P.N. Mookerjee, J.
1. This Rule arises out of a proceeding for standardisation of rent and it raises an interesting question.
2. The petitioner is the landlord and the opposite party the tenant under him in respect of the disputed premises, viz., a shop room in the ground floor of premises No, 191, Harrison Road, Calcutta. This tenancy commenced sometime in the year 1945 and the contractual rent was Rs. 500/- per month.
3. On 22-2-1948 the tenant-opposite party applied for standardisation of rent under the Calcutta Rent Control Ordinance 1946 which was then in force and the Rent Controller by his order dated 15-7-1948 fixed the standard rent at Rs. 425/- per month with effect from April 1948. From this decision there was no appeal taken by the tenant but the landlord preferred an appeal on 14-8-1948. This appeal was heard on 24-3-1949 by the learned Chief Judge, Court of Small Causes, Calcutta, who delivered his judgment on 25-3-1949.
4. From the materials before me it appears clear that by his judgment dated 25-3-1949 the learned Chief Judge, dismissed the landlord's appeal and upheld the Rent Controller's order fixing the standard rent at Rs. 425/- per month under the Ordinance but he gave effect to this standard rent from March 1948 till November 1948 and also granted the landlord the statutory enhancement of rent from December 1948 under the Rent Control Act 1948 which had come into force in the meantime on 1-12-1948. Thereupon the tenant applied for review of this judgment but the said application was dismissed on 6-8-1949. On 10-5-1950 after the Rent Control Act 1950 had come into operation the tenant applied for re-fixation of standard rent under Section 17(2) of this latter Act and in support of his contention that the standard rent should be re-fixed at Rs. 302-8-0 per month with effect from April 1950 he produced a rent receipt alleged to have been granted by the landlord in respect of the disputed premises showing a rental of Rs. 275/- per month in December 1941.
The Rent Controller was apparently not. satisfied with the genuineness of this rent receipt and he was not inclined to rely upon the same. He, accordingly, by his order dated 31-8-1950, re-fixed the standard rent at Rs. 488-12-0 per month with effect from June 1950 on the footing that Section 9(1) (a) of the Rent Control Act 1950 applied to the case and the rent of the disputed premises having been standardised at Rs. 425/- per month under the Calcutta Rent Ordinance 1946 in the previous proceeding that was the basic rent under Schedule A, para 1(a) of the Act of 1950 and the standard rent would thus be Rs. 425/- per month plus 15 per cent, under para 3(b) of the said Schedule.
This decision has now been upset by the learned Appellate Judge who has fixed the standard rent at Rs. 347-14-0 per month with effect from June 1950 on the view that the rent receipt for December 1941 produced by the tenant was genuine and had been duly proved and the case came under paras 1(b) and 3(b) of Schedule A, Rent Control Act 1950 and the standard rent would thus be Rs. 275/- per month plus 15 per cent, under Section 9(1)(a) of the Act. read with the said provisions, viz., paras 1(b) and 3(b) of Schedule A thereof. The propriety of this decision is the subject-matter of the present Rule.
5. The petitioner's first contention is that there was in this case no fixation of the standard rent under the Act of 1948 and, therefore, the application for re-fixation of the standard rent was misconceived and was not maintainable in law. I am unable to accept this extreme contention. It is true that the original application for fixation of the standard rent was made under the Calcutta Rent Ordinance 1940 and on that application the Rent Controller standardised the rent at Rs. 425/- per month on 15-7-1948. True also that in the appeal which followed what was really done was affirmance of the Rent Controller's decision and thus maintaining his fixation of the standard rent under the 1946 Ordinance while giving the landlord the benefit of the 1948 Act in regard to the statutory increment for the period of this latter Act, viz. from December 1948.
That seems to be the position when we remember that there was -- and, indeed, there could have been -- no application for fixation of standard rent under the 1948 Act as none of the clauses of Section 9 thereof could be attracted to the case and when we remember further that the learned Appellate Judge in express terms dismissed the landlord's appeal maintaining the standard rent fixed under the Ordinance for the period February to November 1948 and gave the landlord the statutory increments under the 1948 Act from December 1948. The Appellate decision properly read amounted, therefore, to a fixation of the standard rent under the 1946 Ordinance plus also a determination of the standard rent under Sections 2(10)(b) and 8 and the Schedule, Part A, paras 1(a) and 3(d) of the 1948 Act.
