Judgment (Oral):
1. A question of edifying importance, impinging on the ‘philosophy’ of a piece of rent legislation enacted in the State of Assam, namely, the Assam Urban Areas Rent Control Act, 1972, for short, the has surfaced in the instant application. Whether an ‘urban tenant’ as a class is recognizable as a ‘weaker’ section of the society to invoke any statutory or constitutional presumption inhering liberal interpretation of the in his favour What is the reality Does the not really achieve merely a social purpose and strike reasonable balance between competing considerations affecting rights of not groups but individuals unrelated to their economic status
2. The kernel facts of the case lie within a narrow campus. The plaintiff, who is the opp. party in this revision, instituted a suit for eviction of the petitioner from a house which was let out to him at a monthly rent of Rs. 100/- and also for recovery of arrear rent. The trial court decreed the suit in toto but in appeal the decree was modified in so far as the arrear rent was concerned. Because, in the meantime after institution of the suit “standard rent” as contemplated under the had been fixed and the amount of arrear was accordingly determined on the basis thereof, namely, Rs. 92/- p.m.
3. Mr. B.K. Acharyya, learned counsel for the petitioner has assailed the jurisdictional competence of the trial court to pass the decree against the petitioner for his ejectment from the tenanted house on a short but substantial ground and indeed on admitted facts. It is not disputed by Mr. Acharyya that the tenant petitioner did not pay any rent whatsoever, indeed, even the “standard rent” fixed by the court. Because, according to him he was not liable to pay the same as he had taken the matter in appeal. Reliance is placed by learned counsel on the expression “lawfully due” occurring in clause (e) of Sec. 5(1) of the. However, before I quote the said provision it is necessary for me to extract partially some other relevant provisions having a material bearing on the point raised:
“2. Definition: In the, unless there is anything repugnant in the subject or context:
(a) “Standard rent” in relation to any bouse means the rent calculated on the basis of annual payment of an amount equal to seven and half percent of the aggregate amount of the estimated cost of construction and the market price of the land together with the total municipal taxes payable in respect of the bouse and Urban Immovable Property Tax under the Assam Urban Immovable Property Tax Act, 1969, and monthly rent shall be equal to one twelfth of the annual payment so calculated.
3. Fair Rent:
(1) Subject to the provisions of this Act and notwithstanding any contract to the contrary, no landlord shall be entitled to charge rent for any house at a figure higher than the standard rent.
(2) If at any time after five years from the date on which a house is in continuous occupation of a tenant, the market price of the land and estimated cost of construction of the house increases by more than twenty-five percent on the basis of the value of land and cost of construction of the house on the date of preceding fixation of fair rent, then the landlord shall be entitled to have monthly rent increased by an amount not exceeding one twelfth of the seven and half per cent of the increase in the market price of the land and cost of construction. on the date of preceding fixation of fair rent, from the date as may be prescribed subject to a maximum of fifty per cent of the preceding standard rent.
4. Procedure for determination of fair rent:
(1) If any dispute arises regarding the rent payable in respect of any house, it shall be determined by the court.
(2) The Court shall on application made by either the landlord or the tenant issue notice on both the parties, and after making such enquiry as it thinks fit determine the monthly rent for the house in accordance with the provisions of Sec. 3 and the rent so determined shall be binding on both the parties.
5. Bar against passing and execution of decree and orders for ejection:
(1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy.
Provided that nothing in this sub-section shall apply in a suit or proceeding for eviction of the tenant from the house:
(e) Where the tenant has not paid the rent lawfully due from him in respect of the house within a fornight of its falling due.
(4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may within a fortnight of its becoming due, deposit in Court the amount of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section.”
4. In my opinion if there is any single golden rule of construction of interpretation of statutes it is that the court is obligated to give effect to legislative intent albeit in the context of the constitutional mandates. Of course there are subsidiary rates and which also the court must bear in mind and one such rule is that such intent has to be determined not only on reading the various provisions of the in its entirety but also from other circumstances, such as, the legislative history. A full Bench of this Court in Kali Kr. Sen (AIR 1969 A & N 66) had occasion to consider in detail the legislative history of the. Goswami, J. (as his Lordship then was) observed:
“The legislature having conferred benefits on the tenant could not have intended to make it a one way traffic absolute.”
