Kanika Devi And Ors. v. Amarendra Nath Roy Choudhuri And Ors.

The Judgment of the Court was delivered by

Bachawat, J.:— This is an appeal under section 15 of the Letters Patent arising out of a suit for eviction of a tenant from the property specified in schedule ka to the plaint being a portion of premises No. 134-1.A, Ashutosh Mukherjee Road. Originally the suit property belonged to the plaintiffs Nos. 2 and 3 and the defendant No. 1 was a tenant under them. A portion of the suit property consisting of a two-storeyed building having two rooms on each floor and described in the schedule kha to the plaint was conveyed to the plaintiff No. 1 by a kobala dated April 30, 1955. The plaintiffs Nos. 2 and 3 however continue to be the owners of the remaining portion of the suit property described in schedule ga to the plaint. Inspite of this purchase by the plaintiff No. 1 the integrity of the tenancy was not broken. The plaintiffs Nos. 1, 2 and 3 as joint landlords gave to the defendant No. 1 the requisite notice to quit and thereafter on October 7, 1955 instituted this suit asking for ejectment of the defendant No. 1 from the entirety of the suit property specified in schedule ka.

2. The courts below have concurrently found that the plaintiff No. 1 reasonably requires the portion of the premises specified in schedule kha for her own occupation and also that the plaintiffs Nos. 2 and 3 reasonably require the portion of the premises specified in schedule ga for building and re-building. On this finding the trial court held that the plaintiffs have made out the ground for ejectment specified in clause (h) of the proviso to section 12(1) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The trial court accordingly decreed the suit. The first appellate court affirmed this decree. On second appeal Renupada Mukherjee, J., set aside the judgments and decrees of the courts below and dismissed the suit. The plaintiffs have now preferred the present appeal.

3. The question in this case is whether the tenant is protected from eviction by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The solution of the question depends upon the true construction of the clause (h) of the proviso to section 12(1) of that Act. Mukherjee, J. held that the suit must fail as all the landlords were not jointly interested either in the occupation of the kha portion of the premises or in the building or re-building of the ga portion of the premises. He held that the landlords cannot get the benefit of the clause (h) of the proviso to section 12(1) unless it is proved that all the landlords are interested in the ground of requirement on which the claim for eviction is based. He thought he should follow the principle underlying the case of McIntyre v. Hardcastle, (1) (1948) 2 K.B 82, a decision given under the English Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. I find however that the ground upon which Mukherjee, J. based his decision can no longer be sustained. In Tarak Chandra Mukherjee v. Ratanlal Ghosal, (2) 1959 C.L.J 136, K.C Das Gupta and B.K Guha, JJ, held that we should not guide ourselves in matters of this kind by the views of English Judges interpreting the English statutes and that where out of a number of persons constituting the body of the landlords, one landlord reasonably requires the premises for his own use and occupation, that should be considered to amount to a requirement on the part of all the landlords. This decision was followed by another Division Bench consisting of Renupada Mukherjee and K.C Sen, JJ. in F.A 188 of 1959(3) (M. Levi v. Dinendra Nath Das) an unreported case decided on 8-1.-1960. In the last case Renupada Mukherjee, J. expressed an opinion which is contrary to the ruling given by him in the judgment under appeal. It is true that where there are more than one landlord, the word “landlord” in clause (h) of the proviso to section 12(1) must be read as “landlords” and the expression “for his own occupation” therein must be read as “for their own occupation.”; nevertheless in the light of the decisions of this Court the word “their” in the last expression must be read as meaning “of them or of any one or more of them” so that the requirement of the premises by the landlords for the occupation of one or more of them is sufficient to bring the case within the clause.

4. In this Court a new point was argued on behalf of the respondent. It was contended that in order to bring the case within the clause (h) of the proviso to section 12(1) the landlords must either require the entire premises for their own occupation or they must require the entire premises for building or re-building. I am unable to accept this contention. The conditions of clause (h) are satisfied if the landlords require the entire premises on the grounds specified in the clause. The case is not taken out of the clause because they require a portion on one of those grounds and the remaining portion on another of those grounds. The requirement of a portion of the premises for their own occupation and of the remaining portion thereof for building or re-building is sufficient to bring the case within the clause. In such a case it may well be said that the landlords require the premises either for purposes of building or re-building or for their own occupation. It was urged that such a construction would be repugnant to the proviso to the clause (h) of the proviso to section 12(1) and also to section 15. It was contended that in view of the proviso to clause (h) of the proviso to section 12(1) where as in this case the requirement of occupation is satisfied by evicting the tenant from a part of the premises the whole of the remaining portion of the premises must be made available for the occupation of the tenant and that such a course is impossible where the landlords prevent the remaining portion from being so available by claiming it on the ground of building or rebuilding. I am unable to accept this contention. By virtue of the proviso, in a case where the premises are required by the landlord for his own occupation and such requirement is satisfied by evicting the tenant from a part only of the premises, the rest of the premises must be made available for the occupation of the tenant. But the proviso is limited to the case of “requirement of such occupation”. It does not extend to the case of requirement for building or re-building and where the rest is required by the landlord for that purpose, the tenant cannot by virtue of the proviso claim the right to continue in its occupation.

