Calcutta High Court
Shyamal Kumar Bhattacharya vs Dilip Kumar Bose And Anr. on 9 April, 1990
Equivalent citations: (1991)1CALLT37(HC), 94CWN950
JUDGMENT Amulya Kumar Nandi, J.
1. Two short points arise for consideration in this revision. viz. what is meant by repair within the meaning of Section 34 of the West Bengal Premises Tenancy Act, and whether one of the joint tenants or teaants-in-common can maintain an application under Section 34 of the West Bengal Premises Tenancy Act hereinafter called the Act.
2. One Benoy Krishna Bhattacharya was a tenant under the opposite parties Dilip Kumar Bose and Dipti Kumar Bose in respect of two rooms, one kitchen, one privy and a bath in the back portion of the ground floor of premises No. 12, Kalidas Singhi Lane. The house being old stood in need of repair. The landlords started Municipal facility Case No. 1869 of 1968 in the court of Small Causes Calcutta under Section 575 of the Calcutta Municipal Act, 1951 and obtained an order on 13.11.68. The Court directed the tenant to afford all reasonable facilities to the landlord to comply with the requisition of the Corporation for repair of the house. Subsequently the landlords, filed Ejectment suit No. 646 of 1970 in the City Civil Court, Calcutta for eviction of the tenant on the grounds of reasonable requirement for building or rebuilding as contemplated under Section 13(1)(f) of the Act, and on the grounds of default and reasonable requirement for their own use and occupation. The last two grounds were abandoned at the trial, and eviction was granted only under section (13)(1)(f) of the Act. The trial Court, however, found that the building required substantial repairs. The beams and rafters of the roof of the suit premises were worn out. The trial court found that the repairs and particularly the replacement of beams and rafters could not be effected without eviction of the tenant. The tenant preferred an appeal. The Division Bench in F.A. No. 327 of 1978 speaking through Chittatosh. Mookerjee, J. held that the tenant was liable to vacate the premises within four months. The landlords were directed to repair the premises within three months from the date of delivery of possession by the tenant. Leave was granted to the tenants (since the original tenant Benoy Krishna died in the meantime) either singly or jointly to apply to the controller for putting them in possession under Section 18A(2) of the Act unless the landlords could deliver possession immediately after repair, The appeal was dismissed with these directions and observations.
3. It may be pointed out that the original tenant Benoy Krishna died during the pendency of the first appeal, and his son Shyamal Kumar Bhattacharya and another were brought on record as the heirs, of Benoy Krishna.
4. The tenant delivered possession on 29th June, 1982 in obedience to the decree awarded by the High Court. But the landlord did not carry out the repairs in terms of the decree, A written notice given on 22nd September 1982 for re-delivery of the premises was disregarded by the landlords. The tenant filed an application under Section 18A(2) of the Act alleging therein that the repair had not been effected. The learned Additional Rent Controller rejected the petition saying that it was premature. Then the tenant riled a petition for contempt against the landlords in the High Court. The matter came up -before Chittatosh Mookerjee and Mukul Gopal Mukherji, JJ. Mookerjee, J speaking for the Division Bench overruled various objections taken by the landlords in Civil Order No. 1923 of 1983 and directed the Additional Rent Controller to dispose of the case of restoration of possession. The landlord's special leave petition was dismissed by the Supreme Court on 1.3.85.
5. The tenant moved the Additional Rent Controller for an order for delivery of possession. The learned Additional Rent Controller by an order on 11th March, 1985 directed the landlords to deliver possession' to the tenant within two weeks and liberty was given to the tenant to move under Section 38 of the Act to execute the order if possession would not be delivered within the date specified. The landlords did not deliver possession. The tenant filed an application under Section 38 of the Act and ultimately obtained possession on 18th May, 1985 through Court Bailiff. The tenant discovered to his surprise that the landlords caused serious damage to the rooms deliverately. The tenant had to file an application under Section 34 of the Act on 28th May, 1985., The learned Rent Controller after hearing the parties appointed a Court Inspector to inspect and to report the state of the tenanted rooms. The Inspector submitted his report in the said case being Case No. 197 of 1985 RP.
6. He found (1) No existence of roof of two rooms. The roof is totally dismantled.
(2) Roof had not collapsed but dismantled. Dismantling of the roof has been done by cutting.
(3) absence of roof of bath.
7. In course of proceeding before the learned Rent Controller the prayer of the landlords for examination of the City Architect was rejected. Sushanta Chatterjee, J rejected the revisional application of the landlords in CO. No. 719 of 1989 moved against the order of the learned Rent Controller.
