2002 JTR(SC) 1035
2003 3 BomCR(SC) 462 ; 2003 1 DNJ 124 ; 2002 9 JT 605 ; 2002 2 RCJ 213 ; 2002 2 RCR(Rent) 708 ; 2003 1 RentLR 205 ; 2002 8 Scale 595 ; 2003 1 SCC 18 ; 2002 SCR 284 ; 2003 1 WBLR 179 ; 2003 1 WLC 228 ; 2003 KHC 705 ; 2002 7 Supreme 331
2002(8) Supreme 331
SUPREME COURT OF INDIA
(From Mumbai High Court)
R.C. Lahoti, Brijesh Kumar and Arun Kumar, JJ.
Vithal N. Shetti & Anr. -Appellants
versus
Prakash N. Rudrakar & Ors. -Respondents
Civil Appeal Nos. 2500-2502 of 1998
Decided on 20-11-2002
Counsel for the Parties :
For the Appellants : Jaideep Gupta, Sr. Advocate, Satya Mitra and Sanjay R. Hegde, Advocates.
For the Respondents : Makaranad D. Adkar, Praveen Satale, Vijay Kumar, Vishwajit Singh and Uday Umesh Lalit, Advocates.
IMPORTANT POINT
It cannot be said on the facts of the case that the permanent construction raised by the tenant-appellant had the consent in writing of the landlord as Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 requires in Section 13(1)(b) of the Act.
Act Referred :BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT : S.13(1)(b)
(A) The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, governs rent and eviction matters for premises within the state. Under Section 13(1)(b) of the Act, a landlord is entitled to evict a tenant if the Court is satisfied that the tenant has, without the landlords consent in writing, erected any permanent structure on the premises. In this appeal, the applicability of this provision is central, as the disputed structure was raised in 1961, decades before the eviction proceedings were initiated, and the focus lies on whether the requisite written consent existed and was properly substantiated before the quasi-judicial and appellate authorities.
(B) Key legal principles include the requirement of strict compliance with the written consent provision under Section 13(1)(b), the burden on the tenant to prove such consent by clear evidence, the inadmissibility of belated applications for record production after the trial courts finding, and the principle that appellate courts will not interfere with factual findings unless there is a clear legal error. (
Facts of the case:
) The premises are located in Pune and were initially owned by a private individual who died in 1974, with ownership later transferring to the respondent in 1978. The tenant entered into possession in 1961, deriving tenancy from a predecessor who had succeeded from an earlier tenant inducted in 1941. In 1961, the tenant constructed a permanent structure comprising a dining hall, kitchen, and lavatory without obtaining written consent from the landlord or valid municipal sanction. Proceedings for eviction were initiated, and the trial court found against the landlord, a decision reversed on appeal. After dismissal of a constitutional petition challenging the appellate decree, this appeal was filed. (
Findings of Court:
) The appellate court held that the tenant failed to plead or prove the landlords written consent as required by the Act. The tenants reliance on municipal sanction was untenable, as the necessary prior consent of the landlord for obtaining such sanction was neither pleaded in the written statement nor produced during the proceedings. The High Court correctly declined to entertain a belated request to summon the record. (
Issues:
) Whether the tenant complied with Section 13(1)(b) of the Act by proving the existence of written consent from the landlord for the permanent construction. Whether the High Court erred in refusing to permit production of the record after the conclusion of the trial. (
Ratio Decidendi:
) The provision under Section 13(1)(b) mandates that the tenant must establish, on the basis of clear and contemporaneous evidence, the landlords written consent for any permanent structure. In the absence of such evidence, and given the tenants failure to approach the trial court for record production, the appellate courts factual determination is not to be disturbed. (Result): The appeals are dismissed, and the tenant is allowed 12 months to vacate the premises, subject to filing an undertaking within four weeks.
