A.C. Estates vs Serajuddin and Company

P.N. Mookerjee, J.—This rule raises a question of some importance u/s 16(3) of the West Bengal Premises Tenancy Act, 1956. The rule arises out of a proceeding under the said section, which was started by opposite party No. 1 upon the allegation, inter alia, that it was a sub-tenant in respect of the disputed premises, comprising suite or Block (Flat) H on the. second floor of P-16 Bentinck Street, Calcutta, at a monthly rental of Rs. 66 per month according to the English Calendar under the tenant opposite party No. 2, which held its said tenancy at the same rental and, presumably, according to the same calendar, too, under the owner landlord, which is the Petitioner before me. In its application under the aforesaid section, which gave rise to the above proceeding, the opposite party No. 1 further alleged that its sub-tenancy had been created in or about June 1954, and had been in existence since then and that it had given due notice to the superior landlord Petitioner under Sub-section (2) of the aforesaid Section 16. To its said application, the opposite party No. 1 impleaded the superior landlord Petitioner and also the tenant, opposite party No. 2 which was its immediate landlord.

The aforesaid application of opposite party No. 1 was opposed by the present Petitioner upon the ground, inter alia, that the same was collusive and mala fide and the basic allegation therein that the opposite party No. 1 was the sub-tenant of the suit premises and had given notice to the Petitioner, as aforesaid, was false. The learned Rent Controller, however, by his order, dated August 9, 1956, rejected the Petitioner''s above objection upon the finding, inter alia, that the opposite party No. 1 was a sub-tenant of the disputed premises, as claimed by it, and it had also given due notice to the Petitioner landlord under the aforesaid Section 16(2) of the statute and he recorded a clear finding that "the applicant" (sub-tenant, opposite party No. 1 before me), "was entitled to be declared to, be a direct tenant, under the opposite party No. 1" (landlord, Petitioner of this Rule). As, however, notwithstanding the fact that the opposite party party No. 2''s tenancy under the Petitioner landlord, the learned Rent Controller was of the opinion that, in view of the terms of Section 16(3) of the above Act, it was incumbent upon him to fix inter alia the rent of the opposite party No. 1 in regard to its direct tenancy under the Petitioner, declared as aforesaid, be adjourned the proceeding pending submission and consideration of the Inspector''s report for the purpose.

In the meantime, an event happened, which according to the Petitioner, is of special importance in this case. That event, on which the Petitioner strongly relies and on which its entire argument in this rule is founded, was the passing of an ejectment decree in favour of the Petitioner and against opposite party No. 2 in Ejectment Suit No. 2213 of 1954, which had been filed in the Court of Small Causes. Calcutta, by the Petitioner against the said opposite party after service of a notice to quit, expiring with the month of August, 1954, and which suit was decreed on August 22, 1956.

The substance of the Petitioner''s argument may be stated here as follows:

That the learned Rent Controller''s finding, quoted above, is not a declaration of direct tenancy as contemplated in Section 16(3) of the Act, so that the opposite party No. l''s application under the said section remained pending, both as regards the said declaration, prayed for therein, and fixation of rent in terms of the statute, and it was only when the matter would be heard after the Inspector''s report that the question of making the declaration aforesaid and also of fixing the rent would or could be decided. When, however, such time came, namely, on January 29, 1957, when the opposite party No. 1''s above application was taken up for the purpose by the learned Rent Controller, the opposite part No, 2 had already ceased to be the tenant by virtue of the ejectment decree, passed in the meantime, as aforesaid, on August 22, 1956, and as, without a tenant, there cannot be a sub-tenant (vide M.N. Ghosal v. P.K. Banerjee and Ors. (1858) 63 C.W.N. 246) the opposite party No. 1 also lost its status of sub-tenant and thus became disentitled to any declaration of direct tenancy under the aforesaid Section 16(3) of the Act.

