Gajanand Choudhury vs Bholanath Bhagat

Renupada Mukherjee, J.—This Rule was issued at the instance of Petitioner Ganjanand Choudhury, a tenant under opposite party in respect of a portion of premises No. 148, Harrison Road, Calcutta.

In order to appreciate the exact points in controversy it would be necessary to set out the following admitted facts. The Petitioner had been holding the premises mentioned above under the opposite party from before December 1, 1941, at a monthly rent of Rs. 120. The rent was reduced to Rs. 65 per month at the time of the general exodus of people from Calcutta. Thereafter on or about April 10, 1944, the landlord applied for fixation of rent at Rs. 120 per month with effect from April 1, 1944. This application was apparently made under paras. 3 and 7 of the Calcutta House Rent Control Order, 1943. Mr. Amin Ahmed who was Rent Controller at the time fixed the rent at Rs. 80 per month by consent of parties on May 18, 1944. The Petitioner''s case is that notwithstanding the above fixation of rent the landlord began to realise rent at Rs. 140 per month with effect from April, 1947, and so he applied to the Rent Controller for fixation of standard rent on the basis of the rent already fixed by Mr. Amin Ahmed. The landlord also filed a counter application alleging that the rent fixed by Mr. Amin Ahmed was too low and contending that Rs. 250 per month was the fair and reasonable rent in December, 1941. Both the applications were heard together, and the Additional Rent Controller fixed the standard rent at Rs. 90 per month by an order, dated March 20, 1950. He treated the rent fixed by Mr. Amin Ahmed as the basic rent for the purpose of determining the standard rent. An appeal was preferred before the Chief Judge against the above order which was dismissed, and the landlord came up to High Court in revision. The High Court, thereupon, set aside the order of the Chief Judge and directed a rehearing of the appeal which was accordingly heard by the Chief Judge of the Court of Small Causes, Calcutta, who fixed the standard rent at Rs. 145-3 per month. The tenant Petitioner has come up to this Court in revision alleging that the Chief Judge committed an error in law by not accepting the rent fixed by Mr. Amin Ahmed as the basic rent within the meaning of para. 1(a) of sch. A of the West Bengal Premises Rent Control Act, 1950.

It is not disputed that although the proceedings were instituted when the West Bengal Premises Rent Control Act of 1948 was in operation, the question of fixation of the standard rent would be governed by Sub-section (3) of Section 17 of the Rent Control Act of 1950. That Sub-section runs in the following terms:

If at the date when this Act comes into force proceeding for fixing standard rent is pending before the Controller or in appeal, the Controller or the appellate officer shall fix the standard rent in accordance with the provisions as laid down by this Act.

The provisions for determining the standard rent have been laid down in sch. A of the Act of 1950. Paragraph 1(a) of the said schedule is relevant for our purpose and may be quoted here:

(1) In this schedule "basic rent" in relation to any premises means--

(a) where the rent of any premises has been fixed by the Controller under the Bengal House Rent Control Order, 1942, or the Calcutta House Rent Control Order, 1943, or the Calcutta Rent Ordinance, 1946, the rent so fixed;

Mr. Granguli appearing on behalf of the Petitioner contended that the rent of the premises was already fixed by the Rent Controller at Rs. 80 under the Calcutta House Rent Control Order, 1943, and that rent should be accepted as the basic rent. The operative portion of the order passed by the Rent Controller in the case mentioned above runs as follows:

By consent the rent is fixed at Rs. 80 per month with effect from 1st December, 1943, and I allow the same.

Mr. Bhose appearing on behalf of the opposite party contended that the order having been passed on consent of parties cannot be regarded as an order made by the rent Controller under the provisions of the Calcutta House Rent Control Order, 1943, inasmuch as he did not institute any inquiry for fixing the rent, and he merely fixed the rent which was suggested by the parties. Mr. Bhose argued that this was a fixation of rent by the parties themselves by agreement and not by the Rent Controller. In support of his contention he relied on a case reported in Punamchand Mohta v. S. Mukherjee (1951) 56 C.W.N. 15. Mr. Ganguli appearing on behalf of the Petitioner questioned the correctness of the above decision. Without entering into the merits of Mr. Ganguli''s contention it may be pointed out that upon the facts the present case is clearly distinguishable from the case decided by Bose, J. in Punamchand Mohta v. S. Mukherjee (1951) 56 C.W.N. 15. In the latter case the consent order was passed by the Rent Controller in the following terms on an application by the tenant for fixation of the standard rent under the provisions of the West Bengal Premises Rent Control Act of 1950:

Applicants'' pleader Babu S.K. Bose present. Opposite party''s advocate Sri N.P. Khetry present with general power. The case is disposed of in terms of the joint petition filed by the parties today. The joint petition be kept with the record.

