1. This petition is directed against the judgment and Decree passed by the Learned Extra Assistant Judge Jalgaon, in regular civil Appeal No.70 of 1974 arising out of the decision in Regular Civil Suit No.81 of 1972 given by the Learned Joined civil Judge, junior Division , Jalgaon, dismissing the suit.
2. The Respondent landlord was the owner of two plots of land admeasuring 27ft. X 11 ft. And 18 ft. X 14 ft. Bearing city survey No.2122/A and municipal No. 340 and situated within the Jalgaon municipal limits. The two plots were known as plot No.1 and plot No.2 and were adjacent to each other.
3. It appears, sometime prior to 1957, Plot No.1 was released as an open plot of land of one Lalji waghji, This Lalji Waghji had constructed a structure thereon and was running a hotel business. On the 29th June, 1957, the petitioner tenant purchased this hotel as a running business together with the shed thereon constructed by Lalji Waghji with the consent of the Respondent-landlord. The petitioner was accepted as a tenant by the Respondent.
4. Thereafter on the 1st December, 1957, it seems that the petitioner-tenant took on rent for his hotel business the adjoining plot also. On this adjoining plot he erected a structure. The rent of the plot which was let out to Lalji Waghji at first and was subsequently given to the petitioner-tenant was Rs.35/ though for the second plot taken on lease by the petitioner, the agreed rent was Rs.6/- only.
5. On the 8th August 1970 the Respondent landlord served a notice upon the petitioner tenant to quit and hand over vacant possession of the premises by 30th Aug., 1970. Out of the two grounds which were raised for demanding possession from the petitioner-tenant one was arrears of tent, namely, that the petitioner-tenant was in arrears of rent for a period from 1st January, 1970 to 30th July 1970. The second ground was that the petitioner had erected a permanent structure on the land.
6.With regard to the arrears of rent, the petitioner-tenant paid all the amount which was due within a period of one month and, therefore, there was no question of any default having been committed by the petitioner-tenant. The only ground, therefore, which was in issue, and remains now in issue, is as to whether the petitioner-tenant has lost his right to remain in possession for having constructed and erected a permanent structure on the land.
7. It appears that on the 29th November 1971, the chief officer, Jalgaon Municipality, served a notice upon the petitioner-tenant requiring him to demolish the walls of the shed wherein he was conducting his hotel business on the ground that the walls had become dangerous and were in a dilapidated condition. The notice directed the petitioner to pull down those walls and construct those walls anew.
8. On the 11th January 1972, the Respondent-landlord filed the suit against the petitioner-tenant being Regular Civil Suit No.81 of 1972, in the court of joint Civil Judge, Jalgaon District, Jalgaon. As stated, the suit was based on two grounds for possession, namely, arrears of rent and the petitioner-tenant erecting a permanent structure. It was the case of the Respondent-landlord that the petitioner-tenant erected this permanent structure without his consent in writing. That the work was actually going on when the plaint was filed and that the petitioner-tenant did not desist from finishing the work, though requested not to do so. Soon after the institution of the plaint, the Respondent got a commissioner appointed to visit the site in suit, to draw a sketch plan and to make a report. Shri A.D. Chaudhari was appointed commssioner. Who made his report and also drew a map. The report of the commissioner is at Ex. 76, while the map is produced at Ex.77.
9. The petitioner tenant in his defence stated that he had taken these premises on rent which was agreed and that the premises were then open plots taken for the purpose of hotel business. On those plots a temporary structure for the purpose of the hotel was erected. That out of these plots, plot No.1 , admeasured 27 ft. X 11 ft. This was originally let out to Lalji Waghji and that Lalji Waghji had erected thereon a structure admeasuring 10 ft x 11 ft. Which according to the petitioner was a shed with walls built in bricks and mortar. The petitioner purchased this property from Lalji waghji with the consent of the Respondent-landlord and since then the Respondent accepted the petitioner as a tenant. It was contended that the ownership of the sheds belonged to the petitioner. It was contended that the walls of the shed and the roof had become dilapidated and dangerous to the occupants, and , therefore, on account of Notice issued by the Jalgaon Municipality dt.27th Nov., 1971 the shed was demolished and was reconstructed on the same plots.
