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Burdwan Real Properties Private Ltd. and anr. Vs. Lal Behari Kapuria - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Nos. 2677 and 3484 of 1958
Judge
Reported inAIR1961Cal398,65CWN259
ActsWest Bengal Premises Tenancy Act, 1956 - Section 2
AppellantBurdwan Real Properties Private Ltd. and anr.
RespondentLal Behari Kapuria
Appellant AdvocateJitendra Kumar Sen Gupta, ;Susanta Kumar Sen, ;Sailendra Kumar Roy Choudhury, Advs. (in 2677 only) and ;Hemesh Chandras Sen, Adv. (in 3484 only), ;Prafulla Kumar Roy, ;Asoke Chandra Sen and ;Jnanedra
Respondent AdvocateJitendra Kumar Sen Gupta, ;Susanta Kumar Sen, ;Sailendra Kumar Roy Choudhury, Advs. (in 2677 only) and ;Hemesh Chandras Sen, Adv. (in 3484 only)Prafulla Kumar Roy, ;Asoke Chandra Sen and ;Jnanedra Moh
Cases ReferredKarnani Properties Ltd. v. Miss Augustine
Excerpt:
- bachawat, j.1. the purpose of the letting does not decide whether the property let is premises within the meaning of section 2(f) of the west bengal premises tenancy act, 1956. the letting may be for residential or for non-residential purposes. in this case the property let is said to be a holding consisting of a building, c.i. sheds, stalls, pavements, vacant space, lanes and bye-lanes commonly known as barabazar vegetable and fish market within the burdwan municipality, measuring 12 cottas 7 chittaks. such a property may well be premises within the meaning of section 2(f) of the act. the test is--is the property a building or part of a building or a hut or part of a hut let separately including the grounds and out-houses appertaining thereto? if the property let is a property of that.....
Judgment:

Bachawat, J.

1. The purpose of the letting does not decide whether the property let is premises within the meaning of Section 2(f) of the West Bengal Premises Tenancy Act, 1956. The letting may be for residential or for non-residential purposes. In this case the property let is said to be a holding consisting of a building, c.i. sheds, stalls, pavements, vacant space, lanes and bye-lanes commonly known as Barabazar Vegetable and Fish Market within the Burdwan Municipality, measuring 12 cottas 7 chittaks. Such a property may well be premises within the meaning of Section 2(f) of the Act. The test is--is the property a building or part of a building or a hut or part of a hut let separately including the grounds and out-houses appertaining thereto? If the property let is a property of that description, the tact that it is let for being used as a market, will not prevent the property being premises within the meaning of the Act. The Act applies to the letting of premises irrespective of the purpose for which the premises are let.

2. The decisions under the English Rent Acts do not assist us on the point under consideration. The English Rent Acts apply only to a dwelling house--see R. E. Megarry The Rent Acts, 7th Edn. p. 41. There is nothing in the West Bengal Premises Tenancy Act, 1956 which confines its operation to premises let as a dwelling. The Act applies to premises let for residential purposes as also to premises let for non-residential purposes. Where the Act refers to a letting for residential purposes it expressly says so as in Sections 3 and 13(g) and 13(h).

3. There was, some discussion at the Bar as to the meaning of the expression 'appertaining to.' In the Concise Oxford Dictionary, 4th edition--the word 'appertain'' is said to mean 'belong as possession or right to; be appropriate to; relate to'. Strictly, neither the grounds can be said to belong to a building nor can a building be said to belong to the grounds. Roth of them belong to the owner. Nevertheless, Section 2(f) contemplates that there may be grounds, gardens and out-houses which may be said to belong to or be appropriate to or relate to the building. In Norton on Deeds, 2nd edition, pages 277.--S, and 83--it is pointed out that the expression 'appertaining' may mean 'usually occupied with or, held or enjoyed with'. See also Hill and Redman's 'Law of Landlord and Tenant'', 11th edition, page 113; Ramnath Iyer, 'The Law Lexicon of British India', 1st edition, pages 76-77. The question whether the grounds, gardens and outhouses, if any, appertain to the building or hut must be decided on the facts of the particular case.

4. The question whether the structures are building or huts should be decided in the context of Section 2(f) of the 1950 Act and not by recourse to the definition of huts and buildings in other Acts,

5. I agree that the questions referred to this Bench be answered in the manner proposed by my learned brother, Sinha, J.

D.N. Sinha, J.

