Kuldip Singh, J.
1. This judgement shall dispose of Civil Revision No. 11 of 2006 and Civil Revision No. 51 of 2007. In both the revision petitions, petitioners are tenants, but respondent is common land-lord. Civil Revision No. 11 of 2006 has been filed against judgement, dated 21.12.2005, of Appellate Authority (III), Shimla in case No. 47-S/14 of 2005/03 affirming the order dated 11.12.2002 passed by Rent Controller (3), Shimla in case No. 65/2 of 1999. Civil Revision No. 51 of 2007 has been filed against judgement dated 3.4.2007 passed by Appellate Authority, Shimla in Civil Misc. Appeal No. 141-S/14 of 2005 and in Civil Misc. Appeal No. 145-W/14 of 2005 dismissing the Civil Misc. Appeal No. 141-S/14 of 2005 and allowing Civil Misc. Appeal No. 145-S/14 of 2005 on the grounds of requirement of premises for reconstruction and re-building by the land-lord.
Civil Revision No. 11 of 2006.
2. The respondent- landlord had filed ejectment petition against the petitioner-tenant on the grounds of arrears of rent, nuisance, reconstruction and the tenant has materially impaired the value and utility of the premises. It was pleaded that two rooms shop was rented out to petitioner by respondent in Raju Building, Tutu vide agreement dated 7.1.1991 on Rs. 1600/- per month. The petitioner surrendered one shop in the year 1992, the rent of the shop in occupation of petitioner was enhanced from Rs. 800/- to Rs. 900/- per month in January 1996. The petitioner had not paid the rent since 1.3.1996. The respondent requires the shop for reconstruction. He had initially constructed the premises for non-residential purpose, but now due to paucity of accommodation, he wants to convert the same into residential one and intends to provide stairs to the upper storey of the building. The existing stairs of the building were broken by Public Works Department. The reconstruction work of the stairs cannot be carried out unless the premises is vacated by the petitioner. The petitioner is also guilty of such acts with respect to the shop in question by which he has materially impaired the value and utility of the entire building. The petitioner is doing the business of welding and uses great force for cutting iron rods in the premises, as a result of which the lintel of his building has been broken and holes have appeared in the same. The septic tank of the building has also been damaged due to such acts. The petitioner is causing nuisance in the neighbourhood inasmuch as he carries on welding work in late hours of the night, which causes disturbance to others.
3. The petition was contested and preliminary objections of maintainability, lack of cause of action, estoppel and suppression of material facts were taken. It was pleaded that petitioner and his employees work in the premises during day time. The petitioner is running business of auto works in the shop. The rent of the premises was increased to Rs. 900/- in January 1997. The additions or alterations materially impairing the value and utility of the shop were denied. It was pleaded that rent of the shop till July 1999 had already been paid. The premises was constructed in the year 1989-90. The premises is required for reconstruction. It was denied that petitioner intends to convert the shop into a residential premises. It was denied that premises in question is required for construction of stairs. The stairs exist from the ground floor up to 5th floor of the building. The respondent was well aware that he had rented out the shop to petitioner for carrying on the business of welding, steel fabrication and auto workshop. The existence of septic tank on the spot has been denied. In rejoinder, respondent has reasserted his case.
4. On the pleadings of the parties, the following issues were framed:
1. Whether the respondent is in arrears of rent as alleged. If so to what extent? OPP.
2. Whether the premises are bonafidely required by the petitioner for rebuilding and reconstruction as alleged? OPP.
3. Whether the respondent has committed such acts as are likely to impair materially the value and utility of the building as alleged? OPP.
4. Whether the petition is not maintainable? OPD.
5. Whether the petitioner has no cause of action? OPD.
6. Whether the petitioner is estopped from filing the present petition as alleged? OPD.
7. Relief.
The issues No. 1 to 3 were answered in affirmative and issues No. 4 and 5 in negative, the issue No. 6 was decided against the tenant and the petition was allowed by the Rent Controller on 11.12.2002 on the grounds of arrears of rent, rebuilding and reconstruction, material impairment of the value and utility of building. The appeal filed by the tenant was dismissed by the Appellate Authority on 21.12.2005, hence tenant has filed the present revision petition.