It was further observed that the was intially and primarily meant to give “a limited protection to the tenant against unscrupulous enhancement of rent” and this object continued its primacy in successive enactments.
What was further observed also bears extraction:
“.............. a further obligation has been imposed by the Assam Act in order to invoke a bar against his eviction to deposit the refused rent in court within the time prescribed therein. This a salutary provision by which the law abiding tenants are protected from eviction at the hands of the unscrupulous landlords who may intend to eject tenants with the ulterior motive of enhancing the rent. At the same time law has provided for some consideration for the landlords who should not be deprived of the use and occupation of the house without some return from the property in a regular way.........”
This decision was recently considered by this Court in Mazid’ Mir’s case (1983) 1 GLR (NOC) 29 wherein it was observed;
“Statutory liability of the tenant u/s 5 of the Assam Act as respects, payment of rent and ejectment for non-payment is relatable only to his occupation of the premises.”
5. Mr. Acharyya has placed reliance on certain decisions to buttress his submission to which I may refer now. Before that, however; it would be pertinent to observe that in Dhanpal Chtttiar (AIR 1979 SC 1745 ) their Lordships noted:
“Many State Rent Acts have brought out considerable changes in the rights and liabilities of the lessee and lessor largely in favour of the lessor, although not wholly.”
[emphasis added]
The Rent Acts did not totally abrogate the general law, namely, the T.P. Act, is obviously the ratio of the decision. It also lends weight to the premises that there is no constitutional presumption that ‘urban tenants are to be considered as the weaker section of the society. Seven learned Judges of the apex court observed in this case that these enactments are to be construed merely as social “legislation meant for the protection of the needy, not necessarily the so called weaker section of the society”. A potential or portent appeal to the Directive Principles was thus neatly negatived. Indeed, it is not difficult to visualise the myriad social panorama of the urban society. Let us take two extreme cases. First, the case of a young widow of a war hero who may have as her sole possession a mere two roomed tenement of which she is forced to let out one room for bare subsistence of the family. To be assured of regular payment of rent may be a life and death question for the destituted family. Consider again the case of a mult-national corporation with multi dollar capital which can hardly lay a claim to be ‘urban poor’ yet enjoy the luxury of not paying rent to its none-too rich landlord. It is common knowledge that towns and cities are hubs of commercial activities where such bodies reside and thrive.
6. In a recent decision in O.P. Kathpalia’s case, AIR 1984 SC 1744 , their Lordships held that the court should first fix the standard rent or determine the interim rent so as to enable the tenant to the deposit the future rent because it was necessary to do so “to give effect to the purpose and object of the”. It was not held however, that even without payment of rent or any recompense for his occupation of the premises the tenant shall be entitled to protection against eviction, albeit under the Delhi Rent Act. In P.V. Shetty (AIR 1982 SC 83 ) their Lordships construing the provisions of Karnataka Rent Act, observed that when a proceeding for fixation of rent is pending and there is also pending a proceeding in a suit for eviction of the tenant the later proceeding ought to be stayed otherwise the other proceeding becomes infructuous. This decision was referred to and relied on by this Court in Satya Brata Ghose vs. Rakhal Chandra, Civil Revision No. 254/84 decided on 25.3.83. Similar view was taken in an earlier decision of this Court reported in 1980 Gau (NOC) 161 (Budheswar vs. Haripada), But the question which is posed in the instant case did not crop up in those cases. As observed in P.V. Shetty (supra), the question was, how to “balance the equities” and adopt a “just and fair approach” where an application to stay ejectment suit was made.
7. Reliance was also placed by Mr. Acharyya on the decision reported in AIR 1976 Gau. 54 (Chandan Mall vs. Abdul Gani). What happened in this case is that an ex-parte decree for eviction had been obtained during the pendency of ‘fair rent’ proceeding. Execution of this decree was challenged and the court observed that in view of the provisions of Sec. 5(1) proviso (e) it was the duty of the court to find and record in the decree, albeit an ex-parte, that the rent decreed was allowable under the and that there was a default on the part of the appellant in depositing the rent within the fortnight of its falling due. However, there is an observation in the said decision which supports the stand taken by Mr. Acharyya. Baharul Islam, J. (as His Lordship then was) observed that the expression “rent lawfully due” meant “fait rent” but, in my opinion, this stray observation made out of the context of the lis has to be limited to the facts of the case. Indeed, it was not meant to be the ratio of the decision. It was a mere obiter dictum.
