Calcutta High Court

Gulmarg Estates Private Limited vs Santanu Sarkar & Ors on 26 September, 2024

Author: Sugato Majumdar

Bench: Sugato Majumdar

OD - 22

                                   ORDER SHEET
                     IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                                 ORIGINAL SIDE

                                 IA NO. GA/7/2020
                               (Old No: GA/532/2020)
                                   In CS/46/2008

                      GULMARG ESTATES PRIVATE LIMITED
                                    Vs
                          SANTANU SARKAR & ORS.

BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 26th September, 2024
                                                                          Appearance:
                                                Mr. Arindam Banerjee, Adv.
                                                Ms. Arpita Saha, Adv.
                                                Mr. Ashis Kr. Mukherjee, Adv.
                                                Mr. Saurabh Prasad, Adv.
                                                Mr. Avijit Kar, Adv.
                                                                ...for the Plaintiff.


                                                Mr. Reetabrata Mitra, Adv.
                                                Mr. Rudrajit Sarkar, Adv.
                                                              ...for the Defendants.


      The Court: The instant application is filed by the Plaintiff/Petitioner praying,

inter alia, for appointment of a Commissioner for ascertainment of market rate of

rent, direction to the Defendants/Respondents to furnish security deposit direction

to the Respondents to pay occupational charges at a rate of Rs.95/- per sq. ft. during

pendency of the suit as well as share of municipal taxes along with incidental prayers.

Sum and substance of the case as appears from the application is as follow:-

a) Gobardhan Nath Tandon (in short G.N. Tandon) was the erstwhile

owner of the suit property and M/S Oriental Motor Accessories

Agency Pvt. Ltd. (Oriental for the sake of brevity) was thika tenant

under him.

b) The said Tandon initiated proceeding for recovery of possession from

the said thika tenant Oriental under the provisions of the Calcutta

Thika Tenancy Act, 1949. The said proceeding was registered as

Thika Tenancy Case No. 3D of 1962. The said proceeding was allowed

by the Small Causes Court at Calcutta in terms of the final judgment

and order dated 20/12/1963. Thika Tenancy of Oriental ceased to

exist with passing of the final judgment dated 20/12/1963.

c) On 18/01/1982, the Calcutta Thika Tenancy (Acquisition &

Regulation) Act 1981 came into force. The Oriental later on

surrendered possession to the said G.N. Tandon on receiving

compensation, in terms of the Order dated 02/05/2007 passed by the

Controller, Calcutta Thika Tenancy.

d) Much before the Act of 1982 came into being, the property became

non-thika property.

e) Oriental, without consent of the said G.N. Tandon sub-let various

parts of the premises to the Respondent no. 1 - 8. Respondent no. 9 -

15 were inducted in the suit premises by the Respondent no. 8. When

Oriental surrendered possession, it issued individual notices to the

Respondent no. 1 - 8 calling upon them to vacate their respective

possession of the suit premises.

f) It is contended that with extinguishment of thika tenancy, the

Respondents' claim to be Bharatia under Oriental, ceased to exist and

their possession became wrongful. They did not give any notice of

sub-letting. The suit does not come within purview of the West

Bengal Premises Tenancy Act, 1997. This apart, all the sub-letting

came to end on 28/10/2006 when tenancy of Oriental ceased to have

any effect on surrender of possession.

g) On 18/05/2007, the Petitioner purchased the suit property from G.N.

Tandon in terms of a registered deed of conveyance. The Petitioner

was able to obtain possession of only 4320 sq. ft. while the rest 6430

sq. ft. continued to be illegally occupied by the Respondents.

h) The Petitioner instituted the instant suit for recovery of possession

and other reliefs. The Petitioner also filed G.A. 834 of 2008 praying

for appointment of Special Commissioner to inspect the premises no.

20, G.C. Avenue to ascertain and measure areas of respective

possession of the Respondents, injunction, ascertainment of market

rate of rent, security deposit along with other prayers. In terms of the

Order dated 20/03/2008, Co-Ordinate Bench was pleased to appoint

a Special Officer. In terms of the Order dated 25/08/2010, the same

Co-Ordinate Bench directed the Respondents not to surrender

possession of the premises or any part to any third party or to each

other without previous leave of this Court and granted leave to renew

the prayers (c) (d) and (e) of the petition at subsequent stage.

Accordingly, the instant application has been filed.

Affidavit-in-Opposition was filed by the Respondent no. 1 on behalf of himself

and as constituted attorney of the Respondent no. 2, 3, 4, 5, 7 & 8. Contentions are

as follow:

i. The Respondent no. 1 was inducted as "Bharatia" by the original thika

tenant Oriental in or about the year 1971. Oriental was thika tenant with

effect from the inception of the Calcutta Thika Tenancy Act 1949 in

respect of the entirety of the premises no. 20, Ganesh Chandra Avenue,

also known as 23, Chittaranjan Avenue, Kolkata - 700013, till the Thika

Controller made an Order in Miscellaneous Case no. 64 of 2006.

