Atthar Mal (Dead) Through His L.Rs. Vs. Satish Kumar Aggarwal - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - he had failed to prove alterations which might have impaired the value and utility of the premises. consequently, the said plea necessarily has to fail. - in the light of these decisions, if we examine the present case we find that the rent controller and the appellate authority as well as the high court have obviously failed to construe section 13(2)(iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant. 11. these precedents clearly show that before it can be held that by any act of the tenant the value and utility has materially been affected, there should be a structure which does affect the same.v.s. aggarwal, j.1. this is a revision petition filed by atthar mal (hereinafter described as 'the petitioner') directed against the judgment of the appellate authority, ludhiana dated 6.4.1984. by virtue of the impugned judgment, the learned appellate authority had set aside the order passed by the learned rent controller and an eviction order was passed against the tenant-petitioner. atthar mal has died and is presently represented by his legal heirs.2. the relevant facts are that suit property had been let for running a soda water factory. the respondent claimed eviction on the ground that petitioner has not paid or tendered the arrears of rent since 1.6.1978 despite repeated demands and further that the petitioner had committed such acts which had impaired the value and utility of the property. the entire look of the shop is stated to have been changed. as per the respondent, the petitioner had removed the wooden doors and thick wooden partition wall. in its place a permanent pucca wall has been set up. the ceiling has been damaged. a 'bhathi' has been set up. the iron girders have been installed; an almirah has been removed and an iron shutter has been fixed in the door by making holes in the door. he controverted the assertions of the respondent-landlord. plea was raised that no act or omission has been taken by which value and utility of the property has been impaired. it was denied that wooden doors have been removed. as per the petitioner a fire took place which affected the furniture and ceiling but the shop was not damaged. it was denied that almirah has been removed and contention was raised that the respondent-landlord has not placed on record the rent note to spell out as to what was the property that was let.3. the learned rent controller as regards the controversy about non payment of rent held that arrears of rent had been tendered and the ground of eviction did not survive. with respect to the plea that the petitioner had impaired the value and utility of the property, the findings returned were that the respondent had not come to the court with clean hands. he had withheld the rent note. he had failed to prove alterations which might have impaired the value and utility of the premises. it was further concluded that fixing the shutter cannot be held to be material alteration. the respondent preferred an appeal. the appellate authority had set aside the order passed by the learned rent controller. it was held that the rent note has not been produced but the appellate authority went on to hold that a pucca partition wall has been set up. in addition a shutter had been fixed. these two acts has impaired the value and utility of the premises. in this process, the order of eviction followed. aggrieved by the same, the present revision petition has been filed.4. learned counsel for the petitioner urged that the appellate authority has not recorded as to how the findings arrived at by the learned rent controller were incorrect. there is no finding that the petitioner- tenant had set up the partition wall and in absence of the same the evidence can be re-appraised. however, the contention as such has simply to be stated as rejected. it is not necessary that in so many words, it has to be so held. the learned appellate authority has considered the evidence and recorded that existence of wall has been proved. the appellate authority recorded that pucca partition wall has been set up by the petitioner alongwith the shutter. this is clear from reading of the judgment of the appellate authority as a whole. consequently, the said plea necessarily has to fail.5. this is a finding of fact arrived at by the appellate authority. it is based on evidence and, therefore, it cannot be upset in the present revision petition.6. confronted with that position, it has been urged that in any case setting up of the shutter and temporary wall, cannot be termed to be impairing the value and utility of the property. the relevant ground of eviction under the' act reads ':-'section 13. eviction of tenants.- (1) a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this act of otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under section 13 of the punjab urban rent restriction act, 1949 as subsequently amended.xx xx xx xx13(2)(iii) that the tenant has committed such acts as are likely to impair materially the value of utility of the building or rented land, or.'the provisions of law referred to above leaves no doubt that every change is not materially impairing the value and utility of the property. the legislature has used the expression 'materially' which conveys that it should materially affect the building. of course it has to be seen from the point of view of the landlord. but any temporary structural change which does not affect the value and utility of the property cannot be taken to be materially impaired the value and utility of the property. it would be difficult and in fact not proper to give absolute positive guidelines. each case has to be decided on its own merits.7. on behalf of the respondents reliance was placed on the decision from the rajasthan high