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S.N. Bhattacharjee (Landlord) Dead and in His Place M.M. Chakravarti Official Receiver, High Court Vs. Union of India (Uoi) Owning and Administering the Posts and Telegraphs Dept. (Tenant) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberFull Bench Ref. No. 1 of 1957 in C.R. Nos. 1614 of 1955 and 2 of 1957 in Cr. R. No. 942 of 1955
Judge
Reported inAIR1961Cal432,65CWN315
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950 - Sections 9, 10, 17(2) and 17(3)
AppellantS.N. Bhattacharjee (Landlord) Dead and in His Place M.M. Chakravarti Official Receiver, High Court
RespondentUnion of India (Uoi) Owning and Administering the Posts and Telegraphs Dept. (Tenant)
Appellant AdvocateC.C. Ganguly and Chittatosh Mukherjee, Advs. (in F.B. Ref. No. 1 of 1957), ;Harendra Chunder Ghose and ;Soumendra Nath Mukherjee, Advs. (in F.B. Ref. 2 of 1957)
Respondent AdvocateProfulla Kumar Roy and ;Amiya Kumar Mukherjee, Advs. (in F.B. Ref. No. 1 of 1957) and ;Nikhil Chandra Taluqdar, Adv. (in F.B. Ref. No. 2 of 1957)
Cases ReferredIndra Kumar Kamani v. Sundardas Thackersey and Bros.
Excerpt:
- .....the definition may be said to make a distinction between 'determination' without reference to the rent controller and 'fixation' by the rent controller. but, in any event, 'standard rent' has to be either determined or fixed and the question of application of schedule a can only arise at the time of or in connection with such determination or fixation. it would thus certainly arise at the time of such determination or fixation. that point of time, then, is obviously one of the two terminii or terminal points of time, relevant for the purpose, that is, for purposes of the statute in question, as aforesaid. from its very nature again, namely, that it is, at the time of determination or fixation as aforesaid, that final shape is given to the 'standard rent', that time or point of time must.....
Judgment:

P.N. Mookerjee, J.

1. These two references raise and involve the same point or points of law, though, in the relative referring orders, they have been put in different language. The difference, however, is only in form; in substance, the points are the same. The two references have arisen on account of conflict between two Division Bench decisions of this Court, one in the case of Birendra Nath Basak v. Rabindra Nath Mitra, 93 Cal LJ 23 and the other in the latter case of Indra Kumar Kamani v. Sundardas Thackersey and Bros., : AIR1953Cal570 which was decided without noticing the aforesaid earlier decision. Both the referring orders agree in disagreeing with the above Bench decision in : AIR1953Cal570 (Supra), but, while the learned referring Judges (Das Gupta and Guha JJ.) in F. B. Ref. No. 1 of 1957, have expressed their tentative disagreement also with the other decision, namely, 93 Cal LJ 23 (supra) in the other referring order, that decision 93 Cal LJ 23 has been accepted as correct and it has only been sought to be explained and elaborated.

2. The basic question, which requires to be answered in these two references, relates to the meaning and construction of the two phrases 'has elapsed' and 'elapses' in Schedule A, Paragraphs 2(b) and 3(b), -- or, more precisely, in the latter provision,--of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. To be more exact and accurate, the question under reference seeks determination of the later or outer terminus of the period of three years, mentioned in the above statutory provisions, and the answer to the instant reference depends primarily upon that determination. About the starting point of the said period of three years, thereis no difficulty, as the statute lays it down in clear terms; as to its termination, also, there is, apparently, -- or outwardly, at least, -- no difficulty, as it ends or terminates as soon as the said period of three years, counted from the aforesaid starting point, expires, but the difficulty arises, when this date of expiry falls to be correlated to the Act, that is, to its relevant part, or to the two expressions 'has elapsed' and 'elapses' in Schedule A aforesaid, or, when it falls to be viewed in relation or with reference to the same. On this aspect, there are three different judicial points of view:

(a) that it (the aforesaid period of three years) must expire or must have expired before the passing of the aforesaid Act (by the Legislature) or before the same came into force or operation (vide : AIR1953Cal570 ) (supra);

(b) that it must expire or must have expired before the coming into force of the said Act or before the making of the particular application for standardisation of rent (vide the referring order in F. B. 1 Ref. No. 1 of 1957); and

(c) that it must have expired or must expire before the making of the aforesaid application or the final disposal of the same (vide 93 Cal LJ 23, (supra), and the referring order in F. B. Ref. No. 2 of 1957).

