1. The revision petition is at the instance of a counter-petitioner in an application for injunction which has been allowed by the courts below. The injunction sought for was to restrain the demolition of the walls or pillars of the shop building in the possession of the revision petitioner and against carrying out any new works therein or effecting any material alterations to the building and from committing waste. The building was taken on rent from one Saraswathi Amma by one Gopaian. Gopalan passed away in 1965. The revision petitioner claims to be have entered into a tenancy direct with Saraswathi Amma thereafter. It is not disputed that the revision petitioner is now in possession of the building. The plaintiff is a person who purchased the building under a sale deed dated 29-7-1971. The sale deed itself refers to the tenancy. Among the various recitals therein are the statements:
“There are no arrears of rent. There is no advance payment in the tenancy arrangement”.
2. According to the revision petitioner, there has been an attornment to the plaintiff; arrears of rent at the enhanced rate of Rs. 75/- had been settled up to February 1983, and the plaintiff had been declining to receive the rent sent by money order thereafter.
3. The building is a shop room dealing in sale of wrist watches, the name of the concern being, ‘The Kerala Watch Company’. The building had only wooden split shutters in its front. They were replaced by rolling shutters in 1959. Insecurity was intensely felt, according to the revision petitioner, having regard to the frequent thefts committed in and around the area, by breaking open the rolling shutters. Naturally, having regard to the articles kept in the shop room, every precaution had to be taken by the owner of such costly merchandise. According to him, in order to prevent pilferage of the costly watches, he wanted to affix a collapsible shutter. This had to be fastened to two iron posts fixed on the two sides. It is stated that the collapsible shutters could be removed at any time without in any way causing any damage to the building, (vide paragraph 4 of the written statement).
4. It was essentially at this time, that attempt was sought to be prevented by the plaintiff. The report of the Commissioner would clearly establish that the attempt was only to fix the two pillars on either side for providing the collapsible shutters. The pit noticed by the Commissioner on the floor was on the north-western end and close to the pillar. It was only one and half long and 8″ wide with a depth of 2′. A similar pit was on the other side also. The Commissioner also only noted that a window portion had been closed by bricks, the wooden shutters remaining intact. The cost for restoring the condition of the building to its earlier stage is estimated by the Commissioner at Rs. 50/-. It is thus evident that only a very insignificant work had been done by digging the pits on either side. That also would indicate that it was only a prelude and a preparation for the fixation of the collapsible shutters.
5. The trial court referred to a clause in the original rent deed Ext. A1 prohibiting structural alteration of the building without the consent of the landlord. (The translation of the relevant clause by the trial court is not very accurate.) The crucial controversy was whether the revision petitioner could justifiably fix up the collapsible shutter. According to the trial court, it amounted to a material alteration of the building, and such a structural alteration was countermanded under S. 17 of the Rent Control Act. According to it, any complaint of a tenant regarding the withholding of amenity is to be made before an Accommodation Controller, as that is the only machinery provided under the Act. It observed:
“The Rent Control Act gives no power to the tenant to re-build, renovate or interfere with the structural alterations of the tenanted premises on his own accord.”
6. The general statement about re-building and renovation has no application to the present case. Whether the acts attempted by the revision petitioner would amount to material or structural alteration of the building would be the proper question which has to be considered and decided upon.
7. The appellate court also substantially endorsed the view of the trial court. It adverted to the contention of the revision petitioner about repeated thefts in the shop room by removing the bricks of the back portion of the shop room and about the necessity to have collapsible shutters behind the rolling shutters to ensure the security of the room wherein costly watches are stored. It also noted the complaint of the revision petitioner that the suit was filed at the stage when be took necessary preventive and protective steps. The appellate court too took the view that the tenant had no right to effect any repairs in the building. According to it, the tenant had attempted such repairs and therefore such acts to be prevented.
8. As noted earlier, the crucial question is whether the acts complained of would constitute a material or structural alteration of the building. No question of cutting of any amenities arises in the present case. The tenant is therefore not obliged to approach the Accommodation Controller for reliefs in such a case.
9. It has to be borne in mind that a lessee is a person to whom valuable rights in the property are transferred. This is implicit in the very definition of the term ‘lease’ as contained in S. 105 of the Transfer of Property Act. S. 108 of that enactment deals with the rights and liabilities of the lessor or lessee. Clause ‘o’ of that Section is particularly relevant in the present context. A user of the leased property as a person of ordinary prudence is a right of the tenant. The possession of the property itself vests with the tenant. He could, in relation to the lease premises, exercise such acts as a person of ordinary prudence, provided, however, that no material alteration is effected in the building by such acts. This is implicit in the proviso to S. 17(1) of the Act itself. To replace a broken tile, or to fill up the void in the place of a missing one, or to patch up a damaged window or a door would all be acts which the tenant would be fully entitled to carry out.
10. In Babu Manmohan Das Shah & Others v. Bishun Das, A.I.R 1957 S.C 643, the Supreme Court explained the concept of ‘material alterations’, as important alterations such as those which materially or substantially change the front or the structure of the premises. The extensive nature of the works carried out which would in their aggregate constitute ‘material alteration’ had been catalogued in the above decision.
