Nagendra Nath Gupta vs Sm. Mohit Kumari Pandit and Others

Lahiri, J.—The petitioner in this case is a thika tenant against whom an order for ejectment has been made by the Thika Tenancy Controller, whose decision has been affirmed on appeal by the Subordinate Judge, Third Court, 24-Pargan as. The facts which are material for the purpose of this Rule may be briefly stated as follows : On the 18th August, 1950, the landlord opposite parties filed an application for ejectment against the petitioner, u/s 3 of the Calcutta Thika Tenancy Act (West Bengal Act II of 1949). The grounds upon which ejectment was asked for were that the petitioner was a thika tenant under the opposite parties in respect of one cotta and six chhataks of land in a portion of premises No. 63/R, Mahanirvan Road, at a monthly rent of Rs. 8-4 under a registered lease the terms whereof had expired on the 16th November, 1949, and thereafter the opposite parties served a notice upon the petitioner to vacate the land and to deliver up peaceful possession on the expiry of the month of February, 1950. In spite of that the petitioner failed to vacate the land. The second ground upon which ejectment was prayed for was that the land was required by the opposite parties for the purpose of building and/or otherwise for developing by discontinuing the system of letting out to thika tenants. The prayer made by the opposite parties comes under clauses (iv) and (vi) of section 3 of the Calcutta Thika Tenancy Act. Clause (iv) of section 3 authorises the landlord to apply for ejectment of a thika tenant on the ground that the land is required by the landlord for his own occupation or for the purpose of building on the land or otherwise developing the land by discontinuing the system of letting out to thika tenants. Under clause (vi) of section 3 the landlord is entitled to apply for ejectment when the land comprised in the holding is held under a registered lease on the ground that the term of the lease has expired. In the present case the landlord opposite parties made their application on both the grounds. But at the trial the landlords did not produce the registered lease under which the petitioner held the land with the result that the case under clause (vi) of section 3 was disallowed and an order for ejectment was made under clause (iv) of section 3 only. Against the order of the appellate Court the thika tenant has obtained the present Rule.

The only question that requires consideration is whether in the circumstances of this case the landlords can be said to require the land for the purpose of building on the land or otherwise developing the same. Mr. Sinha appearing in support of the Rule has argued before me that the word "required" as used in clause (iv) of section 3 of the Calcutta Thika Tenancy Act means something more than a mere desire or a wish on the part of the landlords and that it involves an element of need which has not been proved by the landlords in the present case. He has relied upon the decision of Buck-land, J. in the case of Rekhabchand Doogar v. J. R. D''Cruz, (1) (26 C. W. N. 499), where his Lordship was considering the meaning of the word "required" under the Calcutta Rent Act of 1920. Section 11 proviso of the Calcutta Rent Act of 1920, took away the immunity from ejectment conferred on the tenant by the Act "where the premises are bona fide required by the landlord either for purpose of building or re-building or for his own occupation." In the case before Buckland, J., the landlord made a case that the premises were bona fide required by the landlord for his own occupation. In dealing with the case. Buckland, J., observed as follows :

I do not think it is enough that a plaintiff in order to defeat a plea under the Calcutta Rent Act should merely say that he desires the premises bona fide for his own occupation. The word in the Act is not ''desire'' but ''require''. This in my opinion involves something more than a mere wish and it involves an element of need, to some extent at least.

It is to be noticed that the expression which was being interpreted by his Lordship was "bona fide required", whereas in the case before me, I have to consider the meaning of the word "require" without any qualification or limitation. The word ''require'' with, the adjective bona fide or reasonable has been used in various Rent Acts passed by the Legislature of West Bengal, and the meaning of that expression with those qualifications has been considered in some of the cases of this Court. In the case of Naresh Vs. Kanai Lal Roy Chowdhury, , Chunder. J., sitting singly has held that the expression "bona fide required" as occurring in the West Bengal Premises Rent Control Act of 1948, involves an element of "must have" which is not present in the case of "desire". All the decisions on the point were carefully reviewed by Chakravartti, C. J., sitting with P. N. Mookerjee, J., in the case of Girish Chandra Majhi Vs. Girish Chandra Maity, , where their Lordships were dealing with the provisions of section 5(1) of the West Bengal Bargadars Act (Act II of 1950). which runs as follows : "The owner of any land cultivated by a bargadar shall be entitled to terminate the cultivation of such land by the bargadar on one or more of the following grounds, namely _(a) that the owner desires to cultivate the land by himself or by members of his family or by servants or by labourers". Chakravartti, C. J., in, delivering the judgment of the Bench was considering the meaning of the word "desire" as used in the section as distinguished from the word "required" or "bona fide required" as used in other statutes and at page 324, his Lordship observed with reference to the passage in the judgment of Buckland, J., as follows :

