OM PRAKASHversusAMAR SINGH & ANR.

A
                                OM PRAKASH
                                        v.
                                                                                 A
                          AMAR SINGH & ANR.

                              JANUARY 9, !987
B
          [SABYASACHI MUKHARJI AND K.N. SINGH, JJ.]

          U.P. Cantonment Rent Control Act, 1952-Section 14--Tena-               ~
    nts--Eviction of-Construction or alteration must be of such nature
    and character as to materially alter the accommodation.
c        Words & Phrases- 'Altered'- 'Material/y'-meaning of.
                                                                                 'f
         The tenanted premises was let out to the appellant for running a
  Dal and Oil Mill- The respondents purchased the building and a year
  later filed a suit for eviction, inter alia, alleging that the appellant had
                                                                                 ...
D made material alterations in the tenanted premises without their con-
  sent causing substantial damages to it_ The disputed construction in-
  duded a partition wall in a ball converting the same into two portions
  and tin sheds shown by letters ABHG and CDGH.

       The trial Court decreed the suit holding that the partition wall in
E the ball did not constitute material alteration and that the tin shed
  marked by letters ABHG bad been constructed with the consent of the
  erstwhile landlords but the tin shed marked with letters CDGH bad              -"'
  been constructed subseQuently without respondents' consent, which
  materially altered the accommodation.

F        On appeal, the Additional Civil Judge found that none of the
    constructions constituted material alterations.
                                                                                     ~
                                                                                     ·~
        But on second appeal, the High Court held that the tin shed
  indicated by letters CDGH as well as the partition wall made in the
  ball converting the same into two rooms, constituted material alteration
G as contemplated by s.14(c) of the U.P. Cantonment Rent Control Act,
  1952, justifying the eviction of the tenant.

          Allowing the Appeal,
                                                                                       }
       HELD: (I) The order of the High Court is set aside and the Judg-
H ment and decree of the First Appellate Court are restored. [978A]


                                       968
                            OM PRAKASH v. AMAR SINGH                        969

             (2) The U.P. Cantonment Rent Control Act, 1952 does not permit
      a landlord to file suit for evicition of a tenant without obtaining pennis- . A
      sion of the District Magistrate but if the tenant, without the landlord's
      permission made or permitted to make construction which in the opi-
      nion of the Court has materially altered the accommodation or which is
      likely to diminish its value substantially, the landlord is free to file suit
      for tenant's eviction without obtaining permission of the District B
      Magistrate. [9738-C]

            (3) Necessary facts which should be established by the landlord
      for obtaining a decree against the tenant under the said provision are
      that (i) the tenant has made construction; (ii) such constructions have
      been made without the consent of the landlord; and (iii) constructions,
      so made have materially altered the accommodation. These three condi-       C
-t    tions are cumulative in nature, each 1'.0e of them is necessary to be
      established before a decree for eviction can be passed against the
      tenant. [973D-F]

            (4) The Act does not define either the word 'materially' or the       [)
      word 'altered'. The expression 'materially altered' means "a substan-
      tial change in the character form and the structure of the building
      without destroying its identity". It means that the nature and the
      character of change or alteration of the building must be of essential
)..   and substantial nature. [973F; 974A-B]
                                                                                  E
            Concise Oxford Dictionary; Words and Phrases (Permanent Edi-
      tion) and Babu Manmohan Das Shah & Ors. v. Bishun Das, [1967] I
      SCR 836, referred to.

            (5) In determining the question the Court must address itself to
      the nature, character of the constructions and the extent to which the
                                                                                  F
      changes in the front and structure -of the accommodation are made
      having regard to the purpose for which the accommodation may have
      been let out to the tenant. [974D-E]

            (6) The material alterations contemplate change of substantial
      nature affecting the fonn and character of the building. Many a time        G
      tenants make minor constructions and alterations for the convenient
~     use of the tenanted accommodation. The Legislature does not provide
      for their eviction, for such alterations. [974E-F]

            (7) Construction of a Chabutra, Almirah, opening of a window or
      closing a verandah by temporary structure or replacing of a damaged         H
    970                    SUPREME COURT REPORTS            [1987] 1 S.C.R.

