Jolly Brothers Private Limited, A ... vs The Additional Collector And Anr.
2007 Latest Caselaw 465 Bom

JUDGMENT

A.B. Chaudhari, J.

1. By the present writ petitions, the petitioners have challenged the judgment and order dated 24.2.1995 in Revenue Appeal No. 4/71 (2)/94-95-Amravati, passed by the Additional Collector, Amravati, by which the Appellate Authority under C.P. And Berar Letting of Premises And Rent Control Order, 1949 (herein referred as Rent Control Order) had set aside the common judgment and order passed by the Rent Controller, Amavati on 30.5.1994 in Revenue Case Nos. 135/71 (2)/88-89 and 136/71 (2)/88-89 of Amravati.

2. The original petitioner M/s Jolly Brothers Private Limited a Company incorporated under the Indian Companies Act 1956 through its Director Shri Surendra Sobharam Jolly had filed the present writ petitions in this Court under Clause 13(3)(vi) and (viii) of the Rent Control Order. In fact the said Company Jolly Brothers Private Limited originally had instituted proceedings for grant of permission under Clause 13(3)(vi) and (viii) of the Rent Control Order before the Rent Controller, Amravati in respect of the suit house property located in Camp Area of Amravati, Taq. and District : Amravati of Nazul Plot No. 3, Sheet No. 37 with land admeasuring 5200 sq. feet with a building consisting of ground floor and first floor owned by the said Company. These writ petitions were admitted by this Court on 13.6.1995. During the pendency of the present writ petitions, Surendranath, Smt. Sudarshan and Vikas had jointly filed a Civil Application No. 1213/1006 in this petition and claimed therein that in the litigation before Company Law Board, consent terms were recorded for settlement between the parties to that litigation and were accepted by the parties as well as by the Company Law Board by its order on 13.10.2003 and in accordance with those consent terms three applicants named above in C.A. No. 1213/2006 were allotted the suit property in entirety leaving no interest with the Company M/s Jolly Brothers Private Limited. In other words the said three applicants became the owners of the suit property. The application was thus for substitution of three names as petitioners in place of original Company. That application came to be allowed on 9.11.2006 and the said order is reproduced below for convenience.

This application has been filed by Surendranath, Sudarshan and Vikas, who claimed that the property in dispute was allotted to them in a litigation in respect of the properties of original petitioner M/s. Jolly Brothers Pvt. Ltd.

The question of properties of M/s. Jolly Brothers Pvt. Ltd. has been taken by the members of the family to the Company Law Board, where consent terms were recorded on 13.10.2003. In terms of that settlement, the applicants claim that they should be arrayed as petitioners in place of the original petitioner M/s. Jolly Brothers Pvt. Ltd.

Shri S.Y. Deopujari, the learned AGP for respondent No. 1, cannot have any say in the matter and also respondent No. 2-tenant too cannot have any say as to who should be a landlord.

In view of this, after having heard Adv. Miss Rucha Khati, holding for Adv. Dr. Anjan De for the petitioner, Shri S.Y. Deopujari, the learned AGP for respondent No. 1, and Shri J.J. Chandurkar, the learned counsel for respondent No. 2-tenant, the application is allowed. The applicants shall be arrayed as petitioners in place of the original petitioner M/s. Jolly Brothers Pvt. Ltd.

Necessary amendment be carried out within a week.

Thereafter, list the petition for final hearing.

3. Perusal of the above order shows that the respondent No. 2. tenant had not contested the said application nor objected to allowing of the said application at the time of hearing on the said application. That application was allowed by the aforesaid order. While carrying out the amendment, however, the aforesaid three names have been shown as 1A, 1B and 1C in addition to original petitioner M/S Jolly Brothers Private Limited obviously as petitioner No. 1. However, that is not the purport of the said order as these applicants were to be substituted in place of the Company M/s Jolly Brothers Private Limited as per the aforesaid order. Hence, the amendment has been wrongly carried out. The Office is directed to call upon the petitioner to carry out the amendment properly in accordance with these observations.

