GAKUL CHANDRA PAL Vs. ANUPAMA SEN GUPTA
LAWS(CAL)-1961-9-10
HIGH COURT OF CALCUTTA
Decided on September 19,1961

GAKUL CHANDRA PAL Appellant
VERSUS
ANUPAMA SEN GUPTA Respondents

JUDGEMENT

- (1.) THIS Rule involves the interpretation of section 40 of the West Bengal Premises Tenancy Act, 1956. The applicant is the landlord of the premises concerned. The vicissitudes of this litigation are rather interesting. Originally, the landlord instituted a suit for ejectment against the tenants, the opposite parties herein, on the ground of default but failed to get any relief. At that stage the landlord did not plead that he wanted to rebuild the house concerned. Thereafter he instituted a second suit for ejectment, this time on the ground of rebuilding. This suit was decreed by the learned Munsif. On appeal the learned Subordinate Judge set aside the decree for ejectment whereupon the landlord preferred a second appeal which was successful.
(2.) NOTWITHSTANDING the said decree for ejectment, the landlord failed to commence any rebuilding of the premises within the time allowed under section 15 of the 1950 Act. Consequently the tenants applied for being restored to possession. Meanwhile, the Act of 1950 had expired. The suit for ejectment for building and or rebuilding was instituted on the 18th of August, 1952. The Act of 1950 was repealed on the 30th of March, 1956. It is no longer disputed that the Act of 1950 expired on the next day. That was the result of a decision reported in (1) 61 C. W. N. 263. On 27th July 1956 the Act of 1956 was amended by including section 40 as it stands. The decree for ejectment on the ground of building and/or rebuilding was passed on the 21st of August, 1958. On 6th February, 1959, the tenants gave up possession. It was not until the 24th September, 1959, that the Opposite Parties applied under section 15 of the Rent Control Act of 1950 for restoration of possession. The opposite parties soon discovered that the Act of 1950 having expired as far back as 31st of March, 1956, their petition for possession had to be amended. Accordingly on 21st of November, 1959, the application concerned was amended to mean an application under section 40 of the present Act. This application for restoration of possession was allowed by the Rent Controller on the 8th of August, 1960. On appeal by the petitioner the said order was confirmed by the learned Additional District Judge on 22nd of June, 1961. Thereafter, on 10th of July 1961 the present Rule was issued. There is no dispute that under section 15 of the 1950 Act a tenant had a right within 9 months of the vacating the premises, to ask for being restored to possession if the landlord failed to commence building or rebuilding within 6 months of his being in possession of the property. There is also no doubt that the suit for ejectment on the ground of building or rebuilding was instituted in August, 1952, when the 1950 Act was in force. The question nevertheless is whether after the expiry of the Act of 1950 the tenant could still be regarded having any right or remedy under section 40 of the new Act. The material part of section 40 is in the following terms:- "section 40 (1) The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (in this section referred to as the said Act), is hereby repealed. (2) Notwithstanding the repeal of the said Act:- (a) any proceeding pending on the 31st day of March, 1956, may be continued, or, (b) any proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment under the said Act and relating to the period before such repeal may be instituted (or enforced), as if the said Act had been in force (and had not been repealed or had not expired)" ; mr. Sen Gupta has contended that the words "and relating to the period before such repeal" must refer to a right or any remedy which was open to the tenant until the 31st of March, 1956. If the tenant had no such right under the old law and relating to the period before the repeal of the Act he could not apply under section 40 for being restored to possession.
(3.) AS soon as the ejectment suit of 1952 on the ground of building or rebuilding was instituted, the tenant came to have a right, however inchoate it might have been, to apply for being restored to possession if the landlord should fail to commence building and/or rebuilding within six months of his being in possession. It is true that the tenant could not initiate any proceedings for being restored to possession until after 9 months of his giving up possession. In my view, with the institution of a suit for ejectment under the provisions of the Act of 1950 the tenant came to acquire a right as well as a remedy provided under section 15 of the Act of 1950. Both the right and the remedy in such circumstances came to be preserved by section 40 of the Act of 1956. That being the position, the courts below were, in my view, right in ordering that the tenants be restored to possession. I must, in the result, dismiss the application and discharge the relative Rule with costs, hearing fee being assessed at three gold mohurs.;


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