The notice under Section 20 of the 1997 Act is not a pre-requisite for taking out an application under Section 17, and an amendment necessary for proper adjudication of the dispute involved cannot be rejected by the Controller.

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. 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. It was held by the division bench, inter alia, that in the a