4. At the outset it is necessary to decide the objection raised by respondent No. 2. tenant to the tenability of the present writ petitions as this Court under order dated 6.3.2007 kept the said objection open for decision on final hearing of the writ petitions. Shri Chandurkar, learned Counsel in support of his objection argued that in so far as the permission under Clause 13(3)(viii) is concerned, the same cannot survive in view of the change in the landlord of the suit property. He then argued that the pleadings and evidence that was tendered on record for claiming permission under Clause 13(3)(viii) was tendered by the Company and not by the newly added petitioners and, therefore, the grounds raised by the then Company in the application before the Rent Controller cannot be considered due to this subsequent event. Shri Chandurkar, learned Counsel also argued referring to Clause 15 of the consent terms drawn and filed in Company Petition No. 28/1997 that in accordance with this Clause though there is an allotment of suit property in favour of the newly added petitioners, the same cannot come into force unless a conveyance is executed in favour of these petitioners. Shri Chandurkar, learned Counsel also argued that in so far as permission under Clause 13(3)(vi) is concerned, in view of the change in the landlord, the claim for permission on the same ground must be held to be to have been extinguished.

5. Now coming to the objection raised by Shri Chandurkar, learned Counsel about the tenability of writ petitions, I find that in so far as the claim for permission under Clause 13(3)(viii) is concerned, the subject matter of the petitions is the same namely the suit house and the transferee landlords namely the petitioner Nos. 1 to 3 continued to claim permission on the same ground in both these petitions. It cannot be therefore said that they cannot claim permission on that ground as mere change in the landlord does not make any difference in the ground raised under Clause 13(3)(viii) regarding material alterations to the property and at any rate the application filed by the landlord is required to be decided with reference to the date of its filing. I, therefore, overrule the objection raised by Shri Chandurkar on the said aspect. In so far as the objection raised by Shri. Chandurkar, learned Counsel about Clause 15 of the consent term is concerned, I find that a tenant can hardly be allowed to raise such type of objection. The definition of landlord in Clause 2(4) of the Rent Control Order reads thus:

Landlord includes the person who is receiving or is entitled to receive the rent of a [premises] whether on his own account or on behalf of himself and others or as an agent or trustee or trustee, or who would so receive the rent or be entitled to receive the rent if the [premises] were let to a tenant....

6. Looking to the above definition of the landlord, I do not think that the tenant can set up any plea in terms of Clause 15 on the ground that such conveyance is not produced on record. In the light of the said definition and having regard to the decision of the Supreme Court in the case of Manovikas Kendra Rehabilitation & Research Institute v. Prem Prakash Lodha reported in 2005 (7) Supreme Court Cases 224, and in particular paragraph 3 clearly supports the case that the legal representatives are entitled to continue to prosecute the present writ petitions.

7. As a matter of fact, the consent terms placed before the Company Law Board clearly indicate that the suit property in question has been allotted to the petitioner Nos. 1 to 3 and those consent terms have been duly accepted by the Company Law Board and by the concerned parties to the said litigation in relation to the various properties. The tenant has no locus to object to the same particularly when the tenant did not so object when the C.A. No. 1213/2006 was allowed by this Court. The said objection is, therefore, overruled. The last objection about tenability of the petitions for grant of permission under Clause 13(3)(vi) of the Rent Control Order will be answered by me while recording the judgment in the subsequent paragraphs.

