http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: VIPIN KUMAR

       Vs.

RESPONDENT: ROSHAN LAL ANAND AND ORS.

DATE OF JUDGMENT24/03/1993

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. SAHAI, R.M. (J)

CITATION:  1993 SCR  (2) 640        1993 SCC  (2) 614  JT 1993 (3)   171        1993 SCALE  (2)456

ACT: East Punjab Urban Rent Restriction Act 1949: Sections  13(2) & 13(3). Tenant-Impairing  the value or utility of  building-Eviction on  the ground of-Inferential facts as to impairment  should be   deduced  from  proved  facts-Concurrent   findings   of impairment-Interference by Supreme Court held not justified. Constitution  of India 1950.  Article  136-Appeal-Concurrent findings of fact Power of Supreme Court to interfere with.

HEADNOTE: Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 provides that if a tenant has committed such  acts as  are likely to impair materially the value of utility  of the building or rental land the Rent Controller may make  an order evicting the tenant.  A decree of eviction was  passed against  the  appellant-tenant under  this  provision.   The finding  recorded  by the Rent Controller was  that  he  had constructed  a wall in the varandah of the demised  premises and  put up a door without permission of the landlord  as  a result  of which the flow of light and air had been  stopped and consequently the value of the demised shop had been  im- paired and utility of the building was impaired.  The decree of Rent Controller was confirmed by the Appellate  Authority as well as by the High Court. In  appeal to this Court it was contended on behalf  of  the appellant  that  Section 13(2) gave discretion to  the  Rent Controller  to  order eviction while in  the  cases  covered under Section 13(3) it was made mandatory to direct eviction of the tenant.  Therefore, the Rent Controller had to  inde- pendently  consider  and exercise discretion vested  in  him keeping  in view the proved facts to decree  ejectment.   It was  for the landlord under the circumstances to prove  such facts  which warranted the Controller to order  eviction  in his favour and since he had not proved such facts, the Court had   committed  illegality  in  granting  the   decree   of ejectment. 641 Dismissing the appeal, this Court, HELD:1.  If the tenant had committed such acts  as  are likely  to  impair materially the value or  utility  of  the building, he is liable to ejectment.  The impairment of  the value  or utility of the building is from the point  of  the landlord and not of the tenant. [643 A-C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

2.By constructing the wall, whether the value or  utility of   the  building  has  materially  been  impaired  is   an inferential  fact to be deduced from proved facts.   In  the instant  case, the proved facts are that the  appellant  had constructed  the wall and put up a door therein without  the consent of the landlord.  Consequently, the flow of the  air and light has been stopped.  He removed the fixtures.   From these facts it was inferred that the value or utility of the building  has been materially affected.  Therefore, it is  a finding  of  fact  of which the Court  cannot  evaluate  the evidence and upset that finding. [643 D-E, 642 E] 3.Undoubtedly   the  statute,  on  proof  of  facts,   gives discretion to the Court, by Section 13(2) and made mandatory in cases covered by Section 13(3), to order eviction.  In  a given set of facts the Rent Controller, despite finding that the tenant committed such acts which may impair the value or utility  of the building yet may refuse to grant the  relief of  eviction.  It is for the tenant to plead and prove  that the circumstances are such. as may not warrant eviction  and then  the  burden shifts on to the landlord to  rebut  these facts  or  circumstances.  Then the Rent  Controller  is  to weigh  pros and cons and exercise the discretion.   No  such attempt was made by the appellant.  So no fault can be  laid at the Rent Controller’s failure to exercise the discretion. [643 G-H, 644 A-B] Om Parkash v. Amar Singh & Anr., A.I.R. 1987 S.C. 617,  held inapplicable.

JUDGMENT:

CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  3271  of 1984. From  the Judgment and Order dated 18.7.84 of the  Punjab  & Haryana High Court in C.R.No.1125 of 1984. Prem Malhotra and d S.K. Gautam for the Appellant. M.L. Verma and        Mrs. S.K. Bagga for the Respondents. 642 The following Order of the Court was delivered: This appeal by Special Leave arises against the order of the Punjab and Haryana High Court in Civil Revision No.11-25  of 1984  dated July 18, 1984 confirming the decree of  eviction passed by the Rent Controller and confirmed by the Appellate Authority under the provisions of the East Punjab Urban Rent Restriction  Act, 1949 for short ’the Act’.  The ground  for eviction ultimately upheld by the Courts below was that  the appellant  had  constructed a wall in the  varandah  of  the demised premises and put up a door which materially impaired the  value or utility of the building.  Shri Prem  Malhotra, learned  counsel  for  the  appellant  contended  that   the appellant  had not constructed the  offending  construction. Even  if it is so there is no proof adduced by the  landlord that  by  such a construction the value or  utility  of  the building  had  materially impaired.  As such the  decree  of eviction  is clearly illegal.  In support thereof he  placed reliance on a judgment of this court reported in Om  Prakash v. Amar Singh & Anr., A.I.R. 1987 SC 617. The  question, therefore, is whether the finding  of  Courts below concurrently found that the appellant had  constructed a  wall in the varandah which materially effected the  value or  utility  of the shop is vitiated by law.   The  building consists  of two shops and the appellant was  inducted  into one such shop.  He constructed the-wall in the varandah  and put  up the door.  Therefore, it is a finding of fact  which we cannot evaluate the evidence and upset that finding.   It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

