Judgment M.M.Kumar, J. 1. This is tenants petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity, the Act) challenging concurrent findings of facts recorded by both the Courts below holding that the tenant-petitioners had changed the user of the shop for which it was let out and had started using the same for generation of power by installing a 5 HP diesel engine in it. It has further been held by both the Courts below that on account of vibrations caused by the diesel engine, the demised shop as well as the building has developed cracks and material impairment has been caused. A further finding recorded by the Courts below is that the emission of smoke and noise has been created causing pollution in the locality. 2. Brief facts of the case are that the predecessor in interest of tenant-petitioner Nos. 1 to 3 was given the demised shop on rent by the landlord-respondent and an ejectment petition under Section 13 of the Act was filed on the ground that the tenant-petitioners were using the demised shop for a purpose other than the one for which it was let out. It was further alleged that manner in which the demised shop was being used had materially impaired the value and utility of the demised shop on account of operating of diesel engine in it. A related plea was also raised that the diesel engine of such a huge horse power in the demised shop had caused nuisance to the neighbour and the occupiers of the building of first floor. The Rent Controller on the basis of over-whelming evidence produced by the landlord-respondent, came to the conclusion that a diesel engine of 5 HP capacity has been installed by the tenant-petitioners in the demised shop and the shop was not being used any longer for the purposes of selling tea or any Karyana items or any other commercial purpose. The findings are based on the report of a building expert, Ex.A/1, the site plan Ex.A/2 and the photographs Ex.A/3 to Ex.A/17 which have been duly proved by the negatives Ex.A/18 to Ex.A/3. The findings are based on the report of a building expert, Ex.A/1, the site plan Ex.A/2 and the photographs Ex.A/3 to Ex.A/17 which have been duly proved by the negatives Ex.A/18 to Ex.A/3. A detailed report Ex.A/33 further shows that the whole building has developed cracks due to the operation of the diesel engine installed by the tenant-petitioners in the demised shop, which has materially impaired the value not only of the demised shop but also of the whole of the building. A perusal of para 13 and 14 of the judgment of the Rent Controller would show that evidence in support of the aforementioned finding have been recorded in para 15 and the defence taken by the tenant-petitioners was reflected which was to the effect that the cracks had been caused on account of the electric motor installed by the landlord-respondent for lifting the water on the first floor which was stated to be of 1 HP. The findings with regard to the effect of operation of the diesel engine have been recorded in para 10 by concluding that the quality of evidence produced by the landlord-respondent coupled with the documentary evidence on record go a long way to establish the fact that the operation of the diesel engine in the demised shop installed by the tenant-petitioners has created various cracks of various sizes as mentioned in Report Ex.A/33 by the Expert witness AW-2 and the same has materially impaired the value of the demised shop. On issue No.3 also, the Rent Controller concluded that the noise and smoke pollution is created by the operation of diesel engine and the aforementioned issue was also decided in favour of the landlord-respondent. 3. On appeal filed by the tenant-petitioners, the findings recorded on all the issues were accepted by the learned Appellate Authority. On the issue concerning change of user, the views of the Appellate Authority read as under:- "8. Admittedly, there is no written rent note or agreement containing terms and conditions of the tenancy and the Court is supposed to deliver its findings on the basis of the oral evidence led by the parties. On the issue concerning change of user, the views of the Appellate Authority read as under:- "8. Admittedly, there is no written rent note or agreement containing terms and conditions of the tenancy and the Court is supposed to deliver its findings on the basis of the oral evidence led by the parties. As per version of the tenant, he started running tea stall and Karyana shop in the premises in question; whereas, the plea taken by the Landlord is that it was only rented out for running tea stall, but from the record available on the file, tea vend is not at present being run in the premises in question. It is admitted case of the appellant and has also been admitted by Rajinder Kumar RW4, who is legal heir of Ram Lal, that the generator is operated for 3/4 hours per day and it has further been admitted that the said generator was installed in the shop in question for the purpose of