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2019 DIGILAW 153 (CAL)

Vandana Agarwalla v. Parichand Ghoshal

2019-01-30

SABYASACHI BHATTACHARYYA

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JUDGMENT : Sabyasachi Bhattacharyya, J. 1. The present challenge is directed against an order whereby the Controller, Kolkata, under the West Bengal Premises Tenancy Act, 1997 refused the petitioners' prayer for amendment of their application under Section 17 of the said Act, primarily on the ground of delay. 2. The learned advocate appearing on behalf of the petitioners argues that, by virtue of the proposed amendment, the petitioners sought to bring in relevant facts in consonance with a judgment in the case of Mohammad Ahmad & anr. vs. Atma Ram Chauhan & ors. reported at 2011 (7) S.C.C. 755 , about which the petitioners came to know much later and thereafter filed the amendment application. The said judgment apparently pertains to consideration of the current market rent of suit premises for the purpose of ascertaining the amount payable for occupying tenanted premises. It is further argued that since the amendment was governed by Section 39(11) of the 1997 Act, the proviso to Order VI Rule 17 of the Code of Civil Procedure was not applicable and delay could not be a fetter in allowing the said amendment, more so since the amendment was necessary for a complete adjudication of the application under Section 17 of the said Act. 3. The learned advocate appearing on behalf of the tenants/opposite parties argues, by placing reliance on a division bench judgment of this court in the case of AVO Engineers (P) Ltd. vs. India Ice Aerated Water & Cold Storage Co. Ltd. reported at 2006(2) C.H.N. 384 , that service of a notice under Section 20 of the 1997 Act is a pre-requisite of filing an application under Section 17 of the said Act. It is argued that since, in the present case, the landlord served a notice under Section 20 of the 1997 Act in terms of fair rent as stipulated under Section 17(4A) of the said Act, the landlord could not now resile from that position and demand fixation of fair rent in terms of the current market rent in the locality. As such, it is argued, the proposed amendment was redundant and mala fide since it was filed at a much belated stage. 4. In reply, the learned advocate for the petitioners submits that the cited decision is not applicable to the present case, since the consideration therein was factually different from the instant case. As such, it is argued, the proposed amendment was redundant and mala fide since it was filed at a much belated stage. 4. In reply, the learned advocate for the petitioners submits that the cited decision is not applicable to the present case, since the consideration therein was factually different from the instant case. Moreover, it is argued, since Section 20 of the 1997 Act does not envisage any specific ground for enhancement to be given, the landlord could not be said to be bound by whatever was stated in such notice, at least for the purpose of adjudication under Section 17 of the 1997 Act. 5. Upon hearing both sides, it appears that in the present case a notice under Section 20 of the 1997 Act was admittedly issued by the landlord, apparently taking into consideration the yardsticks of Section 17(4A) of the 1997 Act. However, Section 17 does not stipulate a notice under Section 20 of the said Act as a pre-requisite for taking out an application under the former provision. Section 20 and Section 17 of the said Act operate in entirely different fields and Section 20 has to be on the premise of self-assessed fair rent of the landlord, which takes effect after expiry of one month from the said notice. In the event the tenant does not concede to a notice under Section 20, it is always open to both the sides to approach the Controller under Section 17 of the 1997 Act. However, the applicability of Section 17 is not restricted only to such a situation but is irrespective and independent of a notice under Section 20 of the said Act. Even without any notice under Section 20, the landlord as well as the tenant may approach the Controller for fixation of fair rent. 6. As far as the cited judgment is concerned, the same was rendered in a different context. In the said case, the Company Judge, while admitting a winding up petition, had directed the appellant therein to make payment at the enhanced rate in terms of Section 17(4A) of the 1997 Act. 6. As far as the cited judgment is concerned, the same was rendered in a different context. In the said case, the Company Judge, while admitting a winding up petition, had directed the appellant therein to make payment at the enhanced rate in terms of Section 17(4A) of the 1997 Act. It was held by the division bench, inter alia, that in the absence of a notice under Section 20 or a proceeding under Section 17 of the said Act, the Company Judge could not have directly asked the tenant to comply with the terms of Section 17(4A) of the 1997 Act. It was also held that without giving an opportunity to the tenant, the fair rent could not be determined by the landlord, that too without serving any notice under Section 20 of the 1997 Act. It was further recorded that it was the duty of the landlord to apply before the Controller for fixing the fair rent without taking the burden on his shoulder to fix the same in accordance with the provisions of Sections 17(4A) and 17(4B) of the said Act. The division bench held that for non-service of a notice under Section 20, the claim of the petitioning creditor was premature and the winding up petition had to fail on that ground also. 7. The aforesaid context is entirely different from the present case. It was never held in the said decision that a notice under Section 20 of the 1997 Act was a pre-requisite in every case of the landlord applying under Section 17 of the 1997 Act for adjudication of fair rent before the Controller. 8. As such, the present landlord cannot be held to be bound by the yardsticks applied by the landlord in issuing the notice under Section 20 of the said Act. 9. In the event the tenant had acceded to the notice under Section 20, probably no reason could have arisen for the landlord to approach the Controller for adjudication of fair rent under Section 17 of the 1997 Act. 9. In the event the tenant had acceded to the notice under Section 20, probably no reason could have arisen for the landlord to approach the Controller for adjudication of fair rent under Section 17 of the 1997 Act. Since it was never the case of either side that the tenant had acceded to the notice under Section 20, it cannot now lie in the mouth of the tenant that the landlord could not subsequently approach the Controller for adjudication of fair rent under Section 17 of the Act and asked the Controller to apply his own yardsticks in so adjudging. 10. A further ingredient has to be taken into consideration in the present context, it being that Section 17(6) of the 1997 Act mandates that where none of the foregoing provisions was applicable to the premises, fair rent shall be such as would be reasonable, having regard to the situation, the locality and condition of the premises and the amenities provided therein and, where there are similar premises in the locality, having regard also to the rent payable in respect of such premises. In such context, it cannot be held, at least at the stage of adjudicating upon an amendment application, that the yardsticks laid down in the Supreme Court decision of 2011 are entirely not applicable in a Section 17 scenario. 11. In such view of the matter, it would be prejudging the merits of the proposed amendment, which is contrary to settled law, in the event the court comes to a finding at this juncture as to the applicability and relevance of the proposed amendment with regard to the application under Section 17 of the 1997 Act. 12. Furthermore, since the tests of Section 39(11) of the 1997 Act are different from those stipulated in proviso to Order VI Rule 17 of the Code of Civil Procedure, the Controller acted without jurisdiction in importing the spirit of such proviso in rejecting the amendment, although the same was necessary for proper adjudication of the dispute involved as contemplated in Section 39 (11) of the 1997 Act. 13. Hence, the revisional application bearing C.O. 705 of 2018 is allowed on contest, thereby setting aside the impugned order and allowing the amendment application filed by the petitioners before the Rent Controller. 13. Hence, the revisional application bearing C.O. 705 of 2018 is allowed on contest, thereby setting aside the impugned order and allowing the amendment application filed by the petitioners before the Rent Controller. The petitioners shall file their amended application under Section 17 of the 1997 Act within a fortnight from date before the Controller. In the event the opposite parties want to file any additional written objection to the amended application under Section 17 of the said Act, the opposite parties will be free to do so within a fortnight from the date of filing of the amended application, as indicated above. The Controller is requested to dispose of the main proceeding pending before him as expeditiously as her/his business permits, preferably within four months from the date of communication of this order to the Controller. 14. There will be no order as to costs.