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PETITIONER: IDUL HASAN & ORS.

       Vs.

RESPONDENT: RAJINDRA KUMAR JAIN

DATE OF JUDGMENT01/09/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RAY, B.C. (J)

CITATION:  1990 AIR  678            1989 SCR  Supl. (1)   8  1989 SCC  (4) 550        JT 1989 (3)   624  1989 SCALE  (2)583

ACT:      U.P.  (Temporary)  Control of Rent  and  Eviction  Act, 1947--Section 3(1) (c)--Eviction challenged.      U.P.  Urban Buildings (Regulation of Letting  Rent  and Eviction) Act, 1972--Effect of repeal--Vis-a-vis the  rights of the parties.

HEADNOTE:      The appellants are the tenants of premises situated  in the  District  of Bijnor. The suit for  their  eviction  was filed  in  1967 on the ground that they (tenants)  had  made material alteration in the property and as such were  liable for ejectment under section 3(1)(c) of the U.P.  (Temporary) Control  of Rent ’and Eviction Act 1947. The appellants  did not  dispute the constructions in the demised premises,  but asserted  that the constructions in question had  been  made with  a view to save the building from rain-water  and  fire and the constructions were not such which would render  them liable  for eviction as contemplated under section 3 of  the Act of 1947. The appellants also pleaded that the  construc- tions were effected with the permission of the landlord. The learned  Munsif, who tried the suit held that the  construc- tions  had been made by the tenants appellants  without  the consent/knowledge of the landlord and that the constructions amounted  to "material alterations". He accordingly  decreed the landlord’s suit. The First Appellate Court, which is the Civil  Judge  affirmed the decree of eviction by  his  order dated 16th Feb. 1984.     Thereupon  the appellants went in second  appeal  before the High Court. The High Court too dismissed the appeal.  It found  that the constructions have been made by  demolishing the old structures, by conversion of six Kuchha Kothas  into pucca ones and an entirely new constructions had come up  in their  place.  It further found that the  accommodation  had been  increased by enclosing the open space which must  have been  possible only by raising walls etc. In any  case,  ac- cording  to  the  finding of the High  Court,  the  property looked  different  from  what originally it  was.  Thus  the alterations made by the appellants were material alterations and as such came within the mischief of section      3(1)(c) of the Act 1947.

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9 Hence this appeal by the appellants-tenants. Dismissing the appeal, this Court,     HELD:  Under Section 3(1)(c) of the Act it  is  apparent that the grounds for eviction could be either such construc- tion which materially altered the accommodation or  alterna- tively is likely to substantially diminish its value.  These are  the disjunctive requirements. In the facts and  circum- stances  of  the instant appeal, all the Courts  have  found that  constructions  carried  out by the  tenants  have  the effect of altering the form and structure of the  accommoda- tion. [12B-C; F]     The  suit which was filed on the ground that there  were material  alterations simpliciter under section  3(1)(c)  of the Act of 1947 would continue to be valid after the  coming into operation of Act of 1972 in view of clause (s) of  Sub- section  (2) of section 43 thereof. This is the  consequence of  the language used. Neither the Act of 1947, nor the  Act of  1972  gives any right to the  landlord.  The  landlord’s right to evict tenant is guided by the Transfer of  Property Act.  The Act of 1947 gives protection to the tenants  under certain conditions and at the time when the suit was  filed, the  rights  of the parties had been  crystallised.  On  the facts  as  alleged and proved and found by  the  Court,  the tenants were liable to be evicted. The question of temporary rights in favour of the landlord does not arise. [14H;  15A- C]     The rights of the parties must be determined in  accord- ance  with the provisions of law. What justice of  the  case entails  and  what is just, due and the law says, is  to  be given to each one whether being a landlord or a tenant. "The Judge  is not to innovate at pleasure. He is not  a  knight- errant roaming at will in pursuit of his own ideal of beauty or of goodness" (Cardozo-The Nature of the Judicial  process page  141).  If that is the position on the  date  when  the rights crystallised and in view of clause (s) of section  43 (2)  of  the Act of 1972, those rights will continue  as  if they  were under the old Act. The right had accrued  to  the landlord to get the eviction even if the alteration had  not in any way affected or diminished the value of the premises. That right cannot be deprived. [15D-F]     Considering  the fact that the tenants are poor  and  in possession  since long, the Court directed that the  tenants will  not be evicted until 30th September 1990 provided  the tenants  give  ’the usual undertaking containing  the  usual terms  stating,  inter alia, that they  are  in  possession, within four week of this date. The undertaking must be given by 10 each  of the appellants. In. default of filing of  undertak- ing, the decree will be executable forthwith. [15H; 16A]     The Court further observed that in view of the condition of  the tenants, if an application is made for allotment  of any other area by these parties to the appropriate  authori- ty,  and if the appellants are not in possession or  occupa- tion  of other property, such authority should consider  the feasibility  to  give  them fresh allotment  of  some  other property. [16B]     Babu  Manmohan Das Shah & Ors. v. Bishun Das,  [1967]  1 SCR  836  and  Qudrat Ullah v.  Municipal  Board,  Bareilly, [1974] 2 SCR 530, referred to.

