On the basis of various decisions surveyed above, to decide whether a particular construction erected by tenant can be characterized as one of permanent nature for the purposes of section 13(1)(b), tests which may be applied are summarised as under:
(i) The material used in the structure, durability of the structure and the very nature of it are dependable criteria;
(ii) What may be called as "the damage test" or "the test of removability". This test emanate from the provision of section 13(1) (b) itself, more particularly from the Explanation thereof. If structure in question cannot be removed without causing a serious damage to the premises, such structure will be categorised as permanent structure;
(iii) The identity test. If the structure changes the whole identity of the rented premises, the same is also a test applicable. In other words, it is a test of offending structure vis-a-vis original structure of the premises. In this, the manner and method of structure erected and the dimensions of the structure, etc., would become relevant in addition to the type of structure itself;
(iv) The intention of the tenant in erecting the structure. It is also a criteria whether the use of the structure/construction is intended to last-till-tenancy-lasts;
(v) The structure erected is without landlord's consent given in writing.
8.1 Considering the kind and nature of the construction made by the tenant in the instant case, it satisfied all the above tests to invite mischief under section 13(1)(b). The tenant cannot evade the liability of eviction.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 419 of 2004
GHEEWALA SHANKERLAL MAFATLAL Vs GHEEWALA CHANDRAKANTBHAI VALJIBHAI
CORAM: MR.JUSTICE N.V.ANJARIA
Date : 26/07/2013
1. Aggrieved applicant is the original landlord. He is aggrieved because of the fact that he earned decree of eviction against the tenant before the Trial Court under Section 13(1)(e) of the Act, however, the said decree came to be erased by the lower Appellate Court. Therefore, the applicant has challenged the judgment and order dated 15th September, 2004 of learned Joint District Judge, 3rd Fast Track Court, Patan being Regular Civil Appeal No. 74 of 2002 (Old No. 59 of 1999), by filing the present Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').
2. Gathering the relevant facts at the outset, the applicant herein instituted Regular Civil Suit No. 28 of 1992 before the Court of learned 2nd Joint Civil Judge (J.D.), Patan seeking decree of eviction on the grounds of arrears of rent as well as on the ground that tenant had put up permanent construction in the premises without his permission. The ground of erecting permanent structure under Sec. 13(1)(b) of the Act was the only ground survived before both the Courts below.
2.1 It was the case of the plaintiff-landlord in the plaint that house bearing No. 4/2/34/1 owned by him situated in the Shalviwada-Gheewala street in the town of Patan was rented to the defendant. Amongst the conditions of the tenancy, it was also a condition that the tenant shall not undertake any construction in the premises without permission of the landlord. It was the case that initially the defendant-tenant wanted to put up door on the North-West side of the house and construct a latrine. For that he had sought permission from the Nagar Palika to construct latrine on the Otta on the North-West side of the premises, which was not granted by the Nagar Palika. It was further stated by the plaintiff that thereafter the tenant proceeded to construct latrine on the South-West corner of the property by destroying part of the wall to place a door therein and construct a latrine inside the room. It was, therefore, contended by the landlord that he had incurred liability of eviction.
2.2 By filing written statement at Exhibit 11, suit was contested by the tenant inter alia contending that construction was not of a permanent nature and that it was made under the World Bank Scheme. It was denied that thereby the landlord was entitled to get the possession of the premises on that ground.
2.3 From the facts on record, it came out that suit premises rented to the defendant comprised of two rooms'. In that house, the main door was on the Northern side whereas other door had an opening on back side facing the South. It was the case of the landlord that in the South-West wall, another door was placed to provide entry therefrom to the latrine constructed by erecting a partition wall inside the room.
2.4 The Trial Court, in its judgment noted the kind and nature of construction with elaboration. It recorded on the basis of evidence on record before it that latrine was made by installing partition wall with use of bricks and was cemented. It was observed that from the photographs (Exh. 61, 66 and 67) proved by Exhibit 68, it was demonstrated that a new door was put up. Upon the appreciation of testimonial evidence of plaintiff himself, who examined himself at Exhibit 63, and one Manharbhai Laljibhai, employee of Municipality, who deposed at Exhibit 44, and considering the panchnama (Exh. 45) of the place as well as direction available from the photographs, the Court recorded that back side of the wall was removed in part and wooden framed door was fitted therein. It was noted mat two-and-half feet portion of the wall was removed and thereby entry was provided to the latrine. Again the latrine was constructed by dividing one of the only two rooms of the premises. The lower Appellate Court took view that conclusion of the Trial Court that the construction would weaken the wall was not justified and further that it was not of a nature which would seriously damage the premises at the time of removal. It, therefore, held mat construction was not one which could be characterised as permanent one.