A roof which may he leaking or placing partition in a room or making
  similar minor alterations for the convenient use of the accommodation
  do not materially alter the building as in spite of such constructions the
  front and structure of the building may remain unaffected. It is not
  possible to give exhaustive list of constructions which do not constitute
  material alterations, as the determination of this question would depend
B on the facts or each case. [974F; 97SA]

        S.B. Mathur v. K.P. Gupta, [1961] Allahabad Law Journal 136,
  Dr. J. G. Gupta v. Bodh Mal, [1969] Allahabad Law Journal 477, Sita
  Ram Sharan and Anr. v. Johri Mal & Anr., [1972] Allahabad Law
  Jonrnal 361 & Baldev Das v. Ram Khilawan, [1979] Allahabad Law
C Reports 44, referred to.

          (8) The findings regarding constructions would be finding of fact,
    but the question whether the constructions materially alter the accom-
    modation is a mixed question of fact and law, which should he
    determined on the application of the correct principles. [9750-E]
D
        (9) The nature uf constructions, whether they are permanent or
  temporary, is a relevant consideration in determining the question of
  'material alteration'. A permanent construction tends to make changes
  in the accommodation on a permanent basis, while a temporary con-
  struction is on temporary basis which do not ordinarily affect the form
E or structure of the buildings, as it can easily be removed without caus-
  ing any damage to the building. [977C-E]

          Babu Manmohan Das Shah & Ors. v. Bishun Das, [1967] I SCR
    836, explained.

F        I O(i) In the instant case, the findings recorded hy the trial Court
  and the relevant evidence clearly show that the partition wall did not
  actually partition the hall converting the same permanently into two
  rooms. The partition wall was made without digging any foundation of
  the ftoor of the room nor it touched the ceiling, instead it was a tempo-
  rary wall of 6 feet height converting the big hall into two portions for its
G convenient use, it could be removed at any time without causing any
  damage to the building. The partition wall did not make any structural
  change of substantial character either in the form or structure of the
  accommodation. [975G; 976A]

       IO(ii) The wall which had been constructed for the tin shed was
H kuchha, made of bricks and mud and the bamboo tatters were used for
                    .OM PRAKASH v. AMAR SINGH (SINGH, J.)                971

    enclosing it. The findings recorded hy the First Appellate Court and the
     Commissioner's report make it evident that the tin shed was cons- A
    tructed on an open land, it was temporary in nature and it could he
     removed without causing any damage to the building. One p<irtion of
    the tin shed was already in existence on the open land adjacent to the
    accommodation, the appellant merely extended that in shed which did
    not make any substantial change either in the form or structure of the B
    building. There is no material on record to sustain the findings of the
    High Court that the appellant had constructed pacca walls on three ·
    sides of the tin shed; instead the Commissioner's report is contrary to
    it [976F; 977A]
          (II) The Single Judge placing reliance on the observation of the
    Full Bench decision in Sita Ram's case (supra) held that the disputed       c
    construction even though temporary in nature, which could be removed
    without causing any damage to accommodation, would fall within the
    mischief of material alterations. The High Court committed error in
    interfering with the findings of the First Appellate Court. [977G; 97SA]
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 886 of                       D
    1976.

         From the Judgment and Order dated 11.5. 1976 of the Allahabad
}   High Court in Second Appeal No. 3684 of 1966.

        S.N. Kacker, R.B. Mehrotra and Miss Abha Jain for the                   E
    Appellant.

         Gobinda Mukhoty, S.K. Verma, R.S. Singh and P.A. Mishra for
    the Respondents.

          The Judgment of the Court was delivered by                            F

          SINGH, J. This appeal by special leave is directed against the
    Judgment of the High Court of Allahabad setting aside the judgment
    and decree of the first appellate court and decreeing the landlord's suit
    for eviction against the appellant.
                                                                                G
          The appellant has been tenant of Kathi No. 196 situated in
    Dholki Mohalla, Sadar Bazar, Meerut Cant!. ever since 1961 on a rent
    of Rs. 93 per mensem. The tenanted premises was let out to the appel·
    lant for running a Dal and Oil Mill. The respondents purchased the
    building from the erstwhile owners in 1963, a year later, they filed a
    suit for appellant's eviction on a number of grounds including the          H
    972                    SUPREME COURT REPORTS             [1987] 1 S.C.R.

