Calcutta High Court
Sriram Rayons vs Ashok Nain And Ors. on 1 April, 2005
Equivalent citations: 2005(3)CHN596
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of the defendant No. 1 in a suit for specific performance of contract and mandatory injunction and is directed against the preliminary decree dated 27th April, 2001 passed by the learned Civil Judge, Senior Division, 6th Court, Alipore, District-South 24-Parganas in Title Suit No. 85 of 1995 thereby granting a decree of specific performance of contract for appointment of Government valuer by both sides for fixation of rate of rent and payment of the same. The parties were directed to appoint a Government valuer each, within two months from that date and if any one of the parties failed or neglected to appoint such Government valuer, the report of the other side would be accepted by the Court by virtue of the said decree. The appellants were directed to deposit Rs. 6,000/- per month provisionally before the Court from May, 2001.
2. There is no dispute that the appellant was a tenant under the plaintiff in respect of a Godown, the tenancy being governed by the provisions contained in West Bengal Premises Tenancy Act, 1956. The plaintiff-landlord had filed this suit for specific performance of agreement between the parties being Ext.-1A, by which both the parties agreed that each of them would appoint a Government valuer for assessing the valuation of the Godown and for fixation of rent as per Government Rules.
3. According to the plaintiff, he had nominated a Government valuer but the defendant had not honoured that agreement, hence the suit.
4. The aforesaid suit was contested by the present appellant by filing written statement thereby denying the allegations made in the plaint and the main question that came up for hearing before the learned Trial Judge was whether such type of agreement could be enforced by a Civil Court. In other words, the defence of the appellant was that in the matter of fixation of fair rent or increase of existing rent, the parties are required to approach the Rent Controller as provided in Sections 8 to 12 of the West Bengal Premises Tenancy Act, 1956 and that the Civil Court has no jurisdiction to grant decree for specific performance of agreement of parties, if the same is inconsistent with those provisions.
5. By the judgment and decree impugned herein, the learned Trial Judge has overruled such objection of the defendant and has passed a preliminary decree as indicated above.
6. Being dissatisfied, the defendant/tenant has come up with the present appeal.
7. There is no dispute that during the pendency of this appeal, the tenant/ defendant has surrendered the tenancy in favour of the plaintiff and according to the plaintiff, even if the defendant has surrendered the tenancy, till the date of surrender, the rent should be calculated in accordance with the decisions of the valuer agreed to by parties and the tenant is liable to pay rent at that rate from the date of institution of the suit.
8. Mr. Roy Chowdhury, the learned senior Counsel appearing on behalf of appellant has forcefully contended that the Court below erred in law in enforcing the agreement between the parties for fixation of fair rent by referring the matter to Government valuer for assessment of the rent on the basis of Government Rules. Mr. Roy Chowdhury contends that undisputedly his client being a tenant governed by the provisions contained in the West Bengal Premises Tenancy Act, if the landlord is not satisfied with the existing contractual rent and even if his client agreed to refer the dispute to the Government valuer for fixing the valuation of the property and for assessing the rent according to the Government Rules, the same should not be given effect to as the same is hit by Section 23 of the Contract Act being violative of the provisions of the West Bengal Premises Tenancy Act, 1956. He, thus, prays for dismissal of the suit after setting aside the decree passed by the learned Trial Judge. In support of such contention Mr. Roy Chowdhury places strong reliance upon the following decisions:
1. Devkaran Nenshi Tanna (Dead) by LRs. v. Manharlal Nenshi and Anr. .
2. Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors. .
3. Sohanlal Doodwawala v. Benode Kumar Chamaria reported in 1971 (2) Cal 451.
4. Murlidhar Aggarwal and Anr. v.StateofUttarPradesh and Ors. .
5. M. M. Chawla v. J. S. Sethi .
9. The aforesaid contentions of Mr. Roy Chowdhury are seriously disputed by Mr. Banerjee, the learned senior advocate appearing on behalf of respondent. According to Mr. Banerjee the West Bengal Premises Tenancy Act merely recommends one of the mode of fixation of fair rent and if the parties approach the Rent Controller in accordance with the provisions for fixation of fair rent or for enhancement of the existing rent, the Rent Controller is required to proceed in accordance with the said provisions but there is no express or implied bar created under the West Bengal Premises Tenancy Act for entering into an agreement between the parties for any other mode of fixation if the parties so agree. Mr. Banerjee contends that there is no dispute that the parties agreed to refer the question of assessment of valuation and fixation of fair rent to Government valuer and as such, they are bound by such agreement. Mr. Banerjee, thus, prays for dismissal of the appeal.