11. A Division Bench of the Calcutta High Court observed that the mere conversion of the store room into a bath room or even into a lavatory would not render a tenant guilty of a contravention of clauses (m), (o) and (p) of S. 108 of the Transfer of Property Act. According to the court, even “the cutting of one or two small holes for inserting a small pipe” would not have that effect. In the background of an allegation about fixing a commode, the court observed that a commode cannot be called a permanent structure, (See Mrs. Kathleen Meyar v. P.K Ghosh, I.L.R (1959) 1 Calcutta 404). It is unnecessary to undertake a detailed consideration of the entire case law on that aspect. Gur Sharan Lal, J. in Moinuddin…Defendant- v. Ch. Mohammad Imam-Uddin Ashraf…Plaintiff-., A.I.R 1972 Allahabad 25, exhaustively surveyed the case law. Whether there is a material alteration or not would depend upon the question whether the additional constructions affected the form or structure of the building. Closing of gates by filling them with brick work would not amount to any material alteration. A brick work made to close the doors for convenient enjoyment of the leased accommodation and for privacy and security could not be regarded as permanent construction unless it was not easily removable. (See Sardar Bahadur Mathur v. Kali Prasad Gupta, 1961 All L.J 137.) Construction of a roof over a part of terrace, or conversion of a particular structure with better material, would not amount to material alteration. (See Jai Dhawan v. Padam Sen, 1964 All L.R 612 and Anup Singh v. Chhajjan, 1964 All L.R (HC) 616). Instances of material alteration are: Delhi Iran Syndicate (Private) Ltd. v. Sidh Nath, 1965 All LR (HC) 211, where an existing wall had been pulled down, and a portion of the roof mended and a floor space levelled, cumulatively amounting to construction and the coversion of two rooms into a single big room and Kishan Lal v. Ram Baboo, 1970 All LJ 1154, where also a partition wall had been pulled down and two shops were converted into a big single shop. The following observations in Moinuddin's case supra are particularly relevant:
“In the instant case the tenant has closed open Dars or gates by filling them with brick work and in the fifth Dar he has attached shutters. The kothri is still a kothri and the difference simply is that instead of having five openings it has only one now and that too with shutters. It is nowhere alleged that any foundation had been laid under the ground or the brick work cannot be removed easily and quickly or the door frame and shutters cannot be removed easily. The alteration is of course there but it has not affected the form or structure of the building and cannot be regarded as material alteration.”
12. In Mohinder Singh v. Om Prakash, (1978 (2) R.C.R 401, the fixing of a shutter in place of a wooden door and cementing of brick-flooring were held as not amounting to reconstruction.
13. In the context of the provisions of a rent control order (enabling termination of tenancy when a tenant commits acts of waste likely to impair materially the value or Utility of the house), a Bench of the Nagpur High Court reckoned as relevant the fact that “the damage done is not significant and can be easily repaired.” Such acts, it was alleged, would not enable the landlord to the grant of permission to terminate the tenancy. (See Sm. Savitri Devi v. U.S Bajpai, A.I.R 1956 Nagpur 60).
14. The courts below have missed the principle which would emerge from the aforesaid judicial decisions. The background in which the tenant was forced to reinforce the security for his shop room in which costly articles had been stored cannot be forgotten in this context. He had not altered the form or structure of the shop room. As noted earlier, the specific averment in his objection and written statement is that collapsible shutters can be removed without any difficulty and without causing any damage to the building. Only minimal alterations such as digging two pits on either side, of comparatively small dimensions, are undertaken. The pits will be filled up when the collapsible shutters are affixed. The extent of the alterations can be gauged from the statement of the Commissioner that the expenses for the restoration of the room to its earlier condition would come to a meagre sum of Rs. 50/-. There is no indication in the report of the Commissioner that the fixation of such a collapsible shutter would impair the safety and security of the building. No significance can be attached in that background to the conjectural statement by the Commissioner that “if the pillars and other things are demolished, damage may be caused to the next room etc.” Such a hypothetical situation need not be considered when all that is done is an additional fixation of a collapsible shutter.
15. When the legislature has given substantial and valuable rights to a tenant, they have necessarily to be recognised, however irksome they may be found to the landlord. And a landlord cannot resort to indirect methods to drive away a tenant who is statutorily protected from arbitrary and reckless eviction. The courts cannot overlook the substantial rights of the tenant in such circumstances. No attempt on the part of the landlord to suffocate a tenant and then to drive him out, such as exposing him to easy pilferage of his costly articles from his shop room, should be encouraged by courts of law. In the light of the above discussion, the orders of the courts below have to be set aside, as the courts have misdirected themselves about the correct principles applicable to the given situation. The application for injunction will stand dismissed, subject to the safeguards indicated below.
16. Counsel for the respondent then submitted that he should not be burdened with the additional cost of the collapsible shutters fixed for a better security of the tenant. This difficulty has been overcome by the undertaking of counsel for the revision petitioner that he would not claim the cost of the collapsible shutters in the eventuality of a settlement of accounts between the parties. The expenses for fixing the collapsible shutters will be fully met by the revision petitioner. He shall not remove the shutters if and when an order of eviction is passed and he is obliged to surrender the building. The fixation of the shutters will be done carefully and without in any way impairing the safety of the shop room or causing any damage to the same. The revision petition is disposed of as above. The partise will bear their respective costs in the proceedings in all the courts.
17. Allowed.