1. This rule was obtained by the pltf. against an order dated 28-11-1950 pased by Mr. H. Ganguly, learned Small Cause Ct. Judge, Sealdah.
2. The pltf. instituted a suit for recovery of rent of premises No. 208, Harish Mukherji Road, Bhowanipur, District 24-Parganas for the months of March & April 1950 at the rate of Rs. 140/-per month.
3. The deft. pleaded that he had spent a sum of Rs. 480/- on account of repairs of the premises & claimed a set-off Under Section 108(f), T. P. Act.
4. The learned Small Cause Ct. Judge held that the pltf. contracted to effect the repairs when the deft. took a lease of the premises, & that the deft. spent a sum of Rs. 480/- on account of repairs as alleged. In this view, the learned Small Cause Ct. Judge dismissed the suit.
5. The pltf. has moved this Ct. in revn.
6. Mr. Bagchi, learned advocate for the pltf. has contended that the repairs were effected in July 1948 & as the deft. did not comply with the provision of Section 18, Bengal Ordinance V (5) of 1946 which was then in force, the deft. was not entitled to claim the expenses incurred by him on account of repairs.
7. The learned Small Cause Ct. Judge overd. this contention by observing that
'the Rent Control Act is no bar to the present suit, as it provides additional remedies of the same nature & other relief in addition to those provided under the T. P. Act.'
8. The view of the learned Small Cause Ct. Judge cannot be sustained.
9. Section 108(f), T. P. Act lays down that in the absence of a contract or local usage to the contrary, if the lessor neglects to make within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, & deduct the expenses of such repairs with interest from the rent, or otherwise recover it from the lessor.
10. The records show that the repairs were effected in July 1948. The Rent Control Act, then in force was Bengal Ordinance No. V of 1946.
11. Section 18 (1) provided that the Controller shall, on appln. 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 any repairs which such landlord is bound to make to the premises.
12. Section 18 (2) next provided that if after service of such notice the landlord fails or neglects to make within reasonable time such repairs..........the tenant may submit to the Controller an estimate of the cost of such repairs. .........&, thereupon, the Controller may, after considering such estimate of cost & making such inquiries as he may consider necessary, by an order in writing, permit the tenant to make such repairs ...... at a cost not exceeding such amount as may be specified in the order & it shall thereafter be lawful for the tenant to make such repairs ....... & to deduct the cost thereof, which shall in no case exceed the amount so specified, from the rent or otherwise recover it from the landlord.
13. It is unnecessary for the purposes of this case, to advert to Section 18(3) which refers to cases of urgency.
14. A comparison of the provisions of Section 108(f) T. P. Act with those of Section 18(1) (2), Bengal Ordinance V(5) of 1946 clearly shews that the latter section restricts to a large extent the right of a tenant in the matter of expenses of repairs, & the two remedies cannot be cumulative. In the first place the right to effect repair under the Ordinance accrues only after the Rent Controller makes an order in writing specifying the amount. Again the ambit of the right specified in Section 18 (1) (2), of the Ordinance is narrower & is hedged in with certain conditions.
15. To the extent, the right conferred by Section 108(f), T. P. Act is inconsistent with the right as defined in Section 18 (1) (2), of the Ordinance, it must be held that the Ordinance intercepts in the cases specified in Section 18, the operation of Section 108(f), T. P. Act & the rights of the parties in respect of repairs effected after the Bengal Ordinance came into force, must be governed by the provisions of Section 18 (1) (2) of the Ordinance.
16. It is not disputed that the tenant deft. did not resort to the provisions of Section 18, of the Ordinance. As such, he cannot claim, by way of set-off in a suit for rent, the cost of repairs incurred by him.
17. Mr. Chuckerbarty learned Advocate for the deft. contended that the above construction is not admissible, because the Bengal Ordinance cannot override a Central Statute viz. the T. P. Act, 1882.
18. The power of a Governor to promulgate an Ordinance in 1946 was contained in Section 88 of the Govt. of India Act 1935. It was subject to limitations contained in the proviso to the section read with Section 108, Govt. of India Act.
19. The Bengal Ordinance was promulgated after instructions of the Governor General had been obtained under Sub-clause (iii) of Cl. (b) of the proviso to Sub-section (1) of Section 88, Govt. of India Act, 1935.
20. It is not disputed that the Bengal Ordinance did not encroach upon any item in List I (Federal Legislative List).
21. It was contended however that the Bengal Ordinance was legislation in respect of item (8) of List III (Concurrent Legislative List) which concerns 'Transfer of Property other than agricultural land'.
22. It is difficult to hold that the Bengal Ordinance is a piece of legislation on transfer of property. In pith & substance, the Bengal Ordinance which as the preamble states, was intended to make in the public interest special provisions for the control of rents in Calcutta, is legislation regulating the relation of landlord & tenant & is clearly within item 21 of List II (Provincial Legislative List), which deals with 'Land that is to say, rights in or over land, tenure, including the relation of landlord & tenant, & the collection of rent..........'
23. Section 100(2) read with Section 107(2), Govt. of India Act 1935, conferred on the Provincial Legislature or the Governor, when the legislature is not in session, the power to enact legislation or promulgate an Ordinance on any item in List III (Concurrent Legislature List).
24. The Governor was, therefore, competent to promulgate the Bengal Ordinance V (5) of 1946.
25. The life of the Ordinance was extended by Section 2, Bengal Ordinances Temporary Enactment Act, 1947 (Bengal Act 1 of 1947) & the West Bengal Expiring Laws Act, 1948 (West Bengal Act V (5) of 1948).
26. There is therefore no substance in the contention of Mr. Chuckerborty.
27. Mr. Chuckerborty also contended that the learned Small Cause Ct. Judge did not come to any finding on the deft's plea raised in the written statement that there was an express agreement between the pltf. landlord & the deft. tenant that the latter would meet the cost of repairs & deduct the same from the rent.
28. We were led through the evidence but it is entirely lacking to support the above plea. The learned Small Cause Ct. Judge was therefore right in not dealing with the plea which was wholly unsupported by evidence.
29. The conclusion therefore, follows that the deft. was not entitled to claim the cost of repairs by way of set-off against the arrears of rent claimed by the pltf. The view taken by the learned Small Cause Ct. Judge is not correct.
30. The result is that the Rule is made absolute & the pltf's suit is decreed with costs in this Ct. & the Ct. below.
31. I agree.