Calcutta High Court
Dayanand Gupta vs Gobind Lall Bangur And Ors. on 29 June, 2007
Equivalent citations: AIR2007CAL247, (2007)3CALLT379(HC), 2007(3)CHN665, AIR 2007 CALCUTTA 247, 2007 (6) ALL LJ NOC 1017, 2007 (6) ABR (NOC) 1035 (CAL), 2008 (1) AJHAR (NOC) 136 (CAL), 2007 AIHC NOC 539, (2007) 3 CAL HN 665, (2008) 1 ICC 447, (2007) 2 CAL LJ 172, (2007) 2 RENTLR 417
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This appeal is directed against the judgment and decree dated 11th October, 1985, passed by the learned Judge, VII Bench, City Civil Court at Calcutta in Ejectment Suit No. 391 of 1976.
2. The defendant (tenant) in a suit for eviction under the West Bengal Premises Tenancy Act, 1956, is the appellant before us.
3. The suit was filed by the plaintiff/respondent (landlord) for eviction of the tenant from the suit premises on various grounds such as - (i) causing nuisance and annoyance to the plaintiffs and the other occupants of the said premises and (ii) for violation of Clauses (m), (O), (p) of Section 108 of the Transfer of Property Act.
4. The suit was ultimately decreed by the learned Trial Judge on the ground of violation of Clause (p) of Section 108 of the Transfer of Property Act, as the learned Court below held that the defendant/appellant raised permanent structure in the suit premises without consent of the landlord.
5. The learned Trial Judge, however, found that the ground of eviction, i.e. causing nuisance and annoyance to the plaintiffs and other occupants of the premises could not be established by the plaintiffs. As such, no decree was passed on the said ground.
6. Mr. Ghosh, learned Senior Counsel, appearing on behalf of the plaintiffs/respondents, made it clear that he will restrict his submission to support the impugned judgment, so far as it relates to the ground of eviction relating to violation of Clause (p) of Section 108 of the Transfer of Property Act. In other words, the other ground of eviction, i.e. causing nuisance and annoyance to the plaintiffs and the other occupants of the said building was practically abandoned by the plaintiffs/respondents in this appeal.
7. It is also recorded herein that the plaintiffs/respondents have not filed any cross-appeal under Order 41 Rule 22 of the Code of Civil Procedure for challenging the findings of the learned Trial Judge regarding the said issue before us.
8. Under such circumstances, we will restrict our consideration with regard to the legality and/or propriety of the judgment of the learned Trial Judge on the issue regarding violation of Clause (p) of Section 108 of the Transfer of Property Act.
9. Admittedly, the defendant's tenancy which is the subject-matter of the suit, is a Flat consisting of two rooms, a kitchen and store space with corrugated tin-sheet roof. The plaintiffs/respondents allege that sometime in the month of September, 1975, the defendant/appellant most illegally and unauthorisedly removed the said corrugated tin-sheet roof of the kitchen and store space and replaced the same by cement concrete slab and thereby converted the tin-shade roof of the kitchen and store space into permanent concrete roof and made a permanent brick-built passage from the said kitchen and store space leading to the said concrete roof for the purpose of using it unauthorisedly.
10. The plaintiffs further allege that this structural addition and alteration in the tenancy were made by the defendant without the consent or permission of the plaintiffs or their authorised person and as such, the defendant contravened the provisions of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act.
11. The defendant contested the suit by filing written statement and additional written statement denying the material allegations made in the plaint. Initially in the written statement, the defendant denied such alleged illegal and unauthorised removal of the corrugated tin-shade from the roof of the kitchen and store space and replacement of the same by concrete roof by the defendant and/or the members of his family and thereby converting the tin-shade roof of the kitchen and store space into permanent concrete roof.
12. Subsequently in the additional written statement, the defendant stated that the corrugated shade required replacement as the same was worn out. The defendant further claimed that the defendant repeatedly requested the landlord to repair and/or replace the said worn out corrugated tin-shade and to change the rent receipt accordingly. The defendant further reiterated that the defendant did not cause any addition or alteration in the suit premises in violation of any of the provisions contained in Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act.
13. Parties adduced their evidences in the suit in support of their respective contentions made out in their aforesaid pleadings.
