse Company v. Carr , (1880)5 E.Pd. 507(I). — Saner The lessee often covenants expressly not to erect any buildings or make any alterations in the premises without the licence of the lessor. A covenant in a lease of trade premises not to make without such licence any “alteration” to them applies only to alterations which affect the form of structure of the demised buildings, and cannot operate to prevent the tenant from doing acts (e.g., affixing a large clock to the exterior of the wall by means of bolts driven into it) which, if not absolutely essential to the carrying on of his business, are usual and convenient for its proper and reasonable conduct: ‘ Bickmore v. Dimer ’, (1903)1 Ch. 158(K): So a covenant by a lessee not to make or permit to be made any alteration in the elevation of the demised buildings, or in the architectural decoration thereof, refers only to alterations in the fabric and not to those merely in appearance caused by temporary advertisements and frame works which can be removed at any time, leaving the structure the same as before: Joseph v. London County Council , (1914)111 L.T. 276 (L). On the other hand, a covenant in the lease of a dwelling house not to “make any alteration in the arrangements or appearance” of the house applies not merely to alteration in tits exterior, but extends to the structural changes necessary within the house in order to convert it into flats for the occupation of separate tenants: ‘ Day v. Waldron ’, (1919)88 L.J. K.B. 937 (M). Where a lessee who had covenanted not to sub-let or sign without the lessors previous consent in writing, such consent not to be unreasonably withheld further undertook not “without the like consent” to make any alteration or addition to the demised premises, it was held, as a question of construction that both limbs of the sub-letting clause relating to consent were incorporated into the covenant as to alterations, and that it would therefore be a good answer for the lessee to show that consent to the alterations was withheld unreasonably: Cartwright v. Russel Cartwright v. Russel Cartwright v. Russel , (1912)56 Sol Jo 467 (N). .(2) Permissive.- Suffering a house to be uncovered, or to remain uncovered after the roof has been removed by tempest, whereby the timbers become rotten, or allowing the walls to decay for want of paint or plaster, is permissive waste, but if the house be uncovered at the commencement of the tenancy, it is not waste if it be suffered to decay (See Foa: The Relationship of Landlord and Tenant sixth Edition R.B. Andhyarau Jana. The Principles of Rent Control Ch.XVIII - Waste as a ground for eviction; B.B.Das Gupta Rent Control Act and Orders, P.P. 38 and 149). .(5) In short, though changing the nature of the demised premises is technically waste, yet this is not so if the change has been expressly sanctioned by the lessor; and the mere change is not waste unless it is in fact injurious to the inheritance, either by diminishing the value of the estate, or by increasing the burden upon it, or by impairing the evidence of title. At any rate, in the case of acts which may be technically waste but in fact improve the inheritance - acts, as they are termed of meliorating waste - the court will not interfere to restrain them by injunction; nor will they be a ground of forfeiture under a proviso for re-entry on commission of waste; nor, in general can damages be recovered in respect of them. But apparently a substantial alteration in the character of the demised premises will be treated as waste and restrained by injunction, notwithstanding that the value will be thereby increased, and the lessee is not entitled to pull down a house and build another which the lessor dislikes; or to convert a dwelling-house into a shop; and a breach of an express covenant against making alterations or erecting new buildings will be enforced by injunction. In general the covenant will be construed so as only to forbid alterations which would affect the form or structure of the building. (See the catena of decisions cited in Hill and Redmans Laws of Landlord and Tenant, Tenth Edn. (Butterworth & Co.) part I, S.4 - Waste pp. 170-175; Especially - 1 Darcy (Lord) v. Askwith , (1618) Hob 234 (0) — West Ham Central Charity Board (6) To sum up, to constitute voluntary waste by destruction of the premises, the destruction must be wilful or negligent; it is not waste if the premises are destroyed in the course of reasonable user, and any user is reasonable if it is for a purpose for which the property was intended to be used, and if the mode and extent of the user is apparently proper, having regard to the nature of the property and what the tenant know of it, and, in the case of business premises, to what, as an ordinary business man, he ought to know of it. It is not every act of waste on the part tenant which will entitle the landlord to obtain the order of eviction and what should be the nature and extent of the waste will depend on the circumstances of each case: Govindaswami Naidu v. Pushapallammal Govindaswami Naidu v. Pushapallammal Govindaswami Naidu v. Pushapallammal , (1951)2 MLJ. 591 :A.I.R. 1952 Mad. 191. 591 :A.I.R. 1952 Mad. 191. Principle is that a leased is bound to take care of the demised premises as a man of ordinary prudence would under similar circumstances take of his own property (Principles underlying Sec.151, Indian Contract Act). .