5. Heard and perused the record. Mr. M.S.Thakur, learned Counsel for the petitioner has submitted that Appellate Authority has misconstrued, misinterpreted the pleadings and evidence on record. The existing stairs serve the building from ground floor. It is not possible to construct the stairs in the premises in question, as sought for by the respondent. There is no need for addition or alteration, nor construction of stairs is feasible. The bonafides of respondent for construction of stairs is absolutely lacking. There is no sanctioned plan for reconstruction. The premises is non-residential and it cannot be converted into residential. The premises alongwith the building was constructed in the year 1989-90. The condition of the premises is not dilapidated and it does not require reconstruction. The petitioner has not impaired the value and utility of the premises and the building. The premises was rented out by respondent knowing fully well that petitioner is to run business of welding, auto workshop and fabrication in the premises. The expert has also reported that premises has not suffered any damage on account of the business being run by the petitioner in the premises. The petitioner uses vacant land belonging to Public Works Department for cutting iron rods. The respondent intends to increase the rent of the premises and he filed the petition when petitioner refused to increase the rent. The statements of RW 1 and RW 2 H.S. Bisht, have been misconstrued. The building in question is four storeyed and the premises in question is in ground floor. The petitioner is not in arrears of rent, however, arrears of rent, interest and cost determined by the Rent Controller have been paid. The findings recorded by the Appellate Authority are contrary to evidence and pleadings. Mr. G.C.Gupta, Senior Advocate appearing on behalf of the respondent has supported the impugned judgement. He has submitted that concurrent findings of facts have been recorded by the two authorities below and in revision re-appreciation of evidence is not possible.
6. PW 1 P.S. Raju landlord has supported his case. PW 2 M.P. Dutta, Retired Executive Engineer, Electricity Board has stated that he has service experience of about 35 years. He is diploma holder in Civil Engineering. He has submitted report Ex. PW 2/A. PW 3 Kamaljeet has stated that disputed building is at a short distance from his own house. There is a septic tank, which was constructed by respondent, in front of septic tank is the residence of respondent above the shop, but there is no regular passage for going to the residence. The passage is through lintel of neighbour by placing wooden planks. The building has developed cracks due to the work undertaken by the petitioner.
7. RW 1 Bharat Bhushan has stated that he had taken on rent the shop in the year 1990-91 vide agreement Ex. PW 1/A and since the inception of the tenancy, he had been doing the work of steel fabrication and auto works, but he undertakes the work outside the shop. The respondent resides in the first floor and to the residence of respondent there are stairs adjacent to the shop. The condition of the shop is good, there are no cracks. The shop was inspected by an expert. The respondent had issued only one receipt Ex. RW 1/C regarding the payment of rent. He had sent the rent to respondent in August 1999. The rent is not due from 1.3.1996. In cross-examination, he has stated that respondent had constructed a septic tank in front of the shop. He has denied that due to work he undertakes, the lintel of septic tank had developed cracks. He has also denied that the upper storeys have also developed cracks due to this reason. He has stated that respondent had constructed columns in front of the shop for construction of stairs, volunteered that those columns were constructed in PWD drain, which were demolished by Public Works Department. He has admitted that respondent and others had reported against him that he works during night also.
8. RW 2 H.S. Bisht has proved his report Ex. RW 2/A and drawings Ex. RW 2/B. In cross-examination, he has stated that stairs which he has shown in Ex. RW 2/B go up to only first floor. He has referred about the residence of respondent in second floor in his report as told to him by petitioner, he had not inspected the residence of respondent. The petitioner had steel fabrication and welding machines inside the shop. He has stated that job of steel fittings is required before steel fabrication, which requires hammering. There is no mechanical system for steel cutting. He has stated that hammering is required for steel cutting, which affects the premises. He could not say that the building was constructed for industrial work. He has stated that on the spot except for septic tank and shop, there is no place for steel cutting. He has stated that for construction of stairs, demolition of shop is required, volunteered, stairs can be constructed otherwise but that will affect the view of shops and would not be proper. He has stated that he had not gone in the residential portion and therefore, cannot say that residential portion has cracks.
9. RW 3 Dila Ram has stated that he does not know whether the respondent has some approach for going to the upper floors. In cross-examination, he has stated that he had not gone inside the disputed shop. He has stated that he is not aware that the respondent for going to the upper floors has placed wooden planks from the adjacent building for using them as passage. He has stated that petitioner is doing steel fabrication work both inside and outside the shop.
10. RW 4 Pawan Kumar is another tenant of the respondent. He has stated that respondent uses stairs adjacent to his shop for going to the upper floor in the building. In cross-examination, he has stated that he does not know that the respondent for going to his residential portion has placed wooden planks from the adjacent building for using them as passage.
