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West Bengal Engineering Co. Etc. Vs. Manindra Land and Building Corporation - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Nos. 3152 to 3161, 3164 and 3165 of 1952 and 243 and 244 of 1953
Judge
Reported inAIR1954Cal127,58CWN143
ActsWest Bengal Premises Rent Control Temporary Provisions Act, 1950 - Sections 5, 9 and 13
AppellantWest Bengal Engineering Co. Etc.
RespondentManindra Land and Building Corporation
Appellant AdvocateSitaram Banerjee and ;Amarendra Nath Gupta, Advs.
Respondent AdvocateApurbadhan Mukherjee and ;Anil Kumar Sen, Advs.
Excerpt:
- .....in each case.against his decision both the tenant and the landlord preferred appeals before the chief judge of the court of small causes, calcutta. the chief judge transferred these appeals to the learned judge, fifth bench of that court. the learned judge of the fifth bench varied the orders made by the rent controller. against the order of the learned judge, fifth bench, applications in revision were filed in this court.this court decided that the learned judge, fifth bench had no jurisdiction to hear the appeals and on that ground the order made by the learned judge, fifth bench was set aside and the cases were remitted to the learned chief judge, court of small causes, calcutta for disposal by him.when these appeals were taken up for hearing by the learned chief judge he, after.....
Judgment:

G.N. Das, J.

1. These revision cases arise out of ten applications for revision of order made by Sri S. Sen Gupta, dated 25th November 1952. By the said order the applications filed by the petitioner for fixation of standard rent of the premises in respect of which they are tenants were dismissed as not being maintainable in law.

2. The petitioner in each of the cases is a sub-tenant under the opposite party Manindra Land and Building Corporation Ltd. in respect of certain rooms in premises No. 138, Canning Street, Calcutta. The Manindra Land and Building Corporation Ltd. took lease of the entire premises under a registered deed dated 22nd March 1949 for a term of fifty one years. The petitioners, who are tenants, as I have already stated, filed these applications for fixation of standard rent The landlord-opposite party also filed applications for fixation of standard rent. All these applications were heard by the Rent Controller and by his order dated 7th March 1950, the Rent Controller fixed the standard rent in each case.

Against his decision both the tenant and the landlord preferred appeals before the Chief Judge of the Court of Small Causes, Calcutta. The Chief Judge transferred these appeals to the learned Judge, Fifth Bench of that Court. The learned Judge of the Fifth Bench varied the orders made by the Rent Controller. Against the order of the learned Judge, Fifth Bench, applications in revision were filed in this Court.

This Court decided that the learned Judge, Fifth Bench had no jurisdiction to hear the appeals and on that ground the order made by the learned Judge, Fifth Bench was set aside and the cases were remitted to the learned Chief Judge, Court of Small Causes, Calcutta for disposal by him.

When these appeals were taken up for hearing by the learned Chief Judge he, after hearing the learned advocates for the parties, was of the opinion that the applications for fixation of standard rent were not maintainable. The learned Chief Judge was of the opinion that so far as the lease in favour of the landlord-opposite party is concerned, by virtue of the provisions contained in Section 5 of the West Bengal Premises Rent Control Temporary Provisions Act, 1950, the Act was inapplicable to that lease. The learned Chief Judge was further of the opinion that it would result in an anomaly if the provisions of the Rent Control Act are applied to a sub-lease granted by such landlord. He was also of the opinion that if an application for fixation of standard rent was maintainable at the instance of a lease from the opposite party it may work hard on the landlord-opposite party.

3. Against this order the tenants have moved this Court in revision. Mr. Banerjee appearing for the petitioners in support of these Revision Cases has submitted that the learned Chief Judge was in error in holding that the applications for standardisation of rent was not maintainable.

4. The question before us is one of some importance and still awaits a decision by a Bench of this Court. The question whether an application for fixation of standard rent is maintainable has to be determined on a reference to the provisions of Section 9 of the Rent Control Act, 1950. Section 9(1) empowers the Controller to fix standard rent on an application by either the landlord or the tenant. The word 'landlord' is defined in Section 2(4) as

'any person who is receiving the rent of anypremises from the tenant thereof and includesany person who is entitled to bring a suit forsuch rent.'

The word 'tenant' is defined in Section 2(11) to mean

'any person by whom rent is payable or butfor a special contract would be payable forany premises and includes any person who isliable to be sued for rent.'

The word 'premises' is defined in Section 2(8) as

'any building or part of a building or any hutor part of a hut let separately.'

Section 9 entitles any landlord or any tenant to apply for standard rent. The words 'landlord' and 'tenant' are used in Section 9 without any reservation. On a plain reading of Section 9 read along with the definitions of the words 'landlord', 'tenant' and 'premises' it follows that an application may be made at the instance of any lessee 'vis-a-vis' his landlord irrespective of the question whether the landlord is himself a tenant or not. Section 9(1), therefore, contemplates applications by lessees and sub-lessees as against their respective landlords and is not limited to cases of lessees of the first or second degree as was suggested on behalf of the opposite party-landlord. The various clauses of Section 9(1) merely provide the basis for fixation of the amount of standard rent. These clauses do not, in my opinion, throw any light on the question as to whether an application for fixation ofstandard rent can be made by one category of tenants or another.

