Kalpana Dhar v. Subodh Kumar Paul — 1978 DIGILAW 446 (CAL)

JUDGMENT Banerjee. J. :- This appeal at the instance of the tenants arises out of a suit for eviction on the ground of contravention of the provision of clauses (m), (o) or (p) of section 108 of the Transfer of Property Act. The allegations made in the plaint are that the plaintiff-respondent is the landlord of premises No. 209/B, Acharya Profulla Chandra Road, Cal-4. The defendant was a monthly tenant in respect of a flat on the second floor of premises No. 209/B, Acharya Profulla Chandra Road, Calcutta-4, at a monthly rent of Rs. 35-50P payable according to the English Calender month. Therefore the tenancy was determined by a combined notice to quit on 26th April, 1969. It is alleged that the tenant without the knowledge and consent of the landlord made unauthorised construction of a room with pucca walls of brick with cement by digging the roof of the house in various places and thereby contravened the provisions of clauses (m), (o) or (p) of section 108. It is further allege that by notice dated 17th April, 1969 the defendant was requested to demolish the structure but the defendant failed to do so. Hence the suit. The court below decreed the nit brought by the plaintiff. Hence this appeal. During the pendency of the appeal, the defendant. Tara Pada Dutta, died leaving his widow Padma Rani Duttli and three daughters, Kalpana Dhar, Kabita Ghosh and Rubi Banerjee. Only the widow Padma Rani Dutta and other two daughters were impleaded as reaponsents. 2. Mr. Motilal at the time of hearing argued three points; firstly that the disputed construction was outside the demised premises let out find therefore section 13(1)(b) of W. B. Premises Tenancy Act read with section 108(m), (o) or (p) of T.P. Act does not at all apply; secondly, that the structure is not a permanent structure, and thirdly that, even if section 108(m), (o) and (p) of the Transfer of Property Act applies, under section 114 of the Transfer of property Act, the notice should be given for three months to remove the structure but such notice not having been given the suit as framed is not maintainable. 3. Mr. 3. Mr. P.N. Bhattacharjee, on behalf of the respondent, however, contended that section 108 (m), (o) or (p) of Transfer of Property Act does apply in the facts and circumstances of the case Moreover, it is argued that when the notice was given directing the defendant to remove the structure, a reply was given by the learned Advocate on behalf of the tenant that the construction of a very small room on the roof was made with the consent of the landlord and intended to be used as a temporary arrangement. (Vide Ext. 3a). As regards, the nature of the construction whether it is a permanent structure or a pucca structure, it is argued by Mr. Matilal that the structure is not a permanent structure and heavily relied on the case reported in (1) 67 CWN 977 at 1002 whereas Mr. Bhattacharjee relied upon (2) 65 CWN 626 (1) AIR 1965 Cal 408 . The fact which could not be disputed in the Court below is that the tenant constructed a room unauthorisedly on the roof of the tenanted premises and the construction was of a room made of pucaa wall of brick with cement with tiled shed on the roof of the premises in question. It has also been found that the structure is a permanent structure unauthorisedly built by the defendant without the consent of the plaintiff. The case of the defendant in the written statement and during trial however, is that he did not raise any structure on the suit premises but tile structure was there on the roof when the premises wallet out to the defendant. The plaintiff's evidence is that it was a pucaa structure with tiles. The structure has been raised after digging the roof. In our opinion, the structure constructed with cement and brick cannot be said to be other than permanent in nature. In the case reported in (1) 67 CWN, 977 (Suraya Properties etc. v. B. N. Sarkar) at 1002 Mr. Justice P. N. Mookerjee held that "no hard and fast rule can be laid down in the matter, although certain broad tests may be formulated, which may conveniently guide the determination and facilitate the correct approach. In the case reported in (1) 67 CWN, 977 (Suraya Properties etc. v. B. N. Sarkar) at 1002 Mr. Justice P. N. Mookerjee held that "no hard and fast rule can be laid down in the matter, although certain broad tests may be formulated, which may conveniently guide the determination and facilitate the correct approach. Relevant from this point of view would be, inter alia, the nature of the structure or construction in question and the intention, with which it is made and, almost in every case, they would be primary and prime importance, the situs, the mode of annexation and the surrounding circumstances being all appropriate matters for consideration on the above two basic and usually determinant elements." The cases reported in (2) 65 CWN, 626 (Atul Chandra Lahiri v. Sanatan Daw) (3) 70 CWN, 676 and AIR 1965 Cat., 408 did not say anything against that proposition. On this fact, Mr. Matilal contended that this element is absent. In our opinion, Mr. Matilal is wrong. It is dear from the evidence that the structure has been constructed on the roof at of the house. The construction was with bricks and cement. It is not clear from the defendant's evidence that the construction was only for temporary use. On the other hand the defendant's whole case is that it was not constructed by him and there was a structure an the roof when the demised premises was let out. In that view of the matter, in our opinion, it cannot be said that the structure is not a perment structure. We, therefore, hold agreeing with the learned Judge that the structure is a pucca structure of a permanent nature and it was unauthorisedly constructed by the tenant without consent of the landlord. We also agree with learned Judge's findings that the said construction was made by the tenant after digging the roof. In our opinion, therefore, the tenant violated the provision of section 108(p) of the Transfer of Property Act and thereby section 13(1) (b) W. B. Premises Tenancy Act is attracted. 