KALI KUMAR MONDAL v. GOBINDA CHANDRA BASU — 1980 DIGILAW 251 (CAL)

A. K. SEN, B. C. CHAKRABARTI ( 1 ) THIS Rule arising out of an application under Section 34 of the West Bengal Premises Tenancy Act was obtained by the tenant petitioner and is directed against an appellate order passed by in Misc. Appeal No. 154 of 1977 of the First Court of the learned Additional District Judge, Burdwan. ( 2 ) THE petitioner is a tenant under the opposite party at a monthly rental of Rs. 60/ -. A suit for eviction of the petitioner is pending in the Court of the Munsif being Title Suit No. 202 of 1974. The premises is dispute being very old and dilapidated the tenant-petitioner filed an application before the Rent Controller for effecting repairs at an estimated cost of Rs. 1318/- The application was contested by the opposite party landlord. The Rent Controller after having held an enquiry in terms of Sub-Section (1) of Section 34 found that thorough renovation of the building was necessary and passed an order in favour of the petitioner to the following effect: ?i allow the tenant to effect repairs as per his estimate on the condition that he would get relief of six months rent within a financial year or in other words the tenant will deposit half the monthly rent till the recovery of the repairing costs is fully satisfied?. ( 3 ) THE opposite party landlord being aggrieved by the order preferred an appeal. The learned Additional District Judge by his order dated November 7, 1978 set aside the order of the Rent Controller which is under challenge upon a finding that under Section 34 of the West Bengal Premises Tenancy Act the Rent Controller could have allowed only a sum of Rs. 360/- which was the rent for six months and which could be spent on repairs in any year. Since, however, the Rent Controller allowed a sum of Rs. 1318/- and since there was no indication that the tenant agreed to bear the expenses in excess of Rs. 360/-, the order of the Rent Controller was found to be wrong and in that view of the matter the learned Additional District Judge allowed the appeal and set aside the order. ( 4 ) BEING aggrieved the tenant-petitioner has filed the present revisional application. 360/-, the order of the Rent Controller was found to be wrong and in that view of the matter the learned Additional District Judge allowed the appeal and set aside the order. ( 4 ) BEING aggrieved the tenant-petitioner has filed the present revisional application. The only point urged on behalf of the petitioner is that the learned Additional District Judge has misread and misinterpreted the provisions of Section 34 of the West Bengal Premises Tenancy Act. This at once takes us to a consideration of the provisions of Section 34, and more particularly sub-section (2) and the provisions thereto. Sub-section (2) provides that if after service of notice the landlord fails to show proper cause or neglects to make such repairs the tenant may submit to the Controller an estimate of the cost of such repairs and may apply to him to effect such repairs. Thereupon, the Controller may, after making such enquiries as may be necessary, permit the tenant to make such repairs and it shall thereafter be lawful for the tenant to make such repairs and to deduct the cost thereof which shall in no case exceed the amount so specified from the rent or otherwise recover it from the rent otherwise recover it from the landlord. This provision, however, is subject to two provisos. Firstly, that the amount so deducted or recoverable in any year shall not exceed one half of the rent payable for the year. The second proviso lays down that if any repairs not covered by the said amount are necessary in the opinion of the Controller and the tenant agrees to bear the excess cost himself the Controller may permit the tenant to make such repairs. ( 5 ) BEARING these provisions in mind let us now look at the facts of the case which are not very much in dispute. The tenant pays a rent of Rs. 60/- per month. The total amount representing the rent for one half of a year comes to Rs. 360/ -. The tenant submitted an estimate of Rs. 1318/- and the Rent Controller after holding an enquiry but without ascertaining whether the tenant was agreeable to bear the expenses in excess of Rs. The tenant pays a rent of Rs. 60/- per month. The total amount representing the rent for one half of a year comes to Rs. 360/ -. The tenant submitted an estimate of Rs. 1318/- and the Rent Controller after holding an enquiry but without ascertaining whether the tenant was agreeable to bear the expenses in excess of Rs. 360/-, permitted the tenant to effect the repairs as per his estimate on condition that the tenant will deposit half the monthly rent till the recovery of the repairing cost is full satisfied. This order appears to us to be clearly in conflict with the provision contained in the provisos to sub-section (2) of section 34. The learned Advocate for the petitioner, however, contended that there is no limitation or restriction prescribed in the main enacting provision of sub-section (2) restricting the quantum of expenses to be sanctioned or requiring the tenant to agree to bear the amount in excess of six months' rent. His Contention, therefore, is that the provisos could not restrict the operation of the main enactment. The contention of the learned Advocate would mean that any large amount may be spent with the permission of the Controller and recovered in installment spread over several years at the rate of half years rent in each year. That this is not so is clarified by the second proviso. It is not permissible to construe the main part of the section in such a way as to render a proviso to the action redundant. Maxwell on the interpretation of Statutes (12th Edn. p 190) lays down ?if a proviso cannot reasonably be constructed otherwise than as contradicting the main enactment, than the proviso will prevail on the principle that it speaks the last intention of the makers. ? Therefore, it would be clearly wrong to contend that the main enactment must prevail over the proviso. Such a contention is opposed to the accepted principles of interpretation. ( 6 ) THE learned Rent Controller passed the order in this case relying on the first proviso but completely ignoring the second. In the result, the order that has been passed has come into conflict with the second proviso. We have already indicated that the order in its plaint terms indicates as if the tenant would be entitled to recover the total sum of Rs. 1318/- spread over several years. In the result, the order that has been passed has come into conflict with the second proviso. We have already indicated that the order in its plaint terms indicates as if the tenant would be entitled to recover the total sum of Rs. 1318/- spread over several years. Since, however, the tenant did not agree to bear the sum in excess of Rs. 360/- the Rent Controller could not have sanctioned the sum of Rs. 1318/ -. To the extent the sanction exceeds Rs. 360/- the order was clearly wrong. ( 7 ) THE learned Additional District Judge while correcting the order has himself fallen into an error. He was right in holding that the second proviso was attracted to the case but then he make the mistake is setting aside the entire of the Rent Controller. The order of the Rent Controller is sustainable to the extent of Rs. 360/- only. The view of section 34 as we have just now expressed was also taken in an earlier decision of this Court in the case of Sudhir Ranjan -vs- Taraprosad 1959 CLJ 23. ( 8 ) SUBJECT to the modification that the order of Rent Controller is sustainable to the extent of Rs. 360/- only the revisional application is liable to fail. The order impugned is modified to the extent as indicated above. There will be no order as to costs. Anil K. Sen, J. I agree. Rule dismissed with modification.