M/S. BRITISH MOTOR CAR CO.versusMADAN LAL SAGGI (D) AND ANR.

                   MIS. BRITISH MOTOR CAR CO.                                    A
                                     v.
                 MADAN LAL SAGGI (D) AND ANR.

                          NOVEMBER 19, 2004

          [SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]
                                                                                 B

     East Punjab Urban Rent Restriction Act 1949 :

      S. J3(2)(iii)-Additions and alterations by "tenant materially impairing
value ofthe premises"-Tenant of/and and building-Constructing permanent          C
structure on the land without permission of landlord-Held, the three courts
below have correctly applied the true test and on facts found that the sheds
constructed by tenant amounted to an act materially impairing the value
and utility of the premisses-Order of eviction upheld.

     Om Prakash v. Amar Singh and Ors., [1987) 1 SCC 458; Om Pal v.              D
Swarup, (1988) 4 SCC 545; Wa1yam Singh v. Ba/dev Singh, [2003) 1 SCC
59; Gurbachan Singh and Anr. v. Shivalak Rubber Industries and Ors.,
[1996] 2 SCC 626 and Vipin Kumar v. Roshan Lal Anand and Ors., (1993)
2 sec 614, referred to.
                                                                                 E
    CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No.
11001 of 2001.

    From the Judgment and Order dated 16.5.2001 of the Punjab and
Haryana High Court in C.R. No. 5764 of 2000.
                                                                                 F
     S.M. Sarin and P.N. Puri for the Petitioner.

    Dr. A.M. Singhvi, M.A. Chinnasamy, Simran Mehta, Ms. Bamali
Basak and Ms Shipra Ghose for the Respondents.

     The following Order of the Court was delivered :                            G

    This is a desperate attempt on the part of the petitioner, who was
unsuccessful throughout, to hold on to the premises of which he is the tenant.

     The petitioner is the tenant of land and building constructed upon a        H
                                    203
    204                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.                  ;,_



A   plot in Jalandhar. Sometime in the year 1967 the petitioner was inducted
    into the premises by a lease agreement dated 25.10.1967. The lease.agreement,
    inter alia, contained a clause which said, "that the lessees will not make any
    addition or alteration or change in the building during the period of tenancy".

          The respondent-landlord moved a petition under section 13 of the East
B
    Punjab Urban Rent Restriction Act, 1949 seeking eviction of the petitioner-
    tenant on two grounds, namely, (1) that the petitioner had not been paying
    the enhanced rent as per the terms of the agreement; and (2) that though the
    earlier the petitioner had made a temporary shed over the generator which
    was placed in the courtyard, the petitioner had now extended and made
c   further construction of two pacca sheds without consent of the landlord in
    the courtyard and by constructing the sheds the petitioner had materially
    impaired the value and utility of he premises.

          The Rent Controller raised the following issues :
D
             1.    Whether the respondent is in arrears of rent?

             2.   Whether the respondent has made additions and alternations
                  without the consent of the petitioner and has materially impaired
                  the value and utility of the premises in question?
E
             3.   Whether the petitioners are estopped from filing the present
                  petition by their own act and conduct as alleged?

             4.   Whether the petitioner are debarred from demanding the access
F                 rent?

             5.    Relief."

         After trial of the application, the Rent Controller answered the first
    issue in favour of the petitioner, With regard to the 2nd issue, the Rent
G   Controller held that the constructions made were of such nature as to
    materially impair the value and utility of the premises and an act which
    would amount to a ground for eviction under section l 3(2)(iii) of the Act.

         The Rent Controller decided the third issue in the favour of the petitioner
H   and held that the previous litigation pertained to a temporary shed covering
              BRITISH MOTOR CAR CO. v. M.L. SAGGI                         205

the generator in which the finding had been that there was no material            A
impairment of the value and utility of the premises. Although, the respondent-
landlord had attempt to evict the petitioner-tenant for this reason, he had
failed throughout in the litigation right up to this Court. The Rent Controller
took the view that this did not prevent the landlord from moving again on
the fresh cause of action.                                                        B
      The appellate authority under the Act, after careful re-appreciation of
the evidence on record completely affirmed the findings recorded on the
issues by the Rent Controller. The appellate authority also took the view that
the sheds constructed by the tenant are of permanent nature which could not
be removed without doing damage to the building in question as they were          c
embedded in the floor and also in the side wall; that by constructing the three
sheds on almost whole of the courtyard, the petitioner had not only obstructed
ventilation to the courtyard, but had also reduced the area of the courtyard
considerably. According to the appellate authority, this certainly amounts
to "materially impairing the value of the premises". The appeal therefore         D
failed.

