M.N. Roy, J.
1. This memorandum of appeal from original order, is directed against the judgment and order dt. 6th Aug. 1979, passed in Civil Rule No. 1791(W) of 1977, by Bimal Chandra Basak, J. By that order, the learned Judge has made the Rule absolute and directed the issue of or Writ of Mandamus restraining the respondents before him, from proceeding against the writ petitioner under the provisions of the West Bengal Government Premises (Tenancy Regulation) Act, 1976 (hereinafter referred to as the said 1976 Act). While making such order, the learned Trial Judge, however, made it clear that if the Respondents before him have any other right under any other law or provisions of the statute, the order as made, will not prevent them from proceeding with the same in accordance with law.
2. The writ petitioner, who is Respondent 1 before us, claimed in his petition, that after the partition of Bengal, he along with the other members of his family, came to West Bengal in search of permanent hearth and home and in fact, on 30th March 1948, they came to Calcutta and took shelter in a abandoned Muslim house at Ultadanga, Calcutta, being premises No. 42/A, Harish Neogi Road, P. S. Maniktala, Calcutta-67 (hereinafter referred to as the said premises), on 29th March 1950 and had been residing in two rooms in the said premises. It has further been stated by him that the owner of the said premises at all material times was one Sk. Kalimuddin Choudhury of 142/1, Jhowtola Road, Calcutta and he filed a case being Case No. 977 of 1951 before the competent authority under West Bengal Act XVI, 1951 for eviction of the unauthorised occupants including the petitioner.
3. It has also been stated by the writ petitioner that on the basis of the Competent Authority's directions, there was an enquiry and he was proved to be a displaced person, having no property in India and it has also been observed on consideration of his affidavit that the petitioner had no intention to go back to East Pakistan. It has been said, that after such enquiry and since he was proved to be a displaced person, he was given protection under the said Act XVI of 1951 and necessary recordings were made for favour of furnishing alternative accommodation to him. It was also the case of the petitioner that pending the provisions for alternative accommodation as mentioned above, the petitioner in the case as mentioned above, was assessed and directed to pay Rs. 30/- per month to the said owner Sk. Kalimuddin Chaudhury and in fact, the petitioner occupied the two concerned rooms in the said premises on regular payment of the compensation as mentioned above. The petitioner has stated that such position continued up to 1965, when the said premises was acquired by the Trustees for the improvement of Calcutta (hereinafter referred to as the said Trust). Even though the petitioner was not provided with the alternative accommodation, as was ordered by the competent authority in the case as mentioned above and as indicated earlier, which was disposed of on 27th Feb. 1954, on such acquisition of the said premises, the petitioner has stated, that he was advised to file an application before the Chairman of the said Trust for allotment of one flat at L.I.G.H. Scheme-I under the said Trust, as he had no shelter in Califs and was protected from eviction in the manner as indicated hereinbefore. The petitioner has stated that at the time of making such application, his income was Rs. 245/- only per month and he was serving as Junior Development Officer in Life Insurance Corporation of India. It was his case that on consideration of his claim, he was allotted a flat by the said Trust and he has further averred that for convenience of enjoyment, the occupants exchanged their flats with notice to the said Trust and since then, the petitioner has been residing in a one roomed flat being No. 39 of Block No. IX, C. I. T. Scheme L.I.G.G. I at the said premises which has been renumbered as Premises No. 107/108/4, Ultadanga Main Road, Calcutta-57. It was the further case of the petitioner that the said Trust had acquired such premises in which, he was residing at the relevant time with the protection against eviction till alternative accommodation was received and the said Trust acquired the said premises with such covenant running with the said premises and the petitioner too was allotted one flat in the manner as indicated above and hence, his induction in the said premises was on the basis of the covenant and condition running with the said premises which as mentioned hereinbefore, was acquired by the said Trust and the same was not as per general provisions prevailing for induction of tenants in the flats belonging to the said Trust. It was the further case of the said petitioner that he has not as yet been provided with alternative accommodation.
4. The petitioner has further stated that during the stay at the flat in question, he has all along been serving as the Development Officer under the Life Insurance Corporation of India and besides such allowances as mentioned above, presently or at the time of obtaining the Rule on 6th June, 1977, he was drawing a monthly salary of Rs. 500/- with dearness allowance Rs. 200/- only, and the other admissible allowances for doing field works. According to him, those allowances will not and should not be considered as his salary. He has alleged that in the block of flats, there are occupants, who are not only affluent, but are having income, more than Rs. 2,000/- per month.
5. It has been indicated that on 7th Jan. 1977, the Assistant Estate Manager of the said Trust, Mr. C. K. Biswas, came to thepetitioner's flat, when he was absent and thereafter, on coming to learr. about, such visit of the said Shri Biswas, he met him at the office of the said Trust and came to learn that on the basis of reports of the Inspector Shri Haren Banerjee, the officer concerned went to his flat for enquiry about his monthly income. It has been stated that after receipt of such information, the petitioner became suspicious about some underhand policy for evicting him from the flat in question and as such, on 15th Jan. 1977, he filed a deputation containing the recommendations of Shri Biren Mohanti, one of the members of the Board of Trustees of the said Trust to the effect, that the petitioner was a displaced person and in consideration of being a displaced person, the said Shri Mahanti felt, that he should be allowed to reside in the flat undisturbed. The said Shri Mahanti requested the Chairman to look into the case personally and consider sympathetically in favour of the petitioner. It was the further case of the petitioner that he paid Rs. 42/- per month as his rent for the flat in question and which was due for the month of January 1977, on 10th Jan. 1977, but in spite of accepting such rent by granting rent receipt and in spite of receiving the written deputation as mentioned above, the authorities of the said Trust, issued a ejectment notice being No. EM/2667 dated 18th Jan. 1977, under the signature of the Assistant Estate Manager, under Section 3(2) of the said 1976 Act, directing him to quit and vacate the premises as per directions as contained therein. The said notice is in Annexure 'C' to the petition and the terms of the same are quoted hereunder : --
Take notice that since you have violated the terms of the Tenancy Agreement in respect of your tenancy of the aforesaid flat, the said tenancy hereby stands automatically terminated in terms of Section 3(2) of the West Bengal Govt. Premises (Tenancy Regulation) Act. 1976. You are, therefore, required to quit the said premises and deliver vacant peaceful possession of the said flat to the local R. C. immediately.
