IDUL HASAN & ORS. v. RAJINDRA KUMAR JAIN

Citation: [1989] SUPP. 1 S.C.R. 8

Court: Supreme Court of India

Bench: SABYASACHI MUKHERJI, B.C. RAY

Case summary

The question of temporary rights in favour of the landlord does not arise. On these grounds, the landlord's suit was decreed and the appeal by the tenants was dismissed.

Judgment text

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 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 enjoins 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 grounds enumerated therein· and clause (c) of sub-section (1) of section 3 was as follows: ~· ,. "that the tenant has, without the permission in writing of the landlord, 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 ivalue;" It appears that the constructions on the basis of which eviction of 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 contested.

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 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 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. 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. 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' 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 to the tenants to vacate. The judgment and the order of the High 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 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 provisions 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, [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 accommodation. In the facts and circumstances of the instant appeal •. before us, all the courts have accordingly found that construction carried 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 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. -Mahajan has sought to canvass before us is that under s, 20(2)(c) of the Act 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 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 observalions of this Court in Qudrat Ullah v. Municipal Board, Bareilly, [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 may be made expressly or by implication by the repealing enactment. If t)le repealing enactment makes a special provision regarding pending or past tr~_iisactions it is this provismn that will determine·whether the liability arising under the repealed enactment survives or is extinguished. Section 6 of the Uttar Pradesh General Clauses Act, 1904 · applies generally. in the absence of a special saving provision in the • repealing statute. It was further observed that where a repeal is followed 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 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 ' A appellants. In default of filing undertaking, the decree will be executable 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.