Madras High Court
Esakki Asari (Died) vs Tirunelveli Nagara Hindu Siva ... on 6 November, 2019
Author: P.T.Asha
Bench: P.T.Asha
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.11.2019
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P. (MD)No.1271 of 2011
1.Esakki Asari (died)
2.E.Subramanian
3.E.Balasubramanian ... Petitioners
(petitioners 2 and 3 are brought on record as
LRs of the deceased sole petitioner vide order
dated 14.08.2019 made in C.M.P(MD) No.4056 of 2019)
Vs.
Tirunelveli Nagara Hindu Siva Maruthuvar
Samuthaya Nala Sangam,
through its Secretary,
E.Sankaralingam, Reg No.52/2007
Door No.120 and E.Saliyar Street,
Tirunelveli Town-627 006.+ ... Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of Constitution
of India, against the Judgment and Decree dated 05.04.2011 passed in
C.M.A.No.23 of 2010 on the file of Principal Sub Court, Tirunelveli
confirming the order passed in I.A.No.705 of 2008 in O.S.No.259 of 2008
on the file of Principal District Munsif Court, Tirunelveli, dated
18.06.2010.
For Petitioners : Mr.S.Balasubramanian
For Respondent : Mr.D.Nallathambi
http://www.judis.nic.in
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ORDER
The above civil revision petition arises in proceedings filed under Section 9 of the Tamil Nadu City Tenants Protection Act.
2.The facts in brief which are necessary for disposing of the civil revision petition are as follows:-
The property subject matter of the suit in O.S.No.259 of 2008 on the file of the District Munsif Court, Tirunelveli, is a vacant site, which was given on rent to the deceased first petitioner herein hereinafter referred to as “Esaki Asari”. The case of the respondent/land lord is that the welfare society of the Maruthuvar community had given on rent the vacant site to Esaki Asari, who was engaged in the business of putting up temporary pandal. Though the vacant site was given on rent, after November 2001, no rent whatsoever was paid by the tenant. Further, since the land was required for the use of members of the society, the respondent/plaintiff had demanded Esaki Asari to vacate the premises vide their letter dated 02.01.2008 and he had received the said letter on 05.01.2008 and sent a reply on 27.01.2008. The respondent/plaintiff had further contended that apart from that the portion situated in the northern and western sides of suit property, was given rent to one Subbammal and she put up a cattle shed and there is no kind of http://www.judis.nic.in 3 superstructure there on. Therefore, the plaintiff sought for recovery of possession and damages.
3. Esaki Asari had filed a written statement inter alia contending that he is entitled to be compensated under the Tamil Nadu City Tenants Protection Act herein after referred to as “the Act”, since the superstructure has been put up by him. Therefore, he had filed I.A.No. 705 of 2008 on the file of the Principal District Munsif Court, Tirunelveli, invoking the provision of Section 9 of the Tamil Nadu City Tenants Protection Act, claiming the sale of that portion, which is in his occupation. In the petition, he would submit that he has put up the shed in the vacant site and he has been storing of his decoration articles and the materials required for putting up the pandal, etc., He would further submit that if he is now made to vacate the premises, it would affect his business and put him to a great deal of hardship. He therefore contended that he was entitled to sale of the portion that is in his occupation.
4.The respondent/land lord had filed a counter inter alia contending that Esaki Asari was not entitled to the protection of the Act, since the structure that is put up upon the vacant site, is a temporary one and the http://www.judis.nic.in 4 Commissioner, who had visited the premises, had clearly noted down that there are no permanent structure on the site. They would therefore seek for dismissal of the said petition.
5.The learned Principal District Munsif, Tirunelveli, who heard the Section 9 application proceeded to dismiss the said application relying upon various judicial pronouncements regarding what is building and the qualification of tenant for availing the benefits of the Act. The said order was taken up on appeal by Esaki Asari in C.M.A.No.23 of 2010 before the Principal Sub Court, Tirunelveli. The learned Principal Subordinate Jude has also confirmed the findings and the decisions of the learned Principal District Munsif, Tirunelveli. Challenging the said concurrent orders, Esaki Asari is before this Court. Pending the revision he had passed away and his legal representatives have been brought on record as petitioners 2 and 3.