It was the further case of the petitioner that after that, he made personal representations to different authorities of the said Trust, but those authorities did not consider his case and the petitioner had no other alternative, but to accept the notice and as a result of that, the relationship of landlord and tenant was determined by the same. It has also been stated by him that in spite of service of the notice dt. 5th May 1977, issued by the said Trust, under the signature of Estate Manager and Prescribed Authorities under Section 8/1 of the said 1976 Act, which was a second ejectment notice and whereby the petitioner was directed to quit and vacate the premises as per direction embodied in that notice, on the ground that his income was higher than the ceiling prescribed for L.I.G. Fiat. The said notice has been disclosed in Annexure 'D' to the petition and the terms thereof are quoted hereunder : --
Whereas I, Sri A. P. Basu. Estates Manager (name and designation) am satisfied, that your tenancy in respect of the Govt. premises described in the schedule hereunder has terminated automatically under Section 3(2) of the West Bengal Govt. Premises (Tenancy Regulation) Act. 1976 for the reasons stated below : --
Now, therefore, in terms of Rule 3(3) of the West Bengal Govt. Premises (Tenancy Regulation) Rules, 1976, 1 hereby give you. Sri Nitya Nanda Paul (name of tenant) notice to quit the Govt. premises described in the Schedule hereunder and deliver vacant and peaceful possession thereof within one month from the date of service hereof.
If you fail to comply with this notice possession of the premises described in the schedule shall be taken by evicting you under Section 4(2) of the West Bengal Govt. Premises (Tenancy Regulation) Act, 1976. Reasons Income being higher than the ceiling prescribed for L.I.G.H. Flats.
6. On receipt of the said notice under the said 1976 Act, the writ petitioner on 16th May 1979, made a written deputation to the Estate Manager of the said Trust and by that, he not only demanded justice, but also challenged the validity of the concerned notice. It was also and further submitted by him that the said Trust being a statutory body had their Acts and Rules, as such they were not only entitled to have any relief under the said 1976 Act, but any acting on the basis of the said 1976 Act, was improper and ultra vires and so such Act would not be enforced or given effect to. In his petition, the writ petitioner has further stated about the series of representations he had made for the redress of his grievances and also about the fact that he had informed the Chairman of the said Trust, that his salary actually was not in excess of the limit of the concerned scheme and for that reason, he was not liable la he evicted. Further, the writ petitioner asked for his accommodation elsewhere and protection against eviction in any event, till he was provided with alternative accommodation in terms of the order us passed in C.A. Case No. 1977 of 1951.
7. As indicated earlier, the Rule in which the order as impeached, was obtained on 6th June 1977, was with liberty to the petitioner to apply for interim order on the same application, upon notice to the Respondents. It was further directed that if the requisites necessary for effecting service were not put in or steps were not taken within a week, the prayer for interim order shall stand rejected,
8. The Respondents had filed an affidavit-in-opposition dt. 13th Mar. 1978, through Shri Angshu Prakash Basu, the Estate Manager of the said Trust and it has been stated that Flat No. 39 of the said premises belonged to the said Trust and the same formed apart of their housing scheme particulars where of have been mentioned hereinbefore. The deponent has stated that the object of such scheme was to provide persons working for gain in or around Calcutta and having an income not exceeding Rs. 250/- per month but had no suitable place to live in, on account of their inability to pay for the same, at a less than economy or market rate. Such limit of low income of Rs. 250/- per month was stated to have been revised from time to time and ultimately, the same has been stated to have been fixed at Rs. 750/-. According to deponent, no one was and/or is entitled to get or continue in any flat belonging to the said scheme, if his monthly income had or has become more than the limit as mentioned hereinbefore at the relevant time. In any event, it has been stated that the allottees of the flats of the concerned scheme were and are bound to quit and vacate their respective flats on crossing the concerned limits of their respective income and on such happenings, there would never be any statutory protection against eviction, as is enjoyed by the tenants governed by the provisions of West Bengal Premises Tenancy Act, 1956 or any other law. which Act again has been stated to be inapplicable in the block of fiats as involved in the proceedings or which belonged to the said Trust. It was the further case of the answering Respondents that the provisions of the said 1976 Act and the Rules framed thereunder viz. the West Bengal Government Premises (Tenancy Regulation) Rules, 1976, would be applicable to the occupants of the buildings or flats belonging to the said Trust.
9. It has been stated by the deponent that in exercise of the powers conferred by or wide the said 1976 Act of the Rules framed thereunder and by or under an order dt. 28th Feb. 1976, made by or under the authority of the Government of West Bengal and formed by the Trustees of the said Trust, by their resolution No 24 dt. 27th Nov. 1976, the Estate Manager of the said Trust was and has been appointed 'Prescribed authority', for the purpose of the said 1976 Act and by virtue of such power, the deponent, as the Estate Manager at all material times was and still is competent to terminate the tenancy, if any of the occupants of the flats appertaining to the concerned scheme or those belonging to said Trust and issue notice to quit upon the occupants and also recover possession of flats occupied by them in accordance with the procedure as prescribed by the said 1976 Act or the Rules framed thereunder. It was the further ease that the Trustees or that the Chairman of the said Trust was not under any statutory obligation to provide for any flat belonging to them to the petitioner or his wife Smt. Niharkana Paul or his brother Shri Ranjit Kumar Paul, by way of alternative accommodation in consequence of the acquisition of the premises in question and its claimed by them. It was also his case that the possession of the said premises, on acquisition, was taken from the erstwhile owner Shri Kalimuddin Chaudhury, for implementing the Streets scheme No. VIII-M, which again was duly sanctioned by the Government of West Bengal under Section 47 of the Calcutta Improvement Act 1911 (hereinafter referred to as the said Act). The deponent has further stated that the notification by which the Street Scheme was framed, was conclusive evidence of the framing and sanctioning of the concerned scheme under Section 49 of the said Act and the writ petitioner was neither entitled to nor allotted any flat appertaining to the concerned L.I.G.H. Scheme No. 1 or elsewhere belonging to the said Trust, on the allegation that he was a displaced person or a refugee from East Pakistan now Bangladesh or he was a person displaced from any premises or holding acquired by the said Trust or for their purpose.
