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Sharma Electric Engineering Works and ors. Vs. Radha Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberAppeal Nos. 5, 6, 7 and 8 of 1955
Judge
Reported inAIR1957Cal227
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 12(1)
AppellantSharma Electric Engineering Works and ors.
RespondentRadha Devi and anr.
Appellant AdvocateA.K. Sen and ;Bejoy Bhose, Advs. for Appellants (in Nos. 5, 6, and 7) and ;P.N. Mitra and ;Samarendra Krishna Deb, Advs. for Appellant in No. 8
Respondent AdvocateA.K. Sen and ;Bejoy Bhose, Advs. for Respondents in No. 8 and ;P.N. Mitra and ;Samarendra Krishna Deb, Advs. for Respondents (in Nos. 5, 6, and 7)
DispositionAppeal dismissed
Cases ReferredRajah of Mandasa v. Jagannayakulu
Excerpt:
- .....we find it stated, in the judgment delivered by p. n. mookerjee j., that'the location of this tenant's premises appears to be clear and almost admitted, and, upon that loca-. tion, it is almost beyond question that his removal or eviction would not be necessary for the building and re-building as proposed by the landlady.'the sanctioned plan, ex. 1-a, was placed before us and though the learned advocate for the landlord was not in a position to point out to us the exact position of the tenant's room, he did indicate to us ehe approximate position. on examination of the plan, the position of this room as indicated by the learned advocate for the landlord and also the indications in the plan of the walls that have to be reconstructed for the purpose of re-building, we are dearly of.....
Judgment:

Das Gupta, J.

1. Twelve suits brought for ejectment of tenants of twelve separate rooms of premises No. 31, Mallick Street, were heard analogously and all the twelve suits were decreed. We are concerned now with only four of these. In these four, (he plaintiff, after averring that notices to quit were duly served, alleged that the tenants were not entitled to the protection of Sub-section (1) of Section 12 of the West Bengal Premises Kent Control (Temporary Provisions) Act, 1950, inasmuch as the premises in the occupation of each of these tenants were reasonably required by the landlord for the purpose of re-building. It was alleged that premises No. 31, Mallick Street, was a very aid house and that there was very great danger of the house falling down unless some of the walls were taken down and strengthened by re-construction after putting a steel frame. This, though denied by the tenants, was believed by the trial court and also by the court of appeal, which held that the landlord had made out her case that the premises were reasonably required by her for the purpose of re-building. On second appeal, our learned brother P. N. Mookerjee J., came to the conclusion as regards three of the suits that the courts below were sight in their view that the premises were reasonably required for the purpose of re-building as regards three of these suits but as regards Suit No. 746 of 1952 out of which Second Appeal No. 1154 of 1954 has arisen, he was of the opinion, on a consideration of the position of the room of this tenancy, that it was not required for the re-building. He, therefore, allowed this appeal and dismissed Suit No. 746 of 1952, The other three appeals were dismissed by him.

2. From his decision in all these four appeals, the present appeals have been preferred under clause 15 of the Letters Patent.

3. As regards Letters Patent Appeal No. 8 of 1955, which is from the decision of P. N. Mooker-Jee J. in Second Appeal No. 1154 of 1954, it was contended that P. N. Mookerjee J. was wrong in thinking that the position of the premises was such that removal of the tenant was not necessary for the re-building. We find it stated, in the judgment delivered by P. N. Mookerjee J., that

'the location of this tenant's premises appears to be clear and almost admitted, and, upon that loca-. tion, it is almost beyond question that his removal or eviction would not be necessary for the building and re-building as proposed by the landlady.'

The sanctioned plan, Ex. 1-a, was placed before us and though the learned Advocate for the landlord was not in a position to point out to us the exact position of the tenant's room, he did indicate to us Ehe approximate position. On examination of the plan, the position of this room as indicated by the learned Advocate for the landlord and also the indications in the plan of the walls that have to be reconstructed for the purpose of re-building, we are dearly of the opinion, that P. N. Mookerjee J.'s conclusion that the removal would not be necessary for the re-building is entirely correct.

4. Appeal No. S is, therefore, dismissed with costs.

5. Two interesting questions of Jaw have been raised in the other three appeals. As already indicated, the ground on which the landlord contends that the tenant should be deprived of the protection of Sub-section (1) of Section 12 of the Rent Control Act of 1950 is that the tenant's premises are reasonably required by the plaintiff for the purpose of rebuilding and that the re-building involved the demolition of some of the walls and re-construction of new walls in their place after introducing a steel frame. It appears that at the trial an offer was made by the tenants in all these three cases that they were prepared to vacate the rooms temporarily though continuing their tenancy and paying rents for the time they would be out of the rooms, so that the landlord could complete the work of rebuilding and they would come back and re-occupy the rooms without any break in their tenancy. One of the arguments raised before P. N. Mookerjee J. was that, in the face of such an offer, it could not be said that the premises were reasonably required by the landlord for the purpose of re-building.

