- (1.) The subject matter of challenge in this writ petition is a judgment and order dated 3rd October, 2012 passed by the West Bengal Land Reforms and Tenancy Tribunal allowing an appeal preferred from a judgment and order dated 26th September, 2011 by which the learned Rent Controller held as follows:-- I am of the opinion that under section 17 of the Act, 1997 there are two provisions are for residential other for non-residential tenancy. Therefore, as the Bank is the tenant and the tenancy is used for non-residential purpose; the entire tenancy is taken as commercial tenancy and fair rent is to be fixed as per subsection 4A of the section 17 of the Act 1997. Hence, it is, Ordered (1) the fair rent for the tenanted premises is fixed at Rs. 16.875/- (Rs. 2812.50 + (2812.50 x 5) P.M. (Rupees Sixteen thousand eight hundred seventy five) only with effect from the month of tenancy next after the date of application, that is, August, 2003. (2) the additional amount on account of the increase from August, 2003 upto and including the month of tenancy immediately preceding the month in which this order is passed, that is, August 2011 shall be recoverable by the applicant from the opposite party in 6 (six) equal monthly instalments. (3) the opposite party shall pay to the applicant the charges relating to maintenance and amenities of the tenanted premises @ 10% of the fair rent, that is, Rs. 1,687/- p.m. (Rupees One thousand six hundred eighty seven) only p.m. (4) the opposite party shall pay the share of municipal tax as an occupier of the premises in accordance with the provision of K.M.C. Act, 1980, (5) the applicant shall issue a written receipt in the prescribed form signed by him forthwith on receipt of the amount of rent and the other charges, (6) the applicant shall keep the tenanted premises in good and tenantable condition and take measures for due maintenance of essential supply/services comprised in the tenancy. (7) the opposite party shall abide by the provision of section 5 of the Act, 97. (8) The fair rent thus fixed shall be automatically increased by 5% every three years. Aggrieved by the order of the Rent Controller, the learned Tribunal was approached which passed the following order:-- 5. We are of the view that by way of computing both the components--'rent' and 'maintenance charges' as 'fair rent' and thereafter further imposition of maintenance charges on the fair rent @ 10% as per provision of P.T. Act and adding Occupiers' Share and Commercial Surcharges @ 20% each, on such fair rent, are wrong and not sustainable in the eye of law. For such calculation, fair rent assessed has been unduly inflated causing hardship to the tenant Hence, we are of the view the fair rent should be assessed by multiplying the amount of contractual/stipulated rent i.e. Rs. 2250/- by the factor 5 in terms of section 17(4A) of the P.T. Act and other charges should be paid by the tenant to discharge his statutory obligations. But the relevant rules with rate containing the liability of the tenant to pay Occupiers' Share and Commercial Surcharge need be clearly mentioned to avoid any scope of misunderstanding in future between the tenant and landlord fighting a legal battle for a long time as transpires from records and as we do not find any shortcut formula to straightway charge Occupiers' Share and Commercial Surcharge @ 20% each, on rent. 6. As to whether the premises is commercial or residential, we do observe that though the exclusive possession of the demised premises was given to the Trade Union, the possession must be held to be constructive possession held by it on behalf of the Bank for using the premises for trade union activities so long as the union used the premises for trade union activities. We do observe further that the rent for the same is being paid by the UBI Authorities and there was no previous objection and dispute in this regard. So we have no hesitation to hold that the use of the premises is commercial. In this regard, decision of the Hon'ble Supreme Court of India in Civil Appeal No. 2972/1992 in between the parties, is relied upon. 7. In view of the above facts and circumstances, we are inclined to hold that the learned Addl. Rent Controller, Kolkata was wrong in his calculation of 'fair rent' and hence the impugned order, being bad in law, is not acceptable. The impugned order dated 26.09.11 is, therefore, set aside. The learned Addl. Controller is directed to assess the fair rent afresh in the light of the observation made hereinbefore within a period of 3 months from the date of communication of this order by the applicant.
(2.) The landlord has challenged the order of the Tribunal.
(3.) Mr. Sanyal, learned Advocate, appearing for the landlord, submitted that a Division Bench of this Court in the case of Anita Das Gupta v. A.C. Sett (C.O. 3512 of 1983) relying upon a Supreme Court judgment held that service charge payable by the tenant is part of the rent because the services rendered by the landlord and enjoyed by the tenant is not independent of the tenancy. The Division Bench in the aforesaid case took the following view: We have carefully considered the rival contentions put forward before us. In the case of Karnani Properties the Supreme Court pointed out that the term 'rent' had not been defined by the Act. It was further held that it should be interpreted rather widely to include all that is payable as consideration for the tenancy. In the present case no doubt the landlord realises two amounts separately and under two receipts. One amount is being realised as rent and there is no dispute that the same is rent. But the other amount is said to be the service charges. If such service charges are really independent of the tenancy independently provided and paid for then of course it may very well be said to be not a part of the rent even on its wider connotation as laid down by the Supreme Court. Therefore, in our opinion the true test for us is to find out whether the services which are charged for are the independent services rendered and enjoyed not as part of the tenancy. Applying this test to the facts of the present case, we cannot but accept the contention of Mr. Bagchi. Here, we find that service charges are payable for the fittings and fans which expressly include water taps, commodes, cisterns, water basin, sinks, electric fans etc. all fixed in the suit premises. It is obvious that these are really integrated part of the tenancy which cannot be separated therefrom. It is true that the tenant/defendant offered to forego such services, but that is of no consequence because they were not the subject matter of an independent settlement and it was never intended to be so. Such services being integral part of the tenancy, whatever is payable on that account would be rent notwithstanding the fact that it is separately paid for. Such separation is more notional than real. In the case of Karnani Properties, it is no doubt what was payable was amount inclusive of all charges, viz-rent electricity etc. which in our case the amounts have been separately specified. But that in our opinion makes no difference. So long the sum or sums payable for all that is payable for tenancy, the same shall be rent in the wider sense. What really constitutes the tenancy is a matter of agreement between the parties to be determined with reference to their mutual intention. All things which are intended to be enjoyed as part of the tenancy would be part and parcel of the tenancy and all sums payable on that accounts would be rent. (See Sidney Housing Co. Ltd. v. Fishbury Borough Council,19621 AllER 460, R.G. Ram Chandran v. Royal & Co. All India Rent Control Journal 736 and Khemchand Dyalji v. Muhammabhai Chandbhai, 1970 AIR(SC) 102;