JUDGMENT:

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   CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  408  of 1980.     From the Judgment and Order dated 21.12.79 of the  Alla- habad High Court in Second Appeal No. 1235 of 1974. Mrs. S. Swaran Mahajan and Arun Madan for the Appellants. S.K. Mehta for the Respondent. The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI,  J. This is a tenants’  appeal  by special leave from the judgment and order of the High  Court of  Allahabad. The question involved in this appeal.  as  is usual,  in all these cases, is what is just in  the  circum- stances and events that have happened.     The  premises  in question is in the  village  and  P.O. Dhampur  in  the District of Bijnor in the  State  of  Uttar Pradesh. The suit was filed in 1967. The suit for the  evic- tion of the appellants was filed on the ground that  tenants had  made  material alteration in the property and  as  such became  liable  for ejectment in view of s. 3(1)(c)  of  the Uttar Pradesh (Temporary) Control of Rent and Eviction  Act, 1947  (hereinafter  referred to as ’the Act of  1947’).  The said  section 3 in the said provision enjoins that  no  suit without  the permission of the District Magistrate shall  be filed  in any civil court against a tenant for his  eviction from any accommodation, except on one or more of the grounds enumerated  therein  and clause (c) of  sub-section  (1)  of section 3 was as follows: 11               "that  the tenant has, without the  permission               in writing of the landlord, 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;"     It appears that the constructions on the basis of  which eviction of the tenants was claimed were not in dispute  and were  not  disputed at any stage. These were  (i)  that  the tenants  have placed a khaprail in place of  khasposh;  (ii) Kuchha kothas had been converted into pucca ones which  were six  in number; (iii). an open place had been  enclosed  and included  in the accommodation in question. The  action  was contested.  It was asserted by the tenants that  these  con- structions had been made in order to save the buildings from rain-water  and fire and that these constructions  were  not such  as would make the tenants liable for ejectment  within the  meaning  of  s. 3 of the Act of 1947.  It  was  further contended  that these constructions had been made  with  the knowledge  and  consent of the landlord. The  learned  trial Judge, which in this case was the court of learned Munsif at Nagina, by its order dated 17th December, 1968 and the first Appellate  Court,  which is the Civil Judge,  by  its  order dated 16th February, 1984 have found that the  constructions had been made by the tenants without the consent and  knowl- edge of the landlord and that the constructions in  question amounted  to "material alterations". On these  grounds,  the landlord’s  suit was decreed and the appeal by  the  tenants was dismissed.     The tenants went in second appeal before the High Court. The  High Court found that these alterations had been  made, namely,  the conversion of six kuchha kothas into pucca  one and this was done after demolition of the old constructions. After the old construction had ceased to exist, entirely new constructions  had come up in their place.  This,  according to the High Court, came within the meaning of structural  alterations  in  the building.  The  High  Court further  found that the accommodation had been increased  by

