ORDER
A.M. Bhattacharjee, J.
1. The suitgiving rise to this first appeal has been filed by the tenant-respondent against the land lords-appellants for several declarations and reliefs consequential thereto. The declarations are -- (a) that he is entitled to fix a collapsible gate at the entrance to his tenanted flat, being the 4th floor of the suit-building, (b) that he is entitled to conversion of D.C. current to A.C. current in the premises, (c) that he has the right of access to the roof of the tenanted premises for the purpose of replacing or repairing the antenna for his Television set and (d) that he is entitled to regular supply of water during the morning hours, and consequential reliefs are appropriate orders of permanent injunctions to ensure the enjoyment of his aforesaid rights to be declared by the Court. The suit having been decreed is favour of the tenant-plaintiff, the aggrieved landlords have filed this appeal.
2. This suit by the tenant has been preceded by a suit by the landlords against the tenant for permanent injunction restraining the latter from making any new constructions, additions or alterations and structural changes to and in the suit-premises. The two suits have been heard together and the suit by the landlords has also been decreed. In the judgment, which is a common one for both the suits, the trial Judge has held that the suit by the landlords for permanent injunction restraining the tenant 'from making any permanent construction in the suit premises should be declared'; but it appears that in the decree portion, the Court has permanently restrained the tenant 'from making any additions, alterations, construction and structural changes' in the tenanted portion of the premises.
3. Under S. 33 of the Code of Civil Procedure, after a Court has pronounced a judgment, 'on such judgment a decree shall follow' and under O. 20, R. 6(1), 'the decree shall agree with the judgment'. Since in the judgment the trial Court has decided to decree the suit restraining the tenant 'from making any permanent construction', the order in the decree restraining the tenant 'from making any additions, alterations, constructions and structural changes' must be construed to mean only such additions, alterations, constructions or structures which are of permanent nature. A decree must be so construed as to be intra, and not ultra vires the judgment. The approach should be ut res magis valeat quam pereat, so that it may stand and not fail. If a decree, though apparently going beyond a judgment, mayreasonably construe to be agreeing with the latter, it must be so construed.
4. It is not the law that a tenant cannot construct any structure on the tenanted premises. Under Cf. (o) of S. 109, Transfer of Property Act, a tenant, who is to use the tenanted property as a person of ordinary prudence would use it if it were his own, has been commanded not to pull down or damage building belonging to the landlord or to commit any other act which is destructive or permanently injurious thereto and under Cl. (p), the tenant has been mandated not to erect on the property any permanent structure, except for agricultural purposes, but within limits specified by Cls. (o) and (p), a tenant can make such constructions, additions or alterations as would suit his needs. This has been pointed out by one of us in a Division Bench judgment of this Court in Dhanapati v. Gita, (1986) 2 Cal HN 292 at p. 296 and was also pointed out by Mitter, J. in his separate, though concurring, judgment in the Special Bench decision of this Court in Surya Properties : AIR1964Cal1 . We have again adverted to this question in Devakinandan v. Harasundar, (1988) 1 Cal HN 180 at p. 188, where we have held that a combined reading of Cls. (o) and (p) would indicate that though the tenant cannot make any construction by way of addition or alteration which is a permanent structure or which is destructive of or permanently injurious to the tenanted premises, he can, within the limits of Cls. (o) and (p), add to the premises and make alteration thereto to suit his necessities. So the decree of the trial Judge restraining the tenant from making any addition or alteration or construction would have been wrong and we would have had to modify the same in exercise of our powers under O.41, R. 33 of the Civil P.C., eventhough no separate appeal has been filed therefrom. But, as already noted, since, in conformity with the judgment, the decree in that suit can and should be construed as a grant of injunction restraining making of additions, alterations and constructions of permanent nature, we can leave the matter at that without pursuing it any further. Now to the appeal at hand. As already noted, the suit by the tenant-respondent, giving rise to this appeal is for four declarations and fourconsequential further reliefs, ft has been argued by the learned Counsel for the landlords-appellants that a suit for a such type of declarations is not maintainable under S. 34 of the Specific Relief Act, 1963; but we have no doubt that such an argument must merit outright rejection. Under S. 34, Specific Relief Act, every person 'entitled to any right as to any property' is also entitled to sue for a declaration that he is so entitled. The plaintiff as a tenant is obviously entitled to his right to the tenanted property and there should be no doubt that, as pointed out by the Supreme Court in Municipal Corporation of Greater Bombay, : [1965]1SCR542 , a tenant has, under the Transfer of Property Act or the Rent Control Legislations an interest in the demised premises which would squarely fall within the expression 'property'. It is therefore, difficult to understand as to why the tenant, as the plaintiff, cannot sue for the declarations prayed for which clearly relate to his interest in the tenanted property.