11. The petition was filed on 15.9.1999. The respondent has claimed rent in the petition from 1.3.1996 onwards amounting to Rs. 38,700/- up to September 1999 at the rate of Rs. 900/- per month. The Rent Controller has decided issue No. 1 in favour of the respondent. The petitioner in the reply has pleaded that rent of the premises is Rs. 900/- since January 1997. He has pleaded that the rent of the premises up to July 1999 had been paid. The rent of August 1999 was sent through money order, which was refused by the respondent. Ex. RW 1/C is the receipt of rent amounting to Rs. 7200/- for the period from 1.1.1991 to 30.9.1991. It is the case of the respondent that rent was increased to Rs. 900/- w.e.f. 1.1.1996. The increase of rent has not been denied by the petitioner but according to him the rent was increased from 1.1.1997. The petitioner has not placed on record any rent receipt showing the payment of rent for the period claimed in the petition. He has also not proved the fact that rent for the month of 1.8.1999 was sent by him to the respondent through money order, which was refused. Ex. PX is the certified copy of judgement dated 1.11.2002 passed by Sub Judge Ist Class, Court No. 1 Shimla whereby the claim of Rs. 36,000/- of respondent on account of rent at the rate of Rs. 900/- per month of the premises against the petitioner for the period 1.10.1998 to 30.9.2001 was decreed. The two authorities below on the basis of evidence on record have recorded a concurrent finding of fact that petitioner is in arrears of rent at the rate of Rs. 900/- per month for the period claimed in the petition. Hence, no fault can be found with the findings of two authorities on the point of arrears of rent.
12. The grievance of the petitioner with respect to rebuilding and reconstruction as claimed by the respondent is that respondent has no sanction plan for making rebuilding and reconstruction. According to respondent premises in question was initially constructed as non-residential, but now after reconstruction he wants to covert the same into residential premises. It has been submitted that conversion of non-residential building into residential building is not permissible. The Section 12 of H.P. Urban Rent Control Act, 1987 puts a bar for converting the residential building into a non-residential building except with the permission in writing of the Controller. The petitioner has not pointed out any provision from the Act which puts a bar for converting a non-residential building into a residential building. The bar under Section 12 is not absolute even for conversion of residential building into non-residential building, the residential building can be converted into non-residential building with the permission of the Controller. It is now well settled that sanction of the plan is not sine-qua -non for seeking ejectment of the tenant on the ground of construction, reconstruction under the Act. The bonafides of the landlord are to be seen and merely because plan has not been sanctioned, it cannot be said that landlord has no bonafide to make construction and reconstruction.
13. RW 1 Bharat Bhushan has stated that respondent had constructed columns in front of the shop for construction of the stairs, which were in PWD drain and were demolished by the Public Works Department. RW 2 H.S. Bisht, expert examined by the petitioner has stated that for construction of stairs demolition of shop is required. It has come in evidence that respondent is using wooden planks for passage which have been placed on the adjacent building for going to his residence in second floor of building in question. RW 3 Dila Ram has stated that he does not know whether respondent has some approach for going to the upper floors. He has also shown his ignorance that respondent for going to upper floors has placed wooden planks from the adjacent building for using them as passage. RW 4 Pawan Kumar another tenant of respondent has stated that he does not know that respondent for going to his residential portion has placed wooden planks from the adjacent building for using them as passage. It is thus clear that respondent has no passage except the wooden planks which he has placed on the adjacent building for going to his residential set. RW 2 H.S. Bisht, an expert of the petitioner has categorically stated that for construction of stairs demolition of the shop is required. The Appellate Authority as well as the Rent Controller have considered the matter properly and have rightly come to the conclusion that premises in question is required for construction/ reconstruction bonafide by the respondent and such finding recorded by the two courts below does not require any interference.
14. It is also the case of the respondent that petitioner has materially impaired the value and utility of the premises by running the business of welding, auto workshop and fabrication. The petitioner has fixed machines in the premises and he also cuts iron rods through hammering in the shop itself or outside the shop, which has damaged the septic tank and the upper floors of the building where cracks have developed. The petitioner has denied the case of the respondent of material impairment of the premises. It has been submitted on his behalf that right from the inception of tenancy the petitioner is running the business of welding, auto work and fabrication in the shop.