In holding that the above order did not amount to a determination of the standard rent by the Rent Controller, Bose, J. made the following observations at p. 17 of the report:

In the present case the Rent Controller did not determine the standard rent as defined in Section 2(10) of the Act according to schedule A of the Act. He did not start any inquiry at all under the Act. He disposed of the case in terms of the joint petition. It is suggested that the Respondent proceeded u/s 9(g) of the Act. I find it difficult to accept the contention. Clause (g) contemplates that the Controller must apply his mind, enquire into the fairness and reasonableness of the rent to be fixed. There is nothing to show that the Respondent proceeded under this clause.

The consent, order in the present case was passed under the Calcutta House Rent Control Order, 1943. Paragraphs 7(1) and 3 which mainly provide for fixation of rent by the Rent Controller under that order may be quoted here:

7(1). The Controller may, in cases other than those provided for in paragraph 4 on his own motion or on application made to him by any person interested, fix the rent chargeable under paragraph 3 in respect of any house.

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No landlord with effect from the first day of December, 1941 (hereinafter referred to as the prescribed date) shall be deemed to have been entitled to charge or shall charge a rate of rent which exceeds by more than ten per cent, the rent that was being paid on that date or, in respect of any house which was not let out on that date, a rate of rent which exceeds by more than ten per cent, the rent which would, in the opinion of the Controller, have been paid on that date, if the house had been let out.

Provided that no enhancement of rent shall be allowed in respect of any house after the commencement of this Order expect in so far as has been provided for in paragraph 8 of this Order;

Provided further that nothing in this paragraph shall apply to any periodical increment of rent accrued due under any written agreement entered into before the prescribed date.

The above paragraphs of the Order of 1943 will show the maximum limit up to which rent could be fixed by the Rent Controller. The expression "standard rent" is conspicuous by its absence in the Order, and the Order does not provide that the Rent Controller should adopt any particular procedure or make any enquiry for fixing the rent of any particular holding or premises. He was authorised under the Order to fix the rent of any premises either on his own motion, or on application by any person interested in the premises, up to a certain limit, and no procedure having been fixed by the Order of 1943 for fixation of the rent, the Rent Controller was certainly empowered to fix it by consent of parties and if he did so, it must be regarded as his own fixation, and it should be accepted as the basic rent within the meaning of para. 1(a) of Schedule A of the West Bengal Premises Rent Control Act of 1950. That being so, the appellate officer in the present case was not justified in ignoring that rent and fixing the standard rent on a different basis.

Mr. Ganguli on behalf of the Petitioner further wanted to distinguish the present case on the ground that Rent Controller Mr. Amin Ahmed who disposed of the case under the Order of 1943 expressly sanctioned the rent agreed upon by the parties by saying that he allowed that rent which showed that he applied his mind judically to the facts of the case. Mr. Ganguli contended that such an express approval was wanting in the case decided by Bose, J. This, in my mind, is a distinction without any appreciable difference, because in both the cases the Rent Controller himself disposed of the matter on the agreement of parties which shows that the compromise arrived at by, the parties was accepted by him.

Mr. Bhose also drew my attention to a case reported in Harrison Road Properties v. Ramdhonedas Jhajharia (1950) 85 C.L.J. 371. He contended that P.B. Mukharji, J. who disposed of that case held upon a construction of Section 18(2) of West Bengal Premises Rent Control Act of 1950 that the power given to Court to vacate decrees under that section is confined only to decrees which the Court after consideration of the circumstances and in the exercise of its judicial function had made in invitum as regards the tenant and that consent decrees are excluded from the operation of the section. This decision was given by P.B. Mukharji, J. in agreement with the view expressed in Wellesly v. White (1921) 2 K.B. 204. The last mentioned English case deals with the interpretation of Section 5(3) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, which runs in the following terms:

Where any order or judgment has been made or given before the passing of this Act, but not executed, and, in the opinion of the court the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given, the court may, on application by the tenant, rescind or vary such order or judgment in such manner as the court may think fit for the purpose of giving effect to this Act.

It was held in that case that the Sub-section applied only to an order or judgment made or given in invitum as regards the tenant and not to an order or judgment made or given by consent of the parties. A consent order, according to that decision, is not an order within the meaning of Section 5(3) and the order must embody the independent opinion of the Judge.

