whether removing tin sheets and making cement slab amounts to permanent construction or not – the lower court correctly held that it amounts to permanent constructions , where as High court negatived the same, where as the Apex court set aside the High court order and confirm the Lower court order
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7710 OF 2012
(Arising out of S.L.P. (C) No.4629 of 2008)
Purushottam Das Bangur & Ors. …Appellants
Versus
Dayanand Gupta …Respondent
J U D G M E N T
1. Leave granted.
2. This appeal arises out of a judgment and order passed by the High
Court of Calcutta whereby Civil First Appeal No.290 of 1986 filed by the
respondent-tenant has been allowed, the judgment and decree passed by the
trial Court set aside and the suit for eviction filed by the plaintiff-
appellant against the defendant-respondent dismissed.
3. A residential premise comprising two rooms with a gallery situate
at the first floor bearing no.95-A, Chittaranjan Avenue, Calcutta and owned
by Gauri Devi Trust of which the appellants are trustees was let out to the
respondent-tenant on a monthly rental of Rs.225/-. One of the conditions
that governed the jural relationship between the parties was that the
tenant shall not make any additions or alterations in the premises in
question without obtaining the prior permission of the landlord in writing.
Certain differences appear to have arisen between the parties with regard
to the mode of payment of rent as also with regard to repairs, sanitary and
hygiene conditions in the tenanted property which led the landlord-
appellant to terminate the tenancy of respondent in terms of a notice
served upon the latter under Section 106 of the Transfer of Property Act
read with Section 13 (6) of West Bengal Premises Tenancy Act, 1956. Since
the respondent-tenant did not oblige, the plaintiff-appellant instituted
Ejectment Suit No.391 of 1976 in the City Civil Court at Calcutta asking
for eviction of the former inter alia on the ground that respondent- tenant
had illegally and unauthorisedly removed the corrugated tin-sheet roof of
the kitchen and the store room without the consent of the appellant-
landlord and replaced the same by a cement concrete slab apart from
building a permanent brick and mortar passage which did not exist earlier.
These additions and alterations were, according to the plaintiff-appellant,
without the consent and permission of the Trust and, hence, violative not
only of the provisions of clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act, 1882 but also the conditions stipulated in the
lease agreement executed between the parties. Eviction of the respondent
was also sought on the ground that the respondent and his family members
were using the passage constructed by them for creating nuisance and
peeping into the bedroom of Shri Bharat Kumar Jethi, another tenant living
on the second floor of the premises.
4. The defendant-respondent contested the suit primarily on the ground
that his tenancy had not been terminated in terms of the notice allegedly
issued by the landlord and that there was no violation of the provisions of
clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. A
Court Commissioner deputed by the trial Court carried out a local
inspection of the suit premises on 12th July, 1978 in presence of the
parties. The Commissioner formulated five different points for local
inspection and answered the same in the report submitted to the Court. One
of the aspects on which the Commissioner made a report related to the
existence of a passage leading to the concrete roof of the kitchen and the
store space. The Commissioner appears to have found that the kitchen and
store space had a concrete cemented plastered roof with a small window
inside the kitchen.
5. Long after the Commissioner’s report was submitted to the trial
Court, the tenant filed an additional written statement in which he for the
first time took the stand that although he was inducted into the premises,
comprising two rooms and two small rooms with corrugated tin-sheet for a
roof, the latter required replacement on account of the tin-sheet roof
getting worn out. It was further submitted that it was only on repeated
demands of the defendant-tenant that the landlord had replaced the said
corrugated tin-sheet by putting a cement concrete slab over the kitchen and
store room. He further alleged that he had not made any alterations or
additions or committed any act contrary to clauses (m), (o) and (p) of
Section 108 of the Transfer of Property Act.
6. On the pleadings of the parties, the trial Court raised as many as
eight issues in the suit and allowed parties to adduce their evidence. In
support of his case the plaintiff examined four witnesses while three
witnesses were examined by the defendant-tenant. A careful appraisal of the
evidence so adduced led the trial Court to the conclusion that the
plaintiff had made out a case for the grant of a decree for ejectment of
the respondent-tenant. The trial Court in the process held that the
removal of the tin-sheet roof over the kitchen and store room and its
replacement with a concrete slab was carried out by the respondent-tenant
and not by the plaintiff-trust. In coming to that conclusion, one of the
circumstances which the trial Court mentioned was the fact that the
defendant had not made any whisper in the first written statement filed by
him about the construction of the concrete roof having been undertaken by
the landlord. The story that the landlord had replaced the tin roof by a
concrete slab was propounded belatedly and for the first time in the
supplementary written statement. The trial Court observed:
“Lastly, it must not be lost sight of that when the defendant first
filed the written statement there was no whisper from the side of
the defendant that the construction was made by the landlord for
the convenience of the tenants. This story was first propounded by
the convenience of the tenants. This story was first propounded by
the defendant by filing an additional written statement in 1983
i.e. about seven years after the institution of the suit. This
belated plea of the defendant should be taken with the grain of
salt.”
7. The trial Court accordingly held that it was the defendant-tenant
who had made a permanent structural change in the premises in violation of
the conditions stipulated in the lease agreement and in breach of the
provisions of Section 108 of the Transfer of Property Act. The trial Court
further held that the tenant had not, while doing so, obtained the written
consent of the landlord. The trial Court also found that the legal notice
for determining the tenancy of the respondent-tenant had been served upon
him and accordingly decreed the suit.
