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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 ..... th regard to the mode of payment of rent as also with regard to repairs, sanitary and hygiene conditions in the tenanted property which led the landlord- appellant to terminate the tenancy of respondent in terms of a notice served upon the latter under Section 106 of the Transfer of Property Act read with Section 13 (6) of West Bengal Premises Tenancy Act, 1956. Since the respondent-tenant did not oblige, the plaintiff-appellant instituted Ejectment Suit No.391 of 1976 in the City Civil Court at Calcutta asking for eviction of the former inter alia on the ground that respondent- tenant had illegally and unauthorisedly removed the corrugated tin-sheet roof of the kitchen and the store room without the consent of the appellant- landlord and replaced the same by a cement concrete 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-tenant. The trial Court in the process held that the removal of the tin-sheet roof over the kitchen and store room and its replacement with a concrete slab was carried out by the respondent-tenant and not by the plaintiff-trust. In coming to that conclusion, one of the circumstances which the trial Court mentioned was the fact that the defendant had not made any whisper in the first written statement filed by him about the construction of the concrete roof having been undertaken by the landlord. The story that the landlord had replaced the tin roof by a concrete slab was propounded belatedly and for the first time in the supplementary written statement. The trial Court observed: "Lastly, it must not be lost sight of that when the defendant first filed the written statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. 10. Section 13 of the West Bengal Premises Tenancy Act 1956, starts with a non-obstante clause and forbids passing of an order or decree for possession of any premises by any Court in favour of the landlord and against the tenant except on one or more of the grounds stipulated therein. 11. Among other grounds stipulated in Section 13 of the Act is the ground that the landlord can sue for eviction of the tenant where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clauses (m), (o) or (p) of Section 108 of the Transfer of Property Act, 1882. Section 13 (1) (b) reads thus: "13. Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary in any other law, no order or decree 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 188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure" has not been defined either under the West Bengal Premises Tenancy Act, 1956 or in the Transfer of Property Act, 1882. The expression has all the same fallen for interpretation by the Courts in the country on several occasions. We may briefly refer to some of those pronouncements at this stage. 14. In Venkatlal G. Pittie & Anr. v. Bright Bros. Pvt. Ltd. (1987) 3 SCC 558, the landlord alleged that the tenant had without his consent raised a permanent structure in the demised premises. The trial Court as also the first appellate Court had taken the view that the construction raised by the tenant was permanent in nature. The High Court, however, reversed the said finding aggrieved whereof the landlord came up to this Court in appeal. This Court referred to several decisions on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure" could only mean a structure that lasts till the end of the term of the lease and does not mean "everlasting" nor does it mean a structure which would last 100 years or 50 years. The Court observed: "In all these cases condition (p) will operate. The phrase "permanent structure" does not mean "ever lasting". But the word "permanent" has been used to distinguish it from "temporary". A lessee has the power to raise any type of temporary structure, but he has no power to raise a permanent structure. The word "permanent" is also a relative term, because the absolute meaning of the word "permanent" is "ever lasting". But we cannot accept the meaning if the word "permanent" is a relative term, the question is, - relative of what? The answer immediately is - for purposes of Section 108(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture 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. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly the purpose for which the structure is intended is also an important factor that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Court, materially altered the premises or was likely to diminish the value thereof. Section 13 (1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is to the following effect: "13(1) (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 premises or is likely to diminish the value thereof" 21. The above provision is materially different from the provision of Section 13(1)(b) of the West Bengal Premises Tenancy Act 1956 applicable in the present case which does not require the landlord to prove that there was any material alteration in the premises or that such alteration was likely to diminish the value thereof. The decision in Brijendra 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question whether the structure raised by the respondent was a permanent structure within the meaning of Section 108 (p) of the Transfer of Property Act. In Om Pal v. Anand Swarup (dead) by Lrs. (1988) 4 SCC 545 also this Court was dealing with a case under the East Punjab Urban Rent Restriction Act, 1949 which makes material impairment of the property an important consideration for purposes of determining whether the tenant has incurred the liability on the premises leased to him.
27. In the result, therefore, we allow this appeal, set aside the order passed by the High Court and restore that of the trial Court. Respondent is, however, given one year's time to vacate the premises in his occupation subject to his filing an undertaking on usual terms within four weeks from today. The grant of time to vacate the premises is 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. The deposit shall be made by the 15th of every succeeding calendar month failing which the decree shall become executable by the Court. X X X X Extracts X X X X X X X X Extracts X X X X
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