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Judgment
Jayanta Kumar Biswas, J.—The petitioner in this writ petition dated July 21st, 2006 is seeking a writ of certiorari quashing the decision of the first respondent to transfer, assign and hand over possession of flat No. 13 (with garage and servant''s quarters) at 8, Ho Chi Minh Sarani (first floor), Kolkata - 700 071 to the second respondent (Brahmaputra Valley Fertilizer Corporation Ltd.). She is also seeking a writ of mandamus commanding the respondents to cancel that decision of the first respondent. A writ of prohibition has also been sought.
The first respondent was inducted in the property (the parties have not said when it was inducted) as a tenant governed by the provisions of the West Bengal Premises Tenancy Act, 1956 (since repealed by the West Bengal Premises Tenancy Act, 1997). In 1992 it became a sick company within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985. The BIFR was of the opinion that it should be wound up. In appeal the AAIFR set aside the decision of the BIFR and approved a scheme for demerger of its Namrup unit as a separate company. Thus the second respondent came into existence on April 1st, 2002.
The petitioner issued notice to the first respondent under the West Bengal Premises Tenancy Act, 1997, Section 20, dated September 3rd, 2003 intending to increase the rent of the premises from Rs. 2,000/- per month to Rs. 18,000/ per month. Then she gave a Section 6(4) notice dated September 1st, 2005 terminating the tenancy of the first respondent and calling it upon to quit and vacate the property, and deliver vacant possession thereof to her. In such situation, the second respondent wrote a letter dated October 7th, 2005.
By the letter dated October 7th, 2005 the second respondent informed the petitioner as follows:
You are already aware that we are Govt. of India Undertaking formed out of demerger from the erstwhile Hindustan Fertilizer Corporation Limited as per the directives of Government of India.
Till now the rent amount of Rs. 2000/- p.m. has been paid by our mother organization M/s. HFCL. However, in the meanwhile you have demanded the applicable enhanced rent as per the West Bengal Tenancy Act, 1997 vide your letter No. NIL dated 03.09.2003 & 14.05.04 respectively.
We are pleased to inform you that our Board of Directors have agreed to release the enhanced rent of Rs. 18000/- p.m. & the Board of Directors of Hindustan Fertilizer Corporation Limited have also agreed to hand over the tenancy of Flat No. 13 at 8, Ho-Chi-Minh Sarani, 1st Floor, Kolkata - 700 071 to us and accordingly we have taken the possession of the said flat.
Now we are enclosing herewith our cheque No. 889084 dated 07.10.2005 for Rs. 18000/- (Rupees eighteen thousand only) towards the rent of month of October'' 05 inclusive of Maintenance charge, Corporation Tax & Commercial surcharges.
Kingly acknowledge receipt & confirm per return.
Thereafter the petitioner issued a legal notice dated June 19th, 2006 calling upon the first respondent to deliver vacant possession of the property on the ground that it had handed over the tenancy of the property to the second respondent without her permission. It was further mentioned in the legal notice that the tenancy of the first respondent had been terminated by notice dated September 1st, 2005, and that the property was required for her own use and occupation. Since the first and second respondents did not give possession of the property, she took out this writ petition for the reliefs noted hereinbefore.
The question is whether the writ petition is at all maintainable. Counsel for the petitioner has contended that since from the letter of the second respondent dated October 7th, 2005 it is apparent that the first respondent assigned the tenancy of the property to the second respondent, and thus clearly violated the provisions in Section 5(6) of the West Bengal Premises Tenancy Act, 1997, the petitioner became entitled to approach the Writ Court seeking a declaration that the decision of the first respondent to hand over tenancy of the property to the second respondent is illegal.
He has said that except a declaration that the first respondent handed over tenancy of the property to the second respondent in violation of the provisions in Section 5(6) of the West Bengal Premises Tenancy Act, 1997, the petitioner does not want any other relief from the Writ Court. He argues that since the action complained of is illegal, the writ petition can be maintained. He has made it clear that the petitioner does not want an order from the Writ Court directing eviction of the first and second respondents from the premises in question.
