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Nishit Kumar Sikdar Gobinda Saraya Vs. Sunil Kumar Bose - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 2993 of 1983
Judge
Reported inAIR1984Cal371,88CWN971
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 2, 8, 10, 17 and 19
AppellantNishit Kumar Sikdar Gobinda Saraya
RespondentSunil Kumar Bose
Appellant AdvocateSukumar Ghosh and ;Hirendra Mohan Sengupta, Advs.
Respondent AdvocateSubhas Banerjee, ;P.K. Patari and ;K.C. Jaiswal, Advs.
DispositionApplication dismissed
Cases ReferredSudhir v. Ashutosh
Excerpt:
- .....of challenge in this revisional application preferred by the landlord. the proceeding before the rent controller is a proceeding for fixation of fair rent under the provision of section 8 of the west bengal premises tenancy act (hereinafter referred to as the said act). by the order impugned, the rent controller had decided a preliminary point with regard to the maintainability of the proceeding in favour of the tenant. the objection as to maintainability was raised by the landlord under the following circumstances.2. it is not in dispute that the tenant opposite party came to occupy the ground floor of premises no. 78, municipal office lane, under the landlord in terms of a tenancy agreement dt. 23-1-1981. the monthly rent initially payable under the agreement was rs. 480/-but the.....
Judgment:

Anil K. Sen, J.

1. An order dt. Aug. 8, 1983, passed by the Additional Rent Controller, Barrackpore in Rent Control Case No. 60 of 1982 is the subject-matter of challenge in this revisional application preferred by the landlord. The proceeding before the Rent Controller is a proceeding for fixation of fair rent under the provision of Section 8 of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act). By the order impugned, the Rent Controller had decided a preliminary point with regard to the maintainability of the proceeding in favour of the tenant. The objection as to maintainability was raised by the landlord under the following circumstances.

2. It is not in dispute that the tenant opposite party came to occupy the ground floor of premises No. 78, Municipal Office Lane, under the landlord in terms of a tenancy agreement dt. 23-1-1981. The monthly rent initially payable under the agreement was Rs. 480/-but the agreement provided for periodical increase in rent. On 23-10-1982, the landlord served a notice under Section 106 of the T. P. Act, purporting to terminate the tenancy in favour of the tenant as according to the landlord the tenant was in default in payment of rent. Shortly after the service of such notice, the tenant initiated the aforesaid rent fixation proceeding before the Rent Controller by filing an application under Section 10 read with Section 8 of the said Act. The landlord on his part filed a suit for ejectment as against the tenant, being Title Suit No. 3 of 1983. In the background of the aforesaid circumstances, the landlord raised an objection before the Rent Controller that the proceeding for fixation of fair rent at the instance of the tenant is not maintainable because the tenancy in his favour had already been determined by a valid notice to quit dt. 23-10-1982, followed by a suit for his eviction which is now pending. This objection has been overruled by the Rent Controller on the view that the tenant continues to remain a tenant enlitled to have the realpayable by him determined under the provision of Section 8 of the said Act, notwithstanding the fact that the contractual tenancy had been determined by a notice to quit. Correctness of the view taken by the Rent Controller is being challenged before us in the present revisional application.

3. Mr. Sengupta appearing in support of the present revisional application has strongly relied on a Single Bench decision of this Court in the case of Sudhir v. Ashutosh : AIR1980Cal108 in support of his contention that a proceeding for fixation of fair rent is not maintainable at the instance of a tenant whose tenancy has been determined and against whom a suit for eviction is pending, No doubt the decision relied on by Mr. Sengupta fully supports him on the point.

4. Mr. Banerji appearing for the tenant opposite party has contended that the decision relied on by Mr. Sengupta was rendered without consideration of other material decisions on the point including some of the Division Benches and is not consistent with such decisions as pointed out by another learned single Judge in the case of Narendra v. Sarojendra (1982) 2 Cal LJ 38. The point at controversy, therefore, has assumed importance because of such conflicting decisions of the two learned single Judge of this Court.