8. Aggrieved by the judgment and decree passed against him, the tenant-
respondent herein appealed to the High Court of Calcutta which appeal has
been allowed by the Division Bench of that Court in terms of the Order
impugned before us. While the High Court has not disturbed the finding of
fact recorded by the trial Court that the replacement of the tin-sheet by a
concrete slab was undertaken by the respondent-tenant, it has reversed the
view taken by the trial Court on the ground that any such replacement of
the roof did not tantamount to violation of clauses (m), (o) and (p) of
Section 108 of the Transfer of Property Act. The High Court held that since
the replacement of the tin-sheet roof by cement concrete slab did not
result in addition of the accommodation available to the tenant, the act of
replacement was not tantamount to the construction of a permanent
structure. The replacement instead constituted an improvement of the
premises in question, observed the High Court. In support the High Court
placed reliance upon the decisions of this Court in Om Prakash v. Amar
Singh AIR 1987 SC 617 and Waryam Singh v. Baldev Singh (2003) 1 SCC 59 .
9. The High Court also relied upon an earlier decision of that Court
in Ratanlal Bansilal & Ors. v. Kishorilal Goenka & Ors. AIR 1993 Cal 144
and held that unless a case of waste or damage is proved, there can be no
violation of clauses (m), (o), (p) of the Transfer of Property Act. The
High Court held that proof of waste and damage because of the construction
of a cement concrete roof over the kitchen and store space and the
construction of a brick-built passage for reaching the roof of that area
was completely absent in the instant case. The High Court, on that basis,
set aside the judgment of the trial Court and dismissed the suit filed by
the appellant.
10. Section 13 of the West Bengal Premises Tenancy Act 1956, starts
with a non-obstante clause and forbids passing of an order or decree for
possession of any premises by any Court in favour of the landlord and
against the tenant except on one or more of the grounds stipulated therein.
11. Among other grounds stipulated in Section 13 of the Act is the
ground that the landlord can sue for eviction of the tenant where the
tenant or any person residing in the premises let to the tenant has done
any act contrary to the provisions of clauses (m), (o) or (p) of Section
108 of the Transfer of Property Act, 1882. Section 13 (1) (b) reads thus:
“13. Protection of tenant against eviction.—(1) Notwithstanding
anything to the contrary in any other law, no order or decree for
the recovery of possession of any premises shall be made by any
court in favour of the landlord against a tenant except on one or
more of the following grounds, namely:
(a) * * *
(b) where the tenant or any person residing in the premises let to
the tenant has done any act contrary to the provisions of clause
(m), clause (o) or clause (p) of Section 108 of the Transfer of
Property Act, 1882 (4 of 1882);”
12. Clauses (m), (o) and (p) of Section 108 of the Transfer of Property
Act referred to in clause 1 (b) of Section 13 (supra) may also be extracted
at this stage :
“108. Rights and liabilities of lessor and lessee.—In the absence
of a contract or local usage to the contrary, the lessor and the
lessee of immovable property, as against one another, respectively,
possess the rights and are subject to the liabilities mentioned in
the rules next following, or such of them as are applicable to the
property leased:
* * *
(m) the lessee is bound to keep, and on the termination of the
lease to restore, the property in as good condition as it was at
the time when he was put in possession, subject only to the changes
caused by reasonable wear and tear or irresistible force, and to
allow the lessor and his agents, at all reasonable times during the
term, to enter upon the property and inspect the condition thereof
and give or leave notice of any defect in such condition; and, when
such defect has been caused by any act or default on the part of
the lessee, his servants or agents, he is bound to make it good
within three months after such notice has been given or left;
* * *
(o) the lessee may use the property and its products (if any) as a
person of ordinary prudence would use them if they were his own;
but he must not use, or permit another to use, the property for a
purpose other than that for which it was leased, or fell or sell
timber, pull down or damage buildings belonging to the lessor, or
work mines or quarries not open when the lease was granted or
commit any other act which is destructive or permanently injurious
thereto;
(p) he must not, without the lessor’s consent, erect on the
property any permanent structure, except for agricultural
purposes;”
13. The appellant has in the case at hand pressed into service clause
(p) of Section 108 (supra) inasmuch as, according to the appellant, the
respondent-tenant had without his consent erected on the demised property a
permanent structure which rendered him liable to eviction under Section 13
(1) (b) extracted above. The question, however, is whether the alterations
which the respondent-tenant is found by the Courts below to have made
tantamount to erection of a “permanent structure” within the meaning of
clause (p) of Section 108 of the Act (supra). The expression “permanent
structure” has not been defined either under the West Bengal Premises
Tenancy Act, 1956 or in the Transfer of Property Act, 1882. The expression
has all the same fallen for interpretation by the Courts in the country on
several occasions. We may briefly refer to some of those pronouncements at
this stage.
14. In Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt. Ltd. (1987) 3
SCC 558, the landlord alleged that the tenant had without his consent
raised a permanent structure in the demised premises. The trial Court as
also the first appellate Court had taken the view that the construction
raised by the tenant was permanent in nature. The High Court, however,
reversed the said finding aggrieved whereof the landlord came up to this
Court in appeal. This Court referred to several decisions on the subject
including a decision of the High Court of Calcutta in Suraya Properties
Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 to hold that one
shall have to look at the nature of the structure, the purpose for which it
was intended to be used and take a whole perspective as to how it affects
the enjoyment and durability of the building etc. to come to a conclusion
whether or not the same was a permanent structure. This Court approved the
view taken in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR
1965 Cal 408 and Surya Properties Private Ltd. & Ors. v. Bimalendu Nath
Sarkar & Ors. AIR 1964 Cal 1, while referring to the following tests
formulated by Malvankar J. in an unreported decision in Special Civil
Application No.121 of 1968:
“(1) intention of the party who put up the structure; (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 of 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
materials used for the structure and (7) lastly the durability of
the structure”.
