Sm. Anita Dasgupta vs A.C. Sett

Prabir Kumar Majumdar, J.—This revisional application is at the instance of the landlord and is directed against the order No. 18 dated September, 22.1983 passed by the Learned Sub-Ordinate Judge in the title suit no. 84 of 1982 instituted by the landlord, who is the petitioner before us, for eviction of the opposite party as also for mesne profits. The defendant opposite-party was inducted as a monthly tenant under the plaintiff from 1st May, 1978 in respect of flat No. A/1/5 of the premises no. 24, Mandevilla Gardens, Calcutta together with a parking space at a monthly rental of Rs. 850/- per month and Rs. 350/- on account of fittings, fans and service charges per month according to English Calender. According to the landlord petitioner the tenant opposite-party has not paid any rent and service charges from January, 1981. A suit for eviction being the Title Suit No. 84 of 1982 was filed against the opposite party on the ground of default.

In the said title suit, the opposite party made two applications, one u/s 17(2) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act) for adjudication of rent as there was a dispute between the parties regarding the rate of rent and the arrears of rent, and the other application u/s 17(2A) (b) of the said Act praying for permission to deposit the amount of arrears of rent found due and payable in monthly instalment of Rs. 400/- per month.

The said two applications made u/s 17(2) and 17(2A)(b) of the said Act were heard together and were disposed of by one order being the impugned order no. 18 dated September 22,1983.

The case of the tenant in his said application u/s 17(2) of the said Act was that he was a tenant in respect of the suit premises under the plaintiff at a rent of Rs. 850/- and service charges for fans and fittings at the rate of Rs. 350/- per month payable according to English Calendar. The further case of the tenant was that in or about December 1980 the tenant requested the landlord to remove the fans and fittings and to withdraw the service charges with effect from 1st January, 1981 as he did not intend to have such services.

The Landlord filed a written objection to the said petition of the tenant contending, inter alia, that the rent payable by the tenant was Rs. 1200/- per month which included the service charges not only for the fans and fittings but also for other various amenities agreed to be provided with the flat. The aforesaid service charges of Rs. 350/- per month was part of the rent and the tenant did not have any right under the agreement governing the tenancy to say that he did not want any service charges provided for the flat. The landlord also denied that the tenant in or about December 1980 requested the landlord to withdraw the service charges from January 1, 1981.

The landlord also filed objection to the tenant''s said petition u/s 17(2A) (b) of the said Act.

The learned Sub-ordinate Judge found and determined that the rent of the premises was Rs. 850/- per month. The learned Judge also found from evidence and also rent receipts exhibited that the rent in respect of the said flat was Rs. 850/- per month and the service charges for fans and fittings etc. Rs. 350/- per month, which he held, was no part of the rent of the flat. The learned Judge allowed the said two applications on contest and directed the tenant to deposit arrears of rent at the rate of Rs. 850/- per month along with statutory interest as law provides in two instalments'' with current rents.

The landlord being aggrieved with, the said order of the Learned Sub-ordihate Judge has come up before us with this application for revision. This application is being heard upon notice to and oh contest by the tenant-opposite party.

Mr. Asis Bagchi, appealing for the landlord-petitioner contends that the tenant opposite party agreed to take the said flat being A/1/6 of the premises no. 24, Mandeville Gardens at an aggregate rent of Rs. 1200/- per month according to English Calendar being split into two a sum of Rs. 850/- for the use and occupation of the said flat and Rs. 350/- on account of service charges. His submission is that the said sum of Rs. 350/- and the sum of Rs. 850/- should be taken as rent for the said flat.

Mr. Bagchi relying on a few decisions of this Court and also Supreme Court has argued that the term rent is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only, of the building and its appurtenance but also all furnishing, electric installations and other amenities agreed to be provided by the landlord. It is also the contention of Mr. Bagchi that it is no denying the fact that the opposite party agreed to and paid Rs. 1200/- per month until January, 1981 for the use and occupation of the flat and the service charges relating to the said flat as a tenant thereof. It is his further submission that such sum of Rs. 350/- was to be paid to the landlord on account of the services charge in respect of the flat in his occupation, and not to other independent agency, and as such the said sum cannot be but a part of rent for the said flat.

Mr. Bagchi in support of his contention that service charge is part of rent cites a decision of a learned single Judge of this Court in the case of Usha Ranjan Bhattacharya vs. Mahalakshmi Thacker & Anr. reported in 1975(1) Cal. cutta Law Journal at page 204. In this case the monthly rent payable by the tenant for the premises in his occupation was Rs. 99|- plus Its. 11/- per month on account of lift, scavenging charges, water and other services. The learned Judge in this case after construing the rent bill and a letter from the tenant to the landlord found that the tenant had agreed unequivocally to pay an amount of Rs. 110/- per month as monthly rent without any reservation. On this finding His Lordship held that the additional payment made for the services rendered by the landlord should be included in the quantum of rent.

Mr. Bagchi next cited a Bench decision of this Court in the case of Parul Banerjee vs. Ananda Kumar Agarwalla, reported in 1979(2) Calcutta Law Journal at page 297. In this case the tenant contended that the rent was Rs. 300/-per month and Rs. 250|- per month was for the maintenance charges. The landlord, however, contended that the rent was Rs. 550| in respect of the premises let to the tenant. The learned Subordinate Judge came to a finding that the rent was Rs. 300| and not Rs. 550|- as alleged by the landlord. On a revision application by the landlord against the said finding of the learned Subordinate Judge, their Lordships held that the said sum of Rs. 250|- payable by the tenant to the landlord on account of maintenance charges should be included within the amount of rent. Their Lordships agreeing with the views of the Learned Single Judge of this Court expressed in the case of Usha Bhattacharjee (supra) observed that the ''rent'' meant and included the whole amount agreed to be paid as consideration for the occupation of the premises.

