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1982 DIGILAW 213 (CAL)

Narendra Lal Dutta Banik v. Sarojendra Nath Ghosh

1982-06-11

B.N.MAITRA

body1982
ORDER The tenant filed an application under S. 8(1)(e) of the West Bengal Premises Tenancy Act for fixation of fair rent of the disputed premises. The landlord opposite party filed an objection. The learned Rent Controller was of opinion that since the applicant petitioner's tenancy had already been determined and a regular suit for ejectment filed the application for fixation of rent was not tenable in law. An appeal was preferred without any success. Hence this revisional application. 2. It has been contended on behalf of the tenant petitioner that in the case of Dean v. Bruce in 1951 All E.R. 926 at page 928 Lord Denning has taken the view that once a contractual tenancy is at an and, but the tenant continued in possession on the footing of rent Acts, the rent of the house is regulated by the Act and the question of estoppel is out of the way. Reference has been made to the case of Karnani Industrial Bank v. Satyaniranjan in L.R. 55 Indian Appeals 344 at page 350 to show that under the Calcutta Rent Act, 1920, the Controller has jurisdiction to fix standard rent of the premises, though on the date of the application the tenancy had been determined. In order to give any working effect to the Act, the words 'landlord' and 'tenant' must include ex-landlord and ex-tenant. In the case of Moni Jain v. Raja Ram, in AIR 1980 SC 299 at page 300 it has been stated that in East Punjab Urban Rent Restriction Act, the word tenant includes the quondam tenant continuing in possession. An ex-tenant is clothed with all the rights of a regular tenant. Consequently he can apply for fixation of rent. The contrary view taken by learned Single Judge in the case of Sudhri v. Ashutosh, reported in 1980(1) CLJ 36 , which was also referred to by the learned appellate court, cannot be accepted. 3. The learned Advocate appearing on behalf of the opposite party has stated that after service of a notice of ejectment, the landlord filed an ejectment suit. The tenant filed an application under S. 17(2) of the Act. On 13.9.1980 that application was disposed of. A revisional application was then preferred and that matter has since been disposed of by the High Court. The tenant filed an application under S. 17(2) of the Act. On 13.9.1980 that application was disposed of. A revisional application was then preferred and that matter has since been disposed of by the High Court. On 11.3.1978 the tenant filed the present application under S. 8 of the Act for fixation of fair rent. The view taken by the learned Single Judge in the case of Sudhir Kumar v. Ashutosh (supra) is correct because of the Supreme Court decisions of Ananda Nivas v. Anandji, in AIR 1965 SC 414 , Calcutta Credit Corporation v. Happy Homes, in AIR 1968 SC 471 and J.C. Chatterjee v. S. Tandan, AIR 1972 SC 2526 at page 2528. The Supreme Court has pointed out that after the tenant's tenancy is determined by a notice to quit, he merely becomes a statutory tenant because the contractual tenancy comes to an and. The statutory tenant has no right to ask for fixation of fair rent within the meaning of S. 8 of the Act. 4. The three Supreme Court cases cited on behalf of the opposite party do not lay down any contrary proposition. Those cases do not indicate that after the tenant's tenancy is determined on the footing of a notice to quit, he cannot pray for fixation of fair rent under S. 8 of the Act or his rights regarding the property in question vanish. Let it be seen what the Supreme Court has stated in the case of Damadilal v. Paras Ram, reported in AIR 1976 SC 2229 at pages 2234 and 35. It will appear therefrom that a tenant whose contractual tenancy has been determined, but who is protected against eviction by the statute, has a right to the property. It is not true that with the determination of the tenancy the tenants estate disappears. Further, there is a Bench case of our Court, viz., the of Dooki Prosad v. Duli Chand, reported in AIR 1954 Cal 532 at page 535 to show that the definition of tenant includes ex-tenant in possession and whose tenancy has been determined. The aforesaid decisions of the Supreme Court and the Bench case of our High Court were not placed before the learned Single Judge in the aforesaid case of Sudhir v. Ashutosh (supra). Consequently, it is not necessary to refer this case to the division Bench. 5. The aforesaid decisions of the Supreme Court and the Bench case of our High Court were not placed before the learned Single Judge in the aforesaid case of Sudhir v. Ashutosh (supra). Consequently, it is not necessary to refer this case to the division Bench. 5. A right has been given to the tenant also under S. 10 read with S. 8 of the Act to apply for fixation of fair rent. Those provisions do not give any indication that a statutory tenant has been divested of such right. Section 2(h) of the Act clearly says that 'tenant' includes a person who continues in possession after the termination of his tenancy. Since according to the definition of the word 'tenant' in 2(h) petitioner is a tenant of the disputed premises and, inasmuch as he is possessed of tenant's estate in that property, in view of Ss. 10 and 8 of the Act, it must be held that he can apply for fixation of fair rent of the disputed premises, though his tenancy has been determined by a notice to quit. 6. The learned Tribunals below acted with material irregularity in turning down the prayer. So for the ends or justice the matter must be remitted to the learned Controller for disposing of the petitioner's application according to law. 7. The Rule is made absolute and the impugned order set aside. There will be no order as to costs. Rule made absolute.