S.K. Chatterjee and Another vs Residence Ltd.

Lahiri, J.—The Karnani Trust Estate is the owner of premises No. 209, Lower Circular Road, which consist of 205 flats of various types. On these 205 flats, the Residence Ltd. is the tenant of the first degree under the Karnani Trust Estate in respect of 145 flats. The petitioners S. K. Chatterji and R. W. Dease in Civil Revision Cases Nos. 1711 and 1712 of 1952, respectively are tenants of the second degree in respect of two flats under the Residence Ltd. In 1950, the Residence Ltd. filed an application for fixing the standard rent payable by it to the Karnani Trust Estate for the 145 flats held by it. This gave rise to Rent Control Case No. 1576B of 1950. The learned Rent Controller fixed the standard rent against which the owners, Karnani Trust Estate, filed an appeal which was Rent Control Appeal No. 840 of 1950. In fixing the standard rent payable by the Residence Ltd., the appellate court divided the different flats into seven types and fixed the standard rent as the sum total of rents of each type of flat. In these two Rules we are concerned with what has been described as flats of the "V 3 type" and "single type" because it is admitted that S. K. Chatterji is a sub-tenant of a flat of "V 3 type" and R. W. Dease is a sub-tenant in respect of a flat of the "single type". In Rent Control Appeal No. 840 of 1950 the standard rent payable by the Residence Ltd. to the owner was fixed at Rs. 201-13-2 pies and Rs. 92-14-7 pies respectively in respect of each flat of the "V 3 type" and "single type". The proceedings out of which the present Rules arise were started by the petitioners. S. K. Chatterji and R W. Dease for fixing the standard rent payable by them to the Residence Ltd. In fixing the standard rent in these two cases, both the courts below have taken the rent payable by the Residence Ltd., to the owner as the basic rent and have allowed an increment of 61/4 per cent, under paragraph 4 of Schedule A. To the rent thus arrived at, the appellate court has added the entire charge for sweeper''s services and fan hire at the rate of Rs. 10 for each fan per month. It may be mentioned that in respect of these two items the Rent Controller allowed only half the charge for sweeper''s services on the ground that the sweepers also cleansed the common corridor and the staircase and as such they also rendered personal services to the Residence Ltd. The learned Rent Controller also totally disallowed the fan hire upon the view that no charge had been fixed for the supply of fans by the owner as against the Residence Ltd. As a result of the appellate judgment, the standard rents of S. K. Chatterji and R. W. Dease have been fixed respectively at Rs. 263-3 and Rs. 114-10-6 pies as against the contractual rents of Rs. 375 and Rs. 180. It is against this judgment that the petitioners have obtained the present Rules. Mr. Gupta, appearing in support of the Rules, argued that the judgment of the appellate court in Rent Control Appeal No. 840 of 1950 not being inter partes was not admissible in evidence in these cases and for this proposition he relied upon a Bench decision of this Court in the case of Gouri Sankar Show Vs. Anil Chandra Majumdar, . This decision, however, does not support the broad proposition which has been formulated before us by Mr. Gupta. In the judgment of Chakravartti, C. 3., at page 433. the following passage occurs: "All that the judgments can be taken legally to prove is that a particular amount had been fixed as the rent for a particular premises and nothing more." Sinha. J., makes the following observation at page 434 : "The judgments may be judgments in rem'' to prove that the premises had been standardised at a particular rent, but the facts as to the measurements or the amenities, etc., are not evidence...." In the present case, the judgment in Rent Control Appeal No. 840 of 1950 was admitted into evidence only for the purpose of proving that the rents of the 145 flats held by the Residence Ltd, were standardised at particular rates by the appropriate authorities. The decision cited by Mr. Gupta supports the view that the judgment was admissible for this purpose. We accordingly overrule the first point raised by Mr. Gupta in support of these Rules But before we dispose of this point, we have to observe that if we give effect to this contention of Mr. Gupta, the result will be that not only the judgment in Rent Control Appeal No. 840 of 1050 will go out of evidence but also all other judgments which were filed by the petitioners themselves before the Rent Controller to prove their case will also be ruled out on the same ground with the result that there would be nothing before the Court to justify a variation of the contractual rents and the applications filed by the petitioners would have to be dismissed. As however we do not accept the argument) which has been put forward by Mr. Gupta as to the admissibility of this judgment, we need not consider this point any further.

Mr. Gupta argued in the second place that the courts below were not justified in allowing an increment of 61/4 percent, upon the standard rent and placed reliance upon the decision of this Court in the case of Hind Estate Ltd. Vs. Grant James Ltd., . In this case Chakravartti, C. J., made the following observation at page 571 : "It is altogether erroneous to suppose paragraph 4 of Schedule A prescribes a method of assessment for cases where the applicant for the standardisation of rent is a sub-tenant. That paragraph only prescribes a maximum limit which the standard rent fixed for the sub-tenant must not exceed. It comes into operation only after the standard rent has been fixed by the application of principles to be found in other provisions of the Act and it is to be applied by way of a check in order to see that the standard rent, otherwise determined, does not go beyond that maximum prescribed by the paragraph.

