MAHANANDA DAS KARMAKAR Vs. BISWANATH DEY
HIGH COURT OF CALCUTTA
MAHANANDA DAS KARMAKAR
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S.N. Mallick, J. -
(1.)The instant Revisional Application under Article 227 of the Constitution of India has been preferred by the Appellant -Petitioner against the Order dated November 19, 1991 passed by the Learned Additional District Judge, Second Court, Midnapore in Misc. Appeal No. 119 of 1989 affirming the Order dated September 27, 1989 passed by the Learned Rent Controller, Ghatal in House Rent Case No. 5 of 1978 brought by the present Petitioner under Sec. 18A(2) of the West Bengal Premises Tenancy Act, 1956 for putting him in possession of the disputed premises. The application has been contested on behalf of the opposite parties No. 1 to 5, the erstwhile landlords of the present Petitioner in respect of the disputed premises. The following are the admitted facts on record which may be taken into consideration for the purpose of proper adjudication of the instant Revisional Application. The OP -landlords filed an eviction suit being ejectment suit No. 127 of 1964 against the present Petitioner which was decreed up to Second Appeal preferred by the Petitioner before this High Court. It may be mentioned that Second Appeal before this High Court preferred for this first time being S.A. 1605 of 1966 was disposed of on May 19, 1971 and the High Court sent back the case on remand to the lower Appellate Court for determination as to whether the Opposite Parties reasonably required the suit premises for their own use and occupation and also for building and constructions by taking additional evidence and as to whether such building or alteration could be carried out without the premises being vacated and whether the opposite parties No. 1 to 5 had any reasonably suitable accommodation elsewhere. After remand the lower Appellate Court by its judgment dated November 4, 1971 again dismissed the Appeal and held that the suit premises was reasonably required by the opposite parties for building, re -building and also for their personal use and occupation and that such building re -building could not be effected without the premises being vacated and that the opposite parties had no other reasonably suitable accommodation elsewhere. Another Second Appeal being S.A. No. 382 of 1972 was preferred by the present Petitioner against the aforesaid judgment and decree of the First Appeal Court which was also dismissed by R.N. Bhattacharyya, J. on January 8, 1975, however, after giving a direction under Sec. 18A of the West Bengal Premises Tenancy Act that the Plaintiffs i.e. the present opposite parties were to complete the construction after getting possession of the suit premises within two years. In the judgment dated January 8, 1975 it was held that the Plaintiffs i.e. the present opposite parties required the suit premises both under Ss. 13(1)(f) and 13(1)(ff) of the West Bengal Premises Tenancy Act. All the objections taken on behalf of the present Petitioner, the Appellant in the aforesaid Appeal, were overruled by this High Court in the judgment passed in the aforesaid Second Appeal and the Appeal was dismissed. In the aforesaid Second Appeal it was observed that 'the landlord has a right to use the building under the tenant's occupation not only for preservation of his business but, also for using the same to improve the business for making more profits'. The present Petitioner thereafter making reference to the direction given by the High court under Sec. 18A of the West Bengal Premises Tenancy Act filed the application under Sec. 18A(2) before the local Rent Controller for restoration of possession which was registered as H.R.C. case No. 5 of 1978. The Learned Rent Controller dismissed the said application after a contested hearing by his Order dated September 27, 1989. In substance the Learned Rent Controller was of opinion that the eviction decree passed against the Petitioner was under Ss. 13(1)(f) and 13(1)(ff) taken together. The Learned Rent Controller was of the opinion that the eviction decree was not passed only under Sec. 13(1)(f) of the Premises Tenancy Act in which case, the Petitioner might have a right of reentry under Sec. 18A(2) of the Act. The Learned Rent Controller dismissed the Petitioner's application on the ground that 'it will be travesty of justice to suggest that the present Petitioners are entitled to restoration' as the Petitioner was evicted on composite grounds of Ss. 13(1)(f) and (ff) of the West Bengal Premises Tenancy Act. The Appeal Court by the impugned order dated November 19, 1991 affirmed the judgment passed by the Learned Rent Controller agreeing with his reasons given by him for rejecting the Petitioner's application under Sec. 18A(2) of the Act. Both the Rent Controller and the Appeal Court after consideration of the materials on record were of opinion that the Plaintiff -opposite parties case of reasonable requirement under Ss. 13(1)(f) and 13(1)(ff) in respect of the disputed premises was upheld upto Second Appeal. I have no reason to differ in this respect while dealing with the instant Revisional Application. It has been submitted by Shri Roychowdhury that in view of the direction given by this High Court in Second Appeal under Sec. 18A(1) of the Act the present Petitioner is entitled to be put in possession in respect of the premises wherefrom he was evicted according to law. While hearing out this application there is little scope to enter into a question whether this High Court was right in giving a direction under Sec. 18A(1) of the Act while disposing of the Second Appeal when the grounds of eviction were both under Ss. 13(1)(f) and 13(1)(ff) of the Act. It has been admitted by Shri Roychowdhury that while passing a decree under Sec. 13(1)(ff) there is no scope for giving a direction under Sec. 18A(1) of the Act. But, according to him such a direction was obligatory when the Court passes a decree for eviction under Sec. 13(1)(f) of the Act. But, in our case it is quite clear that the decree of eviction was passed on composite grounds of 13(1)(f) and 13(1)(ff). In that view of the matter the present Petitioner cannot be said to be entitled to any benefit under Sec. 18A(2) of the Act even though this High Court in its judgment dated January 8, 1975 passed in the Second Appeal directed the present opposite parties to complete the constructions within a period of two years. The reason given by the High Court for giving such direction in the aforesaid judgment may be quoted below:
This direction is necessary specially because there may be cases when after obtaining decree the Plaintiff may sleep over the matter and delay construction.
Such direction in the aforesaid circumstances, in my opinion, does not and cannot give the present Petitioner any right of reentry under Sec. 18A(2) of the Act. In the impugned order the Appeal Court has observed that this High Court did not give any specific directions to the landlord to restore possession of the suit premises to the tenant after building and re -building was done in pursuance of the direction given under Sec. 18A of the Act. According to Shri Roychowdhury such a direction is neither contemplated nor prescribed by law and that as such on this ground the Appeal preferred by the present Petitioner could not be dismissed. I agree with Shri Roychowdhury on this point but in my opinion, this alone cannot be the ground for interfering with the impugned order under Article 227. The tenant has a right of re -entry when a decree is passed under Sec. 13(1)(f) of the Act only. But, in instant case it is found that the decree of eviction was passed against the present Petitioner on composite grounds of 13(1)(f) and 13(1)(ff) of the Act which was upheld by this High Court in Second Appeal. Under this circumstances I do not find any reason to interfere with the impugned order under Article 227 of the Constitution of India. The Revisional Application is dismissed. There is no order as to costs.
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