Hon'ble Pankaj Mithal, J.
Heard Sri. P.K Jain, Senior Advocate assisted by Sri. Abu Bakth, learned counsel for the petitioners now represented by heirs and legal representatives and Sri. Ashish Kumar Singh for the respondent.
Petitioner is a tenant of a house consisting of one big room and a courtyard etc. Respondent is the landlord who instituted a suit for eviction of the petitioner from the said premises on the ground of default in payment of rent and material alteration under Section 20(2)(a) and (c) of U.P Act No. 13 of 1972.
The court of first instance decreed the suit only the ground of material alternation. The judgment and order of the court below has been upheld by the revisional court. Thus, the petitioner has preferred this writ petition.
The respondent landlord in connection with material alteration of the tenanted portion has pleaded that the petitioner had removed and replaced the roof of the tenanted portion; constructed a kitchen on one side of the room and has erected a partition wall inside the room dividing it into two portions.
The courts below in decreeing the suit has held that so far as the removal and replacement of the roof is concerned, it was only by way of repairs and does not amount to any structural alteration but failed to record any finding regarding construction of a kitchen on one side of the room. It is only on the third aspect that the petitioner had constructed a wall so as to divide the room that the courts below held that the construction amounts to material alteration, diminishing the value and utility of the tenanted portion.
In short, the suit has been decreed only on the above ground of material alternation under Section 20(2)(c) of the Act.
The submission of Sri. Jain, learned counsel for the petitioners is that there is no structural alteration by constructing the partition wall inside the room. The said wall is of a temporary nature and by its erection no damage has been caused to the existing building not even a whole fast has been affixed or the floor of the room has been damaged.The wall can be removed at any time restoring the room in its original shape without causing any damage to the original structure.
He further submits that the material alteration complained by the respondent landlord is on account of cumulative effect of all the three alterations alleged and a single alteration of construction of wall would not by itself amount to structural alteration which may in any way disfigure, reduce or diminish the utility and value of the building.
In defence Sri. Ashish Kumar Singh, learned counsel for the respondent submits that the construction of the wall has been done without permission of the respondent landlord and the concurrent finding of the courts below is that it divides the room and reduces the area which diminishes the utility and value of the room and at the same time disfigures the building.
In other words, the controversy is limited to whether the construction of the wall inside the room so as to divide it would amount to structural alteration causing disfigurement to the building and reducing its value and utility.
Section 20(2) of the Act provides for eviction of the tenant from the building after determination of his tenancy on the grounds inter alia that the tenant has without permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building which is likely to diminish its value or utility or disfigures it.
Therefore for the purposes of eviction of tenant on the ground of structural alteration, the respondent landlord has to establish that the tenant has carried out structural alteration without the permission in writing of the landlord and that the alternation so made is likely to diminish its value, utility or causes disfigurement.
In other words, two conditions are to be satisfied for being successful in getting a decree of eviction on the ground of material alteration.
i) There has to be structural alteration without permission in writing of the landlord;
ii) The structural alteration must diminish the value or the utility of the building or may result in its disfigurement.
It has been time and again repeated by the various authorities of the Court that structural alteration likely to diminish the value and utility or causing disfigurement to the building has to be adjudged on the basis of the facts and circumstances of each case independently. There can not be any hard and fast rule for its purpose.
It is equally settled vide Gurbachan Singh v. Shiv Valak Rubber Industries AIR (1996) 2 SC 626 that the question whether material alterations have impaired the value or the utility of the building is a mixed question of fact and law. The impairment of the value and utility of the building has to be from the point of view of the landlord and not of the tenant vide Vipin Kumar v. Roshan Lal Anand (1993) 2 SCC 614.
The phrase ‘materially altered’ as used in the U.P Cantonment Rent Control Act, 1952 which is para-materia with the phrase ‘structural alteration’ used in Section 20(2)(c) of the Act came up for consideration before the Supreme Court in Om Prakash v. Amar Singh 1987 AWC 306. The court explained the meaning of the expression materially altered as to mean substantial change in the character, form and structure of building without destroying its identity and form of the construction whether temporary or permanent.
