Gujarat High Court
Gulam Maiyuddin Fakir vs Haseenabibi Jamalji on 19 March, 2013
Author: C.L.Soni
Bench: C.L. Soni
GULAM MAIYUDDIN FAKIR MAHMADV/SHASEENABIBI JAMALJI CHAKTACHETWALA....Respondent(s) C/SCA/766/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 766 of 2013 With CIVIL APPLICATION NO. 2852 of 2013 In SPECIAL CIVIL APPLICATION NO. 766 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ GULAM MAIYUDDIN FAKIR MAHMAD & 4....Petitioner(s) Versus HASEENABIBI JAMALJI CHAKTACHETWALA....Respondent(s) ================================================================ Appearance: MR ASHISH M DAGLI, ADVOCATE for the Petitioner(s) No. 1 - 5 MR MANISH S SHAH, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 19/03/2013 ORAL JUDGMENT
Rule.
Learned Advocate Mr. Manish S. Shah appearing for the respondent waives service of notice of rule on behalf of the respondent. Considering the urgency involved in the matter, the matter is taken up for final hearing.
The petitioners who are the original plaintiffs have filed this petition under Article 227 of the Constitution of India challenging order dated 11.1.2013 passed by the learned Judge, Small Cause Court No. 10, Ahmedabad below Exh. 26 in HRP Suit No. 1180 of 2010 whereby the learned Judge rejected the application made by the petitioners seeking permission to carry out repairing work in the suit premises.
3. The facts as could be noticed from the petition are that the petitioners are tenants of the suit premises belonging to the respondent herein. In the suit premises, the petitioners are running flour mill. Since the petitioners apprehended that the respondent would forcibly take away possession of the suit premises without following due process, the suit is filed for permanent injunction restraining the respondent from taking away possession of the suit premise without following due procedure of law.
4. In the suit, the petitioners moved an application at Exh. 26 stating therein that in the suit, after hearing the parties, the court has been pleased to grant interim order of status quo which is in operation. It is further stated that the suit premises is 90 years old and it is in dilapidated condition. It is further stated that the walls of the suit premises has suffered cracks and holes at many places and there is likelihood of collapsing of such walls. It is further averred in the said application that many a times, the petitioners requested the respondent to carry out repairs in the suit premises but the respondent evaded repairing work on the ground that he would carry out repair work only after taking advise from his advocate. Thereafter also, when the petitioners requested repeatedly to carry out repairing work, the respondent for one or the another reason evaded doing of repairing work. It is then stated that the petitioners could know from the neighbours that the respondent was planning to take away possession of the suit premises on the ground that the suit premises is very old and has been in dilapidated condition, the petitioners therefore, approached the respondent making request to carry out the repairing work but on hearing such request, the respondent was annoyed and refused to carry out any repairing work. Therefore, application is filed for permitting the petitioner to carry out necessary repairing work to strengthen the walls of the suit premises and also to replace the iron sheets wherein at several places, there are holes.
5. Above application of the petitioners was resisted by the respondent contending that the petitioners have damaged the suit premises by running flour mill. It is further stated that there is no possibility of repairing the suit premises. It is then stated that without taking guidance from the Structural Engineer and permission from the Municipal Corporation, no construction or repairing work could be done. Therefore, petitioners are not entitled to any relief in the application.
6. Learned Judge after hearing the parties, though came to the conclusion that the suit premises is in dilapidated condition and requires alterations in the suit premises. Learned Judge observed that the respondent has given application to the Town Development Officer and to Ahmedabad Municipal Corporation [hereinafter referred to as the Corporation ] to take necessary action to remove the suit premises as the same is in danger condition. The learned Judge then considered provisions of section 23 of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as the Rent Act ) and came to the conclusion that the suit premises requires improvement and tenantable repairing work is not necessary in the suit premises. The learned Judge further recorded that the plaintiff has not served any legal notice to the respondent for repairing work nor even the plaintiff has produced any Structural Report from the Civil Engineer and, therefore, at this juncture, such type of application is not maintainable. On such conclusion, the learned Judge rejected the application by order dated 11.1.2013. Hence this petition.
