Jiwan Lal and Co. vs Menot and Co. Ltd.

P. Chatterjee, J.—These appeals are after an order on remand by Mr. Justice Chunder. The appeals are on behalf of the tenants in suits for ejectment.

The buildings are partly one storied and partly two storied consisting mainly of two rows of godown type rooms with a cart passage running between them from east to west. There is a road on either side�the Strand Road on the one and the Clive Street on the other. The Respondents have got a plan sanctioned from the Corporation for building and re-building after demolition of the present structure. The judgment of Mr. Justice Chunder before remand is reported in T.D. Nandi and Others Vs. Manot and Co. Ltd., . Nandi v. Messrs. Menon. Mr. Justice Chunder by an order at p. 806 directed the Court to go in the questions of (i) comparative advantage and disadvantage, as raised in the evidence of the Defendants'' Engineer on the evidence on record and such further evidence as may be adduced and (ii) for going into the question of time within which the work may be reasonably expected to be completed and, therefore, the two aforesaid questions are the only questions which can be gone into at the present stage. Mr. Justice Chunder has said, that the other points "except the question of comparative "advantage and disadvantage and the question of time," would be final between the parties. I have, therefore, to examine the matter with reference to them. The first question that comes is a question of time. With regard to that, we must remember that the West Bengal Premises Rent Control Act of 1950 was a temporary Act which came into force on March 30, 1950 and was expected to remain up to March 31, 1953. The judgmental Mr. Justice Chunder was delivered in June, 1953, but the Act did not expire at that time. The Act was extended front year to year till the new Act of 1956 came into force on a permanent basis. It must fee noted that the element of time did not stand then on the same basis as it stands today. Mr. Justice Chunder had at that time no idea as to what would be going to happen after the Act of 1950 ceased to operate. But we now know definitely that there has been a re-enactment substantially on the same line on a permanent basis. It was argued before Mr. Justice Chunder "a building may take un-"usually long time to be completed because of restrictions in "obtaining materials, difficulties of labour; these are questions "''which ought to be considered in order to consider whether the ''''''advantage alleged is a real advantage or an illusory one" At the time when the Act came into force there was undoubtedly shortage of accommodation and unless there was some real relief to the public there was no reason for ejecting the tenants, who had been holding, because by such ejectment the problem would become more acute far from being solved at all. Therefore, the question of time may be material, but the question is how much material it is. Mr. Roy says that the suit was instituted while the Act of 1950 was in force and during that time it was expected that the rebuilding itself should be completed within such a reasonable time as to be of some public benefit and the longest extent of that reasonable time is the life of the Act. According to Mr. Roy, there could be no conception of requirement within the meaning of the Act beyond the life time of the Act. Therefore necessarily any construction, which may be deferred or is apprehended to be deferred after the Act expires, cannot be said to be reasonably required within the meaning of the Act of 1950. Mr. Roy says whether that rebuilding is delayed for reasons within the control of the Plaintiff or beyond the control of the Plaintiff is immaterial. But if the court has good reasons to apprehend that it would be postponed till after the expiration of the Act, then the Court would refuse ejectment on the basis of the Act of 1950. He might have a better right under the Act of 1956. Mr. Roy has no objection if the landlord wants to proceed under the new Act of 1956, but the decree on the basis of the old Act cannot be justified. Mr. Roy further says that on this interpretation if is indeed quite clear that it is impossible for the landlord and it was impossible for the landlord to build within the life time of the Act of 1950. It has now been demonstrated that it could not be so built and therefore, it is now proved beyond doubt that the house intended to be built in the year 1950 was impossible to be built within the entire period, the Act of 1950 remained in force and hence the Plaintiff is not entitled to a decree for ejetment.

