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PETITIONER: BABU MANMOHAN DAS SHAH & ORS.

       Vs.

RESPONDENT: BISHUN DAS

DATE OF JUDGMENT: 12/10/1966

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) BACHAWAT, R.S.

CITATION:  1967 AIR  643            1967 SCR  (1) 836  CITATOR INFO :  RF         1980 SC2181  (143)  R          1984 SC 684  (46)  E&R        1987 SC 617  (5,9)  D          1988 SC 293  (7,12)  RF         1990 SC 678  (5,6)

ACT: U.P. (Temporary) Control of Rent and Eviction Act 3 of  1947 s.  3(1) (c)-Whether landlord only entitled to  eviction  on proof  of  material  alterations--Or   whether  proof   also necessary   of   diminished   value   of   property-Material alterations what are.

HEADNOTE: The  appellant who was the owner of two shops rented to  the respondent,  filed  a suit for the latter’s  ejection  under Section  3 (1) (c) of the U.P. (Temporary) Control  of  Rent and  Eviction  Act III of 1947 which provides that  no  suit under  the  Act can be filed without the permission  of  the District Magistrate, except on the ground, inter alia,  that the  tenant  has,  without the permission  of  the  landlord permitted or made such constructions as " materially altered the accommodation or is likely substantially to diminish its value".   The  appellant  claimed that  the  respondent  had carried  out material alterations consisting of lowering  of the floor level of the shop by about 1-1/2 ft. by excavating earth   and   putting   up  a   new   floor,   of   lowering correspondingly  the front door which entailed  cutting  and removal  of  the  plinthband on which the  door  rested,  of lowering likewise the level of the staircase in the shop and putting  up  new  steps,  and lowering  the  height  of  the Chabutra  outside  the shop so as to correspond  it  to  the level of the new ground floor of the shop. The trial Judge as well as the First Additional Civil Judge, in  appeal,  concurrently  found  that  the  respondent  had carried out material alterations within the -meaning of s. 3 (1) (c); the appellant was therefore entitled to file a suit without obtaining the permission -of the District Magistrate and to a decree of eviction.  In the appeal before the  High Court it was contended on behalf of the respondent that on a proper  interpretation  of Clause (c) of Section  3(1),  the

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appellant  had also to establish-that the  alterations,  be- sides being material alterations, were likely  substantially to diminish the value of the accommodation.  In other words, the  word "or" in Clause (c) should be read as  "and".   The High  Court accepted this contention and held that as  there was  no finding by the lower court that any harm  or  damage had  been  caused  to the building  the  appellant  was  not entitled to relief under s. 3 (1) (c). HELD : Allowing the appeal : Even if the alterations did not cause  any damage to the premises or did  not  substantially diminish   their  value,  the  alterations   were   material alterations  and  on that basis alone  the  appellants  were entitled to evict the respondent. [841 H] The  language  of  the  clause  makes  it  clear  that   the legislature wanted to lay down two alternatives which  would furnish a ground to the landlord to sue without the District Magistrate’s permission, that is, where the tenant has  made such   construction   which  would  materially   alter   the accommodation  or  which would be  likely  to  substantially diminish its value. [839 F-G] Hyman  and  Anr.  v. Rose [1912]  A.C.  623;  distinguished. Wates V. Rowland and Another [1952] 2 Q.B. 12; Blackmore  v. Dimmer [1903] 1 Ch. 158; referred to. 837 Although  no  general  definition  can  be  given  of   what "material alterations" mean, as such a question would depend on the facts and circumstances of each case, the alterations in  the present case amounted to ’material  alterations"  as the construction carried out by the respondent bad affect of altering  the form and structure of the accommodation.  [840 D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 643 of 1964. Appeal  by special leave from the judgment and decree  dated January 17, 1961 of the Allahabad High Court in S. A. No. 90 of 1959. C.B.  Agarwala,  Champat  Rai,  E.C.  Agarwala  and  P.   C. Agarwala, for the appellants. S. T. Desai and J. P. Goyal, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave is directed  against the  judgment  and  decree  passed  by  the  High  Court  at Allahabad in Second Appeal No. 930 of 1959. Two  questions  arise  in this appeal: (1)  with  regard  to interpretation of s. 3(1)(c) of the U.P. (Temporary) Control of  Rent and Eviction Act, III of 1947 and (2)  whether  the alterations  carried  out  by  the  respondent-tenant   were alterations  which  materially  altered  the   accommodation within the meaning of the said clause (c). The  appellants  are  the owners of a  building  situate  on Dashaswamedh  Road  in Varanasi, the ground floor  of  which consisted of two shops separated by a partition wall and  an arch  in between.  The respondent was the tenant of  one  of these   two  shops.   The  other  shop,  adjacent   to   the respondent’s shop, had been let out to one Benarsidas Lohar. The said Banarsidas vacated the shop and thereupon with  the necessary  sanction of the Rent Control Officer it  was  let out to the respondents as from July 24, 1,954.  On July  21, 1954  the respondent executed a rent note by which he  inter alia  agreed  that he would not have any right to  make  any alterations,  additions,  or ’Tor phor of any sort’  in  the said shop.  The respondent took possession of the said  shop

