Citation Codes

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Case Number

W.P No. 3866 of 1991

Attorney(S)

P.K Hushing
A.A Kumbhakoni

Judges

Anoop V. Mohta, J.

Acts

SECTION 23 A BOMBAY RENTS HOTEL AND LODGING HOUSE RATES CONTROL ACT 1947
section 13(1)(b) read with section 108(p) of the Transfer of Property Act
Clause (b) of Sub-section (1) of section 13 of the Bombay Rent Act.
EAST PUNJAB URBAN RENT RESTRICTION ACT 1949
provisions of section 13(1)(b) read with section 23
section 13(1)(b) of the said Rent Act.(iii)
section 13(1)(b) of the Bombay Rent Act.3.
section 23 read with section 13(1)(b),
section 13(1)(b) read with section 23
provisions of the Bombay Rent Act
section 23 as follows:13(1)(b)
section 13(1)(b)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioners are tenants and the respondents are landlords. The suit premises are House No. 161, City Survey No. 450, Ward No. 2, Baramati, District Pune, let at Rs. 250 per month and originally having flat roofs described as "Malwadi" and "Kilasbandi." The tenants (petitioners) allegedly replaced part of the flat roof by putting 12 wooden rafters and 18 tin-sheet roofs in place of the existing roof. The trial court and the appellate court both granted a decree for possession to the landlords on the ground that the tenant had erected an unauthorized permanent structure, relying on section 13(1)(b) read with section 23 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (the "Bombay Rent Act"). The present matter is a writ petition by the tenants challenging those concurrent findings. The High Court heard counsel for the parties and dismissed the writ petition, discharged the rule, and vacated the interim stay.

Legal Issues Presented

Whether the works carried out by the tenants (replacement of the flat roof by wooden rafters and tin sheets) amounted to the erection of a "permanent structure" within the meaning of section 13(1)(b) of the Bombay Rent Act.
Whether the acts in question could be characterized as mere "repairs" or amounted to "reconstruction," and thus whether the tenants were required to obtain the landlord's prior written consent and/or to serve a written notice under section 23 before undertaking such work.
Whether the concurrent findings of fact by the trial and appellate courts (that the works amounted to an unauthorized permanent structure and justified eviction/possession) warranted interference under the High Court's jurisdiction.

Arguments of the Parties

Petitioners' Arguments

The petitioners (tenants) contended that the alleged permanent construction/alteration was in the nature of repairs rather than reconstruction or permanent alteration.
They pointed to a Commissioner's Report (referred to in the opinion) and asserted that the landlord had failed to repair the roof despite (oral) requests, implying urgency or necessity for the tenants to act.
Implicit in the petitioners' position was the assertion that their actions were justified as repairs to keep the premises in a tenantable condition.

