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2007 DIGILAW 718 (CAL)

Kartick Chandra Bhandari v. Ashim Kumar Samanta

2007-09-18

INDIRA BANERJEE

body2007
ORDER :- In this application under Article 227 of the Constitution of India, the petitioner, tenant has challenged an order dated 7th June, 2007 passed by the Civil Judge, (Junior Division), 3rd Court. Howrah in Title Suit No. 24 of 2005, whereby the Court has rejected an application filed by the petitioner, being the defendant in the said suit, under Section 35 of the West Bengal Premises Tenancy Act, 1997, hereinafter referred to as the 1997 Act, for permission to repair the suit premises at the cost of the petitioner. 2. The opposite party being the landlord initiated a suit for eviction of the petitioner being Title Suit No. 24 of 2005 in the Court of the Additional Rent Controller, Howrah. 3. The petitioner made an application in the said suit under Section 35 of the 1997 Act for permission to the petitioner to carry out essential repairs at the suit premises. In the said application, it was alleged that the suit premises were in urgent need of repairs, which the Opposite Party had not carried out in spite of demand. 4. The petitioner also made an application for local inspection of the suit premises under Order 39, Rule 7 of the Code of Civil Procedure. An Advocate Commissioner was duly appointed. The Advocate Commissioner submitted a report that the suit premises were in a dangerous condition. 5. On 28th April, 2005 Section 6 of the 1997 Act was amended with effect from 19th March, 2005 and power to pass decree for eviction and/or recovery of possession was conferred on the Civil Judge having jurisdiction in place of the Rent Controller. The suit for eviction was, therefore, transferred to the Court of the 3rd Civil Judge, Junior Division, Howrah along with all pending applications. 6. The application has apparently been rejected on the ground that the Civil Court had no power to entertain or adjudicate any suit or proceedings for repair in view of Section 35 read with Section 44 of the 1997 Act. Section 35 of the 1997 Act provides as follows : "35. 6. The application has apparently been rejected on the ground that the Civil Court had no power to entertain or adjudicate any suit or proceedings for repair in view of Section 35 read with Section 44 of the 1997 Act. Section 35 of the 1997 Act provides as follows : "35. Making of repair and taking of measures for maintenance of essential service - (1) If the landlord neglects or fails to make tenantable repair of the premises or to take measures for due maintenance of essential supply or service comprised in the tenancy, the Controller shall, on application made to him by the tenant in possession of the premises, cause a notice to be served in the prescribed manner on the landlord requiring him to make such repair or take such measures for due maintenance therein of the essential supply or Service. (2) If after the service of notice under sub-section (1), the landlord fails to show proper cause or neglects to make such repair or to take, within reasonable time, such measures, as the case may be, the tenant may submit to the Controller an estimate of the cost of such repair or measures with application for permission to make such repair or take such measures himself, and thereupon the Controller may, after giving the landlord an opportunity of being heard and after considering such estimate and making such inquiries as may be considered necessary, by order in writing, permit the tenant to make such repair or take such measures at such costs as may be specified in the order. Explanation : "Essential supply or service" shall have the same meaning as in Explanation 1 to sub-section (5) of Section 27. 7. Mr. Mitra appearing on behalf of the petitioner cited the judgment of Chittatosh Mookerjee, J. in Bakul Rani De v. Nani Bala Debi, reported in 86 CWN 943. Dealing with Section 34 of the West Bengal Premises Tenancy Act, 1957, which is somewhat similar to Sec. 35 of the 1997 Act, the Court held : "The West Bengal Premises Tenancy Act, 1956 provides "for the regulation of certain incidents of tenancy of premises in Calcutta and some other areas in West Bengal. The said Act is a piece of welfare legislation which modifies to the extent provided therein the rights and duties of the landlord and tenants. The said Act is a piece of welfare legislation which modifies to the extent provided therein the rights and duties of the landlord and tenants. Under the general law the rights and liabilities of the lessor and the lessee in the absence of the contract or local usage are regulated by Section 108 of the Transfer of Property Act. The West Bengal Premises Tenancy Act has not make any express provision for ousting the Civil Court's jurisdiction to enforce the said rights and liabilities of the lessor and the lessee set out in Section 108 of the Transfer of Property Act. The West Bengal Premises Tenancy Act does not create altogether new liabilities of the landlord to make repairs or to take measures for maintenance of essential services but has prescribed new remedies for enforcement of the said civil rights as modified by the West Bengal Premises Tenancy Act. Therefore, the Controller's jurisdiction under Section 34 of the said Act in the matter of repairs and taking measures for maintenance of essential service is an additional remedy. The said section does not oust the Civil Court's jurisdiction to enforce the rights and obligations of the landlord and the tenant in the matter of effecting repairs and maintaining essential services. Thus the two remedies before the Controller and before the Civil Court are concurrent, i.e. cumulative." 