10. In support of the aforesaid contention Mr. Banerjee relies upon the decision of a learned Single Judge of this Court in the case of Martin Burn Limited v. Steel Authority of India Limited reported in 1988 (2) CLJ 416, a decision of the Division Bench in the case of Sur Industries Put. Ltd. v. West Bengal State Leather Industries Development Corporation Ltd., reported in 1989(1) Rent Control Journal 626 and that of Supreme Court in the case of Juthika Mallick v. Mahendra . As regards the decisions cited by Mr. Roy Chowdhury are concerned, according to Mr. Banerjee, those decisions do not specifically lay down as a proposition of law that if the parties agree to a particular mode of fixation of rent or increase of the same, that cannot be given effect to.
11. Therefore, the only question that arises for determination in this appeal is whether Ext.-1A by which the parties agreed to refer the matter to Government valuers for the purpose of fixation of valuation of the property and rate of rent according to Government Rules can be specifically enforced.
12. The West Bengal Premises Tenancy Act, 1956 was enacted for the purpose of protection of the tenants and such statute is based on public policy. It is now settled position of law that if a statutory provision is enacted on basis of public policy, the parties governed by such statute cannot give a go-by to the same by mutual agreement which is contrary to the statutory provisions. ( See Amrit Bhikaji v. Kashinath Janardhan, and Murlidhar Agrawal v. State of U.P., ). In the West Bengal Premises Tenancy Act, 1956, there are specific provisions contained in Sections 8 to 12 of the same laying down the mode of settlement of fair rent and increasing the rate of rent and the manner the same should be given effect to.
13. In the case before us, the tenant was paying agreed amount as rent. So long agreed amount is paid by a tenant and accepted by landlord, neither of them can dispute that the contractual rate of rent is inadequate for the accommodation of the tenanted portion. But notwithstanding such payment and acceptance, any one of them can pray for fixation of fair rent before the Rent Controller subject to the proviso to Section 8(d) and if such application is filed and it is found that fair rent should be less or higher than the agreed amount so long paid, in such a case, the fair rent so fixed, should be the rent of the premises effective from the month next to the date of filing of such application. But in a case, where the parties agree to reassess the existing rate of rent, it is the duty of either the landlord or the tenant to approach the Rent Controller for fixation of the fair rent of the property and his decision will be binding upon the parties; but if the parties even agree in writing to refer the dispute to a third party and decide that the decision of that third party will be final, such agreement, being contrary to the provision contained in West Bengal Premises Tenancy Act, cannot be specifically enforced. Therefore, if the landlord is of the view that existing rate of rent is less than reasonable fair rent of the property, his only remedy available under the statute is either to mutually settle the matter with the tenant and arrive at a settled amount and if no settlement is possible, to approach the Rent Controller under Section 8 of the Act but he cannot enforce an agreement between the parties laying down a different mode of fixation of fair rent.
14. We are conscious to the position of law that if the tenant of his own actually pays any amount of rent for a particular period he cannot dispute the rate of rent of the property for that period but if pursuant to an agreement to pay at a specified rate, such rent is not actually paid, the landlord cannot enforce payment at that agreed rate. In case of enhancement of existing rent, such increase can be made only in accordance with the provisions contained in West Bengal Premises Tenancy Act and the question of fixation of fair rent arises in such circumstances. Therefore, we are of the view that if the West Bengal Premises Tenancy Act, 1956, is read as a whole it will appear that the legislature contemplated the provision of fixation of fair rent and of increase of rent only in accordance with the provisions contained in Sections 8 to 12 of the Act. It was never the intention of the legislature that if the parties agree to pay rent at a specified rate, but ultimately back out from such agreement, the same can be enforced. For instance, if at the time of induction of the tenancy, a tenant in writing agrees to enhance the rate of rent in future at a rate which is inconsistent with the provision of the Act, and subsequently does not pay that enhanced amount, the landlord cannot pray for specific performance of such agreement and even after agreeing to a particular rate of rent, the tenant can approach the Rent Controller for fixation of the fair rent and in such a case, if the application succeeds, the new rate fixed by the Rent Controller will be effective from the month next to the date of application. The only exception to the aforesaid principle was the provisions contained in the proviso to Section 8(d). The present case does not come within the said exception clause.
