Â
Bibek Chaudhuri, J
1. CAN 10314 of 2018 is an application filed by the defendant/applicant stating, inter alia, that the appellant/applicant filed SA No.196 of 2018 assailing
the judgment and decree passed in Title Appeal No.70 of 2013 by the Civil Judge (Senior Division) 2nd Court at Howrah affirming the judgment and
decree passed in Title Suit No.238 of 1997 by the learned Civil Judge (Junior Division) 4th Court at Howrah.
2. It is pertinent to mention that Title Suit No.238 of 1997 was filed by the plaintiffs/respondents for eviction of defendant/appellant, recovery of
possession and other consequential reliefs under the relevant provisions of the West Bengal Premises Tenancy Act, 1956.
3. In the instant second appeal the appellant filed an application being CAN 3584 of 2018 praying for stay of execution of the judgment and decree
passed by the learned trial court and affirmed by the learned First Court of Appeal. By an order dated 1st October, 2018, the Division Bench of this
Court admitted the said appeal on the following substantial questions of law:-
“(1) Whether both the Courts below rightly shifted the onus on the defendants to prove that the plaintiffs do not have suitable accommodation at
the suit premises?
(2) Whether in absence of any evidence from the plaintiffs’ side that the accommodation available to them is not suitable for the purpose of
expansion of business or in absence of any evidence being laid with regard to the existing business by the plaintiffs, the Court can decree the suit on
reasonable requirement?
(3) Whether both the Courts below erred in law and on facts in proceeding to decree the suit on the ground of reasonable requirement as the plaintiffs
intended to start the business from the suit premises without considering that one of the plaintiffs was already in occupation of one room on the first
floor of the suit premises?
(4) Whether the concurrent findings of the Courts below are based upon extraneous and irrelevant material and accordingly arbitrary and perverse?â€
4. After admitting the appeal, the application for stay of execution was taken up for hearing and the Division Bench of this Court passed the following
order:-
“There shall be stay of all further proceedings in Execution Case No. 114 of 2017 pending before the learned Civil Judge (Junior division), 4th
Court at Howrah for a period of eight weeks from date or until further order/orders of this Court, whichever is earlier, subject to deposit of a sum of
Rs. 20, 000/- per month from the date of the original decree till the month of September 2018 as occupational charges within one week after reopening
of this Court following Puja Vacation.â€
5. The petitioner being aggrieved by and dissatisfied with the order relating to amount of occupational charges directed to be paid by the
defendant/appellant and the relevant date/period from which the said occupational charges were directed to be paid, moved an application before the
Hon’ble Supreme Court being SLP No.31177 of 2018. The said SLP was disposed of by the Hon’ble Supreme Court with the following
order:-
“We are not inclined to interfere with the occupational charges determined by the High Court to be paid by petitioner on monthly basis during the
pendency of the appeal subject to the outcome of the appeal.
However, the other question raised by the petitioner is about the direction to pay the occupational charges from the date of the original decree instead
of from the date of the order passed by the High Court. As regards that question, we give liberty to the petitioner to move the High Court for
appropriate relief.â€
6. In view of the above order passed by the Hon’ble Supreme Court in SLP No.31177 of 2018, the appellant/petitioner has filed the instant
application contending, inter alia, that the petitioner used to pay a sum of Rs.600/- per month as rent of the suit premises. By order dated 1st October,
2018, the Division Bench of this Court enhanced the amount which the petitioner is liable to pay/deposit by 33 times of the contractual rent. Such
enhancement of occupational charges is uncalled for and/or unheard of. It is further pleaded that as suggested under Section 18 of the West Bengal
Premises Tenancy Act, 1956 (hereafter the said Act) rate of occupational charges might at best be enhanced by 5% of the amount equivalent to the
rate of contractual rent which was paid by the defendant lastly before institution of the suit. Various provisions of the said Act has been referred to by
the appellant/petitioner to contend that occupational charges cannot be enhanced from Rs.600/- to 20,000/-. The petitioner has also challenged the
findings of the learned trial court in decreeing the suit as well as that of the First Appellate Court in affirming the said decree. The Division Bench of
this Court by order dated 1st October, 2018 erroneously held that the rate of rent of the suit premises was Rs.900/- per month payable by the
petitioner. It is further pleaded by the petitioner that any order as to the enhancement of rate of rent in the name of occupational charges should be
made payable from the date of the order passed by the court of appeal. While the second appeal is pending for adjudication, the Division Bench of this
Court cannot pass an order directing the petitioner to pay occupational charges from the date of the decree passed by the trial court. Under such
circumstances, the petitioner has prayed for following reliefs in the instant application:-
(a) To permit the defendant/appellant to deposit Rs. 600/- per month on and from 01.10.2018 on words in the Ld. Trial Court deposit in the nature of
the plaintiff/respondent till disposal of this Appeal.
