VISHNUPANT DADOBA GANGADHAR Vs. ANANT KRISHNAJI PANDIT

JUDGEMENT

(1.) THIS petition under Article 227 is directed against the dismissal of a suit for injunction. The petitioners are the heirs of one Vishnupant, who was a tenant in respect of a shop and an open premises in the backyard out of Municipal House No.1315, situate at Sadashiv Peth, Pune. The front portion i.e., the shop is used as a sweetmeat shop and the rear side open portion is used for preparing sweetmeats. The respondents are the owners and, therefore, landlords of the said premises.

(2.) THE original tenant Vishnupant filed Regular Civil Suit No.2518 of 1978 in the Court of Small Causes, Pune for injunction. It was alleged that the Pune Municipal Corporation had given notice to the tenant as well as the landlords to construct a drainage and water connection in the suit premises. The landlords had failed to implement the directions of the Municipal Corporation and, therefore, the tenant had sought permission of the landlords to construct the drainage and water connection. However, the landlords not only declined to grant the permission but they are not allowing the tenant to construct the drainage and sink as per the directions of the Municipal authorities. It was also alleged that the southern and eastern walls of the shop were in a dilapidated condition and required to be demolished as per the notice of the municipal corporation. The landlords had not taken any steps to reconstruct the walls nor they are allowing the tenant to reconstruct the same. Therefore, a prayer was made for perpetual injunction to restrain the landlords from interfering with the tenant's right to reconstruct the demolished walls and to construct the drainage line, sink and water connection as required by the municipal corporation.

(3.) BOTH the Courts below dismissed the suit principally on the ground that if the tenant was allowed to carry the construction it would amount to permanent alteration. It was held that what the tenant is proposing to do is to erect a permanent construction and that is going to affect the value of the property. In my opinion, the view taken by both the Courts is completely erroneous. It is well settled that replacing demolished wall does not amount to permanent construction. In Trikamlal Manilal Shah v M.I. Haiderbux Razvi (1993 Bom R.C. 360) the Gujarat High Court has held that construction of walls in place of old walls can never amount to erection of a permanent structure into a demised premises. The explanation to Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 makes it clear that no permanent structure shall he deemed to be erected in the premises by raising a construction of a partition wall, door, or lattice work or to fill in the kitchen stand or such other alterations made in the premises as can be removed without any serious damage to the premises. Thus, it shows that it is enumerative and not exhaustive. The Legislature has given liberty to the tenant to make any one of the specific alterations in the premises in his occupation, and any such alterations in the premises which can be removed without serious damage to the premises. Thus, one of the tests is removability of the offending structure. In the instant case the walls were dilapidated and were caused to be demolished by the notice of the municipal corporation. In order to have beneficial enjoyment of the property the tenant is within his right to reconstruct the walls to facilitate the conduct of his business. Both the Courts were, therefore, clearly in error in holding that the proposed construction would amount to permanent construction.