G.L. GANGULY Vs. ARUN KUMAR MUKHERJEE

JUDGEMENT

(1.) THE present revisional application is directed against Order No. 70 dated January 31, 1991, passed by the learned Assistant District Judge, 3rd Court, Alipore in T.S. No. 86 of 1985. By the impugned order, a petition under section 17(2)(2A) of the West Bengal Premises Tenancy Act was disposed of. In the said petition, a challenge was thrown with regard to rate of rent as to whether the rate of rent would be Rs. 900/- per month or it would be at the rate of Rs. 1250/- per month. Some of the rent receipts have been annexed with the affidavit-in-opposition of the opposite party and the said rent receipts reveal that a receipt was granted for Rs. 1250/- for every month in respect of the premises being the Flat in question together with the indication endorsed at the bottom of the said receipt that service charge for appliances would be at the rate of Rs. 350/-. In the revisional application itself, a letter addressed by the petitioner to the Special Officer, Corporation of Calcutta has been enclosed wherefrom it appears that details of fixtures and fittings supplied by the opposite party to the petitioner which were itemised under the separate headings and the total sum assessable on each item was also indicated. The pivotal question of the present proceeding is that whether charges of on account of service appliances to the tune of Rs. 350/- per month is a part of the monthly rent or not. The defendant tenant after appearing in the suit went on making deposit of the rent at the rate of Rs. 900/- and not at the composite rate of Rs. 1250/- as the total rental figure has been admitted to be split up. The tenant petitioner asserted that the rent on occupation charges in respect of the premises would be Rs. 900/- per month and Rs. 350/- on account of service appliances should be treated as charges not covered under the over all concept of rent. In the impugned order, a reference was made about Ext. A which is a part of the petition under section 21 of the West Bengal Premises Tenancy Act bearing the signature of the defendant tenant and the very first paragraph therein would unmistakably show that the defendant admitted before the Rent Controller that the rent of the suit property was Rs. 1250/-. Even from Ext. G filed in the Trial Court, namely, the defendant's Solicitors' letter dated 18th December, 1994 which revealed that there was also an admission that the rent was Rs. 1250/-.

