- (1.) S. R. Singh, J. This is a tenant's petition. The suit instituted by the respondent-landlords for recovery of arrears of rent and ejectment of the petitioner, was grounded on clauses (c) and (d) of sub-section (2) of Section 20 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (In short the 'act' ). Section 20 (2) permits eviction of a tenant from a building after the determination of his tenancy on one or more of the grounds including the grounds comprehended by clauses (c) and (d) which are excerpted below for ready reference. " (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it; (d) that the tenant (has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use) or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;"
(2.) THE building in question was admittedly let out for residential purposes but the tenant-petitioner converted the user of the building to commercial purposes by making certain structural alterations in the building. THE tenant-petitioner resisted the suit on the ground that the premises was in fact let out for business purposes from the very inception of the tenancy and that the structural alterations in the building were effected by him with the consent of the father of the plaintiff, and that the structural alterations did not diminish the value or utility of the building or did it disfigure it. THE plea of waiver was also brought to bear by the petitioner in his written statement. THE suit was decreed by the learned Judge, Small Causes Court, Aligarh vide judgment dated 3-11-1979 and the revision preferred by the tenant-petitioner met the fate of dismissal vide order dated 29-7-1981. THE pleas raised by the defendant-petitioner were not viewed with approbation by the courts below and the suit was decreed as stated supra. THE petitioner filed a writ petition, being Writ Petition No. 9631 of 1981 which was allowed in part and the judgment and orders aforestated were quashed and the matter was remanded by order dated 11-2-1982 for decision afresh in the light of the observations embodied in the said judgment of this Court. Sri P. S. Baghel, learned counsel appearing for the petitioner quintessential canvassed two points, firstly that the suit has been decreed afresh whittling down the finding reached and approved by the High Court in its order of remand dated 11-2-1982 without complying with the directions contained therein and secondly that in the facts and circumstances of the case, the plea of waiver raised by him was clearly and preeminently made out and the contrary view taken by the courts below is patently erroneous. Sri M. K. Gupta, learned counsel appearing for the respondents emphatically refuted the submissions made by the learned counsel for the petitioner and urged that the trial court has fully observed in compliance the directions contained in the remand order of the High Court and further that in the facts and circumstances of the case, the plaintiffs could not be said to have waived their right to evict the petitioner on the grounds comprehended by clauses (c) and (d) particularly in the absence of permission in writing of the landlord for making structural alterations in the building as also in the absence of consent in writing of the landlord for the building being used for a purpose other than the purpose for which the petitioner was admitted to the tenancy of the building. Having bestowed my anxious considerations to the submissions made by the learned counsel appearing for the parties, I veer around the view that the writ petition is liable to be dismissed. The finding that the petitioner made structural alterations in the building without the permission in writing of the landlords as also the finding that such structural alterations are likely to diminish the value or utility of the building or to disfigure it, are findings or fact and so is the finding that the tenant has without the consent in writing of the landlord used the building for a purpose other than the purpose for which he was admitted to the tenancy of the building. The question that the accommodation in question had been let out for residential purposes and that the structural alterations therein had been made by the petitioner without the written consent of the landlords are no longer res-Integra in view of the High Court's judgment and order of remand wherein the findings on these questions were maintained. The only question on which the matter was remanded to the trial court, was the question relating to waiver of rights. Relying upon Supreme Court decision in Leachee Mal v. Radhey Shyam, AIR 1971 p. 2213, it was held by the Court in its order of remand that the right conferred upon the landlord to institute a suit for ejectment of the tenant, on the grounds comprehended by clauses (c) and (d) of sub-section (2) of Section 20 was in the nature of statutory benefit which can be waived by the landlords and expounding the purport and import of the waiver of right, the Court relying upon bead-roll of decisions in Manik Lal v. Dr. Prem Ghana, AIR 1957 SC, 425, Visheshwar Nath v. I. T. Commissioner, AIR 1959 SC 249, Associated Hotels of India v. Ranjit Singh, AIR 1968, p. 933 and H. C. Datt v. Mst. Bibi Ahmadi Begum, 1994 ALJ 622, held that in order to constitute waiver, there must be intentional relinquishment of a known right and that the waiver can be inferred only if and after it is shown that the party knew about the relevant facts on which the plea of waiver is grounded. The Court in its order of remand concluded that the landlords had the awareness that they had a right to institute a suit for ejectment of the petitioner on the grounds comprehended by clauses (c) and (d) on which the suit was clearly filed in the year 1979 but the question, according to the order of remand required to be decided by the courts below, was whether the landlords had knowledge of the facts and circumstances on the basis of which the plea of waiver had been raised by the petitioner and notwithstanding the knowledge of these facts as also of their right they did not voluntarily and intentionally choose to institute the suit till the year 1979. Certain observations on merit were made in the judgment, but the effect of those observations was watered down by the Hon. Supreme Court to which the matter was taken up in Special Appeal by way of Special Leave Petition, which was dismissed dovetailed with the directions that the Court to which the case was remanded, would dispose of the same within six months without being trammeled by any observations made by the High Court on the merits of the case.
(3.) THE learned Counsel has not been able to invite attention of the Court to any materials on record, eloquent of the fact that the tenant had made structural alterations in the building with the permission in writing of the Landlords, nor has any material been elicited to the notice of the High Court accepting that the tenant petitioner used the building for business purposes with the "consent in writing of the landlords". In the absence of written permission in writing of the landlords, permitting the tenant to make structural alterations and their consent in writing permitting the petitioner to use the building for non-residential purposes. It is difficult to hold that the landlords should be deemed to have waived their statutory rights under the clauses, (c) and (d) of Sub-section (2) of Section 20of the Act. Shrinavas Kesherlal Palod v. Vithal Shivagir Gosavi and others Supreme Court and Full Bench Rent Cases 1995 page 179, was a case where the suit was filed on the ground of change in user of the premises. It was held by the Supreme Court that the tenant was not entitled to get any benefit of the plea that the landlord was aware of this change and accepted rent inspite of it for the reasons that acquiescence should be no bar for landlords to seek eviction if the case falls under Section 108 (a) of the Transfer of Property Act read with Section 13 (1) (a) of the Bombay Rent Act, 1947. Duli Chand (Dead) by L. Rs. v. Jagmender Dass, 1990 SC and Full Bench Rent Cases p. 84, was another case where Section 14 (1) (b) of the Delhi Rent Control Act, 1958, required obtaining of consent in writing of the landlord in order to save eviction on the ground of sub-letting, assigning or otherwise parting with the possession of the whole or any part of the premises. The Supreme Court held that it was necessary for the tenant to obtain the consent in writing to sub-letting the premises as that would serve a public purpose i. e. to avoid dispute as to whether there was consent or not and that therefore, mere permission or acquiescence would be unavailing. Similar was the view expressed by the Supreme Court in M/s. Shalimar Tar Products Ltd. v. H. C. Sharma, 1988, Supreme Court and Full Bench Rent Cases p. 127. The Supreme Court held in that case that mere implied consent would not be sufficient to avoid eviction on the ground of sub-letting under Section 16 (3) of the Delhi Rent Control Act, 1958. In Kastoor Chand Panachand v. Yeshwant Vmayak AIR 1980 (Bombay) 270, it has been held that the acquiescence or waiver by the landlord cannot save the tenant from a decree of eviction sought on the ground of change of user inasmuch as the concept arising under the general law including the provisions of Section 111 of the Transfer or Property Act, are not relevant for working out the rights and liabilities of the parties under the Bombay Act.;