NAJAMA GULAB BAGAWAN Vs. LAXMIBAI RANGILDAS GUJAR

JUDGEMENT

(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.