PURUSHOTTAM DAS BANGUR & ORS.versusDAYANAND GUPTA

                         [2012] 9 S.C.R. 944


A             PURUSHOTTAM DAS BANGUR & ORS.
                                   v.
                         DAYANAND GUPTA
                  (Civil Appeal No. 7710 of 2012)
                         OCTOBER 31, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

          West Bengal Premises Tenancy Act, 1956 - s. 13(1)(b) -
    Suit for eviction - On the ground of construction of permanent
C   structure without the permission of the land-lord - Decreed by
    trial court - High Court set-aside the decree - On appeal, held:
    The alteration made by the tenant was a permanent structure
    and fell within the mischief of s. 108(p) of Transfer of property
    Act - Thus constituted a ground for eviction in terms of s.
o   13(1)(b) - Transfer of Property Act, 1882 - s. 108(p).

         Transfer of Property Act, 1882 - s. 108(p) - Permanent
    structure - Determination of - Held: A structure that lasts till
    the end of tenancy can be treated as permanent structure -
    Removability of the structure without causing damage to the
E   building, durability of the structure and the material used for
    erection and the purpose for which the structure is intended,
    are the other considerations for deciding whether the structure
    is permanent.

F        Words and Phrases - 'Permanent structure'- Meaning of
    in the context of West Bengal Premises Tenancy Act, 1956
    ands. 108(p) of Transfer of Property Act, 1882.

       Appellants-landlords filed a suit for ejectment against
G the respondent-tenant on the ground that the tenant
  illegally and unauthorisedly, without permission of the
  land-lord, removed the tin sheet roof and replaced the
  same by a cement concrete slab and built a permanent
  brick and mortar passage to roof; and that the same was

H                                 944
      PURUSHOTTAM DAS BANGUR & ORS. v.                       945
              DAYANAND GUPTA

violative of s. 108(p) of Transfer of Property Act, 1882 and        A
also the conditions stipulated in the lease agreement
executed between the parties and thus the tenant was
liable to be evicted u/s. 13(1)(b) of West Bengal Premises
Tenancy Act, 1956. Trial court decreed the suit. High Court
setting aside the decree, allowed the appeal of the tenant.         B
Hence the present appeal by the land-lord.

    Allowing the appeal, the Court

     HELD: 1. No hard and fast rule can be prescribed for
determining what is permanent or what is not. The use               C
of the word 'permanent' in Section 108 (p) of the Transfer
of Property Act, 1882 is meant to distinguish the structure
from what is temporary. The term 'permanent' does not
mean that the structure must last forever. A structure that
lasts till the end of the tenancy can be treated as a               D
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            E
within the meaning of Section 108 (p) of the Transfer of
Property 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          F
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. [Para 17] [957-
C-F]
                                                                    G
    Venkatlal G. Pittie and Anr. v. Bright Bros. Pvt. Ltd. (1987)
3 sec 558: 1987 (1) SCR 516 - relied on.

    Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar
AIR1965 Cal 408; Surya Properties Private Ltd. and Ors. v.          H
    946     SUPREME COURT REPORTS              [2012] 9 S.C.R.

A Bimalendu Nath Sarkar and Ors. AIR 1964 Cal 1 - referred
  to.

         2. In 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
8
    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
C   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
D   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
E   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. [Para 18] [957-G-H; 958-A-C]

F     Brijendra Nath Bhargava and Anr. v. Harsh Wardhan and
  Ors.(1988) 1 SCC 454:1988 (2) SCR 124 ; Om Prakash v.
  Amar Singhand Ors. (1987) 1 SCC 458: 1987 (1) SCR 968;
  Waryam Singh v. Baldev Singh (2003) 1 SCC 59; G.
  Reghunathan v. K. V. Varghese (2005) 7 SCC 317; Om Pal
G v. Anand Swarup (dead) by Lrs. (1988) 4 SCC 545 -
    distinguished.