15. RW 2 H.S. Bisht has stated that steel fabrication and welding machines are inside the shop. He has submitted report Ex. RW 2/B and stated that he has referred about the residence of the respondent in second floor but he has not inspected the residence of respondent. He has also stated that job of steel fitting is required before steel fabrication which requires hammering. He has also stated that hammering is required for iron cutting and steel fabrication. He could not say that building was constructed for industrial work. He has also stated that except for septic bank and shop there is no place for steel cutting.
16. PW 2 M.P. Dutta, Retired Executive Engineer has proved his report Ex. PW 2/A. PW 3 Kamaljeet has stated that there is a septic bank, which was constructed by the respondent. The building has developed cracks due to the work undertaken by the petitioner. RW 3 Dila Ram has stated that petitioner is doing steel fabrication work both inside and outside the shop. In report Ex. PW 2/A it has been stated that some cracks have developed on the walls of first floor and cause of these cracks can be attributed to continuing hammering/ jerks impact exceeding the permissible limit due to functioning of industry and can cause permanent irreversible damages to the structure of the building. In Ex. PW 2/A, it has also been observed by the expert that cutting work is being done manually on the slab of the adjoining septic tank of the building. The impact load on the surface can cause damage to the slab of the septic tank and also to the entire building due to hammering/ jolting. The respondent has supported his case of material impairment in his statement. The scope of reconsideration of evidence in revision is very limited unless it is shown that perverse view has been taken by the authorities below or the inference drawn from the evidence by the authorities below is not at all possible. The learned Counsel for the petitioner has failed to bring the case within those parameters. The petitioner has failed to make out any case of misconstruction, misinterpretation of oral and documentary evidence on record. It has not been established that material evidence has been ignored. The view taken by the authorities below emerges from the evidence on record. The Rent Controller as well as Appellate Authority have rightly appreciated the evidence on record in returning the finding that premises in question has been materially impaired by the petitioner.
17. Resultantly, revision petition fails and is accordingly dismissed.
Civil Revision No. 51 of 2007.
18. The respondent had filed ejectment petition against petitioner from single room shop in Raju Building, Mauza Tutu, Shimla on the grounds that petitioner had not paid the arrears of rent w.e.f. 1.5.1999 at the rate of Rs. 900/- per month. The premises are required by respondent for self use to settle his own sons. The petitioner has materially impaired the value and utility of the building. The respondent has no access to the upper storey of his building where he is residing with his family, he wants to construct stairs to those storeys through the demised premises and the premises of another tenant Bharat Bhushan.
19. The petition was contested and preliminary objections of maintainability, lack of cause of action, estoppel, jurisdiction were taken. The rent of the premises Rs. 900/- per month was not denied. It was denied that petitioner is in arrears of rent. The other grounds of eviction were also denied by the petitioner. On the pleadings of the parties, the following issues were framed:
1. Whether the respondent is in arrears of rent, if so to what extent? OPA.
2. Whether the shop in dispute is bonafide required by the petitioner as alleged? OPA.
3. Whether the respondent has committed such acts which has materially impaired the value and utility of the premises as alleged? OPA.
4. Whether the premises is required by the petitioner for reconstruction and rebuilding as alleged? OPA.
5. Whether the petition is not maintainable? OPR.
6. Whether the petitioner has no cause of action? OPR.
7. Whether the petitioner is estopped from filing the present petition on account of his act, conduct and deed? OPR.
8. Whether this Court has no jurisdiction? OPR.
9. Relief.
The issues No. 1, 3 were answered in affirmative and issues No. 2, 4 to 8 in negative. It was held that petitioner is in arrears of rent w.e.f. 1.10.2001 to 30.9.2005 amounting to Rs. 43,200/-. The Rent Controller had passed ejectment order on the grounds of arrears of rent and material impairment on 6.10.2005. The petitioner- tenant filed CMA No. 141-S/14 of 2005 against the order dated 6.10.2005. The respondent-landlord filed CMA No. 145-S/14 of 2005 against the order dated 6.10.2005. The Appellate Authority had decided both the appeals by a common judgement dated 3.4.2007 and dismissed CMA No. 141-S/14 of 2005 and allowed CMA No. 145-S/14 of 2005 on the ground that respondent- landlord requires the premises for reconstruction and rebuilding. The petitioner-tenant has come in revision against the common judgement dated 3.4.2007 in Civil Misc. Appeal No. 141-S/14 of 2005 and Civil Misc. Appeal No. 145-S/14 of 2005.
