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PETITIONER: SMT. PUSPA SEN GUPTA

       Vs.

RESPONDENT: SMT. SUSMA GHOSE

DATE OF JUDGMENT20/04/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMI, V. (J) II

CITATION:  1990 SCR  (2) 564        1990 SCC  (2) 651  JT 1990 (2)   167        1990 SCALE  (1)804

ACT:      West Bengal Premises Tenancy Act, 1956: Section 8(3), 34     & .55--Non-payment of Rent--Eviction--Rent  deposited--fail-     ure to deposit additional electricity charges--Held  default     committed  in payment of Rent----’Rent’      includes  amenities     charges.

HELD:

   The  respondent-landlord instituted a suit for  eviction of  the  appellant-tenant on the ground  of  non-payment  of rent.  The appellanttenant deposited the rent but  contested the  suit  contending that failure  to  deposit  electricity charges  was  not a default of payment of  rent.  The  Trial Court  dismissed  the suit holding that failure  to  deposit electricity charges did not amount to default under the West Bengal  Premises Tenancy Act, 1956. But on appeal the  Addi- tional  District  Judge reversed the decision and  passed  a decree  for  eviction,  and the High  Court  confirmed  this decision of the Additional District Judge in second appeal.     In  appeal  to this Court on the question:  Whether  the appellant was a defaulter in the matter of payment of rent.     Dismissing the appeal and confirming the decision of the High Court, this Court,     HELD:  1.  Although the expression ’rent’ has  not  been defined,  there are indications in the West Bengal  Premises Tenancy  Act, 1956 to suggest that the word ’rent’  includes not  only  what  is strictly understood as  rent,  but  also payment in respect of amenities or services provided by  the landlord under the terms of tenancy. [566A-B]     2. The provisions contained in sections 8(3), 34 and  35 of the Act give a clear indication that the Act contemplates that a tenancy which carries with it certain amenities to be provided  or  services to be maintained by the  landlord  is within  the purview of the Act. If the Act is not so  inter- preted,  an astute landlord may successfully circumvent  the provisions  of  the Act by imposing on  the  tenant  onerous conditions with reference to supply of amenities as  binding terms of the tenancy. [566C-D] 565     RadhaKishanSao  v. Gopal Modi and Ors., [1977] 2  S.C.C. 656; distinguished.     Residence Ltd. v. Surendra Mohan Banerjee & Ors., A.I.R.

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1951 Cal. 126, approved in part. Karnani  Properties  Ltd.  v. Augustin,  [1957]  S.C.R.  20, followed.

JUDGMENT:

   CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3106  of 1989.     From the Judgment & Order dated 21.3.89 of the ,Calcutta High Court in Appellate Decree No. 939 of 1976, R.K. Garg and Gopal Singh for the Appellant. Dr. ’Shanker Ghosh, H.K. Puri and A. Deb for the Respondent. The Judgment of the Court was delivered by     SHARMA, J. This appeal by a tenant of a certain premises in Calcutta is directed against the order of his eviction on the ground of non-payment of rent. The appellant had  agreed to  pay a sum of Rs.32 per month as rent and  an  additional sum  of  Rs.8 per month for electricity.  According  to  the defence  of the appellant the rent had been  duly  deposited with the Rent Controller in accordance with the West  Bengal Premises  Tenancy  Act,  1956, and he  was,  therefore,  not liable to be evicted. Deposit was made at the rate of  Rs.32 and the remaining amount at the rate of Rs.8 was  admittedly not  deposited. The question which has been debated  in  the courts  below is whether the aforesaid amount of Rs.8 was  a part  of  rent which ought to have been deposited so  as  to escape  the consequences of default. The trial court  agreed with  the  tenant  and dismissed the suit.  On  appeal,  the Additional  District Judge, Alipore, reversed  the  decision and passed a decree for eviction holding that the tenant was a  defaulter within the meaning of the term in the Act.  The High  Court  confirmed the decree in second  appeal  by  the impugned judgment.     2. Mr. Garg, the learned counsel appearing in support of the appeal has strenuously contended that the rent was  only Rs.32  and  did not include the additional  amount  of  Rs.8 payable in lieu of electricity, and consequently the  appel- lant can not be treated a defaulter in the matter of payment of rent. Reliance has been placed on the decision of 566 this  Court  in Radha Kishan Sao v. Gopal Modi  and  Others, [1977] 2 SCC 656.     3. Although the expression ’rent’ has not been  defined, there are indications in the present Act to suggest that the word ’rent’ includes not only what is strictly understood as rent,  but also payment in respect of amenities or  services provided by the landlord under the terms of the tenancy. The Act  deals with the fixation and revision of fair  rent  and sub-section  (3) of section 8, takes into account  furniture if supplied or fittings affixed in the tenement for the  use of  the  tenant, indicating that an  agreement  between  the landlord and the tenant in respect of the additional  ameni- ties comes within the scope of the Act. Similarly the provi- sions  of section 34 refer to the maintenance of any  essen- tial supply or service (including supply of electricity) and section  35  deals with emergency measures to  be  taken  in respect  of  matters including  additional  services.  These provisions give a clear indication that the Act contemplates that a tenancy which carries with it certain amenities to be provided  or  services to be maintained by the  landlord  is within  the purview of the Act. If the Act is not so  inter- preted,  an astute landlord may successfully circumvent  the provisions  of  the Act by imposing on  the  tenant  onerous conditions with reference to supply of amenities as  binding terms of the tenancy. A same view was taken by the  Calcutta

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High  Court in Residence Ltd. v. Surendra Mohan  Banerjee  & Ors.,  A.I.R. 1951 Calcutta 126; while  interpreting  ’rent’ under  the earlier Rent Act of 1950. So far this  aspect  is concerned,  the relevant provisions of the present  Act  are not  very different. A similar question under the  1950  Act later  arose  before this Court also in  Karnani  Properties Ltd.  v.  Augustin,  [1957] SCR 20; and  the  Calcutta  High Court’s view was affirmed. It may, however, be mentioned  at this  stage that the view of the Calcutta Bench  on  another question which does not arise in the present appeal was  not approved,  but that is wholly irrelevant for the purpose  of case  before us. S9 far the decision in Radha  Kishan  Sao’s case  relied  upon by Mr. Garg is concerned, it  is  clearly distinguishable  inasmuch as the agreement therein  relating to the payment for furniture was according to the finding "a quite  independent  contract unconnected with  the  original tenancy"  (see para 14 of the judgment). Besides,  the  case was governed by the rent law as applicable in Bihar and  not by  the present Act. We, therefore, confirm the decision  of the High Court and dismiss the appeal with costs. T.N.A.                                        Appeal    dis- missed. 567