S.R. Das Gupta, J. - (1.) This is an application for revision of an order passed by the District Judge of 24-Parganas. The matter arises out of a proceeding had before the Rent Controller for fixation of the standard rent. The petitioners before us are the landlords of the premises in question. The said premises originally was a vacant land, the area of which was about 13 bighas. Sometime in 1920 a lease was granted by the petitioners of the said land to one Mr. Gregory and another for 75 years It appears that Mr. Gregory and the other lessee obtained the said lease on behalf of a Company. They assigned the said lease to the said Company. The Company thereafter built some structures on the said land and fixed some machineries for the purpose of its business. It is alleged by the petitioners before us that one of the terms of the said lease was that if the lessees become insolvents then the leave would terminate. The company, it appears, went into liquidation sometime before 1934. A Liquidator was appointed. According to the petitioners the said liquidator sold the machineries that were fixed by the Company to the present opposite parties. The opposite parties thereafter became tenants of the premises under the petitioners. There is no dispute that the rent which was being paid by them was Rs. 162-8-0, being the rent which used to be paid by the original lessees for the said land The said opposite parties became such tenants sometime in July, 1934. In 1949 the petitioners applied for fixation of rent to the Rent Controller under section 9(e) of the West Bengal Premises Rent Control Act, 1948. To that application an objection was taken by the opposite parties, namely, that the structures belonged to them and what was let out was only the land and that being so, the Rent Control Act had no application to the present case and the said application for fixation of rent should be dismissed. The trial court accepted that contention and dismissed the application. Against that order there was an appeal to the Subordinate Judge, 4th Court, Alipore. The said learned Subordinate Judge by his order dated the 29th May, 1950, set aside the order of the learned Munsif and held that both the structures and the land were the subject-matter of the tenancy and they constituted the premises and as such the Rent Control Act applied to the present case and the application for fixation of rent was in order.
(2.) Against that decision there was a. motion to this Court and a Rule was issued. The Rule on final hearing was discharged, but in discharging the said Rule their Lordships Mookerjee and Guha, JJ., observed that at the fresh hearing it was open to the landlords to show that the rent which was being paid on the 1st December, 1941, was a nominal rent or such rent had been fixed for some consideration other than money rent. It was further observed that if the landlords failed to prove that the rent which was being paid in December, 1941, was neither nominal nor fixed for consideration other than money rent, then the rent was to be fixed without reference to any other extraneous evidence, but on the basis of the rent which was being paid in December, 1941, subject to further increase. It should be stated that the rent which was being paid in December, 1941, was Rs. 162-8. Those observations were made by their Lordships because at the hearing of the motion it was pressed on behalf of the tenants that there was no occasion for an enquiry and that the standard rent under the Rent Control Act, 1950, should be ascertained with reference to Schedule "A" of the Act and on behalf of the landlords it was contended that under section 9(e) of the Rent Control Act, 1950, it was open to the landlords to show that the rent which was being paid on the 1st December, 1941 was a nominal rent or such rent which was fixed for some consideration other than money rent. Thereafter the matter came back before the learned Additional Rent Controller and by his order dated the 25th February, 1952, he fixed the rent at Rs. 186 per month. He came to that conclusion on the basis of the rent which was being paid in December, 1941, that is to say, Rs. 162-8 as the basic rent. The learned Additional Rent Controller in arriving at that decision held that the rent was not a nominal rent as contended by the landlords. Against that decision an appeal was preferred to the District Judge of 24-Parganas. The learned District Judge upheld the decision of the Additional Rent Controller and dismissed the appeal. It is against that decision that the present application for revision has been made to this Court.
(3.) The learned Advocate appearing for the petitioners contended before us that the rent which was fixed in this case was the nominal rent and as such could not be the basis for fixing the present rent. He contended further that what happened was that the respondents opposite parties had only purchased the machineries from the Liquidator and after their purchase they came and approached the landlords and asked for sometime to enable them to remove those machineries and during the time they had to remain on the premises for the purpose of removing the said machineries they were agreeable to pay some rent to the landlords. The landlords as a consideration for their staying in the said premises for the said purpose fixed the said rent. In other words, the case as presented before us by the learned Advocate for the petitioners was that the rent which was fixed, that is, Rs. 162-8 was a nominal rent and was fixed for some consideration other than money rent. On both, these grounds, he contended, the order of the learned District Judge should be set aside. The learned Advocate also submitted before us that the fact that nothing was charged for the structures and godowns which are admittedly on the premises shows that the rent fixed was only a nominal rent. In our opinion both the grounds urged by the learned Advocate must fail. In the first place the fact that nothing was charged for the structures and godown would not, in our opinion, make the rent a, nominal rent. The learned District Judge in his judgment has referred to a decision of the English Court, reported in [(1913) 3 K.B. 570 (Governors of Stepney and Low Educational Foundation v. Commissioners of Inland Revenue) and relied on the observation made therein on the question as to what constitutes a nominal rent. The test laid down by their Lordships in the said case was that where a rent is paid to the landlord merely as an acknowledgement of his right as a landlord, that would be a nominal rent. The learned District Judge applying that test held that Rs. 162-8 which was being paid by the tenants to the landlords could not be called as having been paid by way of mere acknowledgement of the rights of the landlord. With this view we are in entire agreement. The rent may be low, but that would not make it a nominal rent. It cannot be said, as the learned District Judge has pointed out, that the rent was paid by way of acknowledgment of the; rights of the landlords. We cannot accept the learned Advocate's contention that as nothing had been charged for the structures and the godowns and only the original rent of the land was maintained, the rent so paid would be a nominal rent. This contention is, in our opinion, wholly unacceptable.;