Lastly, Mr. Bagchi cited a Supreme Court decision in the case of Karnani Properties Ltd. Vs. Augustin, . The Supreme Court in that case was called upon to consider the question as to whether the provisions of Section 9 of the West Bengal Premises Rent Control (Temporary). Provisions Act, 1950 apply to the premises the Subject-matter of the proceedings before the Supreme Court. Section 9 of the said 1950 Act provided for fixation of standard rent. In this case before the Supreme Court a clause in the tenancy agreement was to the effect that the tenant should occupy the flat paying therefor a monthly rent of Rs. 100/- including hire of 2 A. C. fans and extra Government duty etc. and the said rent was inclusive of charges for the current for fans, lights, radio, electric stove etc. It was argued in that case that the tenancy comprised not only buildings and structures and permanent fixtures but also the supply of electric power without any fresh charge for the same. Interpreting the said clause the supreme Court observed that the term ''rent'' was comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenance but also of furnishings, electric installations and other amenities agreed between the parties to be, provided by and at the cost of the landlord.

Mr. R. N. Mitra, appearing for the opposite party contended that the parties clearly contemplated that the said service charge at the rate of Rs. 350/-per month would never be a part of the rent which by agreement had been fixed at Rs. 850|- per month. This would be apparent from the rent receipts issued by the landlord to the tenant. Mr. Mitra submits that it would appear from the rent receipt exhibited in the court below that the rental of the premises is Rs. 850|- and for fittings and rental of fans and for service charges the amount fixed was Rs. 350|- was hire charges for the supply of or for providing fans, fittings and service charges to the flat let out to the tenant. Further, he submits that the tenant was in no manner obliged to demand such service charges or supply of fans and fittings nor was the landlord obliged to provide such amenities with the letting of such flat. Mr. Mitra also contends that, in fact, by a letter in or about December, 1980, the tenant requested the landlord to withdraw such service charges from 1st January, 1981.

Referring to the cases cited by Mr. Bagchi, Mr. Mitra submits that in those cases the courts after examining the rent receipts and tenancy agreement came to the finding that the additional amenities agreed to be provided by the landlord were to be taken as part of rent. In the case of Usha Ranjan Bhattacharya (Supra) the monthly rent was Rs. 99|- plus Rs. 11|- for, scavenging charges, supply of water etc. and the aggregate sum of Rs. 110|- was found to be the rent for the premises. In the case of Karnani Properties Ltd. (Supra) there was a clause in the tenancy agreement to the effect "that tenant shall occupy the said flat paying therefor unto the Bank a monthly rent of Rs. 100/- including hire of 2 A. C. Fans......Therefore, interpreting the said clause the Supreme Court held that the rent was comprehensive enough to include such amenities. He also contends that Bench decision of this Court followed the said Supreme Court decision in coming to the conclusion that the term ''rent'' included the whole amount agreed to be paid by the tenant to the landlord. Therefore, all these cases are clearly distinguishable. We have carefully considered the rival contentions put forward before us. In the case of Karnani Properties the Supreme Court pointed out that the term ''rent'' had not been defined by the Act. It was further held that it should be interpreted rather widely to include all that is payable as consideration for the tenancy. In the present case no doubt the landlord realises two amounts separately and under two receipts. One amount is being realised as rent and there is no dispute that the same is rent. But the other amount is said to be the service charges. If such service charges are really independent of the tenancy-independently provided and paid for then of course it may very well be said to be not a part of the rent even on its wider connotation as laid down by the Supreme Court. Therefore, in our opinion the true test for us is to find out whether the services which are charged for are the independent services rendered and enjoyed not as part of the tenancy. Applying this test to the facts of the present case, we cannot but accept the contention of Mr. Bagchi. Here, we find that service charges are payable for the fittings and fans which expressly include water taps, commodes, cisterns, water basin sinks, electric fans etc. all fixed in the suit premises. It is obvious that these are really integrated part of the tenancy which cannot be separated therefrom. It is true that the tenant defendant offered to forego such services, but that is of no consequence because they were not the subject matter of an independent settlement and it was never intended to be so. Such services being integral part of the tenancy, whatever is payable on that account, would be rent notwithstanding the fact that it is separately paid for. Such separation is more notional than real. In the case of Karnani Properties, it is no doubt what was payable was amount inclusive of all charges, viz-rent electricity etc which in our case the amounts have been separately specified. But that in our opinion makes no difference. So long the sum or sums payable for all that is payable for tenancy, the same shall be rent in the wider sense. What really constitutes the tenancy is a matter of agreement between the parties to be determined with reference to their mutual intention. All things which are intended to be enjoyed as part of the tenancy would be part and parcel of the tenancy and all sums payable on that accounts would be rent. (See Sidney Housing Co. Ltd. Vs. Fishbury Borough Council 1962(1) All E. R. 460, R. G. Ram Chandran V. Royal & Co. All India Rent Control Journal 736 and Khem Chand Dayal Ji and Co. Vs. Mohammad Bhai Chand Bhai, ). In the result, we must hold that the learned Judge misread the import of the term ''rent'' in holding that a sum of Rs. 350|- payable as service charges is not'' rent. We, therefore, set aside the order impugned and hold that the two sums Rs. 850/- and Rs. 350/- i.e. the sum of Rs. 1,200/- is the rent. He should now calculate the arrears afresh along with interest and direct payment thereof on such instalments as he may consider just and proper. The revisional application is disposed of accordingly.

Anil K. Sen, J.

I agree.