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T.D. Nandi and ors. Vs. Manot and Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. Nos. 991 to 998 of 1952 and 80 of 1953
Judge
Reported inAIR1954Cal80,57CWN802
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 12(1)
AppellantT.D. Nandi and ors.
RespondentManot and Co. Ltd.
Appellant AdvocateA.K. Sen and ;Subodh K. Bhattacharya, Advs.
Respondent AdvocateH.N. Sannyal, ;S. Roy and ;B.K. Lal, Advs.
Cases ReferredBhulan Singh v. Ganendra Kumar
Excerpt:
- .....entire old building and construct a new five storied building. both the courts in deciding upon comparative advantage and disadvantage have devoted their attention to the question in issue whether a new five storied building would be a better one having all modern amenities and as a five storied building greater accommodation than the old building now existing,4. it may be made clear that the plaintiff landlord first had the entire building examined by an engineer mr. s. c. basu of messrs a. k. sarkar and co. builders ltd. who gave a written report that the entire old building was capable of being repaired at a cost of about rs. 1,00,000/- but whether it should be repaired or pulled down and re-built he left to the decision of the landlord. in court in ills examination he was asked.....
Judgment:

K.C. Chunder, J.

1. These are nine second appeals against the appellate judgment of the Special Bench, Court of Small Causes, Calcutta, affirming that of the 6th Judge of the same Court in connection with nine ejectment suits filed by the same plaintiff against nine different tenants with respect to premises in the same building under the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950.

2. It is not disputed that there are as many as about 50 tenants in the same building, No. 40 Strand Road, Calcutta, an old building which was purchased at considerable cost by the landlord respondent. He served notices under Section 106, T. P. Act on all these tenants and in order to meet the bar under the Rent Control Act put forward the claim that he reasonably required the premises for building and rebuilding.

3. I must begin with pointing out that both, the Courts below did not notice that under Section 12(1), second proviso (h) premises do not always mean the building. Premises have been defined in the Act as 'any building or part of a building or any hut or part of a hut let separately' and includes certain other things so that in each of these cases the proof must relate to the premises let separately and not to the entire building. In the statement of the case the trial Court says: ..... 'On the ground that the landlord reasonably requires the entire premises for the purpose of building a new five storied structure after dismantling the present antiquated. dilapidated and dangerous building.' The appellate Court again says the same thing:.....'the plaintiffs reasonably required the entire premises No. 4 Strand Road, Calcutta, for the purpose of building which is very old and is in a dangerous condition.' It is clear from a perusal of the judgments of both the Courts below that they have taken great pains to decide whether the landlord honestly wanted to demolish the entire old building and construct a new five storied building. Both the Courts in deciding upon comparative advantage and disadvantage have devoted their attention to the question in issue whether a new five storied building would be a better one having all modern amenities and as a five storied building greater accommodation than the old building now existing,

4. It may be made clear that the plaintiff landlord first had the entire building examined by an engineer Mr. S. C. Basu of Messrs A. K. Sarkar and Co. Builders Ltd. who gave a written report that the entire old building was capable of being repaired at a cost of about Rs. 1,00,000/- but whether it should be repaired or pulled down and re-built he left to the decision of the landlord. In Court in ills examination he was asked for his opinion and his opinion was that on the old building as it stood no five storied structure perhaps could be raised without demolishing the building altogether and re-bunding it entirely. He did not go into the question as it appears now and if I may say so neither of the Courts below have gone into it whether all the proposed extended accommodation could be secured, though perhaps not all the amenities, by keeping intact the present building at it stood with certain additional safeguards. This aspect of the question was not considered by the plaintiff's Engineer and Mr. Sannyal's contention has been that this view of the case was not put to the plaintiff's engineer when he was in the box. Certain evidence was given by Mr. Guin, a contractor, and at the first view it appeared that he went in his evidence beyond what the engineer's report showed.

On behalf of the tenants Mr. K. N. Sinha was examined. The Courts below have considered him a qualified engineer and his opinion was, as far as I am at present concerned, that on the old building as it stood additional structure could be raised so that the extended accommodation, which was being put forward as a ground of ejectment, could be secured on the existing building without dislocating any of the tenants now in the building, by providing framed structure either of steel or re-inforced concrete and he pointed out that such construction was going on in the neighbourhood at Tiretta Bazar. Therefore as far as the section of the Act is concerned, his evidence is more to the point. His evidence shows that there need be no comparative disadvantage because of want of accommodation for the present tenants but the comparative advantage of more extended accommodation may be secured at the same time. On the other hand, the case as put forward by the plaintiff was that for the purpose of securing the extended accommodation, which is the public advantage put forward, it is absolutely essential that there should be dislocation of the tenants and the entire demolition of the old structure. Certainly of the two opinions if the opinion of Mr. Sinha on behalf of the defendants is a correct opinion then perhaps a decree in ejectment may not be in consonance with the law as it now stands.

5. Mr. Sanyal has conceded that under the present law i. e. the Act of 1950, the decisions reported in --'Pudumji v. Sir Dinshaw Manakji' A. I. R. 1920 Bom 31 (A) and in -- 'Bhulan Singh v. Ganendra Kumar', : AIR1950Cal74 (B), cannot be considered as proper subsisting authorities on the interpretation of the section. Bona fide requirement in the sense that from his own pecuniary motive of gain a landlord sincerely desires to pull down a building and re-build a larger structure is not the proper point for consideration under the law as it now stands. An explanation has been added statutorily after the decision in -- ' : AIR1950Cal74 (B)' above referred to that the Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation.

