Whether landlord can seek eviction decree if there is clause for compensation on account of damage to building?

On reading Clause (e) carefully, it becomes clear that the first part provides that the tenant was allowed to make alterations and partitions of temporary nature in the suit premises for carrying on the business of lodging, boarding and hotel in the entire premises. The second part has two limbs. In the first limb of the second part, it is clearly mentioned that the tenant is not allowed to make any sort of alterations of permanent nature which would cause damage to the building and the second limb of the second part provides that if the tenant would make any such additions and alterations of permanent nature, he would be liable to compensate the landlord. On plain reading of this clause it is impossible to come to the conclusion that there was express or implied consent given by the landlord to the tenant for making additions and alterations of permanent nature in the suit property. In fact, the plain reading of this clause indicates that the tenant is completely prohibited from making any additions and alterations of permanent nature and if he would make such additions and alterations of permanent nature and if that addition would cause damage to the property, the tenant would be liable to pay compensation to the landlord for the damage caused to the building. But only because the damage is not pleaded and the plaintiff has not claimed any compensation that does not mean that the plaintiff had impliedly given consent for such additions and alterations of permanent nature. Firstly, this clause completely prohibits additions and alterations of permanent nature by the tenant and certainly it does not mean any implied authority to the tenant to make additions and alterations. Section 13(1)(b) of the Bombay Rent Act clearly provides that additions and alterations of permanent nature cannot be effected by the tenant without consent of the landlord in writing. So the implied authority or permission is also completely ruled out under Section 13(1)(b) in the present case. As noted earlier, there is no written consent given by the landlord to the tenant for such additions and alterations of permanent nature, and therefore the tenant cannot take a plea that there is implied consent as per Clause (e) of the lease deed.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 449 of 2007

Decided On: 23.01.2008

Sadguru Caterers and Ors. Vs.  Hashmatbi Abdulkadar Shaikh

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2008 (5) Bom CR 230

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Whether tenant can make construction in tenanted premises with oral permission of landlord?

It is, thus, clear from the bare wording of the section itself that the Rent Act looked upon very jealously on a permanent structure made by the tenant on an open plot which was the subject-matter of the lease. The legislature had anticipated that the plea of oral consent, that the plea of estoppel by conduct etc. would invariably be set up in such matters. The intention of the legislature, as expressed by the aforesaid sub-section itself, would make it clear that the legislature did not want to leave any margin for such pleas and it was for that purpose that it was provided that the permission to be obtained from the landlord by the tenant for making a permanent construction, must be in writing. The learned Assistant Judge was certainly wrong in holding that inaction on the part of the landlord since the construction of the permanent structure by the tenant on the suit plot could estop, explicitly or implicitly, the landlord from bringing a suit for possession, on the ground contained in section 13(1)(b). 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition Nos. 2205 of 1981 and 3057 of 1989

Decided On: 18.07.1994

 Vasant Shankar Choudhari Vs. Laxman Balaji Ambore

Hon'ble Judges/Coram:

M.S. Vaidya, J.

Citation: 1996(1) MHLJ 41

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Whether plaintiff can be granted eviction decree if he fails to prove that tenant has made structure of permanent nature?

The dissection of the aforesaid pleadings would show that the plaintiff has neither pleaded absence of written consent not mentioned any of the material facts constituting the erection of the alleged construction on the premises as a permanent structure. No nature of the construction was pleaded in the plaint. The nature of construction or erection on the premises could be permanent, semi permanent or temporary. In order to prove erection or construction of permanent nature, one has to plead material facts and place material particulars so as to establish the nature of construction. No details are to be found in the plaint. The learned Counsel for the respondent, therefore, was right in his contention that on the basis of the averments made in the plaint no cause of action as required under section 13(1)(b) of the Bombay Rent Act was made out by the plaintiff as such no decree for eviction can be passed against defendants-tenants.

He further submitted that the question whether particular construction is a permanent structure within the meaning of section 13(1)(b) of the Rent Act depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in this behalf. The nature of the structure, its mode of annexation, the Intention of the tenant and surrounding circumstances all have to be pleaded to raise an issue whether or not particular structure is a permanent structure for the purpose aforesaid. It is also necessary to plead whether the structure brings about substantial change in the character of the demised premises. What was the object and purpose behind such construction? If the object is not for better or more complete enjoyment of the demised premises, then different consideration will walk in.

17. Apart from the vague pleadings, if one turns to evidence led by the plaintiff then it would further be clear that no evidence was produced in support of the nature of construction.

IN THE HIGH COURT OF BOMBAY

Writ Petiton No. 3645 of 1987

Decided On: 22.02.2001

 M/s. Hotel Rosalia (P.) Ltd.  Vs. M/s. Metro Hotels & Ors.

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Whether tenant can be evicted if he has done construction of latrine in tenanted premises?

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.

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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.

IN THE HIGH COURT OF BOMBAY

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

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