Ashutosh Bhattacharya vs S.V. Provakar Rao

B.C. Chakraborty, J.—This visional application at the instance of the landlord raises a short but important question of law, namely whether a tenant whose tenancy has been determined by a notice to quit, but who has been continuing in possession and no decree for eviction has yet been passed, is entitled in law to successfully maintain an application u/s 34 of the West Bengal Premises Tenancy Act The Opposite Party Is a tenant in respect of portion of a brick walled R. T, Shed of premises No. 2A Kabir Road. at a monthly rental of Rs. 100/. On the plea that the tenant has defaulted in the payment of rent the landlord, petitioner served the tenant with a notice determining the tenancy with the expiry of the month of November, 1970 and thereafter instituted a suit for eviction being Title Suit No. 361 of 1970. The opposite party, tenant entered appearance and obtained an order for payment of the arrears u/s 17(2A) (b) of the Premises Tenancy Act but defaulted in the payment of instalments even thereafter, with the result that by an application u/s 17(3) of the Act the defence against delivery of possession was struck off on 21.8.1974 The opposite party moved this court In revision but eventually the Rule was discharged on 7.9.1976. Thereafter the suit was decreed exparte on 4.10.1977. An appeal preferred against the decree, is however pending.

During the pendency of the suit the opposite party on 27.1 1976 filed in application u/s 34 of the West Bengal Premises Tenancy Act before the Rent Controller for effecting certain essential repairs to the premises By an order dated 27.11.1976 the Rent Controller allowed the application granting an amount of Rs 388 90 with direction for adjustment of the amount against future rent at the rate of Rs. 40/-per month.

The landlord preferred en appeal and the principal contention of the landlord was that the application u/s 34 was not maintainable at all. The contention was overruled and the appeal was dismissed. Hence the revisional application

Mr. Bhattacharjee appearing in support of the Rule reiterated the same contention, namely, that an application u/s 34 at the instance of a person whose tenancy had already been determined is not maintainable In law. In elaborating the point it was argued that the status of a contractual tenant cannot be equated with that of a statutory tenant so as to give him any right to apply for repairs u/s 34. It was also argued that a statutory tenant has no estate or interest In the tenancy so that he could claim and relief u/s 34.

Mr. Samanta on the other hand argued that In view of the definition of the term tenant in section 2(h) of the West Bengal Premises Tenancy Act the opposite party was a tenant In possession on the date when he applied for the relief u/s 34 and as such could successfully maintain such an application. He further argued that the question whither such a tenant has any estate or interest In the tenancy equal to that of a contractual tenant is an irrelevant consideration.

Mr. Bhattacharjee in support of his contention relied in the first piece on a Single Bench decision of this court In the case of Baidya Nith Ray vs Anej Bibi, 1978(2) CLJ 182 In that case there were three applicants before the Rent Controller for relief u/s 34 of the Act The three applicants were tenants in respect of three different portions of the same premises The landlord had instituted ejectment suits against them after giving notice u/s 13(6) of the Act. The Rent Controller allowed the applications But on an appeal the same was set aside. Of the three suits, two were withdrawn end so far as the third was concerned a decree for eviction was passed by the learned Munsif against which an appeal was pending at the relevant time. On an application for revision to this court against the decision of the Appellate Officer it was held by a Id. Single Judge, that the third petitioner could not claim the relief In view of the definition of the word ''tenant'' u/s 2(h) of the Act. In the first blush the decision appears to substantially support the contentions of Mr. Bhattacharjee but on a closer examination It seems that the point is not as simple as that. It appears from the judgment Itself that the point taken before the appellate officer was that after a notice u/s 13(6) of the Act they ceased to be tenants in the strict sense of the term and therefore the relief under section34 of the Act could not be made available to them It was then observed in the decision relied on that "this may apply so far as the third petitioner against whom a decree for eviction had been given but the suits against two petitioners having been withdrawn by the landlord and she having acknowledged them as tenants they are deemed to be in possession of the premises according to the provisions of section 34 of the West Bengal Premises Tenancy Act and they can certainly make a prayer to be permitted to make the necessary repairs if the landlord did not effect the same" The ratio of this decision therefore seems to be that the relief u/s 34 was available to two of the petitioners in spite of determination of the tenancy but It was not available against the third petitioner against whom a decree for eviction has been passed.

In the case before me there was no decree for eviction against the opposite party when the application u/s 34 was made A subsequent decree which is now pending in appeal court could not take away a right of the tenant to apply u/s 34 at a time when there was no decree against him.

The Next case cited by Mr. Bhattacharjee, Sudhir Kumar Chakrebarty vs. Ashutosh Bhattacharjee 1980(1) CLJ 36 is also a Single Bench decision of this Court. This case arose out of an application for fixation for fair rent made after determination of tenancy and even after defence against delivery of possession was struck off It was held that a statute y tenant was not entitled to relief u/s 8 because in order to continue in possession he is required to pay a sum equivalent to rent". It was also held that such an application is not maintainable when the defence of the statutory tenant has been struck down and the statutory tenant is precluded from raising any plea against delivery of possession qua tenant. The statutory tenant, therefore, cannot make any claim for determination of fair rent because payment at the rate of rent is only necessary for continuance of the possession of a statutory tenant and for his protection against delivery of possession. This case is distinguishable mainly on the ground that It arose out of an application for fixation of fair rent alter the determination of the tenancy and the institution of a suit for eviction in order to be able to contest the suit the defendant tenant is required to continue to pay a sum equivalent to the rent month by month The rent referred to in section 17(1) of the Act is the rent which was payable by the tenant on the date of the suit. It cannot mean a rent which may be fixed thereafter en an application u/s 8 of the Act. If the legislature had Intended so the language of the section would have been different. This case in my opinion therefore, is of no assistance in determining the point at Issue before me.

