BASANT KUMAR CHOKHANY Vs. GOPAL CHOKHANY

JUDGEMENT

(1.) The Division Bench of this court earlier passed an order for the purpose of assessing the reasonable rent payable in respect of the flat which is in occupation of Shri Jagdish Prasad Banshal. The said flat consists of 1250 Sq. ft. carpet area more or less together with open terrace lying and situated on the ground floor (front portion) of premises No. 127A, Park Street, Calcutta. The tenancy of Shri Jagdish Kumar Banshal was entered into by Shri Gopal Chokhany as guardian appointed under Order dated 19/05/1983 passed by the Hon'ble Mrs. Justice Prativa Banerjee in Matter No. G-5 of 1982 (Gopal Chokhany v. Basant Kumar Chokhany) at a monthly rental of Rs. 4250.00. At the time of induction of such tenancy a non-refundable security deposit of Rs. 60,000.00 was also paid by the said tenant. The Division Bench intended to increase the rent from Rs. 4250.00 under a peculiar facts and circumstances of the case and for that purpose assessment of payable was made by M/s. Talbert and Co. who have assessed the valuation of rent for the said premises at Rs. 12,000.00 per month. The area under occupation is 1250 sq. ft. in a most sophisticated and commercial place centered practically at the heart of the city of Calcutta. The premises in question, is situated at Park Street. This proposed enhancement was sought to be opposed by the tenant Jagdish Prosad Bansal by filing an affidavit, stating, inter alia, for cancellation and/or quashing the said report of assessment made by Talbert and Co. made in 1982. A prayer was made on behalf of the said tenant to put in Grill Barricade in the front side Verandah for exclusive use and for protection and to make better use of the shop-room of the said premises which was for the purpose of his commercial purpose and that the main ground to oppose such an attempt was taken relying upon the deed of agreement that there was no provision of enhancement of rent. One of the important terms of the agreement was that "the landlord will not be entitled to eject the tenant on the ground of building and rebuilding purpose and for his own use and occupation." Or in other words, it appears that the tenancy was granted granting protection to the tenant against the eviction on that ground travelling beyond the provision of the West Bengal Premises Tenancy Act, 1956.

