Calcutta High Court (Appellete Side)
S.A. 96 Of 2 vs S. K. Banerjee @ Suchit Kumar Banerjee on 11 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
11.05.2012
In the matter of --- S.A. 96 of 2011
Hindustan Petroleum Corporation Limited
Versus
S. K. Banerjee @ Suchit Kumar Banerjee
Mr. P. K. Das
Mr. Puspendu Chakraborty
Mr. Chanchal Kumar Dutt
....for the appellant/ petitioner
Mr. S. P. Roychowdhury
Mr. P. B. Sahoo
Mr. Sudhakar Biswas
......for the respondent / O. P.
C.A.N. No. 10265 of 2011 This is an application filed by the appellant/tenant praying for stay of this Second Appeal till disposal of Misc. Case No.26 of 2010 pending before the Thika Controller, Kolkata. It is further case that in terms of the Kolkata Thika Tenancy (Acquisition and Regulation) Act, 1981 the interest of the respondent landlord vested to the State and the petitioner became direct tenant under the State and started to pay monthly rent to the State Government since August, 1982 after stopping any such payment to the respondent erstwhile landlord. It is further case that respondent filed 2 a suit on and about 6th December, 1999 against the present appellant with a prayer for a decree of recovery of vacant khas possession, arrear rent, mesne profit etc. in respect of the land which was leased out during the year 1969 and the lease period expired long back. During pendency of the suit the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into force with effect from 1st of March, 2003. In terms of said Act of 2001 Thika Controller had the power to decide any question as to whether a person is a thika tenant or not Vide Section 5(3) of said Act and the jurisdiction of the Civil Court was also barred under Section 21 of the Act relating to matters which were required to be decided or dealt with by the Controller under said Act. However, ignoring said specific defence plea learned Trial court passed a decree of eviction against this petitioner / tenant. It is further case that during the pendency of the appeal preferred by the tenant in the Lower Appellate Court being Title Appeal No.280 of 2008, the Thika Controller, Kolkata initiated proceeding being Misc. Case 3 No.26 of 2010 under Section 5(3) of said Act of 2001 for determining the question as to whether the appellant tenant is a thika tenant or not. As the relevant provisions of said Act of 2001 were applicable to all pending proceedings when the Act came into force with effect from 1st of March, 2003, Learned Lower Appellate Court should have stayed the appeal but unfortunately learned Lower Appellate Court also dismissed the appeal confirming the order of eviction passed by learned Trial Court. As this second appeal is nothing but the continuation of the suit between the parties it is required to be stayed till disposal of said proceeding being Misc. Case No.26 of 2010 pending before the Thika Controller. During hearing Mr. P. K. Das, learned advocate for the appellant/petitioner, referred an unreported judgment of this Court passed on 25th April, 2011 in connection with CAN No.5507 of 2010 wherein learned Judge of this Court under similar circumstances stayed the pending second appeal in view of pendency of a proceeding before the Thika Controller. 4
The respondent / O. P./ landlord, on the other hand, has filed an affidavit-in-opposition stating that neither the Act of 1999 nor the Act of 2001 had any application in this case as both the Courts came to concurrent findings of fact that the appellant was not a thika tenant. It is further submitted that against said order dated 25th April, 2011 passed by learned Single Judge in connection with CAN No.5507 of 2010 the opposite party moved Hon'ble Apex Court being special leave to appeal (Civil No.16135) of 2011 wherein Hon'ble Apex Court set aside the order of stay dated 25th of April, 2011 with a direction to proceed with the second appeal in accordance with law with some other directions.
In reply Mr. P. K. Das, learned senior counsel, submits that it was not within his knowledge that said order dated 25th of April, 2011 passed by learned Single Judge in connection with CAN No. 5507 of 2010 was set aside by the Hon'ble Apex Court and accordingly he wants to withdraw this application being CAN No.10265of 2011. 5
In view of said submission of Mr. Das let this application being CAN No.10265 of 2011 be dismissed for being not pressed.
C.A.N. No. 6530 of 2010
The appellant /petitioner has filed this application alleging that disregarding the specific provisions of the Kolkata Thika Tenancy (Acquisition and Regulation) Act of 1981 and of the subsequent Act namely West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 learned Courts below illegally held that the present appellant/petitioner was not a thika tenant and was a tenant under the respondent and passed a decree of eviction with other consequential reliefs. It is further case that in terms of said Act of 2001 which came into force with effect from 1st of March, 2003 only Thika Controller has power to decide under Section 5(3) of said Act as to whether a person is a thika tenant or not and under Section 21 of said Act it was provided that no Civil Court would have the jurisdiction to decide or deal with any question 6 which under the Act is to be determined by the Controller. It is further stated in said application that this second appeal has been filed against said judgment of learned Lower Appellate Court and hence during pendency of this second appeal the impugned judgment and decree should be stayed failing which the appellant /petitioner will suffer irreparable loss.
