Skip to content


Sm. Gita Mitra Vs. S.P. Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2258 of 1951
Judge
Reported inAIR1953Cal297
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Sections 28 and 32; ;West Bengal Premises Rent Control (Temporary Provisions) (Amendment) Act, 1950; ;Limitation Act, 1908 - Sections 18, 29, 29(2) and 30; ;Constitution of India - Article 226
AppellantSm. Gita Mitra
RespondentS.P. Ghose and ors.
Appellant AdvocateL.P. Mukherjee, ;Kalyan Kumar Bose and ;Subodh Kumar Bhattarcharjee, Advs.
Respondent AdvocateHemendra Kumar Das, ;Smriti Kumar Rai Chaudhury, Advs. (for No. 1) and ;Nirmal Chandra Sen, Adv. (for No. 5)
DispositionPetition dismissed
Cases ReferredQueen v. Mayor of Bodmin
Excerpt:
- .....23-12-1949 and 25-7-1950 purported to be made under the provisions of the west bengal premises rent control act, 1948 (act 38 of 1948), and for direction upon the opposite parties 1 to 4 to forbear from giving effect to the said orders.2. the petitioner is the owner of premises. no. 1/2 lovelock street in the suburbs of calcutta. after purchasing the said premises the petitioner repaired and improved the said premises at a cost of about rs. 4,000/- and converted the same into a good dwelling house consisting of 6 living rooms, 2 covered verandahs, one open verandah, 2 lavatories and one servants room and it was surrounded by boundary walls. the premises stands on land measuring about 3 cottahs and its estimated value is said to be rs. 40,000/-.in december 1947 the petitioner let out.....
Judgment:
ORDER

Bose, J.

1. This is an application under Article 226 of the Constitution for writs in the nature of 'certiorari' and 'mandamus' for quashing of certain orders dated 2-6-1949, 23-12-1949 and 25-7-1950 purported to be made under the provisions of the West Bengal Premises Rent Control Act, 1948 (Act 38 of 1948), and for direction upon the opposite parties 1 to 4 to forbear from giving effect to the said orders.

2. The petitioner is the owner of premises. No. 1/2 Lovelock Street in the suburbs of Calcutta. After purchasing the said premises the petitioner repaired and improved the said premises at a cost of about Rs. 4,000/- and converted the same into a good dwelling house consisting of 6 living rooms, 2 covered verandahs, one open verandah, 2 lavatories and one servants room and it was surrounded by boundary walls. The premises stands on land measuring about 3 cottahs and its estimated value is said to be Rs. 40,000/-.

In December 1947 the petitioner let out the premises to one Sashi Prova Debi at a rent of Rs. 200/- per month, from 16-12-1947 as a monthly tenant. Sashi Prova vacated the premises at the end of May 1948. Subsequently the petitioner let out the premises to respondents 5 and 6 at a rent of Rs. 150/- per month plus occupier's share of taxes. The said tenancy commenced from 15-6-1948. The said respondents duly paid rent at the said rate up to the end of June 1949 but put off payment of rent for the months of July, August and September 1949 on various pretexts. It appears, however, that in the meantime on 24-2-1949 the respondent 5 filed an application for fixation, of standard rent before the Rent Controller, Calcutta, under the provisions of Act 38 of 1948 which came into force on 1-12-1948.

On 5-3-1949 a notice of the application was sent by registered post from the Rent Controller's office to the petitioner c/o S.K. Ghosh at the address 28/1 Allenby Road which is the address of the petitioner's father's residence. It may be pointed out at this stage that the petitioner is a married lady and she resides with her husband at No. 23 Bechu Chatterjee Street, Calcutta and was actually residing at her husband's place at the time the said notice was sent to the address of her father. It appears that the said registered letter was returned through the Post Office with the endorsement of the postal peon 'Refused'.

The Rent Controller fixed the hearing of the application which was numbered as Case No. 748A of 1949, on 25-4-1949. On 27-5-1949 an Inspection is alleged to have been carried outby the Inspector of the Rent Controller. The petitioner's case is that such inspection was not made in her presence or in the presence of any of her representatives. On 2-6-1949 the Rent Controller heard the case 'ex parte' and fixed the standard rent at Rs. 35/-per month with effect from 1-2-1949. In October 1949 the petitioner's father wrote from, Hazaribagh Road two letters to Mr. S.N. Chowdhury, Solicitor, (who had introduced the tenants respondents 5 and 6 to the petitioner's father) requesting Mr. Chowdhury to realise the rents from July to September from the tenants.

