Punjab-Haryana High Court
Smt. Samitri Devi vs Karam Singh on 24 July, 1996
Equivalent citations: (1997)115PLR192
JUDGMENT G.S. Singhvi, J.
1. Aggrieved by the judgment dated 24.5.1984 passed by the Appellate Authority, Jalandhar, the petitioner has filed this revision petition under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 with a prayer that the judgment of the Appellate Authority be set aside and the order passed by the Rent Controller, Jalandhar, on 17.11.1982 be restored.
2. The petitioner filed an ejectment petition against the respondent under Section 13 of 1949 Act on the ground of non-payment of rent since 1978 and also on the ground of making alteration in the tenanted property. The respondent contested the application on the ground of want of notice, mala fide intention of the petitioner and also on the ground that no material alteration had been made by him over the property in dispute. The petitioner examined Sukhwinder Singh, Naresh Kumar, Satnam Singh, B.N. Nanda and Parduman Kumar to prove her claim whereas the respondent appeared himself and examined Balwant Singh and Changa Singh in support of his case.
3. On the issue of non-payment of rent the Rent Controller held that the amount of rent had been tendered by the tenant along with interest and costs and as no deficiency could be pointed by the counsel for the petitioner, the tenant was not liable to be ejected on that ground. However, on the issue of material alteration, the Rent Controller held that erection of nine pillars and putting of roof on them amounted to material impairment in the value and utility of the property. The Rent Controller also held that these constructions have been made without the consent of the landlord, and, therefore, the tenant was liable to be ejected. On the basis of these findings, the Rent Controller passed order dated 17.11.1982 for ejectment of the tenant.
4. In the appeal filed by the tenant, the Appellants Authority declined the request made on his behalf for permission to amend the written statement whereby the tenant wanted to challenge the title of the landlord. On the issue of material alteration in the tenanted property, the Appellate Authority disagreed with the finding recorded by the Rent Controller and held that the structure raised by the tenant was temporary in nature and there was no change in the user of the property. On the basis of this conclusion, the Appellate Authority reversed the order of the Rent Controller and dismissed the petition filed by the landlord.
5. Learned counsel for the petitioner argued that the Appellate Authority has acted illegally in reversing the findings of fact recorded by the Rent Controller on the issue of material impairment in the value of the property and lack of consent by the landlord. He argued that the findings recorded by the Appellate Authority about the nature of construction as well as consent of the landlord are based on no evidence and, therefore, the same must be discarded being perverse. On the other hand, the learned counsel for the respondent argued that the Appellate Authority had jurisdiction to re-appreciate the evidence produced by the parties and record its own findings on the issue of material impairment in the value or utility of the property as well as the consent of the landlord and as the impugned findings are based on proper evaluation of the evidence and the view taken by the Appellate Authority is quite plausible, this Court should not interfere with the judgment of the Appellate Authority.
6. Before proceeding further, I deem it proper to observe that revisional jurisdiction of this Court under Section 15(5) of 1949 Act to interfere with the order passed by the Rent Controller/Appellate Authority is very limited. Ordinarily, this Court will not interfere with the finding of fact recorded by the Rent Controller/Appellate Authority. Therefore, I shall examine the legality of the impugned judgment keeping in view the limited jurisdiction vesting with this Court to interfere with the order/judgment passed by the competent authorities constituted under the Act of 1949.
7. Perusal of the order passed by the Rent Controller shows that for upholding the contention of the landlord regarding material impairment in the value or utility of the property, it has relied on the statements of A.W.-4 B.N. Nanda, A.W.-5 Parduman Kumar and the so-called admissions made by Karam Singh (respondent), as also the statements of Balwant Singh and Ganga Singh. The Rent Controller has held that the tenant had constructed one room and varandah and had covered the same with roof. On the other hand, the Appellate Authority held that the structures raised by the tenant for storing fodder and tethering were temporary and they did not amount to material impairment in the value or utility of the property. The Appellate Authority discarded the evidence of Shri B.N. Nanda (A.W.4) by observing that the said witness had made a negative statement in as much as he had stated that he had prepared the report on the asking of the party producing him as a witness.
8. A careful analysis of the order passed by the Rent Controller shows total lack of application of mind by the competent officer towards the requirement of Section 13(2) (iii) of 1949 Act. The Rent Controller seems to have proceeded on the assumption that every construction made by a tenant without the permission or consent of the landlord amounts to material impairment in the value or utility of the property. Apparently for this reason, the Rent Controller did not consider as to what was the nature of the structure raised by the tenant. He did not analysis the evidence to find out whether the structure raised by the tenant had altered the form or front of the property. As against this, the Appellate Authority did direct its attention to the issue of nature of construction made by the tenant and observed that the construction was temporary in nature.
