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2014 DIGILAW 3244 (ALL)

Mahendra Kumar v. Parasram Ram Goel

2014-10-30

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri H.R. Mishra, Senior Advocate, assisted by Sri K.M. Mishra, for the petitioner and Sri H.P. Dubey, for the respondents. 2. This writ petition has been filed against the orders Judge, Small Causes Court, Saharanpur dated 12.10.2012 decreeing SCC Suit No. 5 of 2007 filed by Parasram Goel and sons and others for arrears rent and ejectment of the petitioner and Additional District Judge, Court No. 4, Saharanpur dated 14.08.2014, dismissing SCC Revision No. 69 of 2012, filed by the petitioner and SCC Revision No. 65 of 2012 filed by Parasram Goel and sons and others against the aforesaid decree. 3. Parasram Goel and sons and others (the respondents) filed a suit (registered as SCC Suit No. 5 of 2007) under Section 20 of U.P. Act No. XIII of 1972 for ejectment of the petitioner from the shop in dispute and arrears of rent and mesne profit. The plaint case was that the respondents were landlord of the shop in dispute and the petitioner was tenant in it on the rent of Rs. 318/- + house tax and water tax. The petitioner is defaulter in payment of rent since 01.04.2005. In spite of demand of rent, the petitioner has not paid rent as such his tenancy was terminated through registered letter dated 02.12.2006 (served on 06.12.2006). In spite of service of notice, the petitioner has neither paid arrears of rent nor vacated shop in dispute, after expiry of the period of one month. The petitioner has unauthorisedly made material alteration in the shop in dispute without consent of landlord causing substantial damage in it. In the western side of the shop, there was a verandah but by making alteration, existence of verandah was taken away. In the western side of the shop, there were two doors, which were removed by the petitioner. In the eastern side of the shop, there was one small room constructed for using as a store but it was demolished and its door was removed. In the eastern side of the shop, there was some open land surrounded in boundary wall, in which there was a door in southern side but the petitioner has removed the door and raised permanent construction at this place and by raising the height of boundary wall, a tin shed construction has been raised over the open land. In the eastern side of the shop, there was some open land surrounded in boundary wall, in which there was a door in southern side but the petitioner has removed the door and raised permanent construction at this place and by raising the height of boundary wall, a tin shed construction has been raised over the open land. The eastern door of the shop was also removed and it eastern wall was demolished. Due to which, the shape of the shop was disfigured. 4. The petitioner contested the suit and filed his written statement and denied the allegations of the plaint. In additional plea, it has been alleged that the landlord was insisting to enhance the rent arbitrarily 25 times of the existing rent which was not accepted by the tenant therefore suit was malafide filed on false allegations concealing the material facts. The petitioner sent the arrears of the rent through money order on 12.06.2006, which was got return from post office, than the petitioner deposited rent in Case No. 39 of 2006 under Section 30 of the U.P. Act No. XIII of 1972, of which landlord had full knowledge. After receiving summons of this suit, entire amount claimed by the landlord has been deposited under Section 20 (4) of U.P. Act No. XIII of 1972, in this suit unconditionally. Allegations, regrading material alteration in the shop in dispute are totally false. In the verandah existing in western side of the shop, the shutter was affixed with the consent of the landlord as western verandah was part of the shop in dispute. The western doors were removed with the consent of landlord and handed over to them. There was neither any store room in the eastern side of the shop nor it was demolished by the petitioner. Open land, surrounded by boundary wall, lying in the eastern side of the shop, in which there was a door in southern side was also in the tenancy of the petitioner. The petitioner has not removed the door but only raised temporary construction behind the door which can be removed at any time. With the consent of the landlord, height of boundary wall was raised on which a tin shed was kept, which is temporary and can be removed at any time. The eastern door of the shop was not removed nor eastern wall was demolished. With the consent of the landlord, height of boundary wall was raised on which a tin shed was kept, which is temporary and can be removed at any time. The eastern door of the shop was not removed nor eastern wall was demolished. Due to threats of the landlord, the petitioner filed Civil Suit No. 452 of 2006, in which the parties were directed to maintain status quo. The suit was liable to be dismissed with special cost. 5. The Judge Small Causes Court, by his judgment dated 12.10.2012 held that rent of the shop in dispute was Rs. 382/- per month inclusive house tax and water tax. Tenancy of the petitioner was terminated through notice dated 02.12.2006, which was a valid notice. Although, the petitioner was a defaulter in payment of rent but as the entire amount as claimed in the suit was deposited on receiving summons of the suit within time as such, the petitioner is entitled to the benefits of Section 20 (4) of U.P. Act No. XIII of 1972. The petitioner has raised permanent construction, making material alteration in the shop in dispute without any authority and consent of the landlord, due to which shop in dispute was disfigured which also reduced its utility as such he is liable to be ejected. On these findings suit for arrears of rent, mesne profit and ejectment was decreed. 