8. I propose to first decide the claim of the petitioners for grant of permission under Clause 13(3)(vi) of the Rent Control Order. The landlord had filed application before the Rent Controller, Amravati claiming permission under Clause 13(3)(vi) and (viii) of the Rent Control Order. It is essential to quote paragraph 7 of the application, which reads thus:

7. The applicant Company requires the complete building including the suit premises described in para 2-A and 2-B for its bonafide need for the purpose of permanent residential accommodation of it's director Shri Surendranath Jolly and for accommodating guests of the Company. The suit premises which is the subject matter of this proceedings are required for purpose of the guest house and the portion of the same building leased out to Sau. Hemwantibai is required for bonafide need as permanent accommodation of the director of the Company. The applicant company has no other house for its own for permanent residence and accommodation for its Director nor the company has any accommodation to accommodate its guests or other employees who have to tour to Amravati, frequently. The company does not own any guests house of its own at Amravati. The building described in para 2-A is the only building owned by the company at Amravati. At present the Director is required to stay in Company's small office room. The said applicant company has a sister concern also which is named and styled as 'JOLLY STEELITE ENGINEERING PRIVATE LIMITED' and Shri Surendranath Jolly is the Director of the said Sister concern. It is very essential for the said Director to have permanent residence at Amravati and due to frequent visits of its employees and other Directors of the said Companies, it is essential to have a permanent guests house at Amravati. The suit premises which is the subject matter of this application is required for the bonafide need as guest house for accommodating the frequent visitors, employees, Directors and guests etc. The need of the Company applicant is urgent, pressing and bona fide.

9. Perusal of the above pleadings show that the thrust of the landlord for claiming permission under Clause 13(3)(vi) is for permanent residential accommodation for Surendranath Jolly at Amravati. Admittedly, petitioner No. 2 is the son and petitioner No. 3 is the wife of petitioner No. 1 Surendranath. In other words, family of Surendranath Jolly claims the suit property for their bona fide occupation. Admittedly, the original Company M/s Jolly Brothers Private Limited is not the landlord of the suit property and the entire rights have been transferred or allotted to the petitioner Nos. 1 to 3. The earlier claim was that the suit property was needed for bona fide occupation of the Director Surendranath Jolly and since petitioner Nos. 2 and 3 are his family members, the claim for bona fide occupation cannot be said to have been extinguished. In my opinion, the claim made by Surendranath for himself and his family members for bona fide occupation which was already made in the original application in his capacity of the Director of Company will still hold good. Now coming to the claim made by petitioner No. 1 Surendranath under Clause 13(3)(vi) of the Rent Control Order, I prefer to quote the translated portion of his evidence as under:

....There is no sufficient space in the office. The office is situated in Subhash Colony of Chatri Talao road. The property is owned by the Company. The office of the Company has two rooms, one bathroom and one kitchen room. Out of these two rooms, one room is used by the Director and the other is used as office.... I look after the work of Amravati. I stay for 15-20 days in Amravati. I look after the work of other offices during the rest of the days.... I want to settle down at Amravati with my family. I cannot stay in one room of the office alongwith my family. My family consists of myself, two sons and a son-in-law. I have grand-children. My grand-children look after the business of the Company.... The suit house in occupation of the Non-application is required for residence of my family.. 10. The evidence of Surendranath thus shows that he has claimed the suit house for occupation for not only himself, but for his entire family which includes petitioner Nos. 2 and 3 also. I have carefully gone through the cross-examination and I find that the evidence on this material particulars has not been shaken. In the cross-examination there are suggestions which were denied that Surendranath and his family members can live in two rooms and kitchen attached with the office of Company, and that his family had shifted to Hyderabad since 1975 and resided at Hyderabad. The suggestion was that the petitioners have left Amravati forever. However, the evidence of Surendranath shows that he has been staying at Amravati for 15 to 20 days during the course of his business trips and that he wants to settle at Amravati along with his family and grand-children, and that his family requires the house in question as the real estate business which his family is doing is to be carried on at Amravati. There is nothing on record to reject the said evidence of Surendranath on the bona fide need of the landlord. The evidence of Champalal Heda who was examined as witness for tenant has been recorded only in relation to Clause 13(3)(viii) and there is no rebuttal evidence about the bona fide need of Surendranath and his family. The evidence of Surendranath on the point of bona fide occupation inspires confidence and is not at all in any manner shaken. As regards the plea of the tenant that the landlord and his family members should reside in two rooms and kitchen attached to the office of the Company, I hold that the tenant cannot dictate the landlord as to the place of his choice for residence. In the instant case the tenant wants to suggest that the tenant would reside in a big bungalow spread over 5200 sq. feet and the landlord along with his family members and grand-children should be asked to stay in two rooms and kitchen attached to the office of the Company. It is settled legal position that the tenant cannot dictate the terms to the landlord. In the light of discussion made by me above, I find that the petitioners have proved their case for bona fide need under Clause 13(3)(vi) beyond any doubt and the need that was projected by the erstwhile company has not changed materially in as much as the need that was pleaded and proved was for the permanent residence of Surendranath Jolly and his family members. The need projected by the Company at that time for guest house for the Directors and employees of course cannot be considered at this stage in view of the subsequent developments. I, therefore, hold that the petitioners are entitled to permission under Clause 13(3)(vi) of the Rent Control Order. 11. The second issue regarding grant of permission under Clause 13(3)(viii) of the Rent Control Order is now being answered by me as under:

