Calcutta High Court (Appellete Side)
Kamal Singh Jain & Anr vs Anil Kumar Poddar on 15 May, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICITON
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
WPLRT 170 of 2024
Kamal Singh Jain & Anr.
Vs.
Anil Kumar Poddar
With
WPLRT 47 of 2025
Anil Kumar Poddar
Vs.
Kamal Singh Jain & Anr.
For the Petitioners in : Mr. Saptangsu Basu, Sr. Adv.
WPLRT 170 of 2024 Mr. Rohit Banerjee, Adv.
and Respondents in Mr. Saptarshi Bhattacharjee, Adv.
WPLRT 47 of 2025
For the Respondent : Mr. Aniruddha Chatterjee, Sr. Adv.
Landlord in Mr. Ashim Kumar Roy, Adv.
WPLRT 170 of 2024 Mr. Anirban Roy, Adv.
and Petitioner in Mr. Debjit Basu, Adv.
WPLRT 47 of 2025
Heard on : April 11, 2025
Judgment on : May 15, 2025
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Md. Shabbar Rashidi, J.:-
1. The two writ petitions are in assailment of a common judgment
and order dated October 7, 2022 passed by the West Bengal Land
Reforms and Tenancy Tribunal in O.A. No. 3474 of 2022 and O.A. No.
3297 of 2022 (M.A. No. 496 of 2023) (LRTT) arising out of order dated
August 24, 2022 passed by the learned Rent Controller in R.C. 440 of
2003.
2. According to the case made out by the parties, the suit premises
is located in a prestigious building in a commercial hub of Kolkata
situated at 17, Ganesh Chandra Avenue, Kolkata 700013, situated on
the southern side of Sir R N Mukherjee Road. The suit premises is an
office unit having a carpet area of 1700 square feet with a super built
area of 2261 square feet on the fourth floor of a well-maintained prime
commercial building. The aforesaid building was recently renovated and
had the amenities of well-maintained floorings, lift and lobby, round the
clock water supply, sanitary and plumbing installations and a supply of
filtered water from the Municipal Corporation.
3. It was further the case of the parties that the suit premises was
let out by the landlord, Anil Kumar Poddar, to the tenant Nos. 1 & 2
namely Kamal Singh Jain and Jatan Lal Bardia on and from August 1,
1988 in terms of an agreement to that effect dated August 1, 1988 at a
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monthly rental of ₹3,060/-. The monthly rental was enhanced to
₹3,366/- with effect from August 1, 1998. Since then, the monthly rental
for the suit premises was never enhanced.
4. It also transpires from the materials placed before us that the
landlord approached the Rent Controller, Kolkata, by filing an
application under Section 17 (4B) of the West Bengal Premises Tenancy
Act, 1997 on June 30, 2003, for fixation of fair rent. The application was
registered as RC 440 of 2003. Later on, the landlord filed an application
under Section 39 (11) of the Act of 1997 seeking amendment of the
original claim underSection 17 (4B) of the West Bengal Premises Tenancy
Act, 1997 (for short, Act of 1997). By such amendment, the landlord
prayed for fixation of fair rent considering the market rent in terms of
Section 17 (6) of the Act of 1997.
5. According to the landlord’s case, immediately after filing of the
application for amendment of the claim, the tenants admitted the original
claim made by the landlord for enhancement of fair rent to ₹12,240/- in
terms of Section 17 (4B) of the Act of 1997. Such application for
amendment, filed on behalf of the landlord, was allowed by learned Rent
Controller upon contested hearing and accordingly, the landlord was
granted liberty to file an application under Section 17 (6) of the Act of
1997.
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6. According to the case made out by the landlord, since his
application for fixation of fair rent was pending for 16 long years in
violation of the provisions contained in Section 42 of the Act of 1997, the
landlord preferred a revisional application being CO No. 2301 of 2019
before the High Court. By an order dated July 16, 2019 passed in CO No.
2301 of 2019, the High Court directed the learned rent controller to
dispose of RC Case No. 440 of 2003 within six months. The rent
controller having not disposed ofRC Case No. 440 of 2003 in terms of the
directions of the High Court, the landlord filed a Contempt Application
being CPAN 477 of 2022. Immediately, on receipt of the notice in the
Contempt proceedings, the rent controller passed the final order dated
August 24, 2022 thereby disposing of the application for fixation of fair
rent after 19 long years.
7. The landlord also submitted that the final order dated August
24, 2022, was passed by the rent controller ignoring his own order to the
effect that the fixation of fair rent would be considered on the basis of the
provisions contained under Section 17 (6) of the Act of 1997. The final
order in RC. 440 of 2003 was allegedly passed on the basis of the
provisions under Section 17 (4B) of the Act. By its order dated August
24, 2022, the rent controller fixed the fair rent of the suit premises at
₹8817. 60/- plus Municipal Taxes and Commercial Surcharge.
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8. In such backdrop, the landlord challenged the order passed by
the learned rent controller dated August 24, 2022 by filing O.A. 3474 of
2022 seeking enhancement of the fair rent fixed by the rent controller in
accordance with the provisions of section 17 (6) of the Act of 1997. At the
same time, the tenants also challenged the order passed by the learned
rent controller by filing O.A. 3297 of 2022 seeking reduction of the
quantum of fair rent fixed by the rent controller.
