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2008 DIGILAW 409 (CAL)

Arati Ghose v. Satyanarayan Tripathi

2008-04-17

PINAKI CHANDRA GHOSE, SANKAR PRASAD MITRA

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JUDGMENT: SANKAR PRASAD MITRA J. (1) THIS is an appeal preferred by the appellant/landlord against the order/judgment passed by the learned 3rd Bench of West Bengal Land Reforms and Tenancy Tribunal, Calcutta under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 in O. A. No. 2627 of 2006 whereby the said Tribunal was pleased to set aside the judgment passed by the learned Judge, 5th Bench of presidency Small Causes Court in Ejectment suit No. 281 of 2004. (2) THE respondent-defendant herein is a tenant under the plaintiffs/ appellants in respect of two rooms on the first floor in the outhouses at north-east corner at premises No. 12, Shakespaere Sarani, Kolkata 700071 at a monthly rental of Rs. 100/ -. The appellants instituted a suit for eviction being Ejectment Suit No. 281 of 2004 against the respondent-defendant on the ground of nuisance, annnoyance and for the purpose of building and re-building in the suit premises. The learned Court below after hearing both the sides decreed the suit in favour of the appellants-plaintiffs directing the respondent-defendant to quit and vacate and deliver up peaceful vacant possession of the suit premises in favour of the plaintiffs within thirty days from the date of the order, in default the appellant will be at liberty to execute the decree as per the law. (3) AGAINST the said order the respondent-defendant preferred an appeal registered as O.A. No. 2627 of 2006 (LRTT) and the Tribunal after hearing both the sides was pleased to set aside the judgment passed in ejectment Suit No. 281 of 2004 and remanded back the case to the Court below directing the Court to render fresh judgment after allowing the parties to adduced evidence on the points raised in the body of the judgment and in accordance with law as expeditiously as possible preferably within three months from the date of receipt of the copy of the judgment along with the case record. It has been observed by the tribunal that the Court below while passing a decree did not mention the extent of construction already made in terms of the sanctioned plan and the period within which the building construction was to be completed as also the follow-up action to comply with the provision of section 11, sub-section (2) and (3) of the 1997 Act. It is also observed by the Tribunal that more important evidence is required to be brought on record for sustaining such decree of eviction and the Court below ought to have insisted upon some evidence to be brought on record as to the genuineness and veracity and also the mode of such veracity of the assertion by the landlord that the northern outhouses portion of the newly constructed building both for the first floor as also the ground floor had to be kept open to sky as per Building Rules 1990 of Kolkata municipal Corporation by examining the civil engineer from the corporation and like evidence. According to the Tribunal in the absence of such evidence it remains in the laymans domain as to the proposed requirements of the building rules and consequent requirement by the applicant tenant to vacate the suit premises. It is also found by the tribunal that at the request of the landlord one Commissioner was appointed but, evidence on record shows that due to alleged non-cooperation of the tenant the measurement of the suit room could not have been undertaken. In that view of the matter the Tribunal found that ascertainment of the extent of tenancy in the existing suit premises was relevant and the Court below should explore the possibility for ascertaining the nature and extent of tenancy in the suit premises. Thus, the Tribunal set aside the judgment passed by the learned 5th bench, of Presidency Small Causes Court and remanded back the matter to the Court below with further direction already mentioned in the foregoing paragraphs. (4) IN this appeal the plaintiffs/appellants have challenged the propriety of the order passed by the Tribunal and the basis thereof which according to them is perverse and arbitrary. It is alleged by the appellants that instead of setting aside the judgment passed by the learned 5th Bench, Presidency Small Causes Court, the Tribunal could have fixed the time limit within which the construction should have been completed. That apart, the Tribunal should have taken into account the conduct of the defendant-respondent who was guilty of not allowing the advocate-commissioner to take the measurement of the suit premises. (5) AS highlighted by Mr. That apart, the Tribunal should have taken into account the conduct of the defendant-respondent who was guilty of not allowing the advocate-commissioner to take the measurement of the suit premises. (5) AS highlighted by Mr. P. Chatterjee, learned advocate for the appellant, it appears that from the facts and circumstances of the case that the appellant has completed construction of the building on the basis of sanctioned plan and at the time of obtaining sanctioned plan perhaps an assurance was given by the appellants before the municipality that they would keep vacant space according to the building rules. However, the Tribunal on the basis of a perverse finding of fact remanded the case to the Court below with necessary direction indicating time limit