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Jumrati Vs. S.B. Banerjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 3751 of 1959
Judge
Reported inAIR1962Cal525,67CWN1
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 8, 8(1) and 16(3)
AppellantJumrati
RespondentS.B. Banerjee
Appellant AdvocateAmulya Kumar Sarkar, Adv.
Respondent AdvocateChittatosh Mukherjee, Adv.
Cases ReferredBombay Presidency v. Bombay Trust Corporation Ltd.
Excerpt:
- bachawat, j: 1. petitioner shaikh jumrati was a tenant of premises no. 64 upper circular road under opposite party, s.b. banerjee, on a monthly rental of rs. 91/4/-. the tenant sub-let four parts of the premises separately to sub-tenants 'and retained the remaining part of it for his own occupation. in four separate applications made by the sub-tenants under section 16(3) of the , west bengal premises tenancy act, the rent controller passed orders declaring that the interest of the tenant shaikh jumrati in respect of the portions of the premises sub-let by him do cease and that the sub-tenants do become the direct tenants of the landlord as from january 14, 1959. the rent controller found that the reasonable rent payable in respect of the four direct tenancies should be rs. 17-0-9, rs......
Judgment:

Bachawat, J:

1. Petitioner Shaikh Jumrati was a tenant of premises No. 64 Upper Circular Road under opposite party, S.B. Banerjee, on a monthly rental of Rs. 91/4/-. The tenant sub-let four parts of the premises separately to sub-tenants 'and retained the remaining part of it for his own occupation. In four separate applications made by the sub-tenants under Section 16(3) of the , West Bengal Premises Tenancy Act, the Rent Controller passed orders declaring that the interest of the tenant Shaikh Jumrati in respect of the portions of the premises sub-let by him do cease and that the sub-tenants do become the direct tenants of the landlord as from January 14, 1959. The Rent Controller found that the reasonable rent payable in respect of the four direct tenancies should be Rs. 17-0-9, Rs. 9/-, Rs. 42/6/- and Rs. 13-15-9 per month respectively and he fixed the rent payable in respect of the direct tenancies accordingly. The Rent Controller also found that the reasonable rent of the rooms in the occupation of the tenant Shaikh Jumrati should be Rs. 102-0-6 pies but that in view of Section 8(1) (e) of the Act the total rent payable for the entire premises No. 64, Upper Circular Road, could not exceed Rs. 91/4/- plus 10% thereof and that consequently the rent payable by Shaikh Jumrati should be fixed at Rs. 16/-. On appeal by the landlord, the Appellate Tribunal increased the Rent payable in respect of one of the direct tenancies from Rs. 9/- to Rs. 11/-. The Appellate Tribunal also held that Section 8 (1) (e) ought not to be taken into account in fixing rent under Section 16(3) and that the rent of the rooms in the occupation of Shaikh Jumratishould be fixed at Rs. 102.3 nP. per month. The rent so fixed is reasonable having regard to the situation, locality, condition and amenities of those rooms and the prevailing rent of comparable units in the locality.

2. The tenant Shaikh Jumrati has moved this Court in revision against the order of the Appellate Tribunal and has obtained a rule calling upon the learned opposite party to show cause why this order should not be set aside. The upgraded sub-tenants are not parties to this revision case. The case has been referred to this Bench for disposal. The proper basis of fixation of the rent payable by the tenant is in issue in this court.

3. The relevant words of Section 16(3) are as follows: '* * * The Controller shall, * * by order declare that the tenant's interest in so much of the premises as has been sub-let shall cease and the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rents for purposes of this Act.'