Respondents' Arguments

The respondents (landlords) argued that the tenants had effected a permanent alteration/reconstruction by replacing the flat roof with wooden rafters and tin sheets, thereby falling within section 13(1)(b) of the Bombay Rent Act.
They pointed out that no written permission from the landlord had been obtained for such permanent construction and no written notice under section 23 had been issued; only oral requests were alleged.
The respondents relied on a catena of judicial decisions to support the legal principle that tenants cannot unilaterally effect permanent structural alterations or reconstruction without complying with statutory requirements, and that such acts may be a ground for eviction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vimalabai Jayant Pawar v. Laxmibai Jayawantrao Nandrekar, 1984 Bom.R.C 363	This decision was listed among authorities relied upon by respondents' counsel.	The opinion lists this case as cited by the respondents; the judgment itself is not further explicated in the text.
Somnath Krishnaji Gangal v. Moreshwar K. Kale, 1995 (1) Mh.L.J 675	Set out tests for "permanent structure": mode/degree of annexation, intention, whether work causes substantial improvement or alters the nature/form of accommodation; distinguished minor repairs from permanent structures.	The court relied on Somnath to state that a construction that is substantial and alters the form/structure of accommodation may amount to a permanent structure under section 13(1)(b).
Ramakant Ganpati Potdar v. Madhav Ganesh Dixit, 1989 Mah. R.C.J 387	Considered meaning of "repairs" and "reconstruction" (dictionary meanings) and emphasised construing words in harmony with Act's purpose to protect tenants.	The opinion relied on Ramakant for the elaboration of "repairs" versus "reconstruction" and the approach to determine whether work amounted to mere repair or to reconstruction.
Shadi Singh v. Rakha, (1992) 3 SCC 55	Held that there is a distinction between repairs and structural alteration/reconstruction; a tenant cannot effect structural alterations or reconstruction unilaterally and such acts may be ground for eviction.	The court cited Shadi Singh for the proposition that unilateral structural alteration by a tenant may justify eviction and is distinct from permissible repairs.
Surajmal v. Indian National, AIR 1956 Cal. 187	Listed among authorities relied upon by respondents' counsel.	The opinion lists this case as cited by the respondents; the judgment itself is not further explained in the text.
Commissioner of Income-tax v. Rana Sugar Mills, AIR 1952 Madras 689	Listed among authorities relied upon by respondents' counsel.	The opinion lists this case as cited by the respondents; the judgment itself is not further explained in the text.
Venkatlal G. Pittie v. Bright Bros., (1987) 3 SCC 558	Considered tests for permanence under Bombay Rent Act and Transfer of Property Act (section 108(p)); enumerated factors such as intention, mode/degree of annexation, removability, dimensions, purpose, material, and durability.	The court relied on Venkatlal to support the lower courts' application of objective tests for deciding whether structures are permanent and to justify non-interference with concurrent findings.
Om Prakash v. Amar Singh, AIR 1987 SC 617	Referenced by the Bombay High Court in Somnath; context relates to issues of repairs/reconstruction under rent statutes.	The opinion notes that Somnath considered Om Prakash among other authorities; the current court relied on the conclusions in Somnath which, in turn, considered Om Prakash.
Unreported decision of Malvankar, J. in Special Civil Application No. 121 of 1968 (referred in Venkatlal)	Identified factors to assess permanence: intention, mode/degree of annexation, removability without irreparable damage, dimensions, purpose, nature of material, durability.	These factors, as reproduced by the Apex Court in Venkatlal and relied upon here, informed the objective tests applied by the courts below and upheld by the High Court.

Court's Reasoning and Analysis

The court's analysis proceeded by reference to the statutory scheme and the undisputed facts placed before the courts below. The following steps summarize the reasoning as stated in the opinion:

Statutory framework: The court reproduced and emphasised section 13(1)(b) (prohibiting erection of any permanent structure without the landlord's prior written consent) and section 23 (landlord's duty to keep premises in good and tenantable repair, and the tenant's recourse where landlord neglects repairs after a written notice of not less than 15 days). The court observed that written permission is mandatory for permanent structures and a written notice (of at least 15 days) is required for repairs where the landlord has neglected the duty.
Lack of statutory definitions: The court noted there are no statutory definitions for "permanent structure," "repairs," or "reconstruction" in the Bombay Rent Act, and therefore the court must apply objective tests developed by precedent and ordinary meanings where appropriate.
Applicable tests from precedent: The court summarized the tests adopted in earlier decisions (notably Venkatlal, Somnath, Ramakant and the Malvankar formulation reproduced in Venkatlal) — an objective inquiry focusing on factors such as nature of the structure, intention, mode and degree of annexation, removability, dimensions, purpose, materials used, and durability — to determine whether the work is a permanent structure or merely repairs.
Application to facts: Having regard to the undisputed factual findings (the tenants put 12 wooden rafters and 18 tin sheets replacing the flat roof), the court accepted the findings of the trial and appellate courts that the tenants effected a permanent alteration/reconstruction rather than mere repairs. The court noted that this change materially/substantially altered the structure of the premises and fell within the mischief of section 13(1)(b).
Non-compliance with statutory safeguards: The court observed there was no written permission from the landlord and no written notice under section 23 in the record — only an alleged oral request. The opinion emphasised that neither written permission nor written notice could be dispensed with on the facts presented, and the tenants did not show that the repairs were so urgent that they could not have waited or served written notice.
Weighing of authorities and deference to concurrent findings: The court relied on the cited authorities (particularly Venkatlal and Somnath) to support the proposition that where trial and appellate courts have applied the stated objective tests and reached concurrent findings, the High Court should not interfere simply because another view is possible. The court held that the reasoning of the courts below was consistent with statutory scheme and precedent, and that there was no case made out to disturb those concurrent findings.