       Ratanlal Bansilal and Ors. v. Kishorilal Goenka and Ors.
  AIR1993 Cal 144; Ranju alias Gautam Ghosh v. Rekha
  Ghosh and Ors. (2007) 14 SCC 81: 2007 (13) SCR 763 -
H referred to.
     PURUSHOTTAM DAS BANGUR & ORS. v.                  947
             DAYANAND GUPTA

    3. Respondent is, however, given one year's time to       A
vacate the premises subject to the condition that the
respondent shall either pay directly to the appellants or
deposit in the trial court, compensation @ Rs.1500/- p.m.
from 1st October, 2012 till the date of vacation. [Para 27]
[961-E-G]                                                     B
                     Case Law Reference:
    1987 (1) SCR 516           Relied on          Para 14
    AIR 1965 Cal 408           Referred to        Para 14
                                                              c
    AIR 1964 Cal 1             Referred to        Para 14
    2007 (13) SCR 763          Referred to        Para 19
    1988 (2) SCR 124           Distinguished      Para 20
                                                              D
    1987 (1) SCR 968           Distinguished      Para 20
     (2003) 1 sec 59           Distinguished      Para 20
     (2005) 1 sec 317          Distinguished      Para 20
     (1988) 4 sec 545          Distinguished      Para 26     E

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7710 of 2012.

    From the Judgment and Order dated 29.06.2007 of the       F
High Court of Calcutta in FA No. 290 of 1986.

    Rajendra Singhvi, Maitreya Singhvi, K.K.L. Gautam and
Surya Kant for the Appellants.

    Joydeep Gupta, Joydeep Mazumdar, Soumya Dutta,            G
Samita Sheikh, Rohit Dutta and Chiraranjan Addey for the
Respondent.

    The Judgment of the Court was delivered by

    T.S. THAKUR, J. 1. Leave granted.                         H
    948      SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A      2. This appeal arises out of a judgment and order passed
  by the High Court of Calcutta whereby Civil First Appeal No.290
  of 1986 filed by the respondent-tenant has been allowed, the
  judgment and decree passed by the trial Court set aside and
  the suit for eviction filed by the plaintiff-appellant against the
B defendant-respondent dismissed.

          3. A residential premise comprising two rooms with a
    gallery situate at the first floor bearing no.95-A, Chittaranjan
    Avenue, Calcutta and owned by Gauri Devi Trust of which the
    appellants are trustees was let out to the respondent-tenant on
C   a monthly rental of Rs.225/-. One of the conditions that governed
    the jural relationship between the parties was that the tenant
    shall not make any additions or alterations in the premises in
    question without obtaining the prior permission of the landlord
    in writing. Certain differences appear to have arisen between
D   the parties with 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
E   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
F   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,
G   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
H   of the respondent was also sought on the ground that the
       PURUSHOTTAM DAS BANGUR & ORS. v.                       949
         DAYANAND GUPTA [T.S. THAKUR, J.]

respondent and his family members were using the passage             A
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
                                                                     8
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       C
of the parties. The Commissioner formulated five different
points for local inspection and answered the same in the report
submitted to the Court. One of the aspects on which the
Commissioner made a report related to the existence of a
passage leading to the concrete roof of the kitchen and the          D
store space. The Commissioner appears to have found that the
kitchen and store space had a concrete cemented plastered
roof with a small window inside the kitchen.

     5. Long after the Commissioner's report was submitted to        E
the trial Court, the tenant filed an additional written statement
in which he for the first time took the stand that although he was
inducted into the premises, comprising two rooms and two
small rooms with corrugated tin-sheet for a roof, the latter
required replacement on account of the tin-sheet roof getting
                                                                     F
worn out. It was further submitted that it was only on repeated
demands of the defendant-tenant that the landlord had replaced
the said corrugated tin-sheet by putting a cement concrete slab
over the kitchen and store room. He further alleged that he had
not made any alteration~ or additions or committed any act           G
contrary to clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act.

