Calcutta High Court
J.L. Bose vs Brigadier Atindra Mohan Bhattacharjee on 6 June, 1989
Equivalent citations: AIR1990CAL13, 93CWN1108, AIR 1990 CALCUTTA 13
ORDER
1. In this application under Art. 227 of the Constitution an order passed on 7th June, 1988 by the Additional Rent Controller in Rent Control Eviction Case No. 3 of 1984 EVC has been challenged.
2. The impugned order arises out of an application filed by the respondent under S. 29B, West Bengal Premises Tenancy Act 1956, hereinafter referred to as the said Act for recovery of khas possession of the premises mentioned in the said application.
3. The case was hotly contested, by both the parties both before the Additional Rent Controller and before this Court. Numerous decisions were cited at the Bar in support of the conflicting claims of the parties.
4. Before entering into the merits of the case and dealing with the respective contentions made by the parties it is necessary to recapitulate and rethink about the historical background and the perspective in which the Rent Restriction Acts in general were enacted in various countries at various points of time, The West Bengal Premises Tenancy Act 1956 is not a pioneer in the field but is one of the youngest member of the family of the legislations dealing with the subject.
5. Laws controlling rents have a longer history and more widespread operation than is normally thought of. One of the earliest laws was an edict of Pope Paul II in 1470; and from the bull vian veritatis of Pope claimant VIII in 1604 sprang the far reaching jus gazaga. By the end of the war by 1914-18 many countries had enacted provisions controlling rent and by 1950 some 150 constries had adopted such laws.
6. The Acts, basically passed through 13 distinct periods of initial development, full control, gradual decontrol etc. some phases were recycled depending upon the transient thoughts of particular political parties at different periods of time.
7. The enactments are bewildering and more confusions than clarity have resulted from the multiplicity of enactment.
8. However, the guiding light through the darkness of the Rent Acts is to remember that they confer personal security on a tenant in respect of his home (Feyereisel v. Turnide), (1952) 2 QB 29 at 37. The rules of formal logic must not be applied to the Acts with two great strictness (Baker v. Terner) (1950) AC 401 at 415.
9. The main objects of the Rent Restriction Acts are to give tenants "Fair Rent" and a status of irremovability (Ebner v. Lascelles), (1928) 97 LJKB 497 at 500.
10. In deciding any case under any of the Rent Restriction Acts including the West Bengal Act in question has constantly to remember that the protection given to a tenant as regards his irremovability is not rendered illusory.
11. The Rent Restriction Acts through the ages have been framed with the aforesaid objects and this being a social welfare legislation and a remedial statute, provisions must be interpreted, as far as practicable, in favour of the tenant. Although the 1956 Act and for the matter of that Acts preceding the said Act have definitely made provisions in favour of the landlords enabling them to evict -the tenants under certain circumstances, yet those circumstances are to be examined very carefully. Unless this is done, the very purpose of such enactments would be frustrated.
12. It is against this historical backdrop that all decisions are to be made relating to eviction of a tenant.
13. In the scheme of the said Act adequate provisions have been made for the eviction of tenants on the grounds specified in S. 13 of the said Act. Although the section heading speaks of the protection of tenants against eviction. In interpreting S. 13, the basic thing to remember is that the tenant cannot be evicted excepting under the circumstances mentioned in the different clauses of S. 13(1). Similarly, the legislators in their wisdom have thought it fit to make the special provisions in S. 29B of the said Act to pave the way for a certain specified class of landlords to get an eviction of their tenants by invoking the special procedure and such landlords are not to suffer the hazards of a prolonged litigation in the matter of eviction of their tenants. The purpose behind engrafting Chapter VIA by amending Act of 1976 is to make it easier for the specified class of landlords to obtain eviction of their tenants but this Chapter VIA itself has incorporated the inbuilt safety devices for the tenants to protect them from the misuse and/or abuse of the process of such speedier eviction. In interpreting the provisions of Chapter VIA of the said Act we should not forget the basic theme of the Act, namely, that the statute as a whole is designed to confer the status of irremovability on the tenant.
14. Although S. 29A in Chapter VIA provides that the provisions of the chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force, yet, the legislature is engrafting this chapter was not unmindful of the necessity of introducing the inbuilt safety measures to protect the tenant from the abuse of the unusual powers conferred on the particular class of landlords. Sub-sec. (7) of S. 29B provides that the provisions of sub-sees. (2), (3), (4) and (6) of S. 13 shall, so far as may be, apply to a proceeding under this chapter but nothing contained in sub-s. (3)(a) of S. 13 shall apply to such a proceeding. The incorporation of sub-sec. (4) and sub-sec. (6) of S. 13 in S. 29B makes the legislative intent very clear. Although S. 29B, under certain circumstances, confers a summary power on the Rent Controller to pass an order of eviction on a tenant yet, such drastic powers are moderated by engrafting sub-sec. (7) in S. 29B.
15. In the instant case the opposite party, who was a Birgadier in the Indian Army filed an application before the Rent Controller, Calcutta, for eviction of his tenants from the disputed premises. The opposite party filed 4 different cases against, the 4 tenants all of whom have moved this Court separately under Art. 227 of the Constitution against the order impugned in the applications.
16. First of all the certificate required for initiation of the proceeding under S. 29B must be produced in original. It is not known whether in each of the 4 cases such original certificates were produced. It must be remembered that all the 4 cases were tried separately and not analogously and evidence in the 4 cases were also taken separately as would appear from the impugned order itself. Even if the original certificate is exhibited in one of the cases that will not warrant the finding of the Additional Rent Controller being based on the copies of the certificates accepted in other cases.