15. In Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar &
Ors. AIR 1964 Cal 1 a Special Bench of the High Court of Calcutta was
examining the meaning of the expression “permanent structure” appearing in
Clause (p) of Section 108 of the Transfer of Property Act, 1882. The Court
held that whether a particular structure is a permanent structure or not is
a question that depends on the facts of each case and on the nature and
extent of the particular structure as also the intention and purpose for
which the structure was erected. No hard and fast rule, declared the Court,
could be laid down for determining what would be a permanent structure for
the purposes of Section 108 (p) of the Transfer of Property Act. When the
very same case came up for final adjudication on merits before a Division
Bench of the High Court of Calcutta, the High Court in its order dated 20th
March, 1964 reported in Suraya Properties Private Ltd. v. Bimalendu Nath
Sarkar AIR 1965 Cal 408 held that the expression “permanent structure” did
not mean ‘everlasting’. The word “permanent” had been used to distinguish
it from “temporary” and that while a lessee has the power to raise any type
of temporary structure, he has no power to raise a permanent structure. The
Court held that on a true construction of Section 108 (p) Transfer of
Property Act the words “permanent structure” could only mean a structure
that lasts till the end of the term of the lease and does not mean
“everlasting” nor does it mean a structure which would last 100 years or 50
years. The Court observed:
“In all these cases condition (p) will operate. The phrase
“permanent structure” does not mean “ever lasting”. But the word
“permanent” has been used to distinguish it from “temporary”. A
lessee has the power to raise any type of temporary structure, but
he has no power to raise a permanent structure. The word
“permanent” is also a relative term, because the absolute meaning
of the word “permanent” is “ever lasting”. But we cannot accept
the meaning if the word “permanent” is a relative term, the
question is, – relative of what? The answer immediately is – for
purposes of Section 108(p) relative to the term of the issue.
Therefore, the word “permanent” means “which lasts till the end of
the term of the lease” and does not mean “ever lasting” nor does it
mean “which would last 100 years or 50 years”. The term, as stated
above, is a relative one and the relation here is to the period of
the lease. There may be a lease from month to month or from year
to year and we do not know when the lease is going to terminate.
But the meaning of the words “permanent structure” would be that
the lessee intended that he would enjoy the structure that he
raises as long as he be continuing in possession. That period may
be definite, that period may be indefinite. But that period is the
period of the lease and the person, namely, the lessee, who
constructs the structure, should have an intention to use it as
long as he remains a lessee.”
16. Applying the above to the case before it, the High Court held that
the tenant in that case had constructed a kitchen which he intended to use
till the time he remained in occupation. The Court found that the case
before it was not one where the tenant had constructed the structure for a
special purpose like a marriage in the family. Any structure which was used
for any such limited period or definite event, function or occasion, even
if made of bricks and mortar would not amount to building or erecting a
permanent structure. The Court observed:
“A person raises a struct (sic) for the purpose of a marriage in
the family. There he intends to use it only during the occasion and
has no intention to use it thereafter and intends to remove the
structure thereafter. We cannot say that it would be a permanent
structure even if it is made of brick and mortar. In the
circumstances, of this case, the lessee has said that he wanted to
use it as a kitchen. He never says that the kitchen was required
for a particular purpose temporarily. Therefore, we get from the
evidence of the tenant that the tenant intended to use the
structure as a kitchen during the continuance of the lease, because
the tenant requires a kitchen as long as the tenant uses the
premises and as he wants, to use it as a kitchen, he sufficiently
express his intention to use it as a kitchen during the term of his
tenancy which in this case is not definite. Therefore, for purposes
of Section108(p) of the Transfer of Property Act, we would hold
that the kitchen raised must be considered to be for a permanent
purpose.”
17. To sum up, no hard and fast rule can be prescribed for determining
what is permanent or what is not. The use of the word ‘permanent’ in
Section 108 (p) of the Transfer of Property Act, 1882 is meant to
distinguish the structure from what is temporary. The term ‘permanent’
does not mean that the structure must last forever. A structure that lasts
till the end of the tenancy can be treated as a permanent structure. The
intention of the party putting up the structure is important, for
determining whether it is permanent or temporary. The nature and extent of
the structure is similarly an important circumstance for deciding whether
the structure is permanent or temporary within the meaning of Section 108
(p) of the Act. Removability of the structure without causing any damage
to the building is yet another test that can be applied while deciding the
nature of the structure. So also the durability of the structure and the
material used for erection of the same will help in deciding whether the
structure is permanent or temporary. Lastly the purpose for which the
structure is intended is also an important factor that cannot be ignored.
18. Applying the above tests to the instant case the structure was not
a temporary structure by any means. The kitchen and the storage space
forming part of the demised premises was meant to be used till the tenancy
in favour of the respondent-occupant subsisted. Removal of the roof and
replacement thereof by a concrete slab was also meant to continue till the
tenancy subsisted. The intention of the tenant while replacing the tin roof
with concrete slab, obviously was not to make a temporary arrangement but
to provide a permanent solution for the alleged failure of the landlord to
repair the roof. The construction of the passage was also a permanent
provision made by the tenant which too was intended to last till the
subsistence of the lease. The concrete slab was a permanent feature of the
demised premises and could not be easily removed without doing extensive
damage to the remaining structure. Such being the position, the alteration
made by the tenant fell within the mischief of Section 108 (p) of the
Transfer of Property Act and, therefore, constituted a ground for his
eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy
Act, 1956.
