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Whether burden of proof is on landlord to prove that tenant has done permanent construction without his consent?

IN THE HIGH COURT OF DELHI

S.A.O. No. 17 of 2002

Decided On: 11.03.2003

Suraj Prakash Chopra Raj Kumar
Vs.
Baij Nath Dhawan and Anr.

Hon’ble Judges/Coram: Mahmood Ali Khan, J.
Citation: 103 (2003) DLT 645

1. This second appeal under Section 39 of Delhi Rent Control Act (for short the Act) is filed challenging an order of Additional Rent Control Tribunal (for short thCitation: 103 (2003) DLT 645e Tribunal) whereby tenant’s appeal assailing an order of the Additional Rent Controller (for short the Controller) passed on the ground of eviction under Clause (j) of Section 14(1) of the Act was decided.

2. The respondent Baij Nath Dhawan (hereinafter the landlord) sought eviction of his tenant Suraj Parkash Chopra Raj Kumar (hereinafter the tenant) from a portion of the premises No. G-24, NDSE Part-I, New Delhi under Clauses (b), (c) and (j) of Section 14(1) of the Act. The Controller disallowed eviction of the tenant under Clauses (b) and (c) of Section 14(1) of the Act. The said order is not under challenge. But under Clause (j) of Section 14(1) the Controller upheld the contention of the landlord that substantial damage has been caused to the tenancy premises. He accordingly directed the tenant to repair the damages caused by (a) construction of walls; changing the situation of the door of the W.C.; blocking of the windows at points A and B as shown in site plan Ext. AW 1/1: and (b) the construction of the tin-shed in the open courtyard. The Controller directed the tenant to carry out necessary repairs and restore the tenancy premises in its original shape within one month failing which the tenant will become liable to eviction under Clause (j) of Section 14(1) of the Act.

3. The tenant filed an appeal before the Tribunal which was disposed of by order dated 1.4.2002. As regards the tin-shed erected in the open courtyard the finding of the Tribunal was that it had caused substantial damage to the premises. As regards the door of W .C. towards the Verandah it was held that it was done with the consent of the landlord and no damage could have been caused to the premises by the change of the door of the W.C. The Tribunal also held that the closure of the windows at points A and B shown in the site plan Ext. AW-1/1 was on account of letting out of the premises to a tenant and it has not caused such structural changes as to cause damage to the tenancy premises. As regards the two windows opened on the rear side by the tenant the Tribunal was told that they had already been closed by plywood. The Tribunal, however, directed that they be closed by bricks. The wall in the Verandah was held to be erected with the consent of the landlord at the time of letting of the premises and the Tribunal declined to pass any order with regard to that. In essence, the Tribunal modified the order of the Collector directing (i) removal of the shed with false ceiling and bringing the Verandah in its original shape; and (ii) closing of the two windows on the rear side with bricks, within two months.

4. The tenant is still aggrieved and has come up in this second appeal.

5. The argument of the Counsel for the appellant is that the question of law involved is that the learned Tribunal erroneously held that the shed in question has caused substantial damage to the premises within the meaning of Clause (j) of Section 14(1) of the Act.

6. None of the parties has considered the order of the Tribunal by which the two rear windows were directed to be closed by bricks as significant since the tenant has already closed it by fixing plywood and the brick work could also be carried out without any difficulty. The controversy centered around the tin-shed structure.

7. In para 18 of the eviction petition the landlord so far as it related to the tin-shed, averred “Respondent No. 1 converted the open courtyard in front of the unloading platform into a tin-shed against the Municipal Bye-laws and without the consent and permission of the petitioner or the Municipal Corporation of Delhi.” The precise nature of the erection work of the tin-shed was not specified. In the written statement the tenant denied that the tin-shed was erected by Mm and contended that it was in existence from before he rented the premises. The tenancy was created in favor of the tenant in the year 1970 as per the case of the respondent.