(2.) Mr. Sanjoy Bhattacharjee, learned advocate appearing for the tenant submitted that the said rental valuation report made by M/s. Talbert and Co. be set aside and also made a prayer for adjustment of the amount paid in terms of the said agreement as also adjustment of the sum spent by the tenant for renovation of the portion let out made for commercial use. Mr. Bhattacharjee also submitted that this court has no jurisdiction to accept the report of the Talbert and Co. and to enhance and that enhancement of rent can only be made by Rent Controller in accordance with the provision of the West Bengal Premises Tenancy Act and that the enhancement cannot be made more than 10% by the Rent Controller. This court requested Mr. Bhattacharjee to take instruction from his client whether the tenant was voluntarily aggreable to make some increase in the rent considering the peculiar and unprecendented nature of the case. In a suit for appointment of guardian and managing the estate for the benefit of children, particularly to say 4 daughters and one son out of which one daughter has just attained the majority. The daughters and son are all students and that it was found by the court that the children were not safe in the hands of the parents and they were not looked after and maintained by the parents even though there is valuable property which fetched some income. It appears that Miss Suchanda Mukherjee is the Special Officer who acted as Guardian for all the four children and very recently the eldest daughter, Joyshree alias Doli Chokhani has just attained the majority. Miss Mukherjee was the guardian of all these children under whose care and control they were proceeding with their studies in school. The youngest child Munna by name is studying in Ashram Hostel and after the Vacation starts the Special Officer has to bring Munna Chokhani from the Ashram Hostel and to put him with his parents. All the expenses for maintenance, fooding, clothing including medicines are borne out by the Special Officer. The Special Officer has to pay under order of the court some amount for the maintenance of Basanta Kumar Chokhany and his wife, Kanta Devi Chokhany. It appears that Kanta Devi Chokhani has also lost mental balance. These four children and their parents are practicably under the care and control of this court. The most valuable property from which they have to maintain are let out to different tenants and that the most unfortunate part of at is that this court has to find out the moneys for the purpose of maintenance and subsistence of a family. For the bare maintenance, education and welfare of these children and subsistence of their parents, the Special Officer has been rendering her service without any remuneration for the last few years in the spirit of serving the cause of a family which would be ruined and may perish if they are not protected by this court. The situation has become so grave so far as this court is concerned that once the eldest daughter, Joyshree personally mentioned before this court with tears in her eyes complaining that her father is not paying any money for their food and education. This has happened immediately after she has attained the majority and the earlier Divisions Bench had put Joyshree out of guardianship of this Special Officer as she had attained the Majority and that the father of the girl Basanta Kumar Chokhany undertook to pay for her maintenance out of the fund given to him monthly by the Special Officer. Joyshree complained that even though her father was getting the money he did not give any thing for the month of March. Out of curiosity this court asked the girl how the parents made arrangements for their food. The girl told in open court with tears in her eyes and that this fact was supported by the Special Officer as this was known to her and that the parents used to go out of the house early in the morning and returns late at night. No arrangements are made by the parents for cooking of food. The eldest girl, Joyshree cooks for herself and for other children. Accordingly, this court had no option but to direct the Special to deduct a sum of Rs. 10,000.00 from the money payable to the parents and hand over it to Joyshree for the expenses of food and education expenses of her. The sum that was not paid by the father which was Rs. 500.00 per month for educational expenses, on being pressed by the court was handed over by the father to his eldest girl in open court and the father immediately demanded in open court for allotment of some money as during summer vacation the only child who is the youngest of all would be coming back from the Hostel and would be staying with him for a month even with regard to food of the only child of the parents this court has to pass order directing Special Officer to pay the sum directly to Joyshree who undertook to cook for her younger brother and supplied him food during summer vacation. These are one of the illustrations placed on record by this court which the court had to do for every matter. The special officer mentioned it before the court and had to take directions. The special officer has been rendering free social service at the request of the court. The court is concerned with the welfare of some minor child and parents who were incapable of maintaining their children. The father lost mental balance and the eldest girl has to face the precarious situation under which it was no longer possible on the part of the court to have access to the eldest girl until she has reached her majority.

(3.) Under this situation this court has to decide a question whether the tenant should be directed to increase the rent or whether the court would be bound by the strict letters of law enacted for the purpose of protection of the tenant under the West Bengal premises Tenancy Act, 1956 and will not increase any rent on the ground that increase of rent is matter for the Rent Controller and that the celling of increase is only 10%. The question is whether this court only for the purpose of protecting the interest of the tenant according to the letters of law will bring about a situation under which this court will be unable to protect a family, whether the court will allow the letters of law to prevail or whether the court will uphold and put into action the concept of social justice by trangressing or violating the letters of law to achieve this end. The question is whether the court should remain inactive on the basis of the letters of law or whether the court should be active on the basis of principles of Judicial activism for protecting the interest of the helpless members of the family before us. True, the court is bound by laws and if it is bound by law, the court would not be able to protect the interest of a family. This court is inspired by the concept of social justice as highlighted by the Supreme Court in the case of Sadhuram v. Pulin Behari, reported in AIR 1984 SC 1471 in that case the court has protected the interest of some persons who were in possession with uncleaned hands but who came for shelter and built in hutments. In that case the property was sold in auction by the Official Receiver appointed by this Court and thereafter some persons who were admittedly in unauthorised posession of the disputed premises which was sold in auction and who had built hutment and were staying there, moved an application before this court whereupon a single Judge of this court rejected the said application holding that these persons were trespassers and had no right to be in posession of the premises after the Official Receiver had been appointed Receiver of the said property and further it was held that the parties had no right to grant any lease or licence after the property had come in the custody of the Official Receiver who was appointed a Receiver in the suit. Thereafter against the order passed by the learned single Judge an appeal was preferred before this court and the Division Bench was of the view that offer made by those persons who were treapassers to pay a sum which was more than Rs. 1,00,000.00 than the sum at which the property was sold in auction. The Division bench set aside the sale and directed the said property to be sold to these trespassers. In that case Supreme Court observed at page 1491 at paragraph 70 that -