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indra Kumar Karnani Vs. Sundardas Thackersey and Bros. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1472 of 1952
Judge
Reported inAIR1953Cal570,57CWN239
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1950; ;Code of Civil Procedure (CPC) , 1908
Appellantindra Kumar Karnani
RespondentSundardas Thackersey and Bros.
Appellant AdvocateBejoy Bhose, Adv.
Respondent AdvocateSushil Kumar Biswas and ;C. Tondon, Advs.
Excerpt:
- .....was first paid. in a case where no rent was fixed on an earlier occasion, nor was an increased rent paid, the only rent to which regard must be paid under the schedule is the rent paid in december, 1941. the provision with regard to residential premises is contained in para. (2) (b) and that with regard to non-residential premises is contained in para. (3) (b).mr. bhose submitted that there was a very noticeable difference between the two provisions,. inasmuch as the words 'or where such period is not relevant' which are to be found in para. (3) (b), did not occur in para. (2) (b). in my opinion, the difference is only apparent, but not real. from what i have so far stated, it must be clear that where no rent was fixed on an earlier occasion, nor was any increased rent paid, the.....
Judgment:

Chakravartti, C.J.

1. This Rule raises an interesting question of first impression under the Rent Control Act of 1950.

2. The facts are simple. The opposite party is the tenant in respect of Godown No. 9B, situated at 13C, Lower Chitpore Road and was the tenant in respect of the same premises in December 1941 as well. In 1941, the rent was RSection 3307- per month, as has been found by the authorities below. It has also been found that with effect from December, 1948, the rent was increased to Rs. 508-3-0 per month. On 30-8-1950, the opposite party made an application for standardization of the rent and the Rent Controller fixed the standard rent at Rs 363/- per month. He arrived at that figure by adding ten per cent, to the contractual rent of Rs. 330/- which was being paid in December, 1941. He declined to add anything more, although a rent of Rs. 508-3-0 per month was being paid since December, 1948, for the reason that three years had not elapsed from the date on which the increased rent had been first paid. It would appear that the Rent Controller was computing the three years by reference to the date on which he was making his order. The landlord preferred an appeal against the order of the Rent Controller and the only point urged in the appeal was that the rent had not been correctly fixed in accordance with law. That contention meant that a further percentage should have been added because of the payment of an increased rent from December, 1948. The learned Judge repelled that contention and the ground given by him was that the increased rent had been paid from December, 1948 and 'from that date three years had not elapsed when the Act of 1950 came into force on 31-3-1950'. The appellate Judge, therefore, took the date on which the Act had come into operation as the date by reference to which the period of three years was to be computed. The landlord thereafter moved this Court and obtained the present Rule.

3. It was contended by Mr. Bhose, who appears on behalf of the landlord petitioner, that the learned Judge had overlooked the second alternative in Para. (3) (b) of Schedule A, Rent Control Act. The words there are 'when the said period of three years relevant to the case has elapsed or elapses'. Mr. Bhose contended that some meaning had to be given to the word 'elapses' and the true meaning of that word, according to him, was that it was intended to cover a case where the period of three years, although it had not expired at the date of the application, might yet expire during the course of the proceedings. By the course of the proceedings Mr. Bhose meant the whole course up to the date of the final disposal by the last Court.

4. On behalf of the opposite party it was submitted by Mr. Biswas that the word 'elapses' had been used for the purpose of giving the landlord a right to make an application as soon as a period of three years had elapsed. He pointed out that the application in the present case was an application by the tenant and that neither at the date of the application, nor on the date on which the Rent Controller had made his order, had the period of three years elapsed. It was, therefore, according to Mr. Biswas, unnecessary to consider the meaning of the word 'elapses' in view of the facts of the present case. That word would have to be considered and the landlord might call it in aid of any application which he might make for a further increase of the rent after the period of three years had expired.

