Holding

An alteration must cause a substantial, significant impairment to the building's value or utility to fall within Section 13(2)(iii); the tenant's parchhati did not meet this threshold.

Summary

Om Pal, a tenant, leased a shop for a dry‑cleaning business and installed a wooden parchhati (balcony) on the wall. The landlord sought eviction under Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949, alleging that the construction materially impaired the building's value or utility. The Rent Controller, Appellate Authority and the High Court upheld the eviction, but the Supreme Court examined the proper meaning of "materially impaired". It held that only alterations causing a substantial and significant reduction in value or utility qualify, and that the burden of proof lies on the landlord. The parchhati was found to be a temporary, minor alteration that did not materially impair the premises. Consequently, the Supreme Court set aside the eviction order and allowed the appeal.

Issues considered

What is the correct interpretation of 'acts as are likely to impair materially the value or utility of the building' under Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949?
Whether the tenant's erection of a wooden parchhati constitutes a material impairment of the building's value or utility?
Who bears the burden of proving material impairment under the Act?
Whether the findings of the Rent Controller and Appellate Authority are pure factual findings or mixed questions of law and fact.

Legislation cited

East Punjab Urban Rent Restriction Act, 1949s. 13(2)(iii), s. 15(5)

Subjects

material impairmentevictionrent controllandlord-tenantconstruction alterationburden of proofmixed question of law and factEast Punjab Urban Rent Restriction Act

Judgment

OM PAL
v. A
ANAND SWARUP (DEAD BY LRS.)

OCTOBER 4, 1988

[R.S. PATHAK, CJ. ANDS. NATARAJAN,.J.] B

East Punjab Urban Rent Restriction Act, 1949: Section
13(2)(iii)-'Acts as are likely to impair materially the value or utility of
the building'-lnterpretation of~landlord-When entitled to obtain
order of eviction-The construction by the tenant must not only be one
effecting or diminishing value of utility of building but also impairment
must be of a material nature. · C

The appellant had taken on lease a room from the respondent for
running a dry-cleaning shop. The appellant later put up a parchhati in
the shop for storing clothes. The respondent-l:indlord &'ought evictionof
the tenant under section 13(2)(iii) of the East Punjab Urban Rent D
Restriction Act, 1949 on the ground that the construction of the
parchhati was an act causing material impairment to the building. Both
the Rent Controller and the Appellate Authority upheld the contention
of the respondent. The High Court, in revision, affirmed their findings.

Before this Court, it was contended on behalf of the appellant that E
(i) the respondent had not adduced any evidence, although the burden
of proof was on him, to show that by fixing the parchhati the building
had been materially impaired so as to aff!'Ct the value or utility of the
building in any manner; (ii) the Rent Controller and the Appellate
Authority had rendered their findings against the appellant without any
basis for it; (Iii) the High Court had failed to comprehend section F
13(2)(iii) in its proper perspective; and (iv) the High Court i1ad erred in
treating the findings of the Rent Controller and the Appellate Authority
as pure findings of fact whereas they were findings on a mixed question
oflaw and fact.

· Allowing the appeal, it was, G

HELD: (I) It is not every construction or alteration that
would result in material impairment to the value or the utility of the
building. [JcJ6E] --
(2) In order to attract s. 13(2)(iii) the construction must not only H
392 SUPREME COURT REPORTS [ 1988) Supp. 3 S.C.R.

be one affecting or diminishing the value or utility of the building but
A such Impairment must be of a material nature i.e. of a substantial and
significant nature. [396E-F)

(3) When·a construction is alleged to materially impair the value
'or utility of a building, the construction should be of such a nature as to
B substantially diminish the value of the building either from the commer-
cial and monetary .Point of view or from the utilitarian aspect of the
building. [396G-H:; 397A] ···

(4) The Rent Controller and the Appellate Authority had
rendered their findings without any basis for it, and the High Court
erred in accepting those findings without applying the correct principles
C of law underlying section 13(2)(iii). [397B) . . . .

Govindaswamy Naidu v. Pushpalammal, AIR 1952 Mad 181;
'Smt. Savitri Devi v. U.S. Bajpai, AIR 1956 Nagpur 60; Charan Singh v.
Shrimati Ananthi & Ors., [1966) 6 PLR 780; G. Natarajan v.
O P. Thandavarayan, [1969) RCJ 733; Shri Anup Chand & Ors. v. Shri
Trilok Singh, [1977] 1 RCJ 752; Gobind Ram v. Smt. Kaushalya Rani
& Ors., [1983] 1RCJ295; Om Prakash v. Amar Singh & Ors., [1987] 1
SCC 458 and Brijendra Nath Bhargava & .Anr. v. Harsh Wardhan &
Ors., [1988] 1SCC454, referred to.

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2471
of 1980.

From the Judgment and Order dated 26.9.80 of the High Court
of Punjab and Haryana in Civil Revision No. 292 of 1976.

F Sultan Singh and T .L. Garg for the Appellant.

Harbans Lal, S.M. Ashri and Ashok Mahajan for the Res·
pondent.