6. The petitioner filed a revision (registered as SCC Revision No. 69 of 2012), from the aforesaid decree. The respondents also filed a revision (registered as SCC Revision No. 65 of 2012) against the findings that the petitioner was entitled to the benefits of Section 20 (4) of U.P. Act No. XIII of 1972. Both the revisions were consolidated and heard together. Additional District Judge, after hearing the parties by order dated 14.08.2014 affirmed the findings of Judge, Small Causes Court and dismissed both the revisions. Hence this writ petition has been filed. The respondents are caveator in the writ petition and the counsel for the respondents stated that the respondents did not propose to file any writ petition, against the order dismissing their revision. 7. The counsel for the petitioner submitted that the petitioner was inducted as tenant in the shop in dispute through the agreement dated 30.05.1976 (Annexure-11) which was admitted by the landlord in the plaint of their SCC Suit No. 13 of 1980. 7. The counsel for the petitioner submitted that the petitioner was inducted as tenant in the shop in dispute through the agreement dated 30.05.1976 (Annexure-11) which was admitted by the landlord in the plaint of their SCC Suit No. 13 of 1980. In this agreement, the petitioner was permitted to make changes in the shop on dispute and such changes has to be removed and previous condition has to be restored by the petitioner at the time of vacation of the shop in dispute. In clause 5 of this agreement, the petitioner was permitted to erect one door in the western side by removing two existing doors and also permitted to affix shutter in both side of the verandah. Similarly, the petitioner was permitted to raise the height of boundary wall of the eastern open land. Thus there was an express authority to the petitioner for making alteration in the shop in dispute. Verandah in the western side and open surrounded land in eastern side were in the tenancy of the petitioner. Shutter affixed in the western side and tin shed roof put by raising height of the boundary walls in the eastern side are temporary constructions and can be removed without causing any damages to the shop in dispute. There was no clause in the agreement, requiring for written permission of the landlord for such alteration. Thus the constructions were made under the authority and permission as given in the agreement. These constructions do not diminish the value of the shop or reduced its utility in any way nor it disfigured it. The courts below have mechanically decreed the suit. He relied upon the judgments of Supreme Court in Om Prakash Vs. Samar Singh, AIR 1987 SC 617 , in which the tenant has constructed a lavatory bathroom and a kitchen inside the premises and a room on the outer chabutra and Supreme Court held that due to such construction, value and utility of the premises has increased as such this cannot be a ground for ejectment of the tenant under Section 20 (1) (C) of U.P. Act No. XIII of 1972 and Waryam Singh Vs. Baldeo Singh, 2002 (9) JT 189 (SC), in which it has been held that landlord is required to adduce evidence in respect of the fact that value has been reduced due to material alteration. 8. Baldeo Singh, 2002 (9) JT 189 (SC), in which it has been held that landlord is required to adduce evidence in respect of the fact that value has been reduced due to material alteration. 8. I have considered the arguments of the counsel for the parties and examined the record. In paragraph-4 of the plaint, the respondents have stated that the petitioner has unauthorisedly made material alteration in the shop in dispute without consent of landlord causing substantial damage in it. In the western side of the shop, there was a verandah but by making alteration, existence of verandah was taken away. In the western side of the shop, there were two doors, which were removed by the petitioner and in its place one door was affixed. In the eastern side of the shop, there was one small room constructed for using as a store but it was demolished and its door was removed. In the eastern side of the shop, there was some open land surrounded by boundary wall, in which there was a door in southern side but the petitioner has removed the door and raised permanent construction at this place and by raising the height of boundary wall, a tin shed construction has been raised over the open land. The eastern door of the shop was also removed and it eastern wall was demolished. Due to which, the shape of the shop was disfigured. In paragraph-5 of the affidavit of Ishwar Dayal Goel, filed on behalf of the land lord, all the aforesaid facts have been reiterated and in paragraph-15 of the affidavit, facts stated by the petitioner in his written statement in this respect were denied. In cross examination, Ishwar Dayal Goel has stated that material alterations were made in July 2006. Thus the arguments that no evidence has been adduced by the landlord in this respect is not accepted. Otherwise also some of the material alterations were admitted by the petitioner. 