10. The learned Trial Judge dismissed the suit of the Respondent-landlord. Against that the Respondent filed an Appeal in the court of the learned Extra Assistant Judge, Jalgaon. The learned Extra Assistant Judge allowed the Appeal of the Respondent and set aside the Judgment and Decree passed by the Trial court and passed instead a Decree for possession in favour of the Respondent-landlord.
11. In passing this Decree, the learned Extra Assistant Judge was of the opinion that, considering the nature of the work which was being carried out and which had been carried out by the petitioner-tenant, it was a permanent structure which had been erected and not a restroation of the original structure. He also held that what the petitioner-tenant had done was not to reconstruct the old structure 'but has completely built a new one.' He also found t hat in place of the old structure, the petitioner-tenant has 'constructed a structure covering the area of both the plots'. He was of the view that the learned Trial Judge had overlooked that what the petitioner had done was not a re-construction of 'the same type of structure of the same size'. Reliance before him was placed on a ruling in the case of Suka Ishram Chaudhari v.Ranchhoddas reported in : AIR1972Bom273 and a decision of this court in civil Raven. Appln. No. 114 of 1965 decided on 12th Nov., 1968 by Justice Kantawala as he then was, In view of the fact that what was put up by the petitioner-tenant on the site a permanent structure and since it was not a restoration of the former structure but an enlarged shed on the entire plots, he held that the ratio of the decisions in Civil Raven. Applns. Nos.1160 of 1968 and 114 of 1965 did not apply to the facts before him. His findings and conclusions were seriously challenged before me.
12. Shri Butani, who appeared for the petitioner, contended that the principle laid down by Justice Kantawala in Civil Raven. Appln.No.114 of 1965 was misconstrued by the learned Judge. That what was done by petitioner-tenant in this case was to obey the orders of the Jalgaon Municipal council to pull down the structure and to replace it by new walls. What he was. Therefore, doing was an act in obedience of the orders of the municipal council. It was contended Shri Butani that there was no evidence adduced by the parties in the courts below nor was there any material on record of the case to hold and determine as to what was the total area or extent of both the structures on the two plots. Though the plots are adjoining, dimension of the structure on the second plot is not known. If the two structures were built jointly with each other, then together they would become only one shed used for purpose of the hotel, which the petitioner was runing. It was his submission that the learned Judge mis-read the evidence in coming to the conclusion that what was constructed by the petitioner was the shed which was larger in extent than it was before and that it has been built upon the plots so as to suggest that the entire plots have now seen built upon and there is no open plot or land left. This, he said was not borne out at all by the commissioner's report or by the map. It was contended that it is the nature of the structure and the intention with which it is affixed together with the decree of annexure to the premises let namely the open plots of lands in this case, which will determine the characters of the structure. Merely because cement and bricks were used, it could not follow that the structure must, therefore, be a permanent structure. The learned Judge according to shri Butani was unduly impressed by the circumstances that a foundation was dug and was seen by the commissioner. He however, urged that the learned Judge's observations that the foundation was 3 1/2 ft. Deep is in no way supported by any evidence or material on record.The mere fact that the fact that the walls were built upon foundation does not ipso facto establish or prove that the structure was a permanent structure. The size of the walls, kind of material used for the erection of the walls, the possible and likely damage in case the structure is taken away from the premises let, all these circumstances when taken into account indicate that the intention of the lessee or the person who erected the structure was to erect a structure which will endure for all times and wicked confer a lasting advantage in respect of the premises, only then the structure can be considered as a permanent structure shri Butani seriously contended that in order to attract operation of S. 13(1)(b) of the Bombay Rent Act a permanent structure must be by way of addition to the premises let and must, not be part of the premises themselves.
13. It was contended on behalf of the Respondent that the decision and principle laid down in Civil Raven. Appln.No.115 pf 1965 was in no way applicable to the facts of this case. In that case action was taken by the tenant pursuant to a notice issued bu the municipal corporation, poona and since the landlord in that case had statutory liability to keep the premises in tenantable repair he had not done so. What the tenant, therefore , did with the permission of the municipal corporation poona was to erect a construction after the landlord-plaintiff in that case had neglected or refused to do so when he was called upon to do so, by the municipal corporation, poona. In the present case, shri Desai submitted that there was no notice issued to the Respondent-landlord at all. On the other hand, it was shri Desai's submission that the Notice served by the municipality appears almost to have been invited by the petitioner. There is no evidence to show that the Respondent-landlord had neglected or refused to carry out any word.