supplying electric energy to their fruit and fruit juice shop, which is at a distance of 50 meters. So this admission of Rajinder Kumar, who is also party to the present petition, goes to show that the shop in question is being used only for installation or placing of the generator to get electricity for another shop. Even when the Building Expert examined by the Landlord, visited the premises in question, there was no Karyana, rather some bags of wheat etc. were lying there. Though the witnesses examined by the respondent have deposed that the shop in question is being used for running tea vend/karyana shop in the premises in dispute from the date of inception of tenancy, but they are also discrepant about this. Krishan Lal RW1 examined by the respondent, while subjected to cross examination, has stated that the respondent/tenant are running karyana shop since inception of tenancy i.e. 1972 and further that the respondent/tenant never used this shop in question as tea stall. This statement of Krishan Lal RW1 is even contrary to the plea taken by the tenant/ respondent in the written reply, where they have stated that the shop in question was taken on rent for running tea stall as well as karyana shop. Even no bills etc. This statement of Krishan Lal RW1 is even contrary to the plea taken by the tenant/ respondent in the written reply, where they have stated that the shop in question was taken on rent for running tea stall as well as karyana shop. Even no bills etc. have been placed on the file by the tenant in order to show that they have purchased some material of karyana for further selling the same. In fact, from the evidence, it is evident that the tenant has started running a fruit/juice shop at a distance of about 50/100 yards from the demised shop and only some bags of wheat or paddy have been stored in the shop in question and further the same is being used by them for installation of generator. The installation of generator itself in the shop in question can be termed to be one of glaring circumstances to ascertain the change of user." 4. On the question of impairment of value and utility of the building, the findings recorded by the Rent Controller were also accepted by the learned Appellate Authority. The view of the Appellate Authority in this regard reads as under:- "12. So far material impairment of the building, disputed shop of which, is an integral part, is concerned, statement of Kalyan Singh building Expert AW2 and that of Dhanna Singh, Building Expert RW2 are relevant. Kalyan Singh AW2 has given detailed report Ex.A1. He has also taken photographs Exs. A3 to A17 of the cracks appearing in the building in question and these photographs, negatives of which are Exs. P18 to P32 falsify the report of Dhanna Singh RW2, who has stated that there are no cracks in the building in question. This goes to show that Dhanna Singh has gone beyond the facts even admitted by the tenant and the other witnesses examined by the tenant. xx xx xx xx xx xx xx So far as installation of generator is concerned, the same is admitted fact and said generator is being run with Engine of 5 H.P. No doubt, Rajinder Kumar AW4 has deposed, in the examination in chief, that during day time generator is operated out side the shop in question and at the time of closure of shop in the evening, the same is placed in the shop in question. But in the cross examination truth has come on record where he has stated hat the generator has been installed in the shop in question. In his cross-examination, Dhanna Singh RW2, who has opined in his report Ex.R4 that there are no cracks and there is no impairment of the value and utility of the shop in dispute, has stated that by the operation of motor, vibrations are created which affect the floor and walls of the buildings. If vibrations are created by the operation of Motor or engine of heavy capacity, then cracks can develop in the building. Motor of 3 H.P. can sufficiently affect the floor and the walls around it. It is correct that Diesel engine creates more vibrations than the electric motor. It has further been stated by him if the engine is operated in side the building even 5 feet away from the walls, it affects the building. It has further been stated by him that it is correct hat vibrations of the engine are more if it is placed on trolly and if the engine is embedded in the earth then the vibrations will be less. So, these admissions of Dhanna Singh, Building Expert RW2 leads to the conclusion that the report submitted by him is not in accordance with the actual facts at the spot and further substantiates the cracks, which have been depicted in the photographs Exs.P3 to P17 and mentioned in the report submitted by Kalyan Singh AW-2. Impairing value and utility of the building depends upon the facts of each case and no hard and fast rule can be laid down. XX XX XX XX XX XX XX In the case in hand, generator in the shop in question was installed without permission of the landlord, it not only creates vibrations, but ultimately results into impairing the value and utility of the building and also creates nuisance to the neighbourer and the Landlord, who are putting their residence on the first floor of the shop in question." 