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Sudhir Kr. Chakraborty Vs. Ashutosh Bhattacharya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1949 of 1979
Judge
Reported inAIR1980Cal108
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 8 and 17(3)
AppellantSudhir Kr. Chakraborty
RespondentAshutosh Bhattacharya
Appellant AdvocateS.C. Dasgupta, Adv.
Respondent AdvocateR. Deb and ;K.N. Laha, Advs.
Cases ReferredSmt. Bela Das v. Samarendra Nath Bose
Excerpt:
- .....munsif at alipore. it appears that the defence of the tenant against delivery of possession of the suit premises has been struck down under the provisions of section 17 (3) of the west bengal premises tenancy act, 1956 in the said title suit no. 68 of 1972. the tenant petitioner during the pendency of the said suit made an application under section 8 of the west bengal premises tenancy act for determination of fair rent in respect of the suit premises before the learned rent controller. the said application under section 8 for determination of fair rent was opposed by the plaintiff landlord before the learned rent controller on the ground that the tenancy having been determined and the suit for eviction having been instituted the said application under section 8 of the west bengal.....
Judgment:
ORDER

G.N. Ray, J.

1. This Rule is directed against order dated 26th June, 1978 passed in Rent Control Appeal No. 64 of 1977 by the learned Additional District Judge, 12th Court at Alipore setting aside the order dated 12th July, 1977 by the learned Rent Controller in Rent Control Case No. 502 of 1970.

2. The petitioner was a monthly tenant under the opposite party in respect of the disputed premises at 2A, Kabir Road, Calcutta at a rental of Rs. 180/-per month payable according to English Calendar. It appeals that the landlord determined the tenancy of the petitioner by serving a notice of ejectment dated 11th April, 1970 which was received by the tenant on 18th April, 1970. After the expiry of the prescribed period of notice, a suit for eviction was instituted by the landlord against the said tenant being Title Suit No. 212 of 1970 pending in the 3rd Court of the learned Munsif at Alipore. The said Title Suit was subsequently re-numbered as Title Suit No. 62 of 1970 of the 2nd Court of the learned Additional Munsif at Alipore. It appears that the defence of the tenant against delivery of possession of the suit premises has been struck down under the provisions of Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 in the said Title Suit No. 68 of 1972. The tenant petitioner during the pendency of the said suit made an application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent in respect of the suit premises before the learned Rent Controller. The said application under Section 8 for determination of fair rent was opposed by the plaintiff landlord before the learned Rent Controller on the ground that the tenancy having been determined and the suit for eviction having been instituted the said application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent was not maintainable in law. It was further contended on behalf of the tenant petitioner before the learned Rent Controller that although the tenancy was determined by serving a notice of ejectment and a suit for eviction had been instituted, there had not been any cessation of tenancy and the tenant had right to continue as a statutory tenant until a decree for eviction was passed in the said ejectment suit. Accordingly, the said statutory tenant had the right to maintain the said application under Section 8 of the West Bengal Premises Tenancy Act and the learned Rent Controller was quite competent to determine the fair and/or standard rent in respect of the suit premises. It appears that by order dated 12th July, 1977 passed in the Rent Control Case No. 502 of 1970 arising out of the said application under Section 8 of the Premises Tenancy Act, the learned Rent Controller accepted the contention of the tenant petitioner and the preliminary objection raised by the landlord opposite party that the said application was not maintainable was rejected and the learned Rent Controller set down the said Rent Control Case for argument. Being aggrieved by the aforesaid order of the learned Controller rejecting the preliminary objection of the landlord opposite party about the maintainability of the said application under Section 8 of the Premises Tenancy Act, the landlord opposite party preferred an appeal being Rent Control Appeal No. 64 of 1977 before the 12th Court of the learned Additional District Judge at Alipore. It was contended before the learned Additional District Judge by the landlord opposite party that after the determination of the tenancy the tenant had no locus standi to maintain the said application under Section 8 of the Premises Tenancy Act and that in any event during the pendency of the appeal the defence of the tenant having been struck down under Section 17 (3) of the West Bengal Premises Tenancy Act, there was no scope of proceeding with the said application under Section 8 for determining the standard and/or fair rent of the suit premises, because the tenant after striking out his defences, could hardly raise any plea that the existing rent for the tenancy was excessive or unfair. The landlord opposite party referred to the decision of the Supreme Court made in the case of Smt. Bela Das v. Samarundra Nath Bose reported in : [1975]2SCR1004 for the said contention and it appears that the learned Additional District Judge accepted the contention raised by the landlord opposite party and allowed the said appeal and held that the said application under Section 8 of the Premises Tenancy Act filed by the tenant petitioner was not maintainable in law. Being aggrieved by the aforesaid order the tenant petitioner moved an application for revision under Section 115 of the Code of Civil Procedure and the instant Rule was issued by this Court.