4. Where as in this case parts of the building let to the tenant have been sub-let to sub-tenants and a part of it has been retained by the tenant, the effect of the order under Section 16(3) is to create a number of separate premises each forming the subject-matter of a new tenancy. The duty of the Controller is to fix the rents payable for each of the new premises. In discharging this duty the Controller is guided by the fact that the rents so fixed will be deemed to be fair rents. In the circumstances his duty is to fix rents in accordance with the principles embodied in the main part of Section 8(1) (e). A statutory tribunal fixing rent independently of Section 8 is required to fix reasonable rent in the light of those principles. The main part of Section 8(1) (e) has also to be applied by the Controller even if he were to fix fair rent as defined in Section 8. The proviso to Section 8(1) (e) as also Sections 8(1) (a), 8(1) (b), 8(1) (c) and 8(1) (d) are not attracted because the premises in respect of which the rents are being fixed have come into existence for the first time by virtue of the order under Section 16(3). There are no existing rents of the premises nor have those rents been fixed formerly. The operation of the proviso to Section 8(1) (e) is excluded whether the rents are fixed having regard to Section 8 or are fixed independently of it. The Controller is required to fix the rent of each of the new premises in the light of the principles embodied in the main part of Section 8(1) (e), in other words, to fix for each of the premises such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality having regard also to the rent payable in respect of such premises.

5. Mr. Bagchi contended that in fixing the rents under Section 16(3) the Controller is required to determine, first of all what the fair rent of the premises let to the tenants would be having regard to Section 8(1) (e) including its proviso and then to divide and apportion that rent amongst the tenant and the sub-tenants regard being had to the area occupied by each of them and the situation, condition and amenities of such areas. This contention is supported by the decision in Pannalal Baktawarmal v. Narayandas Deora, 65 Cal WN 207. With respect I am unable to agree with this decision. The duty of the Controller under Section 16(3) is to fix the rent payable by the tenant and the sub-tenant in respect of each of the new premises forming the subject-matter of the new tenancies created by the order under Section 16(3). He is not required to fix the rent of the premises originally let to the tenant. In view of the order under Section 16(3) creating a number of separate premises, the premises originally let to the tenant have now no legal existence. The proviso to Section 8(1) (e) cannot be attracted to the case.

6. Mr. Bagchi contended in the alternative that in fixing the rents under Section 16(3) the duty of the controller is to apportion between the tenant and the subtenant the contractual rent which was being paid by the tenant. This contention is unsound. The function of the Controller under Section 16(3) is not to sub-divide the contractual rent originally paid by the tenant but to fix the rents payable by the tenant and the sub-tenant in respect of the tenancies created by the order under Section 16 (3) having regard to the fact that the rents so fixed will be deemed to be fair rents for the purpose of the Act.

7. I may add that the rents payable by the upgraded sub-tenants have been finally fixed and as they are not parties to this revision case their rents can no longer be fixed by apportioning either the fair rent or the contractual rent of the premises let to the tenant amongst the tenant and the sub-tenants.

8. The question whether the proviso to Section 8(1) (e) will be attracted to a case where the premises forming the subject matter of the tenancy of the upgraded subtenant is co-extensive with the premises let to the tenant does not arise for decision in this case. That question is left open.

9. We find no ground for interference with the order of the Appellate Tribunal. We pass the following order:

10. The rule is discharged. There will be no order as to the costs of the reference and of the rule.

Sinha, J.