5. Similarly on the question of nuisance created by the operation of the diesel engine findings of the Rent Controller, were also approved by the Appellate Authority which read as under:- ".....in the case in hand, landlord himself is occupying the premises on the first floor of which, the shop in question is a part, then, the nuisance caused to the landlord is also within the ambit of Section 13(ii) of the Rent Act...." xx xx xx xx xx xx xx" It is proved on the record that the windows of the first floor, where the landlord resides, open towards right side where the generator is operated and the smoke goes upwards. It not only creates vibrations in the building, but also emits smoke, which is detrimental to the health of the persons living in that locality and it can be said without any hesitation that the premises in question are only meant, at present, for running the generator to supply electricity in the other shop being run by the present tenant, at a distance of about 50/100 yards and it appears that the said generator is not being run by the tenant in the shop in which they are at present running their business as it creates vibrations, emits smoke and is a cause of nuisance." 6. It is appropriate to mention that when the instant revision petition came up for motion hearing on 17.12.1999, learned counsel for the landlord-respondent had stated that the judgment ordering the ejectment of the tenant-petitioner passed by the Court below had been executed and the possession was taken from him in due process. In reply to the application of the tenant-petitioners for stay, warrant of possession in Form No. 45 was attached with the reply showing that the possession of shop No. 2 situated at Old Hospital Road, Mandi Guru Har Sahai, Tehsil and District Ferozepur which is the demised shop was taken on 30.11.1999. The tenant-petitioner, Vijay Kumar, who was present at the shop was shown the warrant of possession and on the asking of the bailiff, he vacated the shop. The tenant-petitioner, Vijay Kumar, who was present at the shop was shown the warrant of possession and on the asking of the bailiff, he vacated the shop. However, on his refusal to take out the goods and signing the warrant of possession, an inventory was prepared of goods items No. 1 to 25 and the goods were handed over on sapurdari to one Mohan Lal son of Nagar Mal with a stipulation that as and when the official of the court demands the production of goods, the same shall be produced. The landlord-respondent had put his lock on the vacant shop and taken the possession and Munadi was accordingly carried. 7. Mr. Deepti Kamal, learned counsel for the tenant-petitioners has argued that once there is no rent note disclosing the purpose for which the demised shop was let out, then, tenant-petitioners were entitled to use the shop for any purpose. Learned counsel has maintained that the shop is being used by the tenant-petitioners for selling the Karyana items and not for generating the power by a diesel engine. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Sudarshan Lal (Died) through LRs V/s. Shrimati Bhushan Sehgal and Ors., 2000(1) R.L.R. 628. The learned counsel has also pointed out that there is inherent contradiction in the findings recorded by both the Courts below, inasmuch as, there cannot be any impairment in the value and utility of the demised shop because evidence has come on record showing that the diesel engine was being operated from a platform outside the shop. Once it is shown that the diesel engine was operated from a platform outside the shop, then there could not be any vibration causing damage to the building which could be caused only if diesel engine is operated from inside the shop. The learned counsel has emphasised that if nuisance is caused by virtue of operating engine from outside, then, there could not be any vibration and if there is any vibration, there could not be any damage. It is on this account, the learned counsel has maintained that the nature of findings given by the Courts below are contradictory. Learned counsel has drawn my attention to the observations made by the Rent Controller in Para Nos. 15 and 16 as well as Para Nos. It is on this account, the learned counsel has maintained that the nature of findings given by the Courts below are contradictory. Learned counsel has drawn my attention to the observations made by the Rent Controller in Para Nos. 15 and 16 as well as Para Nos. 17 and 18 to substantiate his arguments. He has concluded that such findings cannot be sustained. 