3. In each of the above views, there is reference to two points of time, which was necessitated by the two phrases or expressions 'has elapsed' and 'elapses' and the two alternatives in each of the said three different views have reference to the said two expressions respectively and, although it is possible to argue, -- and that, indeed, may well be a plausible argument as was pointed out by my Lord (Bachawat, J.) during discussion in Court,--that the aforesaid two expressions or phrases are only two ways of expressing the same thing and that no particular significance should attach and no distinction need be made by reason of the use of the said two phrases or expressions, -- the present perfect and the present tense,--it is, at least, a well-settled rule of construction of statutes that the legislature should not be held to have wasted words or to have been guilty of using redundant or unnecessary expressions. It is, probably, this idea or principle, which underlies the distinction, sought to be maintained between the said two expressions or phrases 'has elapsed' and 'elapses' in the statute under consideration, and the endeavour to give effect to each of them in all the above decisions, and, when I find it possible to maintain and reconcile that distinction with a reasonable view of the said two expressions, I also would answer the point or points before us, keeping alive and recognising the said distinction.

4. If, now, the two expressions 'has elapsed' and 'elapses' do not refer to or mean the same thing or relate to the same circumstances, what, in truth, are the two events, before which the aforesaid period of three years must expire for purposes of the said two phrases 'has elapsed' and 'elapses', or, in other words, what are the two terminal points of time, to which respectively the said two expressions should have reference. It is essential to bear in mind in this connection that the question of application of Schedule A, in which the above two expressions occur, will arise only when standard rent is to be determined or fixed. It may be that, in view of tke definition of 'standard rent' in Section 2(10) of the Act,'fixation' may not always be necessary for standard rent, as the definition may be said to make a distinction between 'determination' without reference to the Rent Controller and 'fixation' by the Rent Controller. But, in any event, 'standard rent' has to be either determined or fixed and the question of application of Schedule A can only arise at the time of or in connection with such determination or fixation. It would thus certainly arise at the time of such determination or fixation. That point of time, then, is obviously one of the two terminii or terminal points of time, relevant for the purpose, that is, for purposes of the statute in question, as aforesaid. From its very nature again, namely, that it is, at the time of determination or fixation as aforesaid, that final shape is given to the 'standard rent', that time or point of time must be outer of the said two terminii and as, of the two phrases 'has elapsed' and 'elapses', if they refer to different points of time, the latter must, necessarily, and from the very nature of things, be the later, the above outer terminus will relate or have reference to the phrase 'elapses'.

5. As to the other terminus, which will relate to the phrase 'has elapsed', it is not necessary on the present occasion to express any final opinion, so far as determination, as distinguished from fixation, of standard rent is concerned. This is because the two instant references have both arisen out of proceedings for fixation of standard rent before the Rent Controller and the questions, framed for decision by the Full Bench in the two instant cases, which are in these terms, namely,--

(1) What is the point of time with reference to which the period of three years since rent was fixed as mentioned in paragraph (1)(a) of the Schedule or increased rent as mentioned in paragraph (1)(b) was first paid, should be calculated?

(2) Whether the cases of 93 Cal LJ 23 and : AIR1953Cal570 were rightly decided?

(Vide Full Bench Reference No. 1 of 1957),

and

(1) What is the true construction of the two phrases 'has elapsed' and 'elapses' in paragraph 3(b) of Schedule A of the Rent Control Act of 1950?

(2) Whether : AIR1953Cal570 was correctly decided?