11. The facts in this case are shortly as follows: S.B. Banerjee, the opposite party in this case is the owner of No. 64 Upper Circular Road, consisting of ten rooms. The petitioner was a tenant under him, at a monthly rent of Rs. 94/4/-. The petitioner retained four rooms out of these ten rooms for his own use, and sub-let the rest to different sub-tenants. There were three subtenants: Bhagirath Thakur, Md. Din and Abdul Rezak, the last sub-tenant holding two tenancies. After coming into operation of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 'said Act'), the said four sub-tenants applied before the Rent Controller, Calcutta, under Section 16(3) of the said Act, for being declared as direct tenants under the landlord. Consequently, four miscellaneous cases were started before the Rent Controller in respect of the four sub-tenancies mentioned above, being Case Nos. 2532A of 1956 (Bhagirath), 2533A of 1956 (Mohammed Din), 2464A of 1956 and 2465A of 1956 (Abdul Rezak). The case Nos. 2532A and 2533A of 1956 were heard together, and by order No. 6 dated 6th December, 1957 it was held by the Controller that the sub-tenants were entitled under Section 16(3) of the said Act to be upgraded as direct tenants. The case Nos. 2464A and 2465A of 1958 were heard together and by order No. 4 dated 7th December, 1957 it was similarly held by the Controller that the sub-tenants were entitled under Section 16(3) of the said Act to be upgraded as direct tenants. Sub-section (3) of Section 16 of the said Act provides that in such a casethe Controller shall also fix the rent payable by the tenant and the sub-tenant, upgraded to the position of a direct tenant of the landlord, from the date of the order, and rents so fixed shall be deemed to be fair rent for the purposes of the said Act. The Controller held that the sub-tenants should be upgraded to the position of direct tenants under the landlord. He then proceeded to fix the respective rents payable by the tenant and the quondam subtenant, to the landlord. According to the practice followed in such cases, he directed an inspection of the premises by officials known as 'inspectors', who having inspected the said premises submitted their reports. Upon receipt of the said reports, the Controller proceeded to fix the rents and the final order was passed on the 14th January, 1959. I will first of all consider how the Controller fixed the rents payable by Mohammed Din, because he is the only person who preferred an appeal. It was found that his sub-tenancy consisted of one shop room with an inner headway of 5' and a box-room below the aforesaid shop room. The area occupied by the shop room measured approximately 276 sq. feet. Shaikh Jumrati the petitioner in this application had retained four rooms. It was found that his tenancy comprised of one road-side room and three inner rooms, all used for non-residential purposes, measuring approximately 548.9 Sq. Ft. What the Controller did was to consider the rent paid by tenants in some neighbouring premises. For example, it was found that one Muksud was a tenant in respect of a portion of premises No. 65 Upper Circular Road, where he carried on a tailoring shop abutting the road-side, measuring approximately 57.9 Sq. Ft. bearing a rental of Rs. 21/- per month. Next there was one Abdul Razak who had a shop in the same building, namely 65 Upper Circular Road, used as a shop-room, having an approximate area of 65 Sq. Ft. bearing a rental of Rs. 18/- per month. These rents were computed and it was found that the average was 5 as 13/4 pies per Sq. Ft. per month. The rents of the tenant as well as the quondam sub-tenants were fixed on the basis of this rate. It was then stated that it is 'well known' that fair rent of any premises cannot exceed its current rent by more than ten per cent. Therefore fair rent for the tenant was calculated in the following manner: The area occupied by him was multiplied by the average rate mentioned above and the amount came to Rs. 102/-/6/- per month. The tenant held the whole premises at a rental of Rs. 91/4/0/- per month. It was held that the fair rent, so far as he was concerned, could not exceed Rs. 91/4/0/-, plus ten per cent thereof, aggregating to Rs. 98/5/6/-. The fair rent fixed for the four quondam sub-tenants were totalled approximating to Rs. 82/5/6/-. This sum was deducted from Rs. 98/5/6/- and it was held that the fair rent for the tenancy occupied by the petitioner was Rs. 16/- per month. Thus, the fair rent fixed for Mohammed Din was fixed at Rs. 9/- and that of the petitioner fixed at Rs. 16/- per month. Against this order, Mohammed Din preferred an appeal but the others did not. So far as Mohammed Din is concerned, he agreed to pay Rs. 11/- as fair rent and this was recorded. The dispute arose about the rent payable by the tenant Shaikh Jumrati, who is the petitioner before us. With regard to him, the learned Judge of the Court of Small Causes has held that the fair rent should be increased from Rs. 16/- to Rs. 102/3 nP. per month and it is against this finding that this application has been directed. In enhancing the rent from Rs. 16/- to Rs. 102.3 nP. the reasoning of the learned Judge is as follows: The learned 'Judge found that the Controller had directed under Section 16(3)of the said Act that the sub-tenants should be upgraded to the position of direct tenants. He then proceeds to fix the rent payable by the tenant and the sub-tenants upgraded to the position of tenants. The learned Judge notices that in the computation of fair rent, the Controller had applied the provision of Clause (e) of Sub-section (1) of Section 8 of the said Act. Section 8 of the said Act deals with the subject of 'fair rent'. Sub-section (1) of Section 8 defines the expression 'fair rent'. It is not disputed that Clauses (a), (b), (c) and (d) do not apply to the facts of this case. The Controller, however, applied the provisions of Clause (e) which runs as follows:

'Where the provisions of Clause (a) or Clause (b) or Clause (c) or Clause (d) do not apply, such rents as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the rent payable in respect of such premises: provided that in fixing such rents the Controller shall in no case allow an increase of more than ten per cent over the existing rent, if any, of such premises.'

