JUDGMENT
V.K. Gupta, J.
1. This appeal under Clause 15 of the Letters Patent is against judgment dated 24th April ’98 passed by a learned single Judge of this court in Matter No. 2585 of 1986. Brief facts leading to the filing of the appeal are that the respondent Mrltyunjay Basu being the Receiver of the property at 10. Belvedere Road. Allpore, Calcutta-27 filed a writ application under Article 226 of the Constitution against the appellant Damodar Valley Corporation and others with regard to the enhancement of the rent for the period 1983 to 1997 on the ground that the lease held by the appellant in respect of the property in question had expired on 30th November, 1983 and that thereafter the appellant was liable to pay rent at Increased rate till the date of the vacation of the property by the appellant (October-1996 partly; and March 1997 fully). Following reliefs were claimed In the writ application by the writ petitioner :
“(a) a declaration that the Respondent No.1, the Damodar Valley Corporation is bound by the principle of Promissory Estoppel to renew the Agreement dt, 30.11.1977 In terms of their letter dt. 16.9.1983 (Annexure ‘C’) with effect from 1st December, 1983 as per terms and conditions detailed in annexure ‘E’.
(b) a writ of Mandamus commanding the Respondent No. 1. the Damodar Valley Corporation to execute the renewal of Agreement with the petitioner as In respect of the premises In question mentioned in paragraph 10, as per their option (annexure ‘C’) with effect from 1.12.83 as per terms and conditions detailed in annexure ‘E’, and read with paragraph 23 of this petition,
(c) an order directing the Respondent No. 1, the Damodar Valley Corporation, to make payment to the petitioner-Receiver, the amount on calculation as detailed in paragraph 23 of this petition on the basis therein mentioned within seven days from the date of order, and to go on paying the usual occupation and other of charges, as mentioned in paragraph 23 of this petition.
(d) rule Nisi in terms of prayer (a) and (b),
(e) Interim order in terms of prayer (c),
(f) any other order or orders as your Lordships may deem fit and proper,
(g) Cost.”
(At a later stage the writ petitioner made certain amendments in respect of one of the aforesaid reliefs but substantially and primarily the nature of the reliefs did not undergo any change).
2. The appellant was the tenant of the landlords in respect of the properly in question. The original Lease Deed as executed In 1977 had fixed rent at the rate of Rs. 2.30 per Sit of the covered area. At the expiry of the Original Lease period some correspondent was exchanged between the tenant and the landlords and/or Receiver regarding the renewal of the Lease Deed for a further period on agreed terms and conditions. It was In the
course of this correspondence that the writ petitioner suggested enhancement of the rent from Rs. 2.30 per Sft. to Rs. 8.40 per Sft. per month. Such enhancement proposal was contained In the letter dated 1st October 1983 sent by the writ petitioner to Respondent No. 1. It also appears that ultimately the appellant did not ‘agree with any proposal for any enhancement of the rent and took a stand that the appellant was protected under law as a tenant to occupy the premises at the same terms and conditions as were originally agreed between the parties in the Lease Deed as executed In 1977, Including the terms and conditions relating to the payment of the monthly rent @ Rs. 2.30 per Sft. Aggrieved, the writ petitioner as noticed above, came up to this court by filing writ application under Article 226 of the Constitution. On 23rd June 1992 and order was passed by the learned single Judge whereby Rent Controller having territorial jurisdiction over the property In question was directed lo fix the rent of the said premises being totally uninfluenced by the provisions of the Statute. It was also recorded in that order that the parties had agreed to abide by the decision of the Rent Controller regarding the assessment of the rent. This order forming the starting point of the developments leading to the filing of the present appeal, being very relevant may be re-produced as under :–
“By consent of the parties, there shall be an order to the following effect:
The concerned Rent Controller having territorial Jurisdiction over premises No. 10, Belvedere Road, Allpore, Calcutta-27 shall fix the rent of the said premises, being totally uninfluenced by the provisions of the statute. In order to determine the rent In terms of this order, the Rent Controller shall afford an opportunity of hearing to the parties to adduce documentary evidence, if any, before him. The Rent Controller shall also take into consideration the rent in the adjoining premises or premises in the vicinity for the purpose of assessment of rent. The rent so ascertained shall also Include the service charge and the maintenance charges. The Municipal rates shall also have to be taken Into account in the matter of fixation of such a rent. The parties, however, would be at liberty to make written submission before the Rent Controller. In the event the Rent Controller comes to a conclusion as to variations in the rate of rent for specified periods. It is desired that the Rent Controller should also Indicate such a variation In the rate of rent In his report. Since this issue of determination of rent of the concerned premises Is pending for quite some time. It is desired that the Rent Controller should deal with the matter and file his reported before this court with utmost expedition and preferably within a period of five weeks from the date hereof.
