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Luxmi Salt Pvt. Ltd. Vs. Bhanwarlal Bijay Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2493 of 1974
Judge
Reported inAIR1976Cal422
ActsWest Bengal Premises Tenancy Act, 1956 - Section 8(1)
AppellantLuxmi Salt Pvt. Ltd.
RespondentBhanwarlal Bijay Kumar and anr.
Appellant AdvocateS. Lahiri and ;N.G. Chatterjee, Advs.
Respondent AdvocateB.C. Dutt and ;Matilal Agrawalla, Advs.
Cases ReferredNanda Dulal Dey v. Bisseswar Chakravarty
Excerpt:
- .....small causes court, calcutta, in rent appeal no. 3 of 1974 modifying the judgment and order of the rent controller, calcutta passed in rent control case no. 70 of 1969. civil rule no. 2532 of 1974 was issued at the instance of the landlord opposite party against the self-same order. the original application was filed by the tenant m/s. bhanwarilal bijay kumar under section 10 read with section 8 (1) (e) of the west bengal premises tenancy act, 1956 (to be hereinafter referred to as ''the act'), for fixation of fair rent in respect of a godown, being godown no. 10 situated on the ground floor of premises no. 161/1, mahatma gandhi road, which was stated to have been let out to the tenant at a rental of rs. 334/- per month payable according to hindi calendar.2. the petitioner came forward.....
Judgment:
ORDER

Sachindra Kumar Bhattacharyya, J.

1. These two Rules issued under Article 227 of the Constitution of India and under Section 115 of the Code of Civil Procedure are directed against one and the same decisions of the tribunals below. Civil Rule No. 2493 of 1974 was issued at the instance of the tenant petitioner and is directed against the order passed by the Chief Judge, Small Causes Court, Calcutta, in Rent Appeal No. 3 of 1974 modifying the judgment and order of the Rent Controller, Calcutta passed in Rent Control Case No. 70 of 1969. Civil Rule No. 2532 of 1974 was issued at the instance of the landlord opposite party against the self-same order. The original application was filed by the tenant M/s. Bhanwarilal Bijay Kumar under Section 10 read with Section 8 (1) (e) of the West Bengal Premises Tenancy Act, 1956 (to be hereinafter referred to as ''the Act'), for fixation of fair rent in respect of a godown, being godown No. 10 situated on the ground floor of premises No. 161/1, Mahatma Gandhi Road, which was stated to have been let out to the tenant at a rental of Rs. 334/- per month payable according to Hindi calendar.