Holding and Implications

Holding: Writ petition dismissed. The rule was discharged and the interim stay was vacated.

Implications

Direct effect on the parties: The dismissal affirms the concurrent findings of the trial and appellate courts that the tenants made an unauthorized permanent alteration/reconstruction of the roof in breach of section 13(1)(b) (for which written landlord consent is required) and without complying with section 23's requirements for notice where repairs are claimed. As a consequence, the decree for possession granted to the landlords by the lower courts stands.
Scope of decision: The court expressly declined to disturb the concurrent factual and legal findings of the courts below, noting that simple possibility of another view does not warrant interference under Article 227. The opinion does not purport to lay down any novel legal principle beyond applying established tests from precedent.
On precedent: The decision applies and follows existing authorities (as cited) on distinguishing repairs from permanent structural alterations/reconstruction under the rent statutes; the opinion did not announce a new legal rule or departure from the cited authorities.

End of summary based exclusively on the provided opinion.

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Najama Gulab Bagwan And Others v. Laxmibai Rangildas Gujar Since Deceased By Her Heirs And Lrs. Vinodkumar Rangildas Gujar And Others

1. The petitioners are tenants. The respondents are landlords. The premises in question, as referred in the Plaint, consists of House No. 161, City Survey No. 450, situated at Ward No. 2 at Baramati District Pune, having 6 Khans area flat roofs i.e “Malwadi” and “Kilasbandi” was let out at the rate of Rs. 250/- per month. Both the Courts, after considering the material placed on the record, including the rival contentions raised by the parties, granted the decree for possession on the ground of unauthorized permanent structure, as contemplated under section 13(1)(b) read with section 23 of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947, (for short “The bombay rent act”). Therefore, the present Writ Petition by the tenants.

2. Heard learned counsel Mr. P.K Hushing for the petitioners and Mr. A.A Kumbhakoni for the respondents. The undisputed position in the present case, as referred by the Additional District Judge, Baramati District Pune (for short “Appellate Court”) is relevant to cover the rival contention of the parties (i.e paragraph 17).

“17. The word permanent structure has not been defined under bombay rent act. But the permanent or temporary character of the structure would have to be determined, having regard to the nature of the structure and the nature of the material used in the making of the structure and the manner in which the structure is erected. The test provided by the Legislation is thus an objective test and not a subjective test. The structure which fulfils the objective test by having a permanent element would not seized to be so merely because of the intention of the tenant. Whether a particular construction is a permanent structure or is merely of a temporary nature is a question which depends on the facts of each case in determining whether the structure is a permanent or not on certain things shall have required to be considered. Firstly, the nature of the structure. Secondly, the intention with which it is made. Thirdly, a citus and forthly the mode of annexation, where the purpose is that the structure should be permanently used, the structure is permanent whatever may be the nature of material applied for its construction. In the light of these tests, the present putting of 12 wooden rafters and tin sheet-roofs over the suit premises shall have to be considered. A permanent nature construction made on the roof putting rafters and placing tin sheet roofs thereon, falls within the mischief of Clause (b) of Sub-section (1) of section 13 of the Bombay Rent Act. Therefore, the trial judge has rightly held that the construction effected by the defendant-tenant comes within the purview of erection of permanent nature construction. It is not a temporary nature or a tenantable repairs as urged by the learned Advocate for appellant in this regard. Admittedly, the appellant-defendant have not obtained any permission in writing from the plaintiff land-lady before its construction. It is pertinent to note that the suit premises let out to the mother of defendant was having a flat roof Malwadi and Kilasbandi. This fact has not been denied on behalf of the defendant-tenant. It is also undisputed that the defendants have put 12 wooden rafters and placed 18 tin sheet roofs in place of that roof or Kilasbandi. Therefore, it is clear that the defendant-appellant have made a permanent alteration in the suit premises. The removing of flat roof or Kilasbandi and putting wooden rafters and tin sheet roofs over the suit premises which materially or substantially changed the existing structure of the suit premises which comes within the mischief of section 13(1)(b) of the bombay rent act.”