On 24-11-1949 Mr. Chowdhury informed the petitioner's father that respondents 5 and 6 had applied for fixation of standard rent and such rent had been fixed at Rs. 35/- per month long ago. It is alleged that the petitioner and her father came to know of the order of 2-6-1949 for the first time on 24-11-1949. On 5 12-1949 the petitioner made an application for review of the order of 2-6-49 and on 9-12-1949 the petitioner's Solicitors wrote a letter to the Presidency Post-Master making inquiries about the registered letter sent by the Rent Controller.

On 23-12-1949 the Rent Controller dismissed the application for review on the ground that as it was not made within 30 days from the date of the order as required by Rule 11, West Bengal Rent Control Rules 1949 the application could not be entertained. He further held that as the Rent Controller was not a Court the petitioner could not take advantage of Section 18, Limitation Act upon which she relied for the purpose of getting an extension of the period of limitation as prescribed in the said Rule 11 and by Section 32, Rent Control Act, 1948.

On 5-5-1950 the Superintendent of Post Office intimated to the petitioner's Solicitor that the postman who carried the letter for delivery did not care to verify the correctness of the alleged refusal and that consequently disciplinary action was being taken against the said Postman. The petitioner preferred an appeal from the order of the Rent Controller to the District Judge at Alipore. The said appeal was heard by respondent 3 who was the Subordinate Judge at Alipore on 25-7-1950. Respondent 3, however, confirmed the order of respondent 1 and dismissed the said appeal. The petitioner challenges the orders made by respondents 1 and 3 as illegal and as being orders which are erroneous on the face of the record.

3. It has been contended by Mr. I.P. Mukherjee that the order of the Rent Controller refusing to entertain the application for review and the order of respondent 3 confirming the order of the Rent Controller are grounded on error of law which is apparent on the face of the record and therefore, the orders should be quashed by 'certiorari'.

Mr. Mukherjee has submitted with reference to Sections 28, 29, 30, 31(2) and the various Sub-sections of Section 32, West Bengal Rent Control Act, 1948 and Rules 9, 10, 11, West Bengal Rent Control Rules, 1949 that the Rent Controller or the appellate authority when exercising their functions under the Rent Control Act, 1948, act as a Court and consequently the provisions contained in Section 4 and Sections 9 to 18 and Section 22, Limitation Act, 1908 apply to proceedings before the Rent Controller or the appellate authority by virtue of Section 29(2), Limitation Act, and as the petitioner was kept, from the knowledge of theapplication for fixation of standard rent made by respondents 5 and 6, by means of fraud the petitioner was entitled to have the benefit of Section 18, Limitation Act for the purpose of getting an extension of the period of limitation prescribed by the provisions of the Rent Control Act for making an application for review of the order passed by the Rent Controller

4. It was further contended by Mr. Mukherjee that at any rate the provisions of the West Bengal Rent Control Act 17 of 1950 nave put the matter beyond all doubt by enacting in Section 32 that the Rent Controller and the Appellate Authority act as judicial officers and may exercise powers given to Courts by Sections 151 and 152. Civil P. C. and by further providing in Sub-section (5) of Section 32 that the Limitation Act applies to proceedings before the Rent Controller and the Appellate Authority.

5. It is true that Section 32 of Act 17 of 1950 has made the Limitation Act applicable to proceedings under the Rent Control Act of 1950 but I do not think that by virtue of this Section32 of the Act of 1950 the Limitation Act can be made to apply to proceedings initiated under the Act of 1948. The argument of Mr. Mukherjee is that the law of limitation being a law of procedure it can have retrospective operation, as nobody has a vested right in procedure. This is however not an accurate statement of the law (see -- 'Girdharilal Son & Co. v. B. Kappini Gowder', AIR 1938 Mad 688 where most of the cases bearing on the point are considered.) The question moreover is not so much a question of the retrospective operation of the Limitation Act but the real question is whether Section 32 of the Act of 1950 is retrospective in effect, I am of the view that it cannot be so construed.

