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. 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. Under the general law the rights and liabilities of the

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