Clause 13(3)(viii) of the Rent Control order reads thus:

Clause 13(3)(viii) : that the tenant has committed or is committing such acts of waste as are likely to impair materially the value or utility of the premises.

The word house came to be substituted by the word premises. by amendment order dated 27.6.1989, notification No. BRA 1086/462-D-(xii) dated 27.6.1989. In Clause (4A) of the Rent Control Order, the meaning of word premises is given as under:

(4A) Premises. means-

(a) any land not being used for agricultural purposes,

(b) any building or part of a building (other than a farm building) let or given on licence (for residence or for the purpose of practising any profession or carrying on any occupation therein,] and includes,

(i) the garden grounds, garages and out houses, if any, appurtenant to such building or part of a building;

(ii) any furniture supplied by the landlord for use in such building or part of a building ; and

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof; but does not include a room or other accommodation in a hotel or lodging house;

In my opinion the legislature has broadened the scope of Clause 13(3)(viii) to make the same applicable to premises rather than the house only. Therefore, the entire premises surrounding the bungalow in question will have to be considered for the purposes of deciding as to whether the tenant is guilty of committing acts of waste to impair materially the value or utility of the premises. The dictionary meaning of word value is as under:

the measure of how strongly something is desired for its physical or moral beauty, usefulness rarity etc.

The dictionary meaning of word waste is as under:

needless and excessive consumption, misuse.

In Advanced Law Lexicon, by P. Ramanatha Aiyar, waste means:

In its most usual acceptation, is a spoil or destruction is houses, gardens, trees, or other corporeal hereditaments.

The dictionary meaning of word utility is 'usefulness benefit'.

12. From the above, it is seen that the physical or moral beauty of the premises so also the usefulness thereof will fall within the mischief of Clause 13(3)(viii). The meaning of word waste. includes misuse meaning thereby that the acts of misuse of the tenant would be covered in the said term. Now coming to the pleadings in the case in hand, I find from the reading of the application the following averments in paragraph Nos. 8 and 8-A.

