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i.J. Cohen Vs. G. Dias - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1922Cal475,70Ind.Cas.551
Appellanti.J. Cohen
RespondentG. Dias
Excerpt:
calcutta rent act (111 b.c. of 1920), section 8 - standard rent fixed by controller increased by president of tribunal--notice, whether necessary. - .....mansions and the defendant is tenant of suit no. 8 thereof.2. the monthly rent was rs. 75.3. the rent controller appointed under the calcutta rent act 1920, by his order dated 15th july 1920, fixed the standard rent at rs. 93-12.4. being dissatisfied with the said order the plaintiff, on the 24th august 1920, applied under section 18 of the said act to the president of the tribunal appointed under the calcutta improvement act, for revision of the said order.5. the decision of the president, dated the nth february 1921, fixed the standard rent at rs. 100 a month.6. it is admitted that subsequent to, the rent controller's order the plaintiff complied 'with the provisions of section 8 of the rent act by serving on the defendant a notice in writing of his intention to increase, accompanied.....
Judgment:

Lancelot Sanderson, C.J.

1. This is a Reference by the learned Chief Judge of the Court of Small Causes in Calcutta and the facts which are material for this Reference are set out in the Reference. They are stated as follows:

1. The plaintiff is the landlord of certain premises in Calcutta known as Cohen Mansions and the defendant is tenant of suit No. 8 thereof.2. The monthly Rent was Rs. 75.

3. The Rent Controller appointed under the Calcutta Rent Act 1920, by his order dated 15th July 1920, fixed the standard rent at Rs. 93-12.

4. Being dissatisfied with the said order the plaintiff, on the 24th August 1920, applied under Section 18 of the said Act to the President of the Tribunal appointed under the Calcutta Improvement Act, for revision of the said order.

5. The decision of the President, dated the nth February 1921, fixed the standard rent at Rs. 100 a month.

6. It is admitted that subsequent to, the Rent Controller's order the plaintiff complied 'with the provisions of Section 8 of the Rent Act by serving on the defendant a notice in writing of his intention to increase, accompanied by a certificate from the Controller fixing the standard rent at Rs. 93-12.

7. The increased rent has been paid to the defendant up to 30th June 1921.

8. The defendant did not appear in the revision proceedings before the President of the Tribunals.

9. It is admitted the plaintiff gave notice in writing to the defendant of the further increase made on revision. The plaintiff now claims to be entitled to recover the difference between the standard rent fixed by the Controller and the revised standard--rent fixed by the President of the Tribunal.

10. The 'defendant's contention is the notice mentioned in paragraph 9 here of not having been accompanied by a certificate from the Controller this sum is irrecoverable under Section 8 of the Rent Act.

2. The questions which are submitted to this Court are,-

1. Whether notice under Section 8 of the Rent Act is necessary when the standard rent, as fixed by the Controller has beet further increased by the President of the Tribunal, the landlord having complied with the provisions of Section 8 as regards the increase allowed by the Controller.

2. If so, whether the said notice should be accompanied by a certificate from the Controller in order to entitle the landlord to recover rent so increased by the President of the Tribunal.

3. The Only fact which it is necessary for me to add to the facts which are stated in the Reference, is that it appears that the defendant was given notice of the landlord's application to the President of the Tribunal. He did not appear in the revision proceedings and we were informed that after the President had given his decision the defendant appeared and alleged that the notice had not been served upon him. The President of the Tribunal, we were informed, came to the Conclusion that the notice had been served. therefore, it must be taken as a fact that the defendant was served with the notice of the landlord's application to the President of the Tribunal and he did not appear in the proceedings.

4. The first question which is referred to this Court is with reference to the notice under Section 8. With reference to-that question, it is necessary to refer to three or four sections of the Act. The first Section to which I wish to refer is Section 2 Clause (f) which defines 'standard rent.' It says 'standard rent' in relation to any premises means (i) the rent at which the premises were let on the first day of November 1918, or, where they were not let on that date, the rent at which they were last let before that date and after the first day of November, 1915, with the addition in either case of ten per cent, on such rent; (II) in the case of any premises which were or shall be first let after the first day of November 1918 the rent at which the premises were or may be first let; (iii) in the cases specified in Section 15, the rent fixed by the Controller.

