Tapan Kumar Santra vs Biswanath Banerjee

Bijitendra Mohan Mitra, J.—The present Revisional application is directed against an appellate order dated January 27, 1993, passed by the learned Assistant District Judge, First Court, Hooghly, in Misc. Appeal No. 37 of 1992 confirming the order dated March 1, 1992 passed by the Additional House Rent Controller, Serampore, in H.R.C case No. 11 of 1991.

Mr. D.K. Seth, learned Advocate appearing in support of the instant Revisional application, has assailed the impugned orders primarily on the ground that both the Appeal Court as well as the Statutory Authority went wrong by holding therein that it is completely beyond the jurisdiction of the learned House Rent Controller to determine whether the Applicant is a tenant or not within the meaning of Section 21 of the West Bengal Premises Tenancy Act. The learned Appeal Court has been pleased to proceed on the footing of the premises in law that determination of such controversy is completely within jurisdiction. Mr. Seth, learned Advocate appearing for the Petitioner, has drawn the attention of the Court to Clause (1) to (3) of Section 21 and has tried to lay a distinction from Clause (4) onwards of the said section. Mr. Seth has further contended with force by drawing the attention of this Court to Clause (a) to (d) as embodied in Section 21(2) itself and he has further submitted that compliance of Sub-sections (a) to (d) under Clause (2) would serve the purpose for deposit of rent with the Rent Controller.

Mr. Indra Nath Mukherjee, learned Advocate appearing for the opposite party, has tried to dispute the said contention by laying stress on the expression, namely, ''landlord'' and ''tenant'' and he went further to impress upon this Court that in view of the, said expression being defined in the Statute and the observations made by the learned Appeal Court about criteria are to he treated as sine qua non and the benefit of Section 21 of the West Bengal Premises Tenancy Act from namely (i) the suit premises; (ii) the landlord; (iii) the tenant.

The aforesaid contention of Mr. Mukherjee cannot be sustained by way of placement of prefix of Section 21(1) of the West Bengal Premises Tenancy Act by making reference to the jural expressions of ''landlord'' and ''tenant'', but the suffix of the said Section 21(1) of the Act postulates that where there is a bona fide dispute as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Rent Controller in the prescribed manner. If there is a bona fide doubt as to the person or persons to whom the rent is payable then the same would be deposited with the Rent Controller provided it satisfies the conditions as engrafted in the proviso to Section 21(1) of the Act and Section 21(2) of the same. The landlord is permitted in terms of Clause (8) of Section 21 within a period of 30 days from receipt of a notice of deposit being proceeded by filing of a petition under Sub-section (5) to raise a complaint with the Rent Controller that the statements contained in the tenant''s applications are untrue and the Controller after giving, the tenant an opportunity of being heard may levy on the tenant a fine as prescribed in the statute. It is also necessary to mention the submissions of Mr. Seth in this context that the Rent Controller''s office is a recipient of rent on behalf of the landlord provided the tenant fulfils all the conditions as enumerated in Clause (1) to Clause (4) of Section 21. The dispute as contemplated about the relationship of the parties between the landlord and tenant can only be determined by a civil Court on a proper application u/s 17(2) of the Act or after framing of the issue to the said effect on reception of the evidence. The Rent Controller u/s 21 has not been delegated with any authority to determine such controversy of relationship of landlord and tenant which is only within the domain of proper adjudication and scrutiny of the civil Court to hear out the matter. It is also relevant to point out and mention that there are two suits pending in the civil Court at the instance of the contesting parties, one is by the Petitioner for declaration of his status as a tenant under the opposite party as landlord and for other ancillary reliefs and the other suit is filed at the instance of the opposite party for recovery of possession on revocation of licence and those suits are required to be tried only by a civil Court of competent jurisdiction.

In the background of the respective contentions of the parties it is necessary to mention that the learned House Rent Controller is appointed by notification in exercise of the powers conferred under the Government u/s 26(2) of the West Bengal Premises Tenancy Act and as such the said functionary is the creature of the statute and can only exercise those functions which are given to him by the statute. Such functionary can only exercise functions of a Rent Controller limited to the rent deposited u/s 21 of the Act, as may be delegated to him. A reference may be made in this context in respect of an observation in the ease of Manickchand Durgaprosad and Bros. Vs. Balukidas Baheti, There has been, however, a reference of contemporaneous decision of a Single Bench of this Court in the case of Bichitrananda Routh Vs. Rent Controller., Barrackpore and Others, wherein it has been held that if a dispute arose as to the right of tenancy, the same can only be decided by a competent civil Court. Any deposit before the Rent Controller if made by the person concerned, at his risk and without causing prejudice to the right of the person claiming to be the landlord, such a deposit will not confer any right on the person depositing the said rent as a tenant with the Rent Controller.

It appears that in the impugned orders it has been found that the Petitioner has not been able to prove his tenancy to enable him to deposit the rent and the same cannot be held by the learned Rent Controller. The Rent Controller is only Conferred with limited jurisdiction to investigate whether the statements contained in the original application arc true or not after giving an opportunity to the tenant of being heard and may levy a fine.

Accordingly, the orders complained of are vitiated by improper exercise of jurisdiction of the Rent Controller which is not otherwise sanctioned by the statute. So it is manifestly clear on a plain reading of Section 21 and of the provisions as contemplated u/s 17(2) that civil Court cannot only determine the question of controversy relating to the parties about their relationship of landlord and tenant and the learned Rent Controller has exceeded his jurisdiction beyond the statutory limits and fetters by holding that in a proceeding u/s 21 such dispute of relationship can be resolved.

Accordingly, the impugned orders suffer from inherent infirmity of jurisdictional error and as such they are liable to be set aside. The Revisional application thus succeeds. Hence, it is allowed.

There will be no order as to costs.

Let a xerox copy of this order be given to the learned Advocate appearing for the parties on usual terms.