    6. On the pleadings of the parties, the trial Court raised
as many as eight issues in the suit and allowed parties to
adduce their evidence. In support of his case the plaintiff          H
    950       SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A examined four witnesses while three witnesses were examined
  by the defendant-tenant. A careful appraisal of the evidence so
  adduced led the trial Court to the conclusion that the plaintiff
  had made out a case for the grant of a decree for ejectment of
  the respondent-tenant. The trial Court in the process held that
8 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
C 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:
D
          "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
E         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
F         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
G 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.
H
      PURUSHOTTAM DAS BANGUR & ORS. v.                      951
        DAYANAND GUPTA [T.S. THAKUR, J.]

     8. Aggrieved by the judgment and decree passed against A
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 terms of the Order impugned before us.
While the High Court has not disturbed the finding of fact
recorded by the trial Court that the replacement of the tin-sheet B
by a concrete slab was undertaken by the respondent-tenant,
it has reversed the view taken by the trial Court on the ground
that any such replacement of the roof did not tantamount to
violation of clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act. The High Court held that since the      c
replacement of the tin-sheet roof by cement concrete slab did
not result in addition of the accommodation available to the
tenant, the act of replacement was not tantamount to the
construction of a permanent structure. The replacement instead
constituted an improvement of the premises in question, 0
observed the High Court. In support the High Court placed
reliance upon the decisions of this Court in Om Prakash v
Amar Singh AIR 1987 SC 617 and Waryam Singh v. Baldev
Singh (2003) 1 sec 59 .

      9. The High Court also relied upon an earlier decision of E
that Court in Ratanlal Bansila/ & Ors. v. Kishori/al Goenka &
Ors. AIR 1993 Cal 144 and held that unless a case of waste
or damage is proved, there can be no violation of clauses (m),
(o), (p) of the Transfer of Property Act. The High Court held that
proof of waste and damage because of the construction of a F
cement concrete roof over the kitchen and store space and the
construction of a brick-built passage for reaching the roof of
that area was completely absent in the instant case. The High
Court, on that basis, set aside the judgment of the trial Court
and dismissed the suit filed by the appellant.                     G

     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 ofany premises by any Court
in favour of the landlord and against the tenant except on one    H
or more of the grounds stipulated therein.
    952         SUPREME COURT REPORTS                [2012] 9 S.C.R.


A         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
B   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
c         landlord against a tenant except on one or more of the
          following grounds, namely:

          (a)    *                     *                 *

0         (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
E   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.-ln the
          absence of a contract or local usage to the contrary, the
F         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:
G         *      *                     *

          (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,
H         subject only to the changes caused by reasonable wear
        PURUSHOTTAM DAS BANGUR & ORS. v.                    953
          DAYANAND GUPTA [T.S. THAKUR, J.]

    and tear or irresistible force, and to allow the lessor and     A
    his agents, at all reasonable times during the term, to enter
    upon the property and inspect the condition thereof and
    give or leave notice of any defect in such condition; and,
    when such defect has been caused by any act or default
    on the part of the lessee, his servants or agents, he is        B
    bound to make it good within three months after such
    notice has been given or left;

    *      *                     *

    (o) the lessee may use the property and its products (if any)   C
    as a person of ordinary prudence would use them if they
    were his own; but he must not use, or permit another to
    use, the property for a purpose other than that for which it
    was leased, or fell or sell timber, pull down or damage
    buildings belonging to the lessor, or work mines or             D
    quarries not open when the lease was granted or commit
    any other act which is destructive or permanently injurious
    thereto;

    (p) he must not, without the lessor's consent, erect on the     E
    property any permanent structure, except for agricultural
    purposes;"

     13. The appellant has in the case at hand pressed into
service clause (p) of Section 108 (supra) inasmuch as,
according to the appellant, the. respondent-tenant had without      F
his consent erected on the demised property a permanent
structure which rendered him liable to eviction under Section
13 (1) (b) extracted above. The question, however, is whether
the alterations which the respondent-t<::nant is found by the
Courts below to have made tantamount to erection of a               G
"permanent structure" within the meaning of clause (p) of
Section 108 of the Act (supra). The expression "permanent
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     H
    954       SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A by the Courts in the country on several occasions. We may
  briefly refer to some of those pronouncements at this stage.