The respondent/ O. P. /landlord has filed an affidavit-in-opposition alleging that the present petitioner tenant took the same plea before the learned Courts below to be rejected. It is further case that the appellant tenant had neither any authority to file any return in Form- A before the Thika Controller nor the Thika Controller had any right to entertain the same and to initiate any proceeding. It is further alleged that all these allegations were made just to deprive the land owner the fruits of hard- fought decree of eviction after prolonged litigation. It is further asserted that the suit property is situated in a lucrative area and that a petrol pump is being run by the appellant petitioner tenant without payment of any 7 farthing to the respondent landlord even from before passing of the eviction decree by the learned Trial Court on 31st March, 2008. It is further alleged that the suit property measuring about four cottas is situated within Kolkata Municipal Corporation and in a posh residential-cum-commercial area and surrounded by wide roads on three sides. It is further asserted that 30 years' lease of suit premises between the parties already expired on 15th April, 1998 by efflux of time and that the appellant petitioner was running his business by occupying the suit premises as a trespasser without paying anything and that hard-fought fruits of the ejectment decree can only be stayed if the petitioner pays occupational charges equivalent to market rents starting from 1st of May, 1998. It is further alleged in said petition that the value of the suit property will be around Rs.5 crores and not less than rupees four crores and twenty lakhs as confirmed by the office of Additional District Sub-Registrar, Alipore, 24 Parganas, Government of West Bengal. It is further asserted that M/s. Talbort, a well reputed 8 surveyor, valuer land and estate agent, has submitted report dated 12th of April, 2011 stating that market rent of the suit premises will be Rs.76,500/- per month on 1st May, 1998, Rs.102000/- per month on 1st of May, 2003, Rs.1,36,000/- per month on 1st May, 2008 and Rs.1,60,000/- per month on April, 2011. It is further asserted that if said decree of eviction has to be stayed then petitioner should be directed to pay arrear occupation charges as per market rent since 1st May, 1998 till date and thereafter occupation charges at the rate of Rs.1,60,000/- per month from the current month till disposal of this second appeal with liberty to the respondents to withdraw aforesaid amounts and decretal amounts without any prejudice to and without conceding his rights and contentions.
The O. P. landlord also claimed arrear rents from August, 1982 to April, 1998.
The petitioner tenant has filed an affidavit-in-reply denying those assertions made in the affidavit-in-reply.
During hearing Mr. S. P. Roychowdhury, learned senior counsel for the O. P. / landlord has 9 referred to the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC page
705. According to him, in that case it was held by the Hon'ble Apex Court that party succeeding from Courts below not to be deprived of fruits from decree and that tenancy came to an end by determination of lease under Section 111 of T. P. Act., and the tenant became liable to pay damages for use and occupation at the rate at which landlord could have let out the premises on being vacated by tenant. It was further held that if the real value of the property is higher than rent earned then amount of compensation for continued use and occupation of the property can be assessed at higher value. It was further held in said case that under Order 41 Rule 5 the Appellate Court have power to put the Appellant-tenant on terms and that tenants' right of appeal is statutory but prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction. It was further held therein that at the time of passing of order of stay the Appeal Court has a jurisdiction to direct the tenant to compensate landlord by payment of reasonable amount and not necessarily same as contractual rate for loss occasioned by delay in execution of decree for grant of stay. According to Mr. Roychowdhury in tune of said judgment of Atma Ram (supra) several judgments were passed by Hon'ble Apex Court as well as this Court wherein order of stay was granted to the appellant tenant with the direction for payment of market rent of the property from the date of expiry of the lease and / or passing of ejectment decree in the Trial Court (in case tenancy was governed by rent law) as occupational charges. In this connection he has referred the cases of State of Maharashtra vs. Super Max International reported in 2009 (9) SCC 772, Anderson Wright & Co. vs. Amarnath Roy and Ors. reproted in 2005(6) SCC 489 = AIR 2005 SC 2457 Pratul Saha vs. Purnabrata Dutta reported in 2009 (3) CAL LT 395 (HC), United Engineering vs. Kaustab Ghosh reported in 2012 (1) CHN (Cal) page 247 and Sharma Kapoor reported in 2007 (2) WBLR (Cal) page 327. It came out from those judgments that the contractual rents were increased many folds namely 40 times in Atma Ram Case, 93 times in Super Max International case, 105 times in 10 Anderson Wright case, 164 times regarding first property and 333 times regarding second property in Pratul Saha's case and 18.75 times in United Engineering case and 363 times in Sharma Kapoor's case. Mr. Roychowdhury further submits that in this case the report was obtained as to the market rent of the suit property for the different periods from a reputed concern namely M/s. Talbort and Company, a well reputed surveyor, valuer land and estate agent. According to Mr. Roychowdhury the order of stay, if any, can only be granted by issuing a direction upon the petitioner tenant to pay arrear rents as well as current rents at the prevalent market rent as estimated by the valuer.