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thus  becoming  a tenant’ of both the shops.  On  August  8, 1954,  the  appellants  at the  request  of  the  respondent removed  the said partition wall and replaced the said  arch by  iron girders enabling the respondent to have  a  compact and  commodious  unit.  There is no dispute that  about  the middle of October 1954 the respondent started making altera- tions   in  the  said  shop  without  the  consent  of   the appellants.   Thereupon the appellants first by  a  telegram and  then by letters called upon the respondent  to  refrain from  making the said alterations as such  alterations  were contrary to the express covenant contained in the said  rent note.   Ultimately by a notice dated February 22, 1955  they terminated  the said tenancy and called upon the  respondent to hand over quiet and vacant possession.  On the- 838 respondent failing to do so the appellants filed a suit  for ejectment and other incidental reliefs, claiming that as the said   alterations  were  material  alterations  they   were entitled  to  file the suit for eviction  without  obtaining therefor the permission of the District Magistrate as  required by section 3(1) of the said Act. The  relevant part of section 3(1) reads as under                "   Subject   to  any  order   passed   under               sub-section (3) 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  or               more of the following grounds               (c)   That   the  tenant  has,   without   the               permission in writing     of   the   landlord,               made or permitted to be made any such    constructio n               as,   in  the  opinion  of  the   court,   has               materially  altered  the accommodation  or  is               likely substantially to diminish its value." Both the trial Judge and in appeal against his judgment  and decree   the   First  Additional  Civil   Judge,   Varanasi, concurrently  found  that  the respondent  had  carried  out alterations, that he did so without obtaining the consent of the  appellants  and  that  the  alterations  consisted   of lowering of the floor level of the shop by about 11/2 ft. by excavating  earth therefrom and putting up a new  floor,  of lowering  correspondingly  the  front  door  which  entailed cutting  and  removal of the plinthband on  which  the  door rested,  of lowering likewise the level of the staircase  in the  shop  .and putting up new steps thereto and  lastly  of lowering  the height of the Chabutra outside the shop so  as to correspond if to the level of the new ground floor of the shop.   Both  the courts found that these  alterations  were material alterations of the accommodation within the meaning of s. 3(1)(c) and held that the appellants were entitled  to file  the  suit  without obtaining  the  permission  of  the District Magistrate and to a decree of eviction. Aggrieved  by the judgment and decree of the 1st  Additional Civil  Judge,  the respondent filed a Second Appeal  in  the High Court.  The High Court accepted the concurrent  finding of the two courts below that the respondent had carried  out the  said  alterations without the appellants’  consent  and agreed  that  the  said  alterations  amounted  to  material alterations.   But it was argued before the High Court  that clause  (c) of section 3(1) would not apply as on  a  proper interpretation  of  that clause the appellants had  also  to establish  that  the  alterations,  besides  being  material alterations, were likely substantially to diminish the value of the accommodation.  The High Court held that there was no