It is to be noticed that, in the passage quoted above, Buckland, J., chose the word ''desire'' in order to contrast it with the word ''require'' which he had to construe and he held that under the Rent Act of 1920, where the expression used was ''require'' and not ''desire'', it was not enough that the landlord should have a mere wish.

To my mind it seems that in the absence of any qualification of any kind to restrict the natural meaning of the word "require" as used in section 3, clause (iv) of the Calcutta Thika Tenancy Act this expression is wider than the expressions "bona fide required" or "reasonably required" as used in the Rent Acts of 1948 or 1950, but nevertheless it is not equivalent to a mere wish. The word "desire" is more appropriate to describe the subjective; state of the landlord''s mind, whereas the word "require" refers to an objective state of things. It cannot be disputed that the landlord must prove some element of need to prove that the land is required for building purposes. At the same time, I respectfully agree with the observations of Harries, C. J., and Sinha, J., in the case of Bhutan. Singh v. Ganendra Kumar Roy Chowdhury, (4) (84 C.L.J. 157), where. it has been pointed out that there is a considerable difference between what a landlord has to establish when he sets out to prove that he reasonably requires the premises for his own occupation and when he sets out to prove that he requires premises bona fide for re-building. In this case their Lordships were considering the meaning of the expression "bona fide required" as used in the West Bengal Premises Rent Control Act of 1948. The words used in clause (iv) of section 3 are as follows : "On the ground that the land is required by the landlord for his own occupation or for the purpose of building on the land". Here, also there are two alternatives, namely, the occupation by the landlord or for the purpose of building and it seems to me that when the landlord seeks to eject a thika tenant on the ground that he requires the land for his own occupation he has to prove much more than when he requires the land for the purpose of building. To my mind it seems that Mr. Sinha is right in his contention, that the word "require" as used in clause (iv) of section 3 is not the same thing as the word "wish" occurring in section 5 of the Act, and there is no warrant for the proposition that clause (iv) of section 3 is controlled by the provisions of section 5. Section 3 deals with the substantive rights of the parties, whereas section 5 is a procedural section which authorises the landlord to file an application to the Thika Tenancy Controller if he wishes to eject a thika tenant. I, therefore, hold that the landlord must prove some element of need in order to bring his case under clause (iv) of section 3. Applying that test to the circumstances of the present case, I shall have to consider whether the landlords opposite parties have succeeded in proving that element of need. On the side of the landlords opposite parties they have examined an Engineer, P. W. 2, who prepared an estimate for a building upon the disputed land. A plan submitted to the Corporation of Calcutta has also been produced by the landlords opposite parties. The estimate has been marked as Ext. 7 and the plan as Ext. 3. The opposite parties have also examined a clerk of the City Architect of the Corporation of Calcutta, who has produced the plan and a letter of the Corporation of Calcutta by which the application for building sanction submitted by the opposite parties was refused. This letter is Ext. 4 and it runs as follows : "Existing structures within the premises have not been shown at all. Spaces shown as open in the plan required to be provided by demolishing existing structures." This order of the Corporation of Calcutta, therefore, shows that the opposite parties cannot get the plan sanctioned unless the existing structures are removed or unless their existence is admitted by the opposite parties. It is needless to say that the opposite parties are not in a position to do either of these two things before the termination of the present proceeding. It may be that after the present proceeding is terminated and after the petitioner is ejected from the land and the structures removed, the plan submitted by the opposite parties will be sanctioned by the Corporation of Calcutta. But in any case it seems to me that the opposite parties have taken effective steps to carry out the intention to build upon the disputed premises and it is admitted that they have sufficient means to construct a building upon the land. In those circumstances it seems to me that the opposite parties have been able to prove that they require the land for the purpose of building on it.