9. It was submitted on behalf of the landlord that the learned
tribunal erred in applying the wrong provision of law in arriving at the
enhanced rate of fair rent. The tribunal also did not consider the
valuation report submitted by a Class-I valuer and the length of the
tenancy. It also failed to take into consideration the rate of rent of other
premises in the vicinity having similar amenities. The rent for the suit
premises has been static since 1998 when it was enhanced for the first
time after ten years of the induction of the tenants in 1988. It was
submitted that the learned tribunal also did not consider the guidelines
laid down by the Hon’ble Supreme Court in several decisions on the
subject.
10. It was also contended that learned Tribunal enhanced the rent
at the rate of ₹16,054/- per month with effect from July 2003 with the
provision of enhancement at the rate of 25% every 3 years.The tenants
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applied for stay of the operation of the order directing enhancement of
fair rent which was refused. Nevertheless, the tenants have not paid the
arrears of rent as enhanced till date. It was also contended that the
learned tribunal also erred in not granting interest on the arrears of fair
rent ignoring the provisions contained under Section 35 of the Civil
Procedure Code merely on the ground that there was no provision
empowering the grant of interest in the Act of 1997.
11. The tenants, filed a separate original application challenging the
order dated August 24, 2022 being OA No. 3297 of 2022. In the said
O.A., the tenants prayed for modification in the order passed by the rent
controller. They also sought a direction upon the landlords to accept the
rent for the suit premises in terms of the tenancy agreement executed on
August 1, 1988.
12. According to the tenants, in passing the order dated August 24,
2022, the learned rent controller committed error by applying the
provisions of Section 17 (4) (B) of the Act of 1997. It has been submitted
that the learned tribunal ought to have remanded the matter for
adjudication of fair rent in terms of section 17 (6) of the Act by the rent
controller.
13. The tenants made payment of ₹12,00,000/- towards the due
rent for the suit premises in terms of order dated April 26, 2023 passed
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by learned tribunal and order passed in WPLRTT No. 123 and 125 of
2023. According to the submissions made on behalf of the tenants, the
aforesaid payments were ad hoc payments subject to the outcome of the
appeal pending before the tribunal. Furthermore, the landlords also
made the tenants to pay a sum of 15,00,000/- in August 1988 before
executing the agreement of tenancy.
14. It was also contended that the determination of fair rent by
learned tribunal at the rate of ₹16,054/- with effect from July 2003,
enhancing the admitted rent at the rate of 3,366/- per month was
erroneous. The rate of enhancement of rent at the rate of 25% every three
year has also been claimed to be arbitrary. Such order enhancing and
determining the rate of rent has got no basis and was passed in
derogation of the provisions contained in Section 17 (6) of the Act. It has
been submitted that the learned tribunal had erroneously come to a
conclusion that there were no materials on record to invoke
theprovisions of Section 17 (6) of the Act of 1997.
15. It was also contended that although, valuation report was
produced before the tribunal but it was not proved in accordance with
the provisions of Evidence Act and in that view of the facts, such report
could not be relied upon. To such proposition reliance was placed by the
tenant appellant on (2006) 10 Supreme Court Cases 631 (Subhash
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Maruti Avasare vs. State of Maharashtra). In this context, learned
advocate for the tenant appellant also cited an unreported order passed
in FMAT 125 of 2024 (Mrs. Juliet Gomes and Ors vs. Kahkashan
Bano) on the proposition that anything obtained or produced before the
court showing alleged assessment of rent in the locality of demised
premises cannot be considered as a valid basis for determination of fair
rent.
16. Relying upon (1973) 1 Supreme Court Cases 559
(Ramchandra Keshav Adke & Ors. Vs. Govind Jyoti Chavare & Ors),
learned advocate for the tenant appellant also submitted that if the
statute provides a mechanism for determination of fair rent, it should be
worked out strictly on the basis of such statutory provisions and not
otherwise.
17. Learned advocate for tenant appellant also contended that the
provisions of a statute should be read as a whole. Isolated construction
of words used in such statute should be avoided. To such proposition,
leaned advocate relied upon (2010) 5 Supreme Court Cases 196
(Pallawi Resources Limited vs. Protos Engineering Company Pvt.
Ltd).
18. Learned advocate for the landlord/appellant relied upon 2024
SCC OnLine Cal 7112 (Union of India vs. Hindustan Consultancy &
9
Services Ltd. And Another), 2022 SCC OnLine Cal 4098 (Hanuman
Estates Ltd. Vs. National Insurance Company Ltd.) to contend that
the situation and condition of a building are the relevant factors to be
considered for the purpose of determination of fair rent.
19. Relying upon (2011) 7 SCC 755 (Mohammad Ahmad And
Another vs. Atma Ram Chauhan And Others.) and 2024 SCC OnLine
SC 980 (Bijay Kumar Manish Kumar Huf vs. Ashwin Bhanulal
Desai) it was submitted on behalf of landlord that the Hon’ble Supreme
Court upheld the enhancement of rent made by the High Court taking
into consideration the condition, location and situation etc. of the
tenanted premises. In the said case, the Hon’ble Supreme Court also laid
down certain guiding principles for enhancement of rate of rent.
20. Learned Advocate for the appellant also cited 2019 SCC OnLine
Cal 9180 (Vandana Agarwala vs. R. C. Ghoshal).