8. The existence of the tin-shed in the open courtyard in front of the Verandah is not in dispute. First the exact nature of this tin-shed is to be ascertained. As noted, the landlord did not give the complete description of the structure of the tin-shed in the petition. Only allegation was that a tin-shed has been constructed in the open courtyard in front of the Verandah, the tenant in the written statement also did not describe precisely as to what was this erection work. He replied with object denial to the allegation of its construction having been made by him and pleaded that it was in existence when the premises were taken on rent.

9. When the landlord Baij Nath Dhawan examined himself as AW1 he, for the first time, stated that the tenant has covered the open courtyard with the tin-sheets and later on converted it into puce construction and again said that the tenant had raised the wall and had fixed girders across on which the tin-sheets were laid. According to him, it was unauthorised construction. It was further stated that the MCD had demolished this construction once but without taking consent from him the tenant raised the construction. In the cross-examination he stated that he did not know as to when were these additions and alterations carried out in the tenancy premises but claimed to have come to know if it in 1979. The landlord’s witness Bir Bal Seth, AW 2 stated that he went with the landlord in 1970 when the Verandah on the back side was let out to the tenant for sleeping of his employees. He again visited the premises now (his statement was recorded on 1987) and found that the tenant had converted the Verandah and courtyard into a first class restaurant with false ceiling, etc. He does not speak of any puce construction in the courtyard nor does he speak of fixing of girders in the erection work.

10. In the rebuttal the tenant examined Shri S.S. Rawat, a clerk of the Sales Tax Department as RW1 and Shri A.M. Rao, a clerk of the Office of the Commissioner of Industries as RW 2 in order to show that the premises were rented for running a restaurant. Suraj Prakash Chopra Raj Kumar, tenant examined himself as RW 3. He stated that even prior to his taking the premises on rent a Dhaba was being run and that he was also running a restaurant in the premises. He denied that the tin-shed was erected by him and claimed that it was in existence when the premises were let out to him. In the cross-examination he stated that the Municipal Corporation of Delhi had demolished the suit premises during Emergency days but asserted that it was reinstalled by the landlord within 20 days.

11. The landlord had filed a site plan of the suit premises which is Ext. AW1.

12. It showed a Verandah and W.C. attached thereto and in a portion of the open Courtyard in front of the Verandah a covering of tin-shed. There was some open space between the tin-shed and the boundary wall on two sides. From the site plan it does appear that the entire open courtyard in front of the Verandah has been covered. There, it is noteworthy that according to the case of the landlord only a Verandah and a W.C. was leased out to the tenant. There does not seem any controversy about this between the parties. The Verandah had a courtyard in front of it. There is a tin-shed covering this courtyard which is the subject matter of the dispute between the parties. There is much ado on the part of the landlord as to whether it had been constructed by the tenant as alleged by him or it was in existence in 1970 when the Verandah was taken on rent by the tenant. A great deal of emphasis has also been laid on the statement of the tenant Suraj Prakash Chopra RW 1 in the cross-examination that during the Emergency days M.C.D. had demolished the suit premises which shows that the tin-shed was constructed by the tenant thereafter. The tenant in fact had stated that the M.C.D. had demolished the suit premises but it was reinstalled by the landlord within 20 days. What was demolished and when was it actually demolished, no evidence has been produced. Record of MCD has not been called to show as to what structure was demolished or whether the present tin-shed is different from the structure which was demolished. The statement of the tenant will have to be read as a whole. In other words, if that demolition was carried out in respect of the tin-shed it means that it was in existence even prior to the Emergency days and according to the landlord he saw this construction in 1979 which lends credence to the claim of the tenant that it was reinstalled soon thereafter. Therefore, the statement of the tenant does not give much assistance of the case of the landlord.

13. However, I may not dwell deeper into this controversy. Assuming that the tin-shed in courtyard was made by the tenant, the question to be answered is whether it has caused substantial damage to the tenancy premises. Landlord is seeking eviction of the tenant under Clause (j). Under this clause if the tenant has carried out such additions or alterations which have caused substantial damage to the tenancy premises an eviction order may be passed against the tenant if the repairable additions and alterations were not restored in its original condition. According to the landlord the tin-shed covers 80% of the courtyard. He argued that only an open Verandah was let out to the tenant and covering of the front courtyard to the extent of 80% would amount substantial structural changes in the premises which will be hit by Clause (j) of Section 14(1) of the Act.