According to him, questioning the actions of the first and second respondents, government undertakings and hence states within the meaning of Article 12 of the constitution, the petitioner is entitled to approach the Writ Court alleging violation of Article 14; and availability of the alternative remedy of suit for eviction before the Civil Court cannot be a bar to the maintainability of the writ petition. He has relied on Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, , Radha Raman Samanta Vs. Bank of India and Others, and Coal India Ltd Vs. Indian Explosive Ltd. and Others, ).
Opposing the writ petition counsel for the first respondent has said these. The writ petition is totally misconceived. There is no reason to say that the first respondent admitted the fact of assignment of the tenancy of the property by it to the second respondent. Use and occupation of the property by the second respondent, created by effecting demerger of the first respondent, did not amount to any assignment or transfer of the tenancy of the property by the first respondent to the second respondent. The question whether the events amounted to creation of any assignment or transfer of the tenancy of the property cannot be adjudicated and determined by the writ Court.
In my opinion, the authorities I have been referred to are of no real assistance in the present case. There is no dispute that questioning an illegal, arbitrary, unfair or unreasonable action of a government company which satisfies the tests for falling within the expression ''state'' mentioned in Article 12, the person aggrieved is entitled to approach the writ Court alleging violation of Article 14 of the Constitution of India. There is no dispute either that existence of an alternative remedy is not a bar to the maintainability of a writ petition. Here I find that both the propositions have no manner of application.
The person aggrieved is entitled to say that an action or inaction of a state within the meaning of Article 12 is illegal, arbitrary, unfair or reasonable only when he can establish that the action or inaction of the state in the discharge its obligation caused deprivation of any benefit. That is to say, unless the obligation of the state creates a corresponding right of the person aggrieved to get a benefit on the discharge of the obligation, the person concerned is not entitled to say that failure on the part of the state in the discharge of its obligation is violative of Article 14.
In the present case, the obligations of the first respondent were created by the provisions in Section 5, and one of the obligations was that without the previous consent in writing of the petitioner it would not transfer or assign its right in the tenancy or in any part thereof. It is apparent that the obligation cast was not to do any particular thing, i.e., the first respondent was not to act in any particular manner in the discharge of its obligation creating a corresponding right of the petitioner. It was rather not to act contrary to its obligation for causing harm to itself.
This is so, because on its acting contrary to the obligation, it was to lose protection against eviction. From the provisions in Section 6 of the West Bengal Premises Tenancy Act, 1997 enumerating the grounds for eviction, it is apparent that the petitioner was entitled to institute a suit seeking eviction of the first respondent on the ground that by assigning or transferring the tenancy of the property to the second respondent it acted contrary to its obligation cast by the provisions in Section 5(6). That was the only relief to which the petitioner would have been entitled, if she had filed a suit for which she actually gave two notices.
It is therefore clear that even if the first respondent acted contrary to its obligation cast on it by the provisions in Section 5(6), the only relief that the petitioner can seek is its eviction from the premises by a decree to be made by the Civil Court in a suit filed by her. Hence it cannot be said that here she has taken out the writ petition without availing of an alternative remedy. In my opinion, here no remedy was available to her from the Writ Court, and the remedy available u/s 6 from the Civil Court was the only remedy available. It seems to me that she approached the Writ Court with a view to avoiding the Civil Court.
Only because the first and second respondents are government undertakings, in my view, she was not entitled to approach the writ Court seeking a declaration that the first respondent handed over tenancy of the property to the second respondent in violation of the provisions in Section 5(6) of the West Bengal Premises Tenancy Act, 1997. Whether the first respondent acted contrary to its obligation cast by Section 5(6) would have been a question for examination and decision in a suit for eviction, had the petitioner filed such a suit before the appropriate Civil Court.
For these reasons, I hold that this is a totally misconceived writ petition. I accordingly dismiss it. However, on the facts, I am not inclined to make any order for costs. Hence there shall be no order for costs in the case.
Urgent certified xerox copy of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.