14. As a matter of fact, the PW- 1 being the constituted attorney of the plaintiffs, PW- 2 being the Darwan of the plaintiffs, PW- 4 being another tenant of the said premises stated in their evidence that in September, 1975, the defendant removed the tin-shade roof from the kitchen and store space and replaced the same by cement concrete slab and also made a brick-built passage leading to the roof of the said construction. PW- 1 and PW- 2 also in their evidence denied grant of any permission by the landlord in favour of the tenant authorising him to raise such construction in the suit premises. In fact, construction of the cement concrete roof on the kitchen and the store space also was reported by the Advocate Commissioner being PW- 3 in his evidence.
15. The removal of the tin-shade from the roof of the kitchen and store space and replacement of the same by cement concrete slab was not denied by the defendant in his evidence. The defendant, however, in his evidence stated that such replacement was made by the landlord and such changes were also reflected in the subsequent rent receipts issued by the landlord. The DW- 2 being another tenant of the said premises who came to support the defendant, stated in his evidence that after removal of the tin shade roof, wall was raised to some extent and a concrete roof was constructed on that portion in the presence of the Darwan of the plaintiffs/respondents.
16. Considering the pleadings of the parties, the oral evidence of the respective parties on record as well as the exhibits being Exhibits "2(a)", "2(b)" and "2(c)" whereby the defendant requested the plaintiffs to repair the leakage of the roof of the tin shade and in default, the defendant himself will cause such repair, the learned Trial Judge held that the defendant made permanent structure by removing the tin-shade from the roof of the kitchen and store space and by replacing the same by cement concrete slab, without the consent of the landlords in violation of Clause (p) of Section 108 of the Transfer of Property Act.
17. The learned Trial Judge held that it is hard to believe that the landlord would make the pucca construction after removing the tin-shade for better convenience of the defendant/tenant and that the landlord would give further amenity to the tenant by making a passage for going to the roof through an outlet made on the pucca ceiling without enhancement of rent.
18. The learned Trial Judge further held that consent of the landlord regarding such construction by the tenant cannot be inferred from the differences in the description of the suit premises in the rent receipts being Exhibits 'A' and 'A1' as none of the said receipts was issued after the alleged construction was made.
19. Thus, the learned Trial Judge passed the aforesaid decree of eviction against the appellant on the grounds of violation of Clause(p) of Section 108 of the Transfer of Property Act.
20. The propriety of the said judgment is under challenge before us.
21. Mr. Banerjee, learned Senior Counsel, appearing on behalf of the appellant, instead of challenging the findings of the learned Court below regarding replacement of the tin-shade from the roof of the kitchen and store space by cement concrete slab and making the brick-built passage for going to the roof of the said concrete roof, canvassed before us that even if it is proved that such replacement was made by the defendant/appellant, still then the learned Court below was not justified in passing a decree for eviction against the defendant/appellant inasmuch as replacement of tin-shade by cement concrete slab does not amount to raising of construction of permanent structure. According to Mr. Banerjee, construction of permanent structure means construction of such structure on permanent basis which provides additional accommodation without causing material impairment of value and utility of the tenancy.
22. Mr. Banerjee, thus, submitted that when the value and/or utility of the premises is not impaired and the construction does not destroy and/or change the character, form and/or its identity, such construction cannot be regarded as construction of permanent nature. By referring to the evidence of PW- 1 in his cross-examination wherein PW-1 stated that the area now occupied by the defendant as tenant, is still the same as it was at the time of inception of tenancy, Mr. Banerjee contended that since the accommodation in the tenancy has not been enlarged by replacement of tin-shade by concrete slab on the kitchen and the store space, such replacement cannot be regarded as construction of permanent structure.
23. In support of such submission, Mr. Banerjee relied upon the following decisions of the Hon'ble Supreme Court:
(i) (Om Prakash v. Amar Singh)
(ii) (Waryam Singh v. Baldev Singh)
24. Mr. Banerjee further submitted that violation of provisions of (m), (o), (p) of Section 108 of the Transfer of Property Act, cannot be held to be proved, unless waste or damage due to such construction is proved. In support of such submission, Mr. Banerjee relied upon a Full Bench decision of our High Court in the case of Ratanlal Bansilal v. Kishorilal Goenka, para 156.
25. Mr. Banerjee further contended that waste and damages and impairment of value and utility must not only be pleaded but also be proved in order to obtain a decree of eviction on the ground of violation of Clause(p) of Section 108 of the Transfer of Property Act. By referring to the decision of the Hon'ble Supreme Court in the case of Waryam Singh v. Baldev Singh, paragraphs 15 and 16, Mr. Banerjee submitted that in the absence of proof of material impairment of value and utility, Court cannot pass any decree for eviction on ground of violation of Clause (p) of Section 108 of the Transfer of Property Act.
