TMI Blog1956 (11) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... view of these considerations we overrule the first- contention raised on behalf of the appellant. . The Rent Controller gave the landlord credit only for the amount by which the municipal taxes had been increased and no more, by applying the provisions of cl. (b) of s. 9. The Appellate Authority on the other hand, applied the provisions of el. (g) of s. 9 by determining the fair and reasonable rent after taking into consideration the fact that electric charges as also Government duty on the consumption of electric power had been increased. So had the cost of providing for the other amenities and services. In view of our conclusion that the residuary el. (g) applies to the terms of the tenancy in these cases, it follows that the decision of the Appellate Authority was more in consonance with the provisions of cl. (g) than that of the Rent Controller or of the High Court. As the figures arrived at by the Appellate Authority have not been challenged before us, we would direct, that the orders passed by it should be restored and those of the High Court and of the Rent Controller set aside. Appeal allowed in part. - Civil Appeals Nos. 32 to 34 of 1955 - - - Dated:- 9-11-1956 - JAG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dlord resisted the application on the ground, inter alia, that the Rent Controller was not authorised by the Act to deal with the tenancies in question because the premises were outside the scope of the Act; that there had been a great increase in the cost of maintenance, as also of repairs and replacements of electric and other installations, that there had been a considerable enhancement of the charge for electricity supplied by the Calcutta Electric Supply Corporation Ltd. and of Government duty on the same; that if the court held that these premises were governed by the' provisions of the Act, the landlord was entitled to proportionate increase in respect of those charges; that the fact that the Act does not make specific provision for increasing the rent with reference to the charges aforesaid would also point to the conclusion that the Act was not intended to the applied to the tenancies in question. The Rent Controller after having inspections -made of the premises in question fixed a standard rent in accordance with the rules laid down in Schedule A to the Act. The rent thus standardized was to take effect from September 1, 1950.. The appellant preferred an appeal to the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant, we have to notice an argument which was raised for the first time before 'us, namely, that the definition of " premises " in s. 2 (8) would not in terms apply to the tenements in question and that if any provisions of the Act could be attracted totes cases, cl. (3) of s. 2 defining " hotel or lodging house " could more appropriately be applied to the tenancies in question. As this point in this form has not been raised in the courts below or even in the statement of the case in this Court, we refuse to go into that question, even assuming that the controversy thus raised does not require any fresh findings of fact. These cases have not been fought on that ground and, in our opinion, it is too late to raise for the first time a controversy in that form. We have therefore to examine the question whether the definition of " Premises " as contained in s. 2 (8) of the Act is not comprehensive enough to be applicable to these cases. The definition is in these terms:- " premises' means any building or part of a building or any hut or part of a hut let separately and includes- (a)the gardens, grounds and out-houses (if any) appertaining to such building or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most important of which is clause (1) in the following terms:- " That the tenant shall occupy the said flat paying therefor unto the Bank a monthly rent of Rs. 100 including hire of 2 A.C. fans and extra Government duty on electric current without any reduction or abatement to be paid at the Bank on or before the 7th of succeeding month for which the rent is due and that the said rent is inclusive of charges for current for fans, lights, radio and electric stove not exceeding 600 Watts for heating meals and making tea only, use of lift, hot and cold water, the owner and occupier's shares of Municipal Taxes." It is clear from the terms of the clause quoted above that the landlord was to place at the disposal of the tenants not only electric installation including fans but also electric current to be consumed in the use of those installations etc., besides radio and electric stove. it was argued that the tenancy comprised not only buildings and structures and permanent fixtures but also. the supply of electric power without any fresh charge for the same. It was also pointed out that s. 9 dealing with fixation of standard rent did not in terms contemplate the enhancem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r amenities, the sum total of the payments in respect of the building or part -of the building and other services and amenities constitute rent. In the earlier case of Property Holding Co. Ltd. v. Clark (supra) the facts, shortly stated, were that the agreement between the landlord and the tenant in writing provided for the payment of pound 110 a year as rent and an additional payment of pound 30 a year in respect of the additional amenities and conveniences like lighting and cooking equipments, furnishing and cleaning of hall and staircase etc. In an action for rent by the landlord at the rate of pound 140 a year the tenant contended that the rent proper was only pound 110 and not the total sum of pound 140 a year payable on all counts, as aforesaid..The Court of Appeal allowed the landlord's appeal and held that the standard rent was pound 140 and not only pound 110. In the course of his judgment Asquith L.J. adopted the language of Younger L. J. in the case of Wilkes v. Goodwin ([1923] 2 K.B. 105) to the following effect:- "The first of these (considerations) is that the word Arent' in this exception surely means not rent in the strict sense but the total payment - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes "basic rent" and then cl. (2) lays down the formulae for determination of standard rent once the basic rent has been arrived at. The tenant in each case in the present appeals invoked the provisions of s. 9 read with Schedule A of the Act for fixing the standard rent for their respective premises. The question arises which clause or clauses apply to the terms of the tenancy as indicated above. Clause (a) cannot apply because it cannot be said that "There is no cause for the alteration of the rate of standard rent as determined according to the schedule for any of the reasons mentioned in the following clauses, in accordance with the provisions of Schedule A." It has not been denied that electric charges and the Government duty thereon have been enhanced and that the municipal taxes also have been increased. Clause (b) also in terms cannot apply because it does not by itself entirely cover the cases in hand. There has been increase not only. in municipal taxes but also in electric charges, Government duty on electric consumption and in the cost of the other services and amenities specially provided for by the agreement between the parties. Clause (c) is out of the way of the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my judgment when a flat is let, with the landlord agreeing to provide certain free services, what is let is the flat and what is paid is paid for the flat with the landlord providing certain amenities or performing certain obligation. What is paid is rent for the flat and no part of. it can be truly regarded as payment for the services." With all due deference to the views the views thus expressed by that very experienced and learned Judge, we cannot agree that those observations correctly represent the true legal position. As a matter of fact, the learned Judge has referred to with approval the judgments of the Appeal Court and of the King's Bench Division in the cases mentioned above to show that the term "rent" is comprehensive enough to include not only rent in the narrower sense of the term as ordinarily understood but also payment in respect of the additional conveniences and amenities. The learned Judge goes on to make the following observations:- " If he has undertaken obligations by the tenancy agreement the monthly payment or the yearly payment as the case may be would be suitably adjusted. That, however, would not make the monthly or yearly payment any the less rent." Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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