Oriental was initially thika tenant under G.N. Tandon and then under

the State of West Bengal when the Act of 1981 came into being. Order of

the Thika Controller is also challenged as grossly illegal. Subsequently,

the Calcutta Municipal Corporation by its Memo dated 22/11/1995

directed rent on account of tenancy should be deposited in the

Collection Department of the Corporati0n. Since then rent has been

deposited in the Corporation.

ii. The Respondent no. 2 was inducted in the premises as a Bharatia by

Oriental. The Respondent no. 2 had been paying rent to Oriental with

effect from the month of October 2006, Oriental refused to accept rent.

From thereon, the Respondent no. 2 has been depositing rent with the

Rent Controller, Kolkata.

iii. The Respondent no. 3 was inducted as a tenant by one Prem Chand

Sehgal with consent and approval of Oriental in the year 1967. After a

round of litigation between the said Prem Chand Sehgal and Oriental,

the former was recognized by the later as tenant. In the year 2003,

tenancy, earlier created in favour of the Respondent no. 3 was

regularized, recognized and approved by Oriental and the later started

issuing of rent receipts to the Respondent no.3. In the year 1995, the

Calcutta Municipal Corporation issued notice to the Respondent no. 3,

directing it to deposit rent on account of CMC and accordingly the

Respondent no. 3 used to deposit rent at a rate of Rs.1800/- per month

on account of tenancy to CMC. Thereafter an agreement was entered

into between Oriental as the thika tenant and the Respondent no. 3, on

01/07/2003. Thereafter, the Respondent no. 3 began to pay enhanced

rent at a rate of Rs.2200/- per month to Oriental and still continuing to

pay the earlier rent at a rate of Rs.1800/- per month to CMC again

arrear taxes. Thereafter on or about 28/10/2006, Oriental informed the

Respondent no. 3 that it had surrendered its right, title and interest to

G.N. Tandon. The last enhanced rent receipt was issued by Oriental on

03/11/2006 against payment of rent of Rs.2200/-. Thereafter rent is

being deposited with the Rent Controller, Kolkata.

iv. Respondent no. 4 and 5 similarly came to occupy the premises with

consent of Oriental through Prem Chand Sehgal. Respondent no. 4 is

paying part of rent being Rs.1000/- per month to the Kolkata Municipal

Corporation since 1995 towards arrear of tax. Since Oriental issued

notice dated 28/10/2006 to the Respondent no. 4, rent is being

deposited with the Rent Controller, Kolkata. So far as Respondent no. 5

is concerned, rent is being deposited with the Rent Controller, Kolkata

since Oriental refused to accept rent with effect from the month of

November, 2006. All the Respondent nos. 3, 4 and 5 claim themselves

to be lawful Bharatia. Respondent no. 7 also started depositing rent

with the Kolkata Municipal Corporation under order of attachment of

monthly rent. United Garage Pvt. Ltd. was an occupier in the premises.

Oriental specifically and in writing allowed United Garage Pvt. Ltd. to

sub-let its occupation to Mr. Harendra Sonpal who in turn was further

authorized to induct tenants under his name and United Garage Pvt.

Ltd. was changed to Sonpal Property Solutions Pvt. Ltd. in the year

2004. Mr. Harendra Sonpal was allowed by Oriental, in terms of board

resolution dated 06/04/1990 to sub-let the concerned portions of the

tenancy in favour of the others. Accordingly, Respondent no. 9 - 11, 14

and 15 were inducted by Harendra Sonpal. Respondent no. 9 - 11, 14

and 15 have been paying rent to Harendra Sonpal without any objection

from Respondent no. 8. It is stated that they were the lawful Bharatia

under Oriental.

v. The erstwhile owner G.N. Tandon terminated the tenancy of Oriental on

21/12/1961 and initiated a proceeding for eviction and recovery of

possession. The Presidency Small Causes Court, Calcutta passed order

dated 20/12/1963 allowing eviction of Oriental subject to payment of

compensation by the Thika Controller appointing a commissioner.

vi. With introduction of Amendment Act 29 of 1969 on 30/10/1969, both

the parties filed separate applications. Oriental's application was for

recalling of the order dated 20/12/1963. Series of litigations ended with

the Order passed by this Court to the effect that order of eviction could

have been made only on payment of compensation. The Controller was

directed to decide the matter accordingly.