6. Another argument that was advanced was that as there would be practically no increase in the accommodation as a result of the re-building, the Court ought to hold in view of the explanation to clause (h) of Sub-section (1) of Section 12, that the requirement was not reasonable. P. N. Mookerjee J. observed that at one stage he was inclined to find in favour of the tenants appellants on the argument that in view of the tenants' offer to vacate the premises for the period required to re-build, reasonable requirement of the landlord for the purpose of rebuilding was not proved. His final conclusion, however, is that this argument should not be accepted.

7. As regards the other argument that there being no appreciable increase in the accommodation, the Court was bound to hold that the requirement was not reasonable, P. N. Mookerjee J, pointed out that the question of increase of accommoda-tion was not the sole matter to decide the question of reasonableness but one of the matters to be taken into consideration along with other facts and this argument was also rejected by him.

8. Before us, both these arguments have been repeated. An additional argument addressed to us is that in any case, the requirement in the present case is not of the landlord but of the tenants because it is the tenants' safety which will be jeopardised if the re-construction is not made. In my opinion, this argument is obviously unsound. Whether or not the tenants' safety is endangered if the reconstruction is not made, there can be no gainsaying the fact that if but for the re-building the premises are likely to crumble down, that will certainly be loss of the landlord's property and even though the re-building might be required for the purpose 'of the tenant also, it is clearly required by the landlord. Apart from this, it is well to remember that the landlord himself is, by law, 'bound to ensure the quiet enjoyment of the premises by the tenant. If action is necessary to be taken by the landlord for fulfilment of this legal obligation, that will also be a requirement of the landlord. It cannot, in my opinion, be doubted for a moment that where, as in the present case, there is serious danger, as was proved by the evidence, that the building would crumble down unless quick steps were taken for its re-building by demolishing some of the walls and re-constructing new walls in the place of the same, the requirement is that of the landlord.

9. But is this requirement for the purpose of re-building? On behalf of the appellants, Mr. Sen, has argued that when the accommodation remains the same and 'the identity of the premises is not substantially changed, there is no re-building.' In my judgment, there is no substance in this contention. While there may be many operations in the housewhich may be properly called repairs, there areother operations in connection with a structure whichclearly do not fall within the scope of repairs butare included in the word 're-building.' Thus, whensome window panes are to be replaced or the wallsor 3 ceiling or windows are to be re-painted or thefloors of a room are to be polished, nobody wouldcall such work 're-building.' It is equally clear, however, that when the roof of a structure is takendown and a new roof constructed or entire walls orsubstantial portions of the walls are taken down andre-constructed, these are so much like new buildingoperations, though not tantamount to fresh building, that they are readily1 understood to amount tore-building. Our attention has been drawn to thedefinition of re-building which has been attemptedto be given by P. B. Mukharji J. in Ramesh Ghandra Bhattacherjee v. Nagendra N. Mullick, : AIR1951Cal435 . After discussion of anumber of English cases, P. B. Mukharji J. observed:

'The interpretation of the words 'building' and re-building' should, in mv view, be such in this case as is consistent with the purpose and context of the Rent Acts of 1948 and 1950. In the light of the scheme and purpose of the Rent legislation one test by which to define 'building' and 're-building' is this that it should be of such a nature that will require displacement of the tenant. In other words, the 'purpose' of 'building' or 're-building' within the meaning of the Rent legislation must be of such a nature as cannot be carried out if the tenant remains in occupation of the premises under consideration. This, in my judgment, provides a sufficient standard and working test by which the words 'building' or 're-building' are to be understood under the Rent Act of 1948 or 1950. If, therefore, repairs so extensive and fundamental in character as, for instance, in this case where the very foundation on which the ground floor rests have to be re-constructed, where the very walls which have become cracked and moist have to be thrown down and rebuilt that they cannot be carried out if the tenant remains in possession, then it becomes a case, in my opinion, of 'building' or 're-building' within the meaning of the Statutes.'

