JUDGMENT 1. THIS is a Civil Revision and an application under Article 227 of the Constitution of India. The petitioner is Messrs. Nan and Company Private Limited. The opposite parties are Dalhousie Properties Limited and the Bengal Stationers Syndicate. 2. THIS Rule was directed against the judgment and order dated the 14th June, 1961 and also the judgment and order dated the 3rd June, 1960 passed by the Additional Rent Controller, Calcutta in case No. 2441a of 1956. It raises a significant point of interpretation of fair rent in section 16 (3) of the West Bengal Premises Tenancy Act 1956, read with section 8 (1) (e) thereof. The facts briefly are as follows: The petitioner is the tenant of the first degree. The opposite party Dalhousie Properties limited is the landlord and the opposite party Bengal Stationers Syndicate is the sub-tenant. The petitioners were the tenants under the first opposite party in respect of a shop room in the ground floor of premises No. 9a Dalhousie Square East since the month of May 1938. Before the dispute started the rent payable by the petitioners to the first opposite party was Rs. 320/- per month. The petitioners sublet a portion of the said shop room to the second opposite party from before 1950 at a rental of Rs. 43/ -. On the 2nd November 1956, the second opposite party made an application before the Rent Controller under section 16 (3) of the West Bengal Premises Tenancy Act, 1956 joining the landlord as opposite party No. 1 in such proceeding. The only prayer made in that application was for a declaration that the interest of the petitioner had ceased and the second opposite party, that is the petitioner in the present case, was a direct tenant under the first opposite party. On the 14th November, 1957 the Additional Rent Controller granted the declaration that the present petitioner is a direct tenant and also made an order to the effect that the Inspector would measure the accommodation of the intermediate tenancy held by the immediate landlord and he would also verify the measurements, statements and other particulars. On the 14th November, 1957 the Additional Rent Controller granted the declaration that the present petitioner is a direct tenant and also made an order to the effect that the Inspector would measure the accommodation of the intermediate tenancy held by the immediate landlord and he would also verify the measurements, statements and other particulars. Then the petitioner states that he was advised that he had nothing further to do with the matter in view of the fact that the Additional Rent Controller under the relevant provisions of the statute could not but maintain the total quantum of rent receivable by the landlord from the petitioner. Ultimately on the 3rd June 1960 the Additional Rent Controller fixed the fair rent of the premises in occupation of the petitioner at Rs. 467/-per month and that of the former subtenant at Rs. 46/- per month. The [petitioner's case is that he was surprised at this increase in rent and he therefore made an application for review of the said judgment and order dated the 3rd June, 1960. On the 14th June, 1961 the Additional Rent Controller rejected the application of the petitioner. 3. THE Rent Controller in fixing the rent considered the evidence of the situation, locality and condition of the premises and the amenities provided therein and also similar or nearly similar premises of the locality and the rent payable in respect of such premises and came to the finding mentioned above. 4. THE Petitioner's main contention before us is that the whole order fixing the rent at Rs. 467/- per month is illegal and beyond the statutory provision of the West Bengal Premises Tenancy Act, 1956. Mr. Sinha, the learned Advocate for the petitioner, mainly relied on the language of section 16 (3) of the Act and particularly on the portion of that sub-section which reads as follows: "the Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act. " A number of arguments were advanced by Mr. Sinha on the construction of this part of section 16 (3) of the West Bengal Premises Tenancy Act. Rents so fixed shall be deemed to be fair rent for purposes of this Act. " A number of arguments were advanced by Mr. Sinha on the construction of this part of section 16 (3) of the West Bengal Premises Tenancy Act. His first submission is that within the language of that sub-section it is beyond the power and jurisdiction of the Rent Controller to fix the petitioner's rent, it being recalled that the petitioner was the tenant of the first degree. He relied for this purpose on the decision of the Division Bench in (1) Jetmull Bhojraj v. Mohan Lal Sukhani, 62 C. W. N. 314. That decision lays down 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, the Controller is to determine the rent payable both by the tenant as well as by the sub-tenant. But where the sub-tenancy is co-extensive with the tenancy of the first degree and the tenancy of the first degree ceases to exist in its entirety, there is no duty upon the Controller to determine the rent of the tenancy of the first degree, because with the cessation of the interest of the tenant, there would be a complete extinction of his tenancy. This decision, if anything, is really against the contention of Mr. Sinha on this point. In the first place, the decision is inapplicable because it is not a case of sub-tenancy being co-extensive with the tenancy of the first degree. Secondly, this decision does say and indicate that where the sub-tenancy is not co-extensive with the tenancy of the first degree, the Controller is to determine the rent payable both by the tenant as well as by the sub-tenant. Therefore, the decision is against Mr. Sinha's contention that in the present case where the sub-tenancy is not coextensive with the tenancy of the first degree the Rent Controller could not fix the rent payable by the tenant of the first degree. In our view, he can. In our view the language of the section is quite clear and that language is The Controller shall also fix the rents payable by the tenant and such subtenant to the landlord from the date of the order." 