HARI RAOversusN. GOVINDACHARI AND ORS.

                                HARi RAO                                       A
                                     V.

                     N. GOVINDACHARI AND ORS.

                         SEPTEMBER 15, 2005

      [B.N. SRIKRISHNA AND P.K. BALASUBRAMANYAN, JJ.]                          B


     Rent Control and Eviction:

      Tamil Nadu Buildings (Lease and Rent Control) Act, 1960; Ss. 10(2),
11(2) and 21/Transfer of Property Act; Section 108(0):                         C
      Premises let out for carrying on trade in leather goods/shoes-User of
the premises by tenant for different purposes-Eviction petition-Allowed by
Rent Control/er-Reversed by Appellate Authority-Challenge to-Allowed
by High Court restoring the order of Rent Controller-On appeal, Held: D
When lease is granted for carrying on a trade without any covenant prohibiting
a user different from the one mentioned in the lease deed, the tenant could
carry on any trade in the premises consistent with the location and nature of
the premises-Since the premises in question let out for the purpose of trading
in leather/shoe trade, its user for readymade garments could not be held to
be a user by the tenant for changed purpose-Section 10(2)(ii)(b) of the Act E
not attracted-Both the Rent Controller and the High Court did not consider
the relevant aspects in the context of Statute and acted without jurisdiction in
passing an order of eviction.

     Fixing of Racks etc. by drilling holes in the walls-Acts of waste-Held:
Such acts of tenant could not be termed as acts of waste since the landlord    F
could not produce any material in support thereof

      The respondent-landlord leased out the premises in question, a room,
to the appellant-tenant for the purpose of a shoe trade/trade in leather
goods, but the tenant used a part of the premises for carrying on trade in     G
readymade garments and in connection thereto, the tenant had also fixed
name-boards outside the premises and drilled two holes in the walls for
fixing racks and had also taken an independent three phase electric
connection. The landlord filed an eviction petition on the ground of using
the building for a purpose other than that for which it was leased out and
                                   217                                         H
    218                    SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A   that these acts of fixing of racks etc. by the tenant amount to commission/
    causing commission of such acts of waste as are likely to impair materially,
    the value or utility of the building within the meaning of Section 10(2)(iii)
    of the Tamil nadu (Lease and Rent Control) Act. The petition was allowed
    by the Rent Controller. The order was reversed by the Appellate authority.
    On appeal, High Court held that the Rent Controller was correct in
B   ordering eviction on the facts established in the case. Hence the present
    appeal.

          Appellant-tenant contended that the premises was let out for the
    purpose of a trade, though, at the relevant time, he was only conducting
C   a trade in shoes; and that there was no violation by him of any terms of
    the letting as there was no change of user by him by using part of the
    premises for carrying on trade in readymade garments.

          Respondent-landlord submitted that he had let out the premises for
    running a shoe-mart and he did not enter into any other agreement
D   permitting the tenant to sell readymade garments in the premises; and
    that the tenant had converted a portion of the shop for selling readymade
    dresses and this amounted to user of the shop by the tenant for a purpose
    other than that for which it was leased.

          Allowing the appeal, the Court
E
          HELD: I.I. When the lease is granted for the purpose of a trade, in
    the absence of any covenant in the contract between the parties prohibiting
    a user different from the particular one mentioned in the lease deed, the
    tenant would be entitled to carry on any trade in the premises, consistent
    with the location and the nature of the premises. (244-C-D)
F
           1.2. In a case where the premises let out for a commercial purpose,
    is used by the tenant for a residential purpose, it would be a user for a
    purpose other than that for which it was leased attracting Section 10 (2)
    (ii) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
G   Similarly, if a building had been let out for the purpose of a trade, but a
    tenant uses the premises for the purpose of manufacture or production of
    materials after installing machinery, that would be a user other than the
    one for which the building was let. User of a building let out for a trade
    as a godown may attract the provision. Ultimately, the question would
    depend upon the facts of a particular case, in the context of the terms of
H   the letting and the covenants governing the transaction and the general
                       HAR! RAO v. N. GOVINDACHARI                        219
spirit of Section 108(0) of the Transfer of Property Act Merely because a         A
shop let out for trade in shoes and other leather goods, is used by the tenant
also for the purpose of trading in readymade garments, it could not be
held to be a user by the tenant of the premises for a purpose other than
that for which it was leased. [244-D-E-F-G]

