Kheru Ram vs Alya Begum & Ors

Protik Prakash Banerjee, J

Affidavit-of-service is kept on record.

It shows that service has been made on the learned advocate for the opposite parties appearing in the Court below. On enquiry why this was done and who the parties were not directly served, Mr. Samrat Dey Pal, learned advocate for the petitioner submitted that when the matter was called on last before September 9, 2019 when the coordinate Bench passed an interim order, the other learned advocate for the other side has consented to seek an adjournment in this matter.

Today, the opposite parties are represented by Mr. Taraknath Halder, learned advocate.

Therefore, I hold it to be a good service.

This petition under Article 227 of the Constitution of India impugns the Order No. 6 dated August 13, 2019 passed by the learned Additional District Judge, Fast Track Court-II at Sealdah in Title Appeal No. 17 of 2019. This Title Appeal was carried from Title Suit No. 242 of 1993, which was filed by the opposite parties for eviction of the present petitioner, who was the appellant-defendant therein. The suit was based upon the West Bengal Premises Tenancy Act, 1956 and had several grounds including reasonable requirement.

However, the suit was only decreed on the ground of default. That is why the opposite parties preferred a cross objection/cross appeal with a prayer for condonation of delay in the said title appeal.

At the same time, they applied for execution of the decree by way of Title Execution Case No. 20 of 2019. The petitioner, in order to obtain stay of the Title Execution Case so that he may not be dispossessed during the pendency of the appeal, applied under Order 21 Rule 26 read with section 151 of the Code of Civil Procedure for stay of the Title Execution Case with an interim relief praying for the samething.

The stay application contains no details about the room from which dispossession is apprehended and the only reason for stay, which has been assigned is that the appeal is pending. Nothing has been mentioned in the stay application but the condition of the room or about the means of the petitioner. On the other hand, a case has been made out that the petitioner is an employee of the State of West Bengal and his monthly income is more than Rs. 40,000/- per month. No documents have been produced in support of the allegation of the opposite parties. However, the opposite parties have alleged that the petitioner's status is now as trespasser and not tenant and if any stay petition is allowed, that should be granted only on the basis of the present value of the suit premises i.e. on the basis of the occupational charge, which the opposite parties have assessed to be Rs. 7,000/- per month.

The opposite parties have specifically relied upon the judgment reported in 2005(1) RCR, Page-1 Atma Ram Properties (P) Ltd. case. The opposite parties have also relied upon the case of a tenant of the same property, which travelled upto this Court and where only difference between the premises of the petitioner and the said other person was that the said other person also had as part of his tenancy, a kitchen, which he continued to occupy.

It was in the self-same property and this Court through a coordinate Bench held that the occupation charges in the locality ought to be Rs. 7,000/-per month and that the locality in which the same is situated has the potential to fetch a considerable market rent in present times.

In the affidavit in reply the petitioner made out for the first time the case that "We live in a Basti, with tiles roof, in a 72 sq.ft. room, with no electricity (since the Plaintiff/Respondents) objected to the CESC for granting electricity), we use a common public latrine which was built by the Corporation under Government scheme and was not built by the Plaintiff/Respondents, water connection is also a common connection provided by the Corporation under Government scheme and was not built by the Plaintiff/Respondents, the Plaintiff/Respondents also do not maintain the rooms and premises, and I have spent a lot of money from my own pocket to maintain the room, I have by my own cost transformed the Kechar Bera walls to Brick Wall........."

Naturally, since this was alleged for the first time in the affidavit in reply, the opposite parties had no chance to deal with it. Therefore, on the basis of what was before the learned Court, which has been controverted after a chance had been given in accordance with law, following becomes clear:

(i) The said premises have been held by a coordinate Bench to have the potential to fetch a considerable market rent in the present times by the order dated January 15, 2019 in C.O. 3340 of 2018

(ii) On the basis of a reasonable guesswork, the occupation charges of the said premises was held to be Rs. 7,000/- per month in respect of any one room.

(iii) This was held to be the sum payable even if the room was in a slum.

The only difference between the case of the petitioner and the case before the coordinate Bench was that the said other person had not filed a reply nor produced any document in support of his claim whereas the present petitioner claims to have produced documents in support of his claim, none of which appears to have been considered by the learned Court below. In fact, the Court below has come to a conclusion that the petitioner ought not to be evicted from the suit property in pursuance of the impugned judgment and that he will suffer irreparable loss and injury and the entire appeal would be frustrated if he is dispossessed. However, the learned Court below applied the case of Atma Ram Properties (P) Ltd. (supra) and only on the basis of the finding of the coordinate Bench, referred to above in C.O. 3340 of 2018 made the calculation that the same was in respect of a suit property containing a kitchen and held that the order relates to a similar type of room and in view of the geographical location, nature and character of the suit premises and the agreed rent of the suit property and the tentative hike in occupational charges over 25-26 years a sum of Rs. 3,000/- per month shall be paid as reasonable occupational charges.

There is nothing in the decision making process that shows that the documents produced by the petitioner or his reply was considered by the learned Court below. There is no finding whatsoever in respect of the said documents, which have been referred to at page-84 of the reply in respect of their relevance or materiality for the purpose of deciding what should be the reasonable rate of rent. In fact, it appears that what the coordinate Bench had held in respect of the other room in the said premises weighed greatly in the mind of the learned Court below. There was, in reality, no independent assessment of the reasonable occupation charges. I consider that the said exercise by the learned Court below is, therefore, vitiated by non-application of mind to the matters of record, which shows that the jurisdiction was exercised by the learned Court below with material irregularity vitiating the entire proceeding and occasioning to the petitioner grave miscarriage and failure of justice.

In such view of the matter, I choose to exercise the supervisory jurisdiction of this Court under Article 227 and set aside the Order No. 6 dated August 13, 2019 passed by the learned Additional District Judge, Fast Track Court-II at Sealdah in Title Appeal No. 17 of 2019 and remand the matter back to the learned Court below for deciding the matter afresh.

It is expected that the said decision would be taken expeditiously after considering the observations in this judgment about what the learned Court below is required to do and the said decision will be taken expeditiously preferably within a period of one month from the date of communication of this order since only consideration of the documents and recording of findings are to be done and no arguments are to be entertained, nor any further hearing in the matter.

With the aforesaid directions, this petition stands disposed of. There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.