Om Prakash Vs. Amar Singh & Anr
[1987] INSC 5 (9
January 1987)
Singh,
K.N. (J) Singh, K.N. (J) Mukharji, Sabyasachi (J)
CITATION:
1987 AIR 617 1987 SCR (1) 968 1987 SCC (1) 458 JT 1987 (1) 199 1987 SCALE (1)35
CITATOR
INFO : F 1988 SC 293 (5,7,12)
ACT:
U.P.
Cantonment Rent Control Act, 1952--Section 14--Tenants--Eviction
of--Construction or alteration must be of such nature and character as to
materially alter the accommodation.
Words
& Phrases--'Altered'--'Materially'--meaning of.
HEAD NOTE:
The tenanted
premises was let out to the appellant for running a Dal and Oil Mill. The
respondents purchased the building and a year later filed a suit for eviction,
inter alia, alleging that the appellant had made material alterations in the
tenanted premises without their consent causing substantial damages to it. The
disputed construction included a partition wall in a hall converting the same
into two portions and tin sheds shown by letters ABHG and CDGH.
The
trial Court decreed the suit holding that the partition wail in the hail did
not constitute mateial alteration and that the tin shed marked by letters ABHG
had been constructed with the consent of the erstwhile landlords but the tin
shed marked with letters CDGH had been constructed subsequently without respondents'
consent, which materially altered the accommodation.
On
appeal, the Additional Civil Judge found that none of the constructions
constituted material alterations.
But on
second appeal, the High Court held that the tin shed indicated by letters CDGH
as well as the partition wall made in the hail converting the same into two
rooms, constituted material alteration as contemplated by s.14(c) of the U.P.
Cantonment Rent Control Act, 1952, justifying the eviction of the tenant.
Allowing
the Appeal,
HELD:
(1) The order of the High Court is set aside and the Judgment and decree of the
First Appellate Court are restored. [978A] 969
(2)
The U.P. Cantonment Rent Control Act, 1952 does not permit a landlord to file
suit for eviction of a tenant without obtaining permission of the District
Magistrate but if the tenant, without the landlord's permission made or
permitted to make construction which in the opinion of the Court has materially
altered the accommodation or which is likely to diminish its value substantially,
the landlord is free to file suit for tenant's eviction without obtaining
permission of the District Magistrate. [973B-C]
(3)
Necessary facts which should be established by the landlord for obtaining a
decree against the tenant under the said provision are that
(i) the
tenant has made construction;
(ii) such
constructions have been made without the consent of the landlord; and
(iii) constructions,
so made have materially altered the accommodation.
These
three conditions are cumulative in nature, each one of them is necessary to be
established before a decree for eviction can be passed against the tenant.
[973D-F]
(4)
The Act does not define either the word 'materially' or the word 'altered'. The
expression 'materially altered' means "a substantial change in the
character form and the structure of the building without destroying its
identity".
It
means that the nature and the character of change or alteration of the building
must be of essential and substantial nature. [973F; 974A-B] Concise Oxford Dictionary; Words and Phrases
(Permanent Edition) and Babu Manmohan Das Shah & Ors. v. Bishun Das, [1967]
1 SCR 836, referred to.
(5) In
determining the question the Court must address itself to the nature, character
of the constructions and the extent to which the changes in the front and
structure of the accommodation are made having regard to the purpose for which
the accommodation may have been let out to the tenant. [974D-E]
(6)
The material alterations contemplate change of substantial nature affecting the
form and character of the building. Many a time tenants make minor
constructions and alterations for the convenient use of the tenanted
accommodation. The Legislature does not provide for their eviction, for such
alterations. [974E-F]
(7)
Construction of a Chabutra, Almirah, opening of a window or closing a verandah
by temporary structure or replacing of a damaged 970 roof which may be leaking
or placing partition in a room or making similar minor alterations for the
convenient use of the accommodation do not materially alter the building as in
spite of such constructions the front and structure of the building may remain
unaffected. It is not possible to give exhaustive list of constructions which
do not constitute material alterations, as the determination of this question
would depend an the facts of each case. [974F; 975A] S.B. Mathur v. K.P. Gupta,
[1961] Allahabad Law Journal 136, Dr. J.G. Gupta v. Bodh Mal, [1969] Allahabad
Law Journal 477, Sita Ram Sharan and Anr. v. Johri Mal & Anr., [1972] Allahabad Law Journal 361 & Baldev Das v.