 (b) To permit the defendant/appellant to deposit Rs. 600/- per month from April 2018 to September 2018, accordingly.
(c) To modify of the said order dated 1.10.18 passed in SAT in 478 of 2017 in terms of the order dated 05.12.2018 passed by the Hon’ble
Supreme Court in SLP (c) No. 31177 of 2018, accordingly.
(d) To pass such other order/or orders and/or further order or orders as your Lordship may deem fit and proper.
7. Learned Advocate for the appellant/petitioner draws my attention to Section 17(1) of the said Act, 1956. Section 17(1) of the said Act imposes an
obligation upon the tenant to deposit in court or with the Controller or pay to the landlord an amount calculated at the rate of rent at which it was last
paid, for the period for which the tenant may have made default including the period subsequent to pay to the end of the month previous to that in
which the deposit or payment is made together with the interest on such amount calculated at the rate of 8 1/3rd %, per annum from the date when
such amount was payable up to the date of deposit. Section 17(4) of the said Act provides that if a tenant makes deposit or payment as required for
sub-section (1), sub-section (2) or sub-section (2A) of the said Act, no decree or order for delivery of possession of the premises on the ground of
default in payment of rent by the tenant shall be made by the court. According to the learned Counsel for the petitioner the tenant is liable to pay under
the Act only the amount of rent at the rate at which it was last paid. The court cannot impose liability upon a statutory tenant compelling him to deposit
enhanced sum in the name of occupational charges in violation of statutory provision contained in Section 17 of the said Act. According to the
declaratory theory of law, it is not part of a judge’s function to create rules of law; his only task is to apply the statute and already established
rules. In deciding a case, therefore, all that he needs to do is to ascertain the relevant rule and apply it to the facts of the case. It is submitted by the
learned Advocate for the petitioner that the order dated 1st October, 2018 imposing the enhanced rate of rent in the name of occupational charges
passed by the Division Bench was in violation of statutory provision of Section 17 of the said Act. In support of his contention, the learned Counsel for
the appellant refers to the following decisions of the Supreme Court:-
1. (2017) 1 SCC 283 : Cheviti Venkanna Yadav vs. State of Telangana and Ors.
2. AIR 1980 SC 2097 : Nand Lal vs. State of Haryana.
3. AIR 1980 SC 271 : D.G Gouse & Co. vs. State of Kerala.
8. I have carefully gone through the aforesaid reports of the Hon’ble Supreme Court. In all the aforesaid decisions, question as to whether an
enactment should be held operative retrospectively or prospectively within the parameter of Article 245 and 246 of the Constitution came up before
the Hon’ble Supreme Court for decision.
9. In my considered view the ratio laid down in the aforesaid decision is not applicable under the facts and circumstances of this case.
10. Learned Advocate for the petitioner also refers to a decision of this Court in the case of AVO Engineers (P) Ltd. vs. India Ice Acrated Water &
Cold Storage Co. Ltd. reported in 2006 (2) CHN 384 cand contends that the Civil Court cannot fix fair rent in respect of a tenancy.
11. In fine, it is pointed out by the learned Advocate for the respondent that the order passed by the Division Bench of this Court as a condition
precedent for stay of operation of the execution fixing occupational charges at the rate of Rs.20,000/- per month is in clear abrogation of statutory
provision under Section 17 of the said Act. The court of appeal or any other Civil Court cannot fix fair rent of the suit premises under any statutory
provision. The petitioner cannot be directed to make payment of occupational charges at the rate of Rs.20,000/- from the date of passing of the decree
by the trial court. Therefore, the petitioner has prayed for modification of the said order dated 1st October, 2018.