6. These are two application which have been heard together. They are between the same parties, and a common question of law arises, which has, by a reference dated the 26th May, 1960, been referred for adjudication by a Special Bench. The question referred is as follows :

'Whether the word 'Premises', as defined in the West Bengal Premises Tenancy Act, includes a market, comprising buildings, sheds, stalls etc.'

The Statute referred to, is the West Bengal Premises Tenancy Act, XII of 1956 as amended by Act XVIII of 1956 (hereinafter referred to as the 'Act'). The question referred is in a general form, and it is not necessary to go into the detailed facts of the case. It will be however necessary to relate a few facts, to understand how the point arose and why it was referred.

7. A market, known as the Barabazar Tal Hat, is situated within the town and municipality of Burdwan. Vegetables and fish are sold there. Upon the materials before us, all that we are made aware of, is that the market is situated upon 12 cottas 7 chhitaks of land and consists of sheds, stalls, pavements, buildings, vacant space with lanes and byelanes. It constitutes a single municipal holding. It is admitted by the parties before us that the 'buildings' consist of pucca structures, whereas the sheds and stalls are of various kinds, some covered with corrugated Iron sheets and others with no cover at all.

8. This market belonged to the Maharaja of Burdwan. Lal Behari Kapuria (Hereinafter referred to as 'Kapuria') took an Ijara of it from the Maharaja in 1946 and again in 1949 and remained an Izaradar until Chaitra 1359 B.S., on which date he was paying Rs. 3,000/- per annum as Izara, payable in equal quarterly instalments. On or about the 6th October, 1953 the Maharaja granted a perpetual lease of the market to the Burdwan Real Properties (Private) Ltd. '(hereinafter referred to as the 'Company'). Thereafter, Kapuria, instead of making arrangements with the Company, took an Izara for a term, with an option for renewal, from one Jiwamnal Bhutoria, the Managing Director of the Company, at an annual Izara of approximately Rs. 4,000/- per annum, payable in quarterly instalments. The Company was not prepared to accept this, and since 1362 B.S. Kapuria began to deposit moneys with the Rent Controller, at the rate of Rs. 1,112-1-0 quarterly In 1956, he filed a Suit, being T.S. No. 108 of1956 in the Court of the Subordinate Judge, Burdwan for specific performance and other reliefs. The matter, was thereupon settled between the parties, and on 12th January, 1957 the Company granted him an Izara for 5 years for an annual payment of Rs. 5,000/-, payable in quarterly instalments of Rs. 1,250/-. Shortly thereafter, Kapuria sent to the Company by money order, a sum of Rs. 275/14/-, as part of the arrears of Jzara, which the Company accepted. In August, 1957, Kapuria made an application before the Rent Controller under Section 7(1) of the Act for refund of the said sum of Rs. 275/14/-, stating that the company had accepted it in violation of the provisions of Section 5 of the Act. On the 12th August, 1957, the Rent Controller dismissed the application, find Kapuria appealed to the Subordinate Judge, Burdwan who by his order dated the 12th April, 1958, allowed the appeal and directed the Company to refund the amount. A point was taken on behalf of the Company that the Izara did not come within the scope of the said Act, but this contention was rejected by the learned Subordinate Judge. On the 4th August, 1958 a rule was issued by this Court, numbered as C.R. 2677 of 1958 calling upon the opposite party to show cause why the order made by the learned Subordinate Judge should not be set aside. In November, 1957, Kapuria made an application before the Rent Controller Burdwan for fixation of the fair rent under Section 8 of the said Act. By an order dated the 27th November, 1957, the Rent Controller held that the matter did come within the purview of Section 10 of the said Act but dismissed the application on the ground that it had not been shown that the agreed rent was not a fair rent. From this, there was an appeal to the learned Subordinate Judge, Burdwon. Curiously enough the learned Subordinate Judge held that a municipal holding of this character was not in contemplation of the Legislature when the said ' Act was enacted, and that 'strictly speaking it does not fall within the definition of the term 'Premises' .......Yet there should be no room fordoubt that the provisions of the West Bengal Premises Tenancy Act are applicable to the present case'. He however agreed with the view taken by the Rent Controller and dismissed the appeal. On the 17th September, 1958, a rule was issued by this Court at the instance of Kapuria, upon the Company to show cause why the said order of the learned Subordinate Judge should not be set aside. This rule has been numbered as C.R. 15484 of 1958.