This argument was accepted by the learned Rent Controller when on February 11, 1957, he dismissed the opposite party No. l''s application under the above Section 16(3) but the argument was rejected on appeal and the validity or otherwise of the argument and of its acceptance or rejection, as aforesaid, is the main or major and the real point for consideration in this rule.

In my opinion, this rule should fail, subject to certain observations, which I shall presently make or indicate. It may well be argued that, if, at the time of filing of the application u/s 16(3), the tenancy exists, that would be enough to support the applicant''s sub-tenancy for the purpose of the relative proceeding, in which the sub-tenant, as such sub-tenant, makes bis claim of direct tenancy under the landlord. But, even assuming that the existence of the tenancy at the date of the Controller''s order is necessary for purposes of declaration of the sub-tenant''s direct tenancy, as aforesaid, I do not think that the Petitioner landlord would be in any better position in this instant case.

There can be no question here that, at the date of the Rent Controller''s order, dated August 9, 1956, the tenancy of opposite party No. 2 was subsisting, at least, for purposes of the above Act, in view of the definition of "tenant", as given therein in Section 2(h), and if, accordingly, it be found that the learned Rent Controller''s said order gave or contained a declaration of direct tenancy, as contemplated u/s 16(3), the Petitioner''s contention would fail on its own terms.

The point, then, that needs consideration is whether the above order of the Rent Controller contained the necessary declaration. In my view, the answer to this question must be in the affirmative. It is perfectly plain from the said order that thereby the learned Rent Controller determined the dispute between the parties as to the opposite party No. 1''s claim of sub-tenancy and as to its giving of notice u/s 16(2). The Petitioner''s objection, on the above point or points, were overruled by the learned Rent Controller and he found that the opposite party No. 1 was the sub-tenant, as claimed by it, and, further, that it had also served the requisite notice u/s 16(2) on the Petitioner and then, as aforesaid, he recorded his conclusion on the rights of the parties, which obviously meant, or, at least, included the opposite party No. 1''s right to be declared as a direct tenant under the Petitioner, in the following terms.

The applicant is, therefore, entitled to be declared to be a direct tenant tinder the opposite party No. 1.

This was undoubtedly the final pronouncement of the learned Rent Controller on the opposite party No. 1''s claim of direct tenancy under the Petitioner and he accepted and affirmed that claim which meant that the declaration, prayed for by opposite party No. 1, of direct tenancy u/s 16(3), was granted.

Whatever be the objection to the form or to the terms, in which the learned Rent Controller expressed himself on the point, as set out above, the substance is clear, namely, that the learned Rent Controller accepted the sub-tenant''s made in its application, and held it entitled to the declaration u/s 16(3), which was tantamount to giving it that declaration, at least, in. substance, if not in form. Even as to the form. I do not think any legitimate objection can be taken, as such, form of giving declarations is not unusual or unknown in Court (Vide for example, in this connection, the case under the very Section 16(3), Asutosh Chakravarty v. Sm. Rani Sundari Debi (1959) C.L.J. 117). I do not also think that the true position, is in any way, affected by reason of the fact that the learned Rent Controller did not dispose of the proceeding before him by his aforesaid order but adjourned it for the purpose, inter alia, of fixing the rent of the direct tenancy in question. That was, obviously, done as the learned Rent Controller thought that the proceeding could not be disposed of without fixation of the said rent, even though the sub-tenancy, in the instant case, was co-extensive with the tenancy.