Mr. Bhattacharjee then referred to the case of Harbanslal Jagmohandas and Another Vs. Prabhudas Shivlal, . The facts of that case however, were entirely different. There the question was whether section 12(3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act. 1947 applied or not. It was held that in order to avoid the operation of section 12(3)(a) of the Act the dispute in regard to standard rent or permitted Increases must be raised at the latest before the expiry of one month from the date of service of notice u/s 12(2) of the Act The points Involved In that case are not Identical with the points before me. Mr. B attacharjee then referred to the case of The Calcutta Credit Corporation Ltd., and Another Vs. Happy Homes (P) Ltd., . This case was referred to In support of the contention that a statutory tenant has no estate or interest In the premises occupied by the tenant, the status of the statutory tenant being entirely different from that of a contractual tenant. This was a case under the Provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. In that Act the expression tenant was defined in section 2(11) as meaning any person by whom rent is, or but for a special contract would be payable for any premises, and includes any person who Is liable to be sued by the landlord for rent In this case whet happened was that the original tenant gave a notice that he would vacate the premises on a certain date but subsequently did not so vacate The landlord demanded possession on the basis of the notice given by the tenant. The tenant net only resiled from the notice but sublet a substantial portion of the premises to another It was contended that the tenant acquired the status of statutory tenants and as such could claim protection of the '' Act and were competent by virtue of the provisions of that Act to sublet the premises In their occupation. I have already indicated the definition of the expression tenant as given In that Act In view of that definition a person remaining on occupation, commonly called the statutory tenant is not really a tenant at all. It was held that such a tenant has merely a personal right to protect his possession and has no estate or interest In the premises occupied by him. As such the cannot convey an estate or Interest which he him self does not possess.

For the purposes of the present case It is needless for me to go into the question -whether a statutory tenant within the meaning of the Premises Tenancy Act, 1956 has any estate or interest. In the premises It is significant to point out that this decision also recognises the personal right of the tenant to protect his possession. In this case the opposite party by applying u/s 34 of the Act did not intend to exercise any right of assignment or of any estate in the property. A right to Insist upon effecting essential repairs is a right arising from the personal right of possession of the premises which the law recognises. Unless this is so the landlord may be provided with a whiphand to keep the tenant at bay. Take for Instance a hypothetical case of a dilapidated building requiring repairs. The premises is occupied by tenants The landlord serves them with notice to quit but does not Institute suits against them Immediately thereafter, there being no law requiring the landlord to institute a suit within a specified period after the expiry of the period of notice. Now suppose in the intervening period the building comes to a ruinous state the landlord doing nothing to bring it into good shape. Would or would not the tenants in the circumstances be entitled to ask for relief u/s 34 of the Act ? Since a tenant includes a person who continues in possession even after determination of the tenancy it seems to me that in such circumstances the tenant would be competent to file an application for repairs. That Is a right arising from his right to possess which is personal to him and which subsists even after determination of the tenancy uptil such time a decree for eviction Is made. Consequently In my view whether or not a statutory tenant, as it la called in common parlance, has any estate or interest in the premises he undoubtedly has a right to protect his possession according to law and mach right includes the right to have the premises being repaired, if necessary.

The next case cited by Mr. Bhattacharjee, Sujata Maitra vs. State of West Bengal 82 CWN 894 is absolutely besides the point.

Mr. Samanta on the other hand referred to the case of V. Dhanapal Chettiar Vs. Yesodai Ammal, and contended that determination of the tenancy by a notice u/s 106 of the T. P Act by itself and without more cannot be a deciding factor in determining whether an application u/s 34 could be maintained or net. In this case it was held that In order to get a decree for eviction against a tenant under any State Act. it is not necessary to give a notice u/s 106 of the T. P. Act. because the landlord cannot get eviction even after such determination The tenant continues to be so even thereafter. Therefore on the basis of this decision it seems that for the purpose of entertaining an application u/s 34 by a tenant in possession the question whether the tenant had earlier been served with a notice u/s 106 of the Transfer of Property Act or not is immaterial. In my view, therefore, the application filed by the opposite party before the Rent Controller for relief u/s 34 of the Act was competent and could be maintained at his Instance. Such a view finds support from the decision in the case of Jatindra vs Taramayee 1980 (2) CLJ 89, even though that was a case arising out of an application u/s 31 of the West Bengal Premises Tenancy Act 1956. This decision leys down that the Rent Controller has jurisdiction to entertain an application at the Instance of a statutory tenant even after determination of contractual tenancy if the application contains allegations of overt acts interfering with essential supplies. In that view of the matter I do not find anything to interfere with the order Impugned in this revisional application. The revisional application accordingly fails and is hereby dismissed The Rule is discharged.

There will be no order for costs.

Rule discharged without cost.