Sircar Brothers (Properties) Ltd. vs Ladhuram Khemka

Mitter, J.—This is an application to make absolute a (sic) nisi issued on the Respondents to show cause why orders in (sic) nature of writs of prohibition and certiorari should not be (sic) in respect of certain proceedings now pending before the (sic) Respondent, the Additional Rent Controller for Calcutta.

The Petitioners are owners of premises No. 386, Upper Chitpur Road. The first Respondent, Ladhuram Khemka, is the lessee in respect of the said premises. The second Respondent, S.P. Ghose, is Additional Rent Controller, Calcutta. He has (sic) office at No. 3, Bankshall Street, Calcutta.

The lease in question was by an indenture dated January 21, 1949. It is for a period of twenty-five years with effect from February 1, 1949. In terms of the said lease, the Respondent Ladhuram Khemka paid to the Petitioners a sum of Rs. 5,000 for "the improvement, development and addition to the said "premises". In addition, the said lessee also paid, in terms of the said lease, a sum of Rs. 3,000 by way of security deposit for the due performance and observance of the covenants and conditions of the lease. The monthly rent agreed upon was Rs. 500. The said lease was thus entered into after December 1, 11941. It is for a period of not less than fifteen years and is not terminable at the option of the lessor within the said period.

It is common case that the West Bengal Premises Rent Control (Temporary Provisions) Act (XXXVIII of 1948) was repealed by the West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950), which came into operation as from March 31, 1950. On June 2, 1950, the Respondent Ladhuram Khemka made an application before the second Respondent for refund of the said sums of Rs. 5,000 and Rs. 3,000 and for fixation of standard rent. The Petitioners appeared before the second Respondent and submitted that the application was not maintainable. By an order, dated July 22, 1950, the second Respondent held that the application was maintainable and fixed August 17, 1950, for inspection of the premises concerned. On the Petitioners'' application, made on August 18, 1950, this Court issued the said Rule nisi on the Respondents.

Before me, no one has appeared on behalf of the first Respondent, Ladhuram Khemka. On behalf of the State, both the learned Standing Counsel and the Junior Standing Counsel have appeared.

Mr. Subimal Roy on behalf of the Petitioners has submitted that the provisions of Section 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act (XVII of 1950) are a complete answer to the second Respondent''s order of July 22, 1950. He argues that the lease in question provides for development by the lessor and that, therefore, Section 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act (XXXVIII of 1948) had no application to the case. If that be so, argues Mr. Roy, the provisions of Section 5 of the new Act would not apply and that consequently the Rent Controller would have no jurisdiction to entertain the first Respondent''s application for refund and for fixation of standard rent. In my view, Mr. Roy is right. Section 5 of the 1948 Act is in these terms:

Notwithstanding anything contained in Section 4, a landlord may receive (sic) premium or salami or other like sum in addition to the rent in respect of any premises which are let on a lease for a period of not less than twenty years for the purpose of development by the lessee either by building or re-building if the period limited by the lease is not expressed to be terminable at the option either of the landlord or of the tenant at any time within a period of five years from the date of commence, merit of the period so limited:

Provided that the rent payable for the premises during the continuance of this Act shall not exceed the standard rent.

The learned Junior Standing Counsel admitted that, having regard to the express terms of the lease, Section 5 of the old Act (set out above) had no application to the lease in question. If that be so, the provisions of the Act of 1950 cannot apply to the lease in question, for Section 5 of the new Act provides:

Nothing in this Act shall apply to a lease of any premises entered into after the 1st day of December 1941, for a period of not less than fifteen years which is not terminable within, the said period at the option of the landlord:

Provided that the provisions of this section shall not in any way affect any right acquired or accrued u/s 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, or require the landlord to refund any premium or selami or other like sum in addition to the rent, received by him in accordance with the provisions of that section.