Mr. Kar on behalf of the Respondents refers to Section 40 of the, new Act of 1956. That Act says that the proceedings under the old Act of 1950 would continue as if that Act had not been repealed. The answer is that there is no objection to the proceedings would continue or not is thoroughly irrelevant. The question is whether he still has a right to get a decree after the Act has expired. On the interpretation of Section 40 of the Act I am afraid, I cannot accept Mr. Kar''s argument that the Act of 1950 protects anything more than the proceedings itself. The Act does not say more about it. Mr. Boy has no objection to the continuity of the proceedings. His objection is to the passing of a decree under the old Act, and according to his interpretation, no decree can be passed. Mr. Kar then refers to the other part of Section 40 which refers to the "remedy" but that again refers to "remedies instituted". The Act of 1956 nowhere says that in considering the question of requirement on ground of building and rebuilding it should always be deemed as if the Act was a permanent Act on the same basis of 1956. I am afraid, therefore, this does not help Mr. Kar. Mr. Kar then refers to AIR 1956 Cal 45 wherein Mr. Justice P.N. Mookerjee presiding over a Division Bench held "There is no "limit on the statute and there should be none". Mr. Kar invites me to come to the same decision and to follow the decision of the Division Bench with respect to this matter. The reply of Mr. Roy is that the parties are bound, so far as this case is concerned, by the judgment of Mr. Justice Chunder and Mr. Justice Chunder has given definite directions on the matter. That is undoubtedly so. I, therefore, refer to the judgment of Mr. Justice Chunder on that point. Mr. Justice Chunder directed the Court "for going into the "question of time within which the work may be reasonably "expected to be completed" and then he says that the question of time of completion must be understood as explained by him in the judgment. From the judgment we get "according to "Mr. Sen, who appeared for the tenants, the building must be "completed within the life time of the Act." Mr. Sanyal on behalf of the landlord did not accept that. If the building is to be constructed within an unreasonably long time, then it might be considered to be an illusory advantage. But Mr. Sanyal was not willing to accept the contention that the construction must be wholly within, the life time of the Act. Mr. Justice Chunder stated the two views and finally stated, "It "is not necessary for me in the present case at this stage to "give any final decision on this point of law."

After this, I cannot say that Mr. Sen''s argument was completely accepted by Mr. Justice Chunder. Mr. Justice Chunder would only agree with Mr. Sanyal that, if the advantage was illusory for all practical purposes, it would be no advantage at all. But Mr. Justice Chunder refrained from expressing any opinion as to whether the building proposed: must necessarily be constructed within the life time of the Act of 1950.

I have, therefore, to consider that aspect of the matter. If I take this particular case, what I find is that the suit was instituted on August 24, 1950. Mr. Justice Chunder delivered his judgment after the normal period of the Act had expired in March, 1953 and after the Act was extended for one year with at most an expectation that a permanent Act or another Act less temporary than the previous Act would come into force. It was too much to say that the matter being sent to the Trial Court by Mr. Justice Chunder, he would have expected that the same case could have come to the High Court before that short period elapsed or in any case there was any reasonable expectation of the case being decided and the building being finished within the short space of time that was then available, which, I understand, would be no more than 6 months. If that is the view to be taken, then the reasonable interpretation would, be that so far as building and rebuilding are concerned the remand order and even the provision in the Act was merely infructuous. The Act itself. came into force in 1950. It was too much to expect with our knowledge of litigations that not merely a case would be finished in 3 years but that the building itself would also be constructed in 3 years. The Act did not make a provision for that and, if such interpretation is made, the section would be a mere surplusage and I must say that it is the duty of the Court to give the statute a meaning as not to render any portion of it as mere surplusage. It is in accordance with the well known rules of construction and supported by a decision of the Supreme Court in a case between The State of Bombay Vs. Ali Gulshan, and that is the basis of the view which has been taken by Mr. Justice P.N. Mookerjee in Sharma Electric Engineering Works Vs. Sm. Radha Debi, . The decision is binding upon me, but apart from, that I most respectfully agree with the principle enunciated in that case. I must say further when any Court finds that the house is required for building and rebuilding, the Court necessarily means that it is required actually for building and rebuilding and is not a mere illusion shown by the Plaintiff to the Court. In fact, the factor is, the reality of the requirement with an objective standard not the alleged intention of the landlord in his subjective standard, which may be, according to the Court, a mere illusion and nothing real. I do also agree with what Mr. Justice Chunder says with regard to this illusory nature most respectfully. But that is not the point which has been considered by Mr. Justice P.N. Mookerjee and there is no conflict between the two views. Therefore, in considering the reasonableness of the requirement the Court must consider that the expectation of reconstruction is not a mere illusion but a factual possibility, which is expected to be achieved without unreasonably delay. 1, therefore, overrule the contention of Mr. Roy.