7. I have heard the learned advocates for the parties. Learned Advocate Mr. Ashish Dagli appearing for the petitioners-original plaintiffs submitted that the premises occupied by the petitioners as tenant is about 90 years old and is in such a dilapidated condition that if no immediate repairing work is carried out, there is likelihood of collapse of the suit premises. He submitted that the learned Judge has also recorded in his order that the suit premises is in dilapidated condition and requires some alterations. He submitted that even the respondent defendant has given application to the Town Development Officer and the Corporation to take necessary action to remove the suit premises as the same is in danger condition. He has brought to the notice of the Court that pursuant to the complaint made by the respondent to the Corporation, the Corporation has issued notice dated 16.2.2013 under section 264 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the BPMC Act ) asking the petitioner to carry out repairing work of the walls, iron roof etc. immediately failing which the petitioner is threatened with filing of the criminal complaint under section 392(1)(b) of the BPMC Act and by implementing it departmentally as per section 479, amount of costs thereof will also be recovered from the petitioners as per section 438. Mr. Dagli submitted that the learned trial Judge has materially erred in rejecting the application on the ground that the tenantable repairing work is not necessary in the suit premises but improvement is necessary and also on the ground that the petitioners have not served legal notice to the defendant for repairing work. Mr. Dagli further submitted that the learned Judge has considered the photographs produced on record from which it clearly appears that the present walls with many cracks and holes therein cannot stand for long time and the same are on the verge of being collapsed on account of load of the iron sheet over the wall. Mr. Dagli submitted that in order to make the premises sustainable, repairing of the walls and replacement of the roof is urgently needed. He submitted that to sustain the whole premises, existing walls can also be replaced by new walls and such would never be the improvement in the eye of law but the same would be repairing work for the purpose of sustainability of the suit premises. Mr. Dagli further submitted that the respondent in fact want to take undue advantage of the dilapidated condition of the suit premises and the respondent has already filed suit for recovery of the possession on the ground that the construction of the suit premises is required to be removed. Learned Advocate Mr. Dagli submitted that the learned trial Judge has failed to exercise his jurisdiction by rejecting the application of the petitioners ignoring the urgent need of the petitioners to carry out repairing work in the suit premises.
8. As against the above arguments, learned Advocate Mr. Shah for the respondent submitted that the petitioner is having alternative remedy under section 29(3) of the Act before the lower appellate Court and, therefore, this Court may not entertain this petition. He submitted that the learned trial Judge has recorded finding of fact that the suit premises does not require tenantable repairing work but the same requires some improvement. Mr. Shah submitted that there is no provision for making the application under section 23 of the Act and, therefore application made by the petitioners seeking permission to carry out repairs in the suit premises is not maintainable. He submitted that section 23 specifically provides for giving of legal notice to the landlord for the purpose of carrying out any repairing work, but the petitioners have not given any such notice to the respondent, and the petitioners are, therefore, not entitled to seek any permission from the court in their pending suit for the purpose of repairing work in the suit premises. He submitted that the petitioners had also not produced report of Structural Civil Engineer and, therefore, the petitioners cannot be permitted to carry out any repairing work in the premises of the respondent because under the guise of repairing work, the petitioners want to make material alteration in the suit premises. He further submitted that the respondent has already filed the suit for recovery of possession on the ground that the suit premises is very old and is required to be demolished and the petitioners are now not entitled to continue in the suit premise as tenant and it is the right of the respondent landlord to get back the suit premises. He submitted that if the petitioners are permitted to carry out the repairing work, the respondent will be deprived of his right to get possession of the suit premises. He submitted that the learned Judge having recorded finding of fact that no tenantable work is required in the suit premises, the learned Judge cannot be said to have committed any jurisdictional error and, therefore, this Court while exercising powers under Article 227 of the Constitution of India may not interfere with the impugned order. In support of his arguments, learned Advocate Mr. Shah has relied on the decision in the case of Union of India versus Guwahati Carbon Ltd. reported in 2012 (278) ELT 26 (SC); Hindustan Coop. Housing Building Society Ltd. v. Registrar,Cooperative Societies And Another, reported in JT 2009 (2) SC 530; UP State Spinning Co. Ltd. Versus RS Pandey and another reported in (2005) 8 SCC 264; Bank of Rajasthan versus Karan Fibres and Fabrics Ltd. and Ors., reported in 2003 (2) GLH 294; Taraben wd/o. Bansilal Maganlal vs. Gulamhussain Rajabali Lokhandwala reported in 2000(2) GLH 754; Soorajmall Nagarmall v. Indian National Drug Co. Ltd. reported in AIR 1956 Calcutta 187; Doraipandi Konar v. P. Sundara Pathar reported in AIR 1970 Madras 291 and urged to dismiss this petition.
