Holding

Section 3(1)(c) provides two alternative grounds – material alteration or likely substantial diminution of value – and a suit filed under the 1947 Act remains valid after its repeal because of the saving provision in section 43(2)(s) of the 1972 Act.

Summary

The appellants, tenants of a premises in Bijnor, were sued for eviction in 1967 under the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947, on the ground that they had made material alterations to the building. Lower courts held the alterations were material and ordered eviction; the High Court affirmed. The Supreme Court examined whether the 1947 Act, repealed by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, still governed the pending suit and whether section 3(1)(c) required proof of both material alteration and diminution of value. It held that the two grounds are alternative, so material alteration alone suffices, and that the suit remains valid under the 1947 Act due to the saving clause in section 43(2)(s) of the 1972 Act. Consequently, the tenants were liable for eviction, but the Court stayed execution until 30 September 1990 subject to an undertaking. The appeal was dismissed.

Issues considered

The interpretation of section 3(1)(c) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 – whether both material alteration and diminution of value must be proved or either suffices.
The effect of the repeal of the 1947 Act by the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 on pending eviction proceedings.
The applicability of the saving clause s.43(2)(s) of the 1972 Act to the suit filed under the 1947 Act.

Legislation cited

Transfer of Property Act
U.P. (Temporary) Control of Rent and Eviction Act, 1947s. 3(1)(c)
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 20(2)(c), s. 43(2)(h), s. 43(2)(s)
Uttar Pradesh General Clauses Act, 1904s. 6

Subjects

evictionmaterial alterationrent controlrepealsaving clauselandlord-tenantU.P. Rent Control ActU.P. Urban Buildings ActSupreme Courtcivil appeal

Judgment

IDUL HASAN & ORS.
v.
RAJINDRA KUMAR JAIN

SEPTEMBER 1, 1989

IB [SABYASACHI MUKHARJI AND B.C. RAY, JJ.]

U.P. (Temporary) Control of Rent and Eviction Act, 1947-
Section J( l)jc)-Eviction challenged.

U.P. Urban Buildings (Regulation of Letting Rent and Eyiction) -
Act, 1972-Effect of repeal-Vis-a-vis the rights of the parties. ,..
c'
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 sucn
were liable for ejectment under section 3(1)(c) of the U.P. (Temporary)
I!> Control of Rent and Eviction Act 1947. The appellants did not dispute
the. Cf!~S_tructions fo the demised premises, but asserted th-al the con-
structions in question bad been made with a view to save the building
from rain-water and fire and the cunstructions 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 constructions
IE were effected with the permission of the landlord. The learned'Munsif,
who iried the suit h_~d _!lt~Lth_!_ c1ms!_r1Ictionshad been made b:y the
tenants appellants without the consent/knowledge of the landlord and
that ~be Cl!nstructions am~unted to "material alterations". He accord-
inglyi!ecreed the landlord's suit. The First Appellate Court, which Is;the
Civfl Judge at11rmelCtbe de.;:ee ~i evktion by Iii; order dated 16th
IF Feb. 1984.

Thereupon the appellants we,nt in second appeal before the High
Court. The High Court too dismissed the appeal. It found _th_at the •
constructions have been made by demolishing the old structures, by
conversion of six Kucbha Kothas into pucca ones and an entirely new
G constructions had come up in their place. It further found that the
accommodation had been increased by enclosing the open space which
most have been possible only by raising walls etc. In any case, accord-
ing 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
H 3(l)(c) of the Act 1947.
-s- ;
!DUL HASAN v. R.K. JAIN 9
,.
Hence this appeal by the appellants-tenants.
A
Dismissing the appeal, this Court,

HELD: Under Section 3(I)(c) of the Act it is apparent that the
grounds for eviction could be either such construction which materially
altered the accommodation or alternatively is likely to substantially B
diminish its value. These are the disjunctive requirements. In the facts
and circumstances-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 accommodation. [I2B-C; F)

