1996(4) ALL MR 570
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.S. PATANKAR, J.

Vithal Govind Mamdapurkar & Ors. Vs. Sachindanad Vasudeo Tatke.

Writ Petition No.5848 of 1986

19th January, 1996

Petitioner Counsel: Shri. A. V. ANTURKAR
Respondent Counsel: Shri. S. M. PARANJPE for SHRI D. A. NALAWADE

(A) Transfer of Property Act (1882), S.108(O) - Causing damage to building - Damage contemplated by S.108(a) must be wilful damage and of major nature - Damage of minor nature resulting from doing same thing which is necessary for proper user of property cannot fall within clutches of S.108(O).

(B) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.13(1)(hhh) - Demolition - Local authority issuing notice to landlord partly for demolition and partly for repairs - Repairs not carried out - Authority granting permission to tenant to carry out repairs and after doing so granting him completion certificate - Held, subsequent events indicated that premises were not required for immediate purpose of demolition. 72 Bom. L. R. 569 and 1981(1) All India Rent Control Journal Followed. (Para 10)

Cases Cited:
72 Bom. L. R. 569 [Para 10]
1981(1) All India Rent Control Journal [Para 10]


JUDGMENT

JUDGMENT :- The Appellate Court declined to pass the decree in favour of the petitioner under Section 13(1)(a), 13(1)(b) and 13(1)(hhh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereafter referred to as the Bombay Rent Act) by passing order dated 30.11.1985 in Civil Appeal No.313 of 1982 and reversed the decree passed by T.C. The same is under challenge in this Petition, filed under Art.227 of the Constitution.

2. The petitioner filed the suit against the respondent for eviction from the suit premises which are situated on the first floor of House No.238, situate at Rasta Peth, Pune. Precisely, the premises were three rooms. It was the case of the petitioner that the Pune Municipal Corporation had issued two notices dated 4.11.1971 (Exhibit 61) for demolition of the suit premises to him and another to the respondent on 14.12.1971 (Ex.95). Therefore, he is entitled to get possession from the respondent under Section 13(1)(hhh) of the Bombay Rent Act. It was further contended that the respondent carried out certain repairs pursuant to the notice given to him by the Municipal Corporation at Ex.95. He had made certain constructions which amounted to erecting permanent structures and hence he is liable to be evicted under Section 13(1)(b) of the Bombay Rent Act. It is also pleaded that while making that permanent construction he has violated the provisions of Section 108(O) of the T.P.Act and hence, the petitioner is entitled to get a decree under Sec. 13(1)(a).

3. The respondent pointed out that pursuant to the notice issued by the B.M.C. at Ex.95, he has carried out the repairs and there is no threat of immediate demolition. It was further pleaded that the notice issued under Sec.264(1) of the Provincial Municipal Corporation Act, 1947 was not relating to demolition of the entire premises but only part of the premises. Therefore, the petitioner is not entitled to get the decree under Section 13(1)(hhh). It was further contended that he has not made any permanent construction as such but what he has carried out was pursuant to the notice issued by the Municipal Corporation at Ex.95 and they were only repairs and hence the petitioner cannot get the decree under Section 13(1)(b). He also denied the allegation that he has committed any act contrary to the provisions of Section 108(c) of the T.P.Act or that the repairs carried out by him were in any way of such a nature which would violate the said provision.

4. On 4.11.1971, the Corporation served a notice, Ex.61 on the petitioner under Sec.264(1). On 14.12.71, a similar notice (Ex.95) was served upon the respondent as the petitioner failed to comply with Exhibit 61. On 1.1.1972, employees of the Corporation had come to the premises for carrying out the demolition work as per the notice issued to the petitioner and the respondent but the demolition work was not carried out in view of the request made by the parties. On 8.7.1972, the western portion of the second floor fell over the central room of the respondent. Thereafter, the employees of the Corporation pulled down the dangerous part of the house. On 17.8.1972, the petitioner objected for repairs along with the report of his Engineers that the suit property was in ruinous conditions. In August, 1972, the respondent made an application to the Corporation for repairs to the premises. On 25.10.1972, the Corporation issued fresh notice of repairs to the petitioner under Section 264(1). On 29.11.1972, the Corporation asked the respondent to give estimate of costs of repairs. The same was given by the respondent on 10.1.1973. On 4.3.1973, the Corporation issued notice of repairs to the petitioner informing him that if he fails to carry out the repairs, the tenant would be permitted to carry out the same. On 23.4.1973, the petitioner applied for permission for constructing new building. On 24.4.1973, the petitioner filed Civil Suit No.720 of 1973 against the Corporation challenging the notices dt/-25-10-72 & 4-3-73. On 23.5.1973, the Corporation permitted the petitioner to construct the building subject to the objections by the tenants. On 23.5.1973 itself, the Corporation granted permission to the respondent to repair on 29.5.1973. The petitioner served notice on the respondent to stop the repairing work which he was carrying on pursuant to the permission granted to him. It was alleged by the petitioner that he got the permission for building. The said notice was replied by the respondent on 5-7-1973. The respondent carried out the repairs and on 23.7.73 the completion certificate was given to the respondent by the Corporation. On 27.7.73, the petitioner issued notice of termination to the respondent and filed the suit on 31.10.1973. The respondent on 4.6.1973 filed the Civil Suit No.1436 of 1974 for recovering the cost of repairs.

