CHAMPALAL PANDEY Vs. OFFICIAL TRUSTEE
LAWS(CAL)-1970-12-25
HIGH COURT OF CALCUTTA
Decided on December 11,1970

Champalal Pandey Appellant
VERSUS
OFFICIAL TRUSTEE Respondents

JUDGEMENT

S.K. Chakraborty, J. - (1.) A short and interesting point arises for determination in this Rule. It is as to whether a tenant can call upon his landlord who happens to be the owner of the premises to carry out repairs to the portion of the premises which are in actual khas possession of his sub -tenants and not in his own actual khas possession. Admittedly, the Petitioner is the tenant under the opposite party in respect of the entire premises No. 109 Old China Bazar Street, Calcutta, on a rental of Rs. 600 per mensem. Admittedly, also, he is in actual khas possession of a portion of the premises and the remaining portion is in the possession of sub -tenants. The Petitioner applied to the Rent Controller under Sec. 34 of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as the Act, for effecting certain repairs. There was the usual inspection by the inspector. But the Controller allowed only those repairs to be carried out which were called for in the portion of the premises in the actual khas possession of the tenant -Petitioner and disallowed the repairs to the other portion in the possession of the sub -tenant holding that under this section, the premises in the possession of the sub -tenants do not call for repairs at the cost of the owners. The Petitioner appealed to the learned Chief Judge of the Small Cause Court, Calcutta, and failed therein. Hence, this application. Sec. 34 runs as follows: The Controller shall, on application made to him in this behalf by any tenant in possession of any premises, cause a notice to be served etc. The term 'premises' has also been defined in Clause (f) of Sec. 2 of the Act and runs as follows: 'premises' means any building or part of a building or any hut or part of a hut let separately and includes.... The term 'tenant' has also been defined as a person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be, payable.... As the definition of these terms stands, the whole building would constitute the premises and tenancy of the Petitioner and he can call upon his landlord to carry out all the repairs as called for under Sec. 34 of the Act. There is no reason why we should import into this Sec. something which is not there and hold that the tenant must be in actual khas possession of the portion before he can call upon his landlord to carry out the repairs to that portion! One of the ordinary rules of interpretation is to the effect that we should not see in any statute something which is not there. The term 'possession' would include constructive possession and, in the circumstances, the order passed by the learned Rent Controller and the learned Appellate Court cannot be sustained.
(2.) Mr. Bankim Chandra Banerjee, learned Advocate for the Respondent, states that the sub -tenant have not made any claim for repairs. Actually, whether any repairs are called for or not is a question which has to be decided by the Controller and need not be agitated here.
(3.) The Rule is, accordingly, made absolute and the order passed by the Rent Controller and the learned Appellate Court, refusing repairs to the portion in the possession of the sub -tenants, is set aside and the matter is remanded back to the Rent Controller for determination in accordance with law and in the light of the observations made above.;


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