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Judgment
Anil K. Sen, J.—An order dated November 22, 1982, passed by the Rent Controller, Calcutta, dismissing an application under an application under S. 29B of the West Bengal premises Tenancy Act (herein after referred to as the said Act), which was registered as Eviction Case No 4/81, is the subject matter of challenge in this revision application. The applicant before the Rent Controller (hereinafter referred to as the said Act). Which was registered, as Eviction case No 4/81, is the subject matter of challenge in this revision application. The applicant before the Rent Controller (hereinafter referred to as the plaintiff) is the petitioner before us and the application is being contested by the opposite party No. 2 (hereinafter referred to as the defendant No. 2).
According to the plaintiff, he purchased flat No. 2, Block ''D'', at premises No. 58/3 Ballygunge Circular Road, Calcutta, from a Co-operative Society in terms of an agreement. For effecting such a purchase he paid a sum of nearly Rs.61,000.00 and incurred a loan to the tune of Rs.50,000.00 from the Co-operative Society which was to be repaid on installments. Plaintiff''s further case is that after such purchase but before he could take delivery of possession of the flat from the Co-operative Society, he had to leave India on deputation service and as such, he let out the said flat to one Abani Bhusan Bhattacharjee, defendant Monthly rent of Rs.1,800.00 to be paid in the manner agreed to between the parties but not relevant for the present purpose. The flat was so let out to the defendant No. 1 sometime in April 1977 and the Co-operative Society gave delivery of the flat to the defendant no.1 on November 2, 1977. According to the plaintiff, defendant no 1 in his turn inducted the defendant No. 2 as a subtenant in respect of the said flat. When the plaintiff returned to India at the end of his deputation, he was posted at Calcutta as the General manager, Telecommunication Project, East Zone. He was granted temporary accommodation at the Telephone Bhavan Inspection Bungalow up to January 7, 1981, which was further extended till January 30, 1981. He was directed to vacate the Inspection Bungalow by January 31, 1981, and was advised to secure an allotment of accommodation from the Estate Manage, Calcutta. The plaintiff asked for the necessary allotment from the Estate Manager but was informed on January 20, 1981. "In view of your owning a houses in Calcutta, your priority date for allotment of accommodation under General pool goes down as below: -
Type Priority date
E Priority date goes down from 6.7.71 to 1.6.77
E-I Priority date goes down form 16.9.75 to 1.6.77
As a result, there is no possibility of your getting any accommodation for Type E Qtr. Which you could have get otherwise but for your owning a house in Calcutta. For the same reason you area well behind in the Warring. List for allotment of E-1 Qtr."In that background the plaintiff filed an application for an order for eviction under S. 29B of the said Act before the Rent Controller on the ground of his personal requirement within the meaning of S. 13(1)(ff) of the said Act.
This application was not contested by the defendant No. 1 who in his turn admitted the fact that the flat in dispute was let out to him in April 1977 and he further admitted to have sublet the premises to the defendant No. 2 with effect from March 1978.
The said application, however was strongly contested by the defendant No 2 who took various defenses including a defiance that an application under S. 29B of the said Act is not maintainable in the facts and circumstances. He further raised a defense that he was put into possession by the plaintiff in terms of an agreement to sell the disputed flat to him and in part performance of the said agreement he had paid-certain amounts to the Co-operative Society which was otherwise payable by the plaintiff. Or, in other words, he took the defense under S. 53A of the Transfer of property Act.
The Rent Controller has dismissed the plaintiff''s application mainly on the ground that, since a dispute as to the title has been raised by the defendant No 2, the plaintiff is not entitled to maintain such an application until the dispute as to the title is decided by a civil court. Reading the judgment of the Rent Controller, it appears to us that the Rent Controller did not go into the defense of the defendant No. 2 on its merits nor did he record any finding that the defendant No. 2 were there in the disputed flat by virtue of an agreement for sale in terms of S. 53 A of the Transfer of property Act. He merely observed that, such a dispute has been raised by the defendant No. 2 and it appears to the Rent Controller that there is a prima facie case in that regard, that must be left for adjudication by the Civil Court and until it is so done an application under S. 29B of the Act cannot be entertained. It is the propriety of this decision, which is the subject matter of challenge before us in the present revision application.
Mr. Dutta appearing in support of the revision application has contended that, according to the plaintiff, the disputed flat was let out to defendant No. 1 and such letting is duly admitted by the defendant No. 1. The plaintiff''s further case is that defendant No. 2 was inducted as a sub-tenant by the defendant No 1 and this fat too has been clearly acknowledged by the defendant No. 1.If the defendant No 2 had taken a specific defense that he was there in the flay not as a sub tenant but under an agreement with the plaintiff having been put into possession thereof within the meaning of S. 53A of the Transfer of property Act, it was for him to establish that before the Controller and the Controller could not have dismissed on a careful consideration of the contention thus put forward by Mr. Dutta we find that there is some substance in this contention. As we have indicated hereinbefore, the Rent Controller had not recorded any express finding on the defense taken by the defendant No 2 with regard to his claim under taken the view that, as he is exercising a summary jurisdiction under S. 20B and when such a disputed issue has been raised, he cannot exercise his jurisdiction under S. 29B of the said Act. In our opinion, he is not correct there. It was necessary for him to negative the plaintiff''s claim that the defendant No. 2 is there as a sub-tenant or as an encumbrance, created by defendant No. 1, and has no independent right to occupy the flat, before the plaintiff''s application under S. 29B of the Act could be dismissed when the tenancy in favour of the defendant No. 1 is clearly established and acknowledged by the said defendant. Therefore, in the normal course it would have been necessary for us to remand the matter back to the Controller for a final adjudication on the point, but on a closer consideration of the plaintiff''s case made out in his application we are, however, of the opinion that no case for an order under S. 29B of the Act could otherwise be made out by the plaintiff. We give our reason therefore.
