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Manindra Bhusan Sanyal Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberMatter No. 573 of 1970
Judge
Reported inAIR1976Cal174
ActsWest Bengal Premises Tenancy Act, 1956 - Section 25A to 25G; ;Constitution of India - Articles 14 and 245
AppellantManindra Bhusan Sanyal
RespondentState of West Bengal
Appellant AdvocateT.P. Das, Adv.
Respondent AdvocateP.K. Sengupta, Adv.
DispositionApplication dismissed
Cases ReferredBudhan Choudhury v. State of Bihar
Excerpt:
- .....out sections 25-a to 25-g of the said act. the said sections read as follows:'25-a, fixation of fair rate and number of lodgers. the controller shall, on the application made 'by any person interested,--(a) fix a fair rate to be charged for board, lodging or other service provided in a hotel or lodging house and in fixing such fair rate specify separately the rate for lodging, board or other service;(b) fix the number of lodgers to be accommodated in each room or specified unit of accommodation in a hotel or lodging house.25-b. revision of fair rate and number of lodgers. the controller may from time to time revise the fair rate or the number of lodgers fixed under section 25-a.25-c. notice of fair rate and number of lodgers to be displayed.-- the manager of a hotel or the owner of a.....
Judgment:

S.C. Ghose, J.

1. In the instant rule, the petitioner who carries on the business of running a hotel or lodging house under the name and style of 'Rest-Cot Boarding House' at Nos. 23 and 23/1, Hayat Khan Lane, Calcutta seeks to have the provisions contained in Sections 25-A to 25-F incorporated into the West Bengal Premises Tenancy Act, 1956 by the enactment of Section 10 of the West Bengal Premises Tenancy (Second Amendment) Act 1969 struck down.

2. The petitioner as stated herein-above has been carrying on the said business of running the hotel or lodging house known as 'Rest-Cot Boarding House'. There are many boarders and lodgers in the said lodging house of the petitioner and the rates payable by them for board and lodging vary from Rs. 3 to Rs. 4 per day depending upon the quality, situation and the space of the rooms allotted to such boarders.

3. For running the said boarding house and/or hotel, the petitioner has to obtain licence from the Commissioner of Police, Calcutta in accordance with the provisions of the Calcutta Police Act, 1866. Such licence is granted for a period of one year at a time and has to be renewed year after year. Prior to the introduction of Chapter IV-A in the said Act by means of Section 10 of the abovementioned Amendment Act, the lodgers or boarders of hotels and lodging houses who had been prior to the said Amendment mere licensees in respect of the space or seats allotted to them in the hotel or lodging house have acquired rights akin to tenancy of premises under the West Bengal Premises Tenancy Act, 1956 and cannot be evicted except on the grounds specified in Section 25-E. Subsequently, Section 25-G has been incorporated in the West Bengal Premises-Tenancy Act by means of the Amendment Act 18 of 1970 with effect from March 6, 1970.

4. In order to appreciate the contentions of the respective parties, it is necessary to set out Sections 25-A to 25-G of the said Act. The said sections read as follows:

'25-A, Fixation of fair rate and number of lodgers. The Controller shall, on the application made 'by any person interested,--

(a) fix a fair rate to be charged for board, lodging or other service provided in a hotel or lodging house and in fixing such fair rate specify separately the rate for lodging, board or other service;

(b) fix the number of lodgers to be accommodated in each room or specified unit of accommodation in a hotel or lodging house.

25-B. Revision of fair rate and number of lodgers. The Controller may from time to time revise the fair rate or the number of lodgers fixed under Section 25-A.

25-C. Notice of fair rate and number of lodgers to be displayed.-- The manager of a hotel or the owner of a lodging house shall, where the fair rate or the number of lodgers has been fixed under Section 25-A for a hotel or lodging house, display in a conspicuous part of the hotel or lodging house a notice of the fair rate and the number of lodgers so fixed.

25-D. Agreement for payment of charges in excess of fair rate.-- An agreement for the payment of any charge in excess of the fair rate referred to in Section 25-A shall be null and void in respect of such excess and shall be construed as if it were an agreement for the payment only of such fair rate,

25-E. No eviction if fair rate paid.--No manager of a hotel or owner of a lodging house shall have any right to evict or refuse board or other service to a lodger as long as he (pays or tenders payment of the fair rate fixed under Section 25-A and observes and performs the other conditions of the agreement in so far as they are not inconsistent with the provisions of this Chapter;

Provided that a lodger shall not be entitled to the benefit of this section--

(a) if a lodger has been guilty of conduct which is a nuisance or an annoyance to the other lodgers of the hotel or lodging house; or

(b) if the lodger has continuously been absent from such hotel or lodging house for a period exceeding two months; or

(c) if the lodger having contracted to stay for any specified period stays beyond that period unless the Controller on an application made to him in this behalf extends the period.