(Vide Full Bench Reference No. 2 of 1957),

are on that footing and in relation to such proceedings. In the circumstances, the point as to this other or earlier terminus, arising on the construction of the phrase 'has elapsed' so far as determination of standard rent without reference to Rent Controller is concerned, is left open in these References and I would answer the same or that particular point, only so far as it arises in proceedings for standardisation of rent or fixation of standard rent by the Rent Controller. In such cases, that is, in cases of fixation of standard rent by the Rent Controller, I am inclined to hold, on a consideration of the several or different points of view, indicated hereinbefore, and the several or different aspects of the matter, that the said other or earlier terminus, relating to and arising on the phrase 'has elapsed' will refer or have reference to the date or the date of filing of the application before the Rent Controller for the abovepurpose, that is for standardisation of rent, as aforesaid.

6. My reason, indeed, is obvious. For fixation of standard rent, the proceeding starts with the application and, if, as stated above, the question of applying Schedule A can, in such cases, arise only at the time of or in connection with fixation of standard rent, the earliest point of time, before which the relevant period of three years must expire, would, obviously, be the date of the said application.

7. One possible objection to the above view may be taken upon Section 10 of the Act, -- though that would not arise in any of the two instant cases before us, where, in either case, the application for fixation or standardisation of rent was made before the Rent Controller long after the expiry of the relevant statutory period of three years, -- and, particularly, Clause (ii) of Sub-section (1) thereof, which specifies the time, from which the standard rent, fixed by the Rent Controller, is to take effect, as 'the month next after the date of the application' and this may prima facie, be impossible to apply, if the above view he correct, where the application is not disposed of finally within a month of the making of the same and the relevant period of three years expires after the said month but before the disposal of the said application. It is to be noted, however, that the aforesaid Clause (ii) contemplates an effective application for increased (standard) rent and such, an application, when the increase is under paragraph 2(b) or paragraph 3 (h) of Schedule A, can only he effective, when the said period of three years has expired. From that point of view, for purposes of the aforesaid Clause (ii) of Section 10, the application may well be deemed to have been made or presented, -- and made or presented or re-presented to the Controller,-- immediately on the expiry of the said period. In other words, the apparent objection or difficulty may well be met by giving effect to the increased rent under the relevant paragraph, as aforesaid, as 'standard rent' from the month next after the expiry of the above period of three years.

8. In fairness to Mr. Roy, I ought to mention here, before I actually conclude my discussion of the point or points under reference, the fourth view, which was put forward by him to the effect that both the above phrases, namely, 'has elapsed' and 'elapses' have reference to the date of coming into force of the Act, the first, of the original Act and applying to cases, governed by it, and the second, of the extended Act that is, when it is extended to new areas by notification under the proviso to Section 1 (2), and applying to cases, governed by the same. I do not, however, think that this was the intention of the Legislature in using the above two expressions and, to my mind, this appears to be a strained interpretation of the statute or, rather, of the relevant part of it, namely, Schedule A (paragraphs 2 (b) and 3(b)),-- no less strained than what was suggested in Indra Kumar Karnani's case. : AIR1953Cal570 (supra) after a voyage of discovery, not permissible cm authorities, to ascertain the legislative intent, as pointed out by me in the Order of Reference in F.B. Reference No. 2 of 1957, and which I have been unable to accept.

9. I would, therefore, answer the points under reference as follows :

(1) In case of fixation of standard rent by the Rent Controller the phrase has elapsed' will have reference to the date of the application, for the purpose, and the phrase 'elapses' will have reference to the time of fixation of the rent finally by the appropriate final or ultimate authority.

(2) The case of : AIR1953Cal570 , was not rightly decided on the above point; the decision in the case of 93 Cal LJ 23 was correct on its own facts.

10. In the light of the above answers, I will now proceed to indicate how the two cases, out of which the instant references have arisen, should be disposed of, as the same, under the relevant Rules of this Court, are before us for final disposal.

11. For the above purpose, I shall turn now to the facts of the two cases and state the same, in brief, in their relevant particulars.

