1. This Rule was obtained on behalf of the tenant and is directed against an order passed by the Court of Small Causes under Section 32 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The learned opposite party made an application before the Rent Controller, Calcutta for fixing the standard rent in respect of the premises in question under the provisions of Section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, and claimed Rs. 250/- per month as the fair rent of the premises. The Rent Controller had the premises inspected by an Inspector under Section 31 of the said Act, read with Rule 9 framed under Section 47 of the said Act. After the submission of the inspection report the Additional Rent Controller personally inspected the premises, but he did not himself take any measurement or make any record of the result of his inspection. The Additional Rent Controller assessed the standard rent at Rs. 126/8 as per month with effect from April 1950 on the basis of his own inspection. Against this order, the tenant moved the Court of Small Causes and the standard rent fixed was modified. It was fixed at Rs. 115/8 as. per month. It is against this order by the Court of Small Causes that the present Rule has been obtained.
2. The principal question which has been raised in this case before us is as to what is the proper procedure to be followed in fixing the standard rent by the Rent Controller or by the Court of Small Causes.
3. The law provides not only an opportunity to be given to the parties concerned to adduce relevant evidence before the authority for fixing the standard rent, but under rule 9 framed under Section 47 of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 which runs as follows the court may direct a local inspection:
'In making inquiries under the Act, the Controller, the Chief Judge of the Court of Small Causes, Calcutta, the District Judge or the Judicial Officer to whom the case may be transferred under the provisions of Clause (a) or Clause (b) of Sub-section (1) of Section 32 shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits, the substance only of the evidence being recordedas in unappealable cases and shall record in brief the reasons for his findings.'
4. The Rent Controller and the Court of Small Causes are to follow the procedure laid down in the Code of Civil Procedure for the regular trial of suits, subject to certain modifications about the recording of evidence.
5. 'Prima facie' therefore, the provisions contained in rule 9 of Order 26 of the Code of Civil Procedure about the appointment of commissioners for local investigation are attracted, it is competent for the Controller and the Appellate authority to pass necessary directions for local investigation.
6. Clause (a) of Sub-section (1) of Section 31 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 also authorises the Controller to enter into and inspect, or authorise any officer subordinate to him to enter into and inspect any premises at any time between sunrise and sunset. It is not contested before us that the officer who was deputed to hold the inspection was an officer who was appointed for such specific purpose and was so acting under the Rent Controller, Calcutta. The Inspector in the present case may, therefore, be taken to be an officer subordinate to the Rent Controller. The report submitted by the Inspector is to be taken to be a report by a commissioner for local investigation as under Rule 9 of Order 26 of the Code of Civil Procedure. Under Sub-rule (2) of Rule 10 of Order 26 of the Code of Civil Procedure the report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the court or, with the permission of the court, any of the parties to the suit, may examine the commissioner personally in open court, touching any of the matters referred to or mentioned in his report, or as to the manner in which he has made the investigation. It is also open to the Rent Controller or the Appellate authority to direct such further enquiry as may be deemed fit and necessary, if for any reason the Rent Controller or the Appellate authority be dissatisfied with the proceedings, of the Inspector.
7. In the present case, the report submitted by the Inspector did therefore, form part of the record. The Rent Controller was justified in referring to the same. It does not appear from the order-sheet whether any opportunity was given to the parties for calling the Inspector to be examined in the case. From the manner in which, the report submitted by the Inspector had been criticised before the Court of Small Causes and also before us, it is apparent that the report as submitted was not sufficiently clear and self-explanatory. This was a case where, even if the parties did not choose to call the Inspector, the Rent Controller should have called the Inspector for clarification and explanation of the different items included in the report. As a matter of fact, the report not being deemed to be sufficiently clear, the Rent Controller himself had to inspect the premises. We have not in the record any note kept by the Rent Controller as to the result of his inspection and inquiry 'and to what extent he agreed with the figures and calculations as made by the Inspector. The omission to examine the Inspector in the present case has left the court in a very unfortunate position. This by itself would have been sufficient to set aside the order passed by the Kent Controller and the Courtof Small Causes and direct re-hearing of the matter.
8. There is however another point which has been raised before us, and that is about the inspection held by the Rent Controller himself. As indicated already, under rule 9 of the Rules framed under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 the Controller and the Chief Judge of the Court of Small Causes shall follow the procedure laid down in the Code of Civil Procedure for the regular trial of suits. Under Rule 18 of Order 18 of the Code of Civil Procedure, a court may at any stage of a suit inspect any property or thing concerning which any question may arise. The Rent Controller is, therefore entitled to hold an inspection. It is, however, well settled that it is not open to a court to base its findings solely on the result of local inspection without giving opportunities to the parties to let in counter evidence or to explain what is recorded after inspection. Vide -- 'Syed Ahmed Sahib Shutari v. Magnesite Syndicate Ltd.', 39 Mad 501, and--'Abdul Huq v. Mahammaddin', AIR 1923 Cal 311. There is no provision for making a memorandum of local inspection apart from the record. Vide -- 'Bhola Nath v. Momina Khatun', 50 Cal W N 682. The Judicial Committee had also laid down in --'Kessoji v. G. I. P. Rly. Co.', 31 Bom 381 that a Judge is not entitled to put his own view or impression after inspection of a place because the Judge is not available for cross-examination as to the opinion which may be recorded. The Judge can only make notes of inspection which he finds on inspection and the notes should be confined to the facts observed without recording impressions or opinions.
9. In the present case, as already stated, the parties had no opportunity of knowing the result of the inspection by the Rent Controller as no note whatsoever was kept by him. This was not proper. On this ground also, the decision reached by the Rent Controller, as modified by the Court of Small Causes, must beset aside.
10. Before we leave this case, it is necessary that we should point out that while settling the standard rent of a premises, the court has got to exercise a judicial discretion and take all relevant matters into consideration. The average rent which is paid for similar premises in the locality is considered to be a good guide. Such average rate of rent is generally stated with reference to the average rate for covered floor space. In determining the average floor space in what manner the portions used as passages, water closets or servants quarters etc. are to be taken into consideration varies according to the particular location of the premises or the nature of the building. There may bd one standard for an area like the Chowringhee, another for a purely residential quarter where small houses are in demand and still another for business quarters like the Burra Bazar area. In the present case, the Inspector's report gives no indication as to what had been in his mind in determining the average rate for units of floor area of the two different portions of the premises which were being compared for assessing and determining the standard rent. One has accordingly to be very careful in determining the average rate of rent for similar premises as very seldom two premises are exactly similar. It is to this matter that the Rent Controller and the Court of Small Causesshould direct their attention specifically when fixing the standard rent which is fair and in accordance with the principles laid down by the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.
11. This Rule is accordingly made absolute. The orders passed by the Court of Small Causes and the Rent Controller are set aside. The case will go back before the Rent Controller for proceeding according to law from the stage after the submission of the report by the Inspector. This may be placed before the Rent Controller other than the particular officer who has already expressed his views at the previous stage.
12. There will be no order as to costs in this Court.
13. I agree.