14. Be that as it may, the tin-shed does not cover the entire courtyard in front of the Verandah. The open courtyard is part of the tenancy premises. The shed is erected with tin-sheets. There is no pleading that the tin-shed has been erected by constructing masonry walls, pillars or some digging in the courtyard or breaking the existing walls. The site plan showed that the tin-shed is resting on the walls of the Verandah and the side boundary walls of the buildings. The onus of proving that the tin-shed has caused substantial damage to the tenancy premises heavily lay upon the landlord. No architect or engineer has been examined to show that the load of the tin-shed which is placed on the existing puce construction had weakened the building. In fact apart from the landlord’s statement as AW 1 that girders have been used in the erection work, there is evidence about the size of those girders and weight which has been put on the walls and other portions of the building. In fact, thrust of the argument of the Counsel for the landlord is that the tin-shed has caused substantial damage because it has covered almost 80% of the open courtyard which had brought about material changes in the premises causing impairment in the utility and value of the premises. The argument is not tenable. The ground under Clause (j) makes a tenant liable to be evicted from the tenancy premises if it has caused “substantial damage” and not a mere damage. Therefore, minor additions and alterations in the tenancy premises which do not change the nature or the structure of the premises let would not be covered by this clause. Further argument of the Counsel for the landlord is that the impairment in the utility and value of the premises has to be seen from the angle of the landlord and not from the tenant True. But a tin-shed of temporary nature which could be removed without causing any damage to the main structure of the building cannot be said to have caused damage or substantial damage to the premises. There is a false ceiling under the tin-shed but erection of the ceiling by itself by no stretch of reasoning could have caused substantial damage to the tenancy premises.

15. Both the parties have referred to a large number of case law. I will briefly discuss them.

16. In Waryam Singh v. Baldev Singh, 2002 (2) R L R 694, the tenant was let out a shop with Verandah. He covered the Verandah by constructing walls on the two sides and fixing rolling shutters in the front. He removed the original door, increased the area of the shop by covering the Verandah. The Supreme Court observed that the Alterations would increase the value and utility of the shop and in the absence of any proof of material impairment in the value or utility eviction order could not be passed.

17. In Dewan Chand v. Babu Ram, (1980) 2 RCJ 615, the tenant had removed rafters of the shop from the wall and placed a lintel thereon. He had also constructed two walls on the two sides of the Verandah and had fixed a door on the outer wall of the two sides. It was found as a matter of fact that the changes had caused cracks on the wall of the first floor, the Supreme Court held that the changes had impaired materially the value and utility of the shop.

18. In Gurbachan Singh v. Shivalak Rubber Industries, MANU/SC/0800/1996 : [1996]2SCR997 . In that case a number of shops had been let out to the tenants. Along with the shops there were some open spaces also. The tenants removed the roofs of the shops, the partition walls and the doors, they then laid a new roof merging the Verandah with the shops closing the doors and opening new doors and windows. The tenants also enclosed the open spaces. Result of all the alterations was that the premises was converted altogether into a new and different shape. On these facts it was held that the tenant had committed an act which impaired value and utility of the premises and that the impairment of value or utility must be judged from the point of view of the landlord and no one else.

l9. In Kartar Singh v. Kesr Singh and Anr.,(1980) 2 RCJ 1, alteration was that a partition wall between two rooms had been demolished turning the two shops into one. The tenant had also made an opening in the partition walls of the rooms behind the front room. The tenant had removed the “Chukhats” and “Takhtas” of four doors and included the Verandah in the front room and fixed a shutter on one of the doors in Verandah and a tin door on the other. It was held in the case that this amounted to additions and alterations which impaired the value and utility of the building.