5. THE second argument of Mr. In our view, he can. In our view the language of the section is quite clear and that language is The Controller shall also fix the rents payable by the tenant and such subtenant to the landlord from the date of the order." 5. THE second argument of Mr. Sinha is that the Rent Controller went beyond his jurisdiction in the proceeding he took in fixing the rent under section 16 (3) of the Act by considering the situation, locality and condition of the premises and the amenities provided therein and also similar or nearly similar premises in the locality and the rents payable in respect thereof. In this branch of Mr. Sinha's case, his emphasis was on the language of the section "fix the rents" in section 16 (3 ). He, therefore, contends "fair" rent is not mentioned in that section. The considerations of the situation, locality, condition, amenities and comparison of similar or nearly similar premises in the locality and the rents payable in respect thereof are considerations applicable for fair rent in section 8 of the West Bengal Premises Tenancy Act, 1956. We are unable to accept this submission. It is quite true that in the portion of section 16 (3) of the Act, which we have quoted above, the words at one place are "fix the rents payable by the tenant and such sub-tenant", yet nevertheless the last sentence in that portion is "rents so fixed shall be deemed to be fair rent for purposes of this Act". Therefore, it follows that in fixing the rent and when the rent is so fixed, such rent so fixed is to be deemed as a fair rent under the Act and for purposes of the Act. It is quite true that it is a deeming provision. It is also true that rents so fixed is deemed to be fair rent which means that it is not fair rent arrived at normally during the processes described under sections 8, 9, 10, 11 and 12 of the Act. It is quite true that it is a deeming provision. It is also true that rents so fixed is deemed to be fair rent which means that it is not fair rent arrived at normally during the processes described under sections 8, 9, 10, 11 and 12 of the Act. Even on the basis of the doctrine that what is deemed to be fair rent may not necessarily be really the fair rent, this much is certain that the intention of the Act is that rents so fixed by the Rent Controller under section 16 (3) of the Act should at least have the semblance of a fair rent for purposes of the Act. It is therefore not possible, in our view, so to construe this portion of section 16 (3) of the Act as to mean that the rent so fixed need not at all be fair rent, or that the rents so fixed could be unfair rents. We read the Legislature's intention from the last sentence of section 16 (3) of the Act to mean that the rents fixed by the Rent Controller under this sub-section of section 16 should correspond so far as possible to fair rent for purposes of this Act. We therefore do not consider that in proceeding, as the Rent Controller did, to consider the situation, locality, condition, amenities of similar or nearly similar premises and the rents in respect thereof, he went beyond his statutory powers. 6. IN another Division Bench decision of this Court in Pannalal Baktawarmal v. Narayandas Deora (2) 65 C. W. N. 207 at 212 it was also observed that where the sub-tenancy was not coextensive with the tenancy, the only course open to the Controller was to apply the provisions of section 8 (1) (e) of the Act to the existing contractual rent payable by the tenant to his landlord and to arrive at the figure of fair rent on that basis and thereafter to divide that amount of fair rent between the tenant and the sub-tenant, regard being had to the area that would remain in their respective occupation and further regard being had to the situation, condition and the amenities of each of the sub-divided premises. In fact, that is exactly what the Rent Controller has done in this case. In fact, that is exactly what the Rent Controller has done in this case. He has applied the tests of section 8 (1) (e) of the West Bengal Premises Tenancy Act, 1956 and has fixed the rent in accordance with the main provisions contained therein. But it is here that Mr. Sinha advances his more irresistible argument that even assuming that section 8 (1) (e) of the Act applies, the Rent Controller has gone beyond the statutory limits expressly stated in the proviso thereof. With a view to appreciate this point, it is necessary first to quote the language of section 8 (1) (e) of the Act along with the proviso which reads as follows: 8 (1) (e) : "fair rent" in relation to any premises means where the provisions of clause (a) or clause (b) or clause (c) or clause (d) do not apply, such rent as would be reasonable having regard to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality, having regard also to the rent payable in respect of such premises: "provided that in fixing such rent the Controller shall in no case allow an increase of more than 10 per cent over the existing rent, if any, of such premises. " 7. MR. Sinha contends that by increasing the petitioner's rent from Rs. 320/- to Rs. 467/- per month, the Rent Controller has exceeded the 10 per cent limit fixed by the above proviso. According to his argument, the ultimate maximum increase of the petitioner's rent under section 16 (3) of the act could not be more than Rs. 352/-which is 10 per cent increase over Rs. 320/ - per month. 