Coming to the facts of this case, the court has gone into the various factors, viz., the possibility of such construction on Engineering ground, availability of money and the availability of materials. Mr. Roy has very strenuously argued that from the Engineering point of view it is far from being any possibility. It is a mere illusion. According to Mr. Roy the process by which the building is expected to be completed will most certainly create such vibrations of earth as would damage the neighbouring buildings and as such damage would be apprehended by the neighbours, they would at once inject the Plaintiff landlord from further construction. As a matter of fact, this argument has not been accepted by the courts below. The courts below have found that such a construction is possible on Engineering ground. But Mr. Roy says that this possibility of an injunction postponing the construction to an unreasonably long period, has not been properly considered. According to Mr. Kar, that is not for the tenants to trouble but for the neighbours to trouble. This sounds strong enough. But, I am afraid, I cannot agree. If it can be proved in one particular case that the construction that has to be made by a particular method will unreasonably cause damage to neighbours and if the Court is satisfied on evidence that it would so cause damage, then the Court of fact may come to a finding of fact that a building to be constructed in such a method cannot be expected to be completed within a reasonable period of time. If a court of fact on a consideration of evidence, circumstance and probability comes to a finding of fact, I am afraid, the landlord would not be able to make out a case of reasonable requirement. But the court of fact has not come to that finding. That is probably sufficient for me in a Court of second appeal. But even then I would say that the aforesaid proposition is not an absolute proposition. The Plaintiff might have said that, supposing a particular method is found at a later stage to cause damage and if he gets notice of such damage, he may at once, change that method of construction and adopt another which would not be dangerous to the neighbours. Therefore whether a particular method is bad enough, is not sufficient to prove the case of the Defendants; they must further prove that there is no alternative method. The Defendants have. suggested another method. If at a particular time it so happens that the method suggested by the Engineers of the Plaintiff becomes unworkable factually, I find no reason why Plaintiff would not change that process and adept the process supported by the Engineers of the Defendants. The Defendants may then say "why then we should be ejected". In this case as the courts have found that the Plaintiffs'' process is workable and Defendants'' process of keeping the tenants in tact not workable and as that is the question of fact, I am, afraid, I cannot on the ground of remote possibility interfere in second appeal. With regard to the question of comparative disadvantages of the tenants, in considering the disadvantages of the tenants, that if the re-building itself is for public benefit, the Defendants are the members of public, who would also get the benefit of extended accommodation. The disadvantage of the tenants has also been considered by the Court and the Court has considered also the alternative method of construction suggested and then found that it was neither advisable nor practicable to construct the new structure by such process and the plan con not be worked unless all the tenants vacate and the entire existing building is demolished.

The question that was raised in the court below in this connection was whether the building can be so constructed as not to disturb the tenants, but the Court has found, as a matter of fact, that the "rebuilding" cannot be so constructed. If that is so, the tenants'' disadvantage of being ejected must be compared with the public advantage of extended accommodation. Having considered that, the courts have considered that the advantage in building outweighs the disadvantages of the tenants.

The Defendants will undoubtedly on ejectment be put to great disadvantage. That was the reason why Chunder, J., sent the matter back on remand and that is the reason why the courts below have considered with great care and caution whether the building could be constructed without ejecting the tenants. Further evidence was taken. The disadvantages of the tenants are patent. It is said that there is no second place in the city of Calcutta which is so much in the heart of the business centre as this one and for all practical purposes equally good accommodation or similar accommodation is an impossible matter.

The only other possible way that remains is to direct the Defendants to vacate the premises without passing a decree for ejectment. Mr. Roy for the Appellant objected on the ground that after the demolition of the old building the tenancy would come to an end. According to him, the lease would determine by frustration. Mr. Kar was also of the same opinion. If that is the legal position, then the question of vacating the premises even temporarily is of no assistance to the tenants and will do no good to the landlords.

We must, therefore, examine the position as to whether the lease would determine as soon as the old building is demolished or, in other words, whether by the demolition, there would be frustration of the lease and whether the lease will stand determined by such frustration. We have considered that matter in a recent case between Mahadeo Prosad Shaw v. Calcutta Dyeing and Cleaning Co. Unreported decision, dated June 8, 1960 in S. M. A. No. 117 of 1959 in a judgment delivered by myself on June 8, 1960.

There it has been held that there may be some difference of opinion in England after the decision in Cricklewood Property and Investment Trust Ltd. v. Leightons Investment Trust Ltd. (1945) 1 All E.R. 252 where "Lord Russel of Killowmen and Lord Goodard were "of opinion that the doctrine had no application to a lease while "Viscount Simon, L.C. and Lord Wright thought that it might "apply in rare and exceptional instances." I have also come to the conclusion that, on the basis of the decision in Satyabrata v. Mugnee Ram (1954) S.C.R. 310. Section 56 of the Contract Act would apply to contracts generally rather than principles of English Law. Finally on the basis of a decision of the Supreme Court between Kidar Lall Seal and Another Vs. Hari Lall Seal, . I have found that there being a special law dealing with transfer of property which is the Transfer of Property Act, the general law which is the Indian Contract Act will not apply. The conclusion, therefore, I arrived at, was that the entire law of the doctrine of frustration as may be applied to leases is to be found in Section 108(e) of the Transfer of Property Act.