26. Mr. Banerjee further submitted that when in spite of receiving the notice being Exhibit "2(c)" wherein the appellant made it clear that in the event the landlord fails to repair the leakage in the tin shade roof within seven days from the receipt of the said letter, the tenant himself will repair it at his own cost, the landlord/respondent did not raise any objection to such repair by the tenant, the landlord deemed to have waived his right to sue on the ground of violation of Clause (p) of Section 108 of the Transfer of Property Act. In support of such submission, Mr. Banerjee relied upon a decision of the Hon'ble Supreme Court incase of B.L. Sreedhar and Ors. v. K.M. Munireddy (dead) and Ors. reported in 2003(1) ICC (SC) page 778.
27. Mr. Banerjee, thus, concluded by submitting that the learned Trial Judge ought not to have passed the decree for eviction on the grounds of violation of Clause (p) of Section 108 of the Transfer of Property Act in the absence of any proof regarding impairment of value and utility of the suit premises due to such alleged construction.
28. Mr. Ghosh refuted such submission of Mr. Banerjee by contending, inter alia, that impairment of the value and utility of the suit premises and/or waste and damages caused by such construction need not be proved in order to obtain a decree for eviction on the ground of violation of Clause (p) of Section 108 of the Transfer of Property Act.
29. Mr. Ghosh contended that the decisions which were cited by Mr. Banerjee have no application in the present case, as none of those decisions was delivered on the issue relating to violation of the provisions of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act. Mr. Ghosh pointed out from the decisions cited by Mr. Banerjee that all those decisions were passed on different provisions of various rent control legislations which were not pari materia with the provisions of Clause (p) of Section 108 of the Transfer of Property Act.
30. In Om Prakash v. Amar Singh's case (supra), the Hon'ble Supreme Court considered the provision of Section 14 of U.P. Cantonments (Control of Rent and Eviction) Act, 1952 which provides that - "No suit shall, without permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely; a)tob)xxxxxxxxxxxxxxxxxc) that the tenant has without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the Court has materially altered the accommodation or is likely substantially to diminish its value."
31. Similarly in Waryam Singh's case (supra), the Hon'ble Supreme Court considered the provision of Section 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 which provides that - "(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-*************************** (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
32. Similarly, in the case of Om Pal v. Anand Swarup (dead) , the Hon'ble Supreme Court had the occasion to consider the very same provision of East Punjab Urban Rent Restriction Act.
33. Mr. Ghosh, thus, contended that those decisions have no application in the present case.
34. Mr. Ghosh, however, relied upon a decision of our High Court in the case of Surya Properties Pvt. Ltd. v. B. Nath, , wherein it was held that permanent structure for the purpose of Section 108 (p) will mean a structure which is capable of lasting till the term of the lease and which is constructed in the way of being built up as a building.
35. Relying upon another Division Bench judgment of this Court in the case of Himanshu Bikash Das v. Ramendra Mohan Dutta reported in 1991(1) CLJ 392, Mr. Ghosh submitted that if it is proved that the tenant raised unauthorised structure on the tenanted premises, but subsequently dismantled the structure will not liquidate the ground envisaged in Section 13(1)(b) of the West Bengal Premises Tenancy Act.
36. Thus, Mr. Ghosh supported the impugned judgment.
37. Let us now consider the respective contentions of the learned Advocate of the parties in the present context.
38. In fact, permanent structure has not been defined under the Transfer of Property Act. As such, we had to hunt up the decisions of the Hon'ble Supreme Court as well as of our High Court to find out the exact meaning of the expression "permanent structure" as mentioned in Section 108 (p) of the Transfer of Property Act. This is very much necessary, as construction of every description is not construction of permanent structure attracting the rigor of Section 108(p) of the Transfer of Property Act.
39. As pointed out in a Division Bench decision of this Court in Dhanapati v. Geeta reported in 1986(2) CHN 292, it is not the law that a tenant cannot in any event construct any structure or make any addition to or alteration of the tenanted premises without the consent of the landlord. A combined reading of Clauses (o) and (p) of Section 108 of the Transfer of Property Act would rather indicate that while the tenant cannot put up any construction by way of addition and alteration which is a permanent structure or which is destructive or permanently injurious to the tenanted premises, but he can within the limits of Clauses (o) and (p) of Section 108 of the Transfer of Property Act, add to the premises and make alteration there, to suit his needs. That is precisely what was pointed out in the Special Bench decision of this Court in case of Surya Properties Put. Ltd. (supra).
