P.N. Mookerjee, J.
1. Twelve ejectment suits, instituted by the plaintiff Sm. Radha Debi against her tenants in occupation of different portions of her premises No. 31, Mallick Street, Calcutta, were decreed by the trial Court (Third Bench, Court of Small Causes, Calcutta) on 8-3-1954. Eight of the tenants went up on appeal to the Special Bench. The appeals failed on 5-8-1954, and four tenants have now come up in second appeal to this Court.
2. The suits were brought long after the coming into operation of the Rent Control Act of 1950 and they are admittedly governed by that Act The ground of ejectment, so far as rent control law is concerned, in the four cases which have now come up to this Court, was the plaintiff's reasonable requirement of the suit premises for building and re-building.
3. Premises No. 31, Mallick Street, Calcutta, comprises a fairly big four-storeyed building on about 3 to 3 1/2 cottahs of land. It is about 70 or 80 years old. The immediate requirement, as it appears from the evidence of the plaintiff's engineer witness (P. W. 1), -- and this is not so much denied by the defendant's engineer (D. W. 13), -- is the replacement of about the whole of the interior, specially round the courtyard, that is, its demolition and steel-framing. The other wall of the building on the road side requires only some minor repairs.
The plaintiff has got a plan sanctioned by the Calcutta Corporation which is Ex. 1 (a). The plaintiff has also proved sufficiently to the Satisfaction of the Court that she has the means to build and intends to build honestly and bona fide. The Courts below have also found that the reconstruction or re-building will be for public benefit and they have also accepted more or less in express terms the plaintiff's case of extended public accommodation.
4. On the above findings, the suits have been decreed by the two Courts below and, in the four second appeals before me, the learned Junior Standing Counsel, who with Mr. Bejoy Bhose, Advocate, appeared for the different tenants appellants, submitted first that no case of rebuilding, necessitating or involving removal of the tenants, has been made out by the plaintiff.
In the second place, he submitted that, even at the highest, the necessity of shifting, so far as a particular tenant is concerned, would be for a short period, as, according to the evidence, adduced by the plaintiff herself, the time the entire proposed reconstruction would take would be about four to six months and, as the tenants were agreeable and ready to undertake that they would shift to the extent necessary for the respective temporary periods unconditionally, the landlady would have no reasonable ground for evicting them. Mr. Sen's third argument was that no case -within the relevant mandatory Explanation to proviso (h) of Section 12(1), Rent Control Act of 1950, namely, of public advantage of extended accommodation, has been made out and. accordingly, the imperative test under the said proviso the plaintiff has not been able to satisfy in these cases and he relied particularly, in this connection, upon the decision of Chunder J. in the case of 'T. D. Nandi v. Messrs. Manot and Co. Ltd.' : AIR1954Cal80 .
In S. A. 'No. 1154 of 1954'. in which Kishori Lal Kailash Chand Jain was the tenant, Mr. Sen made a further and special submission that the portion of the building, occupied by him, practically stood between the roadside outer wall (which, as already stated, requires only some minor repairs) and the public road and, accordingly, he would not be affected by the replacement or demolition of the interior and no necessity for his removal so as to make out a case of requirement for building and rebuilding within the meaning of Section 12(1) proviso (h) has been established at least in his case. I shall examine these arguments in the order in which they have been set out above.
5. On the first point, the matter is really concluded against the appellants by the evidence on record. The evidence of the two engineers (P. W. 1 and D. W. 13), read as a whole, leaves no room for doubt as to the necessity of replacing practically all the walls of the different rooms except the outer roadside wall in all the different cases barring the tenement of Kishorilal Kailash Chand Jain (S. A. No. 1154 of 1954).
Admittedly, also, this would mean the removal of the particular tenant or tenants when the work of reconstruction proceeds in a particular room or rooms; The two engineers practically agree on this point, -- and I may note here that the length of none of the disputed premises (rooms) exceeds 12 ft. as given by the learned advocates, -- except that, according to the defence (D. W. 13) the work may be carried on piecemeal thus obviating the necessity of removal of all the tenants at one and the same time. P. W. 1 I. A. Parks, however, Holds a different view. In the above premises, I am not disposed to accept Mr. Sen's first argument,
6. The second point raises a novel and Interesting question. Stress is laid by Mr. Sen on the tenants' offer and proposed undertaking. In this form, the cases were not presented in the two Courts below, but, giving the matter my best consideration, I have been unable to accept Mr. Sen's submission. Upon my earlier finding, a case of re-building has been made out by the landlady and I accept P. B. Mookerjee J.'s practical test for the purpose as laid down in 'Ramesh Ch. Bhattacharjee v. Nagendra N. Mullick' : AIR1951Cal435 .
I am, however, unwilling to lay down any absolute general proposition in this behalf. The matter would largely depend upon the circumstances of a particular case and, in extreme cases, the difference between repairs and re-building may eventually turn out to be one of degrees, the ultimate conclusion depending upon the Court's judicial approach to the particular problem.
7. The question now is whether the tenants' offer of undertaking alters the position and materially affects the reasonableness of the landlady's requirement for building and re-building purposes. At one stage, I was inclined to find in favour of the tenants appellants, but, on further consideration, I have reached a different conclusion. I do not think that the tenants' offers, as set out above, would be, strictly speaking, very relevant or of much consequence and I do not find them practicable either to give effect to them.