6.Mr.S.Kumar, learned counsel appearing on behalf of the petitioners would submit that Section 2(1) of the Act does not contemplate the building being of a permanent nature. He would also draw the distinction between the definition of building under the Act as well as the Tamil Nadu Building (Lease and Rent Control) Act 1960. He http://www.judis.nic.in 5 would invite the Court's attention to Paragraph 3 and 5 of the counter filed by the respondent/landlord, wherein they have admitted that Esaki Asari has been using the premises by putting up the shed and he would submit that this submission itself would prove that the petitioner/tenant is entitled to the protection of the Act. He would invite the Court's attention to the judgment and decree of the Allahabad High Court reported in AIR 1925 All 203 in the case of Amjad Khan and others Vs. Shafiuddin Khan and others, with particular reference to paragraph No.7, wherein it has been held as follows:-
The house in dispute as been in the continued occupation of Nur Khan and after him by that branch of his line which is now represented by the contesting defendants without the payment, of any rent, and the: mere fact that being ignorant of the origin of their title they have denied, the title of the plaintiffs, would not render them liable to ejectment. As pointed out in Malik Akhar Ali Khan V. Shah Muhammad (1) a licensee, unlike a lessee, does not forfeit his license by merely denying the title of his licensor. In Nasirul Zaman Khan V. Azimullah (2) it was held that a license could not be revoked, if the licensee acting upon the license had executed a work of a permanent character. It was further pointed out that a Kuchcha thatched house might be a work of a permanent character and the fact that the thatch was renewed from time to time does not make it a work of a temporary character. On behalf of the plaintiffs respondents reliance has been placed on the decision in Jai Chand Bahadur V. Girwar Singh (3).There the question was one of burden of proof of adverse possession and a licensee who had set up an adverse right was held to have no title to claim the same, unless he succeeded in establishing his title by adverse possession. There is no question of burden of proof here. The title of the plaintiffs as owners of the land and of the defendants as licensees from the former proprietor is be, and dispute. The only question is whether the license has been forfeited by reason of the denial set up in this http://www.judis.nic.in 6 case. There was no denial prior to the suit. Unless the license is shown to have been granted under restrictive condition of the nature set up, no revocation can be allowed to the prejudice of the heirs of the licensee, by whom a permanent structure has been built.
7.He would also rely on the judgment of Patna High Court reported in AIR 1980 PATNA 120 in the case of Leena Roy Choundhary and others Vs. Most. Indumati Bose and others, wherein the Court has held that while deciding whether the construction made was temporary or permanent one, two factors play an important role, namely, the nature of the structure and the intention with which that is made and if the nature of the structure is such that the structure will endure for a long time and the intention of the lessee in constructing the structure is that he should use it as long as he remains a lessee, the construction should be regarded as a permanent structure. The same view that has been taken by the Hon'ble Supreme Court in the judgment reported in 2012 (6) CTC 344 in the case of Purushottam Das Bangur and other Vs. Dayanand Gupta, wherein the Hon'ble Supreme Court has held as follows:-
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 Repondent-
http://www.judis.nic.in 7 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 whil 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.
8.Per contra, Mr.D.Nallathambi, who entered appearance for the respondent/land lord, would submit that the Commissioner in his report has squarely observed that the major portion of the suit schedule property had broken and the portion of which, was occupied by the temporary structure, namely, the poles embedded into the land with thatched roof, in which certain decoration articles that has been stored. He would also invite the attention of this Court to the cross-examination of the P.W.1 Esaki Asari, wherein he has accepted that there was no permanent structure on the date on which the evidence was being deposed and the land was vacant and there was no structure. He would also point out that the witness had admitted that his business is only seasonal, depending on the functions in the temple. He would therefore contend that the order in appeal does not require any reconsideration and the same may be confirmed.
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9.Heard the learned counsel appearing on either side and perused the papers.