3. Mr. Dasgupta, the learned Counsel for the tenant petitioner contended that although the contractual tenancy was determined and the suit for eviction was pending but the tenant was entitled to enjoy all the privileges of a tenant so long as the decree for eviction was not passed against the said tenant in the ejectment suit filed by the landlord. Mr. Dasgupta contended that although at the inception of the tenancy contract between the landlord and tenant was the basis but it cannot be contended that with the determination of the tenancy the estate of the tenant will disappear. For this contention Mr. Dasgupta referred to the decision of the Supreme Court made in the case of Damadilal v. Parashram reported in : AIR1976SC2229 . In the said case, the Supreme Court was considering Madhya Pradesh Accommodation Control Act and the definition of tenant in Section 2 (i) of the said Madhya Pradesh Accommodation Control Act was taken into consideration by the Supreme Court and it was held by the Supreme Court that in its origin there was contract in each tenancy but it cannot be contended that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status and not the estate he had in the premises. Considering the definition of tenant in the said Section 2 (i) of the Madhya Pradesh Act. the Supreme Court held that a tenant even after the determination of tenancy continues in possession of the writ premises as a tenant unless a decree or order for eviction is passed against him and the incidents of such tenancy must, therefore, be the same unless any provision of the Act conveys a contrary intention. Mr. Das Gupta submitted that the definition of tenant as amended under the West Bengal Premises Tenancy Act is similar to Section 2 (1) of the said Madhya Pradesh Accommodation Control Act and it is quite apparent that on the face of the said Supreme Court decision the tenant even after the determination of the tenancy continues in possession of the suit premises in the same manner as ha had been doing before the determination of the contractual tenancy and filing the suit for eviction. Mr. Das Gupta submitted that there was no contrary intention conveyed in the West Bengal Premises Tenancy Act and it must be held that a statutory tenant even after the determination of the tenancy enjoys all the rights and privileges available to a contractual tenant. Accordingly, the application under Section 8 is maintainable in law. Mr, Dasgupta next contended that the West Bengal Premises Tenancy Act has an overriding effect and the right of the landlord to get recovery of possession from the tenant is subject to the provisions of the West Bengal Premises Tenancy Act. Hence simply because a suit for eviction has been filed the landlord is not entitled to recover possession under the provisions of the Transfer of Property Act and until and unless the grounds specified in West Bengal Premises Tenancy Act are fulfilled a landlord is not entitled to recover possession from the tenant and despite determination of contractual tenancy by the landlord the statute has recognised the right of the tenant to continue in possession with all rights and privileges available to a contractual tenant. In such circumstances, an application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent is applicable (sic) at the instance of such statutory tenant.

