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Nirmal Chandra Dutta Vs. Gopal Chandra Dey - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1746 of 1950
Judge
Reported inAIR1953Cal150,56CWN291
ActsWest Bengal Premises Rent Control (Tempeorary Provisions) Act, 1950 - Sections 3(1), 7(1), 9, 9(1) and 17(1)
AppellantNirmal Chandra Dutta
RespondentGopal Chandra Dey
Appellant AdvocateA.K. Dutta and ;N.D. Roy, Advs.
Respondent AdvocateAjoy K. Basu, Adv.
Cases ReferredSobharani v. S.N. Guha Roy
Excerpt:
- .....by the tenant petitioner and it arises out of a proceeding started by him for standardisation of rent and adjustment of excess payments, made on account of rent, against future rents. in the said proceedings the tenant-petitioner also claimed refund of selami, alleged to have been paid by him to the landlord opposite party, and prayed also for imposition of penalty upon the latter for accepting such selami.2. the tenancy in question was in respect of a shop room on the ground-floor of premises no. 1 sadananda road in the south suburbs of calcutta and the contractual rent was rs. 120/-p.m. the premises were constructed in june 1949 and the disputed shop-room was first let out in july 1949.3. on 20-9-1949, the tenant filed his application before the rent controller, calcutta, for.....
Judgment:
ORDER

1. This Rule has been obtained by the tenant petitioner and it arises out of a proceeding started by him for standardisation of rent and adjustment of excess payments, made on account of rent, against future rents. In the said proceedings the tenant-petitioner also claimed refund of selami, alleged to have been paid by him to the landlord opposite party, and prayed also for imposition of penalty upon the latter for accepting such selami.

2. The tenancy in question was in respect of a shop room on the ground-floor of Premises No. 1 Sadananda Road in the south suburbs of Calcutta and the contractual rent was Rs. 120/-p.m. The premises were constructed in June 1949 and the disputed shop-room was first let out in July 1949.

3. On 20-9-1949, the tenant filed his application before the Rent Controller, Calcutta, for standardisation of rent and the other reliefs mentioned above, and the said application was registered as Case No. 2433C of 1949. There followed the usual inspection by the Inspector and, thereafter, there was also a personal inspection by the Rent Controller himself and, eventually, the Rent Controller by his order, dated 21-1-1950 found against the applicant on the question of the alleged payment of selami and, upon such finding, dismissed his claim for refund and rejected his prayer for imposition of penalty on the landlord. The Rent Controller, however, by his aforesaid order, gave relief to the tenant-petitioner by fixing the standard rent at Rs. 45/- per month and by giving effect to it from September 1949 and allowing consequential adjustment of all excess payments, made by the tenant, against future rents.

4. From the above decision of the Rent Controller two appeals were taken -- one (No. 186 of 1950) by the tenant, filed on the 6-2-1950, and the other (No. 220 of 1950) by the landlord, filed on the 18-2-1950, -- to the learned District Judge of 24-Parganas. The landlord's appeal was directed against the reduction of rent and the granting of adjustment of alleged excess payments; the tenant's appeal challenged the refusal of reliefs in the matter of the alleged selami.

5. The learned Subordinate Judge, who heard both the above appeals, dismissed the tenant's appeal in toto, holding, inter alia, that the alleged payment of selami had not been proved. The landlord's appeal, however, was allowed in part on the finding that, upon the materials on record, the standard rent should be fixed at Rs. 51/10/- per month under Section 9(1)(g), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, read with Section 17(3), thereof with effect from 1-4-1950 and adjustment of excess payments should be made on that basis 'at the rate not exceeding Rs. 10/-per month' against future rents. Against this decision of the learned Subordinate Judge the tenant-petitioner has obtained the present Rule. (6) On behalf of the tenant-petitioner three contentions have been urged by Mr. Dutta, namely:

(1) that the finding of the learned Subordinate Judge on the question of selami is erroneous,

(2) that the learned Subordinate Judge is wrong in fixing the standard rent under Section 9(1) (g) of the Act of 1950 and in fixing the amount thereof at Rs. 51/10/- per month, and

(3) that the learned Subordinate Judge's order giving effect to the standard rent only from 1-4-1950 and allowing adjustment of excess payments on that basis is wrong.

