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T.K. Ghosh Vs. Anil Krishna Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1970 of 1984
Judge
Reported inAIR1986Cal273
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(1) and 29B
AppellantT.K. Ghosh
RespondentAnil Krishna Ghosh
Appellant AdvocateBiman Kanti Basu and ;Manish Chandra Das, Advs.
Respondent AdvocateAnil Kumar Ghoshal, Adv.
Cases ReferredBusching Schmitz Pvt. Ltd. v. P. T. Menghani
Excerpt:
- .....along with the application. the tenant opposite party desired to contest the application. the rent controller after hearing the parties granted him leave to do so. the tenant in his written statement submitted, inter alia, that the premises were not fit for residential purposes. the rent controller, by the impugned judgment, dismissed the application filed by the petitioner. he held that the premises in dispute were let out for commercial purposes. they were used for running a factory. they were unfit for being used for residential purposes. the landlord petitioner has challenged this finding in this revision.2. learned counsel for the petitioner submitted that the rent controller fell into an error in construing the provisions of section 29b to require that the premises in dispute.....
Judgment:
ORDER

Satish Chandra, C.J.

1. This revision raises an interesting question of law. It arises out of proceedings for summary eviction of a tenant under Section 29B of the West Bengal Premises Tenancy Act. 1956. The petitioner was a Lieutenant Colonel in the Army He made an application under Section 29B of the Act on 1-3-83 stating that he was due to retire within one year and that he required the premises in dispute for his own occupation as well as the occupation of his family. The requisite certificate to that effect granted by the relevant Army authorities was filed along with the application. The tenant opposite party desired to contest the application. The Rent Controller after hearing the parties granted him leave to do so. The tenant in his written statement submitted, inter alia, that the premises were not fit for residential purposes. The Rent Controller, by the impugned judgment, dismissed the application filed by the petitioner. He held that the premises in dispute were let out for commercial purposes. They were used for running a factory. They were unfit for being used for residential purposes. The landlord petitioner has challenged this finding in this revision.

2. Learned counsel for the petitioner submitted that the Rent Controller fell into an error in construing the provisions of Section 29B to require that the premises in dispute should be fit for use as residential accommodation.

3. Learned counsel for the respondent tenant supported the finding of the Rent Controller. In order to appreciate the rival contentions it is necessary to read the relevant parts of S. 29B.

'Section 29B. Special procedure for disposal of applications for eviction on the ground of bona fide requirement. -- 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, dependant 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 dependant 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.

(2) Whenever any application is filed before the Controller by a landlord referred to in Sub-section (1) for the recovery of possession of any premises on the ground specified in clause (ff) of Sub-section (1) of section 13, the Controller shall issue summons, in the form specified in the Second Schedule.

Provided that -

a) where the landlord has retired, or will retire within a period of less than one year, asa member of the naval, military or air force of the Union of India, a certificate by the Area or Sub-Area Commander within whose jurisdiction the premises are situated or by the Head of his Service or his Commanding Officer that he has retired, or will retire, as such member and that he requires the premises for his own occupation and for the occupation of his family after retirement, or

(b) where the landlord is the parent or the wife of such member of the naval military or air force of the Union of India as aforesaid, certificate by the Area or Sub-Area Commander within whose jurisdiction the premises are situated that he or she is the parent or the wife, as the case may be, of such member of the naval, military or air force of the Union of India and that he or she requires the premises for his or her own occupation and for the occupation of his or her family after the retirement of such member, or

(c) where the landlord is a relation together than a minor child or the widow) and a dependant 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, a certificate by the Area or Sub-Area Commander within whose jurisdiction the premises are situated that he or she is the relation and dependant as aforesaid or the minor child or the widow, as the case may be, of the deceased member of the naval, military or air force of the Union of India and that he or she requires me premises for his or her own occupation and for the occupation of his or her family, shall be produced before the Controller while filing the application, and such certificate shall be conclusive evidence of the fact stated therein.

Explanation.-- 'Family' shall have the same meaning as the Explanation to clause (1) of Sub-section (1) of Section 13.

(7) The provisions of Sub-sections (2), (3). (4) and (6) of Section 13 shall, so far as may be apply to a proceeding under this Chapter but nothing contained in Sub-section (3A) of Section 13 shall apply to such a proceeding.'

4. This provision is confined to an application for ejectment of a tenant on the ground specified in clause (ff) of Section 13(1). The aforesaid clause (ff) of Section 13(1) provides:

'Subject to the provisions of Subsection (3A), where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.'

5. Generally, the landlord seeking ejectment of his tenant on the ground mentioned in clause (ff) has to file a suit under Section 13 in the Civil Court. Section 29B makes an exception in favour of two categories of landlords: a Government employee, and a member of the naval, military or air force. For them Section 29B provides a specially quick procedure.

6. In respect of a landlord who is a Government employee Section 29B prescribed two conditions: He should be in occupation of residential premises allotted to him by his employer. Secondly, that he is required to vacate it on the ground that he owns a residential accommodation in his place of posting. The first condition refers to 'residential premises'. The second condition is also in relation to a 'residential accommodation'.

7. In relation to a landlord who is a member of the Defence Forces (which includes inter alia the parent, wife or dependant relations of such member) the requirement for the applicability of Section 29B is that the member has retired or is due to retire within less than one year or who dies while in service In this category, the landlord has to file along with the application for ejectment, a certificate granted by the mentioned authority. The certificate is to state that he has retired or due to retire or that he is dead; and he requires the premises for his own occupation and for the occupation of his family. Section 29B further provides that such a certificate shall be produced before the Rent Controller while filing the application and 'such certificate shall be conclusive evidence of the fact stated therein.'

