Punjab-Haryana High Court
Bhupinder Singh And Anr. vs J.L. Kapoor And Anr. on 26 May, 1992
Equivalent citations: (1992)102PLR218
JUDGMENT M.S. Liberhan, J.
1. This revision petition has come up before us for decision keeping in view the conflict of decisions of this Court in Siri Ram v. Smt. Shila Rani, (1982) 84 P. L. R. 591 and Sadhu Ram v. Niranjan Dass., (1983) 85 P. L. R. 73. In the former case the Hon'ble Judge took the view that unauthorised construction by a tenant would itself amount to material impairment of the value and utility of the demised premises. On the other hand in Sadhu Ram's case (Supra) the view taken is that any construction raised by the tenant by itself would not entitle the landlord to claim his ejectment unless it is further proved that such a construction has materially impaired the value and utility of the demised premises.
2. It would be expedient to collate the facts as found on appreciation of evidence by the authorities below and not challenged during the course of arguments.
3. The tenant took a shed measuring 30' X 17' on lease for running an industrial unit. He covered the open space on the back of the shed, removed the weight bearing back wall; the weight of the sheets of the shed is on the wall as no pillars have been constructed and removed the grill in the common wall. It was found that the tenant made material structural alterations in the premises in dispute. The floor of the shed was also broken. The ejectment of the tenant was sought on the ground that the material structural alterations brought about by the tenant have materially impaired the value and utility of the demised premises. Thus, the tenant is liable to be ejected.
4. The Rent Controller as well as the Appellate Authority came to the conclusion, from the facts brought on record as reproduced above, that the alterations amounted to impairing the value and utility of the demised premises and, therefore, the tenant was liable to be rejected.
5. The statute providing the ground of ejectment for material impairment of the value and utility of the demised premises, runs as under:-
"13 (2) (iii)-that the tenant has committed or caused to be committed such acts as are likely to impair materially the value or utility of the building or rented land."
5. Learned counsel for the tenant challenged the finding of the authorities below on the ground that alterations found by itself cannot form a ground of ejectment. The landlord is bound to prove as a fact that the alterations have materially impaired the value and/or utility of the building by leading cogent evidence. The material impairment of the value and utility of the building is a question of fact and has to be alleged and proved as such. It is further urged that it cannot be said as a principle of law that as and when any material alteration and new construction is made by the tenant, it would necessarily amount to impairment of the value and utility of the demised premises. In order to support his contention, the learned counsel for the petitioners relied on Om Parkash of Meerut Cantt. v. Amar Singh, A. I. R. 1987 S.C. 617. Sadhu Ram v. Niranjan Dass, (1983) 85 P. L. R. 73 and Walaiti Ram (Sangrur) v. Sohan Lal., 1986 (1) R. C. R. 593. Learned counsel for the petitioners further urged that since the landlord has accepted the rent after the changes imputed to the tenant were brought about, it amounted to waiver of his right to seek ejectment on this ground.
6. The question whether the alterations have materially impaired the value and/or utility of the demised premises is purely a question of fact or not, is no more res integra. The Hon'ble Supreme Court in Sh. Om Pal v. Sh Anand Swamp (dead by Lrs.), (1988-2) 94 P. L. R. 699 (S C) observed that whether the construction has altered the accommodation is a mixed question of facts and law and should be determined and answered on the application of correct principles. It was observed that some reasoning which led them to conclude that materially altering the accommodation is a mixed question of facts and law would apply to the words "materially impaired the value and utility of the building". It was further observed that construction would be of such a nature as substantially diminish the value and utility of the building either from commercial or monetary point of view or utilisation or utilitarian aspect of the building. The Hon'ble Supreme Court while observing so did take note of its earlier judgment reported in Om Parkash's case (supra) to the effect that the mere extension of a tin shed on an open land adjacent and mud wall construction, enclosure with bamboo tatters would not amount to materially altering the structure substantially either in form or in character without destroying its identity.
7. The dictionary meaning of 'impair' was also taken note of viz. to diminish in quality, value excellence or strength of anything, to make worse, to weaken to enfeeble, reduce or diminish in quantity or quality.