9. Having heard the learned advocates for the parties and having perused the impugned order passed by the learned Judge below application below Exh. 26 and having seen the photographs of the suit premises, it appears that not only the premises is very old but is in dilapidated condition. Learned Judge in his order has recorded that the premises is not in good condition. The defendant has also made an application to the Town Development Officer and the Corporation to take necessary action to remove the suit premises by describing the same in danger condition . With the Civil Application No. 2852 of 2013 filed by the petitioners for urgent interim order permitting the petitioners to carry out repairing work to save the suit premises from being collapsed, the petitioners have produced notice dated 16.2.2013 issued by the Corporation under section 264 (1) of the BPMC Act wherein it is stated that considering the present condition of the suit premises, the petitioners should carry out urgent repairing work of walls , iron sheet etc. There is no reason to doubt the contents thereof as per which also, the suit premises is in dilapidated condition which requires very urgent repairing work.
10. Considering the above aspects of the matter and looking to the extraordinary circumstances demanding urgent action to be taken for the purpose of preventing the premises from being collapsed, I am of the view that even if the statutory remedy is available to the petitioners under the Act against the impugned order, petition under Article 227 of the Constitution of India is required tobe entertained. Learned Judge has found that the premises is in dilapidated condition. From the photographs produced on record, it clearly appears that the walls have suffered the cracks and holes at many places and they appear to have become weak so as to sustain the entire premises. Under such extraordinary circumstances, it is not necessary to relegate the petitioners to avail of the statutory remedy.
11. In the judgments of Hon ble the Supreme Court cited by learned Advocate for the respondent, Hon ble Supreme Court has carved out exception to the effect that if the exceptional circumstances are made out by the petitioners, writ jurisdiction could be exercised by the High Court. I have discussed above that the petitioners have made out extraordinary circumstances calling for exercise of writ jurisdiction and, therefore, I deem it proper to not relegate the petitioners to avail of statutory remedy.
12. As regards contention that there is no tenantable repairing work required in the suit premises and, therefore, petitioners are not entitled to carry out the repairs in the suit premises, it is required to be noted that the petitioners have stated in their application that the walls have suffered cracks and holes and they have become so weak that the urgent repairing work is needed to sustain the walls and roof thereon. In the notice issued by the Corporation to the petitioners, the petitioners are called upon to carry out immediate repairing work in the suit premises. Structural Engineer in his report produced with Civil Application opines that without changing the original structure of the suit premises, repairing work is urgently needed.
13. At this stage, judgments in the following cases are required to be considered:
(1) In Maganlal Shivlal v. Memon Daudbhai Mithabhai reported in 1969 GLR page 336, Division Bench of this Court has in the context of the Saurashtra Rent Control Act, held and observed as under in para 8:
8. Now, the term renovation is not defined in the Act. We have, therefore, to look to its dictionary meaning and to adopt that meaning which is justified by the context in which the word renovation is used in the clause. In Webster s Dictionary (20th Century, Second Edition), the word renovate is explained as follows:
to make new or like new, to clean up, replace worn and broken parts in, repair etc.; to restore to good condition.
Therefore, according to this dictionary meaning the term renovation would mean making a thing new or restoring a thing to good condition or to repair a thing. It would also include replacement of worn and broken parts in a thing. Now, under sec. 13(1) (h), the requirement of the plaintiff can be either for repairs or renovation. Since the two words are used disjunctively by the Legislature, it must be assumed that the Legislature used the two words to express two distinct and separate meanings. The word repair conveys the idea of replacing worn, broken or lost parts in a thing or restoring the thing to a good condition. In Greg. v. Planoue, (1936) 1 K.B. 669, Salter, L.J. States :
I take the word repair as meaning in the language of Lord Blackburn in Jnglis v. Buttery & Co. (1878) 3 Appeal Cases 552, the making good defects, including renewal where that is necessary.
Therefore, whenever a thing or a part of a thing is worn out and a new thing is replaced in its place, such replacement of a new thing amounts to repair of the thing. The term renovation as seen from the meanings given in the dictionaries includes the making of repairs and also includes the act of making or creating a new thing but the term repair would not include the meaning of creating or making a new thing. In so far as the original building is kept as it is and portions of it are restored to good condition or such portions are worn out or broken or damaged are replaced by the new portions or the weak portions are strengthened, the building is said to be repaired. Such acts would no doubt also amount to renovation. But when the building itself is demolished and a new building is constructed on the site, it cannot be said that the old building is repaired; but in view of the dictionary meaning, it can be said that the building is re-novated. Since it must be assumed that the Legislature has meant to use the two words repair or renovation to express two separate meanings, it must be held that the term renovation is not restricted to repairs only but includes demolition of a building and construction of another building on the same site.
