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2002 DIGILAW 567 (CAL)

Mukti Nath Jha v. Smriti Ranjan Roy

2002-08-23

Malay Kumar Basu

body2002
Judgment Malay Kumar Basu, J. This is an application under Article 227 of the Constitution filed by the petitioner Mukti Nath Jha challenging the legality of the judgment and order dt.22nd December, 1995 passed by the ld. Asstt. District Judge, 1st Court, Howrah in Misc. Appeal No. 53 of 1995. By that order the ld. Asst. District Judge reversed an order passed by the Additional Rent Controller, Howrah in P.T. Case No.38 of 1992 which was filed by the present petitioner Mukti Nath Jha before the Rent Controller, Howrah for fixation of fair rent in respect of the disputed premises. 2. The relevant facts for consideration in brief are as follows. The said Mukti Nath Jha was a tenant since May, 1989 under the O.Ps. Smriti Ranjan Roy, in respect of the suit premises being No. 58, Mahendra Bagchi Road, Howrah on payment of monthly rental at the rate of Rs.800/- per month and the said premises consisted of 3 Bed Rooms, one Bath Room-cum-Privy, and one Kitchen in the ground floor of that premises. The said O.P.-landlord filed a suit for eviction against the plaintiff in respect of that premises in the Court of First Munsif, Howrah being T.S. No. 46/92 on the grounds of reasonable requirement and default, etc. During the pendency of that suit the petitioner-tenant filed an application under section 10 of the West Bengal Premises Tenancy Act, 1956 before the Additional Rent Controller, Howrah being No. as P.T.38/92 as mentioned above praying for an order determining the fair rent in respect of the suit premises. In that case under section 10 of the Act, the ld. Addl. Rent Controller referred that petition to the Special Land Acquisition Officer, Howrah for holding enquiry into the averments of the petition and submitting a report to him. The said Special Land Acquisition Officer submitted a report dt. 8th September, 1992 before the Addl. Rent Controller expressing his inability to hold an inspection into the matter on the ground that it was other than a Government land matter. Then the petitioner filed an application before the Addl. Rent Controller for getting an enquiry made by an Advocate-Commissioner and on the basis of such prayer the ld. Addl. Rent Controller appointed an Advocate-Commissioner for holding such an enquiry and the said ld. Then the petitioner filed an application before the Addl. Rent Controller for getting an enquiry made by an Advocate-Commissioner and on the basis of such prayer the ld. Addl. Rent Controller appointed an Advocate-Commissioner for holding such an enquiry and the said ld. Advocate Commissioner served notices on the O.P. and after holding the enquiry in presence of both the parties filed a report before the ld. Addl. Rent Controller. Thereafter the ld. Addl. Rent Controller after hearing the parties allowed that application under section 10 of the West Bengal Premises Tenancy Act filed by the petitioner-tenant fixing the rent at Rs.450/- per month as fair rent in place of Rs.800/- which was the earlier rate of rent being paid by the tenant so long. 3. Being aggrieved by that order dt.25th January, 1995 of the ld. Addl. Rent Controller the O.P.-landlord preferred an appeal before the Id. District Judge, Howrah which was registered as Misc. Appeal No. 53/1995 and transferred to the Court of ld. Asstt. District Judge, 1st Court, Howrah for disposal. The ld. Asstt. District Judge after hearing both sides passed the impugned judgment and order dt.22nd December, 1995 allowing the appeal and setting aside the impugned order of the ld. Addl. Rent Controller. 4. Being aggrieved thereby again the tenant has preferred the present application under Article 227 of the Constitution challenging the order of the Court below as illegal, improper and liable to be set aside. The contention of the applicant-tenant has been that the Court below assumed jurisdiction erroneously and has acted in excess of his jurisdiction while giving the verdict that the application for fixation of fair rent is barred by the principle of res judicata. It is the further contention of the applicant that the Court below failed to exercise its jurisdiction by: ignoring the Commissioner's report and by holding that the same is violative of section 10 of the W.E.P.T. Act and also of the principles of natural justice. The applicant has also criticised the observation of the Court below as arbitrary to the effect that the Rent Controller has no power to appoint an Advocate-Commissioner according to the provisions of Code of Civil Procedure. This was more so in view of the fact that the appellant-O.P.-landlord had not challenged the said Commissioner's report before the ld. Rent Controller. 5. This was more so in view of the fact that the appellant-O.P.-landlord had not challenged the said Commissioner's report before the ld. Rent Controller. 