Punamchand Mohta and Another vs S. Mukherjee and Another

Bose, J.—This is an application under Article 226 of the Constitution for a rule on the Respondent No. 1, the Additional Rent Controller, Calcutta, to, show cause why an order made by him on the 3rd March, 1951, in case No. 182A of 1951 should not be cancelled and why certain directions given by him should not be set aside. The petitioners are the owners of premises No. 30/31, Kalakar Street, Burrabazar, Calcutta. In October, 1950, the respondent No. 2, a firm known as Rikhab Chand Milopchand, agreed to take as monthly tenant at a rent of Rs. 140 per month one shop room in the first floor of the said premises.

On the 9th October, 1950, the respondent No. 2 made an application to the Rent Controller, Calcutta, for fixation of standard rent u/s 9 of the West Bengal Premises Rent Control Act, 1950 (Act XVII of 1950), and asked for fixation of rent at Rs. 140 per month inclusive of taxes. This application was registered as case No. 2358A of 1950.

On or about the 14th October, 1950, a joint consent petition was filed before the Rent Controller to the following effect :--

By consent of parties standard rent in respect of one shop room (Gaddy) No. 42 on the first floor of the premises No. 30/31. Kalakar Street, Calcutta, be fixed at Rs. 140 per month inclusive of taxes with effect from 12-10-50.

The respondent No. 1 on the 14th October, 1950, made the following order on the said petition :--

Applicants'' pleader Babu S. K. Bose present. Opposite party''s Advocate Sri M. P. Khettry 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.

Thereafter on the 20th January, 1951, the respondent No. 2 filed another application under sections 7 and 9 of the Rent Control Act of 1950 (Act XVII of 1950) for fixation or refixation of the standard rent. The petitioners objected to the jurisdiction of the Rent Controller to entertain this second application, as the standard rent had already been fixed by the consent of parties on the 14th October, 1950.

On the 3rd March, 1951, the respondent No. 1 overruled the objection of the petitions-landlords and passed an order to the effect that he had jurisdiction to entertain the application and he gave directions for inspection of the premises.

The petitioners thereupon moved this Court for the reliefs stated above.

It is contended by Mr. B. C. Dutt, the learned Counsel for the petitioner, that the second application is not maintainable by reason of the principles of Estoppel and Res Judicata, and as there has been a fixation of standard rent already on the 14th October, 1950, the Rent Controller has no jurisdiction to refix the standard rent except under the circumstances mentioned in clauses (b), (c), (d), (e) and (f) of section 9 and section 17 of the Act.

Mr. Dutt refers to Rule 9, of the Rules framed by the Government u/s 47 of the Act and submits that all the provisions of the CPC including section 11 and Order 23, Rule 3, apply to proceedings under the Rent Control Act.

In my opinion Rule 9 cannot be interpreted to have such a wide scope as is contended for by Mr. Dutt. The Rule merely contemplates that where an inquiry is actually started by the Rent Controller for fixation of standard rent then he should follow the procedure as laid down in the CPC for trial of suit but in matters of recording evidence he may record only the substance of the evidence. The Rule does not say anything more than that. As to which particular provisions of C. P. C., are applicable for purposes of the Rent Control Act the different Rules specifically provide for that.

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 Dot 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. On the other hand, his affidavit is otherwise. Moreover, before section 9(g), can be invoked it must be shown that no other provisions of the Act apply to the premises in question. There is nothing to show this either. The Scheme of the Rent Control Act in the matter of fixation of standard rent appears to be that the Rent Controller alone has jurisdiction and power to ascertain or fix the standard rent in the manner laid down in the Act. The parties i.e., the landlord and the tenant, cannot by any agreement between them fix the standard rent for the purposes of the Rent Control Act. It is the sole and exclusive function of the Rent Controller to determine the standard rent and he must do so according to the procedure prescribed in the Act and in no other manner. He is a creature of Statute and his powers must be exercised in the manner indicated in the Statute.

In construing the English Rent Restriction Act, 1923, the Court of Appeal in England in the case of Griffiths v. Davies [(1943) K. B. 618] has held that the principle of estoppel does not apply where to give effect to it would be to go counter to some statutory direction or prohibition. The whole scheme of the Act is to prevent a tenant from coming to any agreement or doing anything which shall increase the standard rent in such a way that his conduct or agreement will have any effect whatsoever on that figure. See also Solle v. Butcher [(1950) 1 K. B. 671 at 688-689].

In the West Bengal Act (Act XVII of 1950), section 3 of the Act provides that "any amount in excess of the standard rent of any premises shall be irrecoverable notwithstanding any agreement to the contrary". The petitioners cannot be allowed to set up an estoppel which will invalidate the provision in the Statute.

Upon a consideration of the facts and circumstances of this case I am of the view that there was no fixation of standard rent by the respondent No. 1 on 14th October, 1950, and therefore the second application by respondent No. 2 is maintainable and the respondent No. 1 has jurisdiction to entertain and deal with the same.

Mr. A. K. Sen has contended that the Rent Controller has the power to re-fix standard rent even if he has already fixed the rent once. This contention cannot be accepted. The power to refix the standard rent can arise under circumstances mentioned in section 9(6), (c) and (d) or in section 17 of the Act. Except in these cases there does not appear to have been any power conferred on the Rent Controller to refix the standard rent once fixed by him in accordance with the provisions of the Act XVII of 1950.

It has been held by this Court in a case governed by the Calcutta Rent Act, 1920, that a decision fixing the standard rent attached to the premises and not to the persons or parties and therefore such a decision is a judgment in rem and not in personam. (See Ahamuddin v. Banku Behary [31 C. W. N. 308 at 309].

I have already held that there was no fixation of standard rent within the meaning of the Act in case No. 2358A of 1950, which was disposed of on the 14th October, 1950. In the circumstances no question of re fixing standard rent arises so far as the second application which is registered as case No. 182A of 1951 is concerned. In the result the petition fails and the Rule must be discharged. The petitioners must pay the costs of the respondent No. 1 who alone has appeared before me and contested this application.