It will not be out of place to refer again to Section 108(e) in this connection. The relevant portion is "if, by fire, tempest, "or flood, or violence of an army or of a mob, or other irresistible force any material part of the property be wholly "destroyed or rendered substantially and permanently unfit for "the purposes for which it was let, the lease shall, at the option "of the lessee, be void." Therefore if by irresistible force any material part of the property be wholly destroyed, even then the lease shall be void only at the option of the lessee. I have then to consider the meaning of the words "any material part". In this case what is going to happen is not merely "any material ''"part" but the whole of the building is being destroyed or, in other words, not anyone of the material parts is being destroyed but all the material parts of the building are being destroyed. Hence, the question is, does it apply when the entire building is destroyed. The section itself uses the words "wholly "destroyed" and the word "any" has been used which may mean all�which may also mean a portion of it and the option lies with the tenants; so that prima facie even after the building is totally destroyed if the tenant does not exercise his option to terminate the lease, the lease would still be continuing. It has been held in Kunhayen v. Mayan ILR (1893) Mad. 98 that where in a coffee plantation, all the coffee plants had been absolutely destroyed by fire and the lessee abandoned, the lease terminated as the lessee had abandoned without giving sufficient notice regarding the option. In another case between Siddick Hazi v. Bruel and Co. ILR (1910) Bom. 333 it has been held that a godown being destroyed wholly but yet the tenant having kept several bags of sugar in the "godown" the tenancy would still remain or, in other words, even though the words used are "any material part" it has been considered to include those cases where the entire property had been destroyed. As I have already held in another case the word "any" may be understood in two senses�one in restricted and the other in more comprehensive sense or, in other words, the word "any" may mean "any part of" or "the entire whole". There is no reason to understand the word in any restricted sense to exclude the entire whole of it; in the two aforesaid cases, it has been considered to include the entire whole.

Hence, in my opinion, even if the house is destroyed wholly, even then the lease does not determine unless the lessee so chooses. In this connection I may refer to Section 111 of the Transfer of Property Act. That section is the only section which deals with the conditions under which a lease determines. This section does not include frustration as a ground for determination of the lease. Hence, it is clear that the Legislature never intended that a lease would automatically determine if the building is destroyed. If they had so intended they would have easily inserted a clause to that effect in Section 111. Not having done that, I must consider as if they did not consider that frustration would ipso facto cause determination of a lease. Instead of that, they included the matter u/s 108. That section deals with the rights and liabilities of the lessor and the lessee in the absence of a contract or local usage to the contrary. Therefore, the parties may contract out of Section 108 or, in other words, the parties may agree that even by demolition the lease would not be frustrated. I understand, there has been several cases on the basis of such contract in our High Court; but I have not got any decision before myself. But apart from that, I must come to this finding that the question of frustration has been dealt with in the section dealing generally with the rights and liabilities of the lessor and the lessee and has not been treated as one of the methods for determination of the lease. I, therefore, hold that by the demolition of the entire house the lease would not be destroyed. The reason behind is that a lease of a premises is not without reference to the land on which it stands and that land is not destroyed.

In the aforesaid case of S.M.A. 117/59 I have also held that neither the lessee has a right to raise structure at his cost on the demolished portion nor can he compel the lessor to build another. The question then remains is, for what useful purpose will the tenant in such a case would exercise his option not to avoid the lease. That brings me at once to the question: for what useful purpose did the Legislature make a provision for avoiding the lease only at the option of the lessee. I am afraid, I cannot say that the Legislature has done it without any purpose or for no useful purpose. The words of the Legislature must be considered to be the true depository of their intent as has been held by the Supreme Court in Darshan Singh v. State of the Punjab (1953) S.C.R. 274. I cannot treat that this provision of option to the lessee is a mere surplusage and is of no useful purpose. Such construction should not be made as has been held by the Supreme Court in State of Bombay v. Ali Gulshan Supra.

It is, therefore, the duty of the court to give effect to the meaning of this provision in the section. The Supreme Court has held that it is the duty of the courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used. (Refer to Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, .

Before I go back to this section I would make some reference to the English Law on that point. It cannot be disputed that the entire Transfer of Property Act has been based largely on the English law. I have already considered the difference of opinion on this matter in the House of Lords; hut even now the law as generally recognised in England is that a lease is not determined by frustration. The only difference that was made when the Indian Act was enacted in the year 1882 is that in the Indian Act they thought that the lessee should be determined at the option of the lease. Keeping this in mind, I would just consider two English cases of a recent time after the aforesaid decision of the House of Lords.

