Calcutta High Court (Appellete Side)
Khaitan Consultants Ltd vs Daimanti Devi & Anr on 2 July, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
2025:CHC-AS:1186
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
C.O. 359 of 2025
With
CAN 1 of 2025
Khaitan Consultants Ltd.
VS.
Daimanti Devi & Anr.
For the Petitioner : Mr. Mainak Bose....Sr. Adv.
Mr. Khushi Gupta
..... advocates
For the Opposite Party : Mr. Sandipan Das
.... advocate
Heard on : 25.06.2025 & 02.07.2025
Judgment on : 02.07.2025
Hiranmay Bhattacharyya, J.:-
1. This application under Article 227 of the Constitution of India is at the
instance of the plaintiff and is directed against an order being No. 143 dated
January 14, 2025 passed by the learned Civil Judge 5th Bench, Presidency
Small Causes Court at Calcutta in Ejectment Suit no. 121 of 2003 E.
2. By the order impugned the application under Section 151 of the Code of
Civil Procedure filed by the petitioner seeking a direction upon the opposite
parties to make payment of occupation charges stood rejected.
3. Petitioner herein filed a suit for eviction on the grounds referred to under
various clauses of Subsection 1 of Section 6 of the West Bengal Premises
Tenancy Act, 1997 (for short "1997 Act"). The petitioner filed an application
under Section 151 of the Code of Civil Procedure seeking a direction upon
the defendant no. 1(a) to pay arrear occupational charges on and from 1st
December, 2003 till September 2024 and for a further direction upon the
defendants to continue to make payment of occupational charges till the
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delivery of possession. In the said application the petitioner has stated that
the suit property is located at the central business district of the city of
Kolkata and is located opposite the High Court at Calcutta. The present
letting out value of the suit property, according to the petitioner, in a
conservative estimate would be Rs. 1000/- per sq. ft. The learned Trial
Judge rejected the application seeking direction upon the opposite party to
pay occupation charges.
4. Being aggrieved, the plaintiff has approached this Court.
5. Mr. Bose, learned Senior Advocate appearing for the petitioner submitted
that the opposite parties are enjoying the suit property and are exploiting
the same for commercial purpose. He submitted that the contractual rate of
rent is very low and since the opposite parties are in possession of the suit
property and exploiting the same for commercial purpose, the opposite party
should be directed to pay occupational charges at the current market rate.
He further contended that the rate of occupation charges claimed by the
petitioner in the said application is a reasonable one and the same cannot
be said to an exorbitant amount taking into consideration the fact that the
suit property is situated in the prime location of the city of Kolkata. Mr.
Bose learned Senior advocate placed reliance upon the decision of the
Hon'ble Supreme Court of India in the case of Bijay Kumar Manish Kumar
HUF vs. Ashwin Bhanulal Desai reported at (2024) 8 SCC 668 in support
of his contention that even prior to the passing of a decree for eviction, a
direction for payment of occupation charges can be passed. He also placed
reliance upon a decision of the Hon'ble Supreme Court in the case of
Mohammad Ahmad and Another vs. Atma Ram Chauhan and Others
reported at (2011) 7 SCC 755 in support of his contention that the
landlords are entitled to reasonable rent akin to market rent.
6. Mr. Das learned advocate appearing for the opposite party seriously
disputed the contentions of Mr. Bose. He submitted that there is no
provision in the 1997 Act for payment of occupation charges at the current
market rate for continuing in possession of the tenanted premises during
the pendency of the eviction suit. He further contended that the PW1 was
last cross examined on 1st October, 2018 and the petitioner has taken
several adjournments before the learned Trial Judge. He submitted that the
only object behind filing the application under Section 151 of the Code of
Civil Procedure is to enhance the rent in the name of occupation charges. He
concluded by submitting that the learned Trial Judge after considering the
materials on record rejected the application by passing a speaking order and
this Court should not interfere with such order.
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7. Heard the learned advocates for the respective parties and perused the
materials placed.
8. Petitioner claims to have sent a statutory notice under the provisions of the
Section 6 of the 1997 Act to the defendants inter alia terminating tenancy
alleging that in spite of the notice terminating the tenancy, the defendants
have failed, neglected and/ or deliberately refused to make over possession
of the suit shop rooms to the plaintiff. A suit for eviction inter alia on the
ground of default in payment of rent, subletting etc. was filed before the
learned Trial Judge.
