CORPORATION OF CALCUTTA versus LIFE INSURANCE CORPORATION OF INDIA

CORPORATION OF CALCUTTA

LIFE INSURANCE CORPORATION OF INDIA

April 9, 1970

[J. C. SHAH AND K. S. HEGDE, JJ.]

West Bengal Premises Rent Control (Temporary Provisions) Act (11 of 1950), s. 2(10) (b) and Calcutta Municipal Corporation Ac11 (33 of 1951), s. 168(1}-Premises let out-Sub-letting for. larger 1·ent by tenant-Fixation of annual value-Standard rent payable by tenant or rent r.!Ceived by lenant from sub-tenants to be considered.

The respondent was the owner of building whose tenant was paying ""'°tain amount as rent. No standard rent under s. 9 of the West Bengal Rent Control (Temporary. Provisions) Act, 1950 was fixed but the amount of rent was such that it would have been fixed as standard rent if application for such fixation was made under that Act. The tenant had sub-let the premises and was receiving much larger sum from the sub-tenants. For the purpose of assessment to the consolidated rate under s. 168(1) of the Calcutta Municipal Corporation Act, 1951, the annual rent at which the building might be reasonably expected to be let from year to year should be taken into consideration. The appellant determined the ann.ual value of the building on the basis of the rental received by the tenant from its sub-tenants. In appeal by the respondent the Court of Small Causes held that only tho rent paid by the tenant to the respondent should be taken as the basis; and the High Court confirmed the order.

In appeal to this Court it was contended that under the proviso to · s. 168 (I), if standard rent had been fixed under the West Bengal Rent Control (Temporary Provisions) Act, it would form the. basis of annual rent, but, if there was no such fixation, the appellant was competent to take into account all relevant circumstances including the rent at which the buildini: \\'.as sub-let.

HELD: (1) The corresponding section, s. 127(a) of the Calcutta Municipal Act, 1923, did not contain proviso similar to the one in s. 168(1) of the 1951-Act. But the decision in Corporation of Calcutta v. Smt. Padma Debi, [1962] 3 S.C.R. 49, interpreting s. 127(a) of the 1923-Act and holding that the annual value should be determined only on the footing of the standard rent applies. In determining th~ annual rent statutory limitation of rent circumscribes the scope of the bargain in the market and the rent at which the premises could be let out from year to year can ne\.·er exceed the standard rent. Under s. 2(10) of the West" Bengal Premises Rent Control {Temporary Provisions) Act, when there is no order of the Controller fixing the standard rent under s~·9 of that fixed Act, the standard. rent would if application were made for be the amount at which it sue,h fixation. Therefore, in thewou1d have been 1 present case the annual rent at which the building, might reasonably be expected to be let from year to year, would be rent which the tenant was paying to the respondent and not the rent which the tenant was receiving from the sub-tenantS. [251 D-H] ·

(2) Section 193 of the Calcutita Municipal Corporation Act, which only provides for apportionment of consolidated rates, is irrelevant in determining the annual value. [252 G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1559 of 1966.

Appeal from the judgment and order dated February 15, 1963 of the Calcutta High Court in Appeal from original order No. 6 of 1959.

P. K. Mukherjee, A. N. Sinha and Rathin Das, for the appel-lant.

G. L. Sanghi and K. L. Hathi, for the respondent.

The Judgment of the Court was delivered by-

Sbah, J, Messrs. A. Firpo Ltd. held as tenants premises No. 11, Government Place East, Calcutta, belonging to the Asiatic Assurance Company Ltd., under. lease dated August 6, 1941, at monthly rental of Rs. 2,000. The rent was increased .by mutual agreement with effect from November 1953 to Rs. 2,800 per month. Messrs. A. Firpo Ltd. had sublet major part of the premises to five different tenants and the aggregate rent received from the sub-tenants amounted to Rs. 4,520. The Corporation of Calcutta assessed the annual value of the premises at Rs. 32,076 for six years prior to Aprill, 1955. With effect from April l, 1955, the. Corporation assessed the annual value of the premises at Rs. 62, 7 61. The objection raised by the owner against the determination of annual value was rejected by the Special Officer of the Corporation. In appeal by the Life Insurance Corporation of India · (which had statutorily acquired the rights of the owner) the Coµrt of Small Causes assessed Rs. 30,240 as the annual value. The order was confirmed in appeal to the High Court under s. 183(3) of the Calcutta Municipal Cor-F poration Act, 1951. With certificate granted by t)le High Court, this appeal has been preferred.

In this appeal the Corporation claims that in determining the annual value of the premises. the assessing authority was entitled to take into consideration the rental received by Messrs Firpo Ltd. from its sub-tenants. This Court in The Corporatio1' of Calcutta v. Smt. Padma Debi and Others([1])-'a case arising under the Cal-cutta Municipal Act, 1923-held that in assessing the annual value under s. 127(a) of the Calcutta Municipal Act, 1923, the rent which the landlord may reiilise if the house was let is the basis for fixing the annual value of the buildings : the criterion be-ing the rent realisable by the landlorc;l and not the value of the building in the hands of the tenant. The test of reasonableness of the gross annual rent at which the building may at the time of

(I) [1962] 3 S.C.R. 49.

