Construction Of Toilet Is Bare Necessity For Proper Use Of Premises, Expression "Own Use" Not Confined To Landlord's Personal Physical Use: Calcutta High Court

"Requirement Not Only Of Landlord Himself But Also Normal Emanations Of Landlord Included, Words Should Receive Wide, Liberal And Useful Meaning", Calcutta High Court has allowed a landlord's suit for eviction of a tenant to construct a toilet and bathroom, holding that when tenanted premises have no toilet facility, construction of the same is a bare necessity and essentiality for proper use of the property, and that the expression "for his own use" under the West Bengal Premises Tenancy Act is not confined to actual physical user by the landlord personally but should receive wide, liberal and useful meaning.

Background of the Case

The appellant-plaintiffs owned a property described as 'Gha' Schedule which had no toilet or latrine facility at the ground floor. The tenants of the plaintiffs had to use the toilet of a neighboring property ('Kha' Schedule) owned by a relative. This arrangement led to disputes, and the plaintiffs filed a civil suit (TS No. 25 of 1995) seeking declaration and permanent injunction. The suit was decreed on compromise on January 21, 1996, allowing the plaintiffs to use the neighboring latrine for another six months. On expiry of this period, the plaintiffs requested the owner Tarapada Panja to allow continued use for some more time. Though temporary accommodation was made, Tarapada Panja directed the plaintiffs to make separate arrangements for their own property.

The plaintiffs selected a specific room ('Gha'-1 Schedule) to construct a toilet and bathroom for the ground floor tenants. The room was chosen because it could be conveniently converted into a toilet and the waste could be connected with the existing safety tank in the premises more economically. The respondent-defendant was inducted as a monthly tenant of this room on payment of rent of Rs. 350 for a contractual period of twelve months according to the Bengali calendar. The tenancy was valid until the month of Falgoon 1407 B.S.

After expiry of the contractual period, the plaintiffs asked the defendant several times to vacate the premises for construction of the toilet, having by then gathered sufficient funds for this purpose. The plaintiffs refused to accept rent after the contractual tenancy ended and also refused money order of rent for the month of Chaitra 1407 B.S. A notice to quit dated April 30, 2001 was sent asking the defendant to quit and vacate the premises by expiry of Jaistha 1408 B.S. The notice was received by Badal Chandra Das, brother of the defendant. When the defendant failed to vacate despite the notice, the plaintiffs filed the suit for eviction.

The defendant contested the suit, arguing that the plaintiffs had reasonable and suitable accommodation within the portion in their possession and elsewhere, that there was sufficient space within the premises for construction of an alternative toilet, that the specific room was only eight feet long and six and half feet wide which could not be converted into a bathroom, that there was no sanctioned plan from Burdwan Municipality, and that there was already a separate bathroom for use of tenants. The defendant also argued that without providing a scheme under Section 18 of the West Bengal Premises Tenancy Act, 1956, the plaintiffs were not entitled to decree.

The trial court decreed the suit, finding that notice to quit was duly served and that the plaintiffs reasonably required the premises for construction of a bathroom. The trial court considered, among other factors, the defendant's own admission of the necessity of a bathroom in the suit property. However, the first appellate court (Additional District Judge, Fast Track 1st Court, Burdwan) reversed the trial court's judgment and decree on July 15, 2011. The appellate court held that the requirement was for tenants other than the defendant and therefore did not fall within the ambit of "reasonable requirement" for the landlord's own use. The appellate court also found the determination of tenancy questionable, observing that the plaintiffs with mal-intention refused to accept rent while the defendant rightfully deposited rent with the Rent Controller.

Legal Issues and Court's Observations

Justice Sugato Majumdar examined whether the first appellate court erred in reversing the trial court's findings regarding reasonable requirement and proper termination of tenancy under the West Bengal Premises Tenancy Act, 1956.

On the issue of termination of tenancy, the Court found the first appellate court's reasoning fundamentally flawed. The contractual tenancy had ended in the month of Falgoon 1407 B.S., and the defendant herself admitted receiving the notice to quit during cross-examination. "The Defendant admitted in course of cross-examination that she had received the notice to quit, leaving no further doubt or space for surmise of service of the notice to quit," Justice Majumdar observed.

The Court held that the first appellate court's observation regarding the landlord's refusal to accept rent was legally erroneous. "A contractual tenancy came to an end in the month of Falgoon, 1407 B.S. No rent had been accepted on behalf of the Appellant/Plaintiffs as he has right to refuse rent and the tenancy was determined with effect from the Bengali month Jaistha, 1408 B.S. After expiry of contractual tenancy, no renewal of tenancy took place, requiring a fresh termination," the Court held, adding that "the observation on the First Appellate Court is not only unsustainable but suffers from misconception."