          14. In Venkatla/ G. Pittie & Anr. v. Bright Bros. Pvt. Ltd.
    (1987) 3 sec 558, the landlord alleged that the tenant had
    without his consent raised a permanent structure in the demised
8
    premises. The trial Court as also the first appellate Court had
    taken the view that the construction raised by ttie 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
C   subject including a decision of the High Court of Calcutta in
    Suraya Properties Private Ltd. v. Bima/endu 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
D   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
E   & Ors. Al R 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
F         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
G
          and (4) its removability had to be taken into consideration.
          But these were not the sole tests. (5) The purpose of
          erecting the structure is another relevant factor. (6) The
          nature of the materials used for the structure and (7) lastly
          the durability of the structure".
H
      PURUSHOTTAM DAS BANGUR & ORS. v.                     955
        DAYANAND GUPTA [T.S. THAKUR, J.]

     15. In Surya Properties Private Ltd. & Ors. v. Bimalendu A
Nath Sarkar & Ors. AIR 1964 Cal 1 a Special Bench of the
High Court of Calcutta was examining the meaning of the
expression "permanent structure" appearing in Clause (p) of
Section 108 of the Transfer of Property Act, 1882. The Court
held that whether a particular structure is a permanent structure B
or not is a question that depends on the facts of each case and
on the nature and extent of the particular structure as also the
intention and purpose for which the structure was erected. No
hard and fast rule, declared the Court, could be laid down for
determining what would be a permanent structure for the·         c
purposes of Section 108 (p) of the Transfer-of Property Act.
When the very same case came up for final adjudication on
merits before a Division Bench of the High Court of Calcutta,
the High Court in its order dated 20th March, 1964 reported in
Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar AIR
                                                                   0
1965 Cal 408 held that the expression "permanent structure"
did not mean 'everlasting'. The word "permanent" had been
used to distinguish it from "temporary" and that while a lessee
has the power to raise any type of temporary structure, he has
no power to raise a permanent structure. The Court held that
on a true construction of Section 108 (p) Transfer of Property E
Act the words "permanent structure" 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:
                                                                   F
      "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 G
      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 H
    956       SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A         - 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
B         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
c         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."
D
         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
E   tenant had constructed the structure for a special purpose like
    a marriage in the family. Any structure which was used for any
    such limited period or definite event, function or occasion, even
    if made of bricks and mortar would not amount to building or
    erecting a permanent structure. The Court observed:
F
          "A person raises a struct (sic) for the purpose of a
          marriage in the family. There he intends to use it only during
          the occasion and has no intention to use it thereafter and
          intends to remove the structure thereafter. We cannot say
          that it would be a permanent structure even if it is made
G
          of brick and mortar. In the circumstances, of this case, the
          lessee has said that he wanted to use it as a kitchen. He
          never says that the kitchen was required for a particular
          purpose temporarily. Therefore, we get from the evidence
          of the tenant that the tenant intended to use the structure
H
       PURUSHOTTAM DAS BANGUR & ORS. v.                         957
         DAYANAND GUPTA [T.S. THAKUR, J.]

     as a kitchen during the continuance of the lease, because         A
     the tenant requires a kitchen as long as the tenant uses
     the premises and as he wants, to use it as a kitchen, he
     sufficiently express his intention to use it as a kitchen
     during the term of his tenancy which in this case is not
     definite. Therefore, for purposes of Section108(p) of the         B
     Transfer of Property Act, we would hold that the kitchen
     raised must be considered to be for a permanent
     purpose."

      17. To sum up, no hard and fast rule can be prescribed
for determining what is permanent or what is not. The use of           C
the word 'permanent' in Section 108 (p) of the Transfer of
Property Act, 1882 is meant to distinguish the structure from
what is temporary. The term 'permanent' does not mean that
the structure must last forever. A structure that lasts till the end
of the tenancy can be treated as a permanent structure. The            D
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         E
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            F
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              G
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       H
    958      SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A 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
B 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
C 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.

