State of West Bengal & ANR Vs.
Saral Kumar Sen Gupta & ANR [1986] INSC 79 (15 April 1986)
VENKATARAMIAH, E.S. (J) VENKATARAMIAH, E.S.
(J) THAKKAR, M.P. (J)
CITATION: 1987 AIR 514 1986 SCR (2) 515 1986
SCC (3) 45 1986 SCALE (1)630
ACT:
West Bengal Government Premises (Teanancy
Regulation) Act, 1976 - S.3(2) - Agreement of tenancy - Stipulation - 'Premises
to be used exclusively by the tenant and members of his family' - Tenant
ceasing to occupy premises himself - Whether liable to eviction.
HEADNOTE:
Respondent No.1 - an employee of the State
Government was allotted on lease a two-roomed flat. Clause (7) of the agreement
of tenancy provided that the premises shall be used exclusively for the purpose
of the residence of Respondent No.1 and the members of his family. At that time
the family of the Respondent No.1 consisted of himself, his elder brother and
three unmarried sisters. In the year 1959, Respondent No.1 got married and
alongwith his wife shifted to another flat taken on lease. His elder brother and
two unmarried sisters continued to be in occupation of the flat.
The Prescribed Authority under the West
Bengal Government Premises (Tenancy Regulation) Act, 1976 issued a notice to
Respondent No.1 calling upon him to quit and deliver possession of the flat on
the ground that the tenancy had automatically terminated as provided in s.3(2)
of the Act because he had ceased to occupy it and that cl. (7) of the agreement
of the tenancy had been violated.
Respondent No. 1 filed a Writ Petition under
Article 226 alleging that since Respondent No.2 was his elder brother he was a
member of his family and he was entitled to live in the flat even though
Respondent No.1 himself was not living therein. The petition was dismissed by a
Single Judge.
In appeal, the Division Bench held that cl.
(7) of the agreement of tenancy was not violated even if the tenant had himself
ceased to occupy and a member of his family continued to reside in the flat,
and allowed the appeal.
516 Allowing the appeal by the State to this
Court, ^
HELD: 1. Respondent No. 1 violated cl.(7) of
the agreement of tenancy when he ceased to occupy the premises himself. The
judgment of the Division Bench is set aside and that of the Single Judge is
restored. [521 A-B]
2. What cl.(7) of the agreement of tenancy
stipulates is that the premises can be used by respondent No. 1 and the members
of his family, that is to say, respondent No.1 could stay himself along with
his family members and not by respondent No.1 or the members of his family. As
long as respondent No. 1 is residing in the premises he could accommodate along
with him any other member of his family in the premises. But when he ceases to
reside in the premises and occupies other premises for residence as a separate
unit other members constituting a separate unit cannot in their own right as a
separate unit continue to get the same without violating cl.(7) of the
agreement of tenancy. It is the condition of the lease that the tenant in whose
favour the premises are leased should reside in the premises let to him and not
in some other premises during the currency of the lease. [519 E-G] Baldev Sahai
Bangia v. R.C. Bhasin, [1982] 3 S.C.R.
670, distinguished.
3. To meet the growing demand for Government
premises the State Legislature had to amend the Act by the West Bengal Act XLVI
of 1980, by introducing cl. (ia) in sub-s.
(2) of s.3 of the Act which provided that a
tenancy in respect of a Government Premises would stand automatically
terminated without any notice to quit where the tenant had subsequently built a
house or acquired (by purchase, gift, inheritance, lease, exchange or
otherwise) a house or an apartment, either in his own name or in the name of
any member of his family, within a reasonable distance from such Government
premises. [520 F-H]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
9963 of 1983.
From the Judgment and Order dated 3rd August
1983 of the Clacutta High Court in First Misc. Appeal (Mandamus) Tender No. 168
of 1983.
517 N.N. Gooptu, D.P. Mukherjee and G.S.
Chatterjee for the Appellants.