9. Both these rules having come up for hearing, before a Division Bench presided over by P. N. Mookerjee J., it was recommended that an order of reference he made, which has been set out above,

10. As is evident from the wordings of the reference, it is in a general form, although based upon the particular facts of these two cases. All that we ore told about the facts is that there is a market comprising of buildings, sheds, stalls etc. and the question posed is as to whether the word 'premises' as defined in the Act would include such a market. As I shall presently show, we can only answer this general question in a generalway. A more specific answer would require a consideration of facts which are not before us, or at least which we have no means of determining, on the materials placed at our disposal. Whether the referring Court will be in a better position to decide the matter will be for it to consider, when the matter goes back with our answer. Before I proceed further, it will be necessary to set out the definition of the word 'Premises' as defined in Clause (f) of Section 2 of the Act. The relevant part of the definition runs as follows :

'Premises' means any building or part of a building Or any hut or part of a hut let separately and includes -

(i) the gardens, grounds and out-houses, if any, appertaining thereto, ......'

11. As J have stated above, it is admitted before us that the market consists of sheds, stalls, pavements, buildings, vacant space with lanes and by lanes. Now analysing the definition of 'premises' as given in the Act we find that it consists Of:

(1) Building or part of a building

(2) Hut or part of a hut let separately

(3) The out-houses appertaining thereto

(4) The grounds or gardens appertaining thereto.;

Therefore, a simple way of solving the problem would be to find out whether the market consists of any of the four items mentioned above Admittedly there are buildings and grounds. Mr. Sen Gupta, appearing for the Company does not even argue that the buildings are not included in the definition. His only argument is that the vacant space, including pavements, lanes, by lanes, do not appertain to the buildings, since they are utilised independently. Now, the dictionary meaning of the word 'appertain' is--'To belong to' or 'To relate to'. Whether the vacant space etc. belongs to, or relates to, the buildings, must necessarily be a question of fact. Mr. Sen Gupta says that this vacant space is used by vendors of vegetables or fish and has no connection with the buildings. Nothing appears to that effect from the materials placed before us. It may be that the buildings are intimately connected with the user of the vacant spaces. For example, they may be the offices where, those who use the vacant space, deposit their fees etc. I am only giving an illustration, but tile danger of speculating on facts which are not completely known is obvious. Nor are we in a position to decide whether the sheds or stalls can be called 'Huts', within the definition quoted above. That also is a question of fact.

12. We repeatedly asked Mr. Sen Gupta as to whether, in contesting the reference, he had in mind the question of the purpose or mode of user of the buildings or huts. In other words, we asked him as to whether he was going to argue that the provisions of the Act only apply to dwelling houses or the like, and not to business locations, such as a market. He definitely stated that he did not advance such an argument,

13. In my opinion, if that be the case, then the answer is a very simple one and bereft of all complexity. I however cannot avoid thinkingthat it was this aspect which was present in the minds of the learned Judges when making the reference, and that it would be useful to deal with it briefly. The question is as to whether the word 'premises' in the Act, is used in a limited sense or comprises of all kinds of buildings, huts and their appurtenant grounds and gardens, irrespective of the user to which they might be put. In order to decide this a historical survey will be necessary,

14. So far as Bengal is concerned, we start with the Calcutta Rent Act 1920 (Bengal Act; No. III of 1920) which came into force on the 5th May, 1920, and only applied to Calcutta. Under Clause (e) of Section 2 of the said Act, the expression 'premises' meant 'any building or part of a building, or hut let separately, for residential, charitable, educational or public purposes, or for the purposes of a shop or office, including any land appertaining thereto and let therewith', It will be seen that this definition is a limited one, and enumerates the headings under which the 'premises' must fall. In other words, the definition was linked with the user thereof.

15. The Calcutta Rent Act 1920 was amended several times and the period of operation was extended from time to time, until it died a natural death in 1927. After the outbreak of the last World War, the necessity for legislation was again felt and the Bengal House Kent Control Order 1942 was passed. Under this Control Order the word 'House' was defined and meant any building or part of a building or hut, let or to be let separately, for residential or non-residential purposes and included the garden grounds and outhouses (if any) appurtenant to such building or part of a building or hut. It will be observed, that this definition was an enlarged one and included not only residential purposes but other purposes as well. The Control Orders passed during the War terminated on 30th September, 1946. This was followed by the Calcutta Rent Ordinance 1946. In Section 2(5) of the Ordinance, the word 'Premises' was defined as any building or part of a building or any hut or part of a hut which is, or intended to be let separately, or comprises of all kinds of buildings, huts and their appurtenant grounds and gardens, irrespective of the user to which they might be put. In order to decide this a historical survey will be necessary.

