Saral Kumar Sengupta v. State of West Bengal — 1983 DIGILAW 8 (CAL)

ORDER 1. This Rule with the corresponding interim order, was obtained on 20.9.76, against a notice in annexure 'B' to the petition, whereby the petitioner was asked to vacate the Government premises as was allotted to him and he was informed that in default of compliance, necessary steps for eviction would be taken against him. 2. The petitioner at all material times was a Upper Division Assistant, in the Office of the District Distribution (H.G.), Directorate of Food and Supplies and was working at 11A, Free School Street, Calcutta-16. In or about 1958, he filed an application for allotment of a flat in the Government Housing Estate at Karaya Road, Calcutta-19 and in fact on last June 1958, he was allotted flat no.5 in Block 'F' of the Government Housing Estate, Karaya Road (hereinafter referred to as the said flat), by the Assistant Secretary, Housing, Department, Government of West Bengal, respondent no.3. The rent payable for the said flat was agreed to be or fixed at Rs. 77/- per month and such allotment was made in terms of the conditions for occupation of flats under rental house scheme for the State Government employees. The copy of the agreement has been disclosed as annexure 'A' to the petition and clause (7) of the same specifically lays down that in terms of the same, it will be clear that the said flat should he exclusively used for the purpose of the residence of the petitioner and the members of his family and for no other purpose whatsoever. The agreement further contains other terms and conditions, for the default whereof the tenancy would be terminated or would come to an end, automatically. 3. It has been claimed by the petitioner that after taking over possession of the said flat, he was residing there with the member, of his family including his wife, brother and three unmarried sisters and it has also been stated by the petitioner that the persons as mentioned above, were and are members of his family and have been residing in the said flat, since the inception of the tenancy. It has further been stated by the petitioner that nobody ever objected to such occupation of the petitioner along with the other members of his family in the said fiat and as such, he was surprised to receive the notice in annexure 'B' to the petition on 12.9.79, whereby, he was asked to quit the said flat and deliver vacant and peaceful possession of the same. From a reference to the notice, it would appear that the same was issued as it was found that neither the petitioner nor any member of his family lived in the flat and that the petitioner had inducted Sri Santosh Kumar Sen Gupta and others to live and reside therein, without any authority. Immediately on receipt of the said notice the petitioner nude a representation on 17.9.76, as in annexure 'C' to the petition and informed the authorities concerned, that Sri Santosh Kumar Sen Gupta was one of his brothers and he, along with another brother Sri Samarendra Kumar Sen Gupta and three unmarried sisters were residing in the said flat, as members of his family. He stated that his family included his wife and the brothers and sisters as mentioned above. Under such circumstances, it was claimed by the petitioner that there was no violation committed by him, in respect of in terms of clause (7) of the terms of tenancy and he also claimed that his case would not come within S. 3(ii) of the West Bengal Government Premises (Tenancy Regulation) Act, 1976 (hereinafter referred to as the said Act). It should be noted that in the petition, there is a categorical statement by the petitioner in paragraph 14, that he generally resides with his family along with his brothers and unmarried sisters in the said flat and sometimes, he is required to live outside temporarily in another flat, in view of the fact that accommodation available in the said flat, is not sufficient to the need of the members of the family. 4. Mr. Mukherjee, now appearing for the petitioner and in support of the Rule, claimed the action as taken in the matter of issuing the notice, to be unauthorised, void and irregular, apart from the same being issued in violation of the principle of natural justice. 4. Mr. Mukherjee, now appearing for the petitioner and in support of the Rule, claimed the action as taken in the matter of issuing the notice, to be unauthorised, void and irregular, apart from the same being issued in violation of the principle of natural justice. He claimed that unless it is found that the petitioner was not really living in the said flat and the said flat was actually allowed to be occupied by others, who are not members of the petitioner's family, there could not be any cause for proceeding in the matter. It was secondly claimed by him, that tenancy being a property, the petitioner at all material times had and still he has a right and legal right to have opportunities to rebut allegations, if any, which were the basis of termination of such tenancy and no such opportunity or any hearing been given there .was violation of principles of natural justice. It was thirdly submitted by Mr. Mukherjee that if there was any infraction of clause (7) of the agreement and that was the real basis of the action as taken then also rules of natural justice or fundamentals of fair play required an opportunity and hearing to be given to him, so that he could explain the position. Mr. Mukherjee categorically claimed that the notice in annexure 'B' could not be issued without such hearing as mentioned above. It was fourthly contended by him that under the scheme of the said Act or the terms of the agreement as involved, if any actions is to be taken against, that would require due application of mind and since in the instant case, there is no evidence of appropriate application of mind or in fact, there is absence of such legal evidence or any evidence for the formation of the necessary opinion duly, the action as taken, cannot be upheld. It was lastly and fifthly claimed by Mr. Mukherjee that the mere reason as assigned in annexure 'B' and quoted hereinbefore, would not be sufficient to attract clause (7) of the agreement. 5. It should be noted that the respondents without filing any affidavit-in-opposition, produced the records and on a reference to them, Mr. It was lastly and fifthly claimed by Mr. Mukherjee that the mere reason as assigned in annexure 'B' and quoted hereinbefore, would not be sufficient to attract clause (7) of the agreement. 