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TMI Blog2012 (11) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 replacem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slab apart from building a permanent brick and mortar passage which did not exist earlier. These additions and alterations were, according to the plaintiff-appellant, without the consent and permission of the Trust and, hence, violative not only of the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882 but also the conditions stipulated in the lease agreement executed between the parties. Eviction of the respondent was also sought on the ground that the respondent and his family members were using the passage constructed by them for creating nuisance and peeping into the bedroom of Shri Bharat Kumar Jethi, another tenant living on the second floor of the premises. 4. The defendant-respondent contested the suit primarily on the ground that his tenancy had not been terminated in terms of the notice allegedly issued by the landlord and that there was no violation of the provisions of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. A Court Commissioner deputed by the trial Court carried out a local inspection of the suit premises on 12th July, 1978 in presence of the parties. The Commissioner formulated five differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement there was no whisper from the side of the defendant that the construction was made by the landlord for the convenience of the tenants. This story was first propounded by the convenience of the tenants. This story was first propounded by the defendant by filing an additional written statement in 1983 i.e. about seven years after the institution of the suit. This belated plea of the defendant should be taken with the grain of salt. 7. The trial Court accordingly held that it was the defendant-tenant who had made a permanent structural change in the premises in violation of the conditions stipulated in the lease agreement and in breach of the provisions of Section 108 of the Transfer of Property Act. The trial Court further held that the tenant had not, while doing so, obtained the written consent of the landlord. The trial Court also found that the legal notice for determining the tenancy of the respondent-tenant had been served upon him and accordingly decreed the suit. 8. Aggrieved by the judgment and decree passed against him, the tenant- respondent herein appealed to the High Court of Calcutta which appeal has been allowed by the Division Bench of that Court in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (a) * * * (b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 1882 (4 of 1882); 12. Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act referred to in clause 1 (b) of Section 13 (supra) may also be extracted at this stage : 108. Rights and liabilities of lessor and lessee. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased: * * * (m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject including a decision of the High Court of Calcutta in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 to hold that one shall have to look at the nature of the structure, the purpose for which it was intended to be used and take a whole perspective as to how it affects the enjoyment and durability of the building etc. to come to a conclusion whether or not the same was a permanent structure. This Court approved the view taken in Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR 1965 Cal 408 and Surya Properties Private Ltd. Ors. v. Bimalendu Nath Sarkar Ors. AIR 1964 Cal 1, while referring to the following tests formulated by Malvankar J. in an unreported decision in Special Civil Application No.121 of 1968: (1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08(p) relative to the term of the issue. Therefore, the word permanent means which lasts till the end of the term of the lease and does not mean ever lasting nor does it mean which would last 100 years or 50 years . The term, as stated above, is a relative one and the relation here is to the period of the lease. There may be a lease from month to month or from year to year and we do not know when the lease is going to terminate. But the meaning of the words permanent structure would be that the lessee intended that he would enjoy the structure that he raises as long as he be continuing in possession. That period may be definite, that period may be indefinite. But that period is the period of the lease and the person, namely, the lessee, who constructs the structure, should have an intention to use it as long as he remains a lessee. 16. Applying the above to the case before it, the High Court held that the tenant in that case had constructed a kitchen which he intended to use till the time he remained in occupation. The Court found that the case before it was not one where the tenant had constructed the structure for a special purpose like a marriage in the family. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be ignored. 18. 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endra Nath Bhargava s case (supra), is therefore, distinguishable and would not have any application to the case at hand. 22. In Om Prakash s case (supra) this Court was dealing with a case under Section 14 (c) of the U.P. Cantonment Rent Control Act, 1952 which reads as under: 14. Restrictions on eviction. No suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely: (c) that the tenant has, without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value. 23. A perusal of the above would show the language employed therein is materially different from the provision of Section 13(1)(b) of the West Bengal Premises Tenancy Act 1956 with which we are concerned in the present case. In the case at hand the landlord is not required to prove that the construction have been materially altered or is likely to diminish its value as was the position in Om Prakash s case (supra). 24. In Wary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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