Calcutta High Court (Appellete Side)
Re : Life Insurance Corporation Of India vs Federal Motors (P) Ltd.) Wherein The ... on 22 August, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1 22.08.2016 Item No.5 aks C.O. 2786 of 2016 Re : Life Insurance Corporation of India ... Petitioner.
Mr. Kushal Chatterjee Mr. Mohan Lall Banerjee Ms. Gargi Goswami .. for the petitioner.
Mr. Subal Basak Mr. Amit Banerjee Mr. Suranjan Mondal .. for the opposite party.
The matter is taken up for hearing. Heard both sides.
Affidavit in opposition filed in court today be taken on record.
This is an application under Article 227 of the Constitution of India wherein the present petitioner has assailed the order of the learned Chief Judge, City Civil Court at Calcutta as passed in Misc. Appeal No. 31 of 2016 arising out of Case No. EO/282/0703 in which the learned 1st Appellate Court was pleased to grant occupational charges @ Rs.24,000/- per month in respect of the disputed premises which is located in Park Street, one coveted place in the city of Kolkata. It may be mentioned that the tenanted portion is 1057 sq. ft.
Learned Advocate for the petitioner submitted by taking me to page no. 73 of the application to convince this court that actually in respect of the selfsame property, the rate of rent is Rs.120/- per sq. fit. with escalation of 35% after five years. This, learned Advocate for the petitioner submitted that the decision of the learned 1st Appellate Court as regards fixation of occupational charges is much lower compared to the fair market rent of the premises in occupation of the opposite party. He relied upon the decision of the Apex Court as reported in (2005)1 SCC 705 (Atmaram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.) wherein the Apex Court first introduced this theory of occupational charges. He further pointed out that after passing of the order of the Estate Officer on 31st March, 2016, this opposite party is no longer a tenant in the eye of law and as such, this decision of Atmaram Properties (P) Ltd. (Supra) will definitely apply. He submitted that at least the occupational charges be fixed @ Rs. 1 lakh per month. He further submitted that already this opposite party is yet to pay Rs.27,22,355/- as per calculation made by the Estate Officer. He fairly submitted that the total calculation made by the Estate Officer uptil the date of the order was to the tune of Rs.42 lakh and out of that amount, only Rs.15 lakh has been deposited by this opposite party. He further 2 submitted that this amount is also to be deposited and unless this amount plus the occupational charges, which this court may calculate, are paid, this petitioner will be at liberty to proceed with the execution case.
In counter to all these, Mr. Basak, learned Advocate appearing on behalf of the opposite party submitted that the learned 1st Appellate Court rightly held that the occupational charges be fixed @ Rs.24,000/- per month in view of the fact that as per the agreement dated 18-07-1996, the rent was Rs.675/- which was increased to Rs.911.25 till this petitioner/Corporation filed the case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Thus, he submitted that there is no reason to increase the quantum of occupational charges as allowed by the learned 1st Appellate Court. He cited a decision of the Apex Court as reported in AIR 2014 SC 1509 (Dr. Suhas H. Pohale Vs. Oriental Insurance Co. Ltd.) to show that the government must be liberal in favour of the citizens. He also cited another decision of the Apex Court as reported in (2006)10 SCC 236 (Noble Resources Ltd. Vs. State of Orissa and Another) wherein the Apex Court held that each case is to be decided on is own fact.
It is true that every case is to be decided on the fact before the floor of the court which is disposing of the matter. There cannot be any straight jacket formula to bind the hands of the trial court or the other courts.
The decision as reported in AIR 2014 SC 1509 (Supra) cannot have its application to the present case as in that case, the property was managed by the government and here, before the floor of this court, the petitioner/Corporation is wholly owned by the government and every money which such Corporation will earn will go to the coffer of the government and as such, this court cannot given any grace simply because as one litigant is one Corporation fully owned by the government.
Now, regarding the merit of this case. Running page no. 73 shows that in respect of the same premises located at 12, Park Street, one Axis bank is a tenant with monthly rent per sq. ft. @ Rs.120/-. I have already stated that this petitioner is enjoying a carpet of 1057 sq. ft.
On reading and re-reading the order of the learned 1st Appellate Court, this court has failed to gather on which document it relied upon to fix the occupational charges. The document, i.e. the running page no. 73 was not placed before that court. There is also no reflection in the said order that the decision of Atmaram Properties (P) Ltd. (Supra) was placed before the said court. I wonder how the learned 1st Appellate Court came to the conclusion that Rs.24,000/- per month will be the fair occupational charges whereas in respect of the same premises, the rent per sq. ft. is Rs.120/-. Learned court, however, admitted that the property is located in a posh area in Kolkata. 3
The decision of Atmaram Properties (P) Ltd. (Supra) has laid down a principle that after the tenant has suffered a decree, that tenant is no more a tenant and as such, he is to pay occupational charges at the market rent. It is very unfortunate to note that even though the order was passed on 12-05-2016, the amount in due as calculated by the Estate Officer is still to the tune of Rs. 27 Lakh odd about which I have already reflected in my order. The calculation of occupational charges ought to have been Rs.120 X 1057 sq. ft =1,05,700/-. Learned Advocate for the petitioner has given a grace of Rs.5700/- out of that amount. In fixing the occupational charges, it is immaterial to take into consideration what was the rent which the previous tenant was paying to the landlord. The occupational charges is a fresh matter to be decided by the court taking into consideration the valuation of the property and how much rent it fetched in market. Thus, the argument of Mr. Basak that this opposite party enjoyed much lesser rent during that period of tenancy cannot be of any help in this type of legal battle.
I am sorry to say that the learned 1st Appellate Court neither considered at all any document nor directed the petitioner to file any document in respect of his claim as regards the quantum of rent which this property can fetch and passed an order without any basis.
This being so, the said order cannot sustain in the eye of law. The opposite party must pay Rs.27,22, 355/-, about which I have already stated, within one month from this day. The occupational charge is enhanced to Rs. 1 Lakh per month from 1st April, 2016 to be paid month by month on the 7th day of every month. The amount in arrear so far as the occupational charge is concerned, is also to be paid within one month from this day.
If the order of this court is not complied with, then this petitioner/Corporation will be entitled to put the decree into execution.
Thus, this application under Article 227 of the Constitution of India succeeds. The order passed by the learned 1st Appellate Court dated 12/5/2016 is set aside so far as it relates to the fixation of occupational charges.
There will, however, be no order as to costs.
Photostat certified copy of this order, if applied for, be supplied to the parties on usual undertaking.
(Indrajit Chatterjee, J.) 4