21. Relying on 2023 SCC OnLine Ker 11387 (Rahul And Another
vs. K. Subheesh And Another), it was submitted that the decision of the
Supreme Court rendered in the case of Mohd. Ahmad does not preclude
the landlord from seeking fixation of fair rent. It was also submitted that
in terms of the decision rendered in 2020 SCC OnLine Ker 10758 (P.
Padmini Balan vs. V. Chekkutty), 2024 SCC OnLine Cal 1178
(Debonair Vanigya Pvt. Ltd. Vs. Eshrat Jahan also known as Ishrat
10
Jahan And Another) and (2011) 8 SCC 161 (Indian Counsel for
Enviro-legal Action vs. Union of India And Others) certain factors like
inflation, cost of construction including cost of labour and building
materials and market value of the premises were the relevant
considerations for determination of fair rent.
22. The duration of lis and relationship of the parties was
considered to be a relevant factor having a bearing on the decision of
issue as to the mesne profit in 2013 SCC OnLine Cal 5938 (Casyab
Pvt. Ltd. Vs. Central Bank of India).
23. Relying upon 2013 SCC OnLine Cal 22867 (Govind Prasad
Kothary vs. State of West Bengal), learned Advocate for the landlord
submits that the learned Rent Controller failed to exercise his power
under Section 39 of the Act of 1997 which provides for appointment of
commissioner for assessment of valuation.
24. Learned Advocate for the landlord also cited a decision
rendered in (1999) 3 SCC 161 (Ashwin Kumar K. Patel vs. Upendra J.
Patel and Others) in support of their contention that in order to
minimize the delay, the Court may decide an issue itself instead of
remanding the matter back. It was also contended that the Court can
pass any order which had the effect of advancing the cause of justice.
11
25. Relying upon (2014) 10 Supreme Court Cases 702
(Tejender Singh Gambhir and Another vs. Gurpreet Singh and Ors.)
it was contended that in absence of a specific order in this regard,
plaintiff cannot be obliged to put in deficit court fee enhanced on account
of amendment in the reliefs claimed.
26. It was also contended that the learned tribunal erred in not
awarding interest on the amount of rent lying due with the tenant in
terms of the rate of rent admitted by them. To such proposition, the
learned advocate for the landlord relied upon (2011) 8 Supreme Court
Cases 161 (Indian Council for Enviro-legal Action Vs. Union of India
and Others) and (2007) 3 Supreme Court Cases 545 (Alok Shanker
Pandey vs. Union of India and Others).
27. As noted above, the tenants were inducted in the demised
premises i.e. in the fourth floor of a commercial building situated at 17,
Ganesh Chandra Avenue, Kolkata in 1988. The initial rent as per the
agreement dated August 1, 1988 was fixed at ₹3,060/- per month. Such
rent was enhanced after ten years of tenancy in the year 1998 and was
fixed at ₹3,366/- per month. Admittedly, the rate of rent has remained
static since 1998. The landlord had taken out an application under
Section 17 (4) of the Act of 1997, seeking fixation of fair rent. The learned
Rent Controller by his order dated August 24, 2022, fixed the fair rent of
12
the suit premises at ₹8817.60/- exclusive of applicable Municipal Taxes
and Commercial Surcharge, taking into account that the tenancy
subsisted for more than 14 years for a building constructed before 1984
and used for commercial purpose. The assessment was made in terms of
the formula provided in Section 17 (4B) of the Act of 1997. The said order
was passed despite an application at the behest of landlord for
amendment of the application converting the original application into one
under Section 17 (6) of the Act of 1997 was allowed and the landlord was
granted liberty to file such application.
28. We have also noted hereinbefore that such order dated August
24, 2022, passed by the Rent Controller was challenged both, by the
landlord and the tenant by filing separate Original Applications before
the Land Reforms and Tenancy Tribunal, Kolkata. Landlord contended
that the order was passed giving a go bye to the provisions contained in
Section 17 (6) of the West Bengal Premises Tenancy Act, 1997 and was
wrongly decided on the basis of the provisions and formula provided in
Section 17 (4B) of the Act without considering the rent of the premises in
vicinity having similar amenities. On the other hand, the tenant assailed
the order of the Rent Controller broadly on a premise that the order was
passed without considering the covenant contained in the agreement
deed dated August 1, 1988 with regard to enhancement of rent.
13
29. Apparently, the suit premises at 17, Ganesh Chandra Avenue is
situated in a posh commercial area. The learned tribunal took into
consideration the various documents like Google Maps to determine the
locality and situation of the premises. It is not denied that the tenant was
inducted in the premises in 1988 and rent of the suit premises was once
enhanced in 1998, after ten years of the tenancy from ₹3,060/- to
₹3,366/-. It is also not denied that the rate of rent for the demised
premises has remained static since 1998. Over 26 years have elapsed
since then. Considering all this, the Rent Controller, by its order dated
August 24, 2022 went on to determine the fair rent for the demised
premises at ₹8817.60/- excluding the applicable Municipal Taxes and
Commercial Surcharge on the basis of the provisions and formula
provided in Section 17 (4B).
30. The law relating to fixation of fair rent of a tenanted premises
has been laid down in Section 17 of the West Bengal Premises Tenancy
Act, 1997, which reads as follows:
“17. Fixation Of fair rent.–(1) The Controller shall, on
application made to him either by the landlord or by the
tenant in the prescribed manner, fix the fair rent in respect of
any premises in accordance with the provisions of this Act.
