D S PRAYAG Vs. MAI LELE

JUDGEMENT

(1.) This petition raises the question of interpretation of section 23-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). The petitioner filed a suit being Civil Suit No. 598 of 1977 in the Small Causes Court at Pune for a declaration that he is entitled to put a T.V. antena of the tiled roof of his house which he has taken on rent from the respondent. An additional prayer in the suit was for an injunction restraining the respondent from preventing the petitioner from fixing the T.V. antena on the tiled roof. The allegation was that the respondent was preventing the petitioner from so fixing the antena.

(2.) In that suit on an application made, ad interim injunction was given on 4-3-1977. It was subsequently vacated by an order dated 30-4-1977. Against the order the petitioner preferred an appeal being Miscellaneous Civil Appeal No. 108 of 1977 which was heard and dismissed by the learned Assistant Judge, Pune, by his judgment and order dated 1-9-77. Against the order of the learned Assistant Judge, the petitioner has approached this Court under Article 227 of the Constitution. Before, I proceed to examine the contentions of Mr. Kaulgekar appearing for the petitioner in this petition, few admitted facts must be mentioned. The petitioner is a tenant of a tenement on the ground floor of a building owned by the respondent. The tenement which is in possession of the petitioner as a tenant has a tiled roof over it. The petitioner one desires to para a T.V. antena on the tiled roof and in this according to the petitioner, there is obstruction from the respondent.

(3.) Mr. Kaulgekar the learned Advocate has criticised the judgment of the two courts below by pointing out that the provisions of section 23-A of the Bombay Rent Act are totally inapplicable to the facts and circumstances of the case. The two courts below have vacated the injunctions by relying upon the provisions of the said section and by holding that the petitioner cannot rush to the Court for the relief of injunction unless he has in the first place approached the landlord as provided under section 23-A of the Bombay Rent Act. The procedure prescribed under section 23-A of the Bombay Rent Act is that the tenant should apply to the landlord for permission to put up and maintain a radio or television aerial" on the terrace of the building in possession of the landlord" and if the landlord refused to give any reply or refuses to give his consent, then the tenant is given a right to approach the Court for the necessary direction to the landlord. The error committed by the two courts below was in thinking that the tiled roof of the tenement in possession of the petitioner tenant is a terrace of the building in possession of the landlord. Mr. Kaulgekar says that a slopping tiled roof could not by any stretch of imagination be regarded as a terrace.