19. We may at this stage refer to the decision of this Court in Ranju
alias Gautam Ghosh v. Rekha Ghosh and Ors. (2007) 14 SCC 81 where this
Court found that cutting of a collapsible gate by 5/6” and replacing the
same without the consent and permission of the landlord was tantamount to
violation of Section 108 (p) of the Transfer of Property Act read with
Section 13 (1)(b) of West Bengal Premises Tenancy Act, 1956. It is thus
immaterial whether the structure has resulted in creating additional usable
space for the tenant who carries out such alteration and additions. If
addition of usable space was ever intended to be an essential requirement
under Section 108 (p) of the Act, the Parliament could have easily provided
so. Nothing of this sort has been done even in Section 13 (1) (b) of the
State Act which clearly shows that addition of space is not the test for
determining whether the structure is permanent or temporary.
20. Reliance upon the decisions of this Court in Brijendra Nath
Bhargava and Anr. v. Harsh Wardhan and Ors. (1988) 1 SCC 454, Om Prakash v.
Amar Singh and Ors. (1987) 1 SCC 458, Waryam Singh v. Baldev Singh (2003) 1
SCC 59 and G. Reghunathan v. K.V. Varghese (2005) 7 SCC 317 do not in our
opinion advance the case of the respondent. In Brijendra Nath Bhargava’s
case (supra) this Court was dealing with a case arising out of Rajasthan
Premises (Control of Rent and Eviction) Act, 1950. Section 13 (1) (c) of
the said Act required the landlord to prove that the tenant had, without
his permission, made or permitted to be made any construction which had in
the opinion of the Court, materially altered the premises or was likely to
diminish the value thereof. Section 13 (1)(c) of the Rajasthan Premises
(Control of Rent and Eviction) Act, 1950 is to the following effect:
“13(1) (c) that the tenant has without the permission of the
landlord made or permitted to be made any such construction as, in
the opinion of the court, has materially altered the premises or is
likely to diminish the value thereof”
21. The above provision is materially different from the provision of
Section 13(1)(b) of the West Bengal Premises Tenancy Act 1956 applicable in
the present case which does not require the landlord to prove that there
was any material alteration in the premises or that such alteration was
likely to diminish the value thereof. The decision in Brijendra Nath
Bhargava’s case (supra), is therefore, distinguishable and would not have
any application to the case at hand.
22. In Om Prakash’s case (supra) this Court was dealing with a case
under Section 14 (c) of the U.P. Cantonment Rent Control Act, 1952 which
reads as under:
“14. Restrictions on eviction.—No suit shall, without the
permission of the District Magistrate, be filed in any civil court
against a tenant for his eviction from any accommodation except on
one or more of the following grounds, namely:
(c) that the tenant has, without the permission of the landlord,
made or permitted to be made any such construction as in the
opinion of the court has materially altered the accommodation or is
likely substantially to diminish its value.”
23. A perusal of the above would show the language employed therein is
materially different from the provision of Section 13(1)(b) of the West
Bengal Premises Tenancy Act 1956 with which we are concerned in the present
case. In the case at hand the landlord is not required to prove that the
construction have been materially altered or is likely to diminish its
value as was the position in Om Prakash’s case (supra).
24. In Waryam Singh v. Baldev Singh (2003) 1 SCC 59 this Court was
dealing with a case under Section 13(2)(iii) of East Punjab Urban Rent
Restriction Act, 1949 which was to the following effect:
“13. Eviction of tenants.—(1) * * *
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause against
the applicant, is satisfied—
* * *
(iii) that the tenant has committed such acts as are likely to
impair materially the value or utility of the building or rented
land,
* * *”
25. It is evident from the above that this provision was different from
the language employed in Section 13(1)(b) of the West Bengal Premises
Tenancy Act 1956. The ratio of that case also, therefore, does not lend any
support to the respondent. Same is true even in regard to the decision in
G. Reghunathan’s case (supra) where this Court was dealing with an eviction
petition under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent
Control) Act, 1965 which was to the following effect:
“11. (4) A landlord may apply to the Rent Control Court for an
order directing the tenant to put the landlord in possession of the
building—
(i) * * *
(ii) if the tenant uses the building in such a manner as to destroy
or reduce its value or utility materially and permanently;”
26. The above provision is also materially different from the
provisions with which we are concerned in the present case. The ratio of
that case does not, therefore, have any application to the question whether
the structure raised by the respondent was a permanent structure within the
meaning of Section 108 (p) of the Transfer of Property Act. In Om Pal v.
Anand Swarup (dead) by Lrs. (1988) 4 SCC 545 also this Court was dealing
with a case under the East Punjab Urban Rent Restriction Act, 1949 which
makes material impairment of the property an important consideration for
purposes of determining whether the tenant has incurred the liability on
the premises leased to him.
27. In the result, therefore, we allow this appeal, set aside the order
passed by the High Court and restore that of the trial Court. Respondent
is, however, given one year’s time to vacate the premises in his occupation
subject to his filing an undertaking on usual terms within four weeks from
today. The grant of time to vacate the premises is further subject to the
condition that the respondent shall either pay directly to the appellants
or deposit in the trial Court compensation of the premises @ Rs.1500/- p.m.
from 1st October, 2012 till the date of vacation. The deposit shall be made
by the 15th of every succeeding calendar month failing which the decree
shall become executable by the Court.
……………………………………….……….…..…J.
(T.S. Thakur)
……………………..…………………..…..…J.
