IMPORTANT POINT
The main legal point established is that the interpretation of the word 'rent' in the Act of 1997 is inclusive of non-variable components paid for use and enjoyment of facilities, and the acceptance of property tax and surcharge as part of the rent can render the premises exempt from the Act.

JUDGMENT :

The Court: An interesting point is raised in the instant appeal relating to the definition of a “rent” which has not been defined in the Act itself. The undisputed facts unfurled from the record is that a suit for recovery of possession under the Transfer of Property Act was filed after the expiry of period provided for in the notice under Section 106 of the said Act. It is also not in dispute that at one point of time, the tenancy was protected under the West Bengal Premises Tenancy Act, 1956 as it does not make any distinction on the score of the quantum of rent but after the promulgation of West Bengal Premises Tenancy Act of 1997, the tenancy which fetches a rent above the cap mentioned therein may not come within the peripheral of the West Bengal Premises Tenancy Act, 1997. Section 3 of the Act of 1997 containing an exemption clause whereunder certain premises are excluded from the purview of the West Bengal Premises Tenancy Act, 1997. Such distinction can be seen from the aforesaid provision that if any premises is let out for non-residential purpose carrying more than Rs.10,000/- as monthly rent in respect of the premises included within the limits of the Kolkata Municipal Corporation or the Howrah Municipal Corporation, as the case may be, shall not be protected or regulated by the provisions of the Act of 1997. The dispute which hinges in the instant matter pertains to the interpretation of the provision contained in Clause 5 of Section 3 of the Act of 1997 and it would be profitable and relevant to quote the aforesaid provision which runs thus:

“3. (f) any premises let out for non-residential purpose, which carries more than –

(i) three thousand rupees as monthly rent in the areas included within the limits of the Calcutta Municipal Corporation or the Howrah Municipal Corporation, or

(ii) one thousand and five hundred rupees as monthly rent in other areas to which this Act extends.

Explanation. – Where any premises is let out partly for residential purpose and partly for non-residential purpose, the provisions of clause (f) shall apply to such premises in proportion to respective areas.”

2. It is to be borne in mind that the exemption is not in respect of the tenancy but in respect of a premises which does not come within the circumference of the Act of 1997 and, therefore, the important factor which requires consideration is whether the premises let out for nonresidential purpose fetches a rent more than Rs.10,000/-, provided the said premises is situated within the Kolkata Municipal Corporation, shall come within the ambit of the said Act. There is no cavil of doubt in our mind that the non-residential premises let out by the landlord fetching more than Rs.10,000/- if situated within the limits of the Kolkata Municipal Corporation, the provisions or the protections under the said Act shall not be available to the tenant. Obviously, the moment the premises is exempted from the purview of the said Act, the recovery of possession can be sought under the Transfer of Property Act which does not contain any provisions relating to protection of the tenant. We are not unmindful of the proposition of law that the West Bengal Premises Tenancy Act, 1997 is a welfare piece of legislation and protects the tenant from being evicted by an unscrupulous landlord. The aforesaid observations can be fortified from the language employed in Section 6 of the Act of 1997 which starts with a non-obstante clause that no decree or order for recovery of possession of any premises shall be made by the civil judge having jurisdiction in favour of the landlord against the tenant except on a suit being instituted by such landlord on one or more of the following grounds enumerated therein. The Transfer of Property Act is silent on such score and Section 111 of the said Act envisages the determination of a lease on the eventualities incorporated therein. The expiry of period of the statutory notice under Section 106 of the Transfer of Prop