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Asoke Gopal Dutta Vs. Nirmal Kumar Mitra - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 196 of 1980
Reported inAIR1981Cal329,85CWN1009
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13, 29A and 29B; ;West Bengal Premises Tenancy (Amendment) Act, 1976
AppellantAsoke Gopal Dutta
RespondentNirmal Kumar Mitra
Advocates:Priti Bhusan Barman, ;Subrata Ghosh and ;Mita Mukherjee, Advs.
DispositionApplication dismissed
Cases ReferredK. R. Nambiar v. S. C. Mittal
- .....section 29-b of the west bengal premises tenancy act.2. the opposite party occupied a part of the ground floor of the premises no. 9-a ballygunge place, calcutta, as a monthly tenant under the petitioner, his brother and mother, who served a notice dated 10-1-1976 terminating the tenancy on the expiry of the month of february 1976. the petitioner is a central government employee under the council of scientific and industrial research department and has been residing at 59 lake road, allotted to him by the government, but in terms of the existing government order be has been asked to vacate the said government quarter on the ground trial he owns the suit premises at 9a ballygunge place and as such he requires the residential accommodation now in occupation of the opposite party to.....

Sudhindra Mohan Guha, J.

1. This application for revision is directed against the order dated 5th Nov., 1979 passed by Sri H. Manna, Rent Controller, Calcutta dismissing the petitioner's application under Section 29-B of the West Bengal Premises Tenancy Act.

2. The opposite party occupied a part of the ground floor of the premises No. 9-A Ballygunge Place, Calcutta, as a monthly tenant under the petitioner, his brother and mother, who served a notice dated 10-1-1976 terminating the tenancy on the expiry of the month of February 1976. The petitioner is a Central Government employee under the Council of Scientific and Industrial Research Department and has been residing at 59 Lake Road, allotted to him by the Government, but in terms of the existing Government order be has been asked to vacate the said Government quarter on the ground trial he owns the suit premises at 9A Ballygunge Place and as such he requires the residential accommodation now in occupation of the opposite party to accommodate himself and his family consisting of his wife, a Professor of the Presidency College, Calcutta, a son having his education in the University and an unmarried sister-in-law, a science graduate who is dependent on him. The tenancy of opposite party comprises of two bed rooms, one dining-cum-kitchen, bath, privies etc.

3. This application is opposed by the opposite party mainly on the ground that he does not require the suit premises for his own occupation and that he is in possession of alternative reasonably suitable accommodation. The relation of landlord and tenant is also disputed.

4. The learned Rent Controller by the impugned order held that the petitioner was required by the Government order to vacate the Government Flat but decided the point regarding reasonable requirement against the petitioner.

5. Mr. P. B. Burman, the learned Advocate for the petitioner challenges these find-ings on the ground that the learned Rent Controller misappreciated the scope of Section 29-B of the Act and also the evidence on record, He has taken me through the entire evidence and report on inspection and argues that the petitioner cannot be in possession of any suitable reasonable accommodation. Thus the Rent Controller is said to have fallen in error, both in facts and law.

6. It transpires from the sale deed Ext. 5, that the premises at 9A and 9B Ballygunge Place had been purchased jointly by the petitioner, his elder brother and mother. At the time of purchase the buildings thereon were partly two storied and partly three storied. There is no evidence how the premises at 9B Ballygunge Place are being used. The opposite party is admittedly in occupation of two bed rooms, a kitchen with space for dining, a covered verandah, bath, privies etc. on the ground floor of the premises at 9A Ballygunge Place. It transpires from the report, Ext. D that the petitioner and his brother and mother are in occupation of two rooms, stair case landing, mezanine room, bath, privy etc. on the first floor and a garage on the ground floor. It further transpires that besides this accommodation there is a new construction annexed to the old building at the back portion of the first floor as well as on the ground floor. This annexe has two rooms, one kitchen, dining space and a bath. There is a corresponding ground floor annexe. On the first floor there was no electric connection, though the fittings were there. On the ground floor the flooring was yet to be done, so also the electric fittings, and drainage. There were no leaves of doors and windows, which were fitted with grills. According to the defence these were kept incomplete or unfinished with a definite purpose.