3. Heard learned advocate Mr. Mehul Sharad Shah for the applicant-landlord and learned advocate Ms. Mohini Bhavsar for learned advocate Mr. Bharat Jani for the respondent.
3.1 Learned advocate for the applicant submitted that the very nature of construction was such that it was of permanent kind. He submitted that when Southern side wall was broken and a latrine was constructed with use of cement and bricks, the only conclusion, as rightly reached by the Trial Court, was that it fell within the ambit of Section 13(1)(b) of the Act and it amounted to breach of condition of tenancy. It was submitted that the said construction was without landlord's consent and inviting the decree for eviction was rightly passed by the Trial Court. He assailed the judgment of the lower Appellate Court by submitting that the lower Appellate Court had overlooked the nature of construction and adverted to the peripheral consideration to reverse the decree passed by the Trial Court.
3.2 Learned advocate for the applicant relied on the decision in Pushpa Mayee Dasi and others v. Jyotsna Daw (SMT) and others MANU/SC/8110/2007 : [(2008) 1 SCC 532 : (AIR 2007 SC (Supp) 1158)] to submit that damage to the premise was the material test to judge whether the construction was permanent or not. He next relied on the decision in Vitthal N. Shetti and another v. Prakash N. Rudrakar and others [MANU/SC/1052/2002 : 2002 (8) SCALE 595] by pointing out that in that case the construction of dining hall, kitchen and lavatory was found to be of permanent nature by the Court. He thereafter relied on decision in M/s. British Motor Car Co. v. Madan Lal Saggi (Dead) and another MANU/SC/0986/2004 : [2004 AIR SCW 6534 : (AIR 2005 SC 240)], from the ratio of which he submitted that the way the premises was altered by constructing a latrine and putting up a door, it would diminish the value of the property. Another decision in Venkatlal G Pittie v. Bright Bros. Pvt. Ltd. MANU/SC/0824/1987 : [(1987) 3 SCC 558 : (AIR 1987 SC 1939)] was relied on by the learned advocate for the applicant. Finally he relied on the decision in Purshottam Das Bangaur v. Dayanand Gupta MANU/SC/0925/2012 : [(2012) 10 SCC 409 : (AIR 2013 SC 465)].
3.3 On the other hand, learned advocate for the respondent contended that the acid test to judge whether the construction is of permanent nature or not within the meaning of Section 13(1)(b) is that, it has to be such, that it could not be removed without causing serious damage to the premises. It was submitted by her that judgment of the Trial Court did not contain such a finding and the said aspect was duly noticed by the lower Appellate Court to reverse the judgment of the Trial Court and passed decree of eviction. She submitted that, finding that the construction would weaken the wall was imaginary and without any basis. She emphasised that in the facts of the case, construction could not be termed as a permanent nature for the purpose of Section 13(1)(b).
3.4 It was next submitted by placing reliance on the decision in Bhavarlal Ganeshram v. Jasiben wd/o. Ishwarlal Ramchand and others [MANU/GJ/8166/2006 : 2006 (3) GLR 2230] that unless landlord proved by evidence of expert witness on the nature of construction, the Court could not conclude that the construction alleged was of permanent nature to make it a ground of eviction. Learned advocate also placed reliance on decision in Deviprasad Vrajlal Kachhiya v. Chhotalal Narottamdas Panchal and another [MANU/GJ/0463/1993 : 1993 (2) GLR 1703 : (1995 AIHC 205)]. Another decision in Vora Kadarbhai Majidbhai v. Mansuri Jusabhai Shakurbhai and others MANU/GJ/1108/2001 : [2001 (3) GLH 3 : (2001 AIHC 2345)], and particularly in paragraph 15 thereof was relied on. Learned advocate for the respondent also submitted that since in the structure erected by the respondent, a partition wall was constructed, it would fall within the compass of Explanation to Section 13(1)(b) so as not to be treated as permanent structure. In that regard, decision in Vora Kadarbhai (supra) was relied on.
4. Having taken note of relevant facts involved in the case and having considered the controversy and contention raised by both the sides, adverting now to consider Section 13(1)(b) of the Act, the said provision provides that landlord shall be entitled to have possession of the premises if he satisfies the Court with the same as otherwise provided in Section 23-A of the Act, tenant has erected a permanent structure in the premises without his consent in writing. Explanation to the Section inter alia says that for the purpose of clause (b), construction of partition wall, door or lavatory or filing of kitchen stand or such other alteration made in the premises, as can be removed without seriously damaging to the premises, would not be deemed to be a permanent structure. What amounts to a permanent structure within the meaning of Section read with explanation has to be considered in light of the said provision in given set of facts.