5. It should be noted that the respondents without filing any affidavit-in-opposition, produced the records and on a reference to them, Mr. Taher Ali appearing for the answering respondent, claimed that the said flat being a Government accommodation and in terms of the conditions for occupation, the same was meant to be allotted only for Government employees and the petitioner, without being such an employee, had no independent right. It was stated by Mr. Taher Ali that such accommodation as involved in this case, is primarily allotted to Government employees and not as outsider and as such, right if any, would be with the petitioner and not with the other members of his family. He has further stated, that right of the petitioner, if any, would further be, only a contractual one, which cannot be allowed to be agitated or sought to be protected in a proceeding under Article 226 of the Constitution of India and more particularly when, the notice in annexure 'B' was issued in terms of the provisions of the said Act and for violation of the terms of the concerned agreement. It was also claimed by Mr. Taher Ali that if at all, there was an assignment by the petitioner of the said flat, to the other members of his family, which was also prohibited or precluded in terms of clause (8) of the agreement, which create restrictions against assignment and subletting amongst others Mr. Taher Ali, further stated that the arguments of Mr. Mukherjee, on natural justice and hearing, would not be of any avail or assistance, because neither under the said Act nor under the terms and conditions of the agreement, there is any such provision. He stated that it cannot be said that the petitioner is not governed by the said Act or rule, framed thereunder. That being the position, under sub-section (3) of the said Act, the tenancy of the petitioner could be terminated, if there is violation of S. 3(ii) or any other clause of the concerned agreement. In case of termination for default or non-payment of rent S.4 makes provision for restoration of possession and S. 5 speaks of penalty. 6. That being the position, under sub-section (3) of the said Act, the tenancy of the petitioner could be terminated, if there is violation of S. 3(ii) or any other clause of the concerned agreement. In case of termination for default or non-payment of rent S.4 makes provision for restoration of possession and S. 5 speaks of penalty. 6. An enquiry was made by me, as to whether family has been defined under the said Act. It appears that under the West Bengal Government Premises (Tenancy Regulation) (Second Amendment) Act, 1980, family has been defined for the purpose of S. 3(2)(ia) and S. 3A, to include parents and other relations of the tenant, who ordinarity reside with him and arc dependent on him. In this case, the petitioner made a representation as in annexure 'C'. There also, he has not disclosed or shown, that his brothers and sisters were and are dependent on him. As such, for paucity of such evidence, those brothers and sisters, in my view, would not be members of the family of the petitioner and as such, the petitioner would not also be entitled to take the defence as mentioned hereinbefore. 7. On questions of natural justice or whether natural justice should and can be implied, when there is no provision made in the statute, here in the said Act or under the said agreement, reference may be made to the Bench determinations of this Court in the case of Sushila Debi Fomra vs. State of West Bengal, 1980(II) CHN 1 : 84 CWN 661. That was a case under the West Bengal Land Requisition and Acquisition Act, 1948, where, their Lordships of the Appeal Court, have observed that the Act in question must contemplate the giving of notice to and hearing the persons affected, before making an order under the provisions of the Act and such provisions according to them were not implicit under the Act, as was involved in that case. It has further been observed by their Lordships that exclusion of rules of natural justice need not be by express legislation and they may be excluded by necessary implication, viz. by the tenure of the concerned statute. It has also been observed that when it is apparent on the face of the provisions of a statute that the legislature has intended to exclude the principles of natural justice, such intention cannot be ignored. by the tenure of the concerned statute. It has also been observed that when it is apparent on the face of the provisions of a statute that the legislature has intended to exclude the principles of natural justice, such intention cannot be ignored. It has also been observed that right to prior notice and opportunity of hearing arises, only by implication from the duty to act fairly and the same may be excluded, when having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statute, fairness in action does not demand its implication and may even warrant its exclusion. Their Lordships have further held that if the legislature, either expressly or by necessary implication, exclude notice and hearing, the action cannot be declared illegal or invalid because of non-compliance of the rules of natural justice. 8. Here under the provisions of the said Act and the terms and conditions of occupation, as indicated hereinbefore, the termination of the tenancy is automatic and more particularly on the happenings of several events. When family has been defined and the Government accommodation as involved in this case, really and in terms of the agreement in question, meant for the use of Government employees, so unless the persons occupying it, come or brought in, within the definition of family, the allotted cannot be allowed to take such advantage, as was sought to be taken by the petitioner in this case. 9. It should be noted here that from a reference to the records as produced by Mr. Taher Ali it appeared that there was an enquiry initiated by one Samarendra Nath Sarkar, Chief Inspector and he on 16.2.76, reported that the said flat was not occupied by the allotted Sri Saral Kumar Sen Gupta and Santosh Kumar Sen Gupta lives in the flat along with other family members permanently and that too for a long time. In fact, such report was made after looking and considering their Ration Cards. It should also be noted that at one point of time, the petitioner asked for transfer of the said flat, in favour of one hi s sisters, who was also living there at that time, but such prayer was refused. 10. In fact, such report was made after looking and considering their Ration Cards. It should also be noted that at one point of time, the petitioner asked for transfer of the said flat, in favour of one hi s sisters, who was also living there at that time, but such prayer was refused. 10. For the reasons as above, I find that this application is not bona fide and as such the same is rejected and the Rule is discharged. There will be no order as to costs. The prayer for stay of operation of this order as made, is refused. Rule discharged.