AKINCHAN PAL Vs. SIBA PR. PAL & ORS.

JUDGEMENT

(1.) In this application under Art. 227 of the Constitution of India the tenant-petitioner has impugned the order passed by the learned District Judge, Bankura, in Miscellaneous Appeal No. 5 of 1975 affirming the order of the learned Rent Controller. Bankura in Misc. Case No. 20 of 1974-75.

(2.) The petitioner is a monthly tenant under the opposite parties in respect of a shop room at premises No. 23 Vakat Mahallah within Bankura Municipality at a monthly rent of Rs. 29/- payable according to the Bengali Calender month. He filed an application under Sec. 34 of the Premises Tenancy Act, 1956 complaining that the wooden beams and some of the rafters had been badly damaged and some of them had been eaten up by white ants. The said beams and rafters require replacement as otherwise the roof may crumble down endangering human life and property. It was further complained in the petition that by reason of the damage to the beams the roof had become leaky and rain water fell through those leaky portion causing damage to the goods of the petitioner kept in the premises. The petitioner submitted an estimate for necessary repairs and asked for notice upon the landlord opposite parties. The application was resisted by the landlord, who contended that the repairs asked for did not come within the category of ordinary or essential repairs to keep the premises wind and water-tight, but amounted to partial building and rebuilding and as such it was not within the competence of the Rent Controller to order such repairs to be effected and neither the tenant could be permitted to effect such repairs at his own costs and recover the money by way of set off as far as it is provided in the Act itself. The landlord further alleged that the shop room was extremely old and was beyond repairs and it required to be pulled down and a new structure erected in its place and for this purpose the petitioner had already been served with a notice of ejectment on the ground of reasonable requirement for building and rebuilding and the landlord further asserted that it would be uneconomic to effect any repair as asked for.

(3.) The learned Rent Controller found that extensive repairs works were necessary to protect the roof, but following the decision in the case of Messrs. Soorajmull Nagarmull Vs. Messrs. Indian National Drug Co. Ltd. reported in 59 CWN 1023 he held that such extensive repairs as have been sought for by the tenant petitioner amounted to partial re-building and did not come within the purview of Sec. 34 of the Premises Tenancy Act, 1956 and was, therefore, beyond the competence of the Rent Controller. He accordingly rejected the tenant's petition upon which the tenant preferred an appeal. The learned District Judge hearing the appeal concurred ultimately with the findings of the learned Rent Controller and dismissed the appeal and confirmed the Rent Controller's order as mentioned above. The learned District Judge, however, was alive to the fact that the wordings of Sec. 38 of the West Bengal Premises Rent Control Act, 1950, were not similar to the wordings of Sec. 34 of the Premises Tenancy Act, 1956; but nonetheless the tenant of a non-residential premises could have relief under sub-section (1) provided the repair sought for are considered essential by the Controller. He distinguished the case reported in Sudhir Ranjan De Vs. Tara Prasad Chatterjee, reported in 63 CWN 356 on the ground that in that case there was an agreement with the landlord who undertook to make necessary repairs under the terms of the tenancy and eventually concurred with the findings of the learned Rent Controller by holding that there was no doubt that the repairs sought for were extensive and it amounted to considerable re-construction and re-building.