8. The non-applicant has without the permission of the applicant made alterations, and temporary constructions in the suit premises. The non- applicant has without the permission of the landlord closed the entire windows of the living room situated on the ground floor by removing the wooden frames and glass panes and permanently closed the same with brick and cement. The said windows were situated to the southern side facing the road and Badminton Hall. So also the non-applicant without the permission of the applicant have constructed a shed by removing the barbed wire of the western side compound wall and at place of barbed wire constructed a wall in bricks and cement and affixed tin sheets in the said wall and the western side wall of the suit house, and such have constructed a temporary shed of about size 15' x 10' and have fixed iron grills therein. It is also reliably learnt that the non-applicant had made other alterations without permission of applicant inside the building also but as the applicant is not allowed to enter into the premises, therefore, at present is unable to state exactly as to what alternations and modifications have been made by the non-applicant without the permission of the applicant. The applicant reserves its right to amend the application in respect of the same. The non application has committed acts of waste which has impaired materially the utility of the house by making illegal, unauthorised modifications and alterations. 8-A. In the shed unauthorisedly constructed by the non-applicant towards western side of the suit building illegally and without permission of the applicant referred in para 8 above, the non-applicant has also without permission of the applicant has constructed inside the said shed to the western side in a row one washing room, one bathroom and three latrines and in the said shed to the eastern side 2 bathrooms. So also without the permission of the applicant, the non-applicant has fitted iron grill door on one of the front side door of the ground floor. The non-applicant never took permission from the applicant for said construction illegally made by the non-applicant. The non-applicant committed breach of condition of lease. One of the condition of lease being that the N.A. lessee shall not be entitled to make any additions or alterations in the structure without the written permission of the landlord applicant. The applicant had moved an application before the Court of the rent Controller on 22.12.89 for directing the non-applicant to allow the applicant to inspect the suit building and as per order of the Hon'ble Court the applicant had inspected the suit building on 8.4.90 came to know the above mentioned unauthorised and illegal construction made by the non-applicant in the suit premises, without the permission of the applicant. The non-applicant has completely spoiled the beauty of the said house and by said illegal unauthorised construction have completely deprived natural air and light to the western side ground floor rooms of the suit premises. The said illegal construction by the non-applicant without permission of the applicant is of such a nature which has impaired materially the value and utility of the suit building.

13. The landlord has examined himself in support of his case under Clause 13(3)(viii) of the Rent Control Order. The strong reliance of the landlord is on the covenant in the agreement of lease which reads as under:

(vii) The lessee shall not be entitled to make any additions or alterations in the structures existing at present without the written permission of the lessor. However, the lessee is hereby granted permission to remove the wire fencing existing at present to the west and put a compound wall in its place. However, the cost of the compound wall shall be borne by the lessee and the lessee shall take the whole wire fencing in lieu of his incurring such cost of a compound wall.

14. Perusal of the above Clause clearly shows that any alterations or additions can be made only with written permission of the landlrod. The said Clause further shows that permission to remove wire fencing and putting a compound wall in its place at the costs of tenant was granted in the very same clause. In the light of this Clause, I will have to reject the contention advanced by the petitioners in so far as removal of wire fencing and in its place construction of compound wall as attracting the ingredients of Cause 13(3)(viii) of the Rent Control Order. There is clear permission from the landlord to the tenant to erect a compound wall in place of wire fencing. Now coming to the other acts of waste, I quote following evidence of witness Surendranath.

...The lease deed was executed. It is at Exh. A3 and A-4. As per the conditions of the lease deed, the non-applicant cannot make any changes or alterations without written permission of the applicant Company. But, both the tenants have constructed a shed in which there are three bathrooms and three latrines. The construction is pucca. The first floor of verandah is converted into a bed room. Two rooms have been converted by closing the verandahs. They have not obtained any permission from myself or from the Company, for these alterations. Due to this construction, the light and air have stopped. The beauty of the bungalow has diminished; the utility of the bungalow is also diminished. It is not true to say that the said construction or alteration has been done in my supervision....

15. Witness for the tenant Shri Champalal Heda has deposed as under:

...After the house was taken on rent, I have conducted alterations. I have constructed a closed compound wall in place of the barbed wire fencing. I have fixed iron channel gates near the doors. One channel gate is fixed on the back-side and the other on the terrace. On the back-side in the open space, I have constructed a tin shed in which there is one bathroom, latrine and a place for washing utensils....

...I have fitted one window in the closed verandah. I have closed this space by putting a window....