20. In Narain Singh v. Bakson Laboratories, 1981 CLJ 414, the tenant had enclosed the Verandah on the front and back side of the building and had opened a door by breaking the wall of the room. It was held that this diminished the value of the premises. The Hon’ble Judges in Waryam Singh (supra), however, found themselves unable to accept the said proposition and observed that it was not every additions and alterations which could be said to materially impair the value or utility.

21. In Om Prakash v. Amar Singh, MANU/SC/0791/1987 : [1987]1SCR968 , a temporary partition wall of 6 feet height was put up in a big hall. This partition was made without digging any foundation on the floor and the partition did not touch the ceiling. The tenant had also extended the pre-existing tin-shed on the open land by constructing a wall of mud and enclosing the wall with bamboo tatters. It was held that before a landlord could get a decree it must be established that (i) the tenant had made the construction; (ii) the construction was without consent of the landlord; and (iii) the said construction has materially affected premises and further that the construction which had been carried out by the tenant as aforesaid, did materially alter the premises and, Therefore, ground of eviction had been made out.

22. In Brijendra Nath Bhargava v. Harsh Wardhan, MANU/SC/0743/1987 : [1988]2SCR124 , the tenant had put up a “Dochatti” for storing the goods on the roof of the cabin with a wooden staircase from inside the cabin to go to the balcony. It was held that such construction should not only impair the value and utility of the building but may not also be of material nature.

23. In Om Pal v. Anand Swarup, (1938) 4 SCC 545, the Supreme Court observed that every construction or alteration does not impair the value and utility of the building and that the construction must be of material nature which should substantially diminish the value of building either from commercial and monetary point of view or from utilisation aspect of building. It was further held that the construction of Chabutra, almirah, opening of window, closing of a Verandah, replacing of leaking roof, placing partition in a room or making minor alterations for convenient use of accommodation would not materially alter the building.

24. In Savitri Devi v. U.S. Bajpai and Anr., AIR 1956 Nag 60, the tenant has raised temporary shed which did not alter or demolish any part of the house except a portion of the front wall. So far as the erection of temporary shed was concerned it was observed that it could not be said to be an act of waste. It was further observed that if the damage done is not significant and could be easily repaired such an act would not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or the utility of the building.

25. In Moti Ram Banarsi Dass v. Shiv Dayal Trust, 1984 (2) RCR 421, Himachal Pradesh High Court held that the landlord could only succeed if he was able to prove by cogent evidence that the construction of three Parchattis by the tenant was held to have materially impaired the value and utility of the building.

26. In G. Natrajan v. P. Thandavaryan, (1969) 9 All I R C J 733, Madras High Court observed that mere rendering of subjective opinion may not be of any avail unless such opinion is backed by expert evidence and that the landlord must prove by examining an expert witness that the act of the tenant amounts the building’s utility being impaired or its value being diminished.

27. Punjab and Haryana High Court in Madan Lal Saggi and Anr. v. British Motor Car Company, 1984 (2) RCR 572, held that where the landlord did not give the date of making of additions and alterations by the tenant the landlord’s application must fail. In the said case the tenant had covered the Verandah into rooms but character of the building remained commercial. It was held that the tenant was not liable to be ejected. There should be structural alterations which change the nature and character of building to bring the act of tenant within the mischief of the statute it was held:

28. Punjab and Haryana High Court again in Mrs. K. Atma Ram and Anr. v. Kanwar Mohinder Singh, 1976 RCJ 336, held that onus of proving the ground of eviction was upon the landlord and that unauthorised construction, a hutment of temporary nature in contravention of the Capital of Punjab (Development and Regulation) Act, 1952 does not give rise to an inference mat the value and utility of the main building had been impaired.

29. Punjab and Haryana High Court again in Gurmit Singh v. Smt. Kirpal Kaur, 1992 (2) RLR 271, held that false ceiling of temporary nature does not in any way impair the value and utility of the premises. It was held that replacement of roof and staircase was not material alterations in the tenancy premises.

30. Counsel for the respondent has also referred to certain case law. In Banarsi Dass v. Sunder Dass and Anr., 1969 (1) RCJ 32, the entire building was reconstructed by the tenant. It was held that the value and utility of the building might have enhanced by new construction but the tenant cannot escape eviction under Section 13(2)(iii) of East Punjab Urban Restriction Act, 1949.

