Vipin
Kumar Vs. Roshan Lal Anand & Ors [1993] INSC 151 (24 March 1993)
Ramaswamy,
K. Ramaswamy, K. Sahai, R.M. (J)
CITATION:
1993 SCR (2) 640 1993 SCC (2) 614 JT 1993 (3) 171 1993 SCALE (2)456
ACT:
East
Punjab Urban Rent
Restriction Act 1949: Sections 13(2) & 13(3).
Tenant-Impairing
the value or utility of building-Eviction on the ground of-Inferential facts as
to impairment should be deduced from proved facts-Concurrent findings of
impairment-Interference by Supreme Court held not justified.
Constitution
of India 1950. Article 136-Appeal-Concurrent
findings of fact Power of Supreme Court to interfere with.
HEAD NOTE:
Section
13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 provides that if
a tenant has committed such acts as are likely to impair materially the value
of utility of the building or rental land the Rent Controller may make an order
evicting the tenant. A decree of eviction was passed against the
appellant-tenant under this provision. The finding recorded by the Rent Controller
was that he had constructed a wall in the varandah of the demised premises and
put up a door without permission of the landlord as a result of which the flow
of light and air had been stopped and consequently the value of the demised
shop had been im- paired and utility of the building was impaired. The decree
of Rent Controller was confirmed by the Appellate Authority as well as by the
High Court.
In
appeal to this Court it was contended on behalf of the appellant that Section
13(2) gave discretion to the Rent Controller to order eviction while in the
cases covered under Section 13(3) it was made mandatory to direct eviction of
the tenant. Therefore, the Rent Controller had to inde- pendently consider and
exercise discretion vested in him keeping in view the proved facts to decree ejectment.
It was for the landlord under the circumstances to prove such facts which
warranted the Controller to order eviction in his favour and since he had not
proved such facts, the Court had committed illegality in granting the decree of
ejectment.
641
Dismissing the appeal, this Court,
HELD:1.
If the tenant had committed such acts as are likely to impair materially the
value or utility of the building, he is liable to ejectment. The impairment of
the value or utility of the building is from the point of the landlord and not
of the tenant. [643 A-C] 2.By constructing the wall, whether the value or
utility of the building has materially been impaired is an inferential fact to
be deduced from proved facts. In the instant case, the proved facts are that
the appellant had constructed the wall and put up a door therein without the
consent of the landlord. Consequently, the flow of the air and light has been
stopped. He removed the fixtures. From these facts it was inferred that the
value or utility of the building has been materially affected. Therefore, it is
a finding of fact of which the Court cannot evaluate the evidence and upset
that finding. [643 D-E, 642 E] 3.Undoubtedly the statute, on proof of facts,
gives discretion to the Court, by Section 13(2) and made mandatory in cases
covered by Section 13(3), to order eviction. In a given set of facts the Rent
Controller, despite finding that the tenant committed such acts which may
impair the value or utility of the building yet may refuse to grant the relief
of eviction. It is for the tenant to plead and prove that the circumstances are
such. as may not warrant eviction and then the burden shifts on to the landlord
to rebut these facts or circumstances. Then the Rent Controller is to weigh
pros and cons and exercise the discretion. No such attempt was made by the
appellant. So no fault can be laid at the Rent Controller's failure to exercise
the discretion.
[643
G-H, 644 A-B] Om Parkash v. Amar Singh & Anr., A.I.R. 1987 S.C. 617, held
inapplicable.
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 3271 of 1984.
From
the Judgment and Order dated 18.7.84 of the Punjab & Haryana High Court in
C.R.No.1125 of 1984.
Prem Malhotra
and d S.K. Gautam for the Appellant. M.L. Verma and Mrs. S.K. Bagga for the
Respondents.
642
The following Order of the Court was delivered:
This
appeal by Special Leave arises against the order of the Punjab and Haryana High
Court in Civil Revision No.11-25 of 1984 dated July 18, 1984 confirming the
decree of eviction passed by the Rent Controller and confirmed by the Appellate
Authority under the provisions of the East Punjab Urban Rent Restriction Act,
1949 for short 'the Act'. The ground for eviction ultimately upheld by the
Courts below was that the appellant had constructed a wall in the varandah of
the demised premises and put up a door which materially impaired the value or
utility of the building. Shri Prem Malhotra, learned counsel for the appellant
contended that the appellant had not constructed the offending construction.
