Subrata Talukdar, J. - (1.) In this application under Article 227 of the Constitution of India the petitioners challenge the order impugned No. 63 dated 28th July, 2015 passed by the Ld. 5th Small Causes Court at Calcutta in Ejectment Suit No. 276 of 2006. The petitioners are the plaintiffs in the ejectment suit and, in the suit, pray for eviction of the sole defendant/the opposite party (for short OP) herein from the suit property being one room on the 3rd Floor of Premises No. 6, Moulana Shawkat Ali Street (formally Coolotala Street), Kolkata-700073 (also known as the suit property).
(2.) The case, according to the plaintiffs/petitioners, is as follows:- (a) That by an agreement dated 1st April, 1989 the defendant/OP was inducted as a tenant in the suit property at a monthly rental of Rs. 540/- payable according to the English calendar month. The tenancy is a commercial tenancy and the rent became payable in advance within the 10th of the current month. (b) According to the plaintiffs/petitioners the defendant/OP was also liable to pay the municipal charges, municipal surcharges, maintenance charges and property taxes as revised from time to time. With the coming into force of the West Bengal Premises Tenancy Act, 1997 (for short the 1997 Act), the rent became enhanced to Rs. 702/- from the month of May, 2001. On an around 7th February, 2003 the plaintiffs/petitioners issued a notice under Section 20 of the 1997 Act for enhancement of both the rent as well as the other charges. The plaintiffs claimed rent at Rs. 1050/- per month with effect from 1st April, 2003. (c) On failure of the defendant/OP to pay the enhanced rate of Rs. 1050/- from April, 2003, the tenancy was determined under Section 6(4) of the 1997 Act by notice dated 19th May, 2006. Such notice was followed by filing of the said Ejectment Suit No. 276 of 2006. (d) In the suit the defendant/OP entered appearance and filed applications under Sections 7(1) and 7(2) of the 1997 Act. The plaintiffs/petitioners filed their objections to the application under Section 7(2). The defendant/OP also applied before the Rent Controller (for short RC) under Section 21 of the 1997 Act for deposit of rent. (e) The application of the defendant/OP under Section 7(2) of the 1997 Act was decided by the Ld. Small Causes Court by order dated 3rd April, 2007. In the meantime the application under Section 7(1) also filed by the defendant/OP was allowed by the Ld. Small Causes Court on 13th November, 2006 permitting the tenant to deposit the current rent and thereafter to continue to deposit such rent month by month. (f) Challenging both the orders under Sections 7(1) and 7(2) passed by the Ld. Small Causes Court, the plaintiffs/petitioners filed CO 3880 of 2007 before this Hon'ble Court. By order dated 11th April, 2008 an Hon'ble Single Bench directed the Ld. Small Causes Court to consider afresh the stand taken by the plaintiffs that the tenant is liable to pay municipal taxes and other charges. The Hon'ble Single Bench held that such consideration should take place after giving an opportunity to both the parties to adduce evidence. (g) By the order impugned dated 28th July, 2015, the Ld. Small Causes Court was pleased to reconsider the application filed by the defendant/OP under Section 7(2) in compliance with the direction of the Hon'ble Single Bench dated 11th April, 2008. Upon such reconsideration the Hon'ble Single Bench was pleased to allow the said application under Section 7(2) and directed, inter alia, the defendant to continue paying the monthly rent and maintenance charges as already paid till March, 2003 and, such rate would also apply to the period of default claimed by the plaintiffs in the suit being April, 2003 to November, 2006. The Ld. Small Causes Court also directed the defendant/tenant to continue the deposit of the current rent at the above rate within the 15th of each succeeding month. (h) Ms. Noelle Banerjee, Ld. Advocate led by Sri Sakya Sen, Ld. Counsel argues before this Court that the order of the Ld. Small Causes Court dated 28th July, 2015 is legally unsustainable. Ld. Counsel point out that the Ld. Trial Court ought to have taken a strict statutorily compliant view of the application filed by the defendant/tenant/OP under Section 21 of the 1997 Act. According to Ld. Counsel, the Ld. Trial Court failed to consider that the sine qua non of an application under Section 21 is the tender of rent as provided under the law. The Ld. Trial Court utterly failed to take notice of the fact that the rent tendered between April, 2003 to October, 2006 was not in terms of the statute or, even in terms of the contract entered between the parties on the 1st of April, 1989. (i) Ld. Counsel for the petitioners also argue that the Ld. Trial Court out to have taken judicial notice of the fact that both Sections 7(1) and 7(2) cannot be invoked together. According to the petitioners, the Ld. Trial Court erred in not deciding the increase in the rent which was required to be a part of the determination of rent provided under Section 7(2) of the 1997 Act. The Ld. Trial Court also failed to consider that the charges and taxes payable under the Kolkata Municipal Corporation (KMC) Act, 1980 in respect of the suit property are required to be collected first by the plaintiffs/landlords from the defendant/OP/tenant prior to its payment to the Municipal Corporation. The Ld. Small Causes Court ought to have held that the plaintiffs/petitioners have produced sufficient documents for disclosure of the taxes and dues of the KMC. Similarly, the Ld. Trial Court failed to appreciate the requirement under the contract of tenancy for the plaintiffs to collect the surcharge payable under the KMC Act, 1980. (j) Ld. Counsel for the petitioners further argue that the claim to enhanced rent is embodied under Sections 5(7) and 5 (8) of the 1997 Act. In view of the above noted provisions, the failure of the defendant/OP to pay the enhanced rent, shall have the effect of determining the tenancy. Such determination of the tenancy also has its basis in the fact that the monthly rent was never tendered by the tenant/OP within the contractually fixed time period. (k) Ld. Counsel for the petitioners further point out that due to the nonavailability of RC during the period in issue, the plaintiffs correctly approached the Civil Court, being the Ld. Small Causes Court, already in seisin of the matter to consider the effect of non-tender of the enhanced rent by the tenant/OP. It is the duty of the tenant/OP to comply with both his statutory and contractual obligations. Such statutory and contractual obligations include within their compass the payment of municipal, maintenance and connected taxes. (l) Ld. Counsel for the plaintiffs also argues that the mere withdrawal of deposits tendered by the tenant/OP to the RC cannot be regarded as a waiver of the statutory and contractual rights of the plaintiffs. The burden to determine the proportionate liability under the Municipal Act lies with the OP/tenant himself and such liability can be determined under the provisions of the statutory municipal law. Such statutory municipal law does not contemplate any default on the part of the tenant/OP.