3. The Scheme of the bombay rent act in regard to section 13(1)(b) read with section 23 is necessary to keep in mind, while deciding the merits of the matter. section 13(1)(b) is reproduced with the explanation, as also section 23 as follows:

“13(1)(b) that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure; [Explanation, — For the purposes of this clause, the expression “permanent structure” does not include the carrying out of any work, with the permission, wherever necessary, of the local authority, for providing a wooden partition, standing cooking platform in kitchen, door, lattice work or opening of a window necessary for ventilation, a false ceiling, installation of air-conditioner, an exhaust outlet or a smoke chimney; or];”

23. Landlord's duty to keep premises in good repair.— (1) Notwithstanding anything contained in any law for the time being in force and in the absence of an agreement to the contrary by the tenant, every landlord shall be bound to keep the premises in good and tenantable repair.”

(2) If the landlord neglects to make any repairs, which he is bound to make under sub-section (1), within a reasonable time after a notice (of not less than fifteen days) is served upon him by post or in any other manner by a tenant or jointly by tenants interested in such repairs, such tenant or tenants, may themselves make the same and deduct the expenses of such repairs from the rent or otherwise recover them from the landlord;

Provided that where the repairs are jointly made by the tenants the amount to be; deducted or recovered by each tenant shall bear the same; proportion as the rent payable by him in respect of his premises bears to the total amount of these expenses incurred for such repairs (together with simple interest at the rate of fifteen per cent, per annum of such amount);

Provided further that the amount so deducted or recoverable in any year shall not exceed (one-fourth) of the rent payable by the tenant for that year.

(3) For the purposes of calculating the expenses of the repairs made under sub-section (2), the accounts together with the vouchers maintained by the tenants shall be conclusive evidence of such expenditure and shall be binding on the landlord.”

Therefore, written permission from the landlord is a must insofar as permanent structure is concerned and so far as repairs, a fifteen days' written notice is necessary. In both these cases, tenant cannot act unilaterally of his own, without the written permission for permanent construction and the written notice for any repairs, to keep the premises in good and tenantable condition.

4. There are no definition of the words “permanent structure” and “repairs” or “reconstruction” under the bombay rent act.

5. The learned counsel appearing for the respondent has relied on a catena of judgments in support of his submission, as well as, in support of the reasoning given by the Courts below. Those decisions are as follows. Vimalabai Jayant Pawar v. Laxmibai Jayawantrao Nandrekar, 1984 Bom.R.C 363; Somnath Krishnaji Gangal v. Moreshwar K. Kale, 1995 (1) Mh.L.J 675, Ramakant Ganpati Potdar v. Madhav Ganesh Dixit, 1989 Mah. R.C.J 387, Shadi Singh v. Rakha, (1992) 3 SCC 55, Surajmal v. Indian National, AIR 1956 Cal. 187, Commissioner of Income-tax v. Rana Sugar Mills, AIR 1952 Madras 689, Venkatlal G. Pittie v. Bright Bros., (1987) 3 SCC 558.

6. The Apex Court in Venkatlal (supra), while considering the bombay rent act and specially section 13(1)(b) read with section 108(p) of the Transfer of Property Act has observed as under:

“The High Court observed that, in judging whether the structures were permanent or not, the following factors should be taken into consideration referring to an unreported decision of Malvankar, J. in Special Civil Application No. 121 of 1968. These were (1) intention of the party who put up the structures; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) The purpose of erecting the structure is another relevant factor. (6) The nature of the material used for the structure and (7) lastly the durability of the structure. These were the broad tests. The High Court applied these tests. So had the trial court as well as the appellate Bench of Court of Small Causes.”

