K.C. Das Gupta, J.
1. These two Rules arising out of the same application raise an interesting point of law whether the provisions of Section 9(1)(f), West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, are applicable for the purpose of fixing standard rest under that Act when the premises for which standardisation is sought, though constructed after 31-12-1949, form part of a proposed building which has not been completed.
2. The tenant petitioner filed an application for fixation of rent in respect of one shop room which was numbered as shop room No. 4, at P. 30A, Kalakar Street. This room is one of the 8 rooms which have been constructed after 31-12-1949, on the ground floor of a proposed building. The proposal according to the evidence was to erect a six storeyed structure. It appears that some other rooms on the first floor have been only partially constructed. The Inspector who was asked by the court to make an enquiry as regards the costs of construction reported that the costs of construction could not be ascertained in view of the inability of the opposite party to show details of work done to the building regarding its plinth and as the opposite party was unable to give vouchers and other things necessary for the ascertainment of costs. It appeared that thereupon the parties agreed that the court should fix the standard rent in accordance with the previsions of Section 9(1)(g) of the said Act. On applying those provisions, the learned Rent Controller fixed the rent at Rs. 103/-. On appeal, the learned Judge also applied the provisions of Section 9(1) (g) but held that there was no scope for reduction of rent from the agreed rent and that the tenant had not shown anything so as to justify fixing of standard rent at a lower rate. He held that the agreed rent was just and fair and fixed that amount viz., Rs. 250/- per month, as the standard rent.
3. Obviously if in law the provisions of Section 9(1) (f) apply, the court has no right to apply Section 9(1)(g) merely because the parties have agreed that Section 9(1)(g) should be applied. The question to be considered is whether the provisions of Section 9(1)(f) do apply. The mere fact that the parties did not or could not adduce sufficient evidence to enable the court to apply the provisions of Section 9(1)(f) did not make the provisions of Clause (g) applicable. Clause (g), it may be mentioned, is in these words,
'where no provisions of this Act for fixingstandard rent apply to any premises, bydetermining the standard rent at a rate whichis fair and reasonable.'
To say that because the parties did riot or could not adduce sufficient evidence for fixation of standard rent under any of the previous Clauses (a), (b), (c), (d), (e) or (f), the court will apply Clause (g) is to put a premium on a refusal to adduce evidence and to defeat the entire scheme of the Act that under certain circumstances the special provisions set put in Clauses (a) to (f) will apply and only in circumstances other than those, the provisions of Clause (g) will apply. It is, in my judgment, entirely unreasonable to read into the words 'where noprovisions of this Act for fixing standard rent apply to any premises', the words 'where there; is no sufficient evidence for the application ofother provisions of this Act.'
4. This brings us to the crucial question in this case viz., whether the provisions of Clause (f) apply. Admittedly the premises in question have been wholly constructed after 31-12-1949. Prima facie, therefore, the provisions of' Clause (f) which are in these words,
'Where any premises have been wholly or substantially constructed after the 31st day of December, 1949, by fixing the standard rent payable for one year at a rate equal to six per centum of the actual cost of construction as determined by the Controller added to the market price as on the 31st day of December, 1946, of the land included in the premises or to the market price of the said land as on the date of the completion of the construction, whichever is less: Provided that where the premises whose standard rent is to be fixed form a part of the construction the standard shall be fixed at a rate which is fairly proportionate to the total standard rent of the entire construction'
5. Two grounds are put forward by Mr. San. on behalf of the opposite party for his contention that though the premises were constructed after the 31-12-1949, the provisions of Clause (f) did not apply. His first contention is that as some rooms have been half finished on the first floor and also the foundation has been laid for a six-storied building it is impossible to calculate the 'actual' costs of construction of the rooms that have been constructed. His second contention is that 'the entire construction' used in the proviso to Clause (f) should be read to mean the entire proposed construction.
6. Taking the second point first, I see no reason why we should put in the word 'proposed' into the section when the legislature did not use that word. 'The entire construction' means the entirety of what has been constructed. This has to be considered on the background of the fact that the question is of fixing a rent. Therefore, if some rooms have been partly constructed or if some portion has not been completed so as to make it fit to be let out, that would not be considered to be 'construction' within the meaning of the section. The reasonable view, in my judgment, is to read the word 'entire construction' to mean such portion of the building, the construction of which has been completed to such an extent as to make it reasonably fit to be let. If certain rooms have not been completed, they are not part of 'entire construction'. Mr. Sen has pointed out that the view I have indicated will create an anomalous situation. Suppose, he says, a person proposes the construction of a two storey building and when onlv the ground floor has been constructed consisting of 10 rooms, the tenant of one of those rooms applies for standardisation of rent. Taking the value of the land at Rs. 50,00/- and the actual costs of construction at Rs. 30,000/- the standard rent of the entire construction would, at 6 per cent of the capital invested, be Rs. 4810/-, each tenant having had to pay a portion of the interest of the value of the land. When thereafter the second storey is completed, say, at an actual costs of further Rs. 20,000/-, theactual costs of construction of the entire ground floor and the first floor, together with the value of the land, would be a lac of Rupees and the standard rent for that entire construction would at 6 per cent of that sum, Rs. 6000 per annum. If, on the application of the tenants of the first floor, the rent is standardised according to the provisions of Clause (f), the curious consequence will be that the landlord will get intereston the value of the land twice over; another consequence will be that the tenants of theground floor whose rents have been alreadystandardised will have to pay much greater portion of the interest of the value of the land than the tenants on the first floor.
7. That this curious result may happen isquite clear, but that result cannot be avoidedby taking the view suggested by Mr. Sen on behalf of his client that when a bigger building is proposed only a portion of which has been constructed, Clause 9(1)(f) will not apply. Suppose only a two storied building is proposed and constructed after the 31-12-1949 and the rent is standardised, as it must be in that position, in accordance with the provisions of Section 9(1) (f). Thereafter the landlord builds another storey on the former building and completes it. The provisions of Section 9(1)(f) will clearly apply to the standardisation of rents for the third storey and the curious consequence we have already indicated will necessarily follow.
8. In my judgment, the fact that such curious consequence will follow can be no reason for ignoring the provisions of law. In my judgment we shall be guilty of putting our own view of what the law should be instead of restricting ourselves to our proper task of interpreting law as it has been made if we put with a view to avoiding consequence which we do not like, the word 'proposed' before the word 'construction' which the legislature in its wisdom has used.
9. The first ground on which Mr. Sen laid very great stress must therefore fail.
10. As regards the second ground viz., the difficulties of ascertaining the actual costs of construction I am unable to see that that can be any reason for failing to apply the section. It may appear to be unfair to include in the actual costs of construction of the rooms on the ground floor the costs that had been incurred in laying the foundation of this building. When however one or two storeys have been constructed out of six storeys, I do not see how in calculating the actual costs of construction, any portion of the costs of laying the foundation can be left out. In any case, the difficulties in finding the actual costs of construction cannot give the court justification for refusing to apply the clause. Our attention was drawn to the judgment of Mr. Justice P. N Mookeriee in -- 'A.N. Chatterjee v. Sampatmull, : AIR1953Cal47 (A) in which he took the view that where a considerable portion of the proposed building remains to be completed the proviso to Section 9(1)(f) cannot apply and he came to the conclusion that in such cases the main portion of Section 9(1)(f) will apply. For the reasons I have already mentioned, I respectfully differ from the view taken by MookerjeeJ.
11. I would accordingly make this Rule absolute, set aside the order passed by the court below and direct that the application filed by the tenant for standardisation of rent be disposed of in accordance with law in the lightof the directions given above. There will be no order as to costs.
12. I agree.