TMI Blog1962 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... the rent payable in respect of the direct tenancies accordingly. The Rent Controller also found that the reasonable rent of the rooms in the occupation of the tenant Shaikh Jumrati should be ₹ 102-0-6 pies but that in view of Section 8(1) (e) of the Act the total rent payable for the entire premises No. 64, Upper Circular Road, could not exceed ₹ 91/4/- plus 10% thereof and that consequently the rent payable by Shaikh Jumrati should be fixed at ₹ 16/-. On appeal by the landlord, the Appellate Tribunal increased the Rent payable in respect of one of the direct tenancies from ₹ 9/- to ₹ 11/-. The Appellate Tribunal also held that Section 8 (1) (e) ought not to be taken into account in fixing rent under Section 16(3) and that the rent of the rooms in the occupation of Shaikh Jumrati should be fixed at ₹ 102.3 nP. per month. The rent so fixed is reasonable having regard to the situation, locality, condition and amenities of those rooms and the prevailing rent of comparable units in the locality. 2. The tenant Shaikh Jumrati has moved this Court in revision against the order of the Appellate Tribunal and has obtained a rule calling upon the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the situation, locality and condition of the premises and the amenities provided therein and where there are similar or nearly similar premises in the locality having regard also to the rent payable in respect of such premises. 5. Mr. Bagchi contended that in fixing the rents under Section 16(3) the Controller is required to determine, first of all what the fair rent of the premises let to the tenants would be having regard to Section 8(1) (e) including its proviso and then to divide and apportion that rent amongst the tenant and the sub-tenants regard being had to the area occupied by each of them and the situation, condition and amenities of such areas. This contention is supported by the decision in Pannalal Baktawarmal v. Narayandas Deora, 65 Cal WN 207. With respect I am unable to agree with this decision. The duty of the Controller under Section 16(3) is to fix the rent payable by the tenant and the sub-tenant in respect of each of the new premises forming the subject-matter of the new tenancies created by the order under Section 16(3). He is not required to fix the rent of the premises originally let to the tenant. In view of the order under Section 16(3) creating a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, four miscellaneous cases were started before the Rent Controller in respect of the four sub-tenancies mentioned above, being Case Nos. 2532A of 1956 (Bhagirath), 2533A of 1956 (Mohammed Din), 2464A of 1956 and 2465A of 1956 (Abdul Rezak). The case Nos. 2532A and 2533A of 1956 were heard together, and by order No. 6 dated 6th December, 1957 it was held by the Controller that the sub-tenants were entitled under Section 16(3) of the said Act to be upgraded as direct tenants. The case Nos. 2464A and 2465A of 1958 were heard together and by order No. 4 dated 7th December, 1957 it was similarly held by the Controller that the sub-tenants were entitled under Section 16(3) of the said Act to be upgraded as direct tenants. Sub-section (3) of Section 16 of the said Act provides that in such a case the Controller shall also fix the rent payable by the tenant and the sub-tenant, upgraded to the position of a direct tenant of the landlord, from the date of the order, and rents so fixed shall be deemed to be fair rent for the purposes of the said Act. The Controller held that the sub-tenants should be upgraded to the position of direct tenants under the landlord. He then proceeded to fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d approximating to ₹ 82/5/6/-. This sum was deducted from ₹ 98/5/6/- and it was held that the fair rent for the tenancy occupied by the petitioner was ₹ 16/- per month. Thus, the fair rent fixed for Mohammed Din was fixed at ₹ 9/- and that of the petitioner fixed at ₹ 16/- per month. Against this order, Mohammed Din preferred an appeal but the others did not. So far as Mohammed Din is concerned, he agreed to pay ₹ 11/- as fair rent and this was recorded. The dispute arose about the rent payable by the tenant Shaikh Jumrati, who is the petitioner before us. With regard to him, the learned Judge of the Court of Small Causes has held that the fair rent should be increased from ₹ 16/- to ₹ 102/3 nP. per month and it is against this finding that this application has been directed. In enhancing the rent from ₹ 16/- to ₹ 102.3 nP. the reasoning of the learned Judge is as follows: The learned Judge found that the Controller had directed under Section 16(3) of the said Act that the sub-tenants should be upgraded to the position of direct tenants. He then proceeds to fix the rent payable by the tenant and the sub-tenants upgraded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. On behalf of the petitioner it has been argued that the proper method for fixing the fair rent in such cases is to fix the fair rent of the whole premises first and then apportion it proportionately among the persons amongst whom the tenancy of the whole premises has been split up. It is next argued that in fixing the fair rent in such cases, the Controller was bound to apply the provisions of Section 8, to each of the split tenancies. Reliance is placed on a Bench decision of this Court presided over by Banerjee, J. 65 WN 207. In that case, Narayandas was the landlord of