5. It is an admitted position that the amount of Rs.800/- payable as monthly rent in respect of the suit premises was specified in the tenancy agreement which was entered into by both the parties before the premises was tenanted in favour of the petitioner. The case of the petitioner-tenant is that he was forced by the landlord to accept this rate of rent at the time of taking the tenancy and therefore he agreed to pay at this rate under compulsion and subsequently he has filed this application for determination of fair rent on the ground that the tenanted premises is an old and dilapidated house and considering the locality within which it is situated and the other amenities its value in terms of rent would not be more than Rs.400/- per month. First, he requested the landlord to reduce the amount of rent in view of these circumstances. But since such request of the petitioner was ignored by the landlord he had no other alternative but to file such a case before the Rent Controller. Whereas, the case of the landlord is that he never exercised any force upon the petitioner for taking the tenancy at that rate of rent, on the other hand, the petitioner took it and accepted the terms of the agreement of his own accord being in dire need and the rate of rent agreed upon being Rs.800/- per month was not at all unfair or inflated an amount. 6. In order to ascertain the fair rent in respect of the suit premises the Addl. Rent Controller appointed an Advocate as the Commissioner to hold an inspection and inquiry and after collecting evidence to prepare a report ascertaining the fair rent of the premises. Accordingly, ld. Advocate-Commissioner submitted his report before the Addl. Rent Controller prepared on the basis of the statements of several tenants of the locality as to the amount of rent they were paying to their landlords and the nature and extent of their tenanted premises. The ld. Addl. Accordingly, ld. Advocate-Commissioner submitted his report before the Addl. Rent Controller prepared on the basis of the statements of several tenants of the locality as to the amount of rent they were paying to their landlords and the nature and extent of their tenanted premises. The ld. Addl. Rent Controller after examining the parties and going through the said Commissioner's report including the statements of different tenants as recorded by the Commissioner forming basis of his report came to the conclusion that the report of the said ld. Commissioner was acceptable and in view thereof the rate of rent of Rs.800/- per month for the disputed premises appeared to him to be unreasonably high and he fixed it at Rs.450/- per month as the reasonable amount of rent. It appears from the judgment of the ld. Addl. Rent Controller that he thought it prudent not to depend on the Commissioner's report wholly and he took into consideration the rate prevailing in the area and also the annual value of suit premises. 7. In the appeal against this order of the ld. Addl. Rent Controller the ld. Asstt. District Judge has considered it unwise and improper to rely on such a finding of the Rent Controller for the reason that the appointment by the Rent Controller of an Advocate as Commissioner for holding an inspection to ascertain the fair rent for any premises is not permissible under the law, particularly under the provisions of section 10 of the W.B.P.T. Act and secondly, the persons alleged to be tenants of different houses of the locality whom the ld. Advocate-Commissioner allegedly examined and whose statements he recorded have not appeared before the Court of ld. Rent Controller in course of the trial to depose before him or to substantiate their statements allegedly made before the ld. Commissioner, nor the rent bills of such alleged tenants allegedly produced before the ld. Advocate Commissioner have been produced before the Court of the Rent Controller as required under the law of evidence. Neither the alleged inspector came to the witness box in the Court of ld. Rent Controller. The other ground on which ld. Appellate Court did not place any reliance on the findings of the Addl. Advocate Commissioner have been produced before the Court of the Rent Controller as required under the law of evidence. Neither the alleged inspector came to the witness box in the Court of ld. Rent Controller. The other ground on which ld. Appellate Court did not place any reliance on the findings of the Addl. Rent Controller is that the petitioner tenant had miserably failed to prove that he had been forced to accept the tenanted agreement in question containing the rate of rent payable every month. According to the ld. Asstt. District Judge, the tenant having failed to substantiate his alleged coercion or force being applied to him it was palpable that he accepted the agreement voluntarily and in such circumstances he cannot challenge the terms of such an agreement according to his sweet will in view of the operation of the principles of estoppel and waiver. 8. Mr. Sahoo has strenuously argued to establish his point that fair rent does not depend on the agreement of the parties and such terms of an agreement will be irrelevant for the purpose of determination of a fair rent. In support of this argument he refers to a Division Bench judgment of this Court in Sohan Lal vs. B.K. Chamaria, reported in 1971 ILR 451. He also cites the judgment in P.C. Mehta vs. S. Mukherjee, reported in 56 CWN 15 wherein this Court held that an agreement in a consent decree cannot create an estoppel. Mr. Sahoo relies upon another decision reported in 1969 R.C.J. 213 (SC) (M.M. Chawla vs. J. Sethi) wherein it has been held that the standard rent can be fixed only by the Rent Controller and not by the Court. 