The High Court of Judicature at Bombay, in a judgment delivered on April 4, 2024, by the Honourable Mr. Justice Sandeep V. Marne, dismissed a petition filed by M/s. Impex (India) Limited, challenging an eviction decree from a Pune property. The decision upholds the concurrent findings of the Small Causes Court and the District Court, which had ordered the tenant, Impex India Limited, to hand over vacant possession of the premises to the landlords, Dinashah Jal Daruwala & Others.

The Genesis of the Dispute: Alleged Encroachment and Nuisance

The case revolves around a property in Koregaon Park, Pune, known as 'Gardenia,' which includes a bungalow, outhouses, and a garden. Impex India Limited was inducted as a lessee of the bungalow, garage, and two outhouse rooms in 1961. However, the landlords (original Plaintiffs) retained possession of an open strip of land behind the bungalow and two other outhouse rooms, which were separated by a barbed wire fence and had an independent northern entrance.

 

 

The central allegations against the tenant were that, without written consent from the landlords, they illegally constructed a permanent stone and cement wall on the open land, encroaching upon approximately 10,000 sq.ft. of the landlords' unleased property. This wall allegedly blocked the landlords' independent access to their portion of the land. Additionally, the tenant was accused of illegally taking possession of a common toilet block, forcing the landlords' servants to construct a temporary privy, which then became a source of nuisance.

Consequently, the landlords sought eviction under various provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act), particularly Sections 13(1)(a) (acts contrary to Section 108(o) of the Transfer of Property Act, 1882, concerning destructive or injurious acts to the property), 13(1)(b) (erection of a permanent structure without consent), and 13(1)(c) (nuisance or annoyance).

Tenant's Defense and the Legal Battle:

Impex India Limited denied the allegations, claiming that the entire property, including the open land, was part of their original lease. They argued that the wall was temporary, constructed to prevent trespass by a former caretaker's children, and that the landlords had verbally consented to its construction.

A significant point of contention raised by the tenant's counsel, Mr. Virag Tulzapurkar, was the jurisdiction of the Small Causes Court. He argued that the court lacked authority to order eviction from tenanted premises based on acts allegedly committed on non-tenanted land. Such matters, involving encroachment and trespass on non-tenanted property, should fall under the jurisdiction of a Civil Court. Mr. Tulzapurkar also contended that the finding of "nuisance" was perverse, as it was based on a non-pleaded cause (the wall construction) rather than the original allegation of the temporary toilet.

Conversely, Mr. Darius Khambata, representing the respondents, argued that the construction of the permanent wall, even if partly on non-tenanted land, impacted the tenanted premises and could constitute grounds for eviction under the Rent Act.

High Court's Verdict: Upholding Eviction and Addressing Jurisdiction

After reviewing the extensive submissions and evidence, the High Court, while acknowledging the argument about jurisdiction, emphasized that the question of whether a permanent structure erected outside tenanted premises warrants eviction depends on the specific facts and location of the structure.

Justice Marne observed that the wall constructed by the tenant not only encroached on the open land but also touched the outhouse rooms that were part of the tenanted premises. This connection led the court to conclude that the construction was indeed an act covered by Section 108(o) of the Transfer of Property Act, making it destructive or permanently injurious to the tenanted premises.

The High Court also upheld the finding of "nuisance," despite the tenant's arguments regarding pleading deficiencies. The court stated that the act of nuisance or annoyance was undoubtedly committed by the tenant on the open land, which was connected to the landlord's right to seek possession.

A notable aspect of the case was the tenant's conduct during the petition's pendency. The tenant had simultaneously filed a separate civil suit in the Small Causes Court, seeking a declaration that the eviction decree was without jurisdiction, null, and void. The High Court deprecated this conduct, noting that the tenant was exercising two remedies for the same decree. Furthermore, the court dismissed the tenant's allegation of "suppression of facts" regarding the sale of the property by the original landlords, as it was evident from the tenant's own written statement in the suit that they were fully aware of the sale transaction.

As a consequence of the dismissal of the Writ Petition, the High Court upheld the eviction decree. The tenant has been directed to hand over possession of the tenanted premises within two months. The court also permitted the respondents (M/s. Talera Hoteliers Private Limited, who were impleaded as assignees of the original landlords, and the legal heirs of the original landlords) to withdraw the substantial amount of Rs. 14,34,00,000/- deposited by the petitioner as compensation from May 2004 until March 2024.

This judgment reaffirms the principle that acts of encroachment and unauthorized construction, even if partially outside the strictly defined tenanted area, can lead to eviction if they are integrally connected to and adversely affect the leased property, and that courts may take into account the overall conduct of the parties during prolonged litigation.