SARKAR PROPERTIES LTD Vs. ANIL KUMAR DUTTA

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution for a Writ in the nature of Certiorari and for other Writs mentioned in the petition, for cancellation or quashing of certain orders passed by the Judge, 4th Bench of the Court of Small Causes, Calcutta, and by the Rent Controller, Calcutta, dated the 4th of August 1950 and 13th of January 1950 respectively and also for direction calling upon them and the other respondents to forbear from taking steps or from, executing or giving effect to the said orders.

(2.) On the 13th of January 1948, the respondent No. 1, Anil Kumar Dutta became a lessee under Messrs. Sarkar & Bros, a firm, under an indenture of lease in respect of a shop room situated at premises No. 2, Maharshi Debendra Road, in Calcutta. Under a similar indenture of lease of the same date the respondent Girish Chandra Daw & Sons also became a lessee under the said Messrs. Sarkar & Bros, in respect of another shop room situated in the said premises. Both the leases were for a, period of 30 years commencing from 1-1-1949. Under the said leases the respondents 1 and 2 agreed to pay a sum of Rs. 2,500/- each on or before the execution of the leases and a further sum of Rs. 1,000/- within one month from the date of commencement of the leases towards costs of repairs to the said premises for the purposes of development thereof. A sum of Rs. 2,500/- was. paid by each of the respondents 1 and 2 on or about the 30th of January 1948. On or about 22nd: April 1948 the petitioner company Sarkar Bros. (Properties) Ltd., was incorporated. On the 7th of September 1948 the said leases and all benefits and advantages thereof were assigned in favour of the petitioner company by the said firm of Sarkar & Bros, and the respondents 1 and 2. attorned to the petitioners as tenants in respect of the said shop rooms. On or about 1-1-1949 the respondents 1 and 2 paid the respective sums of Rs. 1,000/- each to the petitioners. In the months of June and July 1949 the respondents 1 and 2 instituted proceedings before the Rent Controller, Calcutta, for refund of the said sums of Rs. 2,500/-and Rs. 1,000/- paid by each of them on the ground that they were Salami moneys which the petitioner or its predecessor-in-interest was not entitled to receive in law. The two cases were heard together by the Rent Controller and by his judgment and order dated the 13th of January 1950 the Rent Controller came to the finding that the claims for the sums of Rs. 2,500/- were barred but that the two sums of Rs. 1,000/- paid by respondents 1 and 2 were Salamis which the petitioner was prohibited from receiving under the provisions of the Rent Control Act 1948 and directed the petitioner to refund the said amounts to respondents 1 and 2 and imposed a fine of Rs. 250/- in each of the cases on the petitioner. Being aggrieved by the said order and judgment of the Rent Controller the petitioner preferred appeals in the Courts of Small Causes, Calcutta. The respondent No. 3, the Judge presiding over the 4th Bench of the Court of Small Causes heard these appeals and by his judgment and order dated the 4th August 1950 the learned Judge upheld the order and judgment of the learned Rent Controller. In the circumstances the petitioner has moved this Court for the reliefs stated above.

(3.) It is contended by Mr. Subimal Roy the learned counsel for the petitioner that the findings of the Rent Controller and the Judge of the Small Causes Court that the two sums of Rs. 1,000/-were received by way of Salami are erroneous and the Rent Controller and the learned Judge had no jurisdiction to direct refund of the said sums or to impose any penalty as they have purported to do. The learned counsel has referred me to Ayers Law Lexicon page 1144 and Wilson's Glossary page 730 for the meaning of the word "salami." In Mr. Ayer's book "salami" is stated to be "A free gift made by way of compliment or in return for a favour." In Wilson's Glossary it has been pointed out that the word is used in different senses including its being used in the sense of gratuity or offering on receiving a lease or settling for the revenue or on receiving a favour real or implied. Reference was also made to the decisions of this Court reported in 'Birendra Kishore Manikya v. Secy, of State', 32 Cal L Jour 433 at pp. 444 (Bot. 445) and 'Emperor v. Probhat Chandra', AIR (14) 1927 Cal 793. These cases illustrate that the word "Salami" has different connotations in respect of different subjects such as when it is used in case of transfer of holding from one tenant to another or in respect of leases or settlements of properties under the Bengal Tenancy Act or the Transfer of Property Act,