8. THE Rent Controller in rejecting this plea of the proviso expressed the view that the proviso limiting the increase to 10 per cent did not apply to fixation of rent under section 16 (3) of the Act. The reason he gave was that the existing rates of rent so far as the petitioner was concerned, were not a contractual rent because the tenancy for which the "existing" rent was paid was defunct and not existing tenancy which is now divided into two. The reason he gave was that the existing rates of rent so far as the petitioner was concerned, were not a contractual rent because the tenancy for which the "existing" rent was paid was defunct and not existing tenancy which is now divided into two. His main reason was that the contractual rent as used to be paid by the petitioner was in respect of a tenancy different from the tenancy it would be holding now under the landlord. Therefore, the Rent Controller proceeds on the basis "that the determination of a case u/s 16 (3) of the said Act gives rise to fresh tenancies for which the rents should be fixed are the first and fore mist consideration without the basis of previous contractual rent. Hence I must hold that the said 10 per cent rule under the proviso to section 8 (1) (e) of the Act does not apply in this case. " On a careful consideration of this view of the Rent Controller, we are unable to agree with the interpretation he has given. The crucial words in the proviso to section 8 (1) (e) of the West Bengal Premises Tenancy Act, 1956 on this point are "existing rent,if any, of such premises". Now the words "such premises" must be taken with reference to the premises mentioned in section 8 (1) (e) of the Act. The words used are not "such tenancies". Now what are "such premises" within the meaning of this proviso. The relevant words in section 16 on this point are "any premises are sublet either in whole or in part". When reference is made to the case of "any premises are sublet either in whole or in part", it is only in cases mentioned in section 16 (2) that the applicability of section 16 (3) arises. To begin with, therefore, the genesis of section 16 is with one premises. The division that takes place in section 16 (3) of the Act is not a division so much of the area of occupation of the sub-tenant as is being recognised as a direct tenant under the landlord which only means that he has to pay the rent not to the tenant of the first degree but to the landlord direct. His area of occupation would be the same. His area of occupation would be the same. With regard to the tenancy of the first degree, his area is reduced in the sense that he is no longer a tenant of the whole premises as he was before but is a tenant of a portion of the premises in his occupation which was not sublet by him. It is a penalty on the tenant of the first degree in the sense that he cannot make any profit out of his tenancy by subletting and the benefit of that subletting goes to the landlord himself but it need not be more a penalty than was intended. It is needless to emphasise here that the principle of the Act of 1956 is to discourage or restrict subletting without the consent in writing of the landlord as would be apparent from the provisions like sections 14 and 16 of the Act. Indeed, it is also a ground for eviction if the subletting was without the consent of the landlord under section 13 (1) (a) of the Act of 1956. But apart from these two penalties, we need not read any more penalties which are not there in the Act and apply them to the tenant of the first degree. 9. NOW coming back to the words "existing rent" and "such premises" in the proviso to section 8 (1) (e) of the Act and applying them to the facts of the present case it is clear that the existing rent of the sub-tenant was Rs. 43/- per month for his portion of "such premises", in his occupation. In that case the Rent controller's order increasing the subtenant's rent from Rs. 43/- to Rs. 46/- is well within the limit of 10 per cent. prescribed by the proviso and, therefore, his order directing the payment of Rs. 46/- per month direct to the landlord by the former sub-tenant was a perfectly legal and competent order. 10. THEN comes the question, whether the said sum of Rs. 320/- per month paid by the petitioner to the landlord should be regarded as the "existing rent" of "such premises" within the meaning of that proviso. It is contended by Mr. Sen appearing for the landlord opposite party that the premises are no longer the same in the case of the petitioner because it is divided and he has lost the area of his occupation. It is contended by Mr. Sen appearing for the landlord opposite party that the premises are no longer the same in the case of the petitioner because it is divided and he has lost the area of his occupation. It is an ingenious argument and requires consideration. If Mr. Sen is right in this contention, then the startling result in that because the portion sublet comes under the direct tenancy of the landlord, the 10 per cent. limit therefore is no longer there and the Rent Controller could fix any rent without limit. Apart from the absurdity of the