Sunday, 8 July 2018

Whether eviction decree can be passed against tenant if he makes construction on premises not part of tenanted premises?

The learned senior counsel appearing on behalf of the Petitioners submitted both the Courts below have held that the construction was made by the tenant not in the demised premises but in respect of the premises which are in the occupation of the landlord. It was, therefore, submitted that the said construction would not fall within the purview of Section 13(1)(b) of the Bombay Rent Hotels & Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act").
 On the other hand, the learned Counsel appearing on behalf of the landlord submits that the word 'premises' was defined under the Act and it was submitted that the said definition was an inclusive definition and it includes the premises which were other than demised premises. 
Perusal of the said provision clearly indicates that the definition of the "premises" is an inclusive definition and includes not only the premises which are let out by the landlord to the tenant but also includes other premises which are not in possession of the tenant. 
 So far as the judgment on which reliance is placed by the learned Counsel for the Petitioner/tenant is concerned, in paragraph 3 of the said judgment, it was alleged by the landlord that the tenant continued the construction work and encroached upon the open space on the western side of the premises, which was not let to the tenant. The said judgment, in my view, nowhere states that if the construction is carried out in the other premises, it would not amount to permanent construction within the meaning of 'permanent construction' under Section 13(1)(b) of the Act. The said judgment, therefore, does not support the submissions made by the learned senior counsel for the Petitioner.

IN THE HIGH COURT OF BOMBAY

Civil Writ Petition No. 935 of 1998

Decided On: 01.04.2011

Pralhad Shantwan Randive  Vs. Munnabhai Girdharilal Dixit and Ors.

Hon'ble Judges/Coram:
V.M. Kanade, J.

Citation: 2011(4) MHLJ 259



1. Heard the learned senior counsel appearing on behalf of the Petitioners and the learned Counsel appearing on behalf of Respondent Nos. 1A to 1C. The Petitioner is the original tenant and the Respondent is the original landlord. For the sake of convenience, parties are referred to as the 'landlord' and the 'tenant'. The landlord filed the civil suit for eviction of the tenant on the ground of default, permanent construction and nuisance. The tenant had filed the written-statement and contended that western side of the wall of the suit premises was in completely dilapidated condition and as such the Municipal Corporation issued notice on 26-1-1976 to the landlord asking him to repair the said wall. It was alleged that since repairs were not carried out by the landlord, the Corporation removed the western side of the wall in July 1976. The tenant, therefore, was constrained to carry out repairs and spent an amount of Rs. 30,000/-towards re-construction. He also filed a suit in the Court of Small Causes, seeking recovery of expenses, incurred by him for the re-construction of the said structure. Said suit, however, was dismissed for want of prosecution on 31-12-1994.

2. The suit filed by the landlord was decreed by the trial Court. Against the said judgment & decree, an appeal was preferred before the District Court and the said appeal was also dismissed. The learned senior counsel appearing on behalf of the Petitioners submitted both the Courts below have held that the construction was made by the tenant not in the demised premises but in respect of the premises which are in the occupation of the landlord. It was, therefore, submitted that the said construction would not fall within the purview of Section 13(1)(b) of the Bombay Rent Hotels & Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act"). It is submitted that both the Courts below have held that construction of 'Mori' by the tenant could not be said to be a permanent construction. It was submitted that construction which was carried out by the tenant for the purpose of keeping the premises in habitable condition would not amount to a permanent construction within the meaning of Section 13(1)(b) of the Act. It was submitted that both the Courts below have not taken into consideration this aspect. Reliance was placed on the judgment of the Single Judge of Gujrat High Court in the case of - Deviprasad Vrajlal Kachhiya v. Chhotalal Narottamdas Panchal and Anr. MANU/GJ/0463/1993 : (1993) 2 GLR 1703. The learned senior counsel for the Petitioners has invited my attention to paragraph 3 and paragraph 21 of the said judgment, in support of his submission. He also invited my attention to the evidence which was given by the Plaintiff and by the Defendants.

3. On the other hand, the learned Counsel appearing on behalf of the landlord submits that the word 'premises' was defined under the Act and it was submitted that the said definition was an inclusive definition and it includes the premises which were other than demised premises. He also submitted that the Defendant has examined two witnesses and both the witnesses have admitted that the construction was made by the tenant/Defendant was a permanent construction. It is submitted that the contractor who made such a construction was examined by the Defendants as their witnesses, also clearly admitted that the construction was made in cement, sand and bricks. It is submitted that as a result of said construction, use by the landlord of his premises was permanently altered and reduced. It was further submitted that the Corporation had granted permission to the tenant only in respect of 'Mori' and the roof. It is submitted that the tenant had erected the western side wall and also southern side wall from the ground floor to the first floor. It is submitted that the ratio of the judgment on which reliance is placed by the learned senior counsel for the Petitioner, would not apply to the facts of present case.

4. I have heard the learned Counsel for the Respondent/ original tenant in the Suit. The premises is defined under Section 5(8), which reads as under

5(8) "Premises" means

(a) any land not being used for agricultural purposes,

(b) any building or part of a building (building let or given on licence separately) (other than a farm building) including

(i) the garden, grounds, garages and out-houses, if any, appurtenant to such building or part of a building,

(ii) any furniture supplied by the landlord for use in such building or part of a building,

(iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does include a room or other accommodation in a hotel or lodging house;

((8A) "premises let or given on licence for business: includes, and shall be deemed always to have included, premises let or given on licence for the purpose of practising any profession or carrying on any occupation therein;)

5. Perusal of the said provision clearly indicates that the definition of the "premises" is an inclusive definition and includes not only the premises which are let out by the landlord to the tenant but also includes other premises which are not in possession of the tenant. The submissions made by the learned senior counsel for the Petitioner, therefore, cannot be accepted. It is admitted position that the tenant made a permanent construction in respect of the southern side wall and no permission to that effect was granted by the Corporation. The tenant has admitted in his cross-examination that the construction was made in cement, sand and bricks and the construction made by him was permanent construction. The contractor (DW 2) has also in his evidence admitted that he made construction to western side wall from ground floor upto one Khana area. He also admitted that the western side wall collapsed while the work of southern side walls had commenced. According to tenant, the Corporation had asked him to construct the western side wall also. He has, however, not produced any documents from the Corporation to support the said submission. Both the witnesses of the tenant, therefore, have admitted that they have carried out permanent construction in the said premises.

6. So far as the judgment on which reliance is placed by the learned Counsel for the Petitioner/tenant is concerned, in paragraph 3 of the said judgment, it was alleged by the landlord that the tenant continued the construction work and encroached upon the open space on the western side of the premises, which was not let to the tenant. The said judgment, in my view, nowhere states that if the construction is carried out in the other premises, it would not amount to permanent construction within the meaning of 'permanent construction' under Section 13(1)(b) of the Act. The said judgment, therefore, does not support the submissions made by the learned senior counsel for the Petitioner.

7. It is an admitted position that no permission was granted either by the landlord or the Corporation to the tenant to carry out said construction of the southern side wall and the western side wall. Both the Courts below, in my view, have rightly held that construction of 'Mori' does not amount to permanent construction within the meaning of Section 13(1)(b) of the Act. There is concurrent finding of fact recorded by both the Courts below, and therefore, while exercising writ jurisdiction under Article 227 of the Constitution of India, this Court is not expected to substitute its own view to the view taken by the Courts below. No case, therefore, is made out for interfering with the orders passed by both the Courts below. Writ Petition is accordingly dismissed.

8. At this stage, the learned senior counsel appearing on behalf of the Petitioner seeks stay to the execution of the decree for a period of 4 weeks. His request is declined.



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