Holding

A finding of material impairment of the building’s value or utility, inferred from the tenant’s unauthorised construction, is a factual determination that cannot be disturbed, and under Section 13(2) the Rent Controller’s discretion to order eviction is valid when such impairment is proved.

Summary

The appellant‑tenant Vipin Kumar was evicted under Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 for constructing a wall and door in the verandah of his demised shop without the landlord’s consent, which was held to have stopped the flow of light and air and thus materially impaired the building’s value and utility. The appellant argued that the Rent Controller should have exercised discretion and that the landlord failed to prove material impairment, relying on the decision in Om Prakash v. Amar Singh. The Supreme Court held that the impairment of value or utility is assessed from the landlord’s perspective and that the factual finding of material impairment, inferred from the proven construction, is a matter of fact that the Court cannot overturn. It further clarified that Section 13(2) confers discretion on the Rent Controller to order eviction when such impairment is proved, and the landlord had satisfied this burden. Consequently, the Court dismissed the appeal, allowing the eviction order to stand, subject to a one‑year stay and a modest rent condition. The precedent in Om Prakash was held inapplicable to the facts.

Issues considered

Whether the finding that the tenant’s unauthorised construction materially impaired the value or utility of the building is a permissible inference of fact that cannot be disturbed.
Whether Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949 gives the Rent Controller discretion to order eviction upon proof of material impairment.
Whether the landlord bore the burden of proving material impairment and whether he satisfied that burden.
Whether the decision in Om Prakash v. Amar Singh & Anr. is applicable to the present case.

Legislation cited

Constitution of Indias. Article 136
East Punjab Urban Rent Restriction Act, 1949s. 13(2), s. 13(3)
U.P. Cantonments (Control of Rent and Eviction) Act, 1952s. 14(c)

Subjects

rent controlevictionmaterial impairmentlandlord‑tenantdiscretionEast Punjab Urban Rent Restriction Actinference of factSupreme Court

Judgment

A VIPIN KUMAR
v.
ROSHAN LAL ANAND AND ORS.

MARCH 24, 1993

B [K. RAMASWAMY AND R.M. SAHA!, JJ.)

East Punjab Urban Rent Restriction Ac4 1949: Sections 13(2) & 13(3).

TenanHmpairing the value or utility of building-Eviction on the
C ground of-inferential facrs as to impainnent should be deduced from proved
facts-Concurrent findings of impainnenHnteiference by Supreme Court
held not justified.

Constitution of India 1950: Article 136-Appeal-Concurrent findings
of fact-Power of Supreme Court to inteifere with.
D
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
E 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 or the demised premises and put up a door without permission

F
of the landlord as a result or which the Row or light and air bad been
stopped and consequently the value or the demised shop bad 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
G while in the cases covered under Section 13(3) it was made mandatory to
direct eviction of the tenant. Therefore, the Rent Controller had lo inde·
pendently consider and exercise discretion vested in him keeping in view y
the proved facts to decree ejectment. II 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
H had committed illegality in granting the decree or ejectment.
640
VIPIN KUMAR v. ROSHAN LAL 641
_,..,,,{..
Dismissing the appeal, this Court, A
HELD: 1. If the tenant had committed such acts a~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)
B
2. By constructing the wall, whether the value or utility of die
building has materially been impaired is an inferential fact to k 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 Oow of the air and light has C
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 ·o.E, 642 E)

3. Undoubtedly the statute, on proof of facts, gives discretion to the D
Court, by Section 13(2) and made mandatory in cases cove~d 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
i!lr 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 .E
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 appel·
lant. So no fault can be laid at the Rent Controller's failure to exercise the
discretion. [643 G·H, 644 A·BI '
F
Om Parkash v. Amar Singh & A11r., A.I.R. 1987 S.C. 617, held inap-
plicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3271 of
1984.
G
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 S.K. Gautam for the Appellant.

M.L. Verma and'Mrs. S.K. Bagga for the Respondents. H
642 SUPREME COURT REPORTS (1993] 2 s.c ll.

A 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.1125 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 J.-
B 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 varandab of the demised premises and put
up a door which matetially impaired the value or utility of the building.
Shri Prem Malhotra, learne~ counsel for the appellant contended that the
·C appellant bad not constructed the offending construction. Even if it is so
there ~ no proof adduced by the landlord that by such a construction the
value or utility of the building bad 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.,
D A.l.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 varan-
dab 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
E one such shop. He constructed the. wall in the varandab and put up the
door. Therefore, it is a finding of fact which we cannot evaluate the
evidence and upset that finding. It was also found that the wall was
constructed without the permission of the landlord. Due to construction
the value or utility of the building havf been materially affected. Section
13(2}(iii) provides thus:- .
F
"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
G
this Section (or) in pursuance of an order made under
Section 13 of the Punjab Urban Rent Restriction Act, 1947
as subsequently ammended)'.

Clause 3 of sub-section (2) of Section 13 provides that 'if the tenant has
H committed such acts as are likely to impair materially the value or utility
--
VIPIN KUMAR v. ROSHAN LAL 643

of the building or rented land", the. Rent Co&troller may make an order A
directing the tenant to put the landlord in possession of the building or
rented land. If the Controller is not so satisfied, he sl:iall 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 fmding recorded by the B
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
fixtures. 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 C
building due to acts committed by the tenant and the seco11d 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 D
and that there is no evidence adduced by the landlord. We find no force
in the contention. By contructing the wall, whether the value or utility of
the building has materially been impaired is an inferencial fact to be
deduced froin 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 E
been stopped. He removed the fixtures. From these facts it was inferred
that the value or utility of the building bas been materially effected. It is
then contendect that sub-section (2) of Section 13 gives discretion to the
Rent Controller to order eviction while the cases convered under Sub-sec-
tion (3) of Sectioi1 <3 it is made mandatory to direct eviction of the tenant. F
Therefore, the Rent Controller bas to independently consider and exercise
discretion vested in him keeping in view the proved facts to decree eject-
ment. It is for the landlord under the circumstances to prove such facts
which warrant the Controller to order eviction in bis favour. The landlord
had not proved such fac.. in his favour. Therefore, the Court had com-
mitted illegality in granting the decree of ejectment We find no force in G
the contention. Undoubtedly the statute, on proof of facts, gives discretion
to the court, by Sec. 13(2) and made mandatory in case covered by Sec.
13(3), to order eviction. In a given set of facts the Rent Controller, despite
finding that the tenlfnt committed such acts which may impair the value or
H
---
644 SUPREME COURT REPORTS (1993) 2 S.C.R.

A 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 appel-
lant. So no fault can be laid at the Rent Controller's failure to exercise the
B
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
C 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
D 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
E undertaking in the Registry of this Court within a period of six weeks with 'l/. _.
usual conditions. The appeal is accordingly dismissed but in the cir-
cumstances without costs.

T.NA. Appeal dismissed.