Ram Khilawan, [1979] Allahabad Law Reports 44, referred to.
(8)
The findings regarding constructions would be finding of fact, but the question
whether the constructions materially alter the accommodation is a mixed
question of fact and law, which should be determined on the application of the
correct principles. [975D-E]
(9)
The nature of constructions, whether they 'are permanent or temporary, is a
relevant consideration in determining the question of 'material alteration'. A
permanent construction tends to make changes in the accommodation on a
permanent basis, while a temporary construction is on temporary basis which do
not ordinarily affect the form or structure of the buildings, as it can easily
be removed without causing any damage to the building. [977C-E] Babu Manmohan Das
Shah & Ors. v. Bishun Das, [1967] 1 SCR 836, explained.
10(i) In
the instant case, the findings recorded by the trial Court and the relevant
evidence clearly show that the partition wall did not actually partition the
hall converting the same permanently into two rooms. The partition wall was
made without digging any foundation of the floor of the room nor it touched the
ceiling, instead it was a temporary wail Of 6 feet height converting the big
hall into two portions for its convenient use, it could be removed at any time
without causing any damage to the building. The partition wail did not make any
structural change of substantial character either in the form or structure of
the accommodation. [975G; 976A] 10(ii) The wail which had been constructed for
the tin shed was kuchha, made of bricks and mud and the bamboo tatters were
used for 971 enclosing it. The findings recorded by the First Appellate Court
and the Commissioner's report make it evident that the tin shed was constructed
on an open land, it was temporary in nature and it could be removed without
causing any damage to the building. One portion of the tin shed was already in
existence on the open land adjacent to the accommodation, the appellant merely
extended that in shed which did not make any substantial change either in the
form or structure of the building. There is no material on record to sustain
the findings of the High Court that the appellant had constructed pucca walls
on three sides of the tin shed; instead the Commissioner's report is contrary
to it [976F; 977A] (11) The Single Judge placing reliance on the observation of
the Full Bench decision in Sita Ram's case (supra) held that the disputed
construction even though temporary in nature, which could be removed without
causing any damage to accommodation, would fall within the mischief of material
alterations. The High Court committed error in interfering with the findings of
the First Appellate Court. [977G; 978A]
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 886 of 1976.
From
the Judgment and Order dated 11.5. 1976 of the Allahabad High Court in Second Appeal No. 3684 of 1966.
S.N. Kacker,
R.B. Mehrotra and Miss Abha Jain for the Appellant.
Gobinda
Mukhoty, S.K. Verma, R.S. Singh and P.A. Mishra for the Respondents.
The
Judgment of the Court was delivered by SINGH, J. This appeal by special leave
is directed against the Judgment of the High Court of Allahabad setting aside
the judgment and decree of the first appellate court and decreeing the
landlord's suit for eviction against the appellant.
The
appellant has been tenant of Kothi No. 196 situated in Dholki Mohalla, Sadar Bazar,
Meerut Cantt. ever since 1961 on a rent of Rs. 93 per mensem. The tenanted premises
was let out to the appellant for running a Dal and Oil Mill.