8. Mr. S.C.Chhabra, learned counsel for the landlord-respondent has maintained that the finding of facts recorded by both the Courts below cannot be interfered with until and unless this Court comes to a conclusion that the view taken by the Courts below is an impossible view or that there is no evidence in support of those findings and the findings are perverse. In support of his submission, learned counsel has placed reliance on three judgments of this Court in the cases of Ms. Raj Rani and Ors. V/s. Santosh Awasthi, (1996-2)113 P.L.R. 401, Augur Nath V/s. Kishan Chand (now dead through his LRs, 2003(2) Civil Court Cases 208 and Amar Nath V/s. Guru Ramdass Textile Mills (Paul Silk Industries) and another, 2002(1) Civil Court Cases 621. The Learned counsel has also pointed out that findings with regard to the change of user have to be accepted because it is not a change of user from one commercial activity to another commercial activity. According to the learned counsel, the demised shop is being completely misused by installation of a diesel engine which is impermissible as it caused air and noise pollution. It is actionable under Section 133 of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.). Such a use is impermissible and no landlord could have consented for the use of building in such a manner. The learned counsel has further drawn my attention to the statement made by RW-4 Rajinder Kumar, tenant-petitioner No. 4. 9. Mr. S.C.Chhabra has further pointed that Ram Lal, the original tenant had died during the pendency of the appeal before the Appellate Authority and his three LRs, namely, Janak Raj, Parveen Kumar and Vijay Kumar who are the tenant-petitioner Nos. 1 to 3, were brought on record and they pursued the appeal. No appeal was filed by other tenant-petitioner Nos. 4 and 5, namely, Rajinder Kumar and Kanta Rani, who are the son and daughter of deceased tenant, Ram Lal. 1 to 3, were brought on record and they pursued the appeal. No appeal was filed by other tenant-petitioner Nos. 4 and 5, namely, Rajinder Kumar and Kanta Rani, who are the son and daughter of deceased tenant, Ram Lal. Therefore, learned counsel has submitted that the petition on behalf of tenant-petitioner Nos. 4 and 5 is not even competent as they did not challenge the order of the Rent Controller before the Appellate Authority. 10. After hearing the learned counsel for the parties and perusing the record, I am of the considered view that the findings of facts recorded by both the Courts below are based on cogent evidence and it cannot be said that the findings are perverse or that no reasonable man would reach the conclusion recorded by the Courts below. The findings recorded by the Courts below cannot be ordinarily interfered with under Section 15(5) of the Act merely because after re-appraisal of evidence by this Court, another view could be a possible view. The only area of jurisdiction provided by Section 15(5) of the Act is to examine the orders of the Courts below to satisfy itself whether the orders passed by the Courts below suffer from any illegality or impropriety. The question with regard to carrying out the grounds for exercise of revisional jurisdiction of this Court under Section 15(5) of the Act has engaged repeated attention of the Supreme Court in numerous cases, A survey of these judgments would reveal that although there are no exhaustive formulas by way of illustrations has been developed by the Supreme Court, yet sufficient guidance is available in these judgments explaining the area for exercise of such jurisdiction. As some judgments of the Supreme Court discussed below are based on Section 15(6) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for brevity, the Haryana Act), it would be appropriate to mention that Section 15(5) of the Act is pari materia to that of Section 15(6) of the Haryana. Act. Section 15(5) of the Act reads as under:- "15. Act. Section 15(5) of the Act reads as under:- "15. Vesting of appellate authority on officers by State Government.- (1) to (4) xx xx xx (5) The High Court may, at any time on the application of any aggrieved party or on its own motion, call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto, as it may deem fit." 11. The above reproduced section came up for consideration of the Supreme Court in the case of Ram Dass V/s. Ishwar Chander 5 (1988-2)94 P.L.R. 478 (S.C.). The Supreme Court was considering whether it is question of fact or law that a landlord requires the tenanted premises bona fide or not. It held that essentially the question is one of fact notwithstanding the circumstances the inferential facts were drawn from other primary evidence. It also opined that all conclusions or inferences of law which more often than not are questions of facts. In other words, inferences and conclusions are drawn by the court of facts like the Rent Controller or the Appellate Authority cannot be ordinarily inferred with as they are also questions of facts. After recording the aforementioned findings, their Lordships held that under Section 15(5) of the Act, only legally and propriety of the order could be