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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