9. But these rulings are not found by me applicable to the present case. Nobody disputes the position that fair rent is to be determined by the Rent Controller but the manner in which such determination should be made must conform to the prescribed rules of evidence and procedure. If the Rent Controller instead of holding an enquiry by himself gets it done by some other officers or by any Advocate-Commissioner, then he is violating the basic principles of the law of evidence if he does not examine the persons on the basis of whose statements or if he does not admit the documents into evidence on the basis of the contents of which the said ld. Advocate-Commissioner formed his opinion and prepared his report. Because, in the absence of such substantive evidence being adduced before the Court of the Rent Controller the parties are not getting an opportunity to cross-examine the statements of such persons or to subject the contents of such documents to challenge and thereby the conclusion arrived at by the ld. Rent Controller on the basis of such oral or documentary evidence will suffer from the infirmity that such evidence is unilaterally taken. 10. Mr. Sahoo has relied upon a host of other decisions as follows. He refers to AIR 1975 H.P. 43 wherein it was held that question of estoppel did not come as the agreement was found void and the tenant was competent to seek fixation of fair rent before the Rent Controller ignoring the agreement. But this case is inapplicable to our present case because of the distinguishing feature that in the former the agreement was found to be void. In the present case it has not been proved that the agreement was suffering from any infirmity or loop-hole and unlike in the case under reference there has been no finding here to the effect that the agreement was void or voidable. 11. Mr. Sahoo draws my attention to page 161 of the 9th Edition of the W.B.P.T. Act by Susanta Sen and submits that the Rent Controller exercises under sections 151, 152, Order 47 and Order 6, Rule 17 etc. of the Civil Procedure Code and therefore he has the power to appoint the Advocate-Commissioner under section 151 C.P. Code and in that view of the matter the finding of the ld. Asstt. District Judge that the Rent Controller was not competent to appoint any Advocate-Commissioner as is usually done by a Civil Court is erroneous. But I am not impressed by this argument. Appointment of an Advocate-Commissioner is not to be made under the provisions of section 151 C.P. Code, because there is a specific section devoted to this subject in the Code. This is Order 26 C.P.C. wherein the issue of Commission by a Court has been provided for. It is a well established position and principle that section 151 of the Civil Procedure Code cannot be invoked in a case where there is a specific provision in the Code for the purpose. This is Order 26 C.P.C. wherein the issue of Commission by a Court has been provided for. It is a well established position and principle that section 151 of the Civil Procedure Code cannot be invoked in a case where there is a specific provision in the Code for the purpose. In case of the Rent Controller, although the certain sections of the Code have been expressly mentioned as being capable of being resorted to by the Rent Controller while disposing of any matter as a Civil Court, the provisions of Order 26 of the Code have been deliberately excluded indicating the intention of the legislature not to clothe the said forum with such a power. Therefore from that point of view the findings of the ld. Asstt. District Judge do not appear to be suffering from any error of law. 12. Mr. Sahoo refers to still another ruling reported in 59 C.W.N. 158 wherein it was held that rent must be fair and reasonable and it could be determined on the basis of evidence and according to Mr. Sahoo the report of the Advocate-Commissioner constitutes the data forming the basis of the finding of the ld. Rent Controller and in addition to such data the ld. Rent Controller also relied upon the valuation done by the Municipality concerned. But as I have observed above, those data have not stood the test of cross-examination and they having not been admitted into evidence in accordance with the rules, the Court not being in a position to give an opportunity to the other side to subject them to cross-examination, it will be against the principles of natural justice to place any reliance on them and come to any conclusion regarding the question on the basis of such papers. 13. Mr. Sahoo has not stopped here. He cites still another decision of a Division Bench of this Court reported in AIR 1982 Cal. 473 to advert to his point that where fair rent cannot be fixed by the Rent Controller, assessment of annual value can be made the basis of the contractual rent, but here also the annual value which has been determined by experts in respect of the premises in question has to be adduced into evidence in accordance with the accepted norms and rules and the ld. Rent Controller cannot be permitted to base his findings on such statistics which are treated in the eye of law as inauthentic. 