5. In my view, in substance, the contention put forward by Mr. Biswas is not in any way different from that put forward by Mr. Bhose. The schedule does not say that the increased rent will be allowable on the expiry of three years from the relevant date, only if the landlord makes an application. An application may well be made by the tenant and if the word 'elapses' really means that the expiry of the period of three years on some date after the making of the tenant's application has to be taken into account, there seems to be no reason why it should not be taken into account when the period expires during the pendency of a proceeding initiated by the tenant. Both Mr. Bhose and Mr. Biswas really construed the word 'elapses in the same way, inasmuch as they seemed to agree that the landlord would be entitled to the, additional percentage as soon as a period of three years elapsed from the date when the rent might have been fixed on an earlier occasion or from the date when an increased rent was first paid within the limits of time mentioned in Para. (1) (b) of the schedule. If that construction be correct, the landlord was entitled to an increase at the hands of the appellate Judge in the present case, since by the time the appeal came to be heard, three years had elapsed from the date when the increased rent was first paid.

6. In my opinion, the construction suggested by the learned Advocates is not the true construction of the word 'elapses'. If the only intention of the Legislature was to provide for cases where the relevant period of three years might not have elapsed at the date of the application, but might elapse sometime after that date but before the order fixing the standard rent was made, whether the Rent Controller or by the appellate Court or by the High Court in revision, the words 'has elapsed' would, in my view, be sufficient to cover even that case. Neither the Rent Controller nor the appellate judge nor the High Court could make an order, unless at the date of the making of the order the three years had elapsed and if they had elapsed, that fact would be sufficiently described by the words 'has elapsed'. The necessity of providing for cases where the period of three years might elapse during the pendency of the proceedings is, therefore, no explanation of the use of the word 'elapses'. The real intention of the Legislature must be sought elsewhere.

7. On general considerations too, it appears to me that construction proposed by the learned Advocates cannot be the true construction. What the schedule in effect provides is that if the rent of the premises concerned was fixed on an earlier occasion, either under the Bengal Rent Control Order of 1942 or the Calcutta House Rent Control Order of 1943 or the Calcutta Rent Ordinance of 1946, the landlord will get an additional percentage, if three years from the date on which the rent was so fixed has elapsed or elapses. The other case provided for in the schedule is that if any increased rent was paid between 1-12-1941, and the date on which the Act of 1950 came into operation, then also the landlord would be entitled to an additional percentage, if three years from the date when the increased rent was first paid has elapsed or elapses. The Calcutta Ordinance, to take the last of the three enactments mentioned in Para. (1) Ca) of the Schedule, continued to be in force up to 30--9-1948. It follows that the rent for a particular premises might be fixed under the Ordinance of 1946 up to the date I have mentioned. Again, the limits of time which the increased rent might have been paid in. order to earn recognition under the schedule are 1-12-1941 and 31-3-1950, when the present Rent Act came into force. It follows that the last date on which an increased rent, such as is contemplated by Para. (1) (b) of the Schedule, might have been paid in order to entitle the landlord to an additional percentage, would be the 30th of March 1950, if not the. 31st as well.

If the construction favoured by the learned Advocates be the true construction, the Legislature was saying in 1950 that no matter what the economic conditions in the country might turn out to be and although prices and rents might otherwise show a downward tendency, still, up to the 30th of September, 1951, in one case and the 30th or the 31st of March, 1953, in the other, the landlord would continue to be entitled to an additional percentage, if the rent was fixed on an earlier occasion or if any increased rent was paid, provided three years had elapsed. I cannot imagine the Legislature, which was passing an Act for the purpose of stabilising the rent and mainly in order to give reief to the tenants, the securing to the landlords an additional future advantage, regardless of what the general economic conditions in the country might thereafter be. In my view, if some other and more reasonable explanation can be found for the use of the word 'elapses', the construction put forward by the learned Advocates ought not to be accepted.