examined as is permissible by the statute but the High Court cannot assume the jurisdiction of a second Court of first appeal. The views of their Lordships read as under:- "The question whether the revisional power extends to interference with and upsetting of findings of facts, essentially turns on the language of the statute investing the revisional jurisdiction, subject to the well-known limitations inherent in all revisional jurisdictions. Section 15(5) of the E.P. Rent Restrictions Act enables the High Court to satisfy itself as to the legality and propriety of the order under revision, which is, quite obviously, a much wider jurisdiction. The jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts and reappraise the evidence if the findings of the appellate court are found to be inform in law, though the revisional court is not a second court of first appeal." 12. The jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts and reappraise the evidence if the findings of the appellate court are found to be inform in law, though the revisional court is not a second court of first appeal." 12. Similar question fell for consideration of the Supreme Court in the case of Shiv Lal V/s. Sat Parkash, 1993 Supp.(2) S.C.C. 345. Reversing the view taken by the High Court in interfering with the concurrent findings of facts, their Lordships observed as under: - "While exercising jurisdiction under Section 15(5) of the Act the Court does not act as a regular third appellate court and can interfere only within the scope of the Sub-section. In the present case, the High Court, on being misled by its view that the cession of tenancy is a necessary element of Section 13(2)(v), the High Court proceeded to re-examine the evidence on the records, and reversed the finding of facts concurrently arrived at by the trial Court and the first appellate court. An examination of the facts and circumstances of this case indicates that the reconsideration of the evidence by the High Court was not justified." 13. In the case of Vanezt Jain V/s. Jagjit Singh, (2000-3)126 P.L.R. 263 : (2000)5 S.C.C. 1 the provisions of Section 15(6) of the Haryana Act, came up for scrutiny of the Supreme Court. While comparing the provisions of Section 115 of the Code of Civil Procedure. 1908 and Section 15(6) of the Haryana Act, their Lordships pointed out that the only permissible area for re-appraisal of evidence is to examine the evidence for the purposes of determining the legality or propriety of the findings and the same would not amount to exercise of appellate power. The views of their Lordships read as under:- "Section 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 empowers the High Court to exercise its revisional jurisdiction for the purpose of satisfying itself if an order passed by the Rent Controller or the appellate authority is in accordance with law. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. The question that arises for consideration is whether the High Court in its revisional jurisdiction can reassess or re-evaluate the evidence only to come to a different finding than what has been recorded by the Court below. It has been held by the Supreme Court that the High Court cannot enter into appreciation or reappreciation of evidence merely because it is inclined to take a different view of the facts as if it were a court of facts. However, the High Court is obliged to test the order of the Rent Controller on the touchstone of whether such an order is in accordance with law. That limited purpose the High Court would be justified in reappraising the evidence. The High Court while exercising the jurisdiction can reappraise the evidence only for a limited purpose for ascertaining as to whether the conclusion arrived at by the fact-finding court is wholly unreasonable. ...... A perusal of Sub-section (6) of Section 15 of the Act shows that the power of the High Court to revise an order is not an appellate power, but it is also true that it is not akin to power exercisable under Section 115 C.P.C.. However it is true that the High Court would be justified in interfering with the order passed by the appellate authority if the legality or propriety of such order demands such interference. Therefore it is not permissible for the High Court to reassess or reappraise the evidence of fact recorded by the Court below. Keeping in view the scope of the revisional power under subsection (6) of Section 15 of the Act, in the present case, the appellant landlord was neither in service nor had any business and, therefore, he bona fide required the premises for carrying on business...." 