16. So far as Bengal is concerned, we start with the Calcutta Rent Act 1920 (Bengal Act No. III of 1920} which came into force on the 5th May, 1920 and, only applies to Calcutta, Under Clause (e) of Section 2 of the said Act, the expression 'premises' meant 'any building or part of a building, or hut let separately, for residential, charitable, educational or public purposes or for the purposes of a shop or office, including any land appertaining thereto and let therewith. It Will be seen that this definition is a limited one, and enumerates the headings under which the 'premises' must fall. In other words, the definition was linked with the user thereof.

17. The Calcutta Rent Act 1920 was amended several times and the period of operation was extended from time to time, until it died a naturaldeath in 1927. After the outbreak of the last World War, the necessity for legislation was again felt arid the Bengal House Rent Control Order 1942 was passed. Under tin's Control Order the word 'House' was defined and meant any building or part of a building or hut, let or to be let separately, for residential or non-residential purposes and included the garden, grounds and outhouses (if any) appurtenant to such building or part of a building or hut. It will be observed, that this definition was an enlarged one and included not only residential purposes but other purposes as well. The Control Orders passed during the War terminated on 30th September, 1946. This was followed by the Calcutta Rent Ordinance 1946. In Section 2(5) of the Ordinance, the word 'Premises' was defined as any building or part of a building or any hut or part of a hut which is, or intended to be let separately, for residential or non-residential purposes and included grounds and out-houses (if any) appertaining thereto. Thus, the definition continued to be an enlarged one. The Ordinance was followed by the Temporary Enactment Act 1947 and finally by the West Bengal Premises Rent Control Act 1948 (Act XXXVIII of 1948). By Section 2(8) of the said Act, 'Premises' was defined as any building or part of a building or any hut or part of a hut let out separately and included the gardens, grounds and out-houses (if any) appertaining thereto. We find that in this Act, even the mention of residential or non-residential purpose was abandoned and the intention was to keep no restrictions whatsoever except that in this Act, a stall in a municipal market, or in a market maintained by or belonging to a local authority, or a stall let at variable rents at different seasons of the year for the retail sale of goods in any other market, was excluded. This Act was followed by the West Bengal Premises Rent Control (Temporary Provisions) Act 1950 (W. B. Act XVII of 1950). In this Act the definition was the same. It was now felt that the time had come to have a permanent measure of rent control, and in 1956 was passed a permanent Act, namely--The West Bengal Premises Tenancy Act 1956 (W. B. Act XII of 1956). In this case, we are concerned with this Act and the definition of the word 'Premises' in Section 2(f) has been set out above. It is practically the same as in the 1950 Act, save and except that the pointed exclusion of stalls in markets has been dropped. The definition given in this Act is very wide and the purpose of letting is significantly omitted. Mere letting is therefore enough and the purpose is immaterial. I have already mentioned the four headings which are to be included in the expression 'Premises' as used under the Act. Roughly speaking, it consists of buildings or huts and the out-houses, garden and grounds appertaining thereto. We also find that the purpose for which they have been let out is immaterial, so that if they have been let out for the purposes of a market, they still remain 'Premises' governed by the Act. This aspect of the matter has been referred to by the Supreme Court in Karnani Properties Ltd. v. Miss Augustine : [1957]1SCR20 , where Sinha, J,, (as he then was) said as follows :