The plain reading of Section 16(3) is enough to convince one that it consists of two parts, one relating to declaration of direct tenancy and the other to fixation of rent where, of course, such question arises. The first, however, is quite distinct and independent of the second and it does not depend on the latter''s determination. Indeed, the first part is the primary or the substantive part and the second merely consequential, and, in natural sequence, -and sequence of determination too, -''the first part must necessarily precede the second in the sense that, before or without the first, the second would not come in the picture at all, and. unless the first is determined, the question of determination of the second would not arise. Although, then, generally speaking, it may be true that, for disposal of the application or the proceeding, both the parts may have to be disposed of, the mere non-determination of the second or the mere deferring of its decision would not affect or prevent determination of the first part. Clearly, then, the order of the learned Rent Controller, dated August 9, 1956, was enough to make the present opposite party No. 1 (sub-tenant) a direct tenant under the Petitioner in respect of the entire disputed premises and this alteration of its status to a higher level could not be affected by the subsequent ejectment decree against the original tenant, who ceased to be a tenant on the sub-tenant''s being declared the direct tenant under the landlord as aforesaid, the tenancy and the sub-tenancy being, in the instant and particular case, co-extensive, and this would be so, even if fixation of rent was necessary under the other or the aforesaid second part of the section (Section 16(3)) and even though that matter remained pending or outstanding.

It may also be argued that, having regard to the language of the relevant part of the statute (Section 16(3)),'' which speaks of fixation of rent of the tenant and the sub-tenant, the same would not apply, where the tenancy and the sub-tenancy are coextensive so that both cannot exist after, declaration of the sub-tenant''s direct tenancy, and, accordingly, in the instant case, the second part would not arise for consideration at all, and, in the context, the order of the learned Rent Controller, dated August 9, 1956, was, in law, in the facts of this case, a disposal of the opposite party No. 1''s application u/s 16(3) of the West Bengal Premises Tenancy Act, 1956, that is, of the present proceeding, in its entirety.

In any view of the case, then, upon the construction, put by me, as aforesaid, on the quoted part of the learned Rent Controller''s order, dated August, 9, 1956, the opposite party No. 1 was declared a direct tenant under the Petitioner on that date and so the present Rule must fail, so far as that point was concerned.

This, however, is not sufficient for disposal of this rule as the learned Judge in the lower Appellate Tribunal has not only given the sub-tenant (opposite party No. 1) a declaration of its direct tenancy under the landlord but has also purported to fix its rental at the old and/or current figure of Rs. 66 per month without giving any reasons therefore and without adverting to any of the aspects, requiring consideration for such fixation when it is remembered that fixation of rent u/s 16(3) amounts to fixation of "fair rent" under the Act. The fixation of rent, in the instant case, at Rs. 66 per month must, therefore, be set aside and subject, inter alia, to that this rule will fail.

The point still remains as to how and when the fixation of rent is to be made in the present case. It is, as we have seen above at least, a matter of doubt, whether, when the sub-tenancy in question is co-extensive with the tenancy, this fixation can be made u/s 16(3). In such circumstances, both the parties before me have agreed that this question of fixation of rent, that is, of fair rent, of the opposite party No. 1 which has become the direct tenant under the Petitioner-landlord, should now be left open with liberty to the parties to apply for such fixation under the usual and less objectionable if not, the only appropriate, statutory provisions, namely Section 10 of the Act. In the context, which renders it unnecessary for me to examine more closely the above point of doubt and to consider the true implication of the decision of this Court in Jetmull Bhojraj v. Mohan Lal Sukhani (1957) 62 C. W. N. 314 the discharge of this Rule must be subject to the aforesaid reservation too.

One word now on the case of M.N. Ghosal v. P.K. Banerji (supra). That case, as held by the learned lower Appellate Tribunal, is clearly distinguishable and, indeed, it has no relevancy or application, so far as the instant case is concerned. There, at the material time, there was no tenant and so no sub-tenancy could be claimed. Here, on the other hand, in view of my above finding that the material date was August 9, 1956, the position is entirely different as, on that date, the tenancy, admittedly, existed and so the sub-tenancy too.

In the above view, subject as aforesaid, this rule will fail and it will be discharged. The order of the learned lower Appellate Judge, so far as he has declared the opposite party No. 1 to be a direct tenant under the Petitioner with effect from August 9, 1956, will be affirmed but the fixation of the rent, as made by him will be set aside, leaving it open to the parties to have such fixation made in an appropriate proceeding u/s 10 of the Act.

There will be no order for costs in this Court.