Sambhulal Monilal vs Soil Survey Officer and Others

B. M. Mitra, J.—The writ petitioner is owner of Premises No. 207, Netaji Subhas Road, Calcutta (hereinafter referred to as the said premises). In terms of an Indenture of Lease dated 6.7.76 the said premises was leased out by the petitioner to the respondent No. 3 inter alia, on the terms and conditions contained in the said lease agreement. The respondent No. 1 is found in occupation of the said premises and from time to time the earlier lease agreement expiring, fresh lease agreement was entered into between the parties in terms of which the respondent No. 1 is in occupation of the said premises. The last of such lease agreement entered into between the parties covers the period from 1.4.84 to 31.12.88 and the same was executed on 14.9.88 by the finalisation of the revised rent which was fixed at Rs. 19,096/- per month payable to the petitioner by the respondents No. 1, 2 and 3. The said revision was made by respondents No. 5 and 6 in accordance with the guidelines of circulars issued by the respondent No. 5 which had been assigned the job of assessment/re-assessment of private buildings taken on lease by the Government of India. There was a reference to a circular dated 18.3.83 as appearing from annexure ''A'' to the affidavit-in-reply that the Central Government was to issue a standafised format of lease agreement. It was followed up by an issuance of a circular dated 9.5.83 and in terms of which the Central Government clarified that the re-assessment of rent cannot be treated as a fresh case of rent assessment. The same was followed up by issuance of another circular dated 13.6.85 laying down the guidelines for assessment of reasonableness for hiring of private premises. By the said circular it was also stated that reassessment of rent could be treated as a fresh case of re-assessment. This court has got an impression from the scrutiny of records that the rent of the said premises was Rs. 12,936.53 per month till 31.12.83. At its meeting held on 18.4.86 the Hiring Committee recommended that the rent payable by the Hiring Department to the petitioner be increased from 1.1.84 for a period of 5 years upto 31.12.88 from Rs. 12,936.53 p. to Rs. 19,095.67 p. per month. The said recommendation of the Hiring Committee was accepted and the rent was started to be paid at the enhanced rate of Rs. 19,095.67 p. per month. The same was followed up by execution of a lease agreement in the standard format on 14.9.88 in terms of which the Central Government agreed to pay rent at the aforesaid rate per month for a period of 5 years covering the total span of 1.1.83 upto 3.12.88. The occupation of premises by the concerned respondent was not vacated and it continued to enjoy the same. Thereafter, again a purported exercise was made for re-assessment of the rent payable by the Hiring Department with effect from 1.1.89. At its meeting held on 17.7.90 the Hiring Committee recommended a monthly rent of Rs. 10.40 per sq. ft. for the main building, Rs. 2.75 per sq. ft. for the garage and servant quarters at the rate of Rs. 2.25 per sq. ft. for the room in the occupation of gateman with effect from 1.1.89 for another period of 5 years. On the basis of the aforesaid recommendation of the Hiring Department a figure was calculated as Rs. 33.863.95 p. in terms of annexure ''H'' appended to the writ petition. The writ petitioner asked for giving effect to the aforesaid recommendation of the Hiring Committee by enhancement of the total occupation charges to Rs. 33,863.95 p. The same was replied to from the Hiring Department by a letter dated 21.4.94 alleging overpayment of the rent. The Hiring Department suo moto sought to re-assess the rent even in respect of the past period and intimated the writ petitioner that from 1.1.83 upto 1.8.87 the rent would be at the rate of Rs. 9.123/- per month and from 1.9.87 to 31.10.92 would be Rs. 11.425/- per month and from 1.11.92 to 28.2.94 would be Rs. 14.483/- per month and the writ petitioner was apprised that on the basis of the aforesaid reassessment of the rate of rent there was an alleged over-payment of Rs. 10.27.814/- for the period from 1.1.83 to 28.2.94 and the petitioner was asked to return the said amount. The rate is required to be arrived at from the agreement between the parties, namely, from payment and acceptance of the rent. It appears that the rent which was actually paid cannot partake of the character of a concluded contract. It is rather surprising as to how by a unilateral act on the part of the occupier, rate of rent can be revised with effect from 1.1.83 pursuant to a letter of intimation dated 21.4.94 as a result of which the agreement and/or the contract arrived at and given effect to has been sought to be reopened after a lapse of a period of about more than 13 years. The same was done without notice to the writ petitioner. By a purported reference to the letter dated 21.4.94 vide annexure ''G'' it unilaterally stopped payment of further rent to the petitioner. The same was followed up by issuance of another letter dated 9.1.95 vide annexure ''K'' to the writ petition and it tried to revise the monthly rent at the rate of Rs. 16,008.18 p. with effect from 1.1.89. The same also appears to be an exercise by way of a bid to give retrospectivity with regard to an effect of a unilateral decision so that it may be brought within the scope of its unilateral decision and the same can be made binding on the owner. If it is one of the elementary concepts of the principle of contract that it has to be proceeded by an offer to be followed by acceptance Here, all the purported decisions as reflected from the intimations appearing from annexures ''E'', ''G'' and ''K'' are by way of unilateral offer but not followed up by acceptance. Coupled with the same, there is an attempt to inject an element of retrospectivity so that it can cure the alleged mischief as contended by the contesting respondents which was allowed to be perpetrated for about a decade. There is a prayer in the body of the writ petition for withdrawal and/or revocation of the notices dated 31.3.94 vide annexure ''E'', a further notice dated 21.4.94 vide annexure ''G'' and a further notice appended to the petition dated 9.1.94 vide annexure ''K''. This court is at a loss to reconcile itself to the reality of the existence of the said purported notices and is pushed in the region of quandary to decipher the validity of the said notices for the reasons as it hinted at before. It is manifestly clear from the perusal and resume of the aforesaid annexures that by way of impugned notices a unilateral decision has been sought to be imposed on the writ petitioner and by way of arbitrary dictate rate of rent which has been acted upon has been attempted to be reopened with a view to make back calculation covering. a subsidiary period of time bordering on a decade. The aforesaid decisions have not emanated from a superior authority when the occupant have the locus standi of a tenant in occupation and it has to comply with the terms and conditions of the tenancy including the rate of rent acted upon and being given effect to. The aforesaid annexure cannot also being about live by way of retrospective operation at the behest of the concerned respondents to cure its imaginary lapses after its awakening from a deep slumber. Accordingly, this court does not find any elementary semblance of validity of the aforesaid annexure as referred to herein and they are found to be denued of any substance. As such, the annexure being respectively marked as annexure ''E'', ''G'' and ''K'' appended to the writ petition issued by the concerned respondents are liable to be struck down as inoperative.

