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Bimal Kumar Dasgupta Vs. Smt. Radha Mukherjee - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Cases Nos. 1037 to 40 of 1983
Judge
Reported inAIR1985Cal322
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13(1) and 29B
AppellantBimal Kumar Dasgupta
RespondentSmt. Radha Mukherjee
Appellant AdvocateMalay Kumar Basu and ;Nanda Lal Nayak, Advs.
Respondent AdvocateSakti Nath Mookerjee, ;Prabir Kumar Samanta and ;Subhas Kumar Deb, Advs.
DispositionApplications allowed
Cases ReferredAnupama Sen Gupta v. Deb Kumar Sen Sarma
Excerpt:
- .....bimal kumar dasgupta has challenged the order dated 14-3-83 passed by the learned additional rent controller, asansol, in h.r.c. misc. case no. 50 of 1982 under section 29b of the west bengal premises tenancy act, 1956 (hereinafter referred to as the act) filed by smt. radha mukherjee. in c.r, case no. 1038 of 1983, the petitioner opposite party tenant dilip kumar chakraborty has challenged the order dated 14-3-83 passed by the learned additional rent controller, asansol in h.r.c. misc. case no. 58 of 1982 under section 29b of the said act filed by smt. radha mukherjee. in c.r. case no. 1039 of 1983, the petitioner opposite party tenant shyamal kumar chakraborty has challenged the order dated 14-3-83 passed by the learned additional rent controller asansol, in h.r.c. misc. case no......
Judgment:

Sukumar Chakravarty, J.

1. Civil Revision Cases Nos. 1037, 1038, 1039 and 1040 of 1983 have been taken up for analogous hearing as the common question of law is involved in the aforesaid civil revision cases.

2. In C. R. Case No. 1037 of 1983, the petitioner opposite party tenant Bimal Kumar Dasgupta has challenged the order dated 14-3-83 passed by the learned Additional Rent Controller, Asansol, in H.R.C. Misc. Case No. 50 of 1982 under Section 29B of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) filed by Smt. Radha Mukherjee. In C.R, Case No. 1038 of 1983, the petitioner opposite party tenant Dilip Kumar Chakraborty has challenged the order dated 14-3-83 passed by the learned Additional Rent Controller, Asansol in H.R.C. Misc. Case No. 58 of 1982 under Section 29B of the said Act filed by Smt. Radha Mukherjee. In C.R. Case No. 1039 of 1983, the petitioner opposite party tenant Shyamal Kumar Chakraborty has challenged the order dated 14-3-83 passed by the learned Additional Rent Controller Asansol, in H.R.C. Misc. Case No. 48 of 1982 under Section 29B of the said Act filed by Smt. Radha Mukherjee. In C.R. Case No. 1040 of 1983, the petitioner opposite party tenant Anil Kumar Guha has challenged the order dated 14-3-83 passed by the learned Additional Rent Controller in H.R.C Misc. Case No. 49 of 1982 under Section 29B of the said Act filed by Smt. Radha Mukherjee.

3. Smt. Radha Mukherjee, wife of Sri Jagat Jyoti Mukherjee, filed the aforesaid four H.R.C. Misc. Cases under Section 29B of the said Act before the learned Rent Controller, Asansol, against the respective tenants for their eviction from the respective suit premises on the ground of reasonable requirement, alleging that her husband who was a government employee attached to Hirapur J.L.R.O. Office and who was in occupation of a government flat in the Housing Estate on allotment to him, had been served with a notice by the concerned Assistant Engineer, Housing Construction Sub-division, Asansol, asking him to vacate the government flat as the petitioner is the wife of the aforesaid government employee had purchased in 1980 the respective tenanted suit premises whichwas near the place of the posting of the petitioner's husband.

4. The learned Additional Rent Controller Mr. B. Sil by his order dated 14-3-83 in each case allowed the petitioner to recover possession in the respective suit premises.

