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State of West Bengal Vs. Oswal JaIn and Co. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 533 of 1964
Judge
Reported inAIR1971Cal457
ActsWest Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 - Sections 5A and 11; ;West Bengal Premises Requisition and Control (Temporary Provisions) (Amendment) Act, 1963
AppellantState of West Bengal
RespondentOswal JaIn and Co.
Appellant AdvocateS.C. Das Gupta, ;Addl. Govt. Pleader and ;Gouri Prasad Mukherji, Advs.
Respondent AdvocateJanendra Coomar Dutta, Adv.
Excerpt:
- .....offered a sum of rs. 1450/- per month inclusive of all taxes and costs of essential repairs as monthly compensation for the requisitioned premises. the respondent not having agreed to the said amount of monthly compensation as assessed by the l. a. collector there was a reference to the arbitrator for the assessment of compensation in accordance with the provisions of section 11(1)(b) of the act, the respondent claimed compensation at the rate of rs. 3,000/-per month exclusive of occupier's share of municipal tax and costs of repairs, with effect from tune 10, 1958, on which date admittedly the premises was taken possession of by the government from the respondent. according to the expert (p.w. 1) who was examined as a witness by the respondent before the learned arbitrator, the.....
Judgment:

M.M. Dutt, J.

1. This is a defendant's appeal and it arises out of a proceeding for assessment of compensation of a requisitioned premises.

2. The defendant State of West Bengal requisitioned the ground floor portion of 7/1E, Lindsey Street and 7/1D, Lindsey Street situate at the junction of Madge Lane and Lindsey Street facing the Hog Market, under Section 3 of the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 (hereinafter referred to as the Act). The requisitioned premises comprise a floor area of 2521 square feet for the room and an area of 1677 square feet for the Mezanine floor and other spaces. The L. A. Collector on behalf of the Government offered a sum of Rs. 1450/- per month inclusive of all taxes and costs of essential repairs as monthly compensation for the requisitioned premises. The respondent not having agreed to the said amount of monthly compensation as assessed by the L. A. Collector there was a reference to the Arbitrator for the assessment of compensation in accordance with the provisions of Section 11(1)(b) of the Act, The respondent claimed compensation at the rate of Rs. 3,000/-per month exclusive of occupier's share of Municipal tax and costs of repairs, with effect from Tune 10, 1958, on which date admittedly the premises was taken possession of by the Government from the respondent. According to the expert (P.W. 1) who was examined as a witness by the respondent before the learned Arbitrator, the monthly compensation should be at the rate of Rs. 85/- per 100 square feet for the room and half the rate for the mezanine floor and other spaces. The learned Arbitrator, however, assessed the compensation at the rate of Rs. 75/- per 100 square feet and half that rate for the mezanine floor and other spaces. The compensation thus assessed at the said rate comes to Rupees 2,500/- per month. The learned Arbitrator awarded the said sum of Rs. 2,500/-inclusive of all Municipal taxes and costs of essential repairs, as monthly compensation for the requisitioned premises payable to the respondent with effect from June 10, 1958. The learned Arbitrator also directed that the respondent would be entitled to interest at the rate of 4% on the amount of monthly compensation with effect from June 10, 1958, till the date of withdrawal, if any, of any part of the compensation and further interest at the same rate on the balance of the final award till payment or deposit of the same by the State of West Bengal. Hence, this appeal by the appellant State of West Bengal. The respondent has also filed a cross-objection challenging the assessment of the monthly compensation at Rs. 2,500/- per month as made by the learned Arbitrator and claiming that the compensation should be exclusive of Municipal taxes and costs of repairs. Further, the respondent in his cross-objection claimed interest at the rate of 6% per annum on the unpaid amount of compensation.