The suit which was filed on the ground that there were material
alterations simpliciter under section 3(I)(c) of the Act of 1947 would c
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 ~vict
tenant is guided by ~he Transfer of Property Act. The Act of 1947 gives D
protection to !he tenants under certain conditions and at the time when
_,, the suit was filed, the rights of the parties had been crystallised. 011-lhe
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; ISA-CJ
E
The rights of the parties must be determined in accordance 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 Judg/is not to innovate at pleasure. He is not a
knight-errant roaming aVwiO in pm:snit of his own ideal of beauty or of
-
goodness" (Ca~dozo-The Nature of the Judicial process p,age 141). If F
.. 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 J972, those rights will
continue as if tliey 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 th~ value of the premises. That right cannot he
deprived. [ISD,F) G,

Consideliing the fact that the tenants are poor, and in possession _
since long, the Court directed that the tenants will not be evicted until
30th ·septemher ·1990 provided tile tenants give the usual 1111.c!ertaking
contailling tile usual terms stating,· inter alia, that they are in posses-
... weeks
sioil, wft_lilil fQur ·onhiS ilate. The unde~king_IDUSt be given by H
10 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

each of the appellants. In· default of filing of undertaking, the decree
A 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 authority, and if the appellants are not
a in possession or occupation of other property' such authority should
consider the feasibility to give them fresh allotment of some other
property.'[I6B] ·

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.
¢
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 408
of 1980:

From the Judgment and Order dated 21.12.79 of the Allahabad
JI> High Court in Second Appeal No. 1235 of 1974.

Mrs. S. Swaran Mahajan and Arun Madan for the Appellants.

' Mehta for the Respondent.
S.K.

E 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
Allal!abad. The question involved in this :ppeal. as is usual, in all these.
cases, is what is just in the circumstances and events that have
F happened.
'
The premises in question is in the village and P .0. Dhampur in
the District of Bijnor in the State of Uttar Pradesh. The suit was filed
in 1967. The suit for the eviction of the appellants was filed on the
ground that tenants had made material alteration in the property and
(jJ 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 en joins 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
H grounds enumerated therein· and clause (c) of sub-section (1) of
section 3 was as follows:
~·
,. !DUL HASAN v. R.K. JAIN [MUKHARJI, J.] 11

"that the tenant has, without the permission in writing of
A
the landlord, made or permitted to be made any such con-
struction as, in the opinion of the court, has materially
altered the accommodation or is likely substantially to
diminish its ivalue;"

It appears that the constructions on the basis of which eviction of B
the tenants was claimed were not in dispute and were not disputed at
ariy stage. These were (i) that the tenants have placed a khaprail in
. place of khasposh; (ii) Kuchha kothas had been converted into pucca
biies which were six in number; (iii) an open place had been enclosed
and included in the accommodation in question. The action was con-
tested. It was asserted by the tenants that these constructions had been
made in Order to save the buildings from rain-water and fire and that c
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 D
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
knowledge 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. E

The tenants went in second appeal before the. High Court. The
High Court found that these alterations had been made, name,ly, the
conversion of six kuchha kothas into pllcca one and this was done after
cl11molition of the old constructions. After the old construction had
ceased to exist, ,entirely new constructions had come up in their place. F
• 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 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' G
accommodation had been increased and was thereafter different 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 niischief of
s. 3(1)(c) of the Act of 1947. In the aforesaid view of the matter, the
~
Hig_h Co\li:t_dismissed the second appeal and granted two months' time H
12 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