(A) The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, governs rent and eviction matters for premises within the state. Under Section 13(1)(b) of the Act, a landlord is entitled to evict a tenant if the Court is satisfied that the tenant has, without the landlords consent in writing, erected any permanent structure on the premises. In this appeal, the applicability of this provision is central, as the disputed structure was raised in 1961, decades before the eviction proceedings were initiated, and the focus lies on whether the requisite written consent existed and was properly substantiated before the quasi-judicial and appellate authorities.
(B) Key legal principles include the requirement of strict compliance with the written consent provision under Section 13(1)(b), the burden on the tenant to prove such consent by clear evidence, the inadmissibility of belated applications for record production after the trial courts finding, and the principle that appellate courts will not interfere with factual findings unless there is a clear legal error. (
Facts of the case:
) The premises are located in Pune and were initially owned by a private individual who died in 1974, with ownership later transferring to the respondent in 1978. The tenant entered into possession in 1961, deriving tenancy from a predecessor who had succeeded from an earlier tenant inducted in 1941. In 1961, the tenant constructed a permanent structure comprising a dining hall, kitchen, and lavatory without obtaining written consent from the landlord or valid municipal sanction. Proceedings for eviction were initiated, and the trial court found against the landlord, a decision reversed on appeal. After dismissal of a constitutional petition challenging the appellate decree, this appeal was filed. (
Findings of Court:
) The appellate court held that the tenant failed to plead or prove the landlords written consent as required by the Act. The tenants reliance on municipal sanction was untenable, as the necessary prior consent of the landlord for obtaining such sanction was neither pleaded in the written statement nor produced during the proceedings. The High Court correctly declined to entertain a belated request to summon the record. (
Issues:
) Whether the tenant complied with Section 13(1)(b) of the Act by proving the existence of written consent from the landlord for the permanent construction. Whether the High Court erred in refusing to permit production of the record after the conclusion of the trial. (
Ratio Decidendi:
) The provision under Section 13(1)(b) mandates that the tenant must establish, on the basis of clear and contemporaneous evidence, the landlords written consent for any permanent structure. In the absence of such evidence, and given the tenants failure to approach the trial court for record production, the appellate courts factual determination is not to be disturbed. (Result): The appeals are dismissed, and the tenant is allowed 12 months to vacate the premises, subject to filing an undertaking within four weeks.
ORDER
This is tenant s appeal by special leave. Though the appeals are three in number, the subject matter is one common judgment and therefore, the three are being treated as one appeal. The suit premises are situated in the city of Pune and governed by the provisions of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter "the Act" for short). The suit premises are admittedly owned by respondent No. 1 and are held in tenancy by the appellant. Proceedings for eviction of the appellants were initiated on very many grounds. At this stage, we are concerned only with the ground of eviction available under Clause (b) of sub-section (1) of Section 13 of the Act, which provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has, without the landlord s consent given in writing, erected on the premises any permanent structure.
2. Incidentally, it may be stated that the suit premises where initially owned by one Dattaraya Chiplunkar, who died in the year 1974 and his widow, having succeeded to the rights in the property, transferred the same to the respondent No. 1 in the year 1978. The appellant came in the possession of the premises sometime in the year 1961 having acquired the tenancy rights from his predecessor in interest - one Puram, who in turn had succeeded the tenancy rights from one Shri Niwas Patki, who was inducted as tenant in the year 1941 by Chiplunkar.
3. It is not disputed that in the year 1961, the tenant-appellant has raised a permanent structure over the tenancy premises. The structures raised by the appellant consists of a dinning hall, a kitchen and lavatory. According to the landlord-respondent No. 1, the said construction was carried out without obtaining consent of the landlord and without having the building plans sanctioned by the Municipal Corporation. The plea taken by the appellant in the written statement is one of denial of the ground. Insofar as the consent of the landlord to the alleged construction is concerned, the tenant pleaded - "Abutting to the road these defendants have constructed a building for restaurant in the year 1961. For that purpose the defendants 1 and 2 have taken a prior sanction of the Pune Municipal Corporation and also the owner Shri Chiplunkar". The trial court found the ground for eviction not made out. On an appeal preferred by the landlord-respondents, the decree of the trial court was reversed. In the opinion of the appellate court, the ground for eviction under Section 13(1)(b) of the Act was made out. The aggrieved tenant preferred a petition under Article 227 of the Constitution in the High Court of Bombay, which has been dismissed.
