Case: BENGAL CHEMICALS AND PHARMACEUTICALS LTD Vs. AJIT NAIN

Being aggrieved, respondent No.1 challenged the notice dated 23.05.2018 and filed a second writ petition being WP No.7934(W) of 2018 before the High Court of Calcutta. The Single Judge of the High Court vide order dated 19.06.2018 dismissed the writ petition by extending the time to file the show cause to the notices.10. Being aggrieved by the dismissal of the writ petition, respondent No.1 filed an appeal in MAT No.586 of 2018. No stay was granted by the Division Bench in the said appeal nor any direction was issued by the High Court not to proceed with the hearing of the eviction proceedings. As there was no stay granted by the Division Bench in MAT No.586 of 2018, the Estate Officer proceeded with the eviction proceedings. The Estate Officer granted as much as five further hearings dated 29.06.2018, 17.07.2018, 27.07.2018, 07.08.2018 and 21.08.2018. The Estate Officer vide order dated 01.10.2018 passed the eviction order directing respondent No.1 to vacate the premises within a week from the date of the eviction order. By the said order dated 01.10.2018, the Estate Officer assessed the damages and interest at Rs.4,61,63,624/- payable by respondent No.1 (Damages Rs.3,30,33,000/- plus interest at Rs.1,31,30,624/-).11. Being aggrieved by the order of eviction, respondent No.1 filed an application being CAN No.9489 of 2018. The High Court vide impugned order set aside the order dated 01.10.2018 passed by the Estate Officer and remitted the matter to the Estate Officer to consider the matter afresh in accordance with law. Being aggrieved, appellant No.1-Bengal Chemicals and Pharmaceuticals Limited has filed these appeals. Respondent No.1 entered appearance and filed a detailed counter affidavit.12. We have heard Mr. Sarad Kumar Singhania, learned counsel appearing for the appellants and Mr. Biswaroop Bhattacharya, learned counsel appearing for respondent No.1. We have perused the impugned judgment and other materials on record and carefully considered the matter.13. The learned counsel appearing for the appellants has submitted that respondent No.1 is running a school in the premises comprising of 6500 sq. ft. with open space measuring 2575.13 sq. ft. and respondent No.1 is enjoying the property for commercial purpose of running the school since 01.06.2014 without payment of any rent which is calculated approximately Rs.4.61 crores as assessed by the Estate Officer which is payable to appellant No.1. It was submitted that since respondent No.1 has not paid the rent, the Estate Officer rightly concluded that respondent No.1 is an unauthorized occupant and passed the order under Section 5(1) and sub-section (2) and (2A) of Section 7 of the Act. It was further urged that respondent No.1 has the right to file an appeal against the order dated 01.10.2018 passed by the Estate Officer under the provisions of Section 9 of the Act only before the Appellate Court that is the District Judge of the district and the writ petition filed is not maintainable.14. The learned counsel appearing for respondent No.1 has submitted that by taking judicial notice of the fact of involvement of the previous Estate Officer in the eviction proceedings, the High Court has rightly set aside the order of eviction dated 01.10.2018 passed by the Estate Officer. It was submitted that no sufficient opportunity was afforded to respondent No.1 and the quantum of damages fixed by the Estate Officer is arbitrary and therefore, respondent No.1 is justified in challenging the order of the Estate Officer before the High Court in the pending appeal. The learned counsel further submitted that a rent of Rs.21/- per sq. ft. cannot all of a sudden become Rs.50/- per sq. ft. without any rhyme or reason and respondent No.1 has always been ready to pay a reasonable rent and not a rent which is unilaterally imposed on him. It was further submitted that in compliance with the order of the High Court dated 17.01.2018, respondent No.1 has deposited Rs.25,00,000/- and also paid the electricity charges which shows the bona fide of respondent-tenant.15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. In the nature of the order which we propose to pass, we are not inclined to go into the merits of the rival contentions of the parties. Admittedly, the lease has come to an end on 31.05.2014 by efflux of time. According to respondent No.1, the meeting was held on 20.05.2014 in the office of appellant No.1 and there was discussion on the question of renewal of lease. It is stated that appellant No.1 has forwarded a letter on 30.05.2014 to respondent No.1 for further renewal of lease subject to the acceptance of the terms:- (i) from June 20, 2014, the rent of the covered space as well as the open space shall be at Rs.50/- per sq. ft. subject to increase of 10% for every two years; (ii) the tenure of the agreement will be three years and thereafter, the agreement may be renewed for further period upon mutual discussion between the parties. The terms proposed by appellant No.1 in the said letter dated 30.05.2014 was not agreeable to respondent No.1. According to respondent No.1, as per the terms of the lease, the rent payable was only Rs.1,42,656/- per month.16. Be that as it may, admittedly, from 01.06.2014, respondent No.1 has not paid the rent except the amount of Rs.25,00,000/- which he has deposited in compliance with the order of the High Court dated 17.01.2018. In the proceeding before the Estate Officer, respondent No.1 has not put forth his defence; respondent No.1 was only taking adjournments on the ground of pendency of the appeal before the High Court in MAT No.586 of 2018. In our view, sufficient opportunity has to be given to respondent No.1 and the order of the High Court remitting the matter to the Estate Officer therefore, has to be maintained, however, subject to respondent No.1 paying the reasonable amount as damages by way of interim measure for use and occupation. As pointed out earlier, respondent No.1 is in occupation of land and building measuring 6500 sq. ft. consisting of three storied building plus open space of 2575.13 sq. ft. in Maniktala Main Road, Kolkata.