15. We are, thus, of the view that the learned Trial Judge erred in law in giving a decree of specific performance of agreement entered into the parties notwithstanding the fact that the said agreement was in conflict than the provisions contained in West Bengal Premises Tenancy Act. We now propose to deal with the decisions cited by Mr. Banerjee.
16. In the case of Juthika Mallick and Anr., (supra), the Supreme Court was considering a case where there was a lease deed between the parties stipulating that the lessee would hold the premises during his lifetime and after his death, his heirs were required to deliver vacant possession within three months unconditionally and without any objection. The lessee died within three months after execution of the lease but the heirs of the lessee did not vacate the premises contending that the lease was in effect one for three months only and as such, in view of Section 3(2) of the West Bengal Premises Tenancy Act, the tenancy was governed by the said Act and became heritable.
17. The Supreme Court overruled such objection holding that the lease being one for whole life, of the same could not be construed as one for not more than twenty years so as to attract the provisions of the West Bengal Premises Tenancy Act. Simply because the tenant died before the expiry of twenty years, the Supreme Court proceeded, the same could not be construed to be a lease for less than twenty years.
18. In our view, the said decision does not say that even if a tenancy is governed by a State Rent Control Act, the parties by agreement can take it out of such provision. In the said decision the Supreme Court merely refused to recognize a lease for life to be one for less than twenty years. Thus, the said decision cannot help Mr. Banerjee's client in any way.
19. In the case of Martin Burn Limited v. Steel Authority of India Limited (supra), a learned Single Judge of this Court held that the Court has power to settle the rent payable when it cannot be mutually agreed by the parties on the basis of renewal clause contained in the lease. In the said renewal clause it was provided that after renewal of the lease rent, should be mutually agreed upon and if the parties cannot agree upon a reasonable rent Court in this circumstance may fix a fair and reasonable rent notwithstanding anything contained in Section 10 of the West Bengal Premises Tenancy Act. The learned Single Judge held that in such circumstances. Court can fix the rate of rent. From the judgment it appears that no argument was advanced by the parties that such agreement was contrary to the West Bengal Premises Tenancy Act. Therefore, the Court did not consider such question in the said decision. We are of the view that the said decision, therefore, cannot be put forward as a precedent in proposition that a party can waive any of the provisions of a Rent Control Legislation by agreement.
20. Similarly, in the case of Sur Industries Pvt. Ltd. (supra), the Division Bench had not faced the question whether the parties could contract anything which is repugnant to the statutory provisions and as such, the said decision cannot be of any assistance to Mr. Banerjee's client. In the said case, as the West Bengal State Leather Industrial Development Corporation Ltd. was the landlord, most probably, the tenancy was outside the purview of the West Bengal Premises Tenancy Act and accordingly, no such point was raised.
21. We, therefore, find that decisions cited by Mr. Banerjee are of no avail to his client. On the other hand, the decision of the Apex Court in the case of Devkaran Nenshi Tana (supra), supports the proposition of law that if a state rent control legislation makes a specific mode of fixation of fair rent and of increase of such rent, the same must be fixed or increased only in accordance with that mode and not by the agreement of the parties even if there be any.
22. We, thus, set aside the judgment and decree passed by the learned Trial Judge and allow the appeal. Since there is no default in payment of rent till the date of delivery of vacant possession at the rate which the tenant last paid, the previous interim direction given by a Division Bench of this Court for depositing specified amount with the Registrar General is recalled. We, thus, permit the appellant to withdraw the amount deposited with the learned Register General of this Court. The appeal is, thus, allowed to the extent indicated above. In the facts and circumstances there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
I agree.