The Judgment of the court was delivered by
0
NATARAJAN, J. In this appeal by special leave by a tenanf
against the dismissal of his Revision under Section 15(5) of the East
Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as
the 'Act') by the High Court, what falls for consideration is the
manner of construing the words "acts as are likely to impair materially
H the value or utility of the building" occurring in Section 13(2)(iii) of
the Act.
..._. ''.)''•
-;,i:;;;
) ' ~ i'.

OM PAL v. ANAND SWARUP [NATARAJAN, J.] 393

A parchhati put up by the tenant/appellant in a shop taken on
A
lease by him for running a Dry Cleaning laundry has been construed by
the Rent Controller and the Appellate Authority as an act causing
material impairment to the building and the High Court has affirmed
their findings and dismissed the revision preferred by the appellant.
The correctness of the order of the High Court in Revision is cha!-
lenged in this appeal. B

The facts are not in controversy and may briefly be stated as
under. For running a dry-cleaning shop the appellant had taken on
lease a room from the respondent on a monthly rent of Rs.30. The
appellant put up a parchhati in the shop for storing the clothes before
and after dry cleaning. :!'he parchhati ~as _been_ made to rest on the
wall~ by means of ~~oden_balas inserted_ in the wall through holes
c'
made therein.

The appellant ·did not dispute the construction of the parchhati
but contended that the alteration had been made several years 'ago and
that too with the consent of the respondent and secondly the patchhati D
did not weaken or impair the utility or value of the shop in any man-
ner. In support of his contentions, the appellant examined the neigh-
'"j
bouring shop owners to prove that the parchhati had been in existence
for long and a retired engineer by name Amril Lal as PW-3 to speak
about the patchhati being only a temporary construction and the said ·
construction not affecting the structural soundness or the utility of the E
shop in any manner. Notwithstanding the appellant's contentions and
the evidence of the expert, the Rent Controller and the Appellate
Authority rendered findings against him and the High Court accepted
those findings in the following manner:

"However in the case on hand, it is not a minor alteration F
but a substantial structural change in the building. Again;
the fact that the wooden balcony has.been constructed with
the support of nuts and bolts would also not make any
difference to the position. With modern technique, the
construciion of even a multi-storeyed building has been
made possible by the use of fabdcation with steel material, G
including. nuts and bolts. Moreover, the two Authorities
below have come to a concurrent finding after considering
mf
the evidence produced by the parties, that the balcony in
·::·:1
question tantamounts to material impairment of the value
and utility of the premises."
H
394 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Arguing for the appellant, Mr. Sultan Singh, learned counsel
A stated that while the Rent Controller and the Appellate Authority
have rendered their findings against the appellant without there being
any basis for it, the High Court has failed to comprehend Section
13(2)(iii) in its proper perspective and this has led to miscarriage of
justice. It was urged that while the appellant had examined an expert
B PW-3 Amrit Lal to prove that the Parchhati was only a temporary
wooden fixture which could be easily removed at any time without any
damage being caused to the walls of the building, the respondent had
no adduced any contra evidence, although the burden of proof was on
him to show that by fixing the parchhati the building has been mate-
rially impaired so as to affect the value or utility of the building in any
manner and attracting Section 13(2)(iii) to the facts of the case. The
C learned counsel further contended that since the High Court has erred
in treating the findings of the Rent Controller and the Appellate
Authority as pure findings of fact whereas they were findings on a
mixed question of law and fact, the order of the High Court in Revi-
sion suffers from a serious flaw and it needs correction by this Court.
D
In elaboration of his argument, Mr. Sultan Singh stated that the
words "materially impaired" have a distinct connotation and 1/-S such
any and every alteration made in a building will not necessarily consti-
tute material impairment to the building. The counsel referred to the
definition of the word "impair" in the Law Lexicon by P. Ramanatha
E Aiyar (Reprint Edition) 1987 at page 548.

"Impair. To diminish in quality, value excellence or
strength of a thing.

The word 'impair' means to make worse; to weaken;
F to unfeeble. To make or become worse or less; to lessen,
reduce or diminish the quantity or quality."

The learned counsel also referred to several decisions of High Courts
and of this Court where the same question has been considered by the
courts. The decisions are to the following effects.

Every act of waste by the tenant will not entitle the landlord to
obtain an order of eviction under the provisions of Section 7 (Madras
Buildings Lease and Rent Control Act), 1946. It cannot be laid down
as a rule of law that a demolition of a wall in a building must neces-
sarily be deemed to be an act of waste which is likely to impair mate-
H rial!y the value or the utility of the building." Govindaswamy Naidu v.
OM PAL v. ANAND SWARUP {NATARAJAN,· J.] 395

Pushpalammal, AIR 1952 Madras 181.
A
"A landlord, in order to be entitled to the grant of permission to
terminate the tenancy, is required not only to prove an act of waste on
the part of the tenant but also to prove that the said act is likely to
impair materially the value or the utility of the house," Smt. Savitri
Devi v. U.S. Bajpai, AIR 1956 Nagpur 60 and Charan Singh v. B
Shrimati Ananthi & Ors., [1966] 6 PLR 780.

