Sunday, 24 September 2017

Whether tenant can be evicted if he has done construction of permanent nature without permission of municipal corporation?

Insofar as the finding on the issue of carrying out permanent construction in the suit premises without written consent of the plaintiff is concerned, the learned trial Judge has taken into consideration the evidence of the Constituted Attorney of the plaintiff, wherein she has stated that defendant has closed the western side gallery by putting the grill and the door and removed the old doors. She has further stated that for access to the said premises, there was door from eastern side and defendant has put new doors from western side for access to the suit premises. The learned trial Judge also relied on the photographs, which are at exhibit 41 to 46 and negatives are at exhibit 47. The learned trial Judge has further considered the evidence of the plaintiff, that the construction on the western side gallery is on the land a measuring 13X4 feet and the construction of northern gallery is on the land admeasuring 14X4 feet. It is to be noted that defendant has flatly denied making such construction. It is to be noted that it is the case of the defendant that the plaintiff and her son permitted the defendant to put iron rods to the galleries and windows of the suit premises. However, the learned trial Judge found that, what was required under Section 13(1)(b) of the said Act was a written consent and since the defendant had not placed on record any such written consent, the contention of the defendant could not be accepted. The learned trial Judge in this respect has relied on the judgment of the learned Single Judge of this Court Somnath Krishnaji Gangal vs. Moreshwar K. Kale & ors. {MANU/MH/0707/1994 : 1995 MLJ 675}. However, the learned Appellate Court coming to an erroneous conclusion has observed that, the said grills were for safety purpose and the same are not permanently injurious to the suit premises and saved by explanation to Section 13(1)(b) of the Bombay Rent Act. In this respect, it will be relevant to refer to the judgment of the learned Single Judge of this Court in the case of Dr. C.C. Yi vs. Smt. Jankidevi An. Gupta & ors. {MANU/MH/0324/2001 : 2001 (3) ALL MR. 324}. The learned Judge observed in paras 24 and 25 thus:

24. Apart from the aforesaid endorsement of the findings of the Courts below, if, each item of construction is taken into account separately, even then no fault can be found with the findings of the Courts below. The construction and erection of loft, if viewed, taking into account the mode, degree of annexation and intention of the parry putting up the structure, it can hardly be said that it is not a construction of permanent nature or a permanent structure. It has brought a substantial improvement and change in the nature and form of the accommodation. The loft appears to have been constructed without prior permission of the Municipal Authorities. As a matter of fact, under the Standardised Building Byelaws and Development Control Rules for A Class Municipal Councils of Maharashtra, such construction needs prior permission of the Municipal Council. No material was placed on record to show that any such prior or subsequent permission was obtained. The construction of Potmala or loft has an effect of increasing load on the wall on which it was constructed and can prove fatal to the wall or the structure on which additional load was created. This single act of permanent construction is sufficient to sustain the findings of both the Courts below in this behalf.

25. The second item of construction i.e. removal of wooden doors and replacement thereof by plywood doors; even if considered separately, the result cannot be different. Once the door is fitted to the permanent structure, it becomes part of the immovable property, viz. building. It does not remain a movable item or a distinct item of furniture. Therefore, removal of door or replacement thereof is nothing but a change in the permanent structure. The judicial note can always be taken of the fact that durability of wooden doors is much more than that of the plywood doors. Life of the plywood doors cannot match with that of wooden doors. Thus, this act of tenant has also been prejudicial to the interest of the landlord and has diminished the value and life of the doors and consequently of the suit premises. As such, the act of replacement of the wooden doors with that of plywood doors that too without written permission of the landlord has rightly been treated as an act in violation of Section 13(1)(b) of the Act by both the Courts below.

The construction which has been carried out by the defendant has been reproduced by me in earlier paragraph 4 of this judgment. In view of the judgment of the learned Single Judge of this Court cited supra, even removal of wooden door and replacing them by plywood door without consent and construction of loft by making Potmala, has been held to be a construction of permanent nature. Undisputedly, since the construction referred herein above was made by the defendant without obtaining the written consent of the landlord, the finding of the learned trial Court in that regard could not have been unseated by the learned Appellate Court.

Writ Petition No. 5202 of 2002 with Civil Application No. 673 of 2013

Decided On: 10.05.2013

 Smt. Sudha Sumant Barve Vs. Smt. Ranjana Ramesh Padhye

Hon'ble Judges/Coram:

B.R. Gavai, J.
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