premises No. 46 Strand Road, Calcutta. Pannalal Batkawarmal was a tenant in respect of a portion of a room and a verandah in the second floor of the said premises. He had sub-let a portion of his tenancy to Mohal Chand Shreekishan. The rent payable by the tenant was ₹ 73/- per month, and the rent payable by the sub-tenant to the tenant was ₹ 40/- per month. Upon coming into operation of the said Act, the sub-tenant made an application under Section 16(3), for being upgraded as a tenant directly under the landlord, and also for the fixation of the rents payable by the tenant and the sub-tenant so up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the said premises which were in the occupation of different tenants on that date . It must follow by analogy that in fixing the fair rent of the whole premises, you cannot fix the rent of each portion and add them up. Similarly, in computing the fair rent of each portion, you cannot proceed to fix the fair rent for the whole premises and then split them up proportionately. For purposes of the fixation of fair rent each tenancy must be taken up separately and the fair rent computed of that premises. There is no difficulty in doing this, because the word 'Premises' has been defined by Section 2(f) to mean, any building or part of a building or any hut or part of a hut let out separately. The rent that has to be fixed by the Controller under Sub-section (3), Section 16, is not fair rent , but the rent fixed by the Controller is deemed to be fair rent for the purposes of the Act. It is well known that a deeming provision postulates that a thing deemed to be something else is not, in fact, the thing which it is deemed to be. It is also well settled that in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force, but by analogy. It is clear, however, that in applying the, provisions contained in Clause (e) of Section 8, we must be careful in not applying the analogy too far. Now let us come back to the facts of this case. Here, the original tenant retained four out of the ten rooms originally in his occupation. Therefore, the sub-tenancies were not co-extensive with that of the first degree. When these sub-tenants were upgraded to the position of a tenant, we have one original tenant and four quondam sub-tenants who have been so upgraded. The original tenant was occupying the whole premises at one time. Vis-a-vis the landlord, it was a tenancy of the entire premises, namely ten rooms, and he had no privity with, the sub-tenants. Now, when the subtenants were upgraded, the tenancy of the original tenant in the entire premises was reduced to four rooms and no came to occupy a new premises, comprising of four rooms. The word 'premises' relates to the area occupied. The area occupied by the original tenant, after the sub-tenants were upgraded, is entirely different from the area occupied by him previously. After the up-grading had taken place, and when the Controller was going t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have pointed out that those general principles have been embodied in Clause (e) of Sub-section (1) of Section 8. He is, however, correct in saying that the proviso does not apply. 16. I admit that from the point-of-view of the petitioner the result is not happy one. While he was paying ₹ 91/4/- for ten rooms, he is now to pay ₹ 102.3 nP. for only four rooms, I do not think, however, that any injustice has been done. After all, the fair rent has been calculated on the basis of the average rent paid by other tenants in the locality. There is no reason why the fair rent paid by him should not be calculated upon such basis. Possibly, the only injustice lies in the fact that the proviso might apply to the sub-tenants and not to him. That is however, a matter for legislation and cannot sway our Judgment in this Case. 17. The result is that this application fails and I agree with my Lord that the rule should be discharged. Interim orders, if any, are vacated. There should be no order as to costs. P.N. Mookerjee, J. 18. This Reference involves a short but difficult question. It concerns the true principles and methods and procedure for fixing the rent in a proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n their opinion as to the applicability or otherwise of the said proviso to the instant case. Before us, also, the real controversy centres round this proviso, although, broadly speaking, the rival contentions involve the applicability or otherwise of Section 8 in the matter of fixation of the rent of the tenant in respect of his retained portion under Section 16 (3). The petitioner contends that Section 8 [including the proviso to Section 8 (1) (e) would apply, while the opposite party contends that the fixation must be made on general principles, apart from Section 8, although the main part of Section 8 (1) (e), embodying, as it does, the said general principles, would, obviously be relevant and would, in effect, apply. 20. In my view, the contention of the opposite party is sound and it should be accepted. By the upgrading of the different sub-tenants to the status of direct tenants under Section 16 (3), the integrity of the old or the original tenancy has been broken. It has ceased to exist and it is no longer in existence. In its place, that is, in place of the original single tenancy, we have now five, flew and different tenancies, namely, the four direct tenancies in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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