Calcutta High Court (Appellete Side)
Smt. Asha Devi Maskara & Ors vs Sri Jatindra Nath Das & Anr on 23 August, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 161 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Smt. Asha Devi Maskara & ors.
Versus Sri Jatindra Nath Das & anr.
For the petitioners: Mr. Hiranmoy Bhattacharyya, Mr. Bidyut Dutta, Mr. Bijan Dutta.
For the opposite parties: Mr. Tapas Kumar Chatterjee, Mr. Sanjoy Ghosh.
Heard On: 02.08.2011.
Judgement On: August 23, 2011.
Prasenjit Mandal, J.: This revisional application is directed against the order dated July 23, 2007 passed by the Rent Controller, Bidhannagar, North 24-Parganas in R.C. No.25 of 2006 thereby deciding the fair rent in respect of a premises finally.
Since, two revisional applications, i.e. the present one and the C.O. No.162 of 2010 have arisen out of the same order dated July 23, 2007 and since, the C.O. No.162 of 2010 has already been 2 disposed of on August 12, 2011, the decision of C.O. No.162 of 2010 will also govern the present civil revision. For convenience, the order passed by this Bench on August 12, 2011 in C.O. No.162 of 2010 is reproduced below:-
C.O. No.162 of 2010:-
Prasenjit Mandal, J.: This revisional application is directed against the order dated July 23, 2007 passed by the Rent Controller, Bidhannagar, North 24-Parganas in R.C. No.25 of 2006 thereby deciding the fair rent in respect of a premises finally.
The landlords / opposite parties herein filed the said R.C. No.25 of 2006 before the Rent Controller, Bidhannagar under Section 17 of the West Bengal Premises Tenancy Act, 1997 against the petitioner for fixation of fair rent in respect of the premises as described in the schedule of the said application. The petitioner filed a written objection against the said application. By an order dated July 23, 2007, the Rent Controller disposed of the application under Section 17 of the said 1997 Act determining the fair rent at Rs.8800/- plus 10 per cent maintenance and amenities plus proportionate share of Municipal tax as applicable. Being aggrieved by that order, this revisional application has been preferred by the tenant / petitioner herein. 3
Now, the question is whether the said order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the petitioner was inducted in respect of the premises in case jointly along with another tenant. Pursuant to a tenancy agreement dated December 20, 1985 between the landlords and the tenants, the rent was initially fixed at Rs.2200/- per month payable according to English Calendar Month and the tenancy was to commence w.e.f. February 1, 1986. As per terms of the agreement for tenancy, the rent was to be increased at the rate of 7½ per cent after every five years. But the Rent Controller has determined the rent as noted above.
Mr. Hiranmoy Bhattacharyya appearing on behalf of the petitioner has contended that the fair rent cannot be increased to such an extent arbitrarily. There is a term for enhancement of rent in the agreement entered into between the parties and so, the fair rent is to be determined according to the terms of the agreement. Thus, he submits that the fair rent as determined by the Rent Controller is not permissible and it should be set aside.
Mr. Tapas Kumar Chatterjee appearing on behalf of the opposite party supports the impugned order contending that in spite of the agreement, fair rent can be determined as per provisions of the 1997 Act.4
Section 17 of the West Bengal Premises Tenancy Act, 1997 deals with the provision for fixation of fair rent and according to this section, the concerned Rent Controller has the exclusive jurisdiction to determine the fair rent in respect of the premises in case and not to any other authority. The said section lays down the provision for fixation of fair rent according to the length of the tenancy and there is a standard formula for fixation of the rent according to the situation. Such initiation can be launched by either of the parties, that is, the landlords or the tenants. In the instant case, the landlords took the initiative for fixation of the fair rent.
In spite of the agreement between the parties for increase of rent, according to the terms of the agreement, the concerned Rent Controller is not exonerated from fixation of the fair rent and although, there is a clause for increase of rent, the fixation of the fair rent has been vested in the concerned Rent Controller. Therefore, the parties cannot settle the fair rent which is the sole and exclusive function of the Rent Controller. So, the provisions of Section 17 of the 1997 Act will prevail over the agreement entered into between the parties.
According to Section 44 of the 1997 Act, the Civil Court cannot entertain any suit or proceeding, so far as it relates to fixation of fair rent in relation to any premises in case. 5
On perusal of the impugned order, I find that the Rent Controller had made fixation of the fair rent according to the standard formula as provided under Section 17 of the said 1997 Act.
Therefore, I am of the view that there is no scope of interference with the impugned order. This revisional application is devoid of merits.
Accordingly, the revisional application is dismissed. Considering the circumstances, there will be no order as to costs.
C.O. No.161 of 2010:-
In view of the above order in C.O.162 of 2010, this revisional application is also liable to be dismissed.
Accordingly, this revisional application is also dismissed. Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)