8. I may now examine the relevant provisions of the extracted above to cross-check if the contracted rent can be said to be rent not “lawfully due” as contended by Mr. Acharyya, relying on the above observation of Islam, J.. The obligation of the tenant to occupy the premises on payment of “rent” is underwritten in Sec. 5(1) and such rent, therefore until ”disputed“ is the ”rent“ payable thereunder. An agreed rent or contracted rent would certainly be rent ”lawfully due“ for the simple reason that contractual obligations are not totally obliterated by the which is indicated by the expression” subject to the provisions of this Act “occurring in Sec. 3(1) of the. Neither clause (1) nor the proviso (e), of Sec. 5, speaks of either ”fair rent“ or standard rent”. Instead while in one case “rent” is to be “to the fall extent allowable under this Act”, in the other case, to be “lawfully due”. The non-obstante clause “notwithstanding any contract to the contrary” occurring in Sec. 3(1) is obviously not the controlling clause as its effect is whittled down by the expression which it follows, namely, “subject to the provisions of the”.
9. Section 3 does not empower the tenant to fix or to dictate the “standard rent”. He cannot insist on the landlord to accept any “rent” tendered by him till such time as he has moved the court u/s. 4 and “standard rent” is “determined by the court”. On his mere raising a “dispute” his liability to pay contracted rent under the lease is not wiped out. U/s. 3(1) the tenant is not given the licence to refuse to pay the contracted rent to the landlord until “standard rent” is fixed by the court so as to relieve him of the statutory liability cast on him u/s. 5(1) to “perform the conditions of tenancy”, mainly according to S. 108(1) of the T.P. Act, pay to the landlord the agreed rent. The expression “full extent allowable under this act” must be read in the context of the requirement to “perform the conditions of the tenancy”. The existence of a “dispute” about quantum of rent is a condition-precedent merely to initiation of a proceeding u/s. 4 and not to an action for ejectment u/s. 5(1). Sub-section (4) of Sec. 5 also supports this construction because thereunder an obligation is cast on him to deposit rent in court to claim protection against eviction. It may be noted in this connection that in the Assam Act, unlike Delhi Act (as noted in O.P. Kathpalia, (supra) there is no provision for fixation of “interim rent”. Sub-sec. (4) is a substantive provision like sub-sec. (1), unlike proviso (e) and it must, therefore, be allowed to have its full play if legislative intent underlying the provision of Sec. 5 has to be given full effect.
10. According to me, proviso (e) of Sec. 5(1) cannot be read in isolation and must be construed in its context and setting and accordingly due attention must be paid to the other provisions of the referred above to determine the meaning of the term “rent lafully due” used therein. I am of the firm opinion that mere institution of fair rent proceedings u/s. 4 or the pendency thereof does not in any way indent or impair the jurisdiction of the court u/s. 5(1) to pass an ejectment decree thereunder. I have no doubt that the opening expression of Sec. 3(1), namely, “subject to the provisions of this Act” which pre-conditions the expression following it, namely, “notwithstanding any contract to the contrary”, gives a clue to the understanding of the expression “rent lawfully due” to be found in proviso (e) of Sec. 5 and also to “full extent allowable under the” of its subsection (1). It is to be noted that proceedings u/s. 4 can be taken not only by the tenant but also by the landlord. The tenant cannot, therefore, contend that though he was inducted on the premises on the condition of paying an agreed rent such rent should not be considered “rent lawfully due” until and unless “standard rent” is determined in respect of the premises concerned. Because it is to be noted that the landlord cannot also frustrate tenant’s right under sub-sec. (4) of S. 5 to offer him the contracted or agreed rent by merely filing an application for fixing fair rent u/s 4. Equities on both sides must be balanced and a reasonable construction must be put on S. 5 to effectuate legislative intent which, as laid in Kalikumar Sen (supra), projects the concern of the legislature to protect only “law abiding tenants”, in other words, those who do not take law into their hands by refusing to pay any recompense for the benefit derived by them from the occupation of the premises. It cannot be gainsaid that “purposive” interpretation is the hallmark of the modern trend but judicial duty in this regard flows also from the necessities of a just social order to adopt a reasonable construction consonant with justice and fair play.