(Gyan Sudha Misra)
New Delhi
October 31, 2012
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7710 OF 2012
(Arising out of S.L.P. (C) No.4629 of 2008)
Purushottam Das Bangur & Ors. …Appellants
Versus
Dayanand Gupta …Respondent
J U D G M E N T
1. Leave granted.
2. This appeal arises out of a judgment and order passed by the High
Court of Calcutta whereby Civil First Appeal No.290 of 1986 filed by the
respondent-tenant has been allowed, the judgment and decree passed by the
trial Court set aside and the suit for eviction filed by the plaintiff-
appellant against the defendant-respondent dismissed.
3. A residential premise comprising two rooms with a gallery situate
at the first floor bearing no.95-A, Chittaranjan Avenue, Calcutta and owned
by Gauri Devi Trust of which the appellants are trustees was let out to the
respondent-tenant on a monthly rental of Rs.225/-. One of the conditions
that governed the jural relationship between the parties was that the
tenant shall not make any additions or alterations in the premises in
question without obtaining the prior permission of the landlord in writing.
Certain differences appear to have arisen between the parties with regard
to the mode of payment of rent as also with regard to repairs, sanitary and
hygiene conditions in the tenanted property which led the landlord-
appellant to terminate the tenancy of respondent in terms of a notice
served upon the latter under Section 106 of the Transfer of Property Act
read with Section 13 (6) of West Bengal Premises Tenancy Act, 1956. Since
the respondent-tenant did not oblige, the plaintiff-appellant instituted
Ejectment Suit No.391 of 1976 in the City Civil Court at Calcutta asking
for eviction of the former inter alia on the ground that respondent- tenant
had illegally and unauthorisedly removed the corrugated tin-sheet roof of
the kitchen and the store room without the consent of the appellant-
landlord and replaced the same by a cement concrete slab apart from
building a permanent brick and mortar passage which did not exist earlier.
These additions and alterations were, according to the plaintiff-appellant,
without the consent and permission of the Trust and, hence, violative not
only of the provisions of clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act, 1882 but also the conditions stipulated in the
lease agreement executed between the parties. Eviction of the respondent
was also sought on the ground that the respondent and his family members
were using the passage constructed by them for creating nuisance and
peeping into the bedroom of Shri Bharat Kumar Jethi, another tenant living
on the second floor of the premises.
4. The defendant-respondent contested the suit primarily on the ground
that his tenancy had not been terminated in terms of the notice allegedly
issued by the landlord and that there was no violation of the provisions of
clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. A
Court Commissioner deputed by the trial Court carried out a local
inspection of the suit premises on 12th July, 1978 in presence of the
parties. The Commissioner formulated five different points for local
inspection and answered the same in the report submitted to the Court. One
of the aspects on which the Commissioner made a report related to the
existence of a passage leading to the concrete roof of the kitchen and the
store space. The Commissioner appears to have found that the kitchen and
store space had a concrete cemented plastered roof with a small window
inside the kitchen.
5. Long after the Commissioner’s report was submitted to the trial
Court, the tenant filed an additional written statement in which he for the
first time took the stand that although he was inducted into the premises,
comprising two rooms and two small rooms with corrugated tin-sheet for a
roof, the latter required replacement on account of the tin-sheet roof
getting worn out. It was further submitted that it was only on repeated
demands of the defendant-tenant that the landlord had replaced the said
corrugated tin-sheet by putting a cement concrete slab over the kitchen and
store room. He further alleged that he had not made any alterations or
additions or committed any act contrary to clauses (m), (o) and (p) of
Section 108 of the Transfer of Property Act.
6. On the pleadings of the parties, the trial Court raised as many as
eight issues in the suit and allowed parties to adduce their evidence. In
support of his case the plaintiff examined four witnesses while three
witnesses were examined by the defendant-tenant. A careful appraisal of the
evidence so adduced led the trial Court to the conclusion that the
plaintiff had made out a case for the grant of a decree for ejectment of
the respondent-tenant. The trial Court in the process held that the
removal of the tin-sheet roof over the kitchen and store room and its
replacement with a concrete slab was carried out by the respondent-tenant
and not by the plaintiff-trust. In coming to that conclusion, one of the
circumstances which the trial Court mentioned was the fact that the
defendant had not made any whisper in the first written statement filed by
him about the construction of the concrete roof having been undertaken by
the landlord. The story that the landlord had replaced the tin roof by a
concrete slab was propounded belatedly and for the first time in the
supplementary written statement. The trial Court observed:
“Lastly, it must not be lost sight of that when the defendant first
filed the written statement there was no whisper from the side of
the defendant that the construction was made by the landlord for
the convenience of the tenants. This story was first propounded by
the convenience of the tenants. This story was first propounded by
the defendant by filing an additional written statement in 1983
i.e. about seven years after the institution of the suit. This
belated plea of the defendant should be taken with the grain of
salt.”
7. The trial Court accordingly held that it was the defendant-tenant
who had made a permanent structural change in the premises in violation of
the conditions stipulated in the lease agreement and in breach of the
provisions of Section 108 of the Transfer of Property Act. The trial Court
further held that the tenant had not, while doing so, obtained the written
consent of the landlord. The trial Court also found that the legal notice
for determining the tenancy of the respondent-tenant had been served upon
him and accordingly decreed the suit.
