Jitendra Nath Joardar vs Makhan Lal Choudhury

Lahiri, J.—These two Rules have been obtained by the landlord against an appellate order fixing the standard rents of two tenancies both of which are in respect of portions of premises No. 11011, Amherst Street, Calcutta. In Civil Revision Case No. 1881 of 1955 the tenant is Makhan Lal Chowdhury, who occupies the one-half of the front portion of the third floor. The contractual rent of Makhan Lal Chowdhury was Rs. 90|-The name of the tenant in Civil Revision Case No. 1882 of 1955 is Jnan Saran Guha, who is a tenant in respect of the back side portion of the first floor of the same premises, namely premises No. 110|1,. Amherst Street. The contractual rent of Jnan Saran Guha''s tenancy was Rs. 105]-. Both the tenants filed applications for fixing the standard rent of the tenancies held by them under the petitioner before me, who is a tenant of the first decree under the owner S.K. Mittra & Ors. The application filed by Makhan Lal Chowdhury gave rise to case No. 1726A of 1952 and the application filed by Jnan Saran Guha gave rise to Case No. 1727A of, 1952. In Makhan Lal Chowdhury''s case the Rent Controller reduced the rent to Rs. 51-8-3 ps. from Rs. 90|-. In Jnan Saran Guha''s case the contractual rent of Rs. 105|- was reduced by the Rent Controller to Rs. 57-2-0. Against the decisions of the Rent Controller both the landlord and the tenants filed appeals. The appeals filed by the landlord were dismissed but the appeals filed by the tenants were allowed in part and the rent of Makhan Lal Chowdhury''s tenancy was further reduced to Rs. 39-6-3 ps. and the standard rent of Jnan Saran Guha''s tenancy was further reduced to Rs. 42-13-7 ps. It is against the judgments of the appellate Court in these two cases that the landlord has filed the present applications. Leaving aside all details which are not necessary for the present purpose I may state that the rents of both these tenancies were standardised by the courts below on the basis of the rent paid by one Probodh Chandra Ghosh in respect of a flat on the road side portion of the first floor of premises No. 110[1, Amherst Street on the 1st December, 1941. It is admitted in these cases that the rents of the two tenancies are to be standardised, u/s 9(1) (e) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 and so the court has to determine the rent which would be reasonably payable by a tenant if the premises were let out on the prescribed date. Probodh Chandra Ghosh stated in his evidence that he was a tenant in respect of the road side flat in the first floor of premises No. 110|1, Amherst Street between 1940 and 1943 at a rental of Rs. 45|-, per month and that at the inception of the tenancy the rent was Rs. 45|- but it was subsequently reduced to Rs. 30|- during the war time exodus and he adds that the rent payable in respect of the said premises in December, 1941 was Rs. 45|- per month. On behalf of the landlord it was contended that this gentleman, Probodh Chandra Ghosh, was not a tenant under the owner, S.K. Mittra & ors. in respect of the entire flat but that he was merely a sub-tenant under one K.P. Biswas for only one room and that this K. P. Biswas was a tenant in respect of the entire road side flat on the first floor of premises No. 110|1, Amherst Street at a rental of Rs. 177|- per month. This suggestion was put to Probodh Chandra Ghosh in cross-examination and he emphatically denied it. On the side of the landlord, however, certain counter-foils of rent receipts were produced to show that Kalipada Biswas was a tenant of the first flat of the first floor of premises No. 110[1, Amherst Street at a rent of Rs. 177|-(see Exts. B and C). The genuineness of these counter-foils as well as the rent receipts granted by the owner to Kalipada Biswas was challenged on behalf of the tenant. The courts below have come to the conclusion that the rent receipts Ext. A to A(3), which were produced by the landlord, were not genuine but there is no finding, as far as I have been able to see, with respect to the genuineness of the counter-foils. Be that as it may, both the courts accepted the testimony of Probodh Chandra Ghosh upon the view that it is corroborated by a document, Ext. 2, which is described as an "Inspection Book of Lands and Buildings" maintained by the Corporation of Calcutta. A copy of this document, certified by one Girindra Kumar Kar, Clerk, Assessment Department, Calcutta Corporation, was produced at the trial and marked as Ext. 2.