14. The aforementioned view of the Supreme Court in Vaneet Jains case (supra) would demonstrate that it is only in cases where a bald finding is recorded by the Courts below that the High Court would be within its jurisdiction to exercise revisional power under Section 15(5) of the Act or Section 15(6) of the Haryana Act because such an interference by the High Court would be with a view to examine legality or propriety of the orders passed by the Courts below. However, exercise of power in such a manner does not extend to reversing the findings of facts which are based on cogent evidence and it could not be concluded that no reasonable man would reach the aforementioned conclusion. Therefore, reappraisal of evidence in such a manner and with the object of new deductions and inferences is impermissible. 15. The aforementioned view has been further clarified by the Supreme Court in the case of Lekh Raj V/s. Muni Lal and Ors., (2001)2 S.C.C. 762. In that case the principal question involved was whether subsequent events could be brought on record at the stage of revision and it was held that if a subsequent event has a material bearing on the issues involved and was to materially affect the out come of the case, then such subsequent events could be included for deciding the case. In that case, report of the local commissioner appointed by the High Court to ascertain the condition of the tenanted premises was taken into consideration and accordingly the High Court has decided the case. After referring to Section 15(5) of the Act, their Lordships observed as under:- "The law on the subject is well settled. The language of this Sub-section clearly spell out that the High Courts jurisdiction is neither restricted to what is under Section 115 of the Civil Procedure Code nor is it as large as power of the appellate authority. The High Court under its supervisory revisional jurisdiction could examine the "legality" or "propriety" of any order. This "legality" or "propriety" widens the scope of the High Court which is larger than the power of revision under the Civil Procedure Code. But in no case it confers power to set aside findings of fact by reappraisal of evidence. In doing so it would be trespassing (sic beyond) its jurisdiction. However good the reason for drawing a different conclusion, it cannot be construed to be within jurisdiction. Thus courts have to carve out a field for the exercise of revisional jurisdiction under Sub-section (5) of Section 15, emanating from the words "legality" and propriety" which should be between limited revisional jurisdiction under Section 115 CPC and wider appellate jurisdiction." Relying upon the observations made in the cases of Shiv Lal (supra). Thus courts have to carve out a field for the exercise of revisional jurisdiction under Sub-section (5) of Section 15, emanating from the words "legality" and propriety" which should be between limited revisional jurisdiction under Section 115 CPC and wider appellate jurisdiction." Relying upon the observations made in the cases of Shiv Lal (supra). Lachhman Dass V/s. Santokh Singh, (1995)4 S.C.C. 201 : (1995-3)111 P.L.R. 276 (S C.) and Mohini Suraj Bhan V/s. Vinod Kumar Mital, (1986)1 S.C.C. 687 their Lordships summed up the law as under:- "The pith and substance of these authorities, on which the appellant relies is that the Court under Us revisional jurisdiction cannot disturb finding of facts nor could it reappraise evidence on record, it can only interfere if there is impropriety and illegality in the impugned order...... " 16. The judgment of the Supreme Court in the case of Lekh Raj (supra) has been approved in a later judgment in the case of Atma S. Berar V/s. Mukhtiar Singh, (2003)2 S.C.C. 3. The view taken by the Supreme Court in earlier judgments has become more pronounced in Atma S. Berars case (supra) and it would be appropriate to refer to that view in extenso as extracted by the learned editor of the Supreme Court Cases from paras 13 to 15 and the same reads as under:- "The object of conferring revisional jurisdiction on the High Court, by Sub-section (5) of Section 15 of the [E.P.Urban Rent Restriction Act, 1949] is to enable it satisfying itself as to the legality or propriety of an order made by the Controller or the proceedings before him. The scope of revisional jurisdiction under Section 15(5) of the Act is confined to testing the legality or propriety of order or proceedings of the Controller. So simply because a different judge of a Court of facts could have been persuaded to change opinion and draw a different inference from the same set of facts is not the jurisdiction of a revisional authority to upset a pure finding of fact. The High Court need not be solicitous and venture in suggesting what would be more appropriate for the landlord to do. The present one is an appropriate case where the High Court ought not to have interfered with the findings of fact arrived at by the two authorities below and that too concurrently. The High Court need not be solicitous and venture in suggesting what would be more appropriate for the landlord to do. The present one is an appropriate case where the High Court ought not to have interfered with the findings of fact arrived at by the two authorities below and that too concurrently. In exercise of its revisional jurisdiction simply because it was inclined to have a different opinion." 