4. Mr. Deb, the learned Counsel appearing for the landlord opposite party submitted that after the determination of the tenancy by the landlord the contractual tenancy comes to an end but the tenant enjoys a special protection to remain in possession of the suit premises until a decree for eviction is passed against him by competent court of law. The protection given to the tenant to remain in possession does not make the tenant a contractual tenant and the right to remain in possession of such a person who otherwise would have been a rank trespasser is a personal right to remain in possession and under the West Bengal Premises Tenancy Act the tenant and/or his heirs and legal representatives have been given this protection against eviction in the absence of any decree for recovery of possession passed by a competent court of law. Mr. Deb submitted that the special right of protection against eviction until a decree is passed by the court of law cannot be equated with the right of a contractual tenant and there are sufficient indications of contrary intentions in the West Bengal Premises Tenancy Act which will show that the Legislature never intended that the person enjoying such protection under the West Bengal Premises Tenancy Act will enjoy equal right and status as those of a contractual tenant. Accordingly, Mr. Deb submitted that the decision of the Supreme Court in Damadilal's case can be distinguished so far as the statutory tenant under the West Bengal Premises Tenancy Act is concerned. In this connection, Mr. Deb referred to the decision of the Supreme Court made in the case of Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi reported in : [1964]4SCR892 . In the said decision the Bombay Rents, Hotel and Lodging House Rates Control Act was taken into consideration by the Supreme Court and it was held on the basis of majority view that a person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He had merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal and it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute. The provisions of Sub-section (1) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act provides that a landlord shall not be entitled to recovery of possession of any premises so long as the tenant pays rent and observes and performs the conditions of the tenancy as provided in the section. It was held by the Supreme Court that the 'tenant' contemplated in Sub-section (1) of Section 12 is a tenant whose lease has come to an end. Considering various sections of the said Act, the Supreme Court came to the finding that although such tenant enjoys, a protection against eviction, such protection does not make the tenant a contractual tenant and the rights of such tenant emanate from the provisions of the statute. Mr. Deb also referred to another decision of the Supreme Court made in the case of J . C. Chatterjee v. Sri Kishan Tandon reported in : [1973]1SCR850 . In the said case, the Supreme Court considered the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Following the decision made in Anand Nivas P. Ltd.'s case reported in : [1964]4SCR892 , the Supreme Court also held in the said case that the right of statutory tenant is only personal and the heirs and legal representatives of a statutory tenant cannot claim the status of a tenant. Mr. Deb submitted that the provisions of the said Rajasthan Act are also similar to the provisions of the West Bengal Premises Tenancy Act and as such it must be held that the statutory tenant under the West Bengal Premises Tenancy Act has only a personal right of protection and he does not enjoy all the rights and privileges available to a contractual tenant. Mr. Deb also referred to another decision of the Supreme Court made in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd. reported in : [1968]2SCR20 . In the said decision the Supreme Court considered the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. It was held in the said decision that once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. It was held in the said case that a statutory tenant has merely a personal right to protect his possession and has no estate or interest in the premises occupied by him. Accordingly a statutory tenant cannot convey any estate or interest which he does not possess and a statutory tenant by parting with possession forfeits the protection of the Act and unless the statute expressly provides or clearly implies otherwise, the person inducted by him cannot claim the protection of the Act. Considering Section 12(i) and Section 13 of the said Act, the Supreme Court held that Clause (c) of Section 12 (1) applies only to a case In which the tenant has an interest in the estate which he could sublet. Similarly. Section 13 contemplates a case in which a contractual tenant has sublet the premises and considering the scheme and object of the Act, it was held that the expression 'tenant' in Clause (c) of Section 12 (1) or in Section 13 (3) must mean a contractual tenant alone and not a statutory tenant. It was also held that the definition of tenant in Section 2 (11) of the said Act includes a statutory tenant, but that definition does not apply if there is anything repugnant in the subject or context and as a statutory tenant has no interest or estate in the premises occupied by him, the Supreme Court observed that it cannot be held that the Legislature without making provision to that effect intended to invest him with power to induct into the premises in his occupation a person who is entitled to claim the riant and interest of a contractual tenant. Relying on the said decision Mr. Deb submitted that there is no express provision showing the intention of the Legislature that a statutory tenant will have all the rights of contractual tenant despite the fact that the tenancy had been determined by a valid