Bombay High Court
Mr. Atmaram Vishnu Kanekar (Since Decd) vs Smt. Shankri B. Ajimal And Anr on 20 December, 2024
2024:BHC-AS:50506
Megha 19_wp_4542_1997_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4542 OF 1997
Atmaram Vishnu Kanekar
since deceased through heirs and legal
representatives:
1. Alka Atmaram Kanekar
2. Mandar Atmaram Kanekar
3. Dhanashri S. Nair
4. Revati R. Gandhi ...Petitioners.
V/s.
1. Mrs. Shankari B. Ajimal
2. Harbhajansing B. Ajimal ...Respondents
WITH
CIVIL APPLICATION (STAMP) NO.20265 OF 2019
IN
WRIT PETITION NO.4542 OF 1997
Atmaram Vishnu Kanekar
since deceased through heirs and legal
representatives:
1. Alka Atmaram Kanekar
since deceased her legal heirs and
representatives-
1. Mandar Atmaram Kanekar
2. Smt. Revati Rajesh Gandhi
3. Smt. Dhanashri Sudhir Nair
In the matter of
Atmaram Vishnu Kanekar
since deceased through heirs and legal
MEGHA
SHREEDHAR representatives:
PARAB
Digitally signed by
1. Alka Atmaram Kanekar
MEGHA
SHREEDHAR PARAB since deceased her legal heirs and
Date: 2024.12.21
16:33:34 +0530 representatives-
1. Mandar Atmaram Kanekar and
Ors. ...Applicants
Page No. 1 of 17
20 December 2024
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Megha 19_wp_4542_1997_fc.docx
V/s.
1. Mrs. Shankari B. Ajimal
2. Harbhajansing B. Ajimal ...Respondents
WITH
CIVIL APPLICATION NO.1329 OF 2016
IN
WRIT PETITION NO.4542 OF 1997
Atmaram Vishnu Kanekar
since deceased through heirs and legal
representatives:
1. Alka Atmaram Kanekar
since deceased her legal heirs and
representatives-
1. Mandar Atmaram Kanekar
2. Smt. Revati Rajesh Gandhi
3. Smt. Dhanashri Sudhir Nair
In the matter of
Atmaram Vishnu Kanekar
since deceased through heirs and legal
representatives:
1. Alka Atmaram Kanekar
since deceased her legal heirs and
representatives-
1. Mandar Atmaram Kanekar and
Ors. ...Applicants
V/s.
1. Mrs. Shankari B. Ajimal
2. Harbhajansing B. Ajimal ...Respondents
_______________
Mr. Kamlakar L. Koli with Ms. Vaishali P. Benere for the Petitioner.
Mr. Harbhajan Singh B. Ajimal, Respondent No.2 -in person.
_______________
CORAM : SANDEEP V. MARNE, J.
Judgment reserved on : 13 December 2024.
Judgment pronounced on : 20 December 2024.
Page No. 2 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx Judgment: 1) Petitioners have filed this Petition challenging judgment
and order dated 24 July 1997 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No.208 of 1995. The Appellate Court has dismissed the Appeal preferred by the Petitioner- Defendant and has confirmed the eviction decree dated 18 September 1995 passed by the Small Causes Court in R.A.E. & R. Suit No.3029 of 1976. The Petitioner-Defendant has been directed to handover possession of the suit premises to the Plaintiffs-Respondents.
2) Facts of the case as pleaded in the Plaint are that Plaintiffs are the landlords in respect of Room No.1, Ajimal Chawl No.2, Kurar Village, Daftary Road, Malad (East), Bombay-400 097 (suit premises). Defendant was inducted as monthly tenant in respect of the suit premises. Plaintiffs alleged that Defendant was in arrears of rent since 1 February 1976 and had also enclosed open verandah and converted the same into pucca room with bricks masonry walls without the consent and knowledge of the landlord. By notice dated 26 March 1976, Plaintiff terminated the tenancy of the Defendant. Plaintiffs filed R.A.E. & R. Suit No.3029 of 1976 in Small Causes Court seeking recovery of possession of the suit premises from the Defendant. Defendant appeared in the Suit and filed written statement contesting the claim of the Plaintiffs. Defendant raised numerous defences in the written statement questioning the maintainability of the Suit. He contended that the land, on which the suit premises are situated is a government land by virtue of provisions of Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 (Vacant Lands Act).