vii. With coming into effect of the Calcutta Thika & Other Tenancies & Land

(Acquisition & Regulation) Act, 1981, Oriental filed an application

tendering ad-hoc rent and declaration as Bharatia. G.N. Tandon filed a

Writ application in this Court challenging the constitutional vires of the

Act of 1981. Thika Controller directed Oriental to deposit rent and the

same was deposited.

viii. On 21/01/1994, G.N. Tandon entered into a development agreement

with one Kishori Lal Agarwal, being the Managing Director of the

Petitioner company. Subsequently, by a registered deed of assignment,

all the rights, title and interest of the said Kishori Lal Agarwala was

assigned to the Petitioner.

ix. On 25/10/2006 Oriental surrendered its right, title and interests in

favour of G.N. Tandon and immediately thereafter on 28/10/2006

Oriental issued notice to the Respondents intimating such surrender

with request to surrender their respective possessions. It is averred that

Oriental, in collusion with the landlord and the Petitioner, submitted

before the Thika Controller in Misc. Case 64/2006 that it had received

compensation in satisfaction of the order and decree dated 20/12/1963.

The Respondents thereafter, drawn up a proceeding before the West

Bengal Land and Land Reforms Tribunal, seeking recalling of the said

decree. The proceeding was numbered as O.A.1211/2008 and is still

pending.

x. On 18/05/2007, a deed of conveyance was executed whereby the

Petitioner became the owners of the premises.

xi. In this context, it is pleaded that the instant application is misconceived,

not maintainable and is liable to be rejected.

Mr. Banerjee, the Learned Counsel for the Petitioner argued that after

passing of the decree dated 20/12/1963, there was no thika tenancy in favour of

Oriental. From 1967 onwards, Oriental wrongfully sub-let the premises to the

Petitioners. Since Oriental ceased to be thika tenant, all the Respondents, who

derived their possession through Oriental, are neither Bharatia nor Thika Tenants.

Their possession is wrongful.

Next it was argued that it is not the case of the Respondents that they are

gratuitous licensee. It is not their case that they are not liable to pay rent. It is also

admitted that the Respondents are in possession of the suit premises running

business for commercial purposes. They are, therefore liable to pay occupational

charges at current market price. Under sections 194/195 of the Kolkata Municipal

Corporation Act, 1980, occupiers are the persons liable to pay property tax as well as

surcharges. Mr. Banerjee relied upon the following decisions:

Calcutta Gujrati Education Society vs Calcutta Municipal Corporation [(2003) 10 SCC 533],

Feroz Belal vs Bengal Properties Pvt. Ltd. [(2006) 1 CHN 145],

Indus Towers Ltd. vs Kolkata Municipal Corporation [(2005) 2 CHN 624],

M/s Popat & Kotecha Property vs The Kolkata Municipal Corporation [2019 SCC OnLine Cal. 2124].

The next limb of argument of Mr. Banerjee is that it is open for a court

under powers conferred by Order XXXIX Rule 10 read with Section 151 of the Code

of Civil Procedure, 1908 to make appropriate order in the interest of justice.

Between institution and disposal of the suit for recovery of possession there lies big

gap of time. A balance is to be struck so that any party against whom a suit for

recovery of possession is filed, cannot unconscionably enjoy the property in the

interregnum period. Mr. Banerjee referred to Green Band Apartments Pvt. Ltd.

vs Mint Matrix [2021 SCC OnLine Cal 428] and Purushottam Das Bangur

vs B.Majumdar Samajpati & Sons [(2008) 7 SCC 447].

Per Contra, Mr. Mitra, the Learned Counsel appearing for the Respondents

argued that G.N. Tandon could not have executed the deed of conveyance in favor of

the Petitioner since by way of vesting the State of West Bengal had become the

owner, by that time. Thus it was argued that the Petitioner could not acquire valid

title in the property since the property had already been vested in the state at that

material point of time.

Next limb of argument is that even if the Petitioner wishes to evict the

Respondents, rights vest only with the Thika Controller. The present suit is barred

under section 23 of the West Bengal Thika Tenancy (Acquisition & Regulation) Act,

2001. The said provision altogether ousted the jurisdiction of the civil court. Hence,

the suit itself is not maintainable.

Thirdly, it is argued that the Respondents are Bharatia on the land.

Furthermore, proceeding being T.T. Case No.31 of 1962 was to be heard de-novo, in

view of the order passed by this Court.

It was further argued that the Order passed by Sanjib Banerjee, J. (as His

Lordship then was) dated 25/08/2010 granted leave to renew the prayers at a

subsequent stage of the proceeding. The same clearly means that after passing of the

decree the issues should be taken up. There is no change of circumstances, since

then, demanding renewal of the prayers, not considered earlier.

According to Mr. Mitra, the instant application merits dismissal.

I have heard rival submissions.