4. The crucial issue for decision is whether it can be said that the permanent construction raised by the tenant-appellant had the consent in writing of the landlord as the law requires.
5. To begin with, the written statement does not specifically plead the landlord having given the consent in writing for raising the permanent structure by the tenant. The particulars of the consent given by the landlord are also not pleaded. The vagueness in the pleadings raised in the written statement assumes some significance in the light of what transpired during the trial and before the High Court. It appears that the case sought to be projected by the tenant-appellant before the trial court was that he had obtained the sanction of the Municipal Corporation for the structure raised by him. He being the tenant, the Municipal Corporation would not sanction the building plans unless the application for sanction was accompanied by the consent of the landlord. Such consent was given by the landlord and formed part of the record in the custody of the Municipal Corporation. The tenant moved an application for obtaining certified copies of the relevant records but he was told that the record was not traceable. During the pendency of petition under Article 227 of the Constitution before the High Court on 1st July, 1985, the tenant-petitioner moved an application in the High Court submitting that the record which was earlier reported to be not traceable by the Municipal Corporation, was then traced out and, therefore, a prayer was made to the High Court for summoning the record from the custody of the Municipal Corporation. The High Court formed an opinion that the prayer for summoning the record could have been made to the trial Court, which was not done, and therefore, there was no occasion muchless a justification for allowing such a prayer made to the High Court which was clearly belated and that too made during the hearing of a petition under Article 227.
6. It was submitted by the learned counsel for the appellants that the landlord had given a consent in writing, which was to be found in the records of the Municipal Corporation and the High Court should have granted the appellants prayer for summoning the record. It was further submitted that either the matter be remanded to the High Court with the direction to summon the record, or, in the alternative, this Court may summon the record from the custody of the Municipal Corporation. The prayer is vehemently opposed by learned counsel for the respondents submitting that the appellants effort is to prolong the proceedings. It was submitted that there was no consent given and several relevant factors available on the record point out that the appellant is making an abortive attempt somehow to build up a case of consent wherein he has so far not succeeded.
7. Having heard the learned counsel for the parties, we are satisfied that no case is made out for interfering with the judgment of the appellate court as also the order of the High Court.
8. The plaint makes a positive averment of a negative fact, that is, the absence of consent in writing of the landlord to raising of the permanent structure by the tenant over the tenancy premises. In the wake of such averment in the plaint, it was necessary for the tenant to have raised specific pleading in the written statement setting out the particulars of the consent in writing. Not only the particulars are not pleaded but even the factum of the landlord having given a consent in writing to the permanent construction is not stated. There is not even a whisper in the written statement of such consent, on which the tenant relies, having been ever given by the landlord and forming part of the record of the Municipal Corporation. If the Municipal Corporation had expressed its inability to make available certified copies of relevant records to the appellants, the appellants should have taken steps before the trial court for summoning the original record from the custody of the Municipal Authorities, which could have shown the bona fides of the plea raised by the tenant-appellant. Nothing such was done. Similarly, no effort for production of the alleged consent in writing of the landlord appears to have been made during the pendency of the proceedings before the appellate court. In this background, the High Court rightly declined to show its indulgence to a belated prayer for summoning the record from the custody of the Municipal Corporation.
9. No fault can be found with the view taken by the High Court. The appeals are held devoid of any merit and liable to be dismissed. They are dismissed accordingly. However, in view of the fact that the tenant-appellant has remained in occupation in the suit premises for a long time and is running his commercial activities therefrom, the appellant is allowed 12 months time for vacating the suit premises subject to his filing usual undertaking within a period of four weeks from today.
(N.K.R.) Appeal dismissed accordingly.
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