Calcutta High Court
Tarakeswar Bysack vs Sakina Bibi on 26 August, 1955
Equivalent citations: AIR1956CAL185, AIR 1956 CALCUTTA 185
ORDER R.P. Mookerjee, J.
1. The petitioner is the landholder-who had filed an application under Section 5(1), Calcutta Thika Tenancy Act for directing the opposite party to vacate the holding and put the petitioner in-possession. One of the grounds urged was that the-opposite party had not paid rent and taxes for a certain period. This was resisted by the tenant. The Thika Tenancy Controller allowed the petition directing the opposite party to vacate the holding within thirty days from the date of the Order.
The collector immediately proceeded to pass-an order under Section 6 of the said Act. The operation-of the order was stayed for thirty days within which the opposite party was directed to deposit the rents in arrears, for the months of Sraban and Bhadra, 1361 B. S. (the opposite party having deposited with the Controller rents up to Asar) with interest and costs in default, execution was to proceed as provided in Section 6 ox the Act.
It was further ordered that if the opposite party deposited the amount mentioned above and within: the date fixed, she would, not be evicted from the holding in question and the case would be dismissed on lull satisfaction. An appeal was taken against this order. The learned Chief fudge of the Court of Small Causes, Calcutta, has dismissed the appeal.
2. One of the points urged before the Appellate Officer as also before me is that in calculating, the amount payable under Section 6, Calcutta Thika Tenancy Act, the amount payable by the tenant as Corporation rates should have been included,
3. When an order is made under Section 5 of the Act allowing an application for ejectment of a thika tenant on the ground that he has failed to pay the arrcar of rent due to the landlord in respect of his holding and directing the thika tenant to vacate the holding and put the landlord, in possession thereof, it shall specify the amount of afrear of the interest due thereon and no such order shall be executed if the amount of costs of proceedings arising out of the said application and such damages as the Controller may allow are deposited within thirty days from the date of the order.
4. It is an admitted case of the parties that the holding which is the subject-matter of the present dispute is a part of a bustee situated at 102, Mechua-bazar Street, Calcutta, held by the tenant at a rental of Rs. 24/- per month & a tax of Rs. 39/15/6 pies .per quarter. The question is whether the arrear of rent referred to in the earlier part of Section 6 of the Act would include the arrear tax also. The wort "rent" is not denned in the Calcutta Thika Tenancy Act. Under Sub-section (6) of Section 2 of that Act, "all words and expressions used but not defined in this Act and used in the Transfer of Property Act, 1882, or the Bengal Tenancy Act, 1885, have the same meanings as in those Acts." Section 108, T. P. Act while defining the term "lease" describes rent as "money, a share of crops, service or any other thing of value, to be rendered, periodically or on specified occasions to the transferor by the transferee".
5. Clause (1) of Section 3, Bengal Tenancy Act defines "rent" as;:
"Whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant."
6. "In Sections 53 to 63 both inclusive, Sections 72 to 75 both inclusive,. Chapter XIV and Schedule III of this Act "Rent" is also money recoverable under any enactment for the time being in force as if it was rent."
7. In - 'Pudmanund v. Baijnath', 15 Cal 828 (A), and - 'Jotindra Mohan v. Jarao Kuinari', 33 Cal 140 (PC) (B), it had been observed that the word "Rent" has been defined in the Bengal Tenancy Act in the sense in which it would be understood within any statutory definition.
8. There is some difference between the definition of "Rent" as given in Section 3(13), Bengal Tenancy Act and Section 105, T. P. Act. In the latter Act, "Rent" may be in the shape of service but not so under the Bengal Tenancy Act. It is due to this fact that service tenures do not come within ihe scope of the Bengal Tenancy Act.