Firstly, Sanjib Banerjee, J. (as His Lordship then was) did not finally

decided the issues, raised herein; rather these issues were kept open to agitate at

subsequent stage of the proceeding. A subsequent stage of course is not a stage after

passing of the decree. There is no res judicata on the issues raised herein. No bar

was imposed on hearing the issues. Prayers are of the nature of interim reliefs.

Therefore, these should be heard during pendency of the suit. The earlier Order

dated 25/08/2010 does not stand on the way of hearing the instant application. I

cannot accept the argument of Mr. Mitra.

Conspectus of facts contained in rival pleadings impress upon the mind

certain things. The Respondents are admittedly in possession. It is the claim of the

Respondents that they are in lawful occupation derived possessory title from

Oriental. On the other hand, the Petitioner's plea is that their occupation is

wrongful since Oriental had no authority to let out or part with possession of the

suit premises after passing of the decree dated 20/12/1963. The Respondents

claimed themselves to be Bharatia or sub-tenant or thika tenant which is denied by

the Petitioner. Secondly, the Respondents did not deny liability to pay rents.

Rather, it is asserted that they are paying rent or depositing rent month by month,

either to the Kolkata Municipal Corporation, as attached rent or depositing with the

Rent Controller. Once the Respondents admit that they are in lawful occupation of

the suit property on payment of rent, they cannot ignore the financial liability in

respect of the suit property. There is no rent agreement between the Petitioner and

the Respondents. The quantum of rent mentioned in the affidavit-in-opposition is,

in fact, meagre considering the fact that the suit property is exploited commercially

and is located in the commercial center of the city. On payment of such meagre

rent, they cannot continue to exploit the property to their own benefit. What the

Respondents dispute and in fact, contentious issues to decide, are whether the

Petitioner is the landlord or has a right to receive rent from the Respondents. Since

title of the Petitioner is disputed and a plea of vesting is taken, right to receive rent

by the Petitioner shall depend on the final outcome of the suit. It is not prudent to

arrive at an abrupt conclusion without appreciating evidence, since these issues

involve mixed question of law and fact. But that by itself does not exonerate the

Respondents from their liability to pay rent commensurate to prevailing market

rate, during pendency of the suit. Their liability to pay rent is not denied but rather

asserted. In Sarup Singh Gupta vs S. Jagdish Singh & Ors [(2006) 4 SCC

205] it was observed by the Supreme Court of India that to avoid any controversy,

in the event of termination of lease the practice followed by the courts is to permit

the landlord to receive each month by way of compensation for the use and

occupation of the premises, an amount equal to the monthly rent payable by the

tenant. Reference may also be made to the Order passed by the Division Bench of

this Court in Debonair Vanijya Pvt. Ltd. Vs. Eshrat Jahan & Anr. [(2024)

SCC OnLine Cal 1178], where in certain contingencies, and depending on facts

and circumstances of specific cases, the tenants can be asked to pay reasonable

mesne profits. Reference may also be made to the decision of a Co-Ordinate Bench

in Green Band Apartments Pvt. Ltd. Vs. Mint Matrix [(2021) SCC OnLine

Cal 428], relied upon by Mr. Banerjee.

What is in dispute is the right of the Petitioner to receive rent, not the

liability to pay rent. The Respondents are depositing rent and did not deny liability

to pay or deposit rent. Therefore, the proper course should be to deposit rent with

the Learned Registrar, Original Side every month and such deposit shall be

withdrawn by a party as may be decided finally in this suit. Quantum of rent should

be commensurate to the prevailing market rate. Such rent should be deposited as

occupational charge without prejudice to the rights of the parties.

The Respondents are also liable, as occupier, to share proportionate tax and

rates as held in Calcutta Gujrati Education Society's case. The tenants, sub-

tenants and occupiers are liable to bear the burden of proportionate tax inclusive of

surcharge and other rates. Pendency of the suit and its procrastination should not

be allowed to be an escape route to the Respondents to avoid financial liabilities and

to exploit the property commercially at a very meagre expense. All these demand,

appointment of an Advocate Commissioner to ascertain:

i. Prevalent market rate of rent in the locality where the suit property is situated;

ii. Proportionate share of taxes and surcharges by each of the Respondents;

iii. Outstanding amounts of rates, taxes and surcharges to the Kolkata Municipal Corporation by each of the Respondents.

iv. Such other matters as may be necessary and incidental to all the above- mentioned matters.

Mr. Siddhartha Lahiri, a Member of Bar Library Club (Mob: 9830082839)

be appointed as an Advocate Commissioner as aforesaid. His remuneration shall be

3000 GM to be borne by the Petitioner. Mr. Lahiri shall furnish a report to this

Court on or before 16th December, 2024.