Shankar Ghose and Rathin Das for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH,J. The State of West Bengal, the Deputy Secretary and the
Assistant Secretary, Housing Department to the Government of West Bengal are
the appellants in this appeal. The above appeal is filed by special leave
against the judgment dated August 3, 1983 of the High Court of Calcutta in
Appeal from Original Order T. No. 168 of 1983 allowing the appeal against the
judgment dated January 18, 1983 of the learned Single Judge of the Calcutta
High Court in C.R. No. 12684 (W) of 1976. Respondent No. 1, Saral Kumar Sen
Gupta was an Upper Division Assistant in the Directorate of Food and Supplies,
Government of West Bengal. In the year 1958 he was allotted on lease a
two-roomed flat bearing No.
5 in Block 'F' of the Government Housing
Estate, Karaya Road, Calcutta. The allotment was made under an agreement of
tenancy which contained the terms and conditions under which the flat had been
allotted in his favour. Clause (7) of the agreement read as follows :
"(7) You should use the premises
exclusively for the purpose of residence of yourself and the members of your
family and for no other purpose whatsover." (emphasis added) It is stated
that in the year 1958 the members of the family of Respondent No.1, Saral Kumar
Sen Gupta consisted of himself, his elder brother Santosh Kumar Sen Gupta,
Respondent No.2, and three unmarried sisters. The 1st respondent was married in
the year 1959. After some time Respondent No. 1 along with his wife shifted to
another flat which he had taken on lease. His elder brother and his two
unmarried sisters were in occupation of the flat in question. On coming to know
that Respondent No.1 had ceased to occupy the flat and that only his elder
brother and his two unmarried sisters were residing there, the Deputy
Secretary, Housing Department of the 518 Government of West Bengal, the
Prescribed Authority under the West Bengal Government Premises (Tenancy
Regulation) Act, 1976 (hereinafter referred to as 'the Act') issued a notice to
Respondent No.1 calling upon him to quit and deliver possession of the flat on
the ground that the tenancy had automatically terminated as provided in section
3(2) of the Act as he had ceased to occupy it and that clause (7) of the
agreement of tenancy had been violated.
Aggrieved by the said notice Respondent No.1
filed a writ petition in the High Court of Calcutta contending that since
Respondent No.2 was his brother and as such a member of his family, Respondent
No.2 was entitled to live in the said flat even though Respondent No.1, the
tenant was not living therein. The writ petition came up for hearing before the
learned Single Judge of the High Court who after hearing the parties dismissed
it. Against the judgment of the learned Single Judge Respondent No. 1 filed an
appeal before the Division Bench of the High Court. The Division Bench allowed
the appeal and made the rule absolute holding that since Respondent No.2, the
elder brother of Respondent No.1 was a member of the family of Respondent No.1,
clause (7) of the agreement of tenancy had not been violated. In other words
the Division Bench was of the view that clause (7) of the agreement of tenancy
was not violated even if the tenant had himself ceased to occupy a member of
his family continued to reside in the flat. This appeal by special leave is
filed against the judgment of the Division Bench of the High Court of Calcutta.
It may be mentioned here that after the
judgment of the learned Single Judge, the State Government took possession of
the flat in question on January 27, 1983 and it has continued to be in the
possession of the State Government notwithstanding the appeal of Respondent
No.1 being allowed by the Division Bench of High Court by virtue of an interim
order passed by this Court. Even now the flat is in the possession of the
Government of West Bengal.