According to the learned Judge, the computation of fair rent by the Controller under Sub-section (3) of Section 16 does not attract the provisions of Section 8. That being so, the learned Judge could not comprehend why the sum of Rs. 102/0/6, which was found to be the fair rent calculated on the basis of the average rent for similar accommodation in the locality, should be cut down to Rs. 16/- per month. Accordingly, he held that the fair rent should be Rs. 102.3 nP. per month. Now this application has been made challenging the order of the learned Judge of the Court of Small Causes. The question that arises is as to the correct method for calculating the rent, both of the tenant and of the sub-tenants upgraded to the position of a direct tenant, under Sub-section (3) of Section 16 of the said Act. The application having come before a Division Bench of this Court was found to be of sufficient importance to be referred to a Special Bench and that is how it has come before us.

12. The word 'fair rent', is defined in Clause (c) of Section 2 of the said Act and runs as follows:--

'(e) 'Fair rent' in relation to any premises means the.......fair rent referred to in Section 8 or where the fair rent has been increased under Section 9 such increased rent or where the fair rent has been revised in Section 11 such revised rent.'

13. On behalf of the petitioner it has been argued that the proper method for fixing the fair rent in such cases is to fix the fair rent of the whole premises first and then apportion it proportionately among the persons amongst whom the tenancy of the whole premises has been split up. It is next argued that in fixing the fair rent in such cases, the Controller was bound to apply the provisions of Section 8, to each of the split tenancies. Reliance is placed on a Bench decision of this Court presided over by Banerjee, J. 65 Cal WN 207. In that case, Narayandas was the landlord of premises No. 46 Strand Road, Calcutta. Pannalal Batkawarmal was a tenant in respect of a portion of a room and a verandah in the second floor of the said premises. He had sub-let a portion of his tenancy to Mohal Chand Shreekishan. The rent payable by the tenant was Rs. 73/- per month, and the rent payable by the sub-tenant to the tenant was Rs. 40/- per month. Upon coming into operation of the said Act, thesub-tenant made an application under Section 16(3), for being upgraded as a tenant directly under the landlord, and also for the fixation of the rents payable by the tenant and the sub-tenant so upgraded. In the said application, both the landlord and the tenant were made parties. The Controller fixed the rent payable by the tenant at Rs. 150/-per month and the rent payable by the quondam sub-tenant at Rs. 40/- per month. Both the tenant and the quondam sub-tenant appealed against the decision. The Appellate Authority dismissed the tenant's appeal but allowed the appeal of the quondam sub-tenant. Thereupon, an application was made to this High Court. The learned Judges laid down the method of computation in such cases. It was held that what the Controller was required to do under Section 16(3) of the said Act was to determine first of all, what thefair rent of the entire premises let to the tenant shouldbe, regard being had to Sections 8, 9, 10 and 11 of thesaid Act. Then this rent should be split up as betweenthe tenant and quondam sub-tenants, regard being had tothe area occupied by each of them, valued and devaluedaccording to the situation, condition and amenities prevailing in the neighbourhood. It was held that where thesub-tenancy was not co-extensive with the tenancy, the onlycourse open to the Controller was to apply the provisionsof Clause (e) of Sub-section (1) of Section 8 of the saidAct, to the existing contractual rent payable by the tenantto his landlord, and to arrive at the figure of fair rent onthat basis, and thereafter to divide that amount of fair rentpayable between the tenant and the sub-tenant regard beinghad to the area in their respective occupation, and thesituation, condition and amenities of each of the sub-dividedpremises.