2. The petitioner came forward with the allegation that the self-same godown was previously let out to the M/s. Toddy General Stores at Rs. 83/- per month and this rent was raised to Rupees 334/- per month at the time when the petitioner took settlement in October 1966. The application was opposed by the landlord. The original settlement was with opposite party No. 2 Messrs. Nugneeram Bangur and Co. (P) Ltd., and the property was subsequently transferred to Opposite Party No. 1 (petitioner in C. R. 2532 of 1974). The application was opposed by the landlord opposite party Messrs. Luxmi Salt Co. (P) Ltd., and the learned Rent Controller on a comparison of the rents payable by some comparable units of the same premises fixed the fair rent of the premises at Rs. 200/- per month and directed that it should take effect from 10-2-1969. Against the said decision the landlord preferred an appeal before the Chief Judge, Small Causes Court, Calcutta and the learned ChiefJudge, while affirming the finding of the learned Rent Controller, modified the rent fixed by him and allowed the appeal in part. The learned Rent Controller came to the conclusion that the fair rent of the disputed tenancy on the basis of the average rent of the comparable units shown to him should be of the order of Rs. 241.71 P., but in view of the fact that the disputed premises commanded a rent of Rs. 83/- per month only a few years back, he thought that the fair rent should not exceed Rs. 200/- per month and accordingly fixed the fair rent of the same at Rs. 200/- per month. The learned appellate tribunal upheld the finding of the learned Rent Controller that the fair rent of the disputed premises should be of the order of Rs. 241.71 P., but he thought that the Rent Controller was not justified in reducing it to Rs. 200/-on the ground that the rent of the disputed premises was only Rs. 83/- per month a few years back. Accordingly, he modified the decision of the Rent Controller and fixed the fair rent at Rs. 241.71 P. per month. Against this decision of the appellate tribunal both parties moved this Court and obtained the aforesaid Rules. Mr. B. C. Dutt, learned Advocate for the tenant petitioner in C. R. 2493 of 1974 assailed the order of the Courts below on several grounds, the most important of these grounds being that the basis adopted by the Rent Controller was factually incorrect and erroneous and as such should not have been relied on for the purpose of fixation of fair rent in the instant case. Mr. Lahiri appearing for the landlord petitioner in the other Rule had similarly assailed the decision of the courts below and contended that upon the materials before the Rent Controller, fair rent fixed should have been higher and the courts below were in error in not accepting the comparable units shown or produced on behalf of the landlord. In C. R. 2532 of 1974 the tenant opposite party affirmed an affidavit-in-opposition, annexing therewith a sketch map showing location and situation of the comparable units relied on by the landlord and tenant before the Rent Controller. Mr. Lahiri appearing for the landlord petitioner in this Rule did not challenge this sketch map in so far as the location and situation of the comparable units are concerned. It will appear from the sketch map that the disputed premises which is commonly known as Eangur Building is butted and bounded by roads on three sides. On the south of this building is theMahatma Gandhi Road, on the west is the Chitpur Road on the north is Chitpur Spur Road. Inside the premises there were common passages linking these three roads and the disputed tenancy, which is marked with letter 'A' in the sketch map, was on one such common passage. The two comparable units relied on by the tenant, namely the room of Duli Chand Parwar and Assam Travels (P) Ltd. respectively marked by letters 'B' and 'F' in the sketch map were also situated on these common passages. Whilst the three comparable units shown by the landlord, being rooms or godowns in occupation of Bhanuram Nandram, Arun Road Transport and Satyanarayan Bishnukumar respectively marked by letters 'C', 'D' and 'E' in the sketch map abutted on the Chitpur Spur Road and were also accessible from common passage inside the building in fact, the comparable unit of Bhanuram Nandram was accessible from Chitpur Road as well as from Chitpur Spur Road and a common passage inside the building. The potentialities of these comparable units were, therefore, different and neither the learned Rent Controller nor the appellate tribunal has taken this factor into consideration in coming to their decision, and no deduction or discount on account of such potentialities was considered by them while calculating the average rent per square meter for the purpose of determination of fair rent.