result which will follow upon such an interpretation and which I shall presently explain, there are many other reasons which make it difficult for us to accept this construction. There was an existing rent of such premises in the sense that there was an existing rent of the whole premises in this case and that was Rs. 320/- per month. If the premises are reduced in area, then, if anything, the rent of the limit of 10 per cent. should be still more reduced and not Increased. That is common sense. The premises remains the same. What happens is the division of the tenancy. The over-all "existing rent" of "such premises" to begin with was Rs. 320/-per month and that therefore should logically, fairly and in all common sense be regarded as the existing rent of such premises. Or else the consequence will be that the tenant of the first degree by reason of such strange construction will suffer at both ends, first because his area is reduced and he has to pay more, and secondly because he no longer receives the rent from the sub-tenant but that goes direct to the landlord. We do not think that such a consequence was intended by the Legislature by this proviso, nor do we think that we should construe the words "existing rent, if any, of such premises" in section 16 of the Act so artificially and so technically and in so restricted a manner that it would lead to these absurd consequences. The point may be exemplified by an illustration. A house is let out by "l" to a tenant "t" at a rent of Rs. 300/- per month in a certain locality. The point may be exemplified by an illustration. A house is let out by "l" to a tenant "t" at a rent of Rs. 300/- per month in a certain locality. Disputes about fair rent start between "l" and "t" and they are decided by the Rent Controller under section 8 (1) (e) of the Act. In proceedings under s. 8 (1) (e) of the Act the Bent Controller finds that having regard to the situation, locality, condition, amenities and comparable premises of the locality and their rent, the reasonable rent was not Rs. 300/- per month but Rs. 3000/ -. Can the Rent controller increase the rent from Rs. 300/- to Rs. 3000/- per month in such a case? Obviously he cannot, because the limit of 10 per cent. as laid down in the proviso would apply and he could only increase the rent from Rs. 300/- to Rs. 330/- and no more. But take the same house again and the same example with this added fact where "t" the tenant sublets to "s", a sub-tenant, a small portion of the house, say a room thereof at Rs. 10/-per month. The moment he does it, then according to the construction that the landlord is submitting before us, the proviso no longer applies and this very same house whose fair rent was Rs. 330/- in the first case becomes Rs. 3000/- in case he lets out a small room at Rs. 10/- per month to a sublessee. We do not consider that this was the intention of the legislature. 11. THE proviso indicates in broad general terms that, whatever the reasonable rent may be under section 8 (1) (e) of the Act, it should under no circumstances exceed 10 per cent. of the existing rent, of such premises. The existing rent of such premises are expressions which should not be construed with a desire for nicety or artificiality so as to defeat this broad general policy so clearly expressed under section 8 (1) (e) of the Act by notion of a tenant creating a sub-tenant out of his own estate or interest in the estate and therefore when the tenancy is divided, his very original estate is lost. If anything as we have said, such a sub-division even with the 10 per cent rule operates heavily against a tenant of the first degree because 10 per cent is increased on the basis of the existing rent of the entire premises and at the same time he loses a portion of such premises which in the normal circumstances would lead to an abatement of rent. Finally, it is a settled rule of construction that the premises would include part of them and the whole must include the part, unless there is anything repugnant to the particular context. There is nothing so repugnant in the present context of section 16 and section 8 of the Act. 12. THE words used in section 16 (3) of the Act are "fix the rents". They may be contrasted not only with the words "fair rent" as indicated above but also "proportionate rent" as in section 13 (4) of the West Bengal premises Tenancy Act, 1956 where the significant words used are "fix the proportionate rent for the portion remaining in the occupation of the tenant or the sub-tenant. The rent so fixed shall be deemed to be the fair rent for purposes of this Act. " For these reasons we set aside the orders of the Rent Controller and we hold that he did not act within the bounds of law and the limits set by the proviso to section 8 (1) (e) of the Act when he increased the rent payable by the petitioner from Rs. 320/- per month to Rs. 467/ - per month which was an increase by more than about 60 per cent. of the existing rent. We, therefore, reduce it within the statutory limit and reduce the figure of Rs. 467/-per month to Rs. 352/- per month as being the fair rent payable under the statute and the proviso. This order will be of course, without prejudice to any rights of the parties if any with regard to the revision of fair rents under sections 9 and 11 of the West Bengal Premises Tenancy Act 1956. 13. THE Rule is made absolute with the above direction that the rent be reduced to Rs. 352/- per month. The opposite party No. 1 will pay the cost of this application to the petitioner which is assessed at three gold mohurs.