It is recorded that all the parties appearing today Including Mr. Das’s client, Mr. Mltra’s client and Mr. Lahlri’s client agree to abide by the decision of the Rent Controller regarding the assessment of rent.
Let this matter appear in the list six weeks hence marked ‘for orders’.
All parties including the concerned Rent Controller are to act on a signed copy of this dictated order on the usual undertaking.
Sd/-Umesh Chandra Banerjee. J.”
3. The appellants, aggrieved of the aforesaid order filed Appeal No. 568 of 1992 and the Division Bench of this court vide Judgment dated 8th December 1994 set aside the aforesaid order of the learned single Judge by making the following observations and Issuing hereinbelow directions :
“In that view of the matter, even assuming that the order impugned was passed by consent but the safd order cannot be allowed to stand as the consent order on the face of it purports to direct the Rent Controller to act contrary to and/or Inconsistent with and/or de hors the statute in question under which he has been created. The Controller being a creature of the statute cannot be called upon to discharge a function de hors the statute. This is contrary to legal principle.
Accordingly, the order dated 23.6.92 cannot be allowed to stand. In that view of the matter, the order dated 23.6.92 Is set aside and the matter is remanded back to the learned trial Judge for a fresh determination In accordance with law. The appeal Is thus, allowed to the extent Indicated above. There will be no order as to costs.”
4. The writ-petitioner Respondent filed an appeal in the Supreme Court against the aforesaid Division Bench Order. Since however in the meanwhile an application had been filed before the learned single Judge by the appellants questioning the Incorporation of the “consent” element In the order dated 23rd June ’92, the Supreme Court vide Order dated 4-09-95 in SLP 8131 of ’95, after taking note of the fact that in the meanwhile an application had been filed by the appellant before the learned single Judge for recalling/reviewing the order dated 23rd June ’92 on the question of the “consent” which, the appellant stated was not given by it, directed the learned single Judge to hear the parties on the said application and postponed the further hearing of the aforesaid SLP No. 8131 of ’95. The learned single Judge however vide order dated 21st December 1995 refused to Review/recall the order dated 23rd June ’92.
5. Finally disposing of civil appeal No. 4719 of ’96 arising out of the aforesaid SLP No. 8131/85 Their Lordships of the Supreme Court directed that the Rent Controller may proceed with the matter In the light of the direction contained in the order of the learned single Judge passed on 23rd June ’92 and that the learned single Judge on receipt of such report from the Rent Controller would grant opportunity to the parties to file objectlonfs), if any to the report of the Rent Controller and after considering these objections the learned single Judge should dispose of the writ application. It was specifically mentioned in that order that It shall be open to the parties to raise all such pleas Including the question of grant of relief to the writ petitioner, as are available to them In law. The following relevant operative portion of the order dated 15th March 1996 passed by Their Lordships of the Supreme Court in Civil Appeal No. 4719/96 may be reproduced as under :
“In the facts and circumstances of the case and particularly In view of the fact that the writ petition is still pending disposal before the learned single Judge. It appears appropriate to us to dispose of this appeal by directing that after the report Is received by the High Court from the Rent Controller In accordance with the directions Issued on 23.6.92 the learned single Judge would grant an opportunity to the parties to file
their objections if any, to the ‘report’ of the Rent Controller and after considering those objections and hearing learned counsel for the parties, the learned single Judge shall dispose of the writ petition. It shall be open to the parties to raise all such pleas Including the question of grant of relief to the writ petitioner as are available in law.
The order of the Division Bench under appeal shall therefore stand modified to the extent and the terms Indicated above.
Learned counsel for the parties submit that the period granted to the Rent Controller to submit his report by the learned single Judge on 23.6.1992 has since expired. We, therefore, grant eight weeks time to the Rent Controller from today to submit his report to the learned single Judge in terms of the order dated 23.6.1992. Learned counsel for the parties shall furnish a copy of the order to the Rent Controller without any delay.
It is clarified that nothing said herein above shall be construed as any expression of opinion on the merits of the controversy between the parties.
The appeal is disposed of accordingly. No costs.”
