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Jyotsna Ranjan Chakrabarti Vs. N.K. Mitra - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberC.O. No. 1578 of 1982
Judge
Reported inAIR1982Cal518,86CWN1031
ActsWest Bengal Premises Tenancy Act, 1956 - Section 29B
AppellantJyotsna Ranjan Chakrabarti
RespondentN.K. Mitra
Appellant AdvocateSaktinath Mukherjee and ;Pradipta Ray, Advs.
Respondent AdvocateS.C. Chakrabarti, Adv.
DispositionApplication allowed
Excerpt:
- .....child at or near the place where he is posted for the time being, or by a landlord who is a retired member of the naval, military or air force of the union of india or will retire within a period of less than one year as such member, for the recovery of possession of any premises on the ground specified in clause (ff) of subsection (1) of section 13 but such application shall be dealt with by the controller in accordance with the procedure specified in this section.' 7. the opposite party no. 1 apparently claiming to be a retired member of the armed forces of the union of india filed the application, by invokingthe special procedure prescribed in the said section. it is contended by mr. mukherjee appearing on behalf of the petitioner that in the facts and circumstances of the case.....
Judgment:
ORDER

B.C. Chakrabarti, J.

1. This revisional application at the instance of the tenant is directed against an order of eviction passed by the Additional Rent Controller, Barrackpur in case No. R. C. 45 of1981 under Section 29B of the West Bengal Premises Tenancy Act.

2. The petitioner's case in brief is as follows :

The petitioner was inducted as a tenant in the western hali portion of the ground floor of premises No. 292B. Bangur Avenue, Dum Dum by the then owner Smt. Probhabati Mitra at a monthly rental of Rs. 150/- payable according to English Calendar.

3. In November, 1979, the petitioner was informed by Smt. Probhabati Mitra that she had gifted the entire ground floor of the said premises to her son Sri N. K. Mitra (Opposite party No. 1). Since then the opposite party No. 1 started collecting rent from the petitioner. In or about the month of February, 1980 the petitioner received a notice to quit dated February 15, 1980 under Section 106 of the Transfer of Property Act read with Section 13 (6) of the West Bengal Premises Tenancy Act. It was stated in the notice that the opposite party No. 1 was a retired military officer, that he required the premises for his own use and occupation and the petitioner was asked to vacate the suit premises with the expiry of the month of April 1980. Thereafter the opposite party No. 1' filed an application under Section 29B of the West Bengal Premises Tenancy Act for eviction of the petitioner which was registered as R. C. Case No. 45 of 1981. In the said application the opposite party No. 1 made out a case of reasonable requirement for own use and occupation. The application was accompanied by a certificate issued by the Lt. Col. Randhir Singh as required under Section 29B (2) of the Act. The petitioner filed an opposition to the application and eventually the learned Additional Rent Controller by his judgment dated 24-2-1982 passed an order for eviction of the petitioner from the suit premises.

4. Being aggrieved by the order thepetitioner has moved the present re visional application. The application has been heard on notice to and upon contest by the opposite party No. 1.

5. The following facts which appear from the evidence adduced before the Rent Controller are not disputed. The petitioner was inducted as a tenant in 1972 by Smt. Probhabati Mitra. Smt. Probhabati Mitra gifted the ground floor of the said premises to the opposite party No. 1 by a deed of gift dated 26-9-1979. The opposite party No. I, who was a member of the armed forces in the medical corpse retired from service in 1970. Thereafter he lived at Meerut for 8 or 9 years and then came to Calcutta to stay as a tenant in his present accommodation.

6. Section 29B was first introduced by the West Bengal Premises Tenancy (Amendment) Act, 1976. It provided for summary trial of applications for eviction under certain circumstance. This provision was further amended in 1978 by the West Bengal Premises Tenancy (Amendment) Act, 1978. Section 29B as it now stands provides for a special procedure for disposal of applications for eviction on the ground, of bona fide requirement by retired or retiring members of the armed forces. The Section in its material part reads as follows:--

'(1) 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 as 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 is a retired member of the naval, military or air force of the Union of India or will retire within a period of less than one year as such member, for the recovery of possession of any premises on the ground specified in Clause (ff) of Subsection (1) of Section 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section.'

7. The opposite party No. 1 apparently claiming to be a retired member of the armed forces of the Union of India filed the application, by invokingthe special procedure prescribed in the said Section. It is contended by Mr. Mukherjee appearing on behalf of the petitioner that in the facts and circumstances of the case the opposite party No. 1 is not entitled to the benefit of the said section. Mr. Chakrabarti in opposing the application contended on the other hand that the opposite party No. 1 being a retired member of the armed forces and having satisfied the learned Rent Controller about his requirements is well covered by the provisions of the section.

8. From the Statement of Objects and Reasons annexed to the bill enacting the West Bengal Premises Tenancy (Amendment) Act 1976 it appears that the object behind the provision was to assist employees of the Central or the State Government or any local authority who are required to vacate occupation of residential accommodation allotted to them by their employers it was considered necessary to provide for a special and speedy procedure to enable such employees to recover possession of their own premises. The object behind the further amendment in 1978 was to extend the benefit of the section to retired or retiring members of the armed forces who cannot get back possession of their residence let out to tenants, at the end of their service life. Keeping these objects in view and the language of the section it seems that the opposite party No. 1 in the particular circumstances of the case was not really intended to be covered by the special provisions. The section refers to a 'landlord who is a retired member of the naval, military or air force of the Union of India or will retire within a period of less than one year as such member.' In the present case the petitioner was inducted as a tenant in 1972. The premises at that time belonged to the mother of the opposite party No. 1. Opposite Party No. 1 had already retired from service in 1970. It is plain therefore that the opposite party No. 1 was not a landlord at the time when he retired. He was not even the owner of the premises. He became the owner in 1979 by virtue of the deed of gift. The expression 'landlord who is a retired member' clearly postulates a situation where the retired member is a landlord and is in need of occupation of the premises let out to the tenant at or about the time of retirement. A retired member of the armed forces who was not a landlord at the time of retirement but became so many years thereafter by subsequent acquisition of interest is not covered by the expression 'a landlord who is a retired member etc.' In the instant case the admitted position is that the opposite party No. 1 was not the landlord of the petitioner at the time of his retirement in 1970. As a matter of fact the tenancy was not in existence at that time. At the time of his retirement in 1970, the opposite party could not claim eviction on the ground of his own requirement for two reasons -- firstly he was neither the landlord nor the owner of the premises at that time and secondly because the tenancy was created long thereafter. Therefore he had no cause of action at that time so as to entitle him to a decree for eviction even under the ordinary procedure. To extend the benefit of the summary procedure to such a person was never within the intention of the legislature. Therefore it seems to me that the application under Section 29B by the opposite party No. 1 filed 9 years after Ms retirement and the tenancy having been created nearly two years after such retirement, was misconceived. The learned Rent Controller had no jurisdiction in such circumstances to pass an order for eviction under Section 29B of the Act. The impugned order therefore, cannot be sustained. The order was without jurisdiction. The application accordingly succeeds and is allowed and the order impugned in this application is set aside.

9. There will be no order for costs.

10. Let the order be communicated to the Court below forthwith.


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