8. The proposition of law laid down in the aforesaid decision, that Section 34 of the West Bengal Premises Tenancy Act, 1956 did not oust enforcement of the rights and liabilities of the lessors and the lessees under Section 108 of the Transfer of Property Act, 1882, would apply to Sections 35 and 36 of the 1997 Act. 9. In Bakul Rani's case, however, the proceedings for eviction were under the West Bengal Premises Tenancy Act, 1956, which did not contain any provision, similar to Section 44 of the 1997 Act, expressly barring the jurisdiction of the Civil Court in respect of matters which the Rent Controller was empowered to decide. 9. In Bakul Rani's case, however, the proceedings for eviction were under the West Bengal Premises Tenancy Act, 1956, which did not contain any provision, similar to Section 44 of the 1997 Act, expressly barring the jurisdiction of the Civil Court in respect of matters which the Rent Controller was empowered to decide. Section 44 of the 1997 Act provides as follows : "Save as otherwise provided in the Act, no Civil Court shall entertain any suit or proceeding insofar as it relates to fixation of fair rent in relation to any premises to which this Act applies or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court." 10. In view of the express bar of Section 44 of the 1997 Act, it can no longer be argued that the remedies before the Controller and the Civil Court are concurrent, in respect of matters covered inter alia by Sections 35 and 36 of the said Act. 11. The question before this Court is whether the expression 'proceeding' in Section 44 of the 1997 Act would include an interim application for repair and/or restoration of essential supplies, in a pending suit for eviction. The answer to this question, in my view, cannot but be in the negative. 12. The 1997 Act is a beneficent statute intended to protect the interests of the economically weaker tenants as well as the landlords. While the 1997 Act protects tenants against unreasonable eviction and exorbitant rent and makes provisions for maintenance of the rented premises in safe and habitable condition, with essential supplies, it also enables the landlord to inter alia obtain fair rent and to recover possession in certain contingencies. 13. The object of the 1997 Act, as stated in the preamble is to regulate certain incidents of tenancy of premises in Kolkata, Howrah and some other areas of West Bengal. The 1997 Act does not oust the application of the provisions of the Transfer of Property Act, 1882, not inconsistent with the 1997 Act, including in particular Section 108 of the said Transfer of Property Act. 14. The 1997 Act does not oust the application of the provisions of the Transfer of Property Act, 1882, not inconsistent with the 1997 Act, including in particular Section 108 of the said Transfer of Property Act. 14. In construing Sections 35, 36 relating to urgent repairs, and 44 of the 1997 Act, the Court is required to adopt a purposive interpretation, that advances legislative intent and not an interpretation that, in effect, defeats the legislative intent. 15. There can be no doubt, that the intention of the legislature is to be gathered from the language of the statute. Thus, when the language used in the statute is clear and unambiguous, it is not for the Court to speculate the probable intention of the legislature, ignoring the words used in the statute. 16. The expression 'proceeding' has, however, not been defined in the 1997 Act, or the General Clauses Act or the Civil Procedure Code. It has, thus, become necessary for this Court to interpret the expression 'proceeding' in Section 44 of the 1997 Act and ascertain the scope and ambit thereof. 17. When a word used in a statute is not defined in the statute itself, it is permissible to look into dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context, as it is a fundamental rule that the meaning of words and expressions used in a statute must derive their meaning from the context in which they are used. 18. The relevant meaning of 'proceedings' as given in the Concise Oxford English dictionary (Eleventh Edition) is 'action taken in a Court to settle a dispute'. 19. The meaning of the word, as given in Chambers 21st Century Dictionary, is legal action. The illustration of use of the term proceedings as given in the said dictionary is 'begin divorce proceedings'. According to the Oxford Advanced Learner's Dictionary (Seventh Edition) the word 'proceeding' usually used in the plural, is the process of using a Court of law to settle a dispute or to deal with a complaint. The examples given are of bankruptcy, divorce, extradition proceedings which, it hardly need be stated, are illustrative and not exhaustive. The illustration of the use of the term is, 'bring legal proceedings against somebody'. 20. The examples given are of bankruptcy, divorce, extradition proceedings which, it hardly need be stated, are illustrative and not exhaustive. The illustration of the use of the term is, 'bring legal proceedings against somebody'. 20. In the 1993 Edition of the New Shorter Oxford English Dictionary, the relevant meanings of the word 'proceeding' and/or proceedings have been given as 'the fact or manner of taking legal action, a legal action, and act done by authority of a Court of law, a step taken by a party in a case, a particular action or course of action, the business transacted by a Court'. 