14. The second submission was that the learned Judge has not considered the evidence fully and completely. On a consideration of the evidence he had arrived at the conclusion that what was constructed by the petitioner was a shed larger in extent and of permanent nature. If that was so, Shri Desai submitted under Art. 227 it will not be permissible to distrub that finding of fact. If that finding of fact is conclusive and is binding on that court, then he submitted that, there is no alternative but to dismiss this petition.
15. It would be convenient firstly to refer to the notice issued by Jalgaon municipal council. It does appear that the notice or direction was issued in connection with some application or reference dt. The 2nd Nov., 1971 made by the petitioner. Shri Desai says that this is an application made by the petitioner himself. However, what is further material is not as to who made that application but as to what that application contained. The original application or its certified copy is not placed on record. No questions were asked to the petitioner in the witness box in that behalf.
16. The notice says that the premises were inspected on the 23rd Nov., 1971 by the municipal Engineer and he was of the opinion that the structure was in a dilapidated condition. The notice also recorded the state of the structure which was built in brick with lime plaster and C.I sheet proof that the plaster had come off at many places and mortar had also come off from the joints. The walls being broken at many places and, therefore, the walls should be pulled down and at that place new walls should be built. The notice also directed that the walls have become dilapidated and dangerous for occupants.
17. Now it is clear that this notice issued by the municipal council can only be considered as one u/s 195 of the Maharashtra municipalities Act, 1965. That section empowers the chief office where he is of the opinion that any building or other structure was is a ruinous condition or likely to fall or in any way dangerous to any person occupying, the chief officer may be notice 'require the owner or occupier of such building or structure to pull down, secure, remove or repair such a building or structure.'and also' 'do' one or more such things.' The chief officer, therefore, if he is of the opinion that a structure is in a ruinous condition or in any way dangerous or about to fall, may not only direct the owner or the occupier to pull it down but may also direct him to repair and secure the structure by doing any or more or such things mentioned in the section. The consequences of not complying with the notice u/s.195 is that the person not so complying with the Notice can be find and prosecuted.
18. Now it is not in dispute in the present case that the Respondent -landlord was not served with any such notice u/s 195 of the Maharashtra Municipalities Act, 1965. Shri Dessai says and rightly contended that the Notice should also have been served upon the Respondent-landlord and if it had been so served and the Respondent had not carried cut the work, then possibly the decision relied upon would have been attracted. This contention overlooks the powers of the chief officer and the facts which are obtaining in the present case. It is not disputed that the owner in this case was the owner of the land only. The Respondent -landlord had nothing to do with the structure which admittedly belonged to the occupier. In the ordinary course where nothing is known about the ownership of the structure, shri Desai would be right in contending that the notice u/s.195 should also have been served upon the owner. However , where it is known, or comes to the knowledge of the chief officer that the owner of the premises, namely, the landlord has no concern whatsover with the structure, in his wisdon, the chief office may decide not to issue a notice to the owner but issue only to the occupier who is the owner but issue only to the occupier who is the owner of the structure. In the present case, if the notice was issued to the occupier, namely, the petitioner only, it cannot be said that there was a deliberate attempt to by-pass the Respondent-owner. In the present case since the owner. In the present case since the owner of the structure was also the occupier thereof, the notice issued u/s 195 and served on the occupier would be a perfectly valid notice.
19. The notice also clearly points out as to the condition of the premises and the nature of the structure. It show that the walls were built in bricks and mortar and that there was C.I sheet roof. However, the notice unfortunately, and ,may be fortunately for the petitioner-tenant,does not say as to what is the extent of t he premises. It merely refers to the structure and does not relate to more than one structure. This notice is dt. 27th Nov., 1971 and it is thereafter that the present work was commenced. It does, therefore, appear that the original walls which were constructed on this structure were constructed on bricks and mortar.
20. This position is also further clarified by the commissioner's Report. The commissioner's report says that the old work, debris of which was lying on the premises, indicate that it was made in mortar and bricks and the old mortar was lying everywhere and some new frames of windows were also seen. The new building work or wall building work was being carried out in bricks and cement. He makes a reference also to the foundation at one place only described as S-1 to S-2 in his map. There he says that the foundation was being filed. Up from mortar, pieces of mortar and cement.