31. In Jagdish Chand, etc. v. Mst. Bachni Devi, 1980 (2) RCJ 619, the tenancy premises were declared dangerous for human habitation and required re-erection. During the pendency of the ejectment proceedings the tenant carried out some repairs of the building without obtaining the permission of the Rent Controller, it was held that the tenant cannot avoid eviction.

32. In Vipin Kumar v. Roshan Lal Anand and Ors., MANU/SC/0501/1993 : [1993]2SCR640 , it was held by the Supreme Court that the impairment of the value or utility of the building is from the point of view of the landlord and not of the tenant. The acts of the tenant must be such that construction of the wall had materially impaired the value or utility of the demised premises. Whether the value and utility had materially been impaired is an inferential fact to be deduced from proved facts. In the said case the tenant without the consent of the landlord had constructed walls and put up doors herein, which had stopped the flow of air and light. He had removed the doors. The Supreme Court held that the value and utility of the premises has been materially affected. It was further observed by the Supreme Court that “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 the 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 Verandah is not a material alteration.

33. Analysis of the case law cited on behalf of both the parties, as noticed above proposition of law may be summarised as under:

(i) the onus of proving that the tenant has caused substantial damage to the demised premises is upon the landlord;

(ii) landlord must prove that addition and alteration in the tenancy premises is carried out by the tenant;

(iii) tenant has made his construction without the consent of landlord;

(iv) the said construction has materially affected the tenancy premises and further that the construction which had been carried out by the tenant had materially altered the premises;

(v) Court must determine the nature, character of the construction and the extent to which they make changes in the structure of the premises having regard to the purpose for which the premises have been let out;

(vi) landlord has to prove it by cogent evidence and wherever necessary expert witness should be examined;

(vii) an eviction order under Clause (j) could be passed if the tenant has carried out such additions or alterations and structural changes in the tenancy premises which had brought about material impairment in the value and utility of premises;

(viii) every construction or alteration does not impair the value and utility of the building and that construction must be of material nature which should substantially diminish the value of the building either from commercial and monetary point of view or from utilisation aspect of the building;

(ix) a temporary alteration or addition which can be easily repaired without causing damage to the structure is not substantial damage to the tenancy premises;

(x) every change, addition or alteration in the tenancy premises will not invite eviction of the tenant under Clause (j) and that each case would depend upon its own facts; and

(xi) the impairment of the value and utility of the building is to be seen from the point of view of the landlord and not tenant.

34. Examining the facts of the case on the touchstone the above proposition of law it may be noticed that the tin-shed is of temporary nature. It has not been built up by digging foundation or erecting the walls. It has no puce structure. The tin-sheets are resting on the existing walls of the building. May be the girder is used in the erection work but there is no evidence leading to inference that the use of the girder in the erection work has increased the weight upon the load bearing wall to endanger or it has brought about weakness in the existing puce construction of the building. The tin-sheet has not caused any damage to the walls on which it is resting. It can be removed easily without causing damage to the main building. It is not understood as to how the Controller and the Tribunal on these facts could draw an inference that a mere tin-shed covering a portion of the courtyard, or even major portion, could have impaired the value or utility of the premises or could fall within the mischief of substantial damage for which the tenant may be evicted under Clause (j). The additions and alterations which cause impairment in the value and utility of the premises, no doubt, are to be viewed from the point of view of the landlord but temporary shed of the nature which is in existence in the courtyard would by no stretch of reasoning be said to have caused damage much less substantial damage to the demised premises covered by Clause (j) if it is viewed in the light of the case law cited above.

35. The result of the above discussion is that the finding of the Controller and the Tribunal are vitiated and are not sustainable. As a result, the appeal succeeds. The orders of the Controller dated 27.10.1997 and the Tribunal dated 1.4.2002 are set aside. The eviction petition on the ground under Clause (j) of Section 14(1) of the Act is dismissed. However, parties are left to bear their own costs.

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