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finding  by  either  of the courts below that  any  harm  or damage 839 had been caused to the building and on that footing reversed the  judgment and decree passed by the lower court,  allowed the respondent’s appeal and dismissed the appellants’ suit. Mr.  Agarwal, for the appellants, contended before  us  that the  interpretation  placed  by the High  Court  on  section 3(1)(c)  was erroneous inasmuch as the High Court failed  to appreciate that clause (c) was disjunctive and that it would apply either where the alterations are material  alterations or,  even  if,  they are not, they are  likely  to  diminish substantially  the  value  of the  accommodation.   He  also contended  that  the alterations were  material  alterations within  the  meaning of clause (c) and that  therefore,  the appellants  were  entitled to a decree  for  eviction,  they having  been  carried  out without  the  permission  of  the appellants.   Mr. Desai, on the other hand, argued that  the word  "or"  in  clause  (c) should  be  read  as  "and"  and therefore  unless the appellants also established  that  the alterations  had diminished or were likely substantially  to diminish the value of the accommodation clause (c) would not operate  and the suit would not be maintainable without  the permission of the District Magistrate.  He also argued  that the  said  alterations  in fact enhanced the  value  of  the accommodation  as  held  by  the High  Court  and  were  not material alterations within the meaning of the said clause. In  our  view clause (c) of section 3 (1)  cannot  bear  the construction suggested by Mr. Desai.  The clause is  couched in simple and unambiguous language and in its plain  meaning provides that it would be a good ground enabling a  landlord to  sue for eviction without the permission of the  District Magistrate  if  the tenant has made or has permitted  to  be made   without  the  landlord’s  consent  in  writing   such construction which materially alters the accommodation or is likely substantially to diminish its value.  The language of the clause makes it clear that the legislature wanted to lay down  two alternatives which would furnish a ground  to  the landlord   to   sue  without   the   District   Magistrate’s permission,  that  is,  where  the  tenant  has  made   such construction which would materially alter the  accommodation or which would be likely to substantial diminish its  value. The  ordinary rule of construction is that a provision of  a statute  must be construed in accordance with  the  language used  therein unless there are compelling reasons, such  as, where  a literal construction would reduce the provision  to absurdity   or  prevent  the  manifest  intention   of   the legislature from being carried out.  There is no reason  why the  word  "or" should be construed otherwise  than  in  its ordinary  meaning.   If the construction  suggested  by  Mr. Desai  were  to  be accepted and the word "or"  were  to  be construed   as  meaning  "and"  it  would  mean   that   the construction  should not only be such as  materially  alters the   accommodation   but  is  also  such  that   it   would substantially 840 diminish its value.  Such an interpretation is not warranted for the simple reason that there may conceivably be material alterations which do not, however, diminish the value of the accommodation  and  on  the other  hand  there  may  equally conceivably   be   alterations  which   are   not   material alterations  but nevertheless would  substantially  diminish the  value  of  the  premises.  It  seems  to  us  that  the legislature  intended to provide for both the  contingencies and where one or the other exists it was intended to furnish