9. The opposite parties are contesting the said suit by filing a written
statement denying the material allegations contained therein.
10. Record reveals that the PW1 was last cross examined on 1st October, 2018.
11. The petitioner filed the instant application under Section 151 of the Code of
Civil Procedure seeking a direction for payment of occupation charges.
12. Section 2(g) of the 1997 Act defines "tenant" to mean any person by whom
or on whose account or behalf the rent of any premises is or but for a
special contract, would be payable and includes any person continuing in
possession after termination of his tenancy.
13. From the aforesaid definition of "tenant" it is evident that a tenant includes
a person who continues in possession even after termination of his tenancy.
Such a tenancy is creature of statute. A tenant continuing is possession
after the termination of his tenancy is often referred to as a statutory tenant.
14. A person in order to claim to be a statutory tenant has to first establish that
he was a tenant of the premises within the meaning of "tenant" under the
1997 Act and that he continued in possession after the termination of
tenancy.
15. It is not the case of the plaintiff that the tenant vacated the suit property
upon termination of his tenancy. On the other hand, the plaintiff claimed
that inspite of service of notice under Section 6(4), the tenant failed and
neglected to hand over possession. To the mind of this Court, from the
averments made in the plaint, the tenant-defendant satisfies the test of a
statutory tenant.
16. Five Hon'ble Judges of the Supreme Court of India in Gian Devi vs. Jiban
Kumar reported at AIR 1985(SC) 796 while interpreting the definition of
tenant given in Delhi Rent Control Act, observed that the definition of
"tenant" under the said Act incudes a statutory tenant and that such a
person would not be a tenant under the ordinary law, but he is recognised
as statutory tenant under Rent Control legislation and by virtue of the
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definition placed on the same footing as contractual tenant so far as the
Rent Control legislation is concerned.
17. The Hon'ble Supreme Court in Biswabani (P) Ltd. vs. Santosh Kumar
Dutta And Ors. reported at (1980) 1 SCC 185 held that a statutory tenant
under the West Bengal Premises Tenancy Act, 1956 would enjoy the
protection of the statute until evicted under the enabling provisions of the
statute and its tenancy would come to an end either on surrender or on
passing of the eviction decree.
18. As observed hereinbefore, the definition of "tenant" under the West Bengal
Premises Tenancy Act, 1997 also includes a statutory tenant.
19. In view of the aforesaid discussion, this Court holds that a statutory tenant
under the 1997 Act enjoys all the benefits and protections conferred by the
1997 Act.
20. Section 111 of the Transfer of Property Act, 1882 prescribes the modes of
determination of lease. A lease may be determined either by efflux of time
limited thereby, forfeiture, surrender etc. A lease may also be determined on
the expiration of a notice to determine the lease, or to quit, or of intention to
quit, the property leased, duly given by one party to the other.
21. A notice under Section 6(4) of the 1997 Act is a sine qua non for instituting
a suit for eviction by a landlord against the tenant on any of the grounds
specified under various clauses of subsection (1) of Section 6 except clause
(e).
22. The Hon'ble Supreme Court in the case of V. Dhanapal Chattiar vs.
Yesodai Ammal reported at (1976) 2 SCC 103 held that in a suit or
proceeding under any rent control statute of a State, no notice under
Section 106 of the Transfer of Property Act is necessary before filing a suit
for eviction.
23. In Mono Ranjan Dasgupta vs. Suchitra Ganguly reported at AIR 1989
Cal 14, the Hon'ble Calcutta High Court followed the decision of the Hon'ble
Supreme Court in Dhanapal Chattiar (supra) and held that no notice
under Section 106 of the Transfer of Property Act is necessary before filing a
suit for eviction under the 1956 Act.
24. By applying the decision in the case of Mono Ranjan Dasgupta (supra),
this Court holds that the notice under Section 6(4) of the 1997 Act is a
notice of suit and not a notice to quit as contemplated under Section 106 of
the Transfer of Property Act and notice under Section 106 of the Transfer of
Property Act is not necessary for filing a suit for eviction under 1997 Act.