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He further contended that the land was also declared as slum under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slums Act) and that prior permission of the Competent Authority was not obtained before the institution of the Suit. Defendant denied any liability to pay rent in respect of the suit premises on account of provisions of Vacant Lands Act. He also referred to filing of R.A.N. Application No.292 of 1970 for fixation of standard rent in respect of the suit premises and that the rent was mutually agreed in that application by Agreement dated 14 September 1972. That another Application being R.A.N. Application No.1473 of 1975 was required to be filed as Plaintiffs failed to carry out repairs in terms of the Agreement. That Defendant deposited sum of Rs.135 in the Court towards interim rent. R.A.N. Application No.1473 of 1975 was withdrawn after coming into force the Vacant Lands Act, under which according to Defendant, there was no necessity of paying any rent. The Defendant denied the allegation of enclosure of open verandah or conversion of the same in a room. Plaintiff amended the Plaint and incorporated averments of further unauthorised construction by increasing the dimensions of the premises, changing the roof, disposing of teak wood beams, raising overall height of the roof, changing side walls from patra to brick walls, changing the location of verandah and putting up of loft of permanent nature, etc. In short, Plaintiff alleged that the entire suit premises were demolished and reconstructed without landlord's consent. Defendant filed additional written statement denying the allegations. He contended that he executed merely permissible repairs in the suit premises and in accordance with the permission granted by the Municipal Corporation. Based on the pleadings, the Small Causes Court framed issues. Plaintiffs examined Plaintiff No.2- Harbhajansing B. Ajimal as their witness. Defendant examined Page No. 4 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx himself. After considering the pleadings, documentary and oral evidence, the Small Causes Court proceeded to decree the Suit by judgment and order dated 18 September 1995. It rejected the objections relating to maintainability of the Suit on account of provisions of Vacant Lands Act and Slums Act by holding that Vacant Lands Act was no longer in existence and suit premises are not declared as slum. The Small Causes Court held that Defendant was not in arrears of rent since 1 February 1975. The allegation of erecting permanent structure without landlord's consent as well as commission of acts contrary to provisions of Section 108(o) of the Transfer of Property Act, 1882 (TP Act) were held to be proved. The Small Causes Court therefore, directed Defendant-tenant to handover possession of the suit premises to the Plaintiff.
3) Petitioner/Defendant preferred Appeal No.208 of 1995 before the Appellate Bench of the Small Causes Court. The Appellate Court has further dismissed the Appeal by judgment and decree dated 24 July 1997. Aggrieved by concurrent decrees passed by the Trial and the Appellate Courts, Petitioner/Defendant has filed the present Petition. By order dated 24 September 1997, this Court admitted the Petition and stayed the execution of the eviction decree. The Petition is called out for final hearing.