notice. Mr. Deb further submitted that it will appear from different provisions of the West Bengal Premises Tenancy Act that the personal protection given to the statutory tenant against delivery of possession until a decree for recovery of possession is passed by a Court of law is dependent on such statutory tenant's performing certain obligations created under the statute. One of such obligations is that the said statutory tenant in order to maintain his defences against delivery of possession must go on paying the landlord or depositing in the Court or before the Rent Controller within a specified time a sum equivalent to the rate of rent month by month and he should also deposit all arrears together with statutory interest thereon, within a specified time. Mr. Deb contended that it will appear from the provisions of Section 17 (1) of the West Bengal Premises Tenancy Act that a statutory tenant is to deposit a sum equivalent to the rate of rent and the expression equivalent to the rate of rent has been used, according to Mr. Deb, by the Legislature intentionally to mean that after the determination of the tenancy there is no relationship of landlord and tenant between the parties but the statutory tenant only enjoys the special protection from eviction until the suit is decreed by a court of law. Mr. Deb also contended that admittedly in the instant case the tenancy has been determined and suit for eviction is pending and under the provisions of Section 11 of the West Bengal Premises Tenancy Act a tenant is bound to deposit sums equivalent to the rate of rent last paid. Accordingly in order to enjoy a personal protection against eviction until the suit is decreed, a statutory tenant cannot deposit any other sum but he must deposit sums equivalent to the rate of rent last paid and admittedly the rent last paid was the contractual rent. Mr. Deb submitted that in such circumstances, determination of standard or fair rent will be of no consequence because to enjoy such personal protection against delivery of possession a statutory tenant is bound to deposit sums at the rate of rent last paid month by month and no other sum. Mr. Deb submitted that the said provision clearly establishes that the Legislature intended that the statutory tenant shall not enjoy all the powers and privileges available to a contractual tenant and the right of special protection of a statutory tenant is subject to strict compliance of the provisions of the statute and one of such provisions is payment at the rate of rent last paid month by month within the specified time during the continuance of the suit. Mr. Deb also referred to the provisions of Section 19 of the West Bengal Tenancy Act. It has been provided in Section 19 of the said Act that a tenant who is in possession of any premises to which the Act applies shall observe all the terms and conditions of the contract creating the tenancy and shall be entitled to the benefits thereof so far as these terms and conditions are consistent with the provisions of the Act. Mr. Deb submitted that by the provisions of Section 19 a tenant including a statutory tenant has become entitled to the benefits arising out of the contract between the landlord and the tenant so far as such terms are not inconsistent with the provisions of the Act. Under the provisions of Section 19 a tenant is not entitled to get the fair and/or standard rent determined by the Rent Controller because such determination of standard and/or fair rent is not on the basis of contract between the parties but under the special provisions of the statute. Referring to the said Section 19, Mr. Deb contended that the Legislature expressly provided that any tenant including the statutory tenant continuing in possession of the premises in question will be entitled to the benefits arising out of the contract executed by and between the landlord and tenant at the time of inception of the tenancy in so far as such terms are not inconsistent with the provisions of the Act, but it has not been provided anywhere in the Act that a statutory tenant will have the same status as that of a contractual tenant.

5. Mr. Chatterjee the learned Counsel appearing as amicus curiae referred to the provisions of Section 2 (c) of the West Bengal Premises Tenancy Act which defines fair rent. He submits that the rent is in relation to premises and not in relation to parties and under the provision of Section 8 (1) it has been expressly stated that the fair rent is in relation to the premises and under Section 10 of the Premises Tenancy Act, the Controller shall determine fair rent on the application either by the landlord or by the tenant. Mr. Chatterjee further submits that it is thus evident that under the provisions of West Bengal Premises Tenancy Act rent or fair rent is in relation to the premises and not in relation to the parties and the Rent Controller is to determine fair rent on 'the basis of the application made either by the landlord or tenant including statutory tenant. Mr. Chatterjee also refers to Section 19 of the Premises Tenancy Act and submits that under Section 19 all the terms and conditions arising out of contract are available to a tanant in possession of the premises in question. Accordingly Mr. Chatterjee submits that a statutory tenant being a tenant in possession of the premises in question has been expressly given the privileges and benefits arising out of the contract between the parties and rent is also an element of contract between the parties. Mr. Chatterjee also submits that since fair rent is in relation to the premises and not in relation to the parties, the status of the party is not to be looked into and even assuming that statuory tenant cannot be put at par with the contractual tenant an application made by such statutory tenant for determination of fair rent of the premises