There is no time-limit in the statute (Section 15 only speaks of the time within which re-building would be started), -- and there should be none, -- within which the landlord should be compelled to complete the work of reconstruction. This time factor would depend on so many elements, so variable and uncertain in their nature, that it would be hardly proper to lay down any limit to the same and the resulting uncertainty would militate against the advisability of accepting the tenants' offer.
The Rent Control Act of 1950 again speaks of the landlord's reasonable requirement of the premises for building and re-building. This no doubt gives a wider discretion to the Court than under the earlier enactment of 1948 where the expression was 'bona fide requirement' which was held by this Court to be more or less subjective on the part of the landlord (Vide, Bhulan Singh v. Ganendra Kumar' : AIR1950Cal74 , but I do not think that the tenants' offer, as noted above, would necessarily involve rejection of the landlord's claim of eviction.
The utmost that can be said is that this offer would have to be considered by the Court along with other circumstances to judge the reasonableness of the landlord's requirement. Considering the matter in the above light, I do not think that the tenant's offer in any of the instant cases effectively repels or destroys the landlady's plea of reasonable requirement. I, accordingly, reject the appellants' second argument too.
8. The appellants' third point entirely rests on the decision of Chunder J. in ' : AIR1954Cal80 '. The trial Judge no doubt finds, in effect, that there would be extended public accommodation of a substantial nature, But the learned Appellate Bench has pointed out, -- and I think quite rightly, -- that 'the additional space that will be available to the public as a result of reconstruction of the building will not be very extensive.'
Even then, however, I do think that a case of reasonable requirement for building and rebuilding has been made out by the landlady. The statutory Explanation does not, in my opinion, lay down any imperative test in the sense that without extended public accommodation, no case of reasonable requirement of the premises for building and re-building can be made out under the Act.
If that was the intention and effect of the derision cited, I must respectfully dissent from it as, in my view, the question of extended or diminished public accommodation, though undoubtedly relevant, in view of the Explanation, in the consideration of a case of reasonable requirement for building and re-building, is not of so essential a character that the presence or absence of the one or the other would necessarily affect and, indeed, absolutely control the final conclusion.
It may be pointed out here that Chunder J. also could not, -- and, indeeded, he did not, -- stick to the absolute statement of the law, made in : AIR1954Cal80 , (Vide his subsequent decision 'in S. A. No. 39 of 1954, D/- 24-8-1954 (Cal) (D)', and, although, so far as the present point is concerned, he practically reaffirmed the decision in : AIR1954Cal80 , it seems to me that his earlier view in 'S. A. Nos. 316' and '317 of 1952 (Cal) (E))', though given under the 1948 Act, is more in accord even with the present statute.
The Act uses the phrase 'the court shall have regard to' which should not, in my opinion, be taken to mean or imply anything more than this that 'the Court shall take into consideration', thus emphasising the relevancy and appropriateness of such consideration and recommending it to the Court and drawing its attention thereto with some sort of statutory injunction, but not making this element absolutely essential or imperative in the sense that the presence or absence of it would necessarily involve a change in the ultimate situation.
I am supported in this view by the observations of the Judicial Committee in the case of 'Ryots of Garabandho v. Zamindar of Parlakimedi' and of this Court in the case of the 'Province of Bengal v. Pran Kissen Law and Co.' : AIR1950Cal498 and I would not put any more absolute or imperative interpretation on those words. The other view would not be reasonable as that would mean that, even when a dilapidated building would be falling down, the landlord would not be entitled to ask for eviction of the tenant on the ground of requirement for building and re-building unless he has the means to reconstruct with extended public accommodation.
He has, therefore, to play the role of a powerless and silent spectator who will be witnessing the falling down of his premises bit by bit before his very eyes or to take up unremunerative and disproportionate repair works which may ultimately prove useless. I do not think that Section 381 of the Act compels the landlord to undertake such repairs and he cannot also be reasonably expected to undertake them to his own prejudice (Vide 'Soorajmall Nagarmall v. Indian National Drug Co., Ltd.' 59 Cal. W. N. 1023 (H); see also Chunder J.'s observation in 'S. A. Nos. 316' and 317 of 1952 (Cal) (E)', above cited). The appellants' third point also must, therefore, fall.
9. On the last question which relates to S. A. No. 1154 of 1954 alone, Mr. Sen appears to have a strong case. The plan (Ex. 1 (a) ) sufficiently proves his case on the point and, although it is true that this aspect of the matter was not specifically presented in the Courts below, in the circumstances of this case and on the materials before me, namely, the sanctioned plan (Ex. 1-a) of the landlady herself, I am inclined to accept it here rather than making a remand for this small matter.
The location of this tenants' premises appears to be clear and almost admitted, and, upon that location, it is almost beyond question that his removal or eviction would not be necessaryfor the building and re-building as proposed bythe landlady. I, therefore, accept this appealand dismiss the landlady's suit against this particular tenant.
10. In the result, therefore, S. A. No. 1154 of 1954 is allowed, the judgments and decrees of the Courts below in this case are set aside and the plaintiff's suit (Suit No. 746 of 1952) is dismissed. The other three second appeals viz., S. A. Nos. 1153, 1155 and 1156 of 1954, are dismissed and the decrees for ejectment, passed by the two Courts below in these cases, are affirmed subject to this that the tenant appellant in each of these appeals is given time to vacate the disputed premises till the end of November, 1955.
11. There will be no order for costs in any of these cases either in this Court or in any of the two Courts below.
12. Leave to appeal under Clause 15, LettersPatent is granted to the appellants in SecondAppeals Nos. 1153, 1155 and 1156 of 1954 and tothe respondent in Second Appeal No. 1154 of1954.