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2011 DIGILAW 1109 (CAL)

Sudeb Mukherjee v. Assistant Engineer

2011-08-16

SYAMAL KANTI CHAKRABARTI

body2011
JUDGMENT 1. THE Judgment of the Court was as follows : In the instant revisional application under Article 227 of the Constitution order dated 26.11.2009 passed by the learned Rent Controller, Siliguri in Rent Control Case No. 12 of 2003 arising out of an application under Section 20 read with sub-section 4A of Section 17 of the West Bengal Premises Tenancy Act, 1997, as amended, has been assailed. 2. LEARNED Lawyer for the petitioner submits that the learned Rent Controller considered the basis of a put up petition on 26.11.2009. On that date the learned Advocate for the petitioner stated that the opposite party as well as the GP attended before the Court and the opposite party (Assistant Engineer, Survey Sub Division-ll, Public Health Engineering Directorate, Station Feeder Road (S.F. Road), Siliguri agreed before the Court to pay fair rent and the then Rent Controller has been pleased to pass order for fair rent as per norms of WBPT Act. LEARNED Advocate for the petitioner further stated that the then Rent Controller did not fix the rate of actual rent in his order dated 12.03.2009 and so he had prayed before the Rent Controller to pass order specifying the exact amount of rent to be paid by the opposite party. After due consideration of the above circumstances the learned Rent Controller by his order dated 26.11.2009 held that necessary instruction is required from the learned Legal Remembrancer, West Bengal on the following points : (a) Jurisdiction of Rent Controller under Section 17(4 A) where the tenant opposite party is Government Department; (b) Once order passed for fair rent what can be done by the subsequent Rent Controller AND (c) Whether the rent will be fixed by the Rent Controller or LA Collector. Being aggrieved by and dissatisfied with such order the instant revisional application has been preferred on the grounds of error apparent on the face of record. It is contended on behalf of the petitioner that the Rent Controller is vested with exclusive jurisdiction to fix the fair rent in accordance with sub-section 1 of Section 17 of the West Bengal Premises Tenancy Act, 1997, as amended subsequently, in the manner prescribed under the provision of sub-section 4A of Section 17 of the Act. It is contended on behalf of the petitioner that the Rent Controller is vested with exclusive jurisdiction to fix the fair rent in accordance with sub-section 1 of Section 17 of the West Bengal Premises Tenancy Act, 1997, as amended subsequently, in the manner prescribed under the provision of sub-section 4A of Section 17 of the Act. Therefore, the Rent Controller, Siliguri has no jurisdiction to reopen the case and seek clarification from the learned Legal Remembrancer, West Bengal since his predecessor-in-office already determined the issue in respect of fixation of the fair rent and closed the case. Therefore, his order dated 26th November, 2009 is an endeavour to modify the earlier order dated 12th March, 2009 of his predecessor-in-office and in derogation of the statutory provisions of Section 17 of the Act. It is further contended that the fair rent fixed by the predecessor-in-office of the Rent Controller with effect from October, 2003 was accepted by the opposite party. Therefore, the said order is not sustainable either in law or in fact and is liable to be set aside. 3. IN their affidavit-in- opposition the opposite party has contended that the instant revisional application is not maintainable in its present form as because the ostensible tenants in respect of premises at Milan Pally, Holding No. 407/17 Ward No. 9, S.F. Road, Siliguri, District Darjeeling is the State of West Bengal in the PHE Department which has not been impleaded in this application and as such the application suffers from nonjoinder of necessary parties. 4. IT is further contended that the Government of West Bengal for the purpose of establishing office of Assistant Engineer, Survey Division-ll Public Health Engineering Directorate hired the aforesaid premises on 01.10.1982 from its owner Smt. Sudha Rani Mukherjee which will be reflected from Letter No. 103/SD dated 24.09.1982 of the Executive Engineer, Survey Division Public Health Engineering Directorate. Such tenancy was inducted on the basis of fair rent certificate issued by the Deputy Commissioner, Darjeeling under his Memo No. 1557/LA dated 02.07.1982 at the rate of Rs. 819/- only per mensem. Therefore, the present opposite party being the Assistant Engineer is not at all the real tenant and the rent has been paid upto September, 2003 on 10.03.2004 to the house owner. 