Citation Codes

Equivalent Citations

citation codes

Case Number

AFAD Nos. 991 to 998 of 1952 and 80 of 1953

Attorney(S)

A.K. Sen and Subodh K. Bhattacharya
H.N. Sannyal
S. Roy and B.K. Lal

Judges

Chunder, J.

Acts

West Bengal Premises Rent Control (Temporary Provisions) Act of 1950.2.
SECTION 106 TRANSFER OF PROPERTY ACT
Rent Control Act

See more information ...

Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

These are nine second appeals arising from the appellate judgment of the Special Bench, Court of Small Causes, Calcutta, which affirmed the judgment of the 6th Judge of the same court in nine ejectment suits brought by the same plaintiff (landlord) against nine different tenants. The suits concern premises in the same building — No. 40, Strand Road, Calcutta — an old building with about fifty tenants. The landlord purchased the building and served notices under section 106 of the Transfer of Property Act on the tenants, claiming that he reasonably required the premises for building and re‑building under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

The courts below treated the landlord's claim as relating to the entire building (to demolish and reconstruct a new five‑storied structure). The matter reached this Court on second appeals that challenge those decisions and the procedure followed at trial, including surprise evidence introduced by the defendants and questions left undecided by the courts below.

Legal Issues Presented

Whether, under the Rent Control Act, "premises" in proceedings for ejectment must be considered as the separately let premises (part of a building) and therefore whether proof must relate to the separately let premises rather than to the entire building.
Whether the landlord can show a reasonable requirement for demolition and re‑building by establishing a bona fide pecuniary motive or whether the court must instead consider the comparative public benefit or disadvantage of extending or diminishing accommodation.
Whether extended accommodation that the landlord proposes to provide by demolition and re‑building can instead be secured without dislocating existing tenants (for example by additional framed structures), and if so whether ejectment is proper.
Whether the comparative advantage to be considered must be confined to the lifetime of the temporary Act or may extend beyond it, and relatedly whether advantages that will only arise after an unreasonably long construction period are merely illusory.
Whether the trials below properly considered evidence presented by the defendants (including the defendants' engineer) and whether the plaintiff was given a fair opportunity to meet that evidence (cross‑examination and rebuttal).

Arguments of the Parties

Plaintiff (Landlord) — Arguments

The landlord served notices under section 106 of the Transfer of Property Act and claimed reasonable requirement of the premises for building/re‑building a new five‑storied structure after demolishing the old building.
The landlord relied on a written report by an engineer, Mr. S.C. Basu, who stated the entire building could be repaired at about Rs. 1,00,000 but left the choice of repair versus demolition and rebuilding to the landlord; in oral evidence the engineer suggested that a five‑storied structure perhaps could not be raised on the existing building without complete demolition and re‑building.
Counsel for the landlord (Mr. Sannyal) argued that comparative advantage need not necessarily be confined to the lifetime of the temporary Act and that construction which can be completed within a reasonable time may not render the proposed advantage illusory.
Counsel (Mr. Sannyal) also objected to the defendants’ procedure in failing to put their full case to the plaintiff's engineer at trial and complained of surprise by evidence adduced by the defendants.
It was conceded by counsel (Mr. Sannyal) that earlier decisions (referred to in the judgment) cannot be treated as proper subsisting authorities under the present Act; and that the court must consider comparative public advantage or disadvantage rather than merely bona fide pecuniary motive.