5. Before we proceed to consider the reasons given by the learned Judges in their respective decisions, it would be worthwhile to refer to the material statutory provisions. Section 4(1) of the Act enjoins that a tenant shall, subject to the provisions of the Act pay to the landlord (a) in cases where fair rent has been fixed for any premises such rent; (b) in other cases the rent agreed upon until such fair rent is fixed. Sub-section (3) of Section 4 prescribes any sum in excess of the rent referred to in Sub-section (1) shall not be recoverable' by the landlord. It was obvious, therefore, that in respect of any particular premises if fair rent is fixed that would supersede the agreed rent and anything in excess of such fair rent would be totally irrecoverable in law. In Section 8, the statute had prescribed themanner in which fair rent of a particular premises is to be fixed. Section 9 provides for increase of fair rent in certain cases. Section 10 then provides :

'The Controller shall, on application made to him either by the landlord or by the tenant in the prescribed manner, fix in respect of any premises -

(i) the fair rent referred to in Section 8; and (ii) the increase, if any, referred to in Section 9.'

Section 11 prescribes the conditions in which the fair rent can be revised and Section 12 prescribes the time with effect from which the fair rent once fixed would take effect and how the difference is to be adjusted.

6. The short point which arises for consideration is as to whether the tenant who is entitled to file an application for fixation of fair rent under Section 10 of the said Act, would exclude a tenant whose contractual tenancy has been determined. On the terms of the provision in Section 10 there is nothing to indicate any such exclusion. It would be useful to remember that the Judicial Committee in the well-known case of Karnani Industrial Bank v. Satya Niranjan AIR 1928 P. C. 227 while dealing with the Rent Control Act of 1920, held that the word 'tenant' in Rent Control legislation should be given an extended meaning to include ex-tenants as well. A Division Bench of this Court in the case of Deoki Prosad v. Dulichand : AIR1954Cal532 dealing with the West Bengal Premises Rent Control (Temporary Provision) Act, 1950, followed the same principle. Such a view was expressed with regard to the statutory provisions of the Acts where the definition clause in respect of tenant was not explicit enough to include an ex-tenant but such an intention on the part of the legislature was inferred from the statutory provisions. But so far as the 1956 Act now under consideration is concerned, the term 'tenant' has been defined in Section 2(h) to include 'any person continuing in possession after the termination of his tenancy..... but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction'. The legislature, therefore, this time has expresslyincorporated what the judicial decisions earlier by implication held to be covered by the term tenant. On the statutory definition of the term 'tenant' there can, therefore, be no bar to a tenant applying for. fixation of fair rent in respect of premises held by him only because the contractual tenancy in his favour has been determined by a notice to quit, under Section 106 of the Transfer of Property Act.

7. In the case of Sudhir v. Ashutosh : AIR1980Cal108 (supra) the learned single Judge took the view that a tenant whose contractual tenancy has been determined merely enjoys the statutory protection against eviction. But for Section 19, according to him, a statutory tenant could not have claimed the benefit of the terms and conditions of the contract of tenancy. Referring to Section 17, the learned Judge held that the legislature never intended the statutory tenant to be treated at par with the contractual tenant under the Act. Accordingly, he was of the view that after determination of the contractual tenancy the statutory tenant cannot make an application under Section 10, read with Section 8 of the Act for fixation of fair rent by the Controller. The learned Judge obviously overlooked the fact that the right to apply for fixation of fair rent is not conferred by the terms and conditions of the contractual tenancy. It is conferred by the statute where the statute itself has defined the tenant to include a person in possession after termination of his tenancy. That apart Mr. Banerji has rightly pointed out that the above view is contrary to the decision of the Supreme Court in the case of Damadilal v. Parasaran : AIR1976SC2229 . Dealing with a parallel statute, namely, M. P. Accommodation Control Act, 1961, and having regard to the parallel definition clause referred to hereinbefore, the Supreme Court observed : 'The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidence of such tenancy and a contractual tenancy must, therefore, be the same unless any provision of the Act conveyed a contrary intention'. Referencemay also be made to a recent decision of the Supreme Court in the case of V. Dhanpal Chettiar v. Y. Ammal : [1980]1SCR334 where the Supreme Court pointed out that the effect of the Rent Act is to override the contract and other statutory provisions like forfeiture and provide for continuance of the tenancy notwithstanding such contract or the law. Therefore, with due respect to the learned Judge, it should be pointed out that it is not correct to think that a tenant whose contractual tenancy has been determined ceases to be a tenant for all purposes except enjoying the statutory protection against eviction. Section 19 referred to by the learned Judge merely preserves the rights and obligations arising out of the agreement of tenancy subject, however, to the provisions of the Act and there is nothing in this provision to indicate either expressly or by necessary implication that a tenant whose contractual tenancy has been determined would cease to be a tenant except for the limited purpose of enjoying the statutory protection against eviction. On the other hand, on the scheme of the Act, all the benefits provided for to the tenants were intended to be enjoyed by a tenant until he suffers a decree or order for eviction. In our view, the learned single Judge deciding the case of Narendra v. Sarojendra (1982-2 Cal LJ 38) (supra) rightly pointed out that the provisions of the Act do not give any indication that a statutory tenant has been divested of a right to have the fair rent fixed by the Rent Controller only because the contractual tenancy in his favour had been determined by a notice to quit.