      2.1. In the present case, there was no change of user, from non-            B
residential to residential or from business to manufacturing or industrial.
There was also no negative covenant as was available in Aru/ Jothi 's case.
In such a situation, the High Court was clearly in error in interfering with
the decision of the Appellate Authority that there was no change of user
in the case on hand attr'llcting Section 10 (2) (ii) (b) of the Act. Merely       C
because a tenant, who has taken a building for the purpose of running a
trade, alters the commodity in which he was trading when he took the
building on lease or trades in other commodities also, he could not be held
to be using the premises for a purpose other than the purpose for which
it was let. The purpose has to be understood, as the purpose of trade and
in the absence of a covenant barring the using of it for any other trade, it      D
will be open to the tenant to use the premises for expanding his trade or
even for taking up other lines of trade as befits a prudent trader.
                                                              [226-D-E-F-G]

      M Arul Jothi and Anr. v. Laija Bal (Deceased) and Anr., (2000] 3 SCC
723 and MK. Palaniappa Chettiar v. A. Pennuswami Pillai, [1970] 2 SCC             E
290, held inapplicable.

      M.K. Pa/aniappa Chettiar v. A. Pennuswami Pillai, 11970] 2 SCC 290;
Mohan Lal v. Jai Bhagwan, 11988] 3 SCR 345; Gurdial Batra v. Raj Kumar.
Jain, (1989] 3 SCR 423 and Dashrath Baburao Sangale and Ors. v.                   F
Kashimath Bhaskar Data 11994] Supp. 1 SCC 504 and Ram Gopal v. Jai
Narain and Ors., 11995] Supp. (4) SCC 648, referred to.

       2.2. It is true that this Court has held in the case of Malpe Vishwanath
Acharya and Ors. v. State of Maharashtra and Anr., that the Rent Control
Legislation is enacted in the larger interest of the society as a whole and       G
it is not intended to confer any disproportionately larger benefit on the
tenant to the disadvantage of the landlord. But that does nc:it mean that
the Rent Control Legislation should not be approached as a beneficial piece
of legislation and with the recognition that reasonable protection to the
tenant is one of the objects of that legislation. While construing a provision
of law imposing a liability, for eviction, like Section 10 (2) (ii) (b) of the    H
    220                    SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A   Act, one must see whether there has been such a change of user of the
    premises as to make it alien to the purpose for which the building was let
    and deny eviction when the basic activity remains the same and there is
    only a variation in the manner or mode of carrying on of that activity.
    Therefore, the interpretation placed on Section 10 (2) (ii) (b) of the Act
B   by the High Court in the decision under appeal and in some other decisions
    of that Court referred to in the orders of the Rent Controller and the High
    Court, has to be held to be not warranted or justified. The order of eviction
    passed by the High Court under Section 10 (2) (ii) (b) of the Act has,
    therefore, to be reversed. (226-G-H; 227-A-B-C}

C         Malpe Vishwanath Acharya and Ors. v. St.ate of Maharashtra and Anr.,
    (1998) 2 SCC I, referred to.