    ground that the appellant had made constructions materially altering
A   the accommodation withbut their consent causing substantial damages
    to it. It is not necessary to refer to other grounds as the sole ground
    which survived for the decree of eviction relates to the material altera-
    tions made in the tenanted premises without obtaining the consent of
    the landlord. The disputed constructions include a. partition wall in a
B   hall converting the same into two portions and tin sheds shown by
    letters ABHG and CDGH. The trial Court held that the partition wall
    in the hall did not constitute material alteration, it further held that the
    tin shed marked by letters ABHG had been constructed by the appel-
    lant with the consent of the erstwhile landlords predecessor in interest
    of the respondents but the tin shed marked with letters CDGH had
    been constructed by the Appellant subsequently without respondents'
C   consent, which materially altered the accommodation and on that find-
    ings the trial court decreed the suit. On appeal, the Additional Civil Judge
                                                                                   +
    set aside the trial Court's order and dismissed the respondents' suit on
    the findings that none of tlie constructions constituted material altera-
    tion justifying appellant'~ eviction under sec. 14(c) of the U.P.
0   Cantonment Rent Control Act JO of 1952. On a second appeal made
    by the respondents a learned Single Judge of the High Court set aside
     the order of the first appellate court on the findings that the tin shed
    indicated by the letters CDGH as well as the partition wall made in the
    hall CO'lverting the same into two rooms, constituted material altera-
    tion as contemplated by the Sec. 14( c). Since the constructions had
E   been made without permission of the respondent, the tenant was liable
    for eviction.

          There is no dispute that the demised premises is subject to the
    provisions of the U.P. Cantonment Rent Control Act, 1952 (herein-
    after referred to as the Act).' Section 14 of the Act imposes restriction
F   on the landlord's right to file suit for eviction of a tenant from any
    accommodation except on one or more of the grounds specified
    therein. Sec. 14(c) relevant· for the purposes of this case reads as
    under:

                "Sec. 14: Restrictions on eviction:- No suit shall, without
                the permission of the district Magistrate, be filed in any
G
                civil Court against a tenant for his eviction from any accom-      j
                modation except on one or more of the following grounds,
                namely:

                (a) XXXXX
H
                (b) xxxxx
                         OM PRAKASH v. AMAR SINGH (SINGH, l.l                    973

                     ( c) that the tenant has without the permission of the land- A
                     lord, made or permitted to be made any such construction
                     as in the opinion of the court has materially altered the
                     accommodation or is likely substantially to diminish its
                     value;"

               The Act does not permit a landlord to file suit for eviction of a        B
         tenant without obtaining permission of the District Magistrate but if
         the tenant, without the landlords permission made or permitted to
         make construction which in the opinion of the court has materially
         altered the accommodation or which is likely to diminish its value
         substantially, the landlord is free to file suit for tenant's eviction with-
         out obtaining permission of the District Magistrate. If the tenant             C
         makes constructions which materially alter the accommodation, with-
         out the permission of the landlord the embargo placed on the land-
         lord' right to file suit is lifted and he is free to file suit for tenant's
         eviction without obtaining permission of the District Magistrate. It is
         the unauthorised constructions which provides cause of action for ten-
         ant's eviction, but every construction or alteration made by a tenant in       D
         the building does not provide a ground for eviction; instead the con-
         structions complained of, must be of such nature and character as to
         materially alter the accommodation. Necessary facts which should be
    ).   established by the landlord for obtaining a decree against the tenant
         under the said provision are that (1) the tenant has made con.struc-
         tions; (ii) such constructions have been made without the consent of           E
         the landlord; and (iii) constructions so made have materially altered
         the accommodation. These three conditions are cumulative in nature,
•        each one of them are necessary to be established before a decree for
         eviction can be passed against the tenant. So far as the first and second
         conditions are concerned, they do not present any difficulty as these
         are pure questions of fact, but difficulty arises in determining the third     F
         condition, namely whether the constructions constitute material
         alteration. It is a vexed question which the Courts face very often.

               The Att does not define either the word 'materially' or the word
         'altered'. In the absence of any legislative definition of the aforesaid
         words it would be useful to refer to the meaning given to these words G
         in dictionaries. Concise Oxford Dictionary defines the word 'alter' as
         change in character, position' "Materially" as an adverb means 'im-
         portant' essentially concerned with matter not with form. In Words
         and Phrases (Permanent Edition) one of the meanings of the word
         'alter' is 'to make change, to modify, to change, change of a thing from
         one form and set to another. The expression "alteration" with refer- H
     974                  SUPREME COURT REPORTS            [1987] I S.C.R.