8. He is well supported there both by the decision of the Judicial Committee and the Bench decision of this Court in the case of Deoki Prosad referred to hereinbefore wherein the very same issue being raised it was expressly decided that a tenant whose contractual tenancy has been determined is still entitled to have the fair rent fixed by the Controller in terms of the Rent Act. This point came up for consideration before a Special Bench of this court in the case of Sabitri Devi v. R. M. Kajoria : AIR1972Cal516 though the facts in that case were a little different as the application for fixation was filed before the termination of the contractualtenancy. The Special Bench, however, expressly approved the Bench decision in the case of Deoki Prosad : AIR1954Cal532 (supra).

9. What remains to be considered is section 17 of the said Act, relied on by the learned single Judge in the case of Sudhir v. Ashutosh : AIR1980Cal108 in support of his conclusion. Mr. Sengupta appearing in support of the present revisional application has also strongly relied upon this provision in contending that once the contractual tenancy had been determined and the tenancy has been sued for eviction, under Section 17(1) of the Act he is not required to pay either rent or fair rent but an amount equivalent to the rent last paid. According to the learned single Judge, this provision clearly indicates that a tenant whose contractual tenancy has been determined ceases to be a tenant but he merely enjoys the protection against eviction on payment of an amount equivalent to rent last paid. According to Mr. Sengupta, again when such a tenant has the liability under the statute to pay an amount equivalent to the rent last paid and not the rent that may be fixed by the Rent Controller as fair rent, it stands to no reason why the proceedings for fixation of fair rent would still be maintainable. Unfortunately, however, it was not brought to the notice of the learned single Judge that this aspect of the matter had earlier been the subject matter of Judicial consideration. Bachawat, J. in the case of Chowringhee Properties Ltd. v. Madan Lall Khanna 1959 Cal LJ 43 considered this aspect and had held that Sub-section (1) of Section 17 is not an overriding provision so that in a case where fair rent is fixed pending the suit, that fair rent alone would be payable under Section 17 and the Court can direct as such in exercise of its powers under Sub-section (2) of Section 17. It was expressly held that Sub-section (2) is not fettered in any way by Sub-section (1). No doubt Section 17 has undergone some change since that decision. But in our view such amendment has not changed the situation in any way which would persuade as to hold that the basic principle so laid down can no longer be sustained on the amended terms of the section. As a matter of fact delivering their judgment at a point of time when theamendment had already been effected, a Division Bench of this Court in the case of Ahmed Ali v. I. V. Claire (1960) Cal WN 391 reaffirmed the same principle. The learned Judges observed : 'We think, without the least doubt or hesitation, that the proper interpretation of Sub-section (2) would be that, in a case, inter alia, when rent is standardised before or during the pendency of the ejectment suit and the tenant brings it to the notice of the Court and raises the relevant dispute as to the amount of rent payable by him, which of course, included the rate of rent, or, the rate, at which it is to be fixed, the court, in spite of Sub-section (1) of Section 17, is entitled, on the tenant's application, to determine and fix the rate payable under Sub-section (2) at the standardised figure'. It is, therefore, not correct to think that notwithstanding the fixation of the fair rent the tenant would continue to suffer the liability of paying an amount equivalent to the rent last paid prior to the suit in terms of Section 17(1) of the Act. So interpreted, we find nothing in the provision of Section 17 to support the view that the tenant whose contractual tenancy has been determined ceases to be a tenant for all practical purposes except for the purpose of enjoying the statutory protection against eviction or that the proceeding for fixation of the fair rent becomes inconsequential.

10. In the result, we hold that the point raised was correctly decided in the case of Narendra v. Sarojendra (1982-2 Cal LJ 38) (supra) and the contrary view expressed in the case of Sudhir v. Ashutosh : AIR1980Cal108 is not correct. We must, therefore, uphold the view taken by the Rent Controller which is in consonance with the decision in the case of Narendra v. Sarojendra. The revisional application, therefore, fails and is dismissed. There will be no order for costs.

Prabir Kumar Majumdar, J.