4.1 Adverting now to the question as to what could be characterized as a permanent structure for the purpose of applicability of Section 13(1)(b). In Pushpa Mayee MANU/SC/8110/2007 : (AIR 2007 SC 1158) (supra), the Apex Court highlighted nature of damage which the premises would suffer at the time of removal of the structure is one of the tests. In Dalsukhrai G. Ghelani, Nasik City v. Bhikhalal Harilal Mashru [MANU/GJ/0524/2000 : 2001 (1) GCD 505 (Guj)], the construction was one where wall was erected by the tenant with the help of bricks, cement, stone and it was a separate wall. The said wall was raised right from the foundation after demolishing the wall. The Court considered the tests of removability. It was observed as under:
.... even the test of removability will indicate that even by demolishing the new structure raised by the tenant the whole identity of the old structure let out to the tenant has lost its existence. Consequently if the structure raised by the tenant is to be demolished the identity or the whole tenanted accommodation will be changed and the old accommodation has already been damaged.
4.2 In Purshottam Das Bangur (MANU/SC/0925/2012 : AIR 2013 SC 465) (supra) wherein the Apex Court considered the term "permanent structure" occurring to in Section 108(p) of the Transfer of Property Act, 1882 for the ground of eviction under the rent laws. In that case, which was under the West Bengal Premises Tenancy Act, 1956, the Court observed, 'To sum up, no hard-and-fast rule can be prescribed for determining what is permanent or what is not. The use of the word "permanent" in Section 108(p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term "permanent" does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108(p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly, the purpose for which the structure is intended is also an important factor that cannot be ignored. (Para 20)
4.3 In that case, the tenant had without consent of the landlord, replaced tin roof of Kitchen and store room with a concrete slab and had also built a brick and mortar passage. The Apex Court proceeded to state--
Applying the above tests to the instant case the structure was not a temporary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the respondent occupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease. The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within the mischief of Section 108(p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956. (Para 21)
5. At this stage decisions relied on by the learned advocate for the respondent may be considered. In Deviprasad (supra), paragraph 21 thereof enlisted the features which are required to be considered to decide whether the structure is permanent or not for the purpose of Section 13(1)(b). Those considerations are (i) The intention of the party in putting up the structure (ii) The intention has to be garnered from the degree of annexation (iii) Whether the structure can be removed without doing serious damage to the demised premises? (iv) The nature of the materials used for the structure (v) The purpose and the object with which the erection of the structure is made (vi) the durability of the structure? (vii) the nature and character of the structure (viii) The offending structure vis-a-vis the original structure (ix) The manner and mode in which, the structure is erected, and dimensions thereof. There is no dispute that above are the criteria to judge and determine whether in a given case the structure erected by the tenant is permanent or not.
5.1 On the basis of Bhavarlal Ganeshram (supra), what was sought to be contended by the learned advocate for the respondent that as per the law laid down in that judgment, it was necessary to examine an expert to determine whether the construction in nature was permanent or not, and that without examination of the expert witness on that count, it was not permissible for the Court to reach a conclusion that the construction was permanent. The submission was based on a total misreading of the decision. In that case, the construction was of ota and there was no sufficient material to show as to whether the construction in question was a temporary or was of a permanent kind, and in that context, it was held that the question needed to be determined by leading expert evidence. It was not the ratio of the said decision that in all cases under section 13(1)(b) of the Bombay Rent Act, in order to answer the question whether the construction is permanent, the same has to be done only after examining the expert. In this case, for deciding the nature of construction put up in the premises by the tenant, there is adequate and ample material on the basis of it was quite possible to conclude that the construction was permanent. Therefore, the argument that the expert was not examined and thereby the permanent construction was not proved, was devoid of substance.
6. As already stated above, the tenant had demolished part of Southern wall of the premises. Thereafter he had installed the door. The door was additional door in the back side room of the tenanted premises. The door was intended to use as entry to the latrine which was constructed by raising partition wall made by bricks and cement by dividing room in the tenanted premises. In the evidence of Chandrakantbhai Valjibhai (Exh. 91) it was admitted that by virtue of construction in question, the room had become lesser in its original area. It also came in his evidence that the wall was demolished in part, door was placed and sanitation equipments were installed. Considering the nature of construction coupled with the aforesaid aspect, it could be reasonably said that by virtue of the construction, as made by the tenant, there was a change of identity of the premises at the very initial stage, much less at the time of removal of the structure. A regular door of the latrine and wall made of bricks and cement dividing the room which could be hardly said to be one which could be removed without doing serious damage to the premises.