14. With great respect I am unable to agree that this is the correct method of computation. In, Bata Shoe and Co. Ltd. v. Narayan Das Mullick : AIR1953Cal234 , what happened was as follows: A room, in premises No. 24A Canning Street had been let out to two tenants in 1941, by setting up a partition wall. Later on, the partition wall was demolished and the whole room was let out to one tenant. In computing the fair rent for the whole room, what the controller did was to add up the previous rentals of the two portions and this was considered to be the basic rent paid for the entire room in 1941, Das, J. said as follows:

'It must therefore be taken that the basic rent of the premises cannot be determined on the footing of the rent which was payable for the two different portions of the said premises which were in the occupation of different tenants on that date'.

It must follow by analogy that in fixing the fair rent of the whole premises, you cannot fix the rent of each portionand add them up. Similarly, in computing the fair rent of each portion, you cannot proceed to fix the fair rent for the whole premises and then split them up proportionately. For purposes of the fixation of fair rent each tenancy must be taken up separately and the fair rent computed of that premises. There is no difficulty in doing this, because the word 'Premises' has been defined by Section 2(f) to mean, any building or part of a building or any hut or part of a hut let out separately. The rent that has to be fixed by the Controller under Sub-section (3), Section 16, is not 'fair rent', but the rent fixed by the Controller is 'deemed' to be fair rent for the purposes of the Act. It is well known that a deeming provision postulates that a thing deemed to be something else is not, in fact, thething which it is deemed to be. It is also well settled that in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate: Commissioner of income-Tax, Delhi v. S. Teja Singh : [1959]35ITR408(SC) , East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109. In the fast mentioned case, Lord Asquith said as follows:

'If you are bidden to treat the imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidences which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ... .The statute says that you must imagine a certain state of affairs; it does not say that having done so you must guess or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

15. The position, therefore, is as follows: Under Sub-section (3) of Section 16, as soon as a sub-tenant is upgraded to the position of a tenant, the question arises as to the fixation of rent. If the sub-tenancy is co-extensive with that of the tenant, then the tenancy of the first degree ceases to exist altogether. In such a case it has been held that no rent of the tenancy of the first degree needs to be determined, for the obvious reason that there has been a complete extinction of it. Jetmull Bhojraj v. Mohanlal Sukhan, 62 Cal WN 314. But where the subtenancy is not co-extensive, then it is necessary to fix the rent of the portion retained by the tenant of the first degree and that of the sub-tenant who has been upgraded to the position of a tenant No express provision has been made in the said Act as to how this computation should be done. But what has been provided is that upon the computation being made, the rent will be 'deemed to be fair rent for purposes of this Act.' I have set out above the definition of the expression 'fair rent'. How the 'fait rent' is to be determined has been laid down in Section 8. The only clause in Section 8 which can possibly apply to the facts of this case is Clause (e). Since the provision for computation of fair rent under Sub-section (3) of Section 16 is a 'deeming' provision, it follows that Clause (e) of Section 8 does not apply in terms. But there must be some method by which the fair rent should be computed under Sub-section (3) of Section 16. In my opinion the provisions in Section 8 should be followed, in so far as they are applicable, not because they apply by their own force, but by analogy. It is clear, however, that in applying the, provisions contained in Clause (e) of Section 8, we must be careful in not applying the analogy too far. Now let us come back to the facts of this case. Here, the original tenant retained four out of the ten rooms originally in his occupation. Therefore, the sub-tenancies were not co-extensive with that of the first degree. When these sub-tenants were upgraded to the position of a tenant, we have one original tenant and four quondam sub-tenants who have been so upgraded. The original tenant was occupying the whole premises at one time. Vis-a-vis the landlord, it was a tenancy of the entire premises, namely ten rooms, and he had no privity with, the sub-tenants. Now, when the subtenants were upgraded, the tenancy of the original tenant in the entire premises was reduced to four rooms and no came to occupy a new premises, comprising of four rooms. The word 'premises' relates to the area occupied. The area occupied by the original tenant, after the sub-tenants were upgraded, is entirely different from the area occupied by him previously. After the up-grading had taken place,and when the Controller was going to fix the rent of the original tenant, the word 'premises' used in Clause (e) must now mean the new premises, namely, four rooms, and not the whole premises namely, ten rooms which he occupied at a rent of Rs. 91/4/- per month. Then again, the proviso cannot apply in his case at all. The reason is that in respect of these new premises, namely, four rooms, there is no 'existing rent'. So far as the original tenant is concerned, the landlord treated him as occupying the entire premises, until his tenancy in a part of the premises was extinguished. He himself had never apportioned the rent, so that it cannot be said that there was any 'existing rent' of the four rooms, at the time when the Controller was going to fix the rent under Sub-section (3) of Section 16. It is upon this point that the Controller has fallen into an error. What he did was to consider Rs. 91/4/0, per month as the 'existing rent' of the original tenant He found that upon a computation on the footing of the area of the four rooms multiplied by the average rent of similar premises in the neighbourhood, the entire rent payable by the original tenant came to Rs. 102/0/6. He felt however that regard being had to the proviso in Clause (e) of Section 8 the fair rent could not exceed Rs. 91/4/0 plus ten per cent i.e. Rs. 97/5/6. From this sum he deducted the fair rent fixed for the other sub-tenants who had been upgraded, and ultimately came to the figure of Rs. 16/- per month ad the fair rent payable by the original tenant. This calculation is obviously incorrect. In calculating the 'fair rent', the Controller should have taken the four rooms occupied by the original tenant as 'the premises' occupied by him for the purpose of applying the provisions in Clause (e) of Sub-section (1) of Section 8 and should not have applied the proviso at all. Therefore, the figure of Rs. 102/0/6 did not require any modification. The Appellate Authority has fixed the rent at Rs. 102/0/6 i.e. 102.3 np. and this appears to be the correct figure, although the reasoning of the learned Judge is not altogether correct. He has correctly stated that in an application under Section 16 the provisions contained in Section 8 are not attracted, but he has not stated as to the principles upon which the calculation should be made. If he has made the calculations on general principles, then he should have pointed out that those general principles have been embodied in Clause (e) of Sub-section (1) of Section 8. He is, however, correct in saying that the proviso does not apply.