8. The intention of the Legislature in using the additional word 'elapses' does not, it is true, lie on the surface, but it appears to me that if one examines the provisions of the Act a little closely, the intention can be ascertained with reasonable certainty. The enquiry is why after using the words 'has elapsed' in the present perfect tense, the Legislature considered it necessary to use a further word 'elapses' in the present tense. As is well known, an Act ought not to be so construed as to convict the Legislature of having used a redundant expression and therefore some necessity and reasonable explanation for the use of the word 'elapses' must, if possible, be found. It appears to me that such necessity or explanation can be discovered, if one examines the provisions of Section 1 (2) of the Act and Paras. (1) (a) and 1 (b) of the Schedule.

9. The Act was passed somewhen in February or March, 1950, but Section 1 (2) provided that it was to come into force on such date as the State Government might, by notification, appoint. It is thus clear that although the Legislature was passing the Act, it did not know when the Act' would be brought into operation. In Schedule A it was prescribing a period of three years from the date on which the rent of any premises might have been fixed under the Bengal House Rent Control Order of 1942 or the Calcutta House Rent Control Order, 1943, or the Calcutta Rent Ordinance, 1946, and also from the date on which an increased rent might have been paid for the first time between 1-12-1941, and the coming into operation of the Act. In February or March, 1950, when the Act was being passed, three years must have already elapsed from any order fixing the rent of any premises under either the Bengal House Rent Control Order or the Calcutta House Rent Control Order. In the case of the Calcutta Rent Ordinance, 1946, however, the position was different, inasmuch as that Ordinance continued to be in force up to 30-9-1948. At the date of the passing of the Act, therefore, the position, so far as fixation of rent under the Calcutta Rent Ordinance was concerned, was that a period of three years might have elapsed in certain cases, but in other cases it might not have yet elapsed. But the Act of 1950 was not coming into operation immediately but was, as I have pointed out, to come into operation on such future date as the State Government might fix.

It seems to me that the Legislature, placed in that position and intending to give the landlords the benefit of the additional percentage if the three years from the date of the earlier fixation of rent had already passed or would pass by the date the Act would come into operation, had to provide the two alternatives, 'has elapsed' or 'elapses'. In other words, it was providing for cases where the period of three years had already elapsed at the date of the passing of the Act when the Legislature was speaking and also for cases where it might elapse by the date when the Act might come into force. It was to meet the latter case that the addition of the word 'elapses' became necessary. Similarly, as regards the payment of increased rent, since the limits of time between which such payment might first be made were 1-12-1941, and the date of the coming into operation of the Act, the period of three years may have already elapsed in certain cases, but in certain other cases it might not yet have elapsed, but might elapse by the date the Act came into force. Again, the Legislature intending to give the landlord the benefit of the additional percentage on the basis of the payment of an increased rent only if three years had elapsed by the date the Act would come into force, but not knowing when the Act might be brought into operation, had to provide for both the case where the three years had already elapsed and the case where the three years not yet elapsed, but might still elapse by the date the Act was brought into force, Here again, in order to provide for the second case, it was necessary to add the word 'elapses'. The above, in my view, is the true construction of the Act and although the learned appellate Judge gave no reasons in support of the view he took, the date he adopted for judging whether the relevant period of three years had or had not expired was the correct date.

10. The Act came into force on 31-3-1950. The increased rent of Rs. 508-3-0 was first paid for the month of December 1948. Clearly, three years from the date of the first payment had not elapsed by the date the Act was brought into operation. It follows that on the construction which I have put upon the words 'has elapsed or elapses', the landlord was not entitled to the benefit of Para. (3) Cb) of the Schedule.

11. This disposes of the present case, but I might refer to one other point which was raised in the course of the argument. Paragraph (2) of the Schedule deals with premises used for residential purposes, while Para. (3) deals with premises used mainly for purposes other than residential. A provision for an additional percentage on the basis of the expiry of three years is made in both cases, though separately. The two contingencies in which an additional percentage is allowable are, as I have pointed out, if the rent was fixed on an earlier occasion under one or other of the enactments mentioned in Para. (1) (a) and if an increased rent was paid within the limits of time mentioned in Para. (1) (b), provided, however, three years have elapsed from the date of the fixation of the rent or the date when the increased rent was first paid. In a case where no rent was fixed on an earlier occasion, nor was an increased rent paid, the only rent to which regard must be paid under the schedule is the rent paid in December, 1941. The provision with regard to residential premises is contained in Para. (2) (b) and that with regard to non-residential premises is contained in Para. (3) (b).