12. Civil Revision Case No. 1614 of 1955, which has given rise to F. B. Ref. No. 1 of 1957, arises out of a proceeding for standardisation of rent under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. That proceeding was started on the application of the tenant opposite party, filed before the Rent Controller on September 19, 1952. The disputed premises comprised a portion of Municipal Premises No. 42 Strand Road, Calcutta, which was occupied by the said opposite party (Union of India) for non-residential purposes, as tenant under the present petitioner, --- landlord. The relative tenancy started under a lease for 10 years from 1st August 1937 to 31st July, 1947, at the original or initial contractual rent of Rs. 105/- p.m. By mutual agreement that rent was increased to Rs. 115/8/- p.m. with effect /rom August 1, 1947, upon the expiry of the above period of 10 years, and, thereafter, again to Rs. 144/6/- with effect from 1st December, 1948. The Rent Controller fixed the standard rent at Rs. 115/8/- with effect from 1st October, 1952, and, on appeal, that decision was affirmed by the Appellate Tribunal. The presents Rule was, thereafter, obtained by the landlord-petitioner against 'the aforesaid reduction of rent and he claimed standardisation of the rent at above Rs. 144/6/- p.m. on several grounds (including the ground under paragraph 3 (b) of Schedule A of the Rent Control Act of 1950), to be stated herein below.

13. In the other Rule (Civil Revision Case No. 942 of 1955, out of which the second Reference, F. B. Ref. No. 2 of 1957 arises), the application for standardisation of rent was made by the landlords-petitioners before the Rent Controller on or about 21st April, 1952, under Section 9 (1) (a), read with the aforesaid paragraph 3(b) of Schedule A of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and, also, on the ground of increase of Corporation taxes under Section 9 (1) (c) of the said Act. In this case also, the tenancy was for non-residential purposes and the initial contractual rent was Rs. 265/1/6 which was later increased by mutual consent or agreement to Rs. 368/- p. m. Subsequently, on August 10, 1950, the rent was standardised under the aforesaid Rent Control Act of 1950 at Rs. 265-1-6p. at the instance of the tenant oppositeparty, that figure representing the rent (Rs. 241/p.m.) of December, 1941, plus the statutory ten per cent increase. Thereafter, on April 21, 1952, the present application for standardisation of rent was made by the landlords petitioners before the Rent Controller, who allowed it, only so far as increase of taxes was concerned and fixed the standard rent at Rs. 267-l-6p. with effect from May, 1952. This decision of the Rent Controller was affirmed on appeal by the learned Appellate Authority and, thereafter, the present Rule was obtained by the landlords petitioners claiming, in particular, increase of rent under paragraph 3 (b) of Schedule A of the Act.

14. On the above facts, in the light of the answers, hereinbefore proposed by me to the instant References, the landlord petitioner -- (the singular including the plural) -- in each, case, will be en-tided to succeed, so far as his claim rests on the said paragraph 3 (b) of Schedule A, unless that claim is barred or is found liable to be defeated on any other ground.

15. In Civil Revision Case No. 942 of 1955, one such ground was sought to be urged and it was strenuously contended against the landlord's claim that, prior to his (the landlord's) present application for standardisation of rent under inter alia Section 9 (1) (a), read with Schedule A as part of it by reference, the rent was standardised under the very same Act, namely, the Rent Control Act of 1950, --and, indeed, the very same Section, -- on the ten-ant's prior application, and, accordingly, --, and under and in view of the said Act no second application for standardisation of rent would lie. I do not think, however, that this objection can or ought to prevail. The statute nowhere bars a second application, and Section 17 (2), to which, in particular, reference was made in this connection on the tenant's behalf, does not, either expressly or by necessary implication, impose or indicate any such bar. It is, in truth, an enabling provision, permitting an application for fixation of standard rent under the 1950 Act, where otherwise, no such application would possibly have been maintainable, and it deals with fixation or refixation, under this Act of 1950, of standard rent, fixed under the earlier or immediately preceding Act, namely, the 1948 Act. It has nothing to do with a second application under the same 1950) Act and has no relevance or bearing upon such an application. Section 17 (3) also is not relevant for the purpose. It concerns and is concerned with pending proceedings and no others. It is thus perfectly plain that, so far as the instant case is concerned, there is no statutory bar to a second application as aforesaid.

