Laik, J. - (1.) On Section 7 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) sub-section (1) of which provides : "Where any sum or other consideration has been paid by or on behalf of a tenant to a landlord, in contravention of any of the provisions of this Act, the Controller may, on application made to him within a period of six months from the date of such payment order the landlord to refund such sum of the value of such consideration to the tenant or order the adjustment of such sum of the value of such consideration against the rent payable by the tenant," the opposite party founded his action, before the Rent Controller, Calcutta for refund of a sum of Rule.7000/- and odd which was stated to have been received in contravention of the provisions of the Act by the petitioner, who is an M.B., F.R.C.O.G. and a professor of National Medical College, Calcutta. The defence of the petitioner was principally two-fold. First, he had not received the said sum; and second, he was not the landlord, but his wife Srimati Minati Halder. She was however, no party to the proceedings.
(2.) The Rent Controller found the Doctor, petitioner, to be the landlord of the opposite party, firstly, because he generally talked with the tenants at the time of the inception of the tenancies and looked after the affairs of his wife, who was admittedly the owner of the disputed premises; and secondly because, there was an understanding between the petitioner and his wife that whatever the Doctor did, would be his wife's ratification. This is the summary of the whole evidence in the case. But on the other point viz. as to the receipt of the sum of Rule.7000/- he, after discussing the Report of the Forensic Science Laboratory, Government of West Bengal, came to the finding, that the stamped document showing the receipt of the said sum by the Doctor, was a fabricated one. The ability of the payment of the sum of Rule.7000/- by the opposite party for taking settlement of the disputed tenancy, was also not believed. Consequently the Rent Controller dismissed the application. The appeal taken by the opposite party, under Section 29 of the Act, however, was successful before the learned Judge, Third Bench, Court of Small Causes, Calcutta. He held on the said evidence that there was payment of Rule.7000/- by the tenant to the Doctor as a deposit against rent. But on the other point viz. as to whether or not the Doctor petitioner was a landlord, the learned Judge disposed of the same clumsily : "the question of ownership of the suit premises was a technical defence in this case and the learned Rent Controller has rightly disallowed it," after observing briefly that the Doctor "wasted much of his energy, in shifting his liabilities on the shoulder of his wife". Accordingly the petitioner was directed to refund to the opposite party the sum of Rule.7000/-. The instant application by the Doctor is against the said order, moved under the provisions of Article 227 of the Constitution.
(3.) Having given the best consideration to the arguments put forward by the learned Advocates of both sides I find it not possible to justify the finding that the Doctor petitioner is the landlord of the opposite party, which finding is arrived at not only on misreading the definition clause in Section 2(d) of the Act, namely, - "the landlord includes any person who, for the time being, is entitled to receive or but for a special contract, would be entitled to receive the rent of any premises whether or not on his own account," but also on misreading the aforesaid Section 7 and other provisions of the Act.;