5. The argument advanced also suffers from another fallacy. It is true that there are high authorities of the Privy Council, as pointed out by Sir Benegal Rau in the Division Bench decision of this Court in Mahomed Manjural v. Bissesswar : AIR1943Cal361 to the effect that the power of the Court to make merely declaratory decrees which only serve to define rights without giving present relief, is governed by S. 42 of the Specific Relief Act of 1877, now replaced by S. 34 of the Specific Relief Act of 1963. But where a decree has the effect of giving present relief as well, the power to grant the same will be governed by the general principles of the Civil P.C. in S. 9 read with O. 7, R. 7 and not by S. 34 of the Specific Relief Act. In the suit at hand, present reliefs having been sued for and granted along with declaratory reliefs, the provisions of S. 34 would not arise for consideration. But even if it could arise, we need only point out that it has been settled beyond doubt by the Supreme Court in Vemareddi Ramraghava Reddy, : AIR1967SC436 and, following the same. In Supreme General Films, : [1976]1SCR237 , that S. 34 is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power togrant such a decree independently of the requirements of the section in suits outside the purview of that Section.
As already noted, in the suit by the tenant-respondent giving rise to this appeal, it has been declared that the tenant 'has right to fix a collapsible gate at the entrance to his flat' and the landlords-appellants have been 'permanently restrained from obstructing' the tenant in fixing such a gate. In view of the rights of a tenant under Cls. (o) and (p) of S. 108 of the T.P. Act, as discussed hereinabove, this part of the decree can be assailed only if the affixation of the collapsible gate would amount to erection of a permanent structure. While logically it may not be difficult to understand what is a permanent structure, legally it may very often be quite difficult to decide whether a structure is a permanent one. The expression 'permanent structure' having been used in century old enactments like the Transfer of Property Act, Essements Act etc. Myriads of precedents have clustered round trying to lay down various tests for their determination; not uniform, not exhaustive, not difficult to understand, but very often presenting difficulties in actual application. Even as late as in 1964, this Court had to refer to a Special Bench of Five Judges in Surya Properties Ltd. (supra), : AIR1964Cal1 the questions as to what is a permanent structure for purposes of Cl. (p) of S. 108 of the T.P. Act and what, if any, are the tests, and whether a room with 'three-inches brick built wall and a corrugated iron sheet roof is a permanent structure. But the five learned Judges in their five separate but concurrent judgments did not return a positive answer for the obvious reason that there cannot be a straight-jacket formula in the matter and, to quote from the judgments, 'no hard and fast rule can be laid down with regard to this matter'. But all the learned Judges nevertheless proceeded to formulate some tests or criteria for the purpose and the consensus appears to be that, as pointed out in Dhanapati v. Gita (at pp. 295 and 296) (of 1986-2 Cal HN 292) (supra), the nature of the construction and the intention with which it has been constructed are of primary and prime importance and all these are to be determined and ascertained from the structure, its situs and its mode of annexation and thesurrounding circumstances. The mode of annexation of the offending structure to the tenanted property is, therefore, a very important factor as expressly pointed out in Surya Properties : AIR1964Cal1 (supra) by Bachawat, J. (at p. 6), Mookerjee, J. (at p. 14) and Mitter, J. (at p. 27) and as pointed out by Mitter, J. (at pp. 27-28) 'if the structure is such that it can be removed without difficulty and without causing any damage to the premises let out so that the same would not be any worse for the removal, it cannot be said that the structure is a permanent one' but that 'if the structure is so attached to the old structure that its removal was bound to affect the old structure, it would be a permanent structure'. The case in Surya Properties, after determination of these questions by the Special Bench again came back to the Division Bench for final determination in Surya Properties, : AIR1965Cal408 and it appears that A.C. Sen, J. took into consideration (at p. 414) the fact that the structure was 'so annexed to the main building that it cannot be demolished without causing substantial damage to the main building.'