7. The Apex Court, while considering the provisions of East Punjab Urban Rent Restriction Act, 1949, but related to the issue in question of “reconstruction” and “repairs” observed in Shadi Singh (supra) as under:

“There is a distinction between effecting repairs and in its guise to make structural alteration or to restructure the building. The tenant cannot effect structural alteration or reconstruct the building. It is the right of the landlord alone to exclusively have it done, unless of course, the landlord having had the tenant evicted from the building for that purpose and demolished the building failed to reconstruct and redeliver possession thereof to the tenant. In a given case if the tenant acts unilaterally and effects structural alterations or reconstruct the building, it itself may be a ground for eviction under the appropriate provision of the statute.”

(emphasis supplied)

8. The Bombay High Court in Somnath, 1995 (1) Mh.L.J 675, after considering the Scheme in question of the bombay rent act and also after considering Om Prakash v. Amar Singh, AIR 1987 SC 617 and other various judgments of the Bombay High Court concluded as under:

“In view of the decision of the Hon'ble Supreme Court and of this Court, my conclusions are as under:

(i) In deciding the question as to what is a “permanent structure”, it is necessary to consider the mode and degree of annexation as also the intention of the party putting up the structure. The creation of such a work or addition thereof in order to amount to a permanent structure must cause and bring about a substantial improvement and change in the nature and form of accommodation.

(ii) If what has been done is by way of minor repairs for the better enjoyment and use of the premises, it cannot be regarded as a permanent structure. Similarly, if the object and purpose of annexation was only to better the mode of enjoyment of the demised premises as in the case of construction of the kitchen platform, it does not amount to a permanent structure within the meaning of section 13(1)(b) of the said Rent Act.

(iii) The essential element which needs consideration is as to whether the construction is substantial in nature and whether it alters the form, front and structure of the accommodation.

(iv) If what the tenant does is large scale renovation like replacement of the entire roof, covering it with marble tiles, without obtaining permission of the landlord, it may amount to permanent structure within the meaning of section 13(1)(b) of the Rent Act.

(emphasis supplied)

(v) Similarly, if the tenant constructs a bathroom in the gallery which puts additional burden in the gallery which is harmful to the structure of the building, it would amount to a permanent structure.”

9. Another aspect of the word “repairs” and “reconstruction” has been considered by the Bombay High Court in Ramakant (supra) and as relied by both the parties, is reproduced as under:

“7. The expression “repairs” and “reconstruction” are not defined in the Act. Therefore, in order to construe provisions of the Bombay Rent Act where the same words occur, one has to take recourse to the ordinary dictionary meaning of such words, and to find out what is the connotation which is in conformity and in harmony with the Act. The meaning of such words which further the purpose of the Act and its scope is the meaning that has to be adopted. The Act intends to give protection to tenants from their eviction by the landlords. Therefore, eviction of the tenant is permissible only when the grounds laid down in the Act itself are satisfied.

8. “Repair” means, according to the New Webster's Dictionary, to restore to a sound or good state after decay, injury, dilapidation, or partial destruction; to make amends for, as for an injury, by an equivalent; to give indemnity for. It also means restoration to a sound or good state of a part which requires reparation. The word “repair”, therefore, connotes in common parlance an idea of mending or removing any damage or danger of injury to a particular thing.

By implication, such word indicates that for repairs, the thing should still has existence. If the thing cease to exist, there will be no question of mending or correcting it. In turn, the meaning of “reconstruction” is given in the same dictionary as the act of constructing again or rebuilding. This words, therefore, implies that something that had existence has disappeared and is completely renewed.”

10. In the present case, if we take note of the above legal position as a foundation for the purpose of deciding the issue following the undisputed position of facts, it further supports the reasoning given by the Court below. Even though, as contended that the permanent construction or alteration in question was only in the nature of repair and as the Commissioner's Report further supports the same and as the landlord failed to repair the roof in question in spite of oral request, the petitioner had no choice but to get it repaired without the written permission or consent of the landlord, the basic aspect of intimation and/or notice as contemplated under the provisions of section 13(1)(b) read with section 23 cannot be overlooked. Admittedly, there is nothing on the record to suggest or is borne out from the record, in any way, that any written notice, as contemplated under section 23, was issued in the present case. The case was made out only of oral request by the tenant. As rightly pointed out by the learned counsel appearing for the respondents, section 23 read with section 13(1)(b), contemplates that the tenant, in such circumstances, before any such repairs and/or alteration or construction, must issue written notice and obtain written permission from the landlord. In the case in hand, except alleged oral request, not supported by any other witness, there is nothing to support the compliance of the said mandate of the provisions of law.