Mr. Bhose also drew my attention to another English case, Barton v. Fincham (1921) 2 K.B. 291: in which it was held that the jurisdiction of the court to make an order for possession under the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, was restricted by that enactment, and no order for possession could be made unless one of the conditions laid down in Section 5 was fulfilled.

The above English cases are not applicable to the facts of the present case, because, as I have already held, the fixation of rent on consent by the Rent Controller under the Calcutta House Rent Control Order, 1943 was a fixation by himself under that Order, and so the condition for the operation of para. 1(a) of Schedule A of the Rent Control Act of 1950 has been fulfilled.

Turning now to the decision of P.B. Mukharji, J., reported in Harrison Road Properties v. Ramdhonedas Jhajharia (1950) 85 C.L.J. 371, it will appear that Section 18(7) of the Rent Control Act of 1950 expressly limits the operation of the section to some particular classes of decrees of ejectment Section 18(1) runs as follows:

18(1). Where any decree for recovery of possession of any premises has been made "on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of Sub-section (3) of Section 12" of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, but the possession of such premises has not been recovered from the tenant, the tenant may apply to the trial court within sixty days of the coming into force of this Act for vacating the decree for ejectment against him and within such period no order for delivery of possession shall be made by any court, nor if an application is made by the tenant under this Sub-section till the application has been dismissed under Sub-section (4).

The portion within inverted commas has been emphasised in italics in the section itself, and it clearly indicates that the operation of the section is confined to decrees made on the ground that the interest of the tenant in such premises has been ipso facto determined under the provisions of Sub-section (3) of Section 12 of the West Bengal Premises Rent Control Act of 1948. A decree passed merely on the consent of the tenant, but not on an adjudication about the ipso facto determination of the tenancy does not certainly come within the scope of the section, and so P.B. Mukharji, J., if I may say so with propriety, was quite justified in holding that consent decrees are excluded from the operation of Section 18(1) of the Rent Control Act of 1950. The same cannot be said with regard to a fixation of rent made by the Rent Controller under the Order of 1943 with the consent of parties. All that para. 1(a) of Schedule A of the Rent Control Act of 1950 says is that the basic rent in relation to any premises means- where the rent of any particular premises has been fixed by the Controller under the Bengal House Rent Control Order, 1942, or the Calcutta House Rent Control Order, 1943, or the Calcutta Rent Ordinance, 1946, the rent so fixed. In this particular case, the rent fixed in the previous Rent Control Case by Mr. Amin Ahmed, though fixed on consent was a fixation by the Rent Controller under the Order of 1943, and the fact that he accepted the agreement of the parties as the basis of his fixation does not make it any the less a fixation by himself.

Mr. Ganguli appearing on behalf of the Petitioner also drew my attention to an unreported decision of Chunder, J. in Suresh Chandra Roy v. Tarak Bala Devi Unreported Civil Rule 2855 of 1951 dated December 18, 1952. That case gives a substantial measure of support to the view I am taking, because Chunder, J. observed therein that the rent fixed by consent under the Calcutta Rent Ordnance, 1946 Ordinance No. V of 1946) should be accepted as the basic rent as defined in para. 1(a) of sch. A of the Rent Control Act of 1950. In view of my interpretation of para. 1(a) of Schedule A of the Rent Control Act of 1950, I am of opinion that the learned Chief Judge who heard the appeal in this case made an error in law by not accepting Rs. 80 previously fixed on consent by Rent Controller Mr. Amin Ahmed as the basic rent and by accepting Rs. 120 as the basic rent of the premises. That judgment must be set aside and the judgment of the Additional Rent Controller should be restored.

The Additional Rent Controller fixed the standard rent with effect from December 1, 1949, because the application for fixation of the standard rent was made by the tenant in December, 1949. Mr. Ganguli appearing on behalf of the Petitioner contended that the standard rent should have been given effect to with effect from the March 31, 1950, on which date the Rent Control Act of 1950 came into operation. There is no substance in this contention, and regard being had to the date of filing of the application the Additional Rent Controller was justified in fixing the standard rent with effect from December 1, 1949.

In the result, this Rule must be made absolute. It is accordingly made absolute and the order of the learned Chief Judge of the Court of Small Causes, Calcutta, is hereby set aside and the order of the Additional Rent Controller passed on March 20, 1950, is hereby restored and affirmed.

The Petitioner will get the costs of this Rule from the Opposite party, hearing fee being assessed at three gold mohurs.