(3.) Arguing on behalf of the defendant/OP, Sri Sauradipta Banerjee, Ld. Counsel argues the following points:- i. That under Section 20 of 1997 Act it is, inter alia, provided for a notice of increase of rent. Sub-Sections 4A and 4B were added under Section 17 of the 1997 Act by the West Bengal Premises Tenancy (Amendment) Act, 2002 (for short the 2002 Amendment Act) to take retrospective effect from 10th July, 2001. The notice to increase the rent under Section 20 contemplates the situations and the rate of rent in respect of commercial tenancy as provided by Sections 17(4A) and 17 (4B) of the 1997 Act. ii. Relying on several judicial authorities in the matter of AVO Engineers (Pvt. Ltd.) v. India Ice Aerated Water and Coal Storage Company Ltd. reported in 2006 (2) CHN 384 ; Punjab National Bank Ors. v. Gulab Chand Bhora Anr. reported in 2008 (3) CHN 654 and Pallawi Resources Ltd. v. Protos Engineering Company Pvt. Ltd. reported in 2010 SAR (Civil) 368 , Ld. Counsel for the tenant/OP argues that the notice to enhance the rent under Section 20 of the 1997 Act cannot automatically lead to an action for enforcement of such notice. Sri Banerjee points out that pursuant to the notice under Section 20, the tenant has the right to approach the RC for fixing the fair rent. No enforceable right to claim the enhanced rate and, on failure of the tenant to pay such enhanced rate, a suit for eviction can follow automatically. Sri Banerjee further argues that till the RC determines the fair rent upon service of a notice under Section 20, no mandate for increasing rent under Sections 4A and 4B of Section 17 can come into operation. iii. Referring to facts of the present case, Sri Banerjee submits that the plaintiffs/petitioners have proceeded on an erroneous premise of law. Such erroneous premise stems from the claim to eviction filed by the plaintiffs/petitioners on the basis of the enhanced rent in respect of which notice was given on behalf of the plaintiffs on the 7th of February, 2003. Such notice for enhanced rant was followed by a legal notice dated 9th May, 2006 for eviction on the ground that the tenant/OP is a defaulter. The Ejectment Suit No. 276 of 2006 E claims a decree for recovery of khas possession of the suit property on the platform of default in payment of enhanced rent by the tenant/OP beginning the month of April, 2003. iv. Sri Banerjee further submits that the plaintiffs/petitioners are not responsible for paying the municipal charges, taxes etc. since the plaintiffs are not the owners of the property. The plaintiffs/petitioners are merely the lessees for 99 years of the property inclusive of the suit property from the Official Trustees which is the Government of West Bengal. The municipal tax bills, charge etc. stand in the name of the Official Trustees and the amounts tendered to the municipality are so tendered by the lessees/petitioners/plaintiffs on behalf of the Official Trustees. Sri Banerjee further points out that the Lease Deed between the petitioners/plaintiffs and the Government of West Bengal has not been produced in Court and, in the absence of such Lease Deed, it is not possible for the Court to come to a conclusion of the specific rights of the lessees to claim the proportionate municipal taxes. v. Sri Banerjee, further taking this Court to the contents of the claim dated 1st April, 1989, submits that the agreement specifically provides that the monthly rent of Rs. 540/- shall be inclusive of existing municipal rates and taxes. However, in the event of any enhancement in such rates or taxes in future the tenant shall pay his proportionate share which will be added to the rent for the time being paid by the tenant and, payable along with the rent within the stipulated contractual period. Also from the contractual agreement Sri Banerjee clarifies that the monthly rent does not include the municipal surcharge and such surcharge shall be payable to the landlords whenever demanded. Therefore, Sri Banerjee makes the point that since the landlords/plaintiffs were always in seisin of any increase in the municipal rates and taxes as well as under the contractual obligation to notify the surcharge to the tenant, any enhancement in such municipal rates and taxes as well as surcharge could only take place after putting the tenant to reasonable notice. Such reasonable notice does not contemplate a situation like in the present case when the plaintiffs proceed directly to an action for eviction on the basis of a default surmised through a notice under Section 20 of the 1997 Act. vi. Sri Banerjee makes the further point that the claim of the plaintiffs/petitioners that the defendant/OP has not deposited the rent in terms of the contract and also was required to make deposits in terms of Section 21 of the 1997 Act does not stand to much reason in view of the fact that the rent claimed to be in default beginning April, 2003 were all deposited before the RC and such rents have been withdrawn by the plaintiffs without demur from the RC. It is also on record and discussed by the Ld. Small Causes Court in the order impugned dated 28th July, 2015 that receipts in respect of the deposits regularly tendered by the tenant/OP till March, 2003 were handed over by the plaintiffs/petitioners. Subsequently, on the failure of the plaintiffs/petitioners to accept the rent beginning April, 2003, such rent was re-tendered by way of a money order and thereafter deposited with the RC.;