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A.N. Chatterjee and ors. Vs. Sampatmull Bothra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 2228 to 2242 of 1951
Judge
Reported inAIR1953Cal47,56CWN639
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Section 9 and 9(1); ;Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 25
AppellantA.N. Chatterjee and ors.
RespondentSampatmull Bothra
Appellant AdvocateAtul Chandra Gupta, ;Chandra Narayan Laik and ;Pabitra Kumar Banerjee, Advs.
Respondent AdvocateS.M. Bose, Adv.-General and ;Lal Mohan Ghosh, Advs.
Excerpt:
- .....two points have been urged by mr. gupta. in the first place, mr. gupta has contended that the present cases are covered by section 9 (1) (f)--at any rate by the proviso thereof ; and, if the proviso applies, the cases were correctly decided by the rent controller. his second argument is that, even assuming that his first contention is unacceptable and the tenants' applications could only be dealt with under section 9 (1) (g) of the act, the learned judge was in error, in the circumstances of the present cases, in not giving opportunities to the tenants applicants to produce proper materials for a decision under that section and in dismissing their applications straightway on a plea raised against them for the first time at the appellate stage.4. that there is considerable force in.....
Judgment:
ORDER

P.N. Mookerjee, J.

1. These are fifteen Rules obtained by as many tenants of Premises No. p-36, Royal Exhange Place Extension, Calcutta, wherein the tenants petitioners complain against the dismissal of their applications under Sections 9 and 10, West Bengal Premises Kent Control (Temporary Provisions) Act, 1950, for fixation of standard rents and refund of alleged excess payments.

2. Before the Rent Controller, more precisely, the Additional Kent Controller of Calcutta,--there were sixteen applications by sixteen tenants, namely, the petitioners before me and M/s. Mittra Sadani & Co. All the said applications were opposed by the landlord Sampatmull Bothra, who is the opposite party, in all the present Rules. The Rent Controller fixed the standard rents under the proviso to Section 9 (1) () of the Act assessing the 'entire construction for the purposes of that proviso at Rs. 6,73,703-6-5--Rs. 3,18,855-5-6 being the 'market price' of land at the relevant date and RS, 3,54,848 being 'the actual cost of construction'--and calculating the proportion in each case as contemplated in the said proviso to Section 9 (1) (f). The landlord appealed and the learned Judge, who heard the appeals accepted the landlord's plea, raised before him for the first time, that Section 9 (1) (f),--be it the main part or the proviso--had no application to any of the above cases, all of which fell within Section 9 (1) (g), there being no other part of Section 9 applicable to the same. The learned Judge further held that as, in the cases before him, there were no materials for coming to a decision under Section 9 (1) (g) of the Act, the tenants' applications in all the sixteen cases were liable to be dismissed. The learned Judge accordingly allowed the landlord's appeals and dismissed the tenants' applications. Against this decision, the present Rules have been obtained by fifteen of the sixteen tenants concerned, the other tenant, M/s. Mittra Sadani & Co., who was the applicant in case No. 443A. of 1941 before the Bent Controller, not having moved against the dismissal of its application by the Appellate Judge.

3. On behalf of the petitioners two points have been urged by Mr. Gupta. In the first place, Mr. Gupta has contended that the present cases are covered by Section 9 (1) (f)--at any rate by the proviso thereof ; and, if the proviso applies, the cases were correctly decided by the Rent Controller. His second argument is that, even assuming that his first contention is unacceptable and the tenants' applications could only be dealt with under Section 9 (1) (g) of the Act, the learned Judge was in error, in the circumstances of the present cases, in not giving opportunities to the tenants applicants to produce proper materials for a decision under that section and in dismissing their applications straightway on a plea raised against them for the first time at the appellate stage.