4. Mr. Matilal contended that the construction was outside the demised premises and therefore the tenant is not liable to be evicted. The next contention of Mr. Matilal is that the construction being outside the demised premises, section 13(1)(b) and for that matter section 108(p) is not applicable. 4. Mr. Matilal contended that the construction was outside the demised premises and therefore the tenant is not liable to be evicted. The next contention of Mr. Matilal is that the construction being outside the demised premises, section 13(1)(b) and for that matter section 108(p) is not applicable. If this contention is to be accepted, the tenant will have a right to make any construction outside the demised premises, and continue with impunity as a tenant in respect of the tenancy. In our opinion, that cannot be a reasonable interpretation of section 13(1)(b) of the West Bengal Premises Tenancy Act. In an unreported case, being (4) F. A. 26 of 1977 (Krishnadas Roy v. Basanta Kumar Sett. & Anr. decided an 10th February, 1978 it has been held that if a tenant has made any construction in a passage through which alone the ingress and egress is possible, the landlord is entitled to get a decree of eviction under section 13 of the West Bengal Premises Tenancy Act. In our opinion, during the continuance of the lease or tenancy if the tenant erects or constructs any permanent structure in a portion to which the landlord and/or other tenants can have access, then he will came within the mischief of section 108(p) of the Transfer of Property Act and will be liable to be ejected. It will be no answer of the defendant-tenant, as has been argued by Mr. Matilal, that the portion on which the tenant has made the construction is outside the demised premises. In our opinion, this interpretation will violate the reasonable interpretation of section 13(1)(b) West Bengal Premises Tenancy Act read with section 108 of the Transfer of Property Act. The true test, in our opinion, is whether the tenant can retain possession of the new construction he has made after his eviction from the demised premises. If the answer is 'no', then any construction he has made will entail the eviction of the tenant if he has violated any provision of section 108(p) of the Transfer of Property Act. 5. The case reported in (5) AIR 1965 SC., 1574 (Brij Kishore v. Vishwa Mitter) on which both Mr. Matilal and Mr. Bhattacharjee relied does not in our opinion, apply in the facts of the present case. 5. The case reported in (5) AIR 1965 SC., 1574 (Brij Kishore v. Vishwa Mitter) on which both Mr. Matilal and Mr. Bhattacharjee relied does not in our opinion, apply in the facts of the present case. The said case was one for eviction of a tenant under clause (k) of section 14(1) of the Delhi Act on the ground of erection of unauthorised structure. Section 14(1)(k) and 14(11) run as follows :- "14(1)(k). Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: Provided that the Controller may on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following ground only, namely :- * * * * (k) that the tenant has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government, or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate" ; "14(11). No order for the recovery of possession of any premises shall be made on the ground specified clause (k) of the proviso to sub-so (1), if the tenant within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller any direct." 6. The argument was whether the addition of sub-s. (11) in section 14 is a radical departure from what section 13(1) or whether it is a clarification and/or modification of the previous provision. The argument was whether the addition of sub-s. (11) in section 14 is a radical departure from what section 13(1) or whether it is a clarification and/or modification of the previous provision. In the said context section 114-A of the Transfer of Property Act was considered by the Supreme Court and their Lordships held that under section 114-A the Court has power to give relief to the tenant against forfeiture and further held that it would have been open to a Court to give relief to the tenant who had remedied the breach either before the suit was filed or even after the suit had been filed depending upon what the Court considered to be-reasonable time. In the present case we have seen that the structure was not an unauthorised that it was there even when the defendant was inducted as a tenant. In the circumstances, therefore, in our opinion, section 114-A of the Act cannot be applied. The defendant did never apply before the Court below fur removal of the structure nor did he say that the construction was done by them. The Court below on fact found that the construction was done by the tenant unauthorisedly. It is also clear that they were asked to remove the structure by that landlord. In the circumstances, therefore, in our opinion, even if it is held that section 114-A applies, it must also be held that section 114-A of the Act in the facts and circumstances of the case should not be applied. 7. We, therefore, are of the opinion, in the facts and circumstances of this case that the tenant's appeal must be dismissed. 8. The appeal is accordingly dismissed. There will be no order as to costs. Chakrabarti, J.: I agree.