SANTOSH KUMAR DHAR Vs. NANDA KISHORE MALLICK

JUDGEMENT

(1.) This is the lessee claimant's appeal arising; out of an apportionment case of the Calcutta. Improvement Tribunal. The parties mainly differ on the principle of apportionment to be applied in this particular case and also on the question whether the lessee is entitled to any benefit of his option of renewal, reserved in the relevant lease. There are other minor points of dispute but they do not require much discussion. The facts also are practically undisputed barring some which bear on the lessor's allegation that the appellant's lease is invalid and inoperative in law.

(2.) Premises Nos. 35 and 35/1-A, Lower Circular Road, popularly known as Mallick Bazaar, comprised an approximate total area of 12 bighas. These two premises belonged to three persons, namely, Bholanath Mallick and his two counsin brothers Chandra Sekhar and Nanda Kishore Mallick. Bholanath owned a two-thirds share and the remaining one-third belonged to Chandra Sekhar and Nanda Kishore. The appellant Santosh Kumar Dhar claims to be the lessee in respect of Bholanath'S two-third share. The lease is Ex. K. It is dated February 12, 1947. It is a registered lease, purporting to be for 25 years in the first instance with an optian of renewal in favour of the lessee for another 25 years on the expiry of the said fixed first term of the same period. The renewal was to be on the same terms and conditions as the original letting, barring, of course, any further right of renewal. The rent reserved was Rs. 1,501 per month in the lessor Bholanath's two-thirds share which alone was the subject-matter of the lease, or, in other words, the only lease-hold property. The Bazaar had certain structures at the date of the lease and the lessee was also given the right to build additional structures and make additions and alterations to the lease-hold property with the co-operation and concurrence of the lessor's co-sharers. The lessee had also the right to assign or under-let the demised property. The liability for repairs and in respect of rates and taxes (so far, of course, as the demised property, namely, the lessor Bholanath's two-thirds share of the Bazaar, was concerned) was of the lessee. There were also the usual clauses, providing for the lessor's re-entry in case of breach of any covenant, condition, etc., on the part of the lessee or in case of non-payment of rent (for two months in this particular case), or in case of his insolvency. No other term appears to be particularly material for purposes of the present appeal, although some general reference may be necessary to the nature and trend of the lease in connection with the respondent's attack against its validity.

(3.) Out of the above premises, bare land, comprising an area of one bigha 13 cottahs 2 chattaks, was acquired by the Calcutta Improvement Trust under and in connection with their Alignment Scheme No. XLVIII for a projected public street to connect Lower Circular Road with Mcleod Street. This acquisition was made in pursuance of the Notification under Section 4 of the Land Acquisition Act which was published on February 12, 1943, and which was followed by the usual statutory declaration under Section 6 of the Act on March 31, 1949. The acquired land, one bigha 13 cottahs 2 chattaks prior to its acquisition as aforesaid, had been under requisition under the Defence of India Act as part of a total requisitioned area of 42 cottahs 8 chattaks. The requisition lasted from October 1943 to July 1945 and, during this requisition period, all structures, etc., standing on the acquired land, were demolished by the Requisitioning Authorities and it was converted into bare land to serve as a fire lane, connecting Lower Circular Road and Mcleod Street.