7. The first contention raises a pure question of fact, not usually open to this court for consideration in revision. But, even apart from that, the conclusion of the Rent Controller on this point, which has been affirmed by the learned Subordinate Judge on appeal, appears to us to be the only reasonable conclusion on othe materials produced in this case. That conclusion must, therefore, stand and this contention of the petitioner must fail. The petitioner's first contention is, accordingly, overruled.

8. Before proceeding to deal with the petitioner's other two contentions we deem it necessary to make certain preliminary observations. Upon the facts in the present case, it is quite clear that when the Rent Controller pronounced his decision, the Act of 1948 was still in force. The Rent Controller, therefore, very rightly applied the Act of 1948 to the matter of standardisation of rent and gave effect to the 'standard rent' from September 1949 under Section 10 of the said Act, and, under the law then in force, no legitimate objection could have been taken to the appointment of such date as the date from which the 'standard rent' would take effect. The order, however, of the Rent Controller, allowing adjustment of excess payments from Sept. 1949, was not, correct, inasmuch as Ss. 3 and 7 of the Act of 1948 had no application to the present case where there was no increase of rent at any time. This part of the Rent Controller's order was, therefore, open to criticism and liable to revision and, in the landlord's appeal before the learned District Judge, referred to above, the amount of the standard rent, fixed by the Rent Controller, as also his decision on the question of adjustment had, as noticed above, been specifically challenged. Shortly thereafter, the Legislature passed the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and this new Act came into force on the 31-3-1950. On that date the appeals before the learned District Judge were pending and, therefore, under Section 17(3) of the said Act of 1950 the proceeding for fixing standard rent had to be decided in accordance with the provisions as laid down by that Act.

9. Judged in the above back-ground, the petitioner's second contention is also bound to fail. Under the Act of 1950 the standard rent is fixed under Section 9 and, as in the present case the Premises in question were admittedly constructed after 1-12-1941 but before 31-12-1949 the only relevant part of Section 9 applicable hereto is Clause (g) of Sub-section (1) thereof. The learned Subordinate Judge, therefore, rightly applied the said Section 9(1)(g) to the present case and, as, upon the materials on record, we are satisfied that the rent has been correctly standardised at Rs. 51/10/- per month, we are unable to give effect to the petitioner's second contention. That contention, therefore, must also fail and is, accordingly, overruled.

10. So far, however, as the petitioner's third contention is concerned we are of the opinion, that the tenant-petitioner is entitled to succeed, though only in part.

11. It cannot be disputed -- and it has not been disputed that, upon the admitted facts of this case, namely, that the present proceedings were started under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, and were pending when the Rent Control Act of 1950 came into force, the standard rent has to be fixed, as already noticed above, in accordance with the provisions, as laid down by the Act of 1950 (vide p. 17(3) ). In our opinion, fixation of the 'standard rent' 'in accordance with the provisions as laid down by the Act of 1950, involves or comprehends within its scope fixation or appointment of the date from which the said 'standard rent' is to take effect.' This is clear from the provisions of Section 10 of the Act which deals with the question of fixation or appointment of such date. Sub-section (3) of that section lays down that 'in fixing the standard rent the Controller shall, in every instance, specify in his order the time from which the rent so fixed shall become payable.'

This specified time, again, is to be in accordance with Sub-sections (1) and (2) which, in terms, provided for the specification (appointment) of such time (date) in all cases where 'standard rent* is fixed under the Act, that is, under Section 9 which is the only provision there for fixation of the 'standard rent.' The position therefore, is that, in cases where Section 17(3) applies, the 'standard rent' is to be fixed in accordance with the provisions of Section 9 of the Act of 1950 and in so fixing the standard rent, the date of its commencement is to be specified under Section 10(3) in accordance with the provisions of Section 10(1) or Section 10(2), as the case may be.

12. The date, therefore, in the present case, from which the standard rent is to take effect, falls to be determined under Section 10 of the Act of 1950 and, as the standard rent is now fixed under Section 10(1)(g) and is fixed at a lower figure than the contractual rent, that is, the rent which was being paid at the time of the application for standardisation of rent, the relevant provision for appointment of the date would be either Section 10(1)(i) or Section 10(2)(c) but whichever of these two clauses applied, the result in this respect would be the same. According to either of the said two clauses, the date of commencement of the standard rent would normally be the month next after the date of the application, that is, the month next after 20-9-1949, in the present case. This leads us to October 1949 as the month from which the standard rent would take effect, there being in the present case no exceptional circumstances justifying any alteration of this normal date. This part of the learned Subordinate Judge's decision has, therefore, to be revised and the standard rent of Rs. 51/10/- per month is to be given effect to as from October 1949 and we order accordingly.