8. The Rent Controller finally ordered the landlords to repair the premises. The landlord moved the Chief Judge, Small Causes Court. The Court in R.A. 19 of 1988 held that it was no repair, rather it was a work of major reconstruction. The Court further held that the parties have not challenged the order of demolition passed by the Calcutta Corporation and so the landlords will not undertake unremunerative and disproportionate repair works which might ultimately prove useless. The Court accordingly allowed the appeal and set aside the order of the Rent Controller. Now the tenant has come in revision.
9. This long history is necessary to show the conduct of the landlords to get rid of the tenants by judicial and particularly extra judicial means and the tenant's tenanity to thwart the attempt. The reason for the unusual inclination to resort to extrajudicial means is not far to seek. In Central part of Calcutta a premises comprising of two rooms, one kitchen, one privy and a bath was bearing a monthly rental of Rs. 65/- only. While the prices of all commodities, amenities, building materials and cost of labours, municipal taxes, are sharply escalating a tenancy bears a rental agreed upon, say, half a century ago. The judiciary does not interfere in the name of welfare legislation. The legislature does not strike a balance between the rising prices and the insignificant rent under an illusory belief that a large section of people will be hard hit. The tenants consequently are subjected to such extra-judicial oppression. In the face of inflationary spiral the provision in Rent Act for fixation of fair rent is really a mockery.
10. Before I answer the points raised by Mr. Mookerjee, I reproduce the provision contained in Section 34 of the Act :-
"Section 34-Making of repairs and taking of measures for the maintenance of essential services r-(1) The Controller shall, on application made to him in this behalf by any tenant in possession of any premises, cause a notice to be served in the prescribed manner on the landlord thereof requiring him to make such repairs in the premises or to take such measures for the due maintenance therein of any essential supply or service, such as measures for the maintenance for the supply of water, gas or electricity, the maintenance of conservancy or sanitary service or the maintenance of any lift, as the landlord may be bound to make or take, as the case may be, under the conditions of the tenancy or when the conditions of the tenancy do not include any provisions for repairs as the Controller may consider essential.
(2) If after the service of such notice the landlord fails to show proper cause or neglects to make such repairs or to take within reasonable time such measures, as the case may be, the tenant may submit to the Controller an estimate of the cost of such repairs or measures, and may apply to him for permission to make such repairs or to take such measures himself and, thereupon, the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate of the cost and making such inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs or to take such measures himself and to deduct the cost thereof which shall in no case exceed he amount so specified, from the rent or otherwise recover it from the landlord.
Provided that the amount so deducted or recoverable in any year shall not exceed one-half of the rent payable by the tenant for that year :
Provided further that if any repairs or measures not covered by the said amount are necessary in the opinion of the Controller, and the tenant agrees to bear the excess cost himself, the Controller may permit the tenant to make such repairs or take such measures.
(3) Notwithstanding anything contained in any law for the time being in force and in the absence of any agreement to the contrary, it shall be the duty of every landlord to keep any premises let out for residential purposes wind and watertight. If the landlord fails to do so, the provions of sub-section (1) and sub-section (2) shall apply. In such a case, however, the landlord shall be entitled to apply to the Controller to revise the rent payable for the premises and to fix the fair rent after taking into consideration the cost of such repairs. Rent so fixed shall be deemed to be fair rent for purposes of this Act.
(4) Where under the conditions of the tenancy, the tenant is bound to make any repairs, but fails to do so, the Controller shall, on application made to him in this behalf by the landlord of the premises, cause a notice to be served in the prescribed manner on the tenant requiring him to make such repairs within the time specified in the notice. If, after the service of the notice, the tenant fails to show proper cause or neglects to make such repairs within the time specified in the notice or allowed by the Controller, the landlord will be entitled, notwithstanding anything contained in this Act or in any contract, to sue the tenant for recovery of possession of the premises and such cost of such repairs as may be assessed by the Court."
11. Mr. Mookerjee persuades me to accept that this court cannot look back as to what happened in the past since the proceeding under Section 34 of the Act is an independent proceeding. This is a submission difficult to accept. In order to do complete justice to the parties this Court must look to the earlier proceedings.
12. Admittedly on the death of the original tenant Benoy Krishna his two sons Shyamal Kumar, petitioner herein and his brother became tenants. My attention is drawn to paragraph five of the revisional application, Mookerjee, J also in Civil Order No, 1923 of 1983! found that during the pendency of the appeal Benoy Krishna died and thereupon petitioner and respondent No. 3 therein as heirs were brought on record. Mr. Mookerjee contends that one of the two tenants cannot maintain an application under Section 34 of the Act. Referring to proviso I appended to Section 34(2) of the Act it is submitted that once a tenant out of several is permitted to effect a repair and recover the amount as permitted under the proviso other tenant cannot file an application under Section 34 of the Act. Therefore, the petitioner alone, it is urged, cannot maintain an application under Section 34 of the Act.