4) Mr. Koli, the learned counsel appearing for Petitioner would submit that the Trial and the Appellate Courts have erred in decreeing the Suit of the Plaintiffs. That the land on which suit premises are situated i.e. land bearing CTS No.345/1-26 is highly dense slum area and notified as slum on 24 May 2012 and notification to that effect was issued in Government Gazette on 7/13 June 2012. That the Plaintiff challenged the slum declaration by filing appeal Page No. 5 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx before the Maharashtra Slum Tribunal, Bandra, which was rejected by order dated 29 January 2013. That Plaintiffs have challenged the order of the Slum Tribunal by filing Writ Petition No.2312 of 2013 in this Court, which was pleased to remand the proceedings to the Tribunal by order dated 30 September 2013. That the Slums Tribunal once again rejected appeal preferred by the Plaintiffs by order dated 13 February 2014. That the Slums Tribunal has declared Plaintiffs to be slumlords. That Plaintiffs have once again challenged the order of the Tribunal by filing Writ Petition No.4747 of 2014, which has been admitted without granting any interim relief. That the slum declaration thus continues to operate and this subsequent event that has occurred during pendency of the Petition would itself be a ground for setting aside the impugned decrees. That in absence of permission of the Competent Authority, the decree passed in the Suit cannot otherwise be executed. In support, Mr. Koli has relied upon judgment of Division Bench of this Court in Satish Shahu Bane and Anr. V/s. Dattatraya Tanaji Padam and Anr.1
5) Mr. Koli would further submit that though the issue of default in payment of rent was held in favour of the Petitioner- Defendants by the Trial Court, the Appellate Court has erroneously reversed the said findings and answered the issue of default in payment of rent in favour of the Plaintiff in absence of filing of any appeal or cross objections by them. Mr. Koli would further submit that closure of open verandah was in accordance with the agreement with the landlord dated 14 September 1972 which constitutes written consent as contemplated under Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (BRC Act). That no objection was raised during construction work and therefore 1 2020(5) Mh.L.J. 245 Page No. 6 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx Plaintiff is estopped from raising the ground of unauthorised construction. That even otherwise mere closure of open verandah does not amount to erection of permanent structure. So far as the allegations relating to alleged constructions carried out during pendency of the Suit is concerned, Mr. Koli would submit that except bare words of Plaintiff, there is absolutely no evidence in support of allegations raised in the amended Plaint. That changing roof or replacing the side walls do not otherwise amount to permanent construction. That the allegation of demolition of the entire suit structure was raised by the Plaintiff for the first time in examination- in-chief without any foundational pleadings. The ground of commission of act contrary to the provisions of Section 108 (o) of the TP Act is otherwise not proved by any cogent evidence. So far as the allegation of non-payment of rent is concerned, Mr. Koli would submit that the Defendant had deposited amount of Rs.135 towards rent upto the month of October-1975 and that therefore there were no arrears of rent. That demand notice included portion of taxes, which are not payable on month-to-month basis. That even otherwise rent of Rs.18.28 demanded was excessive as the rent in June-1979 was Rs. 16 and in February 1974 was Rs.17. That the credit of amount deposited in R.A.N. Application must be given to Defendant. That Defendant deposited entire amount of arrears of rent and therefore the case is covered by provisions of Section 12(3)(b) of the BRC Act. Mr. Koli therefore prayed for setting aside the impugned eviction decrees.
6) Petition is opposed by Mr. Harbhajansing B. Ajimal, Respondent No.2, who appears in person. He would submit that the Trial and the Appellate Courts have concurrently ruled against the Petitioner-Defendant on the issue of unauthorised additions and alterations. That the issue of default in payment of rent was Page No. 7 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx erroneously held against the Plaintiffs by the Trial Court, which error has been corrected by the Appellate Court by exercising power under Order XLI Rule 22 of the Code. He would submit that the Plaintiff served valid demand notice dated 26 March 1976 after dismissal of standard rent fixation application on 19 March 1976 and on the date of issuance of the demand notice, no application for fixation of standard rent was pending. That the demand notice was validly served and it was found that Defendant did not pay rent in respect of the suit premises on the pretext of applicability of provisions of the Vacant Lands Act. That it is erroneous to contend that there was composite demand of rent and permitted increases. That the rent demanded of Rs.18.28 did not comprise of permitted increases. That therefore the entire rent was payable on month-to-month basis and therefore, the provisions under Section 12(3)(a) of the BRC Act would be attracted in the present case. He would submit that Defendant did not question validity of the notice in the written statement and therefore the demand in the notice cannot be questioned and in support he would rely upon judgment of this Court in Kantilal Ravji Mehta and Anr V/s. Syarabai Chhaganlal Kering2.