12. Learned Advocate for the petitioner also refers to a decision of the Hon’ble Supreme Court in the case of Niyas Ahmed Khan vs. Mahmood
Rahmat Ullah Khan & Anr. reported in (2008) 7 SCC 539. It is held in the said decision that where the statute specifically provides for fixation of rent
and increase in rent, it is impermissible for the High Court to ignore those provisions and direct the tenant to pay an arbitrarily assessed rent. On this
score, he also refers to another decision of the Supreme Court in the case of Gandhe Vijay Kumar vs. Mulji Alias Mulchand reported in (2018) 12
SCC 576.
13. Relying upon a decision of the Hon’ble Supreme Court in the case of Malpe Vishwanath Acharya & Ors. vs. S.O. Maharashtra & Anr.
reported in (1998) 2 SCC 1, it is submitted by the learned Advocate for the petitioner that the rent control legislation is enacted in the larger interest of
society as a whole, for the benefit of both landlord and tenant. It should not be interpreted disproportionately for the benefit of one class, viz landlord or
the tenant.
14. Learned Advocate for the respondent, on the other hand, submits that in view of the order passed in SLP No.31177 of 2018 by the Hon’ble
Supreme Court, this Court cannot adjudicate as to whether the rate of occupational charges fixed by the Division Bench of this Court vide order dated
1st October, 2018 is required to be modified or not. The said question was conclusively decided when the Hon’ble Supreme Court declined to
interfere with the occupational charges determined by the High Court to be paid by the petitioner on monthly basis during the pendency of the appeal,
subject to the outcome of the appeal. Therefore, argument advanced by the learned Counsel for the petitioner raising question as to whether the High
Court can fix occupational charges payable by the appellant/petitioner should not be entertained at all. The appellant also cannot raise any question as
to the rate of occupational charges fixed by the Division Bench of this Court vide order dated 1st October, 2018 because that part of the order was
affirmed by the Hon’ble Supreme Court. Only question which is left open for adjudication of this Court is as to whether the occupational charges
should be directed to be paid by the petitioner from the date of the original decree instead of from the date of the order passed by the Division Bench
of this Court.
15. It is submitted by the learned Advocate for the respondent/opposite party that the appellate court while exercising jurisdiction under Order 41 Rule
5 of the Code of Civil Procedure does have power to put the appellant/tenant on terms while granting stay of the decree for eviction. In such view of
the matter the appellate court is well within the jurisdiction to pass an order of payment of occupational charges in addition to the contractual rent
which could be paid directly to the appellant. In support of his contention learned Counsel for the respondent refers to a decision of the Hon’ble
Supreme Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 70. 5He also refers to a decision
of this Court in the case of Gautam Dey vs. Pareshnath Kar & Ors. reported in (2016) 1 CLT 354 (HC) it is held in the aforesaid report that the
quantum of occupation charges is not static and depends upon various factors which could be reasonably ascertained. Though the Appellate Court is
within its power and jurisdiction to direct appellant to pay occupational charges at the prevalent market rate, but at the same time the Court should not
arbitrarily fix the quantum which in other way operate harshly upon the appellant and the order appears to be punitive and in terrorem. In the absence
of any material before the Appellate Court on the prevalent market rent, Appellate Court can apply robust common sense, the common knowledge of
human affairs and events gained by judicial experience and judicially noticeable facts. The tenant who suffered a decree for eviction is depriving
landlord to get possession immediately on passing decree as the statutory right of an appeal is provided in law.
16. It is further submitted by the learned Advocate for the respondent that from the date of passing of the decree, contractual relation between
landlord and tenant terminates. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the
premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the
premises. Landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree. Considering such aspect of
the matter, the Division Bench passed the order directing the petitioner to pay occupational charges from the date of the decree passed by the learned
trial court. According to the learned Counsel for the respondent/opposite party, there is no reason to interfere with or modify the direction passed by
the Division Bench of this Court while admitting the appeal as a condition precedent for stay of execution of the decree for eviction passed by the
defendant/petitioner.
