Malay Kumar Basu, J. - (1.) This is an application under Article 227 of the Constitution filed by the petitioner Mukti Nath Jha challenging the legality of the judgment and order dated 22nd December. 1995 passed by the Ld. Asst. District Judge, 1st Court, Howrah in Misc. Appeal No. 53 of 1995. By that order the Ld. Asst. District Judge reversed an order passed by the Additional Rent Controller, Howrah in P.T. Case No. 38 of 1992 which was filed by the present petitioner Mukti Nath Jha before the Rent Controller, Howrah for fixation of fair rent in respect of the disputed premises. The relevant facts for consideration in brief are as follows: The said Mukti Nath Jha was a tenant since May, 1989 under the O.P. Smriti Ranjan Roy, in respect of the suit premises being No. 58, Mahendra Bagchi Road, Howrah on payment of monthly rental at the rate of Rs. 800/ - per month and the said premises consisted of 3 Bed Rooms, one Bath Room -cum -Privy, and one Kitchen in the ground floor of that premises. The said O.P. -landlord filed a suit for eviction against the plaintiff in respect of that premises in the Court of First Munsif. Howrah being T.S. No. 46/92 on the grounds of reasonable requirement and default, etc. During the pendency of that suit the petitioner -tenant filed an application under Sec. 10 of the West Bengal Premises Tenancy Act, 1956 before the Additional Rent Controller. Howrah being No. as P.T.38/92 as mentioned above praying for an order determining the fair rent in respect of the suit premises. In that case under Sec. 10 of the Act. the Ld. Addl. Rent Controller referred (hat petition to the Special Land Acquisition Officer. Howrah for holding enquiry into the averments of the petition and submitting a report to him. The said Special Land Acquisition Officer submitted a report dated 8th September. 1992 before the Addl. Rent Controller expressing his inability to hold an inspection into the matter on the ground that it was other than a Government land matter. Then the petitioner filed an application before the Addl. Rent Controller for getting an enquiry made by an Advocate -Commissioner and on the basis of such prayer the Ld. Addl. Rent Controller appointed an Advocate -Commissioner for holding such an enquiry and the said Ld. Advocate Commissioner served notices on the O.P. and after holding the enquiry in presence of both the parties filed a report before the Ld. Addl. Rent Controller. Thereafter the Ld. Addl. Rent Controller after hearing the parties allowed that application under Sec. 10 of the West Bengal Premises Tenancy Act filed by the petitioner -tenant fixing the rent at Rs. 450/ - per month as fair rent in place of Rs. 800/ - which was the earlier rate of rent being paid by the tenant so long.
(2.) Being aggrieved by that order dated 25th January. 1995 of the Ld. Addl. Rent Controller the O.P. -landlord preferred an appeal before the Ld. District Judge, Howrah which was registered as Misc. Appeal No. 53/ 1995 and transferred to the Court of Ld. Asst. District Judge, 1st Court, Howrah for disposal. The Ld. Asst. District Judge after hearing both sides passed the impugned judgment and order dated 22nd December, 1995 allowing the appeal and setting aside the impugned order of the Ld. Addl. Rent Controller.
(3.) Being aggrieved thereby again the tenant has preferred the present application under Article 227 of the Constitution challenging the order of the Court below as illegal, improper and liable to be set aside. The contention of the applicant -tenant has been that the Court below assumed jurisdiction erroneous and has acted in excess of his jurisdiction while giving the verdict that the application for fixation of fair rent is barred by the principle of res judicata. It is the further contention of the applicant that the Court below failed to exercise its jurisdiction by ignoring the Commissioner's report and by holding that the same is violative of Sec. 10 of the W.B.P.T. Act and also of the principles of natural justice. The applicant has also criticised the observation of the Court below as arbitrary to the effect that the Rent Controller has no power to appoint an Advocate -Commissioner according to the provisions of Code of Civil Procedure. This was more so in view of the fact that the appellant -O.P. -landlord had not challenged the said Commissioner's report before the Ld. Rent Controller.;