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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
M.S. Vaidya, J.
Vasant Shankar Choudhari ..... Petitioner.
Versus
Laxman Balaji Ambore through his legal heirs.... Respondents.
Writ Petition Nos. 3057 of 1989 2205 of 1981, decided on 18-7-1994.
Advocates appeared :
Sudhir D. Kulkarni, for Petitioner.
V.J. Dixit, for the respondent Nos. 1-A to a.C.
Section 13 (1) (b) of the Bombay Rent Act, as it is on the Statute Book now was in the same from form as it was when the Bombay Rent Act Was first made applicable to the State.
The words "but subject to the provisions of Sections 15 and IS-A" were additions made by Bombay Act 3 of 1949 and the modification made by Maharahtra Act 17 of 1973. They are not relevant for the purposes of this writ petition. It is, thus clear from the bare wording of the section itself that the Rent Act looked upon very jealously on a permanent structure made by the tenant on an open plot which was the subject-matter of the lease. The legislature had anticipated that the plea of oral consent, that the plea of estoppel by conduct etc. would invariably be set up in such matters. The intention of the legislature, as expressed by the aforesaid sub-section itself, would make it clear that the legislature did not want to leave any margin for such pleas and it was for that pm pose that it was provided that the permission to be obtained from the landlord by the tenant for making a permanent construction, must be in writing. The learned. Assistant Judge was certainly wrong in holding that inaction on the part of the landlord since the construction of the permanent structure by the tenant on the suit plot could estop explicity or implicitly, the landlord from bringing a suit for possession, on the ground contained in Section 13 (1) (b). It may be noted here that the defendant had made the construction on the suit plot for running his own admission in the cross-examination it was a permanent structure. His contention in the written statement that he had constructed only a shed covered by tin-sheets on the suit plot, has been disproved by him only by giving an admission in his cross-examination that whatever structure he had made on the suit plot, was a permanent structure. Thus, it was clearly proved by the petitioner-plantiff that the subject matter of the lease was an open plot, that a permanent structure was constructed thereon by the original defendant/tenant and that there was no written permission of the landlord obtained by the defendant/tenant for making such a construction and further, that the construction was made after coming into force of the Bombay Rent Act. Thus, all the material ingredients required for application of Section 13 (1) (b) of the Bombay Rent Act, were duly proved by the plaintiff. The finding recorded, in that behalf, by the learned Assistant Judge, can hardly be said to be a reasonable finding, on the basis of the material that was available on the record.
For the purposes of invoking the provisions of Section 13 (1) (b) of the Bombay Rent Act, the question was not, whether or not, the expenses for the alterations was incurred by the tenant or by the landlord on account of the adjustment of the rent. The landlord may himself get certain permanent construction made on the suit plot at the cost of the tenant to suit the convenience of the tenant. The finding of fact that the former landlady herself had supervised the construction made by the tenant at the tentants expenses could mean that the landlord himself had got the construction made at the cost of the tenant. If so, it was certainly not open to the landlord to bring the suit for possession on the ground that the tenant had made the construction without the written consent of the landlord. The estoppel is on account of the fact that the landlord himself had got the construction made to suit the convenience of the tenant and that too, at the cost of the tenant. The afroresaid ruling does not lay down a rule that for Section 13 (I ) (b) the requirement was not the landlords consent in writing. In the present case, it was not the plea of the defendant also that before taking the plot on lease, he had apprised the landlord of his intention to construct a permanent shop on the plot. The exact period are which the permanent construction was made, was not indicated by the tenant also, in his deposition though a vague
statement was made in the Written Statement (which as noted above, is found to be incorrect) that the shop was constructed about 35 years ago.
The landlord in the present case, had filed a suit on 14-8-1975 and the notice for termination of the tenancy was issued on 74-1975. There is hardly any material on record to show that during that period, the landlord had ignored the construction or that he had done something to waive the right conferred by the Statute in him under Section 13 (I) (b). The principle laid down in the above mentioned ruling has, thus, no application to the facts of the present case.
Sections 13 (1) (g) and (i) and 13 (2)-Construction-Making of an open lease hold plot-Landlords permission not taken-Whether such consideration has no application open plot required for new buildings construction?