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25. Section 6 of the 1997 Act starts with a non obstante clause. Under the 1997
Act, the landlord can evict a tenant only upon fulfilment of the grounds
contained in various clauses of Subsection (1) of Section 6. A landlord
cannot recover possession merely by issuing the notice under Section 6(4).
However, in order to recover possession of the leasehold premises under the
Transfer of property Act, determination of a lease is necessary.
26. In view of the aforesaid discussion, this Court holds that even upon service
of notice under Section 6(4) of the 1997 Act, the landlord still remains a
landlord and a tenant continues to remain a tenant in view of the expression
"any person continuing in possession after termination of his tenancy".
27. To the mind of this Court, the tenant even upon service of notice under
Section 6(4) of the 1997 Act cannot be said to be a "tenant at sufferance".
28. In Bijay Kumar (supra), a proceeding for eviction under the Transfer of
Property Act was initiated on the ground of forfeiture of lease due to alleged
non payment of rent. An application under Order 7 Rule 11 of the Code of
Civil Procedure was allowed by the learned Trial Judge upon holding that
the agreement inter se the parties was governed only by the Transfer of
Property Act. On an appeal from the order of the Trial Court, the Hon'ble
High Court upheld the jurisdictional issue in favour of the tenant, dismissed
the suits holding that the suits are not maintainable. The Special Leave
petition was filed by the landlord against the aforesaid judgment of the
Hon'ble High Court. An interlocutory application seeking direction for
payment of monthly occupation charges was filed in the pending Special
Leave Petition.
29. The Hon'ble Supreme Court in Bijay Kumar (supra) took note of its own
decision in the case of Indian Oil Corpn. Ltd. vs. Sudera Realty (P) Ltd.
reported at (2023) 16 SCC 704 wherein it was observed that a tenant
continuing in possession after the expiry of the lease may be treated as a
tenant at sufferance, which status is a shade higher than that of a mere
trespasser. A tenant at sufferance, as held by the Hon'ble Supreme Court in
Bijay Kumar (supra) is a person who enters upon a land by lawful title but
continues in possession after the title has ended without statutory authority
and without obtaining consent of the person then entitled. In Sudera
Realty (supra), it was held that the person while continuing possession after
the expiry of the lease becomes liable to pay mesne profits. By applying the
proposition of law laid down in Sudera Realty (supra), the Hon'ble Supreme
Court in Bijay Kumar (supra) held that a tenant who once entered the
property in question lawfully, continues in possession after his right to do so
stands extinguished, is liable to compensate the landlord for such time
period after the right of occupancy expires.
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30. In Bijay Kumar (supra), the Hon'ble Supreme Court after noting that an
unchallenged market report forms part of the record, directed deposit of an
amount with the Registry of the Hon'ble Supreme Court to ensure complete
justice inter se the parties. It was further clarified in the said order that the
direction for deposit made in the interlocutory application are subject to
final outcome of the Special Leave Petition.
31. Therefore, no final decision was taken in Bijay Kumar (supra).
32. Be that as it may, the basic premise for passing a direction for deposit of
money in Bijoy Kumar (supra) was that the respondent therein was treated
to be a tenant at sufferance. The said reported decision is distinguishable on
facts and, therefore, cannot be applied to the case on hand as the defendant
herein cannot be said to be a tenant at sufferance as observed hereinbefore.
33. In Mohammad Ahmad (supra), the application filed under Section 21(1) (a)
of the U.P. Act, 1972 was allowed directing that the property be released.
The order of release passed by the prescribed authority was partially
modified by the appellate authority. The order of the appellate authority was
challenged in a writ petition and the Hon’ble High Court, while considering
the stay application directed that the appellants will not be dispossessed
from the shops provided occupation charges at the rate specified in the said
order was paid. Thereafter, the rate of occupation charges was enhanced
which was challenged before the Hon’ble Supreme Court in Special Leave
Petition. The Hon’ble Supreme Court refused to interfere with the order
enhancing the occupation charges upon holding that the parties agreed to
the enhancement and the enhancement was not unreasonable and
exorbitant.
34. Mr. Bose placed strong reliance on paragraph 21 of Mohammad Ahmad
(supra) in support of his contention that it is the duty of the Court to direct
payment of occupation charges at the market rate.