Even
if it is so there is no proof adduced by the landlord that by such a
construction the value or utility of the building had materially impaired. As
such the decree of eviction is clearly illegal. In support thereof he placed
reliance on a judgment of this court reported in Om Prakash v. Amar Singh &
Anr., A.I.R. 1987 SC 617.
The
question, therefore, is whether the finding of Courts below concurrently found
that the appellant had constructed a wall in the varandah which materially effected
the value or utility of the shop is vitiated by law. The building consists of
two shops and the appellant was inducted into one such shop. He constructed
the-wall in the varandah and put up the door. Therefore, it is a finding of
fact which we cannot evaluate the evidence and upset that finding. It was also
found that the wall was constructed without the permission of the landlord. Due
to construction the value or utility of the building have been materially
affected.
Section
13(2)(iii) provides thus:- "A tenant in possession of a building of rented
land shall not be evicted therefrom in an execution of a decree passed before
or after the commencement of this Act or otherwise and whether before or after
the termination of the tenancy, except in accordance with the provisions of
this Section (or) in pursuance of an order made under Section 13 of the Punjab
Urban Rent Restriction Act, 1947 as subsequently amended)".
Clause
3 of sub-section (2) of Section 13 provides that "if the tenant has committed
such acts as are likely to impair materially the value or utility 643 of the
building or rented land', the Rent Controller may make an order directing the
tenant to put the landlord in possession of the building or rented land. If the
Controller is not so satisfied, he shall make an order rejecting the
application. It is, therefore, clear that if the tenant had committed such acts
as are likely to impair materially the value or utility of the building, he is
liable to ejectment. The finding recorded by the Controller is that on account
of the construction of the wall and putting up a door the flow of light and air
had been stopped. He removed the futures. So the value of the demised shop has
been impaired and utility of the building also is impaired. The impairment of
the value or utility of the building is from the point of the landlord and not
of the tenant. The first limb of Clause 3 of sub-section (2) of Section 13 is
impairment of the building due to acts committed by the tenant and the second
limb is of the utility or value of the building has been materially impaired.
The acts of the tenant must be such that by erecting the wall had materially
impaired the value or utility of the demised premises. It is contended by Mr.
Prem Malhotra
that the landlord should prove as to how it is materially effected and that
there is no evidence adduced by the landlord. We find no force in the
contention. By constructing the wall, whether the value or utility of the
building has materially been impaired is an inferential fact to be deduced from
proved facts. The proved facts are that the appellant without the consent of
the landlord had constructed the wall and put up a door therein as found of the
Rent Controller, the flow of air and light has been stopped. He removed the
fixtures. From these facts it was inferred that the value or utility of the
building has been materially effected. It is then contended that sub-section
(2) of Section 13 gives discretion to the Rent Controller to order eviction
while the cases covered under Sub-section (3) of Section 13 it is made
mandatory to direct eviction of the tenant. Therefore, the Rent Controller has
to independently consider and exercise discretion vested in him keeping in view
the proved facts to decree ejectment. It is for the landlord under the
circumstances to prove such facts which warrant the Controller to order
eviction in his favour. The landlord had not proved such faces in his favour.
Therefore,
the Court had committed illegality in granting the decree of ejectment We find
no force in the contention.
Undoubtedly
the statute, on proof of facts, gives discretion to the court, by Sec. 13(2)
and made mandatory in case covered by Sec. 13(3), to order eviction. In a given
set of facts the Rent Controller, despite finding that the tenant committed
such acts which may impair the value or 644 utility of the building yet may
refuse grant the relief of eviction. It is for the tenant to plead and prove
that the circumstances are such as may not warrant eviction and then the burden
shifts on to the landlord to rebut those facts or circumstances. Then the Rent
Controller is to weigh pros and cons and exercise the discretion. No such
attempt was made by the appellant. So no fault can be laid at the Rent
Controller's failure to exercise the discretion. In Om Prakash's case the words
"materially altered" under section 14(c) of the U.P. Cantonments
(Control of Rent and Eviction) Act, 1952, came up for consideration. This court
held that the nature and character of change or alteration of the building must
be of an essential and important nature. 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. In considering that language it was held that putting up a door
to the varandah is not a material alteration. The ratio thus renders little
assistance to the facts of the case.
In
view of the facts and circumstanced of the case the appellant may remain in
possession for one year and shall vacate the premises on or before April 1,
1994 subject to the condition that the appellant should pay Rs.200 per month
from April, 1993 till date of eviction. He should file undertaking in the
Registry of this Court within a period of six weeks with usual conditions. The
appeal is accordingly dismissed but in the circumstances without costs.
T.N.A.
Appeal dismissed.
Back