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2006 Supreme(Cal) 67
High Court Of Calcutta
Kalyan Jyoti Sengupta
CALCUTTA GUJARATI EDUCATION SOCIETY - Appellant
Versus
KAMARHATY COMPANY LIMITED - Respondent
C. S. 154 Of 2005
Decided On : 02/07/2006
The fair rent for a tenancy governed by the West Bengal Premises Tenancy Act, 1997 must be fixed by the Rent Controller if there is any dispute, and mere service of notice under Section 20 of the Act does not automatically entitle the landlord to demand increased rent.
Headnote:
Kalyan Jyoti Sengupta - Eviction Suit - Applicability of West Bengal Premises Tenancy Act, 1997 - Interpretation of Section 3(f) and Section 17(4a) - Maintainability of Suit under West Bengal Societies Registration Act, 1961.
Fact of the Case:
Plaintiff, a society registered under the West Bengal Societies Registration Act, 1961, filed a suit for eviction of the defendant from a commercial premises, claiming rent arrears and mesne profits. The tenancy was created in 1972 at a rent of Rs. 8070/- per month, and the plaintiff claimed that the rent was enhanced to Rs. 53,262/- per month in 2003 under Section 17(4a) of the West Bengal Premises Tenancy Act, 1997 (the Act). The defendant resisted the suit, contending that the tenancy was governed by the Act and not the Transfer of Property Act, 1882, and that the rent could not be increased without determination by the Rent Controller.
Finding of the Court:
The court held that the suit was not maintainable under the West Bengal Societies Registration Act, 1961, as the plaintiff society could only be represented by its office-bearer or secretary, and the cause title did not mention the name of the secretary. The court also held that the issue of whether the tenancy was governed by the Act or the agreement between the parties was a triable issue. On the interpretation of Section 3(f) and Section 17(4a) of the Act, the court held that the fair rent had to be fixed by the Rent Controller if there was any dispute, and that mere service of notice under Section 20 of the Act did not automatically entitle the landlord to demand increased rent.
Issues: 1. Maintainability of the suit under the West Bengal Societies Registration Act, 1961. 2. Applicability of the West Bengal Premises Tenancy Act, 1997 to the tenancy in question. 3. Interpretation of Section 3(f) and Section 17(4a) of the West Bengal Premises Tenancy Act, 1997.
Ratio Decidendi: 1. A suit by a society registered under the West Bengal Societies Registration Act, 1961 must be filed and defended by the office-bearer or secretary of the society, and the cause title must mention the name of the office-bearer or secretary. 2. Whether a tenancy is governed by the West Bengal Premises Tenancy Act, 1997 or an agreement between the parties is a triable issue. 3. Section 3(f) of the West Bengal Premises Tenancy Act, 1997 exempts from the Act's provisions any premises let out for non-residential purposes that carry more than Rs. 10,000/- as monthly rent in the areas included within the limits of the Kolkata Municipal Corporation or the Howrah Municipal Corporation. 4. Section 17(4a) of the West Bengal Premises Tenancy Act, 1997 provides a basis for calculating the increase in rent for tenancies that have subsisted for 20 years or more in respect of premises constructed in or before 1984 and used for commercial purposes. However, the fair rent must be determined by the Rent Controller if there is any dispute.
Final Decision: The court dismissed the plaintiff's application for final judgment under Chapter XIIA of the Code of Civil Procedure and granted the defendant leave to file a written statement unconditionally. The court also directed cross-order for discovery and inspection of documents.
( 1 ) THE summons has been taken out by the plaintiff to write final judgement for eviction of the defendant from a portion of the premises No. 16a, Brabourne road also known as 29, Pollock Street, Kolkata - 700 001 ad measuring 8070 sq. ft. situates on the 8th floor of the demised premises (hereinafter referred to as the said premises ). The defendant has been a tenant of the said demised premises at a rent of Rs. 8070/- per month together with property tax at the rate of Rs. 282. 45p. and surcharge at the rate of Rs. 1012. 78p. per month aggregating to Rs. 9365. 23p. per month inducted by the plaintiff No. 1. The aforesaid tenancy was created by and under an agreement dated 12th december, 1972. It is a case of the plaintiff that the relationship of the landlord and tenant in respect of the demised premises shall not be governed by the west Bengal Premises Tenancy Act, 1997 thereinafter referred to as the said act) in view of the provision of Section 3 (f) as the same was let out for non-residential purpose and now it carries rent of Rs. 53,262/- per month in terms of Section 3 (f) (i) of the said Act. As such obviously this tenancy is to be governed under the provisions of the Transfer of Property Act, 1882 (hereinafter referred to the Act, 1882 ). According to the plaintiff this tenancy subsists for more than 24 years in respect of this building which was constructed in or before the year, 1984 and the same is used for commercial purpose. By operation of provision of Section 17 sub Section (4a) of the said Act the rent of the said premises is required to be determined and in fact has been determined at the aforesaid rate on and from 1 st September, 2003. As such a notice under Section 20 for increase of rent has been served. The defendant failed and neglected to pay the said rent at the enhanced rate. Besides, the defendant contrary to the agreement of tenancy unauthorizedly sublet and/or assigned a portion of the premises. In view of the aforesaid tenancy has been determined by serving a notice under Section 106 of the Transfer of Property Act. Inspite of such notice the defendant failed and neglected to vacate and quit the aforesaid premises. Apart from claiming relief of eviction the other monetary reliefs are also claimed, viz. a decree for the sum of Rs. 10,91,144. 60p. together with interim interest and interest on judgement at the rate of 10% per annum; judgement and decree for mesne profit at the rate of 17% aggregating to Rs. 1,37,190/- per month on and from 1st May, 2005 till delivery of vacant and peaceful possession of the said demised premises.
( 2 ) THE defendant has filed affidavit-in-opposition to resist this application and made out defence that this suit is not maintainable. The tenancy is governed by the
aforesaid Act not by the Act of 1882. It is further stated that the question of paying rent at the enhanced rate as notified by the plaintiff does not and cannot arise in view of the written agreement of the tenancy and rent of the said demised premises would remain static and there will be no change nor revision. It is further stated that there has been no determination of the rent at the enhanced rate as required under Section 17 of the said Act. The provisions of Section 17 (4a) of the said Act has no automatic operation or applicability.
( 3 ) MR. Pratap Chatterjee learned Senior Advocate, while supporting this application, appearing for the plaintiff, submits that in this case no defence has been made out by the defendant. Admittedly this building was constructed in or before 1984 and the tenancy has been subsisting for a period of 20 years or more viz from 1976, as such the notice intending to increase rent under section 20 has been given by his client in the month of July, 2003. So the rate of rent now exceeds Rs. 10,000/ -. In view of the provision of Section 3 (f) of the said Act the protection against eviction of the defendant given under the said act is not available and