16. The witness for the tenant, namely Nandkumar Tiwaskar in the cross-examination has admitted as under:

....There are two rooms on the first floor. Initially, there were two rooms and one closed verandah. The tenant has constructed two rooms out of the closed verandah. He has fitted doors and windows there. The utility of the closed verandah has gone down....

17. Now from perusal of the above evidence it is clear to me that without obtaining permission in writing as required by the covenant in the lease agreement the tenant constructed a tin-shed resting on walls constructed with bricks in the western open space of the premises and under the shed he constructed three latrines, three bathrooms and separate place for washing clothes. It is further clear from the admission of the architect examined by the tenant that the tenant constructed two rooms on the first floor of the house by closing Verandah on the first floor and by fitting doors and windows, as a result the entire utility of the Verandah stood materially impaired. In other words the tenant created two rooms additionally on the first floor thereby materially changing beauty of the bungalow and the utility of the Verandah which was being used by the landlord as Verandah only. It has also affected the light and air on the first floor. I further find that the construction of three latrines, three bathrooms and place for washing clothes in the premises of the bungalow on the western side has definitely impaired the beauty of the premises so also its value. The tenant had absolutely no business to spoil the beauty of the premises and if at all he wanted to do so, he was obliged to take written permission from the landlord which he did not do. The tenant had advanced reason for construction of latrines and bathrooms in the premises. The reason is that his family members were not willing to use the Western style toilets and, therefore, he was in need of constructing Indian style toilets and that is the reason why he constructed three latrines and three bathrooms. This might be true but the fact remains that the bungalow in its original condition did not have the facility of Indian style toilets and if that is so none prevented the tenant from obtaining permission from the landlord in writing when the lease agreement was finalized or at any time thereafter and when specific permission was taken from him for construction of compound wall therein. The terms of the contract clearly provide for written permission from the landlord, in the absence of which the tenant was not justified constructing three latrines and bathrooms on the premises which was bound to affect the beauty of the bungalow. After all as held by the Apex Court. the impairment of the value or utility of the building (premises) is from the point of landlord and not of the tenant.

18. Shri Chandurkar, learned Counsel for the tenant relied upon the decision of Nagpur High Court in the case of Smt. Savitri Devi v. U.S. Bajpal and An. reported in 1955 N.L.J. 309. He relied upon the observations of the Division Bench of Nagpur High Court in paragraph 4 and argued that the ratio of the judgment was that even if the impairment was made to the premises the same could be easily repaired or removed. The alleged act of waste will not fall within the mischief of Clause 13(3)(viii) of the Rent Control Act. I have gone through the facts of that case. It appears that the tenant in that case constructed a temporary structure on the open land for keeping her car which she purchased for the purposes of business. In other words the tenant constructed a temporary garage for her car. It is in that context the Nagpur High Court held that the same could be easily removed and, therefore, the case did not fall within the meaning of Clause 13(3)(viii) of the Rent Control Order.

19. Shri De, learned Counsel for the petitioners relied upon the decision in the case of Vipin Kumar v. Roshanlal Anand and Ors. . The Hon'ble apex Court in paragraph 2 of the said decision held as under:

2. The question, therefore, is whether the finding of courts below which concurrently found that the appellant had constructed a wall in the verandah which materially affected the value or utility of the shop is vitiated by law. The building consists of two shops and the appellant was inducted into one such shop. He constructed the wall in the verandah and put up the door. Therefore, it is a finding of fact which we cannot evaluate on the evidence and upset that finding. It was also found that the wall was constructed without the permission of the landlord. Due to construction the value or utility of the building has been materially affected. Section 13(1) provides thus:

A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under Section 13 of the Punjab Urban Rent Restriction Act, 1947 as subsequently amended).