14. Mr. Adhikary, ld. Counsel for the O.P. has on the other hand rightly argued that here the principle of estoppel as envisaged under section 115 of the Evidence Act will come into play and the tenant having failed to establish his allegation that he was coerced by the landlord to accept the agreement of tenancy and put his signature thereon will be estopped from denying the effect of the said tenancy agreement. He by his act and conduct signing the agreement voluntarily prompted the landlord to believe in his words and to move and act in a particular fashion on the basis of such belief and subsequently he cannot be allowed to depart from that original stand. According to Mr. Adhikary, in such a case the provisions of section 10 of the W.B.P.T. Act will pale into insignificance in view of the operation of the principle of estoppel and the tenant is bound to comply with his own undertaking given in the said agreement. Mr. Adhikary further contends that the principle enunciated in the decisions reported in AIR 1975 Gujarat 140, AIR 1958 Bom. (1) and AIR 1970 J. & K. 26 (F.B.) will be applicable to the facts of the present case in so far as it was held in the said judgments that fixation of standard rent for the same premises will be barred by res judicata since the same tenant gave consent to the petition praying for an order fixing the standard rent. Mr. Adhikary further contends that the order of the ld. Addl. Rent Controller appointing an Advocate-Commissioner suffers from illegality in view of the reason that section 75 of the Civil Procedure Code poses a bar in this matter. The ld. Advocate who was appointed as the Commissioner was not an expert in the sense in which the term has been used under the provisions of section 75(e) of the Code. According to Mr. Adhikary, had an Engineer or Architect or a valuer or the like been appointed, then, of course, he could have been taken to be an expert, but in such matters the Advocate could not be treated as an expert. Moreover, according to Mr. According to Mr. Adhikary, had an Engineer or Architect or a valuer or the like been appointed, then, of course, he could have been taken to be an expert, but in such matters the Advocate could not be treated as an expert. Moreover, according to Mr. Adhikary, Rent Controller is not a Civil Court and the provisions of section 75 C.P.C. would not be applicable for him. The Rent Controller was the statutory authority being entrusted to do the work of determining fair rent and it is he and no other person who could be the authorised officer in such respect and his engaging another person for the purpose could not be lawful. That apart, the Advocate-Commissioner did not serve any notice not serve any notice on his client and, therefore, what he did was in the absence of the landlord and therefore from the stand-point of the principles of natural justice such one sided enquiry could not have any authenticity. Mr. Adhikary in this connection refers to the decisions reported in AIR 1970 J. & K. 26 and 59 C.W.N. 235 wherein the guidelines as to how a Rent Controller should proceed with such a work have been spelt out. 15. Mr. Adhikary's contention is quite substantial and forceful that the principles of estoppel will be applicable to this case under which the tenant will be estopped from taking the plea that the rent which he accepted as per the terms of the agreement entered into between him and the landlord is not reasonable or fair and the same should be reduced. Under section 115 of the Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. It has been a well settled principle that a man cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and at another time say that it is void for the purpose of securing further advantage (vide AIR 1933 P.C.167 and AIR 1960 Cal 65 ). It is also an universally accepted principle that when a party has taken benefit under an agreement, it cannot be allowed to take up a new position subsequently and a person cannot challenge validity of an agreement after getting the relief thereunder. It is another established principle that a party cannot be permitted to assume inconsistent position in the Court to play fast and loose, to blow hot and cold, to the detriment of his opponent and he cannot say at one time that the transaction is valid and thereby obtained some adventage to which he could only be entitled on the footing that it is valid and at another say it is void for the purpose of securing some further advantage. In the present case the tenant did not raise any objection either before or immediately after his entering into the agreement with the landlord and he has also failed to prove his allegation that subsequent to the signing of the agreement with the landlord he raised any objection to him or he requested him to reduce the amount of rent on the plea that it was not fair. He has also totally failed to prove that his allegation that the landlord has exercised force or coercion upon him to sign the agreement of tenancy in question. That being the position, he having accepted the terms of the agreement including the amount of the rent in question, cannot be allowed to subsequently depart from that stand raising such a false