8. The learned counsel for the respondents refuted the submissions made by the learned counsel for the petitioners and argued that no evidence is required to prove material impairment of the value and/or utility and the only evidence required to produce is what are the changes brought about or alterations made. Material impairment of the value and/or utility is for the Courts to infer from the facts averred proved on the record. The impairment is to be looked from the point of view of the landlord.
9. The question posed cannot be answered as an abstract proposition The provisions of law have to be looked into. The basis of the provisions and the object which the Legislation intended to achieve from the practical point of view and conducive to general public has to be kept in view. It is to be seen what reasonable person would regard as fair in the facts and circumstances of a particular case. The material impairment in the value and utility has to be considered as having a definite meaning and connotation as accepted from time immemorial on the principle which stood the test of time and has been accepted as legal and equitable maxim, that lessee cannot basically change the structure of the demised premises and has to return the premises he had taken on lease, to the landlord at the time of expiry of the tenancy in the same condition in which he took it on lease except the usual wear and tear resulting on account of time factor. The approach for determining whether alterations made have materially impaired the value and utility cannot be whimsical but has to be such as a reasonable man acting in a reasonable way would assume in the facts and circumstances of the case. It has to be judged according to the prevailing situation and not as one is deciding the question in cool and detached atmosphere of the Court, removed from the reality of the situation.
10. In view of the fact that the Tenancy Act puts restraint on the right of the landlord to use the property according to his free will and provides particular grounds on which alone he can seek the ejectment and the provisions being beneficial to and for the protection of tenants have to be strictly construed. We may venture to state that the precedents cited at the Bar, clearly establish that one of the safeguards provided to the landlord while providing grounds for ejectment regarding reversion of the demised premises by the tenant in the same condition in which it was taken on rent. Thus, conditions have been put on the right of a tenant to use the demised premises and one such condition is that tenant can use his tenanted premises during the tenure of tenancy without affecting it materially in its value and utility by his acts. Reading the statutory provisions it can safely be inferred that the tenant is debarred from making any structural alteration even if it enhances its value. By necessary corrolary the tenant has been debarred from changing the character of the property substantially.
11. We are of the considered view that what the landlord is required to show as the basis of his right to claim ejectment, once he has led evidence with respect to the material or structural alteration is that the impugned acts committed by the tenant has resulted in material impairment of the value and, utility of the demised premises In certain cases, on peculiar facts or proved it may be reasonable for the Courts to infer that the acts attributed to the tenant have resulted in the impairment in value and utility of the premises. It is the legal result which the Courts are bound to infer in the facts and circumstances of each case to determine whether in view of the facts proved in the peculiar facts and circumstances of that case, the acts attributed to the tenant have resulted in material impairment of the value or utility of the demised premises. It has to be determined in each and every case keeping in view the peculiar facts of that case in view. There cannot be any particular parameters of straight jackets tests or litmus test which can be spelled out for all facts and circumstances. The ordium of showing the material facts with regard to material impairment of the value or utility as a fact, need not be proved by an unassailable evidence or beyond doubt evidence. It will be dependent on the nature of the acts proved. Evidence may be lead to corroborate the inference the landlord asks the Court to make. The burden of proving may be light. The Courts have to examine carefully and assiduously the facts brought on record with respect to acts attributed to the tenant to infer the impairment in value and utility effected by the acts of the tenant proved on record as a fact.
12. Learned counsel for the petitioner relied on Om Parhash of Meerut Cantt. v. Amar Singh, A. I. R. 1987 S.C. 617, therein it has been observed that since alteration is of permanent nature, consequently it resulted in impairment of the value and utility of the demised premises. The proposition of law that every alteration without taking its nature into consideration would amount to impairment in value and utility cannot be stretched to its illogical end. In Sadhu Ram's case (supra) it was observed that impairment in value and utility has to be proved as a fact.