3. The entire building of which the requisitioned premises is a part was let to Mazdas Ltd., who in its turn sublet a portion thereof to M/s. Ruby Ltd. It is not disputed before us that the compensation of the requisitioned premises has to be determined in accordance with cl. 2 (ii) of the proviso to Section 11 of the Act. On behalf of the respondent the rents paid by the tenants of premises Nos. 7/1A and 7/1B, Lindsey Street and premises No, 6/ 3B and portion of 6/1, Lindsey Street were relied upon for the purpose of showing that the rents payable by the tenants of those premises were exclusive of occupier's share of Municipal taxes. According to the appellants the rent which was payable by Mazdas Ltd. to the respondent should be taken as proper guide for the assessment of compensation of the requisitioned premises. The learned Arbitrator, however, came to the finding that the rent paid by the sub-tenant M/s. Ruby Ltd. should form the proper basis for the assessment of compensation and relying upon the same, the learned Arbitrator assessed the compensation at the rate of Rs. 75/-per 100 square feet for the room and half that rate for the mezanine floor, other spaces, etc. After carefully considering the evidence of the parties, we are of the view that the learned Arbitrator was justified in relying upon the portion occupied by M/s. Ruby Ltd. as the proper comparable unit for the purpose of assessment of compensation for the requisitioned premises.

4. Regarding the question whether the amount of compensation should be inclusive of Municipal taxes or not, it may ibe stated that a tenant or an occupier is liable to pay occupier's share of tax under the general law and also under the tenancy legislations except where there is an agreement to the contrary. The respondent cited some instances where the monthly rentals were exclusive of occupier's share of tax. There is no provision in the Act under which the amount of compensation that will be assessed should be inclusive of occupier's share of tax. In the circumstances, the learned Arbitrator was not justified in directing that the monthly compensation would be inclusive of Municipal taxes.

5. The claim of the respondent for costs of repairs is not maintainable in view of the provisions of Section 5A of the Act, Sub-section (1) of Section 5A inter alia provides that the landlord of any premises requisitioned under the Act shall be bound at his own expenses to maintain therein such supplies and services as were provided by him for the premises immediately before the date or requisition and to make in the premises such repairs, not being petty repairs, as the Collector may consider necessary for the proper use and occupation thereof. The expression 'petty repairs' has been explained in the explanation to Section 5A, to mean repairs which do not cost more than ten rupees on any one account in a period of twelve calendar months. Sub-section (2) of Section 5A inter alia provides that if the Collector is satisfied that it is necessary for taking any measure for the making of any repairs the Collector may, by order served in the prescribed manner, require the landlord to take such measure within such time as may be specified in the order. Under Sub-section (3), if the landlord fails to comply with the order of the Collector made under Sub-section (2), the Collector may cause the repairs to be made and the cost of such repairs may be deducted from the compensation payable to the landlord. Under the proviso to Sub-section (3) such deduction should not exceed thirtythree and one-third per cent, of the total compensation payable to the landlord in respect of the premises for that year. There can, therefore, be no doubt that under the provisions of Section 5A of the Act the landlord has to effect repairs of the premises at his own cost.

Accordingly, the claim of the respondent for costs of repairs is overruled.

6. The learned Arbitrator allowed interest at the rate of 4% per annum overruling the claim of the respondent for interest at the rate of 6% per annum. No reason has been given by the learned Arbitrator for reducing the claim of the respondent from 6% per annum to 4% per annum. In our view, the interest at the rate of 6% per annum as claimed by the respondent is not unreasonable. We would, therefore, allow interest at the rate of 6% per annum.

7. In the result, we modify the award of the Arbitrator to the extent that the monthly compensation assessed at Rs. 2,500/- payable by the appellant to the respondent with effect from June 10, 1958, shall be exclusive of occupier's share of Municipal tax and that the respondent shall be entitled to interest at the rate of 6% per annum on the unpaid amount ol monthly compensation for any month from the date it become due and payable to the respondent, till payment by the appellant to the respondent. The claim of the respondent for costs of repairs is disallowed. The appellant is hereby directed to pay to the respondent the arrears of monthly compensation upto and including the month of November, 1970, on or before February 28, 1971, together with interest at 6% per annum in the manner as directed above. Save as aforesaid, the award of the learned Arbitrator will stand.

8. The appeal is dismissed but the cross-objection is allowed in part. In the facts and circumstances of the case, we do not make any order for costs in this appeal or cross-objection.

Arun K. Mukherjea, J.

9. I agree.


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