plea, because, the principle of estoppel as enshrined under section 115 of the Evidence Act cited above will definitely stand in his way. 16. Mr. Sahoo draws my attention to the surroundings of the suit house in order to bring home his point that the Court of the first instance, viz., the ld. Addl. Rent Controller, was quite justified in reducing the quantum of rent by about Rupees Four hundred a month. Thus he refers to the Annexure-A which shows the presence of Khatal, cowdung and the like creating nuisance around the tenanted premises in dispute. Mr. Sahoo further points to the fact of existence of water scarcity afflicting the tenement. According to Mr. Sahoo all these short-comings considerably lessened the value of the tenanted premises in terms of its rental and the findings of the Rent Controller determining the fair rent at Rs.450/- was fully justified. 17. Mr. Sahoo further points to the fact of existence of water scarcity afflicting the tenement. According to Mr. Sahoo all these short-comings considerably lessened the value of the tenanted premises in terms of its rental and the findings of the Rent Controller determining the fair rent at Rs.450/- was fully justified. 17. Apart from the fact that such allegations of the petitioner have not been supported or substantiated by cogent evidence, as it has been found by the Appellate Court, another infirmity is that this Court is not competent to enter into an assessment as to whether the findings of fact arrived at by the Court below are correct or not. Because, it is neither an appeal, nor a revisional application either under section 397 read with section 401; or under section 482, Cr. P.C. This is an application under Article 227 of the Constitution and what can be done under the aforementioned sections of the Code cannot be done by this Court while exercising the power of general superintendence under the said Article of the Constitution. According to the well established principles governing the scope and the conditions for interference by this Court under the said Article in the following cases such interference may be called for where there is (1) Erroneous assumption or excess of jurisdiction, or, (2) Refusal to exercise jurisdiction, or, (3) Error of law apparent on the face of the record, as distinguished from a mere mistake of law or error of law relating to jurisdiction, or, (4) Violation of the principles of natural justice, or, (5) Arbitrary or capricious' exercise of authority, or discretion, or, (6) Arriving at a finding which is perverse or based on no materials. 18. It goes without saying that the impugned order does not suffer from any jurisdictional error, nor there can be any criticism on the score of any violation of natural justice. Nor can it be said that there has been any error apparent on the face of record or there has been any arbitrary or capricious exercise of authority or discretion. The only question is whether the impugned findings can be said to be perverse or totally unfounded. As I have discussed above, the Appellate Court below has scanned the evidence adequately and has come to his findings in the light of the law which, according to him, should be applicable here. The only question is whether the impugned findings can be said to be perverse or totally unfounded. As I have discussed above, the Appellate Court below has scanned the evidence adequately and has come to his findings in the light of the law which, according to him, should be applicable here. It appears that he has drawn his conclusions on the basis of the materials available on record and by no means such findings can be termed as perverse or against the weight of the evidence. It is a well recognised principle that as regards findings of fact of the inferior Court, the jurisdiction of Article 227 is limited to only examining whether the subordinate Court kept itself within the bounds of its authority in reaching such findings of fact (Babloo vs. Lakshimbai, reported in AIR 1975 SC 1297 ). Hence, if there is no perversity in the impugned order, this Court cannot quash the judgment of the subordinate Court merely on the ground that its findings of facts were erroneous. This Court could interfere with such order if the Court below came to its conclusions without any evidence or upon a misreading of the evidence, or, it suffered from perversity (Gopala vs. N.P. Trust, reported in AIR 1978 SC 347 ). It should not be forgotton that under Article 227 the High Court cannot be reduced into an ordinary Court of fact-finding and its task cannot be like the Courts of appeal or revision to embark on a scanning of the evidence and to see whether the finding of facts arrived at by the Courts below are correct or not. The High Court will have a positive role in a petition under Article 227 only when the abovementioned exceptions can been alleged to have taken place. 19. In view of all the above reasons, I do not find any merit in this application under Article 227 of the Constitution and the same is dismissed. The impugned order be arrirmed. Later: 20. Let urgent xerox certified copy of this order, if applied for, be given to the ld. Advocates for the parties within seven days from the date of putting in the requisites. Appeal dismissed.