21. In Black's Law Dictionary (Eighth Edition) the meaning given of 'proceeding' is as follows : "1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a Court or other official body, a hearing. 5. Bankruptcy. A particular dispute or matter arising within a pending case - as opposed to the case as a whole." 22. In the case of Ram Chandra v. State of Uttar Pradesh ( AIR 1966 SC 1888 ) the meaning of the expression "proceeding" came up for consideration before the Supreme Court, in the context of Section 24(l)(b) of the Code of Civil Procedure. The Supreme Court held as follows : "The expression "proceeding" used in this section is not a term of art which has acquired a definite meaning. What its meaning is when it occurs in a particular statute or a provision of a statute will have to be ascertained by looking at the relevant statute." 23. In the case of M/s. K. J. Lingan and A. V. Mahayalam v. Joint Commercial Tax Officer, reported in AIR 1968 Madras 76, the Madras High Court held that the term "proceeding" is not a technical expression with a definite meaning attached to it, but one, the ambit of whose meaning is governed by the statute. Therefore, the meaning to be attributed to the word "proceeding" would depend upon the scope of the enactment wherein the expression is used and with reference to the particular context wherein it occurs. 24. Therefore, the meaning to be attributed to the word "proceeding" would depend upon the scope of the enactment wherein the expression is used and with reference to the particular context wherein it occurs. 24. In Reba Sircar v. Bisweswar Lal Sharma alias B. L. Sharma, reported in AIR 1980 Cal 328 ; a Division Bench of this Court held as follows (para 6) : "In Ganga Naicken v. Sundaram Aiyer, AIR 1956 Mad 597 , it has been observed that a 'proceeding' may in some enactment mean an action of that which initiates an action and in other enactments it may also mean a step in an action. The word 'proceeding' is defined in the Shorter Oxford Dictionary as 'doing, a legal action or process, any act done or by the authority of the Court of law.' In 'Words and Phrases, permanent Edition. Vol. 34, Page 142, a number of meanings taken from American decisions are given for the word 'proceeding'. There, it is said that the term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked (see M/s. K. J. Lingan v. Joint Commercial Tax Officer, AIR 1968 Mad 76 , Kochadai Naidu v. Nagayasami Naidu, AIR 1961 Mad 247 ). A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right-(1940) Law Lexicon of British India, Page 1022. It thus appears that a proceeding is a prescribed course of action for the enforcement of a legal right. In the instant case, the legal right was the right of the plaintiff to apply for a final decree. Such right was to be enforced by the making of an application as prescribed by R 5(3) of O. 34 of the Civil P.C. when this Court by its order stayed all further proceedings in the suit, the effect of it was that the action that would be taken for the passing of a final decree was also stayed. In other words, the filing of an application for a final decree was stayed. Even if the plaintiff filed an application for a final decree, the Court could not entertain such an application." 25. In other words, the filing of an application for a final decree was stayed. Even if the plaintiff filed an application for a final decree, the Court could not entertain such an application." 25. In the case of Gyan Chand v. Kunj Behari Lal, reported in 1977 (3) SCC 317 : ( AIR 1977 SC 858 ), the Supreme Court held that the expression 'proceeding' in Section 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as amended by the Rajasthan Ordnance 26 of 1975 would not include an application for Special Leave under Article 136 of the Constitution of India. The Supreme Court, however, found that the explanation to the aforesaid Section defined proceeding to mean suit, appeal or application for review for the purpose of the said Section. 26. In Babulal v. Hazarilal Kishorilal, reported in (1982) 1 SCC 525 (529) : ( AIR 1982 SC 818 ) the Supreme Court held as follows : "The word "proceeding" is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action of law, a legal action or process, any act done by authority of a Court of law, any step taken in a case by either party. The term "proceeding" is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a different meaning attached to it, but one, the ambit of whose meaning will be governed by the statute." In the aforesaid case the Supreme Court construed 'proceeding' in sub-section (2) of Section 22 of the Specific Relief Act, 1963 to include an application for execution and held that an application for amendment of the plaint could be made at any stage of the proceeding, including the stage of execution. 27. The dictionaries referred to above, suggest that in common parlance, in the context of adjudication, the term 'proceeding' which is often used in the plural, means an action before a judicial authority, be it a Court or a Tribunal to settle a dispute or a claim or to decide a complaint. The term would connote the entire course of action from the stage of initiation till the conclusion, and might depending on the context, include the various steps taken in the action. 28. The term would connote the entire course of action from the stage of initiation till the conclusion, and might depending on the context, include the various steps taken in the action. 