'It has been contended for the appellant that: 'Premises' thus defined do not include tenements-with the special facilities and conveniences agreed by the landlord to be supplied to the tenants. In this connection reference was made to the definition of 'Premises' as contained in the previous legislation like the Calcutta Rent Act (Ben, III of 1920), the Calcutta House Kent Control Order 1943, the Calcutta Rent Ordinance (No. V of 1046) and the West Bengal Premises Rent Control (Temporary Provisions) Act (Ben. XXXVIII of 1948) which has been replaced by the Act. It will serve no useful purpose to go into the ramifications of the definitions in the different pieces of legislation which deal with the same subject mutter. We have to consider the Act as it stood. The Act has now been replaced by the West Bengal Premises Tenancy Act (Ben. XII of 1956). But it is agreed at the Bar that we are concerned with the Act as it stood before it was replaced by the Act of 1956. The definition of 'Premises' set out above is in very wide terms and includes not only gardens, grounds and out-houses appertaining to a building or part of a building but also furniture supplied by the landlord for the tenants' use and any fittings affixed to the buildings thus indicating that the legislature was providing for all kinds of letting. The definition of 'Premises' and 'hotel or lodging house' between them almost exhaust the whole field covered by the relationship of landlord and tenant, subject to the exceptions noted in the definition of 'premises' ..,.....'

That the present Act comprises of residential buildings as well as those used for other purposes, is amply clear from Section 8 which lays down the method of computing fair rent. Sub-clause (i) of Clause (a) lays down the method of computation in connection with 'Premises used mainly for residential purposes or as a hospital, an orphanage, a public library or an educational or charitable institution. Sub-clause (ii) of Clause (a) lays down the method of computation in the case of 'premises used for purposes other than those mentioned in Sub-clause (i)'. Thus, the definition of 'Premises' is all-embracing, so far as purpose is concerned. All that is required is that it should consist of buildings or, huts which are let Out. These, with out-houses if any and garden or grounds appertaining thereto, would at once come within the ambit of the Act. So far as the English law is concerned, we start with the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, and end with the Rent and Mortgage Interest Restriction Act, 1939 followed by the Landlord and Tenant Act 1949 and 1954. The 'Rent Restriction Acts', as these Acts are called, do not apply to business premises (See Halsbury 3rd Edn. Vol. 23 page 746, Art 1501). The Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (10 and 11 Geo 5 Cl. 17) which extended the scope of the Act to business premises was repealed in 1927. These Acts are intended to regulate the letting out of dwelling houses only. Under the English law, the word 'market' is derived from the Latin 'mercatus' which signifies trade Or traffic or buying and selling, and is at common law, either, a franchise or the right to hold a concourse of buyers and sellers. It also denotes a place where such a concourse usually takes place. 'Markets' in England are regulated by Royal Charters or Act of Parliament,like the Markets and Fairs Clause Act 1847 (10 and 11 Vict. c. 14). In India, the Municipal Acts contain provisions for regulation of markets within the jurisdiction of municipalities and corporations. There is, however, no comprehensive statute on the subject and certainly none which purports to regulate that aspect of the matter with which we are concerned in this case. Provided therefore, that a market falls within the definition of 'Premises', as defined in the Act, it will be governed by its provisions.

18. Coming now to the facts of this case, we find that the only thing to be determined is as to whether the 'market' which has been demised by the Company to Kapuria, falls within the definition of 'Premises' as defined under the Act, It has been shown that the fact that it is used as a market and not for residential or allied purposes is immaterial. We have therefore to proceed and determine whether the market consists of buildings or huts. These, together with out-houses (if any), and grounds (there is no question of a garden here) appertaining thereto, would constitute 'Premises' as defined under the Act. A complete determination of the question would involve a determination of facts which we are unable to do upon the materials, before us. All we have is that the market admittedly consists of sheds, stalls, pavements, buildings and vacant spaces with its lanes and by-laues. So far as buildings arc concerned, it is not disputed before us that they come within the definition. So far as the sheds and stalls are concerned, they must be capable of being called Huts. The word 'Hut' is not defined in the Act. In the Calcutta Municipal Act 1951 (Section 5 (38)) it has been defined to mean any building, no substantial part of which, excluding the walls up to a height of eighteen inches above the floor or floor level, is constructed of masonry, reinforced concrete, steel, iron or other metal. Under the Bengal Municipal Act 1932 (Section 3 (24)) a 'hut' means any building which is constructed principally of wood, bamboo, mud, leaves, grass or thatch and includes and temporary structures of whatever size or any small building (not being a masonry building) of whatever material made. These may be taken as working definitions to decide whether the sheds or stalls can be called 'huts'. Coming now to the pavements, vacant spaces, lanes and by-lanes, it would have to be considered whether they can be described as grounds appertaining to the buildings or huts. This again involves a determination of facts, which we are unable to do upon the materials before us. Some arguments have been advanced before us upon the question as to the legal interpretation of the word 'appertaining' appearing in Section 2 (f) (i) of the Act. I have already given above the dictionary meaning of the word. It is obvious that in determining' the question as to whether the pavements, lanes, by-lanes and vacant spaces are related to or connected with the buildings and huts such as may be found to exist within the market, a number of factors will have to be considered. The fact that the whole market constitutes of only about 12 cottahs of land, within a single municipal holding is a matter that should be taken into consideration. Where buildings or huts together with;grounds are included in a single demise, the test for determining the question as to whether the ground appertains to the buildings and/or huts is to look at the instrument of demise itself. If the demise is of the buildings or huts or for a purpose from which it would be reasonable to infer that the purpose is predominantly connected with the buildings or huts, then it would follow that the ground appertains to the buildings or huts. On the other hand, if the demise is of the land or for a purpose from which it would be reasonable to infer that it is the land which is predominantly connected with the purpose, then it could not be said to appertain to the buildings or huts. In either case, it involves a question of fact.