25-F. Punishment.-- (1) Every manager of a hotel or owner of a lodging house who accommodates lodgers or permits lodgers to be accommodated in a room or specified unit of accommodation in a hotel or lodging house in excess of the number fixed by the Controller under Section 25-A, except with the consent of all the lodgers of such room or specified unit of accommodation shall on conviction in a Criminal Court be punished with fine which may extend to one thousand rupees.

(2) Every manager of a hotel or owner of & lodging house who fails to display a notice as required under Section 25-C of the fair rate or the number of lodgers fixed under Section 25-A shall on conviction in a Criminal Court be punished with fine which may extend to five hundred rupees.

25-G. 'Chapter IV-A not to apply to certain hotels or lodging houses. The provisions of Chapter IV-A shall not apply to hotels or lodging houses included in the list of hotels or lodging houses approved by the Department of Tourism of the Government of India.'

5. The rooms in the lodging house of the petitioner (sic) and must necessarily be in all lodging (houses and/or hotels different in sizes, quality and situation. The impugned sections in particular Sections 25-A to 25-F have taken away, according to the petitioner, the rights of property of the petitioner and further contravened the provisions of Article 14 of the Constitution inasmuch as same rates have to be fixed in regard to different space, in different rooms of different sizes, quality and situation in a particular lodging house and1 hotel under the provisions of the said impugned Section 25-A of the said Act. Section 25-B of the Act confers upon the Rent Controller power to revise fair pates or number of lodgers fixed under Section 25-A from time to time. No principle or guideline has been laid down either for fixation of the rates or number of lodgers to be accommodated in a lodging house either in the first instance under Section 25-A or by way of revision under Section 25-B and as such uncanalised and unbridled legislative power has been conferred upon the Rent Controller by the said impugned provisions according to the petitioner. Section 25-G exempted hotels or lodging houses included in the fist of hotels or lodging houses approved by the Department of Tourism of the Government of India from being within the mischief of Sections 25-A to 25-F of the said Act. Further Section 2-F of the Act excludes a room in a hotel or a lodging house from being a 'premises' and thus, the impugned sections could not have been included in the West Bengal Premises Tenancy Act 1956 which Act was meant to apply and applies only to a 'premises' as defined in Section 2-F of the said Act,

6. Mr. T.P. Das, the learned counsel appearing on behalf of the petitioner challenged the impugned legislation on the abovementioned grounds. Mr. Das in elaborating his submissions also contended that the impugned legislation might lead to the possibility of a conflict between the provisions of Calcutta Police Act and the impugned legislation inasmuch as if the licence under the Calcutta police Act to run the lodging house or hotel be not renewed, the petitioner even then would not be able to either evict the lodgers or to charge any rate from them. In the case of fixing fair rent under the Act, guidelines have been provided for, but no such guideline has been laid down for the purpose of fixing rates payable by a lodger of a hotel or lodging house. Moreover, the Rent Controller who is a persona designate when he fixes rate under Section 25-A of the Act is not a court nor does he exercise judicial function and thus may be liable to discriminate between one hotel or lodging house and another hotel or lodging house. Indeed, the basis or principle for fixing fair rate or number of persons to be accommodated in a hotel or lodging house will perforce change with the change of the personnel of the Rent Controller. Mr. Das in support of his contentions relied on various authorities to which I shall advert later in my judgment.

7. Mr. P.K. Sen Gupta appearing on behalf of the respondent, State of West Bengal submitted that the Rent Controller which was a statutory tribunal was entrusted under the impugned sections with the duty of fixing fair rate. The Tribunal was a court for all practical purposes and was always manned by a judicial officer. In fixing the rate, the officer concerned has to give the reasons for his decision. He has, in any event, to 'act judicially and even though his decision might not be the subject-matter of appeal under Section 29 of the Act, it was certainly subject to be revised and reviewed by the High Court under Article 227 of the Constitution. Mr. Sengupta in support of his contentions relied on the cases of Nandalal Das v. Monmatha Nath Ghosh, : AIR1962Cal597 ; Budhan Choudhury v. State of Bihar, : 1955CriLJ374 ; Bhagwan v. Ram Chand, : [1965]3SCR218 and S.G. Jaisinghani v. Union of India, : [1967]65ITR34(SC) .