The document contains the following entries:

"Inside R.S. II 4r. + B P P B Prabodh Ch. Ghosh infd 36/-

Inside

3 r. + B P P - lr. 2 r(s) Kalipada Biswas says -- 20/-."

This document was produced by P. W. No. 2, Subodh Ranjan Mukherjee who says that the inspection was made on October 5, 1941 and that one Profulla Chandra Mukherjee inspected the premises and that he is still in service. Apart from anything else it seems to me that this document presents a nice problem in cross word puzzle and the writer is perhaps the only person who is able to solve it and since he has not been examined it is impossible to attribute any rational meaning to it. It is idle to contend that a court of law possesses the esoteric power of reading any sensible meaning into a meaningless jargon. Without attempting to construe a document like this I may say that this document instead of corroborating the testimony of Probodh Chandra Ghosh contradicts it. It shows that the rent paid by Probodh Chandra Ghosh was Rs. 36|- whereas Probodh Chandra Ghosh in his evidence states that the rent was Rs. 45|-. Again it shows that Kalipada Biswas was a tenant in respect of a portion of the first floor whereas according to the case of the tenants Kalipada Biswas was not a tenant on the first floor. Again it shows that the rent paid by Kalipada Biswas was Rs, 20|- whereas the counter-foils of rent receipts, Exts. B and C, to which I have referred, show that the rent paid by Kalipada Biswas was Rs. 177/- per month But apart) from all these Mr. Mukherjee. appearing in support of the petitioner, has contended that a certified copy of a document like this is not admissible in evidence. Mr. Chatterjee appearing for the opposite party, has contended that it is admissible u/s 35 of the Indian Evidence Act. Section 35 provides that "any entry in any public or. other official book, register or record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which the book, register or record is kept is itself a relevant fact." I have, therefore, to see whether the document in question which is described as an "Inspection Book of Lands and Buildings" is a public document or an official book, register or record. Mr. Chatterjee relies upon the provisions of section 136(3) of the Calcutta Municipal Act which authorises the Executive Officer or any person authorised by him in this behalf to inspect, survey and measure the land or building. According to Mr. Chatterjee the authority conferred upon the Executive Officer by this section carries with it the authority to make an entry in a book maintained for the purpose. I am unable to accept this argument. The authority is limited to inspection, survey and measurement and does not extend to making any entry in a book described as "Inspection Book of Lands and Buildings," A comparison with the language of section 137 and section 143 of the Calcutta Municipal Act will make this point clear. u/s 137 the Executive Officer is authorised to cause the respective valuations of the lands and buildings to be entered in a list and give public notice of the place where such list may be inspected. Section 143 requires that the annual valuation fixed under Chapter X shall be entered in one or more books to be kept for the purpose and the particulars which are repaired to be entered in that book have been specified in items (a) to (g) of that section. There is nothing in section 136 which; authorises or requires the Executive Officer or the person acting under his authority to make entries of the measurements in a book described as the "Inspection Book of Lands and Buildings." If the making of the entry is neither authorised nor required by the statute I cannot say that the Assessment Inspector made the entries in the present case in discharge of his official duty or in performance of a duty specially enjoined by the law of this country.

