JUDGMENT
V.K. Jhanji, J.
1. This is tenant’s revision directed against the order of ejectment passed against him by the appellate Authority.
2. Landlord (respondent herein) filed an ejectment application against the tenant (petitioner herein). Ejectment of the tenant was sought on the ground that he has impaired the value and utility of the premises in question. It was alleged that the tenant without the consent of the landlord has made structural changes which are likely to impair the value and utility of the shop. It was alleged by the landlord that the tenant has changed the front of the shop by raising two pucca brick columns on the chabutra. The said brick columns are fixed with cement to the Chabutra beneath it and are of cement lintel resting on the said two columns being also of permanent nature; that the length of the shop has been extended by two feet and about 11.5 in front. Shutter has been fixed in front of the shop changing the internal area of the shop, and that the open space in front of the shop has been covered and included in the shop. The material used and the nature of construction is such that it is permanently attached to the shop. The Chabutra which already had its foundation on two pillars beneath it has been burdened with extra weight for use of the front portion in the shop. Upon notice, ejectment petition was contested by the tenant. Tenant pleaded that two columns were raised and rolling shutter installed about 8 years prior to the filing of ejectment petition with the consent of the landlord. Tenant pleaded that tenant had been paying licence-fee to the Municipal Committee regarding portion of the chabutra which in fact belongs to the Municipal Committee. Tenant further pleaded that there was no impairment of value and utility of the shop in question. Tenant also pleaded that landlord had been receiving rent for almost 8 years after the construction and therefore, the ground of ejectment that tenant has impaired the value and utility of the premises, would be deemed to have been waived. Ejectment petition was dismissed by the learned Rent Controller primarily on the ground of acquiescence and waiver by the landlord. Rent Controller held that landlord was aware of the construction and with full knowledge received rent and therefore, it would be presumed that he had consented to the construction. However, on appeal filed by the landlord, appellate Authority has reversed the order of the Rent Controller and resultantly, ordered ejectment of the tenant. Hence, the present revision petition by the tenant.
3. It has firstly been argued by learned counsel for the tenant that the mere act of raising columns on the Chabutra and fixing roof shutters by itself cannot be termed to be a construction of such substantial nature affecting the structure of the shop which can give rise to any cause of ejectment to the landlord. Counsel contended that construction raised by the tenant is trifle in nature and cannot be termed to be construction impairing the value and utility of the shop.
4. A reading of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 (in short the 1949 Act) would show that if a tenant commits such acts as are likely to impair materially the value or utility of the building, then he would be liable to be evicted. May be, by such acts the value of the building has gone up, but so far as utility is concerned it has to be seen from the point of view of the landlord of the premises and not of the tenant. For instance, if the owner wanted front portion of the premises to remain open and did not raise any construction thereon, the tenant cannot be allowed to change the nature of the premises and the moment he makes the changes, the utility of the building is certainly impaired from the view point of the landlord because there is no open space which he had left out in front of the building.
5. In Om Parkash v. Amar Singh and Anr., A.I.R. 1987 S.C. 617, the words materially altered under Section 14(c) of the U.P. Cantonments (Control of Rent and Eviction) Act, 1952, came up for consideration before the Hon’ble Supreme Court. While interpreting expression ‘material alterations’, their Lordships held :
“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 been let out to the extent. The Legislature intended that only those constructions which bring about substantial change in the front and structure of the building should provide a ground for tenants’ 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 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 structure 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 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. 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.”
6. In Vipin Kumar v. Roshan Lal Anand, (1993-2)104 P.L.R. 349 (S.C), the Hon’ble Supreme Court in the context of Section 13(2)(iii) of the 1949 Act held that once the landlord proves the factum of material alterations made by the tenant, the Court could infer its adverse effects on the value and utility of the building keeping in view the nature of alterations. In this case before the Supreme Court, tenant had constructed a wall in the Verandah and put up a door. On finding that flow of air and light had been stopped, their Lordships of the Supreme Court held that the value and utility of the building has been materially affected.
7. In Gurbachan Singh and Anr. v. Shivalik Rubber Industries, (1996-2)113 P.L.R. 694 (S.C), the Hon’ble Supreme Court again considered the provisions of Section 13(2) (iii) of the 1949 Act and observed :
“A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value or utility of the building or rented land. The meaning of the expression “to impair – materially” in common parlance would mean to diminish in quality, strength or value substantially. In other words to make a thing or substance worse and deteriorate. The word “Impair” cannot be said to have a fixed meaning. It is a relative term affording different meaning in context and situations. Here in the context the term “impair materially” has been used to mean, considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or affected suggesting impairment. Further the use of the word “value” means intrinsic worth of a thing. In other words utility of an object satisfying, directly or indirectly, the needs or desires of a person. Thus, the ground for eviction of a tenant would be available to a landlord against the tenant under Section 13(2)(iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words the impairment of the worth and usefulness or the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else.”
8. In Gurbachan Singh’s case (supra), tenant had removed the roof and partition walls of 5 shops and constructed a lintel roof. He covered the front verandah by masonary work. Tenant was ordered to be evicted. In the present case, landlord has successfully proved that tenant has made substantial additions and alterations. On the basis of alterations made by the tenant, appellate Authority has given a firm finding that tenant has impaired the value and utility of the premises. It has been held that the tenant by committing said act has affected entry to the staircase leading to the upper-storey of the shop; iron rods have been embedded in the lintel for raising I Parchhati; additional construction has affected entry of light and air in the shop. Keeping in view the nature of construction made by the tenant, I am of the view that the appellate Authority has rightly determined the issue in regard to impairment of value and utility of the premises in favour of the landlord.