40. It was held in the said decision that when structure has been so built so as to become part of the single structure and are so attached to the old structure that its removal is bound to affect the whole structure, it would become a permanent structure. Thus when any structure is constructed in such a fashion, the removal of such construction without causing any damage to the structural strength of the building, is not possible, such construction could be regarded as permanent construction.
41. Then again, what is meant by structure?
42. Construction of structure, no doubt means addition or alteration of accommodation. Thus when there is no addition or alteration in the accommodation in the process of such construction; Court cannot conceive of any construction of permanent structure. In fact, that is the view which was precisely expressed by the Hon'ble Supreme Court in the case of Om Prakash (supra).
43. Let us now apply the aforesaid test in the facts of the present case. We have indicated above that here in the instant case, the defendant has simply replaced the tin-shade by the cement concrete slab on the roof of preexisting kitchen and store space. The kitchen and the store space with tin shade on its roof were there right from the commencement of the tenancy. Only the worn out tin-shade was replaced by cement concrete stab, By such replacement, the accommodation available to the tenant is neither extended nor altered, as the floor space of the tenancy remains the same even after such alteration.
44. Thus, such replacement cannot be regarded as construction of "permanent structure". Such replacement can at best be regarded as an improvement of a part of the suit premises. As such, this Court by relying upon a decision of the Division Bench of this Court in the case of Debikanandan v. Harasundar reported in 1988(1) CHN 180 holds that no decree for eviction can be passed on the ground of violation of Clause (p) of Section 108 of the Transfer of Property Act as improvement was made by the tenant in the existing structure without enlarging and/or altering the extent of accommodation in the suit premises.
45. Furthermore, the plaintiffs/respondents failed to prove that the construction of the roof by cement concrete is affixed and/or annexed to main structure of the building to such an extent which makes it impossible to remove without causing any damage to the main structure of the building,
46. Tims, relying upon the decision of this Court in the case of Surya Properties Pvt. Ltd. (supra) as well as the decision of the Hon'ble Supreme Court in the case of Om Prakash (supra), this Court holds that removability test which is also a test for ascertaining the permanency of such construction, has also not been applied by the learned Trial Judge while passing a decree of eviction.
47. It is, however, correctly pointed out by Mr. Ghosh that material impairment in value and utility of the tenancy due to construction of permanent structure, is not a consideration for passing a decree on the ground of violation of Section 108(p) of the Transfer of Property Act unlike in the other rent control legislation as referred to above. But, still then this Court cannot ignore the decision of the Full Bench of this Court in the case of Ratanlal Bansilal (supra) wherein it was held in clear terms that unless a case of waste or damage is proved, it cannot be said that there is any violation of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act. Proof of such waste and damage due to construction of cement concrete roof on kitchen and store space and/or making a brick-built passage for going to the roof thereof, is conspicuously absent in the present case. As such, this Court is unable to maintain the decree passed by the learned Trial Judge.
48. Before concluding, we also feel it necessary to mention that in the case of Surya Properties Pvt. Ltd. (supra) as well as in the other decision, viz., Himanshu Bikash Das (supra) which were cited by Mr. Ghosh, we find that in those cases construction of kitchen with four brick-built walls with tin shade roof and/or construction of a brick-built room on the roof of the suit premises were made by the tenants extending the extent of their accommodation. Under such circumstances, Court held in those decisions that the tenant was guilty of violating the provisions of Section 108(p) of the Transfer of Property Act.
49. But here is the case, replacement of tin shade roof by cement concrete roof without extending the extent of accommodation, cannot be regarded as construction of permanent structure. As such, we cannot maintain the decree by applying the principles of those decisions which were cited by Mr. Ghosh, as above.
50. Thus, after hearing the learned Advocates for the respective parties and after considering all relevant materials, we find merit in the present appeal and the same is accordingly allowed.
51. The judgment and decree impugned in this appeal, are set aside and the suit for eviction filed by the plaintiffs/respondents, is hereby dismissed.
52. There will be, however, no order as to costs.
53. Let the L.C.R. along with copy of this judgment be forwarded to the learned Trial Court forthwith.
54. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously after complying with formalities.
Alok Kumar Basu, J.
55. I agree.