9. Having carefully perused the order passed by the Rent Controller, the judgment of the Appellate Authority and the evidence produced by the parties, I am of the considered opinion that the Rent Controller committed a serious illegality in ordering ejectment of the tenant on the ground of material impairment in the value or utility of the property. A look at the averments made in the ejectment petition filed by the petitioner shows that the landlord had not made any specific averment regarding nature of the structure erected by the tenant. It was not pleaded by the' landlord that the structure was firmly embedded in the earth and its removal at a subsequent point of time would damage her property. In his statement, Sukhwinder Singh (A.W.I) who prepared plan Exhibit A1 pointed out that he had prepared the plan as per the suggestion of Smt. Samitri Devi. However, he went on to say that Samitri Devi had not gone to the spot and in fact her son had gone there. This witness further stated that Bamboos and Reeds were lying on the spot. Shri B.N. Nanda, (A.W.4) who was author of Exhibit AW 4/A and Exhibit AW 4/B admitted in his cross-examination that he did not give notice to the parties about his visit at the spot. Shri Nanda further stated that he scribed whatever the parties told him. According to this witness two masons and four labourers could raise the entire structure within two days with the help of one carpenter. This witness, also stated that pillars were old, but partition wall which was six feet high was new one. In his examination-in-chief, Parduman Kumar stated that tenant had constructed nine pillars in the taur (vacant land) without their consent and he had constructed a wall between the two pillars and a verandah also. In cross-examination, this witness stated that site was given for occupation by the tenant about 7/8 years back, but he was using it for cattle. None of these witnesses has talked about the nature of the construction made by the tenant except that according to Shri Nanda, there existed a wall of six feet height and thickness of this wall was 4-1/2 inches. Plans exhibit A 1 and Exhibit AW 4/B together with report exhibit AW 4/A show that the property leased out to the respondent is bounded by walls on all the four sides with a gate on eastern side. The report shows that the pillars had been supported by bailles and logs of wood and upon these wooden rafters purlins of wooden planks and 'sarkandas'have been put up and they have been covered with mud plaster. Interestingly this report is contrary to the site plan Exhibit A-1 produced by the landlord because the site plan does not show construction of any room whereas report speaks of a room. It appears that Shri B.N. Nanda described the portion between walls as a room because it is covered by roof consisting of wooden logs, rafters purlins, sarkandas and mud.
10. Since none of the witnesses produced by the landlord spoke about the nature of the construction raised by the tenant and no evidence was produced by the landlord to prove that the structure existing on the property was not removable without causing injury to the form of the property leased out to the tenant, it must be held that the landlord failed to discharge the burden which lay upon her to prove the basic ingredients of Section 13(2)(iii) of 1949 Act. It is to be noted that pillars and six feet high wall constructed by the tenant are not shown to have been embedded in the earth. The roof made by logs of wood and rafters is easily removable without any damage to the property of the petitioner. Thus, it cannot be said that the construction made by the tenant resulted in material impairment in the value or utility of the property. Section 13(2) (iii) entitles a landlord to seek ejectment of the tenant on the ground of material impairment in value or utility of the rented building or land, but in the absence of any evidence produced by the landlord to show that the construction raised by the tenant was not easily removable or it changed the form, front or structure of the property, it is not possible to hold that finding recorded by the Appellate Authority suffers from any illegality requiring interference by the High Court.
11. In Babu Manmohan Das Shah v. Bishnu Das, A.I.R. 1967 SC 643, the Supreme Court while considering the expression 'material alterations' occurring in Section 3(1)(c) of the 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 cases, 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."
12. In Om Parkash v. Amar Singh and Anr., A.I.R. 1987 S.C. 617, their lordships of the Supreme Court were examining the provisions of the U.P. Cantonments (Control of rent and Eviction) Act, 1952. Section 14(c) of the Act is more or less pari materia with the provisions contained in Section 13(2)(iii) of 1949 Act. After making reference to the decision in Babu Manmohan Das Shah's case (supra), the Supreme Court observed as under :-
"In determining the question of 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 tenants' 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 changes in the front and structure of the building. Construction of a Chabutra, Almirah, opening a window or closing a varandah 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 inspite of such constructions the front and structure of the building may remain unaffected. The essential element which needs consideration is as to whether the construction are substantial in nature and they alter the form, front and structure of the accommodation."
13. In that case, the disputed construction was in the form of a wall of six feet height in a hall converting it into two rooms and tin shed in the open land adjacent to the accommodation. Their Lordships held that the partition wall was made without digging any foundation of the floor of the room nor it touched the ceilling instead it was a temporary wall of six feet height converting the big hall into two portions for its convenient use; it could be removed at any time without causing any damages to the building. The partition wall did not make any structural changes of substantial character either in the form or structure of the accommodation. Similar observations were made by their Lordships regarding the tin shed put up by the tenant. Their Lordships specifically rejected the view of the Full Bench of Allahabad High Court in Sita Ram Sharan v. Johri Mal, 1972 ALL 617, to the effect that construction if permanent or temporary in nature, does not effect the question as to whether the construction materially altered the accommodation or not. Expressing its disapproval to the view of the High Court, their Lordships observed:-
"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 of structure of the building as it can easily be removed without causing any damage to the building."