7) So far as the allegation of erecting permanent structure without landlord's consent is concerned, Respondent in person would submit that the Defendant demolished the entire suit premises and reconstructed the same during pendency of the Suit. That this allegation is fully proved by leading evidence. That therefore concurrent findings recorded by the Trial and the Appellate Courts on the issue of unauthorized additions and alterations do not warrant any interference in exercise of jurisdiction of this Court under Article 227 of the Constitution of India.
2 2003 Bom.R.C. 109 Page No. 8 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx 8) So far as the provisions of the Vacant Lands Act is
concerned, he would submit that the Act was struck down and no longer remained in operation. That the land, on which the suit premises are situated was not declared as slum as on the date of filing of the Suit and subsequent declaration of the land as Slum by notification dated 24 May 2012 is wholly irrelevant for deciding the issue of maintainability of the Suit. He would submit that slum declaration would not come in the way of even execution of the decree as held by this Court in Cynthia wd/o A.V. V/s. Martin Prembihari Makhanlal Yadu and Anr.3 He would submit that issue involved in the present case is already covered by order passed by this Court in R. Ramchandran Nair V/s Shankari B. Ajimal & Anr.4 He would accordingly pray for dismissal of the Petition.
9) Rival contentions of the parties now fall for my consideration.
10) Plaintiff sought eviction of defendant on three grounds viz., (i) default in payment of rent; (ii) erecting permanent construction without landlord's consent and (iii) commission of acts contrary to the provisions of Section 108(o) of the TP Act. The second and third grounds are interconnected and have been answered together by the Appellate Court whereas they are answered separately by the Trial Court.
11) As observed earlier, the Trial Court had ruled against Plaintiff on the issue of arrears in payment of rent. The Trial Court 3 1973 (3) Mh.L.J. 389 4 Writ Petition No.6192 of 1995 decided on 11 October 2024.
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held that the demand of rent @ Rs.18.28 per month was inclusive of permitted increase and taxes. That demand was therefore composite demand, which was impermissible in law. The Trial Court therefore held that the demand notice itself was improper and that therefore failure to act on such improper notice would not attract eviction of Defendant under Section 12 of the BRC Act. The Trial Court further held that Defendant deposited amount of Rs.135 towards interim rent in R.A.N. Application No.1473/SR of 1975, which represented rent upto October 1975 and therefore Defendant was not in arrears of rent since February 1975 as falsely alleged in demand notice dated 26 March 1976. On these broad reasonings, the Trial Court rejected the ground of default in payment of rent. The Plaintiffs did not file any independent appeal or cross objection relating to the ground of default in payment of rent. However, during the course of submissions the Plaintiffs pointed out before the Appellate Court that the findings recorded by the Trial Court on the issue of default in payment of rent was also erroneous. Respondent No.2 in-person has relied upon provisions of Order XLI Rule 22 of the Code in support of his submission that Plaintiffs were justified in pointing out the errors in the findings recorded by the Trial Court qua the issue of default in payment of rent even in absence of filing of appeal or cross objection.
12) In my view, under the provisions of Order XLI Rule 22 of the Code, a Respondent in the Appeal, who has not independently appealed from any part of the decree, in addition to supporting the decree can always state that findings against him in the Court below in respect of any issue ought to have been in his favour. In my view, therefore, Plaintiffs were justified in urging before the Appellate Court that the findings on the issue of default in payment of rent by the Trial Court was erroneous and it was not necessary to file separate Page No. 10 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx cross-objection as the Suit was already decreed, albeit only on two grounds excepting the ground of default in payment of rent.
13) The Appellate Court held that the amount demanded by the Plaintiffs of Rs.18.28 was towards rent and did not include taxes or permitted increases. So far as the deposit of interim rent in the R.A.N. Application is concerned, the Appellate Court observed that the demand notice was issued on 26 March 1976 after the R.A.N. Application was dismissed on 19 March 1976. The Appellate Court further held that the landlords were never given an intimation about deposited sum of Rs.135/- in R.A.N. Application and that therefore the demand notice was valid. The Appellate Court further held that while Responding the demand notice vide reply dated 16 April 1976, no intimation was given to the Plaintiffs about the withdrawal of the R.A.N. Application or deposit of Rs.135/- in the Court.
