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2007 DIGILAW 869 (CAL)

Suparna Boss v. Santanu Majumdar

2007-12-13

RUDRENDRA NATH BANERJEE

body2007
JUDGMENT:- (1). THE defendant petitioner Smt. Suparna Bose filed the instant application for revision challenging the order dated October 1, 2007 passed by learned civil Judge, Senior Division, 9th Court at Alipore, District South 24-Parganas in Title Suit No. 11 of 2007. (2). THE opposite party/plaintiff Dr. Santanu Majumdar filed the Title suit No.11 of 2007 in the said Court against the present petitioner for eviction and khas possession from the ground floor of the building at premises in 1/223/1, Gariahat Road, Jodhpur Park on the ground of expiry of the period of agreement between the parties. The said tenancy was for commercial purpose and by the said agreement of tenancy dated October 1, 2004 the rent was fixed at Rs. 5500/- along with another sum of Rs. 5500/- being the service of maintenance charges totaling an amount of Rs. 11000/-payable according to English Calendar months. (3). THE defendant petitioner filed an application before the learned Court below under Section 7 (2) of the West Bengal Premises Tenancy Act for determination of the rate of rent and for mode of adjustment of the advance already paid with the monthly rent due. Such application of the defendant petitioner was disposed of on contest by the learned Court below by the impugned order dated 1.10.07 holding that the rent was actually Rs. 11000/-per month (Rs. 5500/- as rent and Rs. 5500/-as maintenance charges) as such the West Bengal Premises Tenancy Act, 1997 is not attracted and accordingly the application under Section 7 (2) of the said Act has been held not maintainable and has been rejected. (4). BEING aggrieved by and dissatisfied with such order of learned Court below the defendant tenant has filed the instant revisional application challenging such impugned order. (5). MR. Prabal Kumar Mukherjee, the learned Advocate appearing for the defendant petitioner has contended first that the petition under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 has been rejected wrongly holding that the petition was not maintainable. The second contention of Mr. Mukherjee is that his client apprehends that the learned Court below has observed that the rent includes common service maintenance charges, i.e. totaling Rs. 11000/-per month and that the suit is governed by the Transfer of Property Act and such observations of the Court are prematured and may be binding upon the defendant at the subsequent stages of the suit. According to Mr. 11000/-per month and that the suit is governed by the Transfer of Property Act and such observations of the Court are prematured and may be binding upon the defendant at the subsequent stages of the suit. According to Mr. Mukherjee if learned Court below only held the petition under Section 7 (2) of the West Bengal Premises Tenancy Act was not maintainable he would not have come forward with this revisional application as there is no specific allegation of default. (6). MR. Jyotirmoy Guha, the learned Advocate for the opposite party/ plaintiff, on the other hand, has argued that such rate of rent had to be ascertained by the learned Court below as the same was necessary for the purpose of determination of maintainability of the petition of the tenant and for holding whether this Act of 1997 could be applicable to the present suit or such suit for eviction was to be filed before learned Rent Controller. (7). BEFORE coming to the impugned order let us make it clear that the term rent has not been defined in both the West Bengal Premises Tenancy act, 1956 and that of 1997, although both the acts speak of the scope of determination of the rate of rent and arrears of the rent by the Court on the petition of the defendant tenant, in a suit for eviction of such tenant whether it is on the ground of default or otherwise. Now the question as to the forum in which such suit for eviction will be filed depends on certain condition. Be it mentioned in this connection that the tenancy being created in the year 2004 and suit being of the year 2007, it is the new Premises Tenancy Act of 1997 which is to be applicable if not the provisions of the Transfer of Property Act. (8). UNDISPUTEDLY, the tenancy was for commercial purpose as is evident from the agreement between the parties creating the tenancy dated October 1, 2004. In view of the Section 13 (f) (l) of the West Bengal Premises Tenancy act, 1997 such Act is not applicable to premises if let out for non-residential purpose and if it carries rent more than Rs. 10,000/-for the premises within the limits of the Calcutta Municipal Corporation or the Howrah Municipal corporation. Such act is also not applicable if the rent is more than Rs. 10,000/-for the premises within the limits of the Calcutta Municipal Corporation or the Howrah Municipal corporation. Such act is also not applicable if the rent is more than Rs. 5000/- per month in other areas to which the Act also extends. Incidentally the suit premises is situated with Kolkata Municipal Corporation. (9). NOW, the defendant petitioner filed an application under Section 7 (2) of the West Bengal Premises Tenancy Act, 1997 for determination of rate of rent. Learned Court below has observed that the rent includes the charges for maintenance of common services. The undisputed deed of tenancy between the parties provides that the rent of the suit premises including two bed rooms, one kitchen-cum-dining room, one drawing room, one covered varandah, two bathrooms and garage carries a rent of Rs. 5500/-per month along with another sum of Rs. 5500/-being the service of maintenance charges totaling an amount of Rs. 11000/-payable according to English calendar month, which has been agreed upon by the parties. Now the contention of Mr. Mukherjee, the learned Advocate for the petitioner is that the said amount of Rs. 5500/- payable on account of charge of maintenance of common services cannot be included under the term rent and accordingly petition ought to have been held maintainable. (10). THE learned Advocate for the petitioner has cited the decision quoted in 2007 (1) SCC 202 (Hotel Kings and Ors. v. Sara and Farhan Lukmani and ors.) and has submitted that the said amount of Rs. 5500/-as maintenance charge may come at best under term permitted increase in rent and cannot be treated as rent for the purpose of ascertaining the jurisdiction of the forum for entertaining the suit for eviction and applicability of the Act. It appears that in the said decision under the Bombay Rents Hotel and Lodging House rates Control (Amendment) Act, 1986 required the landlord to pay to the government some additional revenue or tax and such additional payment will entitle the landlord to realise such amount from the tenant. In such a case such permitted increase will be payable by the tenant as