9. As under Sub-section (6) of Section 2, Thika Tenancy Act the word "rent" is to be taken as used in the Transfer of Property Act or the Bengal Tenancy Act, I may proceed to consider as to how the word "rent" would nave been interpreted in the Bengal Tenancy Act for my present purpose. It is not possible to introduce all the implications of the word "rent" as applied to agricultural holdings outside Calcutta to non-agricultural holdings within the city of Calcutta.
It is not for me to consider whether the definition in other statutes should have been introduced into this statute without fully comprehending the implications in which the word is used in those other statutes: and to what extent that would be applicable in the present Act. I have to interpret the word "rent" in so far as they are applicable.
As observed by the Judicial Committee in 33 Cal 140 (PC) (B) the definition of the word "rent" in the Bengal Tenancy Act would be understood to be the same as in other statutory definition. The term is to be taken in its wider sense. For constituting rent the essential conditions which must be satisfied are among others that the thine must be payable by the tenant to his landlord and the payment or delivery must be on account of use or occupation of the land held by the tenant.
10. While interpreting the implication of the word "rent" as appearing in ol. (13) of Section 3, Bengal Tenancy Act, it has been held that the word "rent" includes road cess payable to the landlord by the, tenant - 'Nobinchand Nuskar v. Ban Senath Para-maniok', 21 Cal 722 (C). After considering the terms of the enactment it has also been held in - 'As-sanulla Khan v. Tirthabasini', 22 Cal 680 (D),' that in respect of the 'putni' in question Choukidaii tax was a part of the rent legally recoverable as such.
11. I may now consider the liability of a tenant in a bustee to pay a share of the municipal rates. The property in question is a part of a 'bustee' which is assessed to municipal rates. Under Section 173, Calcutta Municipal Act, 1951, a special procedure is followed in the case of a Taustee'.
The land contained within the "bustee" and the huts standing on it are to be valued separately in accordance with the rules as may be framed. Similar provisions existed in the Calcutta Municipal Act, 1923 also.
12. Under Section 202. Calcutta Municipal Act. 1951, the entire tax for the 'bustee' is recoverable from the owner by the Corporation less one-eighth of such rate. This is unlike the imposition of and collection of rates of premises within Calcutta which are not bustees'. In the latter cases bills are drawn up in two sets, -- the owner's share and the occupier share, -- such shares being payable by the respective party.
In the case of the "bustee', as the owner of the "bustee" may not be and very often is not the owner of all the huts a different procedure is followed so that the Corporation may easily realise the rates from the owner, who in his turn is given authority to realise from each one of the hut owners the respective shares of taxes leviable by the owner of the hut as also for the value of the hut itself. Under Sub-section (2) of Section 202, Calcutta Municipal Act, 195.1, it is provided, "Whenever the consolidated rate is leviable upon a 'bustee' the owner of the land contained within such 'bustee' may recover from the owner of each hut standing thereon --
(i) one-half of the consolidated rate payable in respect of the portion of the land on which the hut stands."
In the case now before mo it is conceded that the tax as stated by the landlord is payable Quarterly , by the owner of the hut in addition to the cash monthly payment as rent of the land. There is no roam for any doubt that the sum total of the two constitutes the consideration payable from time to time to the landlord by the tenant for obtaining the land in question.
13. In calculating, therefore, the share of rent due under Section 6, Calcutta Thika Tenancy-Act, it was incumbent upon the Collector and the Judge to include the amount of taxes payable in the share of the tenant also.
14. This Rule must accordingly be made ab solute and the direction given under Section 6, Calcutta Thika Tenancy Act by the Controller is modified to this extent that the amount of tax payable for the huts which are now in suit are to be included.
The matter will go back to the Controller for draw-
ing up a proper order including the amount of taxes payable.
If in the meantime the tenant has already paid the amount of taxes payable that will be indicated and the case disposed of accordingly. If there be any amount of tax still due the Controller will pass an appropriate order allowing 'thirty days' time from the date of his order to pay the amount in question.
15. In the circumstances of this case, I make no order as to costs.