10. The deponent has further stated that between January 1965 and April 1965 one Shri Ranjit Kumar Paul, claiming himself to be an Assistant Teacher in a Higher Secondary Multi Purpose School of Belgharia and stating his residential address at 42A, Harish Neogi Road, Calcutta and having a monthly income of Rs. 210/-, made an application dt. 14th Jan. 1965, which was followed by another application dated 9th April 1965, for having a proposed tenancy, to the Chairman of the said Trust. He, in fact, prayed for allotment of a residential two roomed flat in the said L.I.G.H. Scheme, for the purpose of residing there, with his aunt, niece and nephew and stated, that he was unable to pay high market rent for such type of flat. The said application was allowed and the said Shri Ranjit Kumar Paul was allotted Flat No. 39 in Block-IX of the concerned Scheme at a rent of Rs. 42.50P and service charges of Rs. 4.50P per month, apart from a deposit of an amount Rs. 47/-, by way of security, with effect from 1st May, 1965. Such allotment, the said deponent has stated, was made in terms of a tenancy agreement as executed, which stipulated that the concerned tenancy was liable to be terminated by 15 days notice on either side and the Trustees for the said Trust would re-enter and take possession of the flat in question in the event of the said Shri Ranjit Kumar Paul's monthly income became more than Rs. 250/- or his aggregate annual income goes over Rs. 3000/-. It has further been stated that on or about 25th Oct. 1967, the said Shri Ranjit Kumar Paul surrendered his Flat No. 39 in Block IX mentioned above and at his request, he was allotted Flat No. 27 in Block-X of the concerned Scheme, on a fresh application dt. 5th June 1967. The deponent has further stated that in the meantime, the writ petitioner, who subsequently transpired to be the brother of the said Shri Ranjit Kumar Paul, made an application dt. 1st April 1965, which was followed by another application dt. 11th Sept. 1965, applied for allotment of a two roomed Flat appertaining to the said L.I.G.H. Scheme, for the purpose of his residence with his wife and children, upon the necessary declaration that his monthly income was Rs. 245/- and that he was helpless, whereupon his application for tenancy was accepted on 8th Sept. 1965 and he was allotted Flat No. 27 in Block-X, on a rent of Rs. 42.50P and service charges 4.50 p. per month, apart from the said security deposit of Rs. 47/- with effect from 1st Oct. 1965, on consideration of his low income and dearth of accommodation, subject to the conditions as indicated hereinbefore. It has been stated that thereafter, the writ petitioner surrendered the said Rat No. 27 on 31st Oct. 1965, with a view to securing in his favour, allotment of Flat No. 39, which was surrendered by his brother Shri Ranjit Kumar Paul and on or about 25th Oct. 1967, he again made an application to the Chairman of the said Trust, for taking on rent, the said Flat No. 39, on usual terms. It would appear that such prayer was allowed on the same terms and condition as indicated hereinbefore and the writ petitioner deposited the necessary rent and service charges for the month of November 1967 and received possession of Flat No. 39.
11. The deponent has averred that the monthly income of the writ petitioner increased gradually and it appeared from a certificate dt. 31st Oct. 1975, issued by the Branch Manager, City Branch No. 9 of the Life Insurance Corporation of India, which was furnished by him, that he being a field staff of the said Corporation, drew a basic salary of Rs. 475/- per month and his total income with various other allowances, including city allowances, dearness allowances, house rent and entertainment allowances amounted to Rs. 1380.20P per month. The deponent has further stated that it also appeared from a certificate dt. 7th Jan. 1977, issued by the Branch Manager of the City Branch No. 2 of the Life Insurance Corporation of India and as furnished by the writ petitioner, that his basic salary rose to Rs. 500/- per month and his total income, inclusive of the other allowances, amounted to Rs. 1405/- per month. It was the case of the deponent that the writ petitioner was allotted the concerned Flat No. 39, on account of his low income at the relevant time and since his income increased subsequently and rose much beyond the concerned revised limit of Rs. 750/-per month, he ceased to be a person, who could come within the low income group and that being the position, there was no question of allowing him to continue in possession of the flat in question. It has further: been indicated that the family of the writ petitioner consisted and consists of himself and his wife Smt. Niharkana Paul and their offspring, some of whom have now become majors.
12. The deponent has further stated that in or about July 1974, the writ petitioner and his wife Smt. Niharkana Paul, acting in collusion and in conspiracy with each other and on misrepresentation of facts or on untrue statements and suppression of material facts, made an application dt. 8th July 1974, in the name of the said Smt. Niharkana Paul, for allotment of Flat No. 40 appertaining to the concerned L.I.G.H. Scheme, with a view to regularising her unauthorised occupation of the said Flat No. 40, fraudulently, and secured allotment of the said Flat No. 40 in her name. Before dealing with the other statements as contained in the affidavit, we must keep it on record that the way and the manner in which the allotment of Flat No. 40 has been obtained, even though the same was fraudulent or collusive, the authorities of the said Trust, who were in charge of the concerned L.I.G.H. Scheme, must not get any credit, as admittedly they have failed and neglected to have proper verifications done and perhaps by some other means, the allotment in favour of the lady, was obtained, even though her husband was having another allotment of Flat No. 39.
13. The deponent has further stated that both the writ petitioner and his wife Niharkana Paul at all material times occupied and still are occupying Flats Nos. 39 and 40 respectively and it has also been alleged that they have made unauthorised pucca construction and fixed a wooden door for the purpose of converting the said two flats into a composite one, without any permission from any of the authorities, who are Respondent herein and such act on their behalf, was illegal. It has been stated that on an enquiry, the Trustees and the Chairman of the said Trust got the facts as aforesaid, revealed through their Estate Inspector. At this stage, we must keep on record that during the course of hearing, we could gather the statements as recorded hereinbefore to be true and as such, we directed Mr. R. N. Mitra who was appearing for the writ petitioner/ respondent, to have removed the construction, if any, and whereby the two flats were sought to be made one, for the necessary enjoyment. In fact, on a subsequent date of hearing, Mr. Mitra informed us that the wooden door which was fixed permanently for the purpose of having the enjoyment of the said flats as one, has been removed and to show and establish that, two photographs, which were taken on 11th May 1985, were produced by Mr. Mitra. It would appear from photograph No. 1 as marked by us and that the writ petitioner is shown to be sitting before the door, which was so fixed and the purposes as mentioned above and photograph No. 2 as marked by us, would establish that the said door has been removed. The said photograph No. 2 would also establish that flats Nos. 39 and 40 were and are the two flats and by putting the permanent door as in photograph No. 1, they were sought to be enjoyed as one. We direct the said photographs to form a part of this record and the order. Such permanent door, even though the same was wooden, cannot be said to have been fixed in one day and we are certain that not only some time as required for fixing the same, but there were stacking of materials for the purposes of fixing the door, which again, perhaps for more than one day. We are sure that for the constructions in the L.I.G.H. Scheme, there is a Caretaker to look after the properties of the said Trust and we fail to understand, what the Caretaker was doing, unless of course this permanent door was fitted with his knowledge and connivance. It is high time that the authorities of the said Trust should take steps and see that such clandestine acts are not permitted to be done by the Residents of the different flats. We make such observation, as we are informed on the face of the statements as made in the affidavits, that there are other tenants who have raised similar constructions in the concerned L.I.G.H. Scheme. Such act of the writ petitioner and his wife, to transform the two flats in question, in one, for the matter of enjoyment, was certainly illegal, unauthorised and improper. It appears that after the mischief was done, the authorities of the said Trust have risen from their slumber and now in their affidavit and that too through the deponent has stated, that the writ petitioner and his wife were not entitled to have such constructions raised or to use the said two flats as one.