13. In order to appreciate the argument of Mr. Mookerjee the scheme of the Act has to be examined. The provisions should be so construed as to achieve the object of legislation than to defeat it. Different provisions which do not find place in other tenancy legislation have been engrated in the Rent Act in order to afford protection to the tenant. Section 4 of the Act prevents realisation of any amount in excess of rent. Section 8 provides for determination of fair rent. Section 13 gives protection against eviction excepting under specified ground. Section 17(4) offers protection against eviction despite default in payment of rent. Section 18A provides restoration of possession and so on. As a matter of fact, the learned Judges in Title Appeal No. 327 of 1978 sanctioned restoration of possession on the application of the tenants either singly or jointly. It was reiterated by the learned Judges in CO. 1923 of 1983. The learned Judges did not overlook the beneficial provision and the scheme of the Act. Joinder of all the tenants is not necessary in many circumstances to obtain protection afforded by the statute, e.g. one of the tenants can deposit the amount to ask the Court to set aside the decree for eviction under Section 17(4) of the Act, Mr. Roychowdhury appearing for the petitioner rightly submits that having regard to the object and whole scheme of the Act it cannot be said that a tenant severally cannot reap the benefit of the statute. As a matter of fact the benefit sought to be obtained in the instant case under Section 34 of the Act is a benefit in respect of the premises which is possessed by other tenants also. It is no personal benefit independent of the benefit of the tenancy. It is a benefit that will accrue to the tenancy which is enjoyed by other tenants as well. Section 34 reads as "The Controller shall, on application made to him in this behalf by any tenant........" The expression any tenant has been used in contradiction to a tenant. The use of the expression 'any' is not without purpose. It supports the argument of Mr. Roychowdhury that one of several tenants can maintain the application. The argument on this score therefore fails. So, I find that one of the several tenants can maintain an application under Section 34 of the Act.
14. Mr. Mookerjee submits that the Calcutta Municipal Corporation passed an order of demolition on 22.2.84. In the face of such demolition order the learned Rent Controller cannot make an order of repair of the premises. This argument very much weighed with the court below also. It is evident from the report of the Inspector appointed by the learned Rent Controller in connection with this proceeding that the demolition of the roof was the result of a deliberate act. The landlords could have possibly argued that the demolition was effected in compliance with the notice of the Municipal Corporation if the entire damaged portion would be pulled down instead of rendering it inhabitable by simply pulling down the roof. Such an act cannot be held to be a bona fide act in compliance with the notice of the Corporation. Referring to the judgment in CO. 1923 of 1983 Mr. Mookerjee contends that the tenants not having challenged the notice of demolition issued by the Corporation cannot now ask the landlords to repair the building. A similar argument was advanced before the learned Judges in CO. 1923 of 1983. The relevant observation in the judgment "In course of hearing more than once we had enquired from Mr. Mitra (appearing for the landlords) whether or not his clients propose to comply with the purported order of demolition and thereafter re-construct and/or rebuild the suit premises and then restore the defendant tenant to possession in terms of the ejectment decree." Finally the court passed order in favour of the tenant obviously repelling the plea of the landlords taken to refuse restoration of possession. The learned Judges therefore did not accept the demolition notice to be bona fide one since despite notice the landlords did not tell the court that they proposed to demolish the building in compliance with the notice of the Corporation. Therefore it can very well be said that in this case also the landlords intend to use the notice as an instrument to defeat the prayer for repair. The malafide act of pulling down the roof only instead of the damaged part of the entire building lends further support to this observation of mine.
15. The Court below allowed the landlords' appeal mainly on the ground that the roof "has to be laid out afresh which would be a work of major reconstruction." A work of reconstruction will not come within the purview of Section 34 of the Act. Admittedly the roof of the two rooms and that of the bathroom do not exist. Therefore, it falls for consideration as to whether the construction of the roof comes within the meaning of reconstruction or repair. The term repair has not been defined in the Act. We have to look to English authorities for definition since the Indian Courts have accepted the definition of the English authorities.
