Wednesday, 3 July 2019

Whether court should accept undertaking given by tenants that they are residing in dilapidated building at their own risk?

 First, there is the matter of occupants offering to give an
‘undertaking’. We are conscious that this approach has gained much
currency, especially in the last few years. It is now more or less
routine for lawyers to blithely offer on behalf of their clients an
‘undertaking to continue in occupation at their own risk’. Mr
Damani says so too. We find this unacceptable on facts. These
tenants/occupants, paying paltry or no rent, have so far paid next to
nothing towards maintenance of the structure that they occupy. We
must notice Section 14 of the Maharashtra Rent Control Act, 1999:
14. Landlords’ duty to keep premises in good repair.
(1) Notwithstanding anything contained in any law for
the time being in force and in the absence of an agreement
to the contrary by the tenant, every landlord shall be bound
to keep the premises in good and tenantable repair.


(2) If the landlord neglects to make any repairs,
which he is bound to make under sub-section (1), within
a reasonable time after a notice of fifteen days is served
upon him by post or in any other manner by a tenant or
jointly by tenants interested in such repairs, such tenant
or tenants may themselves make the same and deduct
the expenses of such repairs from the rent or otherwise
recover them from the landlord:
Provided that, where the repairs are jointly made by
the tenants the amount to be deducted or recovered with
interest by each tenant shall bear the same proportion as the
rent payable by him in respect of his premises bears to the
total amount of the expenses incurred for such repairs
together with simple interest at fifteen per cent per annum
on such amount:
Provided further that, the amount so deducted or
recoverable in any year shall not exceed one-fourth of the
rent payable by the tenant for that year.
(3) For the purposes of calculating the expenses of the
repairs made under sub-section (2), the accounts together
with the vouchers maintained by the tenants shall be
conclusive evidence of such expenditure and shall be
binding on the landlord.
(Emphasis added)
There is absolutely nothing presented to us to indicate that the
Petitioners ever resorted to Section 14(2). It is not as if the building
suddenly became so ruinous overnight. The process had to be
gradual, spanning decades. In all that time, not one of these
occupants or tenants have once cared to take any steps to maintain

the structure. Section 14 of the Rent Act casts a duty on a property
owner to maintain the premises in tenantable repair. But it also gives
tenants the right to force those repairs should the landlord be
recalcitrant. These tenants have done nothing. Their own report
shows that extensive repairs are, even according to them, necessary.
They only say that there is no need to tear down the building. They
do not say the building is in such mint condition that it needs no
repairs at all. Indeed, our experience is that when tenants are asked
to contribute essential repairs, these are resisted and it is only when
the building is so completely dilapidated that there is no option but
to have it evacuated, pull down and reconstructed that such offers of volunteering to pay for repairs come to be made.
29. We do not accept that there is any warrant or support for this
‘undertaking jurisprudence’. After all, what is the nature of such an
undertaking? What is its value? Typically, the undertaking is worded
to say the occupants will continue in occupation at their own risk;
that they will not hold anyone liable if there is a calamity; and that
they agree to be liable for any losses to life or property of third
parties including passers-by. We fail to see the value of such an
undertaking. If it is meant or conceived to be in form of some sort of
generalized, non-specific indemnity, then it is utterly useless.
Should there be a mishap to the person giving the undertaking,
perhaps even a loss of life, then that undertaking, no matter what its
verbiage and legalese, serves no purpose at all. In that situation, it
can never be enforced. To put it pithily, when the ‘undertaker’
meets his maker, he is beyond the reach of the law. Therefore, in our
view, the practice of permitting persons to continue in occupation
on the basis of such undertakings has no warrant in law. In fact, it is

contrary to the specific mandate of the law. These “undertakings”,
in the form noted earlier, may hold none responsible, but does that
absolve the public body from the loss caused to a third party (an
innocent passer-by or one residing in the neighbourhood), or give
the public body complete and total immunity from all legal
proceedings or the consequences of any verdict rendered therein?
The answer is obviously no. It is extremely doubtful whether it can
be urged that an undertaking of this nature described above, even if
filed in and accepted by the Court, releases the MMC from the
statutory obligation and duty it owes to the public at large.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1755 OF 2019

 Mahendra Bhalchandra Shah Vs  Municipal Corporation of
Grater bombay



CORAM : S. C. Dharmadhikari & G.S.Patel, JJ.

DATED : 24TH JUNE 2019
Read full judgment here: Click here
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