13. For the reasons recorded above we are of the opinion that acts attributed to the tenant has to be proved by leading evidence as a material fact. The resultant effect of the act proved would be a mixed question of law and fact. Though the landlord is required to prove the fact of impairment in value and/or utility attributable to the acts committed, yet Courts would be at liberty to infer so in facts and circumstances of each case. It may draw corroboration for, its inference from the evidence if any lead by the parties, though the burden of proving it is on the landlord.
14. We are further of the view that impairment in value or utility may be of different shades in the facts and circumstances of each case. For instance it may be either impairment in commercial or monetary point of view or utilization or utilitarian point of view.
15. The decision in Walaiti Ram's case (supra) is on its own facts wherein solely the removal of a wall was held not to be materially impairing the value and utility of a building. It has been observed in Om Parkash of Meerut Cantt. v. Amar Singh, A. I. R. 1987 S.C. 617, that the construction effected by the tenant has materially altered the accommodation which has materially or substantially diminished the value. As the word 'material' stands it amounts to substantial change in character. Similar were the observations made in Sadhu Ram's case (supra) wherein construction of open space was inferred to have resulted in impairment of the value and utility of the demised premises.
16. It would be fair on our part to refer to the judgments cited by the learned counsel for the respondents. These are Kartar Singh v. Kesar Singh; (1979) 81 P. L. R. 750. Chatar Sain v. Bishan Lal; (1976) 78 P. L. R. 178. Smt. Nirmala v. Ishwar Chander, (1981) 83 P. L. R. 763. Prabhu Lal v. Kalu Ram; 9. 1986 (1) R. C. R. 49. Brijendra Nath Bhargava and Anr. v. Harsh Wardhan; A. I. R. 1988 S.C. 293. Amir Chand v. Sardar Arjan Singh; 1987 (2) R. C. R. 518. Sudarshan Kumar v. Tejinder Singh; (1987-2) 92 P. L. R. 44. Harish Chand resident of Hodel v. Udai Bhan and Ors. (Gurgaon); (1984) 86 P. L. R. 533. Sarpat Singh, Jalandhar City v. Smt. Kans Rani Jalandhar City; 1986 H. R. R. 294. Raj Kumar v. Ram Kanwar; 1987 (2) R. L. R. 689. Ram Singh v. Banarsi Dass; (1989-2) 96 P. L. R. 119. M/s Kailash Pictures v. Shri Anil C. Bhawani, 1989 (1) R. C. R. 448. Sadhu Ram's case (supra); Smt. Indumati v Kirpal Singh Lamba; (1983) 85 P. L. R. 737. Walaiti Ram (Sangrur)'s case (supra). The judgments cited are on the peculiar facts and circumstances of those cases. No parameter can be culled out under which it can be assumed that the material alterations made would be taken to be impairing the value and utility of the building. In view of the above observations not much assistance can be drawn from the above listed judgments to answer the question raised in this case.
17. We are further of the considered view that we cannot subscribe to the view laid down in Siri Ram's case (supra) that mere proving of the fact that unauthorised construction by the tenant has been made, would itself amount to impairment of the value and utility of the demised premises and would itself provide the basis for ejectment. We do approve the observations made in Sadhu Ram's case (supra) that after proving the construction raised or material alteration effected or the acts of commission or omission committed by the tenant it has to be further proved or it has to be inferable from the facts proved on record that the material alteration has materially impaired the value or utility of the demised premises Though the burden of proving the material impairment of the value or utility of the demised premises in case of structural alteration having been proved may be very light, and it may be the duty of the Court to infer so in the facts and circumstances of a given case, but it cannot be laid down as a principle of Jaw that whenever there is a material alteration or new construction by the tenant, it would itself amount to material impairment of the value and/or utility of the demised premises. The material impairment of the value or utility of the demised premises has to be understood as a man of ordinary prudence would understand, not a sensitive landlord.
18. In the present case in view of the finding of fact arrived at, that the tenant has structurally altered the demised premises it would be reasonable to infer that such a substantial structural alteration as observed above while noticing the facts which has been found due to the acts attributed to the tenant has resulted in material impairment of the value and utility of the demised premises.
19. Resultantly, we affirm the finding of the authorities below and find no force in the revision petition which is dismissed with no order as to costs.