On the critical issue of admitted necessity, the Court noted that it was pleaded in the plaint that the tenanted 'Gha' Schedule property had no latrine and toilet, and that the specific 'Gha'-1 Schedule property was required for construction thereof. "DW-1 admitted that there was no latrine or toilet, leaving no scope to doubt the requirement," Justice Majumdar observed.

The defendant had filed an application under Order XLI Rule 27 CPC seeking to adduce evidence that another room was available in the same floor where a toilet could have been constructed, and that the plaintiffs had inducted a new tenant in another vacant room during pendency. The Court rejected this contention categorically. "At his stage of second appeal, there is no scope to appreciate evidence further. The landlord is a best judge to decide which room will serve his purpose. The tenant cannot dictate that," the Court held. The Court noted that the plaintiffs had pleaded that the specific 'Gha'-1 room could be conveniently converted into a toilet, and the map filed by the Advocate Commissioner showed that this specific room was nearest to the safety tank, making it more suitable for the purpose.

On the crucial question of interpretation of "own use" under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, the defendant argued that the requirement pleaded was for tenants, not the landlord, and therefore did not satisfy the condition of the landlord's own use and occupation. The defendant further argued that requirement must be distinguished from mere desire and that there must be actual element of need.

The Court rejected this narrow interpretation, holding that it was an admitted position that this was a case of actual need and requirement, admitted by the defendant during cross-examination. "When the tenanted portion, where several tenants are living, has no toilet or latrine, then construction of the same is a bare necessity and essentiality for proper use of the premises," Justice Majumdar held.

The Court relied on the Supreme Court's decision in Phiroze Bamanji Desai v. Chandrakant M. Patel (1974) 1 SCC 661, which held that there must be an element of need before a landlord can be said to "require" premises for his own use and occupation. More importantly, the Court extensively quoted from the Supreme Court's decision in Joginder Pal v. Naval Kishore Behal (2002) 5 SCC 397, which held that in interpreting "own use", courts should adopt a practical and meaningful approach guided by realities of life.

"The expression 'for his own use' is not confined in its meaning to actual physical user by the landlord personally. The requirement should not only of the landlord himself but also all the normal 'emanations' of the landlord is included therein," the Court observed, quoting from Joginder Pal.

The Court noted that the Joginder Pal judgment laid down specific tests: whether the requirement pleaded and proved may properly be regarded as the landlord's own requirement, and whether actual occupation by a person other than the landlord would be deemed as the landlord's own occupation. The answer depends on the nature and degree of relationship between the landlord and the person who would actually use the premises, the circumstances in which the claim arises, and the intrinsic tenability of the claim. "The court on being satisfied of the reasonability and genuineness of claim, as distinguished from a mere ruse to get rid of the tenant, will uphold the landlord's claim," the Court held.

The Court noted that this principle was followed in subsequent Supreme Court decisions including C. Karunakaran v. T. Meenakshi (2005) 13 SCC 99, Gulraj Singh Grewal v. Harbans Singh (1993) 2 SCC 68, and Mehmooda Gulshan v. Javaid Hussain Mungloo (2017) 5 SCC 683.

Applying these principles to the facts, the Court observed: "Evidence established that a toilet and latrine is need for the premises namely 'Gha' Scheduled property as the said 'Gha' Scheduled property is bereft of it. Any use of the said portion needs presence of toilet and privy as bare necessity. Though the tenants are residing presently, it may be used by the landlord in future. Need of the landlord should not be confined in this case to the narrow interpretation."

The Court concluded with an emphatic statement on statutory interpretation: "The words 'for his own use' as occurred in Section 13 (1) (ff) of the West Bengal Premises Tenancy Act, 1956 should receive wide, liberal and useful meaning in the present context. It is a bare essentiality for proper use of the property."

The Calcutta High Court allowed the second appeal and set aside the judgment and decree of the first appellate court dated July 15, 2011. The trial court's decree allowing eviction was restored. "The Learned Trial Court's decision of allowing the decree was correct. The First Appellate Court in reversing the Trial Court's judgment committed error of law as well as of fact which demands setting aside," Justice Majumdar held. The Court directed the plaintiffs to deliver possession within sixty days from passing of the appellate decree, failing which execution proceedings could be initiated. The defendant was held liable to pay mesne-profit, for which liberty was given to institute a separate suit.

Date of Decision: March 12, 2026