Savitri Devi v. U.S. Bajpai

1. This is a tenant's petition under Article 226 of the Constitution which impugns the order of the Appellate Authority, respondent 1, granting permission to the landlord, respondent 2, to terminate the tenancy.

2. The house in question is occupied by the petitioner as a tenant, wherein she carries on the business of manufacture of drugs under the style “Lokas Limited”. She purchased a Hilman Minix Wagon car for purposes of the business.

3. For keeping the are under shelter she constructed a temporary structure on the open land in front of the building for use as a garage.

4. Thereupon respondent 2 filed an application before the Rent Controller for permission to terminate the tenancy on, the ground that the construction constituted ‘waste’ within the meaning of item (viii), sub-cl. (3) of cl. 13 of the Rent Control Order. The application was granted by the Rent Controller and his order was affirmed in appeal. This, petition is filed against the appellate order.

5. Clause 13(3)(viii) of the Rent Control Order is in these terms:

“13(3) If after hearing the parties the Controller is satisfied.

(viii) that the tenant has committed or is committing such acts of waste as are likely to impair materially the value or utility of the house;

he shall grant the landlord permission to give notice to determine the lease as required by sub-cl. (1).”

6. It appears clear from the above provision that the landlord, in order to be entitled to the grant of permission to terminate the tenancy, is required not only to prove an act of waste on the part of the tenant but also to prove that the said act is likely to impair materially the value or utility of the house.

7. In the instant case the petitioner has raised a temporary shed which did not alter or demolish any part of the house except a portion of the front compound wall. So far as the erection of the temporary shed is concerned, it cannot be said to be an act of waste in the sense in which it is understood in law. In — ‘Jones v. Chappel,’ (1875) 20 Eq 539 (A) it has been held by Sir G. Jessel, M.R, that an erection of a building made by a lessee on the demised land without, the consent of the lessor does not amount to an act of waste. The question of waste, therefore, will only arise in connection with the part of the compound wall that has been demolished.

8. In this connection if Section 108(o) of the Transfer of Property Act is read with cl. 13(3)(viii) of the Rent Control Order, it will appear that while pulling down a part of the building is prohibited under the general law, it will not amount to an act that can be impeached under the Rent Control Order if the damage done is not significant and can be easily repaired. Such an act will not entitle the landlord to the grant of permission to terminate the tenancy unless it is likely to impair materially the value or utility of the house itself.

9. On this point the Appellate Authority has not come to any definite finding. It has merely proceeded on the assumption that the case is covered by cl. 13(3)(viii) of the Rent Control Order only because the compound wall was partly demolished without the permission of the landlord. Since the requirements of cl. 13(3)(viii) are imperative, the grant of permission to terminate the tenancy, in the absence of a finding that the act complained of is likely to impair materially the value or utility of the house, cannot be maintained.

10. The petition is accordingly allowed, and the order of the Appellate Authority granting permission to respondent 2 to terminate the petitioner's tenancy is set aside and the appeal is remitted for a fresh decision in accordance with law. In the circumstances of the case there shall be no order as to costs. The outstanding amount of the security shall be refunded to the petitioner.

11. Petition allowed.