Madras High Court
Raymonds Woollen Mills Limited, Madras vs Mrs. Azra And 2 Others on 3 November, 1999
Equivalent citations: 2000(3)CTC642
Author: R. Jayasimba Babu
Bench: R. Jayasimba Babu
ORDER Judgment pronounced by R. Jayasimha Babu, J.
1. Appellant is the statutory tenant of the premises of which the respondents are admittedly some of the co-owners. It is the case of the respondents who as plaintiffs instituted C.S.No.225 of 1998, that the appellant tenant has embarked on a wholly impermissible activity against the wishes of the landlord-the activity being the demolition of a portion of the roof, rebuilding the same and strengthening the walls to support that roof in a portion of the premises. Area of the roof so sought to be rebuilt is said to be about 1000 sq.ft. That portion is located at the rear of the premises in the occupation of the tenant, and is in the mezzanine floor. Appellant runs a textile show room in the tenanted premises, which is situated in Anna Salai in Chennai.
2. Plaintiffs had applied for, and had obtained an order of interim injunction restraining the appellant from proceeding with that work of rebuilding the roof and strengthening the walls. It is also their case that the safely of the other tenants in the building is endangered by that activity of the appellant.
3. The learned single Judge before whom the suit is pending, granted the injunction after holding that the plaintiff had made out a prima facie case and that the balance of convenience was also in favour of the plaintiff.
4. It was submitted by Mr.G.Subramaniam, learned Senior Counsel for the appellant that the Court should look to the realities of the situation namely, that the building is 100 years old; that the collapse of a part of the roof was only on account of the age of the building, and not by reason of anything done or omitted to be done by the tenant; all that the tenant was doing was to reconstruct repair roof and strengthening the walls; that no financial burden is cast on the landlord as the tenant is willing to carry out the work entirely at its own cost; that the tenant is willing to have the work carried out by or under the supervision of the Engineers chosen by the landlord; and the benefit of the work so carried out will ultimately accrue to the landlord whose building is now being strengthened and improved. The justice and equities of the case, it was submitted, did not warrant the grant of injunction against the appellant-tenant.
5. Counsel for the landlord, on the other hand, contended that the rights of the appellant and the respondent are governed by the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by Section 22 of which the extent of the tenant's right to carry out any repair is regulated. The tenant having failed to follow the procedure prescribed by that provision, cannot now contend that, de hors, that provision, the tenant has a right, against the wishes of the landlord, to carry out the repairs or reconstruction to suit his convenience. It was pointed out that the landlord has not at any time consented to the proposed activity of repairing and strengthening the roof of the walls. Even in the pleadings filed by the appellant, it is the case of the appellant that it had sought permission, but such permission was denied. The tenant admittedly has not issued any statutory notice to the landlord under Section 22 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and had not acquired any right to commence any repair, as the Rent Controller who alone was competent to give permission to carry out such work, had not even been made aware of the need for carrying out any work. It is also the case of the landlord that the tenant had not at any time sought their permission to carry out this work.
6. Section 22 of the Act reads thus:
"22. Failure by landlord to make necessary repairs:- (I) If a landlord fails to make necessary repairs to the building within a reasonable time after notice is given:-
(a) by the authorised officer in the case of a building in respect of which the Government shall be deemed to be the tenant under sub-section (5) of Section 3:
(b) by the tenant in case of any other building; the authorised officer aforesaid may, in the case referred to in clause (a), make such repairs or have them made by the allottee and deduct the cost thereof from the rent payable for the building, or ask the allottee to make such a deduction from the rent payable; and the Controller may, in the case referred to in clause (b), direct, on application by the tenant, that such repairs may be made by the tenant and that the cost thereof may be deducted by the tenant from the rent payable for the building.
Provided that the cost of repair, and the deduction thereof which the authorised officer or the Controller, as the case may be, may authorise shall not exceed in any one year one twelfth of the rent payable in respect of the building for that year.
(2) The landlord shall not, while making repairs, render the building uninhab-itable by digging up the floor or by removing any door or window or by causing any other damage to any part of the building".
7. 'Repairs' is defined in Section 2(7) of that Act thus:
"repairs" means the restoration of a building to a sound or good stale after decay or injury, but does not include additions, improvement or alterations except in so far as they are necessary to carry out such restoration.
8. Counsel for the appellant/tenant was a little reluctant to commit that what was being done was 'repair'; as the definition of the word 'repair' in Section 2(7) of that Act includes 'addition' 'alteration' and 'improvement' to the extent necessary to carry out the restoration of the premises. Counsel sought to contend that what was being done by the tenant would not fall within the scope of Section 2(7) of the Act, as according to the counsel, what was being done was an improvement to the building which could not possibly be described fully by the word 'repair'. It was further submitted that if this activity does not amount to repair, Section 22 would have no application, and the failure to comply with the requirement of that Section would not come in the way of the tenant continuing to carry out the work.