8. The first case relied on by Mr. Das was the case of S.M. Nawab Ariff v. Corporation of Calcutta reported in : AIR1960Cal159 (SB), a decision of a Special Bench of this Court, where the Special Bench by a majority decision struck down Section 237 of the Calcutta Municipal Act on the ground of being discriminatory and violative of Article 14 of the Constitution, inasmuch as the Act did not make any reasonable classification 'between the cases where the consolidated rates could be recovered by the Corporation of Calcutta by the use of distress warrant in accordance with the provisions of Section 237 and the cases where the procedure by way of suit under Section 251 was to be followed. No guideline was laid down in the Act for resorting to the alternative mode for recovery of consolidated rates. So also in the instant case, according to Mr. Das, no guideline has been laid down for fixation of rates. Such fixation would be based on caprice of the Rent Controller and was bound to be discriminatory and thus would contravene Article 14 of the Constitution. The impugned provisions are also bad according to Mr. Das, on the ground of excessive delegation of legislative power upon the Rent Controller. The impugned provisions in the instant case have conferred, according to Mr. Das, uncontrolled and uncanalised power on the Officer concerned.

9. Mr. Das then relied on the case of Mohammad Alli v. Union of India, reported in : (1963)ILLJ536SC . In construing in the said case, the provisions of Employees' Provident Funds Act, 1952 and in particular Sections 1 (3) (b) and 17 thereof, the Supreme Court held that the impugned provisions had the effect of bringing within the provisions of the Act all kinds of employees of such establishments or class of establishments as the Government might by notification in the Official Gazette specify after reviewing the circumstances on each class of establishments. The kinds of establishments to which the Act applies or may be applied have been laid down in Section 1 (3) of the Act. aS an exception to that general rule, an appropriate Government has been empowered by Section 17 of the said Act to exempt any establishment from the operation of all or any of the provisions of or any scheme framed under the Act, The conditions for granting exemptions under Section 17 of the Act have been laid down in the said Section. So the impugned provisions were held to be neither discriminatory nor suffering from the vice of excessive delegation.

10. The next case cited by Mr. Das was the case of Vasanlal Maganbhai Sanjanwala v. State of Bombay (now Maharashtra) reported in : 1978CriLJ1281 wherein the Supreme Court observed that the power of delegation of legislative function to meet the challenge of the complex socio-economic problems as they arose from time to time to delegate for carrying out the policy, laid down by the Acts concerned, was not only convenient, but necessary in the exigencies of the present circumstances. But, nonetheless, it was not permissible to delegate any essential legislative function or power. The Legislature must enunciate its policy and principle and lay down the guideline for the guidance of the delegate. If the legislature does so, the delegation will not be tainted with the vice of excessive delegation. In case of delegation of an essential legislative function or power without laying down any guideline for the exercise of such power by the delegate, the delegation would contravene the provisions of Article. 245 of the Constitution.

11. Mr. Sengupta, relied on the decision of a Division Bench of this Court in Nand Lal Das v. Manmatha Nath Ghose, : AIR1962Cal597 wherein it was decided that the authority, empowered to hear appeals by Section 29 of the West Bengal Premises Tenancy Act, 1956, was a court and not a persona designata. But, then the decision only goes to the extent of deciding that the Appellate Authority as contemplated by Section 29 of the West Bengal Premises Tenancy Act, 1956 was a Court. Sub-section (5) to Section 29 of the said Act expressly makes such Appellate Authority a Court. Sub-section (5) of the said section makes the Rent Controller also a Court for the exercise of power under Section 151 or Section 152 or Order 47 of the Code of Civil Procedure. But it does not make the Rent Controller a Court for all purposes except for the specific and limited purposes mentioned in the said sub-section.

12. The next case cited by Mr. Sengupta is the case of Budhan Choudhury v. State of Bihar reported in : 1955CriLJ374 wherein the Supreme Court laid down the preconditions for non-contravention of the provisions of Article 14 of the Constitution. Classification, according to the Supreme Court would be permissible provided that:--