A ence to building means 'substantial' change, varying, change the form
  or the nature of the building without destroying its identity". The
  meaning given to these two words show that the expression 'materially
  altered" means "a substantial change in the character, form and the
  structure of the building without destroying its identity." It means that
  the nature and character of change or alteration of the building must
B be of essential and important nature. In Babu Manmohan Das Shah &
  Ors. v. Bishun Das, [ 1967] I SCR 836 this Court considering the expre-
  ssion 'material alterations occurring in sec. 3( l)( c) of U .P. (Tempor-
  ary) Control of Rent and Eviction Act, 1947 observed:

               "Without attempting to lay down any general definition as
               to what material alterations mean, as such, the question
                                                                                i
c              would depend on the facts and circumstances of each case,
               the alterations in the present case must mean material           +
               alterations as the construction carried out by the respon-
               dent had the effect of altering the front and structure of the
               premises."
[)
         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 heen let
   out to the tenant. The Legislature intended that only those construc-
 E lions which bring about substantial change in the front and structure of
   t.he building should provide a ground for tenant's eviction, it took care
   to use the word 'materially altered the accommodation.' The material
   alterations contemplate change of substantial nature affecting the form
   and character of the building. Many a time tenants make minor
   constructions and alterations for the convenient use of the tenanted
F accommodation. The Legislature does not provide for their eviction
   instead the construction so made would furnish ground for eviction
   only when they bring about substantial change in the front and struc-
   ture of the building. Construction of a Chabutra, Almirah, opening a
   window or closing a verandah by temporary structure or replacing of a
   damaged roof which may be leaking or placing partition in a room or
c; making similar minor alterations for the convenient use of the accom-
   modation do not maierially alter the building as in spite of such
   constructions the front and structure of the building may remain
   unaffected. 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. It is not possible to
11 give exhaustive list of constructions which do not constitute material
J




                    OM PRAKASH v. AMAR SINGH (SINGH, J.]                 975

    alterations, as the detennination of this question depends on the facts
                                                                               A
    of each case. In S. B. Mathur v. K. P. Gupta, [ 196 l] Allahabad Law
    Journal 136 construction of temporary wall enclosing verandah and
    putting up an iron jungala and placing a partition wall, temporary in
    nature was held not to constitute material alteration of the accommo-
   dation. In Dr. J.G. Gupta v. Bodh Mal, (1969] Allahabad Law Journal
-{ 477 a Division Bench of the High Court held that temporary construc-        B
    tion made by a tenant in the shape of kitchen and bathroom did not
   constitute material alterations as the same were temporary and they
   could be removed without causing any damage to the accommodation.
   In Sita Ram Sharan and Anr. v. Johri Mal & Anr., [l972]Allahabad
   Law Journal 30 l a Full Bench held that construction which converted
   the tenanted premises into double storey structure, materially altered
+ the accommodation. Another Division Bench of the High Court in               c
   Baldev Dass v. Ram Khilawan, [ 1979] Allahabad Law Reports 44 held
   that a partition wall in a shop converting the same into two portions for
   the convenient use of the same did not amount to material alteration.
   These decisions were rendered on the facts available on the record of
    those cases. In deciding this question the Court has to consider           D
   whether the constructions have been made with the consent of the
   landlord and if so, whether those constructions are of such substantial
   nature which make material alterations in the accommodation. The
   findings of the court regarding constructions would be finding of fact,
   but the question whether the constructions materially alter the accom-
   modation is a mixed question of fact and law' which should be               E
   determined on the application of the correct principles.

           In the instant case the disputed constructions which the High
    Court has found to be 'material alteration' consists of a partition wall
    of 6 feet height in a hall converting the same into two rooms and a tin
    shed marked by letters CDGH on the Eastern side on the open land F
    adjacent to the accommodation. The trial Court held that the partition
    wall did not change the front or structure of the accommodation, it
    being temporary in nature, did not constitute material alterations in
    the accommodation. This finding of the trial court was not challenged
    by the landlord before the Civil Judge. But the High Court has held
    that the partition wall constituted 'material alteration'. The findings G
    recorded by the trial court and the relevant evidence placed before us
    by the parties clearly show that the partition wall did not actually
    partition the hall converting the same pennanently into two rooms. The
    partition wall was made without digging any foundation of the floor of
    the room nor it touched the ceiling, instead; it was a temporary wall of
    6 feet height converting the big hall into two portions for its convenient H
    976                   SUPREME COURT REPORTS            (1987] I S.C.R.

    use, it could be removed at any time without causing any damage to
A
    the building. The partition wall did not make any structural change of
    substantial character either in the form or structure of the accom-
    modation.

