The main legal point established in the judgment is the application of equitable principles and consideration of prevailing market rates to determine the reasonableness of the occupational charge for a disputed tenancy.

JUDGMENT

Kesang Doma Bhutia, J. - The tenant/Judgment Debtor has filed an application under article 227 of the Constitution of India, being aggrieved by the order of payment of occupational charge at the rate of rupees of 2,40,000 per month passed by the additional District, Judge, 1st Court, Sealdah in Ejectment appeal no. 2 0f 2021 on 13.08.2021, while granting stay of the operation of Ejectment Execution Case no. 4 of 2021 pending before the Court of additional, Civil Judge (Junior Division) Sealdah.

2. The facts giving rise to the present case in brief is that opposite parties being the owners/land lords brought an Ejectment Suit being no. 107 of 2007 (renumbered as Title Suit No. 5 of 2010) against the petitioner, a partnership firm to whom 1st Floor measuring 2400 sq.ft. space was let out for purpose of residence of one of the partners of the firm at a monthly rent of Rs.1000/- only. The landlords/opposite parties were successful in obtaining a decree of eviction of the tenant on 16.10.2020. The landlord put the decree into execution by filling Ejectment Execution Case No.4 of 2021.

3. On the other hand the tenant preferred an appeal being Ejectment appeal no. 2 of 21 before the additional District, Judge, 1st Court, Sealdah. That in such appeal the tenant/ JDR filed an application for stay of the execution proceeding and while granting the stay of operation of ejectment decree, the appellate Court directed the tenant to pay occupational charge at the rate of 2,00,000 per month on 22.03.2021.

4. Being aggrieved by such order the tenant moved the Hon'ble High Court and filed C.O. No 1276 of 2021. The Hon'ble co-ordinate bench of this High Court disposes of the C.O. on 27.07.2021 with adirection to the appellate Court to re-visit the quantum of occupational charge fresh and to dispose of stay application.

5. The learned first appellate court in compliance of such order passed in C.O.1276 of 2021 re assessed the occupational charge and fixed the same at the rate of rupees 2,40,000 per month from Rupees two lakhs fixed earlier. Being aggrieved by such order the JDR once again moved this High Court by filling the present revisional application.

6. Therefore, only question that requires determination is whether the learned appellate Court below is justified in fixing the occupational charge at Rupees 2,40,000/- per month in respect of disputed tenancy?.

7. Learned advocate for the opposite parties/decree holders submits that the disputed tenancy is located at Shakespeare Sarani, a posh and prime area of Kolkata city, where the present market rent is rupees 100 rupees per sq.ft. and produced copy of lease agreement executed by Punjab National Bank situated diagonally opposite to the disputed tenancy and photographs of the front face of the disputed tenanted building and its surrounding areas.

8. On the other hand the learned advocate for the tenant contended the contractual rent of the disputed tenancy was rupees 1000/- per month and learned court below without applying judicial mind fixed the occupational charge of the disputed tenancy a dilapidated structure at irrational rate of Rupees 2,40,000/- per month. The calculation was made by the learned Court below after taking into consideration the lease deed of a commercial bank situated in a newly built building.

9. He has further submitted that in and around Kolkata City and in Posh area like Burdwan Road, alipore Road and Emami City with all modern facilities the rent per sq.ft. is about Rs.22/-. In places like Topsia prevailing rent per sq.ft.is about Rs.18/- to Rs.20/- and in another Posh area like Rowdon Street, situated somewhere near the disputed property rent per sq.ft. is about Rs.28/- to Rs.30/-. The tenant got the tenanted property surveyed by a Registered Government Valuer cum Registered Surveyor and Loss assessor and who after taking into consideration the present condition of the tenanted premises assessed the rent by adopting fund sinking method and assessed the rent of t