Defendants (Tenants) — Arguments

The tenants produced evidence through their engineer, Mr. K.N. Sinha, who opined that additional structure could be raised on the old building without dislocating tenants, using framed structures of steel or reinforced concrete — examples of such work existed nearby.
The tenants contended that extended accommodation sought by the landlord could be secured on the existing building without demolishing it and without ejecting tenants, so that the landlord's asserted reasonable requirement for demolition/rebuilding was not established.
The tenants’ evidence was, in the Court’s view, potentially a complete answer to the landlord's claim if accepted; however, the defendants were criticized for not putting this line of questioning to the plaintiff's engineer in the trial court (a matter raised by the landlord on appeal).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B.D. Pudumji … Defendant v. Dinshaw Manekji Petit … Plaintiff (22 B.L.R. 808)	Referenced in relation to earlier interpretation of the statutory provision; noted that under the present Act such decisions cannot be regarded as proper subsisting authorities on interpretation.	The Court records that counsel (Mr. Sanyal) conceded these earlier decisions are not proper subsisting authorities under the 1950 Act; the Court therefore applies the statutory explanation which requires regard to comparative public benefit/disadvantage.
Bhutan Singh v. Ganendra Kumar Roy Choudhury (84 C.L.J. 157)	Previously influential decision; after this decision a statutory explanation was added requiring courts to have regard to comparative public benefit or disadvantage when determining reasonableness of requirement for building/re‑building.	The Court treats the post‑decision statutory explanation as governing: the court must consider comparative public advantage/disadvantage rather than landlord's pecuniary motive; the cited decision therefore cannot stand as a sole authority contrary to the statutory test.

Court's Reasoning and Analysis

The Court's analysis proceeds in a sequence of distinct observations and legal conclusions, grounded in the evidence and the statutory scheme:

Definition and focus on "premises": The Court observed that the lower courts treated the landlord's claim as relating to the entire building, but under the Rent Control Act "premises" is defined to include “any building or part of a building … let separately,” so proof must relate to the premises let separately rather than automatically to the entire building. The courts below therefore erred in concentrating on demolition/rebuilding of the entire structure without first addressing the separately let premises.
Evidence of plaintiff's engineer: The landlord’s engineer (Mr. S.C. Basu) gave a written report that the entire building could be repaired at a cost of about Rs. 1,00,000 and left the decision to the landlord; in oral evidence he suggested a five‑storied structure perhaps could not be raised without complete demolition. The Court noted that this engineer did not examine whether extended accommodation could be obtained by retaining and strengthening the existing building.
Defendants' technical evidence: The tenants' engineer (Mr. K.N. Sinha) gave evidence that additional accommodation could be secured on the existing structure by framed construction (steel or reinforced concrete) without dislocating tenants. The Court found this evidence directly relevant to the statutory test because it affects the comparative advantage/disadvantage balance (public benefit versus dislocation of tenants).
Legal standard under the Act: The Court emphasized that the statutory explanation (added after the earlier reported cases) requires courts, in determining reasonableness of requirement for building or re‑building, to have regard to comparative public benefit or disadvantage produced by extending or diminishing accommodation. A landlord's pecuniary motive or private gain is subordinate to the question whether the intended work yields sufficient public advantage to offset the substantial disadvantage of displacing tenants into an already congested accommodation market.
Alternative means and burden on landlord: If extended accommodation can be secured by methods that do not dislocate tenants, ejectment is not proper. If the landlord insists on a particular project that leads to ejectment but fails to show that less injurious methods are impossible, the court cannot treat the tenants' premises as reasonably required for demolition/rebuilding.
Temporal scope and illusory advantage: The Court recorded two competing views — one (advanced by Mr. Sen) that comparative advantage should be confined to the lifetime of the temporary Act, and another (advanced by Mr. Sannyal) that comparative advantage need not be so strictly confined but that an unreasonably long construction period may render the advantage illusory. The Court did not decide this point finally because the lower courts had not taken evidence on the likely time for completion.
Procedural unfairness and remand: The Court found that the trial court and the appellate court did not properly consider the defendants' engineer's evidence and that the plaintiff was surprised by aspects of the defendants' presentation (not having had their case put to the plaintiff's engineer). Given the importance of the defendants' technical evidence in answering the landlord's claim, the Court considered it necessary to remit the cases to the trial court for a fresh and complete inquiry — including further evidence, cross‑examination of the defendants' engineer if necessary, and evidence on the likely time for completion of the proposed work.
Costs and expedition: Because the defendants surprised the plaintiff with their evidence, the Court ordered the defendants to pay the costs of the suits up to this stage (including these appeals), with further costs to abide the result. The Court also instructed that, given the short remaining duration of the temporary Act, the inquiry should be completed promptly and the records be sent down without delay.