16. "Under a covenant to repair a tenant is liable to repair but not to renew. Repair in the sense means the restoration by renewal of replacement of subsidiary parts of the whole whereas renewal as distinguished from repair means re-construction of the whole or of substantially the whole." (Halsbury). English courts have more or less accepted this definition of Halsbury. This definition was accepted in Lister v. Lane and Nesham (1893) 2 QB 212, CA; Wright v. Lawson (1903) 19 TLR 203, 501, CA. Both these cases were commented upon and explained in Lurcatt v. Wakely and Wheeler (1911) 1 KB 905, CA. Buckley, L.J. at page 924 held that the substitution of a worn out two-pipe drainage system by a modern one-pipe system was in a Rent Act case not an improvement and presumably it was a repair We may look to this case and the pronouncement in Prondfoat v. Hart (1890), 25 QBD 42, 54, CA to discover the following observation. Replacement of any parts including the floors or roof, or internal walls, which became defective or dangerous, owing to lapse of time or the effect of elements. Repairs as are sustainable for the building having regard to the age and class. This observation appropriately applies in this case. The observation of Buckley, LJ in Lurcatt's (supra) case was approved in Rhodesia Railway Ltd. v. Income Tax Collector (1933) AC 368. Relying upon this decision, and other English and Indian decision Somnath Iyer, J held in Ullal Dinkar Rao v. M. Ratna Bai (AIR 1958 Mysore 77) that the restoration of the entire cow-shed or the bathroom cannot be said to be in the nature of a repair though the replacement of the roof or the floor or a wall of the cowshed or the bathroom would be a repair. The same view has been subscribed in Commissioner of Income Tax v. Rama Sugar Mills Ltd. . In this case reconstruction of a wall was held to be repair. So also J.M. Sheth, J held in Nayak Kalidas Matiram v. Menaben and Anr. that if one of the four walls of the tenanted house falls down on account of rains or other external cause it will be a tenantable repair. Substantially the same view has been taken in Commissioner of Income Tax v. Darbhanga Sugar Co. Ltd. . Supreme Court also considered the meaning of the term repair in Sir Shadi Lal & Sons v. Commissioner of Income Tax and in doing so referred to Lurcatt's (supra) and Rhodesia Railways (supra) cases.
17. It is abundantly clear from the decisions that replacement of the roof or wall will come within the meaning of repair as distinguished from reconstruction.
18. Mr. Mookerjee contends that the interpretation of the expression repair fell for consideration before a learned Single Judge of this Court in a case under the State Tenancy Act. According to him we cannot look to the definition given by the English authorities nor to other Indian authorities. He contends further that the Indian authorities cannot be called in aid to interpret the expression since they were given in connection with Income Tax cases or particular tenancy legislation of that particular State.
So we have to look, he submits, to the decision of our Rent Act. In order to substantiate the argument reliance is placed upon Soorajmull Nagarmull v. Indian National Drug Co. Ltd. (59 CWN 1023). In this case the Additional Rent Controller directed repair of leaky roof, replacement of damaged iron rafters and part of roof likely to collapse. The learned 'Judge found that the leakage may be cured by some means and Corporation had to be reported as to the damage of the roof. He finally held that the case was beyond the scope of Section 38 of the old Act of 1950 which corresponds to Section 34 of West Bengal Premises Tenancy Act, 1956. It is argued that this court cannot get away from this decision since the Act of 1956 gave legislative sanction to the interpretation of the learned Judge by not legislating otherwise in the repealing Act or subsequent amendment. To support the argument, Mr. Mookerjee relies upon the decision of the Full Bench in Renuka Pachal v. Chapa Guha Neogi and Sakal Deep Sahai Srivastava v. Union of India . In both the cases the courts had to opine as to the acceptance of the decision of the court by legislature. But in a later case of this court the interpretation of repair came up for consideration in A. kinchan Pal v. Siba Prosad Pal and Ors. (1977 CHN 1042). This was a case under the present Act of 1956. In that case also wooden beams and rafters required replacement, and the roof was leaking. Extensive repair was found to be necessary. The learned Judge relying upon a number of decisions found in favour of the tenant. While the learned Judge in Soorajmull's case (supra) did not consider any of the numerous decisions, both English and Indian, on the point and came to a finding in the later case in Akinchan's case (supra) several decisions were considered by the learned Judge to come to a finding. The later decision of the Calcutta High Court has neither been nullified by amendment of any of the provisions of the Act of 1956. The later view is in consonance with a long line of decisions, both English and Indian. I am therefore inclined to accept the later view of the High Court. I therefore do not agree with the finding of the Court below. I hold that this is a work of repair. Therefore, the learned Rent Controller had correctly passed the order which the Court below overruled. I set aside the order of the Court below and confirm the order of the learned Rent Controller. Revisional application accordingly succeeds. Let a copy of this order go down to the Court below and the learned Rent Controller forthwith. The learned Rent Controller will not proceed according to law.