Full Judgment Text
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PETITIONER:
OM PRAKASH
Vs.
RESPONDENT:
AMAR SINGH & ANR.
DATE OF JUDGMENT09/01/1987
BENCH:
SINGH, K.N. (J)
BENCH:
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.
HEADNOTE:
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 altera-
tions in the tenanted premises without their consent causing
substantial damages to it. The disputed construction includ-
ed 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 parti-
tion wail in the hail did not constitute mateial alteration
and that the tin shed marked by letters ABHG had been con-
structed 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, consti-
tuted 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
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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 construc-
tion; (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 substan-
tial 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 accommo-
dation. 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 Jour-
nal 477, Sita Ram Sharan and Anr. v. Johri Mal & Anr.,
[1972] Allahabad Law Journal 361 & Baldev Das v. Ram Khila-
wan, [1979] Allahabad Law Reports 44, referred to.
(8) The findings regarding constructions would be find-
ing 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 perma-
nent 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
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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 convert-
ing 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 parti-
tion wail did not make any structural change of substantial
character either in the form or structure of the accommoda-
tion. [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 con-
structed 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 observa-
tion 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]
JUDGMENT:
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 appel-
lant’s eviction on a number of grounds including the
972
ground that the appellant had made constructions materially
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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 subse-
quently 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 construc-
tions constituted material alteration justifying appellant’s
eviction under sec. 14(c) of the U.P. Cantonment Rent Con-
trol Act 10 of 1952. On a second appeal made by the respond-
ents 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 parti-
tion 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 with-
out permission of the respondent, the tenant was liable for
eviction.
There is no dispute that the demised premises is sub-
ject 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 land-
lord, 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 accommo-
dation or which is likely to diminish its value substantial-
ly, 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
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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 with-
out 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 defi-
nition 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 ’impor-
tant’ 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 refer-
974
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 substan-
tial 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 altera-
tions as the construction carried out by the respondent had
the effect of altering the front and structure of the prem-
ises."
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 accom-
modation.’ 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 accommo-
dation. 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
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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 accommoda-
tion 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 sub-
stantial 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 4-
77 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 land-
lord and if so, whether those constructions are of such
substantial nature which make material alterations in the
accommodation. The findings of the court regarding construc-
tions 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 accommoda-
tion. 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 actual-
ly 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
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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 with-
out obtaining his consent. All the three courts have record-
ed 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 find-
ings 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 Commis-
sioner’s report make it evident that the tin shed was con-
structed 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 sub-
stantial 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 construct-
ed pucca wails on three sides of the tin shed; instead the
Commissioner’s report is contrary to it. In the circum-
977
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 super-
structure 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 construc-
tion 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
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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 con-
struction may fall within the expression ’material altera-
tions’. In our opinion the observations made in Babu Manmo-
han Das Shah’s case (supra) do not justify inference that
the nature of the construction whether permanent or tempo-
rary 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 altera-
tions 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 accommo-
dation, would fail within the mischief of material altera-
978
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 re-
store 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 al-
lowed.
979