5. The learned Advocate appearing for the petitioner submitted that the respondent was liable to be evicted for erecting permanent structure. He submitted that in para 5 of the plaint it has been mentioned that the respondent has carried out permanent construction by mentioning items 'a' to 'k'. However, both the Courts below have taken the view that except the items mentioned at 'a' & 'e', the rest were carried out by the respondent for the beneficial enjoyment of the suit premises and cannot be said to be of permanent nature and cannot fall within the scope of permanent structure. For example, they related to change in the door replacing it by window, etc.

6. The Courts below were right in holding that the same were carried out for better enjoyment of the property by the respondent. In fact, it is a question of fact and it may not be gone into in this petition under Article 227 of the Constitution of India.

7. The learned Advocate appearing for the petitioner next submitted that carrying out of construction mentioned at items 'a' and 'e' of para 5 of the Plaint clearly amounted to erecting permanent structure. This was done by the respondent without written permission of the petitioner and hence it falls within Sec.13(1)(b). Para 5(a) & (e) of the Plaint deals with erecting a wall on the western side. Clearly, the respondent has carried out the said construction in view of the notice which was issued to him by the Municipal Corporation at Ex.95 and in compliance thereof. In fact, the petitioner himself was directed by the Municipal Corporation by notice at Ex.61 to carry out those repairs. However, the petitioner has failed. Therefore, the respondent was required to carry out the same. The Court below is right in holding that the petitioner cannot take advantage of his failure and evict the respondent on this ground.

8. The learned Advocate for the petitioner next submitted that the evidence on record shows that what the respondent has carried out was in excess of what was directed by the Municipal Corporation and he also attacked the type of construction made by the respondent. In that respect, he invited my attention to the evidence led on behalf of the respondent of Engineer Khire, Ex.97 and the map drawn by him at Ex.98. No doubt, Mr. Khire has admitted that 2 pillers were required to be set up as per Municipal notice and he has constructed 7 pillers. However, he has explained that the same was not additional construction as such and they were required to be constructed for carrying out the repairs. He has also deposed that the work carried out by him was partly re-construction and partly repairs. In addition, the Municipal Corporation had issued the completion certificate after the repairs were carried out. Therefore, this cannot lead me to the conclusion that what was done by the respondent amounted to erecting permanent structure. The Court below was, therefore, right in coming to the conclusion that the petitioner cannot get decree under Section 13(1)(b) of the Rent Act.

9. The next question is whether the petitioner is entitled to get a decree under Sec.13(1)(a). Section 13(1)(a) enables a landlord to a decree of eviction if the tenant has committed any act contrary to the provisions of clause 'o' of Sec.108 of the Transfer of Property Act, 1882. It is well settled that in a case where reliance is placed on Sec.108(o) of the T.P.Act, the damage must be a wilful damage and if the damage is of minor nature, resulting from doing something which is necessary for the proper user of the property for which it has been let out, it cannot fall within the clutches of Sec.108(o) of the T.P.Act. It is necessary that the damage or waste should not be of minor nature. It should be some major or substantial in nature. In the present case, it is difficult to hold that if any such damage or waste was caused by the respondent and wilfully. In the entire plaint, the only allegation made at the end of para 5 is that the defendant has carried out certain alterations without considering the objection raised by the petitioner and after colluding with the officers of the Municipal Corporation. It is alleged that he has done the same in excess. Therefore, even there is no prima facie case stated by the petitioner in the plaint. Therefore, the petitioner cannot succeed in getting the decree of eviction under section 13(1)(a).