14. It has also been stated that in the meantime, the writ petitioner has also violated other terms and conditions of his tenancy in respect of Flat No. 39 and parted his possession of the same with a third person viz. Shri Nitya Paul, who was or is an Officer of the Life Insurance Corporation of India and in such circumstances as indicated above, the notice dt, 18th Jan. 1977, was issued, requiring him to quit and vacate the said Flat No. 39 and deliver peaceful and vacant possession of the same to the said Trust. It has been slated that thereafter, the writ petitioner made some representations against the concerned notice to quit dt. 18th Jan. 1977 and challenged the legality and validity of the same. The deponent has stated that since the said notice was merely a request, the same was not acted upon, but thereafter, a resolution of the Housing Committee meeting to the following effect Pursuant to resolution No. 3 of the Housing Committee meeting held on the 14th Feb.1977, the Committee considered the letter dt. 25th Jan. 1977 from Sri Nityananda Paul, R & T of Fiat No. IX-39 in CIT Scheme No. L.I.G.H with the Secretary's endorsement thereon and the notes dt. 9th Feb. 1977, 9th Mar. and 25th Mar. 1977 of Sri D. Chowdhury, Valuation Officer (North) endorsed by the Chief Valuer regarding allotment of the said flat to him as displaced person of premises No. 42A. Harish Neogi Road, acquired by the Trust in connection with CIT Scheme No. VIII-M in the context of service of Notice to quite due to his income being higher than the prescribed ceiling of Rs. 750/- per month. The Committee opined that Sri Nityananda Paul was not allotted the flat as alternative accommodation of L.A.A.'s award but was given the flat on other considerations. Since Sri Paul's income was more than the prescribed ceiling of Rs. 750/- per month there was no point in allowing him to continue with the tenancy of Flat No. IX-39 in CIT Scheme No. L.I.G.H. It was, therefore, decided that Sri Paul would be evicted from the flat after service of due notices with the usual manner, was passed on 25th April 1977, which again was confirmed by the Board of the said Trust on 30th April 1977 and on the basis thereof, the impugned notice dt. 5th May 1977, the particulars whereof have been quoted hereinbefore, was issued under the said 1976 Act and requiring thereby the writ petitioner, to vacate the said Flat No. 39 on the basis that his income was higher than the ceiling prescribed for L.I.G.H. flats. It has also been stated that in spite of such notice and due receipt thereof, the writ petitioner has failed, refused and neglected to quit and vacate the flat in question and that being the position. 6th June 1977, was the date fixed by the respondent 4, Estate Manager of the said Trust, to recover vacant possession of the said Flat No. 39, if necessary, with Police help. It has also been pointed out that on that date the Rule on the disposal whereof, the present appeal has been preferred, was obtained and that according to the deponent, was on suppression of material facts or misrepresentation of them and on untrue allegations. Save as aforesaid, other material allegations have also been denied by the said deponent.
15-16. In his reply dt. 11th July 1979 to the affidavit-in-opposition, apart from denying the material allegations, the writ petitioner has stated that steps sought to be taken against him, were contrary to law and beyond the jurisdiction, authority and competence of the authorities of the said Trust and he claimed further, that the writ petition was maintainable in view of the determinations in the case of Sukumar Banerjee v. Chairman, Calcutta Improvement Trust, 82 Cal WN 392 : (AIR 1978 NOC 128). The writ petitioner has further stated that the temporary wooden gate which has been fixed adjacent to his flat, was really fixed with the permission of the then Estate Manager and the Caretaker, as at that time, there were pilferage and theft cases in the concerned Block of Flats, apart from other serious local disturbances.
17. Mr. Ghosh, appearing in support of the appeal pointed out that the determinations as made by the learned Trial Judge, was contrary to another determination of Justice Mrs. Padma Khastgir in the case of Calcutta Electric Supply Corporation Ltd. v. State of West Bengal, 1979 (2) Cal HN 448. The petitioner, the Electric Supply Corporation in that case, was a tenant in respect of two rooms under the Improvement Trust Calcutta, received a notice to quit from the Estate Manager of the Trust under Section 106 of the Transfer of Property Act, read with Section 3(1) of the Government Premises Tenancy Act, requiring the petitioner to quit the premises and deliver possession thereof within one month from the receipt of the said notice. The petitioner challenged the validity of the said notice inter alia on the grounds that the provisions of the Government Premises Tenancy Act are not applicable to the tenancy in question as the premises is not Government premises within the meaning of Section 2(a) of the said Act, nor the Trust, the lessor, an undertaking or department of the Government, that the notice requiring possession to be delivered within one month from the receipt of the same was bad and that the Act itself is had as it does not provide for any opportunity of being heard given to the affected person and considering the diverse provisions of the said Act which have created the said Trust and it has been held that it would appear from Section 2(a), that any premises which is owned either by the Government or by Government undertaking as defined in the Act would be attracted under the provisions of the Act, apart from holding that considering the entire scheme of the Act, it would appear that although the Trust is not a proprietary concern of the State Government, it is under administrative control of the State Government. Some of the provisions of the Act indicate that it was the intention of the legislature to keep a complete control over the functions of the Trust by the State of West Bengal. As such, the Calcutta Improvement Trust comes under the purview of Section 2(b) of the Government Premises Tenancy Act. It has further been held in that case that the premises involved, as owned by the Trust is a Government premises as the Trust is a body constituted under the Act and is also under the administrative control of the State Government. The notice served under Section 3 of the Act is valid, it would appear that in the determination as mentioned above, another unreported judgment delivered on 1st June 1979 by Sabyasachi Mukharji, J. in Purushottam Das v. Trustees of the Improvement of Calcutta, has been referred to and relied upon, in which case, the learned Judge had to consider a notice served under Section 3(iii) of the said 1976 Act. In that case, the petitioner was a tenant in respect of a flat of the Calcutta Improvement Trust and the notice was challenged on various grounds. It was also contended in that case that the provisions of the said Act did not apply to premises in question as it was not a government premises nor is it a government undertaking premises which is under the administrative control of the government. As such, it was contended there that this Act had no application and it was further urged that the impugned notice was vagae. It was also contended in that case that the Act did not provide for any hearing or opportunity to controvert any unilateral allegation on the part of the authorities. As such, it gave arbitrary powers in the hands of the authorities and there the learned Judge directed the stay of the operation of the notice for two months and in the meantime directed the Estate Manager, Calcutta Improvement Trust to hold an enquiry to find out whether the breach of agreement alleged has been taken place and the petitioner has kept the flat under lock and key and on enquiry if the Estate Manager has come to the conclusion that the Flat had been kept closed for a long time the impugned notice will be given effect to. There the validity of the Act was also challenged. On such basis, the learned Judge in the reported judgment as mentioned above, has observed that from the nature of the order passed, it appears that the learned Judge permitted the said notice to take into effect after two months and after proper enquiry as to whether the flat was kept under lock and key although not in express terms, the learned Judge came to the conclusion that the statute was valid and allowed the notice to take effect after two months and has also observed that by allowing the notice to take effect, by implication, the learned Judge had rejected all the contentions raised by the petitioner that the building owned by the Calcutta Improvement Trust did not fall within the definition as given under Section 2 of the West Bengal Government Premises (Tenancy Regulation) Act, 1976 and all other identical points taken regarding validity of the said statute.