So far as the aforesaid portion of the order is concerned the same does not arrogate into domain of the contentions and/or argument sought to be raised on behalf of the contesting respondents. After having increased the rate of rent and having slept over the matter and by dint of act of acquiescence because of payment the purported reference to the salient provisions of West Bengal Premises Tenancy Act about the ceiling of enhanced rate of rent is ex facie misconceived even when entering into the question of the applicability of the West Bengal Premises Tenancy Act at this stage and when the parties by way of exercise of their voluntary action have settled in effect to certain rate of rent, therefore the occupant of the premises cannot resile from the same and purported reference to the ceiling limit of the West Bengal Premises Tenancy Act in the said perspective appears to be a ruse and cannot be accepted. The contesting respondents cannot be permitted to take advantage of their own writing after having given the same the sanction of this stipulation in an agreement which has been given effect to. Accordingly this court issues a Writ of Mandamus whereby it directs the concerned respondents to revoke, rescind and/or cancel the said impugned notices and they are hereby struck down as invalid and inoperative in the eye of law.

It is needless to reiterate that in this case rent was paid at the rate of Rs. 19,096/- per month upto February, 1994 and thereafter the respondents have stopped making any payment of further rent with effect from March, 1994. Accordingly, the petitioner will be required to be paid at the rate as aforesaid which was last paid and the figure appears to be a consolidated figure for occupation charges up to date.

Now turning to the prayer a(ii) of the writ petition nation of rent payable in respect of the said premises in terms of the recommendation of the respondent No. 5 as contained in its minutes dated 17.7.90 which was intimated by the respondent No. 2 vide Letter dated 26.7.90, this court is. to consider the same. It appears from the averments contained in the writ, petition that in a meeting held on 17.7.90. the matter ''relating to enhancement of rent payable to the petitioner in respect of the period from 1 1.89 to 31.12.94 was considered. The respondent No. 5 recommended that the monthly revised rent be calculated at the rate mentioned vide its letter No. 2293/A-8(8/C)/AC-2/FR, dated 26.7.90 when the attention of the respondent No. 2 was drawn to the same wherefrom it appears from a communication made on the aforesaid dated 26.7.90 that the revised rent as mentioned therein was recommended. By a subsequent letter dated 10.8.94 the respondent No. 1 informed the petitioner that the case of revision of rent in respect of the said premises has been sent to the respondent No. 2 for approval as per recommendation of the respondent No. 5. The same was followed by a communication dated 13.1.95 that revised monthly rent in respect of the aforesaid premises has been fixed by the said respondent which could not withstand the test of scrutiny. This court instead of going into the detailed analysis of the said recommendations feels that in view of setting aside of the impugned Memos as aforesaid, there should be reconsideration of rent for the current priod by the Hiring Department being one of the agencies of the Central Government and the fresh circular is required, to be issued keeping in view the escalation of rate of rent and the prevailing market rent. It is well-known that the said recommending body is a body of the Central Government and the respondents in occupation being an agency of the Government is required to function and behave as a model tenant. In this context a reference may be made to the case of Kalyan Kumar Mollick v. State of West Bengal, reported in Calcutta Law times. 1998(1) H. C. page 272. where it has been held that in view of issuance of circulars by the State Government with regard to the revision of rent of the premises occupied by the State Government in terms of the aforesaid circulars the State was not entitled to discriminate between a landlord by giving benefit of the circulars in favour of some and depriving others. There is an imperative obligation on the part of the Central Government or the State Government to pursue an uniform policy and it cannot be allowed to set up double standards and while fixing the rate of rent, it must do it fairly as a model tenant. Either the Central Government or the State Government are required lo act not only fairly but their actions are required to be tested on the anvil of Article 14 of the Constitution which is considered as a touchstone. Even a reference of an earlier case of Dwarakadas Nokatia & Ors. vs. The Board of Trustees of the Port of Bombay, reported in AIR 1989 SC. P. 1642, the Supreme Court observed that the State should not act as private landlord and should not be guided by any profit making motive so as to unduly enhancing rent or eject the tenant. The Supreme Court held in unambiguous terms that if there are arbitrariness in State action, then, Article 14 springs in and judicial review is required to be made in the perspective of the same.