7. Dealing with now the contention that the kind of partition wall constructed could fall under the Explanation to the section, as noted above, construction in the present case is one of placing of door by removing part of the wall and constructing lavatory in the room. It would not fall within the ambit of Explanation to Section 13(1)(b), merely describing a wall as partition wall. The partition wall mentioned in the Explanation is one temporary kind of partition. It is to be understood in light of the other construction namely the door, lattice work or filling of kitchen-stand and such other alteration. The phrase 'such other construction' suggests that the constructions excepted thereunder has to be of same category in their nature and kind. Merely because the construction could be described as partition wall, it was not to be automatically presumed that it was deemed to be temporary only. The structures mentioned in the Explanation are not treated to be permanent for the obvious reason stated in the later part of the Explanation that they can be removed without causing serious damage to the premises. If a structure satisfied this test, it will come in the family of 'such other construction'. Therefore, a partition wall could also be of a permanent construction, if it is one which could not be removed without causing damage to the premises. Therefore, the contention of the respondent that construction in question falls within the Explanation and therefore, it is out of purview of connotation of permanent structure would not tenable.
8. On the basis of various decisions surveyed above, to decide whether a particular construction erected by tenant can be characterized as one of permanent nature for the purposes of section 13(1)(b), tests which may be applied are summarised as under:
(i) The material used in the structure, durability of the structure and the very nature of it are dependable criteria;
(ii) What may be called as "the damage test" or "the test of removability". This test emanate from the provision of section 13(1) (b) itself, more particularly from the Explanation thereof. If structure in question cannot be removed without causing a serious damage to the premises, such structure will be categorised as permanent structure;
(iii) The identity test. If the structure changes the whole identity of the rented premises, the same is also a test applicable. In other words, it is a test of offending structure vis-a-vis original structure of the premises. In this, the manner and method of structure erected and the dimensions of the structure, etc., would become relevant in addition to the type of structure itself;
(iv) The intention of the tenant in erecting the structure. It is also a criteria whether the use of the structure/construction is intended to last-till-tenancy-lasts;
(v) The structure erected is without landlord's consent given in writing.
8.1 Considering the kind and nature of the construction made by the tenant in the instant case, it satisfied all the above tests to invite mischief under section 13(1)(b). The tenant cannot evade the liability of eviction.
8.2 While learned advocate for other side was justified in submitting that in revisional jurisdiction under Section 29(2), High Court would not re-appreciate the evidence, however, appreciation of evidence is permissible when the Court has to decide on the correctness of the finding of the appellate Court. From Dalsukh Ghelani (supra), following observations deserves to be noticed, as an answer to the contention of the learned advocate for the respondent that High Court by re-appreciating the evidence would not take a view different than one taken by the lower Appellate Court while exercising jurisdiction under. Section 29(2):
In my opinion the Court below was in apparent error in construing the provisions of Explanation to Sec. 13(1)(b) and holding that the structures raised by the tenant do not amount to permanent structure. On the other hand on proper appreciation of it can safely be said that the structures raised by the tenant are in the nature of permanent structure. Admittedly it has not been raised with written permission of the landlord. In this way the findings recorded by the Trial Court were correct. Appreciation of evidence made by this Court, has been done only with a view to test the correctness of the findings of the two Courts below. If on reappreciation of evidence by this Court it is found that the findings recorded by the Trial Court are correct then such reappreciation of evidence in revision is permissible.
9. In view of above discussion, it was evidently clear that lower Appellate Court committed error in judging the nature of construction and disregarded the aspects liable to be considered as germane qualify the construction as permanent within the meaning of Section 13(1)(b). The findings and conclusion of the lower Appellate Court completely overlooked the necessary ingredients of applicable provision of law and therefore, suffered from material irregularity and illegality warranting interference. For the reasons stated above, the Revision application is allowed and the judgment and order dated 15th September, 2004 of learned Joint District Judge, 3rd Fast Track Court, Patan in Regular Civil Appeal No. 74 of 2002 is hereby quashed and set aside. The judgment and decree passed by the Trial Court stands of (sic) operate.
After the above order is passed, learned advocate Mr. Bharat Jani for the respondent wanted to have instructions from his client regarding availing time to vacate the premises. In order that he may seek instructions on that count, the matter to be notified on 23rd July, 2013.
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