Calcutta High Court (Appellete Side)
U vs R Sajal Chowdhury & Anr on 28 February, 2023
In the High Court at Calcutta
(Civil Revisional Jurisdiction)
Appellate side
C
S/L No. 13
C.O. 463 of 2023
28.02.2023
Ct-237 o
(RD) Kunal Krishna Deb
u
Vs.
r Sajal Chowdhury & Anr
t
N
Mr. Asit Barman Raut, Advocate
. Mr. Tuhin Subha Raut, Advocate
2 Mr. Asit Kr. Chowdhury, Advocate
Ms. Ishita Raut, Advocate
.... For the petitioner
S
l Mr. Tarknath Halder, Advocate
... for the opposite parties
/ The order under challenge was promulgated by the
C
Ld. Additional District Judge, First Tract II, Sealdah,
L
imposing occupational charge of Rs. 50,000/- per
mensem.
Petitioner/ defendant was a tenant in respect of
subject premises no. 3, Bhairav Mukherjee Lane,
Ultadanga, Kolkata 700004 comprising of 10 rooms 3
kitchens 2 bath and privy, at a monthly rental of Rs.
200/- payable at a English Calendar.
Opposite parties/ plaintiffs filed one Ejectment Suit
No. 323 of 2004 after serving notice to quit and vacate.
The said suit was disposed of by the Ld. Civil judge
(junior Division) Additional Court, Sealdah, 24 Parganas
(South) by recording a judgment on 11.04.2022.
Thereby, Learned Civil Judge (Junior Division) recorded
and order of eviction against the petitioner/defendant
with a direction to vacate the premises. However, failure
on the part of the petitioner/defendant to vacate the
premises within stipulated time, opposite parties/
plaintiffs filed Execution Case No. 31 of 2022 before the
Court of Ld. Civil Judge (Junior Division), Additional
Court, Sealdah.
Being aggrieved petitioner/defendant preferred an
Ejectment Appeal being no. 8 of 2022 against the
judgment passed by Learned Civil Judge on 11.04.2022.
Petitioner/ defendant submitted one application before
the Learned Appellate Court with a prayer for stay of
Execution Case No. 31 of 2022.
Learned Appellate Court recorded the order of stay
subject to payment of occupational charges of Rs.
50,000/- per mensem.
Petitioner/ defendant challenged the order dated
21.01.2023 passed by the Learned Appellate Court to
the effect of only occupational charges of Rs. 50,000/-.
Ld. Mr. Asit Barman Raut, appearing on behalf of the
petitioner assailed the amount assessed towards
occupational charges on the ground of dilapidated
condition of the premises. Mr. Raut has submitted that
Ld. Appellate Court only harped on the string of guess
work instead of inquiry into the matter in terms of
current rent of the residential units of the area. In
support of his contention, he relied on a case of Niyaz
Ahmad Khan Vs. Mahmood Rahmat Ullah Khan &
Anr reported in AIR 2008 SC (Supp) 280 and also a
case of M/s. Special Steel & Wire Wings Vs. Radhe
Shyam Bhootra & ors reported in 2022 (2) Indian
Civil cases 106 (Cal.)
In opposition to that, Mr. Taraknath Haldar,
appearing on behalf of the opposite parties has
contended that subject premises is a big property having
10 rooms 3 kitchens 2 baths and privy and petitioner
was occupying in the property at a rental of Rs. 200/-
per month only. In support of his contention, he has
referred to orders passed by the Hon'ble Co-ordinate
Bench of this Court in C.O no. 3340 of 2018 and C.O
4222 of 2018.
Hon'ble Justice Sabyasachi Bhattacharyya, in both
the C.O., did not interfere with the guess work of
Learned Additional District Judge, Sealdaha, in
assessing occupational charge in terms of current rent
and position of locality.
From the document available on record it appears
that opposite parties submitted a reply to the stay
petition describing the subject premises as well as
facilities attached thereto. But, that reply remained
uncontroverted by the petitioner by way of seeking leave
to file any affidavit-in-reply. Presumably, therefore,
appellate Court had no other option but to pry into the
track of guess work relying on the description and
facilities supplied by the opposite parties. It is not also
out of place to mention that in course of hearing before
this Court Mr. Raut did not controvert the description of
the property as well as facilities thereto except
dilapidated condition.
In Radhe Shyam Bootra (supra) a Co-ordinate
bench of this Court also dealt with a dilapidated flat
measuring 2400 sq. ft. situated prime location and
assessed occupational charges at Rs. 5000/- per month.
Though, Mr. Halder submitted that Hon'ble Apex
Court, in special leave petition no. 5058 of 2022,
enhanced the occupational charges of Rs. 50,000/- to
1,00,000/-, in connection with Radhe Shyam Bhootra
(supra).
In Niyaz Ahmad Khan (supra) Hon'ble Apex Court
discouraged the order of Hon'ble Single Judge increasing
the rent pending consideration of the writ petition
though there was no prayer for a direction for payment
of any rent or for payment of any increased rent in the
writ application.
Therefore, the principle laid down in Niyaz Ahmad
Khan (supra) is, in my humble opinion, not applicable
to the dispute of our case.
Subject matter of Radhe Shyam Bhootra (supra)
was in respect of a dilapidated flat measuring 2400 sq.
ft. for which Hon'ble Apex Court, as I have discussed
earlier, fixed occupational charge at Rs. 1,00,000/-.
In our case, uncontroverted description and facilities
suggest that the subject premises is situated in a prime
location of the city having 10 rooms 3 kitchens 2 bath
and privy. Learned Appellate Court assessed
occupational charge at Rs. 50,000/- per mensem
considering nature and other amenities of the premises.
That is why, I am sorry to interfere with the order no.
8 dated 201.2023 in connection with ejection appeal no.
08 of 2022 passed by Ld. Additional District Judge, First
Track Court II, Sealdah, 24 Parganas (south).
With the aforesaid observation C.O. No. 463 of
2023 stands dismissed.
All parties are directed to act on a server copy of this
order downloaded from the official website of this Court.
Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
(Bibhas Ranjan De)