This determination was certainly not fixation of the standard rent under Section 9 of the 1948 Act but nevertheless it was also, broadly speaking, fixation of standard rent inasmuch as determination of standard rent may, not inappropriately, be called fixation of standard rent vide the case of --'Asutosh Chatterjee v. Upendra Chandra', AIR 1923 Cal 33(A). I am not unmindful of the fact that in the Act of 1948 in relation to standard rent the word 'fix' is used in s. 9 and not in the other provisions under which standard rent can be determined under the Act (vide' Sections 2(10)(b) and 8 and the Schedule) and that a distinction is drawn between fixation of standard rent under Section 9 and determination of standard rent (vide Section 2(10) Clauses (a) & (b)).
But it seems to me that in providing for re-fixation of standard rent in Section 17(2) of the Act of 1950 in cases where the standard rent had been fixed under the 1948 Act the Legislature had in mind not merely cases where standard rent had been fixed under Section 9 of the 1948 Act but also cases where such rent had been determined under the other provisions of that Act. In other words, the word 'fixed' in the phrase 'fixed under the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act 1948' as used in Section 17(2) of the 1950 Act was used in the broader sense of including cases of standard rent fixed, strictly so-called, that is, fixed under Section 9, as also cases of standard rent determined, -- that is, fixed in the wider sense, --under the other provisions of the Act of 1948.
In the instant case, therefore the net position was that by his judgment dated 25-3-1949 the learned Chief Judge fixed the standard rent under the 1946 Ordinance so far as the period February to November 1948 was concerned and also determined -- that is, 'fixed' within the meaning of Section 17(2) of the Act of 1950 -- the standard rent under the 1948 Act from December 1948. This latter determination or fixation of standard rent was thus clearly liable to be reopened and the standard rent re-fixed under Section 17(2) of the Act of 1950 and the opposite party's application under that section was, therefore, quite in order and maintainable in law. The petitioner's first contention must, accordingly, fail and it is overruled.
6. The petitioner next argues that with regard to the disputed premises the standard rent had been fixed under the 1946 Ordinance and, therefore, under the 1950 Act and on the application under Section 17(2) thereof, the standard rent had to be fixed under Schedule A, paras 1(a) and 3(b) of the said Act and not under the residuary provision, viz. Schedule A, para 1(b), read with para 3(b) thereof and the alleged rent of December 1941 was. therefore, wholly irrelevant for the purposes of the present proceeding. In my opinion, this argument ought to succeed. It is clear from Schedule A of the Act of 1950 that where the standard rent of the premises in question has been fixed under the 1946 Ordinance, para 1(a) is at once attracted and Clause (b) of para 1 is necessarily excluded as this latter clause applies only when the earlier one does not, and, the said residuary Clause (b) being thus excluded, the rent of December 1941 becomes, in such cases, wholly irrelevant for the purpose of standardisation of the rent or re-fixation of the standard rent.
That being the position in law and there being clearly a standard rent fixed under the 1946 Ordinance in respect of the present premises, as already noticed, the Rent Controller was right in ignoring the evidence of the alleged rent of December 1941 and in fixing --or, rather, 'refixing', as the present case is one under Section 17(2) -- the standard rent under Schedule A, paras 1(a) and 3(b) of the Act of 1950 and the learned Appellate Judge was not justified in reversing the said decision and in fixing the standard rent under Schedule A, paras 1(b) and 3(b) of the said Act on the basis of the alleged rent of December 1941. The Appellate decision must, therefore, be set aside and the standard rent as fixed by the Rent Controller by his order dated 31-8-1950 must be restored.
7. In the result, therefore, I accept the petitioner's second contention, make this Rule absolute, set aside the decision of the learned Appellate Judge and restore that of the Rent Controller.
8. There will be no order for costs in this-Rule.