11. Admittedly there is no case made out or borne out even from the record that the repairs were so urgent that it was not possible for the petitioners-tenants even to wait for some period of time. It is difficult to accept the case of the petitioners-tenants that they repaired the part of the premises by putting the roof after the notice or intimation, as referred above. Therefore, it remains unrebutted that the tenant, without the written permission from the landlord and without giving any intimation and/or written notice as contemplated under the Act, made the permanent structure. In the present case, if we take the factual aspect, it is very clear that it was a permanent replacement of roof even though of 6 Khans as sought to be contended. It is not the case of just repairing as contemplated and as elaborated by the Courts as in Ramakant and Somnath (supra) reproduced above. If it is not repairing then the structure in question as reproduced and noted by the Commissioner and as observed by the Courts below rightly amounts to unauthorised permanent structure as contemplated under the bombay rent act. In the present case, admittedly, only part of the premises were got repaired i.e 3 Khans out of 6 Khans which were let out to the tenants. The contention, therefore, that it was part-repairing of the roof also nowhere supports the provisions of the Scheme of the Act. In the present case, the petitioner-tenant has “reconstructed” the roof. It was not the simple “repairing” as elaborated in Ramakant (supra).

12. The explanation to section 13(1)(b) further clarifies the meaning of the expression “permanent structure” as contemplated under the bombay rent act. If ordinary definition of “permanent structure” is not available, then the intention of the legislature must be respected as reflected in section 13(1)(b) and specially the explanation. There is nothing which further supports the case of the petitioners even from the explanation that the tenants, in such circumstances, are entitled and/or have a right to repair the premises in question. The petitioner has not made out any case of exception as contemplated under section 13(1)(b) to Explanation to the expression “permanent structure”. The construction made by the tenant falls within the meaning of “permanent structure” and/or “reconstruction” without written permission. It is not a case of minor repairs.

13. Section 23 of the Act definitely imposes a duty on the landlord to keep the premises in good condition. He is, therefore, under an obligation to make necessary repairs. But, in case of the failure to keep the premises in good condition, there must be a notice or intimation by the tenant to point out the necessity of any such urgent repairs. If there is no such notice issued and the tenant on his own, unilaterally contract, without written intimation and permission of the landlord, such unauthorised permanent construction, in that case, definitely falls within the clutches of the mandate of section 13(1)(b) read with section 23 of the Act. This breach, therefore, raises no doubt that the landlord, in such circumstances, is entitled to claim the possession of the premises [Shadi Singh (supra)]. As rightly pointed out and as observed by the Courts below that the tenant had no right to get the premises altered or reconstructed in such fashion. There is no such provision available under the bombay rent act which compels the landlord to reconstruct or rebuild in each and every circumstances, except to keep the premises in good and tenantable repair. The tenant cannot unauthorisedly make permanent construction without written permission from the landlord.

14. The learned counsel appearing for the respondents has relied on Venkatlal (supra) to justify the reasoning given by the Courts below. The said case also was under the bombay rent act. The Apex Court has observed as follows:

“All the relevant factors had been borne in mind by the learned trial Judge as well as appellate Bench of the Court of Small Causes. Therefore, simply because another view is possible and on that view a different view is taken, will be interfering under jurisdiction under Article 227 of the Constitution which is unwarranted.”

15. In this background, considering the reasoning given by the Courts below read with the provisions of law and specially the Scheme of the bombay rent act, I am of the view that there is no case made out by the petitioners to interfere with the concurrent finding given by the Courts below.

16. Resultantly, the Writ Petition is dismissed. Rule is discharged. Interim stay vacated.

Writ petition dismissed.

Najama Gulab Bagwan ... v. Laxmibai Rangildas G...