18. Mr. Ghosh stated that the said Act was incorporated to make provisions for the improvement and expansion of Calcutta, by opening up congested areas, lying out or altering streets, provided open spaces for purposes of ventilation or require demolition or structuring buildings, clearing bustees, executing housing scheme and schemes for the re-housing of persons displaced by the execution of improvement scheme, acquiring land for the said purposes and all works relating thereto and otherwise, as hereinafter appearing, the Board of Trustees of the said Trust, was pointed out by him, to be constituted and invested with special powers for carrying out of the clients of the said Act. It was also pointed out by him that except otherwise provided in the said Act, the same shall extend only to Calcutta Municipality; but any provision which extends only to the Calcutta Municipality may be extended by the State Government entirely or in part, by notification under the procedure prescribed by Section 148, to any specified area in the neighbourhood of that Municipality. It was further pointed out by Mr. Ghosh that the scheme of the Act would prove and establish that the administrative control of the said Trust or over the same was and is with the State Government.
19. Section 3 of the said Act, deals with creation and incorporation of Board and lays down that the duty of carrying out the provisions of this Act shall, subject to the conditions and limitations hereinafter contained, be vested in a Board, to be called, 'The Trustees for the Improvement of Calcutta'; and such Board shall be a body corporate and have perpetual succession and a common seal, and shall by the said name sue and be sued and Section 4 deals with the constitution of the Board with eleven Trustees and further lays down in Sub-section (a) that the Chairman should be appointed by notification by the State Government, apart from the fact that the members as mentioned in Sub-section (d), to be elected in the manner as prescribed by rules by the State Government and in terms of Sub-section (d), four other persons be appointed by the State Government by notification. After referring to the above provisions, Mr. Ghosh referred to Section 10 of the said Act, which postulates that the Chairman should ordinarily be a whole time officer and the State Government may require him to hold some other salaried office in addition to the said office of Chairman or may permit him to perform any honorary duties, which in their opinion will not interfere with the performance of duties under the said Act. Section 17 of the said Act deals with the term of office of the Trustees of the said Trust and such term also was pointed out by Mr. Ghose commencing on and from such day as may be appointed by the State Government. Section 25 of the said Act deals with execution of contracts and approval of estimates and Mr. Ghose, on a reference to the second proviso to Sub-section (1) of that section, pointed out that contracts involving an expenditure exceeding five lakhs of rupees cannot be made without the previous sanction of the State Government. On a reference the proviso to Section 27 of the said Act, Mr. Ghose pointed out that in case of execution of contracts without inviting tenders and that too on reasons being recorded, the sanction of the State Government would be necessary. Similarly, he pointed out that Sub-section (3) of Section 27 makes it explicit that in case of acceptance of a tender which would involve an expenditure exceeding five lakhs, the Board shall have to furnish necessary particulars, specifications and estimates for the necessary sanction of the State Government and Sub-section (4) of the section also speaks of the control of the State Government over matters as specified therein. Mr. Ghose also pointed out that under Section 29 of the said Act, the Chairman of the said Trust is also required to supply documents and informations to the State Government. On a reference to the above provisions, Mr. Ghose contended that in the conduct of their business, the State Government should be deemed to have control over the said Trust.
20. Thereafter, on a reference to Sections 30, 31, 33 and 34 of the said Act, Mr. Ghose contended that the said Trust was really under the control and supervision of the State Government in the matter of their officers and servants and more particularly for their terms of service and conditions of employment in some cases and the more so, in terms of Section 33, the sanction of the State Government is required to approve certain statements, rules and orders.
21. Chapter III of the said Act, containing Sections 35A to 67 deals with Improvement Schemes and on a specific reference to Section 38(4), Mr. Ghose pointed out that in some cases and circumstances, the State Government is required to consider every reference under Sub-section (3), if the Board fails, for a period of twelve months, after the receipt of any official representation made under Section 37 to intimate their concerned decision to the Corporation. The said Section 37 empowers the Corporation to make an official representation in terms of Section 36 of the said Act. After this, on a reference to Section 39B, it was pointed out by Mr. Ghose that sanction of the State Government is also necessary for the rehousing of persons, if any, displaced by the execution of an improvement scheme and it was pointed out by him that above is not the all, as in case of provisions to be made for rehousing of Bustee dwellers and that too in case of certain schemes as indicated in Section 39C(1), (2) and (3), approval of the scheme and the sanction of the same has to be obtained from the State Government. Section 47 deals with abandonment of improvement scheme and further gives the authority to the Board either to abandon a scheme as framed on consideration of the factors as laid down and to apply to the State Government, for sanction of the same, with such modifications, if any, as the Board may consider necessary and on such also, Mr. Ghose pointed out the authority of the State Government over the Board or that the Board was under the control and supervision of the State Government. These submissions were in fact made by him on a reference to Section 47(3). Then, Mr. Ghose pointed out the powers of the State Government under Section 48 viz., either to sanction or reject the Improvement Scheme and he also pointed out, that under Section 50 and more particularly under Sub-sections (a), (b) and (d), the State Government retains some financial and procedural control over the Board, even though under Section 50 they have the right, to alter Improvement Schemes, even after sanction. It was then pointed out by Mr. Ghose that even when under Section 54 of the said Act, when buildings or land vested to the Corporation or the Commissioners of a Municipality are transferred to the Board for the purposes of Improvement Scheme, the question of determining disputes, if any, is left with the State Government, on a reference to be made under Section 54(5) of the said Act. It was also pointed out by him that even the plan of proposed public street or proposed public park may be required to be submitted to the State Government under Sub-section (5) of Section 63 and under Sub-section (6) the said Government may sanction either with or without modification, or may refuse to sanction, such proposed scheme. It was further pointed out by Mr. Ghose that even in case of difference between the Board and the Corporation of Calcutta, in matters relating to Improvement Scheme, the dispute is required to be referred to the State Government and their decision on the point would be final.
