The acknowledged tenants were deemed to be in possession of the premises and could make a prayer for repairs under Section 34 of the West Bengal Premises Tenancy Act.

This Rule is directed against the judgment passed in Misc. Appeal No. 20 of 1976 setting aside the order dated 19.2.76 passed by the learned Rent Controller of Rampurhat in Misc. Case No. 234 of 1974 under Section 34 of the West Bengal Premises Tenancy Act, 1965. An application under Section 34 of the West Bengal Premises Tenancy Act for permission to repair the premises of the petitioners was made before the learned Rent Controller and by his order dated 19.2.76 the learned Rent Controller was pleased to grant permission to the petitioners in that case to make the necessary repairs at a cost not exceeding six months rent. Against that the landlord preferred an Appeal and the learned Appellate Officer was pleased to set aside the order of the Rent Controller as stated above. In that case before the Rent Controller there were three petitioners who were the tenants in respect of three different portions of the same premises. So far as these tenants are concerned, the landlord had instituted an Ejectment Suit after giving notice to the tanants under Section 13(6) of the West Bengal Premises Tenancy Act. Two of the suits against two of the petitioners were withdrawn and the landlord acknowledged them as tenants and they continued to be in possession of the premises as tenants. So far as third tenant was concerned a decree for eviction was passed by the learned Munsif against him, against which he preferred an appeal which was pending at the time when the application under Section 34 of the West Bengal Premises Tenancy Act was made on behalf of the petitioners. The point that was taken before the Appellate Officer is this that after a notice under Section 13(6) of the West Bengal Tenancy Act determining the tenancies of the tenants petitioners were given by the landlord they ceased to be tenants in the strict sense of the term and, therefore, the relief u/s 34 of the Act could not be made available to them. This may apply so far as third petitioner against whom a decree for eviction had been given but the suits against other two petitioners having been withdrawn by the landlord and she having acknowledged them as tenants they lire deemed to be in possession of the premises according to the provisions of Section 34 of the West Bengal Premises Tenancy Act and they can certainly make a prayer to be permitted to make the necessary repairs if the land-lord did not effect the same.

2. The third petitioner, however, cannot claim that relief in view of the definition of the word 'tenant' under Section 2(h) of the Act. Now a point was been taken on behalf of the opposite party in this case, that this application under Article 227 of the Constitution is not maintainable in view of the recent Amendment of the Constitution. The Rent Controller is not a Court and is a persona designata. This has bee held in several cases and that is well-settled and need not quote those cases. But it has been argued on behalf of the present petitioners that u/s. 29(1) of the W.B.P.T. Act an appeal lies from every order passed by the Rent Controller to the District Judge, and therefore, it is contended that the District Judge is a Court within the meaning of Article 227(6) of the Constitution which is in the following term: "Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is not otherwise subject to appeal or revision". The judgment must be the judgment of "a Court". If the Rent Controller is not a Court but a persona designate as I have already stated above, an appeal to the District Judge as provided u/s. 29(1) of the West Bengal Premises Tenancy Act does not make that judgment of the District Judge the judgment of a Court. An appeal is a continuation of the proceeding before the Rent Controller. The District Judge is an appellate Officer u/s. 29(3) of the said Act. As such, the present application under Article 227 is not maintainable.

3. Accordingly, the Rule is