     Although the High Court was merely deciding a civil revision petition
by the unsuccessful tenant, the High Court has also re-appreciated the
evidence threadbare and affirmed the findings of the two courts below. The
High Court has rightly rejected the contention that merely because in the         E
previous litigation the petitioner-tenant had succeeded, that could not debar
the respondent-landlord from moving a petition for eviction based on
subsequent events affording him a. fresh cause of action. The High Court
has affirmed the findings of the two courts below that the value and utility
of the courtyard had been totally impaired as further construction had been       F
made thereupon by the petitioner without the written consent of the landlord.

      The landlord counsel for the petitioner strenuously contended that the
two authorities under the Act and the High Court erred completely both on
facts and in law. He took us through some of the material on record to
convince us that the findings were perverse. We are not impressed by this         G
attempt. There was adequate evidence before the Rent Controller which
indicated in no uncertain terms that the sheds which were recently constructed
were of a permanent nature, that the construction was of such nature which
could not be dismantled without substantial damage to the structure and, in
any event, by making the construction of the sheds in question the petitioner     H
    206                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   had committed acts likely to impair materially the value an utility of the
    premises and the land leased out to him. The appellate court and the High
    Court have re-appreciated the evidence on record and affirm these findings.

          In our view, there is no scope for further re-appreciation of the evidence
B   as that is not the function of this Court under Article 136 of the Constitution.

         The learned counsel referred to the observations of this Court in Om
    Prakash v. Amar Singh and Others, [1987] l SCC 458 (Para 6); Om Pal
    v. Anand Swarup, [1988] 4 SCC 545 (Para 9) and Waryam Singh v. Baldev
    Singh, [2003] l SCC 59, and contended that the legal test as to what would
C   amount to an act "likely to impair the material value and utility of the land"
    has been laid down in these judgments and that this test has not been
    correctly applied by the courts below.

         In our view, the contention has no substance. The Judgments cited
D   before us turned on their peculiar facts. They were different instances in
    which the test was applied to see whether the construction fell within the
    parameters of the ground of eviction. When the construction is alleged to
    have materially impaired the value and utility ofhe premises, the construction
    should be of such a nature as to substantially diminish the value of the
    building either from the commercial and monetary point of view or from
E   the utilitarian aspect of the building. [See Om Pal (supra)].

           In Om Prakash (supra) it was held that the essential element which
    needs consideration is as to whether the constructions are substantial in
    nature and they alter the form, front and structure of the accommodation.
F   It is not possible to give an exhaustive list of constructions which constitute
    material alterations, as the determination of this question depends on the
    facts of each case.

          In Gurbachan Singh and Another v. Shivalak Rubber Industries and
    Ors., [l 996] 2 SCC 626 it was held that the "question whether the alleged
G   addition and alterations materially impaired the value and or utility of the
    premises in question is a mixed question of law and fact to be determined
    on the application of correct principles".

        Again in Vipin Kumar v. Roshan Lal Anand and Others, [1993] 2 SCC
H   614 at 617 it was observed "the impairment of the value or utility of the
               BRITISH MOTOR CAR CO. v. M.L. SAGGI                           207

building is from the point of the landlord and not of the tenant".                   A

      We have been taken though the judgment of the two courts below and
that of the High Court. We have no manner of doubt that the three courts
have correctly applied the true test on the facts fount that the sheds constructed
by the petitioner-tenant amounted to an act materially impairing the value           B
and utility of the premises and the land leased out to him so as to amount
to a ground of eviction under section l 3(2)(iii) of the Act. We see no reason
to take a different view of the matter.

     There is no merit in the petition. The special leave petition is accordingly
dismissed.                                                                           C

R.P.                                         Special Leave Petition dismissed.