The first case that I consider is between Simper v. Coombs (1948) 1 All E.R. 306 a decision of Denning, J. In that case a house was destroyed by bombs during the war time and it has been held by Denning J. as follows:

The position at common law is plain. She had a contractual tenancy and that tenancy has never been determined by due notice to quit. It, therefore, continues in existence. The destruction of the house by a bomb did not determine the tenancy. It is well settled that the destruction of a house does not by itself determine the tenancy of the land on which it stands.

It was the tenancy of premises and the premises was destroyed by bomb. The landlord, thereafter, reconstructed and Denning, J. held "The fact that a new house has been erected on the site "does not make any alteration to the legal position."

I shall next consider another case of the appeal court in England. The case is between Denman v. Brise [1949] 1 K.B. 22. The house was destroyed by enemy action in 1940. The tenant lived elsewhere for 7 years. Thereafter, the landlord reconstructed a new building. The tenant wanted to take possession. The landlord refused. Then the tenant instituted the proceedings in question. It was held by the Court of Appeal that "as there "was no evidence of abandonment or surrender of the lease, and "as the contractual tenancy had not been determined when the "new house became fit for occupation, the tenant on that date "became the lawful tenant of it and entitled, as such, to "occupy it." These two decisions illustrate the principle of law in England that, if a house is totally destroyed and then rebuilt, the tenant is entitled to occupy it.

But in England, it has been restricted only to contractual tenancy but not as yet extended to statutory tenants; because according to the law in England, the statutory tenants are not recognised to have an interest in the property, but it is considered something of a personal nature. So far as our law is concerned, we have not made that distinction. We have held that a tenant who continues in possession after the termination of the notice to quit, remains a tenant though not under the terms of the contract but under the statute itself and we have not gone so far as to say that the statute creates merely a personal liability. In my opinion, if the tenancy is not determined, the tenant would be entitled to occupy the house. It cannot be said that the tenancy would automatically determine. I must make it clear that this is not the proper stage to decide all these matters. But as the law on this matter is far from being settled in our country, I do not want to pass a decree, which" would be merely infructuous. I have considered the position only to satisfy myself that the decree and the order that I propose to pass will not be an infructuous order as contended by Mr. Roy. The last thing that I have to state is that in the case between Mahadeo Prosad Shaw v. Calcutta Dyeing and Cleaning Co. Supra. I have considered as to how far the English cases would help us. I have held following the decision of the Supreme Court that where there is a statute in our law there is no reason to go to the English Law. But when there is no statute I think that English cases are helpful in showing how English courts have decided cases under similar circumstances. This is also the view expressed by Mr. Justice B.K. Mukherjee of the Supreme Court in Satyabrata v. Mugnee Ram Supra referred to aforesaid.

Finally, in my opinion, the landlord Plaintiffs have established a case of building and rebuilding and the tenants undoubtedly will suffer on ejectment; the position, therefore, is that though I hold that the landlords require it for the purpose of building and rebuilding I do not think it is desirable that the tenants should be ejected. The purpose of the Act is to protect the tenants as long as possible and to eject them only when it is not otherwise possible. The landlords do not require; it for their own use and occupation. They want it for the public advantage of increased accommodation. As I have already stated, if the tenants are ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as them. Hence, in my opinion, the only way to harmonies the rights of the landlord and at the same time to+ protect the tenants and also to serve best the purpose of the Act, is to allow the landlords to rebuild after demolition of the present structure, without the tenants being ejected but they the tenants must be directed to vacate the premises so that the landlords Plaintiffs may rebuild. By such vacating the premises, the tenants will do all that they are required to do, to help the landlord to demolish the present structure and to rebuild. They would at the same time help the purpose of the Act in allowing larger accommodation to the public in general, but as it is not a case of personal use and occupation of the landlords, I find no necessity to pass a decree for ejectment if the tenant-Defendants vacate but in case the tenants do not vacate, there is no other alternative than to direct them to be ejected because by such obstruction they would not merely obstruct the landlord but also obstruct the purpose of the Act to provide larger accommodation for the public.

I, therefore, allow the appeals, set aside the judgments and decrees of the courts below and direct the tenants to vacate the premises in question within 31st of January, 1961. If the Defendants do vacate as directed hereby, the suits will stand dismissed and the appeals will stand allowed without costs throughout. If the Defendants do not vacate the premises in question within the time aforesaid, the appeals will stand dismissed with costs throughout.