8. Aggrieved by the judgment and decree passed against him, the tenant-
respondent herein appealed to the High Court of Calcutta which appeal has
been allowed by the Division Bench of that Court in terms of the Order
impugned before us. While the High Court has not disturbed the finding of
fact recorded by the trial Court that the replacement of the tin-sheet by a
concrete slab was undertaken by the respondent-tenant, it has reversed the
view taken by the trial Court on the ground that any such replacement of
the roof did not tantamount to violation of clauses (m), (o) and (p) of
Section 108 of the Transfer of Property Act. The High Court held that since
the replacement of the tin-sheet roof by cement concrete slab did not
result in addition of the accommodation available to the tenant, the act of
replacement was not tantamount to the construction of a permanent
structure. The replacement instead constituted an improvement of the
premises in question, observed the High Court. In support the High Court
placed reliance upon the decisions of this Court in Om Prakash v. Amar
Singh AIR 1987 SC 617 and Waryam Singh v. Baldev Singh (2003) 1 SCC 59 .
9. The High Court also relied upon an earlier decision of that Court
in Ratanlal Bansilal & Ors. v. Kishorilal Goenka & Ors. AIR 1993 Cal 144
and held that unless a case of waste or damage is proved, there can be no
violation of clauses (m), (o), (p) of the Transfer of Property Act. The
High Court held that proof of waste and damage because of the construction
of a cement concrete roof over the kitchen and store space and the
construction of a brick-built passage for reaching the roof of that area
was completely absent in the instant case. The High Court, on that basis,
set aside the judgment of the trial Court and dismissed the suit filed by
the appellant.
10. Section 13 of the West Bengal Premises Tenancy Act 1956, starts
with a non-obstante clause and forbids passing of an order or decree for
possession of any premises by any Court in favour of the landlord and
against the tenant except on one or more of the grounds stipulated therein.
11. Among other grounds stipulated in Section 13 of the Act is the
ground that the landlord can sue for eviction of the tenant where the
tenant or any person residing in the premises let to the tenant has done
any act contrary to the provisions of clauses (m), (o) or (p) of Section
108 of the Transfer of Property Act, 1882. Section 13 (1) (b) reads thus:
“13. Protection of tenant against eviction.—(1) Notwithstanding
anything to the contrary in any other law, no order or decree for
the recovery of possession of any premises shall be made by any
court in favour of the landlord against a tenant except on one or
more of the following grounds, namely:
(a) * * *
(b) where the tenant or any person residing in the premises let to
the tenant has done any act contrary to the provisions of clause
(m), clause (o) or clause (p) of Section 108 of the Transfer of
Property Act, 1882 (4 of 1882);”
12. Clauses (m), (o) and (p) of Section 108 of the Transfer of Property
Act referred to in clause 1 (b) of Section 13 (supra) may also be extracted
at this stage :
“108. Rights and liabilities of lessor and lessee.—In the absence
of a contract or local usage to the contrary, the lessor and the
lessee of immovable property, as against one another, respectively,
possess the rights and are subject to the liabilities mentioned in
the rules next following, or such of them as are applicable to the
property leased:
* * *
(m) the lessee is bound to keep, and on the termination of the
lease to restore, the property in as good condition as it was at
the time when he was put in possession, subject only to the changes
caused by reasonable wear and tear or irresistible force, and to
allow the lessor and his agents, at all reasonable times during the
term, to enter upon the property and inspect the condition thereof
and give or leave notice of any defect in such condition; and, when
such defect has been caused by any act or default on the part of
the lessee, his servants or agents, he is bound to make it good
within three months after such notice has been given or left;
* * *
(o) the lessee may use the property and its products (if any) as a
person of ordinary prudence would use them if they were his own;
but he must not use, or permit another to use, the property for a
purpose other than that for which it was leased, or fell or sell
timber, pull down or damage buildings belonging to the lessor, or
work mines or quarries not open when the lease was granted or
commit any other act which is destructive or permanently injurious
thereto;
(p) he must not, without the lessor’s consent, erect on the
property any permanent structure, except for agricultural
purposes;”
13. The appellant has in the case at hand pressed into service clause
(p) of Section 108 (supra) inasmuch as, according to the appellant, the
respondent-tenant had without his consent erected on the demised property a
permanent structure which rendered him liable to eviction under Section 13
(1) (b) extracted above. The question, however, is whether the alterations
which the respondent-tenant is found by the Courts below to have made
tantamount to erection of a “permanent structure” within the meaning of
clause (p) of Section 108 of the Act (supra). The expression “permanent
structure” has not been defined either under the West Bengal Premises
Tenancy Act, 1956 or in the Transfer of Property Act, 1882. The expression
has all the same fallen for interpretation by the Courts in the country on
several occasions. We may briefly refer to some of those pronouncements at
this stage.
14. In Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt. Ltd. (1987) 3
SCC 558, the landlord alleged that the tenant had without his consent
raised a permanent structure in the demised premises. The trial Court as
also the first appellate Court had taken the view that the construction
raised by the tenant was permanent in nature. The High Court, however,
reversed the said finding aggrieved whereof the landlord came up to this
Court in appeal. This Court referred to several decisions on the subject
including a decision of the High Court of Calcutta in Suraya Properties
Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 to hold that one
shall have to look at the nature of the structure, the purpose for which it
was intended to be used and take a whole perspective as to how it affects
the enjoyment and durability of the building etc. to come to a conclusion
whether or not the same was a permanent structure. This Court approved the
view taken in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR
1965 Cal 408 and Surya Properties Private Ltd. & Ors. v. Bimalendu Nath
Sarkar & Ors. AIR 1964 Cal 1, while referring to the following tests
formulated by Malvankar J. in an unreported decision in Special Civil
Application No.121 of 1968:
“(1) intention of the party who put up the structure; (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 of 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
materials used for the structure and (7) lastly the durability of
the structure”.