Mr. Bhose submitted that there was a very noticeable difference between the two provisions,. inasmuch as the words 'or where such period is not relevant' which are to be found in Para. (3) (b), did not occur in Para. (2) (b). In my opinion, the difference is only apparent, but not real. From what I have so far stated, it must be clear that where no rent was fixed on an earlier occasion, nor was any increased rent paid, the period of three years is not relevant. That is the kind of case which is contemplated by the words 'or where such period is not relevant' which are to be found in Para. (3') (b), and it must also be clear that, in such a case, the only rent to which regard must be paid is the rent payable on the 1st day of December, 1941. Such a case in regard to residential premises is provided for in the proviso to Para. (2) (b), which deals with a case where 'the basic rent is the rent payable on the 1st day of December, 1041'. That rent must at once be taken as the basic rent only in cases where no rent was fixed on an earlier occasion and where no increased rent was paid within the limits of time mentioned in Para. (1) (b). It follows that the subject-matter of the proviso to Para. (2) (b) has been compressed in the case of Para. (3) (b) into the words 'or where such period is not relevant.'

12. For the reasons already given, this Rule is discharged; but in view of the difficulty of the point, we order that each party will bear its own costs throughout.

Sinha, J.

13. In this application we have to deal with the standardisation of rent of a non-residential premises at the instance of the tenant. The original rent was Rs. 330/- per month and this has been increased to Rs. 508-3-0 per month in December 1948. The application was disposed of by the Rent Controller in December 1950. An appeal against the order was disposed of in March 1952. The determination of the standard rent has to be done with reference to Schedule. 'A'. First the basic rent has to be fixed and then the standard rent would have to be calculated under the provisions of Clause 3 of Schedule. 'A' which deals with non-residential premises. There, the words used are 'has elapsed' or 'elapses'. The question is as to what is the point of time that they refer to. is it the date of the passing of the Act or the date when the Act came into operation or when the tenant made the application or when the original order was made, or some other date? Prom the dates set out above, it is quite obvious that the increased amount of 15 per cent, would not be allowed unless the date refers to some point of time after the Rent Controller had determined the standard rent. It has been argued by the learned advocate for the applicant that inasmuch as there was this application for revision pending, it will be quite sufficient if the date had elapsed at any point of time up to the time that we are called upon to decide the matter. It is of course not disputed that now the three years have elapsed. This argument is certainly attractive but it does not explain the distinction made between the words 'elapsed' and 'elapses'.

The Legislature must have had some intention in using the two expressions instead of one. I think that in an emergency legislation of this description which is promulgated in order to provide a rent which is consistent with the economic condition prevailing in the country, the wiser course is to accept the date of the passing of the Act and/or the date when it came into operation as the dates intended, if nothing else is said. Without any suggestion in the Act itself, one should not take it as providing for a rate of rent prospectively. It is quite obvious that if the point of time is not the passing of the Act or when it came into operation, then it is possible to have these words referring to a period nearly three years hence, when the economic condition of the country may be such that the increase paid to the landlord would not be consistent with justice. I, therefore, agree that the word 'has elapsed' refers to the date of the passing of the Act and 'elapses' refers to the date -when it came into operation. The Act was passed in February 1950 and came into operation on 31-3-1950. Upon that construction, there would arise no absurdities. For example, if the date to be considered is the date of the order of the Rent Controller then if the Rent Controller had fixed a particular standard rent and it was quite correctly done, even then the party may file an appeal simply hoping that the three years will elapse during the interval that he may be proceeding with an otherwise frivolous appeal. Also, as has been pointed out, the Act may be dealing with the rent in years to come without any reference to-the prevailing economic condition of the country, at the time. The appellate Court here has correctly computed the standard rent, having taken it as being the date when the Act came into operation.

14. I agree with the order passed by my Lord.


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