The
respondents purchased the building from the erstwhile owners in 1963, a year later,
they filed a suit for appellant's eviction on a number of grounds including the
972 ground that the appellant had made constructions materially altering the
accommodation without their consent causing substantial damages to it. It is
not necessary to refer to other grounds as the sole ground which survived for
the decree of eviction relates to the material alterations made in the tenanted
premises without obtaining the consent of the landlord. The disputed
constructions include a partition wall in a hail converting the same into two
portions and tin sheds shown by letters ABHG and CDGH. The trial Court held
that the partition wall in the hall did not constitute material alteration, it
further held that the tin shed marked by letters ABHG had been constructed by
the appellant with the consent of the erstwhile landlords predecessor in
interest of the respondents but the tin shed marked with letters CDGH had been
constructed by the Appellant subsequently without respondents' consent, which
materially altered the accommodation and on that findings the trial court
decreed the suit. On appeal, the Additional Civil Judge set aside the trial
Court's order and dismissed the respondents' suit on the findings that none of
the constructions constituted material alteration justifying appellant's
eviction under sec. 14(c) of the U.P. Cantonment Rent Control Act 10 of 1952.
On a second appeal made by the respondents a learned Single Judge of the High
Court set aside the order of the first appellate court on the findings that the
tin shed indicated by the letters CDGH as well as the partition wail made in
the hall converting the same into two rooms, constituted material alteration as
contemplated by the Sec. 14(c). Since the constructions had been made without
permission of the respondent, the tenant was liable for eviction.
There
is no dispute that the demised premises is subject to the provisions of the
U.P. Cantonment Rent Control Act, 1952 (hereinafter referred to as the Act).
Section 14 of the Act imposes restriction on the landlord's right to file suit
for eviction of a tenant from any accommodation except on one or more of the
grounds specified therein. Sec. 14(c) relevant for the purposes of this case
reads as under:
"Sec.
14: Restrictions on eviction: No suit shall, without the permission of the
district Magistrate, be filed in any civil Court against a tenant for his
eviction from any accommodation except on one or more of the following grounds,
namely:
(a)
XXXXX (b) xxxxx 973 (c) that the tenant has without the permission of the
landlord, made or permitted to be made any such construction as in the opinion of
the court has materially altered the accommodation or is likely substantially
to diminish its value ;"
The
Act does not permit a landlord to file suit for eviction of a tenant without
obtaining permission of the District Magistrate but if the tenant, without the
landlords permission made or permitted to make construction which in the
opinion of the court has materially altered the accommodation or which is
likely to diminish its value substantially, the landlord is free to file suit
for tenant's eviction without obtaining permission of the District Magistrate.
If the tenant makes constructions which materially alter the accommodation,
without the permission of the landlord the embargo placed on the landlord'
right to file suit is lifted and he is free to file suit for tenant's eviction
without obtaining permission of the District Magistrate. It is the unauthorised
constructions which provides cause of action for tenant's eviction, but every
construction or alteration made by a tenant in the building does not provide a
ground for eviction; instead the constructions complained of, must be of such
nature and character as to materially alter the accommodation. Necessary facts
which should be established by the landlord for obtaining a decree against the
tenant under the said provision are that (1) the tenant has made constructions;
(ii) such constructions have been made without the consent of the landlord; and
(iii) constructions so made have materially altered the accommodation. These
three conditions are cumulative in nature, each one of them are necessary to be
established before a decree for eviction can be passed against the tenant. So
far as the first and second conditions are concerned, they do not present any
difficulty as these are pure questions of fact, but difficulty arises in
determining the third condition, namely whether the constructions constitute
material alteration. It is a vexed question which the Courts face very often.
The
Act does not define either the word 'materially' or the word 'altered'. In the
absence of any legislative definition of the aforesaid words it would be useful
to refer to the meaning given to these words in dictionaries. Concise Oxford
Dictionary defines the word 'alter' as change in character, position'
"Materially" as an adverb means 'important' essentially concerned
with matter not with form. In Words and Phrases (Permanent Edition) one of the
meanings of the word 'alter' is 'to make change, to modify, to change, change
of a thing from one form and set to another. The expression
"alteration" with refer974 ence to building means 'substantial'
change, varying, change the form or the nature of the building without
destroying its identity". The meaning given to these two words show that
the expression 'materially altered' means "a substantial change in the
character, form and the structure of the building without destroying its
identity." It means that the nature and character of change or alteration
of the building must be of essential and important nature. In Babu Manmohan Das
Shah & Ors. v. Bishun Das, [1967] 1 SCR 836 this Court considering the
expression 'material alterations' occurring in sec. 3(1)(c) of U.P. (Temporary)
Control of Rent and Eviction Act, 1947 observed:
"Without
attempting to lay down any general definition as to what material alterations
mean, as such, the question would depend on the facts and circumstances of each
case, the alterations in the present case must mean material alterations as the
construction carried out by the respondent had the effect of altering the front
and structure of the premises." 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. The Legislature intended that only those constructions which bring
about substantial change in the front and structure of the building should
provide a ground for tenant's eviction, it took care to use the word
'materially altered the accommodation.' The material alterations contemplate
change of substantial nature affecting the form and character of the building.
