Calcutta High Court (Appellete Side)
M/S. Special Steel & Wire Wings vs Sri Radhe Shyam Bhootra & Ors on 24 January, 2022
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
THE HON'BLE JUSTICE Kesang Doma Bhutia.
C.O. No. 1785 of 2021
M/s. Special Steel & Wire Wings
VS.
Sri Radhe Shyam Bhootra & Ors.
For the Petitioner : Mr. Gopal Chandra Ghosh
Mr. Goutam Das
Mr. P. Das
For the opposite parties : Mr. Probal Kumar Mukherjee
Mr. TarakNathHalder.
Hearing concluded on : 20.12.2021
Judgment on : 24.01.2022
KesangDomaBhutia, J:-The tenant/Judgment Debtor has filed
an application under Article 227 of the Constitution of India, being
aggrieved by the order of payment of occupational charge at the rate of
rupees of 2,40,000 per month passed by the Additional District,
Judge, 1st Court, Sealdah in Ejectment appeal no. 2 0f 2021 on
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13.08.2021
, while granting stay of the operation of Ejectment
Execution Case no. 4 of 2021 pending before the Court of Additional,
Civil Judge (Junior Division) Sealdah.
The facts giving rise to the present case in brief is that opposite
parties being the owners/land lords brought an Ejectment Suit being
no. 107 of 2007 (renumbered as Title Suit No. 5 of 2010) against the
petitioner, a partnership firm to whom 1st Floor measuring 2400 sq.ft.
space was let out for purpose of residence of one of the partners of the
firm at a monthly rent of Rs.1000/- only. The landlords/opposite
parties were successful in obtaining a decree of eviction of the tenant
on 16.10.2020. The landlord put the decree into execution by filling
Ejectment Execution Case No.4 of 2021.
On the other hand the tenant preferred an appeal being
Ejectment Appeal no. 2 of 21 before the Additional District, Judge, 1st
Court, Sealdah. That in such appeal the tenant/ JDR filed an
application for stay of the execution proceeding and while granting the
stay of operation of ejectment decree, the Appellate Court directed the
tenant to pay occupational charge at the rate of 2,00,000 per month
on 22.03.2021.
Being aggrieved by such order the tenant moved the Hon'ble
High Court and filed C.O. No 1276 of 2021. The Hon'ble co-ordinate
bench of this High Court disposes of the C.O. on 27.07.2021 with
adirection to the Appellate Court to re-visit the quantum of
occupational charge fresh and to dispose of stay application.
The learned first Appellate court in compliance of such order
passed in C.O.1276 of 2021 re assessed the occupational charge and
fixed the same at the rate of rupees 2,40,000 per month from Rupees
two lakhs fixed earlier. Being aggrieved by such order the JDR once
again moved this High Court by filling the present revisional
application.
Therefore, only question that requires determination is whether
the learned Appellate Court below is justified in fixing the
occupational charge at Rupees 2,40,000/- per month in respect of
disputed tenancy?.
Learned advocate for the opposite parties/decree holders
submits that the disputed tenancy is located at Shakespeare Sarani, a
posh and prime area of Kolkata city, where the present market rent is
rupees 100 rupees per sq.ft. and produced copy of lease agreement
executed by Punjab National Bank situated diagonally opposite to the
disputed tenancy and photographs of the front face of the disputed
tenanted building and its surrounding areas.
On the other hand the learned Advocate for the tenant
contended the contractual rent of the disputed tenancy was rupees
1000/- per month and learned court below without applying judicial
mind fixed the occupational charge of the disputed tenancy a
dilapidated structure at irrational rate of Rupees 2,40,000/- per
month. The calculation was made by the learned Court below after
taking into consideration the lease deed of a commercial bank situated
in a newly built building.
He has further submitted that in and around Kolkata City and in
Posh area like Burdwan Road, Alipore Road and Emami City with all
modern facilities the rent per sq.ft. is about Rs.22/-. In places like
Topsia prevailing rent per sq.ft.is about Rs.18/- to Rs.20/- and in
another Posh area like Rowdon Street, situated somewhere near the
disputed property rent per sq.ft. is about Rs.28/- to Rs.30/-. The
tenant got the tenanted property surveyed by a Registered
Government Valuer cum Registered Surveyor and Loss Assessor and
who after taking into consideration the present condition of the
tenanted premises assessed the rent by adopting fund sinking method
and assessed the rent of the disputed tenancy at rupees 49,000 per
month. Learned Advocate for the petitioner also produced copies of
license/ lease agreements executed between different tenants and
different landlords in respect of different properties situated in
different parts of Kolkata, to show that the occupational charge assess
by the learned court below is irrational.
It is true that the tenanted premises in-question is situated in
the prime location of the city of Kolkata known as Shakespeare Sarani
a very posh area, normally people with the high end means reside in
this area. However, from the photographs filed by the petitioners of
the property-in-question, it is seen the tenancy in question to be an
old structure. The landlord in page 6 of the plaint has admitted the
existing structure is in a dilapidate condition. That they are interested
to demolish the existing structure and develop and promote the said
building. Apparently, from the photographs of the front face of the
building filed by the landlords and from architectural design, I find the
same being constructed during colonial period. The outer front face of
the first floor and ground floor of the building appears to be freshly
painted but the second and third floor appears to be in abandon
condition and appears in dilapidated condition.
From the photographs filed by the tenant it is seen growth of
plants on the outer back side wall of the building. The paint of the
interior wall of the disputed tenancy in peeling condition and
corrugated tin sheet being put on the roof of the disputed tenancy
supported by G.I. pipes on which hangs the ceiling fan. The wall of
the staircase leading to the roof appeared to be in damaged condition
and plasters being fallen off with exposure of the rods. It has been
alleged by the petitioner at present there is no water connection in the
suit tenancy.
