2012 (11) TMI 40 - SC - Indian Laws

Termination of tenancy rights - replacement of the tin-sheet by a concrete slab was undertaken by the tenant - is replacement in question took place in contrary to clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act ? - Held that - The use of the word permanent in Section 108 (p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term permanent does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. Thus applying the above tests to the instant case the structure was not a temporary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the respondent-occupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease. The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within the mischief of Section 108 (p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956. Set aside the order passed by the High Court that any such replacement of the roof did not tantamount to violation of TPA Act and restore that of the trial Court & the tenant given one year s time to vacate the premises in his occupation subject to his filing an undertaking further subject to the condition that the respondent shall either pay directly to the appellants or deposit in the trial Court compensation of the premises @ Rs.1500/- p.m. from 1st October, 2012 till the date of vacation to made by the 15th of every succeeding calendar month failing which the decree shall become executable by the Court.

Summary

Issues Involved:
1. Termination of tenancy.
2. Unauthorized alterations by the tenant.
3. Violation of clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act.
4. Determination of "permanent structure" under Section 108(p).
5. Applicability of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956.
6. High Court's interpretation and reliance on precedents.

Detailed Analysis:

1. Termination of Tenancy:
The landlord-appellant terminated the tenancy of the respondent-tenant through a notice under Section 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The trial court found that the legal notice for determining the tenancy had been served upon the tenant and decreed the suit for eviction.

2. Unauthorized Alterations by the Tenant:
The landlord claimed that the tenant had removed the corrugated tin-sheet roof of the kitchen and store room and replaced it with a cement concrete slab without consent. Additionally, a permanent brick and mortar passage was constructed. The trial court concluded that these alterations were carried out by the tenant and not the landlord, as the tenant's story of the landlord replacing the roof was introduced belatedly in a supplementary written statement.

3. Violation of Clauses (m), (o), and (p) of Section 108 of the Transfer of Property Act:
The landlord argued that the alterations violated clauses (m), (o), and (p) of Section 108, which pertain to the lessee's obligations to keep the property in good condition, not to use the property destructively, and not to erect any permanent structure without the lessor's consent. The trial court held that the tenant had made a permanent structural change in violation of these clauses.

4. Determination of "Permanent Structure" under Section 108(p):
The High Court reversed the trial court's decision, stating that the replacement of the tin-sheet roof with a concrete slab did not constitute a "permanent structure" as it did not add to the accommodation available to the tenant but was an improvement. The Supreme Court, however, emphasized that "permanent structure" should be interpreted based on factors such as the intention behind the construction, the nature and extent of the structure, its removability, durability, and the purpose it serves. The Court concluded that the concrete slab and passage were permanent structures intended to last until the end of the tenancy, thus falling within the mischief of Section 108(p).

5. Applicability of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956:
Section 13(1)(b) allows eviction if the tenant has done any act contrary to clauses (m), (o), or (p) of Section 108 of the Transfer of Property Act. The Supreme Court held that the tenant's alterations constituted a violation of Section 108(p), thus providing a valid ground for eviction under Section 13(1)(b).

6. High Court's Interpretation and Reliance on Precedents:
The High Court relied on precedents such as Om Prakash v. Amar Singh and Waryam Singh v. Baldev Singh, interpreting that unless waste or damage is proved, there can be no violation of clauses (m), (o), or (p). However, the Supreme Court clarified that the provisions of the West Bengal Premises Tenancy Act do not require proof of material alteration or diminished value, distinguishing it from other statutes like the Rajasthan Premises (Control of Rent and Eviction) Act and the U.P. Cantonment Rent Control Act. The Court held that the High Court's reliance on these precedents was misplaced.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and restored the trial court's decree for eviction. The respondent was given one year to vacate the premises, subject to filing an undertaking and paying compensation at Rs.1500/- per month from October 1, 2012, until the date of vacation.