Many a time tenants make minor constructions and alterations for the convenient
use of the tenanted accommodation. The Legislature does not provide for their
eviction instead the construction so made would furnish ground for eviction
only when they bring about substantial change in the front and structure of the
building. Construction of a Chabutra, Almirah, opening a window or closing a
verandah by temporary structure or replacing of a damaged roof which may be
leaking or placing partition in a room or making similar minor alterations for
the convenient use of the accommodation do not materially alter 'the building
as in spite of such constructions the front and structure of the building may
remain unaffected. The essential element which needs consideration is as to
whether the constructions are substantial in nature and they alter, the form,
front and structure of the accommodation. It is not possible to give exhaustive
list of constructions which do not constitute material 975 alterations, as the
determination of this question depends on the facts of each case. In S.B. Mathur
v. K.P. Gupta, [1961] Allahabad Law Journal 136 construction of temporary wail
enclosing verandah and putting up an iron jungala and placing a partition wall,
temporary in nature was held not to constitute material alteration of the
accommodation. In Dr. J.G. Gupta v. Bodh Mal. [1969] Allahabad Law Journal 477
a Division Bench of the High Court held that temporary construction made by a
tenant in the shape of kitchen and bathroom did not constitute material
alterations as the same were temporary and they could be removed without
causing any damage to the accommodation.
In Sita
Ram Sharan and Anr. v. Johri Mal & Anr., [1972] Allahabad Law Journal 301 a
Full Bench held that construction which converted the tenanted premises into
double storey structure, materially altered the accommodation. Another Division
Bench of the High Court in Baldev Dass v. Ram Khilawan, [1979] Allahabad Law
Reports 44 held that a partition wall in a shop converting the same into two
portions for the convenient use of the same did not amount to material
alteration. These decisions were rendered on the facts available on the record
of those cases. In deciding this question the Court has to consider whether the
constructions have been made with the consent of the landlord and if so,
whether those constructions are of such substantial nature which make material
alterations in the accommodation. The findings of the court regarding
constructions would be finding of fact, but the question whether the
constructions materially alter the accommodation is a mixed question of fact
and law, which should be determined on the application of the correct
principles.
In the
instant case the disputed constructions which the High Court has found to be
'material alteration' consists of a partition wall of 6 feet height in a hall
converting the same into two rooms and a tin shed marked by letters CDGH on the
Eastern side on the open land adjacent to the accommodation. The trial Court
held that the partition wall did not change the front or structure of the
accommodation, it being temporary in nature, did not constitute material
alterations in the accommodation. This finding of the trial court was not
challenged by the landlord before the Civil Judge. But the High Court has held
that the partition wall constituted 'material alteration'. The findings
recorded by the trial court and the relevant evidence placed before us by the
parties clearly show that the partition wall did not actually partition the
hall converting the same permanently into two rooms. The partition wall was
made without digging any foundation of the floor of the room nor it touched the
ceiling, instead; it was a temporary wall of 6 feet height converting the big
hall into two portions for its convenient 976 use, it could be removed at any
time without causing any damage to the building. The partition wail did not
make any structural change of substantial character either in the form or
structure of the accommodation.