20. Heard and perused the record. Mr. M.S. Thakur, learned Counsel for the petitioner has submitted that petitioner had not indulged into any act of carrying out additions or alterations in the premises so as to impair the value and utility of tenanted premises. The fixing of shutters, shelves in the shop does not amount to impairment of value and utility of the premises. The premises is not required by the respondent for purpose of construction of stairs to upper storey. The pleadings have not been properly appreciated by the authorities below. According to respondent, he wants to construct stairs to the upper part of the building and for that purpose he wants eviction of the petitioner and adjoining tenant Bharat Bhushan. There is no sanctioned plan for the construction. The alleged re-construction is not bonafide. The vacation of shop by the petitioner is not necessary for the construction of alleged stairs by the petitioner. The petitioner was not in arrears of rent and the authorities below have erred in returning the finding on arrears of rent in favour of respondent. It has been submitted that appellate authority has erred in dismissing the appeal of petitioner and allowing the appeal of the respondent. Mr. G.C.Gupta, Senior Advocate, learned Counsel for the respondent has supported the impugned judgement.
21. The respondent had filed ejectment petition on the grounds of arrears of rent, bonafide requirement of the landlord to settle his sons in the shop, material impairment of the premises by the petitioner and construction of stairs for the residence of the respondent which has no access and stairs cannot be constructed unless the shop is vacated by the petitioner alongwith the shop of adjacent tenant. The Rent Controller has ordered eviction on the grounds of arrears of rent and material impairment. The Rent Controller did not accept the plea of respondent that premises is required by the petitioner for settling his sons. The plea of reconstruction was also rejected. The appeal filed by the petitioner was dismissed by the appellate authority by impugned judgement. The appeal of respondent on the ground of reconstruction was allowed. In para 43 of the impugned judgement, the ground of self use of the premises by the respondent was also not pressed before the appellate authority, therefore, in the present revision the points left for consideration are arrears of rent, material impairment and reconstruction of premises.
22. PW 1 Prem Singh has stated that rent of the premises is Rs. 900/- per month. The petitioner had not paid rent since May 1999. The petitioner had not paid the rent despite notice Ex. PW 1/A. The petitioner after filing of the petition had sent money order but the amount sent through money order was short, therefore, it was refused. RW 1 Pawan Kumar in his statement has stated that shop was taken on rent in the year 1996 at Rs. 900/- per month. He has stated that rent claimed in the petition is not correct, the respondent had not issued receipt whenever the rent was paid to him. The petitioner in his statement has nowhere stated that he had paid the rent to the respondent demanded in the petition. The counsel representing the petitioner before the Appellate Authority in Civil Misc. Appeal No. 141-S/14 of 2005 did not press the ground of arrears of rent before the Appellate Authority. In other words, the petitioner has accepted the findings of Rent Controller on arrears of rent.
23. PW 1 Prem Singh has stated that Pawan Kumar sells tea and vegetables in the shop. He has partitioned the shop without the consent of the witness and had put shutters by drilling holes as a result of which the walls of premises have become weak. The premises was got inspected by M.P. Dutta, an Engineer. PW 1 has not stated as to whether the petitioner had partitioned the shop by brick wall or otherwise. PW 2 M.P. Dutta has stated that petitioner has provided shelves in the shop by hammering as a result of which cracks have developed in the walls. The shelves are of steel and the walls are of single brick, which have become weak. He has submitted his report Ex. PW 2/A. RW 1 Pawan Kumar has denied that he had drilled holes in the walls. He has, however, stated that he had placed two racks in the shop. He has also denied that the walls have developed cracks due to fixing of racks. RW 3 H.S. Bisht has proved his report Ex. RW 3/A and plan Ex. RW 3/B. RW 3 has denied that petitioner had drilled holes for fixing the racks.
24. The Appellate Authority has relied report Ex. PW 2/A and has observed that cracks had developed on the walls of first floor due to hammer jerks impact exceeding the permissible limit due to functioning of the industry and can cause permanent irreversible damage to the structure of the building. It is not the case of the respondent that petitioner is running some industry in the shop. In fact, the report Ex.PW 2/A is with respect to the premises of two tenants namely Pawan Kumar petitioner and another tenant Bharat Bhushan.
25. The learned Counsel for the petitioner has submitted that putting of iron shutters in the shop in no way materially affects the value and utility of the shop. The shelves put by the petitioner in the shop have also not impaired the value and utility of the shop. The report Ex. PW 2/A has been misconstrued and misinterpreted by the Appellate Authority. He has relied Om Pal v. Anand Swarup 1988 (2) RCR 419 (SC), wherein the Hon'ble Supreme Court has observed as follows:.It was pointed out in Om Prakash v. Amar Singh : 1987 (1) SCC 458 at 463: 1987 (1) RCR 326 that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word `materially altered the accommodation' and as such the construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. It would therefore follow that when a construction is alleged to materially impair the value or utility of a building, 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.