4. That there is considerable force in the second submission of Mr. Gupta cannot be denied. It appears from the proceedings before the Rent Controller that there both parties rested their case on Section 9 (1) (f) and no question of the residuary provision, namely, Section 9 (1) (g) of the Act was, even remotely raised or canvassed. In such circumstances the dismissal of the tenants' applications for absence of materials under Section 9 (1) (g) without giving them opportunity to produce the same can hardly be justified and, if, in law, the position be that the present cases are outside Section 9 (1) (f) and have to be dealt with under the residuary Section 9 (1) (g) of the Act, there must be a remand to the Rent Controller in each of these cases so that the parties may have proper opportunities of producing before him relevant materials for the purpose of his decision under the said section. This view has not been seriously challenged by the learned Advocate-General, who appears for the landlord opposite-party, but his main argument has been directed against the first submission of Mr. Gupta which I shall presently examine.

5. On the applicability or otherwise of Section 9 (1) (f) the respective arguments may be summarised thus:

The petitioners contend that as the portions in their respective occupation are 'premises' within the definition of that term in the Bent Control Act and as admittedly the said 'premises' were onstructed--at least substantially, if not wholly, -- after 31-124949, Section 9 (1) (f) -- either the main part or the proviso thereof -- would govern the present cases. On behalf of the opposite party it has not been disputed before me that the portions occupied by the petitioners are 'premises' within the meaning of the Rent Control Act nor has it been denied that the said 'premises' were constructed substantially after 31-12-1949. But it has been strongly urged by the learned Advocate-General that as the said 'premises' admittedly form part of the entire construction intended to be raised at No. p-36 Royal Exchange Place Extension, Section 9 (1) (f) could be attracted to the present cases--if at'all that section be applicable--only in its proviso but that this latter, namely, the proviso to Section 9 (1) (f), cannot apply to these cases as the entire 'construction,' namely, the proposed building, which, as the sanctioned plan shows, is a, six storeyed one, has not been constructed even substantially but has been construct-ed roughly up to the third storey only and even that construction up to the third storey is yet far from complete. In other words, the submission is that for attracting the proviso to Section 9 (1) (f) 'the construction' or 'the entire construction,' of which the premises concerned would form a part must be at least substantially complete. The learned Advocate-General accordingly argues that neither the main part of Section 9 (1) (f) nor its proviso can be applied to the present case so that the petitioners' rents have to be standardised under the residuary provision namely, Section 9 (1) (g) of the Act.

6. The point thus arising from the respective contentions, above noted, is not altogether free from difficulty. Clearly, if the proviso had not been there, Section 9 (1) () would have covered the present cases as the portions occupied by the petitioners are undeniably 'premises' within the meaning of the Rent Control Act and were also substantially, if not wholly, constructed after 31-12-1949. The proviso, however, apparently creates a difficulty. On the proviso it may be broadly argued that where the 'premises' concerned form part of a bigger construction, the main part of Section 9 (1) (f) would not apply and the case can be dealt with under Section 9 (1) (f) only if it can be brought within the proviso. If such be the correct position in law, I would agree with the learned Advocate-General that Section 9 (1) (f) including its proviso must be left out altogether in deciding the present cases, as, in my opinion, the construction at the relevant site, namely, p-36 Royal Exchange Place Extension--whether it be taken to fee the proposed six-storeyed building, as contended for by the opposite party, or that building up to the third storey level as urged by the petitioners, cannot, on the materials before me, be said to be even substantially complete so as to come within the term 'construction' as used in the proviso to Section 9 (1) (f) of the Act. That term so it seems to me -- connotes a building or construction which taken as a whole is at least substantially complete for the purpose of letting it out to tenants. This is sufficiently indicated by the proviso to Section 9 (1) (f) of the Act under which 'the total standard rent of the entire premises' has to be determined, as otherwise 'the fair proportion enjoined therein, cannot be struck. In this view of the matter. I hold that the proviso to Section 9 (1) (f) of the Act cannot apply to the present cases and the decision of the Additional Rent Controller standardising the rents under that proviso cannot be sustained. It may be noted here that the Additional Rent Controller himself while standardising the petitioners' rents under the said proviso found some serious difficulties arising from the incomplete construction but he solved these difficulties by the simple--though not very happy or correct -- method of ignoring the unfinished portion and leaving it altogether out of consideration in the matter of standardisation of rent. Such a solution appears to be hardly just or proper particularly when the unfinished portion cannot be said to be a small part of the building or construction in question, or, in other words, when its costs of construction cannot be considered negligible in relation to the costs of the finished part of the building. I agree, therefore, with the learned Advocate General that the proviso to Section 9 (1) (f) cannot be attracted to the cases before me.

