1. These three Rules are against as many orders passed in appeal by the Court of Small Causes, Calcutta, against orders of the Rent Controller fixing the standard rent of the facts in No. 3, Sudder Street, Calcutta.
2. The rents in each case have been fixed on the basis that the opposite parties are sub-tenants and that the petitioner Mrs. R. Cohen is a tenant. Accordingly, applying para. 4 of Schedule A of the West Bengal Premises Rent Control Act 17 of 1950, the rents have been fixed pro rata at an increase of 61/4 per cent above the rents of Rs. 225/- payable by Mr. Cohen for the whole house. The rents payable in respect of the three flats on December 1,1941, were respectively Rs. 65/-Rs. 65/-, and Rs. 30/- and these have now been fixed at Rs. 25-15-9, Rs. 54-13-0 and Rs. 9-3-0.
3. The petitioner Mrs. Cohen contends that she is an assignee of the leasehold interest of the whole premises No. 3, Sudder Street, having paid Rs. 15,00/ : for that leasehold interest in August, 1940. She also says that she has spent some Rs. 8,000/- for improvement and additions and alterations.
4. The original lease, it is said, was taken by one Mr. Solomon and his wife in 1928, the premises being an old delapidated one and partly two storied. The lease was for 30 years, the rent being fixed at Rs. 200/- for the first 10 years, Rs. 210/- for the next 10 years and Rs. 225/- for the last 10 years. Under the terms of the lease, Mr. Soloman spent large sums of money in reconstruction, building and re-building of the premises, making new rooms and a new second storey, it being stipulated that on the expiry of the lease the lessee would leave the new building and structures to the owner of the premises. In accordance with this arrangement, the rent fixed was at a very low rate.
5. In 1935 the lease was conveyed by the widow of Mr. Solomon to one Mr. Chotirmull for Rs. 18,000/- and in August 1940 Mrs. Cohen purchased the interest for Rs. 15,000/-.
6. Mrs. Cohen has to pay for the upkeep and maintenance of the essential services of the premises including the electric charge for the pump & the lights in the stairs, salaries of sweepers and darwan, amounting to Rs. 70/- a month and under the terms of the lease she has to keep the house in good repair which costs some Rs. 600/- per annum.
7. The lease, of which Mrs. Cohen is the assignee, having been entered into in 1928, is such that under Section 3 of the Act of 1950 nothing in the Act is to be deemed to affect the terms as to rent of the lease. It follows under the provisions of para. 4 of Schedule A that, if Mrs. Cohen is to be taken to be the tenant and the opposite parties to be sub-tenants, this is a case 'where because of the provisions of Section 3 the tenant has no standard rent under this Act' Accordingly, the excess of 61/4 per cent provided therein, is to be with reference to the rent of Rs 225/- payable by Mrs. Cohen as tenant. Hence the extraordinary result is that although the premises in these cases were all let at rates stated above on 1-12-1941, nevertheless under the provisions of the Act the standard rent in two cases has been reduced almost to a third. In all cases of tenants the rent on December 1941 is a minimum : in no case is provision made for reducing rents below the rate then payable.
8. In my opinion, it is not necessary under the terms of the Act to hold that , such a grossly anomalous position must result. I assume for the sake of argument at this stage that the statements of the petitioner are correct, but I propose that the cases be sent back to the Rent Controller for investigating those statements and the facts generally as necessary in accordance with my judgment. It seems to me that the resolution of the apparent anomaly is to be found in the fact that in a case of this sort it may well be that the premises, which are the subject matter of the lease from the landlord, are not the same premises as are the subject matter of the lease by the original tenant to the supposed sub-tenant; in other words, that there have been such changes made in the original premises leased, that the tenant (in these cases Mr. Solomon, or his successors) has or have become in turn the landlords in respect of the premises, the rent of which is now being investigated. It will be seen from the definition of premises that this, at any rate, includes any fittings fixed by the landlord for the use of the tenant. If Mr. Solomon, or his successors put in fittings in the premises which were not in the premises leased to him, that would be one ground for saying that the premises leased by him are different premises.
9. In this connection I would also refer to the provisions of Sections 34 and 38, which impose penalties on landlords for discontinuing essential supplies or services comprised in the tenancy, or also for making repairs which the landlord is bound to make to the premises. In the present cases, I assume here that, under the lease Mrs. Cohen's landlord, in respect of any supplies or services in her own tenancy, is not bound to make any repairs. Therefore, if the present persons who have been found to be sub-tenants by the appellate court and the Controller wished to take action under those sections, they could not take action in any way against the original landlord, and they could not take action against Mrs. Cohen unless she is the landlord; but if they are subtenants, she is not 'landlord', taut a tenant. The sub-tenants would thus have no remedy.
10. That alterations to premises may be such that the altered premises are to be treated as entirely new premises has been held in some cases, though admittedly all the cases cited relate to alterations by landlords, the question usually being whether the premises let on some material date were the same as the premises let at an earlier date at a lower rent. I may refer to the decision in the case of -- 'Phillips v. Barnett', (1922) 1 K.B. 222, and also to the decision in the case of -- 'Sinclair v. Powell', (1922) 1 K.B. 393, and to the decision in two cases of the Bombay High Court in -- 'Gopalji Umersey v. Devji Naranji', AIR 1929 Bom 220, and -- 'Ibrahim Fazalbhai v. v. Jan Mahomed', AIR 1927 Bom 648. If premises can be altered so that it can be said that the altered premises are new premises, where the alterations are by the landlord, I cannot say why premises taken by a tenant on a long lease, on which the tenant may have spent large sums of money, may not be held also to have been so altered that when that 'tenant' in turn lets them to others, he becomes their landlord for what are to be taken to be entirely new premises. Of course, the principle is liable to abuse. It is liable to be sought to be used for avoiding the provisions of the Rent Act. But each case is to be decided on the facts in each case. It is to be decided whether the alterations or additions are merely for purposes of such avoidance, or whether they are such that they clearly justify the view that the altered premises are entirely new premises, such that the tenant of the unaltered premises becomes the landlord in respect of the altered premises within the meaning of the provisions of the Act of 1950.
11. These cases must go back for investigation of the facts by the Rent Controller in the light of the principle indicated above. If he finds that, on the facts, Mrs. Cohen is to be held as to be the landlord in respect of the premises as let to the opposite parties, he will then proceed to fix the standard rent in each case on the basis that the opposite parties are tenants following the provisions of Section 9 and the Schedule to the Act of 1950.
12. These Rules are accordingly made absolute. The orders of the lower appellate court are set aside and the cases are remanded to the Rent Controller for disposal as directed.
13. I make no order as to costs in the Rules.