(2) In the unreported judgment dated 23rd July, 1992 in the case of Memon Noormohmad Adam since deceased through his heirs and legal representatives Memon Khatijabai Abubakar and others versus Miyanji Abdulkadar Nanamiya and others in Civil Revision Application No. 51 of 1980, learned Single Judge has observed in para-7 as under:
7. This apart, it may be noted that sec. 23(1) of the Act enjoins a duty on the landlord to keep the rented premises in good and tenantable repairs. If the landlord does not fulfil the obligation to the tenant as cast by Sec. 23(1) of the Act, he is likely to incur the penal liability provided under the Act. The idea of this provision is to see that the tenant is not subjected to residence in the premises in a state of dilapidated condition. No landlord can be permitted to subject his tenant to stay in such premises. In such circumstances, if the tenant carries out repairs thereof in order to make it habitable, he cannot be said to have erected any permanent structure even if it amounts to raising of altogether new walls in the place of old dilapidated walls. It is a settled principle of law that no party can be permitted to take advantage of his own wrong. The landlords in the instant case cannot be granted the decree for possession on the ground that the tenant has erected any permanent structure even if it is believed that he was guilty of raising new walls in the place of old walls in the name of repairing the suit property.
14. In view of the above, the repairing work which the petitioners want to carry out is tenantable repairs, and therefore, in view of the law laid down by our High Court under the provisions of the Rent Act applicable to the present case, judgment of Madras High Court Doraipandi Konar (supra) relied on by the learned advocate for the respondent which is in the context of the Madras Buildings (Lease and Rent Control) Act cannot have any application for deciding the controversy involved in the present petition. Equally, the judgment of Calcutta High Court has also no application.
15. The contention that the petitioners are not entitled to make application under section 23 of the Act because sec. 23 does not provide for any remedy to the petitioner to make application before any court cannot be accepted for the simple reason that section 23 provides for obligation of the landlord to carry out repairing work in the tenanted premises where the condition of the premises calls for such repairing work when the attention of the landlord is drawn to such condition of the premises. Sec.23 does not provide that the landlord shall be required to carry out the repairing work only when the notice is issued by the tenant of the premises. If the landlord is otherwise aware about the need for repair, it is his obligation to carry out the same. It clearly appears that the landlord had full knowledge about the dilapidated condition of the suit premises and he himself had made application to the concerned statutory authorities for removing of the dangerous structure of the suit premises. The petitioners have categorically stated in their application that the respondent was requested many a times to immediately carry out repairing work. Such assertion of the petitioners read with conduct on the part of the respondent in making application to the Corporation and further conduct of the respondent for filing of the suit for recovery of possession on the ground that the suit premises has been rendered unfit for use because of damage in its structure would clearly go to establish that the respondent had full knowledge about need of repairing work in the suit premises and, therefore, even if the petitioner had not issued statutory notice to the landlord for carrying out the repairing work in the suit premises, the respondent was not absolved from his obligation to carry out the repairing work and the respondent having failed to carry out the same, petitioners were justified in making the application to the Court relying on provisions of section 23 of the Act.
16. Under the above circumstances, the learned Judge was required to entertain the application of the petitioners and to permit the petitioners to carry out necessary repairing work. Learned Judge having failed to do so committed serious jurisdictional error and, therefore, order passed by the learned Judge cannot stand scrutiny of law and is required to be quashed and set aside.
17. For the reasons stated above, this petition is allowed. Impugned order dated 11.1.2013 passed by the learned Judge, Small Cause Court No. 10, Ahmedabad below Exh. 26 in HRP Suit No. 1180 of 2010 is hereby quashed and set aside. Application Exh. 26 in HRP Suit No. 1180 of 2010 is hereby allowed. Rule is accordingly made absolute.
18. Since the main petition is allowed, no order in the Civil Application is required. Hence this Civil Application is disposed of.
19. Learned Advocate for the respondent request to stay this judgment and order for a period of two weeks. However, since this Court has exercised the powers considering the extraordinary circumstances of the case, such request cannot be entertained. Hence the request is rejected.
(C.L.SONI, J.) anvyas Page 14 of 14