13. There remains now the question of adjustment of excess payments. It is clear, as already indicated above, that if the Act of 1948 had been applicable, no question of refund and/or adjustment would have arisen in the present case, where there was no increase of rent at any time so as to exceed the 'standard rent', In the Act of 1948 the only provision for refund and/or adjustment was contained in Section 7 which by its terms was dependent on Section 3. This latter section, as already noticed above, could not apply to the present case where the rent has not been increased at any time and, therefore, no refund and/or adjustment could have been available to the tenant-petitioner under the Act of 1948. A similar view was expressed by Sen J. in -- 'Sobharani v. S.N. Guha Roy', 54 Cal WN 205 where he dealt with a similar case under the Calcutta Rent Ordinance of 1946. The reasonings given by Sen J., appear to us to be correct and, upon a parity of reasonings, we hold that if the Act of 1948 had been applicable in this matter, no question of refunds and/or adjustment would have arisen in the present case.

14. It appears, however, that, at a crucial stage of the present proceedings, the Act of 1950 intervened to create a new situation. Haying regard to the frame and scheme of the said Act of 1950 the question of refund and/or adjustment of excess payments cannot, it seems to us, be altogether dissociated from the question, of fixation of 'standard rent' and appointment of the date of its commencement and, in our opinion this question of refund and/or adjustment of excess payments in the case before us, also, falls within the purview of the Act of 1950 and the rights of the parties with regard to the same have to be determined under the said Act. This Act of 1950 does not, however, appear, as we shall presently show, to sanction or authorise any refund and/or adjustment with effect from before the date of its commencement, namely, 31-3-1950, or in respect of the rent of any month prior to April 1950 and, accordingly, the tenant-petitioner would not be entitled in the present case to adjustment for1 any period prior to 1-4-1950.

15. On this question of refund and/or adjustment the relevant provisions requiring consideration are Sections 3(1), 7(1)(a) and 17(1) of the Act of 1950. Section 7(1)(a) provides for refund and/or adjustment of any sum paid or deposited on or after the commencement of the Act of 1950 on account of rent when such sum is irrecoverable under the provisions of the said Act. Section 3 (1) lays down the bar of irrecoverability as being in excess over the 'standard rent' but the said Section 3(1) is, by its opening words, subject to the provisions of the Act which includes Section 17(1). Under Section 17(1) the bar of irrecoverability attaches to excess over the 'standard rent' only from the month of the tenancy next after the month in which the Act comes into force. The Act came into force on 31-3-1950 and, therefore, no excess payment in respect of rent of any period prior to April 1950 can be irrecoverable under the Act of 1950.

The nett result, therefore, is that refund and/ or adjustment would be allowable only with regard to amounts which are irrecoverable under the provisions of the Act and which have been paid or deposited on or after the commencement of the Act (vide Section 7(1) (a) ), that is only with regard to excess payments over 'standard rent', made, on or after 31-3-1950, on account of rents from April 1950, (vide Sections 3(1) and 17(1)), if the tenancy be in accordance with the English calendar as is the case before us; in other words, the 'standard rent' in the present case would take effect for purposes of refund and/or adjustment under the Act of 1950 from 1-4-1950. The learned Subordinate Judge's order, therefore, regarding adjustment of excess payments would stand subject only to a minor variation as regard to the rate of such adjustment namely, that the adjustment would be at the rate of Rs. 10/- per month which rate of adjustment, is in our opinion quite fair and reasonable instead of the uncertain and indefinite rate of 'not exceeding Rs. 10/- per month's fixed by the learned Subordinate Judge.

16. In the result, this Rule is made absolute in part and the decision of the learned Subordinate Judge is modified but to this extent that the 'standard rent', fixed at Rs. 51/10/-per month is given effect from October 1949 except for purposes of refund and/or adjustment under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (for which purposes it will have effect from 1-4-1950, as indicated above), and excess payments are ordered to be adjusted at the rate of Rs. 10/- per month against future rents. In other respects, the decision of the learned Subordinate Judge will stand.

17. There will no order for costs in thisRule.


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