7. Mr. Burman while placing the evidence refers to the decision in the case of Krishna Das Nandy v. Bidhan Chandra Roy, reported in : AIR1959Cal181 and argues with special reference to p. 52 (of Cal WN) : (at page 192 of AIR) that the learned Rent Controller failed to take into consideration the status of the petitioner, and his wife, a Professor of Govt. College, the nature of their work of avocation before coming to the decision as to petitioner's requirement and reasonableness, and the reasonableness of the petitioner should not be judged with reference to that of a common man. Whatever may be status of the petitioner on the evidence on record and the facts and circumstances I do not think that the learned Rent Controller failed to come to a correct decision on appreciation of evidence and I am fully in agreement with him and that the point as to reasonableness of the requirement was rightly decided against the petitioner.

8. For the purpose of summary trial of certain applications Chap. VIA was inserted by Section 3 of W. B. Act LII of 1976. Under Section 29-A, the provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force. This was introduced with a purpose of conferring special privileges on certain landlords to evict their tenants. An allottee from the Government, under these provisions has been afforded a quicker and expeditious remedy against his own tenant. In order to avail of this provision the following conditions are to be satisfied:-- (i) the landlord is a Government employee, (ii) he is in occupation of any residential premises allotteed to him by his employer, (iii) under an order by such employer he is to vacate such allotted portion on the ground that he owns a residential accommodation 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 and (iv) 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. This special provision for quick and expeditious remedy has been extended to the allottee for eviction of his own tenant. Now the question is whether such privilege can be extended to an allottee and his co-sharers for eviction of a tenant holding under all of them. In my opinion in such a case, Chapter VIA providing for summary trial of the application shall not be applicable. All the co-sharers landlords are to follow the provisions of the W. B. Premises Tenancy Act for eviction of the tenant inducted by them. In this case a notice to quit was served on behalf of the landlords. An action for eviction is also to be followed by all of them. A tenant cannot be ejected by a suit brought by one only of the several landlords. So an action by one of the co-sharers for eviction of a tenant is incompetent. This principle of law would be applicable unless contrary provisions are made by the Legislature. Section 29-B, as I find on plain reading does not extend the special remedy to any one else other than the allottee landlord. His co-sharers cannot take the advantage of the special provision, along with him for eviction of a tenant in-ducted by all of them.

10. While pointing out this to Mr. Bur-man, he submits that there is a Supreme Court decision in his favour. I could come across the decision of the Supreme Court in case of Sri Ram Pasricha v. Jagannath reported in : [1977]1SCR395 . In this case there was no dispute that the plaintiff was the landlord. It was however found that he was one of the co-owners of the premises the other co-sharers being his mother and married brother who used to reside in the same premises along with him. The premises in suit in occupation of the tenant were required by the plaintiff for occupation of the members of the joint family and for their benefit. The Supreme Court rejected the submission that the plaintiff who was admittedly the landlord and co-sharer of the premises was not the owner of the premises within the meaning of Section 13 (1) (f) of the Act. The Supreme Court further observes that it is not necessary to establish that the plaintiff is the only owner of the premises for the purpose of Section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

(the underline is of mine)

11. In the instant case the opposite party is neither inducted by the petitioner alone nor he is acknowledged as the sole landlord by the tenant.

12. But I find in K. R. Nambiar v. S. C. Mittal, AIR 1978 NOC 44 (Delhi), it is held by a single Judge of the Delhi High Court that in a proceeding under Section 14A ot Delhi Rent Control Act (1958) as inserted in 1976 one of the landlords and a co-sharer of the property is entitled to obtain an order for eviction provided other landlords and co-sharers are impleaded. With due respect to his Lordship, I am of the view that there is no scope of impleading co-owners in a proceeding of this nature. The only necessary parties to a proceeding under Section 29-B of the Act are the allottee landlord and his tenant.

13. In this view of the matter, I hold that the application under Section 29-B itself it not maintainable.

14. In the result, this application for revision is rejected. The Rule is discharged. There will be no order as to costs, as the opposite party does not appeal.

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