State of West Bengal vs Benode Behari Gupta

Mookerjee, J.—Premises No. 2, Motilal Nehru Road, Calcutta, was requisitioned under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947, and possession was taken on the 16th December, 1949. As there was no agreement between the owner and the requisitioning authority as to the monthly compensation payable, a reference was made to the Arbitrator u/s 11 of the Act above mentioned. Evidence was led on behalf of the claimant as also the State before the Arbitrator. According to the State the proper monthly compensation is to be Rs. 250 per mensem; according to the claimant Rs. 500; and the Arbitrator has fixed Rs. 423-8 as monthly compensation inclusive of taxes and costs of normal repair. The State has come up on appeal, and before us it has been contended that the monthly compensation should have been fixed at Rs. 250. Cross-objection also has been filed on behalf of the claimant, but the same was not pressed. The compensation as fixed by the Arbitrator was on the basis of rent which had been fixed by the Rent Controller in respect of the same premises. It has been contended before us that the order passed by the Rent Controller after the requisition had been given effect was not binding on the State, and in any view, the evidentiary value of such fixation was very little. It will be necessary to refer to the circumstances under which this rent was fixed by the Rent Controller before we deal with the legal objections raised before us.

The premises in question had at the time of the requisition been in the occupation of a tenant. He was paying rent at the rate of Rs. 170 per month. Before the date of requisition in March, 1949, an application was filed by the landlord for the standardisation of rent with effect from the date of the application. This application remained pending either before the Rent Controller or after its disposal by the latter before the Additional District Judge in appeal till the 25th May, 1950. It was on this day that the standard rent was fixed at Rs. 385 per month in accordance with the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, with retrospective effect from April, 1949.

As already stated, the premises had in the mean time been requisitioned and possession was obtained by the State on the 16th December, 1949. The tenant had not during the hearing of the appeal before the Additional District Judge entered appearance although he had contested the claim of the landlord before the Rent Controller. Subsequently a suit for the recovery of arrears of rent was filed by the landlord against the tenant who had been in occupation up to the date of requisition. In this suit the claim of the landlord was decreed and at the rent fixed by the Additional District Judge from April 1949, to the 16th December, 1949.

It is urged on behalf of the State by Mr. Guha that the order passed by the Additional District Judge under the Rent Control Act after the tenancy had been terminated as a result of the requisition order was not binding on the State. Reliance was placed on a decision by a Division Bench of this Court in Satya Narayan Shaw v. The Karnani Industrial Bank Limited (1) (30 C.W.N. 236), a decision under the Calcutta Rent Act (Bengal Act III of 1920). In the first place, the provisions of the now repealed Calcutta Rent Act are not to the same effect as the provisions of the Rent Act now in force. Secondly, the decision itself on which reliance is placed does not support the contention as raised. What had been decided in that case was that a landlord having served a notice on the tenant on the 15th August, 1923, terminating a lease on the ground of breach of covenants in the lease, the tenant did not leave the premises; a suit in ejectment was filed, and it was not till the 24th April, 1925, that the decree in ejectment was passed in the Original Side of this Court; during the pendency of the suit in ejectment, the tenant had filed on the 1st December, 1923, an application u/s 15 of Calcutta Rent Act of 1920, and on the 11th March, 1924, standard rent was fixed. The question which arose for decision was whether the application for standardisation of rent having been declared in the ejectment suit to have been a trespasser after the 15th August 1923, was the order which was passed by the Rent Controller on the 11th March, 1924, without jurisdiction or not. The Court came to the only conclusion which was possible that though the decree in ejectment had been passed subsequently, the result of that decision was that the person in occupation was declared not to be a tenant, but a trespasser as and from after the 15th August, 1923. The application for standardisation of rent could be filed only by a tenant, and he having been found to have ceased to be a tenant before the 1st December, 1923, the application for standardisation of rent was not competent.

In the present case, there is no question that the application for standardisation of rent which had been filed by the landlord in respect of a tenancy which was in existence was a competent application and the order which was passed under the Rent Control Act, though subsequent to the requisition of the premises having been given effect to from April, 1949, was a competent order passed by an authority with jurisdiction.

But apart from that it is not open to the State of West Bengal to question in these proceedings the legality of the order passed under the Rent Control Act. The order which was passed fixing the standardised rent was in respect of the premises in question and governed not only the tenant who was in occupation at the relevant time but also who may be coming thereafter also. The State of West Bengal not requisitioning the premises, if some other tenant came to occupy the same, the subsequent tenant would be as much governed by the previous order as the then tenant was. The order passed by the Rent Control authorities, if made final and with jurisdiction, attaches to the premises in question, and it is a relevant piece of evidence which has to be taken into consideration while fixing the compensation payable by the State to the owner when the premises are requisitioned.