22. It was then pointed out by Mr. Ghose that even in case of acquisition and disposal of land, the State Government plays a vital role. To establish such submissions, reference was made to the explanation to Section 68 of the said Act, which shows that the Board in a given case under the said section should exercise the necessary power after obtaining sanction from the State Government. It was then shown that under, Section 69, even in case of compulsory acquisition, the Board has to act after the previous sanction of the State Government. It was also pointed out under Section 74 of the said Act, for the appointment of the Tribunal and its officers and servants or for their terms of service and conditions of employment, the State Government has important control and the Rules of the Tribunal are also required to be framed with the previous sanction of the State Government under Section 76(1) and in case of abandonment of acquisition under Sub-section (4)(ii) of Section 78, the Slate Government has some say or acts, to be done in appropriate cases.
23. Then, Mr. Ghose, on a reference to Section 86 of the said Act indicated that the State Government has the power to make Rules for carrying out the purposes of Chap. V, which deals with Taxation and in terms of Section 89 in Chap. VI, in case the Board is required to borrow, the rate of interest, the period of such borrowing or the terms thereof and the method of repayment, is really controlled by the State Government or on the basis of their approval and that apart, under Sections 92 and 93, even in case of loans from Banks or diversion of borrowed money to purposes other than those first approved, the previous sanction of the State Government is necessary. The sanction of the State Government was also pointed out to be required and necessary under Section 93, in case of borrowings by the Board on debentures as those debentures are to be in the form sanctioned by the State Government. It was also indicated that under Section 98, in case of repayment of loans taken under Section 89, necessary approval with regard to the period is also required to be obtained from the State Government and such approval is also required to be taken from the State Government in respect of establishment and maintenance of sinking funds and under Section 105, the State Government has also some control over the formulation of necessary procedure, if the Board fails to make any payment or investment in respect of loans and such submissions were made with special reference to Sub-section (2) of Section 105, which also speaks of reimbursement to be made by the State Government in some given cases. On a reference to Sub-section (3) of Section 108, Mr. Ghose pointed out that the terms therein would establish some control of the State Government over Budget estimates and furthermore, such control, according to him, cannot be denied or overlooked as under Section 110(1), every such estimate, as sanctioned by the Board, is required to be submitted to the State Government, who may, within the time as stipulated, either approve or disallow the estimate. While on the point of approval of such estimate, further reference was made by Mr. Ghose to Section 111 of the said Act. Mr. Ghose pointed out that Section 114(1) requires that the Board cannot spend any sum, unless the expenditure of the same is covered by a current budget grant or can be met by reappropriation or by drawing on the closing balance and under Sub-section (2) thereunder, the previous sanction of the State Government is necessary, it such closing balance is reduced below one lakh of rupees and that apart, under Sub-section (4), the State Government is required to be informed forthwith, if any sum exceeding five thousand rupees is spent for meeting some pressing emergency.
24. Section 115 of the said Act, to which reference was also made by Mr. Ghose, to establish the control and supervision of the State Government in respect of deposits to be made to the Banks by the Chairman of the sums that would be received by or payable to the Board and such control of the State Government over the surplus money available to the Board or for the investment thereof, was pointed out by him to be with the State Government under Section 116 of the said Act and such power of superintendence of the State Government over sale of securities, in which any surplus of the revenue account is invested, was claimed by Mr. Ghose is with the State Government under Section 126. The Board, under Section 127(1) has the power to advance from revenue account to capital account and there also Mr. Ghose claimed, that under Sub-section (2), the State Government has some control. It was further pointed out by him that under Section 129, the Board is required to submit to the State Government, at the end of each half of every financial year, incorporating an abstract of the accounts of their receipts and expenditure. To establish the control of the State Government, Mr. Ghose also pointed out that under Section 132, the Board is also required to pay the remuneration of the Auditors, in terms of the directions of the State Government and the Auditors are also required under Section 133, to report to the State Government regarding any irregularity in the recovery of money due to the Board or in their account. Section 138 lays down the further powers of the Board in the matter of making Rules and such power also, as pointed out by Mr. Ghose, is controlled by the State Government, not only in view of the provisions of Section 138, but also in view of the provisions of Sections 139(b) and 140. In fact, Section 140 lays down that no rules under Section 138 shall have any validity unless and until, the same is sanctioned, with or without modification, by the State Government. It was also pointed out that under Section 144, the State Government, has the power to cancel any Rule made by the Board under Section 138.
25. The fact that Section 145 of the said Act, the Trustees, and every officer and servant of the Board, and every member and officer and servant of the Tribunal are to be considered as 'public servant'' within the meaning of Section 21 of the Penal Code, was also pointed out by Mr. Ghose, in support of his submissions under consideration. Then, he made a reference to Section 146, which makes provisions for contributions by the Board towards leave allowances and pensions of servants of the Government employed under the said Act and while on the point, lastly and finally, references were made by Mr. Ghose to Sections 176(1), (2) and 177, which amongst others respectively gives the State Government power to take appropriate steps, if it appears that any duty or tax imposed by Chapter V or any payment required by Section 88, or any portion of any such duty, tax or payment, as the case may be, is not required for the purposes of the said Act and to dissolve the Board by necessary declaration, from such day as may be specified by notification, when all schemes sanctioned under the said Act have been executed.
26. After placing the above provisions and considering them with the preamble of the said Act, Mr. Ghose contended that the object should be deemed and held to be that State Government is the final authority or at least such authority, which has great or at least some say in respect of the Constitution of the Board or the Board of Trustees, the improvement schemes of the said Board, acquisition and disposal of lands by them, their taxation policy and scheme, their finance and laying down or framing and formulating the Rules of the said Trust, apart from having control over supplemental provisions, like contributions towards leave allowances and pensions of servants of the Government, extension of the provisions of the said Act to areas in the neighbourhood of the Municipal limits of Calcutta, suspension or abolition, and reimposition of taxation or Municipal contributions and resolution of the Board. It was also pointed out by him that the said Trust has been established by the State Government under their statutory power, authority and control and as such, the same is, and should be held and deemed to be an instrumentality of the State and thus and above being the position, it was Mr. Ghose's specific and categorical submission that the said Trust is not only under the administrative control of the State Government, but the said Government has also proprietary interest over or in the said Trust.
