Jetmull Bhojraj v. Mohan Lal Sukhani — 1957 DIGILAW 102 (CAL)

Judgment 1. THIS Rule has been obtained by a sub-tenant against the Order of the Additional Rent Controller of Calcutta, dated the 12th February, 1957 by which he has refused to modify an earlier order passed by him on the 24th January, 1957. The facts which are relevant for the purpose of this case are undisputed and they may be stated as follows: opposite party No. 2 Hirji Jewraj, is the owner of premises No. 9, Wood Street, opposite party No. 1, Mohon Lal Sukhani was a tenant of the first degree under the owner in respect of the entire first floor and one room on the terrace and a garage of the said premises. The petitioner, Jetmull Bhojraj, was a sub-tenant of the aforesaid flat under opposite party No. 1. Sometime in 1955, the petitioner filed an application for fixing the standard rent of his sub-tenant and under sections 9 and 10 of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950, which gave rise to case No. 587a of 1955. In this proceeding, both the tenant of the first degree and the owner were impleaded as parties. After the coming into operation of the West Bengal Premises Tenancy Act, 1956, the petitioner filed an application under section 16 (3) of that Act for a declaration that he was a direct tenant under the owner. This application gave rise to Case No. 572 A of 1956. Both the cases, that is, Case No. 587 A of 1955 and 572a of 1956 are pending before Mr. L. C. Sen, the Additional Rent Controller of Calcutta. By order dated the 24th January, 1957 in case No. 572a of 1956 he held that the petitioner is entitled to the reliefs contemplated by section 16 (3) of the West Bengal Premises Tenancy Act, 1956 and for the purpose of fixing the fair rent under that section he directed the Inspector to go to the locality and take necessary measurements and also to submit a report regarding the rents of similar premises in the locality. The petitioner then filed an application for a modification of this order because according to him there is no necessity for fixing the fair rent in a separate preceding under section 16 (8) of the West Bengal Premises Tenancy Act, 1956, inasmuch as the standard rent that Would be fixed in Case No. 587 A of 1955 should be taken to be the fair rent according to the provisions of section 8 (1) (c) of the Act of 1956. This application has been rejected by the learned Additional Rent Controller by a order dated the 12th February, 1957 and the petitioner has obtained this Rule against that order. 2. MR. Mullick appearing in support of the Rule has contended that the learned Additional Rent Controller is carrying on two parallel proceedings for the fixation of the fair rent of the premises in question, one under sections 9 and 10 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 in case No. 587a of 1955 and another under section 16 (3) of the West Bengal Premises Tenancy Act of 1956. Mr. Mullick contends that such a procedure is not contemplated by the Act because section 8 (1) (c) provides that when a proceeding for fixation of standard rent of any premises is pending on the date of commencement of the Act of 1956, the standard rent fixed in that proceeding should be taken to be the fair rent under the Act of 1956. Mr. Ganguli, appearing for the landlord opposite party No. 2 has contended, on the other hand, that case No. 537a of 1955, which was between a sub-tenant and a tenant of the first degree, became infructuous as soon as the interest of the tenant of the first degree ceased to exist by the declaration given by the Rent Controller under the first part of section 16 (3) of the Act of 1956. Under section 16 (3) of the Act of 1956, as a result of the declaration given by the Rent Controller the interest of the tenant of the first degree ceases to exist with effect "from the date of the order. " The interest of opposite party No. 1, therefore, in the present case ceased to exist from the 24th January, 1957, on which date the declaration was made by the learned Additional Rent Controller. " The interest of opposite party No. 1, therefore, in the present case ceased to exist from the 24th January, 1957, on which date the declaration was made by the learned Additional Rent Controller. Case No. 587a of 1955 cannot, therefore, be held to have become totally infructuous. The standard rent that would be fixed in that proceeding will be effective between the petitioner and opposite party No. 1 (the tenant of the first degree) from the date of the commencement of the standard rent to be fixed by the Additional Rent Controller up to the 23rd of January, 1957. Thereafter, the standard rent so fixed in that proceeding shall have no legal effect because the interest of the tenant of the first degree against whom that standard rent would operate would be extinguished as a result of the declaration given by the Additional Rent Controller under section 16 (3). 3. MR. Mullick places strong reliance upon section 8 (1) (c) of the Act of 1956 and contends that the standard rent fixed in Case No. 587 A of 1955 must be taken to be the fair rent under section 16 (3) of that Act. It is undoubtedly true that if the present case comes under section 8 (1) (c), there can be no question of determination of the fair rent and therefore the only question is whether in the circumstances of the present case section 8 (1) (c) has any application. It is true that case No. 587a. of 1955 is a proceeding for fixation of rent under the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 and it is also true that that proceeding was pending on the date on which the Additional Rent Controller made the declaration under section 16 (3) of the new Act but that is not sufficient, in my opinion, to attract the operation of section 8 (1) (c) because the proceeding in Case No. 587a of 1955 is a proceeding for fixation of the standard rent as between a subtenant and a tenant of the first degree whereas the proceedings for fixation of the fair rent under section 16 (3) is a proceeding for fixation of the fair rent as between the landlord and the sub-tenant who has been declared to be a tenant directly under the landlord. The earlier proceeding is a proceeding for fixation of the rent of a sub-tenancy whereas the present proceeding is a proceeding for fixation of fair rent of a tenancy held directly under the owner. In order to attract the operation of section 8 (1) (c), the two proceedings must be between the same persons or persons having the same class of interest. Mr. Ganguli cited before us the case of E. Scott v. Messrs. Residence Limited (1) 60 C. W. N. 746 where Das Gupta and Guha, JJ. held that if there are different tenancies for the same premises there may be as many different standard rents as there are tenancies. In view of this authority it is idle to contend that the standard rent that would be fixed in Case No. 587a of 1955 would be binding upon the owner; in the first place because in that case the immediate landlord of the subtenant