Calcutta High Court
The Rampuria Estates Pvt. Ltd. vs M/S. Bijay Tractor Spares Pvt. Ltd. on 26 June, 2000
Equivalent citations: (2000)3CALLT119(HC), 2000(2)CHN530, 2000 A I H C 3600, (2001) 1 RENCJ 504, (2000) 2 RENCR 584, (2000) 3 ICC 578, (2000) 2 CAL HN 530, (2000) 3 CALLT 119, (2001) CAL WN 141
JUDGMENT P.K. Samanta, J.
1. The plaintiff/petitioner filed Ejectment Suit No. 309 of 1997 in the City Civil Court at Calcutta under the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter called as the said Act) for eviction of the defendant/opposite party. The defendant/opposite party upon appearance in the said suit filed an application under section 17(2) and 17(2A)(b) of the said act read with section 151 of the Code of Civil Procedure raising a dispute as to the relationship of landlord and tenant between the parties. It is the basic requirement under the aforesaid provisions of the said Act that the tenant should deposit in Court within the time prescribed therein the amount admitted by him to be due together with the application for determination of the rent payable and the Court has been empowered to determine the rate of rent and the period of default and at the same time considering the facts and circumstances of the case to extend the time to make such deposit and/or to grant instalments in payment or rents for the period of default. Such determination of the rate of rent and the period of default necessarily Implies a determination as to the relationship of landlord and tenant between the parties to the suit an otherwise the tenant would not have the obligation to deposit rent in Court in the pending eviction suit filed by one who is not the landlord of the tenant.
2. By the impugned order dated 9th February, 1999 passed on the said application filed by the defendant/opposite party it was held that there is no relationship of landlord and tenant between the parties and as such the defendant opposite party is under no obligation to deposit in the pending eviction suit the rents both current and arrear with interests for the periods of default if there be any. The formost question Involved in this revlslonal application is as to the relationship of landlord and tenant between the parties and whether in law such a relationship exists between the parties in view of the pleadings of the parties and the materials or record. These questions assume importance in view of the decisions of this Court and of the Supreme Court which I will deal hereinafter.
3. The plaintiff/petitioner did not claim and/or allege ownership of the suit premises but alleged that the defendant/opposite party is the tenant under the plaintiff/petitioner as because the plaintiff/petitioner is entitled to receive the rents of the said premises from the defendant/opposite party even if such entitlement is not on his own account. The letter dated 21.1.72 (Ext. 1) is the only document which is forthcoming for a decision on the said question. The said letter was written by the Director of the defendant/ opposite parly to the "Rampurias" who are not parlies to this suit, with a copy to the plaintiff/petitioner. By the said letter it was confirmed by the defendant/opposite party to the Ramparlas that the defendant/opposite party agreed to take on rent the suit premises as a monthly tenant thereof from the Rampurlas with effect from 1.1.72 on the terms and conditions mentioned therein. The extent of tenancy being not the subject matter of dispute in this revlslonal application the same is not dealt with. One of the terms and conditions of the tenancy which is relevant and Important for the present purpose. Is as under :--
"That further it is understood that you have empowered Messrs The Rampuria Estates Private Limited to collect and receive the rents and the receipts granted by the said Messrs. The Rampuria Estates Private Limited with regard to the payments of rent shall operate as a full discharge to us in respect thereof. All further correspondences shall be made by us to your said Company."
4. Mr. Sudhis Dasgupta, learned seni or advocate appearing on behalf of the plaintiff/petitioner assailed the aforesaid order dated 9.2.99 whereby it was held that there is no relationship of landlord and tenant between the parties upon reference to the definition of landlord as provided in section 2(d) of the said Act and the decisions of the Supreme Court reported in 1988(41 SCC 572, {S.B. Abdul Azeez v. M. Maniyappa Setty &Ors.). (Swadesh Ranjan Sinha v. Haradeb Banerjee), 1994 Suppl(2) SCC, 704 (National Spiritual Assembly of Bahais of India & Ors. v. Maharashtra Slate Khadi & Village Industries Board & Anrs). Mr. Dasgupta contended that in view of th definition of landlord given in section (d) of the said Act even if the rent is received by a person not on his own account but on account of any other person such as his principal or otherwise then for the purpose of the Act, he would be a landlord. In other words, a person having no Interest whatsoever in the suit practises, if receives rent as an agent of his principal, then he would be a landlord for the purpose of the Act and there would be a relationship of landlord and tenant between him and the tenant of the premises. Having regard to the aforesaid costention it is necessary to extract the scope of section 2(d) of the said Act for arriving at a decision on the question of relationship of landlord and tenant in a circumstances where a person receives rent of a premises having no Interest whatsoever there, but as an agent of his principal. Section 2(d) reads as under :--
2(d)."landlord" Included any person who, for the time being. Is entitled to receive or but for a special contract, would be entitled to receive, the rent of any premises whether or not his own account
5. This definition is undoubtedly an Inclusive definition. A person who is either entitled to receive rent for the time being or a person who but for a special contract would be entitled to receive rent whether or not on his own account has been Included as a landlord as per the definition, The key word in the said definition is entitlement. Such entitlement therefore must flow from some legal right. It is not an entitlement to collect only and to demand payment to him as a Collector and/or agent of the owner. This entitlement as per the definition is something more than that of a mere collector, and this some thing more must be on his own account but not on account of his principle or the owner of the premises. The broad expansion of the definition of the landlord as put forward by Mr. Dasgupta would lead to a situation where an employee and/or a caretaker of a premises who has been authorised by the owner of the premises to collect rent from his tenant month by month would be a landlord of the same without anything else. Division Bench judgment of this Court reported in 92 CWN, 440 (Kalyanl Bhattacharjee v. Monoranjan Roy) is a pointer in this regard. It held that the expression landlord pre-supposes some legal right. Any person for the time being entitled to deceive the rent only refers to the persons entitled as between the landlord and the tenant.