16. I admit that from the point-of-view of the petitioner the result is not happy one. While he was paying Rs. 91/4/- for ten rooms, he is now to pay Rs. 102.3 nP. for only four rooms, I do not think, however, that any injustice has been done. After all, the fair rent has been calculated on the basis of the average rent paid by other tenants in the locality. There is no reason why the fair rent paid by him should not be calculated upon such basis. Possibly, the only injustice lies in the fact that the proviso might apply to the sub-tenants and not to him. That is however, a matter for legislation and cannot sway our Judgment in this Case.

17. The result is that this application fails and I agree with my Lord that the rule should be discharged. Interim orders, if any, are vacated. There should be no order as to costs.

P.N. Mookerjee, J.

18. This Reference involves a short but difficult question. It concerns the true principles and methods andprocedure for fixing the rent in a proceeding under Section 16 (3) of the West Bengal Premises Tenancy Act, 1956. The immediate subject-matter of the instant proceeding comprises four rooms out of ten rooms, appertaining to Premises No. 64 Upper Circular Road, Calcutta. The petitioner in the Rule, out of which this reference arises, was the tenant in respect of the said entire Premises No. 64, Upper Circular Road, from long before the year 1956, at a monthly rental of Rs. 91/4/-, the said tenancy, running according to the English calendar month. In course of time, the petitioner sublet six out of the ten rooms, comprised in the aforesaid Premises to four different persons. These four sub-tenants, after complying With the necessary preliminaries, applied before the Rent Controller, under Section 16 (3) of the above Act, for declaration of their direct tenancies under the superior landlord, who was the contesting opposite party in the above Rule. That declaration was duly made by the Rent Controller and then the question arose as to the fixation of the rents of the said direct tenancies as also of the four rooms, retained by the petitioner. Eventually, the Rent Controller fixed the rents of the aforesaid direct tenancies at Rs. 17-0-9p., Rs. 9-0-0, Rs. 48-6-0 and Rs. 13-15-9p. per month and, being of the opinion that Section 8 (1) (e) proviso would apply to the case, fixed the petitioners' rent in respect of the four rooms, retain-ed by him, as aforesaid, at Rs. 16 per month, although he found that, but for the said proviso, the proper rent of the petitioners' said portion would be Rs. 102-0-6p. per month. On appeal, the rent of Rs. 9-0-0 per month, fixed as aforesaid, by the Rent Controller In respect of the tenancy or direct tenancy concerned was enhanced by consent to Rs. 11-0-0 per month and the petitioners' rent in respect of the four rooms, retained by him, as aforesaid, was fixed at Rs. 102-0-6p per month in place of Rs. 16-0-0 per month, as fixed by the Rent Controller. It is the propriety of this latter decision, which is challenged in this Court