       19. We may at this stage refer to the decision of this Court
  in Ranju alias Gautam Ghosh v. Rekha Ghosh and Ors.
D (2007) 14 SCC 81 where this Court found that cutting of a
  collapsible gate by 5/6" and replacing the same without the
  consent and permission of the landlord was tantamount to
  violation of Section 108 (p) of the Transfer of Property Act read
  with Section 13 (1 )(b) of West Bengal Premises Tenancy Act,
E 1956. It is thus immaterial whether the structure has resulted in
  creating additional usable space for the tenant who carries out
  such alteration and additions. If addition of usable space was
  ever intended to be an essential requirement under Section 108
  (p) of the Act, the:Parliament could have easily provided so.
F Nothing of this sort has been done even in Section 13 (1) (b)
  of the State Act which clearly shows that addition of space is
  not the test for determining whether the structure is permanent
  or temporary.

G      20. Reliance upon the decisions of this Court in Brijendra
  Nath Bhargava and Anr. v. Harsh Wardhan and Ors. (1988)
  1 SCC 454, Om Prakash v. Amar Singh and Ors. (1987) 1
  SCC 458, Waryam Singh v. Baldev Singh (2003) 1 SCC 59
  and G. Reghunathan v. K. V. Varghese (2005) 7 SCC 317 do
H not in our opinion advance the case of the respondent. In
      PURUSHOTTAM DAS BANGUR & ORS. v.                      959
        DAYANAND GUPTA [T.S. THAKUR, J.]
Brijendra Nath Bhargava's case (supra) this Court was dealing      A
with a case arising out of Rajasthan Premises (Control of Rent
and Eviction) Act, 1950. Section 13 (1) (c) of the said Act
required the landlord to prove that the tenant had, without his
permission, made or permitted to be made any construction
which had in the opinion of the Court, materially altered the      B
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   C
    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      D
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         E
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:
                                                                   F

    "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           G
    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     H
    960       SUPREME COURT REPORTS                     [2012] 9 S.C.R.

A         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
B 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).

c        24. In Watyam Singh v. Ba/dev Singh (2003) 1 SCC 59
    this Court was dealing with a case under Section 13(2)(iii) of
    East Punjab Urban Rent Restriction Act, 1949 which was to the
    following effect:

          "13. Eviction of tenants.-(1) *                   *      *
D
          (2) A landlord who seeks to evict his tenant shall apply to
          the Controller for a direction in that behalf. If the Controller,
          after giving the tenant a reasonable opportunity of showing
          cause against the applicant, is satisfied-
E         *     *    *
          (iii) that the tenant has committed such acts as are likely
          to impair materially the value or utility of the building or
          rented land,
F         *     *   *"
        25. It is evident from the above that this provision was
  different from the language employed in Section 13(1 )(b) of the
  West Bengal Premises Tenancy Act 1956. The ratio of that
G case also, therefore, does not lend any support to the
  respondent. Same is true even in regard to the decision in G.
  Reghunathan's case (supra) where this Court was dealing with
  an eviction petition under Section 11 (4}(ii) of the Kera la
  Buildings (Lease and Rent Control) Act, 1965 which was to the
H following effect:
         PURUSHOTTAM DAS BANGUR & ORS. v.                     961
           DAYANAND GUPTA [T.S. THAKUR, J.]

     "11. (4) A landlord may apply to the Rent Control Court for     A
     an order directing the tenant to put the landlord in
     possession of the building-

     (i)    *                      *                 *
                                                                     B
     (ii) if the tenant uses the building in such a manner as to
     destroy or reduce its value or utility materially and
     permanently;"

     26. The above provision is also materially different from
the provisions with which we are concerned in the present case.      C
The ratio of that case does not, therefore, have any application
to the 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          D
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.                                                                 E

     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
                                                                     F
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       G
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.

K.K.T.                                          Appeal allowed.
                                                                     H