7. How then are the petitioners' rents to be standardised? There can be no question that the different portions of the building at p. 36 Royal Exchange Place Extension in the occupation of the petitioners as tenants are 'premises' under the Rent Control Act. There is also no dispute as already stated, that they were constructed, at least substantially, after 31-12.1949. Prima facie, therefore, the present cases come under the main part of Section 9 (1) (f). I have also held above that the proviso to Section9(1)(f) canot apply to these cases before me. In law, therefore, the petitioners' rents will have to be standardised under the main part of Section 9 (1) (f), as, in my view, the general rule for standardisation of rents of 'premises' wholly or substantially constructed after 31-12 1949, is to be found in the main part of Section 9 (1) (f) subject only to the exception, contained in its proviso. This follows from the well-known canon of statutory construction that the purpose of enacting a proviso is to provide for cases where the general rule embodied in the main part of the relevant statutory provision which would otherwise have applied, is intended not to apply. A proviso, in other words, forms an exception to the main part and, if a ease other' wise comes within the latter, the general rule would apply unless the proviso is attracted. The proper approach in such cases would be to find out first whether, apart from the proviso, the main part can be applied and then to consider whether the proviso would he attracted. If the particular case cannot at all be brought within the main part of the relevant statutory provision, question of application of the proviso would not arise and other parts of the statute would have to be looked into for deciding the case. If the case is well within the main part but the proviso also applies, the later would prevail. If, on the other hand, in any such case--that is, where the main part clearly applies -- the proviso be found inapplicable, the decision must be made under the main part of the section and, merely because the proviso cannot be attracted thereto, the case would not be taken away from the main part. The argument, therefore, that whenever the 'premises' concerned form part of a bigger construction, the main part of Section 9 (1) (f), Rent Control Act would not apply is not correct and is too broad to be accepted. The true position is that, if, in such a ease, the proviso be found applicable, the main part-of the section would cease to apply; otherwise the latter would govern the case.

8. In my opinion, therefore, Section 9 (1) (f), properly interpreted, would apply to--and would thus cover--all cases where the 'premises' in question were built, substantially at least, after the 31-12-1949--the main part of the section applying to those of such cases where the proviso would be found inapplicable and the proviso governing the rest. I hold accordingly that the present cases would be governed by the main part of Section 9 (1) (f), as, on the admitted cases of both the parties, all requisites under the main part of Section 9 (1) (f), apart from its proviso, are clearly present in these cases. Plainly, therefore, there is no scope or occasion for invoking the residuary Section 9 (1) (g) for standardising the petitioners' rents and the deci-sion of the learned Appellate Judge cannot be sustained.

9. The result, therefore, is that this Rule is made absolute to this extent that the decisions of both the Kent Controller and the learned Appellate Judge are set aside and the cases are sent back to the Rent Controller to be dealt with by him under the main part of Section 9 (1) (f), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, in the light of the observations contained in this judgment. It will be open to the parties to apply to the Bent Controller to adduce, if they are so advised, further or additional evidence on matters, relevant under that statutory provision, and the Rent Controller will consider all such applications, if made, on the merits. The petitioners' rent will then be standardised by him under the main part of Section 9 (1) (f) on the materials, already on record and such further evidence as may be adduced by the parties in pursuance of the-leave above granted.

10. There will be no order for costs in these Rules.


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