So the question of cost, gain or any other economic motive of the landlord must be subordinated to the question whether the thing which he intend-ed to be done will have the comparative advantage of extended accommodation sufficiently great to offset the disadvantage of dislocating persons already in occupation and in throwing them on to a very congested market for securing further accommodation. If the public benefit of extended accommodation cannot be secured without causing great disadvantage to the tenants but not great advantage to the public (not the landlord) the Court will not allow a building project by a landlord which must lead to the ejectment of the tenants from their different premises in the building. If the same extended accommodation may be secured even in ways other than that by which the landlord intends to secure the same ejectment is not proper. In other words, if there can be extended accommodation in some particular way without much disadvantage to the tenants and if the landlord is not either willing to accept such a way of extending accommodation, or the landlord fails to show that this is not possible in the way it is alleged to be capable of being done and the landlord insists upon his own particular project which may be more paying to him but which will cause ejectment of the tenants, then the Court cannot consider the premises of those tenants as being reasonably required for building and rebuilding.

There was much argument in the present case that the comparative advantage & disadvantage of building and rebuilding must also be confined to the lifetime of the present Act. It was urged by Mr. Sen that this is a temporary measure, & the comparative advantage & disadvantage the Legislature in a temporary measure was considering, was the comparative advantage and disadvantage within the lifetime of such temporary measure. In support of this view Mr. Sen has drawn attention to Section 15 of the Act specially to Clause (2) of the same. Something may be said in favour of Mr. Sen's contention. His contention also was that if the comparative advantage by way of extended accommodation was to come after the Act had expired then the penal clause under clause (2) will be absolutely inapplicable. Further when the whole object of the Act was to meet a very grave and critical situation in Bengal owing not only to war conditions as in the previous Acts but to influx of waves of refugees which has continued after 1946 even upto the present day, the Act will have to be interpreted on the background of the present situation and also taking into account all attempts by the Government with the aid of legislation in every sphere to restrain ejectment so that congested conditions as regards accommodation may not become absolutely unmanageable.

6. Mr. Sannyal has argued that any building construction which will take an unreasonable long time certainly will be an illusory advantage and is not within the section, but he is not willing to accept the contention that the comparative advantage must be wholly within the life time of the Act. There is also something to be said in favour of Mr. Sannyal's contention. Mr. Sannyal's contention is that if the construction is to be completed not within an unreasonable time then the advantage is not illusory. I have stated the two views but it is not necessary for me in the present case at this stage to give any final decision on this point of law because none of the two Courts below have come to any conclusion as to whether the building operation as intended to be undertaken can be completed within such a reasonable period as may be considered as not making the proposed extended accommodation merely an illusory advantage even if I accept Mr. Sannyal's contention. The Courts below were only concerned with the question whether the plaintiff had a purse long enough to finance the project in view of a decision under the 1948 Act, but apart from consideration of money question other considerations arise in these days, of restriction of materials, difficulties of labour etc. in connection with construction of buildings.

7. It is, therefore, clear that the case as put forward through the engineer of the defendants. if correct, may be complete answer to the plaintiff's claim to eject these tenants whatever may be said about the plaintiff's intention of having a beautiful modern building with all latest amenities. Such architectural beauty or advantages in amenities will not be the guiding principle in considering reasonable requirement but as I have pointed out the proper principle is comparative advantage of extended accommodation as against throwing out of tenants to find accommodation in a highly congested accommodation market at a very critical time.

8. I have already pointed out that there was evidence on the defts' side showing that from this point of view the plaintiff's requirement may not be considered by the Court as reasonable requirement as far as these premises are concerned. That point of view has not been directly countered by evidence on the side of the plaintiff nor has it been gone into in the decision of either of the Courts below. Mr. Sannyal rightly objected to the procedure adopted by the defendants in not putting their case straight to the plaintiff's engineer when he was on the box. It was in the trial Court that the case on behalf of the defendants was put by their engineer and who also mentioned practical examples where such work was being done and there was no attempt in either the trial Court or in the Court of first appeal to meet that objection. Obviously, on the plaintiff's side the proper weight of this evidence of the defendants' engineer was not appreciated. In view of the surprise thrown upon the plaintiff in the trial Court the plaintiff certainly is entitled to have this matter gone into fully at length and if necessary to cross examine the defendants' engineer more on this point and to give such rebutting evidence as he may be advised to give. In short, this point raised by the defendants' engineer requires a careful consideration by the Court before any decree in ejectment can rightly be passed.

9. Further, as I have pointed out the question, whether the work can be completed within a time which may even according to Mr. Sannyal's view of law be not unreasonable and make the advantage illusory, is one which should have been decided by the Courts below. It must not be understood that I am giving my opinion at this stage whether Mr. Sannyal's view of the law on this point is right or Mr. Sen's view, but evidence to determine the question muse be first taken.

10. The result, therefore, is that as the cases were not properly considered by the Courts below they must go back to the trial Court for going into the question of comparative advantage and disadvantage as raised in the evidence of the defendants' engineer in his report and if necessary take further evidence on the point from both parties and allow further cross examination of the defendants' engineer and also for going into the question of time within which the work may be reasonably expected to be completed.

11. In view of the just objection taken by Mr. Sannyal to the conduct of the defendants in keeping their trump card up the sleeve and taking the plaintiff by surprise in the Court below the defendants will pay the costs of these suits upto this stage including these appeals. Further costs will abide the result.

12. Other points, except the question of comparative advantage and disadvantage and the question of time of completion as explained in this judgment, will be final between the parties as they have not been contested in this Court.

13. In view of the time which these cases have taken and in view of the short duration left for this Act before further enactment comes in it is desirable that the enquiry into the matter should be completed as early as possible.

Let the records be sent down without delay.


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