11. I agree with the order proposed by my Lord. But I would like to make a few observations of my own.

12. The question that arises in this revisional application is whether a tenant can make an application to the Controller for fixation of fair rent under Section 10 readwith Section 8 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) in respect of the demised premises after termination of his tenancy by a notice to quit and during the pendency of an ejectment suit by the landlord against him.

13. This revisional application is by the landlord and is directed against the order dated 8th August, 1983 passed by the Additional Rent Controller, Barrackpore made in an application by the tenant-opposite party for fixation of rent under Section 10 of the Act in respect of the ground floor of the premises No. 78, Municipal Office Lane, Calcutta which has been let out to him by the landlord. The petitioner landlord raised a preliminary objection to the effect that, the Additional Rent Controller was not competent to entertain and decide the said application inasmuch as the tenancy has been terminated by a notice to quit and the ejectment suit was pending against the tenant opposite party before the learned Munsif, 3rd Court at Sealdah. The learned Additional Rent Controller overruled the said preliminary objection. This revisional application has been heard on contest.

14. We have been referred to two conflicting decisions of this Court on this point. In the case of Sudhir Kumar Chakraborty v. Ashutosh Bhattacharya reported in : AIR1980Cal108 : G. N. Ray, J. is of the view that after determination of the tenancy the statutory tenant cannot make an application under Section 10 read with Section 8 of the Act for determination of fair rent by the Rent Controller. It is the opinion of the learned judge that a statutory tenant cannot make any claim for determination of fair rent because payment at the rate of rent is only necessary for continuance of the possession of a statutory tenant and for his protection against delivery of possession.

15. A contrary view has been taken by B. N. Maitra, J. in the case of Dr. Narendra Lal Dutta Banik v. Sarojendra Nath phosh, reported in (1982) 2 Cal LJ 38, holding that according to Section 2(h) of the Act the 'tenant' includes a person who continues in possession after thetermination of the tenancy and a right has been given to the tenant under Section 10 read with Section 8 of the Act to apply for fixation of fair rent.

16. To appreciate the point involved in this application it is necessary to refer to certain relevant provisions of the Act. Section 2(h) of the Act defines 'tenant' as follows :

'(h) 'tenant' means any person by whom or on whose account or behalf, the rent of any premises is, or but, for a special contract would be, payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction had been made by a Court of competent jurisdiction'.

Section 4 of the Act provides that a tenant shall pay to the landlord in cases where fair rent has been fixed for any premises, such rent, and in other cases, the rent agreed upon until fair rent is fixed. It also provided that any sum in excess of the fair rent shall not be recoverable by the landord. Section 8 of the Act indicates the manner by which the fair rent has to be determined. Section 10 of the Act imposes an obligation on the Controller to fix fair rent in respect of any premises on the application made to him either by landlord or by the tenant. Section 12 of the Act provides that where fair rent has been fixed by the Controller by decreasing the rent agreed, the excess amount paid shall be recoverable under the order of the Controller by instalments or otherwise, and where the fair rent has been fixed in excess of the rent agreed it would be recoverable by the landlord by instalments or otherwise. Section 13 of the Act sets out the grounds for eviction and Section 17 of the Act indicates the benefits of protections available to the tenant against eviction.

It has been contended on behalf of the petitioner that the tenancy of the tenant opposite party having been determined by a notice to quit, it is no longer open to him to make any application for determination of fair rent, nor has the Controller anyjurisdiction to entertain and decide such application, more so when a suit for ejectment against the tenant opposite party is pending. In support of this contention reliance has been placed on the case of Sudhir v. Ashutosh : AIR1980Cal108 (supra). Drawing inspiration from the decision of G. N. Ray, J. the learned Advocate appearing in support of the revisional application brings in a distinction between a 'contractual tenant' and 'statutory tenant'. According to the learned Advocate for the petitioner the right of having fair rent determined can only be invoked by a tenant whose tenancy is subsisting and by no other. He argues that after determination of the tenancy a tenant remains a tenant for the purpose of the Act only to enjoy certain benefits of protection against eviction during the pendency of the suit for ejectment.

17. This argument of the learned Advocate for the petitioner is wholly unsustainable. The status of the so-called statutory tenant, although such expression does not find place in the Act, has been considered by the Supreme Court in the case of Damadilal v. Parashram, reported in : AIR1976SC2229 . A. C. Gupta, J. speaking for the Court observes that it cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. Construing the definition of 'tenant' in the Madhya Pradesh Accommodation Control Act, 1961 (almost similar to the definition of tenant in the Act), His Lordship proceeds to observe that the difinition makes a person continuing in possession after determination of tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy must therefore be the same, (Sic) and such a tenant retains an interest in the premises and not merely personal right of occupation. It is also observed that the concept of statutory tenant is derived from English Rent Acts. It is further observed that it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute.