(2) The fair rent for a year in respect of any premises
constructed and let out after the year 1984, shall be fixed ‘[on
the basis of annual payment of an amount equal to six and
14three-fourth per cent per annuam of the aggregate amount of
the actual cost of construction and the market price of the
land on the date of commencement of construction.]
Explanation.–The cost of construction of a premises shall
include the cost of water supply and sanitary and electric
installation and shall be determined with due regard to the
rates adopted for the purpose of estimate by the Public
Works Department of the State Government for the area
concerned. The Controller may allow or disallow the variation
of estimates upto ten per cent, having regard to the nature of
the premises:
Provided that while calculating the market value of the site
on which the premises was constructed, the Controller shall
take into account only the portion of the site on which the
premises was constructed and sixty per cent of the portion of
the vacant land, if any, appurtenant to such premises, the
excess portion of the vacant land being treated as amenity.
(3) Where a tenancy subsists for twenty years or more in
respect of the premises constructed in or before the year
1984, the fair rent shall be determined by adding to the rent
as on 1.7.1976 not more than three times, and then
deducting the increase, if any, in the manner provided in
Schedule II, or by accepting the existing rent if such rent is
more than the increased rent determined according to that
Schedule.
(4) Where a tenancy subsists for ten years or more but less
than twenty years in respect of the premises constructed in
or before the year 1984, the fair rent shall be determined by
adding to the rent as on 1.7.1986 not more than two times,
and then deducting the increase, if any, in the manner
provided in Schedule III, or by accepting the existing rent if
15such rent is more than the increased rent determined
according to that Schedule.
(4A) Where a tenancy subsist for twenty years or more in
respect of the premises constructed in or before the year
1984 and used for commercial purpose, the fair rent shall
be determined by adding t the rent as on 1.7.1976 five
times or by accepting the existing rent if such rent is more
than the increased rent determined under this subsection.
(4B) Where a tenancy subsists for ten years or more but
less than twenty years in respect of the premises
constructed in or before the year 1984 and used for
commercial purpose, the fair rent shall be determined by
adding to the rent as on 1.7.1986 three times or by
accepting the existing rent if such rent is more than the
increased ret determined under this sub-section.
(5) Where at the commencement of this Act, any proceeding is
pending for fixation of the fair rent of such premises under
the West Bengal Premises Tenancy Act, 1956; the rent fixed
under the said proceeding shall be the fair rent under this
Act.
(6) Where none of the foregoing provisions of this section
applies to any premises, the fair rent shall be such as would
be reasonable, having regard to the situation, locality and
condition of the premises and the amenities provided therein
and, where there are similar or nearly similar premises in the
locality, having regard also to the rent payable in respect of
such premises.”
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31. Fixation of fair rent by the Rent Controller by its order dated
August 24, 2022 has been set aside by the learned tribunal largely on a
hypothesis that the provisions of Section 17 (4B) of the Act of 1997, was
wrongly applied for arriving at the fair rent. Such order was ostensibly
passed ignoring the fact that the Rent Controller had himself allowed the
amendment application filed on behalf of landlord to consider the fixation
of fair rent in terms of the provisions of Section 17 (6) of the Act.
Apparently, Section 17 (4B) of the Act of 1997 provides for fixation of fair
rent taking into consideration the base rent as on July 1, 1986 which
was not available in the present case. The tenancy of the tenant
appellant was started in 1988. The learned tribunal also appears to have
considered that the rent for the suit premises has been stagnant for over
26 years without any enhancement.
32. Upon setting aside the order dated August 24, 2022 passed by
the Rent Controller, the learned tribunal went on to determine the fair
rent for the suit premises in terms of Section 17 (6) of the Act of 1997. In
doing so, the learned tribunal considered the report submitted by the
Class I valuer brought on record by the landlord as also that submitted
on behalf of the tenants. It was observed that the valuation report
submitted on behalf of the landlord was based on the valuation and rate
of rent of the adjoining buildings situated at 15, Ganesh Chandra
17
Avenue, the area under occupation of such tenancy, situation of the
premises and user thereof. It also relied upon Google Maps and other
materials placed before it. The learned tribunal also held that the
valuation report brought on behalf of tenants were devoid of such
considerations.
33. Taking into account all the relevant factors, the learned tribunal
proceeded to assess the fair rent at ₹16,054/- per mensem excluding the
proportionate share of monthly taxes and commercial surcharge in
accordance with Kolkata Municipal Corporation Act and other property
taxes, with effect from the month of tenancy commencing after the
application for fixation of fair rent i.e. July 2003 taking a quotient of
enhancement at the rate of 25% every three years. Learned tribunal
discussed relevant factors considered by it in great details and also
prepared a comprehensive chart showing the gradual enhancement in
the rate of fair rent in accordance with the formula it relied upon.