Clause (iii) of Sub-section (2) of Section 13 provides that if the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land., the Rent Controller may make an order directing the tenant to put the landlord in possession of the building or rented land. If the Controller is not so satisfied, he shall make an order rejecting the application. It is, therefore, clear that if the tenant had committed such acts as are likely to impair materially the value or utility of the building, he is liable to ejectment. The finding recorded by the Controller is that on account of the construction of the wall and putting up a door the flow of light and air had been stopped. He removed the fixtures. So the value of the demised shop has been impaired and utility of the building also is impaired. The impairment of the value or utility of the building is from the point of the landlord and not of the tenant. The first limb of Clause (iii) of Sub-section (2) of Section 13 is impairment of the building due to acts committed by the tenant and the second limb is of the utility or value of the building has (sic having) been materially impaired. The acts of the tenant must be such that by erecting the wall he had materially impaired the value or utility of the demised premises. It is contended by Mr Prem Malhotra that the landlord should prove as to how it is materially affected and that there is no evidence adduced by the landlord. We find no force in the contention. By constructing the wall, whether the value or utility of the building has materially been impaired is an inferential fact to be deduced from proved facts. The proved facts are that the appellant without the consent of the landlord had constructed the wall and put up a door therein as found by the Rent Controller, the flow of air and light has been stopped. He removed the fixtures. From these facts it was inferred that the value or utility of the building has been materially affected. It is then contended that Sub-section (2) of Section 13 gives discretion to the Rent Controller to order eviction while in the cases covered under Sub-section (3) of Section 13 it is made mandatory to direct eviction of the tenant. Therefore, the Rent Controller has to independently consider and exercise discretion vested in him keeping in view the proved facts to decree ejectment. It is for the landlord under the circumstances to prove such facts which warrant the Controller to order eviction in his favour. The landlord had not proved such facts in his favour. Therefore, the Court had committed illegality in granting the decree of ejectment. We find no force in the contention. Undoubtedly the statute, on proof of facts, gives discretion to the court, by Section 13(2) and made mandatory in case covered by Section 13(3), to order eviction. In a given set of facts the Rent Controller, despite finding that the tenant committed such acts which may impair the value or utility of the building yet may refuse to grant the relief of eviction. It is for the tenant to plead and prove that the circumstances are such as may not warrant eviction and then the burden shifts on to the landlord to rebut these facts and circumstances. Then the Rent Controller is to weigh pros and cons and exercise the discretion. No such attempt was made by the appellant. So no fault can be laid at the Rent Controller's failure to exercise the discretion. In Om Prakash case the words materially altered under Section 14(c) of the U.P. Contonments (Control of Rent and Eviction) Act, 1952, came up for consideration. This Court held that the nature and character of change or alteration of the building must be of an essential and important nature. In determining the question the court must address itself to the nature, character of the constructions and the extent to which they make changes in the front and structure of the accommodation, having regard to the purpose for which the accommodation may have been let out to the tenant. In considering that language it was held that putting up a door to the verandah is not a material alteration. The ratio thus renders little assistance to the facts of the case.

Now to my mind, construction of three Indian style latrines on the western side open premises of the bungalow and a shed with washing place has definitely spoiled the look or the beauty of the bungalow. To a person who likes to live in a bungalow of old type as the one in question, the 'value' gets materially reduced. By closing the windows on the ground floor living room, the tenant permanently closed the look at the Badminton Hall and the road. This is thus a clear cut case of 'misuse' by the tenant which is an act of waste.

20. Upshot of the above discussion is that the petitioners have proved that they are entitled for grant of permission under Clause 13(3)(vi) & (viii) of the Rent Control Order. The impugned orders dated 30.5.1994 in Rent Control Case Nos. 135/71 (2)/88-89 & 136/71(2)/88-89 of Amravati, passed by Rent Controller, Amravati and 24.2.1995 in Revenue Appeal Nos. 4/71(2)/94-95 & 5/71(2)/94-95 of Amravati, passed by the Additional Collector, Amravati are therefore quashed and set aside. Rule is made absolute in terms of prayer Clause. (A) of both the writ petitions. No order as to costs.