819/- only per mensem. Therefore, the present opposite party being the Assistant Engineer is not at all the real tenant and the rent has been paid upto September, 2003 on 10.03.2004 to the house owner. Further, the Assistant Engineer, Survey Division-ll informed the petitioner in his Memo No. 20/SSD-ll dated 18.05.2010 that the office shall have to be shifted to new office building at Babu Para Public Health Engineering Directorate Campus within 31.05.2010 so he has requested to take over the possession of the aforesaid rented office building from him on 31.05.2010 and on the basis of such letter the Assistant Engineer, Survey Division-ll handed over the aforesaid premises on 31.05.2010. 5. IT is further contended that the land owner wrongly claimed the rent bill for 81 months though rent will be actually due from the month of October, 2003 to May, 2010, i.e., for 80 months. IT is also disputed that the claim of rent made by the owner at the rate of Rs. 4,914/- is not tenable because it is not assessed by the Land Acquisition Collector, Darjeeling who is the appropriate authority to fix up the fair rent. The opposite party made several correspondences with the Land Acquisition Collector, Darjeeling or reassessment of reasonable rent for the disputed premises from 2004 onwards, but to no effect. In fact the State of West Bengal is the actual possessor of the property and the Assistant Engineer as the owner never requested the Public Health Engineering Directorate nor submitted any representation to the higher authority for reassessment of rent in respect of such accommodation of the Assistant Engineer, Public Health Engineering Directorate. Therefore, the opposite party is not legally bound to pay revised rent conceded to by the Assistant Engineer in his individual capacity without consent of his higher authority. 6. I have carefully gone through the submission so made by both the parties along with the materials on record. The order under assail dated 26.11.2009 made by the Rent Controller, Siliguri is intended to obtain certain clarification from the learned Legal Remembrancer, West Bengal as mentioned in paragraph 2 above. In this connection the relevant provisions of the powers conferred upon the Controller as envisaged in Sections 17 and 39 of the West Bengal Premises Tenancy Act, 1997 are quoted below : Section 17. In this connection the relevant provisions of the powers conferred upon the Controller as envisaged in Sections 17 and 39 of the West Bengal Premises Tenancy Act, 1997 are quoted below : Section 17. Fixation of fair rent.-(1) The Controller shall, on application made to him either by the landlord or by the tenant in the prescribed manner, fix. the fair rent in respect of any premises in accordance with the provisions of this Act." "Section 39. Powers of Controller.- (1) The Controller may transfer any proceeding pending before him for disposal to any Additional Controller or Deputy Controller or withdraw any proceeding pending before any Additional Controller or Deputy Controller and dispose of such proceeding himself or transfer such proceeding for disposal to any other Additional Controller or Deputy Collector. (2) The Controller shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purposes of (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of document; (c) issuing commission for examination of witness; (d) issuing commission for local investigation; (e) such other matters as may be prescribed. (3) For the purposes of holding an inquiry or discharging any duty under this Act, the Controller may, (a) after giving not less than twenty-four hours notice in writing, enter and inspect, or authorise any officer subordinate to him to enter and inspect, any premises at any time between sunrise and sunset, or (b) by written order, require any person to produce for his inspection such books or other documents relevant to the inquiry, at such time and at such place as may be specified in the order. (4) The Controller may, if he thinks fit, appoint one or more person having special knowledge of the matter under consideration as assessor or valuer to advise him in the proceeding before him." 7. FROM sub-section 4 of Section 39 of the Act it will appear that the Controller may for the purpose of fixation of fair rent appoint one or more person having special knowledge of the matter under consideration as assessor or valuer to advice him in the proceeding before him. FROM sub-section 4 of Section 39 of the Act it will appear that the Controller may for the purpose of fixation of fair rent appoint one or more person having special knowledge of the matter under consideration as assessor or valuer to advice him in the proceeding before him. He has no power to seek legal opinion of the learned Legal Remembrancer, West Bengal whose office is created to assist the State Government to extend legal advice to the State Government and to pass opinion called for in connection with administrative