19. The result is that I would answer the questions put to us in both the applications in the following manner :

The word 'premises' as defined in the West Bengal Premises Tenancy Act, includes a market comprising of buildings, or part of a building or a hut or part of a hut let out separately, together with the outhouses (if any) and the grounds, appertaining thereto. Sheds and stalls in such a market would come within a definition, provided they can be held to be buildings or huts or parts thereof. The pavements, lanes and by-lanes, or vacant spaces would be included if they appertain to the buildings or huts or parts thereof, but not otherwise.

Thus, the definition of the word 'premises' in the West Bengal Premises Tenancy Act, may well include, 'a market, comprising buildings, sheds, stalls etc.'

20. There will be no order as to costs.

P.N. Mookerjee, J.

21. I agree in the answer, proposed by Sinha, J. and agreed to by Bachawat, J. On the arguments, advanced before us, a more precise or complete answer is not possible and the decision of the two Rules would depend on the facts of the instant cases in the light of the said answer, proposed by us, and the underlying reasons, given therefor. If the stand, now taken before this Special Bench by Mr. Sen Gupta, had been taken up before us (N.K. Sen, J. and myself), when we made the present reference, possibly this Reference would not have been necessary, and it would not have been made and the Rules would have been disposed of on their particular facts with the aid of much simpler propositions of law. That would certainly have been to the benefit of all concerned and would have saved much of the time, unnecessarily spent, lost and wasted over and in connection with the present Reference.

22. Before the Division Bench, however, to which, as I have said above, I was a party, and which made the present reference, the point was taken that a market qua market would not be a premises within the meaning of the West Bengal Premises Tenancy Act, 1956, and, as such that Act would not apply to it. Stress was, then, laid on the user, that is, user of the disputed property as a market, and, from that point of view, the test of user was put forward as a test of 'premises'under the Act, or, in other words, user as a market was sought to justify the exclusion of this particular property from the definition of 'premises' under the said Act. This has now been completely abandoned before this Special Bench but, lest this point arise in future and create difficulty, it is only proper that it should be answered, particularly, when that, in truth, and as a matter of fact, was the basis and the reason of this Reference. In view, however, of the other argument, made for the first time before this Special Bench, which, as pointed out by my Lord, cannot be answered without more precise, detailed and specific materials, not available or open for consideration in this Reference, and which argument is not relevant for purposes of the instant Reference, as it is not strictly speaking, within its scope, that answer to the question framed would, obviously, be incomplete, but that is inevitable in the circumstances of these instant cases.

23. The Reference, as sufficiently stated hereinbefore, has been made for ascertaining whether the word 'premises' as defined in the West Bengal Premises Tenancy Act, 1956, includes a market, comprising buildings, sheds, stalls, etc. Prima facie, stress is on user, that is, user as a market, but, as the Act, in its several provisions, definitely shows, the test of user is not the test of 'premises' under the Act, except possibly, for purposes of the exception (Vide the definition of 'premises' in Section 2(f)), namely, to find out whether the property concerned is a hotel or a lodging house within the meaning of the said exception, as given in the explanation, annexed thereto. This, indeed, is clear even on the definition itself, which runs as follows :

'2(f) 'Premises' means any building or part of a building or any hut or part of a but let separately and includes--

(i) the gardens, grounds and out-houses, if any, appertaining thereto,

(ii) any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building or part of a building or hut or part of a hut, but docs not include a room in a hotel or lodging house.