9. Counsel for the appellant in this context, relied on a judgment of a learned single Judge of this court in the case of Doraipandi v. P. Sundara Pathar, 1970 (1) MLJ. 62 : 82 L.W. 670. In that case, it was held that Section 22 is a complete code in so far as the right of the tenant to carry out repair is concerned where the tenancy is governed by the provisions of the Madras Buildings (Lease and Rent Control) Act (18 of 1960). It was also observed in the Judgment that the tenant would have no right to recover the amount spent on the repairs in excess of an amount equal to one month's rent in view of the stipulation in the proviso to S. 22(b). Counsel sought to use that observation to contend that so long as the tenant does not demand reimbursement of the expenses incurred by him on the activity whether described as repair or otherwise, the tenant cannot be prevented from carrying out such repair, improvement or restoration.
10. If what is sought to be done by the tenant amounts to repair, then Section 22 of the Act governs. Failure to comply with the requirements of that provision disentitles the tenant from carrying out the repairs, except in case of emergency when limited temporary protection measures may be required to be taken immediately for the safety and security of the occupants.
11. The object of Section 22(1)(b) is first to provide an opportunity to the owner to know the kind of the repair that the tenant who is in possession of the building wants to carry out, so that the landlord can judge for himself as to whether such repair is necessary, and also to indicate to the tenant his own willingness to carry out the work if he feels such repair is necessary. The second object is to enable the adjudication by the third party namely the Rent Controller of the genuineness of the requirement, if the landlord does not agree to carry out the repair, and the extent to which the proposed repairs should be allowed even against the wishes of the landlord. The Rent Controller is required to hear the application made by the tenant after due notice to the landlord, and thereafter make an order granting or withholding permission. If permission is not granted, the tenant cannot proceed with the work for carrying out which work which he had applied to the Rent Controller. If the permission is granted, the tenant may carry out the work subject to the limitation that the amount to be deducted from rentals on account of the repairs, does not exceed one twelfth of the amount payable as rent for the building for that year. Even if it is possible to construe the proviso below Section 22(1)(b) as permitting the tenant to incur expenditure in excess of one twelfth of the yearly rental, but without the right to deduct the excess from the amounts payable to the landlord, such willingness on the part of the tenant does not have the effect of exempting him from complying with the requirement of Section 22(1)(b) of the Act.
12. In this case, admittedly no notice was given to the landlord, nor any application preferred before the Rent Controller. What is being sought to be done by the appellant tenant, squarely falls within the definition of 'repairs' in S. 2(7) of the Act. It is the appellant's case that a portion of the roof caved in because of age and restoration of the same is what is sought to be done.
13. The argument that the tenant may reconstruct or make improvements as he pleases as there is no prohibition in the Act, against the tenant carrying out reconstruction or improvement, cannot be accepted at all.
The Act does not in any of its provisions authorise the tenant to carry out improvement or structural alteration at his sweet will. The statutory tenant may not do anything to the property owned by the landlord except to the extent permitted by the Act.
The statutory right not to be dispossessed except in accordance with the provisions of the Rent Control Act, does not comprehend a right to do anything that the tenant desires, such as, alteration, addition, improvement etc. except to the extent permitted by the Special Act. There is no inherent right in a statutory tenant to improve, alter, repair or reconstruct against the wishes of the landlord.
14. A wealthy tenant who can afford to spend large amounts on repair, alteration, improvement, or reconstruction cannot assert a right to carry out such works on the sole ground that the landlord will not be asked to reimburse the amounts spent on such works. It is not the capacity of the tenant to spend on such repair, alteration, or improvement, or addition, that is material. What is material is whether the landlord has consented for such acts, and whether the Act confers a right on the tenant to carry out such work, even against the wishes of the landlord.
15. Learned counsel for the appellant contended that all that is sought to be done by the tenant is to make the premises usable for the purpose of his business, as the landlord had indicated during the course of litigation that the landlord did not have means to carry out the work. Assuming that the landlord does not have the means, it does not follow, that the tenant has a licence to embark on repair against the wishes of the landlord, bypassing Section 22 of the Rent Control Act. The appellant is a legal entity, which is using the premises for the purposes of business. The bulk of the area occupied by it is in undamaged condition according to the tenant, but it is only a portion of the mezzanine floor at the rear which requires restoration.
16. The injunction has been in force for over eighteen months. There is no explanation offered by the tenant as to why the tenant did not proceed under Section 22 of the Rent Control Act, either before the institution of the suit or thereafter. Appellant cannot appeal to equity, having deliberately chosen not to avail of the statutory remedy.
17. The learned Trial Judge has held that plaintiff has made out a prima facie case, and that the balance of convenience is in favour of the plaintiff. We agree, we however make it clear that this order will not come in the way of the tenant invoking Section 22 of the Act, to the extent he is able to do in terms of the provision, and thereafter carry out such repairs as the Rent Controller may permit. The appeal is dismissed, subject to the above observation. No costs. Consequently, CMP is dismissed.