Holding and Implications

Holding:

Cases remitted to the trial court for further inquiry on the question of comparative advantage and disadvantage and on the time within which the proposed construction may reasonably be completed.

Implications and direct consequences:

The appellate judgments of the courts below are set aside to the extent that they failed to investigate and decide the issues identified above; the nine matters must go back to the trial court for further evidence, cross‑examination (including of the defendants' engineer), and determination of whether the landlord's proposed works will yield comparative public advantage sufficient to justify ejectment of tenants.
The defendants (tenants) are ordered to pay the costs of these suits up to this stage, including costs of these appeals; further costs will abide the final result following the remand inquiry.
Other points expressly not contested in this Court remain final between the parties.
Given the limited remaining duration of the temporary Act, the Court directed that the trial court should complete the further inquiry as early as possible and that the records be sent down without delay.
No new broad precedent was laid down on unresolved points (for example, whether comparative advantage must be confined to the lifetime of the Act or how to treat advantages that arise after long construction periods); the Court expressly declined to decide those questions on the present record and required additional evidence first.

Summary prepared strictly on the basis of the text of the provided opinion. No information not contained in the opinion has been added.

Show full summary ...

T.D Nandi And Ors. v. Messrs. Manot & Co. Ltd.

The Judgment of the Court was as follows:

1. These are nine second appeals against the appellate judgment of the Special Bench, Court of Small Causes, Calcutta, affirming that of the 6th Judge of the same court in connection with nine ejectment suits filed by the same plaintiff against nine different tenants with respect to premises in the same building under the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950.

2. It is not disputed that there are as many as about 50 tenants in the same building, No. 40, Strand Road, Calcutta, an old building which was purchased at considerable cost by the landlord respondent. He served notices under section 106 of the Transfer of Property Act on all these tenants and in order to meet the bar under the Rent Control Act put forward the claim that he reasonably required the premises for building and re-building. I must begin with pointing out that both the courts below did not notice that under section 12(1), second proviso (h), premises do not always mean the building. Premises have been defined in the Act as “any building or part of a building or any hut or part of a hut let separately” and includes certain other things so that in each of these cases the proof must relate to the premises let separately and not to the en tire building. In the statement of the case the trial court says: “on the ground that the landlord reasonably requires the entire premises for the purpose of building a new five-storied structure after dismantling the present antiquated, dilapidated and dangerous building.” The appellate Court again says the same thing: “the plaintiffs reasonably required the entire premises No. 40. Strand Road, Calcutta, for the purpose of building a new five storied structure after demolishing the present building which is very old and is in a dangerous condition.” It is clear from a perusal of the judgments of both the courts below that they have taken great pains to decide whether the landlord honestly wanted to demolish the entire old building and construct a new five-storied building. Both the courts in deciding upon comparative advantage and disadvantage have devoted their attention to the question in issue whether a new five-storied building would be a better one having all modern amenities and as a five-storied building greater accommodation than the old building now existing.

3. It may be made clear that the plaintiff landlord first had the entire building examined by an engineer, Mr. S.C Basu of Messrs. A.K Sarkar and Co., Builders Ltd., who gave a written report that the entire old building was capable of being repaired at a cost of about Rs. 1,00,000 but whether it should be repaired or pulled down and re-built he left to the decision of the landlord. In court in his examination he was asked for his opinion and his opinion was that on the old building as it stood no five-storied structure perhaps could be raised without demolishing the building altogether and re-building it entirely. He did not go into the question as it appears now, and if I may say so, neither of the Courts below have gone into it, whether all the proposed extended accommodation could be secured, though perhaps not all the amenities, by keeping intact the present building, as it stood, with certain additional safeguards. This aspect of the question was not considered by the plaintiff's engineer and Mr. Sanyal's contention has “been that this view of the case was not put to the plaintiff's engineer when he was in the box. Certain evidence was given by Mr. Guin, a contractor, and at the first view it appeared that he went in his evidence beyond what the engineer's report showed.