5. It was also contended that section 15 shows that the decree for eviction under clause (h) of the proviso to section 12(1) must be based either on the ground of occupation or on the ground of building or re-building and that such a decree cannot be based on one ground with regard to one portion and on another ground with regard to another portion. It was argued that section 15 contemplates either a failure to commence building or rebuilding within six months or a failure to occupy within two months and that the section cannot be applied to a case where the landlord occupies a part within two months and does not commence building or re-building within six months or to a case where the landlord commences building or rebuilding a portion within six months and does not occupy the other portion within two months. I am unable to accept these contentions. In my opinion section 15 can well be applied to a case where a decree for eviction is based on the ground that a part of the premises is required for occupation and the remaining part is required for building or re-building. In such a case the landlord must occupy the portion required for occupation within two months and also must commence the building or re-building of the other portion within six months of the date of vacation of the premises by the tenant. If he fails either to occupy the portion required for occupation within two months or to commence building or re-building of the other portion within six months the tenant would be entitled to restoration of the possession of the whole of the premises under section 15.

6. I have therefore come to the conclusion that the judgment under appeal is erroneous and should be set-aside. I propose that the appeal be and is hereby allowed, the judgment and decree passed by Renupada Mukherjee, J. be and is hereby set aside and the judgments and decrees passed by the trial court and by the first appellate court are restored.

7. We direct that the decree for khas possession he not executed for a period of five months from to-day conditionally upon the appellant depositing the sum of Rs. 25/-, month by month, in the trial court; the first of such deposit is to be made on or before the 15th July, 1961 and each succeeding deposit is to be made on or before the 15th of each succeeding month. In default of deposit of any of the aforesaid amounts, the decree for khas possession may be executed immediately. In any event, on the expiry of the period of five months from to-day, that is to say, after the 27th November, 1961, the decree for khas possession may be executed.

8. Each party will pay and bear his or her own costs both in this Court as also before Renupada Mukherjee, J.

Chatterjee, J.:— I agree.

9. In this suit for ejectment of the tenant-defendant by the plaintiff No. 1 on the ground of his “own occupation” of the portion of the premises sold to him and for the requirement of the plaintiffs Nos. 2 and 3 (plaintiffs Nos. 2 and 3 being formerly the owners of the premises) for building and re-buildmg, the principal question is whether such requirement of different portions of the same premises by different sets of landlords is permissible under the law.

10. One of the questions discussed is whether requirement of one or more of the entire body of landlords is a requirement of the “landlords” within the meaning of the Act. Renupada Mukherjee, J. has held in this case that it is not so and the appeal is against that decision. This matter was considered by Das Gupta, J. (then in our Court) and. Guha, J, in a case between Tarak Chandra v. Ratan Lal (2) reported in 1959 Calcutta Law Journal, 136. Their Lordships held that the requirement of some of the landlords would be the requirement of the “landlord” within the meaning of the Act. Renupada Mukherjee and K.C Sen, JJ. in a decision (not yet reported) (3) between Levi v. Dinen-dra Nath in F.A 188 of 1959 have followed the same decision.

11. P.N Mookerjee and N.K Sen, JJ. have found the same in (4) F.A 185-60 between Nakuleswar v. Pro-mode. Their Lordships have all dissented from McIntyre v. Hardcastle (1) (1948) 2 KB, page 82. The matter came up before me in (5) S.A 839-59 between Mrinal Kanti v. Probodh Chandra where in interpreting the words “any person” in the same section 12(h) I held that the requirement of any one of such persons would be sufficient. That decision is a decision of a single Bench. In view of the three decisions of three Division Benches aforesaid, I am afraid, it is difficult to agree with Renupada Mukherjee, J. in the instant case that the requirement must be the requirement, not merely of some of the landlords but of the entire body of landlords.

12. However, that question does not very much arise in this case. Here, the entirety of the premises was required by the entire body of the landlords—one portion for each and therefore the only question that arises is whether in considering such requirement, the Court may consider the conditions of section 12(h) to be fulfilled if the entirety of the premises is required by the entire body of the landlords, a part of it by one set for own occupation and the other part by the other set for building and re-building.