14. In Brijendra Nath Bhargava and Anr. v. Harsh Wardhan and Ors., 1988(1) WLN 143 (S.C.), while allowing a tenant's appeal their Lordships of the Supreme Court reversed the judgment of the High Court of Rajasthan, in which the High Court had upheld the judgment and decree passed by the Courts below and held that the construction of balcony or dochatti, which is a wooden construction does amount to material alteration which gives a cause of action to the landlord for filing a suit for eviction. Their Lordships specifically held that question as to whether construction amounts to material alteration or not is undoubtedly a question of law.
15. In Ramji Virji and Ors. v. Kadarbhai Asufali, A.I.R. 1973 Gujarat 110, a learned Single Judge of Gujarat High Court held as under :-
"If from the material used by a tenant in making of the structure from the way in which it is annexed to the main structure it is proved that the structure is easily removable then it can never be said that it is a lasting structure so as to offend the provisions of Section 13(1)(b) of the Saurashtra Rent Control Act, 1951."
16. In Om Pal v. Anand Swarup, (1988-2)94 PLR 699 (S.C.) the Supreme Court considered the revisions of Section 13(2) (iii) of 1949 Act and held that the act of tenant in putting up a parchhati in the shop for storing clothes before and after dry cleaning does not amount to material impairment within the ambit of Section 13(2)(iii) of the Act. The Supreme Court held as under :-
"Every Act of the waste by the tenant will not entitle the landlord to obtain an order of eviction under the provisions of Section 7 (Madras Buildings Lease and Rent Control Act), 1946. It cannot be laid down as a rule of law that a demolition of a wall in a building must necessarily be deemed to be an act of waste which is likely to impair materially the value or the utility of the building." Govingdaswmy Naidu v. Pushpalammal, A.I.R. 1952 Mad. 181.
"A landlord, in order to be entitled to the grant of permission to terminate the tenancy is required not only to prove an act of waste on the part of the tenant but also to prove that the said act is likely to impair materially the value or the utility of the house." Smt. Savitri Devi v. V.S. Bajpai, A.I.R. 1956 Nag. 60 and Charan Singh v. Smt. Ananti and Ors., (1966) 68 P.L.R. 780.
"Drilling of a hole to let out smoke by the tenant who had taken the building for hoteliering business and removal of a portion of parapet wall for temporarily accommodating the hotel employees housed in the adjacent building cannot be said to be acts which would impair the utility of the building or its value." G. Natarajan v. P. Thandavarayan, 1968 RCJ 733.
"Mere construction of a false roof which is only wooden or the setting of a wooden stair or making of a few holes in the roof for letting out the smoke from the hotel, cannot be held to be such material alterations which may result in changing the character or nature of the premises." Shri Anup Chand and Ors. v. Shri Trilok Singh, (1977)79 P.L.R. (S.N.) 7.
"A wooden parchhati constructed by a tenant (tailor master) within the demised shop for the purpose of providing more accommodation to his employees and the opening up of a ventilator for that purpose and the putting up of a wooden stair-case to reach the parchatti would not constitute a material alteration attracting the operation of Section 13(2) (iii) of the Act, "Gobind Ram v. Smt. Kaushalaya Rani and Ors., (1988) 1 RCJ 295.
The Supreme Court also referred to its own judgment in Om Parkash v. Amar Singh (supra) and held that though in the said case the word "materially alter" had been interpreted by the Supreme Court, the principles laid down in that case would be fully applicable for the purpose of interpreting Section 13(2) (iii) of the Act.
17. In Shri Gurbachan Singh and Anr. v. Shivalik Rubber Industries and Ors., (1996-2)113 P.L.R. 694 (S.C.), their Lordships considered the scope of Section 13(2)(iii) of 1949 Act and observed :-
"A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meaning in different context and situations. Here in the context the term "impair materially" has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word "value" means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else."
18. In that case, their Lordships found that the construction made by the tenant by way of replacing the existing roof, removal of partition wall of the existing shops, doors of five shops and removal of door of shop No. 2 and merging of the existing shops into verandah by demolishing 17 feet long and 5'2" high boundary wall and fixing of wooden door and steel door on the demolished boundary wall as well as construction of triangular shaped kothari amounted to material impairment in the value and utility of the property of the landlord.
19. In this case, the structure raised by the respondent is only in the form of nine pillars and a 'pardi' wall of six feet height and four inches thickness and roof consisting of rafters and purlins cannot be regarded as having the effect of material impairment in the value or utility of the tenanted premises.
20. In view of the above findings and conclusion, the revision petition is held to be without substance and the same is dismissed. Parties are left to bear their own costs.