17. From the survey of various judgments of the Supreme Court, it is evident that the revisional jurisdiction of this Court is not to extend to appellate jurisdiction. It is absolutely clear that once a finding of fact has been recorded, it cannot be interfered with simply because a different judge of a court of fact on the same evidence could have been persuaded to change his opinion and draw a different inference because that is not within the jurisdiction of a revisional authority. 18. When the aforementioned principles are applied to the facts of the present case, it is eminently clear that a diesel engine of 5 H.P. has been installed by the tenant-petitioners inside the demised shop and the tenant-petitioners were using the diesel engine for the purposes of supplying power to the Juice Bar run by him which was situated at a distance of 50-100 yards (paragraph 13 of the judgment of Appellate Authority). It has further been found that the landlord-respondent is himself occupying the premises on the first floor of which the shop in question is a part. The operation of diesel engine has been causing nuisance to him within the meaning of Section 13(2)(iv) of the Act as it causes noise pollution and air pollution by emitting smoke. In this regard reliance has been placed on the judgments of the Supreme Court in the cases of Rafat Ali V/s. Sugni Bai, (1999)1 S.C.C. 133; Narpatchand A. Bandari V/s. Shantilal Moolshankar Jani, 13 (2000)3 S.C.C. 190. In Rafat Alis case (supra), a building was leased to the tenant, and ever since was being used for running a business. However, the tenant started using the building by installing some machinery which was found to be of such a nature that the damage caused by it was trivial and was not likely to affect the building. The Supreme Court took the opportunity to examine the legal connotation of the word nuisance. However, the tenant started using the building by installing some machinery which was found to be of such a nature that the damage caused by it was trivial and was not likely to affect the building. The Supreme Court took the opportunity to examine the legal connotation of the word nuisance. It has been pointed out that the nuisance can broadly be divided into two clauses, namely, public nuisance and private nuisance. Public nuisance consists of some acts or omissions which result in violation of right that are enjoyed in common with other members of the public, and private nuisance interferes with a persons use and enjoyment of immovable property or some rights in respect of each. Their Lordship then approved the following view expressed in Halsburys Laws of England:- "309. Both unlawful act and damage necessary.- In order to constitute a nuisance there must be both (1) an unlawful act, ad (2) damage, actual or presumed. Damage alone gives no right of action; the mere fact that a act causes loss to another does not make that act a nuisance. For the purposes of the law of nuisance, an unlawful act is the interference by act or omission with a persons use or enjoyment of land or some right over or in connection with lana." After approving the aforementioned view, their Lordship observed as under: "Suffering of damage must be proved in a case of nuisance unless it can be presumed by law to exist. But the damage to amount to actionable nuisance must be substantial or at least of some significance. In other words, if the damage is insignificant or evanescent or trivial, it would not be actionable nuisance. The following passage in para 312 of the same volume in Halsburys Law of England is worth extracting in this context: "312. Damage essential.- Damage, actual prospective or presumed, is one of the essentials of nuisance. Its existence must be proved, except in those cases in which it is presumed by law to exist. The damage need not consist of pecuniary loss, but it must be material or substantial, that is, it must not be merely sentimental, speculative or trifling, or damage that is merely temporary, fleeting or evanescent." In Narpatchand A. Bhandaris case (supra), the ejectment of the tenant was ordered on account of his various acts which resulted into causing of nuisance to the neighbours. In that case, the tenant has erected a textile printing mill on the terrace of the storeyed building and started operating it during nights which caused the residents and neighbourhood to suffer the vibrations and noise. Holding that those acts coupled with others constituted nuisance within the meaning of Section 13(1)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, their Lordship observed that although there is no statutory definition or annoyance yet such acts were not to fall short of being acts of nuisance if regard is had to their nature intensity and duration. The observation of their Lordship in this regard reads as under:- "There are no statutory definitions of