court in the case of badri narain tak v. m/s shyam narain, 1985(1) rent control reporter 115. obviously this was a decision rendered under the rajasthan premises (control of rent and eviction)act. 1950. herein the tenant had set up a brick wall dividing the shop into two. it was held that it materially altered the premises. the relevant provisions under the corresponding act prevalent under the rajasthan act reads:-'section 13(1)(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as in the opinion of the court has materially altered the premises or is likely to diminish the-value thereof.' keeping in view the said provision, the court concluded that construction of a brick wall by making one shop into two is an alteration which alters the premises and it has been done without the permission of the landlord.8. reliance has further been placed on the decision of this court in the case of harbans sharma v. smt. pritam kaur, 1981(2) rent control reporter 476. this court held that the question as to whether the premises has been materially altered which impairs the value and utility of the premises has to be seen from the point of view of the landlord. in this case the intervening wall had been removed and it was held that the premises have been materially impaired.9. in the case of smt. nirmala v. ishwar chander, 1983(1) rent law reporter 678 there was an open space in front of the premises. the court held that the tenant had no authority to cover the front open space and converting the building into one hall. it would be taken that he had impaired the value and utility of the premises.10. few decisions on the subject from the supreme court can also be taken note of. in the case of om parkash v. amar singh and anr., a.i.r. 1987 s.c. 617, the supreme court was concerned with the question under the u.p. cantonments. (control of rent and eviction) act. the supreme court held that nature of construction is a material fact if it is a temporary or permanent structure. the supreme court concluded:-'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.'in the cited case a partition wall of 6 feet height was set up converting the one hall into two rooms. no foundation has been dug. it was held that it was a temporary wall and it did not make any substantial change in the character of the building. similarly in the case of sh. om pal v. sh. anand swarup (dead by lrs.), 1988 haryana rent reporter 614 the supreme court held:-'in the light of these decisions, if we examine the present case we find that the rent controller and the appellate authority as well as the high court have obviously failed to construe section 13(2)(iii) in its proper perspective and they have failed to apply the correct legal tests for judging the nature of the constructions made by the appellant. as has been repeatedly pointed out in several decisions it is not every construction of alteration that would result in material impairment to the value or the utility of the building. in order to attract section 13(2)(iii) the construction must not only be one affecting or diminishing the value or utility of the building but such impairment must be of a material nature i.e. of a substantial and significant nature. it was pointed out in om parkash v. amar singh, 1987(1) s.c.c. 458 at 463 that the legislature had intended that only those constructions which brought about a substantial change in the front and structure of the building that would provide a ground for the tenant's eviction and hence it had taken care to use the word 'materially altered the accommodation' and as such the construction of a chabutra, almirah, opening of window or closing a verandah by temporary structure or replacing of a leaking roof or placing partition in a room or making minor alterations for the convenient use of the accommodation would not materially alter the building. it would, therefore, follow that when a construction is alleged to materially impair the value or utility of a building, the construction should be of such a nature as to substantially diminish the value of the building either from the commercial and monetary point of view or from the utilitarian aspect of the building.' lastly reliance was placed by the petitioner on the decision of the supreme court in the case of g. arunachalam (died) through l.rs. and anr. v. thondarperienambi and anr., a.i.r. 1992 s.c. 977. this was a decision under tamil nadu buildings (lease and rent control) act, 1960, herein the tenant had affixed the rolling shutters in place of front door of wooden planks. it was held that it did not impair the value and utility of the premises.11. these precedents clearly show that before it can be held that by any act of the tenant the value and utility has materially been affected, there should be a structure which does affect the same. if it is a temporary structure, in that event, ordinarily it cannot be termed that it is a material change to affect the value and utility of the premises.12. herein the wall that has been set up has no foundation. in other words, it is just a structure which does not materially affect the value and utility of the premises. the decision in the case of om parkash (supra) would certainly come to the rescue of the petitioner. as regards setting up of the shutter, it is only a change which is not strictly a structural change which affects the premises or value thereto. if the wooden door is removed and a shutter is placed without it being shown that it damages the property or in other words has affected the value and utility of the premises, will not attract the grounds of eviction. it has not been done in the present case. therefore, the judgment of the appellate authority cannot be sustained.13. for these reasons, the revision petition is allowed and the impugned judgment is sat aside. instead the petition for eviction is dismissed.