26. The respondent in his own statement has not stated the nature of partition put by the petitioner in the shop. He has vaguely stated that by putting the shelves the walls have become weak and value has been impaired. PW 2 M.P. Dutta is an expert of the respondent, who gave his report Ex. PW 2/A, in which he has not clearly stated how the value and utility of the premises has been impaired due to fixing of shelves and by putting shutters in the shop. He has rather mixed up his observation in the report by stating that Bharat Bhushan and Pawan Kumar have weakened four storeyed structure of Prem Singh Raju by removing the front wall to provide steel rolling shutters and fixing shelves by providing holes in the wall. Bharat Bhushan is another tenant of the respondent. The photographs Ex. PW 2/C-5 indicate that building is of RCC columns and beams. The building has not been constructed on load bearing walls. PW 3 Ranchis Singh has stated that petitioner has partitioned the shop, removed the planks and fixed the shelves and shutter by drilling holes. He has no where stated that by these acts value and utility of the shop has been impaired. He has also not stated how the petitioner has partitioned the shop. The learned Counsel for the respondent has stated that finding of fact recorded by the Appellate Authority and Rent Controller on the point of material impairment of value and utility of the premises is final and in revision the facts cannot be re-appreciated. The findings recorded by the Appellate Authority and Rent Controller on material impairment of the shop by the acts of the petitioner do not emerge from the evidence on record. The Appellate Authority has drawn wrong inference and in fact it has relied on the report Ex. PW 2/A where observation with respect to running of an industry is there. It is not the case of either side that petitioner is running industry in the shop. The respondent has failed to prove that by putting shutters and fixing shelves in the shop, the petitioner has impaired the value and utility of the shop. The finding recorded by the Appellate Authority and Rent Controller against the petitioner that he has impaired the value and utility of the shop is set- aside.
27. The respondent has taken another ground of eviction that premises is bonafide required by him for reconstruction. The respondent has supported his case on the point of reconstruction. He has also examined his expert PW 2 M.P.Dutta, who has proved his report Ex. PW 2/A. The petitioner has also examined expert RW 3 H.S. Bisht, who has proved his report Ex. RW 3/A. It has been submitted on behalf of the petitioner that there is no sanctioned plan of the intended construction to be raised by the respondent. The case of the respondent is that there is no approach to his residence in second floor in the same building and he is using the passage to his residence by placing wooden planks on the adjoining building.
28. PW 3 Ranchis Singh has stated that there is no approach to the building of respondent, who has placed wooden planks on the building of his neighbour Kaundal for using them as passage. He has stated that for going to the upper floors of the building approach can be made through the tenanted shop but the same cannot be constructed without vacating the shop.
29. PW 4 Kamaljeet Singh has also corroborated the statement of PW 3 and of respondent. RW 3 H.S. Bisht expert of the petitioner has stated that in Ex. RW 3/A stairs have been shown only up to half way. He has admitted Ex. PX in which wooden planks have been shown above the stairs. RW 3 has also stated that residence of the owner is above the shops of Bharat Bhushan and Pawan Kumar, but he has not seen the accommodation of the respondent. He has also stated that above the accommodation of respondent, there are slabs which he had not inspected. He has not shown approach to those slabs in the plan. It is thus clear that there is no approach in the upper portion of the building. The respondent himself is using passage by putting wooden planks. The expert of the respondent has specifically stated that approach to the upper portion of the building can be made through shop but the construction of such approach is not possible without vacating the shop. The petition for ejectment of tenant on the ground of reconstruction cannot be thrown out merely on the ground that landlord has no sanctioned plan. The bonafides for reconstruction can be established by other well known factors. The Appellate Authority has rightly appreciated the material on record in coming to the conclusion that tenanted premises is bonafide required by the respondent for reconstruction and rebuilding. The findings recorded by the Appellate Authority on issue No. 4 do not require any interference.
30. No other point was urged.
31. The result of the above discussion the revision petition is partly allowed. The findings recorded by the Appellate Authority and Rent Controller that petitioner has impaired the value and utility of the tenanted premises are set-aside but rest of the findings of Appellate Authority on other grounds of eviction are upheld. No costs.