The stand taken by the contesting respondent that West Bengal Premises Tenancy Act is applicable in guiding governance of such tenancies and fixation of fair rent should be made in terms of Section 8 of the West Bengal Premises Tenancy Act where maximum ceiling has been prescribed under the statute. The said point cannot remain open for the respondents to be agitated in view of the concluded nature of contract to be discerned from the transaction of the parties by their act of mutuality by way of payment and acceptance of the rent last paid and accepted by the parties. That assumes the character of concluded contract and the same cannot be varied or altered at the behest of one of the parties without obtaining the concurrence of the other party in the contract. In the event of failure to make out any case of novation of contract, it can he safely arrived at that there was an agreement at a given point of time about the rate of rent fixed which was last paid by the occupier/ tenant, namely, the concerned respondent which was accepted by the landlord. After having-paid the rent at such charges, it is not open for the respondent to resile from the said accepted position by unilateral stand. The further plea sought to be resorted to on behalf of the tenant that municipal tax is to be segregated from the purview of the dimension of the rent is not entertainable in view of the proposition accepted to\\ the effect that rent is a generic term which includes within its ambit any charges paid on whatsoever account for occupation of the premises. As such, the writ petitioner is required to be paid the rent and/or occupation charges compositely at the last rate at which it was paid by the respondents occupant to the landlord petitioner and at such rate the figure is to by arrived at which from scrutiny or records appears to be Rs. 19,096/- per month and which is payable from the month of March, 1994 onwards up to date.

As regards the prayer (a)(ii) of the writ petition this court feels that instead of granting the relief in terms of prayer (a)(ii), this court does not propose to make the recommendation of the respondent No. 5 as final as appearing from its minutes dated 17.7.90 and initiated to the respondent No, 2 vide its letter No. 2293/A-8.............. dated 26.7.90 as the same is recommendatory in character. In view of certain defence taken and the pleas resorted to by the concerned respondents about their recommended figures, the said recommendation is not thrust upon on the parties mainly reflected from the minutes of the meeting held on 17.7.94. The said expert body is afforded with another opportunity to make recommendations by a reasoned order fixing rate of rent under different heads keeping in view the role of the tenant as a model tenant being a part and parcel of the Central Government and its is expected to maintain parity with regard to the rates fixed about occupation charges and/or rents of other tenants who are occupying, namely, the offices of the Central Government and the State Government, the properties under private landlords and there should be no glaring discrimination in the pattern of fixation of rent. There should be an uniformity of the pattern as the reasoning offered by such expert- body is to be tested by the touchstone of Article 14 of the Constitution of India and the same should not smack of any element of arbitrariness and discrimination. An opportunity is being given to the concerned authorities and their expert bodies to arrive at at figure by formation of their subjective opinion after having the same based on objective considerations, namely, the equivalent spaces and the properties held under tenancy by the Central Government in similar kinds of places which can be taken into account as compatible units. The concerned expert body also should not indulge in exercise of arbitrary proclavity in arriving at a random conclusion with preconceived biased or prejudiced. Therefore, as prayer (a)(ii) of the writ petition is not entertained at the moment but it is made clear that such recommendations are required to be made and given effect to within a period of 6 (six) months from the date of this order and such revised rate should come into effect from 1.7.99. Therefore, prayer (a)(ii) though not entertained but it is modulated to the extent and in the way as indicated herein.

Accordingly, the writ petition succeeds to the extent as revealed from this order and this court issues a Writ of Mandamus calling upon he concerned respondents to pay the rent and/or occupation changes at the consolidated rate of Rs. 19,096/- per month from March, 1994 onwards upto the current period and it will be required to go on paying the concurrent dues during the currency of the month for which it fails due and first of such payment of monthly dues will be required to be paid within 15th of March, 1999. So far as the backlog of arrears are concerned, they are required to be liquidated either in instalments or in lumpsum together with an award of interest on the aforesaid amount at the rate of 8% per annum. The writ petition accordingly stands allowed to the extent as indicated hereinabove.

All parties are to act on a signed copy of the operative part of this judgment on the usual undertaking.