In other words, the nature of the construction was not held to be material rather the change in the character or a structure of the building likely to be caused by such alteration was held to be of prime consideration.
In Shahid Ali v. Judge Small Causes Court, Moradabad 1998 (1) AWC 166 this Court ruled that for eviction of a tenant on the ground of material alteration the respondent landlord has first to prove the structural alteration and then any of the three ingredients namely the likelihood of diminishing the value or utility of the building or the likelihood of it to cause disfigurement of the building.
In Waryam Singh v. Baldev Singh. (2000) (49) ALR 707 it has been held that encroaching of varandah by a wall by itself does not amount to structural alteration.
In another decision in Hari Singh v. VIth Additional District Judge, Muzaffar Nagar 606 (62) ALR 843 the construction of wall in the ‘aangan’ which has the effect of dividing the same into two portions was not held to be structural alteration within the meaning of Section 20(2)(c) of the Act.
The Apex Court in Baldev Das v. Ram Khelawan (1979) (5) ALR 44 laid down that mere raising of partition wall by a tenant in the tenanted shop is not material alteration and is essentially a mixed question of fact and law.
In G. Raghunathan v. K. Varghese 2005 AIR SC 3680 it has been held that closing the door or window by bricks and erecting a complete wall and fixing rolling shutters does not amount to material alteration. It has been held that bricked up portion which could be removed and the restoration of doors and windows without weakening the original structure would not amount to structural alteration.
The aforesaid authorities in sum and substance lays down two tests for determining, if the offending constructions tentamounts to material or structural alteration within the meaning of Section 20(2)(c) of the Act. The first test is that it should change the character and structure of the building without destroying its identity. The second test if whether the offending structure is removable without weakening or damaging the original structure.
In the instant case the erection of the wall inside the room does not alter the character, form and structure of the building The only structural alteration which has been complained of is of erection of a wall inside the room so as to divide it into two portions. A finding has been recorded by the courts below that in erecting the said wall no damage has been caused to the walls of the room and that no whole fasts (Dahare) have been dugged into the walls. There is no finding that any foundation was laid down for the purposes of raising the said wall. In other words, it can thus be inferred that the said bricked wall is removable without causing any damage to the original structural of the room or weakening it.
Apart from this, there is neither any pleading, evidence nor any finding about the area of the room or about the reduced area of the room after the erection of the wall which may establish that the space has been rendered unusable for any purpose.
In the absence of such a condition and the finding, the courts below are not justified in holding that merely for the reason that the area of the room stand reduced, it amounts to reducing the value and the utility of the room.
Moreover, it is not the case of the respondent landlord that the construction of the wall alone as alleged is sufficient to disfigure the building or to reduce its value or utility. It is on account of the cumulative effect of all three types of alterations that it is alleged the value and utility of the building stood reduced.
The petitioner in paragraph 16 of the petition has stated that the structural alteration alleged does not reduce the value and the utility or cause any disfigurement. The averment made in the aforesaid paragraph has not been denied by the respondent landlord in the counter affidavit.
Thus, in the totality of the facts and circumstances, I find that the courts below committed an error of law in decreeing the suit for eviction of the petitioner from the disputed accommodation on the ground of structural alteration under Section 20(2)(c) of the Act.
Accordingly, impugned judgment and order dated 3.3.1999 passed by the Civil Judge (JD) Muzaffar Nagar and the revisional court's order dated 7.8.2008 are quashed. The writ petition is allowed with no orders as to costs and direct that the rent paid by the petitioners @ Rs. 600/- per month from August 2008 onward till today pursuant to the interim order of this Court dated 25.8.2008 shall not be refunded to the petitioners but from today the petitioners would be liable to pay the agreed rent of Rs. 30/- per month until the same is otherwise increased or re-fixed by the competent authority, if any.