19. Both the Rent Controller and the Appellate Judge came to the conclusion that apart from the proviso to Section 8 (1) (e) of the West Bengal Premises Tenancy Act, 1956, the proper rent of the petitioners' four rooms, as aforesaid, would be Rs. 102-0-6p. per month but they differed in their opinion as to the applicability or otherwise of the said proviso to the instant case. Before us, also, the real controversy centres round this proviso, although, broadly speaking, the rival contentions involve the applicability or otherwise of Section 8 in the matter of fixation of the rent of the tenant in respect of his retained portion under Section 16 (3). The petitioner contends that Section 8 [including the proviso to Section 8 (1) (e) would apply, while the opposite party contends that the fixation must be made on general principles, apart from Section 8, although the main part of Section 8 (1) (e), embodying, as it does, the said general principles, would, obviously be relevant and would, in effect, apply.

20. In my view, the contention of the opposite party is sound and it should be accepted. By the upgrading of the different sub-tenants to the status of direct tenants under Section 16 (3), the integrity of the old or the original tenancy has been broken. It has ceased to exist and it is no longer in existence. In its place, that is, in place of the original single tenancy, we have now five, flew and different tenancies, namely, the four direct tenancies in respect of the original sub-tenanted portions and the petitioners' tenancy in respect of the four rooms, retained by him. The petitioners' present tenancy thus is of a new and different premises (Vide : AIR1953Cal234 ). It is, no doubt, a premises by itself but it is not his old premises but a new and different premises.

21. Of the above new premises, created under Section 16 (3) the Controller is required to fix the rent under the said section (Section 16 (3)), and the rent, fixed thereunder, shall be deemed to be 'fair rent', as expressly provided therein. This deeming provision is enough to show that, under the aforesaid section, the Controller fixes not the actual 'fair rent' but the rent, fixed by him, is deemed to be the 'fair rent'; in other words, the rent, fixed by the Controller, as aforesaid, may not be the actual 'fair rent' under the Act but it will be deemed or treated as the 'fair rent' (Vide in this connection, Commissioner of Income-tax, Bombay Presidency v. Bombay Trust Corporation Ltd. ). Obviously, then, in fixing the rent under Section 16 (3), the Controller is under no obligation to proceed under Section 8 (1), although Clause (e) thereof, embodying, as it does, in its main part, the general principles for settlement of fair rent, may apply to that extent.

22. The above view would be basically different from the approach, indicated in 65 Cal W N 207, and to the extent that there is conflict or difference, the said decision, or, rather, the aforesaid approach, must yield and would then stand overruled.

23. Even a neutral approach would lead to the same result. Assume that, to a proceeding under Section 16 (3), Section 8 (1) applies. The premises in question as we have seen above, is a new premises, though not constructed or newly constructed after the above 1956 Act. The instant case, then cannot, obviously, come under any of the clauses of the aforesaid Section 8 (1), except Clause (e), and the proviso thereto would be excluded as, obviously, the tenant's present premises would be different from the original premises and there would be no 'existing rent' of this new premises. En this view, it will not be necessary to comment on the correctness or otherwise of the decision of this Court, reported in 65 Cal WN 207.

24. In the circumstances, I would, on the instant occasion, leave the above cited decision untouched but, as, in any view the proviso to Section 8 (1) (e) would be inapplicable, the instant Rule must be discharged and the order of the learned Appellate Officer should be affirmed and upheld, and this Reference should be answered accordingly.

25. In the premises, I agree in the order, proposed by my Lords.


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