34. In arriving at the rent assessed by it, the learned Tribunal took
into account the market value of the suit premises. He has relied upon
the valuation reports submitted by the valuer from landlord side. The
registered valuer, according to the Tribunal, considered the guidelines
prescribed by the Hon’ble Supreme Court. Upon consideration of the
report so submitted by the registered valuer, it transpires that the rent
18
paid by the State Bank of Mysore at 20, Sir R.N. Mukherjee Road (Rasoi
Court), 1st Floor, Kolkata situated in a multi-storied commercial building,
and the rate of rent paid by ICICI Bank situated in the same address on
the ground floor has been considered by the registered valuer as the
comparable references for determination of fair rent. The aforesaid
tenancies started in the year 2015-16 respectively. The registered valuer
took into consideration the rent as well as the area under occupation of
such tenants and worked out the rent per Sq. Ft. According to the valuer,
the State Bank of Mysore was paying rent at the rate of ₹75/- per Sq. Ft.
whereas ICICI Bank was paying rent at the rate of ₹105/- per Sq. Ft.
Both excluding the property taxes (municipal taxes and commercial
surcharge), maintenance charges, water tax and electricity charges. The
registered valuer also noted that the address taken for reference was at
stone’s throw distance from the suit premises.Taking average of the per
sq. ft. rate of rent of the two buildings, the valuer assessed the rate of
rent for the suit premises at ₹90/- per Sq. Ft.
35. The registered valuer, in his assessment applied another
method. According to the second method, the valuation of the suit
premises was taken on the basis of valuation report taken from the
Directorate of Registration and Stamp Revenue. According to the e-
Assessment slip, the valuation of the tenanted portion of the suit
19
premises was ₹3,45,48,080-/. The registered valuer made the
assessment on the basis of the monthly interest that may accrue on such
amount in fixed deposit at bank rates. Such assessment was made,
apparently keeping in mind the latitude provided under Section 17 (6) of
the West Bengal Premises Tenancy Act, 1997.
36. Applying the two methods, the registered valuer worked out the
average of the rates of rent so arrived and proceeded to fix the monthly
rent which came to ₹2,80,754.32/- per month. However, to our opinion
valuation of the property, of which the rent is to be assessed, is not a
relevant factor in the provisions of Section 17 (6) of the Act, though, it so
by the pronouncement of Hon’ble Supreme Court. The provision provides
that “the fair rent shall be such as would be reasonable, having regard to
the situation, locality and condition of the premises and the amenities
provided therein and, where there are similar or nearly similar premises
in the locality, having regard also to the rent payable in respect of such
premises”.
37. First method applied by the registered valuer takes into account
the amount of rent paid by the tenants in the adjoining buildings which
is said to be at stone throw distance from the suit premises. According to
such assessment, the rent of the suit premises was assessed to be ₹90/-
20
per sq. ft. which, for the suit premises comprising of 1700 Sq. Ft. comes
to ₹1,53,000/- per month.
38. However, it is apparent that the two tenancies of State Bank of
Mysore and ICICI Bank, are of recent origin created in 2014 and 2015.
Moreover, these tenancies are in respect of ground floor and first floor.
Admittedly, putting the tenancy of the suit premises situated on the
fourth floor and on the backside of the building cannot be reasonably
equated with the new tenancies on the ground floor and first floor in a
nearby building. Furthermore, it is admitted position that the parties to
this proceeding agreed upon a rent of ₹3,060/- in 1988 which was
mutually agreed to be enhanced to ₹3,366/- in the year 1998. That
apart, the suit building is an old building having been constructed
sometimes in 1960 or 1961. It is also evident that the tenant himself has
been paying for the amenities as well as maintenance. No amenities were
being provided by the landlord. Besides, the tenant has been paying the
Municipal Taxes and Commercial Surcharge for the tenanted premises.
39. On the contrary, as we have noted, the report submitted by the
valuer of tenant side has not considered all the aforesaid factors
provisioned under Section 17 of the Act of 1997. The only thing that was
taken into consideration, in such report, was the rate of rent of some
other tenants in the suit building ranging from ₹219/- to ₹5,900/- per
21
month and that too, without considering the details like situation and
area under occupation, length of such tenancy etc. In such
circumstances, the report of the valuer of the tenant side cannot be
relied upon for the fixation of fair rent.
40. Taking into account the situation, locality and condition of the
suit premises and the amenities provided therein and also taking into
consideration the age as well as situation of the tenancy of the premises
selected for reference, the amount of rent assessed at ₹1,53,000/- per
month, should be reduced at least by 75%, in consideration of the
aforegone factors and expenses incurred by the tenant, which comes to
₹38,250/- per month with effect from the month of tenancy commencing
after the application for fixation of fair rent i.e. July 2003.
41. So far as rate of enhancement of fair rent at the rate of 25%
every three years is concerned, Section 18 of the Act of 1997 provides for
automatic enhancement of fair rent fixed initially, at the rate of 5% every
three years. The provision also provides for variation in the rate of such
enhancement by the State Government. Nothing has been placed before
us that the rate of such enhancement has been varied by the State
Government. The learned tribunal, apparently proceeded to fix the rate of
enhancement at the rate of 25% every three year on the consideration,
22
that the rate of monthly rent was never fixed initially by a competent
authority in accordance with the provisions of the Act of 1997.
42. Since, the landlord applied for fixation of fair rent in 2003 and
the proceedings in this regard has travelled up to this Court, we are
minded to fix such rent in this proceeding in terms of the provisions of
the West Bengal Premises Tenancy Act, 1997. In that view of the facts,
we are of the view that the rate of automatic enhancement of rent should
be in consonance with the provisions of Section 18 of the Act.
Accordingly, we fix the rate of automatic enhancement of fair rent on the
rates fixed by us, at the stipulated 5% every three years instead of 25%
every three years as directed in the impugned order.