5. The respective opposite parties tenants in the H.R.C. Misc. Cases being aggrieved by such order of the learned Additional Rent Controller have come to this Court in revision under proviso to Sub-section (9) of Section 29B of the said Act and under Article 227 of the Constitution. It is not clear why the power under Article 227 of the Constitution has been invoked in a case like the present one when the High Court has been given the revisional power under the provisio to Sub-section (9) of Section 29B of the said Act.

6. Mr. Malay Kumar Basu, appearing on behalf of the petitioners (opposite parties tenants) in each civil revision case has submitted that the impugned order of the learned Additional Rent Controller suffers from material irregularity on four grounds, namely, (i) the petition under Section 29B of the said Act filed by Smt. Radha Mukherjee who is not a landlord being a government employee and who has not been asked to vacate the government flat on the ground of her ownership in respect of the suit premises in each case is not maintainable, (ii) nowhere in the petition in H.R.C. Misc. Cases under Section 29B of the said Act it has been averred that the petitioner was not in possession of any other reasonably suitable accommodation as required under Section 13(1)(ff) of the said Act and no evidence was also produced to that effect in connection with hearing of the H.R.C. Misc. Cases under Section 29B of the said Act, (iii) the learned Additional Rent Controller Mr. B. Sil not being the seniormost Executive Magistrate at the Station was not the Additional Rent Controller under the notification as issued by the Government and accordingly Mr. Sil who passed the impugned order as the Additional Rent Controller had no jurisdiction to hear the aforesaid H.R.C. Misc. Cases. A petition challenging the jurisdiction of Mr. Sil as Additional Rent Controller, filed by the opposite parties tenants in the aforesaid H.R.C. Misc. Cases was rejected only on the ground that it would cause delay in hearing H.R.C. Misc. Cases, (iv) the opposite parties tenantsin connection with the hearing of the aforesaid H.R.C. Misc. Cases filed petition for calling for the record of another title suit to produce the report of the Pleader Commissioner as a piece of evidence to show that the petitioner landlord of the suit premises in the aforesaid H.R.C. Misc. Cases had no reasonable requirement of the suit premises and that the said application was not finally disposed of by the learned Additional Rent Controller before passing the impugned order.

7. Mr. Prabir Kumar Samanta appearing on behalf of the opposite party landlord has submitted that the petition in the aforesaid H.R.C. Misc. Cases filed by Smt. Radha Mukherjee, wife of Sri Jagat Jyoti Mukherjee who was a government employee should be treated as maintainable otherwise the very object of the special provision as enjoined in Section 29B of the said Act would be frustrated. Mr. Samanta has further submitted that the other objections as raised by Mr. Basu are not sustainable as the order of the learned Additional Rent Controller would show that he was satisfied regarding his jurisdiction to try the H.R.C. Misc. Cases and that he disposed of the petition calling for the record for producing some papers as additional pieces of evidence and that the Additional Rent Controller found that the suit premises was reasonably required by Smt. Radha Mukherjee for the use of her family including her husband and children.

8. Chapter VI-A of the West Bengal Premises Tenancy Act incorporating Sections 29A and 29B was inserted to provide a special machinery for enabling an employee of the Central or State Government or any local authority, who being in occupation of any residential premises allotted to him by his employer was required by such employer to vacate such residential accommodation or in default, to incur certain obligations on the ground that he owned a residential accommodation either in his own name or in the name of his wife or dependant child at or near the place where he was posted for the time being to recover possession of any premises on the ground specified in Clause (ff) of Sub-section (1) of Section 13 of the Act. Section 29B of the Act provides so as mentioned above besides the other provisions regarding the landlordwho is a member of the naval, military or air force of the Union of India or the landlord who is the parent or the wife of such member of the naval, military or air force of the Union of India etc. The conditions for invoking the aid of the relevant portion of Section 29B of the Act are as follows :-- (1) the landlord is a government employee of either central, state or local authority, (2) such landlord is in occupation of a residential accommodation being allotted to him by his employer viz. the government or local authority, (3) he is required by an order made by such employer to vacate such residential accommodation on the ground that he owns a residential accommodation in his own name or in the name of his wife or dependant child at or near the place where he is posted for the time being, (4) he reasonably requires the premises for his own occupation and he has no other reasonably suitable accommodation, as mentioned in Clause (ff) of Section 13(1) of the Act.