17. Section 13(ff) of the Act requires that the landlord, in order to avail of the benefit under the said sub-section, must be the owner of the premises in question, In the instant case the ownership of the premises was disputed vigorously by the tenant petitioner but the Additional Rent Controller decided the question of ownership on the basis of tax bills of the Calcutta Municipal Corporation. It is, however, settled law that the payment of tax is not a determinent of ownership.
18. Section 2(62) of the Calcutta Municipal Corporation Act, 1980 defines 'owner'. Owner includes the person for the time being receiving the rent of any land or building or any part of any land or building whether on his own account or as agent or trustee for any person or society or for any religious or charitable purpose or as the receiver who would receive such rent if the land or building or any part of the land or building were let to a tenant. This definition is in pari materia with the definition of owner as given in S. 5(53), Calcutta Municipal Act 1951.
19. The evidence adduced in the case| points to the effect that the respondent was not receiving the rent of the premises concerned but one Mr. M.N. Bhattacharjee was receiving the rent and issuing the receipts in respect of the premises in question.
According to the definition of owner the said Mr. M.N. Bhattacharjee would be deemed to be the owner and not respondent 1.
20. So far as the certificate issued by the Military Authority is concerned, S. 29B(2)(c) provides that such certificate shall be conclusive evidence of the facts stated therein, The certificate in question does not disclose as to whether the opposite party required the entire premises for his own use and occupation. Here comes the question of. S. 13(4) read with S. 29B (7). The Additional Rent Controller did not consider the matter from that aspect and as such was persuaded by his own eloquence to commit an error.
21. So far as the certificate being conclusive is concerned, I am inclined to think that unguided and uncanalised powers have been conferred on persons who are not even equipped with the knowledge of the nuances of the requirements of the Act. The person issuing the certificate, at least as it appears from the certificate itself, has not considered or formed any opinion, as to whether the respondent required the entire premises for his own occupation or whether a partial eviction would satisfy the needs of the respondent. The certificate being silent as to the quantum of requirement cannot be relied upon in deciding such quantum of requirement of the landlord. It is provided in S. 29B(2)(c) that the certificate is conclusive so far as the facts stated therein are concerned but not conclusive so far as the facts which are not stated therein. It is not clear as to wherefrom the Additional Rent Controller came to the finding that the entire premises was required by the respondent. The certificate does not say so. Mr. Dasgupta has referred to the case of New Howrah Transport Company v. State of West Bengal . In the aforesaid judgment Sushanta Chatterjee, J. has held that this part of the said section is discriminatory and should be struck down being violative of Art. 14 of the Constitution. His Lordship further held that the expression "such certificate shall be conclusive evidence of the facts stated therein" occurring in S. 29B(2)(c) of the Act being struck down the Rent Controller is to consider the certificate granted and find if there is a case of reasonable requirement in favour of the landlord and/or if any ground contemplated under S. 13(1)(ff) of the Act exists. I respectfully agree with the aforesaid observation. I am informed by Mr. Sukumar Ghosh that an appeal from the aforesaid judgment is pending consideration before this Court
22. Even if it is held that the said expression about the conclusiveness of the certificate is not violative of Art 14, yet, such expression shall have to be read subject to the other provisions of S. 29B itself, namely S. 29B(7). The Rent Controller cannot omit from his consideration the provision's of sub-sec. (7) of S. 29B in the matter of consideration of the conclusiveness of the said certificate.
23. Mr. Sukumar Ghosh has referred to a large number of decisions on the point but those being more or less echoes of one another all the cases need not be discussed or analysed. Mr. Ghosh led emphasis on the case of T.K. Ghosh v. Anil Krishna Ghosh . The ratio of the said decision is not on the nature of the conclusiveness of the certificate as to the quantum of requirement of the landlord but on the nature or purpose of such requirement The said judgment, in effect, seeks to lay down the proposition that the Rent Controller cannot go into the question of the nature of the requirement that is to say whether it is for residential or commercial purpose. With great respect I am unable to accept the ratio laid down in the said decision because that hits the very root of the purpose for which Chapter VIA has been engrafted in the 1956 Act. The very purpose of incorporation of Chapter VIA was to provide a shelter to certain classes of landlords in a case of specified emergency. The prospects of commercial adventure are not contemplated in the scheme of Chapter VIA. However, for the purpose of the instant case, it is not even necessary to differ from the ratio of the decision made in the said case as it is not called for.
24. Mr. Sukumar Ghosh has also referred to various other decisions about the circumscribed power of the Rent Controller and about the conclusiveness of the certificate as to the facts stated therein. As I have already held that such certificates are not at all conclusive so far as the facts not Stated therein viz., the quantum of requirement, the Rent Controller erred to incorporate into the certificate in question something which was never there. Moreover, in none of the cases cited by Mr. Ghosh the purpose and scheme of enactment of Rent Restrictions Act was either argued or decided. The special provisions of Chapter VIA or for the matter of that S. 29B cannot be considered in its isolated splendour, those have to be considered in the backdrop of entire scheme of such Rent Restrictions Acts which passed through various stages in all the countries of the world. The carved out rights for the landlords should not be allowed to swallow the entire quantum of rights guaranteed to tenants under the very same Act specially when such carved out rights include certain in-built safeguards for the tenants.
25. In the instant case it is not exactly necessary to go into the legal and technical niceties of either the provisions of law or ratios of conflicting decisions. This particular case can be decided on the merits of the order impugned in the application which is frought with illegalities, perversities, surmises and conjectures as stated hereinbefore.
26. In the circumstances, this application succeeds. The order passed by the Additional Rent Controller in Rent Control Eviction Case No. 3 of 1984 EVC on 7th June, 1988 is hereby set aside.
27. There will however be no order as to costs.
28. This order shall also govern C-O. No. 1765 of 1988, CO. No. 1822 of 1988 and C.O. No. 1899 of 1988.
29. Petition allowed.