4. On behalf of the tenants Mr. K.N Sinha was examined. The courts below have considered him a qualified engineer and his opinion was, as far as I am at present concerned, that on the old building, as it stood, additional structure could be raised so that the extended accommodation, which was being put forward as a ground of ejectment, could be secured on the existing building without dislocating any of the tenants now in the building by providing framed structure either of steel or reinforced concrete and he pointed out that such construction was going on in the neighbourhood at Tiretta Bazar. Therefore as far as the section of the act is concerned, his evidence is more to the point, His evidence shows that there need be no comparative disadvantage because of want of accommodation for the present tenants but the comparative advantage of more extended accommodation may be secured at the same time. On the other hand, the case as put forward by the plaintiff was that for the purpose of securing the extended accommodation, which is the public advantage put forward, it is absolutely essential that there should be dislocation of the tenants and the entire demolition of the old structure. Certainly of the two opinions if the opinion of Mr. Sinha on behalf of the defendants is a correct opinion then perhaps a decree in ejectment may not be in consonance with the law as if now stands.

5. Mr. Sanyal has conceded that under the present law, i.e, the Act of 1950, the decisions reported in B.D Pudumji…Defendant v. Dinshaw Manekji Petit…Plaintiff . (1) (22 B.L.R 808) and in Bhutan Singh v. Ganendra Kumar Roy Choudhury (2) (84 C.L.J 157), cannot be considered as proper subsisting authorities on the interpretation of the section. Bona fide requirement in the sense that from his own pecuniary motive of gain a landlord sincerely desires to pull down a building and re-build a larger structure is not the proper point for consideration under the law as it now stands. An explanation has been added statutorily after the decision in 84 C.L.J 157 above referred to, that the court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation. So the question of cost, gain or any other economic motive of the landlord must be subordinated to the question whether the thing which is intended to be done will have the comparative advantage of extended accommodation sufficiently great to offset the disadvantage of dislocating persons already in occupation and in throwing them on to a very congested market for securing further accommodation. If the public benefit of extended accommodation cannot be secured without causing great disadvantage to the tenants but not great advantage to the public, (not the landlord), the Court will not allow a building project by a landlord which must lead to the ejectment of the tenants from their different premises in the building. If the same extended accommodation may be secured even in ways other than that by which the landlord intends to secure the same, ejectment is not proper. In other words, if there can be extended accommodation in some particular way without much disadvantage to the tenants and if the landlord is not either willing to accept such a way of extending accommodation, or the landlord fails to show that this is not possible in the way it is alleged to be capable of being done and the landlord insists upon his own particular project which may be more paying to him but which will cause ejectment of the tenants, then the court cannot consider the premises of those tenants as being reasonably required for building and re-building. There was much argument in the present case that the comparative advantage and disadvantage of building and re-building must also be confined to the lifetime of the present Act. It was urged by Mr. Sen that this is a temporary measure, and the comparative advantage and disadvantage the Legislature in a temporary measure was considering, was the comparative advantage and disadvantage within the lifetime of such temporary measure. In support of this view, Mr. Sen has drawn attention to section 15 of the Act specially to clause (2) of the same. Something may be said in favour of Mr. Sen's contention. His contention also was that if the comparative advantage by way of extended accommodation was to come after the Act had expired then the penal clause under clause (2) will be absolutely inapplicable. Further when the whole object of the Act was to meet a very grave and critical situation in Bengal owing not only to war conditions, as in the previous Acts, but to influx of waves of refugees which has continued after 1946 even up to the present day, the Act will have to be interpreted on the background of the present situation and al so taking into account all attempts by the Government with the aid of legislation in every sphere to restrain ejectment so that congested conditions as regards accommodation may not become absolutely un manageable.