9. Mr. Vinay Mittal, Sr. Advocate, counsel for the tenant, next contended that no grievance in regard to impairment of value and utility of the premises had been made by the landlord because construction was made with the consent of the landlord. He also contended that even if consent is not proved, even then the landlord is not entitled to seek eviction of the tenant as the landlord has been accepting rent from the tenant even after the construction and therefore, he would be deemed to have acquiesced in the said construction. It is contended that during the intervening period, two petitions were filed by the landlord, but in none of these petitions the landlord on the basis of construction made by the tenant, took the ground, of impairment of value and utility of the shop. In answer to submissions, counsel for the landlord contended that there is no proof on record that landlord had given consent to the construction. In regard to acquiescence by the landlord, it is contended that at no stage, landlord acquiesced to the changes made by the tenant. Counsel contended that in fact it is the case of the landlord that the moment the changes were made, he objected to it and the tenant agreed to vacate the premises but later, refused to do so.
10. Although, the tenant stated that he raised construction with the consent of the landlord, but there is no evidence on record to prove that he had so with the consent of the landlord. In absence of proof of express consent of the landlord, it has rightly been held by the appellate Authority that landlord had not consented to the construction. The doctrine of acquiescence is being sought to be applied against the landlord solely on the ground that he kept silent for a long period after the alleged act of impairment. It is only on this count, it is being contended that the landlord waived his right to seek ejectment of his tenant on the ground of impairment of value and utility of the premises.
11. For applying the doctrine of acquiescence, the conduct of a party must be such that assent may reasonably be inferred from it.
12. In Wilmott v. Barber, L.R. 15 Ch.D.96, 105(1880) in regard to acquiescence by conduct, it was observed ;
“A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What then are the elements or requisites necessary to constitute fraud of that description? In the first place, the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money, or must have done some act (not necessarily upon the defendants’ land) on the faith of this mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legai right, must know of the plaintiffs mistaken belief of the rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly, or by abstaining from asserting his legal rights.”
13. In De Bussche v. Alt, L.R. 8 Ch.D. 286(1878) it was observed:
“If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This, as Lord Cottenham said in the case already cited, is the proper sense of the term “acquiescence”, and in that sense may be defined as quiescence under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or released under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although under the name of laches it may afford a ground for refusing relief under some particular circumstances; and it is clear that even an express promise by the person injured that he would not take any legal proceedings to redress the injury done to him could not by itself constitute a bar to such proceedings, for the promise would be without consideration, and therefore not binding.”
14. In Dawsons Bank Ltd. v. Nippon Mankwa Kabushihi Kaish (Japan Cotton Trading Co. Ltd.), 1935 Privy Council 79, their Lordship while considering the question of waiver, observed:
“On the other hand waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right.”
15. In Jagat Ram Sethi v. Rai Bahadur D.D. Jain, A.I.R. 1972 S.C. 1727, where lessor had not given express consent for the constructions to be raised by the lessee but he knew about their existence, their Lordships of the Supreme Court held that mere inaction on the part of lessor would not entitle the lessee to resist the suit on the ground of estoppel. It was observed:
“The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of lessor and from instituting the suit for ejectment.”
16. It is in reference to the law laid down in the afore-mentioned judgments, the conduct of the respondent is to be seen. As noticed earlier, the case of the landlord throughout had been that he had objected to the changes made by the tenant and the tenant agreed to vacate the premises, but later refused to do so. It is undisputed that after the tenant had raised construction, neither increase in rent was demanded nor was it increased. In fact, landlord at no stage had encouraged the tenant to spend money in raising construction either directly or by abstaining from asserting his legal rights. The moment the tenant raised construction, landlord objected to it. There was no lapse on his part to object to the construction raised by the tenant which could be taken as signifying his acceptance or consent. Simply because for some years the landlord did not file petition for ejectment on the ground of impairment of value and utility of the premises, is no ground to hold that landlord had acquiesced or waived his right to seek ejectment of his tenant on this score. If the tenant had chosen to make unauthorised construction at his own risk and the landlord did not take action for some time, it would not mean that landlord had acquiesced or waived his right. The filing of two petitions by the respondent during the intervening period without taking the ground of impairment of value and utility of the premises too cannot be regarded as waiving of his rights, particularly when it is conceded that the said petitions were filed only for claiming rent which the tenant had fallen in arrears.
17. The Division Bench judgment of this court in Ved Parkash v. Darshan Lal Jain, (1986-2) 90 P.L.R. 90, cited by learned counsel for tenant, has no application to the facts of the present case as in the said case, landlord had not objected to the raising of construction by the tenant and received rent for a long period from the time he gained knowledge of removal of wall by the tenant. This, however, is not the position in the present case. As already seen, the moment the tenant raised construction, landlord objected to it.
18. For the reasons recorded above, the revision being without any merit shall stand dismissed. However, tenant is allowed three months time to vacate the premises provided the tenant deposits the entire arrears of rent including that of three months, within one month from today and also files an undertaking to the effect that he shall hand over the vacant, possession of the premises to the landlord on the expiry of aforesaid period of three months. There shall be no order as to costs.