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enclosing  the  nearby open space and that again  must  have been  done  by raising walls either connecting  the  various kothas or in some other way. In either case, the High  Court found,  the  shape  and the extent and  preparation  of  the accommodation had been increased and was thereafter  differ- ent  than  what it was before. In those  circumstances,  the High  Court  came  to the conclusion  that  the  alterations admittedly  made by the tenants were "material  alterations" and  as such came within the mischief of s. 3(1)(c)  of  the Act  of 1947. In the aforesaid view of the matter, the  High Court  dismissed the second appeal and granted  two  months’ time 12 to the tenants to vacate. The judgment and the order of  the High  Court  was passed on 21st December,  1979.  Leave  was granted by this Court under Article 136 of the  Constitution on  18th February, 1990. Since then, this appeal  is  before this Court.     As  mentioned  hereinbefore, the action  was  instituted under  the  aforesaid Act of 1947, which was  the  temporary Act. We have set out the relevant provisions of the Act.  It is  apparent  from the said provisions that the  ground  for eviction could be either such construction which  materially altered the accommodation or in the alternative is likely to substantially diminish its value. These are the  disjunctive requirements. This Court had occasion to construe s. 3(1)(c) of  the  Act  of 1947 in Babu Manmohan Das Shah  &  Ors.  v. Bishun  Das,  [1967] 1 SCR 836 and was confronted  with  the question  whether  the landlord was entitled  to  evict  the tenant if the alterations were material alterations only  or whether proof was also necessary of the diminished value  of the property as a result of such alteration. This Court  had also occasion to consider what amounted to ’material altera- tions’  under the said Act. This Court noted that  the  lan- guage  of the clause (c) of s. 3(1) of the Act of 1947  made it clear that the legislature wanted to lay down two  alter- natives  which would furnish 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 substan- tially diminish its value. Therefore, these are  disjunctive or  alterative  requirements. This Court further  held  that although no general definition can be given of what "materi- al alterations" mean, as such a question would depend on the facts  and  circumstances of each case, the  alterations  in that  case  amounted to "material alterations" as  the  con- struction carried out by the tenant had the effect of alter- ing  the  form and structure of the  accommodation.  In  the facts and circumstances of the instant appeal before us, all the courts have accordingly found that construction  carried out by the tenants have the effect of altering the form  and structure of the accommodation.     In view of the contentions urged by Mrs. Swaran Mahajan, it  has to be borne in mind that the trial court passed  its order  on 17th December, 1968 well before the time when  the Act  of 1972 being the U.P. Urban Buildings  (Regulation  of Letting, Rent and Eviction) Act, 1972 (13 of 1972)  (herein- after referred to as ’the Act of 1972’) came into force. The said Act came into force on 20th September, 1972. The rights of  the parties have crystallised after the  institution  of the  suit which was during the continuance of Act  of  1947, and before the Act 13 of  1972.  The appellants in this appeal could  not  dispute that  there were material alterations. It could not also  be

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disputed before us by Mrs. Mahajan counsel on behalf of  the tenants  that under the law as it stood and the law  as  ex- plained in Babu Manmohan Das Shah’s case (supra), it was not necessary at that time to further prove that the  alteration has or is likely to diminish the value of the property.  But what  Mrs. Mahajan has sought to canvass before us  is  that under s. 20(2)(c) of the Act of 1972, the ground is that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or struc- tural  alteration in the building as is likely  to  diminish its value or utility or to disfigure it. Mrs. Mahajan there- fore  contends  that now to make the tenants  liable  to  be evicted  it is necessary to allege and prove not  only  that construction  has  resulted in material  alteration  in  the building but also that such construction is likely to dimin- ish  either  the  value or the utility of  the  building  or disfigure  it.  In this case, according to counsel  for  the appellants,  that  being  in the  possession,  the  eviction cannot any longer be sustained. She drew our attention to s. 20(2)(c) of the Act of 1972. She relied on the  observations of this Court in Qudrat Ullah v. Municipal Board,  Barejify, [1974] 2 SCR 530. In that case, this Court had to deal  with the  Act  of 1947 as well as Act of 1972. Krishna  Iyer,  J. speaking for this Court observed that the general  principle regarding the consequence of repeal of a statute is that the enactment  which is repealed is to be treated, except as  to transactions  past and closed, as if it had  never  existed. The  operation of this principle is subject to  any  savings which may be made expressly or by implication by the repeal- ing  enactment. If the repealing enactment makes  a  special provision regarding pending or past transactions it is  this provision that will determine.Whether the liability  arising under  the repealed enactment survives or  is  extinguished. Section  6  of the Uttar Pradesh General Clauses  Act,  1904 applies generally, in the absence of a special saving provi- sion in the repealing statute. It was further observed  that where  a  repeal is followed by a fresh legislation  on  the subject, the Court has to look to the provisions of the  new Act  to  see whether they indicate  a  different  intention. Krishna  Iyer,  J. further observed in that case  that  Sec. 43(2)(h) of the Act of 1972 makes it clear that even if  the power  for recovery of possession be one under  the  earlier Rent  Control  Law, the later Act will apply  and  necessary amendments in the pleadings can be made. This indicates that it  is the later Act which must govern  pending  proceedings for recovery of possession or recovery or fixation of  rent. In  that case, the suit was not even one under the  Act  but proceeded  on  the footing that the contractor  was  only  a licencee  and  so none of the savings clauses  in  s.  43(2) applied. The provision relating to effect of 14 repeal under U.P. General Clauses Act was set out at p.  539 of  the report. S. 43(2) of the Act of 1972  is,  therefore, relevant.  Sub-section (1) of S. 43 of the Act of 1972  lays down  that Act of 1947 is hereby repealed.  Sub-section  (2) makes   provision  for  pending  proceedings  in   different clauses. Clause (h) of Sub-section (2) provides as follows:               "any court or authority before which any  suit               or  other proceeding relating to the  recovery               or  determination or fixation of rent  of,  or               eviction from, any building is pending immedi-               ately before the commencement of this Act may,               on  an  application being made  to  it  within               sixty days from such commencement, grant leave               to  any party to amend its pleading in  conse-