15. In Surya Properties Private Ltd. & Ors. v. Bimalendu Nath Sarkar &
Ors. AIR 1964 Cal 1 a Special Bench of the High Court of Calcutta was
examining the meaning of the expression “permanent structure” appearing in
Clause (p) of Section 108 of the Transfer of Property Act, 1882. The Court
held that whether a particular structure is a permanent structure or not is
a question that depends on the facts of each case and on the nature and
extent of the particular structure as also the intention and purpose for
which the structure was erected. No hard and fast rule, declared the Court,
could be laid down for determining what would be a permanent structure for
the purposes of Section 108 (p) of the Transfer of Property Act. When the
very same case came up for final adjudication on merits before a Division
Bench of the High Court of Calcutta, the High Court in its order dated 20th
March, 1964 reported in Suraya Properties Private Ltd. v. Bimalendu Nath
Sarkar AIR 1965 Cal 408 held that the expression “permanent structure” did
not mean ‘everlasting’. The word “permanent” had been used to distinguish
it from “temporary” and that while a lessee has the power to raise any type
of temporary structure, he has no power to raise a permanent structure. The
Court held that on a true construction of Section 108 (p) Transfer of
Property Act the words “permanent structure” could only mean a structure
that lasts till the end of the term of the lease and does not mean
“everlasting” nor does it mean a structure which would last 100 years or 50
years. The Court observed:
“In all these cases condition (p) will operate. The phrase
“permanent structure” does not mean “ever lasting”. But the word
“permanent” has been used to distinguish it from “temporary”. A
lessee has the power to raise any type of temporary structure, but
he has no power to raise a permanent structure. The word
“permanent” is also a relative term, because the absolute meaning
of the word “permanent” is “ever lasting”. But we cannot accept
the meaning if the word “permanent” is a relative term, the
question is, – relative of what? The answer immediately is – for
purposes of Section 108(p) relative to the term of the issue.
Therefore, the word “permanent” means “which lasts till the end of
the term of the lease” and does not mean “ever lasting” nor does it
mean “which would last 100 years or 50 years”. The term, as stated
above, is a relative one and the relation here is to the period of
the lease. There may be a lease from month to month or from year
to year and we do not know when the lease is going to terminate.
But the meaning of the words “permanent structure” would be that
the lessee intended that he would enjoy the structure that he
raises as long as he be continuing in possession. That period may
be definite, that period may be indefinite. But that period is the
period of the lease and the person, namely, the lessee, who
constructs the structure, should have an intention to use it as
long as he remains a lessee.”
16. Applying the above to the case before it, the High Court held that
the tenant in that case had constructed a kitchen which he intended to use
till the time he remained in occupation. The Court found that the case
before it was not one where the tenant had constructed the structure for a
special purpose like a marriage in the family. Any structure which was used
for any such limited period or definite event, function or occasion, even
if made of bricks and mortar would not amount to building or erecting a
permanent structure. The Court observed:
“A person raises a struct (sic) for the purpose of a marriage in
the family. There he intends to use it only during the occasion and
has no intention to use it thereafter and intends to remove the
structure thereafter. We cannot say that it would be a permanent
structure even if it is made of brick and mortar. In the
circumstances, of this case, the lessee has said that he wanted to
use it as a kitchen. He never says that the kitchen was required
for a particular purpose temporarily. Therefore, we get from the
evidence of the tenant that the tenant intended to use the
structure as a kitchen during the continuance of the lease, because
the tenant requires a kitchen as long as the tenant uses the
premises and as he wants, to use it as a kitchen, he sufficiently
express his intention to use it as a kitchen during the term of his
tenancy which in this case is not definite. Therefore, for purposes
of Section108(p) of the Transfer of Property Act, we would hold
that the kitchen raised must be considered to be for a permanent
purpose.”
17. To sum up, no hard and fast rule can be prescribed for determining
what is permanent or what is not. The use of the word ‘permanent’ in
Section 108 (p) of the Transfer of Property Act, 1882 is meant to
distinguish the structure from what is temporary. The term ‘permanent’
does not mean that the structure must last forever. A structure that lasts
till the end of the tenancy can be treated as a permanent structure. The
intention of the party putting up the structure is important, for
determining whether it is permanent or temporary. The nature and extent of
the structure is similarly an important circumstance for deciding whether
the structure is permanent or temporary within the meaning of Section 108
(p) of the Act. Removability of the structure without causing any damage
to the building is yet another test that can be applied while deciding the
nature of the structure. So also the durability of the structure and the
material used for erection of the same will help in deciding whether the
structure is permanent or temporary. Lastly the purpose for which the
structure is intended is also an important factor that cannot be ignored.
18. Applying the above tests to the instant case the structure was not
a temporary structure by any means. The kitchen and the storage space
forming part of the demised premises was meant to be used till the tenancy
in favour of the respondent-occupant subsisted. Removal of the roof and
replacement thereof by a concrete slab was also meant to continue till the
tenancy subsisted. The intention of the tenant while replacing the tin roof
with concrete slab, obviously was not to make a temporary arrangement but
to provide a permanent solution for the alleged failure of the landlord to
repair the roof. The construction of the passage was also a permanent
provision made by the tenant which too was intended to last till the
subsistence of the lease. The concrete slab was a permanent feature of the
demised premises and could not be easily removed without doing extensive
damage to the remaining structure. Such being the position, the alteration
made by the tenant fell within the mischief of Section 108 (p) of the
Transfer of Property Act and, therefore, constituted a ground for his
eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy
Act, 1956.
