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2003 DIGILAW 175 (HP)

KALAWAXI v. RAJESH KUMAR

2003-07-04

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This revision petition, under Section 24(5) of the H.P. Urban Rent Control Act, "Act" for short, filed by the petitioner Kalawati, hereinafter referred to as "Tenant", against the order of eviction from the demised premises, passed by learned Rent Controller, Solan in Rent Petition No. 47/2 of 1996 dated October 28,1998, as affirmed by learned Appellate Authority, Solan, in Rent Appeal No. 55-S/14 of 1998 impugned herein. 2. In order to appreciate the controversy, relevant facts may be noticed. 3. Rajesh Kumar, respondent herein, "Landlord" for short, is owner of House No. 213-A, Ahrat Bazar, Kasauli Cantt in the District of Solan. First floor of this building was rented to the tenant at a monthly rental of rupees 60. The landlord filed a petition for eviction of the tenant Kalawati under the Rent Act on the grounds: (a) Non-payment of rent from June, 1995; (b) The tenant has carried out material additions and alternations in the demised premises by constructing a toilet-cum-bath decreasing the user in the living area. The waste water and other effluents of the newly constructed toilet have no drainage. Water seeps into the wooden planks of the floor, damaged the rafters and planks. The floor has caved in. This construction has impaired materially the value and utility of the demised premises; (c) Building is unsafe and unfit for human habitation, which is 60 to 70 years old constructed in stone mud masionary. The wooden rafter and planks have rotted, more so, by the seepage of the water of the toilet constructed by the tenant. The floor of the premises has sagged and tilted. The walls have bulged out and can no longer withstand the load of the structure; (d) The demised premises are required by the landlord to carry out the reconstftiction of the building after its demolition as existing structure has out lived its life and is likely to fall down in the near future. Such requirement for the purpose of reconstruction, is bona fide. The petitioner has sufficient funds at his command for the purpose of reconstruction, which cannot be done without getting it vacated. (e) The tenant is guilty of such acts. Which amounts to nuisance to the petitioner and his family members. 4. The tenant resisted the cLalm of the landlord. The allegations are controverted. The petitioner has sufficient funds at his command for the purpose of reconstruction, which cannot be done without getting it vacated. (e) The tenant is guilty of such acts. Which amounts to nuisance to the petitioner and his family members. 4. The tenant resisted the cLalm of the landlord. The allegations are controverted. The defence of the tenant is: (a) Toilet and bath in the demised premises were in existence before she was inducted as tenant; (b) The building is in good condition and does not require any reconstruction nor the building is damaged in any manner. The story of reconstruction has been concocted to secure the eviction of the tenant. The landlord demanded increase in rent, which was refused and it is for this reason that the eviction petition has been filed on flimsy grounds. It is denied that the respondent has committed any act, which may have impaired materially the value and utility of the building. The landlord, it is reiterated, has filed the petition to enhance the rent or let out the premises to some other person at enhanced rent after getting the premises vacated. 5. The learned Rent Controller settled the following issues for determination: 1. Whether the respondent is in arrear of rent as alleged? OPP. 2. Whether the respondent has carried out additions and alterations without the consent of the landlord and has impaired the value and utility of the premises? OPP. 3. Whether the premises are unfit and unsafe and human habitation? OPP. 4. Whether the premises are bonafidely required for reconstruction? OPP. 5. Whether the respondent is guilty of nuisance as alleged? OPP 6. Relief. 6. Learned Rent Controller on the appraisal of evidence, found Issues No. 1 to 4 against the tenant and; accordingly, directed the eviction of the tenant. So far the eviction on the ground of arrears of non-payment of rent was concerned, it was directed that in case the tenant tenders or pays the arrears of rent within 30 days from the date of order alongwith statutory interest at 9% the respondent would not be liable to be evicted on this ground. The tenant was directed to put the landlord in vacant possession of the demised premises within 30 days from the date of the order. 7. The tenant was directed to put the landlord in vacant possession of the demised premises within 30 days from the date of the order. 7. Dis-satisfied, the tenant carried an appeal before the learned lower Appellate Authority, which too was dismissed by the impugned order, Learned Appellate Authority after re-appreciation of the evidence concluded that the conclusion arrived at by the learned Rent Controller cannot be faulted with and up-held the eviction of the tenant on the grounds noticed above. 8. Still dis-satisfied, the tenant is in this revision petition. 9. I have heard Mr. Kuldip Singh, learned Senior Advocate for the tenant and Mr. K.D. Sood, learned Counsel for the landlord. I have also been taken through the record. 