Mr. Sinha appearing for the petitioner has pointed out that the plan was submitted by the opposite parties to the Corporation of Calcutta on the 6th of November, 1951, that is, long after the institution of the present proceeding and therefore I should hold that this plan was prepared for the purpose of creating evidence in support of the claim for ejectment. I am afraid I cannot allow the petitioner to raise this point for the first time in revision. The plan was produced by the opposite parties before the Thika Tenancy Controller, but in spite of that neither the Engineer (P.W. 2) nor the applicant for ejectment, who was examined on commission was cross-examined on this point and no suggestion was made to them that the preparation of the plan was but an attempt to create evidence in support of the claim for ejectment.

Mr. Sinha placed strong reliance upon the fact that a plot of vacant land belonging to the opposite parties was leased out by them in favour of another person in the month of July, 1951, long after the commencement of the present proceeding. It is accordingly argued that the opposite parties could have easily erected a building on this piece of land which was in their khas possession rather than make an attempt to build upon a land which was in the occupation of a tenant and the argument is that the opposite parties accordingly did not require the land which is the subject-matter of the present proceeding for the purpose of building. I am afraid, I cannot give effect to this contention. A landlord may have two or more plots of land; some of which may be in his khas possession and others in the occupation of tenants. It may not be profitable for him to construct a building on the plot of land which is in his khas possession and it may be more profitable to him to erect a building on the land which is in the occupation of tenant. For this reason, therefore, it cannot be said that he does not require the land which is in the occupation of tenant for the purpose of building. I do not know whether the land which was in the khas possession of the landlords opposite parties and which was let out by them in the month of July, 1951, was a land with similar advantages and amenities as the land in dispute in the present proceeding, nor do I know whether the landlords could have constructed a building on the vacant plot of land which they let out at the same cost as a building on the disputed land.

Mr. Sinha has further argued that another portion of premises No. 63/R, Mahanirvan Road, is in the possession of another tenant and until that tenant is ejected the landlords cannot be said to require the plot of land which is the subject-matter of the present proceeding for the purpose of building. This argument also appears to me to be without substance. The tenant who is in occupation of the other portion of 63/R, Mahanirvan Road, is Sushi Chandra Dutt and it appears from a rent receipt filed by the petitioner, Ext. A, that this gentleman is not a thika tenant, but a tenant in respect of four rooms at a monthly rent of Rs. 26. The learned Subordinate Judge has pointed out in his judgment that the landlords opposite parties purchased the structures which are in the occupation of Sushil Chandra Dutt and thereafter let out the structures to him as a monthly tenant. Sushil Chandra Dutt accordingly seems to me to be a tenant within the meaning of West Bengal Premises Rent Control Act, 1950. The landlords opposite parties may or may not take steps for ejecting him on the ground that they require the land which is in his occupation for the purpose of building or re-building, but that is no reason, why I should hold that the landlords do not require the remaining portion of premises No. 63/R, Mahanirvan Road for that purpose.

Upon a consideration of all the circumstances referred to above I have reached the conclusion that the landlords opposite parties have been able to prove that they require the land for the purpose of building within the meaning of clause (iv) of section 3 of the Calcutta Thika Tenancy Act and the order for ejectment has been rightly made by the courts below.

I ought to mention that section 7 of the Calcutta Thika Tenancy Act entitles the thika tenant to apply for the restoration of possession if the landlord does not commence the building within six months from the date on which he recovers possession of the property. This section affords sufficient protection to the thika tenant.

For the reasons given above, I would discharge this Rule. There will be no order as to costs in this Rule. The petitioner will have one month''s time after the amount of compensation payable under clause (ii) of the proviso to section 4 has been deposited with the Controller or paid to the thika tenant to vacate the premises in dispute.