27. The notice dt. 5th May 1977, which as indicated hereinbefore, was issued under or in terms of Section 3(2) of the said 1976 Act, made it clear that if the writ petitioner failed to comply with the terms thereof, possession of the said premises would be taken under Section 4(2) of the said 1976 Act. The said notice also stated that the tenancy in respect of the said premises was terminated automatically as the income of the writ petitioner, at the relevant time became higher than the ceiling prescribed for the L.I.G.H. Flats. It was also pointed out that the ceiling at the relevant time was prescribed by Resolution No. 4 of the Housing Committee of the said Trust as held on 17th Mar. 1976, to be Rs. 750/- per month. By another resolution of the Housing Committee dt. 25th April 1977, as confirmed on 30th April 1977, it was resolved that since the writ petitioner's income was more than the prescribed ceiling of Rs. 750/-per month, there was no point in allowing him to continue with his tenancy of Flat No. LX-39 in C.I.T.. Scheme No. L.I.G.H. 1. There was no dispute about the service of the aforesaid notice on the writ petitioner. We think that at this stage, the relevant provisions of the said 1976 Act, as indicated in the notice should be stated. They are as under : --
3(2) A tenancy in respect of a Government premises shall stand automatically terminated without any notice to quit where the tenant has, --
(i) violated the terms of the lease, or
(ii) made default in payment of rent for three consecutive months
Provided that where the tenancy has terminated on account of default in payment of rent for three consecutive months the prescribed authority may upon application made by the tenant within such time as may be prescribed and upon deposit of all the arrears of rent together with interest at the prescribed rate, grant renewal of the tenancy in favour of the tenant:
Provided further that the prescribed authority may on sufficient cause being shown, grant renewal of the tenancy in favour of the tenant on deposit of fifty per cent of the arrears of rent along with the application for renewal of tenancy and direct the tenant to deposit the balance of the arrears of rent with interest on the entire amount at the prescribed rate in twelve monthly instalments commencing from the month following the month of such renewal of tenancy, and if the tenant fails to deposit any such instalments the tenancy so renewed shall stand automatically terminated :
Provided also that notwithstanding the termination of that tenancy the State Government or the Government undertaking, as the case may be, shall be entitled to recover all arrears of rent for the period for which the tenancy subsisted and mesne profits thereafter for so long as the tenant remained in occupation of the premises.
4(2) If the tenant fails to restore possession of the premises under Sub-section (1), the prescribed authority or any officer authorised by him in this behalf may take such steps or use such force as may be necessary to take possession of the premises and may also enter into such premises for the aforesaid purpose.
We think, apart from the above definitions of 'Government premises' and 'Government undertaking', as in Section 2(a) 'Government premises', means any premises which is owned by the State Government or by a Government undertaking but does not include the official residence of any person to occupy any premises in consideration of the office which he holds under the State Government or a Government undertaking for the time being;
2(b) 'Government undertaking' means a body corporate constituted by or under a Central or State Act which is under the administrative control of the State Government or in which the State Government has exclusive proprietary interest, would be relevant for our consideration, apart from the definitions of 'premises' and 'tenant' under the said 1976 Act, which are as under : --2(c) 'premises' means any building or hut and includes part of a building or hut and a seat in a room, let separately, and also includes, --(i) the gardens, grounds and outhouses, if any, appurtenant thereto, (ii) any furniture supplied or any fitting or fixtures affixed for the use of the tenant in such building, hut or seat in a room, as the case may be.
2(f) 'tenant' means any person by whom the rent of any premises is, or but for a special contract would, be, payable and includes in the event of such person's death, such of his heirs as were ordinarily residing with him at the time of his death.
On a reference to the sections indicated hereinbefore and so also the agreement creating the tenancy and the other intrinsic evidence from the documents as disclosed with the affidavit-in-opposition dt. 13th Mar. 1978, as filed through the Estate Manager of the said Trust, Mr. Ghose wanted to supplement his submissions as earlier recorded on the character of the said Trust and the different controls of the State Government over the same and also stated that since the income of the writ petitioner or his family crossed both the earlier and the subsequent limits for holding flats in L.I.G.H. Scheme 1, so by the concerned notice, his tenancy was duly determined and he was not entitled to stay in the concerned flat, if not for other grounds, but at least on such ground of crossing the minimum requirements of income. In fact, because of their diverse controls over the said Trust, Mr. Ghosh claimed that the State Government have administrative control over the said Trust and that being the position, he contended that thus the proprietary control over the said Trust was and is also with the State Government. It was categorically submitted that even though the said Trust was created by the said Act, but the real control over the same was left with the State Government. To find out, if the said Trust was a Government undertaking, Mr. Ghosh contended that the safest test would be to find out if the Government has administrative and proprietary interest and in this case both the said tests, according to him, have been satisfied, to answer such question in the affirmative. That apart, Mr. Ghose stated that the existence of domain over property being the test to find out proprietary interest, the said answer should also be in the affirmative.
28. It should be noted that two notices dt. 18th Jan. 1977 (Annexure C) and 5th May 1977 (Annexure 'D') were challenged in the writ proceedings. It has already been indicated that the notice in Annexure 'C' was not given effect to or acted upon and in fact, steps in the matter of trying to evict the writ petitioner, was sought to be taken on the basis of the notice in Annexure 'D'. It was claimed and contended by Mr. Ghose that if that notice fails or is not treated or deemed to be due, proper, valid and legal under the said 1976 Act, then the same should be treated and deemed to be under Section 106 of the Transfer of Property Act, because of the terms of the same and more particularly when by the said notice, the writ petitioner was asked to deliver vacant and peaceful possession of the said premises, practically and in effect and that too in terms of the same, at the end of the month of the tenancy. It should of course be noted that the notice in question is silent about Section 106 and the same was not a composit one. While on the question of domain, Mr. Ghose stated that such domain should be deemed to have been kept by the State Government, as they have reserved the power to constitute the said Board in the manner as indicated in the statute viz the said Act, amongst others, in respect of appointment, expenditure and fund. He also referred to the exercise of such domain or maintenance of control by the State Government in respect of other matters as indicated hereinbefore. Such being the position, it was Mr. Ghose's specific submissions that the said premises is a 'Government premises' in terms of Section 2(a) of the said 1976 Act and thus the notice in Annexure 'D' as impeached, was in order or should be deemed to be in order and that being the position, in the facts and circumstances of the case, there was automatic termination of the concerned tenancy, on account of the violation as mentioned hereinbefore, in terms of Section 3 of the said 1976 Act and more particularly in terms of Sub-section (2) thereunder. It was categorically claimed by him that since there was and has been violation of the terms of the tenancy viz., the writ petitioner had crossed the income group, for which the concerned L.I.G.H. 1 Scheme was applicable and more particularly when the same was applicable in respect of low income group and the writ petitioner, because of his subsequent increase in income as ndicated hereinbefore, had lost any protection under the said 1976 Act. It should be noted here that in the case of Calcutta Electric Supply Corporation Ltd. v. State of West Bengal 1979(2) Cal HN 448) (supra), Justice Mrs. Khastgir has held and observed that administrative control over the said Trust under the said Act is with the State Government, the more so when, the said State Government is superior to the said Trust even under the statute. That apart, the said learned Judge has further observed that the State Government has complete control including statutory control over the said Trust.