5. On reference to Section 15 we find that there it is provided that 'the Controller shall, on application made to him by any landlord or tenant, grant a certificate certifying the standard rent of any premises leased or rented by such landlord or tenant, as the case may be.' Then the section sets put certain cases in which the Controller given power to fix the standard rent at such amount as, having regard to the provisions of the Act and the circumstances of the case, -he deems just: and it is further provided by Sub-section (4) that 'before exercising any of the powers conferred on him by this Act, the Controller shall give notice of his intention to the land-lord and tenant, if any, and shall duly consider any application; received by him from any person interested, within such period as shall be specified in the notice.' By Sub-section (5) it is provided that 'all orders of the Controller passed under this Act shall be in writing, and a Certified copy thereof shall be affixed to some conspicuous part of the premises to which it relates, or to some conspicuous object near such premises, and a certified copy shall also be delivered to the landlord, or his authorised agent, in such manner as the local Government may by rule prescribe.' In this case, the application was made to the Controller by the landlord. We were informed by the learned Counsel that the Controller fixed the rent, basing his decision upon Section 2, Clause (f), Sub-section (1); and that the application was made to the Controller in pursuance of Section 15 Clause (i). The Controller granted a certificate certifying the standard rent in accordance with that section. It is admitted that in accordance with the provisions of Section 8 the landlord gave a notice in writing of his intention to increase the rent, accompanied by the certificate from the Controller fixing the standard rent. So far the landlord complied with the provisions of the Act in every respect. Then comes Section 18 for consideration; and that section provides: 'if the decision of the Controller fixing the standard rent for any premises is questioned, either the landlord, or the tenant may, in respect of premises in Calcutta, apply for revision of such order to the President of the Tribunal appointed under Section 72 of the Calcutta Improvement Act, 1911.... A certified copy of the order of the Controller shall be filed with the petition of revision.... The decision of the President of the Tribunal...shall be final.' The provision in the Act as to the procedure to be followed by the President of the Tribunal is contained in Section 24, which provides: 'in revising the decisions of the Controller, the President of the Tribunal...shall follow, as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908, for the regular trial of suits.' I take it, therefore, that in applying the procedure laid down in the Civil Procedure Code the President of the Tribunal would see that the parties received such notice as would be given to the parties in the regular trial of suits and, as it has been already stated in this case, the tenant did receive notice before the President of the Tribunal entered upon the consideration of the application of the landlord Then the President of the Tribunal gave his decision, and after that the landlord gave notice of the decision to the tenant.

6. The question is whether Section 8 applies to the decision of the President of the Tribunal. That section is as follows: '(1) Wherever an increase of the rent of any premises is allowable under the provisions of this Act, no such increase shall be recoverable until the expiry of one month after the landlord has served on the tenant a notice in writing of his intension to increase the rent, accompanied by a certificate from the Controller fixing the standard rent.'

7. In my judgment, construing the various sections of this Act as best as lean the meaning of the Act is not that that section should apply to the decision of the President of the Tribunal. Further, it seems to me that this must be so from the wording of Section 8 itself. The certificate which is to accompany the notice in writing contemplated by that section is a certificate from the Controller fixing the standard rent: that must mean in my judgment, a certificate which certifies the decision of the Controller himself, when by he fixes the standard rent. When a party applies for a revision of the decision of the Controller fixing the standard rent to the President of the Tribunal it is the President of the Tribunal who fixes the standard rent and his decision is final where the President of the Tribunal has revised the decision of the Controlled and fixed the standard rent, the Controller has no power to interfere with the President's decision it is provided that the decision of the President of the Tribunal shall be final. The certificate contemplated by Section 8 in my judgment is the certificate to be granted by the Controller, when he, the Controller fixes the standard rent.