(1) the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and

(2) there must be a nexus between the basis of classification and the object of the statute making such classification. In the instant case, the provisions enacted in Section 25-G of the Act have made the provisions of Chapter IV-A of the Act inapplicable to Hotels or lodging houses included in the list of hotels or lodging houses approved by the Department of Tourism of the Government of India. Such hotels or lodging houses, it appears, are meant mainly to cater to the needs or requirements of tourists and thus form a distinct class amongst hotels or lodging houses. Exempting the said hotels or lodging houses under Section 25-G satisfy the two conditions mentioned hereinabove as laid down in the said case of Budhan Choudhury v. State of Bihar by the Supreme Court. The Supreme Court further in the abovementioned case in construing a provision in the Criminal Procedure Code for trial of a person charged under Section 366 of the Code either by the Court of Session or by a Section 30 Magistrate, observed that the decision to try the accused by the Court of Session or by a Section 30 Magistrate does not depend on the whim or the caprice of the police or executive Government. The question had to be decided judicially by the Magistrate concerned in the exercise of his judicial discretion. Such judicial discretion would be exercised on the facts and circumstances of each case and although Article 14 extends to all actions of the State including that of the judiciary, unless there was an intentional and purposeful discrimination, the provision could not be said to be in contravention of Article 14 of the Constitution. The decision of the Supreme Court rested on the principle that exercise of discretion of judicial officers could not be arbitrary as the same was subject to the revision by the superior Courts,

13. In the case of Bhagwan v. Ram Chand reported in : [1965]3SCR218 relied on by Mr. Sengupta, the Supreme Court considered the power entrusted to the District Magistrate and/or Commissioner and/or State Government to grant sanction to the landlord to institute proceedings for eviction against their tenants under Sections 3 (2) (3) and 7-F of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The Supreme Court was of the view that in exercising such power of granting sanction, the Authorities mentioned in the abovementioned section of the said Act, had to consider the matter in a quasi-judicial manner and were obliged to, state the reasons fox doing so.

14. The case of S.G. Jaisinghani v. Union of India reported in : [1967]65ITR34(SC) which deals with the promotion rules for Income-tax Officers directly recruited or promoted from an inferior rank, to my mind, is not quite relevant for the purpose of deciding the instant application. In the instant case, it appears to me that the Rent Controller under the Act is a persona designata. Even then the Rent Controller is a tribunal and always hag to decide any question required to be decided by it in a judicial manner after giving the parties full opportunities to substantiate their respective oases 'before him. In fixing fair rate to 'be charged for both lodging and other services provided in a hotel or lodging house or the number of lodgers to foe accommodated in each room or specified unit of accommodation in such a hotel or lodging house, the Controller has to, in my opinion, consider all the relevant factors having a bearing on the issues relating to rate or number of persons to 'be accommodated in a room or unit of accommodation in a hotel or a lodging house. The Rent Controller is bound by, the principles of natural justice to allow the respective parties full opportunities to adduce evidence in support of their respective cases and come to a finding on the basis of such evidence adduced by the parties. The decision of the Controller on the issues involved before him in regard to fixation of fair rate or number of boarders or lodgers in a room in a hotel or lodging house will not depend upon the whim or caprice of the Controller and will be subject to revision by the High Court under Article 227 of the Constitution.

15. In enacting Sections 25-A to 25-G of the said Act, the legislature while entrusting the Controller with the power of fixation of fair rate or number of lodgers in a room or unit of accommodation in a hotel or lodging house had the above-mentioned facts in its view. By reason of the premises, it cannot be said that in enacting the impugned sections, the legislature abdicated its functions and delegated the essential functions of legislation to the Rent Controller. In my opinion, the observations of the Supreme Court in the case of Budhan Choudhury v. State of Bihar, : 1955CriLJ374 relating to the entrustment of the power upon the Magistrate to decide whether the accused under Section 366 would be tried in a Court of Session or by a Section 30 Magistrate apply with equal force to the facts and circumstances of the instant case. For the reasons stated hereinbefore, in my opinion, the impugned legislation in the instant case does not contravene either Article 14 or Article 245 of the Constitution of India.

16. It is true that a room in a hotel or lodging house is not a premises as defined in the West Bengal Premises Tenancy Act, 1956. But then that by itself in my opinion cannot make the impugned sections in Chapter IV-A in the Act tainted with the vice of invalidity. Chapter IV-A of the Act is a separate and distinct chapter, and has dealt with lodging houses and Boarding houses. It is true that the preamble of the Act states that the Act is to provide for the regulation of tenancies in premises. But that by itself does not make Chapter IV-A of the Act ultra vires. The enactments in Chapter IV-A ere sufficiently clear and unambiguous, the Preamble of the Act cannot control them. The said provisions seem to me to be valid and effective. For the reasons stated hereinabove, I am of the view that there is no merit in this application.

17. In the premises, the application is dismissed. The rule nisi will stand discharged. There shall, however, be no order as to costs.


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