Ram Kishan vs 7th Additional District Judge and Others

S.U. Khan, J.—This writ petition has been filed by the tenant. Suit of the landlord-Respondent No. 3 for ejectment has been decreed against the Petitioner by both the courts below only on the ground of damage to the building and structural changes alleged to have been made by him as defined u/s 20(2)(c) of U.P. Act No. 13 of 1972. The suit was numbered as S.C.C. Suit No. 62 of 1983 and was decreed on 14.5.1986 by J.S.C.C., Ghaziabad (Annexure-1 to the writ petition). The Revision filed by the tenant was registered as S.C.C. Revision No. 69 of 1986 and was dismissed on 3.11.1987 by 7th Additional District Judge, Ghaziabad, copy of which is Annexure-2 to the writ petition. The finding with regard to the changes introduced by the tenant is that he has constructed a show case in the veranda in front of the shop which is affixed in partition wall through screws and it cannot be removed without opening the screws and has placed a wooden partition frame which is affixed through screws. Both the courts below have held that it is immaterial whether structure raised is of temporary or permanent nature. The trial court has placed reliance upon 1969 ALJ 477 and the Revisional Court on 1986 ARC 457. In both these authorities, it has been held that "It is also immaterial whether the structure raised is of a temporary or a permanent nature."

Similar view was expressed by a Full Bench authority of this Court in Sitaram Sharan and Another Vs. Johri Mal and Another, However, the said Full Bench authority has been over-ruled by the Hon''ble Supreme Court in Om Prakash Vs. Amar Singh and Others, and it has been held in para 9 that : "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 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 is on temporary basis which do not ordinarily affect the form or structure of the building, as it can easily be removed without causing any damage to the building."

In view of the above, wooden show case and wooden partition affixed in the walls through screws cannot be said to be such construction or alteration, which is covered, by Section 20(2) (b) or (c) of U.P. Act No. 13 of 1972.

In the aforesaid authority, it has also been held that whether particular construction falls within Section 20(2) (b) or (c) or not is a mixed question of law and fact. What constructions have been made, is finding of fact, which cannot be interfered with in exercise of writ jurisdiction. However, whether the constructions found by the courts below to have been made by the tenant are covered by the aforesaid Clauses (b) and (c) of Section 20(2) of the Act or not is the question of law, which can be seen by the Court. Learned Counsel for the Respondent placed reliance upon certain authorities which are discussed below : 1. 1986 (2) ARC 457.-This authority was relied upon by the Court below also. Firstly, in the said authority the tenant had placed a shed to cover of corrugated asbestos while in the instant case it is merely a show case and secondly in view of the later Supreme Court judgment of 1987 (supra) the said authority cannot be said to lay down the correct law, with regard to the temporary construction being included in the definition of construction under the aforesaid Clauses (b) and (c) of Section 20(2).

1983 ARC 145.-In the said authority the tenant constructed two rooms over the roof of accommodation. In view of this, it is not applicable to the facts of the instant case.

1988 (2) ARC 243 (SC).-In that case the tenant had put up a Chappar and then replaced it with a tin shed fixed on pucca pillars. He also raised Kuchcha Platform and made it permanent. The said constructions were not temporary in nature, under the facts and circumstances of the case, the said authority is not applicable to the instant case.

1993 (1) ARC 493.-In this case after raising walls over Chabutra tin roof was put thereupon by the tenant. On the facts of this case, this authority is not applicable.

1987 (2) ARC 411.-In the said authority the tenant constructed eight rooms. On facts the said authority is not applicable to the instant case.

Authority in 1983 (2) ARC 210 and Brijendra Nath Bhargava and Another Vs. Harsh Wardhan and Others, cited by the learned Counsel for the Petitioner fully support the view, which I have taken.

Accordingly, the petition is allowed. Judgment and decree passed by J.S.C.C. and judgment and order passed by the Revisional Court, dated 14.5.1986 and 3.12.1987, respectively, are quashed. The suit of the Plaintiff-Respondent is dismissed.