Before the learned Chief Judge it was argued that the plain meaning of Section 9(1) must be controlled by a reference to the provisions of Schedule A, paragraph 4. It was contended that Schedule A, paragraph 4 contains an express provision making that paragraph inapplicable to cases coming within Section 3 of the Act, viz., cases of leases which came into existence before the 1st December 1941 and which were still running, but that no such exception has been made in regard to cases coming within Section 5 of the Act. It was consequently urged that the lease referred to in section was excluded. The omission may be a 'casus omissus'. In any event this fact is not sufficient to cut down the clear operation of Section 9(1) of the Act.

5. Section 5 of the Rent Control Act, 1950 provides that nothing contained in the Act shall apply to leases executed after the 1st of December 1941 for a period exceeding 15 years and which could not be terminated at the option of the landlord. In other words, Section 5 implies that any of the provisions contained in this Act will not be made applicable to leases specified in Section 5. The clear intendment is that such leases cannot be directly reached by any provision contained in the Act. An application for fixation of standard rent by a tenant of a lessee of the description referred to in Section 5, cannot be said to affect directly the terms of the lease referred to in that section. It was suggested that the effect of standardisation of rent of a sub-lessee who claims under a lessee referred to in Section 5, would have the effect of encroaching upon the right of the lessee to let out the lands covered by his lease of any terms he chooses.

In my opinion, Section 5 has only a limited operation and prevents direct encroachment on the incidents of the lease by a resort to the provisions of the Act. The Act is intended to remedy the inconveniences of tenants in general and the operation of the Act must be construed so as to advance the intention of the framers of the Act and not to restrict the same. Paragraph 4 of Schedule A, as I have already stated, merely fixes the maximum rent which is payable by a lessee. In the present case if the application for standardisation of rent is granted, this would only interfere with the contractual rent as between the landlord-opposite party and its tenants. It will not in any way affect or interfere with the incidents of the lease held by the landlord-opposite party. In my opinion, therefore, the application for fixation of standard rent at the instance of the petitioner was maintainable in law on a plain interpretation of the provisions of Section 9(1) of the Act.

6. The inconveniences and hardships to which the learned Chief Judge of the Court of Small Causes refers, are neither relevant nor cogent reasons for restricting the operation of Section 9(1) of the Act. The learned Chief Judge was in error in thinking that the effect of Section 5 of the Act was to protect the lessee of the description mentioned therein not merely in relation to his rights under the lease but also to prevent applications for standardisation of rent by his lessees. There is no question of anomaly in such a case, nor will it work hard on the landlord-opposite party who fulfils description of the lessee referred to in Section 5 because of the operation of paragraph 4 of Schedule A. That paragraph gives to a lessee of the description referred toin Section 5, 6 1/4 per cent. in excess of the rent he has himself to pay to his own landlord.

7. Mr. Apurbadhan Mukherjee who has appeared for the opposite party has raised a further ground in support of the view that an application for fixation of standard rent is not maintainable at the instance of a tenant of a second degree as the petitioners are. Reference was made to the provisions of Section 13 of the Rent Control Act, 1950. It was suggested that the definitions of the word 'landlord' and 'tenant of the first degree' support his submission. Quite apart from the fact that the explanations contained in Section 13 are only intended for the purposes of that section, a perusal of the section as a whole shows that the section contemplates not merely tenants of the first and second degree but of other degrees as well. That the Legislature did not intend to limit the operation of the Act only to lessees of the first degree and of the second degree is supported by the general scheme of the Act. Moreover, in the present case, as the learned Judge has pointed out, the opposite party is a tenant of the first degree; and the petitioners are the tenants of the second degree. We are, therefore, concerned with the case of fixation of rent as between a tenant of first degree and a tenant of second degree. Such a case, it is not to be disputed, is not hit by any provisions in Section 13 of the Rent Control Act, 1950. There is, therefore, no force in this contention.

8. For the reasons given above my conclusion is that the Rent Control Act, 1950 is available to a tenant who holds for a term of fifteen years under a lease executed after the 1st December 1941 and not terminable at the option of the landlord within the said period. The learned Chief Judge was, therefore, in error in holding that the applications for fixation of standard rent at the instance of the petitioners were not maintainable.

9. These Rules must be made absolute, the order of the learned Chief Judge set aside and the cases remitted to him for disposal according to law. The petitioners are entitled to their costs. Hearing fee is assessed in the aggregate at five Gold Mohurs.

10. The above judgment has proceeded on the footing that the landlord-opposite party was a tenant of the first degree. It is pointed out by Mukherjee that this was an assumption made by the learned Chief Judge and the judgment has proceeded on that footing. This judgment will not preclude the court below to go into that question if it properly arises in the case the question being whether the opposite party was a landlord or tenant of the first degree.

Mitter, J.

11. I agree.


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