21. According to the evidence given by the petitioner, he was using the same material for the purpose of the construction. Presumably, the meant there by that he was using the old bricks and also partly using the doors and windows of the former structure, though some of the window frames were new. He has specifically referred to frames, but the commissioner did not similarly make any reference to any new door frames. He has made a reference to the door frames but has not said whether the door frames were new or old. Reliance was sought to be placed upon a photograph Ex. 69 showing the work done. This will partly support the evidence of the petitioner in that some of the bricks which appear to have been used in the construction of the walls appears to be old bricks since mortar seems to be clinging on to them Even the commissioner observed lime and mortar at many places was clinging on to the bricks.
22. I have already pointed that the dimension of the plots taken together would work out to 54 x22. What the commissioner has not done. Nor the parties seem to have insisted upon, is the drawal of the sketch map of the entire two plots in question. That would have shown to us the structure which was constructed and the remaining open space, if there was any, which was available. The learned judge has record a finding that the sketch or map drawn by the commissioner was of the entire plot. This finding, however, cannot be supported and is incorrect. If we look to the commissioner's report and the sketch map, the report does not say that the sketch was of the entire plot. The commissioner's report goes to show that the length and breadth of the structure was 32 ft. Along the south and line AB and 15ft. In width along line B to S-2 There foes not appear to be any construction beyond the foundation shown by the commissioner in S-1 and S-2 No wall to the north and no wall to the west had been admittedly constructed then. The width of the structure to the west has been shown by the commissioner.The width of 18ft. Which I have found of the structure is to the East. Beyond the foundation shown by the commissioner, there is a portion of the wall which is north south but except that wall there is no other structure shown. It will thus be seen that the construction which is now ready admeasures 32' 6' x 15'. In any event it does not cover an area of 45' x 22. The learned judge's finding, therefore, that the construction was on the entire plot the construction was on the entire plot is wholly unsupported by the commissioner's sketch as to what was the situation at the site when the work was going on. It that is so, then the finding or the conclusion of the learned Extra Assistant Judge to that effect disappears.
23. The same must also be stated about his observation and finding that the foundation of the walls was 3 1/2 ft.deep. He says that 'the Defendant-tenant had taken foundation of 3 1/2 ft. Deep and was constructing the building with cement and mortar and was making altogether a new construction.' In coming to this conclusion, he relies himself on the statement of Anandsingh . It nowhere says that the foundation was 31/2 ft. Deep. For the Respondent-landlord it was conceded that there was no such statement or piece of evidence appearing on the record. Neither the commissioner has said in his report that the foundation was 31/2 ft.deep. It is not known from where the learned Judge obtained this impression that the foundation was 31/2 ft.deep. On the other hand, the description of the foundation, the laying of it and the type of material which was thrown in the foundation indicated that the foundation cannot be considered as fit for a permanent structur. It was being filled with broken pieces of bricks, mortar and cement. Such a foundation can hardly support a permanent structure. It may be used for a temporary structure at best. The learned Judge was, therefore, wrong in coming to the conclusion both on observation of the material which was used and the nature of the construction that it was permanent merely because cement was used. Instead of lime mortar which was used for the old structure, the material which was used was cement in this case. Merely because cement is used in t his case, it is difficult to hold that he construction was not a restroation of the former structure made of old bricks and lime mortar but an entirely and wholly new construction.
24. If it us held that the construction was not of such a type as to decribe it r of an enduring nature, even if the materials used be of sufficient durable quality and strength, then it is difficult to hold that the construction was of permanent nature. After all the construction was intended to serve the purpose of running a hotel. No attempt to build a permanent building as such on a plot of land obtained for the purpose of running a hotel has been expressed or stated. What was formerly a brick and lime mortar structure with C.I. sheet roof is now sought to be converted into a brick and cement structure.