16. A second application under the same Act, -- here the 1950 Act, -- may, of course, be barred by res judicata or principles, analogous thereto, but, for that, the material circumstances must remain the same. That bar would not apply in altered or changed circumstances and, therefore, when the situation has materially changed by the expiry of the relevant three years to entitle the landlord to increased standard rent in the new situation, a second application for standardisation of rent would well be maintainable and would not be barred on principle also.

17. In the above view, I would hold that this Rule (Civil Revision Case No. 942 of 1955) should succeed and, in supersession of the orders of the two tribunals below, the standard rent should be fixed at Rs. 306-13-6p. per month with effect from May 1952.

18. In the other Rule (Civil Revision Case no. 1614 of 1955) no other objection was urged fay the tenant opposite party, but the landlord petitioner claimed further increase of rent by reason of (i) en-hancement of Municipal taxes, and (ii) on account of his having had to pay betterment fee to the Calcutta Improvement Trust for, inter alia, the disputed premises. With regard to (i), however, it is enough to say that no materials have been placed on record to prove the enhancement or the enhanced rate and, therefore, this ground of increase must fail -- at least, for want or absence of relevant and necessary materials. The other ground, also, must share the same fate, as the same could not be brought within any of the clauses of Section 9 and no ground for increase of rent or increased standard rent can be added to the said section. In the result, then, this Rule also, should succeed only to the extent that the standard rent, in this case, will be fixed at Rs. 132-13-0 per month with effect from October 1, 1952.

19. I would, accordingly, make the two Rules absolute, as aforesaid, but I would make no order for costs in either.

Bachawat, J.

20. The two references arise out of applications for fixation of standard rent by the Rent Controller under the West Bengal Rent Control (Temporary Provisions) Act, 1950. Both references raise a common question as to the construction of paragraph 3 of Schedule A to the Act. The Act came into force on March 31, 1950. In C. R. No. 1614 of 1955 the tenant made an application on September 19, 1952 for fixation of standard rent of a part of the building at 42 Strand Road and in C. R. No. 942 of 1955 the landlords made an application on April 21, 1952 for fixation of standard rent of a part of the building at 156 Harrison Road. In both cases it is common ground that the standard rent is liable to be fixed under Section 9(1)(a) of the Act. By Section 9(1)(a) the Controller is required, on application by a landlord or a tenant, to fix the rent in accordance with the provisions of Schedule A. The rent was not fixed by the preceding Rent Control Acts. The basic rent is, therefore, determined by paragraph 1 (b) of Schedule A. In both cases the rent was increased after December 1, 1941 and the last increased rent as mentioned in paragraph 1 (b) was first paid in December 1, 1948. In both cases the premises are used for non-residential purposes, The Controller must, therefore, fix the standard rent in accordance with paragraph 3 of Schedule A. He is required to fix the standard rent in accordance with paragraph 3 (a) in one way, if a period of three years 'has not elapsed' from December 1, 1948, and to fix it - in accordance with paragraph 3 (b) in another way if that period has 'elapsed or elapses'. The question is whether the period of three years has or has not expired and whether paragraph 3 (a) or paragraph 3 (b) applies. Whena statute requires an authority to act in one way if a period of three years has not elapsed and in another way if that period has elapsed or elapses, prima facie the statute requires him to ascertain whether or not the period of time has elapsed or elapses or has not elapsed on the date when he is called upon today the act. The Rent Controller was, therefore, required to ascertain whether the period of three years has elapsed or elapses or has not elapsed on the date when he is called upon to fix the standard rent. It may be said that he is called upon to fix the rent on the date when he actually fixes it. But it may equally well be said that he is so called upon, when the application for fixation is made before him. In the context of Sections. 9 and 10, it is more appropriate to say that he is called upon to fix the standard rent when the application for that purpose is made before him. By Section 10 in some cases the standard rent must take effect not From the date of the fixation but from the month next after the date of the application. The Controller has, therefore, to ascertain whether three years from December 1, 1948 has or has not ended on the date of the application. If the period of three years has not elapsed on the date of the application the standard rent must be fixed in accordance with paragraph 3 (a), whereas if that period has elapsed or elapses on that date the standard rent must be fixed in accordance with paragraph 3 (b).