(1971 J l S.C.R

assessment reasonably be expected to let in s. 127(a) is the rent which the landlord may realize if the house is let under bargain between willing lessor and willing lessee uninfluenced by extra-neous considerations, and in determining the reasonableless of the expectation of the landlord in the matter of rent law which im-_poses penal consequences cannot be ignored. The law must be taken as one of the circumstances obtaining in the open market placing an upper limit on the rate of rent for which building can reasonably be expected to let, and since statutory limitation of rent circumscribes the scope of the bargain in the market, in no circumstances can the hypothetical rent exceed the limit prescribed by the Jaw.

It was therefore clearly laid down by this Court in Smt. Padma Debi's case ( [1]) that in determining the annual value of the land or · building for the purpose of ascertaining the consolidated rate, the standard rent is the maximum amount which can be taken into account.

In the present case the Court of Small Causes and the High Court have determined the annual value on the footing of the standard rent.

Counsel for the Corporation, however, contended that the decision in Smr. Pad ma Debi's case(') has no application to this case, 'since that case was decided on the interpretation of s. 127(a) of the Calcutta Municipal Act, 1923, whereas the present case falls to be determined on the interpretation of s. 168 of the Cal-cutta Municipal Corporation Act, 1951, of which the scheme is different. Section 168(1) at the relevant time provided:

"For the purpose of assessment to the consolidated rate the annual v_alue of any land or building shall be deemed to be the gross a11nual rent at which the land or building might at the time of assessment be reasonably expected to let from year to ·year, Jess . . . . .

Provided that in respect of any land or building the standard rent of which has been fixed under Section 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the annual value thereo~ shall not exceed the annual amount of the standard rent so fixed."

Counsel urged that under the proviso, gross rent for which the l8'.1d or building might reasonably be expected to let is subject to the maximum' limit of the annual standard rent, only in those cases in which standard rent under s. 9 of the West Bengal Premises

Rent Control (Temporary Provisions) Act, 1950 is fixed by order of the Controller, and since no such standard rent is fixed by order of the Controller, the proviso to s. 168 does not apply, and the assessing authority was, in determining the annual value, com-petent to take into account all relevant circumstances including the rent at which the premises were or could be sublet.

It is true that the assessmC\llt of annual value in Smt. Padma Debi's case(') was for the year 1950-51 and s. 127(a) of the Calcutta Municipal Act, 1923, was in these terms:

''the annual value of land, and the annual value of any building erected for letting purposes or ordinarily let, shall be deemed to be the gross annual rent at which the land or building might at the time of assessment rea-sonably be expected to be let from year to year, less, "

That section did not contain proviso in the form of the proviso to s. 168(1) of the Calcutta Municipal Corporation Act, 1951. But the enactment of th~ proviso does not alter the law. This Court in Smt. Padma Debi's case(') interpreted the words "gross annual rent at which the land or building might at the time of assessment reasonably be expected to let from year to year" in 's. 127(a), and held tha.t in determining the gross annual rent sta-tutory limitation of rent circumscribes the scope of the bargain in the market and therefore in no circumstances the hypothetical rent may exceed the limit. ·

By the addition of the proviso, in our judgment, the meaning of the expression "gross rent at which the land or building might reasonably be expected to let" is not altered. In the present case, there i> no order of the Controller fixing standard rent under s. 9 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. but the standard rent stands determined by the defi-nition of that expression in s. 2( 1 O)(b) of that Act, which provides (omitting parts not relevant) :

" 'standard rent' in relation to any premises means-

( a) . . . . . . .

(b) where the rent has been fixed under section 9,

the rent so fixed; or at which it would have been fixed if application were made under the said section."

We are therefore of the view that the High Court was right in asse~sing the annual value on the basis of the standard rent as statutorily determined. It is common ground that the standard rent of the premises was Rs. 7 ,800 per month by virtue of 'the second part of s. 2(10)(b).

(I) 11%2] 3 S.C.R. 49.

It was then urged that in any event where there are different

grades of owners of building, the assessing authority is bound to take into consideration the value to each grade of owner for the purpose of determining the standard rent. It was submitted that qua their sub-tenants, Messrs. A. Firpo Ltd. were the owners of the premises and the rent which they received had also to be taken into account in determining the standard rent. Reliance in that behalf was placed upon the definition of "owner" in s. 5(53) and s. 193 of the Calcutta Municipal Corporation Act, 1951. Sec .. tion 5(53) defines "own.~r" as including "the person for the time being receiving the rent of any land or building or of any part of any land or building, whether on his own account or as agent or trustee for any person or society or for any religious or charitable . purpose, or as receiver or who would so receive such rent if the land,. building or part thereof were let to tenant". Section 193 provides :

"Where there are gradations of owners of any land or building, the Commissioner may, notwithstanding any-thing contained in section 191, apportion the owner's share of the consolidated rate in respect of such land or building among such owners in proportion to the amount of the net rent receivable by each of them and thereupon the owner's share of the consolidated rate shall be paid by s.uch owners accordingly.

Explanation.-· " But under the Act the quantum of the consolidated rate depends upon the annual value of land or building on the gross rent for which the land or building might reasonably be expected to Jet, and not the gross rent at which the subordinate interest of tenant may be expected to sublet. In determining the assessment of annual value, the assessing authority is not concerned with the rent which the tenant may receive from his sub-tenant. It is the gross rent which the owner· may realize hy letting the land or building under bargain "uninfluenced by extraneous considera-tions" which determines the annual value. Section 193 only pro-vides for apportionment of consolidated rate : it is irrelevant in determining annual value.

The appeal fails and is dismiss~d with costs.

Appeal dismissed.