The building in question belongs to the State
Government and the incidents of its lease are governed by the Act. Section 3(2)
of the Act provides that a tenancy in respect of a Government premises shall
stand automatically terminated without any notice to quit, where the tenant has
violated the terms of the lease or made default in payment of rent for 519
three consecutive months. The provisos to section 3(2) of the Act are not
relevant for the purposes of this case. The Prescribed Authority appointed
under the Act is entitled to recover possession of any Government premises from
a tenant under section 3(2) of the Act on the violation of the terms of the
lease. The short question which arises for consideration in this case is
whether Respondent No.1 who was the tenant of the Government premises in
question had violated the terms of the lease. We have already set out above clause
(7) of the agreement of tenancy. It provides that the premises can be used
exclusively for the purpose of the residence of Respondent No.1 along with the
members of his family and for no other purpose whatsoever. Admittedly,
Respondent No.1 has not been residing in the premises from a date prior to the
date on which the notice was issued to him calling upon him to quit and deliver
possession of the premises. The Division Bench of the High Court was of the
view that since Santosh Kumar Sen Gupta, the elder brother of Respondent No.1
had been residing in the premises, the condition contained in clause (7) of the
agreement of tenancy had not been violated. It was of the view that even though
Respondent No.1 had himself along with his wife shifted to some other flat or
premises the building could be used by his brother who could be said to be a
member of the family of Respondent No.1. With great respect we cannot agree
with the view taken by the Division Bench of the High Court. What clause (7) of
the agreement of tenancy stipulates is that the premises could be used by
Respondent No. 1 and the members of his family, that is to say Respondent No.1
could stay himself along with his family members and not by Respondent No.1 or
the members of his family. As long as Respondent No. 1 is residing in the
premises he could accommodate along with him any other member of his family in
the premises. But when he ceases to reside in the premises and occupies other
premises for residence as a separate unit other members constituting a separate
unit cannot in their own right as a separate unit continue to occupy the same
without violating clause (7) of the agreement of tenancy. It is the condition
of the lease that the tenant in whose favour the premises are leased should
reside in the premises let to him and not in some other premises during the
currency of the lease.
The learned counsel for the Ist Respondent
drew our attention to the decision of this Court in Baldev Sahai Bangia 520 v.
R.C. Bhasin, [1982] 3 S.C.R. 670 and contended that this Court had recognised
the right of the members of the family of a tenant to reside in a building
taken on lease even after the tenant had left the premises. We have gone
through that decision. In that case this Court was concerned with clause (d) of
section 14(1) of the Delhi Rent Control Act, 1958 which provided that where the
premises were let for use as a residence and neither the tenant nor any member
of his family had been residing for a period of six month immediately before
the date of the filing of the application, the landlord could apply for
eviction of the tenant. This decision is of no assistance to the Ist Respondent
since the language of section 14(1)(d) of the Delhi Rent Control Act, 1958 is
different from the language in clause (7) of the agreement of tenancy in the
case before us. The expression 'neither the tenant nor any member of his
family' in the Delhi Rent Control Act, 1958 was capable of the construction
that if either the tenant or a member of his family was residing in the
premises section 14(1)(d) of that Act was not attracted. But in the present
case the term contained in clause (7) of the agreement of tenancy required that
the premises could be used for the residence of the tenant and (along with him)
the members of the family and not tenant or the members of his family in the
sense that the tenant stays somewhere else and his other family members stay in
the leased premises. The decision relied on is, therefore, clearly
distinguishable.
It has to be borne in mind that the buildings
owned by the Government are limited in number and there is a great demand for
allotment of Government premises. The Government cannot afford to allow one
family to have the privilege of occupying two buildings. It is in order to meet
the growing demand for the Government premises the State Legislature had to
amend the Act by the West Bengal Act XLVI of 1980 introducing clause (ia) in
sub-section (2) of section 3 of the Act which provided that a tenancy in
respect of a Government premises would stand automatically terminated without
any notice to quit where the tenant had subsequently built a house or acquired
(by purchase, gift, inheritance, lease, exchange or otherwise) a house or an
apartment, either in his own name or in the name of any member of his family,
within a reasonable distance from such Government premises. We have referred to
the above clause only to show the magnitude of the 521 shortage of housing
accommodation. In any view of the matter it has to be held that Respondent No. 1
violated clause (7) of the agreement of tenancy when he ceased to occupy the
premises himself. The judgment of the Division Bench of the High Court is,
therefore, liable to be set aside. It is accordingly set aside. The judgment of
the learned Single Judge is restored.
The appeal is accordingly allowed. No costs.
A.P.J. Appeal allowed.
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