part of the rent itself. In such a case such permitted increase will be payable by the tenant as part of the rent itself. Honble Supreme Court took the view that although permitted increase in the form of payable cess by operation of law has been made a component of the rent payable by the tenant, but when the lessee has been required to pay the rates and taxes and other outgoings and the landlord has been given the right to effect permitted increase equivalent to the amount paid towards rates and taxes the same does not become component of rent, though it may be a consideration for the grant of lease. Here, in the present case the charge of maintenance has been included as a monthly charge payable along with the rent as agreed upon between the parties and not by any operation of law. Both the charges cannot be made separate from each other and have been provided by the self same document at self same place. This being the position the said decision does not come to any help of the petitioner. (11). IT has already been mentioned that neither the old Premises Tenancy act nor the New one nor the General Clauses Act provides for any definition of the term rent. Mr. Guha, the learned Advocate for the O. P. has cited the decision reported in 1975 (1) CLJ 204 (Usha Ranjan Bhattacharya v. Mahalaksmi Thacker and Anr.) in support of his contention. In the said decision the rent was Rs. 99/-per month and in addition to that the tenant was liable to pay a sum of Rs. 11/-as charges for the use of lift, water and scavanding services. Learned Single Judge of this Court (as His Lordship then was) held the total rent as Rs. 110/-per month. (12). LEARNED Advocate for the opposite party has also cited the decision reported in 1995 (1) CLJ 292 (Lt. Col. G. L Ganguly v. Arun Kumar Mukherjee)in support of his contention that such charge of maintenance shall be included by the term rent. Learned Single Judge of this Court in the said decision has held that, "the rent is a generic term which normally includes all the ingredients included with the compass in lieu of occupation of a tenant. Col. G. L Ganguly v. Arun Kumar Mukherjee)in support of his contention that such charge of maintenance shall be included by the term rent. Learned Single Judge of this Court in the said decision has held that, "the rent is a generic term which normally includes all the ingredients included with the compass in lieu of occupation of a tenant. This court after taking note of definition of premises coupled with definition of tenant as contemplated in Section 2 (f) and 2 (h) of the West Bengal Premises tenancy Act holds and opines that any furniture fittings and fixtures for the overall user of the tenancy of which charges are levelled would come within the purview of the compass of the connotation of rent. " (13). LEARNED Advocate for the opposite party has also cited the decision reported in 1979 (2) CLJ 297 (Sm. Parul Banerjee v. Sri Anand Kumar Agarwalla)wherein the Honble Division Bench has held that the term rent is comprehensive enough to include all payment agreed by the payment to be made to his landlord for the use and occupation not only of the building and its appurtenances but also call furnishing electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. (14). LEARNED Advocate for the petitioner has also cited the decision reported in 2002 (5) SCC 51 (Abdul Kader V. G.D. Govindaraj (Dead) Bu Lrs).. In the said case under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the agreed rent was Rs. 100/-per month, but over and above the amount of rent the tenant also agreed to pay to the landlord a sum of Rs. 1117- equivalent to one-half to the annual property tax in respect of the property. In such a case rent was held inclusive of such part of the property tax. (15). IF we look Section 105 of the Transfer of Property Act which defines rent in a lease we find that rent has been defined as the consideration of price paid or promised or of money, share of corps, service or any other thing of value so rendered. Thus, in the present case the charge of maintenance payable along with the rent being agreed upon by the parties the same is also included as rent. (16). Thus, in the present case the charge of maintenance payable along with the rent being agreed upon by the parties the same is also included as rent. (16). THUS considering all such facts and circumstances and the decisions cited I find that the tenant petitioner agreed to pay along with the rent the maintenance charge on monthly basis the total amount being Rs. 11,000/-and such agreement was entered into between the parties by the self same document. Thus, there is no scope of separating such amount of Rs. 11/000/- in two parts for the purpose of ascertaining the jurisdiction of the Court. Thus, I do not find anything illegal or wrong in the impugned order to set aside the same totally and I am quite agreeable with the view of learned Court below that the instant tenancy does not come within the purview of West Bengal Premises Tenancy Act, 1997. (17). THIS being the position of law and facts the case appears to fall within the purview of the general law i. e. Transfer of Property Act and the petitioner-tenant is evictable under the said Act and not under the West bengal Premises Tenancy Act, 1997 and learned Court below has rightly rejected the application under Section 7 (2) of the West Bengal Premises tenancy Act, 1997 as not maintainable. (18). BUT, it is not understood as to what prompted the learned Court below to go further and to decide whether the maintenance charge was revisable. It may be remembered that there is no scope of filing any separate similar application for determination of the rate of rent and arrears of rent under the Transfer of Property Act. The written statement, it is submitted, has been filed by the tenant defendant but no issue of the suit has been framed by learned Court below as such there was no question of consideration of such issues of rate of rent or arrears of rent. (19). MR. Mukherjee, learned Advocate for the petitioner apprehends that such observation of learned Courts below in relation to determination of rent may act as resjudicata in the subsequent stage of the trial. The suit is one for eviction of tenant under Transfer of Property Act and accordingly it is not known as to how the rate of rent becomes relevant for evicting the tenant. The suit is one for eviction of tenant under Transfer of Property Act and accordingly it is not known as to how the rate of rent becomes relevant for evicting the tenant. Of course, for calculation of arrears of rent, if necessary for passing a money decree such issue may be necessary. In such case learned Court below must frame the required issue for determination of the same and shall decide the matter according to law. (20). ACCORDINGLY, the instant Revisional application fails. There shall be no order as to costs.