On the other hand the buildings in which the Punjab and
National Bank and Decathlon showroom are housed and situated
opposite to the disputed building appear to be newly constructed
structure. Therefore, rent of a newly build modern structure with
modern amenities and that too let out to a commercial bank cannot be
equated with a residential structure constructed during colonial
period and which is in a dilapidated condition, though both the
structures are situated in the same locality. The rent of a commercial
bank cannot be taken into consideration for assessing the
occupational charge of aresidential flat which is in a dilapidated
condition.
In Atma Ram Properties (P) Limited. Vs. Federal Motors (P)
Limited Reported in (2005) 1 SCC 705, it has been held that Appellate
Court has discretion to grant or not to grant stay of the operation of
the decree of eviction. If the Appellate Court proposed to grant stay it
may impose certain condition. The power to grant stay is equitable in
nature, an applicant for stay must do equity for seeking equity.
Depending on the facts of a given case an Appellate Court, while
passing an order of stay may put the parties on such terms the
enforcement whereof would satisfy the demand for justice of the party
found successful at the end of the appeal. Applicant can be put on
such reasonable terms as would in the opinion of the Appellate Court
reasonably compensate the decree holder for loss occasioned by the
delay in execution of the decree by the grant of stay, in the event of the
appeal being dismissed.
In Anderson Wright & Co. Vs. Amar Nath Roy &Ors. Reported in
SCC (2005) 2 WBLR (SC) 230, the Hon'ble Supreme Court held that
while determining the quantum of the amount of mesne profits or
compensation for use and occupation of the premises, the rent which
the land lord would get if the premises is let out on being vacated by
the tenant or in other words the market rent should be taken into
consideration and not the contractual rent which was prevalent prior
to the date of decree. The appellant should be put on such reasonable
terms which in the opinion of the Appellate Court reasonable
compensate the decree holder for loss occasioned by delaying
execution of the decree by the grant of stay.
In State of Maharashtra Vs. Super Max International (P) Ltd.,
Reported in (2009) SCC 772 : (2009) 3 SCC (Civ) 857, it has been held
in fixing the occupational charge Court should not fix any excessive
fanciful and punitive amount for determination of occupational
charge. The Court can fix the occupational charge with reference to
Stamp Duty Ready Reckoner, so reasonableness cannot be doubted.
In the present case the contractual rent is rupees one thousand
per month in respect of a flat measuring 2400 sq.ft. though in a
dilapidated condition but located in the prime area of Kolkata
appeared to be too meager and it is like price of a peanut. So, the
petitioner against whom decree of eviction is passed cannot be allowed
to enjoy the disputed tenancy at a meager amount of rupees one
thousand per month.
However, learned lawyer for the petitioner has produced Xerox
copies of several lease and license agreements in respect of properties
situated in different parts of city of Kolkata. Learned lawyer for the
opposite parties contended since those documents relates to property
not situated near and around the disputed tenancy the same cannot
be taken into consideration for determination of occupational charge.
The Xerox copy of lease and license agreement produced by the
petitioner can be taken into consideration for collateral purpose to see
what is the prevailing market rent of the area which are also situated
in the prime and posh location of city of Kolkata. From those
documents it is seen the rent of 2750 sq.ft. Residential plat situated at
Burdwan Road, Alipore is about rupees sixty thousand. Lease
agreement of the year 2020 in respect of 1922 sq.ft. office space
situated at Shakespeare Sarani shows rent of the same to be Rs.
76,880/- per month and agreement dated 2020 in respect of a
residential flat situated at 3 Clyde Row, Hastings rent of the same is
about rupees 32,500/- per month.
No doubt the rent of Punjab and National Bank a commercial
bank situated in a newly constructed building situated opposite of the
disputed tenanted building was fixed at rupees 100 per sq.ft. But, for
determination of occupational charge of a dilapidated residential flat
whose contractual rent is only rupees one thousand per month such
rate cannot be taken into consideration.
Having regards to the documents that have been produced by
the petitioners in respect of market rent of residential flats situated
equally in posh and prime location of Kolkata and with all the
amenities show the prevailing market rate is below rupees thirty per
sq.ft. Therefore, this Court holds the occupational charge assessed by
the learned Appellate Court below in respect of the disputed tenancy @
Rs.100/- per sq.ft. to be unreasonable and irrational.
Taking into consideration the present condition of the disputed
tenancy which is in a dilapidated condition and devoid of basic
facilities which is normally attached to a tenancy and prevailing
market rate of rent in respect of the flats situated in equally posh and
prime area of the City of Kolkata and with all amenities, I hereby fix
the occupational charge of the disputed tenancy measuring 2400 sq.ft
at rupees fifty thousand per month.
The petitioner is directed to pay occupational charge of rupees
fifty thousand per month from the date of decree and to pay the arrear
amount within three month from the date hereof and failing which the
stay order will stand vacated. The petitioner is further directed to pay
occupational charge from the month of January, 2022 within the 10th
of each succeeding month till the disposal of the appeal.
The learned Appellate Court below is directed to dispose of
the appeal within three month from the date of communication
of this order and without granting any adjournment to either of
the parties on whatsoever ground.
Accordingly, C.O. No. 1785 of 2021 is disposed of.
Connected applications are disposed of.
Interim order, if any, stands discharged.
There will be no order as to costs.
All parties are directed to act on a server copy of this order duly
downloaded from the official website of this Court.
Urgent Photostat certified copies of this order, if applied for, be
given to the parties upon compliance of all requisite formalities.
(Kesang Doma Bhutia, J.)