6. It has been held by this Court in construing the provisions of the Rent Control Order of 1943 and the Rent Control Ordinance 1946 that the Rent Controller and the Appellate Authority exercised their functions under the provisions of the said Order and Ordinance as 'persona designata' and not as Courts See -- 'Kiron v. Kalidas'. 47 Cal W N 460 and --'Sm. Suhashini v. Mahendra', 51 Cal W N 818. B.P. Mukharji J, has also held in construing the provisions of the West Bengal Rent Control Act 1948 that the Rent Controller while exercising functions under this Act does not act as a Court: See -- 'Indra Kumar v. C.C. Ganguli'. 87 Cal L J 130 at pp. 135, 137. No argument has been advanced in this case which includes me to take a different view from that expressed in the cases referred to above and so I agree with those decisions. To quote the words of the Judicial Committee, the Rent Controller and the Appellate Authority are 'Tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense': See -- 'Shell Co. of Australia v. Federal Commr. of Taxation', (1931) A. C. 275.

7. It is clear that as a result of these decisions the Legislature thought fit to amend the Rent Control legislation and has enacted Section 32 of the Act of 1950 in its present form. Under, the law as it stood before this amendment the Limitation Act had no application to proceedings initiated under the previous Statutes and by reason thereof respondents Section and 6 acquired vested rights which cannot be affected by Section 32 of Act of 1950 which has not been made expressly or by necessary intendment retrospective in operation. In my view the orders dated 23-12-1949 and 25-7-1950 cannot be said to contain any error of law, as suggested by Mr. Mukherjee.

8. It was also contended by Mr. Mukherjee that the Rent Controller not having acted in conformity with the provisions of Section 30 of the Rent Control Act 1948 the order made by him on 2-6-1949 should be quashed. It is argued that by addressing the registered letter to the residential address of the petitioner's father and by not sending it to the petitioner's ordinary place of residence at 23 Bechu Chatterjee Street the Rent Controller has violated the terms of Section 30 of the Act. It appears to me that this contention of Mr. Mukherjee has no force.

It is clear from the affidavit filed in the present proceedings that the petitioner's father had been managing and administering the property on behalf of and in the name of the petitioner, and he realised rent in respect of the premises from his own residence at 28/1 Allenby Road. There is nothing on record to show that respondents 5 and 6 or the Rent Controller knew or had any information about the petitioner's residential address at 23 Bechu Chatterjee Street. The application for fixation of standard rent gave the address of the petitioner as 28/1 Allenby Road and accordingly the Rent Controller sent the Notice to that address. It cannot, therefore, be said that the Rent Controller has contravened the terms of Section 30 of the Act.

9. Even assuming that the orders of the Rent Controller and the Appellate Authority are erroneous in law it is a matter of some doubt having regard to the latest pronouncement of the Supreme Court in the case of --'Ebrahim Aboo Baker v. Custodian General, Evacuee Property, New Delhi', 1952 S C A 501 whether this Court has power to correct an error of law by writ of 'certiorari' issued in exercise of its jurisdiction under Article 226 of the Constitution.

10. Mr. Nirmal Chandra Sen, the learned Advocate appearing for respondents 5 and 6, contended that the previous application made by the petitioner under Article 226 on 4-6-1951 praying for the same reliefs as are asked for in this application precludes the petitioner from maintaining this second application. Mr. Sen relies on Halsbury Vol. 9 p. 786 para 1329. I do not think that this contention of Mr. Sen can be accepted. What happened with regard to the first application was that this Court allowed the petitioner to withdraw that application without going into the merits thereof. The observations made by Charles J, in the case of -- 'Queen v. Mayor of Bodmin', (1892) 2 Q B 21 at p. 24 suggest that if the former application is not refused after hearing it on merits, but it is allowed to be withdrawn for want of sufficient materials to support the application, a second application is not barred. The case of -- 'Ex parte Inhabitants of Carlton High Dale', 4 N & M 312 is referred to by Charles J. in support of this observation.

11. Having regard however to my findings on the points urged by Mr. Mukherjee this petition must fail. The Rule is accordingly discharged. The petitioner must pay the costs of respondent 5. Hearing fee is assessed at five gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //