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Dr. Mahendra Chandra Bhattacharjee Vs. Abani Bhusan Bhattacharjee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberC.O. No. 714 of 1983
Judge
Reported inAIR1985Cal108,1984(2)CHN57,88CWN981
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(1), 29B and 29B(1); ;Transfer of Property Act, 1882 - Section 53A
AppellantDr. Mahendra Chandra Bhattacharjee
RespondentAbani Bhusan Bhattacharjee and anr.
Appellant AdvocateB.C. Dutt, ;S.P. Roychowdhury and ;Anit Kr. Rakshit, Advs.
Respondent AdvocateSanjay Bhattacharjee and ;Chandrima Bhattacharjee, Advs. (for No. 1) and ;S.K. Chakraborty and ;Tapan Kr. Mukherjee, Advs. (for No. 2)
Excerpt:
- .....4/81, is the subject matter of challenge in this revisional application. the applicant before the rent controller (hereinafter referred to as the plaintiff) is the petitioner before us and the application is being contested by the opposite party 2 (hereinafter referred to as defendant 2).2. according to the plaintiff, he purchased flat no. 2, block 'd', at premises no. 58/3, ballygunge circular road, calcutta, from a co-operative society in terms of an agreement. for effecting such a purchase he paid a sum of nearly rs. 61,000.00 and incurred a loan to the tune of rs. 50,000.00 from the co-operative society which was to be repaid on instalments. plaintiff's further case is that after such purchase but before he could take delivery of possession of the flat from the co-operative society,.....
Judgment:

Anil K. Sen, J.

1. An order dated November 22, 1982, passed by the Rent Controller, Calcutta, dismissing an application under Section 29B, West Bengal Premises Tenancy Act (hereinafter referred to as the said Act), which was registered as Eviction Case No. 4/81, is the subject matter of challenge in this revisional application. The applicant before the Rent Controller (hereinafter referred to as the plaintiff) is the petitioner before us and the application is being contested by the opposite party 2 (hereinafter referred to as defendant 2).

2. According to the plaintiff, he purchased flat No. 2, Block 'D', at premises No. 58/3, Ballygunge Circular Road, Calcutta, from a Co-operative Society in terms of an agreement. For effecting such a purchase he paid a sum of nearly Rs. 61,000.00 and incurred a loan to the tune of Rs. 50,000.00 from the Co-operative Society which was to be repaid on instalments. Plaintiff's further case is that after such purchase but before he could take delivery of possession of the flat from the Co-operative Society, he had to leave India on deputation service and as such, he let out the said flat to one Abani Bhusan Bhattacharjee, defendant 1, at a monthly rent of Rs. 1,800.00 to be paid in the manner agreed to between the parties but not relevant for the present purpose. The flat was so let out to defendant 1 sometime in April 1977 and the Co-operative Society gave delivery of the flat to defendant 1 on November 2, 1977. According to the plaintiff, defendant 1 in his turn inducted defendant 2 as a subtenant in respect of the said flat. When the plaintiff returned to India at the end of his deputation, he was posted at Calcutta as the General Manager, Telecommunication Project, East Zone. He was granted temporary accommodation at the Telephone Bhavan Inspection Bungalow up to January 7, 1981 which was further extended till January 30, 1981. He was directed to vacate the Inspection Bungalow by January 31,1981, and was advised to secure an allotment of accommodation from the Estate Manager, Calcutta, The plaintiff asked for the necessary allotment from the Estate Manager but was informed on January 20, 1981 'In view of your owning a house in Calcutta, your priority date for allotment of accommodation under General Pool goes down as below : --

TypePriority date

EPriority date goes down from 6-7-71 to 1-6-77E-1Priority date goes down from 16-9-75 to 1-6-77.

3. As a result, there is no possibility of your getting any accommodation for Type-E Qtr., which you could have got otherwise but for your owning a house in Calcutta For the same reason you are well behind in the Waiting List for allotment of E-l Qtr.' In that background the plaintiff filed an application for an order for eviction under Section 29B of the said Act before the Rent Controller on the ground of his personal requirement within the meaning of Section 13(1)(ff) of the said Act.

4. This application was not contested by defendant 1 who in his turn admitted the fact that the flat in dispute was let out to him in April 1977 and he further admitted to have sublet the premises to defendant 2 with effect from March 1978.

5. The said application, however, was strongly contested by defendant 2 who took various defences including a defence that an application under Section 29B of the said Act is not maintainable in the facts and circumstances. He further raised a defence that he was put into possession by the plaintiff in terms of an agreement to sell the disputed flat to him and in part performance of the said agreement he had paid certain amounts to the Co-operative Society which was otherwise payable by the plaintiff. Or, in other words, he took the defence under Section 53A, T.P. Act.

6. The Rent Controller has dismissed the plaintiffs application mainly on the ground that, since a dispute as to the title has been raised by defendant 2, the plaintiff is not entitled to maintain such an application until the dispute as to the title is decided by a civil court. Reading the judgment of the Rent Controller, it appears to us that the Rent Controller did not go into the defence of defendant 2 on its merits nor did he record any finding that defendant 2 was there in the disputed flat by virtue of an agreement for sale in terms of Section 53A, T.P. Act. He merely observed that, since such a dispute has been raised by defendant 2 and it appears to the Rent Controller that there is a prima facie case in that regard, that must be left for adjudication by the civil court and until it is so done as application under Section 29B of the Act cannot be entertained. It is the propriety of this decision which is the subject matter of challenge before us in the present revisional application.

7. Mr. Dutt appearing in support of the revisional application has contended that, according to the plaintiff, the disputed flat was let out to defendant 1 and such letting is duly admitted by defendant 1. The plaintiff's further case is that defendant 2 was inducted as a sub-tenant by defendant 1 and this fact too has been clearly acknowledged by defendant 1. If defendant 2 had taken a specific defence that he was there in the flat not as a sub-tenant but under an agreement with the plaintiff having been put into possession thereof within the meaning of Section 53A, T.P. Act, it was for him to establish that before the Controller and the Controller could not have dismissed the application of the plaintiff without deciding that issue on its merits. On a careful consideration of the contention thus put forward by Mr. Dutt we find that there is some substance in this contention. As we have indicated hereinbefore, the Rent Controller had not recorded any express finding on the defence taken by defendant 2 with regard to his claim under Section 53A, T.P. Act. The Rent Controller seems to have taken the view that, as he is exercising a summary jurisdiction under Section 29B and when such a disputed issue has been raised, he cannot exercise his jurisdiction under Section 29B of the said Act. In our opinion, he is not correct there. It was necessary for him to negative the plaintiff's claim that defendant 2 is there as a sub-tenant or as an encumbrance, created by defendant 1, and has no independent right to occupy the flat, before the plaintiff's application under Section 29B of the Act could be dismissed when the tenancy in favour of defendant 1 is clearly established and acknowledged by the said defendant. Therefore, in the normal course it would have been necessary for us to remand the matter back to the Controller for a final adjudication on the point, but on a closer consideration of the plaintiff's case made out in his application we are, however, of the opinion that no case for an order under Section 29B of the Act could otherwise be made out by the plaintiff. We give our reasons therefor.

8. Section 29B(1) of the Act provides as follows:

'No Civil Court shall entertain any application by a landlord being a Government employee, and who being in occupation of any residential premises allotted to him by his employer, is required by, or in pursuance of, an order made by such employer, to vacate such residential accommodation, or in default to incur certain obligations on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child at or near the place where he is posted for the time being, or by a landlord who has retired, or will retire within a period of less than one year, as a member of the naval, military or air force of the Union of India, or by a landlord who is the parent or the wife of such member of the naval, military or air force of the Union of India, or by a landlord who is a relation (other than a minor child or the widow) and a dependent of a member of the naval, military or air force of the Union of India and ordinarily resides with him or a minor child or the widow of such member who dies while in service or within five years of retirement for the recovery of possession of any premises on the ground specified in clause (ff) of Sub-section (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section.'

We are of the opinion that in order to attract the provision the Government employee must be (i) in occupation of the residential premises allotted by the Government (hereinafter referred to as the Government premises) and (ii) he must be asked either to vacate or in default, to incur certain obligations on the ground that he himself owns a residential accommodation. We think that the second element as aforesaid is an important factor. The necessary implication of the second element is that but for his owning his own residential accommodation he would not have been asked to vacate the Government premises and he would have been allowed to occupy and enjoy the same. Now in the case before us the case of the petitioner is that he as a Government employee returned from deputation and was posted at Calcutta. He was provided with a temporary accommodation in an Inspection Bungalow. He was not allowed to continue in such accommodation after a short extension and was asked to obtain an allotment of a regular residential accommodation from the general pool. Such allotment was not made on the ground that, as the petitioner has his own residential accommodation, he cannot claim any priority so that the allotment asked for is likely to be delayed inordinately. In substance, he was refused allotment of residential accommodation otherwise provided for by the Government. But it is not a case where he had been directed to vacate any Government premises on the ground of his owning a residential accommodation of his own. Mr. Dutt has strongly contended that the residential accommodation allotted by the Government as envisaged by Section 29B(1) of the Act need not be a permanent one. According to Mr. Dutt, since the petitioner had been asked to vacate his accommodation of the Inspection Bungalow and since he had been refused an alternative accommodation from the general pool on the ground that he himself owns a residential accommodation of his own, it, in substance, amounts to directing him to vacate the temporary accommodation at the Inspection Bungalow on grounds contemplated by Section 29B(1) of the Act. According to Mr. Dutt, section 29B(1) should be liberally construed to cover such a case having regard to the object of providing an early relief to Government employees who require eviction of tenants from their own houses on grounds contemplated by Section 13(1)(ff).

9. We have carefully considered such a contention put forward by Mr. Dutt. But we are unable to accept the same. On the terms of Section 29B(1) of the Act the legislature intended to provide the summary relief only to such of the Government employees who are in need to evict their tenants on grounds contemplated by Section 13(1)(ff) where such a ground arises because of an order made on them to vacate the Government premises in their occupation on the ground of their having own residential accommodation. It was never the intention of the legislature that every Government servant, who is in need of evicting his tenant on a ground contemplated by Section 13(1)(ff), should be given the summary relief under Section 29B(1) of the Act. On the facts of the present case we find that first of all the petitioner has been asked to vacate the Inspection Bungalow only on the ground that the tenure of occupation of such a Bungalow cannot be indefinite and not on any ground contemplated by Section 29B(1). Secondly, where was the opportunity for the plaintiff to continue in occupation of a Government premises but for the order on him to vacate on the ground of his owning a residential accommodation of his own. We have indicated hereinbefore that is the test to find out whether the case really comes under Section 29B(1) of the Act. We are of the view that it is wholly immaterial whether the residential accommodation provided by the Government is temporary or permanent. But it must be one in which the petitioner should have been entitled otherwise to continue but for a direction to vacate on the ground of the plaintiff owning a residential accommodation of his own. That is not the case here before us because the plaintiff could not have continued in occupation of the accommodation at the Inspection Bungalow. He was required to vacate only because the Inspection Bungalow does not permit indefinite occupation. It was really a case of refusal of allotment of Government premises to the plaintiff on the ground that the plaintiff owns his own residential accommodation and not a case wherein the plaintiff has been directed to vacate on any such ground. The plaintiff stands in no better position than one who on transfer is refused Government accommodation on similar grounds whose case can never come under the purview of the provision under consideration.

10. On this ground alone, we are of the opinion that the application filed by the plaintiff before the Rent Controller should have been dismissed and we direct accordingly and we make it clear that all other issues raised or argued before the Rent Controller must be deemed to have been left open for adjudication before a competent court or tribunal. The plaintiffs application under Section 29B of the Act fails only because the Controller on the case made out by the plaintiff had no jurisdiction to entertain such an application.

The revisional application is disposed of accordingly.

Let the records be sent clown to the court below.

Prabir Kumar Majumdar, J.

11. I agree.


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