          The other disputed item relates to the construction of tin shed.
B The respondents alleged that the appellant had constructed a tin shed
    shown by letters ABCD in the site plan attached to the plaint in an
    unauthorised manner without obtaining his consent. All the three
    courts have recorded concurrent finding that the tin shed shown by the
    letters ABCD consists of two portions. One portion is shown by letters
    AGHB and the other shown by GHCD. The trial court as well as the            i
C first appellate Court both have recorded findings that the portion of
    the tin shed shown by letters COG H had been constructed by the
    appellant without the consent of the resl)()Qdent landlords, but the rest
                                                                                +
    of the tin shed shown by the letters ABGH had been constructed by
    the appellant after obtaining permission of the Cantonment Board and
    the erstwhile landlord. The First Appeal Court held that the tin shed
o shown by letters CDGH did not constitute material alteration as the
    constructions were temporary in nature which could be removed at any
    time without causing any damage to the accommodation. The First
    Appeal Court further held that the basic structure of the accommoda-
    tion let out to the appellant was not affected at all by the disputed tin
    shed as it had been constructed on the open land adjoining the accom-
E modation and it was enclosed by Bamboo structure, and Kuchha wall
    which did not effect any change in the form or the structure of the
    tenanted building. In second appeal the High Court held that since two
    sides of the tin shed were resting on the pacca wall it constituted a
    material alteration in the accommodation. We have been taken
     through the Commissioner's report filed before the Lower Court and
F on perusal of the same we find that the wall which had been
     constructed for the tin shed was kuchha, made of bricks and mud and
     the bamboo tatters were used for enclosing it. The findings recorded
     by the First Appeal Court and the Commissioner's report make it
     evident that the tin shed was constructed on an open land, it was
     temporary in nature and it could be removed without causing any
G damage to the building. One portion of the tin shed was already in
     existence on the open land adjacent to the accommodation, the appel-
     lant merely extended that tin shed which did not make any substantial
     change either in the form or structure of the building. There is no
     material on record to sustain the findings of the High Court that the
     appellant had constructed pacca walls on three sides of the tin shed;
I I instead the Commissioner's report is contrary to it. In the circum-
                    •



               OM PRAKASH v. AMAR SINGH [SINGH, J.]               977

stances the construction of tin shed could not be held to have mate-
rially altered the accommodation.                                       A

        Learned counsel for the respondent placed reliance on the Full
 Bench decision of the High Court in Sita Ram's case (supra) where the
 question as to what constructions could materially alter the accommo-
 dation was considered. The Full Bench held that conversion of a single B
 storey shop into a double storied structure by constructing a pacca
 super-structure on the roof of the shop materially altered the accom-
 modation. On the facts of that case, there could be no doubt that the
tenant had made substantial constructions which changed the fQf!Il,
front aild structure of the tenanted shop. The High Court observed
 that the fact that a construction is permanent or temporary in nature
 does not affect the question as to whether the constructions materially c
 alter the accommodation or not. We do not agree with this view. The
nature of constructions, whether they are permanent or temporary, is
 a relevant consideration in determining the question of 'material
alteration'. A permanent construction tends to make changes in the
accommodation on a permanent basis, while a temporary construction D
is on temporary basis which does not ordinarily affects the form or
structure of the building, as it can easily be removed without causing
any damage to the building. The Full Bench referred to the observa-
tion of this Court made in Babu Manmohan Das Shah's case (supra)
that the alteration in a given case might not cause damage to the
premises or its value or might not amount to an unreasonable use of E
leased premises, yet construction may fall within the expression
'material alterations'. In our opinion the observations made in Babu
Manmohan Das Shah's case (supra) do not justify inference that the
nature of the construction whether permanent or temporary is not
relevant for the purpose of determining the 'material alterations' made
by a tenant.                                                             F
      Learned counsel then urged that this Court should notinterfere
with the findings of fact recorded by the High Court. We find no merit
in the submission. Th question whether disputed constructions consti-
tute material alterations is a mixed question of fact and Jaw. The High
Court in second appeal interfered with the findings of fact recorded by G
the lower courts on the question whether tin shed and the partition
wall constituted material alterations. The learned Single Judge placing
reliance on the observations of the Full Bench decision in Sita Ram's
case (supra) held that the disputed construction even though tempor-
ary in nature, which could be removed without causing any damage to
the accommodation, would fall within the mischief of material altera- H
    978                 SUPREME COURT REPORTS          [1987) 1 S.C.R.

A tions. The High Court committed error in interfering with the findings
  of the First Appeal Court. We accordingly allow the appeal, set aside
  the order of the High Court and restore the judgment and decree of
  the First Appeal Court. In the circumstances of the case there would
  be no order as to costs.
B
    A.P.J.                                              Appeal allowed.


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