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             quence of the provisions of this Act;"     This  clause was the subject-matter of  construction  in the decision of this Court in Qudrat Ullah’s, case  (supra). Referring  to  the  said clause, Mr.  Justice  Krishna  Iyer observed at p. 540 of the report that it is clear that  even if  the statute for recovery of possession be one under  the earlier  Rent  Control  Law, the later Act  will  apply  and necessary  amendments  in the pleadings can  be  made.  This definitely indicates, according to that decision, that it is the  later  Act  that must govern  pending  proceedings  for recovery of possession or recovery or fixation of rent.  But these observations made therein would not help Mrs. Mahajan, as  contended  by Mr. Mehta that the rights of  the  parties have  crystallised before the coming into operation  of  the 1972  Act,  and vested rights of the landlord had  not  been divested  by clause (h) of s. 43(2) of the Act of  1972.  On the  other hand, s. 43(2)(s) saves the right that  have  ac- crued  in favour of the landlord. The said clause (s)  reads as follows:               "any suit for the eviction of a tenant  insti-               tuted  on any ground mentioned in  sub-section               (1) of s. 3 of the old Act, or any  proceeding               out of such suit (including any proceeding for               the execution of a decree passed on the  basis               of any agreement, compromise or satisfaction),               pending immediately before the commencement of               this  Act, may be continued and  concluded  in               accordance  with the old Act which shall,  for               that  purpose, be deemed to continue to be  in               force;"     Therefore,  the suit which was filed on the ground  that there was material alterations simplicitor under s.  3(1)(c) of  the  Act of 1947 would continue to be  valid  after  the coming into operation of Act of 15 1972 in view of clause (s) of sub-section (2) of section  43 thereof.  That is the consequence of the language used.  The observations  of this Court in Qudrat Ullah’s, case  (supra) do  not  in any way suggest to the  contrary.  Mrs.  Mahajan tried  to  urged that the Act of 1947 was a  temporary  Act. Therefore,  it could not create any right in favour  of  the landlord  after  the expiry of the time.  This  argument  is under  a misconception. Neither the Act of 1947 nor the  Act of  1972  gives any right to the  landlord.  The  landlord’s right to evict tenant is guided by the Transfer of  Property Act.  The Act of 1947 gives protection to the tenants  under certain conditions and at the time when the suit was  filed, the  rights  of the parties had been  crystallised.  On  the facts  as  alleged and proved and found by  the  Court,  the tenants were liable to be evicted. The question of temporary rights in favour of the landlord does not arise. Mrs.  Maha- jan  further  submitted that the new provisions of  the  Act should enlighten us to determine what is just in this  case. She  submitted that it will be unjust in the facts  and  the circumstances of the case to permit eviction of the  tenants on the ground of constructions which do not in any way alter or  diminish the value of the premises in question. She,  on the  other  hand pleaded that the  constructions  made  have improved the building. Therefore, instead of being liable to be  evicted, the tenants should be protected. These are,  of course,  submissions not sustainable in law. The  rights  of the parties must be determined in accordance with the provi- sions of law. What justice of the case entails, and what  is just,  due  and  the law says, is to be given  to  each  one whether  being a landlord or a tenant. "The Judge is not  to

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innovate  at pleasure. He is not a knigh-errant  roaming  at will   in  pursuit  of  his  own  ideal  of  beauty  or   of goodness."--Cardozo  (The  Nature of the  Judicial  Process, page  141).  If that is the position on the  date  when  the rights  crystallised and in view of sub-section (s) of  sec- tion 43(2) of the Act of 1972, those rights will continue as if they were under the old Act. The fight had accrued to the landlord to get the eviction even if the alteration had  not in any way affected or diminished the value of the premises. That right cannot be deprived. But justice also consists  in balancing  the  rights of the parties. The tenants  in  this case,  it.is  said, are poor. There was nothing  to  dispute this  submission.  It is further said that these  have  been there for a long time.     In  the  aforesaid view of the matter,  we  dismiss  the appeal  but we direct that the tenants will not  be  evicted until  30th  September, 1990 provided the tenants  give  the usual  undertaking containing the usual terms  and  stating, inter  alia, that they are in possession, within four  weeks of this date. The undertaking must be given by each of the 16 appellants.  In  default of filing undertaking,  the  decree will be executable forthwith.     We must further observe that in view of the condition of the  tenants if an application is made for allotment of  any other  area by these parties to the  appropriate  authority, and if the appellants are not in possession or occupation of other property, such authority should consider the feasibil- ity  of giving them fresh allotment of some other  property. The  appeal is, therefore, dismissed. In the facts  and  the circumstances  of  the case, the parties will bear  and  pay their own costs. Y.  Lal                                         Appeal  dis- missed. 17