25. It is true that Anandsingh, plaintiff's witness, in his evidence stated that the shed was constructed 'of mud and brick walls' and there were tins on the roof and plot No.2 was constructed of Kud walls and there were tins on it. Now this statement of Anandsingh is not supported by Ex.72 viz. The report based on the visual examination by the municipal Engineer. Anandsingh admits, however, in cross-examination that the walls were old but that they were constructed on the basis of a foundation, No Kud walls had been referred to by the municipal Engineer. Kud walls are generally not constructed upon foundations. The petitioners in his evidence stated that the shed 'is constructed with the same bricks' and that the shed was 'constructed in bricks and lime'. He does not refer to any kud walls nor was he questioned during his cross-examination of the existence of a shed with kud walls. The learned Extra Assistant Judge seems to have proceeded on the basis that these kud walls, made of bamboo strips were removed and replaced by solid brick walls built in bricks and cemene. On behalf of the petitioner the municipal Engineer was examined who actually saw the shed in question on the 23rd Nov., 1971 and pursuant to whose report, notice Ex.72 was given to the petitioner. He had not been asked any question as to the character of the walls whether they were of kud or otherwise nor even the extent of the premises nor even the extent of the premises which was already existing. On the other hand he stated that the walls of the shed 'were cracked and the structure was in a condition which was dangerous to human habitation.' In the circumsatnces, it is difficult to think that what was attempted to be done pursuant to the Notice of the Muncipal council, Jalgaon,by the petitioner was not a restoration of the premises to their former condition as was required after dismantling the walls which were in a dangerous state instead of bricks and cement instead of bricks and cement instead of bricks and lime mortar. This amounts to restroation of the premises and not to a new construction.
26. I would now refer to the decision in Civil Raven Appln. No.114 of 1965. It is true that in that case the poona municipal corporation had served a notice to the landlord to reconstruct and restore the portion of the kitchen which was washed away in the panshet Dam Floods. The landlord in obedience of the notice omitted to do so. The tenant then moved the municipal corporation and sought permission to do so. The tenant was granted permission and the tenant reconstructed the washed out portion of the kitchen and built the structure again with walls on its foundation. The landlord sued him for possession on the ground that he had erected a permanent structure. It was held in that case that what the tenant had done was in obedience of the Notice issued by the municipality and the same amounted to restoration of the premises and not new construction.
27. Dealing with S. 13(1)(b) Justice kantawala observed that in order to obtain a decree for recovery of possession, the landlord has to establish that a tenant without his written consent erected a permanent structure on the demised premises. Such a permanent structure would not be on the demised premises. It pre-supposes that it must be in addition to or different from the original demised premises. It is this last part of the observation on which considerable reliance is placed. Shri Desai contended that these observations were not necessary for the decision in that case. I am unable to agree with this submission of Shri Desai. The court in that case was required to consider whether in the circumstances the tenant had erected a permanent structure by contravening the provisions of S. 13(1)(b) and thereby incurred the penalty of eviction. It was said what S. 13(1)(b) contemplates is an addition to or different kind of structure from the original. What was being done in that case was laying down the law so far as the provisions of S. 13(1)(b) were concerned. It was in the context of this requirement of S. 13(1)(b) , namely, whether the premises were an addition to or different from the original structure that the question as to whether premises built by the tenant came within its ambit or otherwise had to be decided.
28. It seems to me that what S. 13(1)(b) also lays down is that the structure which is erected by the tenant must be different from the demisedfallendownpremises and must change the character or situation and the nature of the premises demised. Apart from the character of t hat work being of a permanent nature or enduring and lasting nature, there must be some addition to the premises. Mere, re-erection or reconstruction of premises which had either fallen down or which were required to be pulled down. Cannot be termed as such construction. What was in that case done was a mere restroation of the premises to their original condition. It may be that the material which is used for erecting a permanent construction has been used therein , But it would not mean that it is, therefore, an an erection of a permanent strcture. What the petitioner-tenant in this case has done must be held to be restoration and reconstruction of the premises which were required to be pulled down in obedience of the orders of the municipal corporation, Jalgaon, The petitioner would have been visited with a prosecution and fine if he had failed to comply with the provisions of S. 195 of the Maharashtra Municipalities Act, 1965. Therefore, the petitioner-tenant had acted not voluntarily but in obedience of the process of law, and may be under a compulsion. Under the circumstances it cannot be held that in the present case he has attracted the penalty of eviction under the provisions of S. 13(1)(b) , and the structure erected is of a permanent nature.
29. In the circumstances and the view which I have taken on the basis of the material and evidence on record it is not necessary to refer to the decision in the : AIR1972Bom273 . It would be sufficient to point out that case also the walls were put up after digging a foundation of 1 1/2 ft. Deep. In the present case there is no evidence as to the depth of the foundation. The petition, therefore, must be allowed and succeeds. Rule made absolute. There will be no order as to costs.
30. Petition allowed.