10. The findings of the learned Rent Controller as affirmed by the learned Appellate Authority, are assailed on issues No. 2 to 4 on which grounds eviction of the tenant rests. It may be noticed that the eviction of the tenant on the ground of non-payment of rent was not assailed during the course of arguments. 11. The contentions raised by the learned Counsel are factual in nature. 12. So far the question of tenant having carried out additions and alterations, without the consent of the landlord and thereby materially impairing the value and utility of the demised premises is concerned the reappraisal of the evidence shows that the findings given by the learned Rent Controller and affirmed by the learned Appellant Athority cannot be faulted with. The case of the landlord is that the demised premises consist of two rooms on the first floor of the building, the tenant constructed a | toilet-cum-bath room in part of one of the rooms without the insent of the landlord and the Cantonment Authorities. The additions and alterations by the construction of this toilet not only changed the design, user and utility of the premises but also structurally affected the building. The waste water and other affluent do not have proper drainage. The water from the toilet seeps into the wooden rafters and planks, which have been damaged and the floor as sacked. This has materially impaired the value and utility of the building. The tenant denied the allegations. According to her, toilet and bathroom exist before the commencement of the tenancy. The water from the toilet seeps into the wooden rafters and planks, which have been damaged and the floor as sacked. This has materially impaired the value and utility of the building. The tenant denied the allegations. According to her, toilet and bathroom exist before the commencement of the tenancy. Learned Rent Controller referring to the evidence of the Petitioner (PW 1), Ramesh Kumar (PW 3), Hari Ram (PW 4) and Engineer J.C. Nijhawan (PW 5) concluded that because of the construction of the toilet by the tenant in one of the rooms, the water seeps into the floor, which is supported by rafter and planks. The seepage has resulted in rotting the rafters and planks, which materially impaired the value and utility of the demised premises. Commenting upon the evidence of tenant, learned Rent Controller observed that the tenant prevaricated herself in her deposition. It is to be noticed that the tenant in her examination-in-chief and reply to the petition has taken a definite stand that the toilet existed in the same position as it existed at the time of her deposition from the very commencement of the tenancy In cross-examination, she admitted that an area measuring two feet x two and half feet was converted by her for the purpose of bathing. The photographs Exhibits P3 and P2 show that the wooden rafters and planks have been damaged with fungs due to the seepage of the water into the floor. Learned Rent Controller held: "...Had there been no bathroom erected and made by the respondent? Such situation of seepage would have not occurred. The acts of the respondent are such which has materially impaired the value and utility of the premises. Due to the seepage of water down the floor, the ground floor is of not worth living, which is even evident from the perusal of the photographs Ex. PX1, Ex. PX2 and Ex. PX3. The expert report Ex. PW5/A also reveals and discloses the fact of rotten wood due to perpetual dampness and also reveals that wooden rafter are rottened. The expert report of the respondent i.e. Ex. RW3/B does not find mention of the rottening of the planks and wooden rafter. On the perusal of the report veals that some plaster of middle wall has fallen and he only opined that the minor repairs are needed for plugging of dampness. The expert report of the respondent i.e. Ex. RW3/B does not find mention of the rottening of the planks and wooden rafter. On the perusal of the report veals that some plaster of middle wall has fallen and he only opined that the minor repairs are needed for plugging of dampness. Moreover, from the perusal of the statement of RW3, the expert R.B. Saxena, reveals that he has not inspected the ground floor and he has only taken a outer view of the premises..." 13. Reading the evidence once again, as discussed by the learned Rent Controller does not lead to a conclusion different to the Rent Controller. The landlord in his evidence is categorical that the tenant without his consent had constructed a toilet, i.e. latrine and bathroom in one of the rooms because of which the entire water of the toilet seeps into the wooden planks and rafters which are rested on the walls. These walls in mud masionary, have bulged as a result of which the ground floor has also become unusable and has been closed. To support the floor of the demised premises, the demised premises are artificially supported by wooden ballis from the ground floor. There is nothing in the cross-examination of the petitioner, which may dent his evidence. In cross-examination, the landlord admits that earlier there was a dry latrine which has been converted into flush latrine by the tenant without his consent and she also constructed a bathroom. In one of the rooms, curtain has been put for the user of the bathroom. To a similar effect is the evidence of Hari Ram (PW 4) and J.C. Nijhawan (PW 5), Civil Engineer. It is the evidence of this witness that he inspected the demised premises in April 1996. On his inspection, he found that in the demised premises, the tenant has constructed a toilet, which is also used for cleaning utensils. Due to the seepage of the water from the toilet, the wooden rafters and planks of the floor of the demised premises have rotted. Though the floor of the toilet is in cement but the cracks have appeared in the floor and the water seeps into the rafters and the planks. His report is Exhibit PW5/A. There is no rebuttal to this evidence. 