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Gujarat High Court
Judgename :J.N.Bhatt
DEVIPRASAD VRAJLAL KACHHIYA - Appellant
Versus
CHHOTALAL NAROTTAMDAS PANCHAL - Respondent
Civil Revision307 of 1980
Decided On : 07/30/1993
The Jurisdictional sweep of a revisional court under Section 29(2) of the Bombay Rent Act, though little wider than Section 115 of the Code of Civil Procedure, is still circumscribed to correcting the impugned decision, which is not in accordance with law. Thus, a decision in an appeal of a District Judge can be revised under Section 29(2), by this Court, provided this Count is convinced that such a decision given in an appeal was not according to law. This Court, therefore, cannot interfere with the findings of fact which cannot be characterised as perverse or illegal.
[Para 3]
Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Sec. 13 (1) (a) - Ejectment - Encroachment upon open land or span west of demised premises - Held, such encroachment neither covered under any one of the acts enumerated in clause (o) of Sec. 108 of T.P. Act, 1882 nor in contravention of convenant in the rent note as entitling landlord to seek possession of demised premises.
The act of encroachment upon the adjacent land, by the tenant, as in the present case, is neither in contravention of the covenant in the rent note nor the statutory provision, and it cannot be regarded as a breach of condition of tenancy incurring or entailing eviction under Section 13(1)(a) of the Bombay Rent Act. The act of the tenant what is complained of in this regard is that the open space to the west of the demised premises, admeasuring 2 1/2 which is meant for passing of even water, by covering it by over-hanging projections of the newly raised wooden roof. In the light of the present case, that aspect itself, cannot be said to be a breach of the provisions of Clause (o) of Section 108, and therefore, there cannot be said to be a violation of the provisions of Section 13(1)(a) of the Bombay Rent Act.
[Para 5]
Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Sec. 13 (1) (b) - Ejectment - Ground of raising permanent structure - While considering ejectment under provision factors requiring consideration - Stated.
1.
The intention of the party in putting up the structure;
2.
The intention has to be gathered from the degree of annexation;
3.
Whether the structure can be removed without doing serious damage to the demised premises?
4.
The material used for structure and also the removability thereto;
5.
The nature of the materials used for the structure;
6.
The purpose and the object with which the erection of the structure is made;
7.
The durability of the structure?
8.
The nature and character of the structure;
9.
The offending structure viz-a-viz the original structure;
10.
The manner and mode in which the structure is erected, and dimensions thereof;
When the Court is called upon to adjudicate upon a case under Section 13(1)(b) of the Bombay Rent Act, the Court is obliged to consider all the factors enumerated.
[Para 7]
Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Secs. 13 (1) (a) & (b) - Ejectment - Finding of - In the instant case offending structure neither permanent nor permanently injurious or one covered under any of acts enumerated in clause (o) of Sec. 108 of T.P. Act 1882 - Conclusion of Trial Court was not only erroneous but illegal - Appeal allowed rightly but on grounds different than the grounds on which this revision is allowed by Court.
The offending structures cannot be said to be permanent structures as contemplated under Section 13(1)(b) of the Bombay Rent Act. It cannot, also, said to be destructive or permanently injurious to the demised premises, as envisaged in Clause (o) of Section 108 of the TP Act. This Court is also of the clear opinion that the impugned actions of the tenant cannot be said to be unreasonable, in respect of the user of the demised premises. The user of a prudent man test if applied, then in that case also, it cannot be said that the offending structures is, in any way, unreasonable, destructive or permanently injurious. The conclusion reached by the Trial Court that the tenant is liable to be ejected under Sections 13(1)(a) and 13(1)(b) is, totally, not only erroneous, but is illegal. The appeal filed by the tenant was allowed, rightly, but on wrong premise. Therefore, the revision is required to be dismissed on different grounds.
[Para 8]
( 1 ) IN this revision, under Sec. 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Bombay Rent Act for short), the petitioner has assailed the judgment and decree passed in Regular civil Suit No. 108 of 1978, by the learned District Judge, at Bharuch, on 25th July, 1979.
( 2 ) THE petitioner is the original plaintiff-Landlord and respondent No. 1 is the original defendant-Tenant and respondent No. 2 is the brother of the landlord. The parties are, hereinafter, referred to as the landlord and the tenant for the sake of brevity and convenience.
( 3 ) THE landlord filed a Regular Civil Suit No. 143 of 1974, against the tenant, for perpetual injunction and, also for the recovery of the demised premises. The plaintiff and his brother are the owners of an immovable property, situated in Ward No. 3, bearing Municipal No. 273, known as Vankarvad area in Rajpipla town, and the tenant was let two rooms to the west of the said property, which is, hereinafter, referred to as "the demised premises. The rent note, at Exh. 40, was executed by the tenant, on 18-1-1955, in respect of the demised premises (two rooms ). The landlord, infer alia contended that the tenant, without obtaining any consent from the owners and without the permission of the Municipality, started construction work in the demised premises. The landlord had also applied before the Municipality to stop the tenant from constructing and making permanent alterations. The Rajpipla municipality issued the order restraining the tenant from making construction. However, the landlord alleged that, in complete violation of the order of the Municipality, the tenant continued the construction work and encroached upon the open space on the west of (he demised premises, which was not let to the tenant. Therefore, the landlord filed the suit for perpetual injunction and also for possession.
( 4 ) THE tenant, in his written statement, inter alia, contended that the demised premises were of kutcha construction and there was one room with a varandah on the west. According to his plea, he had hired the demised premises from the mother of the plaintiff-landlord, and with the permission of the landlady, he had erected the varandah, at his own cost, and there was no permanent construction. He also pleaded that the demised premises were in a dilapidated condition and the landlord failed to keep it in habitable repairs. The roof of the said premises was bent and was likely to fall down. Therefore, according to the contention of the tenant, he replaced the wooden roof and placed Mangalore tiles with the support of wooden bamboos, and for such work, no permission was required.
( 5 ) UPON appreciation of the evidence and the facts and circumstances, the trial Court decreed the suit filed by the landlord, holding that the tenant had encroached upon the open land not let to him and, thereby committed breach of the terms of the tenancy and that the tenant has made permanent construction and alterations in the demised premises, without the consent of the landlord. Thus, the decree came to be passed against the tenant, in the trial Court, under the provisions of Secs. 13 (l) (a) and 13 (l) (b) of the Bombay rent Act, which, on an appeal, came to be reversed, by the learned District judge, at Bharuch, in Regular Civil Appeal No. 108 of 1977, which is under challenge, before this Court in revision, under Sec. 29 (2) of the Bombay rent Act.
( 6 ) AT this stage, it may be noted that (he jurisdictional sweep of a revisional Court under Sec. 29 (2) of the Bombay Rent Act, though little wider than Sec. 115 of the Code of Civil Procedure, is still circumscribed to correcting the impugned decision, which is not in accordance with law. Thus, a decision in an appeal of a District Judge can be revised under sec. 29 (2), by this Court, provided this Court is convinced that such a decision given in an appeal was nut according to law. This Court, therefore, cannot interfere wit
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