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a ground to the landlord to sue his tenant without having to obtain  the previous permission of the District  Magistrate. The  construction of clause (c) placed by the High Court  is therefore not correct. As  regards  the alterations, there is no dispute  that  the respondent  carried them out without the permission  of  the appellants.   The  question then is whether they  were  such that  they materially altered the accommodation as  provided by  clause (c).  Without attempting to lay down any  general definition  as to what material alterations mean, as such  a question would depend on the facts and circumstances of each case, the alterations in the present case must mean material alterations   as  the  construction  carried  out   by   the respondent had the effect of altering the form and structure of    the   acconunodation.    The   expression    "material alterations"  in its ordinary meaning would  mean  important alterations, such as those which materially or substantially change  the front or the structure of the premises.  It  may be  that  such alterations in a given case might  not  cause damage  to the premises or its value or might not amount  to an  unreasonable use of the leased premises or constitute  a change in the purpose of the lease.  The High Court  however seems  to  have relied on Hymen and Anr. v. Rose  (1)  where relief against forfeiture of lease was granted, inter  alia, on the ground that the alterations carried out by the lessee had not done any harm to any one and the reversioner was  in no  way  injured.   But  the  question  there  was  one   of interpretation  of  a covenant contained in  the  lease  and whether  the  alterations  constituted  waste.   The  leased premises were intended originally and were used as a  chapel but  on  the  leasehold being sold the  assignees  made  the alterations  complained  of  as  they  desired  to  use  the premises as a cinema theatre.  On these facts and the  terms of  the lease, the House of Lords held that in view  of  the fact  that the lease did not prohibit the contemplated  user of the premises as a cinematography theatre, the alterations in  the  circumstances of that case did not  constitute  any breach  of  the  covenant and since the  purchasers  of  the leasehold  had  offered as a condition of  obtaining  relief against  forfeiture to deposit a sum of money to secure  the restoration  of the premises to their original condition  at the end of the lease relief ought to be granted on the terms so  offered.   This  decision  in  our  view  cannot  be  of assistance.   As  an illustration as to  what  a  structural altera- (1)  [1912] A.C. 623. 841 tion  means some assistance can be had from the decision  in Wates  v.  Rowland and Another (1) though it was a  case  of interpretation  of  s. 2(1)(a) of the Increase of  Rent  and Mortgage  Interest (Restrictions) Act, 1920.  The  Court  of Appeal there found that whereas substitution of titled floor for a wooden floor which had become rotten owing to rise  in the  water level in the land fell within the description  of "repairs"  within the meaning of s. 2(1)(a), the  laying  of the additional concrete bed provided the house with a better substratum  than it had before and was an improvement  or  a structural alteration of the house within the meaning of the said  section.   Similarly in Bickomore  v.  Dimmer(2)  Lord Cozens-Hardy L. J. construing a covenant against alterations in a lease, made a distinction between alterations  intended for  the  proper  user  of  leased  premises  and   material alterations  observing that some limitation must be  put  on the  word "alteration" in such a covenant and that it  could not be applied to a change in the wall paper of a room or to

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the  putting  up  of  a gas-bracket, or  the  fixing  of  an electric bell, though in fixing it some holes might have  to be made in the wall and that the covenant should be  limited to  something  which  alters the form or  structure  of  the building. Lowering the level of the ground floor by about 1-1/2 ft. by excavating  the earth therefrom and putting up a new  floor, the  consequent  lowering of the front door and  putting  up instead  a larger door, lowering correspondingly the  height of  the Chabutra so as to bring it on the level of  the  new door-step,  the  lowering  of  the  base  of  the  staircase entailing the addition of new steps thereto and cutting  the plinthband  on  which the door originally rested  so  as  to bring the entrance to the level of the new floor are clearly structural   alterations   which  are  not   only   material alterations  but are such as to give a new face to the  form and   structure   of  the  premises.   In  this   view   the construction carried out by the respondent must fall  within the  mischief of clause (c) and entitles the  appellants  to maintain  their suit for eviction without the permission  of the District Magistrate and to a decree for eviction.   Both the contentions urged by Mr. Desai must therefore fail. In  our  view, the High Court was in error in  allowing  the appeal  of the respondent only on the ground that  the  said alterations  did not appear to have caused any harm  to  the premises or that there was no such finding by either of  the two  courts below.  The basis of the High  Court’s  judgment was  on the interpretation which it sought to put on  clause (c)an   interpretation  commended  by  Mr.  Desai  for   our acceptance.  As already stated, even if the alterations  did not   cause   any  damage  to  the  premises  or   did   not substantially  diminish  their value  the  alterations  were material alterations and (1) [1952] 2 Q.B. 12. 7Sup.C.1166-9 (2) [1903] 1 Ch. 158. 842 on  that basis alone the appellants were entitled  to  evict the respondent) We  therefore allow the appeal, set aside the  judgment  and decree passed by the High Court and restore the judgment and decree passed by the First Additional Civil Judge, Varanasi, whereby  he  directed the eviction of the  respondent.   The respondent   will   pay  to  the  appellants   their   costs throughout. R.K.P.S. Appeal allowed. 843