14) I am in full agreement with the findings recorded by the Appellate Court on the issue of default in payment of rent. Since standard rent fixation application so withdrawn was dismissed on 19 March 1976, it cannot be said that there was any dispute about the quantum of rent as on 26 March 1976 when the demand notice was issued. The rent was payable by month-to-month basis. The demanded rent did not include taxes payable annually. Arrears demanded were in excess of six months. Therefore, provisions of Section 12(3)(a) of the BRC Act would be attracted in the present case. It was incumbent for the tenant to pay to the Plaintiff the demanded amount of rent within a period of 30 days of service of the demand notice. This issue appears to have been decided by this Court in P. Ramchandra Nair (supra), in case of another tenant of Plaintiffs. This Court held in paragraphs 4 and 5 as under:
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4.So far as the first ground of default in payment of rent is concerned, it appears that original Plaintiff served notices dated 26 March 1976 and 28 March 1976 demanding arrears of rent from 1 February 1975 from the Petitioners-Tenants. It is common ground that within a period of 30 days from the date of service of notice dated 26 March 1996 and 28 March 1976, the arrears of rent demanded in the notice are not paid. However Petitioners-Tenants raised defence before the Small Causes Court that they were always ready and willing to pay the rent. In support they relied upon two applications for fixation of standard rent filed before the Small Causes Court. It appears that various applications for fixation of standard rent were filed by Petitioners-Tenants in the year 1970. A the settlement took place between landlord and tenant on 14 September 1972, in pursuance of which an agreement dated 14 September 1972 was executed, under which the tenants agreed for increase in rent by Rs.4/- per month while landlord agreed for carrying out urgent repairs in respect of the tenanted premises as detailed in the agreement. It was agreed between the parties that expenses towards such repairs were to be borne by both the parties equally. This is how the first applications for fixation of standard rent filed in the year 1970 were settled and disposed of. There is serious dispute between the parties as to whether the major repairs envisaged in the Agreement of 1972 were carried out or not and for the purpose of deciding the first ground of default in payment of rent, in my view, it is not necessary to go into the said dispute. It appears that Petitioners-Tenants were not willing to pay the rent of Rs.17.01 per month and notice dated 22 October 1975 was addressed by the original Plaintiff threatening the tenants with issuance of distress warrants for non-
payment of rent from since 1 February 1975. In the light of the said notice dated 22 October 1975, Petitioners-Tenants were advised to file second set of applications for fixation of standard rent on 6 November 1975 praying for fixation of Rs.8/- as standard rent in respect of the suit premises. It appears that in the said applications, an order was passed by the Small Causes Court fixing interim rent at Rs.15/-. It appears that arrears of rent in respect of 9 months of Rs.135/- was paid at one go on 18 November 1975 in pursuance of order passed by the learned Judge on 6 November 1975. It is an admitted position that after December 1975, the rent was neither paid to the landlord nor deposited in the Court. When the standard rent fixation applications came up before the Court on 19 March 1976, the tenants agreed for dismissal of the same on the ground that the Government was about to take over possession of the land in question. The Small Causes Court also observed that earlier standard rent fixation applications pertaining to the year 1970 were decided as settled and that therefore the subsequent applications filed in the year 1975 were otherwise not maintainable. This is how the second set of standard rent fixation applications came to be rejected on 19 March 1976.