6. Mr. Sannyal has argued that any building construction which will take an unreasonably long time certainly will be an illusory advantage and is not within the section but be is not willing to accept the contention that the comparative advantage must be wholly within the lifetime of the Act. There is also something to be said in favour of Mr. Sannyal's contention. Mr. Sannyal's contention is that if the construction is to be completed not within an unreasonable time then the advantage is not illusory. I have stated the two views but it is not necessary for me in the present case at this stage to give any final decision on this point of law, because none of the two courts below have come to any conclusion as to whether the building operation as intended to be undertaken can be completed within such a reasonable period as may be considered as not making the proposed extended accommodation merely an illusory advantage even if I accept Mr. Sannyal's contention. The courts below were only concerned with the question whether the plaintiff had a purse long enough to finance the project in view of a decision under the 1948 Act, but apart from consideration of money question other considerations arise in these days or restriction of materials, difficulties of labour, etc., in connection with construction of buildings.

7. It is therefore clear that the case, as put forward through the engineer of the defendants, if correct, may be a complete answer to the plaintiff's claim to eject these ten ants whatever may be said about the plaintiff's intention of having a beautiful modern building with all latest amenities. Such architectural beauty or advantages in amenities will not be the guiding principle in considering reasonable requirement, but as I have pointed out, the proper principle is comparative advantage of extended accommodation as against throwing out of tenants to find accommodation in a highly congested accommodation market at a very critical time.

8. I have already pointed out that there was evidence on the defendants' side showing that from this point of view the plaintiff's requirement may not be considered by the Court as reasonable requirement as far as these premises are concerned. That point of view has not been directly countered by evidence on the side of the plaintiff nor has it been gone into in the decision of either of the courts below. Mr. Sannyal rightly objected to the procedure adopted by the defendants in not putting their case straight to the plaintiff's engineer when he was on the box. It was in the trial court that the case on behalf of the defendants was put by their engineer and who also mentioned practical examples where such work was being done and there was no attempt in either the trial Court or in the Court of first appeal to meet that objection.

9. Obviously, on the plaintiff's side the proper weight of this evidence of the defendants' engineer was not appreciated. In view of the surprise thrown upon the plaintiff in the trial court the plaintiff certainly is entitled to have this matter gone into fully at length and if necessary, to cross-examine the defendants' engineer more on this point and to give such rebutting evidence as he may be advised to give. In short, this point raised by the defendants' engineer requires a careful consideration by the court before any decree in ejectment can rightly be passed.

10. Further, as I have pointed out, the question whether the work can be completed within a time which may even according to Mr. Sannyal's view of law be not unreasonable and make the advantage illusory, is one which should have been decided by the courts below. It must not be understood that I am giving my opinion at this stage whether Mr. Sannyal's view of the law on this point is right or Mr. Sen's view, but evidence to determine the question must be first taken.

11. The result therefore is that as the cases were not properly considered by the courts below they must go back to the trial court for going into the question of comparative advantage and disadvantage as raised in the evidence of the defendants' engineer in his report and if necessary take further evidence on the point from both parties and allow further cross-examination of the defendants' engineer and also for going into the question of time within winch the work may be reasonably expected to be completed.

12. In view of the just objection taken by Mr. Sannyal to the conduct of the defendants in keeping their trump card up the sleeve and taking the plaintiff by surprise in the court below the defendants will pay the costs of these suits up to this stage Including these appeals.

13. Further costs will abide the result.

14. Other points, except the question of comparative advantage and disadvantage and the question of time of completion as explained in this judgment, will be final between the parties as they have not been contested in this Court.

15. In view of the time which these cases have taken and in view of the short duration left for this Act, before further enactment comes in it is desirable that the enquiry into the matter should be completed as early as possible.

16. Let the records be sent down without delay.

A.K.D.G

T.D Nandi And Ors. v. Messrs. Manot & Co. Ltd.

Structured Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff (Landlord) — Arguments

Defendants (Tenants) — Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

T.D Nandi And Ors. v. Messrs. Manot & Co. Ltd.

Comments