28. A word in a statute cannot, however, always be construed in accordance with its dictionary meaning. To quote Krishna Aiyar, J. "Dictionaries are not dictators of statutory construction where the benignant mood of law and more emphatically the definition clause furnish a different denotation" (State Bank of India v. N. Sundara Money, AIR 1976 SC 1111 (1114). 29. The judgments referred to above lend support to the view that the expression 'proceeding' does not have a definite meaning, and is of wide amplitude. Its meaning is to be gathered by looking into the relevant statute, which is, in this case, the 1997 Act. 30. The term 'proceeding' being comprehensive, it might, as per its meaning as given in dictionaries, include even an interim application in a pending suit or proceeding. In legal parlance, however, such interlocutory applications are commonly referred to as interlocutory proceedings. 31. The dictionary meaning of the word 'proceeding' may not be adopted to interpret Section 44 of the 1997 Act, if the same involves reading the words 'including an interlocutory proceeding' into the section after the word 'proceeding'. 32. We have, therefore, to adopt that meaning which gives effect to legislative intent and advances the cause of justice, keeping in mind the settled principle of law that a clause which ousts the jurisdiction of a Civil Court is to be construed strictly. 33. It would be imperative upon this Court to carefully examine the other provisions of the 1997 Act, ascertain the legislative intent and decide whether the term 'proceeding' was intended to include interlocutory proceeding, having regard to the scheme of the 1997 Act. 34. A perusal of the various provisions of the 1997 Act, and in particular Sections 4, 5, 6, 7, 13, 17, 27 to 36 and 44 make it amply clear that the expression 'proceeding' in Section 44 of the 1997 Act is to be construed as an independent action or proceeding. The expression would not include interlocutory proceeding for interim relief, in a pending suit. 35. The expression would not include interlocutory proceeding for interim relief, in a pending suit. 35. When an interlocutory application under Section 7(2) is filed in a pending suit under Section 6 of the 1997 Act, the Civil Court is bound to pass an order specifying the amount, if any, due from the tenant. Section 7(2) is attracted only when there is a dispute with regard to the rent payable by the tenant. 36. Implicit in the language and tenor of Section 7(2) is the duty of the Court to reconcile the said Section with Section 13 of the 1997 Act which provides that notwithstanding any agreement to the contrary no tenant shall be liable to pay to the landlord for occupation of any premises, any amount in excess of fair rent of the premises. 37. The Civil Court deciding an application under Section 7(2) is thus obliged to assess and determine the fair rent, taking into account the principles for fixation of fair rent as laid down in the said Act. 38. Yet, the power to determine fair rent has, under Section 17 of the 1997 Act, been conferred on the Controller and Section 44 of the said Act expressly bars the jurisdiction of Civil Courts to entertain any suit or proceeding insofar as the same relates to fixation of fair rent for any premises to which the 1997 Act applies. 39. If the term 'proceeding' in Section 44 of the 1997 Act were to be interpreted to include an interlocutory proceeding, it would be impossible to reconcile the said Section with Section 7(2) of the 1997 Act. 40. Moreover, even though the term 'rent' has not been defined anywhere in the 1997 Act, it would include all charges agreed to be paid by the tenant to the landlord including charges, if any, agreed to be paid by the tenant to landlord for essential supplies, such as water and electricity. 41. If a tenant disputes his liability to pay that part of the rent which constitutes charges for essential supplies, on the ground of want of essential supplies, the Civil Court might have to decide the issue whether in fact, there was any failure on the part of the landlord to effect essential supplies. 42. 41. If a tenant disputes his liability to pay that part of the rent which constitutes charges for essential supplies, on the ground of want of essential supplies, the Civil Court might have to decide the issue whether in fact, there was any failure on the part of the landlord to effect essential supplies. 42. Similarly in certain suits and/or proceedings for eviction, the immediate urgency of repairs to the rented premises to prevent loss of life and/or bodily injury, might be in issue. 43. It would be a mockery of law if the Civil Court were to arrive at a finding that essential supplies to the rented premises had been cut-off or that the rented premises immediately required repairs to avoid loss of life and or injury, but at the same time decline even interim relief to the tenant of restoration of essential supplies or of direction for immediate repairs by interpreting 'proceedings' in Section 44, to include interlocutory 'proceeding' and relegate a distressed tenant to an independent action before the Controller, that would necessarily involve notice upon the landlord, new pleadings and may be, a de novo hearing. 