"Drilling of a hole to let out smoke by the tenant who had taken
the building for hoteliering business and removal of a portion of
parapet wall for temporarily accommodating the hotel employees
housed in the adjacent building cannot be said to be acts which would
impair the _utility of the building or its value." G. Natarajan v. P. c
Thandavarayan, [ 1969] RCJ 733.

"Mere construction of ·a false roof which is only wooden or the
setting of a wooden stair or making of a few holes in the roof fo.r letting
out the smoke from the hotel, cannot be held to be such material 0
alterations which may result in changing the character or nature of the
premises." ShriAnup Chand & Ors. v. Shri Trilok Singh, [1977] 1 RCJ
752.

"A wooden parchhati constructed by a tenant (tailor master)
within the demised shop for the purpose of providing more accommo- E
dation to his employees and the opening up of a ventilator for that
purpose and the putting up of a wooden staircase to reach the
parchhati would not constitute a material alteration atracting the
operation of Section 13(2)(iii) of the Act." Gob ind Ram v.
Smt. Kaushalya Rani & Ors., [1983] 1 RCJ 295.
F
In Om Prakash v. Amar Singh & Ors., [1987] 1 SCC 458 it was
held that the raising of a temporary wall of 6 feet height in a hall in the
demised premises, without digging any foundation in the floor of the
hall so as to convert the hall into two portions for convenient use
without the consent of the landlord and the extension of a pre-existing
tin shed on the open land adjacent to the accommodation by construct- G
ing a wall made by bricks or mud and enclosing it by bamboo tatters
would not amount to making of any structural change of a substantial
lHI
character either in the form or structure of the accommodation and as
such the construction did not materially alter the accommodation. It
was observed that "the ·expression 'materially alter' means a substan-
tial ~hange in the character, form, and the structure of the builclinlL H
396 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A without destroying its identity." It was further pointed out in the deci-
sion that the findings of the court regarding constructions would be
findings of fact but the question whether the constructions materially
altered the accommodation is a mixed question of fact and law which
should be determined on the application of the correct principles. In a
recent case Brijendra Nath Bhargava & Anr. v. Harsh Wardhan &
B Ors., [1988] l SCC 454,the tenant had constructed a wooden structure
inside the showroom making the showroom a cabin and a balcony or
dochhati on the roof of the cabin with a wooden staircase inside the
cabin to go to the balcony. The Court held that the constructions
would not constitute in law material alkrations to the tenanted pre-
mises so as to give a cause of action to the landlord for filing a suit for
eviction.
c
Though these decisions construed the words 'materi-;lly alter' we
are of the view that the reasoning adopted for construing those words
would logically be attracted for construing the words "materially
impaired" with which we are concerned.
D
In the light of these decisions, if we examine the present case we
find that the Rent Controller and the Appellate Authority as well as
the High Court have obviously failed to construe Section 13(2)(iii) in
its proper perspective and they have failed to apply the correct legal
tests for judging the nature of the constructions made by the appellant.
B As has been repeatedly pointed out in several decisions it is not every
construction or alteration that would result in material impairment to
the value or the utility of the building. In order to attract Sec. 13(2)(iii)
the construction must not only be one affecting or diminishing the
value or utility of the building but such impairment must be of a
material nature i.e. of a substantial and significant nature. It was
F pointed out in Om Prakash v. Amar Singh, [1987] 1 SCC 458 at 463
that the legislature had intended that only thcise constructions which
brought about a substantial change in the front and structure of the
building thai would provide a ground for the tenant's eviction and
hence it had taken care to use the word "materially altered the accom-
modation" and as such the construction of a chabutra, almirah, open-
G ing of window or closing a verandah by temporary structure or replac-
ing of a leaking roof or placing partition in a room or making minor
alterations for the convenient use of the accommodation would not
materially alter the building. It would therefore follow that when a
construction is alleged to materially impair the value or utility of a
building, the construction should be of such a nature as to substantially
H diminish the value of the building either from the commercial and
OM PAL v. ANAND SWARUP ~ATARAJAN, J.], . 397
,.
monetary point of view or from the utilitarian aspect of the building. A

Having regard to the nature of the temporary construction put
up by the appellant and the evidence of the expert witness examined
by him which remains uncontroverted by any expert's evidence on the
respondent's side, we find no difficulty in holding that the lower courts
B
had rendered their findings without any basis for it and the High Court
has erred in accepting those findings without applying the correct
principles of law underlying Section 13{2)(iii).

The learned counsel for the respondent had no effective answer
for the contentions of the appellant's counsel except to say that the
High Court was justified in affirming the concurrent findings rendered c
by the Rent Controller and the Appellate Authority and hence thereis
no need or justification for this Court to interfere with the order of the
High Court. We are unable to countenance this argument because the
High Court has failed to apply the correct principles of law while
exercising its Revisional Powers.
D
In the light of our conclusions, the appeal succeeds and is accord-
ingly allowed. The order of the High Court in civil revision as well as
the order of eviction passed by the Rent Controller and the Appellate
Authority are set aside and the respondent's petition for eviction will
stand dismissed. There will, however, be no order as to costs.

R.S.S. Appeal allowed.