8. It is to be seen that while referring to the second category i.e. the member of defence services, the phrase 'residential premises' or 'residential accommodation' is not used. The provision does not require that the member of the defence services should be in occupationof residential premises. Such a landlord may not be in occupation of any premises, residential or otherwise, allotted to him by his employer. He would nonetheless be entitled to apply. The only condition is that he produces the requisite certificate. The certificate is to state, inter alia, that he requires the premises for his own occupation and for the occupation of his family. Here the Legislature has scrupulously refrained from saying that the purpose of occupation should be residential.

9. Clauses (a), (b), (d), (e) of Section 13(1) speak of 'any person residing in the premises'. Clause (g) says 'let to the tenant for use as a residence'. Clause (h) applies to 'premises let out for residential purpose'. But clause (ff) refers to 'own occupation' and it applies where the landlord is not in 'possession of any reasonably suitable accommodation'. It does not specify that the purpose of retirement of 'own occupation' should be residential and none other.

10. The Legislature was very muchconcerned with the residential purposes. Itspecifically provided for it in various clausesof Section 13 in Section 29B in the case of a Governmentemployee. The omission in the case of amember of defence services cannot be treatedas an accidental omission. It appears to bedeliberate.

11. In the present case, the petitioner landlord is not in possession of any other accommodation suitable or otherwise.

12. On a conspectus of these provisions it appears that in the case of a member of the armed forces it is not necessary that the premises must be required for residential purpose only. It is enough if there is a certificate by the relevant authority stating that the landlord requires the premises for his own occupation and for the occupation of his family. Such a certificate is conclusive evidence of the facts stated therein. The Rent Controller is precluded from enquiring into the genuineness or correctness of the landlord's requirement as mentioned in the certificate.

The Court shall proceed on the irrebuttable presumption that the landlord requires the premises for his own occupation and that of his family. Even if it be that 'own occupation' means and includes residential purpose, yet the conclusive evidence clause shuts out an enquiry into it

13. If the nature or purpose of the requirement of the landlord is beyond the Rent Controller's purview, the question whether the premises are fit or suitable for residential purpose or residentiat-cum-professional purpose or commercial purposes etc. appears to be equally beyond the jurisdiction of the Rent Controller under Section 29B.

14. Learned Counsel for the tenant opposite party invited my attention to Subsection (5) of Section 29B. Under this provision the tenant is entitled to disclose facts as will disentitle the landlord from relief under clause (ff) of Section 13(1). Learned counsel submitted that there is no restriction on the entitlement. The tenant can show that the premises are entirely unfit for being used as residence. I am unable to agree. As seen above, the purpose of occupation or the actual user to which the premises can be put is not within the purview of the enquiry by the Rent Controller. The tenant cannot question the facts stated in the certificate issued by the relevant authority. He can show that facts not mentioned in the certificate viz. that the landlord is possessed of other suitable accommodation.

15. Section 29B including its Subsection (5) was inserted in the Act by the West Bengal Premises Tenancy (Amendment) Act of 1976. The category of landlord viz. a member of the armed forces, along with the proviso to Sub-section (2) which refers to the certificate being conclusive evidence of the facts stated therein were added by the West Bengal Premises Tenancy (Amendment) Act, 1979. By the amending Act of 1979 no exception in favour of the provisions of Sub-section (5) was engrafted in the conclusive evidence clause of the proviso. Accordingly, the conclusive evidence clause will prevail over Subsection (5). If the certificate states that the landlord requires the premises for his own occupation and for the occupation of his family, the requirement cannot be re-agitated before the Rent Controller. The question whether the accommodation is fit or otherwise for the landlord's requirement is equally a dead issue.

16. Assuming, however, that residential suitability is open for consideration. The premises in dispute do, in my opinion, fill thebill The premises consist of two pucca rooms and one room with tiled roof. There is a toilet as well as a water tap outside it. At present the accommodation is let out for being used as a factory. These three rooms can possibly be used by the landlord for his residential purpose. It is difficult to say that they are inherently unfit for being used as a residence. It has been found that one of the rooms has no electricity while the other has. The deficiency can be easily remedied by the landlord. Floors can be repaired. There is no inherent allergy in the nature of the construction against residence. The premises which are at present being used as a small factory can by minor adaptation be used as his residence by the landlord. It may not provide luxurious living. That seems besides the point

17. The observations of Krishna lyer, J. in Busching Schmitz Pvt. Ltd. v. P. T. Menghani, : [1977]3SCR312 are apposite. His Lordship observed (para 19) : --

'What falls outside the ambit of residential purposes' may be limited but not non-existent. A shop in Cannaught Place, a factory in an area prescribed by any municipal regulation for residential use or any structure too patently non-residential such as a hothouse for botanical purposes or a bath and toilette or teashop by the road margin are obvious instances'.

The premises in dispute are none such. They are situated in a locality where residential as well as commercial use is permissible. The premises in dispute can reasonably accommodate a residential user.

18. Learned counsel for the parties cited several other authorities. They interpret provisions of other Rent Control Acts. They are not relevant.

19. In this view, the Rent Controller's order dismissing the application is not according to law. In the result, the Rule is made absolute. The impugned order of the Rent Controller is set aside. The application filed by the petitioner for possession by ejectment of the tenant opposite party is allowed.

20. The learned counsel for the opposite party prays for six months' time to vacate the premises. Provided the opposite party files an affidavit giving an undertaking within a week from to-day to vacate the premises and handover possession of the properly to the landlord on receipt the opposite party is allowed six months' time from to-day to vacate the premises. The opposite party shall pay regularly the rent for the premises as heretobefore.

21. Parties may bear their own costs here and below.


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