17. Atma Ram Properties (P) Ltd. (supra) is an authority on the question as to whether the appellate court while granting stay of further proceedings
in execution of the decree appealed against under Order 41 Rule 5 of the Code of Civil Procedure can pass an order directing the defendant/appellant
to pay occupational charges over and above the amount equivalent to rent at the rate at which it was last paid to the landlord. Factual background of
the said report is that the appellant was the tenant in respect of non-residential commercial premises admeasuring approximately 1000 sq. ft. in
Connaught Circus, New Delhi at a monthly rental of Rs.371.90. The appellant suffered an order of eviction passed by the Additional Rent Controller,
Delhi vide dated 12th April, 2001. The tenant/appellant preferred an appeal. In appeal, the Rent Control Tribunal stayed execution of the order of
eviction subject to the condition that the tenant shall deposit in court Rs.15000/- per month in addition to contractual rent which may be paid directly to
the landlord. The tenant challenged the said order before the High Court at Delhi by filing an application under Article 227 of the Constitution of India.
The learned Single Judge of the High Court at Delhi allowed the said application and set aside the order passed by the tribunal regarding payment of
additional sum of Rs.15000/- per month by the tenant/appellant in favour of landlord. The effect of the order of the High Court is that during pendency
of the appeal before the tribunal, the respondent shall continue to remain in occupation of the premises subject to payment of an amount equivalent to
the contractual rate of rent. The landlord challenged the said order passed by the High Court at Delhi before the Supreme Court. The Hon’ble
Supreme Court on due consideration of previous precedents on the subject summarized the proposition of law in following Paragraphs:-
“19. To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the
applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of
decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to
say, shall be reasonable;
(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of
Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the
decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the
same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The
landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree;
(3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands
merged in the decree passed by the superior forum at a later date.
20. In the case at hand, it has to be borne in mind that the tenant has been paying Rs.371.90p. rent of the premises since 1944. The value of real
estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city.
It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently let out on rent
at the rate of Rs.3,50,000/- per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs.15,000/- per month as
charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until
the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of
the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal
on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent
could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the
tenant- respondent before us, nor was it in the High Court, that the amount of Rs.15,000/- assessed by the Rent Control Tribunal was unreasonable or
grossly on the higher side.
21. For the foregoing reasons, the appeal is allowed. The order of the High Court is set aside and that of the Tribunal restored with costs incurred in
the High Court and in this Court. However, the tenant-respondent is allowed six weeks' time, calculated from today, for making deposits and clearing
the arrears upto the date consistent with the order of the Rent Control Tribunal.â€
18. Atma Ram’s case was followed by the Hon’ble Supreme Court in the case of State of Maharashtra and Anr. vs. Super Max International
Pvt. Ltd. reported in 2009 (9) SCC 772 and Mohammad Ahmed and Anr. vs. Atma Ram Chauhan and Ors reported in 2011 (7) SCC 755 .In all the
above mentioned decisions, it is consistently held that a tenant, having suffered a decree for eviction has statutory right of appeal challenging the said
decree but his tenancy would stand terminated with effect from the date of decree passed by the trial court. With effect from the date of decree of
eviction, the tenant is liable to pay mesne profits for compensation for use and occupation of the premises at the same rate at which the landlord would
have been able to let out the premises and earn rent, if the tenant would have vacated the premises.
19. Therefore, it is no longer res integra that a tenant who suffered eviction decree is liable to compensate the landlord from the date of the decree
passed by the trial court at the prevalent market rate of rent of the locality.
20. I have already recorded that the Hon’ble Supreme Court in SLP No.31177 of 2018 did not interfere with rate of occupational charges fixed by
the Division Bench of this Court while granting stay after admission of appeal. Therefore, there is no scope for this Court to entertain the argument
advanced by the learned Advocate for the petitioner on the question of fixation of fair rent or that the occupational charges was erroneously enhanced
approximately to 33 times of the contractual rate of rent or that there was no basis or material before the Division Bench to fix such occupational
charges.
21. In view of the decision of the Hon’ble Supreme Court in Atma Ram Properties (P) Ltd. (supra), Super Max International Pvt. Ltd. (supra)
and Atma Ram Chauhan and Ors. (supra), I have no other alternative but to hold that the appellant/petitioner is liable to pay occupational charges over
and above the contractual rate of rent from the date when he suffered eviction decree by the trial court.
22. For the reasons, stated above I do not find any scope to modify the order dated 1st October, 2018 passed in CAN 3584 of 2017.
23. Accordingly, CAN 10314 of 2018 is rejected on contest, without cost.
24. The petitioner is directed to comply with the order dated 01.10.2018 so far as it relates to payment of occupational charges in favour of the
landlord/respondent.