If Section 5 of the old Act did not apply to the lease, the proviso to Section 5 of the new Act has no application. Consequently, it being admitted that the lease was entered into after December 1, 1941 for a period of not less than fifteen years and it was not terminable within the said period at the option of the landlord, the provisions of the new Act would not apply to the lease in question. If that be so, the learned Rent Controller, the second Respondent herein, can have no jurisdiction to entertain any application in respect of the said lease. The learned Rent Controller misread the lease and erroneously held that it fell within the ambit of Section 5 of the old Act. The discussion as to the lessee having acquired a right u/s 5 of the old Act was, to my mind, beside the point, as the provisions of the said section had no application to the lease in question.

The only point urged on behalf of the State is that the provision of an appeal and a review u/s 32 of the Act is a bar to the discretionary reliefs asked for Section 45 of the Specific Relief Act provides that no order can be made under the section if the Applicant has other specific and adequate legal remedy. The same principle would appear to be applicable to the grant of other extraordinary remedies such as writs of (sic) and prohibition. It must, however, be borne in mind, observed by Lord Williams J. in Dorman Long and Company, Ltd. v. gadeeshchandra Mahindra ILR (1934) 62 Cal. 596, 605, that--

The existence of a right of appeal is not conclusive, because it may not be (sic) and in some circumstances, the remedy given by the issue of such writs (sic) be more speedy and more convenient and less costly. Thus in the case of (sic) v. North, Ex parte Oakey (1927) 1 K.B. 491, 506, although an appeal was open to an injured party that case, it was held that on the facts of that case that fact was no ground for (sic) prohibition.

In In re National Carbon Company, Incorporated ILR (1934) 61 Cal. 450, 459, (sic) J'', observed:

A point of greater importance is raised by the contention that the Court has (sic) power to issue a writ of prohibition. It is agreed that this writ, if the power (sic) to issue it, can be claimed as of right. * * * *

It would appear that whereas reliefs by way of certiorari and mandamus are in the discretion of the Court, the issue of a writ (sic) prohibition can in a proper case be asked for as of right. On behalf of the State, reliance was placed on Collector of Customs, (sic) v. Charles Ezra Sassoon ILR (1947) 1 Cal. 426, in which Derbyshire C.J. (sic) Lodge J. held, on the facts of the case, that the existence (sic) a right of appeal on the part of the Applicant was a bar to any (sic) u/s 45 of the Specific Belief Act. As has already (sic) indicated, the other remedy has to be adequate and that in (sic) event the existence of a right of appeal under the Act cannot (sic) conclusive. I do not also think that the learned Chief (sic) (Derbyshire C.J.) intended to lay down that the (sic) of a right of appeal was in all cases fatal to an application u/s 45. In the case before me, the learned (sic) Controller has usurped a jurisdiction which the Act has (sic) taken away. As to the purpose for which a writ of (sic) may be granted, I cannot do better than quote the following passage from Halsbury''s Laws of England, Hailsham (sic). Vol. IX, p. 822:

The Court, in deciding whether or not to grant a writ of prohibition, will not (sic) fettered by the fact that an alternative remedy exists to correct the absence (sic) excess of jurisdiction, or an appeal lies against such absence or excess.(sic)

Where it appears to this Court that the inferior court is acting wholly without jurisdiction, this Court should not, in my view, (sic) the Applicant to pursue, as here, the dubious remedies (sic) to him under the Act. The order complained of here is (sic) a final order of the Controller. Therefore, no appeal or (sic) lies from it. Section 32 of the Act provides for an appeal from a final order of the Controller. The review to the High Court is from any order made in an appeal from a final order. Thus, in order to avail himself of the remedy open to him under the Act the Petitioner must submit to the proceedings (sic) upon the order complained of. This would involve (sic) delay and expense. Mr. Subimal Boy has relied upon R. (sic) Fulham, Hammersmith and Kensington Rent (sic) Ex parte Phillippe (1950) 2 All E.R. 211 and Manibhai Hathibhai Patel Vs. C.W.E. Arbuthnot, , to show that the orders asked for against an authority such as the Rent Controller. In my vie this is a fit case for quashing the order complained of and for order prohibiting the Additional Rent Controller, Calcut from taking any further steps in the matter.

The rule is accordingly made absolute. The first Respondent must pay the costs of this application.