9. In the instant case it is an undisputed fact that Smt. Radha Mukherjee who claims herself as the landlord of the premises in question by her purchase of the suit premises in 1980 is not a government employee but her husband Sri Jagat Jyoti Mukherjee is admittedly a government employee. It is also an undisputed fact that Sri Jagat Jyoti Mukherjee who is a government employee attached to the Hirapur J.L.R.O. Office was allotted a government flat by the Government for his accommodation with family for smooth rendering of his service and that he was asked by his employer-government to vacate the said government flat by a notice as he had his own residential accommodation in the suit premises in the name of his wife.

10. Sri Jagat Jyoti Mukherjee gave evidence in connection with the hearing of the H.R.C. Misc. Cases but his wife Smt Radha Mukherjee who is the petitioner in the aforesaid H.R.C. Misc. Cases did not come to depose. It has been admitted by Sri Jagat Jyoti Mukherjee in his evidence that his wife Smt. Radha Mukherjee purchased the suit premises and she was the owner of the same. In the petition filed by Smt. Radha Mukherjee in the aforesaid H. R. C. Misc. Cases it was admitted by Smt. Radha Mukherjee that she purchased the suit premises in 1980 and she was the landlord of the respective tenants in respectof the suit premises. Such being the position, as the provisions of the relevant portion of Section 29B of the Act stand, I find that the petition in the aforesaid H. R. C. Misc. Cases under Section 29B of the Act were not filed by the landlord being the government employee and who being in occupation of any residential premises allotted to him by his employer was required by such employer to vacate such residential accommodation on the ground that he owned a residential accommodation either in his own name or in the name of his wife or dependent child. So prima facie it appears that the petition as filed by Smt. Radha Mukherjee in H. R. C. Misc. Cases in question was not maintainable. The submission of Mr. Basu, learned Counsel for the petitioners tenants in this respect appears to be acceptable. Mr. Basu in support of his such submission drew my attention to the decision in the case of Anupama Sen Gupta v. Deb Kumar Sen Sarma reported in AIR 1982 SC 25 and submitted that although the said decision does not specifically answer the point as raised in the instant case still the ratio decidendi of that decision supports his submission. I have gone through the aforesaid decision but I do not find any light from the said decision on the point as raised in the instant case. In the aforesaid case of the Supreme Court the appellant tenant resisted the petition under Section 29B of the Act on the following grounds:-- (a) that the building in question for which the eviction was sought for did not belong to the respondent petitioner in the case under Section 29B of the Act and that accordingly the proceedings were not maintainable, (b) that the notice under Section 13(b) of the Act having been issued in the name of the respondent petitioner's wife Sudha Rani, there was no valid termination of the tenancy, (c) that the respondents other than the first respondent who were co-sharers and who were not government servants could not avail themselves of the special procedure prescribed under Section 29B of the Act and some other grounds which are not relevant. In that case of the Supreme Court the first respondent who was one of the petitioners in the proceedings under Section 29B of the Act was undoubtedly a government employee and although the suit premises in the aforesaid proceeding belonged to Sudha Rani, the wife of the first respondent and stood in her name, after her death the said premises devolvedupon the first respondent who was her husband and also upon the other respondents who were the sons and daughters of Sudha Rani. Accordingly the first respondent who was the husband of Sudha Rani and who was also the government employee got the ownership according to his share in the building left by Sudha Rani on her death. So the condition that the petition under Section 29B of the Act should be filed by the landlord being the government employee was fulfilled. The other condition that the said landlord government employee who was allotted a government flat was asked by his employer to vacate the government flat by a notice on the ground that he was the owner of the premises to be evicted was also fulfilled. The Supreme Court in such circumstances appears to have not gone into the discussion regarding the title to the suit premises which undoubtedly stood in the name of Sudha Rani. As regards the notice under Section 13(6) of the Act the Supreme Court held that the benefit of the notice issued by the first respondent's wife Sudha Rani would be available to the respondents and on the basis of the same, the special proceedings under Section 29B of the Act filed by the first respondent and other respondents were accepted as maintainable as after the issue of the notice under Section 13(6) of the Act Sudha Rani died. So the decision of the Supreme Court as mentioned above actually does not throw light on the specific point as raised in the instant case. But the ratio decidendi of the said decision at least goes to show that to maintain a proceeding under Section 29B of the Act the petition requires to be filed by a landlord being a government employee and who being in occupation of any government flat allotted to him by his employer is required to vacate such government flat on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child. The first part of the provisions of Section 29B of the Act which is relevant for the purpose of this case does not provide that the wife of the government employee, as a landlord of the premises to be evicted, as in the case of a member of the naval, military or air force of the Union of India can file a special proceeding under Section 29B of the Act. It is true that in AIR 1977 NOC 347 (Punj & Har) it has been observed that the application under Section 13A(1) for eviction of tenant file by the landlord, the wife of a government employee was maintainable. I could not get the opportunityto read the detailed judgment but only small note in the aforesaid decision does not throw any light on what was the actual provision in the relevant section of the relevant Act and what was the actual case there. Of course the small note in the aforesaid decision goes to show that the landlord for the purpose of Section 13A(1) of East Punjab Urban Rent Restriction Act is one who not only owns a house in his own name but also if he owns a residential or a scheduled building in the Union Territory of Chandigarh in the name of his wife or dependent child and thus the definition of the landlord has been found to be extended there. Be that as it may, the aforesaid short note in the decision in the AIR 1977 NOC 347 (Punj & Har) appears to be not applicable in the facts and circumstances of the present case.

