The construction of a permanent structure without the landlord's consent, leading to alteration and encroachment, can result in eviction under Section 13(1)(b) of the Bombay Rent Act.

1. The petitioner/original defendant who suffers an eviction decree dated 7 December 1990 in Regular Civil Suit No.589 of 1986 decided by the Joint Civil Judge, Senior Division, Nashik as confirmed by the learned Second Extra Joint District Judge, Nashik, dismissing the petitioners appeal by the impugned judgment dated 25 June 1996, is before this Court in the present proceeding under Article 227 of the Constitution, being aggrieved by the concurrent finding of the courts below.

2. In nutshell the facts are:

The petitioner's father Parashram alias Purshottam Jethanand Thakur was the tenant of the premises being Shop No.4, Municipal House No.12/173 situated at Ambedkar Road, within the municipal limits of Nashik Municipal Corporation (for short ' the suit premises'). The petitioners father expired during the pendency of this appeal. The petitioners are legal heirs of deceased Parsharam who are pursuing this petition. For convenience the parties are referred as petitioner and the respondent as they originally stood when this petition was filed. The respondent is the landlady. The suit premises were let out by the respondent to the petitioner on a monthly rent of Rs.75/- per month excluding the facility of electricity and water, with permitted increases. The petitioner conducts business of a photo studio in the suit premises.

3. The respondent filed the suit in question against the petitioner (Regular Civil Suit No.589 of 1986) praying for decree of ejectment and possession on two grounds available under Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short 'the Bombay Rent Act') firstly that the petitioner had defaulted in payment of rent from the year 1984 and the permitted increases. The rent was due and payable from 1984 upto June, 1986 which despite several demands, was not paid by the petitioner to the respondent. The second ground was of the petitioner constructing illegal structure in the open space of the suit property without the consent of the respondent. The construction was of a shed by installing iron poles surrounding iron mesh as described in the plaint. The respondent claimed that the petitioner deserved to be evicted on the said breaches of the petitioner.

4. The petitioner contested the civil suit by filing a written statement. Both the above grounds on which the respondent prayed for a eviction of the petitioner were denied by the petitioner. The petitioner's defence can be seen from paragraphs 15 to 13 of the written statement. The contention is that the structure as objected by the respondent was constructed before the petitioner occupied the suit premises as a tenant and the suit shop was conducted along with the shed to protect the premises from sunlight and rain water. The shed was also necessary for proper utilization of the suit shop. As the wooden pillars of the shed were damaged, before the shed collapsed and as the respondent failed to repair the same, the petitioners restored the shed to its original stage. Accordingly, the case of the petitioner was that the petitioner had not constructed any permanent structure. It was also contended that the respondent had filed Regular Civil Suit No.60 of 1985 before the civil court seeking injunction against the respondent to undertake the repairs, and that the injunction which was granted was subsequently vacated. It was contended that there was no damage or waste caused to the suit premises by restoration of the shed. It was also pleaded that the petitioners had taken on rent the shop (suit premises) and the open space in the front, and the rent was Rs.60/- per month and Rs.15/- as permitted increase. As regards the default in payment of rent, the petitioner contended that the standard rent was already fixed in the proceedings of Regular Civil Appeal No.749 of 1975 at Rs.75/- per month and the rent was paid upto November 1984 and thereafter, from time to time the petitioner had gone to the respondent to pay the rent