10.The entire arguments revolve around the fact as to whether the structure alleged to have been put up by Esaki Asari is a permanent one or temporary one. Admittedly, he has been periodically putting up temporary structures consisting of a shed with poles having thatched roof with no walls and these structures could be dismantled without any damage to the materials used for putting up the said shed. Therefore, from the very nature of the structure, it is clearly evident that the same is not a permanent nature and that it is a temporary nature. In this regard, useful reference would be made to the judgment and decree of this Court reported in 1985 (1) MLJ 124 in the case of C.N.Sivasankaran Nair Vs. V.Rajendran by Power of Attorney agent, N.Velapan. In the case referred supra, the structure involved was a wooden bunk and the question that was placed for consideration was whether the wooden bunk of the nature referred to by the Courts below would amount to a building, within the meaning of Sections 3 and 9 of the Tamil Nadu City Tenants Protection Act. Qualifying the benefits of the Act, the learned Judge discussed the provisions of the Act, i.e., Sections 3 to 5 and 9 of the Act. The learned Judge while discussing the definition of the word 'building' has referred as follows:-
http://www.judis.nic.in 9 The definition of the word 'building' occurring in Section 2(1) of the Act referred to earlier consists of two parts. The first part involves a tautology in that 'building' is defined as meaning 'any buildings'. It includes hut or other structure. It is not the case of either side that the superstructure in this case is a hut or other structure. The first part of the definition concerns itself with the configuration or the total effect produced by its outlines, form or the shape of the superstructure as a building. The Second part of the definition enumerates the material content of the building. If, under the first part of the definition, a superstructure can be regarded as a 'building' it is really immaterial as to what goes into the making of it, be it wood, mud or metal or other material. Before, a superstructure can take the shape of 'building' it has to eb raised or built or erected or put up as a building on a vacan site. The commencement of erection or the putting up or raising of the building is by the excavation of the earth and the laying of a foundation in the site over which the building is to be put up or raised. The further parts of the building like walls, roof, etc. are put up or raised on the foundation so laid. Even if only the foundation so laid and no part of the building is raised above the ground level, it would be none the less one of the steps or stages in the erection or the putting up of the building. The commonsense conception of a 'building' denotes a certain degree of its permanency in the place or site, where it is raised or built, as opposed to portability. A building is also intended to endure for a considerable time, though not everlasting. What is essential is the change in the physical character of the site over which the building is put up. The building put up by changing the physical http://www.judis.nic.in 10 character of the land by digging up a foundation acquires a certain degree of permanency and the very value of the building, as one such is on account of this difficulty in portability, arising out of its being fastened securely to earth.
11.Therefore, telescoping the observations of the Court in the judgment cited supra to the facts of the instant case, it is clearly evident that there is clearly no permanency that can be attached to the building that has been periodically put up by the petitioner/tenant. Ultimately, the leaned Judge in the decision cited above, has held as follows:-
Thus, the provisions of the Act under sections 3 to 5 and 9 clearly show that there has been a deliberate departure from the ordinary rights of parties, in the case of a lease of vacant site and putting up of a superstructure therein, governed by the provisions of the Act by the modification of the repeal of the provisions of the Transfer of Property Act under Section 13 of the Act. That is also a pointer to the conclusion that the 'building' in respect of which the compensation is made payable under the provisions of the Act, is a permanent structure resting on foundations embedded in earth and not admitting of or permitting removal in tact and in specie. The aforesaid considerations persuade me to hold that a wooden bunk of the kind in this case cannot be a 'building' in respect of which the tenant is entitled to compensation, for, it can always be transported or moved by the tenant without in any manner changing or affecting either the physical character of the land over which it is placed, but even the very superstructure http://www.judis.nic.in 11 itself. The Courts below were, therefore, right in holding that on the facts and circumstances of this case, the tenant was not entitled to compensation under Section 3 of the Act, and, was therefore, disentitled to the benefit of Section 9 of the Act.
12.The above decision in all fours would apply to the facts of the case on hand. Hence, I do not find any infirmity in the order passed by the Courts below. This Civil Revision Petition is dismissed accordingly. No costs. Consequently, connected miscellaneous petition is closed.
06.11.2019 Index:Yes/No Internet:Yes/No cp To
1.The Principal Subordinate Court, Tirunelveli.
2.The Principal District Munsif Court, Tirunelveli.
http://www.judis.nic.in 12 P.T.ASHA, J cp C.R.P. (MD)No.1271 of 2011 06.11.2019 http://www.judis.nic.in