When a particular premises is requisitioned, compensation is payable to the owner and that is based on the value of his possession. In the case of an out and out acquisition the market value of the premises has to be ascertained and the principles which are to be followed by the Court are as laid down in section 23 of the Land Acquisition Act. When a property is requisitioned, the owner is entitled to be compensated for being deprived of his possession for the period that the property remains under requisition. The method for computing the recurring compensation on requisition was laid down by this Court in the Province of Bengal v. The Board of Trustees for the Improvement of Calcutta, 50 C.W.N. 825. The best evidence for deters mining recurring compensation will be the income which that property was yielding or was capable of yielding on the relevant date, i.e., at the time when the property was requisitioned, unless, such income is shown not to be a fair one.

Mr. Guha argues that if the income from the property on the relevant date is to be ascertained it should be as it was known on that relevant date. Or, in other words, the Court is to ignore the pendency of the proceedings before the Rent Court for the standardisation of rent, and is to be guided by the rent which was being paid by the tenant Majumdar at that time. On the face of it, this argument cannot be accepted. The decision by the Rent Court, though given subsequent to the date of requisition, took effect as from April, 1949, and the property must be taken to be yielding on the 16th December, 1949, the rent as fixed by the Additional District Judge under the Rent Control Act.

In this view, it must be held that the order passed by the Additional District Judge under the Rent Control Act on the 25th May, 1950, is a relevant piece of evidence for determining the recurring compensation after requisition.

The effect of this order fixing the standardised rent is no doubt to be taken along with other pieces of evidence which have been adduced in the present case. At one stage it was attempted to be argued that the standard rent was not always a fair rent. I must say that what is to be decided by the Court is the market value of the property for assessing recurring compensation. The standardised rent fixed according to the method laid down in the Rent Control Act must be deemed to be the market rate of the premises in question as not only the landlord but any tenant occupying the premises must be deemed to be bound. In such circumstances, that rent will also be for the present purpose the fair rent which that property is capable of yielding unless there is evidence to the contrary.

If we consider the other pieces of evidence adduced on behalf of the State, there is no escape from the conclusion that such evidence is not of any material assistance in displacing the evidentiary value of the standardised rent fixed under the Rent Control Act. Witness No. 3 on behalf of the State is a tenant in one of the contiguous houses, but from the descriptions given by him as compared with those stated by witness No. 1 for the State, one and only conclusion can be reached, and that is that the premises No. 1A, Motilal Nehru Road, has not got the same position or amenities which the requisitioned premises have. They are not comparable ones. Premises No. 1A is not abutting on Motilal Nehru Road, and further the tenant knew the landlord from before. Further, the existence of open lands on the north of premises No. 2, Motilal Nehru Road and the absence of such lands in the case of premises No. 1A, Motilal Nehru Road cannot be ignored. The other witness being witness No. 2 for the State is of 4A, Desapriya Park East. That also is not the same type of building as the requisitioned premises. Except that premises No. 4A, Desapriya Park East have got living space of 900 square feet, we have not got details about the amenities which may be compared to those which are available in respect of the premises under requisition.

The method of calculating the compensation adopted by the surveyor, witness No. 1 for the State, cannot be accepted. As I have had occasion to point out, assessing the rental value on a carpet basis in the case of residential houses is not satisfactory unless a large number of instances are made available to the Court from which the average carpet rate can be deduced. What should be the effective carpet area in particular types of residential houses would differ from one type of building to another and from one area to another in Calcutta. The chance of error in adopting such a method from only two or three houses is very great. The surveyor on a comparison of two other houses fixed Rs. 13-8-0 per 100 square feet; the Collector increased it to Rs. 15-8-0 per 100 square feet; on what basis, on what material and for what reason, it is difficult, if not impossible, to ascertain. The surveyor had fixed Rs. 13-8-0 per 100 square feet after comparing it with premises No. LA, Motilal Nehru Road a property which 1 have already stated to be not a comparable one to the premises now in question.

In our view, the best evidence about the standard rent as fixed under the Rent Control Act being available, and the evidentiary value thereof not having been affected by any evidence which has been led on behalf of the learned Arbitrator was perfectly justified in fixing compensation on the basis of such standard rent. The learned Arbitrator allowed ten per cent, of the standard rent for normal repairs, and in the circumstances of this case there was nothing wrong in it. The result, therefore, is that the compensation payable has been rightly fixed by the learned Arbitrator, and this appeal is dismissed with costs. The hearing-fee is assessed at ten gold mohurs. The cross-objection is dismissed without any order as to costs.

Mitter, J.

I agree.