Narendra Lal Dutta Banik vs Sarojendra Nath Ghosh

B.N. Maitra, J.—The tenant filed en application u/s 8(1)(e) of the West Bengal Premises Tenancy Act for fixation of fair rent of the disputed premises. The landlord opposite party filed an objection. The learned Rent Controller was of opinion that since the applicant petitioner''s tenancy had already been determined and a regular suit for ejectment filed, the application for fixation of rent was not tenable In law. An appeal was preferred without any success. Hence this revisions'' application. It has been contended on behalf of the tenant petitioner that in the case of Dean v. Bruce In 1951 All. E. R. 926 at page 928 Lord Denning has taken the view that once a contractual tenancy is at an end, but the tenant continued in possession on the footing of rent Acts, the rent of the house is regulated by the Act and the question of estoppel is out of the way. Reference has been made to the case of Karnani Industrial Bank vs. Satyanitanjan in L.R 55 Indian Appeals 344 at page 350 to show that under the Calcutta Rent Act, 1920, the Controller has jurisdiction to fix standard rent of the premises, though on the date of the application the tenancy had been determined. In order to give any working effect to the Act, the words landlord'' and tenant'' must include ex-landlord and ex-tenant. In the case of Moni Jain vs. Raja Ram, in AIR 1980 SO 299 at page 300 it has been stated that in view of East Punjab Urban Rent Restriction Act, the word tenant includes the quondam tenant continuing In possession. An ex tenant is clothed with all the lights of a regular tenant. Consequently he can apply for fixation or rent. The contrary view taken by learned Single Judge in the case of Sudhir vs. Ashutosh, reported in 1980(1) CLJ 36, which was also referred to by the learned appellate court, cannot be accepted.

The learned Advocate appearing on behalf of the opposite party has stated that after service of a notice of ejectment, the landlord filed an ejectment suit. The tenant filed an application u/s 17(2) of the Act. On 13-9-1980 that application was disposed of. A revisional application was then preferred and that matter has since been disposed of by the High Court. On 11.3.1978 the tenant filed the present application u/s 8 of the Act for fixation. of Fair rent. The view taken by the learned Single Judge in the case of Sudhir Kumar vs. Ashutosh (supra) Is correct because of the Supreme Court decisions of Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, , In The Calcutta Credit Corporation Ltd., and Another Vs. Happy Homes (P) Ltd., and Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, . The Supreme Court has pointed out that after the tenant''s tenancy is determined by a notice to quit, he merely becomes a statutory tenant because the contractual tenancy comes to an end the statutory tenant has no right to ask for fixation of fair rent within the meaning of section 8 of the Act

The three Supreme Court cases cited on behalf of the opposite party do not lay down any contrary proposition. Those cases do not Indicate that after the tenant''s tenancy is determined on the footing of a notice to quit, he cannot pray for fixation of fair rent u/s 8 of the Act or his Rights regarding the property in question vanish. Let It be seen what the Supreme Court has stated in the case of Damadilal and Others Vs. Parashram and Others, at pages 2234 and 2236. It will appear therefrom that a tenant whose con tractual tenancy has been determined, but who is protected against eviction by the statute, has a right to the property It is not true that with the determination of the tenancy the tenant''s estate disappears. Further, there is a Bench case of our Court, viz., the case of Deoki Prosad Khaitan Vs. Dulichand Asopa and Others, at page 536 to show that the definition of tenant includes ex tenant In possession and whose tenancy has been determined. The aforesaid decisions of the Supreme Court and the Bench case of our High Court were not placed before the learned Single Judge ill the aforesaid case of Sudhir vs Ashutosh (supra). Consequently, it is not necessary to refer this case to the division Bench.

A right has been given to the tenant also u/s 10 read with section 8 of the Act to apply for fixation of fair rent. Those provisions do not give any indication that a statutory tenant has been divested of such right Section 2(h) of the Act clearly says that tenant includes a person who continues in possession after the termination of his tenancy Since according to the definition of the word ''tenant'' in section 2(h) petitioner is a tenant of the disputed premises and, inasmuch as he is possessed of tenant''s estate in that property, in view of sections 10 and 8 of the Act, It must be held that he can apply for fixation of fair rent of the disputed premises though his tenancy has been deteimined by a notice to quit.

The learned Tribunals below acted with material Irregularity in turning down the prayer. So, for the ends of justice the matter must be remitted to the learned Controller for disposing of the petitioner''s application according to law. The Rule is made absolute and the Impugned order set aside There will be no order as to costs.