nuisance or annoyance which under Section 13(1)(c) of the Act constitute a ground of recovery of possession by landlord of a premises in the occupation of a tenant. The acts of the defendants or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to neighbouring occupiers, cannot fall short of being acts of nuisance of annoyance if regard is had to their nature, intensity and duration and the consequently ill-effects which might have been produced by them on the normal living of the occupiers. Further, when the particular acts of the defendant or persons residing with him in the premises (flat) of a storeyed building, said to have caused nuisance of annoyance to the occupiers of adjoining or neighbouring occupiers of tenements (flats) in the very same storeyed building are seen, they must be held to be clear acts of nuisance or annoyance envisaged under Section 13(1)(c) of the Act because of the intolerable inconveniences. Sufferings, humiliations which must have been caused to the adjoining or neighbouring occupiers, due regard being given to the locality of the storeyed building, the class of the people living in the tenements of the storeyed building and the nature of living to which they were accustomed. 19. The aforementioned view of the Supreme Court is fully applicable to the facts of the present case because there is sufficient evidence on record showing that installation of diesel engine of 5 HP has resulted into emission of smoke causing air and noise pollution. 19. The aforementioned view of the Supreme Court is fully applicable to the facts of the present case because there is sufficient evidence on record showing that installation of diesel engine of 5 HP has resulted into emission of smoke causing air and noise pollution. Therefore, the landlord-respondents has fully proved the grounds of ejectment envisaged by Section 13(2)(4) inasmuch as the acts and conducts of the tenant is such which have resulted into nuisance to the occupiers of building in the neighbourhood. The matter does not end here as the findings further are that by operation of the diesel engine, the value of the shop as well as that of the building has been materially impaired on account of continuous vibrations caused by it within the meaning of Section 13(2)(iii) of the Act. The Courts below have also considered that use of the demised shop in such a manner could not be considered to have even been permitted by the landlord-respondent at the time of letting out which broadly speaking could be construed to have been let out only for commercial purposes. Therefore, the Courts below have found the violations to be covered by Section 13(2)(ii)(b) of the Act which provides for ejectment of a tenant on the ground of change of user by the tenant. A perusal of various paragraphs of the judgments of both the Courts below would reveal that there is an elaborate and detailed evidence in support of the findings recorded by both the Courts below. In such a case, the findings cannot be interfered with as has been held by the Supreme Court in various precedents noticed above. Moreover, no second view on the reading of evidence is possible. 20. This argument raised by the learned counsel for the petitioners that the findings are contradictory, cannot be accepted because in order to reach the conclusion the findings with regard to the installation of diesel engine have to be first set aside and the same cannot be done in view of the discussion in the preceding paragraph. Even otherwise, 1 do not find any consideration in the findings because vibrations could be caused simultaneously with the nuisance of air pollution caused by emission of smoke. There is evidence on record showing installation of long pipe for emission of smoke. Therefore, there is no substance in this argument. Even otherwise, 1 do not find any consideration in the findings because vibrations could be caused simultaneously with the nuisance of air pollution caused by emission of smoke. There is evidence on record showing installation of long pipe for emission of smoke. Therefore, there is no substance in this argument. The other argument that the nuisance has now ceased, inasmuch as, the diesel engine has been removed, cannot be accepted because the tenant-petitioners cannot put the clock back and undo what has been done by the operation of the diesel engine for a long period of 10/11 years, namely, damage caused to the building and demised shop which has developed big cracks on account of vibration caused by the operation of 3.H.P. Diesel engine. The Expert in his Report Ex.A/33 has stated that not only the demised shop but the whole building has developed big cracks which have impaired the value and utility of the demised shop as well as the building. Therefore, I have no hesitation in rejecting the argument of Learned counsel for the tenant-petitioners. 21. For the reasons recorded above, this petition fails and the same is dismissed.

Janak Raj v. Mohan Lal