8. There is no corresponding section in the Act applicable to the decision of the President of the Tribunal, nor is there any provision directing a remission of the case to the Controller after the decision of the president of the Tribunal, in order that the Controller might issue a certificate fixing the rent. In my judgment, the true construction of the Act is that the provisions of Section 8 are not applicable to the case when the President of the Tribunal revises the decision of the Controller and fixes the standard rent.

9. Therefore, I answer the first question in this way, that a notice under Section 8 of the Rent Act is not necessary when the standard rent as fixed by the Controller has been further increased by the President of the Tribunal, the landlord having complied with the provisions of Section 8 as regards the increase allowed by the Controller

10. As regards the second question, it seems to me that the answer to that must follow the answer to the first one, because it is based on the conclusion that the provisions of Section 8 are not applicable. I answer the second question, therefore, by saying that, under the circumstances, which are stated in the reference, a certificate from the Controller was not necessary in order to entitle the landlord to recover the rent so increased by the President of the Tribunal.

11. I wish to add for the purpose of safeguarding myself, that we do not express any opinion on the question which was raised by the learned Counsel for the respondent during the argument, namely, in respect of what period is the increased rent recoverable in consequence of the decision of the President of the Tribunal. That question may or may not have to be decided when the suit is tried. This suit has been dismissed merely on the ground that the suit would not lie in consequence of the notice and the certificate referred to in Section 8 not having been served in respect of the decision of the President of the Tribunal. The merits of the suit, as I understand, have not yet been investigated.

12. We make no order as to the costs of this Reference.

Richardson, J.

13. With much respect to the opinion of the learned Chief Judge and the learned sixth Judge, I agree with my Lord that, in view of the terms of Section 8 of the Calcutta Rent Act, that section can have no application to a decision of the President of the Tribunal under Section 18, revising, in the sense of increasing, the rent fixed by the Controller under Section 15. In the Act the provisions relating to the Controller and his powers are kept separate and distinct from the provisions relating to the President of the Tribunal and his powers. We are told from the Bar that the Controller and the President do not occupy the same building. I agree, generally, with what my Lord has said, and it does not appear to be desirable at present to say more than is necessary, because a further question has been raised and may require decision when the suit comes to be tried, as to the precise effect of the President's decision in relation to the Controller's certificates fixing the standard rent in the first instance, or as to the date from which the President's decision operates.

14. There is one point, however, on which a word may be added A difficulty perhaps arises as to the effect of Clause (i) of Section 15. That clause enables the Controller on the application of any landlord or tenant to certify the standard rent of any premises leased or rented by such landlord or tenant as the case may be. As I conceive, what is contemplated is not a certificate of ministerial character stating what rent has been fixed as the standard rent, but the power conferred by the clause is one of the powers before exercising which the Controller is to give the notice required by Clause (4) of Section 15. Section 15, including Clause (1), must be read with reference to the definition of 'standard, rent' in Section 2. As I understand the matter, therefore, a standard rent certified by the Controller under Clause (1) of Section 15 may be revised by the President under Section 18. The Act appears to be so understood, because in the present case the, rent revised by the President was a standard rent certified by the Controller under Clause (1) of Section 15. Accordingly, it would not seem to be the intention of the Act, that after the President has given his decision under Section 18, the Controller should have any power under Clause (1) of Section 15 to certify or re-certify a standard rent.

15. The Act was hurriedly passed and is in some respects not easy to construe, but the view I have expressed receive s confirmation from the fact that Section 8 speaks of 'a certificate from the Controller fixing the standard rent. With those words in mind, the pharaseology of Section 18, 'the decision of the Controller fixing the standard rent' would seem to apply as much to a certificate given under Clause (i) of Section 15 as to an order, for instance, fixing the standard under Clause {3) of that section.

16. With these observations I agree with the answers which my Lord has proposed to the questions referred to us by the learned Chief Judge of the Court of Small Causes.


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