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IN THE HIGH COURT OF CALCUTTA
Bibhas Ranjan De, J.
Tapas Ranjan Kundu Chowdhury @ Tapas Ranjan - Appellant
Versus
Archana Mukherjee And Another - Respondent
C.O. No. 305 of 2019
Decided On : 08-04-2022
Occupational Charge - Civil Procedure Code - Section 151 - 8, 8.1, 8.2, 8.3 - The court reduced the occupational charge from Rs. 10,000/- to Rs. 7,000/- per month based on the nature and condition of the property, location of the property, and value of the property. The court emphasized the discretionary power of the court to determine the quantum of occupational charge based on the facts and circumstances of each case.
Fact of the Case:
The petitioner/respondent filed an eviction suit which was decreed, and the appellants filed an appeal. The court initially directed the appellants to pay occupational charges at Rs. 10,000/- per month, but later reduced it to Rs. 7,000/- per month based on the serious ailment of the respondent. The petitioner/respondent contended that the judge did not consider the area and location of the premises.
Finding of the Court:
The court found that the judge modified the occupational charge based on the serious ailment of the respondent, which was not a valid ground for assessment. The court set aside the order and remanded the matter back for an independent inquiry into the measurement of the premises.
Issues: The issues revolved around the assessment of occupational charges, consideration of serious ailment in modifying the charges, and the need for an independent inquiry into the measurement of the premises.
Ratio Decidendi: The court emphasized the discretionary power of the court to determine the quantum of occupational charge based on the nature, location, and value of the property. The court also highlighted that serious ailment should not be the sole basis for modifying occupational charges.
Final Decision: The court set aside the order and remanded the matter back for an independent inquiry into the measurement of the premises.
JUDGMENT
Bibhas Ranjan De, J. - This revision application under article 227 of the Constitution of India is directed against the Order No. 9 dated 28th September, 2018, passed by the Ld. Chief Judge, City Civil Court at Calcutta in connection with Title appeal no. 15 of 2018.
2. Petitioner/respondent filed one eviction suit being no. 333 of 1986 (re-numbered as 1898 of 2001). The said suit was decreed on 30th November 2017 by the Ld. Judge, 2nd Court, Presidency Small Causes Court at Calcutta.
3. Being aggrieved by and dissatisfied with the said judgement and decree preferred an appeal being Title appeal no. 15 of 2018. In the appeal, opposite parties/ appellants presented one application for stay of execution and the Ld. Judge passed an order on 31st July, 2018 directing stay of the judgement and decree passed in Title suit No. 1898 of 2001 subject to payment of occupational charge @ Rs. 10,000/- per month with effect from, the date of decree i.e 30th November 2017.
4. Being aggrieved, opposite parties/ appellants filed one application under Section 151 Civil Procedure Code with a prayer for reconsideration of occupational charge of Rs. 10,000/- per month to any reduced amount. accordingly, Ld. Judge by his order dated 28.09.2018 reduced the rate of occupational charge from Rs. 10,000/-to 7000/-.
Order assailed:
5. at the outset, I find it necessary to reproduce the impugned order as follows:
' Ld. advocates for both sides are present by filing their respective haziras.
Date is fixed for hearing of the petition u/s. 151 C.P.C filed by the appellants on 11.09.2018 praying for reconsideration of occupational charges of Rs. 10.000/- to any reduced amount and also for extension of time to deposit the said amount and arrear occupational charges.
Heard both sides. Perused the petition.
Considered.
It is submitted by the appellants that Ejectment Suit being No. 1898 of 2001 was decreed on contest by the Judgement and Decree dated 30.11.2017 passed by the Ld. Judge, 2nd Bench, presidency Small Causes Court, Calcutta in favour of the plaintiff/respondent. Thereafter, these appellants being aggrieved by and dissatisfied with the said Judgement and Decree, preferred the instant Title appeal No. 15 of 2018 with a prayer for stay wherein this court was pleased to direct the appellants to pay occupational charges @ Rs. 10,000/- per months within 15th day of each succeeding English Calendar month from the date of decree and the arrears to be paid by 29.09.2018. It is further submitted that the said order was passed on the basis of a sketch map, as well as a report of Engineer Valuer engaged by the respondent at the time of filing written objection against the stay petition and measurement has been considered as 475 sq. feet, which is not at all correct. It is also stated that the appellants actually holding 100 sq. feet more or less including macha, which has been described by the Engineer and this court was mislead by the submission of the respondent and huge amount of occupational charges was ordered.
On the other hand, the respondent by filing written objection denied the entire application for reconsideration of occupational charges and it is highlighted that this respondent has got the decree after prolong 32 years of fighting tooth and nail with the appellants and the appellants have been running business of fast food and beverages on the ground floor and a beauty parlour in the mezzanine floor of the said premises. So, occupational charges adjudicated by this court was just and proper for the purpose of granting stay of the said judgement and decree. Finally, The respondent has prayed for rejection of the prayer u/s. 151 C.P.C regarding reconsideration and reassessment of the quantum of occupational charges.
The appellant have also filed an affidavit as to measurement of the decreetal room and submitted that he occupies 230.20 sq. feet and not 475 sq. feet and in this contest, sketch map has also been filed in support of the area in occupation of
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A trial court must provide a reasoned order assessing occupational charges, considering premises details and applicable criteria.
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