At page 573, his Lordship observes as follows : "Paragraph 4 of Schedule A, however, requires the Rent Controller authorities first to determine the standard rent payable by the intermediate tenant in respect of the premises concerned." The combined effect of these two passages is that in a case where the sub-tenant has applied for standardising his rent, the Rent Controller is first to determine the standard rent payable by the tenant of the first degree and then to ascertain the rent payable by the sub-tenant and if the rent of the sub-tenant exceed the rent of the tenant of the first degree by more than 61/4 per cent, the rent of the sub-tenant is to be scaled down. Applying this principle to the facts of the present cases, it appears that the standard rent of the tenant of the first degree had already been determined in Rent Control Appeal No. 840 of 1950 and the applicants placed no materials before the Rent Controller for fixing their standard rents u/s 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. In these circumstances, the Rent Conrtoller had no option but to allow an increment of 61/4 per cent, upon the standard rent which was fixed in respect of the tenant of the first degree. For these reasons, we are unable to hold that the petitioners have been prejudiced in any way or there has been any illegality or material failure of justice on account of the fact that an increment of 61/4 per cent, has been allowed upon the standard rent fixed in respect of the tenants of the first degree.

The third point raised by Mr. Gupta is that the charges for sweepers'' services cannot be added to rent because standard rent has to be fixed in respect of premises as defined by section 2(8) of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 and as sweepers'' services cannot be said to be a part of the premises the charges for such services cannot be taken into account in fixing the standard rent. This argument, though ingenious, is without substance The word "rent" has not been defined by the Act and in the absence of any definition we must take it to mean any amount which is agreed to be paid by the tenant as consideration for the occupation of the premises. In the cases before us, the sub-tenants in their oral evidence admitted that they agreed to pay the contractual rents including charges for furniture and services, If that be so, the charges. for sweepers'' services were treated as part of the rent under the contract of tenancy and the court of appeal below was right in accepting it as a part of that rent. The view which we have taken is supported by the judgment of this Court in the case of Residence Ltd. v. Surendra Mohan Banerji (3) (87 C.L.J. 322).

The next point which has been raised before us is that in assessing the fan hire the court of appeal below has not followed the provisions of the proviso to paragraph 4 of Schedule A to the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. This proviso requires that when any furniture is supplied for the use of a sub-tenant by the tenant of the first degree at his own cost, he is entitled to add 10 per cent, of the cost of the furniture and to recover it in certain instalments. Mr. Gupta argues that as in these cases the furniture, namely, the fans, were not supplied at the cost of the tenants of the first degree, the proviso to paragraph 4 does not apply and therefore the landlord has no right to recover it from the sub-tenants. It is quite clear that the proviso to paragraph 4 of Schedule A has no application to the circumstances of the present cases because it has been found that the fans were supplied to the Residence Ltd. at the cost of the owners and the owners were realising a fixed charge at the rate of Rs. 10 per month per fan from the Residence Ltd. We do not, however, think that because the proviso to paragraph 4 of Schedule A does not apply, the landlord has no right to recover the fan hire as a part of its rent. Upon the findings arrived at by the lower appellate court, the tenant of the first degree has to pay the owner at the rate of Rs. 10 for each fan every month as fan hire. Therefore, under the general law, the tenant of the first degree has a right to recover it at that rate from the sub-tenant. Mr. Gupta has argued that the right which the tenant of the first degree may have under the general law cannot be enforced in a proceeding under the Rent Control Act. We are afraid, we cannot give effect to this argument. From the oral evidence of the petitioners in both these cases, it is quite clear that the charges for fan hire were included as part of the rent at the time when they came to occupy the premises and therefore these charges can legitimately be treated as part of the rent. The proviso to paragraph 4 lays down the mode of realisation of the price of the furniture when it is supplied at the cost of the tenant of the first degree but where, as here, the tenant of the first degree has to pay the owner a certain amount as hire for the furniture, its right to realise it from the sub-tenant has not been taken away by the proviso to paragraph 4 of Schedule A. For these reasons, this point also must be overruled.

Another point raised by Mr. Gupta is to the effect that the standard rent fixed by the appellate court in Rent Control Appeal No. 840 of 1950 in respect of every type of flat which was let out to the Residence Ltd. cannot be said to be the standard rent of the tenant of the first degree, namely, the Residence Ltd. We are unable to accept this argument as sound. In arriving at the standard rent payable by the Residence Ltd. in respect of the 145 flats which constituted a single tenancy the court had naturally to ascertain the standard rent payable by each flat and to determine the standard rent payable by the Residence Ltd. by arriving at an aggregate of the rents fixed in respect of each flat. For these reasons we hold that the standard rent fixed for each type of flat in Rent Control Appeal No. 840 of 1950 is the standard rent for that flat and is payable by the Residence Ltd. to the superior landlord.

All the points which have been raised in support of these Rules are thus found to be without substance but we have to notice that in Civil Revision Case No. 1711 of 1952 the standard rent has been fixed at Rs. 263-3 which includes a fixed sum of Rs. 40 as hire charges for four fans. It is said that the number of fans supplied to a sub-tenant may vary from month to month. So it is not proper to fix the fan-hire at a consolidated sum of Rs. 40. We therefore vary the standard rent in Civil Revision Case No. 1711 of 1952 to Rs. 223-3 plus Rs. 10 for each fan every month which may be supplied to the sub-tenant. So also in Civil Revision Case No. 1712 of 1952 a fixed sum of Rs. 10 has been added as the fan hire for one fan and the sum of Rs. 114-10-6 pies has been fixed as the standard rent. It may be that no fan or more than one fan has been supplied to a sub-tenant in a particular month. For this reason, we also alter the standard rent in this case to Rs. 104-10-6 pies plus Rs. 10 for each fan every month which may be supplied to the sub-tenant. Subject to the modifications indicated above, these two Rules must be discharged with costs.

Mitter, J.

I agree.