11. The special procedure for eviction of the premises owned by the government employee has been inserted for special class of persons and if the conditions as laid down therein are not fulfilled the special procedure cannot be availed of. In consideration of all the facts and circumstances and regard being had to the relevant provision in Section 29B of the Act I find that the petitions in the aforesaid H.R.C. Misc. Cases under Section 29B of the Act were not maintainable.

12. As regards the point whether the petitioner in the aforesaid H.R.C. Misc. Cases satisfied that the petitioner reasonably required the suit premises in occupation of the tenants and whether the petitioner landlord Smt. Radha Mukherjee was in possession of any other reasonably suitable accommodation, I find that the decision of the learned Additional Rent Controller in this respect suffers from material irregularity and accordingly it cannot be sustained. The summary eviction of the tenant from the suit premises by invoking the special procedure under Section 29B of the Act is also on the ground as mentioned in Section 13(1)(ff) of the Act, which requires decision not only on the point of reasonable requirement by the landlord but also on the point whether the landlord has in his possession any other reasonably suitable accommodation. It is the settled principle of law that the landlord plaintiff or the petitioner, as the case may be, must make out a case in the plaint or petition that the landlord reasonably requires the suit premises and that the landlord is not in possession of any other reasonably suitableaccommodation. In the instant case, the petitions of the H.R.C. Misc. Cases under Section 29B of the Act do not disclose that the landlord petitioner made any averment to the effect that the landlord was not in possession of any other reasonably suitable accommodation although the case of reasonable requirement was made out. In the evidence also as adduced on the side of the petitioner landlord in the aforesaid H.R.C. Misc. Cases, nowhere it has been stated that the petitioner landlord is not in possession of any other reasonably suitable accommodation. Such being the position, it appears that the essential ingredients as required under Section 13(1)(ff) of the Act were not fulfilled and accordingly the learned Additional Rent Controller committed the act of material irregularity in arriving at the finding that the petitioner landlord in the H.R.C. Misc. Cases can evict the tenants on the ground under Section 13(1)(ff) of the Act.