is maintainable in law. Mr. Chatterjee in his contention also refers to the provisions of Section 18 (2) of the Premises Tenancy Act. It has been provided in the said section that when a landlord obtains delivery of possession of the suit premises for effecting building and rebuilding or additions and alterations on the suit premises on the ground that such building or rebuilding and/or additions or alterations are not possible if the premises is in the occupation of the tenant, the landlord is under an obligation to put the tenant back in possession of the premises after completion of such building and rebuilding and alterations and additions and under Sub-section (2) of Section 18 it has been provided that if upon an order being made under Sub-section (1) of Section 18 by the Rent Controller to put the tenant in possession within 14 days of the date of the order, the landlord fails or neglects to deliver possession of the premises to the tenant within the time specified, then the Controller shall execute the order and put the tenant in possession of the premises and in that event the tenant shall be liable to pay fair rent in respect of the premises from the date of delivery of such possession. Mr. Chatterjee contends that the said Section 18 makes it clear that the right to determination of fair rent is maintainable even when a conditional decree for eviction was passed against a tenant on the ground of building and rebuilding and additions and alterations. After considering contentions of the respective Counsel appearing for the parties and also the submissions made by the learned Counsel appearing as amicus curiae, it appears to me that a statutory tenant continuing in possession after the determination of the contractual tenancy has a statutory protection against eviction from the premises in question until a decree for recovery of possession is passed by the competent court of law on fulfilling certain terms and conditions specified in the Act. Such statutory tenant, in my view, does not enjoy the same position as that of a contractual tenant. Section 19 of the Act. makes it quite clear that the Legislature has expressly given the tenant including the statutory tenant all the rights and privileges arising out of the contract between the landlord and the tenant. If such express provision was not there in the Act, the statutory tenant could not have claimed the benefit of the terms and conditions of a contract between the parties if contractual tenancy had been determined. Section 18 of the Premises Tenancy Act, in my view, also makes it quite clear that if a decree for eviction is passed against a tenant on the ground of building and rebuilding and/or additions and alterations the tenant can claim re-entry in the suit premises if the suit premises is not let out in the meantime and if the Rent Controller allows the claim of the tenant of such re-entry in the suit premises, the Rent Controller has been authorised to determine the fair rent in the altered circumstances in respect of the portion wherein the tenant will be allowed re-entry. The provisions of Section 18 have been made so that a claim of re-entry of the tenant allowed by the Rent Controller is enforced and proper rent for the premises to be occupied by earstwhile tenant on re-entry is determined. I am inclined to accept the contention of Mr. Deb that Section 17 of the West Bengal Premises Tenancy Act clearly indicates that a statutory tenant, in order to enjoy protection against delivery of possession is not to deposit rents but sums equivalent at the rate of rent last paid and from the scheme of the Act and from said Section 17, it may be reasonably inferred that the legislature did not intend that the statutory tenant will be treated at par with a contractual tenant under the West Bengal Premises Tenancy Act. Accordingly, after the determination of tenancy, the statutory tenant cannot make an application under Section 8 of the West Bengal Premises Tenancy Act for determination of fair rent by the Rent Controller. There is also a salient feature in this case. The defence of the tenant against delivery of possession has been struck down by the Court under Section 17 (3) of the West Bengal Premises Tenancy Act in the said Title Suit. It has been held by the Supreme Court in the case of Smt. Bela Das v. Samarendra Nath Bose reported in : [1975]2SCR1004 that the plea set up by the defendant tenant that the plaintiffs being landlords of the suit premises for a moiety of share could not alone claim a decree for eviction against him was nothing but a plea qua tenant and not dehors it. The Supreme Court held that the striking out of the defence against delivery of possession had the effect of striking Out all defences raised by the defendant qua tenant including the defence that the plaintiffs alone being co-sharer landlords were not entitled to maintain the suit for eviction. In such circumstances, even assuming that a statutory tenant enjoying all the privileges of a tenant can maintain an application for fair rent after determination of contractual tenancy, in the instant case such application is not maintainable when the defence of the statutory tenant against delivery of possession has been struck-out and the said statutory tenant is nre-cluded from raising any plea against delivery of possession qua tenant. The statutory tenant, therefore, cannot make any claim for determination of fair rent because payment at the rate of rent is only necessary for continuance of the possession of a statutory tenant and for his protection against delivery of possession. Accordingly, the Rule fails and is dismissed but I make no order as to costs. The Court appreciates the valuable assistance rendered by Mr. Chatterjee, the learned Counsel appearing as amicus curiae.


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