Explanation: 'Hotel' or 'lodging house' meang an establishment, where lodging with board is provided for monetary considerations.'

but the matter has been put beyond all controversy by the Supreme Court in its decision in : [1957]1SCR20 , under the earlier Act of 1950, where so far as this material part is concerned, the corresponding definition. Section 2 (8) was the same.

24. That definition (Section 2(8)), which was in the following terms :

'2(8)--'premises' means any building or part of a building or any hut or part of a hut let separately and includes :

(a) The gardens, grounds and out-houses (if any) appertaining to such building or part of a building or hut or part of a hut, but does not include a room or part of a room or other accommodation in a hotel or lodging house or a stall in a municipal market as defined in Clause (44) of Section 3 of the Calcutta Municipal Act, 1923 (Beng. Act III of 1923), or in any other market maintained by orbelonging to a local authority or a stall let at variable rents at different seasons of the year for retail sale of goods in ant other market as definedin Clause (39) of Section 3 of the Calcutta Municipal Act, 1923, or Clause (30) of Section 3 of the Bengal Municipal Act, 1932 (Ben. Act XV of 1932); '

as also the present definition (Section 2(f)) are clear enough to show that, except for purposes of the corresponding exception (which, of course, was wider under the 1950 Act in that it included also certain stalls in municipal markets and the like), the test of user was not relevant for ascertaining whether a particular property was or was not 'premises' within the meaning of the particular statute. This, in effect, was the view of the Supreme Court in the decision cited and, although the case there was one under the 1950 Act, it is also a settlor on the point under the present Act which, as seen above, is materially the same as its said predecessor, so far as the present question is concerned.

25. Rent Control law, so far as this part of the country is concerned, started with the 1920 Act (The Calcutta Rent Act of 1920). This was one of the after-effects of the First World War and the Act was a necessity to meet the situation of shortage of accommodation in this city in the wake of the said Great War. In that Act, which lasted for about seven years, that is, from May 1920 to March 1927, 'premises' was defined as Col tows :

'2(e)--'Premises' means any building, or part of a building, or hut let separately for residential, charitable, educational, or public purposes, or for the purposes of a shop or an office, including any laud appertaining thereto and let therewith:

Such expression includes a room or rooms in a hotel, boarding house or lodging house, but does not include a stall let at variable rents at different seasons of the year for the retail sale of goods in a market as defined in Section 3(24) of the Calcutta Municipal Act, 1899'.

The necessity of rent control again arose shortly after the outbreak of the Second World War and the first measure was the two Rent Control Orders of 1942, the Bengal House Rent Control Order, :J942, applying or capable of applying to the whole of Bengal excluding Calcutta, for which a similar Order (The Calcutta House Rent Control Order ^1943) was promulgated in 1943, supplementing the earlier Order of 1942, and the Bengal Hotels and Lodging Houses Control Order, 1942, applying to the whole of Bengal, though its operational areas were left to be determined by the Provincial Government by appropriate notifications. It is significant to notice here that the definition of 'Premises' in the 1920 Act which, of course, applied to Calcutta alone included rooms in hotels or lodging house.? but excluded stalls in municipal markets, while the corresponding definition of 'house' in the 1942 Order, Bengal House Rent Control Order, 1943, excluded only rooms in hotels, etc. which were left to be provided for in the correlated Bengal Hotels and Lodging Houses Control Order, 1942, simultaneously promulgated, but, so far as Calcutta was concerned, the definition of house in the Calcutta House Rent Control Orderof 1943 excluded stalls in municipal markets and also rooms in hotels and lodging houses, obviously because these last items were already covered by the relative 1942 Order, The over-all position thus was practically the same as under the 1920 Act. All the above Rent Control Orders terminated on 30th September, 1946, that is, six months after the official termination of the Second World War, but they appear to have been replaced by the Calcutta Rent Ordinance, 1946, which applied, in the first instance, to Calcutta with power to the Provincial Government to extend its operational section. In this Ordinance 'premises' was defined practically in the same terms as in the 1920 Act.