           3. It is true that for the purpose of his trade, the tenant fixed new
    racks by making holes in the floor, the walls and in the beams. But, in the
    absence of any other material, it cannot be said to be the commission of
    acts of waste as are likely to impair materially the value and utility of the
D   building; there is hardly any evidence on the side of the landlord to show
    that there was material impairment, either in the value or the utility of
    the building by such acts of the tenant. The mere fixing of sign-boards
    outside the shop by taking support from the parapet wall, cannot be
    considered to be an act of waste which is likely to impair materially the
E   value or utility of the building. The report of the Engineer, P. W.2, merely
    asserts that the parapet wall will collapse at any time. There is no
    supporting evidence in respect of that assertion. Ex. Bl-letter of the
    landlord giving permission to the tenant to fix boards, cannot also be
    ignored in this context. Moreover, when a trade is carried on in a premises,
    that too in an important locality in a city, it is obvious that the tenant
F   would have to fix sign-boards outside, to attract customers. These are days
    of fierce competition and unless the preinises is made attractive by lighting
    and other means, a trader would not be in a position to attract customers
    or survive in the trade. Therefore, the acts of the tenant established, are
    merely acts which are consistent with the needs of the tenant who has taken
G   the premises on rent for the purpose of a trade in leather goods and shoes
    and in furtherance of the prospects of that trade. The fixing ofracks inside
    the premises even by drilling holes in the walls or beams cannot be said
    to be acts which are themselves acts of waste as are likely to impair
    materially the value and utility of the building. [228-A-B-C-D-E-F-G)

H         G. Arunachalam (dead) through L.Rs. and Anr. v. Thondarperienambi
        HARi RAO v. N. GOVINDACHARI [BALASUBRAMANYAN, J.)                 221

and Anr., AIR (1992) SC 977 and G. Raghunathan v. K. V Varghese, (2005)          A
6 SCALE 675, relied on.

      British Motor Car Co. v. Madan Lal Saggi (Dead) and Anr., (2005) I
SCC; Om Prakash v. Amar Singh, [1987) 1 SCC 458; Om Pal v. Anand
Swarup, (1988) 4 SCC 545; Waryam Singh v. Baldev Singh, (2003) I SCC
59; Gurbachan Singh v. Shivalak Rubber Industries, (1996) 2 SCC 626 and          B
Vipin Kumar v. Roshan Lal Anand, [1993) 2 SCC 614, referred to.

      4. The Rent Controller and the High Court have not properly applied
their minds to the relevant aspects in the context of the statute and have
acted without jurisdiction in passing an order of eviction under Section         C
10 (2) (iii) of the Act. The Appellate Authority was justified in denying an
order of eviction to the landlord on this ground. (229-E-F-GJ

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5751 of2005.

     From the Judgment and Order dated 19.12.2001 of the Madras High             D
Court in C.R.P. No. 2577 of 1996.



      A.T.M. Sampath and Mrs. T.S. Shanthi for the Appellant.

      C. Paramasivam, P. Ramesh and Rakesh K. Sharma for the Respondents.        E
      The Judgment of the Court was delivered by

      P.K. BALASUBRAMANY AN, J. 1. Leave granted.

      2. A room in a building in Thousand Lights, Mount Road Madras, is          F
the subject matter of this proceeding. The respondent-landlord leased that
room, a 'building' as defined in the Tamil Nadu Buildings (Lease and Rent
Control) Act, I 960 to the appellant. According to the landlord, the letting
was for the purpose of a shoe trade or trade in leather goods by the tenant.
There was a prior proceeding in which there was a compromise and the
building was re-let to the tenant after it was re-modelled or re-constructed.    G
While carrying on his business, the tenant had used a part of the premises for
carrying on a trade in readymade garments and that amounted to a user of the
building by the tenant for a purpose other than that for which it was leased,
within the meaning of Section I 0 (2) (ii) (b) of the Act. The tenant had also
fixed name-boards outside and drilled two holes in the walls for fixing racks    H
    222                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A for the purpose of his trade and had taken an independent three phase electric
    connection and for that purpose he had made holes on the floor and on the
    wall; that these acts of the tenant amount to commission or causing the
    commission of such acts of waste as are likely to impair materially, the value
    or utility of the building within the meaning of Section 10 (2) (iii) of the Act.
B   Thus, the landlord claimed eviction of the tenant, the appellant, on these two
    grounds.