(2.) MR . Sudhis Das Gupta, the learned Advocate appearing on behalf of the petitioner, has contended before this Court that one of the annexures appended to the petition, namely, letter addressed to an officer of the Corporation of Calcutta, would indicate the details of the fixtures and fittings supplied by the owner to the occupier and, according to Mr. Das Gupta, the said amount is a variable amount. There has been a further note mentioned in the said annexure that if any of the items of the appliances goes out of order, the same will be replaced by the owner whenever required. According to Mr. Das Gupta, the rent should be construed to be a fixed figure and as soon as the question of variation of the same would arise, the rent would cease to be a fixed figure and, as such, Mr. Das Gupta contended that Rs. 350/- on account of appliances charges should not form part of connotation of the composite rent. It is true that the term 'rent' has not been defined in the West Bengal Premises Tenancy Act but nevertheless that fact remains that the jural expression 'rent' is considered to be a generic term which includes within its ambit all the charges levelled on account of occupation under whatever label. In furtherance of the said accepted notion of the concept of connotation of rent, Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the opposite party, has drawn the attention of this Court about the definition of the term 'premises', as contemplated under the definition clause of the West Bengal Premises Tenancy Act. According to Mr. Mukherjee the definition of the term 'premises' is an inclusive definition and in terms of section 2(f)(ii) premises includes any furniture supplied or any fittings or fixtures affixed for the use of the tenant in such building or a part of the building. It has been contended that the inclusive definition of the expression 'premises' does not leave out furniture fittings and fixed appliances from the orbit of the definition of premises. Mr. Mukherjee has also argued before this Court that the said definition should be looked along with the definition of the expression 'tenant' as contemplated in section 2(h) of the said Act and he has laid special stress on the word 'rent' of any premises.. payable by a person by whom or on whose behalf the same is payable. According to Mr. Mukherjee, the rent is payable in respect of the premises by the tenant and, as such, in order to construe the connotation of the expression of rent, 'premises' is to be taken into account as per definition of the special statute. To repeal the salient contention of Mr. Das Gupta, Mr. Mukherjee has referred to the provisions of the Transfer of Property Act and he contends that rent payable on account of mining lease is always a variable figure but the principal on which the rent is to be assessed should remain fixed. In support of his contention, Mr. Das Gupta has referred to the case of Hariden Mishra v. Jamunadas Agarwal and Ors., reported in (1989)1 All India Rent Control Journal 451 : 1989(1) RCR 406(SC) and that the Supreme Court in the said decision has opined that in respect of the disputed flat in question the furniture which formed part of the tenancy was returned but rent receipt would show rent at the rate of Rs. 240/- for occupation of the house in question and Rs. 30/- for the furniture. In the concluding portion of the said judgment, it has been held that it is thus obvious from the pleadings that at no stage the respondent pleaded that he had furnished lease on rent to the tenant and as there was no vestige of existence of furniture, the separate receipt on account of charges of the furniture would pale to insignificance and the rent was held to be Rs. 240/- per month. Here the facts of the instant case are distinguishable and the statutes are different and the rent receipt itself would indicate that tenant was saddled with liability of occupation charges and appliances formed an integral part of occupation facilities and other appurtenant benefits attached to the tenancy. Mr. Das Gupta has referred to another decision reported in (1988)1 Cal HN 143 in the case of Krishnan Nambison v. K.S. Chatterjee 1988(2) RCR 361(Calcutta) and in the said decision it was held that the landlord had failed to explain why the establishment was taken by granting a separate receipt and he has also not explained on what account in absence of any explanation offered for justification of separate receipt for establishment charges the same was not considered to be a part of rent. Here in this case, in a composite rent receipt, rent was assessed at the rate of Rs. 1250/- with an indication that Rs. 350/- was for user of fixed appliances forming an integral part of tenancy and, as such, in view of categorical explanation given in details of account such charges are being levelled. The cited decisions have no applicability in the present case. This Court after giving its anxious consideration to the rival contentions of the parties feels that rent is a generic terms which normally includes all the ingredients included with the compass in lieu of occupation of a tenant. This Court after taking note of the definition of 'premises' coupled with the definition of 'tenant' as contemplated in sections 2(f) and 2(h) of the West Bengal Premises Tenancy Act, holds and opines that any furniture, fittings and fixures for the overall user of tenancy for which charges are levied would come within the purview of the compass of the connotation of rent. It further appears that the tenant after being conscious of the fact, which is to be borne out from his conduct by averments contained in his petition under section 21 of the West Bengal Premises Tenancy Act and coupled with his admission, it can be safely inferred that the tenant is also aware of liability of rent and the amount payable by him. The splitting up of the composite rent on the artificial line of distinction by a tenant may be by way of after-thought and that may not exonerate the tenant from his liability to pay rent on a comprehensive basis by treating it as a composite whole at the rate of Rs. 1250/- payable according to English Calendar month. In the operative portion of the impugned order, the Trial Court has held the rate of rent Rs. 1250/- payable according to English Calendar month by the defendant tenant to the plaintiff landlord which is found to be correct. The Trial Court has further quantified the amount of arrears with regard to residuary balance amount of rent payable by the defendant together with the interest at the statutory rate thereof. The Court has granted easy instalments for liquidation of the said arrear dues at the monthly rate fixed by the Trial Court in exercise of its discretion and this revisional Court does not feel inclined to interfere with the discretion exercised by the Trial Court. In the impugned order the first instalment has been directed to be paid within a date line but considerable time has elapsed therefrom and now the total dues have been further accumulated from the period of February, 1991 upto January, 1995 covering a period of about 48 months and the total amount payable for the additional period of 48 months would be Rs. 16,800/- and interest at the rate of 8-1/3 per cent and the same is compositely assessed after giving some leniency to the tenant and it is determined by giving some allowance to the tenant as Rs. 1,000/-. Then the total dues together with the interest, as assessed by this Court, would be Rs. 17,800/- and the total figure now including that of backlog is Rs. 47,302/- after arithmetical computation. The tenant is directed to pay at the rate of Rs. 5,000/- per month and the balance residuary would be payable at the last month when the last instalment would fall due. The tenant shall be further required to go on paying at the aforesaid rate of Rs. 5,000/- on account of liquidation of arrears to be paid in the Trial Court to the credit of the plaintiff-opposite party and the first of such instalments will be payable on and from 15th of February, 1995 and thereafter on the same basis for subsequent months.

(3.) LET this order be communicated to the Trial Court by a special messenger at the cost of the opposite party.