to the tenants to vacate. The judgment and the order of the High
A
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
B 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 provi-
sions 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 disjunctiY.e.
requirements. This Court had occasion to construe s. 3(l)(;c) of the
Act of 1947 in Babu Manmohan Das Shah & Ors. v. Bi/hun Das,
C [ 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 alterations' under the
ID said Act. This Court noted that the language of the clause (c) of s. 3(1)
of the Act of 1947 made it clear that the legislature wanted to lay .down
two alternatives which would furnish ground to the landlord lo sue
without the District Magistrate's permission, that is, where-the tenanr
has made such construction ;which would materially alter the accom-:·
modation or which would be likely to substantially diminish its value.
If: Therefore, these are disjunctive or alterative requirements. This Court
further held that although n9 general definition can be given of what
"material alterations" mean, as such a guestion would depend on the
facts and circumstances of each case, the alterations in that case
amounted to "material alterations" as the construction carried out by
the tenant had the effect of altering the form and structure of the
f accommodation. In the facts and circumstances of the instant appeal
before us, all the courts have accordingly found that construction car- •.
ried 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
(jJ 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) (hereinafter 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
J!1: which was during the continuance of Act of 1947, and before the Act
.·
, !DUL HASAN v. R.K. JAIN [MUKHARJJ, J.] 13

of 1972. The appellants in this appeal could not dispute that there were
A
material alterations. It could not also be disputed before .us by Mrs.
Mahajan counsel on behalf of the tenants that under the law as it stood
and the law as explained 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.-Maha-
jan has sought to canvass before us is that under s, 20(2)(c) of the Act B
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 con:
struction or structural alteration in the building as is likely to diminish
,. its value or utility or to disfigure it. Mrs. Mahajan therefore 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 c
diminish 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 observa-
lions of this Court in Qudrat Ullah v. Municipal Board, Bareilly, D
[ 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 savi.ngs which E
may be made expressly or by implication by the repealing enactment.
If t)le repealing enactment makes a special provision regarding pend-
ing or past tr~_iisactions it is this provismn that will determine·whether
the liability arising under the repealed enactment survives or is exting-
uished. Section 6 of the Uttar Pradesh General Clauses Act, 1904
· applies generally. in the absence of a special saving provision in the F
• repealing statute. It was further observed that where a repeal is fol-
lowed 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 G
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 possesion or recovery or fixation of rent.
In"that case,_the suit was not even one under the Act but p~oce_e<l:ed on
the footing that the contractor was only a licensee and so none of the..
.~
savings clauses in s. 43(2) apelied. The provisi<m relating_ to effect of . iH
14 SUPREME COURT REPORTS [1989) Supp. I S.C.R.

.A repeal under U.P. General Clauses Act was set out at p. 539 of tl{e
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:

·a "any court or authority before which any suit or other pro-
ceeding· relating to the recovery or determination or fixa-
tion of rent of, or eviction from, any building is pending
immediately 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 consequence 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
D 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
E have cr~stallised 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 accrued in favour of the landlord. The said clause (s) reads as
follows:
I
" any suit for the eviction of a tenarlt instituted on any
ground mentioned in sub-section(!) of s. 3 of the old Act,
or any proceeding out of such suit (including any proceed-
ing for the execution of a decree passed on the basis of any
agreement, compromise or satisfaction), pending immedia-
tely before the commencement of this Act, may be con-
tinued 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
H would continue to be valid after the coming into ()peration of Act of
!DUL HASAN v. R.K. JAIN [MUKHARJI, J.] 15
~

1972 in view of clause (s) of sub-section (2) of section 43 thereof. That
A
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 B
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. Mahajan further submitted that the new provi- c
sions 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 circums-
tances 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 pl1aded that the con- D
structions made have improved the building. Tlierefore, instead of
being liable to be evicted, the tenants should be p{otected. These are,
of course, submissions not sustainable in law. The rights of the parties
must be determine'd in accordance 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 E
is not to 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
section 43(2) of the Act of 1972, those rights will continue as if they
were under the old Act. The right hat! accrued to the landlord to get F
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 ther~ for a long
time. G

In the aforesaid view of the matter, we dismiss the appeal but we
direct that the tenants will not be evicted until 30th S~ptember, 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 H
16 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

A appellants. In default of filing undertaking, the decree will be execut-
able 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
I!l these parties to the appropriate authority, and if the appellants are not
in possession or occupation of other property, such authority should
consider the feasibility 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 dismissed.