           3. The appellant resisted the cla!m. He contended that the original
    letting was not for the purpose of trade in shoes or leather goods alone. He
    was still carrying on the business of selling shoes, but had expanded his trade
C   by including the trade in readymade garments. There was no user of the room
    by him for a purpose other than the purpose for which it was let. He was not
    liable to be evicted on that ground. The fixing of the sign-boards was permitted
    by the landlord and fixing of the boards or the fixing of the racks for the
    purpose of his trade, did not amount to acts of waste as are likely to impair
    materially the value and utility of the building. He had to take the electric
D   connection, a three phase one, for the purpose of his trade and that act again
    did not result in any damage to the building or amount to waste and hence
    he was not liable to be evicted on that ground as well. He thus prayed for
    dismissal of the petition for eviction.

          4. In addition to marking Ex. A I, to A4, the landlord examined himself
E as P.W.1 and examined the Engineer who prepared Ex. A4 report as P. W. 2.
  The tenant marked Ex. B1- letter and Ex. B2-report and examined himself as
  R.W.1 and examined the engineer who prepared Ex. B2- report as R.W.2.
  According to him, Exhibit BI indicated that there was no restriction on his
  user of the premises. The Rent Controller held that the user of the building
p also for the purpose of carrying on a trade in readymade garments, amounted
  to using the building for a purpose other than that for which the building was
  let within the meaning of Section 10 (2) (ii) (b) of the Act and an order for
  eviction was liable to be passed thereunder. He also held that the fixing of
  the sign-boards, the fixing of the racks and the taking of an independent three
  phase electric connection by drilling holes for that purpose, amounted to
G commission of waste in the building attracting Section I0 (2) (iii) of the Act.
  Thus, eviction was ordered both under Section 11 (2)(ii)(b) and under Section
   11 (2) (iii) of the Act. The tenant appealed. The Appellate Authority found
  that the user by the tenant of the building also for the purpose of a retail trade
  in readymade garments, did not amount to user of the building for a purpose
H other than that for which the building was let and consequently, held that the
        HARi RAO v. N. GOVINDACHARI [BALASUBRAMANY AN, J.]                  223
landlord was not entitled to an order for eviction under Section I 0 (2) (ii) (b)   A
of the Act. The Appellate Authority further held that the fixing of the sign-
boards, the fixing of the racks and the taking of an independent three phase
connection did not amount to commission of waste by the tenant attracting
Section 11 (2) (iii) of the Act. Thus, the Appellate Authority found that the
landlord has not made out his claim for eviction on the two grounds he had          B
put forward. It reversed the decision of the Rent Controller and dismissed the
eviction petition. The landlord filed a revision before the High Court
challenging the legality, regularity and propriety of the order of the Appellate
Authority. The High Court held that the Rent Controller was correct in ordering
eviction on the facts established in the case and the decision of the Appellate
Authority was liable to be reversed. The High Court, thus, allowed the revision     C
and setting aside the decision of the Appellate Authority, restored the order
for eviction passed by the Rent Controller. The decision of the High Court
thus rendered, is challenged in this appeal at the instance of the tenant.

       5. Admittedly, the building was let out for the purpose of carrying on
of a trade by the tenant. There is no lease deed executed by the parties            D
evidencing the transaction. The evidence indicates that at the relevant time,
the tenant wanted to start a business in sale of leather goods, particularly
shoes, and for that purpose he took the building on lease. Exhibit B-1 letter,
written by the landlord to tenant referred to and quoted by the Rent Controller,
shows that the tenant was entitled to 'continue the tenancy with the present        E
increased rent, on the premises, with all tenancy rights including the rights
of putting up boards and painting on the walls of the portion of the premises,
No. 638 at Mount Road, Madras-6 under your occupation'. In his evidence
as P.W. I, the landlord stated that he had let out the premises for running a
shoe-mart and he had not entered into any other agreement permitting the
tenant to sell readymade garments in the premises. But, there was an agreement      F
to allow him to sell decoration materials but the tenant was not selling them.
There was also a permission to sell fancy goods but that represented only
leather goods. Chappals and socks as well as shoes could be sold from the
premises. There was no agreement by which the tenant was permitted to sell
clothes and T-shirts. In his petition for eviction, the landlord had only stated    G
that the tenant had taken the building on lease for the purpose of running a
shoe-mart but the tenant had converted a portion of the shop for selling
readymade dresses and this amounted to user of the shop by the tenant for
a purpose other than that for which it was leased. This was disputed by the
tenant in his objection, who took the stand that it was generally for the
purpose of his trade that the building was let, though, at the relevant time,       H
    224                      SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A   he was only conducting a trade in shoes. There was no violation by him of
    any term of the letting and there was no user of the shop for a purpose other
    than the purpose for which it was let out to him. It is necessary to notice here
    that there was no plea of the tenant having covenanted not to use the building
    for a~y other trade.