was  also  found that the wall was constructed  without  the permission  of the landlord.  Due to construction the  value or  utility of the building have been  materially  affected. Section 13(2)(iii) provides thus:-               "A  tenant  in  possession of  a  building  of               rented land shall not be evicted therefrom  in               an  execution  of a decree  passed  before  or               after   the  commencement  of  this   Act   or               otherwise  and  whether before  or  after  the               termination   of   the  tenancy,   except   in               accordance with the provisions of this Section               (or)  in  pursuance  of an  order  made  under               Section   13   of  the   Punjab   Urban   Rent               Restriction   Act,   1947   as    subsequently               amended)". Clause 3 of sub-section (2) of Section 13 provides that  "if the  tenant has committed such acts as are likely to  impair materially the value or utility 643 of  the  building or rented land’, the Rent  Controller  may make  an order directing the tenant to put the  landlord  in possession   of  the  building  or  rented  land.   If   the Controller  is  not  so satisfied, he shall  make  an  order rejecting the application.  It is, therefore, clear that  if the  tenant had committed such acts as are likely to  impair materially  the  value  or utility of the  building,  he  is liable to ejectment.  The finding recorded by the Controller is  that  on  account of the construction of  the  wall  and putting  up  a  door  the flow of light  and  air  had  been stopped.   He  removed  the futures.  So the  value  of  the demised  shop has been impaired and utility of the  building also is impaired.  The impairment of the value or utility of the  building is from the point of the landlord and  not  of the  tenant.  The first limb of Clause 3 of sub-section  (2) of  Section  13 is impairment of the building  due  to  acts committed  by  the  tenant and the second  limb  is  of  the utility  or  value  of  the  building  has  been  materially impaired.   The  acts  of the tenant must be  such  that  by erecting  the  wall  had materially impaired  the  value  or utility  of  the demised premises.  It is contended  by  Mr. Prem Malhotra that the landlord should prove as to how it is materially effected and that there is no evidence adduced by the  landlord.   We  find no force in  the  contention.   By constructing  the wall, whether the value or utility of  the building has materially been impaired is an inferential fact to be deduced from proved facts.  The proved facts are  that the  appellant  without  the consent  of  the  landlord  had constructed  the wall and put up a door therein as found  of the  Rent  Controller, the flow of air and  light  has  been stopped.  He removed the fixtures.  From these facts it  was inferred that the value or utility of the building has  been materially effected.  It is then contended that  sub-section (2) of Section 13 gives discretion to the Rent Controller to order eviction while the cases covered under Sub-section (3) of Section 13 it is made mandatory to direct eviction of the tenant.  Therefore, the Rent Controller has to independently consider  and exercise discretion vested in him  keeping  in view  the proved facts to decree ejectment.  It is  for  the landlord  under the circumstances to prove such facts  which warrant the Controller to order eviction in his favour.  The landlord   had  not  proved  such  faces  in   his   favour. Therefore,  the Court had committed illegality  in  granting the decree of ejectment We find no force in the  contention. Undoubtedly the statute, on proof of facts, gives discretion to  the  court,  by Sec. 13(2) and made  mandatory  in  case

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

covered by Sec. 13(3), to order eviction.  In a given set of facts  the Rent Controller, despite finding that the  tenant committed such acts which may impair the value or 644 utility  of the building yet may refuse grant the relief  of eviction.  It is for the tenant to plead and prove that  the circumstances are such as may not warrant eviction and  then the burden shifts on to the landlord to rebut those facts or circumstances.   Then the Rent Controller is to  weigh  pros and  cons and exercise the discretion.  No such attempt  was made by the appellant.  So no fault can be laid at the  Rent Controller’s  failure  to exercise the  discretion.   In  Om Prakash’s case the words "materially altered" under  section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952, came up for consideration.  This court held  that the  nature  and character of change or  alteration  of  the building  must be of an essential and important nature.   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.   In considering that language it was held that putting up a door to  the  varandah is not a material alteration.   The  ratio thus renders little assistance to the facts of the case. In  view  of  the facts and circumstanced of  the  case  the appellant  may remain in possession for one year  and  shall vacate  the premises on or before April 1, 1994  subject  to the condition that the appellant should pay Rs.200 per month from  April,  1993 till date of eviction.   He  should  file undertaking in the Registry of this Court within a period of six weeks with usual conditions.  The appeal is  accordingly dismissed but in the circumstances without costs.  T.N.A. Appeal dismissed. 645