Hakim Nafisul Hassan vs IInd Additional District Judge, Saharanpur and another

S.U. Khan, J.—Heard Shri M.A. Qadeer, learned Senior Counsel assisted by Shri Shamim Ahmad, learned Counsel for the petitioner and Shri Virendra Kumar who stated that he had filed his vakalatnama on behalf of all the proposed legal representatives of respondent No. 2. In the order sheet of 30.7.2008 also it is mentioned that Shri Virendra Kumar has filed vakalatnama on behalf of the respondents.

This is tenant''s writ petition. Original landlordrespondent No. 2Master Asghar Ali Khan since deceased and survived by legal representatives filed suit for eviction against tenantpetitioner in the form of S.C.C. Suit No. 77 of 1993. Relief of recovery of arrears of rent was also sought. Admitted rent is Rs. 8/ per month. Property in dispute is house containing one room and other amenities. Eviction was sought on the ground of default as well as material alternation. As far as default is concerned tenant deposited the entire rent on the first date of hearing and both the Courts below held that tenantpetitioner was entitled to the benefit of section 20 (4) of Uttar Pradesh Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972. The said point does not survive.

Judge Small Causes Courts, Saharanpur dismissed the suit for eviction through judgment and decree dated 18.4.1996 holding that there was no such material alteration which was covered by sections 20 (2) (b) and (c) of the Act. However, landlord was held entitled to withdraw the amount deposited by the tenant. Against the said judgment and decree original landlordrespondent No. 2 filed S.C.C. Revision No. 38 of 1996. IInd Additional District Judge, Saharanpur through judgment and order dated 8.2.1997 allowed the revision, set aside the judgment and decree passed by the Trial Court and decreed the suit for eviction also hence this writ petition.

The material alternation which was alleged and found to have been made by the tenant without the consent of the landlord was as follows :

(a) Service latrine was converted into flush latrine,

(b) A wall which had fallen down was reerected by the tenant.

In my opinion all these alterations are not covered by any of the two clauses of section 20 (2) of the Act which are quoted below :

(b) that the tenant has willfully caused or permitted to be caused substantial damage to the building;

(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;

Revisional Court held that alterations made by the tenant caused inconvenience to the landlord. It is not clear what the Revisional Court meant by inconvenience to the landlord. In any case inconvenience to landlord is no ground to direct the eviction of the tenant. Supreme Court in Wariyam Singh v. Baldeo Singh, 2002 (49) ALR 707 (SC) has held that enclosing a veranda by a wall by itself does not amount to material alteration. The said case was under East Punjab Rent Control Act. Supreme Court in G. Raghunathan v. K.V. Vergeese, 2005 (61) ALR 138 (SC)=2005 (34) AIC 739 has held that closing the door and window by bricks lowering level of wall, cutting the rafters, erecting concrete pillars and fixing the rolling shutter does not amount to material alteration. That was a case from Kerala. Supreme Court in Hari Rao v. N. Govindachari 2005 (61) ALR 597 (SC)=2005 (35) AIC 931 (SC) has held that putting up racks on the wall of a shop by drilling whole does not amount to material alteration. In the above two authorities of the Supreme Court of 2005 several other earlier authorities of the Supreme Court pertaining to the question of material alteration have been considered.

In my opinion, therefore, the constructions/alterations made by the tenant are not covered by any of the two clauses of section 20 (2) of the Act.

Accordingly, writ petition is allowed. Judgment and order passed by the Lower Revisional Court is set aside. Judgment and decree passed by the Trial Court is restored. Suit for eviction is dismissed.

I have held in Khursheeda v. A.D.J., 2004 (55) ALR 586 and H.M. Kichlu v. A.D.J., 2004 (57) ALR 485, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or while maintaining the said relief already granted by the Courts below, Writ Court is empowered to enhance the rent to a reasonable extent.

In the aforesaid authority of Khursheeda (supra), I placed reliance upon the Supreme Court authority of M.V. Acharya v. State of Maharashtra, AIR 1998 SC 602 where it was held that it was essential to provide for periodical enhancement of rent under the Rent Control Act. The Supreme Court has further held that frozen rents are giving rise to lawlessness and landlords out of frustration are approaching muscle man to get the premises vacated and Courts of law are becoming redundant in this sphere. This authority has recently been followed by the Supreme Court in Satyawati Sharma (dead) by LRs. v. Union of India and another, (2008) 5 SCC 287=2008 (71) ALR 499 part of Para29 and Para34 of which are quoted below :

"29 It is trite to say that legislation which may be quite reasonable and rationale at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equity and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become nonexistent.

In Malpe Vishwanath Acharya and others v. State of Maharashtra and another (supra), the Court found that the criteria for determination and fixation of rent by freezing or by pegging down of rent as on 1.9.1940 or as on first date of letting, had, with the passage of time become irrational and arbitrary but did not strike down the same on the ground that extended period of Bombay Rent (sic) ing to an end on 31.3.1998."

Under U.P. Rent Control Act, there is no provision of enhancement of rent after October, 1972 [Except where landlord is public charitable or public religious institution (section 9A) or Government is tenant (section 21 (8)]. In the aforesaid authority of Khursheeda, I have also placed reliance upon the authority of Supreme Court in "Shangrila Food Products Ltd. v. Life Insurance Corporation of India", AIR 1996 SC 2410 paragraph11 of which is quoted below :

"It is wellsettled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief."

Thereafter in Para8 of the aforesaid authority of Khursheeda, I held as under :

"Rent Control Act confers a reasonable advantage upon the tenant of protection against arbitrary eviction. Tenant under the Rent Control Act cannot be evicted except on specific grounds like bona fide need of the landlord, arrears of rent, subletting and material alteration etc. This advantage is also coupled with the advantage of immunity from enhancement of rent. The latter advantage cannot be said to be either reasonable or equitable. The Supreme Court in the aforesaid authority of S.F.P. v. L.I.C., AIR 1996 SC 2410 has laid down that while granting relief to a party the Writ Court can very well ask the said party to shed the unfair advantage which it gained under the impugned order. By slightly extending the said doctrine it may safely be held that while granting the reasonable advantage to the tenant conferred upon him by the Rent Control Act the tenant may be asked to shed the unreasonable arbitrary advantage conferred upon him by the said Rent Control Act. The Writ Court therefore while granting or maintaining the relief against arbitrary ejectment to the tenant can very well ask the tenant to shed the unreasonable benefit of the Rent Control Act granted to him in the form of immunity against enhancement of rent, however inadequate the rent might be. Tenant will have to shed the undue advantage of immunity from enhancement of rent under the Rent Control Act to barter his protection from arbitrary eviction provided for by the said Act."

Thereafter in H. M. Kitchlu v. A.D. J., 2004 (57) ALR 485. I have held that the same principle of enhancement of rent to a reasonable extent may be made applicable while dismissing the writ petition of the landlord for the reason that by doing so Writ Court approves the protection of Rent Control Act granted to the tenant by the Courts below.

Property in dispute is a house consisting of one room and other amenities and is situate in Saharanpur which is quite near to Delhi and is an important city of Western Uttar Pradesh. Existing rent of Rs. 8/ per month is virtually as well as actually no rent. It is rather ridiculous.

Accordingly, it is directed that with effect from October 2008 onward tenantpetitioner shall pay rent at the rate of Rs. 500/ per month to the landlordrespondent.