35. The Hon’ble Supreme Court in para 21 of Mohammad Ahmad (supra)
expressed its view that majority of cases relating to landlord tenant disputes
are filed because the landlords do not get reasonable rent akin to market
rent and for such reason fixed some guidelines and norms so as to minimise
the landlord- tenant litigation at all levels.
36. The said guidelines are only for the purpose of minimising landlord-tenant
litigation and cannot be said to be an authority for the proposition that in an
eviction suit filed under Section 6 of the 1997 Act, the landlord can claim
occupation charges at the current market rate of rent during the pendency
of the eviction suit.
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37. On a suit for eviction being instituted by the landlord for eviction on any of
the grounds referred to in Section 6 of the 1997 Act, the tenant has to
comply with the requirements laid down under Section 7 of the said Act. The
tenant is under an obligation to pay to the landlord or deposit with the Civil
Judge all arrears of rent calculated at the rate at which it was last paid
together with interest. In case there is any dispute as to the amount of rent
payable by the tenant, the tenant shall have to deposit admitted arrears of
rent together with an application for adjudication of dispute. Section 7(2)
casts an obligation upon the Court to decide the dispute having regard to
the rate at which rent was last paid and the period for which such default is
made.
38. Subsection 3 of Section 7 provides for striking out the defence against
delivery of possession in case of failure to comply with the requirements
under Subsection (1) or (2) of Section 7.
39. Thus, a tenant against whom a suit under Section 6 of the 1997 Act is
instituted has to pay rent current as well as arrears at the rate at which it
was last paid to get protection from eviction.
40. Section 7(1) and 7(2) contemplates payment or deposit of rent at the rate at
which it was last paid and not at any other rate.
41. 1997 Act does not provide for payment of occupation charges during the
pendency of the suit nor does it provide for payment of rent at a rate higher
than that at which it was last paid.
42. When the statute provides that the tenant shall get the benefit of protection
against eviction upon compliance of Section 7(1) and 7(2), this Court is of
the considered view that the tenant cannot be compelled to pay occupation
charges at a rate higher than the rate at which rent was last paid, during
the pendency of the eviction suit.
43. Section 17 of the 1997 Act states that 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 the said Act.
44. It is well open for a landlord to approach the Controller for fixation of fair
rent.
45. Section 18 of the 1997 Act states that the fair rent initially fixed shall be
automatically increased by 5% every three years. Proviso thereto empowers
the State Government to issue notification fixing such rate of increase every
four years from the date of commencement of the 1997 Act.
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46. Section 19 of the said Act states when the fair rent fixed by the Controller
takes effect. The provisions of the 1997 Act takes care of the guidelines and
norms fixed by the Hon’ble Supreme Court in Paragraph 21 of Mohammad
Ahmad (supra). If the petitioner feels that the 1997 Act is not in consonance
with the guidelines and norms fixed by the Hon’ble Supreme Court it is well
open for the petitioner to take steps in accordance with law.
47. It is not the case of the petitioner herein that the petitioner has approached
the Controller for fixation of fair rent under provisions of 1997 Act. On the
contrary the petitioner has approached the Civil Judge praying for eviction
on the grounds referred to under various subclauses of Subsection 1 of
Section 6.
48. Having not taken recourse to the provisions of the 1997 Act for fixation of
the fair rent and after filing a suit for eviction of the tenant, the petitioner
cannot now turn around and seek a direction for payment of occupation
charges at the current market rate of rent during the pendency of the
eviction suit.
49. In view of the aforesaid discussion, this Court holds that the defendants
cannot be said to be a tenant at sufferance. The defendants, therefore, are
not liable to pay occupation charges.
50. The learned Trial Judge was right in observing that occupational charges are
granted for unlawful occupation of the premises but in case of a tenant
against whom a suit has been instituted upon issuance of notice under
Section 6(4) such a tenant becomes a statutory tenant and his occupation
cannot be said to have become unlawful unless a decree for eviction against
him has been passed.
51. The learned Trial Judge assigned cogent reasons for rejecting the application
under Section 151 of the Code of Civil Procedure. The said order does not
suffer from any infirmity warranting interference under Article 227 of the
Constitution of India.
52. For all the reasons as aforesaid, CO 359 of 2025 stands dismissed.
Accordingly the application stands disposed of. There shall be, however, no
order as to costs.
53. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(HIRANMAY BHATTACHARYYA, J.)
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