19. We may at this stage refer to the decision of this Court in Ranju
alias Gautam Ghosh v. Rekha Ghosh and Ors. (2007) 14 SCC 81 where this
Court found that cutting of a collapsible gate by 5/6” and replacing the
same without the consent and permission of the landlord was tantamount to
violation of Section 108 (p) of the Transfer of Property Act read with
Section 13 (1)(b) of West Bengal Premises Tenancy Act, 1956. It is thus
immaterial whether the structure has resulted in creating additional usable
space for the tenant who carries out such alteration and additions. If
addition of usable space was ever intended to be an essential requirement
under Section 108 (p) of the Act, the Parliament could have easily provided
so. Nothing of this sort has been done even in Section 13 (1) (b) of the
State Act which clearly shows that addition of space is not the test for
determining whether the structure is permanent or temporary.
20. Reliance upon the decisions of this Court in Brijendra Nath
Bhargava and Anr. v. Harsh Wardhan and Ors. (1988) 1 SCC 454, Om Prakash v.
Amar Singh and Ors. (1987) 1 SCC 458, Waryam Singh v. Baldev Singh (2003) 1
SCC 59 and G. Reghunathan v. K.V. Varghese (2005) 7 SCC 317 do not in our
opinion advance the case of the respondent. In Brijendra Nath Bhargava’s
case (supra) this Court was dealing with a case arising out of Rajasthan
Premises (Control of Rent and Eviction) Act, 1950. Section 13 (1) (c) of
the said Act required the landlord to prove that the tenant had, without
his permission, made or permitted to be made any construction which had in
the opinion of the Court, materially altered the premises or was likely to
diminish the value thereof. Section 13 (1)(c) of the Rajasthan Premises
(Control of Rent and Eviction) Act, 1950 is to the following effect:
“13(1) (c) that the tenant has without the permission of the
landlord made or permitted to be made any such construction as, in
the opinion of the court, has materially altered the premises or is
likely to diminish the value thereof”
21. The above provision is materially different from the provision of
Section 13(1)(b) of the West Bengal Premises Tenancy Act 1956 applicable in
the present case which does not require the landlord to prove that there
was any material alteration in the premises or that such alteration was
likely to diminish the value thereof. The decision in Brijendra Nath
Bhargava’s case (supra), is therefore, distinguishable and would not have
any application to the case at hand.
22. In Om Prakash’s case (supra) this Court was dealing with a case
under Section 14 (c) of the U.P. Cantonment Rent Control Act, 1952 which
reads as under:
“14. Restrictions on eviction.—No suit shall, without the
permission of the District Magistrate, be filed in any civil court
against a tenant for his eviction from any accommodation except on
one or more of the following grounds, namely:
(c) that the tenant has, without the permission of the landlord,
made or permitted to be made any such construction as in the
opinion of the court has materially altered the accommodation or is
likely substantially to diminish its value.”
23. A perusal of the above would show the language employed therein is
materially different from the provision of Section 13(1)(b) of the West
Bengal Premises Tenancy Act 1956 with which we are concerned in the present
case. In the case at hand the landlord is not required to prove that the
construction have been materially altered or is likely to diminish its
value as was the position in Om Prakash’s case (supra).
24. In Waryam Singh v. Baldev Singh (2003) 1 SCC 59 this Court was
dealing with a case under Section 13(2)(iii) of East Punjab Urban Rent
Restriction Act, 1949 which was to the following effect:
“13. Eviction of tenants.—(1) * * *
(2) A landlord who seeks to evict his tenant shall apply to the
Controller for a direction in that behalf. If the Controller, after
giving the tenant a reasonable opportunity of showing cause against
the applicant, is satisfied—
* * *
(iii) that the tenant has committed such acts as are likely to
impair materially the value or utility of the building or rented
land,
* * *”
25. It is evident from the above that this provision was different from
the language employed in Section 13(1)(b) of the West Bengal Premises
Tenancy Act 1956. The ratio of that case also, therefore, does not lend any
support to the respondent. Same is true even in regard to the decision in
G. Reghunathan’s case (supra) where this Court was dealing with an eviction
petition under Section 11(4)(ii) of the Kerala Buildings (Lease and Rent
Control) Act, 1965 which was to the following effect:
“11. (4) A landlord may apply to the Rent Control Court for an
order directing the tenant to put the landlord in possession of the
building—
(i) * * *
(ii) if the tenant uses the building in such a manner as to destroy
or reduce its value or utility materially and permanently;”
26. The above provision is also materially different from the
provisions with which we are concerned in the present case. The ratio of
that case does not, therefore, have any application to the question whether
the structure raised by the respondent was a permanent structure within the
meaning of Section 108 (p) of the Transfer of Property Act. In Om Pal v.
Anand Swarup (dead) by Lrs. (1988) 4 SCC 545 also this Court was dealing
with a case under the East Punjab Urban Rent Restriction Act, 1949 which
makes material impairment of the property an important consideration for
purposes of determining whether the tenant has incurred the liability on
the premises leased to him.
27. In the result, therefore, we allow this appeal, set aside the order
passed by the High Court and restore that of the trial Court. Respondent
is, however, given one year’s time to vacate the premises in his occupation
subject to his filing an undertaking on usual terms within four weeks from
today. The grant of time to vacate the premises is further subject to the
condition that the respondent shall either pay directly to the appellants
or deposit in the trial Court compensation of the premises @ Rs.1500/- p.m.
from 1st October, 2012 till the date of vacation. The deposit shall be made
by the 15th of every succeeding calendar month failing which the decree
shall become executable by the Court.
……………………………………….……….…..…J.
(T.S. Thakur)
……………………..…………………..…..…J.
(Gyan Sudha Misra)
New Delhi
October 31, 2012
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