B         6. On the plain terms of the statute, uninfluenced by authorities, it          't
    appears to us that user of the building for a purpose other than that for which
    it was leased, has to be considered in the context of Section 21 of the Act
    which prohibits conversion of a residential building into a non-residential
    building except with the permission in writing of the controller, any covenant
C   in that behalf entered into by the tenant and the nature of the tenancy. In
    other words, when the lease is granted for the purpose of a trade, in the
    absence of any. covenant in the contract between the parties prohibiting a user
    different from the particular one mentioned in the lease deed, the tenant
    would be entitled to carry on any trade in the premises, consistent with the
    location and the nature of the premises. In a case where the premises let out
D   for a commercial purpose, is used by the tenant for a residential purpose, it
    would be a user for a purpose other than that for which it was leased attracting
    Section 10 (2) (ii) (b) of the Act. Similarly, if a building had been let out for
    the purpose of a trade, but a tenant uses the premises for the purpose of
    manufacture or production of materials after installing machinery, that would
E   be a user other than the one for which the building was let. User of a building
    let out for a trade as a godown may attract the provision. Ultimately, the
    question would depend upon the facts of a particular case, in the context of
    the terms of the letting and the covenants governing the transaction and the
    general spirit of Section 108(o) of the Transfer of Property Act. Merely
    because a shop let out for trade in shoes and other leather goods, is used by
F   the tenant also for the purpose of trading in readymade garments, it could not
    be held to be a user by the tenant of the premises for a purpose other than
    that for which it was leased. It has to be noted that even now, the tenant is
    carrying on the business of trading in shoes, which according to the landlord
    was the purpose for which the building was let. The trade in shoes has not
G   been stopped by the tenant. All that has happened is, that he has also diversified
    into selling some readymade garments or T-shirts, the manufacture of which
    even some of the manufacturers of shoes have taken up.