14. Though the floor of the toilet is in cement but the cracks have appeared in the floor and the water seeps into the rafters and the planks. His report is Exhibit PW5/A. There is no rebuttal to this evidence. 14. Section 14(2)(iii) of the Act provides for the eviction of a tenant if such tenant has committed such acts as are likely to impair the value or utility of the building. Section 14(2)(iii) reads: "14(1) xxx (ii) xxx (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land; or...." 15. A reading of this provision shows that the tenant is liable to be evicted if he commits such acts as are likely to impair the value or utility of the rented premises. The expression "to impair materially", as pointed out by the Supreme Court in Gurbachan Singh v. Shivalak Robber Industries, 1996 (1) RCR 399, would mean to diminish in quality, strength or value substantially or making the demised premises "worse and deteriorate". Interpreting provisions of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, which is in parin materia to Section 14(2)(iii) of the Act. Their Lordships observed: "...The word "impair" cannot be said to have a fixed meaning. It is a relative terms affording different meanings in different context and situations. Here in the context from "impair material" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or effected suggesting impairment. Further the use of 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. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land had considerably affected its use for some desirable practical purpose. The decrease or deterioration in other words the impairment of the worth and usefulness of 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." (Emphasis given) 16. Their Lordships approved the observations in Vipin Kumar v. Roshan Lal Anand and others, 1993 (1) RCR 675, to the effect that impairment of the value or utility of the building is to be seen from the point of view of the landlord and not of the tenant. 17. In the present case, as discussed earlier, there is overwhelming evidence which shows that the toilet was constructed by the tenant, without the consent of the landlord, because of which the water of the toilet seeps into the floor resultantly the rafters and planks have rotted and to support them, the landlord had to put supports from the ground floor. Such an act indeed has affects the building in its intrinsic worth and user. The area of the room in which the toilet is constructed has reduced by the construction of the bathroom. Thus the act of the tenant has materially impaired the value and utility of the demised premises. 18. The findings of learned Rent Controller, as affirmed by the First Appellate Court, on this question are unassailable. 19. The next ground on which the tenant has been directed to be evicted is that the demised premises are unfit and unsafe for human habitation. It is admitted position that building in question is 60 to 70 years old, which is constructed in mudstone masionary. It is proved that the rafters and planks supporting the demised premises have rotted. There is overwhelming evidence, as discussed by both the learned Rent Controller and the First Appellate Court which leads to inescapable conclusion that the demised premises are not fit for human habitation. There is unrebutted evidence that the wooden rafters on which demised premises have caved in and are being supported by ballis from the ground floor. The plaster of the walls has come out and there are big cracks in the walls. The wooden planks and rafters have rotted at several places. The ground floor for this reason was vacated by the landlord. There are big cracks in the walls. The walls have bulged and are out of plumb. The plaster of the walls has come out and there are big cracks in the walls. The wooden planks and rafters have rotted at several places. The ground floor for this reason was vacated by the landlord. There are big cracks in the walls. The walls have bulged and are out of plumb. The walls are constructed in stone with mud masionary. The water seeps into the roof of the ground. The first floor is supported by ballis. As discussed earlier, the building in question is 60 to 70 years old. The construction is in stone mud masionary and the house is in dilapidated condition. But for the supports, the demised premises of the building would have fallen down. The unerring evidence led by the landlord shows that the building in question is unfit for human habitation. Bhag Chand (RW2) was produced by the tenant to show that the demised premises are in good condition. In cross-examination, this witness admits that the house in question is constructed in stone mud masionary. He states that he had not seen the wooden rafters and planks. According to him, he visited the premises about 10 to 15 years back. When asked about the size of the rooms of the demised premises, he was unable to do so. He admits that he did not go to the ground floor to see if there is any seepage from the floor of the demised first storey. R.B. Saxena, an Engineer, produced by the tenant to show that the premises are in good