6. The tests laid down in both the Special Bench and the Division Bench decisions of this Court in Surya Properties, : AIR1964Cal1 and : AIR1965Cal408 (supra) appear to have been approved by the Supreme Court in a recent decision in Venkatlal v. Bright Brothers, : [1987]3SCR593 and the Supreme Court obviously without intending to be exhaustive has also approved the following tests laid down in an unreported Bombay decision as the broad tests (at p. 1944, paras. 22-23). 'These were (1) intention of the party who put up the structure, (2) this intention was to be gathered from the mode and degree of annexation, (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainty one of the circumstances to be considered while deciding the question of intention. Like wise the dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests, (5) the purpose of erecting the structure is another relevant factor, (6) the nature of the materials used and (7) lastly, the durability of the structure'. In Khureshi Ibrahim v. Ahmed Hazi, : AIR1965Guj152 ),which has also been approvingly referred to by the Supreme Court in Venkatlal (supra), Bhagwati, J. (as his Lordship then was in the Gujarat High Court) observed (at p. 154) that 'the right to enjoy possession of the premises cannot include the right to erect permanent structures which would not be easily removable and the removal of which might injuriously affect the parties', implying thereby that removability of the offending structure without injuriously affecting the tenanted property is a very important test That is also how the Division Bench decision in Khureshi Ibrahim (supra) has been understood in a later single Judge decision of the Gujarat High Court in Ramji Virji v. Kadarbhai, : AIR1973Guj110 , which has also been approvingly referred to by the Supreme Court in Venkatlal (supra), and in which it has been observed (at 110) that 'it was obvious that when Transfer of Property Act created this provision in S. 108(p), it contemplated permanent structures which would not be easily removable and the removal of which might injuriously affect the premises'. The same test has been applied by a learned single Judge of the Bombay High Court in Alisaheb Abdul Latif v. Abdul Karim, : AIR1981Bom253 , where relying inter alia on the Calcutta Special Bench decision in Surya Properties (supra) and the Gujarat Division Bench decision in Khureshi Ibrahim (supra), it has been held (at 258) that the decree of annexation of the offending structure to the existing tenanted premises is the 'most essential test' and that if the offending structure is so annexed to the existing premises that it cannot be removed without detriment or substantial detriment to the existing premises and causing injury to them, the work must be described as a permanent structure.
7. Governing ourselves by these tests, we should have no hesitation to hold that the affixation of a collapsible gate at the entrance of the tenanted premises would not amount to erection of a permanent structure. The evidence of the plaintiff-tenant, PW 1, that fixation of a collapsible gate 'is necessary for reason of security' has not been challenged by the landlords-defendants either by cross-examination or by counter-evidence. Theintention of the tenant was, therefore, not to have any additional structure, permanent or temporary, but to provide additional security as a measure of safety to himself, the members of his family and their properties against burglary and other risks and hazards. And that intention to provide better security has been given effect to without affecting any structural change of the premises and the purpose of the tenancy. The finding of the trial Judge that the gate 'can be removed without causing any irreparable damage to the building' has not also been challenged as incorrect. And, therefore, the tests relating to the mode of affixation of the structure and its removability, as discussed hereinbefore, are also satisfied. The trial Judge, therefore, was right in granting the declaration that the plaintiff-tenant was entitled to affix a collapsible gate at the entrance of his tenanted flat. If, as held by us in Devakinandan Boobna at p.188 (of (1988) 1 Cal HN 180) (supra), improvements are made by the tenant on the property, and on the termination of the tenancy such improvements can be removed and the premises can be restored to its original conditions without any injurious effect, the landlord can have nothing to complain.
8. We are also satisfied that the trial Court was right in granting the declaration and the consequential relief in respect of the tenant's right relating to conversion of D.C. current in the premises to A.C. current Under S. 12(2) of the Electricity Act, 1910, as it stood before the Amendment Act of 1959, the licensee (here the Calcutta Electric Supply Corporation) could not lay any electric supply line in or through any building 'without the consent of the owner and the occupier'. By the Amendment Act of 1959, the words 'owner and the occupier' in S. 12(2) have been substituted by the words 'owner or occupier'. If the expression 'owner or occupier' stood there from the beginning as it now stands, it might have been urged that the expression or was to be read as and that is, the words were to be read conjunctively and not disjunctively. But since the word and, as it stood before, has now been displaced by a legislative amendment by the word of there should be no doubt that a disjunctive meaning was clearly intended, for aLegislature must be presumed not to waste a word and to make an amendment for the mere fun of it Supply of electricity has now become a matter between the occupier and the licensee under the Electricity Act and the landlord as the owner cannot ordinarily stand in the way. The decision of a learned single Judge of this Court in Runchordas v. Vasanji, ILR (1968) 2 Cal 494 also appears to be to the same effect.