6. In this particular case there is no other material except the aforesaid letter dated 21.1.72 (Ext. 1) addressed to the owners of the suit premises with a copy to the plaintiff/petitioner. The said letter disclosed that the owners of the suit premises had empowered the plaintiff/petitioner to collect and receive the rent and the receipts grambed by the plaintiff/petitioner would operate as full discharge as regards payments of rent. The language of the said letter therefore clearly and unequivocally referred to the arrangement made between the owners of the promises and the plaintiff petitioner in relations to the collection of the rent and there is no indication whatsoever in the aforesaid letter that the plaintiff/petitioner would be entitled to receive the rent of the suit premises for the time being or for the period so long the defendent/opposite party would be in possession of the suit premises as a tenant independently and in exercise of it's some legal right over the suit permission or without the reference of said "Rampurlas". The plaintiff therefore was merely authorised by the landlords to receive rent on behalf of the landlords. This is the delegated authority to receive rent short of an entitlement to receive rent.
7. The decision of the Supreme Court in the case of S.B. Abdul Azeez (supra) referred to by Mr. Das gupta. Is not applicable in the facts and circumstances of this cases. The Supreme Court upon consideration of the definition of landlord in section 3(h) of the Karnataka Rent Control Act, which is also an Inclusive definition taking within its fold any person who for the time being is receiving or is entitled to receive the rent in respect of the leased premises, held that a usufructuary mortgage being entitled to receive the rent is a landlord, as such entitlement to receive the rent is on his own accounts and not for the benefit of others and not on the account of the other persons who have been accorded the status of landlords. Therefore. In the case before the Supreme Court the entitlement to receive the rent by a usufructuary mortgage flowed from the mortgage of the premises in his favour and the rent was received on account of the usufructuary mortgage of the premises. The decision of the Supreme Court in the case of Swadesh Ranjan Sinha (supra) is distinguishable on the facts and circumstances of that case. The only question arose for a decision in the paid case was whether or not the plaintiff was the owner of the suit premises for the purpose of instituting a suit for eviction in terms of the West Bengal Premises Tenancy Act, 1956. The dispute concerned a flat allotted to the plaintiff by the Kadamtala Housing Society, Calcutta. The said society who obtained a 99 years lease from the Calcutta Metropolitan Development Authority under registered document in respect of several flats Including the flat in question, in its turn allotted those flats to its members. The plaintiff was one of such allottees under a sub lease by the society for a term of 99 years with a heritable and transferable title. The plaintiff subsequently Inducted the respondent as a tenant Into the said flat. The suit for eviction by the plaintiff was though decreed by the trial Court but the first appellate Court and the High Court in second appeal dismissed the same on the ground that the plaintiff being a lessee under a sub lease of 99 years granted by the society which Itself was a lessee holding a lease of 99 years under Metropolitan Development Authority was not an owner within the meaning of section 13(1) [IT) of the West Bengal Premises Tenancy Act, 1956. In that context. It came up for consideration before the Supreme Court whether the expression 'owner' should be so strictly construed as to exclude any person having less than full ownership right even though such a person may be a landlord as per the definition of section 2(d) of the said Act. The Supreme Court held that although he is a lessee in relation to the society and his rights and Interest are subject to the terms of allotment, he is the owner of the property having a superior right in relation to the defendant. The said decision of the Supreme Court is therefore not a decision on the specific question Involved in this case, similarly, the decision in the case of National Spiritual Assembly of Bahais of India (supra) is also distinguishable on It's facts and circumstances. In the said case the second appellant was collecting the rent and had passed on receipts in evidence of such payment, right from 1967. There was not even a suggestion by the tenant that the first appellant was the owner and the second appellant was his collecting agent. Rather it transpired that the tenant prior to the purchase of the premises by the first appellant in March, 1967, paid rent to the second appellant and even after purchase by first appellant continued to make such payments to the second appellant. Because of this long standing conduct of payment of rent from 1967 it was held by the Supreme Court that the second appellant was recognized as a landlord by the tenant. Therefore, the said case is also not a decision on the issue as involved in this case but a decision on a relationship of landlord and tenant between the parties because of long established conduct of payment of rent by the tenant without any attornment of the same to the rightful owner and also in the absence of a suggestion that collection of the rest by the second appellant was on behalf of the first appellant.
8. In all these views the decision of the trial Court that the emphasis of the definition of the 'landlord' in section 2(d) of the Act lay on the word 'entitled' and the expression landlord pre-supposes some legal rights, therefore, does not suffer from any Jurisdictional error whatsoever. This Revisional Application therefore, must fail. Hence, the same is dismissed.
There will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.
9. Application dismissed