11. I wonder if this is not the right occasion to recall the maxim hallowed by time and tradition ex-postulating judicial role in this regard. It has always been accepted that law ever intends that which is reasonable-Lex semper intendit quod convenit rationi. Equally important and deeply entrenched is the proposition that statutes must be attributed a sensible meaning- Ut Res Magis Valeat Quam Pereat. Indeed Maxwell (12th edn. p. 203) has observed:
“Not only are unreasonable or artificial or anomalous construction to be avoided, it appears to be an assumption (often unspoken) of the courts that where two possible constructions present themselves, the more reasonable one is to be chosen.”
12. In ray opinion it would be unreasonable and anomalous to accept a construction to defeat the main object and purpose of the as would result from refusal to enforce against the tenant the statutory duty enjoined on him under sub-sections (1) and (4) of S. 5 in regard to regular and timely payment of rent and making the same dependant on the uncertain contingency of fixation of “fair” or “standard” rent in a proceeding which may not always be bonafide but rather designed to stall eviction. If the tenant would not pay any rent, to allow him to occupy the house gratis indefinitely would be patently unfair and unreasonable in that the owner (landlord) would thereby be deprived of his right to obtain vacant possession thereof whether for his own shelter or for its use as his means of livelihood.
13. In a case where “standard rent” is already determined u/s 4 for non-payment thereof only and not the contracted rent the tenant incurs liability to his eviction under proviso (e) of sub-section 5(1) as indeed has happened in the instant case. I do not see any force in Mr. Acharyya’s contention that because an appeal is pending the liability does not arise despite judicial determination having already taken place u/s 4 which has been accepted by the trial court in passing the impugned decree for eviction as even that rent had not been deposited by the petitioner. Such a tenant must be considered to be one who has not paid rent “lawfully due” from him and decree for his eviction could, therefore, be validly passed. It is true that when a “dispute” about question of rent or the question of “fair rent” is raised the same may be decided in the ejectment suit itself but in the instant case the trial court accepted as fair rent the amount already determined in a collateral proceeding and accordingly decided the “dispute”. I see, therefore, no force in the contention that pendency of the appeal in any way has affected the jurisdiction of the trial court to pass the impugned decree. The decision relied on by Mr. Acharyya in Nirmalendu Basu, AIR 1975 Cal 418 , does not in my opinion, support his contention that the petitioner was entitled to suspend payment of rent during the pendency of the appeal. What was held in that case was that a tenant is entitled to suspension of rent when the landlord disposes his tenant from any portion of the property leased against his will or consent by depriving him of the benefit or of such property so long as be does not get back the portion from which he is dispossessed. This decision supports the view taken by this Court in Mazid Mir (supra) that tenants liability to pay rent or recompense is indefeasible and it is related immediately and indispensably to the factum of his possession of the tenanted premises.
14. I have no doubt that in the instant case there was no want of jurisdiction in the trial court in passing the decree of eviction against the petitioner. He had not paid the agreed ient prior to institution of the suit and he continued to default in payment of rent, albeit, later, of the “standard rent” fixed by the court. The decree in so far as it concerns his eviction must, therefore, be upheld but care has to be taken of Mr. Acharyya’s grievance in respect of another part of the decree which relates to quantum of arrear rent. There is sufficient force in Mr. Acharyya’s grievance that the decree in so far as arrear rent is concerned which is based on the determination of “standard rent” fixed in this case at Rs. 90/- per month should not be allowed to be executed inasmuch as the said decision rendered in a separate proceeding was sub-judiced in appeal and must abide by the result in the appeal.
15. In this view of the matter this application fails to the extent that the decree for eviction is upheld but I direct that the decree for arrear rent shall not be executed now and shall be considered subjected to the decision to be rendered in the appeal taken by the petitioner challenging correctness of the amount determined as standard rent payable by him.
16. In the result the application is dismissed but with the above direction. However, in the facts and circumstances of the case, I make no order as to costs though I have rejected the main prayer challenging the decree for ejectment because an important question of law was agitated and has been decided.