3. This apart the Rent Controller appointed an inspector who went to the locale to inspect the comparable units. This inspector was examined as a witness (P. W. 5) and he submitted a report, which has been marked as Ext. 9. The inspector did not address himself to the location of any of the comparable units and merely measured the rooms that were shown to him. No sketch map was prepared by him showing the relative position of the comparable units and the disputed godown. Even the inspector did not choose to inspect all these comparable units in presence of both sides, as would appear from his evidence dated 8-11-1973. What is more two of the witnesses examined by the landlord gave a completely misleading picture of the location of the tenancy of Satyanarayan Bishnukumar and Arun Road Transport of India. As per the sketch map annexed to the affidavit-in-opposition filed by the tenant opposite party in C. R. 2532 of 1974, Satyanarayan Bishnukumar was in occupation of the room and the open space marked with letter 'E' at the north-east cornerof the ground floor of premises No, 161/1, Mahatma Gandhi Road. This room was accessible both from Chitpur Spur Road and from a common passage of the building. O. P. W. 1, Matilal, who happened to be an employee of Satyanarayan Bishnukumar, in his evidence stated that the godown meaning the room in occupation of Satyanarayan Bishnukurnar, was situated in the middle portion of the building. He gave an entirely incorrect picture of the location of the room or godown occupied by Satyanarayan Bishnukumar. Similarly, O. P. W. 2 Sew Pujan Rao, who is an employee of Arun Road Transport of India, stated that the company is a tenant in respect of Room No. 14 in the disputed premises having one verandah and open space inside the building and the office was on the back side whereas from the sketch map it would appear that the room occupied by Arun Road Transport abutted on Chitpur Spur Road and was certainly not on the back side of the building and there was no verandah or open space attached to that godown. Similarly, the inspector in his report, Ext. 9, stated that the petitioner's tenancy (disputed tenancy) was accessible from both Mahatma Gandhi Road and Chitpur Spur Road, whereas from the sketch map it would appear that it was only approachable from those roads through the common passage of the building linking those roads. Since Mr. Lahiri has accepted the correctness of the location and situation of the units shown in the sketch plan annexed to the affidavit-in-opposition, it becomes evident that the evidence before the learned Rent Controller about the situation of the comparable units was not only misleading but also confusing and the Rent Controller as such could not properly appreciate the relative advantage and disadvantage of the comparable units nor did he consider the potentialities of the different comparable units as were shown to him. Section 8 (1) (e) of the Act provides that where the provisions of clause (a) or clause (b) or clause (c) or clause (d) of the said section were not applicable the Rent Controller would be justified in fixing such rent as reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality available he should also take into consideration the rent payable for such premises. It is hardly possible that two premises would be exactly similar so that therent of one would afford a complete and true guide for fixation of fair rent of another. Where such evidence about the amount of rent for exactly similar accommodation is not available, it will be necessary and profitable for the Court to look into the evidence of accommodation which is more or less similar on the question of amenities and where there is a difference in amenities to make necessary addition or reduction to the rent actually payable for such accommodation in deciding what the reasonable rent would be for the accommodation of the premises in question. Reference may in this connection be made to the case of Manicklal Roy v Birendra Kumar Saha, (1955) 59 Cal WN 137. That of course was a case under Section 9 (1) (f) of the West Bengal Premises Rent Control Act, 1950 where a Division Bench of this Court laid down the principle to be applied in the matter of fixation of standard rent under that provision of law. In this connection it may be useful to point out that another Division Bench of this Court in the case of Nanda Dulal Dey v. Bisseswar Chakravarty, : AIR1953Cal177 sounded a note of caution that in settling standard rent of a premises the court has got to exercise a judicial discretion and take all matters into consideration. This Court observed at page 178 (Para. 10) as follows :--

'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 the Rent Controller and the Court of Small Causes should 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.'

That again was a case under the West Bengal Premises Rent Control (Temporary Provisions) Act. 1950, but the principle inunciated therein will be equally applicable in the matter of fixation of fair rent under Section 8 of the present Act.

4. From what has been discussed above it is clear that the Rent Controller in the instant case has proceeded to determine the fair rent of the disputed pendency without taking into consideration the potentialities of the comparable units and their advantages and disadvantages, with the result the yardstick adopted by the Rent Controller has been unsound and the evidence before him clearly shows that the witnesses either did not knowthe comparable premises also at which they came to dispose or they gave untrue evidence before the Rent Controller. The basis adopted by the Rent Controller in the circumstances cannot be allowed to stand and the learned lower appellate court similarly fell into error by adopting the same yardstick as was adopted by the Rent Controller, without any variation. The decisions of the Appellate Tribunal and of the Rent Controller in the circumstances must be set aside and the case must go back on remand to the Rent Controller for fixation of fair rent in accordance with the principles of law after taking into account the potentialities advantages and disadvantages of comparable units and after making necessary addition or deduction to the rents payable for the accommodation of such comparable units, the Rent Controller will come to a decision about the fixation of fair rent in the instant case. In doing so the Rent Controller will afford parties such opportunities to lead evidence before him, but in no case should he take evidence of units offered for comparison that came to be created after the application for fixation of fair rent was filed in the instant case. The decision of the Rent Controller will be effective from the date of the application filed and in view of the fact that the matter has been greatly delayed, he will proceed to decide the matter with utmost expedition. Both the applications accordingly succeed and the Rules are made absolute. The decisions of the Rent Controller and of the Appellate Tribunal are hereby set aside and the case is sent back to the Rent Controller for a fresh decision in the light of the observations made above. In the circumstances of the case there will be no order as to costs in these Rules.


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