(7) Bearing these principles in mind, if we examine the facts of this case, it is found that the tenant without the knowledge of the landlords deliberately overloaded the floor which he knew was not in a condition to bear the additional weight and constructed the overhead tank in such a manner as to prove dangerous to the safety of the building and thereby committed a waste within the meaning of Sec.7(2)(iii) Madras Buildings (Lease and Rent Control) Act: (1880)5 C.P.C. 507 (I); (1878)7 Ch.D. 815.” 15. In Sha S.Bhalechand v. Punamchand R.Shah Sha S.Bhalechand v. Punamchand R.Shah Sha S.Bhalechand v. Punamchand R.Shah , (1967)2 MLJ. 615 learned Judge held that the construction of walls without foundation and that too in a old building is a deliberate act which amounts to active waste. .16. In Shah Jetmull Gaemull v. Gocooldass Jamundass & Company Shah Jetmull Gaemull v. Gocooldass Jamundass & Company Shah Jetmull Gaemull v. Gocooldass Jamundass & Company , (1971)2 MLJ. 225 in para.9, it is held thus: .“The learned counsel for the petitioner relying on the evidence of P.W.4 and R.W.2 that the provision of a staircase and balcony will add to the utility of the building, contends that the petitioner had put up additional constructions adding to the utility of the building and that his acts cannot therefore be construed as acts of waste so as to attract Sec.10(2)(iii) of the Act. I am not in a position to construe the words “value and utility” referred to in the section in a disjunctive manner. The Legislature has clearly intended to prohibit a tenant from causing damage to the building or doing any act which may affect the utility of the building. There may be cases in which acts of the tenant may add to the utility of the building for sometime but they may cause serious damage to the building. There may also be cases where there might not be any damage to the building but the utility of the building might be seriously affected. In either of these cases the tenant should be held to have committed acts of waste as coming under that section. There may also be cases where there might not be any damage to the building but the utility of the building might be seriously affected. In either of these cases the tenant should be held to have committed acts of waste as coming under that section. The petitioners in this case cannot escape the operation of Sec.10(2)(iii) merely on the ground that the acts committed by him have added to the utility of the building, if they seriously impair its value… ” .17. In S.N.Bahadurmal v. Krishna Rao M.Nikan S.N.Bahadurmal v. Krishna Rao M.Nikan S.N.Bahadurmal v. Krishna Rao M.Nikan , (1982)1 MLJ. 376 in para.6, it is held thus: .“Learned counsel for the tenant argued that these alterations or constructions have not impaired the value or the utility of the building and therefore, cannot constitute waste. I am unable to differ from the conclusions of the lower courts on this aspect. It is not open to a tenant to reconstruct or remodel the building leased out to him without the written consent of the landlord and it is not as if that these admitted acts done by the tenant are mere minor alteration or repair works. They are in the nature or re-modelling and reconstruction to suit the personal requirement of the tenant, who had converted a stainless steel shop into a textile show-room. He should not have ventured on reconstructions and alterations without the approval of the landlord. Changing the nature of the demised premises tantamounts to technical waste and the demolition or removal of the doors and shutters, pillars, etc., are undoubtedly wilful and reckless on the part of the tenant. It is not as if the removal of these portions was caused in the course of reasonable use. and it is certainly prejudicial to the interests of the landlord, in that the tenant has made indiscriminate alterations and additions. In my opinion, this also amounts to doing of an act which affects the utility of the building, though the tenant might have added to the value of the building by putting up a better appearance. In this view of the matter, the findings of the courts below to the tenant should be held to have committed acts of waste’ coming under the definition have to be upheld. The tenant has definition have to be upheld. In this view of the matter, the findings of the courts below to the tenant should be held to have committed acts of waste’ coming under the definition have to be upheld. The tenant has definition have to be upheld. The tenant has obviously made these unauthorised constuctions at his own risk and therefore, exposed himself for eviction under this ground. Hence, the findings of the courts below on this ground are confirmed. 