29. Mr. Mitra appearing for the writ petitioner, who is respondent 1 before us, referred to Section 3 of the said 1976 Act and thereafter, on a further reference to the notices as impeached, pointed out that the real reason for purporting to terminate the tenancy of the writ petitioner in the instant case being that his income became higher than the ceiling prescribed for L.I.G.H. flats, the notice in question cannot be given effect to or allowed to be operated and deemed to be a proper one under the provisions of the said 1976 Act. It was his specific submissions that so far as the right and character to hold such a flat as in this case under the concerned scheme, the relevant income of the allottee should be deemed to be the income, which he had or was having on the date of entry and not the enhanced income which he may have after some time of his occupation of the concerned flat. In fact, he claimed that the relevant time on such aspect would be the point of entry and the fact, that subsequently his income had increased and thereby he had exceeded such income, which he was having at the point of entry, would be no ground for termination of the tenancy under the provisions of the said 1976 Act and such being the position, the enhancement of the income of an allottee than Rs. 750/- per month for the concerned L.I.G.H. flats, as sought to be made by the said Trust subsequently, would have no application or would be of no avail in the facts and circumstances of this case.
29A. It was then submitted by Mr. Mitra, that while making her determinations in the case of Calcutta Electric Supply Corporation Ltd. v. State of West Bengal (1979(2) Cal HN 448) (supra), the learned Judge had really missed and misconstrued the scheme of the said Act or the background of the same. In fact, he submitted that such history and background of the said 1976 Act, has not actually and 'really been considered by the learned Judge. Mr. Mitra referred to the definition of 'local authority' under Section 3(31) of the General Clauses Act, which means a Municipal Committee, District Board, Body of Port Commissioners or other authority legally entitled to, or entrusted by the Government with the control or management of a Municipal or local fund and stated, that the definition in Section 2(b) of the said 1976 Act as quoted hereinbefore, really deals with District Board, Body of Port Commissioners and not with a Municipal Committee. In fact he submitted that the definition of 'Local authority' as mentioned hereinbefore, would mean and include (1) a Municipal Committee, (2) District Board, (3) Body of Port Commissioners or (4) other authority. He then referred to Sections 4, 19(3), 23, 25(4), 41, 53, 55(2), 57, 66, 84, 86, 110, 111, 113, 114, 115, 116-118, 121(a), 130, 160, 169, 171 and 343 of the Calcutta Municipal Act, 1951 and stated that those sections would also establish some administrative control of the State Government over the Municipal authorities, but that would not make those authorities, a Government undertaking nor would be enough to hold that the State Government has administrative control over such authority. In fact, it was submitted by him that administrative control of the State Government as pointed out by Mr. Ghose, was only due to the subordination of the said Trust under the State Government, which again would not mean that the said Trust is really under the administrative control of the State Government. Those sections as referred to by Mr. Ghose or the submissions as made by him were pointed out by Mr. Mitra, to have no application in respect of local authorities in the instant case. It was further pointed by Mr. Mitra that the concerned flat in the said premises, admittedly belonged to the said Trust and the object of the L.I.G.H. 1 Scheme was to provide persons working for gain in or around Calcutta and, having income not exceeding Rs. 250/- per month, but who had no suitable place to live in, on account of their inability to pay for the same, at a less than economic or market rate. It was his further submission that tenancy of the writ petitioner in the instant case was not duly and actually determined in terms of the agreement.
30. Mr. Mitra also pointed out that the said premises was initially requisitioned and thereafter demolished and in the facts and circumstances of the case or the background as disclosed, the writ petitioner had a right under the concerned 1951 Act or received the right to claim and occupy the concerned flat, in terms of the agreement in question and since there has been no violation of such agreement or any real infraction of the same the steps as sought to be taken by the said Trust, were irregular, void, illegal and unauthorised.
31. On the basis of the submissions which were advanced before us and on consideration of the relevant provisions of the said Act and so also those of the said 1976 Act, we are of the view that the said Trust, in view of its composition and character and also because of the control, both administrative and proprietary, which the State Government has, would be holding a 'Government premises' under Section 2(a) of the said 1976 Act since the said Trust, can be treated as a 'Government undertaking' in terms of Section 2(b) of that Act. That being the position, we feel and hold that the said Trust would be entitled to apply the provisions of the said 1976 Act, for the purpose of terminating the tenancy of their tenants in respect of the concerned flats, if there is or has been any infraction of the agreement in question. But, we hold that the fact that the income of the tenant in question, from the time of entry into the tenancy has increased subsequently and thereby he has lost the character of such entry on the basis of his earlier income, as was argued before us, had no basis. Such tenancy should be decided on the basis of the income of the tenant at the time of entry into the premises and not afterwards. We further hold that on the available evidence, it would be manifest that some portion of the capital, control, management, audit and powers of the said Trust are controlled and directed by the State Government and in an appropriate case, we shall have to consider the effect of the other submissions of Mr. Mitra, in respect of the Corporation of Calcutta under the Calcutta Municipal Act or the present Municipal Corporation Act.
32. Above being our findings, we allow this appeal in part and set aside the judgment and order of the learned trial Judge, in so far as the same holds that the said 1976 Act has no application, so far the said Trust is concerned or the said Trust would not come within the purview of Section 2(b) of the said 1976 Act.
33. Even in spite of our determinations as above, we cannot agree with the submissions of Mr. Ghose and that too, in view of our findings as above, that the writ petitioner in the instant case has lost his qualifications and character of holding the tenancy in view of his subsequent increase in the income than the income at which he had initially entered the premises.
34. Thus, the appeal is allowed in part. There will be no order as to costs.
35. Before we leave the matter, we must keep our disapproval to the manner in which the authorities of the said Trust, who are in charge of the said premises, as we feel that they have failed to discharge their duties in the matter of looking after the properties of the said Trust duly, inasmuch as because of their laches, the writ petitioner had placed the wooden partition or door and thereby got the two flats being Flats Nos. 39 and 40 as shown in picture No. 2, transformed into one, for the purpose of the use of his family as one unit. We are also conceives that in this proceeding we cannot issue an order of injunction against the writ petitioner, for the manner and the way in which he has sought to transform the two tenancies into one, but one thing is certain, that by such doing or such action, he has acted contrary to the terms of the agreement and if he does so in future, that would expose himself to the rigours of the said 1976 Act.
Amarendra Chandra Sen Gupta, J.
36. I agree.