Mr. P. K. Das, on the other hand, submits that as the second appeal has been admitted as some substantial questions of law are involved, the stay should be granted with a direction to pay contractual rents only. He next submits that the proposition of law as laid down in the referred case laws is not disputed, but the same is not applicable in the facts of this case. According to Mr. Das those cases were between landlords and tenants both being private parties, whereas in the case the interest of the State being owner of land is involved. He further submits that if the Court is of the opinion that occupier petitioner is required to pay the market rent then the petitioner should be given an opportunity to file a valuation statement from a 11 reputed valuer or the Court may obtain a report to that effect from an enlisted valuer of the Court.
Unfortunately, the first contention of learned counsel for the appellant petitioner has no merit. Whenever a second appeal is admitted substantial question of law is involved.
His next contention is also of little merit. The present case is also a case of eviction initiated by a private landlord against a private party ending in ejectment decree. The plea of the petitioner tenant that since property vested to the State under Thika Tenancy law, the tenant became a direct tenant under the State, was rejected by both the Courts below and is the subject matter of this second appeal.
But that does not mean that the appellant tenant against whom an ejectement decree was passed will get an order of stay automatically by payment of contractual rent. In the referred case laws it was categorically stated as to why the Courts while allowing an order of stay in an ejectment suit should give directions to the occupier tenant to pay market rent. Now it is a 12 settled law that in order to get a protection by way of stay of operation of the impugned judgment and decree of eviction the tenant has to pay occupational charges at the rate of market rent of the locality for the period starting from the date of passing of ejectment decree if the case was guided by rent laws or from the date of expiry of lease, if the case was guided by T. P. Act and also to pay current market rent month by month till disposal of the appeal. M/s. Talbort and Company is a reputed surveyor, valuer, land and estate agent and is also reported to be an enlisted valuer of this Court. Admittedly, the lease was for a period of 30 years with effect from 16th April, 1968. The rent for last 10 years was @ Rs. 600/- per month. Thereafter there was no extension of lease but petitioner tenant continued to occupy the same. It is also an admitted fact that the petitioner tenant stopped making payment of rent since August, 1982 on the plea that tenant became a direct tenant under the State under the Thika Tenancy Act. On going through the report of M/s. Talbort and Company I find that the rents 13 as assessed by said concern for different periods may provisionally be accepted as the prevalent market rent of the corresponding periods after reducing the same by 25 per cent. In that case the arrear amount payable for the period from 1st of May, 1998 to 30th April, 2012 come to rupees one crore twenty lakhs and forty nine thousand and the rent payable since May, 2012 will be Rs.1,20,000/- per month. Accordingly I pass the following order.
The impugned judgment and decree of eviction and consequential execution case, if any, will stay on condition of depositing rupees one crore twenty lakhs and forty nine thousand being the arrear occupational charges of the suit premises for the period from 1st of May, 1998 till 30th April, 2012 within three months from this date together with payment of current occupational charges with effect from May, 2012 at the rate of Rs.1,20,000/- per month by 15th of each succeeding month, the first one by 15th June, 2012. In the event of failure to deposit either the arrear rent or current rents within the stipulated time, this order of stay will 14 stand vacated without any further order. Those deposits are required to be made with learned Registrar General of this Court. The O. P. / landlord will be at liberty to withdraw Rs.93,600/- being the arrear rent of 156 months at the rate of contractual rate of Rs.600/- and will also be entitled to withdraw current rents at the rate of Rs.600/- per month being contractual rent. Learned Registrar General is hereby requested to deposit the arrear rent after deducting an amount of Rs.93,600/- therefrom in any short term fixed deposit scheme of any nationalized bank of his choice and to renew the same from time to time until further order. Similarly, learned Registrar General should deposit the monthly amount of Rs.1,20,000/- after deducting the contractual rent of Rs.600/- to be withdrawn by the O. P. landlord, month by month in any short term fixed deposit scheme in any nationalized bank of his choice and to renew the same from time to time until further order. This order is passed without prejudice to the rights and contentions of the parties. 15
The application stands disposed of accordingly.
Urgent photostat certified copy of this order be supplied to learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)