Held, the tenant, by his conduct, was certainly not entitled to change the nature of the leased premises from an open plot to a permanently built tenement. Admittedly, what was let out to the tenant was only an open plot. Section 13 (1) (i) of the Bombay Rent Act was incorporated in the Act to encourage the building activities so as to reduce the strain on the problem of inadequacy of accommodation. There was, therefore, no provision similar to Section 13 (2) of the Bombay Rent Act, which is to be react with Section 13 (1) (g) of that Act, Section 13 (1) (g) enables the landlord to recover the premises if he reasonably and bona fide requires the same for accommodation by himself or by any person for whose benefit the premises were held or where the landlord was a trustee of a Charitable Trust, that the premises were required for the accommodation for the purposes of the Trust. The possession of a permanent construction can be sought on the ground that the provision contained in Section 13 (1) (g) Therefore, the landlord is under an obligation under the Act to prove that he reasonably and bona fide required the premises for accommodation by himself or by any person for whose benefit the premises are held, or where the landlord is a public Trust, the premises were required for the purposes of the Trust. It is in that eventuality that the Court is required to advert to. Section 13 (2) for decision of the question, whether or not, greater hardship would be caused to the landlord if the decree for possession was denied to him Such is not the consideration where the landlord proves that he requires that premises, which are an open plot, reasonably and bona fide, for the erection of a new building" It may be noted, here that initially Section 13(1)(i) contained an expression "for the erection of new building". The word "residential was deleted by Act 61 of 1953. Since then, the question whether or not, the premises to be constructed were business premises or residential premises, has fallen in the background.
Section 115.
See Bombay Rents, Hotel & Lodging Houses Rates Control Act, 1947-Section 13 (1) (b).
2. An open plot admeasuring about 20 ft. x 12 ft. and bearing House No. 988/2 of Kopargaon was let out to the original respondent Laxman Balaji Ambore, sometime in 1945, on a monthly rent of Rs. 3.50 ps. According to the petitioner-plaintiff, the original defendant Laxman Ambore had made a permanent construction on the suit property without permission of the landlord and had, thus, lost his right to continue on the premises, in view of the provisions contained in section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (in short, the Bombay Rent Act). It was also contended that the petitioner-plaintiff required the said plot reasonably and bona fide for construction of a new building thereon and that, therefore, the tenant was bound to deliver the possession of the plot to the petitioner under section 13(1)(i) of the Bombay Rent Act. The trial Court had found favour with the petitioners case on both points but, had negatived the case made out by the petitioner on the ground of default. Holding that the tenancy was terminated by valid notice, the learned trial Judge had decreed the suit for possession along with arrears of rent, mesne profits, costs of the suit etc.
3. In Appeal No. 96 of 1980 filed in the District Court, Ahmednagar, the learned Assistant Judge held that the property leased out was an open plot and that the tenant, on his own admission, had made a construction on the suit property. He did not record a finding that any written permission of the landlord was obtained for making the construction. But, it was contended that the construction was made by the tenant soon after he had taken the plot on lease. The learned Appellate Judge, therefore, held that the conduct of the plaintiff showed that he had not taken any action immediately after the structure was built and that, therefore, the landlord was not entitled to get a decree for possession. The learned Appellate Judge found that the petitioner-plaintiff had made out a case of reasonable bona fide requirement of the landlord for the use of the suit premises. He found that the case of the petitioner-plaintiff that the premises were required for construction of a new building, was not satisfactorily, proved. Therefore, he negatived the case of the plaintiff-petitioner on that count also. Consequently, the decree passed by the trial Court was set aside after allowing the appeal and the suit was dismissed with costs throughout.
4. Shri. S.D. Kulkarni, the learned Counsel for the petitioner, submitted that it is evident from the appellate judgment itself that the learned Assistant Judge had wrongly considered the case of the plaintiff under section 13(1)(g) of the Bombay Rent Act, instead of considering it under section 13(1)(i) of the Act. He pointed out the learned Assistant Judge had wrongly dwelt on the question of greater hardship when section 13(2) of the Bombay Rent Act, had no application to a case made out under section 13(1)(i). He submitted, further, that the learned Assistant Judge was wrong in holding, in the face of the evidence tendered by the petitioner, that he did not require the premises reasonably and bona fide for the erection of a new building. He submitted that the negative finding recorded by the learned Assistant Judge on this point, was recorded without due application of mind and without assessing, according to law, the weight of the evidence tendered by the petitioner-plaintiff. As regards the ground under section 13(1)(b), Mr. Kulkarni submitted that when the suit required the landlords consent given in writing, the learned Assistant Judge had erred
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