6. The Rent Controller filed his report dated 27/05/96 before the learned single Judge. He fixed the fair rent of the premises in question from the existing Rs. 89,293/- to Rs. 98,222/- per month taking Into account 10% increase in terms of Clause ‘e’ of section 8 ASDPT Act 1956. It was this report of the Rent Controller which formed the subject matter of the controversy before the learned single Judge in the pending writ petition and ultimately it was vide1 the Judgment under appeal that the learned single Judge did not accept the report of the Rent Controller, and while selling aside the same went on to substitute his own opinion In the mailer, and by going into the factual aspects of the matter in so far as the fixation of the rent was concerned, disposed of writ application finally by granting in favour of the writ petitioner rent at the rate of Rs. 8.50 per Sft. per month with effect from 1st December ’83 with a proportionate increase of 10 per cent at Intervals of three years. Additionally the learned single Judge also granted maintenance charges @ Rs. 1.50 per Sft. with effect from 1.12.83 with an Increase of 10 per cent at an interval of every five years and service charges with effect from 1.12.83 with 10 per cent proportionate Increase at Intervals of every two years. Aggrieved, the appellants have filed the present appeal.
7. We are called upon to examine two broad and vital aspects Involved in this case: firstly, whether the order passed by the Rent Controller actually deserved to be set aside by the learned single Judge, and secondly, If it were so. whether the learned single Judge should have himself ventured into the field of determining the market rent.
8. In so far as the first question is concerned, we have very carefully considered the Report of the Rent Controller In the light of the orders passed by the learned single Judge on 23rd June “92 and the Supreme Court on 15th March 1996. The clear import of the two orders clearly Intended to convey a direction to the Rent Controller to fix the rent objectively and fairly
and in accordance with the well-established norms and criteria, some of which spelt out In the order dated 23rd June ’92. From what we have seen however the Rent Controller in a cryptic and slip-shod manner, for totally unexplained reasons devised a method, unknown to the accepted norms of evaluation by first adding up the area of the property in question with the areas of the two other properties, styled by him as being unit Nos. 1 & 2, (both units 1 & 2 situated In the same part of the building In which the property in question was situated) and then, by adding the rents received in respect of these properties, determined the average rate of rent per square feet. After having embarked on such an untenable exercise, the Rent Controller went on to say that according to his mind for assessment of rent some other premises adjoining the disputed premises should have been-taken Into consideration, but since these were not shown to him he, without assigning any reason whatsoever summarily, from out of nowhere determined “fair rent” by adding Just 10 per cent to the original rent and brought it from Rs. 89,292/- to Rs. 98.222/- per annum. The approach adopted by the learned Rent Controller, to say the least, was absolutely unwarranted. The learned single Judge has very rightly and correctly refused to accept the report of the Rent Controller and has correctly set It aside. We find ourselves In total agreement with his views and finding on this first question.
9. Coming to the second aspect of the matter, we feel that the learned single Judge ought not have gone into the exercise of determining the market rent himself. He should not have substituted his opinion with that of the Rent Controller. We are saying so because we cannot be unmindful of the fact that the Respondent had approached this court by invoking this court’s writ Jurisdiction under Article 226 of the Constitution for a very limited nature of the reliefs and it was only In the exercise of this extraordinary Jurisdiction that this court had directed the Rent Controller to determine the rent. This court was not exercising the jurisdiction of a civil court nor was it dealing with a civil suit. This apart, there was not enough material before this court which could be said to be of such nature as would conclusively help and aid this court In determining the market rent. Thirdly, after we have carefully scanned through all the documents, we found that the views expressed by the learned single Judge in the Judgment under appeal with regard to the determination of the market rent perhaps were not sustainable on the basis of this supporting material relied upon and cited by him for determining the market rent. We are therefore firmly of the view that after having set aside the report of the Rent Controller, the learned single Judge should have remitted the matter back for re-consideration, rather than taking up for himself the task of determining the Rent. Here was a situation where the writ court was dealing wllh a question as to whether the Report submitted by the Rent Controller ought to be accepted or whether It should rejected, on one ground or the other. Once the writ court decided to reject the Report, was the court Is In possession of sufficient material, and did the circumstances of the case warrant that the writ court Itself should conduct an exercise. In the nature of a fact finding enquiry to determine, as to what would be the rent of the premises in question In the year 19S3 and what could be the maintenance charges and the service charges at that particular point of time and how
would all these three charges Increase with periodical frequencies. There may be some rare cases where such an exercise and such determination of amount may be unavoidable for a writ court but then those are indeed very very rare instances and only, repeat when the writ court is possessed of unimpeachable, duly proved and (ested material, In accordance with not only the norms of proof of documents but also in such manner as to have afforded adequate and effective opportunities to both the parties, to admit or controvert the material on record. We do not wish to enter into any exercise of close scrutiny and minute detailed examination of relevant facts available to the learned single Judge which he thought was the basis of his coming to the figures which he arrived at in determining the market rent. We refrain from doing so because of the order that we propose to pass. From what we have seen, we failed to find any such supporting material. We therefore have no hesitation In holding that the learned single Judge erred In determining the market rent himself. But under the circumstances of the case, and In view of the facts as has been in existence, the best course of action would have been to have sent the matter back for reconsideration. We propose to follow that course of action.
