:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 1042 OF 2008 Pritpalsingh Harisingh Lamba ...Petitioner Versus Smt.Ramabai Sadashiv Gaikwad ....Respondents ====== Mr.Filzi Fredrick i/by. Filzi Fedrick & Associates, Adv. for the petitioners. None for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 15TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The petitioner is the original Defendant in a Suit for eviction which is instituted by the Respondent-landlady. 2. The suit was filed for eviction on two grounds permissible under the Rent Control Legislation. The first ground is that the petitioner is in arrears of monthly Rent and the second ground is that he has made a permanent construction without her consent in writing :2: :2: :2: and that is why the petitioner deserves to be evicted. 3. The Trial Court dismissed the suit holding that there are no arrears, inasmuch as, the case which has been set up in the plaint is at variance with the Notice demanding the sum allegedly payable as Rent and permitted increases. Insofar as, the permanent construction is concerned, on that count as well, the Trial Court held that although the Tin shed erected rests on iron pillars which are fully embedded in Earth, the construction is not of permanent nature. 4. The landlady aggrieved by the Suit being dismissed, preferred an Appeal and the Lower Appellate court has reversed the judgment, insofar as, the finding on the issue of the petitioner raising permanent construction, is concerned. The lower Appellate court has upon appraisal and appreciation of the evidence on record, concluded that, what has been constructed is not a weather or a sun shed, with a view to protect the Shop from sun or rain. On the other hand, what has been constructed is a Tin shed raised on an iron pillar covered on all sides. This is a clear case of :3: :3: :3: permanent construction. The factum, that the construction was permanent has not been disputed, but, what is sought to be urged is that the same is to protect the Shop from sun and rain. 5. The lower Appellate Court has disbelieved this version and has held that this is not a structure which is for beneficial enjoyment of the tenancy rights but is a clear case of putting up a permanent construction without the permission of the landlady and the same is not protected on any ground, much less, the explanation. 6. The Learned Counsel appearing for the petitioner has assailed this finding and contended that the suit structure is a weather and sun shed and not a permanent construction as alleged. He submits that almost all shopkeepers have put up such construction and the landlady has not objected to the same. Further, the local body has not taken any action. While admitting that the structure rests on Iron pillars, it is urged that the business of the petitioner is of selling cycles and they are parked in :4: :4: :4: a covered area during the course of the business, to protect them from rain. For such a protection, the shed has been erected. 7. It is not possible to accept this contention. Section 13(1)(b) of the Bombay Rent Act, reads thus :- "13. "13. "13. When When When landlord may recover possession landlord may recover possession landlord may recover possession (1) Notwithstanding anything contained in this Act [but subject to [the provisions of Section 15 and 15A], a landlord shall be entitled to recover possession of any premises if the Court is satisfied. (b) that the tenant has, without the landlord’s consent given in writing, erected on the premises any permanent structure. [Explantion :- For the purposes of this clause, the expression "permanent structure" does not include the carrying out of any work with the permission, wherever necessary, of the local authority, for providing a wooden partition, standing cooking platform in kitchen, door, lattice work or opening of a window necessary for ventilation, a false ceiling, installation of air-conditioner, an exhaust outlet or a smoke chimney; or] 8. A bare perusal of the same would demonstrate :5: :5: :5: that once the tenant has without the landlord’s consent in writing erected on the premises any permanent structure, which is not of the nature covered by the explanation, then, the same furnishes a ground for eviction of the tenant. The landlord can file a suit for possession on that ground. What is protected by the Explanation is ‘some works’ which the local authority permits, even, if there is no consent of the land landlord in writing. The nature of the works covered by the Explanation would demonstrate that these are for beneficial and proper enjoyment of the tenancy. 9. A Single Judge of this court in the case reported in 1995(1) Mh.L.J. page 675 Somnath Krishanji 1995(1) Mh.L.J. page 675 Somnath Krishanji 1995(1) Mh.L.J. page 675 Somnath Krishanji Gangal Gangal Gangal V/s. Moreshwar Krishnaji Kate V/s. Moreshwar Krishnaji Kate V/s. Moreshwar Krishnaji Kate has referred to the tests which are well settled. These tests are laid down in the decision of the Supreme Court reported in AIR AIR AIR 1987 SC 1939 Venkatlal G. Pittie and Anr. V/s. 1987 SC 1939 Venkatlal G. Pittie and Anr. V/s. 1987 SC 1939 Venkatlal G. Pittie and Anr. V/s. M/s. M/s. M/s. Bright Bros. (Pvt) Ltd. Bright Bros. (Pvt) Ltd. Bright Bros. (Pvt) Ltd. 10. In the instant case, a perusal of the photographs would show that the petitioner has extended the suit shop by putting up a construction on the open :6: :6: :6: space in the front and that is admittedly without the consent of the landlady given in writing. Further, the nature of the construction, mode of annexation would go to show that it is not for the beneficial enjoyment of the tenancy or for protecting the suit Shop from Rain and sun, as urged. It is clear case where the Shop area has been extended so that the cyles could be stored and displayed. In such circumstances, the learned Appellate Court was right in holding that the structure cannot be protected. The construction being permanent admittedly, is not covered by the Explanation below Section 13(1)(b) and the well settled principles referred to above would be clearly attracted. In these circumstances, it is not possible to accept the pleas of the Learned Counsel appearing for the petitioner that the Decree of Eviction is vitiated by any error apparent on the face of the record, so also, can be termed as perverse. 11. Reliance placed upon the decision of the Learned Single Judge of this court in the case reported in 1990(1) Bom C.R page 463 (Ramchandra D.Gandhi vs. 1990(1) Bom C.R page 463 (Ramchandra D.Gandhi vs. 1990(1) Bom C.R page 463 (Ramchandra D.Gandhi vs. Pushpabai Pushpabai Pushpabai M. Sheth) M. Sheth) M. Sheth) is not appropriate. The facts in :7: :7: :7: this case clearly show that what was subject matter of the proceedings was a Residential house. The house was dilapidated and repairs were carried out by the tenant which were temporary in nature. Secondly the construction put up, although permanent, was of a wall and window in the kitchen and a shed outside the same for washing utensils. That could not have been made the basis for eviction, is the conlusion based upon materials produced and inaction of the Landlord. Further, that was for beneficial enjoyment of Tenancy rights. 12. Such is not the case. This is a commercial structure/shop. The shop area is defined and this is a clear case of the petitioner having enclosed and extended the shop by putting a Tin Shed resting on iron pillar embedded in earth, so that he has an advantage of the additional area. That portion is an frontage for all shops in the line and open to sky, for all times. At the most the Shop could have been protected by a weather shed. That is not the case here. In such circumstances, there is no substance in the Writ Petition and it is summarily dismissed. :8: :8: :8: *********