The next question is whether the book is a public record as defined by section 74 of the Indian Evidence Act. Mr. Chatterjee contends that Ext. 2 is a record of acts of official bodies or tribunals within the meaning of section 74(1) (ii). I must say that neither the Executive Officer nor the Inspector of Assessment acting under his authority can be said to be an official body or a tribunal when he is making notes of measurement of lands and buildings. These notes, as far as. I can see, are made by the Inspector of Assessment for the purpose of assisting the Executive Officer in fixing the annual value of the lands and) buildings u/s 131 of the Calcutta Municipal Act but they can-not be said to be records of acts of official bodies or tribunals nor can this document be said to be the record of acts of public officer, legislative, judicial and executive of any part of India because the Executive Officer acting u/s 136 of the Calcutta Municipal Act is neither a legislative nor a judicial nor an executive officer. I am, therefore, constrained to hold that Ext. 2 is not a public document within the meaning of section 74 of the Indian Evidence Act. Mr. Chatterjee then relies upon a decision of a Division Bench of this Court (Teunon & Richardson JJ.) in the case of Tamijuddin Sarkar v. Tazu (1) ILR 46 Cal. 152. That was a case where a register of deaths kept by the Police Officer of a Thana under the provisions of Bengal Police Mannual was held to be a public document within the meaning of section 74 of the Indian Evidence Act. At page 155 of the report their Lordships point out that it appears that it is in fact a register kept by the Police Officers at Thanas under a rule made by the local Government and to be found in the Bengal Police Mannual. In the present case if the entries in the Inspection Book of Lands and Buildings had been authorised by any one of the sections of the Calcutta Municipal Act or by rules or bye-laws, the above decision would have been applicable to the facts of this case but, as I have already said, there is neither any provision in the Calcutta Municipal Act nor has Mr. Chatterjee been able to draw my attention to any rule or bye-law which authorises the Executive Officer or the Inspector of Assessment to make these entries in any book. I am, accordingly, of the opinion, that the decision in Tamijuddin Sarkar''s case does not assist the opposite party. Mr. Mukherjee has drawn my attention to a decision by Chunder, J. in the case of Durgabala Biswas Vs. Nityananda Roy, , in which it is said that the entries in an assessment register of a municipality is at best hearsay evidence and therefore not admissible under the law and if that be so in the case of assessment registers maintained u/s 143 of the Calcutta Municipal Act there is all the more reason to hold that entries in an Inspection Book of Lands and Buildings which plainly show that the amount of land was inserted on the basis of the statements made by tenants are also hearsay evidence. I accordingly hold, that Ext. 2 should be left out of account in determining the question what was the reasonable rent payable on the 1st of December, 1941 if the premises had been let out on that date. As strong reliance has been placed upon this document by both the courts below, I am bound to hold that Ext. 2 has vitiated the findings arrived at by the courts below in coming to a conclusion as to the reasonable rent which was payable on the 1st of December, 1941.

On behalf of the landlord it was further contended that the rents of both these tenancies should be standardised on the basis of the rent paid by a gentleman named S.C. Chowdhury, who was a tenant in respect of both the flats on the second floor of premises No 110|1, Amherst Street on the 1st of December. 1941 at a rent of Rs. 175|- per month. It is admitted that the subject-matter of the tenancy of S. C. Chowdhury has now been split up into two parts, one part of which is occupied by Makhan Lal Chowdhury and the other part by a tenant named Atindra Nath Chakravarty. Atindra Nath Chakravarty also filed an application for standardisation of rent payable by him for his tenancy and that application after passing through various stages is,. I am told, now pending in this court in revision. I therefore do not and cannot express any opinion on the question as to whether the rent of these two tenancies should be standardised on the basis of the rent paid by S. C. Chowdhury in respect of the entire flat on the second floor of premises No. 110|1, Amherst Street.

In view of the fact that the findings of the courts below have been vitiated by inadmissible evidence I must make this Rule absolute and set aside the orders passed by both the courts below and direct that the case be retried in accordance with law.

Before concluding I may state that on behalf of the tenant it was contended that the rent of these two tenancies should be standardised on the basis of the rents paid by the tenants of premises Nos. 115A and 122, Amherst Street. Both the courts below have concurrently held that those two tenancies cannot be accepted as comparable units for the purpose of assessing the standard rents" of the tenancies in dispute. At the new trial this question need not be re-opened and the learned Rent Controller will fix the standard rent upon the materials on the record excluding Ext. 2 from consideration. The costs of these Rules will abide the result.