Arindam Sinha, j. - (1.) These two petitions under article 227 of the Constitution of India, tagged together, have been assigned to this Bench on a reference, to answer the following question:- "Whether the Civil Court can direct the tenant to pay the occupational charges, damages, mesne profits during pendency of the eviction proceeding at the prevalent market rate in excess of the contractual rent."
(2.) Learned single Judge dealing with these petitions, by order dated 23rd July, 2018 though found such question was answered by a Division Bench of this Court in K. K. Saha and Co. Pvt. Ltd. vs. Ashok Agarwal reported in (2018) 1 CHN 497 but by reason of one of the petitioners having moved Supreme Court under article 136 of the Constitution of India and obtained order dated 9th February, 2018 in Special Leave to Appeal (C) 25607/2017 (K. K. Saha and Co. Pvt. Ltd. vs. Ashok Agarwal), was of view said question is open for reference yet again. Hence, this reference on same question. Supreme Court by order dated 9th February, 2018 (supra) said, inter alia, as follows:- "It is stated by learned counsel for the petitioner that even though if the West Bengal Premises Tenancy Act, 1997 is not applicable the plaintiff may be able to seek the rent/user charges at higher than the applicable rent, the plea that the Act was not applicable not been gone into by the High Court. The High Court has proceeded on the footing that the said rent Act is applicable without going into the said question. In these circumstances, we permit the petitioner to move the High Court so that the High Court may now determine whether the said rent Act is applicable and in case the same is not applicable, the High Court may further consider the matter in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case."
(3.) Mr. Suman Dutt, learned advocate, assisted by Mr. Shibasish Sengupta, learned advocate, appears on behalf of petitioner in C.O. 3777 of 2016 and submits, the application made by his client was for direction on defendant to pay contractual rent/occupational charges. He submits, unlike provisions in West Bengal Premises Tenancy Act, 1997, provisions in Transfer of Property Act, 1882 do not provide for payment of agreed rent on termination of tenancy by notice issued under section 106 thereof. His client's application should have merited an order in line with view expressed in Kanak Projects Limited vs. Oil and Natural Gas Corporation Ltd. reported in (2014) 2 CHN 405 .;