10. The next question is whether the petitioner can get the decree under Sec.13(1)(hhh). The learned Advocate for the petitioner submitted that the notice issued by the Municipal Corporation at Ex.61 directed the petitioner to demolish the entire western wall and also to change the first floor beam as it has become useless. He submitted that this is demolition of the entire suit premises and not mere repairs thereof. He submitted that the Court below has completely erred in reading the said notice and coming to the conclusion that this only indicated part demolition. The notice at Ex.61 says that the western wall has gone out of plumb. It is necessary to replace and repair it by using the proper material. It further says that it is necessary to change the beam of the first floor as it has become useless. It also shows that it is necessary to demolish the second floor of the building in order to avoid the danger. It also shows that part of the ground floor and the first floor requires extensive repairs. It is necessary to note at the outset that demolition was ordered of 2nd floor and not of 1st floor on which the suit premises are situated. Therefore the notice is partly for demolition and partly for repairs. However, it is not possible to ignore subsequent events and intervening circumstances which have taken place. I have pointed out above those facts. The Municipal Corporation also issued notice to the respondent at Ex.95 dated 14.12.1971 to carry out the repairs. The respondent made an application to the Corporation to permit him to carry out the repairs as per the notice of the Corporation. He submitted the estimate and cost thereof. The Corporation gave a chance even to the petitioner to carry out those repairs. There was failure on the part of the petitioner to do anything. Therefore, the Municipal Corporation granted permission to the respondent to carry out the repairs on 23.5.1973 and the respondent carried out the same. The Municipal Corporation thereafter granted him completion certificate on 23.7.73. The learned Advocate for the respondent is right in submitting that the subsequent events or intervening circumstances show that the efficacy of the notice was lost or impaired and the premises are not required for immediate purpose of demolition by the Municipal Corporation. He has rightly relied upon the two judgments of this Court in that respect i.e. 72 Bombay Law Reporter 569 (Mrs.Piadad Fernandez v. K.M.Ramesh) and 1981(1) All India Rent Control Journal (M.L.Sonavane vs. C.C.Sonar). It came to be observed as follows in M.L.Sonavane's case.

"25. The more pertinent question however, is, whether the satisfaction of a local authority can be a substitute for the satisfaction of a court. The court must be satisfied as the section says of two things. It must be satisfied that a decree for possession has to be passed against a tenant and secondly, "premises are required for the immediate purposes of demolition." Unless the court is satisfied about the existence of both these things, it would be difficult to see how a court can pass a decree for eviction against a tenant. The satisfaction must relate to the requirement of passing a decree for possession against the tenant, and the immediate necessity of demolition. The satisfaction of the court is not a substitute for the satisfaction of the local authority. Nor is it that the court must itself inquire that the premises are in such a runious condition that they are required to be demolished. That satisfaction is relegated to the local authority. But, even apart from that satisfaction, an area of satisfaction is still reserved for the court by the terms of the section, which deals with that satisfaction with regard to the passing of a decree for possession against the tenant, such satisfaction has also to be with regard to the immediate purpose of demolition. It is there and under those circumstances that the subsequent events and actions enter into the considerations of the court. If the court is satisfied on a consideration of the subsequent events that the premises are not required "for the immediate purposes of demolition," then, notwithstanding the order passed, upon a bona fide exercise of the power by the local authority, court may still refuse to pass a decree. To my mind that is the decision and principle laid down in 72 Bombay Law Reporter 569 and the judgment of Justice Patel referred earlier."

There the learned Judge in turn relied upon 72 B.L.R.569. In the present case, in view of the permission granted to the respondent to carry out the repairs and granting of completion certificate after the repairs wee carried out, the efficacy of the notice issued by the Municipal Corporation under Section 13(1)(hhh) was lost or impaired and it cannot be said that the premises were required by the Municipal Corporation for the purpose of immediate demolition.

11. It is next contended by the learned Advocate for the petitioner that the respondent has not carried out the construction as per the notice. He pointed out that the notice at Ex.61 required that the entire western wall should be replaced and the evidence on record shows that the entire wall was not replaced. In this respect, he invited my attention to the evidence of the defendant and his Engineer, Shri Khire, (Ex.97). No doubt, in their evidence it is not to be found that the entire western wall was replaced or was reconstructed. However, the evidence clearly shows that the entire dangerous portion of the said western wall was removed and it was reconstructed. Therefore, there was no danger left. The Municipal Corporation also issued the completion certificate after taking into consideration all the repairs or reconstruction that was carried out by the respondent. Therefore, whether the entire western wall was reconstructed or not is immaterial and cannot entitle the petitioner to get a decree under Section 13(1)(hhh). Therefore, in my opinion, the Court below was right in declining to grant decree under Sec.13(1)(hhh).

12. Hence, I pass the following order :-

Rule is discharged.

In the circumstances of the case, there shall be no order as to costs.

Rule discharged.