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Messrs. Soorajmull Nagarmull v. Messrs. Indian National Drug Co. Ltd. Opposite Party.

Calcutta High Court

Feb 9, 1955

Judgment

Subsequent
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Factual and Procedural Background

This opinion, delivered by Mookerjee, J., concerns a rule obtained by a landlord challenging an order of the Additional Rent Controller. The Rent Controller's order arose from an application filed by the tenant under section 38 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.

The Additional Rent Controller directed that the premises be repaired, specifically that the leaky roof be repaired, damaged iron rafters be replaced by good ones, and minor portions of the roof likely to collapse be renewed. In conclusion, the Additional Rent Controller held that the landlord was bound to make repairs to items Nos. 1, 2, 3, 4, 5 and 7 of the inspector's report (exhibit 1) and that those items fell within the purview of section 38(3) of the Act.

The landlord petitioned against this order. The landlord did not contest the directions in respect of items Nos. 4, 5 and 7 before Mookerjee, J., but objected to the directions concerning items Nos. 1, 2 and 3. The inspector's report referred to in the opinion bears the date 16th September, 1954. The court made the rule absolute in part: it upheld the directions as to items 4, 5 and 7, set aside the directions as to items 1, 2 and 3, and remitted the matter to the Rent Controller for a further enquiry about the manner in which the leaky roof (item 1) may be repaired. There was to be no order as to costs, and the order was to be communicated to the court below.

Legal Issues Presented

Whether section 38(1) and (2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 permit only "repairs" and prohibit directions for reconstruction or fresh construction by the Rent Controller.
Whether section 38(3) of the Act authorises the Rent Controller to direct measures that effectively require demolition and rebuilding (i.e., whether subsection (3) confers rights larger than those available under the ordinary law).
Whether the specific directions issued by the Additional Rent Controller in respect of items Nos. 1, 2 and 3 of the inspector's report amounted to orders for substantial reconstruction beyond the Rent Controller's competence under section 38.

Arguments of the Parties

Petitioner's (Landlord's) Arguments

Under section 38 subsections (1) and (2) only "repairs" can be directed; reconstruction or fresh construction cannot be ordered by the Rent Controller.
Directions under section 38(3) likewise cannot amount to requisitions for demolition and fresh construction; the Rent Controller's directions must be limited in nature.
The landlord challenged the directions relating to items Nos. 1, 2 and 3 of the inspector's report as going beyond what the Act permits.

Respondent's (Tenant's) Arguments

The opening words of section 38(3) indicate that the Rent Controller may direct not only "repairs" but also "measures" necessary to render premises habitable or usable without great inconvenience.
Subsection (3)'s reference to examples such as "keeping them wind and water tight" suggests a broader remedial power than mere minor repairs.
The tenant relied on the broader wording of subsection (3) to justify the directions sought in the inspector's report.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a textual and practical analysis of section 38 of the Act and related provisions to determine the permissible scope of directions by the Rent Controller.

Interpretation of "wind and water tight": The court cited Stroud's Judicial Dictionary to explain that obligations to keep premises "wind and water tight" should be construed strictly in favour of the tenant; for example, broken window glass need not be replaced with new glass if boarding up or other means can exclude wet. The same standard applies to whichever party is charged with that obligation.
Meaning of "measures" in subsection (3): The court observed the tenant's argument that subsection (3) contemplates "measures" in addition to "repairs," but held that the examples immediately following—"like keeping them wind and water tight"—indicate the kinds of measures intended. The court also noted related statutory context: section 12 of the Act (proviso (h) to subsection (1)) contemplates eviction where premises are required for building or rebuilding by the landlord, which shows a legislative awareness and separate treatment of rebuilding.
Financial limits and scope: The court noted that subsections (1) and (2) limit repair expenses (not exceeding one twelfth of the annual rent under the proviso to subsection (2)), whereas subsection (3) carries no such financial limit. This distinction informed, but did not resolve, whether subsection (3) conferred broader substantive rights.
Comparison with ordinary law: The court considered whether subsection (3) confers rights larger than those under ordinary law (e.g., Transfer of Property Act duties). It stated that under the Transfer of Property Act a landlord may be bound to keep property tenantable where such a condition is incorporated in the lease, and that in general law it is not competent for a party to compel rebuilding or reconstruction. The court concluded that subsection (3) does not grant a tenant a higher right than would exist under ordinary law.
Practical and evidentiary considerations: The court emphasised that the directions as to items Nos. 1–3 would require substantial reconstruction — for example, removing and replacing damaged steel tee irons would entail taking out the roof or otherwise causing damage. The court found no evidence on the record about the feasibility of partial reconstruction or engineering possibility of the proposed works. The court suggested less intrusive alternatives for stopping leaks (e.g., special coatings) and observed that portions of a roof likely to collapse could be reported to the municipal Corporation; such structural rebuilding was outside the scope of section 38 and beyond the Rent Controller's competence.
Conclusion of analysis: Because the directions for items 1, 2 and 3 would amount to substantial reconstruction without evidentiary support and beyond the statutory competence of the Rent Controller, the court set those directions aside while upholding the directions concerning items 4, 5 and 7.

Holding and Implications

Holding: The Rule was made absolute in part. The court upheld the Rent Controller's directions as to items Nos. 4, 5 and 7 of the inspector's report (dated 16th September, 1954), but set aside the directions relating to items Nos. 1, 2 and 3. The matter was remitted to the Rent Controller for a proper enquiry into the manner in which the leaky roof (item 1) may be repaired. There was to be no order as to costs, and the order was to be communicated to the court below.