13. It appears that the tenants opposite parties in the H.R.C. Misc. Cases under Section 29B of the Act filed a petition for calling for the record in Title Suit No. 264 of 1982 so that one report of the Pleader Commissioner in the aforesaid title suit may be produced, to show that the petitioner landlord in H.R.C. Misc. Cases does not reasonably require the suit premises. The said petition was filed on 22-11-82. According to Mr. Basu, learned Counsel for the tenants petitioners in these revisional applications, the said petition was not finally disposed of by the learned Additional Rent Controller. It appears from the order dated 22-2-83 in H.R.C. Misc. Case No. 49 of 1982 that the aforesaid petition dated 22-11-82 of the opposite party was heard and the learned Additional Rent Controller observed that it would not be entertained today. The relevant portion of the order is quoted here :-- 'The petition of O.P. dated 22-11-82 is heard and it cannot be entertained today'. It appears that the learned Additional Rent Controller after the words 'is heard and' wrote the word 'rejected' and then penned through the same and then wrote 'it cannot be entertained today'. From the aforesaid order and the manner in which he wrote the order it is not clear whether he rejected the aforesaid petition. It may be mentioned here that in a subsequent petition challenging the jurisdiction of the Additional Rent Controller, Mr. B. Sil, filed on 2-3-83, the tenant oppositeparty specifically mentioned therein that no order had yet been passed on the petition dated 22-11-82 with regard to the calling for the record of the title suit. In the order dated 2-3-83 on the petition of that date, the learned Additional Rent Controller did not mention anything regarding the petition dated 22-11-82 which was referred to by the tenant in the petition dated 2-3-83, but remained silent. This attitude of the learned Additional Rent Controller also goes to support the submission of Mr. Basu that the learned Additional Rent Controller did not finally dispose of the petition dated 22-11-82. Be that as it may, when the petition in the H.R.C. Misc. Cases has been found to be not maintainable I do not find any justification to remand the cases for disposal of the said petition.

14. Next comes the point with regard to the jurisdiction of Mr. B. Sil as the Additional Rent Controller. It has already been stated that the tenants opposite party in the H.R.C. Misc. Cases filed a petition on 2-3-83 challenging the jurisdiction of Mr. B. Sil. The relevant portion of the order on the said petition is quoted here :-- 'Seen the petition filed by the O.P. challenging the appointment of Addl. Controller. The seniormost Executive Magistrate subordinate to S.D.O. is virtually appointed Addl. Controller Vide Not. No. 1056-LR/13R-11/76 dated, Cal. the 20th Feb. 1976. The Exam, and Cross-Exam, are on process without any objection so far from any corner. The challenge of appointment at this stage will take, I think, unnecessary delay in proceeding the case. So the petition in this connection is rejected'. It appears from the aforesaid order that the learned Additional Rent Controller Mr. B. Sil has not given any specific decision on the point of his jurisdiction although the tenants opposite parties in the H.R.C. Misc. Cases raised the question of jurisdiction. Mr. Samanta on behalf of the opposite party landlord in the revisional cases has of course submitted that the very fact that the Additional Rent Controller proceeded with the hearing of the cases goes to show that he was the seniormost Executive Magistrate having the jurisdiction to hear the petitions as Additional Rent Controller. With respect I cannot agree to such view of Mr, Samanta. I find that the question of jurisdiction as raised by the tenants opposite parties in the aforesaid H.R.C. Misc. Cases has not been disposed of on proper consideration by the learnedAdditional Rent Controller. I would have sent back the cases on remand for decision on this point also provided I would not have come to the finding that the petitions in H.R.C. Misc. Cases were not maintainable.

15. I, therefore, find that the learned Additional Rent Controller committed act of material irregularity in exercise of his jurisdiction in passing the impugned order in the aforesaid H.R.C. Misc. Cases and accordingly, I find justification to interfere with such order in exercises of my revisional power under the proviso to Sub-section (9) of Section 29B of the Act and accordingly, I do so.

16. In the result, the revisional applications are allowed on contest and the Rules are made absolute. The impugned order in each of the aforesaid H.R.C. Misc. Cases passed by the learned Rent Controller is set aside and the aforesaid H.R.C Misc. Cases are rejected as not maintainable.

17. I make no order as to costs.

18. This order governs all the Civil Revision Cases Nos. 1037 to 1040 of 1983.


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