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Judgment
This writ petition is directed against judgment and order dated 11.04.2014 of the Appellate Rent Tribunal, Jodhpur, whereby an appeal preferred by the
petitioner-tenant against the judgment and order dated 09.05.2012 passed by the Rent Tribunal, Jodhpur, allowing the petition preferred on behalf of
the respondent-landlord under Section 9 of the Rajasthan Rent Control Act, 2001 stands dismissed.
The respondent-landlord filed a petition against the petitioner-tenant before the Rent Tribunal, seeking his eviction from a premises, alleged to be a
“Garageâ€. The eviction was sought on the ground of material alteration of the premises, sub letting and for putting the premises let out for the
residential purpose to commercial use in terms of the provisions of Section 9(c), 9(e) and 9(h) of the Act respectively.
The petition was contested by the petitioner-tenant by filing a reply thereto. The stand of the petitioner-tenant was that the premise let out is not
Garage, rather it is part of the shop let out to the petitioner by the respondent-landlord. It was averred that from very beginning the premises which
is part of the shop let out to the petitioner is being used for storage of stationary goods. Regarding the material alteration, the stand taken by the
petitioner was that for the protection of increasing dust, a glass door has been installed at the premises, which in no manner falls within the definition
of material alteration and on account of value of the premises is not diminished in any manner. The factum of sub letting of the premises was also
specifically denied.
The Rent Tribunal decided the issue with regard to material alteration and use of the residential premises for commercial purposes in favour of the
respondent-landlord, however, the issue with regard to sub letting was decided against the respondentlandlord and in favour of the petitioner-tenant.Â
Accordingly, the petition seeking eviction of the petitioner-tenant from the premises was allowed by the Rent Tribunal.
Aggrieved by the judgment and order passed by the Rent Tribunal as aforesaid, the petitioner-tenant preferred an appeal before the Appellate Rent
Tribunal, Jodhpur. The respondentlandlord also filed an appeal questioning the findings arrived at by the Rent Tribunal on the issue relating to sub
letting.
The Appellate Rent Tribunal affirmed the findings arrived at by the Rent Tribunal on all the issues and accordingly, the appeal preferred by the
respondent-landlord have been dismissed.
While praying for setting aside the orders passed by the Rent Tribunal and the Appellate Rent Tribunal, learned counsel for the petitioner submitted
that no decree for eviction can be passed under Section 9 (c) and 9(g) of the Rent Control Act, 2001 (hereinafter referred to as “the Act). The
Rent Tribunal has further committed jurisdictional error by not correctly interpreting the provisions of Section 9(c) of the Act. There is no material
alteration of the premises and no construction which may materially alter the premises itself. The judgments passed by the Courts below are against
the law laid down by the Apex Court on the subject. Further, it was nobody’s case that the premises in question was let out for residential
purpose and therefore, the eviction cannot be ordered under Section 9(g) of the Act on the ground that there was change of user from residential to
commercial. Reliance was placed on the judgment rendered by the Jaipur Bench of this Court in the case of Smt. Supyar Bai Vs. Smt. Gordhan Bai
through Her Legal Representatives reported in 1992(1) WLC (Rajasthan) â€" 591 to contend that the alteration in the present case does not amount to
material alteration. It was further submitted that even letting out the premises as Garage cannot be construed as residential use and therefore, the
findings given by the Rent Tribunal are contrary to the law and facts.
The respondent - landord categorically pleaded that the material additions and alteration have been effected into the tenanted Garage by demolishing
its foundation of the ground floor and bringing the same into the level of the road without permission of the respondent No.3. The Garage was
converted into a furnished shop. Glass doors have been put up in the front. There was no electric connection. Now, the electric connection has
been obtained for the purpose of running a shop. The front stands changed by putting glass doors. The structural change is also evident from the
photographs Ex.2 and Ex.3 placed on record.Â
Learned counsel for the parties were heard at length.
There is no dispute with the judgment and law laid by this Court in the case of Smt. Supyar Bai’s case (supra) that “The material alterations
contemplated by the Statute must be such alteration which bring about change of substantial nature affecting the form and character of the building
and minor constructions or alterations made by the tenant for convenient use of the tenanted accommodation cannot be made a ground for eviction of
the tenant. Their Lordships further expressed the opinion that construction of chabutri, almirah, opening of window or closing of varandah by
temporary construction do not materially alter the building as inspite of such constructions the front or structure of the building may remain un-
affected. Therefore, unless there is a change in the form, front or structure of the building by the impugned construction, the same cannot be held to
have materially altered the premises and the contrary view expressed in different decisions cannot be regarded as a good law.â€Â
In the case of Manmohan Das Shah & Ors. Vs. Bidshun Das reported in 1967 1 SCR 836, the alteration made by the tenant consisted of lowering the
level of the ground floor by about one and half feet 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 basis 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 made by tenant were held by the Apex Court as not only material alterations but were such as to give
a new face to the form and structure of the premises.Â
In the light of this principle, if the facts of the present case are examined, a categorical finding has been recorded that the Northern foundation of the
ground floor was demolished and the same was brought to the level of the road without permission of the landlord. The front was closed by glass
window and door to alter the Garage into a shop. Earlier, the said Garage was rented out to the father of the petitioner for keeping car and
scooters. Hence, the purpose of the letting out the Garage was not for any commercial use, whereas, the petitioner has converted the said Garage into
a shop. As per Section 9(c) of the Act, the landlord need not prove that the said alteration has diminished the value as long as the said construction
amounts to material alteration and is without permission. In view of the above, the alteration as above leading to total change of the front which is
evident in the photographs itself and that too without permission of the landlord leads to the conclusion that the same is a material alteration and calls
for a ground for eviction.
Even otherwise, the case is covered under Section 9(g) of the Act which reads as under :
“Section 9(g) : the premises were let out for residential purposes but have been put to commercial use wholly or partially.â€
The argument of the learned counsel for the petitioner â€" tenant that a Garage cannot be considered for residential purpose in any manner, could
have been considered in case the petitionertenant had pleaded accordingly. However, the stand of the petitioner -tenant in reply to the eviction
petition was otherwise. It was stated that there was no change of user because the premises were given to him as a shop itself. Thus, the reply
filed by the petitioner-tenant was found to be incorrect in view of the statement made by the petitioner-tenant in his cross-examination, wherein it was
admitted that separate receipt was issued for the shops rented out to the petitioner and a separate receipt was issued for the premises in dispute. It
was further admitted by the petitioner-tenant that both the premises were rented by him at different point of time. This fact also stands corroborated
from the separate receipts Ex. P15 and Ex.P16 issued qua the disputed premises in which the same is clearly referred as ‘Garage’. Moreover,
the purpose of letting out the Garage was only for parking of the private vehicles and not for any commercial use.
Parking a car or vehicle is ancillary to residential activity.
In fact, the pleadings of the respondent-landlord are also covered under Section 9(d) of the Act which reads as under:
“Section 9(d) :the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the
tenancy of the premises or which is likely to affect adversely and substantially the landlord’s interest thereinâ€
The act of the petitioner-tenant in converting the disputed premises into a shop instead of using it as a Garage is certainly inconsistent for the purpose
of which it was given and bound to cause inconvenience to the respondent-landlord and adversely affect his interest. In these circumstances, the
argument that there are other shops around the place does not help.Â
In view of the above, this Court finds no ground to interfere in the concurrent findings of the courts below.
 Dismissed accordingly.