condition and the building requires only minor repairs, which can be carried out without the demised premises being vacated. But when confronted with the photographs of the building showing that the wooden rafters and planks have rotted and artificial support has been given to the ground floor to support it, he merely clarified that he did not inspect the ground floor nor did he take the photographs. The evidence of this witness has been rightly rejected by the learned Rent Controller and the Appellate Authority. He admitted that there were cracks in the walls but he did not mention those cracks in his report. Conclusion of the Rent Controller that the report of this witness is not truthful cannot be exceptionable. The evidence of this witness has been rightly rejected by the learned Rent Controller and the Appellate Authority. He admitted that there were cracks in the walls but he did not mention those cracks in his report. Conclusion of the Rent Controller that the report of this witness is not truthful cannot be exceptionable. The building, in the face of the evidence on record, cannot by any stretch be said to be fit and safe for human habitation. The findings returned by learned Rent Controller as affirmed by the Appellate Authority, requires no interference, 20. The next ground of eviction of the tenant is that the landlord requires the demised premises bona fide for the purpose of reconstruction. There is unrebutted evidence led by the landlord to show that he has adequate resources to reconstruct the building. The father-in-law of the landlord stepped into the witness box as PW 4. It is his evidence that he can advance rupees 1,60,000 to rupees 1,65,000 for the reconstruction of the house by the landlord. He has given detail of rupees 60,000 lying in fixed deposits with Post office and three FDRs of rupees 23,000 each photocopies of which are Exts. P9 to P12. As discussed earlier, there is overwhelming evidence to show the bona fide requirement of the demised premises by the landlord for the purpose of reconstruction of the entire building. The bona fide of the landlord is writ large from the fact that he applied for permission to reconstruct the building in question to the Cantonment Board and the Board has sanctioned his plan for reconstruction. The sanction of the Board is Exhibit PW1/C. Taking into consideration the dilapidated condition of the building in question, lack of bona fide is attributable to the landlord. 21. The Apex Court in Jagat Pal Dhawan v. Kahan Singh (Dead) by Lrs. and others, JT 2002 (9) SC 387, interpreting the provisions of Section 14(3) (c) of the Act which provides for eviction of a tenant on the ground of bona fide personal requirements of the landlord and observed. "6. 21. The Apex Court in Jagat Pal Dhawan v. Kahan Singh (Dead) by Lrs. and others, JT 2002 (9) SC 387, interpreting the provisions of Section 14(3) (c) of the Act which provides for eviction of a tenant on the ground of bona fide personal requirements of the landlord and observed. "6. Section 14(3)(c) provides inter alia that a landlord may apply to the controller for an order directing the tenant to put the landlord in possession of tenancy premises in case of any building or rented land being required bona fide by him for the purpose of building or rebuilding which cannot be carried out without the building or rented land being vacated. The provision does not have as an essential ingredient thereof and as a relevant factor the age and condition of the building. The provision also does not lay down that the availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed in if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide." 22. Elsewhere in para 9 of the judgment, Their Lordships observed that the fact that demolition and reconstruction would result in modernization, making additional space available and/or would argument the earning of the landlord are relevant factors for determining the bona fides of the requirement for demolition and reconstruction. 23. In the present case, admittedly, the building in question is more than 60 years of age. It is in mud mortar. The wooden rafters, which support the first floor, have rotted therefore, the proposal of the landlord to reconstruct the building, which indeed would provide additional space and better return to the landlord, cannot but be bona fide. 23. In the present case, admittedly, the building in question is more than 60 years of age. It is in mud mortar. The wooden rafters, which support the first floor, have rotted therefore, the proposal of the landlord to reconstruct the building, which indeed would provide additional space and better return to the landlord, cannot but be bona fide. Such bona fides, as observed by the Supreme Court in fagat Pal Dhawan, cannot be doubted even on the ground that the building though old and out dated, does not require immediate demolition. 24. As noticed by the Supreme Court in Prem Chand alias Prem Nath v. Smt. Shanta Prabhakar, 1997 (2) RCR 536, in such a situation, there is no need to go into the condition of the building if the requirement of the landlord for the purpose of reconstruction is bona fide, In the present case, the bona fides are questionable. 25. The findings of the learned Rent Controller as affirmed by the First Appellate Court, in the face of the evidence on record, cannot be faulted with. 26. No other point is urged. 27. There is no merit in the petition, which is dismissed, with no order as to costs.