On perusal of the record, at the outset, it may be observed that there is no dispute that the petitioner had undertaken construction of a latrine in the living room of the suit premises. Further the evidence on record is absolutely clear, to show that as construction of a toilet was undertaken by installing a cement concrete wall. The petitioner in the written statement has also admitted that he had built one support wall. Thereafter, to create a latrine, he took the advantage of the support wall and used the original wall of the suit house. Further the petitioner had put up a wooden door to the latrine from the front side. The petitioner also caused a pit to be dug for installing what is called as a Gopuri toilet system and put cement tiles on the said pit. The mason and the carpenter who were employed by the petitioner for this construction in their evidence deposed that the construction was of a permanent nature being of cement and lacerated stones. As regards the case of the petitioner, as urged before the trial Court, that on medical advice he was in need of a toilet in the house, the learned appellate Judge would be correct in recording a finding that this was not substantiated as there was no evidence in that regard. Further the petitioner's case, that in the year 1989 Malvan Municipality had required the respondent and the petitioner to have latrine of this nature, also stood unsubstantiated due to lack of evidence. The learned appellate judge rightly held that the petitioner's case that it was a temporary toilet was not a true and correct, inasmuch as the petitioner-tenant had recovered from the ailment and attended his service since 10 March 1994 and was traveling seven kilometers from the suit house, which showed that the intention of the petitioner was to use the said latrine permanently. The rigour of this contention as made on behalf of the respondent-landlord had completely missed the attention of the learned trial judge, in coming to the conclusion that the respondent would not be entitled to a relief in the suit. In any event, the requirement of law that the prior permission of landlord is necessary, before putting construction of a permanent nature as Section 13(1)(b) of the Bombay Rent Act would contemplate, was also completely overlooked by the learned trial Judge, only on assumption that the petitioner had undertaken such construction on medical advice though the construction was of permanent nature. Such approach was truly erroneous leading to a perversity. It appears that the learned trial judge was swayed away by the contention of the petitioner on medical issues rather than the implication and requirement of law in the clear facts which had emerged on record.
12. Having perused the judgment and decree as passed by the learned appellate Judge, it is clear that the findings as recorded are based on evidence. The learned appellate Judge has appropriately held that the nature of the construction in question as undertaken by the petitioner was a permanent construction. Further, it is rightly observed that there was no permission sought by the petitioner either from the respondent-landlord or from the municipality to undertake the construction. More significantly as observed by the learned appellate judge, such construction clearly offended the requirement of Section 13(1)(b) of the Bombay Rent Act, as the construction was very peculiar namely of a latrine in the living room. It may be observed that to undertake construction of a toilet in the living room, as proved, was sufficiently a serious act on the part of the petitioner-tenant leading to a damage and waste of the suit premises. Such construction would have ill-effects as rightly held by the appellate court, on the structure of the suit premises. The clear contents of the "Explanation" to Section 13(1)(b) in this context, would become relevant which in no uncertain terms exclude construction of a latrine. The legislature has categorically excluded certain constructions which could be said to be permissible constructions protecting the tenants from rigors of Section 13(1)(b) of the Bombay Rent Act. In view of the clear statutory mandate flowing from the said provision, the learned appellate judge has appropriately criticized the approach of the learned trial Judge in dismissing the suit. Thus it may be observed and with certitude that the conclusion of the learned trial Judge was offending the legal requirements and was rightly reversed by the appellate Court. I do not find any perversity in the findings as recorded by the learned appellate Judge, on any count.
13. As regard the reliance on behalf of the petitioner on the decision of the learned Single Judge of this Court, in Somnath Krishnaji Gangal Vs. Moreshwar Krishnaji Kale & Ors. (supra), in my opinion, this decision would not be applicable in the facts of the present case. The decision arose in the context where the issue concerned removal of a window on the western wall of the premises occupied by the petitioner-tenant therein. There was a prior history that on the night between 19 and 20 July 1976, there was a theft and this resulted in removal of the window. The tenant had done so, with a view to have additional safety and security, and thus closed the window, it in this context the Court set out in paragraph 21 as to which constructions can be said to be of a permanent nature so as to attract the provisions of Section 13(1)(b) of the Bombay Rent Act. There cannot be any dispute on the propositions set out by the Court in paragraph 21 of the said decision. The question is as to whether any of them would be applicable in the facts of the case. As discussed above, the construction undertaken by the petitioner in the present case was of a latrine in the living room which by no stretch of imagination on the evidence as come on record could be said to be of a temporary nature so that the provisions of Section 13(1)(b) of the Bombay Rent Act would not get attracted.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 3789 of 1998
Decided On: 24.07.2017
Janardan Bhaurao Kelkar and Ors.Vs. Mukund Laxmikant Mudras
Hon'ble Judges/Coram:
G.S. Kulkarni, J.