18. Again the question of 'contractual tenancy' and the 'statutory tenancy' came up for consideration before Supreme Court in the case of Dhanapal Chettiar v. Yesodai Ammal, reported in : [1980]1SCR334 . Untwalia, J. speaking for the Court was pleased to observe that the various State Rent Control Acts make serious encroachment in the field of the freedom of contract. The landlord now is not permitted to snap his relationship with the tenant merely by his act of serving a notice to quit on him. This decision proceeds to lay down that in spite of notice the law says that he continues to be a tenant and he does so enjoying all the rights and at the same time is deemed to be under all the liabilities. It has also been held very categorically that under the State Rent Control Acts the concept of the contractual tenancy has lost much of its significance and force.

19. Therefore, from a reading of the definition of 'tenant' in Section 2(h) of the Act and also the decisions of the Supreme Court in the cases noted above on the status of the 'tenant' under various Rent Control Acts in the country, the only conclusion that can be reached is that for the purpose of the Act the tenant is one who continues in possession and against whom no decree or order for eviction has been made by a Court of competent jurisdiction, even when his contract of tenancy has come to an end by notice to quit or by efflux of time or otherwise. Such a tenant has all the rights and benefits under the Act and is subject to all the liabilities and obligations under the Act. Another point is to be noted here that the right to have the fair rent of a demised premises determined is not an ordinary incident of the tenancy but a special right conferred by the statute. Any decision as to fair rent of a demised premises is a decision in rem. Thus, every tenant can claim such right whether his tenancy has been determined or not.

20. The Act has not made any distinction between a contractual tenant and a statutory tenant. It is not indicated anywhere in the Act that the right to claim determination of fair rent is available only to a tenant whose contract of tenancy issubsisting. Therefore, such a right as conferred by the statute cannot be denied to a tenant just because his landlord has chosen to terminate his tenancy by a notice to quit, and consequently has instituted a suit for ejectment against such tenant.

21. Next contention of the learned Advocate for the petitioner is that once a tenant goes on paying the amount calculated at the rate of rent under Section 17(1) of the Act in order to protect against delivery of possession, he cannot have the fair rent determined for the premises in his occupation. He also argues that in any event any determination of fair rent by the Controller may affect the determination by a Civil Court in an ejectment suit of the amount at the rate of rent last paid. This submission is not correct.

22. Section 4 of the Act says that a tenant is liable to pay to landlord and the landlord is not entitled to receive anything but a fair rent in respect of the demised premises, and until such fair rent is fixed the rent agreed upon. Any sum in excess of a fair rent as fixed is irrecoverable. The right of determination of fair rent is available to both the landlord and tenant. Under the Act, this determination of fair rent is within the exclusive jurisdiction of the Controller, and the Controller alone, and the Civil Court has no say in the matter. Thus, any decision as to fair rent by the Controller subject to modification or variation by the Appellate authority, is binding on all. Just to get protection from eviction a tenant cannot be compelled to pay anything more than the fair rent as and when fixed, which excess sum is not recoverable in law.

23. This point had received consideration from Bachawat, J. (as His Lordship then was) in the case of Chowringhee Properties Ltd. v. Madan Lal Khanna, reported in 1959 Cal LJ 43. This contention in this present application can be answered in the words of Bachawat, J. (as His Lordship then was) as quoted hereunder : 'To construct Section 17 sp as to allow recovery by the landlord of a sum in excess of what is provided for in Section 4(1)(a) is to cut across the fundamental basis ofthe Act and to nullify the provisions of Section 4. In my opinion, where rent has been standardised and fixed by the Rent Controller the tenant cannot be compelled by recourse to Section 17 of the Act to pay more than the amount of standard rent so fixed'. His Lordship further observes that there is nothing in the Act which takes away the right of tenant to apply under Section 17(2) of the Act for determination of the rent payable by the tenant.

24. With due respect I hold that the view taken by the learned single Judge in the case of Sudhir v. Ashutosh : AIR1980Cal108 (Supra) is not correct. Dr. Narendra Lal Dutta's case, reported in (1982) 2 Cal LJ 38 is correctly decided.

25. In the premises, the learned Additional Rent Controller rightly overruled the objection of the landlord. The impugned order is upheld.

26. I concur in the order proposed by my Lord.


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