10. Mr. N.C. Roy Chowdhury. learned Advocate appearing for the appellant has submitted before us that the appellant would be satisfied If we, by setting aside the Judgment under appeal send the matter regarding determination of the rent to the Chief Engineer (Civil). Central P.W.D. Calcutta. Mr. Sanyal, learned Advocate, appearing for the Respondent on the other hand however, did not agree to this suggestion and insisted that even if we decide to set-aside the Judgment of the learned single Judge we should not send the matter to the Chief Engineer, C.P.W.D. but send It again to the Rent Controller on the same lines as was done earlier by this court and as approved by the Supreme Court.
11. After giving our anxious consideration to these rival submissions, we find that we do not agree with the view of Mr. Sanyal, the learned Advocate for the Respondent that we have no option but to send the matter to the Rent Controller again. Undoubtedly the learned single Judge had sent the matter to the Rent Controller in the order passed on 23rd June ’92 and undoubtedly their Lordships of the Supreme Court In the order passed on 15th March ’96 had mentioned about the receipt of the Report by the High Court from the Rent Controller in accordance with the directions contained in the High Court order dated 23-06-92, yet It cannot be said that, based on the aforesaid two orders the matter has necessarily to be sent to the Rent Controller again and to no one else. In so far as sending the matter to the Rent Controller is concerned, that was the order passed by the learned single Judge. Their Lordships of the Supreme Court had merely referred to that order In appeal. By the disposal of the writ petition finally, the earlier order dated 23.12.92 passed by the learned single Judge has now merged with the final order passed on 24th April ’98. There Is therefore no bar for this court silting in appeal to send the matter to an Agency olher than the Rent Controller particularly If this court Is of the view that the Renl Controller, whose report Is being set aside, is not the most appropriate person for this purpose.
12. We, after considering all relevant aspects of the matter tend to find ourselves In agreement with the submission of Mr. Roy Chowdhury, learned Advocate appearing for the appetlantand feel that the Chief Engineer [Civil) Central P.W.D., Calcutta is the most appropriate person to determine rent
In the light of the directions and observations contained in the order dated 23rd June 1992. as upheld by the Supreme Court on 15th March ’96. Because the Report of the Rent Controller has been set aside, and further since we have also set aside the Judgment of the learned single Judge Impugned in this appeal, we naturally come back to a stage as was obtaining at the time the Supreme Court passed the order dated 15th March ’96. We have two options; either to restore and revive the writ application and let the parties go back to the writ court after the Report Is once again received or, instead we should receive the Report ourselves and allow the parties to deal with It in the manner as was directed by the Supreme Court in the order dated 15th March ’96. We lean In favour of the second course of action since, in our view, after such a long protracted litigation, it shall be in the fitness of things and in the interest of the parties If in this appeal Itself we try to conclude the controversy between the parties.
13. We accordingly set aside the Judgment of the learned single Judge The matter regarding determination of the rent is hereby referred to Chief Engineer (Civil) Central P.W.D., Calcutta with directions to him to determine the rent of the property in question in the light of the order passed by the learned single Judge on 23rd June ’92, as affirmed by the Supreme Court on 15th March ’96. The Chief Engineer shall look into all relevant aspects of the matter and by applying accepted norms and established parameters determine the rent of the property in question for the relevant period after taking into account the material produced before him by the parties and after affording opportunities of hearing to them by observing all principles of natural Justice.
14. In the course of this Judgment we have made certain observations. The learned single Judge also in the Judgment under appeal made certain definite observations with regard to the fixation of rent. Observations have been made elsewhere also In this litigation. We hereby observe and direct, clearly and unequivocally that the Chief Engineer, in the course of determining and fixing the rent shall totally Ignore and overlook all such observations and directions except those contained in the order of the learned single Judge passed on 23rd June ’92 and the order passed by the Supreme Court on 15th May ’96. He shall conduct the exercise of fixing and determining the rent totally uninfluenced by such observations, purely on the merits of the case and in accordance with norms and established parameters. The Chief Engineer Is directed to complete the entire exercise of determination and fixation of the rent and to submit his report within three months from today.
The matter shall appear for consideration of the report of the Chief Engineer, in the light of the directions contained in the Supreme Court Order dated 15th March ’96 again after three months.
Liberty to mention. P.K. Sen, J.–I agree.
Later :
Let a Xerox signed copy of this Judgment, duly counter singed by the Assistant Registrar of this court, be given to the parties upon their undertaking to apply for and obtain certified copy of the same upon usual undertaking.
15. Order Accordingly