43. So far as the covenant contained at Para 19 of the agreement
dated August 1, 1988 with regard to rate of enhancement of the fair rent
is concerned, we are not oblivious of the fact that the original tenancy
was started in 1988. Fair rent for the suit premises was once enhanced
in the year 1998 and since then the rate of rent has been static. A
covenant in the agreement cannot override the provisions of law. Such
covenant cannot be considered to limit the rights of the landlord, or even
the tenant, in accordance with established law, to approach the
appropriate authority for fixation of fair rent.
23
44. Moreover, a period of more than 26 years has elapsed since the
last fixation of fair rent. Market scenario has changed a lot. Business of
the tenant as evident from materials on record has also undergone
changes. The effect of inflation during these 26 years cannot be denied
which is a relevant factor necessitating fixation of fair rent. Factors like
inflation, cost of construction including cost of labour and building
materials and market value of the premises were the relevant
considerations for determination of fair rent by the learned tribunal. The
impugned order passed by learned tribunal appears to have taken these
factors into consideration in determining the fair rent, though, the same
has been disputed by the tenant on the ground that the same has not
been done in strict compliance of the procedure established by law.
45. In Ramchandra Keshav Adke (supra), the Hon’ble Supreme
Court held that where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all and that other
methods of performance are necessarily forbidden. In the case at hand,
however, nothing appears to have been done by the learned tribunal
which is beyond the purview of the powers conferred on it in terms of
Section 17 (6) of the Act of 1997 which gives the power that fair rent
shall be such as would be reasonable, having regard to the situation,
locality and condition of the premises and the amenities provided therein
24
and, where there are similar or nearly similar premises in the locality,
having regard also to the rent payable in respect of such premises.
46. Mrs. Juliet Gomes (supra) was rendered in the context where
one of the parties sought to rely upon assessment of rent in the
concerned locality on the basis of certain website information and that
too without disclosing the IP address of such website. However, no such
information has been relied upon. The only thing that has been sought to
be produced from a website is Google Maps showing the location of the
suit premises. Therefore, the ratio of such case cannot be applied in the
present case.
47. In Mohd. Ahmad (supra), Hon’ble Supreme Court laid down
certain guidelines with a view to minimize litigations between landlords
and tenants in following terms:
“21. According to our considered view majority of these cases
are filed because the landlords do not get reasonable rent
akin to market rent, then on one ground or the other litigation
is initiated. So before saying omega, we deem it our duty and
obligation to fix some guidelines and norms for such type of
litigation, so as to minimise landlord-tenant litigation at all
levels. These are as follows:
(i) The tenant must enhance the rent according to the
terms of the agreement or at least by ten per cent, after
every three years and enhanced rent should then be
25made payable to the landlord. If the rent is too low (in
comparison to market rent), having been fixed almost 20
to 25 years back then the present market rate should be
worked out either on the basis of valuation report or
reliable estimates of building rentals in the surrounding
areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax,
maintenance charges, electricity charges for the actual
consumption of the tenanted premises and for common
area shall be payable by the tenant only so that the
landlord gets the actual rent out of which nothing would
be deductible. In case there is enhancement in property
tax, water tax or maintenance charges, electricity
charges then the same shall also be borne by the tenant
only.
(iii) The usual maintenance of the premises, except major
repairs would be carried out by the tenant only and the
same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried
out then in that case only after obtaining permission
from the landlord in writing, the same shall be carried
out and modalities with regard to adjustment of the
amount spent thereon, would have to be worked out
between the parties.
(v) If the present and prevalent market rent assessed
and fixed between the parties is paid by the tenant then
the landlord shall not be entitled to bring any action for
his eviction against such a tenant at least for a period of
265 years. Thus for a period of 5 years the tenant shall
enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed
by the official valuer or by any other agency, having
expertise in the matter.
(vii) The rent so fixed should be just, proper and
adequate, keeping in mind the location, type of
construction, accessibility to the main road, parking
space facilities available therein, etc. Care ought to be
taken that it does not end up being a bonanza for the
landlord.”
48. The Hon’ble Supreme Court, in the said decision, also noted to
the effect that if the rent is too low (in comparison to market rent),
having been fixed almost 20 to 25 years back then the present market
rate should be worked out either on the basis of valuation report or
reliable estimates of building rentals in the surrounding areas, let out on
rent recently. Similar principles were laid down by the Hon’ble Supreme
Court in Bijay Kumar Manish Kumar Huf (supra).
49. Niyas Ahmad Khan (supra) was rendered in the milieu that the
High Court proceeded to grant the relief of enhancement of rent in a
proceeding where the order of appropriate authority and appellate
authority refusing an order of eviction was assailed. The Hon’ble
Supreme Court noted that enhancement of rent was granted in absence
27
of any evidence either oral or documentary and the assessment of rent
was found to be without any basis. It was specifically noted by the
Supreme Court that the learned Judge did not consider the relevant
circumstances like the market value of the building on the date of letting,
prevailing rentals in the locality as on the date of letting, the size or
situation or amenities, age of the construction, latest assessment or
other circumstances in arriving at a decision of enhancement of rent.
Therefore, in view of the ratio laid down in such case the aforesaid
circumstances like market value of the building on the date of letting,
prevailing rentals in the locality as on the date of letting, the size or
situation or amenities, age of the construction etc. can be considered as
relevant factors for the purpose of determination of fair rent.