9. But the landlords have tried to make out a case that as all the other premises in the building are being supplied D.C. current, conversion of only the suit premises to A.C. current and thereby providing for both D.C. current and A.C, current in the same building might involve the risk of fire. There is no expert evidence on the point and we have our doubts as to whether the evidence of D.W. 1, deposing as a co-landlord on behalf of the landlords, can at all be regarded as such evidence. But in para 6 of their written statement, all that the landlords have said is that they are agreeable to installation of A.C. line provided that the tenant-plaintiff deposits a sum of Rs. 5000/- as security against any such risk of fire or other damages and we find that the trial Judge has granted the declaration in favour of the tenant on condition of such deposit in Court and several other conditions to ensure such repairs as may be consequentially necessary to the installation of the new A.C. line. If, as held in Kalyani v. Mantu, (1984) 88 Cal WN 776, relying on Bakul Rani v. Nani Bala, (1982) 86 Cal WN 943, a tenant is entitled to get supply of electricity to his premises by and through a Civil Court decree, notwithstanding S. 36 of the West Bengal Premises Tenancy Act providing another forum, the impugned decree of declaration and the consequential relief is obviously within the jurisdiction of the Civil Court.
10. We are also satisfied that the declaration that the tenant-plaintiff has the right of access to the roof of the premises for the limited purpose of replacing and repairing the Television Antenna must be maintained. Law apart, no reasonable landlord should have grudged that right. The case of the defendants-landlords in parragraph 8 of their written statement is that the tenant-plaintiff'was allowed to fix the Antenna on the roof of the premises', though the said roof was not a part of the tenancy. The tenant-plaintiff is not claiming, even remotely, the roof as a part of his tenanted premises in the 4th floor. Television, Radio, Telephone and the like have become parts of our lives, so to say. And if a tenant of a portion of a building cannot reasonably enjoy those amenities in his premises without fixing the Television Antenna or the Radio-Aerial or the Telephone-Wire on some other portion of the building, he should be deemed to have accessory license to do so, so long the tenancy lasts, in accordance with the principles enshrined in S. 55 of the Easements Act, 1882, which provides that 'all licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right' and that 'such licenses are called accessory licenses'. The very fact that the tenant was allowed by the landlords to fix the Antenna on the roof would go to show that such fixation was deemed to be necessary for the reasonable enjoyment of the tenancy, for the effective exercise of his right to life and liberty, for life is not, as pointed out by the Supreme Court in Maneka Gandhi, : [1978]2SCR621 and Francis Coralie Mullin (AIR 1981 SC 746) and other decisions, a more animal existence. We have accordingly no hesitation in affirming this part of the decree also.
11. But we are, however, afraid that we cannot maintain that part of the decree whereby the right of the tenant 'to regular supply of water in his flat specially in the morning hours from 6 A.M. to 9 A.M,' has been declared and the landlords have been 'further directed to ensure regular supply of the water to the tenant by means of an electrically operated pump specially during the period from 6 a.m. to 9 a.m.'. Sitting in a law Court, we cannot shut our eyes to the realities of life and, therefore, must take notice of the acute water scarcity rampant in this city and the erratic, irregular and often total failure of water-supply by the Municipal Corporation and we are afraid that asking the landlord to ensure regular supply of water would almost be futile. It is not for us to direct as to whether the water-pump is to beoperated electrically or with diesel or other means or to regulate its working hours. The realities being its they are, all that a tenant can get is a declaration that he is entitled to supply of water and all that a landlord may be directed to do is to take reasonable steps to ensure such supply as would be reasonable in view of the availability of water. This part of the decree would therefore stand modified accordingly and with this modification the appeal shall stand dismissed.
12. We accordingly dismissed the appeal and affirm the judgment and decree under appeal with the modification stated above. We would, however, make no order as to costs.
Ajit Kum ar Nayak, J.
13. I agree.
14. Order accordingly.