          7. Learned counsel for the landlord placed considerable reliance on the
    decision in M. Arul Jothi and Anr. v. Lajja Bal (Deceased) and Anr., [2000]
H   3 SCC 723. That case also arose under Section 10 (2) (ii) (b) of the Act. The
         HARi RAO v. N. GOVINDACHARI [BALASUBRAMANYAN, J.)                  225
 transaction between the parties was governed by a lease deed. The tenant           A
 covenanted that the premises, "shall be used by the tenant for carrying on his
 own business and the tenant shall not carry on any other business than the
 above said business." The business intended was dealing in radios, cycles,
 fans, clocks and steel furniture. Subsequently, the tenant also started a trade
 in provisions (spices and dais etc.). The landlord sought eviction and the         B
 courts below ordered eviction under Section I 0 (2) (ii) (b) of the Act. The
 tenant had appealed to this Court. This Court referred to the earlier decisions
 of this Court including the one in MK. Palaniappa Chettiar v. A. Pennuswami
 Pillai, (1970] 2 SCC 290. It also referred to Section I 08 (o) of the Transfer
 of Property Act. This Court distinguished the various decisions brought to its
 notice under other sister enactments and took the view that the covenant in        C
 the rent deed not to use the premises for any purpose, other than the one
 referred to in the rent deed, brought the user by the tenant within the mischief
 of Section 10 (2) (ii) (b) of the Act and, therefore, the order for eviction was
 justified. With respect, as we see it, their Lordships rested their decision on
 the existence of the negative covenant in the lease deed and on the view that
 a breach of that covenant, would attract Section 10 (2) (ii) (b) of the Act, and   D
 make the user, one coming within the mischief of that provision. In this case,
 as observed, there i~ no covenant as the one involved in Arul fothi's case.
 In MK. Palaniappa Chettiar v. A. PemJuswami Pillai, [1970) 2 SCC 290, the
 tenant, while continuing the business for which the building was taken on
 rent, was using a negligible portion of the building for the purpose of cooking.   E
 This Court hel.d that the High Court was in error in reversing the decision of
 the Rent Controller and the Appellate Authority to the effect that no ground
 for eviction under Section 10 (2) (ii) (b) of the Act was made out. This Court
 dismissed the petition for eviction. In Mohan Lal v. Jai Bhagwan, [1988] 3
 SCR 345, this Court, interpreting the corresponding provision in Haryana
 Urb;m (Control of Rent & Eviction) Act, 1973, held that when a tenant who          F
 had taken a building on lease for the purpose of running a business in liquor,
.converted the business into that of general merchandise, in the absence of a
 negative covenant, the user did not amount to user for a purpose other than
 that for which the building was leased. The same position was adopted in
 Gurdial Batra v. Raj Kumar Jain, [1989) 3 SCR 423, where the premises              G
 was let out for repairing business and the tenant along with the repairing
 business, also carried on sale of television sets for a while. This Court held
 that there was no change ofoser which would attract the liability for eviction
 under the corresponding provision of the East Punjab Urban Rent Restriction
 Act, I 949. It was clearly stated that the concept of injury to the premises
 which forms the foundation of Section 108 (o) of the Transfer of Property          H
    226                     SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A Act is the main basis for a provision similar to the one in Section I0 (2) (ii)
  (b) of the Act. We think that the case on hand is governed by the principles
  recognized in the latter decisions and the ratio of the decision in Arul Jothi
  has no application in the absence of a negative covenant as the one obtaining
  in that case. Dashrath Baburao Sanga/e and Ors. v. Kashimath Bhaskar
                                                                                     (
  Data, (1994] Supp 1 SCC 504 was a case where the premises was taken on
B rent for "sugarcane crushing with the help of an ox and for the shop thereof'      I
                                                                                     '
  and the tenant was to get constructed a temporary shed of tin-sheet for that
  purpose. The tenant started a cloth business in the premises. The courts
  below found that this was a user for a purpose other than that for which the
  premises was leased and this Court found no ground to interfere. This decision
C only re-affirms the position that everything would depend on the terms of the
  letting and the facts of the case. Obviously, the cloth business started, had no
  connection with crushing of sugarcane. The decision in Ram Gopal v. Jai
  Narain and Ors., (1995] Supp. 4 SCC 648, shows that the user by the tenant
  of a building taken on rent for the purpose of running a shop (commercial),
  for a manufacturing purpose, woul,d entail his eviction on the ground of
D change of user. The tenant, in that case, installed an Atta Chakki and an Oil
  Kolhu, in the shop. The case on hand is not one of that nature. In other
  words, in the present case, there was no change of user, from non-residential
  to residential or from business to manufacturing or industrial. As emphasized
  already, there was also no negative covenant as was available in Arul Jothi 's
E case. In such a situation, we are satisfied that the High Court was clearly in
  error in interfering with the decision of the Appellate Authority that there
  was no change of user in the case on hand attracting Section I 0 (2) (ii) (b)
  of the Act. Merely because a tenant, who has taken a building for the purpose
  of running a trade, alters the commodity in which he was trading when he
  took the building on lease or trades in other commodities also, he could not
F be held to be using the premises for a purpose other than the purpose for
  which it was let. The purpose has to be understood, as the purpose of trade
  and in the absence of a covenant barring the using of it for any other trade,
  it will be open to the tenant to use the premises for expanding his trade or
                                                      a
  even for taking up other lines of trade as befits prudent trader.
G         8. It is true that this Court has held in Malpe Vishwanath Acharya and
    Ors. v. State of Maharashtra and Anr., [1998] 2 SCC !, that the Rent Control
  Legislation is enacted in the larger interest of the society as a whole and it
  is not intended to confer any disproportionately larger benefit on the tenant
  to the disadvantage of the landlord. But that does not mean that the Rent
H Control Legislation should not be approached as a beneficial piece of
        HARi RAO v. N. GOVINDACHARI [BALASUBRAMANY AN, J.)                  227