44. There could also be suits and/or proceedings in a Civil Court where the tenant claims protection of the 1997 Act, but the landlord disputes the applicability of the 1997 Act, for example, suits for declaration of tenancy and/or suits where the rent payable is in dispute. If 'proceeding' in Section 44 were to be construed to include 'interlocutory proceeding' a tenant involved in such a suit and/or proceeding, but in need of immediate repair, would perhaps have to incur the risk of a carnish, a balcony a wall or may be even the roof crashing over him, while the landlord and the tenant fought over the applicability of the 1997 Act. 45. The basic object of Section 35 of the 1997 Act is to provide a quick, less formal and less expensive remedy to tenants against the failure of landlords to maintain essential supplies to the tenanted premises or to keep the premises in a habitable and tenantable condition. 46. There can be no doubt that the Civil Court cannot entertain an independent action for fixation of fair rent, restoration and/ or maintenance of essential supplies, repair of the rented premises, or any other matter, which the Controller is empowered to decide. 47. 46. There can be no doubt that the Civil Court cannot entertain an independent action for fixation of fair rent, restoration and/ or maintenance of essential supplies, repair of the rented premises, or any other matter, which the Controller is empowered to decide. 47. On a proper interpretation of Section 44, independent action in respect of any matter which the Controller is empowered to decide, is to be initiated before the Controller. No Civil Court can entertain any suit or other proceeding, that is, independent proceeding relating to fixation of fair rent or any other matter which the Controller is empowered to decide. 48. Even if a suit is pending in a Civil Court, action might still be instituted before the Controller in respect of matters, the Controller is empowered to decide. In no circumstances can a Civil Court restrain the Controller from exercising jurisdiction under the 1997 Act. In respect of matters over which the Controller has jurisdiction, no order of injunction might be passed that would render proceedings before the Controller or an order passed by the Controller ineffective. 49. In other words, the Civil Court cannot pass an injunction restraining the tenant from obtaining supply of water or electricity or any other essential supply. Nor can the Civil Court pass an order of injunction stopping repairs to make premises covered by the 1997 Act tenantable. The Civil Court cannot also pass an order in respect of the quantum of rent except in exercise of power under Section 7(2) of the 1997 Act. 50. A provision of a statute which ousts the jurisdiction of a Civil Court is to be construed strictly. Had it been the intention of legislature that 'proceeding' in Section 44 of the 1997 Act should include interlocutory proceedings, legislature would have used the words 'other proceeding including interlocutory/interim proceedings' in the said Section, which the legislature has consciously not done, having regard to the scheme and spirit of the 1997 Act. 51. Mr. Mitra has also relied on the decision of this Court in Smt. Monisha Roy v. Sri Biplab Sengupta, reported in 2007 (2) CLJ 53 , where this Court set aside an order of the trial Court rejecting an interim application of the defendant-tenant on the ground of bar of Section 44 of the 1997 Act. 51. Mr. Mitra has also relied on the decision of this Court in Smt. Monisha Roy v. Sri Biplab Sengupta, reported in 2007 (2) CLJ 53 , where this Court set aside an order of the trial Court rejecting an interim application of the defendant-tenant on the ground of bar of Section 44 of the 1997 Act. The judgment was, however, rendered in the special facts and circumstances of the case where there was an order of status quo of the Civil Court in the pending suit and the tenant was facing an order of demolition. 52. In my view, when there is a pending suit the tenant has option under the 1997 Act, to either initiate independent proceedings before the Controller for appropriate orders for repair and/or for essential supplies or to make an interim application in the pending suit for grant of such relief. 53. It cannot have been the intention of Section 44 that tenants in urgent need of essential supplies and/or repair should have to take recourse to independent proceedings involving further expenses and delay by reason of engagement of new set of lawyers, requirement for service of notice, drafting of elaborate pleadings, de novo hearing and the like. It cannot also have been the intention of Section 44 that a tenant should be exposed to the risk of an apparently favourable decision, which might in effect be prejudicial. 54. For example, an order passed by the Controller directing the tenant to repair the premises and recover costs of repair might soon be followed by a judgment and decree of eviction of the Civil Court causing undue prejudice both to the landlord and the tenant. The Civil Court might refuse to pass an order for interim repair if the suit were nearing completion and the landlord had made out a strong case. 55. For the reasons, discussed above, the impugned order cannot be sustained and the same is set aside and quashed. The trial Court shall within 30 days from the date of communication of this order decide the application of the petitioner for repairs afresh in accordance with law and in the light of this judgment. 56. Urgent xerox certified copy of this order, if applies for, be supplied to the learned Advocates appearing for the parties subject to compliance with the requisite formalities. Petition allowed.