I have no hesitation to hold that where, as in the case before P. B. Mukharji J., the foundation has to be re-constructed and the walls have to be thrown down and re-built, the nature of the work must be called re-building. As regards the standard suggested by P. B. Mukharji J., I can think of cases where only re-plastering and re-painting of walls are necessary which cannot be conveniently done unless the tenant gives up occupation, but those cases may not properly be considered to be cases of re-building. There can be no doubt, however, that where the nature of the construction is such that, while partaking of the nature of a new building operation, it does not amount to new building but amounts to re-construction of certain parts of the old building either by taking down the roof or by changing the foundation or by taking down the walls and re-constructing them or otherwise, the work done is 're-building' work.

10. Applying this test, there can be no doubt (that the work proposed to be done here, namely, reconstruction of the, walls, after taking down the oldwalls after introducing a steel frame, is re-buildingwork. If such re-building work could be carried outwithout the tenants having to vacate the premises;it would not be possible to say that the premiseswould be required by the landlord for the purposeof re-building. It does not appear to be disputedthat the work of taking down the walls and their re-construction could not be carried out without very great danger to the people occupying therooms covered by these tenancies. The element ofnecessity which is included in the word 'requiredis, therefore, satisfied.

11. The further question is whether that requirement is reasonable. At first sight, it does seem as it apparently seemed to P. N. Mookerjee J., that when the tenant is offering to make the premises available to the landlord for the purpose of the re-building, it is not reasonable to ask him to vacate it for all times. Clearly, however, if we read into the clause a provision that where though the pre-mises are required by the landlord for the purpose-of re-building, the requirement can be satisfied by the tenant vacating the premises temporarily, that 'would amount to legislation. The reasonableness of the requirement does not, in my judgment, depend on the question whether it can be satisfied by the tenant vacating the premises temporarily as distinct from being made to give it up permanently. The test of reasonableness must be whether the 'purpose for which the re-building is proposed is reasonable; Three things are necessary. First, the occupation of the premises by the landlord must be 'required'; secondly, that requirement must be for the purpose of re-building; and thirdly, that the requirement is reasonable. If the purpose of re-building is merely to make the house more beautiful, that would not be considered a reasonable requirement. If, on the other hand, the purpose of re-building, as in this case, is to ensure the safety of the tenants and the preservation of property, the requirement must fee ordinarily considered to be reasonable. In the Explanation to clause (h) of Sub-section (1) of Section 12 of the Rent Control Act of 1950, the Legislature has laid down one test of reasonableness by saying:

'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 .........''

It appears to have been contended before P. M. Mookerjee J. and has been faintly contended before us also that unless this test is satisfied, namely, that the comparative public benefit by-extending the accommodation is greater than the disadvantage by diminishing the accommodation, the requirement must be held to be unreasonable. I do not think we should be justified in reading such a meaning into the Explanation. All that the Explanation says is that in determining the question of reasonableness, the Court shall have regard to certain matters. If it was intended that unless this test is satisfied, the requirement would be considered to be unreasonable, the Legislature would have said so plainly. I agree with P. N. Mookerjee J. that the proper interpretation of. the words, ''shall have regard to' is 'shall take into consideration.' In Ryots of Garabandho v. Zemindar of Parlakimedi, 70 Ind App 129: (AIR 1943 PC 14) (B), the Judicial Committee had to consider the question of interpretation of the words, 'shall have regard to' in Section 168 of the Madras Estates Land Act, 1908. The majority of the Board of Revenue had taken the view that the requirement to 'have regard to' the provisions in question had no more definite or technical meaning than that of ordinary usage, and only required that these provisions must be taken into consideration. The Judicial Committee, after pointing out that this view, of the effect of the direction to have regard to' the provisions of the Act, was supported by the previous decision of the Madras High Court in Valluri Narasimha Rao v. Ryots of Peddamamidipalli : AIR1926Mad480 and certain observations of Reilly J. in Rajah of Mandasa v. Jagannayakulu, 63 Mad LJ 450: (AIR 1932 Mad 612J (FB) (D) decided that this was' the correct interpretation to be put on such words and that, as a matter of English, this view was nearer to the ordinary meaning of the phrase 'have regard to' than the view that the provision must be obeyed.

12. In this view of the law, it seems to me blear that even if any increased accommodation does not result from the proposed re-building, the premises may be held to be reasonably required and in the present case, as the purpose of the re-building is to ensure the safety of the tenants and to prevent 'immediate loss of valuable property, the requirement cannot but be considered to be reasonable.

13. I have, therefore, come to the conclusion that the appeals were rightly dismissed by P. N. Mookerjee J. and the Letters Patent Appeals (Appeals Nos. 5, 6 and 7 of 1955) are dismissed with costs. The tenants are given time till the 30th June, 1956 to vacate the premises.

Guha, J.

14. I agree.


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