Implications:

The landlord is not required, on the basis of the Rent Controller's impugned order, to undertake the substantial reconstruction or replacement works described in items Nos. 1, 2 and 3 as originally directed; those directions have been set aside by the court.
The directions relating to items Nos. 4, 5 and 7 remain effective and binding as ordered by the Rent Controller.
The matter of repairing the leaky roof (item 1) is referred back to the Rent Controller for further enquiry focused on feasible methods of repair rather than an unexamined order requiring substantial reconstruction.
The court indicated that subsection (3) of section 38 does not confer authority to compel reconstruction or rebuilding beyond what is available under ordinary law; no broader novel right for tenants was recognised. The opinion therefore limited the practical scope of the Rent Controller's powers under that provision in line with ordinary-law principles and practical feasibility concerns.
No costs were awarded in this Court, and the order was to be communicated to the court below without delay.

Delivered by: Mookerjee, J. — Order recorded with initials A.K.D.G.

Show all summary ...

Mookerjee, J.:— This Rule was obtained by the landlord against an order passed by the Additional Rent Controller on an application filed by the tenant under section 38 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 The Additional Rent Controller has directed,

“……that the leaky roof must be repaired. Damaged iron rafters must be replaced by good ones and the minor portions of the roof which are likely to collapse should be replaced by way of renewal. Thus, in conclusion I think that the landlord is bound to make repairs to items Nos. 1, 2, 3, 4, 5 and 7 of the inspector's report marked exhibit 1 and these items will come within the purview of section 38(3) of the Act.”

2. The principal argument advanced on behalf of the petitioner in support of the rule is that under section 38, sub-sections (1) and (2) only “repairs” can be directed to be made by the Rent Controller. No reconstruction or fresh construction can be directed to be put up. Further, the directions which the Rent Controller can issue under sub-section (3) of section 38 of the Act also cannot be in the nature of requisitions for demolition and fresh construction. The direction given by the Rent Controller is not contested before me so far as items Nos. 4, 5 and 7 are concerned. The objection refers to items Nos. 1, 2 and 3 of the inspector's report. They are held by the Additional Rent Controller to be repairs or measures coming under sub-section (3) of section 38 without which the premises cannot be habitable or usable except with great inconvenience.

3. Under sub-section (3) of section 38 the premises must be kept “wind and water tight.” As to what is the implication of the provision may be explained with reference to Stroud's Judicial Dictionary, Third Edition, Volume 4, p. 3312 where it is observed that where the obligation is on the part of a tenant to keep his tenement “wind and water tight” it “ought to be constrned strictly in favour of the tenant. To put an example, it would seem that the broken glass of windows need not be replaced by new glass, but that an exclusion of wet by boards or other unsightly modes would be sufficient.” The same test may applied on such party as may be responsible to keep the premises “wind and water tight”.

4. It is, however, argued on behalf of the tenant that the opening words in sub-section (3) of section 38 indicate that it is not only repairs which are required to be done but as also “measures” without which the premises are not habitable or usable except with great inconvenience. It is, on the other hand pointed out and in my view rightly, that the nature of the repairs or measures to be undertaken are exemplified by the words following the expression above quoted, viz., “like keeping them wind and water tight”. Reference may also be made to the provisions contained in section 12 of the same Act. Under proviso (h) to sub-section (1) of section 12 of the Act liberty is given to the landlord to evict the tenant not otherwise evictible under the special law if the premises are reasonably required by the landlord either for the purpose of building or for rebuilding or for his own occupation, etc.

5. It is to be noticed also that the extent of the repairs which can be directed by the Rent Controller to be undertaken under sub-sections (1) and (2) of section 38 of the Act cannot under the proviso to sub-section (2) aforesaid exceed one twelfth of the rent payable for one year; the expenses to be incurred for repairs or measures to be undertaken under sub-section (3) however, are not limited to the amount as under sub-sections 1 and 2.

6. The principal point to be decided, therefore, in this state of the provisions contained in the different parts of the Act is whether sub-section (3) of section 38 gives a right which is larger than the rights given under the ordinary law. Under the provisions of the Transfer of Property Act, it is the duty of the landlord to keep the property in a tenantable condition if there is such a condition incorporated in the lease. In certain other cases the liability is that of the tenant. What is the nature of the measures which can be compelled by one as against the order? It appears that under the general law it is not competent for a party to compel rebuilding or reconstruction, and I do not think that the provisions contained under sub-section (3) of section 38 gives any higher right to the tenant than what are to be found in the ordinary law.

7. It is next to be pointed out that the directions given by the Rent Controller cannot be given effect to without making very substantial reconstruct tion. It is inconceivable how damaged steel tee irons can be taken out of a roof and replaced by new ones without taking out the roof above it, or, at least damaging the same. If there are separate sets of tee irons for each one of the rooms, the roof over that particular room must be taken out. Consolidating a part of one roof under which there are separate rooms is also an engineering venture which may or may not be possible in particular cases. There is no evidence on the record about the feasibility of such partial reconstruction. If the roof is leaking the landlord may be called upon to stop the leaks and that can be done either by having a special coating over the roof as is now available or feasible or by some other means. If there is any portion of the roof which is likely to collapse, that is a matter which may be reported to the Corporation for taking necessary steps as against the defaulting party. But it is outside the scope of section 38 of the Rent Control Act, and beyond the competence of the Rent Controller.

8. This Rule is accordingly made absolute in part.

9. The directions given by the Rent Controller, so far as items. Nos. 4, 5 and 7 of the Inspector's report, dated the 16th September, 1954, must stand. The directions given about items Nos. 1, 2 and 3 must be set aside. The matter will be placed before the Rent Controller again for necessary directions after proper enquiry as to the manner in which the leaky roof (item 1) may be repaired.

10. There will be no order for costs in this Court.

11. Let this order be communicated to the Court below without delay.

A.K.D.G