legislation and with the recognition that reasonable protection to the tenant       A
is one of the objects of that legislation. While construing a provision of law
imposing a liability, for eviction, like Section I 0 (2) (ii) (b) of the Act, one
must see whether there has been such a change of user of the premises as to
make it alien to the purpose for which the building was let and deny eviction
when the basic activity remains the same and there is only a variation in the       B
manner or mode of carrying on of that activity. Therefore, the interpretation
placed on Section I 0 (2) (ii) (b) of the Act by the High Court in the decision
under appeal and in some other decisions of that Court referred to in the
orders of the Rent Controller and the High Court, has to be held to be not
warranted or justified. The order of eviction passed by the High Court under
Section I 0 (2) (ii) (b) of the Act has, therefore, to be reversed.                 C
        9. In support of his claim for eviction under Section I 0(2)(iii) of the
Act, what the landlord pleaded was that his tenant had put· up new sign-
boards and fixed two additional racks by drilling holes in the wall and in the
beam and had taken an independent electric connection for which holes have
been drilled in the floor and the wall, and all this amounted to commission         D
of acts of waste as are likely to impair materially the value and utility of the
building. He also pleaded that the tenant had damaged the building while
converting the shop for selling readymade dresses. He had installed additional
show-cases on the walls of the building by making holes therein. He had
increased the consumption of electricity by fixing up more lights and fans.         E
He had increased the electric load, causing constant blowing out of the fuse
in the building and causing damage to the electric service connection to the
whole building and the entire building may catch fire at any moment. He also
put up a big name board outside, damaging the building and had also drawn
heavy electrical lines and taken service connection to the name board, with
a heavy load of electricity. The tenant admitted the putting up of sign-boards      F
and the fixing up of racks but he denied that he had caused any damage.
Whatever he had done was with the consent of the landlord and the claim put
forward by the landlord was only an attempt to gain the sympathy of the
Court. The Engineer, P.W. 2 noted that new racks were fixed by making
holes in floor walls and also in the beams. Two new massive sign boards             G
were fixed in the front and side. Holes were made in the parapet wall of the
first floor and angle irons supporting the sign boards were fixed. The parapet
wall was only 2" thick and it could not take the weight of the huge sign
boards and the parapet wall may collapse at any time. New electric connection
has been given by making holes in the foundation and the wall in front and
a new meter board had been fixed. This report of P.W.2 was not sought to            H
    228                      SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A   be corroborated by any other material to show that there was any danger
    because of the taking of a new electric connection or by the increase in load.
    It is true that for the purpose of his trade, the tenant fixed new racks by
    making holes in the floor, the walls and in the beams. But, in the absence of
    any other material, it cannot be said to be the commission of acts of waste
B   as are likely to impair materially the value and utility of the building. We
    must say that there is hardly any evidence on the side of the landlord to show
    that there was material impairment, either in the value or the utility of the
    building by the acts of the tenant. The mere fixing of sign-boards outside the
    shop by taking support from the parapet wall, cannot be considered to be an
    act of waste which is likely to impair materially the value or utility of the
C   building. The report of the Engineer, P. W.2, merely asserts that the parapet
    wall will collapse at any time. There is no supporting evidence in respect of
    that assertion. Ex. BI-letter of the landlord giving permission to the tenant to
    fix boards, cannot also be ignored in this context. Moreover, when a trade is
    carried on in a premises, that too in an important locality in a city, it is
    obvious that the tenant would have to fix sign-boards outside, to attract
