Back
1974 Supreme(Guj) 53
Gujarat High Court
Judgename :S.H.SHETH
THAKKER POPATLAL JADAVJI - Appellant
Versus
THAKKER DURLABHJI DHARAMSHI - Respondent
Civil Revision 1042 of 1971
Decided On : 06/25/1974
Headnote:
Bombay Rent Act – Section 13a – Landlord alleged that he wants to construct one room and a kitchen on terrace of the building which is in possession of tenants – Premises in possession of tenants consist of an enclosed house in which there are two rooms two kitchens an Osri and other incidental accommodation – Learned Trial Judge after having considered merits of case granted application made by landlord and made in his favour following order – Opponents are ordered to allow applicant to construct additional structure of a room and a kitchen on western portion of suit premises and also to construct a stair case for going to this additional structure from portion of land touching southern wall of suit premises within deli and then from above latrine situated in south of this western portion of suit premises – Opponents are also ordered to allow access to applicant his men and materials in deli for purpose of making these permitted constructions – Applicant is permitted to construct above situated stair-case of width of not more than 2-6 (two fit. and six inches ) – Applicant is further ordered to make a roof over bath room situated in Court yard of this suit premises at his own costs – Applicant is ordered not to demolish the latrine in construction of stair case – Held, In instant case no hardship is likely to be caused to tenants by landlord constructing an additional structure on building – There are two reasons why I take this view – In my opinion extension of a building which has been leased out to tenant or expansion thereof by putting up an additional structure there on cannot be said to cause undue hardship to a tenant. Merely because the tenant is deprived of the use of terrace which he may be using during summer for sleeping it cannot be said that he will be put to undue hardship by his being deprived thereof – If a landlord wants to construct an additional structure for his own occupation or for letting it out to a tenant or tenants it cannot be said that hardship which would be caused to his tenant by his being deprived of use of terrace will be so great as to override benefit accruing from personal occupation by landlord of additional structure or such benefit accruing to poor and needy persons of society to whom additional structure constructed by landlord may be let out – In any opinion in instant case there is absolutely no hardship which is likely to be caused to tenants and therefore tenants are not entitled to resist application of landlord – In my opinion order made by Courts below is perfectly valid and justified and is in accordance with provisions of sec. 13a – I therefore find no substance in this Civil Revision Application – It fails and is dismissed – Rule is discharged – Since tenants are not justified in resisting landlords application I direct them to pay the costs of this Civil Revision Application to landlord – Civil Revision dismissed.
( 1 ) THE landlord filed against the tenants the present application under sec. 13a of the Bombay Rent Act for permission to construct an additional structure on the building let out to the tenants. The landlord alleged that he wants to construct one room and a kitchen on the terrace of the building which is in the possession of the tenants. The premises in possession of the tenants consist of an enclosed house in which there are two rooms two kitchens an Osri and other incidental accommodation.
( 2 ) THE learned Trial Judge after having considered the merits of the case granted the application made by the landlord and made in his favour the following order :-THE opponents are ordered to allow the applicant to construct the additional structure of a room and a kitchen on the western portion of the suit premises and also to construct a stair case for going to this additional structure from the portion of land touching the southern wall of the suit premises within the deli and then from above latrine situated in south of this western portion of the suit premises. The opponents are also ordered to allow access to the applicant his men and materials in the deli for the purpose of making these permitted constructions. The applicant is permitted to construct the above situated stair-case of width of not more than 2-6 (two fit. and six inches ). The applicant is further ordered to make a roof over the bath room situated in the Court yard of this suit premises at his own costs. The applicant is ordered not to demolish the latrine in construction of the stair case.
( 3 ) THE tenants appealed against that order to the District Court. The learned Assistant Judge confirmed the findings recorded by the learned Trial Judge and dismissed the appeal.
( 4 ) IT is that appellate order which is called by the tenants in question in this Civil Revision Application.
( 5 ) THE only question which Mr. D. U. Shah appearing for the tenants has raised before me is whether under sec. 13a of the Bombay Rent Act the landlord is entitled to deprive the tenants of possession of the terrace for the purpose of constructing an additional structure on the terrace. Section 13a of the Bombay Rent Act provides as follows :-WHERE the landlord proposes to make any improvement in or construct any additional structure on any building which for part of which) has been let to a tenant and the tenant refuses to allow the landlord to make the improvement or construct such additional structure if the Court on an application made to it in this behalf by the landlord is satisfied that such work will not cause undue hardship to the tenant the Court may permit the landlord to do such work and may make such other order as it thinks fit in the circumstances of the case. Sec. 13a was inserted by Gujarat Act 57 of 1963.
( 6 ) THE question which Mr. Shah has raised before me turns upon the construction of sec. 13a. Sec. 13a in express terms provides for granting permission to a landlord to construct an additional structure on any building or a part of a building which has been let out to a tenant. The expression building used in sec. 13a must necessarily include its roof whether it is a roof in the form of a terrace or it is a roof in any other form. Sec. 13a confers upon the landlord right to construct an additional structure on the terrace which forms a part of a building in the possession of his tenant. A tenant who is in possession of a building with a terrace is necessarily in possession of the terrace If sec. 13a permits a landlord to construct an additional structure on the terrace it necessarily means that the tenant can be deprived of the possession of the terrace. Unless the tenant is deprived of the possession of the terrace forming the roof of his premises it is extremely difficult for me to think how the landlord can be permitted to construct an additional structure thereon. Mr. Shah has tried to argue that sec. 13a applies to buildings which have roofs o