5. The position that therefore emerges is that the interim order passed by the Small Causes Court fixing interim rent of Rs.15/- per month in said standard rent applications came to an end on 19 March 1976. On 26 March 1976, original Plaintiffs served the suit demand notices demanding arrears of rent from 1 February 1976. Therefore, it was incumbent for the tenants to pay to the landlord the amount demanded in the notice dated 26 March 1976 within a period of 30 days of receipt of those notices. Since standard rent fixation applications were dismissed on 19 March 1976, the interim order had came to an end, which meant that payment of only part rent of Rs.15/- up to November 1975 could no longer be cited as a defence to eviction action under provisions of section 12 of the Bombay Rents, Hotel Page No. 12 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx and Lodging House Rates Control Act, 1947 (Bombay Rent Act). Thus a clear case on default in payment of rent is made out in the present case where tenants deposited only part rent up to November 1975 in the standard rent fixation applications, which were dismissed before issuance of the notices dated 26 March 1976 and 28 March 1976. Tenants thus clearly took the risk of not making good the default in payment of rent within 30 days of receipt of notice dated 26 March 1976 and 28 March 1976. Mr. Harbhajan Singh has rightly relied upon judgment of this Court in Jaypal Bandu Adke & Anr. vs. Basavali Gurulingappa and another, AIR 1982 Bombay 563, in which this Court has held in paragraph 19 as under:
"19. Now, if you go to S.11(3) of the Rent Act, it expressly refers to an application for fixing standard rent by a tenant who has received a notice from his landlord under sub-section (2) of S.12. When such application is made, there is an obligation on the Court to forthwith specify the amount of rent or permitted increases which are to be deposited in Court by the tenant and the Court is further obliged to make an order directing the tenant to deposit such amount in Court or at the option of the tenant make an order to pay to the landlord such amount thereof as the Court may specify pending the final decision of the application. It is important to point out that under S.11(3) it is provided that if the tenant fails to deposit such amount or, as the case may be, to pay such amount thereof to the landlord, his application shall be dismissed. In other words, the effect of the provisions of Section 11(3) is that if the tenant fails to comply with the order made by the Court in the application under S.11(3), the tenant will be relegated to the same position in which he was before making the application and the result will be that it will have to be held that no dispute has been raised by him.
In my view, therefore, the ground of default in payment of rent has rightly been accepted by the Appellate Court.
15) So far as the ground of erecting permanent structure without landlord's consent is concerned, the same was related to initial action of the Defendant in enclosing the open verandah. The act was sought to be defended by referring to the covenants of the agreement dated 14 September 1972. By that Agreement, permission was granted only to carry out activities as specified in the Agreement, which did not include enclosure of verandah. To make things worse, for Defendant he demolished the premises during pendency of the Suit and reconstructed the same. The Trial Court has appreciated the evidence on record and has recorded a finding of fact that the Page No. 13 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx entire structure was demolished and reconstructed by the Defendant. There appears to be an admission on the part of the Defendant in this regard. Defendant has given admissions relating to the new construction erected at the site. There is specific admission that 'it is true that I have removed the old structure and constructed with bricks'. There is a further admission that 'I have carried out reconstruction about 10 years back i.e. during pendency of the Suit'. Thus, there are specific admissions about reconstruction of the entire structure and except relying on the Agreement dated 14 September 1972, Defendant was unable to produce any consent of the landlords to justify his act of demolition of old structure and reconstruction of the same. Replacement of walls, expanding size of the premises, closure of verandah, etc. clearly amounts to erecting permanent structure. Therefore, ground under provisions of Section 13(1)(b) of the BRC Act is clearly attracted in the present case.
16) So far as commission of acts contrary to the provisions of Section 108(o) of the TP Act is concerned, Defendant has gone beyond causing damage to the tenanted structure by virtually reconstructing the entire structure. Demolition of original structure has obviously caused destruction/injury to the premises. Therefore, ground under Section 13(1)(a) of the BRC Act is also clearly established.