D   customers. These are days of fierce competition and unless the premises is
    made attractive by lighting and other means, a trader would not be in a
    position to attract customers or survive in the trade. Therefore, the acts of the
    tenant established, are merely acts which are consistent with the needs of the
    tenant who has taken the premises on rent for the purpose of a trade in leather
E   goods and shoes and in furtherance of the prospects of that trade. The fixing
    of racks inside the premises even by drilling holes in the walls or beams
    cannot be said to be acts which are themselves acts of waste as are likely to
    impair materially the value and utility of the building. Broadly, a structural
    alteration however slight, should be involved to attract Section I0 (2) (iii) of
    the Act. In fact, we see hardly any pleading or evidence in this case which
F   would justify a conclusion that the acts of the tenant amount to such acts of
    waste as are likely to impair materially the value and utility of the building.
    In G. Arunachalam (dead) through L.Rs. and Anr. v. Thondarperienambi and
    Anr., AIR (1992) SC 977 dealing with the same provision, this Court held
    that the fixing of rolling shutters by the tenant in place of the wooden plank
G   of the front door by itself did not amount to a structural alteration that
    impaired the value of the building and no eviction could be ordered under
    Section I 0 (2) (iii) of the Act. Of course, in that case, there was also a report
    by an Engineer that the structural alteration made for fixing the rolling shutter,
    did not impair the value of the building. In the context of the Kerala statute
    which spoke of impairment in the value or utility of the building materially
H   and permanently, this Court has recently held in G. Raghunathan v. K. V.
         HARi RAO v. N. GOVINDACHARI [BALASUBRAMANY AN, J.]                229
Varghese, (2005) (6) SCALE 675 that the fixing up of rolling shutter and           A
doing of the allied acts referred to in that decision, would not amount to user
that materially and permanently impairs the value or utility of the building.
The Act here, only speaks of acts of waste as are likely to impair materially
the value and utility of the building. The impairment need not be permanent.
But even then, it appears to us that it must really be a material impairment       B
in the value or utility of the building. In British Motor Car Co. v. Madan Lal
Saggi (Dead) and Anr., (2005] 1 SCC 8, this Court considered the aspect of
material alteration or damage in the context of Section I 3(2)(iii) of the East
Punjab Urban Rent Restriction Act, 1949. In the lease deed in that case, there
was a covenant that the lessee will not make any addition or alteration or
change in the building during the period of the tenancy. This Court referred       C
to Om Prakash v. Amar Singh, (1987 I SCC 458, Om Pal v. Anand Swarup,
(1988] 4 SCC 545, Waryam Singh v. Baldev Singh (2003] 1 SCC 59,
Gurbachan Singh v. Shivalak Rubber Industries, (1996] 2 SCC 626 and
Vipin Kumar v. Roshan Lal Anand, (1993 2 SCC 614 and held,

         'When a construction is alleged to have materially impaired the value     D
         and utility of the premises, the construction should be of such a
         nature as to substantially diminish the value of the building either
         from the commercial and monetary point of view or from the utilitarian
         aspect of the building.'

       There is hardly any material in the present case on the basis of which      E
 the Court could come to the conclusion that the act of the tenant here has
 amounted to commission of such acts of waste as are likely to impair materially
 the value and utility of the building. The Rent Controller and the High Court
have not properly applied their minds to the relevant aspects in the context
of the statute and have acted without jurisdiction in passing an order of          p
eviction under Section 10 (2) (iii) of the Act. The Appellate Authority was
justified in denying an order of eviction to the landlord on this ground.

      10. In these circumstances, we allow this appeal and setting aside the
decision of the High Court restore that of the Appellate Authority. That
would mean that the petition for eviction filed by the landlord would stand        G
dismissed. In the circumstances of the case we make no order as to costs.

S.K.S.                                                      Appeal dismissed.