50. P. Padmini Balan (supra) was rendered in a revisional
jurisdiction which followed the principles laid down by the Hon’ble
Supreme Court in Mohd. Ahmad (supra) in respect of fixation of fair rent
considering the rent of a nearby shop.
51. Debonair Vanigya Pvt. Ltd. (supra) was delivered in the
context determination of occupational charge of a building in an eviction
proceeding where the status of the occupier was yet to be determined by
the learned trial court. Moreover, owing to difference of opinion between
28
the Hon’ble judges, said case was referred to another Bench. As such,
the ratio laid down in such case may not be applied in the instant case.
52. In Casyab Pvt. Ltd (supra), in an action for eviction, the
duration of lease and relationship of the parties were considered to be
relevant factor which would have a bearing in deciding the issue of
mesne profit.
53. In Govind Prasad Kothary (supra), a Coordinate Bench of this
Court held that,
“28. On plain reading of section 17 of the said Act, we are of
the view that duty is cast upon the Rent Controller to assess
fair rent whenever such an application is filed and since
neither party could produce any material to substantiate
their respective contentions, the Rent Controller was well
within his power in appointing a Commissioner for
assessment of fair rent.”
54. It has been asserted on behalf of the tenant that since the report
of valuer was not proved in accordance with the provisions of Evidence
Act, it could not have been relied upon. The decision in Subhash Murti
Avasare (supra) was rendered in a criminal appeal where the Hon’ble
Supreme Court noted that by mere filing of a document, its contents are
not proved. A certificate issued by an expert should be brought on record
by examining him. Although, the report of the valuer has not been relied
29
upon by the learned tribunal in the fixation of fair rent, nevertheless, on
the point of admissibility of valuer’s report, it would be pertinent to refer
to Para 29 of the judgment rendered in Govind Prasad Kothary (supra)
which runs as follows:
“29. Since the Civil Procedure Code in its entirety is not
applicable in such a proceeding for fixation for fair rent under
section 17 of the said Act, the procedure governing Civil Suit
and/or proceeding before the Civil Court as provided in the
Civil Procedure Code cannot be applied in a proceeding of
present nature before the Rent Controller. As such the
requirement of proof of the petitioner’s claim by evidence, as
argued by Mr Chatterjee cannot be accepted by us,
particularly when the rules framed under the said Act does
not provide for such a proceeding to be decided by trial on
evidence.”
55. Ashwin Kumar K. Patel (supra) was rendered in relation to an
application for injunction. In the said case, the Hon’ble Supreme Court
refrained itself from remanding the proceeding to High Court proceeded
to decide the issue on a consideration that further remand would lead to
delay.
56. The ratio laid down in Tejender Singh Gambhir (supra) relates
to payment of deficit court fee does not apply in the facts and
circumstances of the present case.
30
57. The learned tribunal while passing the impugned order
restrained itself from awarding any interest on the amount due with the
tenants on account of arrears of rent on the ground that there was no
provision in the Act of 1997 authorizing award of interest. In Indian
Counsel for Enviro-legal Action (supra), the Hon’ble Supreme Court
considered the prolonged litigation on the part of an erring litigant as
undue enrichment and laid down that,
“200. We have carefully considered the facts and
circumstances of this case. We have also considered the law
declared by this Court and by other countries in a number of
cases. We are clearly of the opinion that the applicant
industry concerned must deposit the amount as directed by
this Court vide order dated 4-11-1997 [Indian Council for
Enviro-Legal Action v. Union of India, (2011) 12 SCC 752]
with compound interest. The applicant industry has
deliberately not complied with the orders of this Court since
4-11-1997 [Indian Council for Enviro-Legal Action v. Union of
India, (2011) 12 SCC 752] . Thousands of villagers have been
adversely affected because no effective remedial steps have
been taken so far. The applicant industry has succeeded in
their design in not complying with the Court’s order by
keeping the litigation alive.”
58. Alok Shanker Pandey (supra), was rendered in the context of
delay in allotment of a flat and making over its possession to the
proposed purchaser. In the facts of the case, the Hon’ble Supreme Court
31
awarded interest on the amount lying with the vendor for purchase of
flat. However, in the case at hand, both parties have been litigating over
fixation of fair rent of the suit premises. The tenant agreed to pay rent at
a certain rate before the learned tribunal but at the same time we are not
oblivious that such rate of rent was also challenged by the landlord as
well.
59. Vandana Agarwala (supra) was rendered in a case where
amendment in the petition for fixation of fair rent was refused by the
learned Rent Controller. The ratio of such case is in no way attracted in
the facts and circumstance of the present case. In the instant case, such
amendment was allowed by the Rent Controller converting the
application under Section 17 (4) of the Act of 1997 into one under
Section 17 (6) of the Act.
60. In Rahul (supra) it was laid down by the Kerala High Court in a
revisional jurisdiction that,
“9.1. Clause (i) in paragraph 21 of the decision in Mohammad
Ahmad [(2011) 7 SCC 755] will not preclude the landlord
from seeking fixation of fair rent, invoking Section 5(1) of the
Act, at a rate more than the specified rate at which periodical
enhancement is stipulated in the agreement between the
landlord and the tenant since the Legislature has consciously
permitted the landlord to approach the Rent Control Court to
32
get the fair rent determined, notwithstanding the stipulation
regarding periodical enhancement in the lease agreement.”