21. A case where increased rent as mentioned in paragraph 1 (b) has been paid must come either under paragraph 3 (a) or under paragraph 3(b). The whole universe of discourse with regard to that case is comprised in sub-paragraphs (a) and (b) of paragraph 3. Either the period of time has not elapsed or it has elapsed or elapses. The thesis is 'has not elapsed' and the antithesis is 'has elapsed or elapses'. Paragraph 3(b) applies, if the period has elapsed or elapses on or before the date of the application.

22. Cases may, however, arise where the period of three years had not elapsed on the date of the application but it has elapsed on the date of the making of the order of fixation of standard rent by the Controller. In such a case to prevent multiplicity of litigation the Controller may well treat the application as having been represented on a date when that period has expired and on that footing fix the standard rent in accordance with paragraph 3(b).

23. Cases may also arise where the period of three years had not elapsed on the date of fixation of standard rent by the Controller, but such a period has elapsed in the appellate or the revisional court. In such a case again in order to prevent multiplicity of litigation, the appellate or the revisional court may treat the application as having been represented before the Controller on a subsequent date andon that footing fix the standard rent in accordancewith paragraph 3 (b).

24. By treating the application as represented before the Controller on a subsequent date paragraph 3 (b) is in effect applied where the period of three years has elapsed or elapses on or before the date of fixation of standard rent. By so treating the application, the standard rent fixed underSection 9(1) read with paragraph 3(b) of Schedule A cam, where necessary, take effect from the month next after the date of the application.

25. It follows that paragraph 3 (b) applies where the period of three years has elapsed or elapses on or before the date of the application for fixation of standard rent as also where that period has elapsed or elapses on or before the date of fixation of standard rent.

26. The point in issue may be resolved on a plain construction of Schedule A and Sections, 9 and 10 of the Act. There is no need to embark on a voyage of discovery of the general policy of law or of the prevailing economic conditions for finding out the true meaning of the expressions 'has not elapsed' and 'has elapsed or elapses'. The case in : AIR1953Cal570 was not correctly decided. The learned Judges deciding the case in 93 Cal LJ 23 came to the correct conclusion on the facts before them.

27. In both cases before us the period of three years from December 1, 1948 'has elapsed' on the date of the application. There can, therefore, be no doubt that the standard rent has to be fixed in accordance with paragraph 3 (b).

28. In Civil Revision Case No. 942 of 1955 it appears that on a previous application by the tenant standard rent of the premises was fixed under the 1950 Act by an order of the Rent Controller dated August 10, 1950. Standard rent was then fixed under Section 9(1) (a) read with paragraph 3 (a) of Schedule A because the period of three years contemplated by paragraph 3 had not then expired. Circumstances have materially changed since then. The period of three years has now expired and on a fresh application by the landlord a new standard rent must be fixed by the Controller under Section 9 (1) read with paragraph 3 (b) of Schedule A. The second application cannot be rejected on the ground that the new fixation is not authorized by Section 17. The new fixation is required by Section 9 (1) independently of Section 17. The application is not barred by res judicata or by principles analogous thereto. The matter now in issue was not in issue previously.

29. For the reasons given above I agree with the order proposed by my learned brother P. N. Mookerjee, J.

Lahiri, C.J.

30. I agree with the judgmentof Bachawat J. and I also agree with the order proposed by P. N. Mookerjee, J. and the answers givenby him.


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