26. The Calcutta Rent Ordinance, 1946, was succeeded by the West Bengal Premises Rent Control (Temporary Provisions) Act of 1948, which defined premises as follows :

'2(8)--'premises' means any building or part of a building or any but or part of a hut let separately and includes-

(a) the gardens, grounds and out-houses (if any) appertaining to such building or part of a building or hut or part of a hut,

(b) any furniture supplied or any fittings affixed by the landlord for use in such building or part of a building or hut or part of a hut, but does not include a room or part of a room or other accommodation in a hotel or lodging house or a stall in a municipal market as defined in Clause (44) of Section 3 of the Calcutta Muncipal Act, 1923, or in any other market maintained by or belonging to a local authority or a stall let at variable rents at different seasons of the year for the retail sale of goods in any oilier market as defined in Clause (39) of Section 3 of the Calcutta Municipal Act, 1923, or Clause (30) of Section 3 of the Bengal Municipal Act, 1932;', thus excluding rooms in hotels or lodging houses as well as stalls in Municipal markets, and the same definition was repeated in the next Act, namely, the 1950 Act (Vide Section 2(8)). In the 1956 Act, the exception was limited to rooms in hotels and lodging houses and stalls were no longer excluded.

27. One thing more needs special mention at this stage. In the definitions up till the 1946 Ordinance, apart from the exceptions, already noted, there is express reference to the purpose of letting, that is, to the user of the 'premises' though, bar ring the 1920 Act, the said reference is practically redundant, as it is wide enough to include every purpose or user. Obviously, on this view, that reference has been omitted in and from the 1948 Act, thus making it quite clear that user or purpose of letting is not a relevant consideration, except for purposes of the exception or exceptions, in the matter of determining whether a particular property is or is not a premises under the statute. Such purpose or user is, undoubtedly, relevant for the aforesaid exceptions and also for the purpose of determination or fixation of standard or fair rent (Vide Section 8 of the 1956 Act and corresponding provisions of the earlier laws in that behalf which really confirm the above view).

28. The foregoing analysis and historical survey makes it abundantly clear that the purpose of the letting or the test of the user offers no criterion or guidance fox determining whether a particular property--not being a hotel or a lodging house--is a premises or not and it is ''the nature of the property as distinguished from its user which is relevant--and, indeed, the determinant--from that point of view. The Supreme Court, in the case cited, took the same view on the point under the 1950 Act which, as I have said above, was materially the same as the 1956 Act, so far as this particular aspect is concerned, and the words, used by the Supreme Court on that occasion, namely, that the legislature was providing for all kinds of letting and the definition of 'premises' and 'hotel' and 'lodging house' between them almost exhaust the whole field, covered by the relationship of landlord and tenant, subject to the exceptions, noted in the definition of premises, apply with equal force to the definition of premises under the 1956 Act.

29. I do not deem it necessary to refer to the English statutes. We have to construe our own Act. The history of this particular legislation indicates,--and sufficiently indicates,--the approach to be made to this particular question and the several sections of the Act, including the definition, sufficiently confirm, in the light of--and even without--the above Supreme Court decision, that the test of user is wholly irrelevant for purposes of ascertaining whether a particular property is or is not 'premises' within the meaning of the Act, except for purposes of the stated exceptions in the statute itself, as noted hereinbefore. This aspect of the matter has been fully dealt with by my lord Sinha, J., in all relevant details and, after that exhaustive analysis of any Lord and the Supreme Court decision, referred to hereinbefore, the conclusion is irresistible that user, as a test, must be severely discarded and left alone in adjudging the question whether a particular property--not being a hotel or lodging house,--is or is not a 'premises' within the meaning of the Statute under consideration.

30. In the premises, the main reason, which necessitated this Reference, is answered by saying that the word 'premises' in the West Bengal Premises Tenancy Act, 1956, may well include a market, comprising buildings, sheds, stalls, etc. leaving further consideration for a complete answer unto the particular facts of a particular case, namely, whether the sheds and stalls are huts or buildings, and whether the lands, pavements, etc. appertain to the buildings or huts in question, in the light1 of the following considerations :

(a) area of the built-up portion (including huts) and vacant portion;

(b) whether the property is comprised in one or more municipal holdings;

(c) whether it is covered by one or more leases or demises;

(d) what is the primary or predominant subject-matter of letting -- land or building; and

(e) the document of lease, if any, that is, on a proper construction of the same as to all its terms, incidents and particulars.

31. In the present case, then, this further consideration is, pre-eminently, a matter for the Division Bench--in any event, this does not, strictly arise on the present reference, which, as it is perfectly plain, is in too general terms from that point of view, obviously because it was not made or required to be made from that stand-point,

32. In the premises, I agree in the answer, proposed by my Lords.


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