Section 29B(1) of the Act provides as follows: -
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 hi 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 obligation on the ground that he owns 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 is posted for the time being, or by a landlord who has retired, or will retire within a period of less that one year, as a member of 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 that a minor child or the widow) and a dependent 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 or the recovery of possession of any premises on the ground specified in clause (ff) of sub-s (1) of S. 13 but such application shall be dealt with by the Controller in accordance with the procedure specified in this section.
We are of the opinion that in order to attract the provision the Government employee must be (i) in occupation of the residential premises allotted by the Government (hereinafter referred to as the Government premises) and (ii) he must be asked either to vacate or in default, to incur certain obligations on the ground that he himself owns a residential accommodation. We think that the second element as aforesaid is an important factor. The necessary implication of the second element is that but for his owning his own residential accommodation he would have been allowed to occupy and enjoy he same. Now in the case before us the case of the petitioner is that he as a Government employee returned form deputed on and was posted at Calcutta. He was provided with a temporary accommodation in an Inspection Bungalow. He was not allowed to continue in such accommodation after a short extension and was asked to obtain an allotment of a regular residential accommodation form the general pool. Such allotment was not made on the ground that, as the petitioner has his own residential accommodation, he couldn''t claim any priority so that the allotment for is likely to be delayed inordinately. In substance, he was refused allotment of residential accommodation otherwise provided for by the Government. But it is not a case where he had been directed to vacate any Government promises on the round of his owning a residential accommodation of his own. Mr. Dutta has strongly contended that the residential accommodation allotted by the Government as envisaged by S. 29B(1) of the Act need not be a permanent one. According to Mr. Dutt, since the petitioner had been asked to vacate his accommodation of the Inspection Bungalow and since he had been refused an alternative accommodation from the general pool on the ground that he himself owns a residential accommodation of his own. It, in substance, amounts to directing him to vacate the temporary accommodation at the Inspection Bungalow on grounds contemplated by S. 29B(1) of the Act. According to Mr. Dutta. S. 29B(1) should be liberally construed to cover such a case having regarded to the object of providing an early relief to Government employees who require eviction of tenants from their own houses on grounds contemplated by S. 13(1)(ff).
We have carefully considered such a contention put forward by Mr. Dutt. But we are unable to accept the same. On the terms of Section 29B(1) of the Act the legislature intended to provide the summary relief only to such of the Government employees who are in need to evict their tenants on grounds contemplated by S.13 (1)(ff) where such a ground arises because of an order made on them to vacate the Government premises in their occupation on the ground of their having own residential accommodation. It was never the intention of the legislature that every Government servants, who is in need of eviction his tenant on a ground contemplated by S.13 (1)(ff), should be given the summary relief under S. 29B(1) of the Act. On the facts of the present case wise find that first of all the petitioner has been asked to vacate the Inspection Bungalow only on the ground that the tenure of occupation of such a Bungalow cannot be indefinite and not on any ground contemplated by S. 29B(1). Secondly, where was the opportunity for the plaintiff to continue in occupation of a Government premises but for the order on him to vacate on the ground of his owning a residential accommodation of his own. We have indicated hereinbefore that is the test trod find out whether the case really comes under S. 29B(i) of the Act. We are of the view that it is wholly immaterial whether the residential accommodation provided by the Government is temporary or permanent. But it must be one in which the petitioner should have been entitled otherwise to continue but for a direction to vacate on the ground of the plaintiff owning a residential accommodation of his own. That is not the case here before us because the plaintiff could not have continued in occupation of the accommodation at the Inspection Bungalow. He was required to vacate only because the Inspection Bengal does not permit indefinite occupation. It was really a case of refusal of allotment of Government premises to the plaintiff on the ground that the plaintiff owns his own residential accommodation and nor is it a case whirring the plaintiff has been directed to vacate on any such ground. The plaintiff stands in no better position than one who on transfer is refused Government accommodation on similar grounds whose case can never come under the purview of the provision under consideration.
On this ground alone, we are of the opinion that the application filed by the plaintiff before the Rent Controller should have been dismissed and we direct accordingly and we make it clear that all other issues raised or argued before the Rent Controller must be deemed to have been left open application under S. 29B of the Act fails only because the Controller on the case made out by the plaintiff had no jurisdiction to entertain such an application.
The revision application is disposed of accordingly.
Let the records be sent down to the court below.
Prabir Kumar Majumdar, J.
I agree.