for completion of the building in compliance with section 11 of the West Bengal Premises Tenancy Act 1997. It appears from the submissions made by the learned advocate Mr. P. Chatterjee, appearing for the appellants and Mr. Bagchi appearing for the respondent/defendant that on the basis of their submission Joint special Officers were appointed for taking out measurement of the suit premises and they have submitted a report in this connection. It is submitted by Mr. Chatterjee that since the suit premises has been measured and its identity has been established this Court should pass a decree in favour of the appellants/plaintiffs with necessary condition after setting aside the order so passed by the learned Tribunal. We have opened the report submitted by Joint Special Officers in the open Court and it appears that room No. 3, 4 and 5 is the suit premises in occupation of the defendant-respondent. The measurement of room No. 3 is 72. 35 sq. ft, room No. 4 is 107. 38 sq. ft. and room No. 5 is 38. 90 sq. ft., and the total area would be (72. 35 + 107. 38 + 38. 90 = 218. 63 sq. it. So we now get the total area of the suit premises which is in possession of the respondent-defendant and the Tribunal has accepted the ground of eviction on account of nuisance created by the respondent-defendant and accepted the service of statutory notice upon the respondent-defendant under the West Bengal Premises Tenancy Act 1997. 90 = 218. 63 sq. it. So we now get the total area of the suit premises which is in possession of the respondent-defendant and the Tribunal has accepted the ground of eviction on account of nuisance created by the respondent-defendant and accepted the service of statutory notice upon the respondent-defendant under the West Bengal Premises Tenancy Act 1997. In the circumstances, we are unable to accept the observation of the Tribunal and ultimate order passed by the said Tribunal directing remand of the case to the Court below with conditions mentioned in the order. It is clearly established in this case that construction of building has been completed by the appellants/plaintiffs in accordance with sanctioned plan and the appellants/plaintiffs could not procure the completion certificate because the vacant space which they undertook to show before the Municipality has been occupied by the respondent-defendant total area being 218. 63 sq. ft which has been divulged in the report submitted by Special Officers appointed by this Court. Therefore, there is no impediment to pass a modified decree in favour of the appellants/ plaintiffs after setting aside the judgment passed by the Tribunal. Since we are aware of the provision contained in section 6 and section 11 of the West Bengal Premises Tenancy Act, 1997 and since the construction of the building has been completed and the portion occupied by the respondent has been identified, we think that further remand of the case as directed by the learned Tribunal is not warranted and justified. (6) IN the circumstances, we find merit in the appeal and it is accordingly allowed on contest without costs against the respondent-defendant. The judgment/order dated 9th February, 2007 passed by the learned Tribunal in O.A. No. 2627 of 2006 (LRTT) is hereby set aside. The judgment and decree dated 15th May, 2006 in Ejectment Suit no. 281 of 2004 passed by the learned Judge, 5th Bench, Presidency small Causes Court is hereby affirmed with necessary modification. The appellants/plaintiffs do get a decree for recovery of Khas possession of the suit premises by evicting the respondent-defendant therefrom. The respondent-defendant is directed to quit and vacate and deliver peaceful possession of the suit premises measuring 218.63 sq. fit as indicated in the report submitted by the Special Officers within 30 days from the date of this order. The appellants/plaintiffs do get a decree for recovery of Khas possession of the suit premises by evicting the respondent-defendant therefrom. The respondent-defendant is directed to quit and vacate and deliver peaceful possession of the suit premises measuring 218.63 sq. fit as indicated in the report submitted by the Special Officers within 30 days from the date of this order. In default, the appellants/plaintiffs will be at liberty to execute the decree in accordance with law. If the respondent-defendant vacates and delivers peaceful vacant possession of the suit premises the appellants/plaintiffs within time specified in the order then appellants shall cause demolition of the suit premises within two months from the date of taking delivery of possession of the suit premises from the respondent-defendant and thereafter within two months the appellants shall deliver vacant possession of the room to the respondent-defendant in the building already constructed by them the area of which shall be 218. 63 sq. ft. In default the respondent-defendant shall take effective step against the appellants/plaintiffs before the appropriate authority for restoration of possession in accordance with law. (7) IN view of the above order passed by this Court the pendency of proceeding being W.P.L.R.T No. 764 of 2006 becomes infractuous and it is accordingly dismissed. The amount deposited by the respondent with the advocate-on-record of Mr. Bagchis client in compliance with the order dated 4th January, 2007 passed by this Court shall be returned to the respondent after deducting necessary expenses in accordance with law.