works and litigation with Government. Since the power conferred upon the Controller for the purpose of the act is akin to Civil Court, he will have to exercise his discretionary power to adjudicate the matter on the basis of the specific provisions of the Act. In seeking opinion of the learned Legal Remembrancer, West Bengal the learned Rent Controller, Siliguri has exceeded his jurisdiction and as such the aforesaid order dated 26.11.2009 is not sustainable in law. 8. ADMITTEDLY he has considered the application under Section 20 read with sub-section 4(a) of Section 11 of the West Bengal Premises Tenancy Act, 1997 as amended and as such I hold that the dispute in question shall have to be decided under the West Bengal Premises Tenancy Act, 1997 unless the learned Rent Controller decides that he has lack of jurisdiction in dealing with the matter. It is contended on behalf of the State that the earlier consent of the Assistant Engineer, Survey Sub Division-ll Public Health Engineering Directorate has no legal value whatsoever, is to be considered on the background of the constitutional position of the different departments in terms of the Rules of Business of the Government of West Bengal made by His Excellency the Governor of West Bengal in exercise of the powers conferred under Clause 3 of Article 166 of the Constitution of India. It appears from Chapter XIV that the Public Works Department is headed by a Secretary and Part I of the allocation of duties relates to provision of accommodation under item No. 2 thereof. In the instant case the Assistant Engineer without referring the matter to the Secretary of the Public Works Department has conveyed a decision on his own accord in his individual capacity which is equally not sustainable in law. In the instant case the Assistant Engineer without referring the matter to the Secretary of the Public Works Department has conveyed a decision on his own accord in his individual capacity which is equally not sustainable in law. Therefore, the so-called consent order for revision of the rent for the disputed premises cannot be acted upon. 9. IN this connection the provisions of Section 17 of the West Bengal Premises Tenancy Act, 1997 should be strictly interpreted. Legislator has empowered the office of the Controller to fix the fair rent on the application of the landlord or the tenant as the case may be. The said provision contains that the Controller shall fix the fair rent in the manner specified in Section 39 of the Act. When a discretionary power is conferred on an authority, the said authority must exercise that power after applying its mind to the facts and circumstances of the case in hand. If such condition is not satisfied, there will be clear non-application of mind on the part of such authority concerned. Delegated power vested in the Controller cannot be redelegated to anybody else. Such directions upon the Controller in Section 17 of the Act, in my opinion, is mandatory. The word 'shall' used in the provision clearly indicates legislative intent to identify only the office of the Controller as the specified authority to decide the fair rent. Hon'ble Apex Court in the case of A. K. Jadeja and Anr. v. State of Gujrat reported in (1995)5 SCC 302 has held inter alia, that if a discretion is exercised under the direction or in compliance with some higher authority's instruction, it will be a case of failure to exercise discretion altogether. The same principle, in my opinion will also be applicable in this case. 10. FOR the reasons stated above I hold that the impugned order dated 26.11.2009 passed by the learned Rent Controller, Siliguri is not sustainable in faw and as such the same is hereby set aside. Learned Rent Controller, Siliguri is directed to decide the matter afresh by exercising his own discretionary power contemplated under the West Bengal Premises Tenancy Act, 1997 and the Rules framed thereunder in accordance with law within a period of two months from the date of communication of the order. Learned Rent Controller, Siliguri is directed to decide the matter afresh by exercising his own discretionary power contemplated under the West Bengal Premises Tenancy Act, 1997 and the Rules framed thereunder in accordance with law within a period of two months from the date of communication of the order. It is made clear that in the meantime if any rent is paid on the basis of personal commitment of the Assistant Engineer, Survey Division - II, the same shall be subject to adjustment on the basis of fair rent to be assessed as per above direction. The rights and contentions of both the parties are left open for his consideration and he is directed to pass a reasoned order after hearing both the parties in accordance with law and in light of the observations made above. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.