Unauthorised construction by a tenant does not automatically amount to material impairment of the value and utility of the demised premises. The material impairment of the value and utility of the demised premises is a question of fact to be determined in each case based on the specific facts and circumstances.

M.S.Liberhan, J.

1. This revision petition has come up before us for decision keeping in view the conflict of decisions of this Court in Siri Ram v. Smt. Shila Rani, 1982 PLR 591 : 1982(1) RCR 613 and Sadhu Ram v. Niranjan Dass and another, 1983(2) Rent Control Reporter 446. In the former case the Honble Judge took the view that unauthorised construction by a tenant would itself amount to material impairment of the value and utility of the demised premises. On the other hand in Sadhu Rams case (supra) the view taken is that any construction raised by the tenant by itself would not entitle the landlord to claim his ejectment unless is further proved that such a construction has materially impaired the value and utility of the demised premises.

2. It would be expedient to collate the facts as found on appreciation of evidence by the authorities below and not challenged during the course of arguments.

3. The tenant took a shed measuring 30 x 17 on lease for running an industrial unit. He covered the open space on the back of the shed, removed the weight bearing back wall, the weight of the sheets of the shed is on the wall as no pillars have been constructed and removed the grill in the common wall. It was found that the tenant made material structural alterations in the premises in dispute. The floor of the shed was also broken. The ejectment of the tenant was sought on the ground that the material structural alterations brought about by the tenant have materially impaired the value and utility of the demised premises. Thus, the tenant is liable to be ejected.

4. The Rent Controller as well as the Appellate Authority came to the conclusion, from the facts brought on record as reproduced above, that the alterations amounted to impairing the value and utility of the demised premises and, therefore, the tenant was liable to be ejected.

5. The statute providing the ground of ejectment for material impairment of the value and utility of the demised premises, runs as under :

"13(2)(iii) - that the tenant has committed or caused to be committed such acts as are likely to impair materially the value or utility of the building or rented land."

6. Learned counsel for the tenant challenge the findings of the authorities below on the ground that alterations found by itself cannot form a ground of ejectment. The landlord is bound to prove as a fact that the alterations have materially impaired the value and/or utility of the building by leading cogent evidence. The material impairment of the value and utility of the building is a question of fact and has to be alleged and proved as such. It is further urged that it cannot be said as a principle of law that as and when any material alteration and new construction is made by the tenant, it would necessarily amount to impairment of the value and utility of the demised premises. In order to support his contention, the learned counsel for the petitioners relied on Om Parkash of Meerut Cantt. v. Amar Singh and another, 1987(1) RCR 326 (SC) : AIR 1987 SC 617; Sadhu Ram v. Niranjan Dass and another, 1983 PLR 673 and Walaiti Ram (Sangrur) v. Sohan Lal, 1986(1) RCR 593. Learned counsel for the petitioners further urged that since the landlord has accepted the rent after the changes imputed to the tenant were brought about, it amounted to waiver of his right to seek ejectment on this ground.

7. The question whether the alterations have materially impaired the value and or utility of the demised premises is purely a question of fact or not is no more res integra. The Honble Supreme Court in Sh. Om Pal v. Sh. Anand Swarup (dead by Lrs.), 1988(2) RCR 419 (SC) : Judgment Today 1988(4) SCC 46, observed that whether the construction has materially altered the accommodation is a mixed question of facts and law and should be determined and answered on the application of correct principles. It was observed that same reasoning which led them to conclude that materially altering the accommodation is a mix