18. In Associated Traders and Engineers Ltd. v. Alamelu Ammal , (1984)1 MLJ. 251 in para.2, it is held that: “As regards the ground of act of waste is concerned, it is not disputed that the tenant has not obtained the written consent of the landlady. The learned counsel for the petitioner contends that after all the tenant has made on opening in the wall dividing two rooms for the purpose of easy access in using the ground floor as a godown. There is no record to prove that the tenant obtained the consent of the landlady for making an opening in the wall, which had divided two rooms. The said act of making an opening in the main wall, which divides two rooms, without the consent of the landlady will certainly amount to an act of waste. As rightly contended by the learned counsel for the respondent herein a storeyed building, like the demised building, making an opening in the wall will definitely weaken the strength of the wall and in the long run it will weaken the building. It has been held in Shah Jethmull Genmull v. Gokuldas Jamundass & Company Shah Jethmull Genmull v. Gokuldas Jamundass & Company Shah Jethmull Genmull v. Gokuldas Jamundass & Company , (1971)2 MLJ. 225 by this Court that the tenant should be held to have committed acts of waste within the mischief of Sec.10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 in a case where the tenant has not obtained the written consent of the landlord even if the alteration made by the tenant may add to the utility of the building for some time, since it may cause serious damage to the building ultimately and in the long run. The finding of the appellate authority being one on facts, this Court sitting in revision, cannot set aside the finding of fact as laid down by the Supreme Court in Sri Raja Lakshmi Dyeing Works v. Rengaswami Sri Raja Lakshmi Dyeing Works v. Rengaswami Sri Raja Lakshmi Dyeing Works v. Rengaswami , A.I.R. 1980 S.C. 1253.”. 19. A similar view was taken in the decision reported in M.S.Reddi v. T.A.P.S.Raghavan M.S.Reddi v. T.A.P.S.Raghavan M.S.Reddi v. T.A.P.S.Raghavan , A.I.R. 1972 A.P. 203. 20. From the above decisions it is clear that it is not every construction or alteration that would result in material impairment to the value or the utility of the building. It is also clear from the above decision that the act of tenant must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e., of a substantial and significant nature. When a construction is alleged to materially impair the value or utility of building, the construction should be of sue a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building. 21. It is true that the burden of proof is on the landlord that the acts complained of has materially affected the utility or value of the building permanently or materially. If certain facts are proved, an interference could be drawn whether those acts have materially affected or whether acts complained of enables landlord to get eviction or not. It is also clear from the above decision that if certain acts are proved to have been committed, even without any independent evidence, an inference could be drawn that the value or utility of the building has been materially affected. 22. In this case, tenant admitted that he has removed the roof and some of the walls have also been replaced. Appellate authority has held that under guise of removing zinc sheet of the roof, tenant has demolished the walls and entire building is now in open air. Relevant portion of the judgment of appellate authority reads thus: This finding of the appellate authority is not disputed. What learned counsel argues is only by putting walls and changing roofs, he has only effected improvement of the building. Relevant portion of the judgment of appellate authority reads thus: This finding of the appellate authority is not disputed. What learned counsel argues is only by putting walls and changing roofs, he has only effected improvement of the building. This contention cannot stand in view of various decisions cited supra. 23. Now, I come to the decision reported in R.R.Dinakaran v. S.L.Chinna Kuppuswami R.R.Dinakaran v. S.L.Chinna Kuppuswami R.R.Dinakaran v. S.L.Chinna Kuppuswami , 99 L.W. 678. In that case, relying on commissioners report on facts of the case landlord held that landlord has not proved his case. I do not find much reliance could be placed by learned counsel on that decision. 24. Appellate authority on reappreciation of evidence has come to the conclusion that tenant who is bound to protect the interest of the landlord and also make use of the building as building of his own, has failed in his duties. In fact, by the present construction, the major portion of the building let out by landlord is not on the site. What was let out by landlord has been materially destroyed by the acts of tenant and the value of utility of the demised property has been materially accepted. 25. Contention of the tenant that the roof was leaking and damaged building was given to him is also not proved and the circumstances also how that the contention is taken only for the purpose of this litigation. If at the time of taking building on rent, the building was damaged with leaking roof, under normal circumstances tenant would not have taken the building on rent only when he satisfies that building is sufficient for his case, building is taken by him. Under the guise of repair, he has now replaced major petition of the building which is not permitted under law. 26. The decision of appellate authority is based on evidence and the view expressed by him is also probable and reasonable. I find that the decision of appellate authority is in accordance with law and no ground is made out for interference in this revision petition. 27. Inthe result, the revision petition is dismissed with costs. Consequently, C.M.P.No.207 of 2000 is also dismissed.