is not the owner but the tenant of the first degree and in the second place because the interest of the tenant of the first degree was completely extinguished by the declaration given by the learned Additional Rent Controller under section 16 (3. Mr. Mullick relied upon the decision in the case of S. K. Chatterjee v. Residence Limited (2) 58 C. V. N, 307 in which Mitter, J, sitting with myself laid down the principle 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 exceeds the rent of the tenant of the first degree by more than 6 per cent the rent of the sub-tenant is to be scaled down. Mr. Mullick has relied upon this passage for the purpose of proving that even in a proceeding for determining the standard rent of a sub-tenant, the Rent Controller is under an obligation to determine the rent payable by the tenant of the first degree. The decision was given for the purpose of applying paragraph 4 of the Schedule A of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. The decision was given for the purpose of applying paragraph 4 of the Schedule A of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. In that case, it was not decided whether the rent of the tenant of the first degree which should be determined by the Rent Controller would be binding upon the owner. The rent of the tenant of the first degree has to be determined in a proceeding for standardising the rent of a sub-tenant incidentally for the purpose of ascertaining whether the rent payable by a subtenant exceeds the rent payable by a tenant of the first degree by more than 6.1/4 percent. I am not prepared to hold that an incidental determination of the rent payable by a tenant of the first degree would be binding upon the owner; but even apart from that, assuming that the rent of the tenant of the first degree so determined on an application for standardising the rent filed by a sub-tenant is binding upon the landlord, that will not help the petitioner in the present case because that standard rent will cease to have any legal effect with the extinction of the interest of the tenant of the first degree after the 23rd January, 1957. Mr. Mullick then relied upon the last two sentences of section 16 (3) of the Act of 1956 which run as follows: "the Controller shall also fix the rents payable by the tenant and subtenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act." According to Mr. Mullick, the first sentence imposes a duty upon the Rent Controller to fix the fair rent not only of the sub-tenant who has been declared to be a direct tenant under the landlord but also of the tenant and this according to Mr. Mullick implies that in every case under section 16 (3), the Rent Controller after giving the declaration asked for by the sub-tenant or the landlord must determine the rent payable by the tenant as well as by the sub-tenant. The argument is that although under section 16 (3) the interest of the tenant ceases, such cessation of his interest cannot be said to bring about an extinction of his tenancy. It is impossible to accept this argument at its face value. The argument is that although under section 16 (3) the interest of the tenant ceases, such cessation of his interest cannot be said to bring about an extinction of his tenancy. It is impossible to accept this argument at its face value. In the present case, the sub-tenancy was coextensive with the tenancy and therefore as soon as the interest of the tenant ceased to exist, there could be no question of determination of the rent of a non-existent tenancy. I accordingly hold that the sentence upon which reliance has been placed by Mr. Mullick means that where the sub-tenancy is not co-extensive with the tenancy of the first degree and the tenancy of the first degree is only partially extinguished, it is only in such cases that the Controller is to determine the rent payable by the tenant as well as by the sub-tenant. In a case like the present one, where the Uenancy of the first degree ceases to exist in its entirety, there is no duty upon the Rent Controller to determine the rent of the tenancy of the first degree. I accordingly, hold that in this case with the cessation of the interest of the tenant, there was a complete extinction of his tenancy. 4. IN the last place Mr. Mullick placed before us an application filed by opposite party No. 1, Mohanlal Sukhani in Case No. 587a of 1955 in which he prayed for determination of the standard rent payable by him to the landlord. Mr. Mullick, accordingly, contends that Case No. 587a of 1955 was not only a case for fixing the standard rent of the sub-tenant payable to the tenant but also a case for fixing standard rent payable by the tenant to the landlord. It is contended that since both the tenant of the first degree as well as the landlord were parties to that case, the Rent Controller would have to determine the standard rent payable both by the sub-tenant and also the tenant. In my opinion, the fact that the landlord was a party to Case No 587a of 1955 and the fact that the tenant filed an application for fixing the standard rent payable by him to the landlord make no difference to the position. In my opinion, the fact that the landlord was a party to Case No 587a of 1955 and the fact that the tenant filed an application for fixing the standard rent payable by him to the landlord make no difference to the position. Even if the Rent Controller fixed the standard rent payable by the tenant of the first degree to the landlord in Case No. 587a of 1955 that will cease to have any legal force after the 23rd January, 1957 when his interest terminated. It is open to the petitioner or to the tenant of the first degree to continue the proceeding in Case No. 587a of 1955 if they are so advised but the standard rents determined in that proceeding cannot have any legal force or effect after the extinction of the interest of the tenant of the first degree by the declaration under section 16 (3) of the Act of 1956. The learned Additional Rent Controller has held that the standard rent that may be fixed in Case No. 587a of 1955 will certainly be taken into consideration in fixing the fair rent under section 16 (3. Upon the view which I have taken of the legal effect of the standard rent that may be determined in that proceeding, namely, that it will cease to be operative from the date of the extinction of the interest of the tenant of the first degree, this decision of the Additional Rent Controller must be set aside. 5. IN the result, I would discharge this Rule and direct that the Additional Rent Controller would fix the fair rent under section 16 (8) according to the provisions of the West Bengal Premises Tenancy Act of 1956 and the standard rent in Case No. 587a of 1955 according to the provision;, of the Act of 1950 subject to this modification that the standard rent fixed in Case No. 587a of 1955 will not be admitted into evidence in the proceedings under section 16 (3). Opposite party No. 2 is entitled to the costs of this Rule.