17) In fact, allegation in the present case appears to be similar to the one involved in P. Ramchandran Nair (supra), in which this Court held in paragraph 7 as under:-
7.Coming to the second ground of unauthorized additions and alterations under provisions of section 13 (1)(b) of the Bombay Rent Act, it is an admitted position that the concerned additions and alterations are effected by the tenants. The only defence taken by them is that they were permitted to do so under express terms and conditions of the Agreement dated 14 September 1972. Perusal of the said agreement would indicate that the permission granted to the tenants was only to carry out activities Page No. 14 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx as specified in the said agreement, which did not include permission for pulling down the structure and replacing the same with a new structure, and in case, from expanding the area of tenanted structure. Plaintiff came out with a specific case that while reconstructing the entire any structure, the tenants expanded the area of the tenanted premises. After appreciating the evidence on record, the Trial Court has recorded a finding of fact that the original house was removed and replaced with material structural changes in the premises by replacing the four walls, roof and position of the rooms. In my view, these activities cannot be construed as the one permitted under the agreement of 1972. Thus unauthorized additions and alterations to the suit premises is clearly established attracting the folly under section 12(1)(b) of the Bombay Rent Act.
18) Coming to the last issue of declaration of the land on which the suit premises are situated as slum, according to the Respondent -Plaintiff, the slum declaration was made on 24 May 2012 therefore permission of the Competent Authority was not required for institution of the Suit in the year 1976. Therefore, provisions of Section 22 of the Slums Act did not come in the way of institution of the Suit. Respondent has gone ahead and submitted that the objection relating to slum declaration cannot be agitated in execution proceedings and has relied upon judgment in Cynthia (supra). In my view it is too premature at this juncture to rule on the issue of permissibility to execute the decree in absence of permission under Section 22 of the Slums Act. As and when execution proceedings are filed, Plaintiffs would be at liberty to rely upon Cynthia (supra) before the executing court. Mr. Koli's reliance on judgment of Division Bench of this Court in Satish Shahu Bane (supra) is misplaced. In case before the Division Bench, the issue was about the setting aside of declaration of slum area and it is effect on the Suit instituted without compliance with provisions of Section 22 of the Slums Act. The Division Bench of this Court held that if Suit is filed during subsistence of slum declaration, mere setting aside of the slum declaration during pendency of the Suit would not validate the Suit, which was invalid on the date of its institution. The judgment has no Page No. 15 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx application to the facts of the present case where the land was never declared as slum at the time of institution of the Suit.
19) Conspectus of the above discussion is that the Trial and the Appellate Courts have rightly upheld the ground under Sections 13(1)(a) and 13(1)(b) of the BRC Act. The ground of default in payment of rent has also been rightly accepted by the Appellate Court. I, therefore, do not find any valid reason to interfere in the orders passed by the Trial and the Appellate Courts. Writ Petition is devoid of merits and deserves to be dismissed.
20) Civil Application (stamp) No.20265 of 2019 is filed seeking permission to deposit rent @ of Rs.18.28 since the year 1996. Since the eviction decree is upheld, possession of the suit premises by Petitioner/Defendant would become invalid from the date of the decree i.e. 18 September 1995 and it is therefore not necessary to deposit rent in respect of the suit premises. Civil Application (stamp) No.20265 of 2019 is accordingly disposed of.
21) Civil Application No.1329 of 2016 is filed for amendment of the Petition for incorporation of events leading slum declaration w.e.f. 24 May 2012. This aspect is already discussed in the judgment and it has been held that such slum declaration during pendency of the Petition would have no effect on the eviction decree. Therefore, permitting amendment at this stage is not necessary. Civil Application No.1329 of 2016 is accordingly disposed of.
22) Petition is accordingly dismissed. Rule is discharged. Considering the facts and circumstances of the case, Petitioner/Defendant is granted time upto 28 February 2025 to vacate Page No. 16 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 ::: Megha 19_wp_4542_1997_fc.docx the suit premises subject to non-creation of any third party rights therein.
[SANDEEP V. MARNE, J.] Page No. 17 of 17 20 December 2024 ::: Uploaded on - 21/12/2024 ::: Downloaded on - 23/12/2024 23:58:21 :::