The
other disputed item relates to the construction of tin shed. The respondents
alleged that the appellant had constructed a tin shed shown by letters ABCD in
the site plan attached to the plaint in an unauthorised manner without
obtaining his consent. All the three courts have recorded concurrent finding
that the tin shed shown by the letters ABCD consists of two portions. One
portion is shown by letters AGHB and the other shown by GHCD. The trial court
as well as the first appellate Court both have recorded findings that the
portion of the tin shed shown by letters CDGH had been constructed by the
appellant without the consent of the respondent landlords, but the rest of the
tin shed shown by the letters ABGH had been constructed by the appellant after
obtaining permission of the Cantonment Board and the erstwhile landlord. The
First Appeal Court held that the tin shed shown by letters CDGH did not
constitute material alteration as the constructions were temporary in nature
which could be removed at any time without causing any damage to the
accommodation. The First Appeal Court further held that the basic stiucture of
the accommodation let out to the appellant was not affected at all by the
disputed tin shed as it had been constructed on the open land adjoining the
accommodation and it was enclosed by Bamboo structure, and Kuchha wail which
did not effect any change in the form or the structure of the tenanted
building. In second appeal the High Court held that since two sides of the tin
shed were resting on the pucca wall it constituted a material alteration in the
accommodation. We have been taken through the Commissioner's report filed
before the Lower Court and on perusal of the same we find
that the wail which had been constructed for the tin shed was kuchha, made of
bricks and mud and the bamboo tatters were used for enclosing it. The findings
recorded by the First Appeal Court and the Commissioner's report make it
evident that the tin shed was constructed on an open land, it was temporary in
nature and it could be removed without causing any damage to the building.
One
portion of the tin shed was already in existence on the open land adjacent to
the accommodation, the appellant merely extended that tin shed which did not
make any substantial change either in the form or structure of the building.
There is no material on record to sustain the findings of the High Court that
the appellant had constructed pucca wails on three sides of the tin shed;
instead the Commissioner's report is contrary to it. In the circum977 stances
the construction of tin shed could not be held to have materially altered the
accommodation.
Learned
counsel for the respondent placed reliance on the Full Bench decision of the
High Court in Sita Ram's case (supra) where the question as to what
constructions could materially alter the accommodation was considered. The Full
Bench held that conversion of a single storey shop into a double storied
structure by constructing a pucca superstructure on the roof of the shop
materially altered the accommodation. On the facts of that case, there could be
no doubt that the tenant had made substantial constructions which changed the
form, front and structure of the tenanted shop. The High Court observed that
the fact that a construction is permanent or temporary in nature does not
affect the question as to whether the constructions materially alter the
accommodation or not. We do not agree with this view.
The
nature of constructions, whether they are permanent or temporary, is a relevant
consideration in determining the question of 'material alteration'. A permanent
construction tends to make changes in the accommodation on a permanent basis,
while a temporary construction is on temporary basis which does not ordinarily
affects the form or structure of the building, as it can easily be removed
without causing any damage to the building. The Full Bench referred to the
observation of this Court made in Babu Manmohan Das Shah's case (supra) that
the alteration in a given case might not cause damage to the premises or its
value or might not amount to an unreasonable use of leased premises, yet
construction may fall within the expression 'material alterations'. In our
opinion the observations made in Babu Manmohan Das Shah's case (supra) do not
justify inference that the nature of the construction whether permanent or temporary
is not relevant for the purpose of determining the 'material alterations' made
by a tenant.
Learned
counsel then urged that this Court should not interfere with the findings of
fact recorded by the High Court. We find no merit in the submission. The
question whether disputed constructions constitute material alterations is a
mixed question of fact and law. The High Court in second appeal interfered with
the findings of fact recorded by the lower courts on the question whether tin
shed and the partition wail constituted material alterations. The learned
Single Judge placing reliance on the observations of the Full Bench decision in
Sita Ram's case (supra) held that the disputed construction even though
temporary in nature, which could be removed without causing any damage to the
accommodation, would fail within the mischief of material altera978 tions. The
High Court committed error in interfering with the findings of the First Appeal Court. We accordingly allow the appeal,
set aside the order of the High Court and restore the judgment and decree of
the First Appeal Court. In the circumstances of the case there would be no
order as to costs.
A.P.J.
Appeal allowed.
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