9. So far as the arguments that the petitioner was given authority under the agreement dated 30.05.1976 for making the alterations is concerned, a perusal of clause 9 of the agreement shows that it has been made clear that whatever alteration would be made that would be made with the consent of the landlord otherwise no alteration would be made. 9. So far as the arguments that the petitioner was given authority under the agreement dated 30.05.1976 for making the alterations is concerned, a perusal of clause 9 of the agreement shows that it has been made clear that whatever alteration would be made that would be made with the consent of the landlord otherwise no alteration would be made. Admittedly the petitioner could not adduce any evidence to show that consent was taken by him before making alteration. The arguments of the counsel for the petitioner that no written consent was required to be taken before making alteration is not liable to be accepted as Section 20 (2) (c) of U.P. Act No. XIII of 1972 required to written permission for making alteration. Clause 9 of the agreement, clearly imposed a restriction on the right of the petitioner in making alteration without consent as such it is imperative that for making alteration written consent was required to be taken. The petitioner in paragraph-8 of his affidavit has denied the allegations regarding material alterations except removal of two doors of the western side and erection of shutter in the verandah and raising height of the boundary wall in the eastern side. Thus the findings that the petitioner has raised material alteration without consent of the land land lord due to which shop in dispute was disfegured and its utility has been reduced, do not suffer from any illegality. 10. Now it has to be examined as to whether the alterations made by the petitioner could be taken as a ground for his ejectment under Section 20 (2) (c) of U.P. Act No. XIII of 1972. which is quoted below: - 20 (2).--A suit for eviction of a tenant from a building after determination of his tenancy may be instituted on one or more of the following grounds namely: (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it. 11. Similar controversy came for consideration of a bench of three Hon,ble Judges of Supreme Court in Manmohan Das Shah v. Bishun Das, AIR 1967 SC 643 , in which the constructions lowering the level of the ground floor by about 1-1/2 ft. 11. Similar controversy came for consideration of a bench of three Hon,ble Judges of Supreme Court in Manmohan Das Shah v. Bishun Das, AIR 1967 SC 643 , in which the constructions lowering the level of the ground floor by about 1-1/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door, lowering correspondingly the height of the Chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations which are not only material alterations but are such as to give a new face to the form and structure of the premises. In this view the construction carried out by the respondent must fall within the mischief of Section 3(1)(c) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 and entitles the appellants to maintain their suit for eviction without the permission of the District Magistrate and to a decree for eviction. 12. Supreme Court again in Sohan Lal v. Ram Prakash, 1987 Supple. SCC 606, held that the tin shed with pucca pillars and raising of the platform making it permanent amount to material alteration within the meaning of Section 3(1)(c) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. 13. Supreme Court in Purushottam Das Bangur v. Dayanand Gupta, (2012) 10 SCC 409 , held that no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word "permanent" in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored. Applying the above tests to the instant case the structure was not a temporary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the respondent occupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease. The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within the mischief of Section 108(p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction. 14. In the western side of the shop, there was a verandah but by making alteration, existence of verandah was taken away. In the western side of the shop, there were two doors, which were removed by the petitioner. In the eastern side of the shop, there was one small room constructed for using as a store but it was demolished and its door was removed. In the western side of the shop, there were two doors, which were removed by the petitioner. In the eastern side of the shop, there was one small room constructed for using as a store but it was demolished and its door was removed. In the eastern side of the shop, there was some open land surrounded in boundary wall, in which there was a door in southern side but the petitioner has removed the door and raised permanent construction at this place and by raising the height of boundary wall, a tin shed construction has been raised over the open land. The eastern door of the shop was also removed and eastern wall was demolished. Due to which, the shape of the shop was disfigured. Thus material alterations have been made. The Courts below concurrently held that the petitioner has raised permanent construction, making material alteration in the shop in dispute without any authority and consent of the landlord, due to which shop in dispute was disfigured which also reduced its utility. The concurrect finding of facts recorded by two courts below cannot be interfered by this Court. 15. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.