61. In L. Bhupati Rai and Co. (supra) it was observed that the rent
of a business premises situated on the second floor could not be used as
a reasonable guide for ascertaining the rent payable for rooms on the
first floor. In such conspectus, the Court was of the view that no
materials were produced by the landlord to determine the rent. However,
as noted, in the instant case, the learned tribunal proceeded to fix the
rate of rent, largely on the basis of preceding rate of rent and then adding
the quotient at regular intervals. Materials with regard to rent of similar
premises in the locality were apparently not considered by the learned
tribunal as a guiding factor for such determination.
62. The case of Pallawi Resources Limited (supra) has been
referred to contend that the provisions of a law should be read as a
whole. Isolated application of portion of a provision of law is not
permitted. The Hon’ble Supreme Court noted that,
“17. A cardinal principle of statutory interpretation is that a
provision in a statute must be read as a whole and not in
isolation ignoring the other provisions of that statute. While
dealing with a statutory instrument, one cannot be allowed to
pick and choose. It will be grossly unjust if the court allows a
person to single out and avail the benefit of a provision from
a chain of provisions which is favourable to him. Reference
33
may be made to a Constitution Bench decision of this Court
in Prakash Kumar v. State of Gujarat [(2005) 2 SCC 409 :
2005 SCC (Cri) 518] . The Court in para 30 of that judgment
observed as follows: (SCC p. 427)“30. By now it is a well-settled principle of law that no
part of a statute and no word of a statute can be
construed in isolation. Statutes have to be construed so
that every word has a place and everything is in its
place. It is also trite that the statute or rules made
thereunder should be read as a whole and one provision
should be construed with reference to the other
provision to make the provision consistent with the
object sought to be achieved.”
18. We wish to also refer to a latest judgment of this Court
reported as SAIL v. SUTNI Sangam [(2009) 16 SCC 1 : (2009)
10 Scale 416], wherein this Court, very succinctly reiterated
the aforesaid position in para 67 as follows: (SCC p. 28)
“67. The learned counsel, however, invited our attention
to take recourse to the purposive interpretation doctrine
in preference to the literal interpretation. It is a well-
settled principle of law that a statute must be read as a
whole and then chapter by chapter, section by section,
and then word by word. For the said purpose, the
scheme of the Act must be noticed. If the principle of
interpretation of statutes resorted to by the court leads
to a fair reading of the provision, the same would fulfil
the conditions of applying the principles of purposive
construction.”
34
19. From these authorities, it is amply clear that a provision
in a statute ought not to be read in isolation. On the contrary,
a statute must be read as an integral whole keeping in view
the other provisions which may be relevant to the provision in
question in order to correctly arrive at the legislative intent
behind the provision in question. Applying this principle to
the case at hand which involves an interpretation of Section
17(4-A), it will not be appropriate for us to read sub-section
(4-A) of Section 17 ignoring the other relevant provisions.”
63. However, in the instant case, our attention is not drawn to any
instance of violation of such rule of interpretation. Provisions of Section
17 (4) or Section 17 (4B) of the Act, was held to be not applicable in the
facts of the case. It was specifically observed that the case fell within the
purview of Section 17 (6) of the Act of 1997. It is evident that existence of
certain preconditions is necessary for application of different sub-
Sections of Section 17 of the Act. The different sub-sections of Section 17
of the Act are attracted alternatively and not conjointly subject to
fulfillment of such conditions. For the aforesaid reasons, we are of the
opinion that no occasion of isolated application of the provisions of law
has arisen in the case.
64. In the instant case, by the impugned order, learned tribunal
considered the circumstances and proceeded to determine the fair rent of
the suit premises. In doing so, the learned tribunal took into
consideration several factors like, length of tenancy, rent of other similar
35
buildings in the vicinity, situation of the suit premises etc. in addition
thereto, the learned tribunal largely relied upon the subsisting rate of
rent of the suit premises and proceeded to fix the fair rent applying the
rate of enhancement from the date of application. A detailed chart
showing gradual increase in rent forms part of the impugned order.
65. In the light of discussions made above and in consideration of
the ratio laid down in various pronouncements discussed hereinbefore as
well as the materials placed before us we are of the opinion that monthly
rent of the suit premises should be fixed at ₹38,250/- per month with
effect from the month of tenancy commencing after the application for
fixation of fair rent i.e. July 2003 excluding the property taxes (municipal
taxes and commercial surcharge), maintenance charges, water tax and
electricity charges and the rate of automatic enhancement should be at
the rate of 5% every three years, in accordance with the provisions of
Section 18 of the Act of 1997. The order passed by the learned tribunal is
accordingly modified to the extent indicated above. We find no merit in
the writ petition filed on behalf of the tenant being WPLRT No. 170 of
2024.
66. Consequently, the instant writ petitions being WPLRT 170 of
2024 and WPLRT 47 of 2025 are disposed of however without any order
36
as to costs. With the disposal of main matter, connected applications, if
any, shall also stand disposed of.
67. Urgent Photostat certified copy of this judgment and order, if
applied for, be supplied expeditiously after complying with all necessary
legal formalities.
[MD. SHABBAR RASHIDI, J.]
68. I agree.
[DEBANGSU BASAK, J.]
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