13. This leads us to the interpretation of the words “reasonably required either for purposes of building or rebuilding or for own occupation”. We have therefore to interpret the words “either……… or” in proviso (h) to section 12(1) within chapter II relating to suits and proceedings for ejectment, of the West Bengal Premises Rent Control Act, 1950.

14. The words “either………. or” are ordinarily used in a disjunctive sense and one alternative excludes the other. This is the ordinary grammatical meaning of the words “either…………or” but any reference to the case laws would show that the word “or” has been interpreted to mean “and” and “vice versa” in an equally good number of cases or, in other words, the word “or” is often used in a conjunctive sense also. But here, we are asked to interpret “either own occupation or building or re-building” more liberally.

15. It is clear therefore that normal grammatical meaning of the words would be against the claim of the plaintiffs appellants. It is, however, stated on behalf of the plaintiffs appellants that in the context of the proviso the words are to be construed liberally.

16. Penal statutes are strictly construed against penalty proposed and remedial statutes are liberally construed in favour of the remedy. This Act is stated to be in derogation of a common law right and hence penal. The Act grants a right to the landlord to eject the tenant under certain circumstances. “All men are endowed with certain inalienable rights and that among these are the rights of life, liberty and the pursuit of happiness”. (Art. 239, Crawford-The Construction of Statutes). The Act has limited the right of the landlord and therefore has taken away the rights of the landlord to happily enjoy his property. In this sense it is stated that the Act is a penal one and therefore it should be understood in such a manner as to minimise the penal provisions. On the other hand it is stated that the landlords out of greed having made out a condition which would drive the society to poverty for the aggrandizement of their interest, forced the legislature to remedy this evil upon the society and therefore this Act is a remedial Act and it must always be construed in favour of the tenants and never in favour of the landlords. A proper assessment of the Act would show that there are provisions for the benefit of the tenants. But there is a limit to it and after the limit the landlord is free to exercise his rights. In order to get the benefit of the Act the tenant must act within certain limitations. Once that limit is violated, the protection of the tenant goes. There is another limit up to which the landlord's rights are subjected to public benefit. Once that limit is reached, the landlord's rights are no longer subjected to public benefit; the landlord is then free to exercise his individual rights. “On one side of the dividing line, the statute should always be liberally construed in favour of the individual: end on the other side, the statute might perhaps be liberally construed in favour of the public. While public welfare may be a superior consideration beyond a certain point, it should not be so regarded any further than is clearly compatible with the democratic philosophy of government. There is undoubtedly a limit to the right of the society in general to regulate or limit individual rights although its boundary may not be well defined” (Crawford—Art. 239). The Act in question regulates the ordinary rights of the landlord but still there is a limit. In my opinion, the various provisos to section 12(1) define that limit, may not be very well defined limit, but still in substance the limit.

17. On the one side of the dividing line dehors the proviso, the section is to be construed as regulating the individual right for the benefit of the society and hence liberally on behalf of the tenant. On the other side of the dividing line are the “provisos” to section 12(1) and these are to be construed liberally in favour of the landlord as his rights are no longer regulated beyond this line. Hence, the question is not whether the Act is largely penal or remedial but the question is what is the legislative intent with regard to the particular provision with reference to the context of that provision?

18. What is the context? It is an Act to regulate or limit the individual right of the landlord. The Chapter in question deals with the individual right of the landlord to eject the tenant. The section in question limits that individual right; but not to the entire extent, only to a limit. Beyond that limit, the individual right, as in the proviso, works its way out. Here, the ‘proviso’ is in that part of such dividing line, which deals with conditions under which the individual right will not be regulated. In the context of a democratic society that provision should be liberally construed in favour of individual right which may act in an unhampered manner. The proviso was never intended to limit the landlord's right.

19. It should be construed liberally in favour of the landlord. As for example, once the tenant has sold a comparatively minor portion of the premises, the landlord gets his rights to eject. The tenant cannot say, “Construe it liberally and excuse me this time”, because the tenant has over-stepped the boundary and the matter is on the other side of the dividing line.

20. Once we arrive at the decision that this part of the section should be construed liberally consistent with the “democratic philosophy” of the Government, there is no difficulty in understanding the phrase “reasonable requirement for building or re-building or his own occupation” to include cases where the premises is required wholly for one purpose, jointly for both the purposes and a part of it for one purpose and the other part for the other purpose, because we have concluded that the clause is to be liberally construed.

21. I may add that this particular ‘proviso’ has been considered by three Division Benches of this High Court and they have all construed the words “the landlord” which would ordinarily mean the entire body of landlords to include any one or more of the landlords and not necessarily their entire body. Thus the proviso has been construed liberally in favour of the landlord at least thrice by three Division Benches. So it is difficult for us to say that some other part of the same proviso should not be construed in the same manner.

S.K.B